UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

SCHEDULE 13D

Under the Securities Exchange Act of 1934

(AMENDMENT NO. 21)*

 

 

Euronav NV

(Name of Issuer)

Ordinary Shares, no par value

(Title of Class of Securities)

B38564108

(CUSIP Number)

Compagnie Maritime Belge NV

De Gerlachekaai 20

2000 Antwerp

Belgium

Attention: Ludovic Saverys

Chief Financial Officer

Tel: +32 3 247 59 11

With a Copy to:

Robert E. Lustrin, Esq.

Reed Smith LLP

599 Lexington Avenue

New York, NY 10022-7650

Tel: (212) 521-5400

(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)

November 22, 2023

(Date of Event which Requires Filing of this Statement)

 

 

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box  ☐.

 

 

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See 240.13d-7(b) for other parties to whom copies are to be sent.

 

 

*

The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934, as amended (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

 

 

 


CUSIP No. B38564108

 

  1    

  NAMES OF REPORTING PERSONS

  I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)

 

  Compagnie Maritime Belge NV

  2  

  CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP

  (a)  ☐        (b)  ☐

 

  3  

  SEC USE ONLY

 

  4  

  SOURCE OF FUNDS (See Instructions)

 

  WC, BK

  5  

  CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E)

 

  ☐

  6  

  CITIZENSHIP OR PLACE OF ORGANIZATION

 

  Belgium

NUMBER OF

SHARES

 BENEFICIALLY 

OWNED BY

EACH

REPORTING

PERSON

WITH

 

     7    

  SOLE VOTING POWER

 

  0

     8  

  SHARED VOTING POWER

 

  107,905,344

     9  

  SOLE DISPOSITIVE POWER

 

  0

   10  

  SHARED DISPOSITIVE POWER

 

  107,905,344

11    

  AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

 

  107,905,344

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)

 

  53.44%*

14  

  TYPE OF REPORTING PERSON (See Instructions)

 

  CO

 

*

Based on 201,912,942 Ordinary Shares outstanding as of September 30, 2023 (not including treasury shares), as reported in the Issuer’s Current Report on Form 6-K furnished to the Securities and Exchange Commission on November 2, 2023.


CUSIP No. B38564108

 

  1    

  NAMES OF REPORTING PERSONS

  I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)

 

  Saverco NV

  2  

  CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP

  (a)  ☐        (b)  ☐

 

  3  

  SEC USE ONLY

 

  4  

  SOURCE OF FUNDS (See Instructions)

 

  WC*

  5  

  CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E)

 

  ☐

  6  

  CITIZENSHIP OR PLACE OF ORGANIZATION

 

  Belgium

NUMBER OF

SHARES

 BENEFICIALLY 

OWNED BY

EACH

REPORTING

PERSON

WITH

 

     7    

  SOLE VOTING POWER

 

  24,400

     8  

  SHARED VOTING POWER

 

  107,929,744

     9  

  SOLE DISPOSITIVE POWER

 

  24,400

   10  

  SHARED DISPOSITIVE POWER

 

  107,929,744

11    

  AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

 

107,929,744

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)

 

  53.45%**

14  

  TYPE OF REPORTING PERSON (See Instructions)

 

  CO

 

*

As to 24,400 Ordinary Shares owned directly by Saverco NV.

**

Based on 201,912,942 Ordinary Shares outstanding as of September 30, 2023 (not including treasury shares), as reported in the Issuer’s Current Report on Form 6-K furnished to the Securities and Exchange Commission on November 2, 2023.


CUSIP No. B38564108

 

  1    

  NAMES OF REPORTING PERSONS

  I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)

 

  Alexander Saverys

  2  

  CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP

  (a)  ☐        (b)  ☐

 

  3  

  SEC USE ONLY

 

  4  

  SOURCE OF FUNDS (See Instructions)

 

  OO

  5  

  CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E)

 

  ☐

  6  

  CITIZENSHIP OR PLACE OF ORGANIZATION

 

  Belgium

NUMBER OF

SHARES

 BENEFICIALLY 

OWNED BY

EACH

REPORTING

PERSON

WITH

 

     7    

  SOLE VOTING POWER

 

  0

     8  

  SHARED VOTING POWER

 

  107,929,744

     9  

  SOLE DISPOSITIVE POWER

 

  0

   10  

  SHARED DISPOSITIVE POWER

 

  107,929,744

11    

  AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

 

  107,929,744

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)

 

  53.45%*

14  

  TYPE OF REPORTING PERSON (See Instructions)

 

  IN

 

*

Based on 201,912,942 Ordinary Shares outstanding as of September 30, 2023 (not including treasury shares), as reported in the Issuer’s Current Report on Form 6-K furnished to the Securities and Exchange Commission on November 2, 2023.


CUSIP No. B38564108

 

  1    

  NAMES OF REPORTING PERSONS

  I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)

 

  Ludovic Saverys

  2  

  CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP

  (a)  ☐        (b)  ☐

 

  3  

  SEC USE ONLY

 

  4  

  SOURCE OF FUNDS (See Instructions)

 

  OO

  5  

  CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E)

 

  ☐

  6  

  CITIZENSHIP OR PLACE OF ORGANIZATION

 

  Belgium

NUMBER OF

SHARES

 BENEFICIALLY 

OWNED BY

EACH

REPORTING

PERSON

WITH

 

     7    

  SOLE VOTING POWER

 

  0

     8  

  SHARED VOTING POWER

 

  107,929,744

     9  

  SOLE DISPOSITIVE POWER

 

  0

   10  

  SHARED DISPOSITIVE POWER

 

  107,929,744

11    

  AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

 

  107,929,744

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)

 

  53.45%*

14  

  TYPE OF REPORTING PERSON (See Instructions)

 

  IN

 

*

Based on 201,912,942 Ordinary Shares outstanding as of September 30, 2023 (not including treasury shares), as reported in the Issuer’s Current Report on Form 6-K furnished to the Securities and Exchange Commission on November 2, 2023.


CUSIP No. B38564108

 

  1    

  NAMES OF REPORTING PERSONS

  I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)

 

  Michael Saverys

  2  

  CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP

  (a)  ☐        (b)  ☐

 

  3  

  SEC USE ONLY

 

  4  

  SOURCE OF FUNDS (See Instructions)

 

  OO

  5  

  CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E)

 

  ☐

  6  

  CITIZENSHIP OR PLACE OF ORGANIZATION

 

  Belgium

NUMBER OF

SHARES

 BENEFICIALLY 

OWNED BY

EACH

REPORTING

PERSON

WITH

 

     7    

  SOLE VOTING POWER

 

  0

     8  

  SHARED VOTING POWER

 

  107,929,744

     9  

  SOLE DISPOSITIVE POWER

 

  0

   10  

  SHARED DISPOSITIVE POWER

 

  107,929,744

11    

  AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

 

  107,929,744

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)

 

  53.45%*

14  

  TYPE OF REPORTING PERSON (See Instructions)

 

  IN

 

*

Based on 201,912,942 Ordinary Shares outstanding as of September 30, 2023 (not including treasury shares), as reported in the Issuer’s Current Report on Form 6-K furnished to the Securities and Exchange Commission on November 2, 2023.


Explanatory Note

This Amendment No. 21 (this “Amendment”) to Schedule 13D relates to ordinary shares, no par value (the “Ordinary Shares”), of Euronav NV (the “Issuer”) and amends and supplements the initial statement on Schedule 13D filed with the Securities and Exchange Commission (the “Commission”) on February 14, 2022, as amended by Amendment No. 1 thereto filed with the Commission on February 23, 2022, Amendment No. 2 thereto filed with the Commission on March 9, 2022, Amendment No. 3 thereto filed with the Commission on April 1, 2022, Amendment No. 4 thereto filed with the Commission on April 4, 2022, Amendment No. 5 thereto filed with the Commission on April 12, 2022, Amendment No. 6 thereto filed with the Commission on April 26, 2022, Amendment No. 7 thereto filed with the Commission on May 4, 2022, Amendment No. 8 thereto filed with the Commission on May 17, 2022, Amendment No. 9 thereto filed with the Commission on May 24, 2022, Amendment No. 10 thereto filed with the Commission on July 13, 2022, Amendment No. 11 thereto filed with the Commission on October 11, 2022, Amendment No. 12 thereto filed with the Commission on December 2, 2022, Amendment No. 13 thereto filed with the Commission on December 5, 2022, Amendment No. 14 thereto filed with the Commission on December 12, 2022, Amendment No. 15 thereto filed with the Commission on December 14, 2022, Amendment No. 16 thereto filed with the Commission on January 18, 2023, Amendment No. 17 thereto filed with the Commission on February 10, 2023, Amendment No. 18 thereto filed with the Commission on February 16, 2023, Amendment No. 19 thereto filed with the Commission on March 24, 2023, and Amendment No. 20 thereto filed with the Commission on October 10, 2023 (as amended and supplemented, the “Original Schedule 13D”, and as further amended and supplemented by this Amendment No. 21, the “Schedule 13D”).

Capitalized terms used but not defined in this Amendment No. 21 shall have the same meanings ascribed to them in the Original Schedule 13D. Except as specifically provided herein, this Amendment No. 21 does not modify any of the information previously reported in the Original Schedule 13D.

The tender offer by Compagnie Maritime Belge NV, a naamloze vennootschap (limited liability company) incorporated in Belgium (“CMB” or the “Offeror”), one of the Reporting Persons referred to in this Schedule 13D, has not yet commenced. This Schedule 13D is for informational purposes only, and is neither an offer to purchase nor a solicitation of an offer to sell any Ordinary Shares of the Issuer or any other securities, nor is it a substitute for the Tender Offer Statement on Schedule TO and other necessary filings that the Offeror will file with the Commission, and the Solicitation/Recommendation Statement on Schedule 14D-9 and other necessary filings that the Issuer will file with the Commission, at the time the tender offer is commenced. Any solicitation and offer to buy Ordinary Shares will only be made pursuant to an offer to purchase and related tender offer materials. At the time the tender offer is commenced, the Offeror will file with the Commission a Tender Offer Statement on Schedule TO and other necessary filings, and in connection therewith the Issuer will file with the Commission a Solicitation/Recommendation Statement on Schedule 14D-9 and other necessary filings. The Tender Offer Statement (including an offer to purchase, a related letter of transmittal and certain other offer documents) and the Solicitation/Recommendation Statement on Schedule 14d-9 will contain important information. U.S. Holders of Ordinary Shares are urged to read these documents carefully when they become available because they will contain important information that U.S. Holders of Ordinary Shares should consider before making any decision with respect to the tender offer. When the tender offer is commenced, the offer to purchase, the related letter of transmittal and the solicitation/recommendation statement and other filings related to the offer will be made available for free at the Commission’s website at www.sec.gov. U.S. Holders of Ordinary Shares also may obtain free copies of the Tender Offer Statement and other offer documents that the Offeror will file with the Commission by contacting the information agent for the tender offer that will be named in the Tender Offer Statement and the Solicitation/Recommendation Statement.


Item 3.

Source and Amount of Funds or Other Consideration

Item 3 of the Original Schedule 13D is hereby amended and supplemented by adding the following information:

On November 22, 2023, CMB acquired 57,479,744 Ordinary Shares (the “Sale Shares”) from Frontline plc (“Frontline”) and Famatown Finance Limited (“Famatown”, and together with Frontline, the “Sellers”) pursuant to the Share Purchase Agreement dated October 9, 2023 (the “Share Purchase Agreement”) between CMB and the Sellers for an aggregate purchase price of US$1,059,351,682 in cash (the “Share Purchase”).

The aggregate purchase price for the Sale Shares was funded with borrowings under a US$3.2 billion bridge facilities agreement entered into among CMB and Crédit Agricole Corporate and Investment Bank, KBC Bank NV, and Société Générale (collectively, the “Bookrunning Mandated Lead Arrangers”), Belfius Bank NV/SA, DNB (UK) Limited, ING Belgium SA/NV and Nordea Bank Abp filial i Norge (collectively, the “Mandated Lead Arrangers”) and Skandinaviska Enskilda Banken AB (publ) (the “Lead Arranger” and together with the Bookrunning Mandated Lead Arrangers and the Mandated Lead Arrangers, the “Arrangers”) dated November 20, 2023 (the “Facilities Agreement”). The Facilities Agreement provides for a US$1,110,000,000 term loan bridge facility which was used to pay the purchase price for the Sale Shares and related transaction costs (the “SPA Acquisition Bridge Facility”), a US$1,740,000,000 term loan bridge facility which will be used to fund the Offer (the “Bid Acquisition Bridge Facility”) and a US$350,000,000 term loan bridge facility (the “Margin Loan Bridge Facility”) which was used to refinance the outstanding amounts under existing margin loan facilities (the “Existing Margin Loans”).

Term. The Facilities Agreement has an initial term of nine months expiring on August 20, 2024, which, subject to certain conditions and at the option of CMB, may be extended for an additional six months. Such extension is subject to (i) no default having occurred and is then continuing or would occur as a result of the extension; (ii) all repeating representations made by CMB being correct in all material respects; and (iii) the payment of an extension fee as agreed in the Facilities Agreement. The principal amounts outstanding under the Facilities Agreement must be repaid in full not later than its maturity date, subject to any extension. CMB may utilize the Facilities Agreement in one or several installments.

Prepayment. The Facilities Agreement contains customary prepayment events (including but not limited to where it becomes illegal for a lender to fund or maintain its participation or where there is a change of control of CMB or the Issuer). In addition, CMB is required to prepay loans under the Facilities Agreement out of the net proceeds received from a permitted sale of CMB.TECH NV, a wholly-owned subsidiary of CMB (“CMB.TECH”), and/or the sale of Ordinary Shares of the Issuer, provided that CMB retains at least a 50% ownership interest in the Issuer (excluding treasury shares). CMB also has the ability to voluntarily cancel commitments or repay amounts outstanding under the Facilities Agreement.

Representations and warranties, undertakings and events of default. The Facilities Agreement contains representations, warranties, undertakings and events of default that are customary for facilities of this type, with such adjustments as are necessary to reflect the transaction structure.

Security. CMB’s obligations under the Facilities Agreement are secured by a pledge of all shares of the Issuer held by CMB (or to be acquired pursuant to the Offer), including the Ordinary Shares which were pledged in favor of the lenders in respect of the Existing Margin Loans and all shares owned by CMB in CMB.TECH. In addition, the borrowings under the Facilities Agreement are secured by any cash held in prepayment accounts into which funds from permitted sales of the pledged securities are required to be deposited.

Governing law. The Facilities Agreement is governed by English law.

The Facilities Agreement has been included to provide investors with information regarding its terms. It is not intended to provide any other factual information about CMB or its respective subsidiaries or affiliates. The representations, warranties and covenants contained in the Facilities Agreement were made only for purposes of the Facilities Agreement as of the specific dates therein, are solely for the benefit of the parties to the Facilities Agreement, may be subject to limitations agreed upon by the contracting parties, including being qualified by confidential disclosures made for the purposes of allocating contractual risk among the parties to the Facilities Agreement instead of establishing these matters as facts, and may be subject to standards of materiality applicable to the contracting parties that differ from those applicable to investors. Investors should not rely on the representations, warranties and covenants or any descriptions thereof as characterizations of the actual state of facts or condition of the parties thereto or any of their respective subsidiaries or affiliates. Moreover, information concerning the subject matter of representations and warranties may change after the date of the Facilities Agreement, which subsequent information may or may not be reflected in CMB’s public disclosures.

The foregoing is a summary of certain provisions of the Facilities Agreement. The summary of the Facilities Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Facilities Agreement, a copy of which is attached hereto as Exhibit M and is incorporated by reference herein.


Item 4.

Purpose of Transaction

Item 4 of the Original Schedule 13D is hereby amended and supplemented by adding the following information:

Closing of the Share Purchase

On November 22, 2023, the Share Purchase was consummated, resulting in an increase of CMB’s and its affiliates beneficial ownership of the Issuer’s outstanding Ordinary Shares (excluding treasury shares) to 53.45%.

Changes to the Supervisory Board and Management Board of the Issuer

Supervisory Board. Pursuant to the terms of the Share Purchase Agreement, John Fredriksen and Cato H. Stonex resigned from the Issuer’s Supervisory Board effective November 22, 2023. On November 22, 2023, the Issuer issued a press release announcing that Grace Reksten Skaugen and Ole Henrik Bjorge also resigned from the Supervisory Board effective upon the closing of the Share Purchase. The Issuer also announced that the Supervisory Board filled the vacancies created by the resignations of Mr. Fredriksen, Mr. Stonex, Ms. Skaugen and Mr. Bjorge with the appointment of Catharina Scheers, Bjarte Bøe and Patrick Molis as directors.

Ms. Scheers and Mr. Molis are independent directors under the Issuer’s Corporate Governance Code, Rule 10A-3 promulgated under the Exchange Act and under the rules of the New York Stock Exchange. Upon the closing of the Share Purchase, the Supervisory Board will be comprised of six members, three of whom are independent.

Management Board. The Issuer also announced that Lieve Logghe, Alex Staring, Brian Gallagher and Thierry De Grieze resigned from their positions on the Issuer’s Management Board effective upon the closing of the Share Purchase however, they will continue on an advisory basis with the Issuer until the end of December 2023. Sofie Lemlijn and Michail Malliarios also resigned from the Management Board, however, they will remain as employees of the Issuer. The new members of the Issuer’s Management Board and their positions are set forth below.

 

Member

  

Position                                             

Alexander Saverys(1)    Chief Executive Officer
Ludovic Saverys(2)    Chief Financial Officer
Michaël Saverys(3)    Chief Chartering Officer
Maxime Van Eecke(4)    Chief Commercial Officer
Benoit Timmermans    Chief Strategy Officer

 

(1)

Acting as permanent representative of Hof Ter Polder BV, with company number 0447.980.147. Alexander Saverys is also a director and the Chief Executive Officer of CMB (and a director of Saverco).

(2)

Acting as permanent representative of Succavest NV, with company number 0435.173.177. Ludovic Saverys is also a director and the Chief Financial Officer of CMB (and a director of Saverco).

(3)

Acting as permanent representative of Gemadi BV, with company number 0707.960.240. Michael Saverys is also a director of CMB (and a director of Saverco).

(4)

Acting as permanent representative of Mavecom CommV with company number 0721.561.719. Mr. Van Eecke is also a director and Chief Commercial Officer of CMB.

The Offer

As a result of the consummation of the Share Purchase resulting in CMB and its affiliates owning more than 30% of the Ordinary Shares of the Issuer, CMB is required under Belgian law to commence an unconditional mandatory public takeover bid (the “Offer”) for all the issued Ordinary Shares (the “Target Shares”) of the Issuer that the Reporting Persons do not already own in accordance with the provisions of the Act of 1 April 2007 on takeover bids (the “Takeover Act”) and Chapter III of the Royal Decree of 27 April 2007 on takeover bids (the “Takeover RD”) and Regulations 14D and 14E under the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), and subject to any exemptive and no-action relief as may be granted by the Commission and any derogations as may be granted by the Financial Services and Markets Authority of Belgium (the “FSMA”). The Offer will be an unconditional offer in cash at a price of US$18.43 per Ordinary Share, reduced on a dollar-for-dollar basis by the gross amount per share of any future dividends and other distributions by the Issuer to its shareholders after the closing of the Share Purchase with an ex-dividend date prior to the settlement date of the Offer (the “Offer Price”). The Offer will be made concurrently in the United States and Belgium.


Vessel Sale by the Issuer to Frontline

On November 22, 2023, the Issuer announced that the conditions precedent to the closing of the sale of 24 vessels by the Issuer to Frontline or an affiliate thereof pursuant to the Framework Agreement dated October 9, 2023 between the Issuer and Frontline (the “Vessel Sale”) have been satisfied and the transaction became effective and will be executed in due course.


Item 5.

Interest in Securities of the Issuer

Item 5 of the Original Schedule 13D is hereby amended and restated in its entirety as follows:

(a) and (b)

As of the date of this Schedule 13D, CMB directly owns 107,905,344 Ordinary Shares, which represents 53.44% of the outstanding Ordinary Shares based upon 201,912,942 Ordinary Shares outstanding as of September 30, 2023 (not including treasury shares), as reported in the Issuer’s Current Report on Form 6-K furnished to the Commission on November 2, 2023. CMB has the shared power to vote or direct the vote of 107,905,344 Ordinary Shares. CMB has the shared power to dispose or direct the disposition of 107,905,344 Ordinary Shares.

As of the date of this Schedule 13D, Saverco directly owns 24,400 Ordinary Shares. Saverco may be deemed to beneficially own 107,929,744 Ordinary Shares, which represents 53.45% of the outstanding Ordinary Shares based upon 201,912,942 Ordinary Shares outstanding as of September 30, 2023 (not including treasury shares), as reported in the Issuer’s Current Report on Form 6-K furnished to the Commission on November 2, 2023. Saverco has the shared power to vote or direct the vote of 107,929,344 Ordinary Shares. Saverco has the shared power to dispose or direct the disposition of 107,929,344 Ordinary Shares.

As of the date of this Schedule 13D, Alexander Saverys owns no Ordinary Shares directly. Alexander Saverys may be deemed to beneficially own 107,929,744 Ordinary Shares, which represents 53.45% of the outstanding Ordinary Shares based upon 201,912,942 Ordinary Shares outstanding as of September 30, 2023, as reported in the Issuer’s Current Report on Form 6-K furnished to the Commission on November 2, 2023. Alexander Saverys has the shared power to vote or direct the vote of 107,929,744 Ordinary Shares and the shared power to dispose or direct the disposition of 107,929,744 Ordinary Shares. Alexander Saverys disclaims beneficial ownership of such Ordinary Shares, except to the extent of his pecuniary interest therein.

As of the date of this Schedule 13D, Ludovic Saverys owns no Ordinary Shares directly. Ludovic Saverys may be deemed to beneficially own 107,929,744 Ordinary Shares, which represents 53.45% of the outstanding Ordinary Shares based upon 201,912,942 Ordinary Shares outstanding as of September 30, 2023, as reported in the Issuer’s Current Report on Form 6-K furnished to the Commission on November 2, 2023. Ludovic Saverys has the shared power to vote or direct the vote of 107,929,744 Ordinary Shares and the shared power to dispose or direct the disposition of 107,929,744 Ordinary Shares. Ludovic Saverys disclaims beneficial ownership of such Ordinary Shares, except to the extent of his pecuniary interest therein.

As of the date of this Schedule 13D, Michael Saverys owns no Ordinary Shares directly. Michael Saverys may be deemed to beneficially own 107,929,744 Ordinary Shares, which represents 53.45% of the outstanding Ordinary Shares based upon 201,912,942 Ordinary Shares outstanding as of September 30, 2023, as reported in the Issuer’s Current Report on Form 6-K furnished to the Commission on November 2, 2023. Michael Saverys has the shared power to vote or direct the vote of 107,929,744 Ordinary Shares and the shared power to dispose or direct the disposition of 107,929,744 Ordinary Shares. Michael Saverys disclaims beneficial ownership of such Ordinary Shares, except to the extent of his pecuniary interest therein.

The information set forth in Item 4 of this Amendment No. 21 is incorporated herein by reference. Except for the transactions described elsewhere in this Schedule 13D, none of the Reporting Persons nor (to the Reporting Persons’ knowledge) any person set forth in Item 2, has engaged in any transactions in the Ordinary Shares during the past 60 days.

(c) Other than as described in Item 4, to the knowledge of the Reporting Persons, no other person has the right to receive, or the power to direct the receipt of, dividends from, or the proceeds of the sale of, the securities that are the subject of this Schedule 13D.

(d) Not applicable.


Item 6.

Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer

Item 6 of this Schedule 13D is hereby amended and supplemented by adding the following information:

On November 22, 2023, the outstanding principal balance on the Existing Margin Loans was refinanced under the Facilities Agreement. As of the date of this Schedule 13D, the outstanding principal balance of the Margin Loan Bridge Facility is US$350,000,000.

Pursuant to the Facilities Agreement, CMB entered into the Bank Account and Securities Pledge Agreement between CMB and KBC Bank NV, as security agent, dated November 20, 2023 (the “Pledge Agreement”) pursuant to which CMB has pledged all of the Ordinary Shares of the Issuer that it owns and has agreed to pledge all of the Shares of the Issuer that it acquires in the Offers as security for CMB’s obligations under the Facilities Agreement. Under the Pledge Agreement, in the case of an event of default, the security agent has the right to instruct CMB in voting the pledged Ordinary Shares and has the right to enforce its rights under the Pledge Agreement, which may result in the foreclosure upon the pledged Ordinary Shares and/or sale of the Ordinary Shares. The Pledge Agreement is governed by Belgian law.

The information set forth under Item 4 and the Facilities Agreement attached hereto as Exhibit M is incorporated herein by reference. Except as otherwise described in this Schedule 13D, including the Exhibits attached hereto, there are no contracts, arrangements, understandings, or relationships (legal or otherwise) among the Reporting Persons, or between any Reporting Person(s) and any third party, with respect to any securities of the Issuer, including, but not limited to, those involving the transfer or voting of any of the securities, finder’s fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, division of profits or losses, or the giving or withholding of proxies, including any securities pledged or otherwise subject to a contingency the occurrence of which would give another person voting power or investment power over such securities other than standard default and similar provisions contained in loan agreements.


Item 7.

Material to Be Filed as Exhibits

 

Exhibit A    Joint Filing Agreement
Exhibit B    N/A
Exhibit C    Press Release dated April 8, 2022(1)
Exhibit D    Letter to Euronav NV dated April 26, 2022(2)
Exhibit E    Press release dated July 12, 2022(3)
Exhibit F    Letter to Supervisory Board of Euronav NV dated December 14, 2022(4)
Exhibit G    Letter to Euronav NV dated January 16, 2023(5)
Exhibit H    Press Release dated February 9, 2023(6)
Exhibit I    Transcript of CMB Conference Call held on February 15, 2023(7)
Exhibit J    Press Release dated October 9, 2023(8)
Exhibit K    Press Release of CMB under Article 8 of the Takeover RD dated October 9, 2023(9)
Exhibit L    Share Purchase Agreement among CMB, Frontline plc and Famatown Finance Limited dated October 9, 2023(10)
Exhibit M    Bridge facilities agreement among CMB and Crédit Agricole Corporate and Investment Bank, KBC Bank NV, and Société Générale and the other lenders thereunder dated November 20, 2023

 

(1)

Previously filed with Amendment No. 5 on April 12, 2022

(2)

Previously filed with Amendment No. 6 on April 26, 2022

(3)

Previously filed with Amendment No. 10 on July 13, 2022

(4)

Previously filed with Amendment No. 15 on December 14, 2022

(5)

Previously filed with Amendment No. 16 on January 18, 2023

(6)

Previously filed with Amendment No. 17 on February 10, 2023

(7)

Previously filed with Amendment No. 18 on February 16, 2023

(8)

Previously filed with Amendment No. 20 on October 10, 2023

(9)

Previously filed with Amendment No. 20 on October 10, 2023

(10)

Previously filed with Amendment No. 20 on October 10, 2023


Page 1 of 1

Signatures

After reasonable inquiry and to the best of my knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.

 

November 22, 2023

 
Dated  
COMPAGNIE MARITIME BELGE NV
By:   /s/ Ludovic Saverys
Name:   Ludovic Saverys

Title:

 

Chief Financial Officer

SAVERCO NV
By:   /s/ Ludovic Saverys
Name:   Ludovic Saverys

Title:

 

Director

ALEXANDER SAVERYS

/s/ Alexander Saverys

LUDOVIC SAVERYS

/s/ Ludovic Saverys

MICHAEL SAVERYS

/s/ Michael Saverys

Exhibit A

JOINT FILING AGREEMENT

In accordance with Rule 13d-1(k)(1) promulgated under the Securities Exchange Act of 1934, as amended, the undersigned hereby agree that they are jointly filing this statement on Schedule 13D. Each of them is responsible for the timely filing of such statement and any amendments thereto, and for the completeness and accuracy of the information concerning such person contained therein; but none of them is responsible for the completeness or accuracy of the information concerning the other persons making the filing, unless such person knows or has reason to believe that such information is inaccurate.

IN WITNESS WHEREOF, the undersigned hereby execute this Joint Filing Agreement as of November 22, 2023.

 

COMPAGNIE MARITIME BELGE NV
By:   /s/ Ludovic Saverys
Name:   Ludovic Saverys
Title:   Chief Financial Officer
SAVERCO NV
By:   /s/ Ludovic Saverys
Name:   Ludovic Saverys
Title:   Director
ALEXANDER SAVERYS
/s/ Alexander Saverys
LUDOVIC SAVERYS
/s/ Ludovic Saverys
MICHAEL SAVERYS
/s/ Michael Saverys

Exhibit M

EXECUTION COPY.

USD 3,200,000,000

BRIDGE FACILITIES AGREEMENT

20 NOVEMBER 2023

for

CMB NV

with

CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK

KBC BANK NV

SOCIÉTÉ GÉNÉRALE

as Bookrunning Mandated Lead Arrangers

and

BELFIUS BANK SA/NV

DNB (UK) LIMITED

ING BELGIUM NV/SA

NORDEA BANK ABP FILIAL I NORGE

as Mandated Lead Arrangers

and

SKANDINAVISKA ENSKILDA BANKEN AB (PUBL)

as Lead Arranger

with

CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK

KBC BANK NV

SOCIÉTÉ GÉNÉRALE

acting as Coordinators

and

KBC BANK NV

acting as Documentation Agent

and

KBC BANK NV

acting as Agent and Security Agent

 

LOGO

Allen & Overy (Belgium) LLP


CONTENTS

 

Clause        Page  

1.

  Definitions and Interpretation      1  

2.

  The Facilities      26  

3.

  Purpose      29  

4.

  Conditions of Utilisation      30  

5.

  Bid Certificate      31  

6.

  Utilisation      32  

7.

  Repayment      33  

8.

  Prepayment and Cancellation      33  

9.

  Interest      39  

10.

  Interest Periods      40  

11.

  Changes to the Calculation of Interest      41  

12.

  Fees      42  

13.

  Tax Gross Up and Indemnities      43  

14.

  Increased Costs      49  

15.

  Other Indemnities      52  

16.

  Mitigation by the Lenders      55  

17.

  Costs and Expenses      55  

18.

  Representations      56  

19.

  Information Undertakings      62  

20.

  General Undertakings      65  

21.

  Events of Default      73  

22.

  Changes to the Lenders      77  

23.

  Changes to the Borrower      81  

24.

  Security      81  

25.

  Role of the Agent, the Security Agent, the Arranger and others      85  

26.

  Conduct of Business by the Finance Parties      94  

27.

  Sharing among the Finance Parties      94  

28.

  Payment Mechanics      95  

29.

  Set-Off      99  

30.

  Notices      99  

31.

  Calculations and Certificates      101  

32.

  Partial Invalidity      102  

33.

  Remedies and Waivers      102  

34.

  Amendments and Waivers      102  

35.

  Confidential information      107  

36.

  Confidentiality of Funding Rates      110  

37.

  Counterparts      111  

38.

  Bail-in      111  

39.

  Governing Law      113  

40.

  Enforcement      113  

41.

  Service of process      113  


Schedule     
1.           The Original Lenders   
2.   Conditions Precedent   
  Part   1   Conditions Precedent to signing   
  Part   2   SPA Conditions Precedent   
  Part   3   Bid Conditions Precedent   
  Part   4   Refinancing Conditions Precedent   
3.   Requests   
  Part   1   Utilisation Request   
  Part   2   Selection Notice   
4.   Form of Transfer Certificate   
5.   Timetables   
6.   Form of Increase Confirmation   
7.   Form of Extension Request   
8.   Form of Bid Certificate Request   
9.   Form of Bid Certificate   
10.   Reference Rate Terms   
11.   Daily Non-Cumulative Compounded RFR Rate   
12.   Cumulative Compounded RFR Rate   
13.   Form of Tax Status Certificate   
14.   Form of CMB.TECH valuation   
Signatories   


THIS AGREEMENT is dated 20 November 2023 and made

BETWEEN:

 

(1)

CMB NV (Belgische ScheepvaartmaatschappijCompagnie Maritime Belge), a limited liability company (naamloze vennootschap/société anonyme) with its statutory seat at De Gerlachekaai 20, 2000 Antwerp, Belgium, registered with the Crossroads Bank for Enterprises under number 0404.535.431, Business Court of Antwerp (division Antwerp) (the Borrower);

 

(2)

CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK, KBC BANK NV and SOCIÉTÉ GÉNÉRALE as bookrunning mandated lead arrangers (whether acting individually or together the Bookrunning Mandated Lead Arranger)

 

(3)

BELFIUS BANK SA/NV, DNB (UK) LIMITED, ING BELGIUM NV/SA and NORDEA BANK ABP FILIAL I NORGE as mandated lead arrangers (whether acting individually or together the Mandated Lead Arranger);

 

(4)

SKANDINAVISKA ENSKILDA BANKEN AB (PUBL) as lead arranger (the Lead Arranger, and whether acting individually or together with the Bookrunning Mandated Lead Arrangers and the Mandated Lead Arranger, the Arranger);

 

(5)

THE FINANCIAL INSTITUTIONS listed in Schedule 1 (The Original Lenders) as lenders (the Original Lenders);

 

(6)

KBC BANK NV as issuing bank (in this capacity, the Issuing Bank);

 

(7)

CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK, KBC BANK NV and SOCIÉTÉ GÉNÉRALE as coordinators (the Coordinators);

 

(8)

KBC BANK NV as documentation agent (the Documentation Agent);

 

(9)

KBC BANK NV as agent of the other Finance Parties (the Agent); and

 

(10)

KBC BANK NV as security agent for the Finance Parties (the Security Agent).

IT IS AGREED as follows:

 

1.

DEFINITIONS AND INTERPRETATION

 

1.1

Definitions

In this Agreement:

A-Fleet means 24 vessels from the Target (being 24 VLCC’s).

A-Fleet Acquisition means the acquisition by Frontline plc, Frontfleet Ltd. or a special purpose vehicle nominated by Frontfleet Ltd. of the A-Fleet (on an unencumbered basis at the time the vessels under the A-Fleet are sold) for the A-Fleet Acquisition Amount.

A-Fleet Acquisition Agreement means the combination of the Framework Agreement, the Heads of Agreement, the MoAs and the Settlement Agreement, between Frontline plc respectively Frontfleet Ltd. or its guaranteed nominees and the Target regarding the A-Fleet Acquisition and including solely the following conditions precedent to the becoming effective of the main provisions of each MoA (the Effective Date):

 

  (a)

the competition clearance (to the extent applicable) in respect of the A-Fleet Acquisition;

 

1


  (b)

the resolutions by the Target’s shareholders’ meeting approving the conditionality of the transaction contemplated by the A-Fleet Acquisition Agreement and the Settlement Agreement on the closing under the Share Purchase Agreement pursuant to Article 7:151 of the Belgian Code of Companies and Associations having been filed with the clerk’s office of the business court in Antwerp; and

 

  (c)

all conditions precedent under the A-Fleet Acquisition Agreement having been satisfied.

A-Fleet Acquisition Amount means an aggregate acquisition amount for the A-Fleet Acquisition of USD 2,350,013,335, subject to the A-Fleet Price Reduction.

A-Fleet Closing Mechanics means the document entitled “Closing mechanics of the sale of 24 vessels to Frontline and the sale and lease back of 2 vessels to Ocean Yield (i.e. Cedar & Cypress)” dated 17 November 2023 and prepared by the Borrower.

A-Fleet Price Reduction means the reduction of the A-Fleet Acquisition Amount as from the date falling 30 days after the Effective Date and with an average amount of USD 13,461 per day per vessel which has not been sold by the relevant time.

Acquisition Document means the Share Purchase Agreement, the SPA Closing Memorandum and any other document designated as an “Acquisition Document” by the Agent and the Borrower.

Acquisition Proceeds has the meaning given to that term in Clause 8.7 (Mandatory Prepayment – Acquisition Proceeds).

Additional Business Day means any day specified as such in the Reference Rate Terms.

Affiliate means, in relation to any person, a Subsidiary of that person or a Holding Company of that person or any other Subsidiary of that Holding Company, and in relation to Crédit Agricole Corporate and Investment Bank, any member of Crédit Agricole group, including any Caisse Régionale de Crédit Agricole Mutuel, Crédit Lyonnais and any financial institution of Crédit Agricole group which is affiliated to the central body of Crédit Agricole.

Authorisation means an authorisation, consent, approval, resolution, licence, exemption, filing, notarisation or registration.

Availability Period means:

 

  (a)

in relation to the SPA Acquisition Bridge Facility, the period from the date of this Agreement to and including the earlier of (i) the SPA Closing Date and (ii) 31 December 2023;

 

  (b)

in relation to the Bid Acquisition Bridge Facility, the period from the date of this Agreement to and including the end of the Certain Funds Period; and

 

  (c)

in relation to the Margin Loan Bridge Facility, the period from the date of this Agreement to and including the earlier of (i) the SPA Closing Date and (ii) 31 December 2023.

Available Commitment means, in relation to a Facility, a Lender’s Commitment under that Facility minus:

 

  (a)

its participation in any outstanding Loans under that Facility; and

 

2


  (b)

in relation to any proposed Loan, its participation in any other Loans that are due to be made under that Facility on or before the proposed Utilisation Date.

Available Facility means, in relation to a Facility the aggregate for the time being of each Lender’s Available Commitment in respect of that Facility.

B-Fleet means 36 vessels of the Target (being 14 VLCC’s and 22 Suezmax’s).

B-Fleet (Re-)financing means the (re-)financing of the B-Fleet for a total amount corresponding to around 55 per cent. of the fair market value of the vessels, where the amount of the (re-)financing which is in excess of the existing debt on the B-Fleet and the debt related to the acquisition of the 4 newbuild Suezmax vessels which will be delivered in 2024, will be used in full for the repayment of the outstanding debt on the A-Fleet.

Baseline CAS means any rate which is either:

 

  (a)

specified as such in the Reference Rate Terms; or

 

  (b)

determined by the Agent (or by any other Finance Party which agrees to determine that rate in place of the Agent) in accordance with the methodology specified in the Reference Rate Terms.

Belgian Financial Collateral Law means the Belgian law of 15 December 2004 on financial collateral, as amended from time to time.

Belgian MAS Law means Title XVII of Book III of the Belgian Civil Code, as amended by the law of 11 July 2013 amending the Belgian Civil Code in respect of security on movable assets and abolishing various relevant provisions, as amended from time to time.

Bid means the mandatory take-over bid on the Target Outstanding Shares made or to be made by the Borrower (or on its behalf) to shareholders of the Target, which may include dual tender offers, one of which is to be made in accordance with applicable U.S. laws and rules and the other to be made in accordance with Belgian law and practice.

Bid Acquisition means the acquisition by the Borrower of all or part of the Target Outstanding Shares pursuant to the Bid.

Bid Acquisition Bridge Facility Commitment means:

 

  (a)

in relation to an Original Lender, the amount set opposite its name under the heading “Bid Acquisition Bridge Facility Commitment” in Schedule 1 (The Original Lenders) and the amount of any other Bid Acquisition Bridge Facility Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase); and

 

  (b)

in relation to any other Lender, the amount of any Bid Acquisition Bridge Facility Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase),

to the extent not cancelled, reduced or transferred by it under this Agreement.

Bid Acquisition Bridge Facility means the term loan bridge facility made available under this Agreement as described in paragraph (b) of Clause 2.1 (The Facilities).

 

3


Bid Acquisition Bridge Facility Loan means a loan made or to be made under the Bid Acquisition Bridge Facility or the principal amount outstanding for the time being of that loan.

Bid Certificate means each of the certificates as to the certainty of funds in respect of the Bid to be issued to the FSMA by the Issuing Bank pursuant to article 3, 2° of the Public Take-Over Royal Decree, substantially in the form of Schedule 9 (Form of Bid Certificate).

Bid Certificate Request means a notice substantially in the relevant form set out in Schedule 8 (Form of Bid Certificate Request).

Bid Closing Date means the date of first utilisation under the Bid Acquisition Bridge Facility.

Bid Conditions Precedent means the documents and other evidence listed in Part 3 of Schedule 2 (Conditions Precedent).

Bid Costs means all fees, costs and expenses, stamp, registration and other Taxes incurred by the Borrower in connection with, or incidental to, the Bid, the Bid Acquisition and the Finance Documents or the reimbursement of such fees, costs and expenses, stamp, registration and other Taxes by the Borrower.

Bid Expiry Date means the date on which the Borrower determines and notifies the Lenders that the Bid has been irrevocably lapsed, which (for the avoidance of doubt) may not occur prior to the end of any extension of an initial or subsequent acceptance period.

Bid Price means the cash consideration in respect of the Target Outstanding Shares expressed in USD/Target Share as offered under the Bid.

Borrower Change of Control means the Permitted Holders no longer holding 100 per cent. of the issued share capital or voting rights of the Borrower or two or more persons acting in concert other than the Permitted Holders or any individual person who is not a Permitted Holder having the right or the ability to control, either directly or indirectly, the affairs or composition of the majority of the board of directors (or equivalent governing body) of the Borrower.

Break Costs means the amount (if any) by which:

 

  (a)

the interest (excluding the Margin) which a Lender should have received for the period from the date of receipt of all or any part of its participation in a Loan or Unpaid Sum to the last day of the current Interest Period in respect of that Loan or Unpaid Sum, had the principal amount or Unpaid Sum received been paid on the last day of that Interest Period;

exceeds:

 

  (b)

the amount which that 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.

Business Day means a day (other than a Saturday or Sunday) on which banks are open for general business in New York City, Oslo, Antwerp and Paris and in relation to:

 

  (a)

any date for payment or purchase of an amount relating to a Loan or Unpaid Sum; or

 

  (b)

the determination of the first day or the last day of an Interest Period for a Loan or Unpaid Sum, or otherwise in relation to the determination of the length of such an Interest Period), which is an Additional Business Day relating to that Loan or Unpaid Sum.

 

4


Central Bank Rate has the meaning given to that term in the Reference Rate Terms.

Central Bank Rate Adjustment has the meaning given to that term in the Reference Rate Terms.

Certain Funds Period means the period commencing on the SPA Closing Date until the earliest to occur of:

 

  (a)

11.59 p.m. (in Brussels) on the date falling 5 Business Days after the SPA Closing Date, if the formal filing with the FSMA of the Bid in accordance with article 5 of the Public Take-Over Royal Decree has not been made by the Borrower by such time;

 

  (b)

11.59 p.m. (in Brussels) on the Final Settlement Date;

 

  (c)

the Bid Expiry Date; and

 

  (d)

the date falling 9 Months after the date of this Agreement,

or, in each case, such later date as agreed by the Lenders.

Charged Property means all of the assets of the Borrower which from time to time are, or are expressed to be, the subject of the Transaction Security.

CMB Cashflow Forecast means the excel document entitled “CMB updated CF 140923” dated 14 September 2023.

CMB.TECH Shares means the part of the share capital of CMB.TECH NV owned at any time by the Borrower.

CMB.TECH Valuation Report means the valuation report entitled “CMB.TECH internal valuation 31052023” dated 31 May 2023 and any update thereof in accordance with paragraph (b) of Clause 19.3 (Information: miscellaneous).

Code means the US Internal Revenue Code of 1986, as amended from time to time.

Commitment means a SPA Acquisition Bridge Facility Commitment, a Bid Acquisition Bridge Facility Commitment or a Margin Loan Bridge Facility Commitment.

Commitment Letter means the commitment letter dated 4 October 2023 between the Borrower, the Arrangers, the Coordinators, the Documentation Agent, the Agent and the Security Agent

Compounded Reference Rate means, in relation to any RFR Banking Day during the Interest Period of a Loan, the percentage rate per annum which is the aggregate of:

 

  (a)

the Daily Non-Cumulative Compounded RFR Rate for that RFR Banking Day; and

 

  (b)

the applicable Baseline CAS.

Compounding Methodology Supplement means, in relation to the Daily Non-Cumulative Compounded RFR Rate or the Cumulative Compounded RFR Rate, a document which:

 

  (a)

is agreed in writing by the Borrower, the Agent (in its own capacity) and the Agent (acting on the instructions of the Majority Lenders);

 

5


  (b)

specifies a calculation methodology for that rate; and

 

  (c)

has been made available to the Borrower and each Finance Party.

Confidential Information means all information relating to the Borrower, the Group, the Finance Documents or a Facility of which a Finance Party becomes aware in its capacity as, or for the purpose of becoming, a Finance Party or which is received by a Finance Party in relation to, or for the purpose of becoming a Finance Party under, the Finance Documents or a Facility from either:

 

  (a)

any member of the Group or any of its advisers; or

 

  (b)

another Finance Party, if the information was obtained by that Finance Party directly or indirectly from any member of the Group or any of its advisers,

in whatever form, and includes information given orally and any document, electronic file or any other way of representing or recording information which contains or is derived or copied from such information but excludes:

 

  (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 35 (Confidential); or

 

  (B)

is identified in writing at the time of delivery as non-confidential by any member of the 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 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;

 

  (ii)

any Funding Rate.

Confidentiality Undertaking means a confidentiality undertaking substantially in a form as most recently recommended and published by the LMA or in any other form agreed between the Borrower and the Agent.

Cumulative Compounded RFR Rate means, in relation to an Interest Period for a Loan, the percentage rate per annum determined by the Agent (or by any other Finance Party which agrees to determine that rate in place of the Agent) in accordance with the methodology set out in Schedule 12 (Cumulative Compounded RFR Rate) or in any relevant Compounding Methodology Supplement.

Daily Non-Cumulative Compounded RFR Rate means, in relation to any RFR Banking Day during an Interest Period for a Loan, the percentage rate per annum determined by the Agent (or by any other Finance Party which agrees to determine that rate in place of the Agent) in accordance with the methodology set out in Schedule 11 (Daily Non-Cumulative Compounded RFR Rate) or in any relevant Compounding Methodology Supplement.

Daily Rate means the rate specified as such in the Reference Rate Terms.

DAC6 means the Council Directive of 25 May 2018 (2018/822/EU) amending Directive 2011/16/EU.

 

6


Default means an Event of Default or any event or circumstance specified in Clause 21 (Events of Default) which would (with the expiry of a grace period, the giving of notice, the making of any determination under the Finance Documents or any combination of any of the foregoing) be an Event of Default.

Defaulting Lender means any Lender:

 

  (a)

which has failed to make its participation in a Loan available (or has notified the Agent or the Borrower (which has notified the Agent) that it will not make its participation in a Loan available) by the Utilisation Date of that Loan in accordance with Clause 6.4 (Lenders’ participation);

 

  (b)

which has otherwise rescinded or repudiated a Finance Document;

 

  (c)

with respect to which an Insolvency Event has occurred and is continuing,

unless, in the case of paragraph (a) above:

 

  (i)

its failure to pay is caused by:

 

  (A)

administrative or technical error; or

 

  (B)

a Disruption Event; and

payment is made within three (3) Business Day of its due date; or

 

  (ii)

the Lender is disputing in good faith whether it is contractually obliged to make the payment in question.

Disposal has the meaning given to that term in Clause 8.5 (Mandatory Prepayment – Disposal Proceeds).

Disposal Proceeds has the meaning given to that term in Clause 8.5 (Mandatory Prepayment – Disposal Proceeds).

Disruption Event means either or both of:

 

  (a)

a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with the Facilities (or otherwise in order for the transactions contemplated by the Finance Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the Parties; or

 

  (b)

the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payments operations of a Party preventing that, or any other Party:

 

  (i)

from performing its payment obligations under the Finance Documents; or

 

  (ii)

from communicating with other Parties in accordance with the terms of the Finance Documents,

and which (in either such case) is not caused by, and is beyond the control of, the Party whose operations are disrupted.

 

7


Distribution means any dividend or other distribution (or interest on any unpaid dividend, or other distribution) on or in respect of its share capital (or any class of its share capital) or any repayment or distribution of any dividend or share premium reserve (including any decrease of share capital).

DTC means the Depository Trust Company.

Effective Date has the meaning given to that term in the definition of “A-Fleet Acquisition Agreement”.

Eligible Institution means any Lender or other bank, financial institution, trust, fund or other entity selected by the Borrower and which, in each case, is not a member of the Group, the Target or any of its Subsidiaries.

Environment means humans, animals, plants and all other living organisms including the ecological systems of which they form part and the following media:

 

  (a)

air (including, without limitation, air within natural or man-made structures, whether above or below ground);

 

  (b)

water (including, without limitation, territorial, coastal and inland waters, water under or within land and water in drains and sewers); and

 

  (c)

land (including, without limitation, land under water).

Environmental Law means any applicable law or regulation which relates to:

 

  (a)

the pollution or protection of the Environment; or

 

  (b)

the generation, handling, storage, use, release or spillage of any substance which, alone or in combination with any other, is capable of causing harm to the Environment, including, without limitation, any waste.

Escrow Agreement means the escrow agreement(s) dated 17 November 2023 between, among others, the Target and Frontline plc respectively Frontfleet Ltd. or any of its guaranteed nominees in respect of the payment of the 10 per cent. deposit for each vessel of the A-Fleet.

EUR or euro means the single currency of the Participating Member States.

Euronav Cashflow Forecast means the excel document entitled “Helios CF 02102023 – External Final” dated 2 October 2023.

Event of Default means any event or circumstance specified as such in Clause 21 (Events of Default).

Exchange Act means the U.S. Securities Exchange Act of 1934, as amended.

Existing Margin Loan Facilities Agreements means each of the following loan facilities agreements (each as may be amended or supplemented from time to time):

 

  (a)

a margin loan facility agreement dated 23 March 2022 between the Borrower as borrower and Belfius Bank NV/SA as lender, with USD and EUR outstandings corresponding to a USD equivalent of circa 68,145,000 on the date of this Agreement;

 

  (b)

a margin loan facility agreement dated 23 March 2022 between the Borrower as borrower and KBC Bank NV as lender, with USD and EUR outstandings corresponding to a USD equivalent of circa USD 70,913,500 on the date of this Agreement;

 

8


  (c)

a margin loan facility agreement dated 2 May 2022 between the Borrower as borrower and Nordea Bank Abp Filial I Norge as lender, with an outstanding amount of USD 60,000,000 on the date of this Agreement;

 

  (d)

a margin loan facility agreement dated 28 June 2022 between the Borrower as borrower and Société Générale as lender, with the EUR equivalent of circa USD 108,424,500 outstanding on the date of this Agreement; or

 

  (e)

a margin loan facility agreement dated 3 May 2023 between the Borrower as borrower and Crédit Agricole Corporate and Investment Bank as lender, with an outstanding amount of USD 54,830,000 outstanding on the date of this Agreement.

Existing Security Documents means each of:

 

  (a)

a cash collateral account and margin securities account pledge agreement dated 23 March 2022 between the Borrower as pledgor and KBC Bank NV as security trustee and account bank;

 

  (b)

a share pledge agreement dated 23 March 2022 between the Borrower as pledgor and KBC Bank NV as security trustee, in respect of the shares in CMB.TECH NV;

 

  (c)

a cash collateral account and margin securities account pledge agreement dated 23 March 2022 between the Borrower as pledgor and Belfius Bank NV/SA as security trustee and account bank;

 

  (d)

a share pledge agreement dated 23 March 2022 between the Borrower as pledgor and Belfius Bank NV/SA as security trustee, in respect of the shares in CMB.TECH NV;

 

  (e)

a cash collateral account and margin securities account pledge agreement dated 3 May 2022 between the Borrower as pledgor, Nordea Bank Abp Filial I Norge as security trustee and KBC Bank NV as account bank;

 

  (f)

a cash collateral account and margin securities account pledge agreement dated 29 June 2022 between the Borrower as pledgor, Société Générale as security trustee and KBC Bank NV as account bank; and

 

  (g)

a cash and share collateral accounts pledge agreement dated 5 May 2023 between the Borrower as pledgor and Crédit Agricole Corporate and Investment Bank as pledgee and security agent and KBC Bank NV as custodian bank.

Existing Transfer Restrictions means any Transfer Restrictions under or arising in connection with (i) the Borrower being an “affiliate” (within the meaning of Rule 144) of the Target, (ii) a Lender being an “affiliate” (within the meaning of Rule 144) of the Target as a result of such Lender holding equity interests in the Target that are not Pledged Target Shares or engaging in other transactions or arrangements not contemplated by the Finance Documents or (iii) the Existing Security Documents until the Security thereunder is released in accordance with the terms hereof.

Extension has the meaning given to that term in paragraph (a) of Clause 2.4 (Extension option).

Extension Request means a notice substantially in the form set out in Schedule 7 (Form of Extension Request) or any other form agreed between the Agent and the Borrower.

Facility means the SPA Acquisition Bridge Facility, the Bid Acquisition Bridge Facility or the Margin Loan Bridge Facility.

 

9


Facility Office means the office or offices notified by a Lender to the Agent in writing on or before the date it becomes a Lender (or, following that date, by not less than five Business Days’ written notice) as the office or offices through which it will perform its obligations under this Agreement.

FATCA means:

 

  (a)

sections 1471 to 1474 of the Code or any associated regulations;

 

  (b)

any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of any law or regulation referred to in paragraph (a) above; or

 

  (c)

any agreement pursuant to the implementation of any treaty, law or regulation referred to in paragraphs (a) or (b) above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction.

FATCA Application Date means:

 

  (a)

in relation to a “withholdable payment” described in section 1473(1)(A)(i) of the Code (which relates to payments of interest and certain other payments from sources within the US), 1 July 2014; or

 

  (b)

in relation to a “pass thru payment” described in section 1471(d)(7) of the Code not falling within paragraphs (a) above, the first date from which such payment may become subject to a deduction or withholding required by FATCA.

FATCA Deduction means a deduction or withholding from a payment under a Finance Document required by FATCA.

FATCA Exempt Party means a Party that is entitled to receive payments free from any FATCA Deduction.

Fee Letter means any letter or letters dated on or about the date of this Agreement between the Arranger and the Borrower (or the Agent and the Borrower, or the Security Agent and the Borrower or the Coordinators and the Borrower, or the Documentation Agent and the Borrower) setting out any of the fees referred to in Clause 12 (Fees) or any other letter designated as such by the Agent and the Borrower.

Final Settlement Date means the last Settlement Date that applies with respect to the Bid, which will in any case take place on or prior to the last day of the Availability Period in relation to the Bid Acquisition Bridge Facility.

Finance Document means this Agreement, any Fee Letter, any Utilisation Request, any Transaction Security Document, the Commitment Letter, any Bid Certificate, any Bid Certificate Request, any Selection Notice, any Extension Request, any Reference Rate Supplement, any Compounding Methodology Supplement and any other document designated as such by the Agent and the Borrower.

Finance Party means the Agent, the Security Agent, the Arranger, the Coordinators, the Documentation Agent, the Issuing Bank or a Lender.

Financial Indebtedness means, in relation to a person (the debtor), a liability of the debtor:

 

  (a)

for principal, interest or any other sum payable in respect of any moneys borrowed or raised by the debtor;

 

10


  (b)

under any loan stock, bond, note or other security issued by the debtor;

 

  (c)

under any acceptance credit, guarantee or letter of credit facility made available to the debtor;

 

  (d)

under a financial lease, a deferred purchase consideration arrangement or any other agreement having the commercial effect of a borrowing or raising of money by the debtor;

 

  (e)

under any foreign exchange transaction, any interest or currency swap or any other kind of derivative transaction entered into by the debtor or, if the agreement under which any such transaction is entered into requires netting of mutual liabilities, the liability of the debtor for the net amount; or

 

  (f)

under a guarantee, indemnity or similar obligation entered into by the debtor in respect of a liability of another person which would fall within paragraphs (a) to (e) if the references to the debtor referred to the other person.

Financial Information Package means each of:

 

  (a)

the CMB Cashflow Forecast;

 

  (b)

the Euronav Cashflow Forecast; and

 

  (c)

the Helios Combined Balance Sheet CMB-Euronav.

Framework Agreement means the framework agreement dated 9 October 2023 between Frontline plc and the Target regarding the A-Fleet Acquisition.

Frontline Commitment Letters means:

 

  (a)

the shareholder loan commitment letter dated 7 October 2023 between Hemen Holding Limited and Frontfleet Ltd. (or its guaranteed nominees); and

 

  (b)

the bank financing commitment letters:

 

  (i)

dated 5 October 2023 between Crédit Agricole Corporate and Investment Bank and Frontfleet Ltd.(or its guaranteed nominees);

 

  (ii)

dated 5 October 2023 between Danske Bank and Frontfleet Ltd.(or its guaranteed nominees);

 

  (iii)

dated 5 October 2023 between DNB Bank ASA and Frontfleet Ltd. (or its guaranteed nominees);

 

  (iv)

dated 5 October 2023 between Standard Chartered Bank and Frontfleet Ltd. (or its guaranteed nominees);

 

  (v)

dated 6 October 2023 between ABN AMRO Bank N.V. and Frontfleet Ltd. (or its guaranteed nominees);

 

  (vi)

dated 6 October 2023 between Citibank N.A., London Branch and Frontfleet Ltd. (or its guaranteed nominees);

 

  (vii)

dated 6 October 2023 between ING Bank N.V. and Frontfleet Ltd. (or its guaranteed nominees); and

 

  (viii)

dated 5 October 2023 between Skandinaviska Enskilda Banken AB (Publ) and Frontfleet Ltd. (or its guaranteed nominees).

 

11


FSMA means the Belgian Financial Services and Markets Authority.

FSMA Letter means the letter dated 19 September 2023 pursuant to which the FSMA confirmed (i) its belief that a derogation of the applicable takeover laws to decrease the minimum bid price calculated pursuant to article 53, first section, 1° of the Public Take-Over Royal Decree by any dividend distributions made by the Target during the reference period would respect the applicable takeover laws and (ii) that it would not oppose to the Bid to be made in USD.

Funding Rate means any individual rate notified by a Lender to the Agent pursuant to paragraph (a)(ii) of Clause 11.3 (Cost of funds).

GAAP means generally accepted accounting principles in Belgium, including IFRS.

Group means the Borrower and its Subsidiaries (excluding the Target Group) for the time being.

Group Structure Chart means the group structure chart in the agreed form which shows the Group assuming the SPA Acquisition and the Bid Acquisition have occurred delivered to the Agent under Clause 4.1 (Initial conditions precedent).

Heads of Agreement means the heads of agreement dated 8 October 2023 between the Target and Frontfleet Ltd. containing overarching and coordinating terms for each MoA and the Framework Agreement.

Helios Combined Balance Sheet CMB-Euronav means the excel document entitled “Helios updated Combined Balance Sheet CMB Euronav 14092023” dated 14 September 2023.

Holding Company means, in relation to a person, any other person in respect of which it is a Subsidiary.

IFRS means international accounting standards within the meaning of the IAS Regulation 1606/2002 to the extent applicable to the relevant financial statements.

Impaired Agent means the Agent or the Security Agent at any time when:

 

  (a)

it has failed to make (or has notified a Party that it will not make) a payment required to be made by it under the Finance Documents by the due date for payment;

 

  (b)

the Agent or the Security Agent, as applicable, otherwise rescinds or repudiates a Finance Document;

 

  (c)

(if the Agent or the Security Agent, as applicable, is also a Lender) it is a Defaulting Lender under paragraph (a) or (b) of the definition of “Defaulting Lender”; or

 

  (d)

an Insolvency Event has occurred and is continuing with respect to the Agent or the Security Agent, as applicable;

unless, in the case of paragraph (a) above:

 

  (i)

its failure to pay is caused by:

 

  (A)

administrative or technical error; or

 

12


  (B)

a Disruption Event; and

payment is made within three (3) Business Days of its due date; or

 

  (ii)

the Agent or the Security Agent, as applicable, is disputing in good faith whether it is contractually obliged to make the payment in question.

Increase Confirmation means a confirmation substantially in the form set out in Schedule 6 (Form of increase confirmation).

Increase Lender has the meaning given to that term in Clause 2.2 (Increase).

Information Package means the Structure Memorandum, the A-Fleet Closing Mechanics, the Financial Information Package and the CMB.TECH Valuation Report.

Initial Conditions Precedent means the documents and other evidence listed in Part 1 of Schedule 2 (Conditions Precedent).

Insolvency Event in relation to a Finance Party means that the Finance Party:

 

  (a)

is dissolved (other than pursuant to a consolidation, amalgamation or merger);

 

  (b)

becomes insolvent or is unable to pay its debts or fails or admits in writing its inability generally to pay its debts as they become due;

 

  (c)

makes a general assignment, arrangement or composition with or for the benefit of its creditors;

 

  (d)

institutes or has instituted against it, by a regulator, supervisor or any similar official with primary insolvency, rehabilitative or regulatory jurisdiction over it in the jurisdiction of its incorporation or organisation or the jurisdiction of its head or home office, a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors’ rights, or a petition is presented for its winding-up or liquidation by it or such regulator, supervisor or similar official;

 

  (e)

has instituted against it a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors’ rights, or a petition is presented for its winding-up or liquidation, and, in the case of any such proceeding or petition instituted or presented against it, such proceeding or petition is instituted or presented by a person or entity not described in paragraph (d) above and:

 

  (i)

results in a judgment of insolvency or bankruptcy or the entry of an order for relief or the making of an order for its winding-up or liquidation; or

 

  (ii)

is not dismissed, discharged, stayed or restrained in each case within 30 days of the institution or presentation thereof;

 

  (f)

has a resolution passed for its winding-up, official management or liquidation (other than pursuant to a consolidation, amalgamation or merger);

 

  (g)

seeks or becomes subject to the appointment of an administrator, provisional liquidator, 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);

 

13


  (h)

has a secured party take possession of all or substantially all its assets or has a distress, execution, attachment, sequestration or other legal process levied, enforced or sued on or against all or substantially all its assets and such secured party maintains possession, or any such process is not dismissed, discharged, stayed or restrained, in each case within 30 days thereafter;

 

  (i)

causes or is subject to any event with respect to it which, under the applicable laws of any jurisdiction, has an analogous effect to any of the events specified in paragraphs (a) to (h) above; or

 

  (j)

takes any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the foregoing acts.

Interest Payment means the aggregate amount of interest that is, or is scheduled to become, payable under any Finance Document.

Interest Period means, in relation to a Loan, each period determined in accordance with Clause 10 (Interest Periods) and, in relation to an Unpaid Sum, each period determined in accordance with Clause 9.3 (Default interest).

Lender means:

 

  (a)

any Original Lender; and

 

  (b)

any bank, financial institution, trust, fund or other entity which has become a Party as a “Lender” in accordance with Clause 2.2 (Increase) or Clause 22 (Changes to the Lenders),

which in each case has not ceased to be a Party as such in accordance with the terms of this Agreement.

Listing Rules means, in relation to NYSE, the rules and regulations applicable to companies listed thereon that are contained in its listed company manual, or in the case of Euronext Brussels, the rules for the admission and operations of the regulated market and any other rules or regulations required for the admission of securities to that exchange.

LMA means the Loan Market Association.

Loan means a SPA Acquisition Bridge Facility Loan, a Bid Acquisition Bridge Facility Loan or a Margin Loan Bridge Facility Loan.

Lookback Period means the number of days specified as such in the Reference Rate Terms.

Majority Lenders means a Lender or Lenders whose Commitments aggregate 662/3 per cent. or more of the Total Commitments (or, if the Total Commitments have been reduced to zero, aggregated 662/3 per cent. or more of the Total Commitments immediately prior to the reduction).

Mandatory Prepayment Account means an interest-bearing account:

 

  (a)

held in Belgium by the Borrower with the Agent;

 

  (b)

identified in a letter between the Borrower and the Agent as a Mandatory Prepayment Account;

 

14


  (c)

subject to Security in favour of the Security Agent which Security is in form and substance satisfactory to the Finance Parties; and

 

  (d)

from which no withdrawals may be made by any members of the Group except as contemplated by this Agreement,

(as the same may be redesignated, substituted or replaced from time to time).

Margin means the percentage per annum set out below in the column opposite that range:

 

   
Period    Margin per cent. per annum  
   
From the date of this Agreement to (but excluding) the date falling 6 Months after the date of this Agreement      2.75  
   
From the date falling 6 Months after the date of this Agreement to (but excluding in case of an Extension) the date falling 9 Months after the date of this Agreement      3.25  
   
Subject to the Extension being exercised, from the date falling 9 Months after the date of this Agreement to (but excluding) the date falling 12 Months after the date of this Agreement      3.75  
   
Subject to the Extension being exercised, from the date falling 12 Months after the date of this Agreement to the Termination Date      4.50  

However, while an Event of Default has occurred and as long as it is continuing, the Margin for each Loan shall be the highest percentage per annum set out above.

Margin Loan Bridge Facility means the term loan bridge facility made available under this Agreement as described in paragraph (c) of Clause 2.1 (The Facilities).

Margin Loan Bridge Facility Commitment means:

 

  (a)

in relation to an Original Lender, the amount set opposite its name under the heading “Margin Loan Bridge Facility Commitment” in Schedule 1 (The Original Lenders) and the amount of any other Margin Loan Bridge Facility Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase); and

 

  (b)

in relation to any other Lender, the amount of any Margin Loan Bridge Facility Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase), to the extent not cancelled, reduced or transferred by it under this Agreement.

 

15


Margin Loan Bridge Facility Loan means a loan made or to be made under the Margin Loan Bridge Facility or the principal amount outstanding for the time being of that loan.

Margin Regulations means Regulations T, U and X issued by the Board of Governors of the United States Federal Reserve System.

Margin Stock means “margin stock” or “margin securities” as defined in the Margin Regulations.

Market Disruption Rate means the rate (if any) specified as such in the Reference Rate Terms.

Material Adverse Effect means, in the reasonable opinion of the Majority Lenders, a material adverse effect on:

 

  (a)

the business, operations, property, assets, condition (financial or otherwise) or prospects of the Group and/or the Target Group as from the completion of the SPA Acquisition (as applicable) taken as a whole; or

 

  (b)

the ability of the Borrower to perform its obligations under the Finance Documents; or

 

  (c)

the validity or enforceability of, or the effectiveness or ranking of any Security granted or purporting to be granted pursuant to any of, the Finance Documents or the rights or remedies of any Finance Party under any of the Finance Documents.

Material Non-Public Information means information regarding Target and/or its subsidiaries that is not generally available to the public and that a reasonable investor would likely consider important in deciding whether to buy or sell shares issued by the Target.

Maximum Bid Price means USD 18.43/Target Share (being the maximum nominal amount), it being understood that if a dividend payment is made on the level of the Target, the Bid Price will be reduced accordingly.

MoA means a memorandum of agreement dated 8 October 2023 and entered into between the Target and Frontline plc respectively Frontfleet Ltd. or any of its guaranteed nominees in respect of each individual vessel of the A-Fleet.

Month means a period starting on one day in a calendar month and ending on the numerically corresponding day in the next calendar month, subject to adjustment in accordance with the rules specified as Business Day Conventions in the Reference Rate Terms.

NYSE means the New York Stock Exchange.

Ocean Yield Sale-And-Lease Back means the sale-and-lease-back financings in relation to two Suezmax vessels owned by the Target for an aggregate amount of USD 153,780,000, which corresponds to circa 90 per cent. of the fair market value of these vessels and where such amount will be applied in full to facilitate prepayment of the Facilities by the Borrower in line with the Structure Memorandum and the A-Fleet Closing Mechanics.

Original Financial Statements means the audited consolidated financial statements of the Group for the financial year ended 31 December 2022.

 

16


Original Termination Date means:

 

  (a)

in relation to the SPA Acquisition Bridge Facility, the date falling nine (9) Months after the date of this Agreement;

 

  (b)

in relation to the Bid Acquisition Bridge Facility, the date falling nine (9) Months after the date of this Agreement; and

 

  (c)

in relation to the Margin Loan Bridge Facility, the date falling nine (9) Months after the date of this Agreement.

Overview of Share Transactions means an overview setting out the series of transactions entered into by the Borrower in connection with the acquisition of the Pledged Target Shares – Existing (including the amounts and dates thereof), in an agreed form between the Borrower and the Security Agent.

Participating Member States means any member state of the European Union that has the euro as its lawful currency in accordance with legislation of the European Union relating to Economic and Monetary Union.

Party means a party to this Agreement.

Permitted CMB.TECH Sale means the potential sale, merger or other disposal of CMB.TECH NV or any of its Subsidiaries, either in whole or in part, to (i) the Target and/or (ii) in case of a sale or disposal, a third party subject to the Borrower and/or the Target retaining more than 75 per cent. of the shares and maintaining control of CMB.TECH NV within the meaning of Article 1:14 of the Belgian Code of Companies and Associations.

Permitted Euronav Sale means any sale or series of sales of the shares held by the Borrower in the Target, at all times subject to the Borrower maintaining more than 50 per cent. of the shares in the Target (for the avoidance of doubt, excluding the treasury shares) and maintaining control of the Target within the meaning of Article 1:14 of the Belgian Code of Companies and Associations, it being understood that Saverco NV’s shareholding in the Target will not exceed 24,400 shares.

Permitted Holders means Marc Saverys, his direct lineal descendants, the personal estate of any of them and any trust or similar entity created for the sole benefit of any of those persons or their estates.

Permitted Trigger means the time as of which the Total Commitments remaining under this Agreement are less than USD 500,000,000.

Pledged Target Shares means all Target Shares held by the Borrower on the date hereof or later acquired (through the SPA Acquisition, the Bid Acquisition or otherwise).

Pledged Target Shares – DTC means Pledged Target Shares that are Target Shares – DTC.

Pledged Target Shares – Existing means the Target Shares owned by the Borrower at the date of this Agreement.

Pledged Target Shares – Euroclear means Pledged Target Shares that are Target Shares – Euroclear.

Prospectus means the prospectus containing the details of the Bid.

Public Take-Over Law means the Belgian law of 1 April 2007 on take-over bids, as amended from time to time.

 

17


Public Take-Over Royal Decree means the Belgian royal decree of 27 April 2007 on take-over bids, as amended from time to time.

Qualifying Lender has the meaning given to that term in Clause 13 (Tax Gross Up and Indemnities).

Reference Rate Supplement means a document which:

 

  (a)

is agreed in writing by the Borrower and the Agent (acting on the instructions of the Majority Lenders);

 

  (b)

specifies the relevant terms which are expressed in this Agreement to be determined by reference to Reference Rate Terms; and

 

  (c)

has been made available to the Borrower and each Finance Party.

Reference Rate Terms means the terms set out in Schedule 10 (Reference Rate Terms) or in any Reference Rate Supplement.

Refinancing Conditions Precedent means, in relation to the utilisation of the Margin Loan Bridge Facility Loan only, the documents and other evidence listed in Part 4 of Schedule 2 (Conditions Precedent).

Related Fund in relation to a fund (the first fund), means a fund which is managed or advised by the same investment manager or investment adviser as the first fund or, if it is managed by a different investment manager or investment adviser, a fund whose investment manager or investment adviser is an Affiliate of the investment manager or investment adviser of the first fund.

Relevant Market means the market specified as such in the Reference Rate Terms.

Repeating Representations means each of the representations set out in Clause 18.1 (Status) to and including Clause 18.6 (Governing law and enforcement), Clause 18.9 (No default), paragraph (g) of Clause 18.10 (No misleading information), Clause 18.11 (Centre of main interests) to and including Clause 18.14 (No proceedings), Clause 18.16 (Transaction Security) to and including Clause 18.19 (DAC6) and Clause 18.21 (Pledged Target Shares) to and including Clause 18.25 (U.S. beneficial ownership reporting).

Reporting Day means the day (if any) specified as such in the Reference Rate Terms.

Reporting Time means the relevant time (if any) specified as such in the Reference Rate Terms.

RFR means the rate specified as such in the Reference Rate Terms.

RFR Banking Day means any day specified as such in the Reference Rate Terms.

Representative means any delegate, agent, manager, administrator, nominee, attorney, trustee or custodian.

Rule 144 means 17 C.F.R. § 230.144 (persons deemed not to be engaged in a distribution and therefore not underwriters) promulgated under the Securities Act.

Sanctioned Country has the meaning given to that term in Clause 18.18 (Sanctions).

Sanctioned Person has the meaning given to that term in Clause 18.18 (Sanctions).

 

18


Sanctions means any economic, financial or trade sanctions or restrictive measures enacted, administered, imposed or enforced by the US Department of Treasury’s Office of Foreign Assets Control (OFAC), the US Department of State, the United Nations Security Council, the United Kingdom Government (including His Majesty’s Treasury of the United Kingdom, the Foreign Commonwealth & Development Office and the Department for Business, Energy & Industrial Strategy), the European Union, any member state of the European Union, the Kingdom of Norway or any other relevant sanctions authority.

Sanctions Event means:

 

  (a)

any representation contained in Clause 18.18 (Sanctions) made or deemed to be made by the Borrower is or proves to have been incorrect or misleading when made or deemed to be made;

 

  (b)

any undertaking in Clause 20.11 (Sanctions) including any information undertaking, relating to Sanctions is not complied with;

 

  (c)

any Sanctions Relevant Person is or becomes a Sanctioned Person; and/or

 

  (d)

an act or omission of a Sanctions Relevant Person or any other event relating to the Finance Documents which is likely to result in a Lender or any of its Affiliates violating any Sanctions or otherwise could result in a Lender or any of its Affiliates becoming a Sanctioned Person.

Sanctions Relevant Person means:

 

  (a)

the Borrower, each member of the Group and/or the Target Group; and

 

  (b)

each of their relevant directors, officers, affiliates, agents and employees (other than any crew members).

Security means a mortgage (hypotheek/hypothèque), a ship mortgage (scheepsverband/mortgage), pledge (pand/nantissement), mandate (mandaat/mandat) to grant a mortgage, a pledge or any other real security, privilege (voorrecht/privilège), reservation of title arrangement (eigendomsvoorbehoud/réserve de propriété), any real security (zakelijke zekerheid/sûreté réelle) and any transfer by way of security (overdracht ten titel van zekerheid/transfert à titre de garantie) or any other in rem security interest securing any obligation of any person or any other agreement or arrangement having a similar effect under any applicable law.

Selection Notice means a notice substantially in the form set out in Part 2 of Schedule 3 (Requests) given in accordance with Clause 10 (Interest Periods).

Settlement Agreement means the settlement agreement dated 9 October 2023 between the Target, Frontline plc, Famatown Finance Limited, Hemen Holding Limited and Geveran Trading Co. Limited, in respect of the settlement of the arbitration between the Target and Frontline plc.

Settlement Date means each date on which the Borrower pays the amounts payable pursuant to the terms of the Bid for the Target Outstanding Shares tendered under the Bid, to an account of the paying agent appointed in relation to the Bid or (as the case may be) directly to the relevant clearing system.

 

19


Share Purchase Agreement means the share purchase agreement dated 9 October 2023 between the Borrower as purchaser and Frontline plc and Famatown Finance Limited as sellers in respect of all Frontline plc’s and Famatown Finance Limited’s Target Shares and including solely the following conditions precedent to closing thereunder:

 

  (a)

the expiry or the early termination of any applicable waiting period (or any extensions thereof) to consummation of the SPA Acquisition required under the United States Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, without any investigation or proceeding having been initiated;

 

  (b)

Frontline plc confirming in writing to the Borrower that the Regulatory Condition under and as defined in the A-Fleet Acquisition Agreement has been satisfied or waived; and

 

  (c)

the resolution by the Target’s shareholders’ meeting approving the conditionality of the transaction contemplated by the A-Fleet Acquisition Agreement on the closing under the Share Purchase Agreement pursuant to Article 7:151 of the Belgian Code of Companies and Associations having been filed with the clerk’s office of the business court in Antwerp.

SPA Acquisition means the acquisition by the Borrower of Frontline plc’s and Famatown Finance Limited’s Target Shares pursuant to the Acquisition Documents.

SPA Acquisition Bridge Facility Commitment means:

 

  (a)

in relation to an Original Lender, the amount set opposite its name under the heading “SPA Acquisition Bridge Facility Commitment” in Schedule 1 (The Original Lenders) and the amount of any other SPA Acquisition Bridge Facility Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase); and

 

  (b)

in relation to any other Lender, the amount of any SPA Acquisition Bridge Facility Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase),

to the extent not cancelled, reduced or transferred by it under this Agreement.

SPA Acquisition Bridge Facility means the term loan bridge facility made available under this Agreement as described in paragraph (a) of Clause 2.1 (The Facilities).

SPA Acquisition Bridge Facility Loan means a loan made or to be made under the SPA Acquisition Bridge Facility or the principal amount outstanding for the time being of that loan.

SPA Bid Costs means all fees, costs and expenses, stamp, registration and other Taxes incurred by the Borrower in connection with, or incidental to, the Share Purchase Agreement, the SPA Acquisition, the Bid, the Bid Acquisition and the Finance Documents or the reimbursement of such fees, costs and expenses, stamp, registration and other Taxes by the Borrower.

SPA Closing Date means the date of first utilisation under the SPA Acquisition Bridge Facility.

SPA Closing Memorandum means the closing memorandum to be entered into between the Borrower, Famatown Finance Limited, Frontline plc and the Target stating various closing actions that took place with respect to project “Helios”.

SPA Conditions Precedent means the documents and other evidence listed in Part 2 of Schedule 2 (Conditions Precedent).

Specified Event of Default means an Event of Default under:

 

  (a)

Clause 21.1 (Non-payment);

 

  (b)

Clause 21.6 (Insolvency);

 

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  (c)

Clause 21.7 (Insolvency proceedings);

 

  (d)

Clause 21.8 (U.S. Bankruptcy Laws); and

 

  (e)

paragraph (b) of Clause 21.10 (Unlawfulness).

Specified Time means a day or time determined in accordance with Schedule 5 (Timetables).

Structure Memorandum means the structure paper entitled “Structure memorandum – Project Helios 2.0” and dated 5 October 2023 prepared by Argo Law delivered to the Agent under Clause 4.1 (Initial conditions precedent).

Subsidiary means an entity of which a person has direct or indirect control or owns directly or indirectly more than 50 per cent. of the voting capital or similar right of ownership and control means the power to direct the management and policies of an entity, whether through the ownership of voting capital, by contract or otherwise.

Target means Euronav NV, a limited liability company (naamloze vennootschap/société anonyme) with its statutory seat at De Gerlachekaai 20, 2000 Antwerp, Belgium, registered with the Crossroads Bank for Enterprises under number 0860.402.767, Business Court of Antwerp (division Antwerp).

Target Change of Control means the Borrower ceasing to control the Target within the meaning of Article 1:14 of the Belgian Code of Companies and Associations which, for the avoidance of doubt, is applicable from the SPA Closing Date.

Target Group means the Target and its Subsidiaries for the time being.

Target Outstanding Shares means all or part of the then outstanding shares in the Target (other than the treasury shares at the date of completion of the Bid) at the time of the Bid not held by the Borrower or its Affiliates.

Target Shares means any shares in the Target.

Target Shares – DTC means Target Shares that trade on the NYSE and settle through DTC.

Target Shares – Euroclear means Target Shares that trade on Euronext Brussels and settle through Euroclear.

Tax means any tax, levy, impost, duty or other charge or withholding of a similar nature (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same).

Tax Status Certificate means a certificate issued by a Lender in the form set out in Schedule 13.

Termination Date means, subject to Clause 2.4 (Extension option), the Original Termination Date.

Total Bid Acquisition Bridge Facility Commitments means the aggregate of the Bid Acquisition Bridge Facility Commitments, being USD 1,740,000,000 at the date of this Agreement.

Total Commitments means the aggregate of the Total Bid Acquisition Bridge Facility Commitments, the Total SPA Acquisition Bridge Facility Commitments and the Total Margin Loan Bridge Facility Commitments, being USD 3,200,000,000 at the date of this Agreement.

Total Margin Loan Bridge Facility Commitments means the aggregate of the Margin Loan Bridge Facility Commitments, being USD 350,000,000 at the date of this Agreement.

 

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Total SPA Acquisition Bridge Facility Commitments means the aggregate of the SPA Acquisition Bridge Facility Commitments, being USD 1,110,000,000 at the date of this Agreement.

Transaction Document means each of the Finance Documents, the Acquisition Documents, the A-Fleet Acquisition Agreement, the Escrow Agreement and any other document designated as such by the Agent and the Borrower.

Transaction Security means the Security created or expressed to be created in favour of the Security Agent pursuant to the Transaction Security Documents.

Transaction Security Documents means the Belgian law pledge agreement listed in paragraphs 2 (c) and (d) of Part 1 of Schedule 2 (Conditions Precedent) and any other document entered into by the Borrower creating or expressed to create Security over all or any part of its assets in respect of its obligations under any of the Finance Documents.

Transfer Certificate means a certificate substantially in the form set out in Schedule 4 (Form of Transfer Certificate) or any other form agreed between the Agent and the Borrower.

Transfer Date means, in relation to a transfer, the later of:

 

  (a)

the proposed Transfer Date specified in the relevant Transfer Certificate; and

 

  (b)

the date on which the Agent executes the relevant Transfer Certificate.

Transfer Restrictions means, with respect to the Pledged Target Shares, any condition to or restriction on the ability of the owner or pledgee thereof to pledge, sell, assign or otherwise transfer such Pledged Target Shares or enforce the provisions thereof or of any document related thereto whether set forth in such Pledged Target Shares or in any document related thereto, including, without limitation:

 

  (a)

any requirement that any sale, assignment or other transfer or enforcement for such Pledged Target Shares be subject to any volume limitations or be consented to or approved by any person, including, without limitation, the Target or any other obligor thereon;

 

  (b)

any limitations on the type or status, financial or otherwise, of any purchaser, pledgee, assignee or transferee of such Pledged Target Shares;

 

  (c)

any requirement for the delivery of any certificate, consent, agreement, opinion of counsel, notice or any other document of any person to the issuer of, any other obligor on or any registrar or transfer agent for such Pledged Target Shares, prior to the sale, pledge, assignment or other transfer or enforcement of such Pledged Target Shares;

 

  (d)

any registration or qualification requirement or prospectus delivery requirement for such Pledged Target Shares pursuant to any federal, state, local or foreign securities law (including, without limitation, any such requirement arising under Section 5 of the Securities Act, as a result of such Pledged Target Shares being a “restricted security” or the Borrower being an “affiliate” of the Target, as such terms are defined in Rule 144);

 

  (e)

any condition to or restriction on the ability of a potential purchaser, assignee, pledgee or transferee to acquire such Pledged Target Shares from the holder thereof; and

 

  (f)

any legend or other notification appearing on any certificate representing such Pledged Target Shares to the effect that any such condition or restriction exists, provided, however, that any such condition or restriction arising under the Finance Documents shall not constitute a “Transfer Restriction”.

 

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Unpaid Sum means any sum due and payable but unpaid by the Borrower under the Finance Documents.

U.S. means the United States of America.

U.S. Bankruptcy Law means the United States Bankruptcy Code, as amended, or any other United States Federal or State bankruptcy, insolvency or similar law.

USD or dollars means the lawful currency of the United States of America.

Utilisation Date means the date on which the relevant Loan is to be made.

Utilisation Request means a notice substantially in the form set out in Part 1 of Schedule 3 (Requests).

VAT means:

 

  (a)

any tax imposed in compliance with the Council Directive of 28 November 2006 on the common system of value added tax (EC Directive 2006/112); and

 

  (b)

any other tax of a similar nature, whether imposed in a member state of the European Union in substitution for, or levied in addition to, such tax referred to in paragraph (a) above, or imposed elsewhere.

 

1.2

Construction

 

(a)

Unless a contrary indication appears, any reference in this Agreement to:

 

  (i)

the Agent, the Security Agent, the Arranger, the Coordinator, the Documentation Agent, the Issuing Bank, any Finance Party, any Lender, the Borrower or any Party shall be construed so as to include its successors in title, permitted assigns and permitted transferees to, or of, its rights and/or obligations under the Finance Documents;

 

  (ii)

assets includes present and future properties, revenues and rights of every description;

 

  (iii)

a Finance Document or a Transaction Document or any other agreement or instrument is a reference to that Finance Document or Transaction Document or other agreement or instrument as amended, novated, supplemented, extended or restated;

 

  (iv)

indebtedness includes any obligation (whether incurred as principal or as surety) for the payment or repayment of money, whether present or future, actual or contingent;

 

  (v)

a person includes any individual, firm, company, corporation, government, state or agency of a state or any association, trust, joint venture, consortium, partnership or other entity (whether or not having separate legal personality);

 

  (vi)

a regulation includes any regulation, rule, official directive, request or guideline (whether or not having the force of law) of any governmental, intergovernmental or supranational body, agency, department or of any regulatory, self-regulatory or other authority or organisation;

 

  (vii)

a provision of law is a reference to that provision as amended or re-enacted from time to time; and

 

23


  (viii)

a time of day is a reference to Brussels time.

 

(b)

Section, Clause and Schedule headings are for ease of reference only.

 

(c)

Unless a contrary indication appears, a term used in any other Finance Document or in any notice given under or in connection with any Finance Document has the same meaning in that Finance Document or notice as in this Agreement.

 

(d)

A Default (other than an Event of Default) is continuing if it has not been remedied or waived and an Event of Default is continuing if it has not been waived.

 

(e)

A reference in this Agreement to a page or screen of an information service displaying a rate shall include:

 

  (i)

any replacement page of that information service which displays that rate; and

 

  (ii)

the appropriate page of such other information service which displays that rate from time to time in place of that information service,

and, if such page or service ceases to be available, shall include any other page or service displaying that rate specified by the Agent after consultation with the Borrower.

 

(f)

A reference in this Agreement to a Central Bank Rate shall include any successor rate to, or replacement rate for, that rate.

 

(g)

Any Reference Rate Supplement overrides anything in:

 

  (i)

Schedule 10 (Reference Rate Terms); or

 

  (ii)

any earlier Reference Rate Supplement.

 

(h)

A Compounding Methodology Supplement relating to the Daily Non-Cumulative Compounded RFR Rate or the Cumulative Compounded RFR Rate overrides anything relating to that rate in:

 

  (i)

Schedule 11 (Daily Non-Cumulative Compounded RFR Rate) or Schedule 12 (Cumulative Compounded RFR Rate), as the case may be; or

 

  (ii)

any earlier Compounding Methodology Supplement.

 

1.3

Belgian terms

 

(a)

In this Agreement, where it relates to any Belgian entity or Security, a reference to:

 

  (i)

gross negligence means zware fout/faute grave;

 

  (ii)

wilful misconduct means opzet/intention;

 

  (iii)

a liquidator, receiver, administrative receiver, administrator, compulsory manager or other similar officer includes any vereffeningsdeskundige/praticien de la liquidation, herstructureringsdeskundige/praticien de la réorganisation, curator/curateur, vereffenaar/liquidateur, gedelegeerd rechter/juge délégué, gerechtsmandataris/mandataire de justice, voorlopig bewindvoerder/administrateur provisoire, mandataris ad hoc/mandataire ad hoc, ondernemingsbemiddelaar/médiateur d’entreprise, as applicable;

 

24


  (iv)

a person being unable to pay its debts is that person being in a state of cessation of payments (staking van betaling/cessation de paiements);

 

  (v)

a suspension of payments, moratorium of any indebtedness or reorganisation includes any of those terms in the context of any gerechtelijke reorganisatie/réorganisation judiciaire, overdracht onder gerechtelijk gezag/transfert sous autorité judiciaire, staking van betaling/cessation de paiements or any other legal proceeding based on Book XX, Title V/I (Insolventie van Ondernemingen/Insolvabilité des entreprises – Gerechtelijke reorganisatie / Réorganisation judiciaire) or Title V/II (Insolventie van Ondernemingen/Insolvabilité des entreprises – Overdracht onder gerechtelijk gezag/Transfert sous autorité judiciaire) of the Belgian Code of Economic Law (Wetboek van economisch recht/Code de droit économique);

 

  (vi)

commences negotiations with one or more of its creditors with a view to rescheduling any of its indebtedness includes any negotiations conducted with a view to reaching a settlement agreement (minnelijk akkoord/accord amiable) with one or more of its creditors pursuant to Book XX, Title IV (Minnelijk akkoord buiten gerechtelijke reorganisatie/Accord amiable hors réorganisation judiciaire), Book XX, Title V/1, Chapter 1 (Openbare gerechtelijke reorganisatie door een minnelijk akkoord/ Réorganisation judiciaire publique par accord amiable), or Book XX, Title V/1, Chapter 4, Section 2 (Besloten gerechtelijke reorganisatie door een minnellijk akkoord/Réorganisation judiciaire privée par accord amiable) of the Belgian Code of Economic Law (Wetboek van economisch recht/Code de droit économique);

 

  (vii)

a composition, compromise, assignment or arrangement includes a settlement agreement outside judicial reorganisation (minnelijk akkoord buiten gerechtelijke reorganisatie/accord amiable hors réorganisation judiciaire), a judicial reorganisation (gerechtelijke reorganisatie/réorganisation judiciaire) (including openbare gerechtelijke reorganisatie door een minnelijk akkoord/réorganisation judiciaire publique par accord amiable, openbare gerechtelijke reorganisatie door een collectief akkoord/réorganisation judiciaire publique par un accord collectif, besloten gerechtelijke reorganisatie door een minnelijk akkoord/réorganisation judiciaire privée par accord amiable, or besloten gerechtelijke reorganisatie door een collectief akkoord/réorganisation judiciaire privée par un accord collectif), or a transfer under judicial authority (overdracht onder gerechtelijk gezag/transfert sous autorité judiciaire) pursuant to Book XX, Titles IV, V/I or V/II of the Belgian Code of Economic Law (Wetboek van economisch recht/Code de droit économique), as applicable;

 

  (viii)

winding up, administration or dissolution includes any vereffening/liquidation, ontbinding/dissolution, faillissement/faillite, besloten voorbereiding van het faillissement/préparation privée d’une faillite and sluiting van een onderneming/fermeture d’une enterprise;

 

  (ix)

insolvency includes any insolventieprocedure/procedure d’insolvabilité, gerechtelijke reorganisatie/réorganisation judiciaire, overdracht onder gerechtelijk gezag/transfert sous autorité judiciaire, besloten voorbereiding van het faillissement/préparation privée d’une faillite faillissement/faillite and any other concurrence between creditors (samenloop van schuldeisers/concours des créanciers);

 

  (x)

an expropriation, attachment, sequestration, distress, execution or analogous process includes any uitvoerend beslag/saisie exécutoire and bewarend beslag/saisie conservatoire;

 

  (xi)

an amalgamation, demerger, merger, consolidation or corporate reconstruction includes a overdracht van algemeenheid/transfert d’universalité, overdracht van bedrijfstak/transfert de branche d’activité, splitsing/scission and fusie/fusion and an assimilated transaction (gelijkgestelde verrichting/opération assimilée) in accordance with the Belgian Code of Companies and Associations;

 

25


  (xii)

a ship mortgage means a scheepshypotheek/hypothèque maritime;

 

  (xiii)

the Belgian Civil Code means the Belgian oud Burgerlijk Wetboek/ancien Code Civil of 21 March 1804 and, with effect from its applicable effective date, the Belgian new Burgerlijk Wetboek/Code Civil introduced pursuant to the Wet van 13 april 2019 tot invoering van een Burgerlijk Wetboek en tot invoeging van boek 8 “Bewijs” in dat Wetboek/Loi de 13 avril 2019 portant création d’un Code civil et y insérant un livre 8 « La preuve », as amended from time to time;

 

  (xiv)

the Belgian Code of Companies and Associations means the Belgian Wetboek van vennootschappen en verenigingen/Code des sociétés et des associations dated 23 March 2019, as amended from time to time;

 

  (xv)

constitutional documents means the incorporation deed and the most recently (coordinated) version of its articles of association;

 

  (xvi)

the Royal Decree implementing the Belgian Income Tax Code means the Koninklijk Besluit tot uitvoering van het Wetboek van de inkomstenbelastingen 1992 /Arrêté royal d’exécution du Code des impôts sur les revenus 1992, as amended from time to time; and

 

  (xvii)

an entity being incorporated in Belgium or of which its jurisdiction of incorporation is Belgium, means that such Borrower has its statutory seat in Belgium.

 

(b)

Each Party agrees to waive Article 5.74 of the Belgian Civil Code and agrees that it shall not be entitled to make any claim or exercise any rights under Article 5.74 of the Belgian Civil Code. Each Party agrees that this waiver and agreement applies to all Finance Documents governed by Belgian law.

 

1.4

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 person described in paragraph (b) of Clause 25.11 (Exclusion of liability) may, subject to this Clause 1.4 and the Third Parties Act, rely on any Clause of this Agreement which expressly confers rights on it.

 

2.

THE FACILITIES

 

2.1

The Facilities

Subject to the terms of this Agreement, the Lenders make available to the Borrower:

 

  (a)

a term loan bridge facility in an aggregate amount equal to the Total SPA Acquisition Bridge Facility Commitments;

 

  (b)

a term loan bridge facility in an aggregate amount equal to the Total Bid Acquisition Bridge Facility Commitments; and

 

26


  (c)

a term loan bridge facility in an aggregate amount equal to the Total Margin Loan Bridge Facility Commitments.

 

2.2

Increase

 

(a)

The Borrower may by giving prior notice to the Agent by no later than the date falling ten (10) Business Days after the effective date of a cancellation of:

 

  (i)

the Available Commitments of a Defaulting Lender in accordance with paragraph (g) of Clause 8.12 (Right of replacement or repayment and cancellation in relation to a single Lender); or

 

  (ii)

the Commitments of a Lender in accordance with:

 

  (A)

Clause 8.1 (Illegality); or

 

  (B)

Paragraph (a) of Clause 8.12 (Right of replacement or repayment and cancellation in relation to a single Lender),

request that the Commitments relating to any Facility be increased (and the Commitments relating to that Facility shall be so increased) in an aggregate amount of up to the amount of the Available Commitments or Commitments relating to that Facility so cancelled as follows:

 

  (i)

the increased Commitments will be assumed by one or more Eligible Institutions (each an Increase Lender) selected by the Borrower (each of which shall not be a member of the Group) and each of which confirms in writing (whether in the relevant Increase Confirmation or otherwise) its willingness to assume and does assume all the obligations of a Lender corresponding to that part of the increased Commitments which it is to assume, as if it had been an Original Lender;

 

  (ii)

the Borrower and any Increase Lender shall assume obligations towards one another and/or acquire rights against one another as the Borrower and the Increase Lender would have assumed and/or acquired had the Increase Lender been an Original Lender;

 

  (iii)

each Increase Lender shall become a Party as a Lender and any Increase Lender and each of the other Finance Parties shall assume obligations towards one another and acquire rights against one another as that Increase Lender and those Finance Parties would have assumed and/or acquired had the Increase Lender been an Original Lender;

 

  (iv)

the Commitments of the other Lenders shall continue in full force and effect; and

 

  (v)

any increase in the Commitments relating to a Facility shall take effect on the date specified by the Borrower in the notice referred to above or any later date on which the conditions set out in paragraph (b) are satisfied.

 

(b)

An increase in the Commitments relating to a Facility will only be effective on:

 

  (i)

the execution by the Agent of an Increase Confirmation from the relevant Increase Lender; and

 

  (ii)

in relation to an Increase Lender which is not a Lender immediately prior to the relevant increase, the Agent being satisfied that it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations in relation to the assumption of the increased Commitments by that Increase Lender. The Agent shall promptly notify the Borrower and the Increase Lender upon being so satisfied.

 

27


(c)

Each Increase Lender, by executing the Increase Confirmation, confirms (for avoidance of doubt) that the Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or prior to the date on which the increase becomes effective.

 

(d)

The Borrower shall, promptly on demand, pay the Agent the amount of all costs and expenses (including legal fees) reasonably incurred by it in connection with any increase in Commitments under this Clause 2.2 (Increase).

 

(e)

The Increase Lender shall, on the date upon which the increase takes effect, pay to the Agent (for its own account) a fee in an amount equal to the fee which would be payable under Clause 22.4 (Transfer fee) if the increase was a transfer pursuant to Clause 22.6 (Procedure for transfer) and if the Increase Lender was a New Lender.

 

(f)

The Borrower may pay to the Increase Lender a fee in the amount and at the times agreed between the Borrower and the Increase Lender in a letter between the Borrower and the Increase Lender setting out that fee. A reference in this Agreement to a Fee Letter shall include any letter referred to in this paragraph.

 

(g)

Neither the Agent nor any Lender shall have any obligation to find an Increase Lender and in no event shall any Lender whose Commitment is replaced by an Increase Lender be required to pay or surrender any of the fees received by such Lender pursuant to the Finance Documents.

 

(h)

Clause 22.5 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this Clause 2.2 in relation to an Increase Lender as if references in that Clause to:

 

  (i)

an Existing Lender were references to all the Lenders immediately prior to the relevant increase;

 

  (ii)

the New Lender were references to that Increase Lender; and

 

  (iii)

a re-transfer were references to a transfer.

 

2.3

Finance Parties’ rights and obligations

 

(a)

The obligations of each Finance Party under the Finance Documents are several. Failure by a Finance Party to perform its obligations under the Finance Documents does not affect the obligations of any other Party under the Finance Documents. No Finance Party is responsible for the obligations of any other Finance Party under the Finance Documents.

 

(b)

The rights of each Finance Party under or in connection with the Finance Documents are separate and independent rights and any debt arising under the Finance Documents to a Finance Party from the Borrower shall be a separate and independent debt.

 

(c)

A Finance Party may, except as otherwise stated in the Finance Documents, separately enforce its rights under the Finance Documents.

 

2.4

Extension option

 

(a)

The Borrower may request that the Termination Date applicable to each of the SPA Acquisition Bridge Facility, the Bid Acquisition Bridge Facility and the Margin Loan Bridge Facility be extended, subject to the terms of this Clause 2.4, by delivering to the Agent an Extension Request not less than 15 Business Days before the Original Termination Date, for a further period of six (6) Months (the Extension).

 

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(b)

Following the delivery of an Extension Request in accordance with paragraph (a) above, the Termination Date applicable to each of the SPA Acquisition Bridge Facility, the Bid Acquisition Bridge Facility and the Margin Loan Bridge Facility will be extended by the Extension provided that:

 

  (i)

no Default has occurred and is then continuing or would occur as a result of the Extension;

 

  (ii)

at the time of delivery of the Extension Request and at the Original Termination Date, the Repeating Representations to be made by the Borrower are correct in all material respects; and

 

  (iii)

the Borrower has paid three (3) days before the Original Termination Date to the Agent (for the account of the Lenders pro rata) an extension fee equal to 0.50 per cent. of the aggregate amount of the Total Commitments being extended.

 

(c)

The Extension always applies to each of the SPA Acquisition Bridge Facility, the Bid Acquisition Bridge Facility and the Margin Loan Bridge Facility.

 

(d)

An Extension Request shall be irrevocable.

 

(e)

The Agent shall promptly notify each Lender of any such Extension Request.

 

3.

PURPOSE

 

3.1

Purpose

 

(a)

The Borrower shall apply all amounts borrowed by it under the SPA Acquisition Bridge Facility towards:

 

  (i)

the financing of the SPA Acquisition; and

 

  (ii)

the financing of the SPA Bid Costs.

 

(b)

The Borrower shall apply all amounts borrowed by it under the Bid Acquisition Bridge Facility towards:

 

  (i)

the financing of the Bid Acquisition; and

 

  (ii)

the financing of the Bid Costs.

 

(c)

The Borrower shall apply all amounts borrowed by it under the Margin Loan Bridge Facility towards the refinancing of any Financial Indebtedness outstanding under the Existing Margin Loan Facilities Agreements.

 

3.2

Monitoring

No Finance Party is bound to monitor or verify the application of any amount borrowed pursuant to this Agreement.

 

29


4.

CONDITIONS OF UTILISATION

 

4.1

Initial conditions precedent

 

(a)

The Borrower may not:

 

  (i)

request the Issuing Bank to issue a Bid Certificate pursuant to Clause 5.1 (Delivery of a request for a Bid Certificate), unless the Agent has received all of the Initial Conditions Precedent in form and substance satisfactory to the Agent and the SPA Closing Date has occurred; and

 

  (ii)

deliver a Utilisation Request, and the Lenders will not be obliged to comply with Clause 6.4 (Lenders’ participation) in relation to any Loan, unless on or before the Utilisation Date for that utilisation the Agent has received the following Initial Conditions Precedent in form and substance satisfactory to the Agent:

 

  (A)

in relation to the Margin Loan Bridge Facility Loan: the Initial Conditions Precedent and the Refinancing Conditions Precedent;

 

  (B)

in relation to a SPA Acquisition Bridge Facility Loan: the Initial Conditions Precedent and the SPA Conditions Precedent; and

 

  (C)

in relation to a Bid Acquisition Bridge Facility Loan: the Initial Conditions Precedent and the Bid Conditions Precedent.

The Agent shall notify the Borrower and the Lenders promptly upon being so satisfied.

 

(b)

Other than to the extent that the Majority Lenders notify the Agent in writing to the contrary before the Agent gives the notification described in paragraph (a) above, the Lenders authorise (but do not require) the Agent to give that notification. The Agent shall not be liable for any damages, costs or losses whatsoever as a result of giving any such notification.

 

4.2

Further conditions precedent for the Margin Loan Bridge Facility Loan and the SPA Acquisition Bridge Facility Loan

Subject to Clause 4.1 (Initial conditions precedent), the Lenders will only be obliged to comply with Clause 6.4 (Lenders’ participation) in relation to the Margin Loan Bridge Facility Loan and the SPA Acquisition Bridge Facility Loan, if on the date of the Utilisation Request and on the proposed Utilisation Date:

 

  (a)

no Default is continuing or would result from the proposed Loan;

 

  (b)

no Sanctions Event is continuing or would result from the proposed Loan; and

 

  (c)

the Repeating Representations to be made by the Borrower are true in all material respects.

 

4.3

Maximum number of Loans

 

(a)

The Borrower may not deliver a Utilisation Request if as a result of the proposed Loan:

 

  (i)

more than 2 SPA Acquisition Bridge Facility Loans would be outstanding;

 

  (ii)

more than 2 Bid Acquisition Bridge Facility Loans would be outstanding; or

 

  (iii)

more than 2 Margin Loan Bridge Facility Loans would be outstanding.

 

30


(b)

The Borrower may not request that a Loan be divided.

 

4.4

Bid Acquisition Bridge Facility Loans during the Certain Funds Period

 

(a)

During the Certain Funds Period and notwithstanding any provision in the Finance Documents to the contrary, a Lender is not entitled to:

 

  (i)

refuse to participate in or make available any Bid Acquisition Bridge Facility Loan;

 

  (ii)

cancel any of its Bid Acquisition Bridge Facility Commitments to the extent to do so would prevent or limit the making of a Bid Acquisition Bridge Facility Loan;

 

  (iii)

rescind, terminate or cancel the Finance Documents or exercise any similar right or remedy or make or take any action or make or enforce any claim under or in respect of any Finance Document it may have in respect of the Bid Acquisition Bridge Facility to the extent to do so would prevent or limit the making of a Bid Acquisition Bridge Facility Loan;

 

  (iv)

exercise any right of set-off or counterclaim or similar right or remedy in respect of any Bid Acquisition Bridge Facility Loan; or

 

  (v)

cancel, accelerate or cause repayment or prepayment of any amounts owing under this Agreement or under any other Finance Document of any Bid Acquisition Bridge Facility Loan,

unless the entitlement to take any of the foregoing action arises because the Initial Conditions Precedent or the Bid Conditions Precedent have not been complied with (the Certain Funds Provision).

 

(b)

The Finance Parties agree that the utilisation of the Bid Acquisition Bridge Facility during the Certain Funds Period will only be subject to the Certain Funds Provision and during the Certain Funds Period no rights will be exercised by any Lender, the Agent or any other Finance Party or otherwise (such as rights of rescission) which could affect the making of a Bid Acquisition Bridge Facility Loan or its application other than as expressly contemplated above.

 

(c)

Immediately upon the expiry of the Certain Funds Period, all such rights, remedies and entitlements shall be available to the Finance Parties notwithstanding that they may not have been used or been available for use during the Certain Funds Period.

 

5.

BID CERTIFICATE

 

5.1

Delivery of a request for a Bid Certificate

 

(a)

During the Certain Funds Period, the Borrower may, if it gives the Issuing Bank not less than one Business Day notice by delivering to the Issuing Bank a Bid Certificate Request, request the Issuing Bank to issue a Bid Certificate.

 

(b)

The Borrower may submit more than one Bid Certificate Request it being understood that the aggregate amount of Bid Certificates issued should not exceed the Bid Acquisition Bridge Facility Commitments.

 

(c)

A Bid Certificate Request is irrevocable and will not be regarded as having been duly given unless:

 

  (i)

it specifies that it is for a Bid Certificate;

 

31


  (ii)

the proposed issue date for the Bid Certificate is a Business Day within the Availability Period applicable to the Bid Acquisition Bridge Facility; and

 

  (iii)

the aggregate amount of the proposed Bid Certificate must be an amount in USD which does not exceed the Available Facility in relation to the Bid Acquisition Bridge Facility Commitment.

 

5.2

Issue of a Bid Certificate

If the conditions set out in this Agreement in respect of the issue of a Bid Certificate have been met, the Issuing Bank shall issue the Bid Certificate within one Business Day from receiving the Bid Certificate Request under Clause 5.1 (Delivery of a request for a Bid Certificate).

 

6.

UTILISATION

 

6.1

Delivery of a Utilisation Request

The Borrower may utilise a Facility by delivery to the Agent of a duly completed Utilisation Request not later than the Specified Time, except for any Loan to be made on the first Utilisation Date under this Agreement, for which an agreed form Utilisation Request must be delivered 3 Business Days prior to such first Utilisation Date and a duly completed Utilisation Request must be delivered before 9.30 a.m. CET on the first Utilisation Date.

 

6.2

Completion of a Utilisation Request

 

(a)

Each Utilisation Request is irrevocable and will not be regarded as having been duly completed unless:

 

  (i)

it identifies the Facility to be utilised;

 

  (ii)

the proposed Utilisation Date is a Business Day within the Availability Period applicable to that Facility;

 

  (iii)

the currency and amount of the Loan comply with Clause 6.3 (Currency); and

 

  (iv)

the proposed Interest Period complies with Clause 10 (Interest Periods).

 

(b)

Only one Loan may be requested in each Utilisation Request.

 

6.3

Currency

The currency specified in a Utilisation Request must be USD.

 

6.4

Lenders’ participation

 

(a)

If the conditions set out in this Agreement have been met, each Lender shall make its participation in each Loan available by the Utilisation Date through its Facility Office.

 

(b)

The amount of each Lender’s participation in each Loan will be equal to the proportion borne by its Available Commitment to the Available Facility immediately prior to making the Loan.

 

(c)

The Agent shall notify each Lender of the amount of each Loan, the amount of its participation in that Loan, in each case by the Specified Time.

 

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6.5

Limitation on Loans

The Margin Loan Bridge Facility Loan may only be utilised:

 

  (i)

on the first Utilisation Date; and

 

  (ii)

provided that:

 

  (A)

the SPA Acquisition Bridge Facility Loan has been utilised simultaneously; and

 

  (B)

the amount of the Margin Loan Bridge Facility Loan does not exceed the outstanding Financial Indebtedness under the Existing Margin Loan Facilities Agreements.

 

6.6

Cancellation of Commitments

The Commitments which, at that time, are unutilised shall be immediately cancelled at the end of the relevant Availability Period.

 

7.

REPAYMENT

The Borrower shall repay the Loans in full on the Termination Date applicable to the relevant Facility.

 

8.

PREPAYMENT AND CANCELLATION

 

8.1

Illegality

If, in any applicable jurisdiction, it becomes unlawful for any Lender to perform any of its obligations as contemplated by this Agreement or to fund or maintain its participation in any Loan:

 

  (a)

that Lender shall promptly notify the Agent upon becoming aware of that event;

 

  (b)

upon the Agent notifying the Borrower, each Available Commitment of that Lender will be immediately cancelled; and

 

  (c)

to the extent that the Lender’s participation has not been transferred pursuant to paragraph (d) of Clause 8.12 (Right of replacement or repayment and cancellation in relation to a single Lender), the Borrower shall repay that Lender’s participation in the Loans on the last day of the Interest Period for each Loan occurring after the Agent has notified the Borrower or, if earlier, the date specified by the Lender in the notice delivered to the Agent (being no earlier than the last day of any applicable grace period permitted by law) and that Lender’s corresponding Commitment(s) shall immediately be cancelled in the amount of the participations repaid.

 

8.2

Sanctions

Without prejudice to a Lender`s right under Clause 8.1 (Illegality) if a Sanctions Event occurs:

 

  (a)

the Borrower or the relevant Lender upon becoming aware of such event shall promptly notify the Agent thereof, which shall promptly thereafter notify each Lender and the Borrower as relevant thereof;

 

  (b)

no Lender shall be obliged to participate in any Loan; and

 

  (c)

each Lender may at any time by notice to the Agent and the Borrower;

 

33


  (i)

cancel its Commitment(s) with immediate effect; and

 

  (ii)

may also to the extent that the Lender’s participation has not been transferred pursuant to paragraph (d) of Clause 8.12 (Right of replacement or repayment and cancellation in relation to a single Lender) by such notice demand the Borrower to immediately repay that Lender’s participation in the Loans together with accrued interest, and all other amounts accrued to it under the Finance Documents at the date, specified by the Lender in the notice delivered to the Agent and the Borrower, on the date specified by the Lender in the notice delivered to the Agent (being, no earlier than five (5) Business Days before the last day of any applicable grace period permitted by law including any general license or other exception to Sanctions).

 

8.3

Change of control

Upon the occurrence of a Borrower Change of Control or, as from the SPA Closing Date, a Target Change of Control:

 

  (a)

the Borrower shall promptly notify the Agent upon becoming aware of that event;

 

  (b)

a Lender shall not be obliged to fund a Loan; and

 

  (c)

the Facilities will be cancelled and all outstanding Loans, together with accrued interest, and all other amounts due under the Finance Documents, shall become immediately due and payable.

 

8.4

Mandatory Prepayment – Distributions

 

(a)

Subject to paragraphs (b) and (c) below, if the Borrower receives any Distribution from the Target, the Borrower shall prepay the Loans, in accordance with Clause 8.8 (Application of mandatory prepayments and cancellations) together with accrued interest on the amount prepaid and any related Break Costs, promptly after the date of receipt of such Distribution, in an amount equal to the amount of the Distribution.

 

(b)

Paragraph (a) above shall not be applicable to:

 

  (i)

any Distribution reserved and subsequently utilised between the date of this Agreement and the SPA Closing Date for purposes of repaying or prepaying any Financial Indebtedness under any Existing Margin Loan Facilities Agreement in accordance with the terms of the relevant Existing Margin Loan Facilities Agreement; and

 

  (ii)

any Distribution paid into the Mandatory Prepayment Account promptly after the date of receipt of such Distribution in an amount at the discretion of the Borrower, but so that the aggregate amount paid for this purpose (together with the amounts paid under paragraph (b) of Clause 8.6 (Mandatory Prepayment – Permitted CMB.TECH Sale and Permitted Euronav Sale)) does not exceed USD 30,000,000, and to be applied by the Agent in accordance with paragraph (a)(i) of Clause 8.9 (Mandatory Prepayment Account).

 

(c)

The Borrower shall ensure that the proceeds of any Distribution received between the SPA Closing Date and the Bid Closing Date and which are in excess of a full repayment of the SPA Acquisition Bridge Facility and the Margin Loan Bridge Facility are paid into a Mandatory Prepayment Account as soon as reasonably practicable after receipt by the Borrower.

 

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8.5

Mandatory Prepayment – Disposal Proceeds

 

(a)

For the purposes of this Clause 8.5:

Disposal means a sale, lease, licence, transfer, loan or other disposal by a person of any asset, undertaking or business (whether by a voluntary or involuntary single transaction or series of transactions).

Disposal Proceeds means the consideration effectively received by the Borrower (including any amount receivable in repayment of intercompany debt) for any Disposal made by the Borrower except for Excluded Disposal Proceeds and after deducting:

 

  (i)

any reasonable expenses which are incurred by the Borrower with respect to that Disposal to persons who are not members of the Group, after repayment of Financial Indebtedness in relation to any existing financing of the asset that is disposed;

 

  (ii)

any Tax incurred and required to be paid by the seller in connection with that Disposal (as reasonably determined by the seller, on the basis of existing rates and taking account of any available credit, deduction or allowance); and

 

  (iii)

the proceeds from any mandatory prepayment otherwise required under this Agreement (including but not limited to the mandatory prepayment under Clause 8.6 (Mandatory Prepayment – Permitted CMB.TECH Sale and Permitted Euronav Sale)).

Excluded Disposal Proceeds means the proceeds from any Disposal when aggregated with the proceeds of all other Disposals (other than the proceeds from any mandatory prepayment otherwise required under this Agreement (including but not limited to the mandatory prepayment under Clause 8.6 (Mandatory Prepayment – Permitted CMB.TECH Sale and Permitted Euronav Sale))) made during the life of the Facilities which do not exceed USD 240,000,000 (or its equivalent) in aggregate, provided that they are committed or designated to be applied for capital expenditure of the Group within 6 Months of receipt of such proceeds.

 

(b)

The Borrower shall prepay the Loans, in accordance with Clause 8.8 (Application of mandatory prepayments and cancellations) together with accrued interest on the amount prepaid and any related Break Costs, in an amount equal to the amount of the Disposal Proceeds, promptly after the date of receipt of such Disposal Proceeds.

 

8.6

Mandatory Prepayment – Permitted CMB.TECH Sale and Permitted Euronav Sale

 

(a)

Subject to paragraph (b) below, the Borrower shall prepay the Loans, in accordance with Clause 8.8 (Application of mandatory prepayments and cancellations) together with accrued interest on the amount prepaid and any related Break Costs, promptly after the date of receipt of such cash proceeds, in an amount equal to the amount of the cash proceeds that are effectively received as a result of a Permitted CMB.TECH Sale and/or Permitted Euronav Sale.

 

(b)

Paragraph (a) above shall not be applicable to any cash proceeds that are effectively received as a result of a Permitted CMB.TECH Sale and/or Permitted Euronav Sale and are paid into the Mandatory Prepayment Account promptly after the date of receipt of such cash proceeds in an amount at the discretion of the Borrower, but so that the aggregate amount paid for this purpose (together with the amounts paid under paragraph (b)(ii) of Clause 8.4 (Mandatory Prepayment – Distributions) does not exceed USD 30,000,000, and to be applied by the Agent in accordance with paragraph (a)(i) of Clause 8.9 (Mandatory Prepayment Account).

 

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8.7

Mandatory Prepayment – Acquisition Proceeds

 

(a)

For the purposes of this Clause 8.7:

Acquisition Proceeds means the proceeds of a claim (a Recovery Claim) which are effectively received from a vendor under the Acquisition Documents or any of its Affiliates (or any employee, officer or adviser) in relation to the Acquisition Documents or from the provider of any report in relation to the SPA Acquisition (in its capacity as a provider of that report) except for Excluded Acquisition Proceeds, and after deducting:

 

  (i)

any reasonable expenses which are incurred by any member of the Group to persons who are not members of the Group; and

 

  (ii)

any Tax incurred and required to be paid by a member of the Group (as reasonably determined by the relevant member of the Group on the basis of existing rates and taking into account any available credit, deduction or allowance),

in each case in relation to that Recovery Claim.

Excluded Acquisition Proceeds means any proceeds of a Recovery Claim which the Borrower notifies the Agent are, or are to be, applied:

 

  (i)

to satisfy (or reimburse a member of the Group which has discharged) any liability, charge or claim upon a member of the Group by a person which is not a member of the Group; or

 

  (ii)

in the replacement, reinstatement and/or repair of assets of members of the Group which have been lost, destroyed or damaged,

in each case as a result of the events or circumstances giving rise to that Recovery Claim, if those proceeds are so applied as soon as possible (but in any event within 180 days, or such longer period as the Majority Lenders may agree) after receipt.

 

(b)

The Borrower shall prepay the Loans, in accordance with Clause 8.8 (Application of mandatory prepayments and cancellations) together with accrued interest on the amount prepaid and any related Break Costs, in an amount equal to the amount of the Acquisition Proceeds, promptly after the date of receipt of such Acquisition Proceeds.

 

8.8

Application of mandatory prepayments and cancellations

 

(a)

A prepayment under Clause 8.4 (Mandatory Prepayment – Distributions), Clause 8.5 (Mandatory Prepayment – Disposal Proceeds), Clause 8.6 (Mandatory Prepayment – Permitted CMB.TECH Sale and Permitted Euronav Sale) and Clause 8.7 (Mandatory Prepayment – Acquisition Proceeds) shall be applied to prepay the SPA Acquisition Bridge Facility Loan and Margin Loan Bridge Facility Loan pro rata and, when all SPA Acquisition Bridge Facility Loans and Margin Loan Bridge Facility Loans have been prepaid in full, to prepay the Bid Acquisition Bridge Facility Loan.

 

(b)

Amounts required to be applied in accordance with this Clause shall be applied in the following order:

 

  (i)

first, in cancellation of Available Commitments (and the Available Commitment of the Lenders will be cancelled rateably); and

 

  (ii)

secondly, in prepayment of Loans and cancellation of Commitments.

 

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8.9

Mandatory Prepayment Account

 

(a)

The Borrower irrevocably authorises the Agent to apply:

 

  (i)

the amounts credited to the Mandatory Prepayment Account under paragraph (b)(ii) of Clause 8.4 (Mandatory Prepayment – Distributions) and paragraph (b) of Clause 8.6 (Mandatory Prepayment – Permitted CMB.TECH Sale and Permitted Euronav Sale) to pay any interest, duration fee or ticking fees due under this Agreement at their respective due date until and including the date falling 1 Month after the Bid Closing Date, and any surplus remaining on the date falling 1 Month after the Bid Closing Date will be applied to make the mandatory prepayments as referred to in paragraph (a) of Clause 8.4 (Mandatory Prepayment – Distributions) and paragraph (a) of Clause 8.6 (Mandatory Prepayment – Permitted CMB.TECH Sale and Permitted Euronav Sale) on the date falling 1 Month after the Bid Closing Date; and

 

  (ii)

the amounts credited to the Mandatory Prepayment Account under paragraph (c) of Clause 8.4 (Mandatory Prepayment – Distributions) to make the mandatory prepayments as referred to in paragraph (a) of Clause 8.4 (Mandatory Prepayment – Distributions) on the Bid Closing Date immediately after the first utilisation under the Bid Acquisition Bridge Facility.

 

(b)

The Agent acknowledges and agrees that (i) interest shall accrue at normal commercial rates on amounts credited to those accounts and that the account holder shall be entitled to receive such interest (which shall be paid in accordance with the mandate relating to such account) unless a Default is continuing and (ii) each such account is subject to the Transaction Security.

 

8.10

Voluntary cancellation

 

(a)

The Borrower may, if it gives the Agent not less than 5 Business Days’ (or such shorter period as the Majority Lenders may agree) prior notice, cancel the whole or any part (being a minimum amount of USD 5,000,000) of the SPA Acquisition Bridge Facility or the Margin Loan Bridge Facility.

 

(b)

No earlier than the day upon which a Bid Certificate is issued, the Borrower may, if it gives the Agent not less than 5 Business Days’ (or such shorter period as the Majority Lenders may agree) prior notice, cancel the whole or any part of the Bid Acquisition Bridge Facility which exceeds the amount mentioned in the Bid Certificate.

 

(c)

Any cancellation under this Clause 8.10 shall reduce the Commitments of the Lenders rateably.

 

8.11

Voluntary prepayment

 

(a)

The Borrower may, if it gives the Agent not less than 5 Business Days’ (or such shorter period as the Majority Lenders may agree) prior notice, prepay the whole or any part of any Loan (but, if in part, being an amount that reduces the amount of the outstanding Loan by a minimum amount of USD 5,000,000).

 

(b)

A Loan may only be prepaid after the last day of the Availability Period for the Applicable Facility (or, if earlier, the day on which the applicable Available Facility is zero).

 

8.12

Right of replacement or repayment and cancellation in relation to a single Lender

 

(a)

If:

 

  (i)

any sum payable to any Lender by the Borrower is required to be increased under paragraph (c) of Clause 13.2 (Tax gross-up); or

 

37


  (ii)

any Lender claims indemnification from the Borrower under Clause 13.3 (Tax indemnity) or Clause 14.1 (Increased costs),

the Borrower may, whilst the circumstance giving rise to the requirement for that increase or indemnification continues, give the Agent notice of cancellation of the Commitment(s) of that Lender and its intention to procure the repayment of that Lender’s participation in the Loans or give the Agent notice of its intention to replace that Lender in accordance with paragraph (d) below.

 

(b)

On receipt of a notice of cancellation referred to in paragraph (a) above, the Available Commitment(s) of that Lender shall be immediately reduced to zero.

 

(c)

On the last day of each Interest Period which ends after the Borrower has given notice of cancellation under paragraph (a) above (or, if earlier, the date specified by the Borrower in that notice), the Borrower shall repay that Lender’s participation in that Loan and that Lender’s corresponding Commitment(s) shall be immediately cancelled in the amount of the participations repaid.

 

(d)

If:

 

  (i)

any of the circumstances set out in paragraph (a) above apply to a Lender; or

 

  (ii)

the Borrower becomes obliged to pay any amount in accordance with Clause 8.1 (Illegality) to any Lender,

the Borrower may, on 15 days’ prior notice to the Agent and that Lender, replace that Lender by requiring that Lender to (and, to the extent permitted by law, that Lender shall) transfer pursuant to Clause 22 (Changes to the Lenders) all (and not part only) of its rights and obligations under this Agreement to an Eligible Institution which confirms its willingness to assume and does assume all the obligations of the transferring Lender in accordance with Clause 22 (Changes to the Lenders) for a purchase price in cash payable at the time of the transfer equal to the outstanding principal amount of such Lender’s participation in the outstanding Loans and all accrued interest to the extent that the Agent has given a notification under Clause 22.9 (Pro rata interest settlement), Break Costs and other amounts payable in relation thereto under the Finance Documents.

 

(e)

The replacement of a Lender pursuant to paragraph (d) above shall be subject to the following conditions:

 

  (i)

the Borrower shall have no right to replace the Agent;

 

  (ii)

neither the Agent nor any Lender shall have any obligation to find a replacement Lender;

 

  (iii)

in no event shall the Lender replaced under paragraph (d) above be required to pay or surrender any of the fees received by such Lender pursuant to the Finance Documents; and

 

  (iv)

the Lender shall only be obliged to transfer its rights and obligations pursuant to paragraph (d) above once it is satisfied that it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations in relation to that transfer.

 

(f)

A Lender shall perform the checks described in paragraph (e)(iv) above as soon as reasonably practicable following delivery of a notice referred to in paragraph (d) above and shall notify the Agent and the Borrower when it is satisfied that it has complied with those checks.

 

(g)

If any Lender becomes a Defaulting Lender, the Borrower may, at any time whilst the Lender continues to be a Defaulting lender, give the Agent ten (10) Business Days’ notice of cancellation of each Available Commitment of that Lender.

 

38


  (i)

On the notice referred to in paragraph (i) above becoming effective, each Available Commitment of the Defaulting Lender shall immediately by reduced to zero.

 

  (ii)

The Agent shall as soon as practicable after receipt of a notice referred to in paragraph (g) above, notify all the Lenders.

 

8.13

Restrictions

 

(a)

Any notice of cancellation or prepayment given by any Party under this Clause 8 shall be irrevocable and, unless a contrary indication appears in this Agreement, shall specify the date or dates upon which the relevant cancellation or prepayment is to be made and the amount of that cancellation or prepayment.

 

(b)

Any prepayment under this Agreement shall be made together with accrued interest on the amount prepaid and, subject to any Break Costs, without premium or penalty, except for a prepayment under paragraph (a) of Clause 8.4 (Mandatory Prepayment – Distributions), paragraph (b) of Clause 8.5 (Mandatory Prepayment – Disposal Proceeds), paragraph (a) of Clause 8.6 (Mandatory Prepayment – Permitted CMB.TECH Sale and Permitted Euronav Sale) or paragraph (b) of Clause 8.7 (Mandatory Prepayment – Acquisition Proceeds) whereby the amount prepaid shall include principal, accrued interest on the principal prepaid and any relevant Break Costs.

 

(c)

The Borrower may not re-borrow any part of a Facility which is prepaid.

 

(d)

The Borrower shall not repay or prepay all or any part of the Loans or cancel all or any part of the Commitments except at the times and in the manner expressly provided for in this Agreement.

 

(e)

Subject to Clause 2.2 (Increase), no amount of the Total Commitments cancelled under this Agreement may be subsequently reinstated.

 

(f)

If the Agent receives a notice under this Clause 8 it shall promptly forward a copy of that notice to either the Borrower or the affected Lender, as appropriate.

 

(g)

If all or part of any Lender’s participation in a Loan under a Facility is repaid or prepaid, an amount of that Lender’s Commitments (equal to the amount of the participation which is repaid or prepaid) in respect of that Facility will be deemed to be cancelled on the date of repayment or prepayment.

 

8.14

Application of prepayments

Any prepayment of a Loan pursuant to Clause 8.3 (Change of control), Clause 8.4 (Mandatory Prepayment – Distributions), 8.5 (Mandatory Prepayment – Disposal Proceeds), Clause 8.6 (Mandatory Prepayment – Permitted CMB.TECH Sale and Permitted Euronav Sale), Clause 8.7 (Mandatory Prepayment – Acquisition Proceeds) or Clause 8.11 (Voluntary prepayment) shall be applied pro rata to each Lender’s participation in that Loan.

 

9.

INTEREST

 

9.1

Calculation of interest

 

(a)

The rate of interest on each Loan for any day during an Interest Period is the percentage rate per annum which is the aggregate of the applicable:

 

  (i)

Margin; and

 

  (ii)

Compounded Reference Rate for that day.

 

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(b)

If any day during an Interest Period for a Loan is not an RFR Banking Day, the rate of interest on that Loan for that day will be the rate applicable to the immediately preceding RFR Banking Day.

 

9.2

Payment of interest

The Borrower shall pay accrued interest on that Loan on the last day of each Interest Period.

 

9.3

Default interest

 

(a)

If the Borrower fails to pay any amount payable by it under a Finance Document on its due date, interest shall accrue on the overdue amount from the due date up to the date of actual payment (both before and after judgment) at a rate which is two (2) per cent. per annum higher than the rate which would have been payable if the overdue amount had, during the period of non-payment, constituted a Loan in the currency of the overdue amount for successive Interest Periods, each of a duration selected by the Agent (acting reasonably). Any interest accruing under this Clause 9.3 shall be immediately payable by the Borrower on demand by the Agent.

 

(b)

To the extent permitted by applicable law, default interest (if unpaid) arising on an overdue amount will be compounded with the overdue amount at the end of each Interest Period applicable to that overdue amount but will remain immediately due and payable.

 

9.4

Notifications

 

(a)

The Agent shall promptly upon an Interest Payment being determinable notify:

 

  (i)

the Borrower of that Interest Payment;

 

  (ii)

each relevant Lender of the proportion of that Interest Payment which relates to that Lender’s participation in the relevant Loan; and

 

  (iii)

the relevant Lenders and the Borrower of:

 

  (A)

each applicable rate of interest relating to the determination of that Interest Payment; and

 

  (B)

to the extent it is then determinable, the Market Disruption Rate (if any) relating to the relevant Loan.

This paragraph (a) shall not apply to any Interest Payment determined pursuant to Clause 11.3 (Cost of funds).

 

(b)

The Agent shall promptly notify the relevant Borrower of each Funding Rate relating to a Loan.

 

(c)

The Agent shall promptly notify the relevant Lenders and the Borrower of the determination of a rate of interest relating to a Loan to which Clause 11.3 (Cost of funds) applies.

 

(d)

This Clause 9.4 shall not require the Agent to make any notification to any Party on a day which is not a Business Day.

 

10.

INTEREST PERIODS

 

10.1

Selection of Interest Periods

 

(a)

The Borrower may select an Interest Period for a Loan in the Utilisation Request for that Loan or (if the Loan has already been borrowed) in a Selection Notice.

 

40


(b)

Each Selection Notice is irrevocable and must be delivered to the Agent by the Borrower not later than the Specified Time.

 

(c)

If the Borrower fails to deliver a Selection Notice to the Agent in accordance with paragraph (b) above, the relevant Interest Period will be the period specified in the Reference Rate Terms.

 

(d)

Subject to this Clause 10, the Borrower may select an Interest Period of any period specified in the Reference Rate Terms or any other period agreed between the Borrower, the Agent and all Lenders in relation to the relevant Loan, provided that an Interest Period of one (1) week may not be selected more than 5 times over the lifetime of the Facilities.

 

(e)

An Interest Period for a Loan shall not extend beyond the Termination Date applicable to its Facility.

 

(f)

Each Interest Period shall start on the Utilisation Date or (if already made) on the last day of its preceding Interest Period.

 

(g)

No Interest Period shall be longer than six Months.

 

10.2

Non-Business Days

Any rules specified as “Business Day Conventions” in the Reference Rate Terms shall apply to each Interest Period.

 

10.3

Consolidation of Loans

If two or more Interest Periods end on the same date, those Loans will, unless the Borrower specifies to the contrary in the Selection Notice for the next Interest Period, be consolidated into, and treated as, a single Loan on the last day of the Interest Period.

 

11.

CHANGES TO THE CALCULATION OF INTEREST

 

11.1

Interest calculation if no RFR or Central Bank Rate

If:

 

  (a)

there is no applicable RFR or Central Bank Rate for the purposes of calculating the Daily Non-Cumulative Compounded RFR Rate for an RFR Banking Day during an Interest Period for a Loan; and

 

  (b)

“Cost of funds will apply as a fallback is specified in the Reference Rate Terms,

Clause 11.3 (Cost of funds) shall apply to that Loan for that Interest Period.

 

11.2

Market disruption

If:

 

  (a)

a Market Disruption Rate is specified in the Reference Rate Terms; and

 

  (b)

before the Reporting Time the Agent receives notifications from a Lender or Lenders (whose participation in a Loan exceed 35 per cent. of that Loan) that its cost of funds relating to its participation in that Loan would be in excess of that Market Disruption Rate,

then Clause 11.3 (Cost of funds) shall apply to that Loan for the relevant Interest Period.

 

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11.3

Cost of funds

 

(a)

If this Clause 11.3 applies to a Loan for an Interest Period, Clause 9.1 Calculation of interest shall not apply to that Loan for that Interest Period and the rate of interest on each Lender’s share of that Loan for that Interest Period shall be the percentage rate per annum which is the sum of:

 

  (i)

the applicable Margin; and

 

  (ii)

the average rate notified to the Agent by the Lenders as soon as practicable and in any event by the Reporting Time, to be that which expresses as a percentage rate per annum their cost of funds relating to their participation in that Loan.

 

(b)

If this Clause 11.3 applies and the Agent or the Borrower so requires, the Agent and the Borrower shall enter into negotiations (for a period of not more than thirty days) with a view to agreeing a substitute basis for determining the rate of interest.

 

(c)

Any alternative basis agreed pursuant to paragraph (b) above shall, with the prior consent of all the Lenders and the Borrower, be binding on all Parties.

 

(d)

If this Clause 11.3 applies the Agent shall, as soon as is practicable, notify the Borrower.

 

11.4

Break Costs

 

(a)

If an amount is specified as Break Costs in the Reference Rate Terms, the Borrower shall, within three Business Days of demand by a Finance Party, pay to that Finance Party its Break Costs attributable to all or any part of a Loan or Unpaid Sum being paid by the Borrower on a day other than the last day of an Interest Period for that Loan or Unpaid Sum.

 

(b)

Each Lender shall, as soon as reasonably practicable after a demand by the Agent, provide a certificate confirming the amount of its Break Costs for any Interest Period in which they accrue.

 

12.

FEES

 

12.1

Upfront fee

The Borrower shall pay to the Agent (for the account of each Original Lender) an upfront fee in the amount and at the times agreed in a Fee Letter.

 

12.2

Duration fee

The Borrower shall pay to the Agent (for the account of each Original Lender) a duration fee in an amount equal to:

 

  (a)

0.10 per cent. calculated over the amount of the Total Commitments outstanding on 31 December 2023, but only if the Total Commitments at such date are higher than USD 2,800,000,000, which will be due and payable on 31 December 2023;

 

  (b)

0.15 per cent. calculated over the amount of the Total Commitments outstanding on the date falling 45 calendar days after the Bid Closing Date, but only if the Total Commitments at such date are higher than USD 2,000,000,000, which will be due and payable on the date falling 45 calendar days after the Bid Closing Date; and

 

  (c)

0.35 per cent. calculated over the amount of the Total Commitments outstanding on the date falling 90 calendar days after the Bid Closing Date, but only if the Total Commitments at such date are higher than USD 1,000,000,000, which will be due and payable on the date falling 90 calendar days after the Bid Closing Date.

 

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12.3

Coordination fee

The Borrower shall pay to the Coordinators (for their own accounts) a coordination fee in the amount and at the times agreed in a Fee Letter.

 

12.4

Agency fee

The Borrower shall pay to the Agent and the Security Agent (for its own account) an agency fee in the amount and at the times agreed in a Fee Letter.

 

12.5

Ticking fee

 

(a)

As from the date of this Agreement to (but excluding) the earlier of (i) the date on which the Facilities are cancelled in full and (ii) the end of the Availability Period of the Facilities, the Borrower shall pay to the Agent (for the account of each Lender pro rata to its respective Commitments) a ticking fee (the Ticking Fee) in an amount equal to:

 

  (i)

from the date of this Agreement until (but excluding) the date falling one Month after the date of this Agreement (the First Step Up Date), 0 per cent.;

 

  (ii)

from the First Step Up Date until (but excluding) the date falling one Month after the First Step Up Date (the Second Step Up Date), 10 per cent.;

 

  (iii)

from the Second Step Up Date until (but excluding) the date falling one Month after the Second Step Up Date (the Third Step Up Date), 25 per cent.; and

 

  (iv)

from the Third Step Up Date until (but excluding) the date upon which the Facilities are fully drawn and there are no Available Commitments outstanding, 35 per cent.

in each case per annum of the applicable Margin on the Available Commitments for the relevant period, it being understood (for the avoidance of doubt) that paragraph (b) of the definition of Available Commitment shall not be taken into account when calculating the Ticking Fee.

 

(b)

The accrued Ticking Fee is payable on the last day of each successive period of three Months which ends during the Availability Period, on the last day of the Availability Period and, if cancelled in full, on the cancelled amount of the relevant Lender’s Commitment at the time the cancellation is effective and shall be due irrespective of whether the SPA Acquisition and/or the Bid Acquisition are successfully completed.

 

13.

TAX GROSS UP AND INDEMNITIES

 

13.1

Definitions

 

(a)

In this Agreement:

Protected Party means a Finance Party which is or will be subject to any liability, or required to make any payment, for or on account of Tax in relation to a sum received or receivable (or any sum deemed for the purposes of Tax to be received or receivable) under a Finance Document.

Qualifying Lender means, in respect of any payments made under the Finance Documents by the Borrower, a Lender which is beneficially entitled to interest payable to it and which can receive such interest without a Tax Deduction due to being:

 

43


  (i)

a professional investor within the meaning of Article 105, 3° of the Royal Decree implementing the Belgian Income Tax Code, which is a company resident for tax purposes in Belgium or which is acting through a Facility Office established in Belgium with which the Loan is effectively connected, other than mentioned in (ii) below; or

 

  (ii)

a credit institution within the meaning of article 105, 1°, a) of the Royal Decree implementing the Belgian Income Tax Code which is a resident for tax purposes in Belgium or which is acting through a permanent establishment in Belgium; or

 

  (iii)

a credit institution within the meaning of article 107, §2, 5°, a), second dash of the Royal Decree implementing the Belgian Income Tax Code, that is acting through its head office and is resident for tax purposes in a country with which Belgium has entered into a double taxation agreement that is in force (irrespective of whether or not the double taxation agreement makes provision for exemption from tax imposed by Belgium) or in a country which is a member state of the European Economic Area; or

 

  (iv)

a credit institution within the meaning of article 107, §2, 5°, a), second dash of the Royal Decree implementing the Belgian Income Tax Code, that is acting through a permanent establishment which (i) itself qualifies as a credit institution within the meaning of the aforementioned article 107, §2, 5, a) second dash and (ii) is located in a country with which Belgium has entered into a double taxation agreement that is in force (irrespective of whether or not the double taxation agreement makes provision for exemption from tax imposed by Belgium) or in a country which is a member state of the European Economic Area; or

 

  (v)

a Treaty Lender.

Tax Credit means a credit against, relief or remission for, or repayment of any Tax.

Tax Deduction means a deduction or withholding for or on account of Tax from a payment under a Finance Document, other than a FATCA Deduction.

Tax Payment means either the increase in a payment made by the Borrower to a Finance Party under Clause 13.2 (Tax gross-up) or a payment under Clause 13.3 (Tax indemnity).

Treaty Lender means a Lender which:

 

  (i)

is treated as a resident of a Treaty State for the purposes of the Treaty and is entitled to the benefits of such Treaty; and

 

  (ii)

does not carry on a business in Belgium through a permanent establishment with which that Lender’s participation in the Loan is effectively connected.

Treaty State means a jurisdiction having a double taxation agreement (a Treaty) with Belgium which makes provision for full exemption from Belgian taxation on interest.

 

(b)

Unless a contrary indication appears, in this Clause 13 a reference to determines or determined means a determination made in the absolute discretion of the person making the determination.

 

13.2

Tax gross-up

 

(a)

The Borrower shall make all payments to be made by it without any Tax Deduction, unless a Tax Deduction is required by law.

 

44


(b)

The Borrower shall promptly upon becoming aware that it must make a Tax Deduction (or that there is any change in the rate or the basis of a Tax Deduction) notify the Agent accordingly. Similarly, a Lender shall notify the Agent on becoming so aware in respect of a payment payable to that Lender. If the Agent receives such notification from a Lender it shall notify the Borrower.

 

(c)

If a Tax Deduction is required by law to be made by the Borrower or the Agent, the amount of the payment due from the Borrower shall be increased to an amount which (after making any Tax Deduction) leaves an amount equal to the payment which would have been due if no Tax Deduction had been required.

 

(d)

A payment shall not be increased under paragraph (c) above by reason of a Tax Deduction on account of Tax imposed by Belgium, if on the date on which the payment falls due:

 

  (i)

the payment could have been made to the relevant Lender without a Tax Deduction if the Lender had been a Qualifying Lender, but on that date that Lender is not or has ceased to be a Qualifying Lender other than as a result of any change after the date it became a Lender under this Agreement in (or in the interpretation, administration, or application of) any law or Treaty or any published practice or published concession of any relevant taxing authority; or

 

  (ii)

the relevant Lender is a Treaty Lender and the Borrower making the payment is able to demonstrate that the payment could have been made to the Lender without the Tax Deduction had that Lender complied with its obligations under paragraph (g) below.

 

(e)

If the Borrower is required to make a Tax Deduction, the Borrower shall make that Tax Deduction and any payment required in connection with that Tax Deduction within the time allowed and in the minimum amount required by law.

 

(f)

Within 30 days of making either a Tax Deduction or any payment required in connection with that Tax Deduction, the Borrower shall deliver to the Agent for the Finance Party entitled to the payment evidence reasonably satisfactory to that Finance Party that the Tax Deduction has been made or (as applicable) any appropriate payment paid to the relevant taxing authority.

 

(g)

A Treaty Lender and the Borrower which makes a payment to which that Treaty Lender is entitled shall co-operate in completing any procedural formalities necessary for the Borrower to obtain authorisation to make that payment without a Tax Deduction.

 

13.3

Tax indemnity

 

(a)

The Borrower shall (within three Business Days of demand by the Agent) pay to a Protected Party an amount equal to the loss, liability or cost which that Protected Party determines will be or has been (directly or indirectly) suffered for or on account of Tax by that Protected Party in respect of a Finance Document.

 

(b)

Paragraph (a) above shall not apply:

 

  (i)

with respect to any Tax assessed on a Finance Party:

 

  (A)

under the law of the jurisdiction in which that Finance Party is incorporated or, if different, the jurisdiction (or jurisdictions) in which that Finance Party is treated as resident for tax purposes; or

 

  (B)

under the law of the jurisdiction in which that Finance Party’s Facility Office is located in respect of amounts received or receivable in that jurisdiction, if that Tax is imposed on or calculated by reference to the net income received or receivable (but not any sum deemed to be received or receivable) by that Finance Party; or

 

45


  (ii)

to the extent a loss, liability or cost:

 

  (A)

is compensated for by an increased payment under Clause 13.2 (Tax gross-up);

 

  (B)

would have been compensated for by an increased payment under Clause 13.2 (Tax gross-up) but was not so compensated solely because one of the exclusions in paragraph (d) of Clause 13.2 (Tax gross-up) applied; or

 

  (C)

relates to a FATCA Deduction required to be made by a Party.

 

(c)

A Protected Party making, or intending to make, a claim under paragraph (a) above shall promptly notify the Agent of the event which will give, or has given, rise to the claim, following which the Agent shall notify the Borrower.

 

(d)

A Protected Party shall, on receiving a payment from the Borrower under this Clause 13.3, notify the Agent.

 

13.4

Tax Credit

If the Borrower makes a Tax Payment and the relevant Finance Party determines in good faith that:

 

  (a)

a Tax Credit is attributable to an increased payment of which that Tax Payment forms part, to that Tax Payment or to a Tax Deduction in consequence of which that Tax Payment was required; and

 

  (b)

that Finance Party has obtained and utilised and retained that Tax Credit,

the Finance Party shall pay an amount to the Borrower which that Finance Party determines will leave it (after that payment) in the same after-Tax position as it would have been in had the Tax Payment not been required to be made by the Borrower.

 

13.5

Tax credit clawback

If any Finance Party makes any payment to the Borrower pursuant to Clause 13.4 and such Finance Party subsequently certifies in good faith that the credit, relief, remission or repayment in respect of which such payment was made was not available or has been withdrawn or that it was unable to use such credit, relief, remission or repayment in full, the Borrower shall reimburse such Finance Party such amount as such Finance Party determines in good faith is necessary to place it in the same after-tax position as it would have been in if such credit, relief, remission or repayment had been obtained and fully used and retained by such Finance Party.

 

13.6

Lender status confirmation

Each Lender which becomes a Party to this Agreement after the date of this Agreement shall indicate, in the Transfer Certificate or Increase Confirmation which it executes on becoming a Party, and for the benefit of the Agent and without liability to the Borrower, which of the following categories it falls in:

 

  (a)

not a Qualifying Lender;

 

  (b)

a Qualifying Lender (other than a Treaty Lender); or

 

46


  (c)

a Treaty Lender.

 

13.7

Tax form

 

(a)

Prior to the date the first time a Loan is made available to the Borrower (and thereafter on the Transfer Date in relation to a New Lender), and from time to time thereafter if requested by the relevant taxing authority, each Lender (other than a Treaty Lender) that is not a Belgian resident shall provide the Borrower with a completed signed Tax Status Certificate. Each Lender (other than a Treaty Lender) that is not a Belgian resident shall promptly inform the Borrower and the Agent if the Tax Status Certificate no longer reflects the status of such Lender, unless the change in such Lender’s status is due to any change in any law or Treaty, or any published practice or concession of any relevant taxing authority.

 

(b)

If a Lender fails to comply with this Clause 13.7, then such Lender shall be treated for the purposes of this Agreement as if it is not a Qualifying Lender until such time as it provides the Borrower with a completed signed Tax Status Certificate.

 

13.8

Stamp taxes

The Borrower shall pay and, within three Business Days of demand, indemnify each Finance Party against any cost, loss or liability that Finance Party incurs in relation to all stamp duty, registration and other similar Taxes or notarial fees payable in respect of any Finance Document.

 

13.9

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).

 

(b)

If VAT is or becomes chargeable on any supply made by any Finance Party (the Supplier) to any other Finance Party (the Recipient) under a Finance Document, and any Party other than the Recipient (the Relevant Party) is required by the terms of any Finance Document to pay an amount equal to the consideration for that supply to the Supplier (rather than being required to reimburse or indemnify the Recipient in respect of that consideration):

 

  (i)

(where the Supplier is the person required to account to the relevant tax authority for the VAT) the Relevant Party must also pay to the Supplier (at the same time as paying that amount) an additional amount equal to the amount of the VAT. The Recipient must (where this paragraph (i) applies) promptly pay to the Relevant Party an amount equal to any credit or repayment the Recipient receives from the relevant tax authority which the Recipient reasonably determines relates to the VAT chargeable on that supply; and

 

  (ii)

(where the Recipient is the person required to account to the relevant tax authority for the VAT) the Relevant Party must promptly, following demand from the Recipient, pay to the Recipient an amount equal to the VAT chargeable on that supply but only to the extent that the Recipient reasonably determines that it is not entitled to credit or repayment from the relevant tax authority in respect of that VAT.

 

47


(c)

Where a Finance Document requires any Party to reimburse or indemnify a Finance Party for any cost or expense, that Party shall reimburse or indemnify (as the case may be) such Finance Party for the full amount of such cost or expense, including such part thereof as represents VAT, save to the extent that such Finance Party reasonably determines that it is entitled to credit or repayment in respect of such VAT from the relevant tax authority.

 

(d)

Any reference in this Clause 13.9 to any Party shall, at any time when such Party is treated as a member of a group for VAT purposes, include (where appropriate and unless the context otherwise requires) a reference to the representative member of such group at such time (in accordance with the provisions of national law implementing Article 11 of the Council Directive of 28 November 2006 on the common system of value added tax (EC Directive 2006/112)).

 

(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.

 

13.10

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;

 

  (ii)

supply to that other Party such forms, documentation and other information relating to its status under FATCA as that other Party reasonably requests for the purpose of that other Party’s compliance with FATCA;

 

  (iii)

supply to that other Party such forms, documentation and other information relating to its status as that other Party reasonably requests for the purposes of that other Party’s compliance with any law, regulation or exchange of information regime.

 

(b)

If a Party confirms to another Party pursuant to paragraph (a) above that it is a FATCA Exempt Party and it subsequently becomes aware that it is not, or has ceased to be a FATCA Exempt Party, that Party shall notify that other Party reasonably promptly.

 

(c)

Paragraph (a) above shall not oblige any Finance Party to do anything, and paragraph (a)(iii) above shall not oblige any other Party to do anything, which would or might in its reasonable opinion constitute a breach of:

 

  (i)

any law or regulation;

 

  (ii)

any fiduciary duty; or

 

  (iii)

any duty of confidentiality.

 

(d)

If a Party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation or other information requested in accordance with paragraph (a)(i) or (ii) above (including, for the avoidance of doubt, where paragraph (c) above applies), then such Party shall be treated for the purposes of the Finance Documents (and payments under them) as if it is not a FATCA Exempt Party until such time as the Party in question provides the requested confirmation, forms, documentation or other information.

 

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13.11

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 the Borrower and the Agent and the Agent shall notify the other Finance Parties.

 

14.

INCREASED COSTS

 

14.1

Increased costs

 

(a)

Subject to Clause 14.3 (Exceptions) the Borrower shall, within three Business Days of a demand by the Agent, pay for the account of a Finance Party the amount of any Increased Costs incurred by that Finance Party or any of its Affiliates as a result of (i) the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation or (ii) compliance with any law or regulation made after the date of this Agreement or (iii) the implementation or application of, or compliance with, Basel III, CRD IV or any other law or regulation that implements or applies Basel III or CRD IV (for the avoidance of doubt and without limitation, as amended by CRD V).

 

(b)

In this Agreement:

 

  (i)

Increased Costs means:

 

  (A)

a reduction in the rate of return from a Facility or on a Finance Party’s (or its Affiliate’s) overall capital;

 

  (B)

an additional or increased cost; or

 

  (C)

a reduction of any amount due and payable under any Finance Document,

which is incurred or suffered by a Finance Party or any of its Affiliates to the extent that it is attributable to that Finance Party having entered into its Commitment or funding or performing its obligations under any Finance Document; and

 

  (ii)

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

 

49


  (C)

any further guidance or standards published by the Basel Committee on Banking Supervision relating to “Basel III”.

 

  (iii)

CRD IV means EU CRD IV and UK CRD IV.

 

  (iv)

CRD V means EU CRD V and UK CRD V.

 

  (v)

EU CRD IV means each of (A) Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC and (B) Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012.

 

  (vi)

EU CRD V means:

 

  (A)

Directive (EU) 2019/878 of the European Parliament and of the Council of 20 May 2019 amending Directive 2013/36/EU as regards exempted entities, financial holding companies, mixed financial holding companies, remuneration, supervisory measures and powers and capital conservation measures; and

 

  (B)

Regulation (EU) 2019/876 of the European Parliament and of the Council of 20 May 2019 amending Regulation (EU) No 575/2013 as regards the leverage ratio, the net stable funding ratio, requirements for own funds and eligible liabilities, counterparty credit risk, market risk, exposures to central counterparties, exposures to collective investment undertakings, large exposures, reporting and disclosure requirements, and Regulation (EU) No 648/2012.

 

  (vii)

UK CRD IV means:

 

  (A)

Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012 as it forms part of domestic law of the United Kingdom by virtue of the European Union (Withdrawal) Act 2018 (the Withdrawal Act);

 

  (B)

the law of the United Kingdom or any part of it, which immediately before IP completion day (as defined in the European Union (Withdrawal Agreement) Act 2020) implemented Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC and its implementing measures;

 

  (C)

direct EU legislation (as defined in the Withdrawal Act), which immediately before IP completion day (as defined in the European Union (Withdrawal Agreement) Act 2020) implemented EU CRD IV as it forms part of domestic law of the United Kingdom by virtue of the Withdrawal Act;

 

  (D)

CRR rules as amended, restated or re-enacted, as such term is defined in Article 144A of the Financial Services and Markets Act 2000; and

 

50


  (E)

any replacement of the legislation or rules referred to in paragraphs (A) to (D) above following revocation of the relevant retained EU law in the UK, to the extent that such replacement legislation or rules replicate substantially the effect of the law, rules and policy set out in that legislation or those rules.

 

  (viii)

UK CRD V means:

 

  (A)

the law of the United Kingdom or any part of it, which immediately before IP completion day (as defined in the European Union (Withdrawal Agreement) Act 2020) implemented Directive (EU) 2019/878 of the European Parliament and of the Council of 20 May 2019 amending Directive 2013/36/EU as regards exempted entities, financial holding companies, mixed financial holding companies, remuneration, supervisory measures and powers and capital conservation measures;

 

  (B)

Regulation (EU) 2019/876 of the European Parliament and of the Council of 20 May 2019 amending Regulation (EU) No 575/2013 as regards the leverage ratio, the net stable funding ratio, requirements for own funds and eligible liabilities, counterparty credit risk, market risk, exposures to central counterparties, exposures to collective investment undertakings, large exposures, reporting and disclosure requirements, and Regulation (EU) No 648/20 as each forms part of domestic law of the United Kingdom by virtue of the Withdrawal Act; and

 

  (C)

CRR rules as amended, restated or re-enacted, as such term is defined in Article 144A of the Financial Services and Markets Act 2000, corresponding to provisions of EU CRD V either as determined by reference to PRA documentation published pursuant to Section 5(4) of the Financial Services Act 2021 or, where a particular provision of EU CRD V did not form part of domestic law of the United Kingdom by virtue of the Withdrawal Act, which implement the same Basel III standard as the particular provision of EU CRD V.

 

14.2

Increased cost claims

 

(a)

A Finance Party intending to make a claim pursuant to Clause 14.1 (Increased costs) shall notify the Agent of the event giving rise to the claim, following which the Agent shall promptly notify the Borrower.

 

(b)

Each Finance Party shall, as soon as practicable after a demand by the Agent, provide a certificate confirming the amount of its Increased Costs.

 

14.3

Exceptions

 

(a)

Clause 14.1 (Increased costs) does not apply to the extent any Increased Cost is:

 

  (i)

attributable to a Tax Deduction required by law to be made by the Borrower;

 

  (ii)

attributable to a FATCA Deduction required to be made by a Party;

 

  (iii)

compensated for by Clause 13.3 (Tax indemnity) or would have been compensated for under Clause 13.3 (Tax indemnity) but was not so compensated solely because any of the exclusions in paragraph (b) of Clause 13.3 (Tax indemnity) applied; or

 

  (iv)

attributable to the wilful breach by the relevant Finance Party or its Affiliates of any law or regulation.

 

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(b)

In this Clause 14.3, a reference to a Tax Deduction has the same meaning given to the term in Clause 13.1 (Definitions).

 

15.

OTHER INDEMNITIES

 

15.1

Currency indemnity

 

(a)

If any sum due from the Borrower 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 the Borrower;

 

  (ii)

obtaining or enforcing an order, judgment or award in relation to any litigation or arbitration proceedings,

the Borrower shall as an independent obligation, within three Business Days of demand, indemnify each Finance Party to whom that Sum is due against any cost, loss or liability arising out of or as a result of the conversion including any discrepancy between (A) the rate of exchange used to convert that Sum from the First Currency into the Second Currency and (B) the rate or rates of exchange available to that person at the time of its receipt of that Sum.

 

(b)

The Borrower 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.

 

15.2

Other indemnities

 

(a)

The Borrower shall, within three Business Days of demand, indemnify each Finance Party against any cost, loss or liability incurred by that Finance Party as a result of:

 

  (i)

the occurrence of any Event of Default or Sanctions Event;

 

  (ii)

a failure by the Borrower to pay any amount due under a Finance Document on its due date, including without limitation, any cost, loss or liability arising as a result of Clause 27 (Sharing among the Finance Parties);

 

  (iii)

funding, or making arrangements to fund, its participation in a Loan requested by the Borrower in a Utilisation Request but not made by reason of the operation of any one or more of the provisions of this Agreement (other than by reason of default or negligence by that Finance Party alone); or

 

  (iv)

a Loan (or part of a Loan) not being prepaid in accordance with a notice of prepayment given by the Borrower.

 

(b)

The Borrower shall promptly indemnify each Finance Party, each Affiliate of a Finance Party and each officer or employee of a Finance Party or its Affiliate, against any cost, loss or liability incurred by that Finance Party or its Affiliate (or officer or employee of that Finance Party or Affiliate) in connection with or arising out of the Bid, the Bid Acquisition or the SPA Acquisition or the funding of the Bid, the Bid Acquisition or the SPA Acquisition (including but not limited to those incurred in connection with any litigation, arbitration or administrative proceedings or regulatory enquiry concerning the Bid, the Bid Acquisition or the SPA Acquisition), unless such loss or liability is caused by the gross negligence or wilful misconduct of that Finance Party or its Affiliate (or employee or officer of that Finance Party or Affiliate).

 

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15.3

Indemnity to the Agent

The Borrower shall promptly indemnify the Agent against any cost, loss or liability incurred by the Agent (acting reasonably) as a result of:

 

  (a)

investigating any event which it reasonably believes is a Default or a Sanctions Event;

 

  (b)

acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised; or

 

  (c)

instructing lawyers, accountants, tax advisers, surveyors or other professional advisers or experts as permitted under this Agreement.

 

15.4

Indemnity to the Security Agent

The Borrower shall promptly indemnify the Security Agent against any cost, loss or liability incurred by the Security Agent (acting reasonably) as a result of:

 

  (a)

investigating any event which it reasonably believes is a Default or a Sanctions Event;

 

  (b)

acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised; or

 

  (c)

instructing lawyers, accountants, tax advisers, surveyors or other professional advisers or experts as permitted under this Agreement.

 

15.5

Indemnity to the Issuing Bank

 

(a)

The Borrower shall within five Business Days of demand to be made by the Issuing Bank indemnify the Issuing Bank against any cost, loss or liability incurred by it (otherwise than by reason of the Issuing Bank’s fraud, gross negligence or wilful misconduct) in acting as an Issuing Bank under, or making any payment in respect of, a Bid Certificate issued upon request of the Borrower.

 

(b)

The obligations of the Borrower under this Clause 15.5 will not be affected by any act, omission, matter or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under this Clause (without limitation and whether or not known to it or any other person) including:

 

  (i)

any time, waiver or consent granted to, or composition with, the Borrower, any beneficiary under a Bid Certificate or any other person;

 

  (ii)

the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce (i) any rights against, or (ii) security over assets of, the Borrower, any beneficiary under a Bid Certificate 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 (if any);

 

  (iii)

any incapacity or lack of power, authority or legal personality of or dissolution or change in the shareholders or status of the Borrower, any beneficiary under a Bid Certificate or any other person;

 

  (iv)

any amendment, supplement, extension, restatement (however fundamental and whether or not more onerous) or replacement of a Finance Document, a Bid Certificate or any other document or security including, without limitation, any change in the purpose of, any extension of, or any increase in, the Facilities or the addition of any new facility under any Finance Document or other document;

 

53


  (v)

any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, a Bid Certificate or any other document or security; or

 

  (vi)

any insolvency or similar proceedings.

 

15.6

Bid Certificate Loss Sharing

 

(a)

If the Borrower fails to indemnify or reimburse the Issuing Bank under Clause 15.5 (Indemnity to the Issuing Bank), the Lenders shall make payments (each a Reimbursement Payment) to the Issuing Bank in accordance with this Clause to the extent necessary to ensure that:

 

  (i)

the Total Loss (as defined below) of the Issuing Bank is (to the extent possible in accordance with this Clause) reimbursed in full; and

 

  (ii)

the Total Reimbursed Amount (as defined below) is shared by each Lender in its Relevant Proportion (as defined below).

 

(b)

On receiving notice of any default by the Borrower referred to in paragraph (a) above (from the Issuing Bank or otherwise), the Agent shall notify each Lender promptly of such default.

 

(c)

Within five Business Days of the date of any notice from the Agent referred to in paragraph (b) above (the Default Notice Date), the Issuing Bank shall provide the Lenders with written details of all (if any) amounts owing by the Borrower to it under Clause 15.5 (Indemnity to the Issuing Bank) as at the Default Notice Date, in respect of which it has not been reimbursed, indemnified or repaid by the Borrower or any other Lender (such amount, being the Issuing Bank’s Loss which, for the avoidance of doubt, does not include any loss or liability incurred by the Issuing Bank by reason of its fraud, gross negligence or wilful misconduct).

 

(d)

The calculation of Loss in accordance with paragraph (c) above will be carried out on the Default Notice Date and repeated at monthly intervals following the Default Notice Date (each a Test Date).

 

(e)

Promptly following each Test Date, the Agent shall aggregate the amount of the Issuing Bank’s Loss (the aggregate amount for the Issuing Bank in respect of each Test Date being the Total Loss and the amount of such Total Loss that is reimbursed or required to be reimbursed by the Lenders in USD in accordance with this Clause being the Total Reimbursed Amount).

 

(f)

The Agent shall promptly notify any change in the amount of the Total Loss to each Lender and the Issuing Bank. Subject to paragraph (g) below, each Lender agrees to make Reimbursement Payments to the extent necessary to ensure that:

 

  (i)

the Total Loss of the Issuing Bank is (to the extent possible in accordance with this Clause) reimbursed in full; and

 

  (ii)

the Total Reimbursed Amount is shared by each Lender in the proportion which its Commitment bears to the aggregate Commitments of all the Lenders as at the relevant Test Date (the Relevant Proportion).

 

(g)

Notwithstanding anything to the contrary in this Agreement, the Lenders and the Issuing Bank agree that no Lender will be required to make a Reimbursement Payment under this Clause to the extent that the amount of such Reimbursement Payment would, when aggregated with all other Reimbursement Payments made by that Lender under this Clause and its participation in any Loans that are outstanding, exceed that Lender’s Commitment.

 

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16.

MITIGATION BY THE LENDERS

 

16.1

Mitigation

 

(a)

Each Finance Party shall, in consultation with the Borrower, take all reasonable steps to mitigate any circumstances which arise and which would result in any amount becoming payable under or pursuant to, or cancelled pursuant to, any of Clause 8.1 (Illegality), Clause 13 (Tax Gross Up and Indemnities) or Clause 14 (Increased Costs) including (but not limited to) transferring its rights and obligations under the Finance Documents to another Affiliate or Facility Office.

 

(b)

Paragraph (a) above does not in any way limit the obligations of the Borrower under the Finance Documents.

 

16.2

Limitation of liability

 

(a)

The Borrower shall promptly indemnify each Finance Party for all costs and expenses reasonably incurred by that Finance Party as a result of steps taken by it under Clause 16.1 (Mitigation).

 

(b)

A Finance Party is not obliged to take any steps under Clause 16.1 (Mitigation) if, in the opinion of that Finance Party (acting reasonably), to do so might be prejudicial to it.

 

17.

COSTS AND EXPENSES

 

17.1

Transaction expenses

The Borrower shall promptly on demand pay the Agent, the Security Agent, the Coordinators, the Documentation Agent, the Issuing Bank and the Arranger the amount of all costs and expenses (including legal fees) reasonably incurred by any of them in connection with the negotiation, preparation, printing, execution and syndication of:

 

  (a)

this Agreement and any other documents referred to in this Agreement; and

 

  (b)

any other Finance Documents executed after the date of this Agreement,

in each case whether or not the SPA Acquisition and/or the Bid Acquisition are successfully completed.

 

17.2

Amendment costs

If (a) the Borrower requests an amendment, waiver or consent or (b) an amendment is required pursuant to Clause 28.10 (Change of currency), the Borrower shall, within three Business Days of demand, reimburse the Agent for the amount of all costs and expenses (including legal fees) reasonably incurred by the Agent in responding to, evaluating, negotiating or complying with that request or requirement in each case whether or not the SPA Acquisition and/or the Bid Acquisition is successfully completed.

 

17.3

Enforcement costs

The Borrower shall, within three Business Days of demand, pay to each Finance Party the amount of all costs and expenses (including legal fees) incurred by that Finance Party in connection with the enforcement of, or the preservation of any rights under, any Finance Document.

 

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18.

REPRESENTATIONS

The Borrower makes the representations and warranties set out in this Clause 18 to each Finance Party on the date of this Agreement.

 

18.1

Status

 

(a)

It is a corporation, duly incorporated and validly existing under the law of its jurisdiction of incorporation.

 

(b)

It has the power to own its assets and carry on its business as it is being conducted.

 

18.2

Binding obligations

Subject to any general principles of law limiting its obligations which are specifically referred to in any legal opinion delivered pursuant to Clause 4 (Conditions of Utilisation) and Schedule 2 (Conditions Precedent):

 

  (a)

the obligations expressed to be assumed by it in each Transaction Document are legal, valid, binding and enforceable obligations; and

 

  (b)

(without limiting the generality of paragraph (a) above), each Transaction Security Document to which it is a party creates the security interests which that Transaction Security Document purports to create and those security interests are valid and effective.

 

18.3

Non-conflict with other obligations

The entry into and performance by it of, and the transactions contemplated by, the Transaction Documents to which it is a party do not and will not conflict with:

 

  (a)

any law or regulation applicable to it;

 

  (b)

its constitutional documents; or

 

  (c)

any agreement or instrument binding upon it or any of its assets.

 

18.4

Power and authority

It has the power to enter into, perform and deliver, and has taken all necessary action to authorise its entry into, performance and delivery of, the Transaction Documents to which it is a party and the transactions contemplated by those Transaction Documents.

 

18.5

Validity and admissibility in evidence

 

(a)

All Authorisations required or desirable:

 

  (i)

to enable it lawfully to enter into, exercise its rights and comply with its obligations in the Transaction Documents to which it is a party and in relation to the Bid; and

 

  (ii)

to make the Transaction Documents to which it is a party admissible in evidence in its jurisdiction of incorporation,

have been obtained or effected and are in full force and effect.

 

56


(b)

All Authorisations necessary for the conduct of the business, trade and ordinary activities of members of the Group have been obtained or effected and are in full force and effect.

 

18.6

Governing law and enforcement

 

(a)

The choice of governing law of the Finance Documents will be recognised and enforced in its jurisdiction of incorporation.

 

(b)

Any judgment obtained in relation to a Finance Document in the jurisdiction of the governing law of that Finance Document will be recognised and enforced in its jurisdiction of incorporation.

 

18.7

Deduction of Tax

It is not required to make any Tax Deduction (as defined in Clause 13.1 (Definitions)) from any payment it may make under any Finance Document to a Lender.

 

18.8

No filing or stamp taxes

Under the law of its jurisdiction of incorporation it is not necessary that the Finance Documents be filed, recorded or enrolled with any court or other authority in that jurisdiction or that any stamp, registration or similar tax be paid on or in relation to the Finance Documents or the transactions contemplated by the Finance Documents other than a documentary duty of EUR 0.15 payable in relation to each original copy of a Finance Document if signed or registered in Belgium or, as the case may be, stamp duty of up to EUR 100 that is payable in relation to any Belgian notarial deed.

 

18.9

No default

 

(a)

No Event of Default and, on the date of this Agreement, the SPA Closing Date and the Bid Closing Date, no Default is continuing or might reasonably be expected to result from the making of any Loan.

 

(b)

No other event or circumstance is outstanding which constitutes a default under any other agreement or instrument which is binding on it or to which its assets are subject and which might have a Material Adverse Effect.

 

18.10

No misleading information

Save as disclosed in writing to the Agent and the Arranger prior to the date of this Agreement:

 

  (a)

any written factual information contained in the Information Package was true and accurate in all material respects as at the date of the relevant report or document containing the information or (as the case may be) as at the date the information is expressed to be given;

 

  (b)

the Financial Information Package has been prepared in accordance with the accounting principles as applied to the Original Financial Statements, and the financial projections contained in the Financial Information Package have been prepared on the basis of recent historical information, are fair and based on reasonable assumptions and have been approved by the board of directors of the Borrower;

 

  (c)

any financial projection or forecast contained in the Information Package has been prepared on the basis of recent historical information and on the basis of reasonable assumptions and was fair (as at the date of the relevant report or document containing the projection or forecast) and arrived at after careful consideration;

 

57


  (d)

the expressions of opinion or intention provided by or on behalf of the Borrower for the purposes of the Information Package were made after careful consideration and (as at the date of the relevant report or document containing the expression of opinion or intention) were fair and based on reasonable grounds;

 

  (e)

no event or circumstance has occurred or arisen and no information has been omitted from the Information Package and no information has been given or withheld that results in the information, opinions, intentions, forecasts or projections contained in the Information Package being untrue or misleading in any material respect;

 

  (f)

all information provided to a Finance Party by or on behalf of the Borrower in connection with the Bid, the Bid Acquisition and the SPA Acquisition on or before the date of this Agreement and not superseded before that date (whether or not contained in the Information Package) is accurate and not misleading in any material respect and all projections provided to any Finance Party on or before the date of this Agreement have been prepared in good faith on the basis of assumptions which were reasonable at the time at which they were prepared and supplied; and

 

  (g)

all other written information provided by the Borrower (including its advisers) to a Finance Party was true, complete and accurate in all material respects as at the date it was provided and is not misleading in any respect.

 

18.11

Centre of main interests

For the purposes of Regulation (EU) 2015/848 of 20 May 2015 on insolvency proceedings (recast) (the Regulation), its centre of main interest (as that term is used in Article 3(1) of the Regulation) is situated in its jurisdiction of incorporation.

 

18.12

Financial statements

 

(a)

Its Original Financial Statements were prepared in accordance with GAAP consistently applied.

 

(b)

Its Original Financial Statements fairly present its consolidated financial condition as at the end of the relevant financial year and its results of operations during the relevant financial year.

 

(c)

There has been no material adverse change in the business or financial condition of the Group since the date of the Original Financial Statements.

 

18.13

Pari passu ranking

Its payment obligations under the Finance Documents rank at least pari passu with the claims of all its other unsecured and unsubordinated creditors, except for obligations mandatorily preferred by law applying to companies generally.

 

18.14

No proceedings

 

(a)

No litigation, arbitration or administrative proceedings of or before any court, arbitral body or agency which, if adversely determined, might reasonably be expected to have a Material Adverse Effect has or have (to the best of its knowledge and belief) been started or threatened against it or any of its Subsidiaries.

 

(b)

No judgment or order of a court, arbitral body or agency which might reasonably be expected to have a Material Adverse Effect has (to the best of its knowledge and belief) been made against it or any of its Subsidiaries.

 

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18.15

Acquisition Documents, A-Fleet Acquisition Agreement, disclosures and other documents

 

(a)

The Acquisition Documents contain all the terms of the SPA Acquisition.

 

(b)

The A-Fleet Acquisition Agreement contains all terms of the A-Fleet Acquisition.

 

(c)

There is no disclosure made to the Acquisition Documents or the A-Fleet Acquisition Agreement which has or may have a material adverse effect on any of the information, opinions, intentions, forecasts and projections contained or referred to in the Information Package.

 

(d)

To the best of its knowledge no representation or warranty given by any party to the Acquisition Documents or the A-Fleet Acquisition Agreement is untrue or misleading in any material respect.

 

18.16

Transaction Security

 

(a)

The Transaction Security has or will have first ranking priority and it is not subject to any prior ranking or pari passu ranking Security (upon release of the Security granted under the Existing Security Documents).

 

(b)

The Target Shares which are subject to the Transaction Security are fully paid and not subject to any option to purchase or similar rights. The constitutional documents of the Target do not and could not restrict or inhibit any transfer of those shares on creation or enforcement of the Transaction Security.

 

18.17

Anti-bribery, anti-corruption and anti-money laundering

No member of the Group or the Target Group nor any of their directors or officers or, to the knowledge of a member of the Group or the Target Group, any of their affiliate, agent or employee, has engaged in any activity or conduct which would violate any applicable anti-bribery, anti-corruption or anti-money laundering laws or regulations in any applicable jurisdiction and each member of the Group and the Target Group has instituted and maintains policies and procedures designed to prevent violation of such laws, regulations and rules.

 

18.18

Sanctions

No Sanctions Relevant Person is an individual or entity, that is or is directly or indirectly owned or controlled or acting on behalf of, at the direction of or for the benefit of (all as defined by the relevant Sanctions) by a Sanctions Relevant Person that is: (i) the subject or target of any Sanctions or listed on any list of designated persons in application of Sanctions (a Sanctioned Person), (ii) located, organised or resident in a country or territory that is, or whose government is, the target or subject of Sanctions broadly prohibiting dealings with such government, country, or territory (a Sanctioned Country) or (iii) in breach of Sanctions.

 

18.19

DAC6

No transaction contemplated by the Finance Documents nor any transaction to be carried out in connection with any transaction contemplated by the Finance Documents meets any hallmark set out in Annex IV of DAC6 or any applicable national implementing legislation thereof.

 

18.20

No outstanding tax debt

 

(a)

No member of the Group is materially overdue in the filing of any Tax returns and no member of the Group is overdue in the payment of any amount in respect of Tax unless and only to the extent that such payment is (i) being contested in good faith by appropriate proceedings and for which adequate reserves have been established in accordance with generally accepted accounting principles which

 

59


have been disclosed in its latest financial statements delivered to the Agent under Clause 19.1 (Financial statements) to the extent required under the applicable accounting principles, (ii) not yet due and payable or not yet subject to penalties for non-payment, or (iii) incurred in the ordinary course of business and does not materially impair the Borrower’s ability to perform its obligations under the Finance Documents.

 

(b)

It is resident for Tax purposes in Belgium and is not acting through any establishment it may have in any other jurisdiction for the purposes of this Agreement.

 

18.21

Pledged Target Shares

 

(a)

The Pledged Target Shares:

 

  (i)

are admitted to trading on the relevant stock exchange or securities market on which the Target Shares are publicly traded and constitute either Pledged Target Shares – DTC or Pledged Target Shares – Euroclear;

 

  (ii)

are fully paid and no moneys or liabilities are outstanding or payable in respect of any of them; and

 

  (iii)

have been duly authorised and validly issued.

 

(b)

The Pledged Target Shares are not subject to any Transfer Restrictions other than the Existing Transfer Restrictions.

 

(c)

All Pledged Target Shares – DTC are and will remain registered in the name of DTC or its nominee, maintained in book-entry form on the books of DTC, allowed to be settled through DTC’s regular book entry settlement services and identified by an unrestricted CUSIP; provided that the Borrower may reposition Pledged Target Shares – DTC into Pledged Target Shares – Euroclear if so requested by the Agent, pursuant to Clause 20.21 (Repositioning).

 

(d)

All Pledged Target Shares – Euroclear are and will remain registered in the name of Euroclear, maintained in book-entry form on the books of Euroclear and allowed to be settled through Euroclear’s regular book entry settlement services.

 

(e)

The Borrower purchased and paid for the Pledged Target Shares – Existing in a series of transactions in the amounts and on the dates specified in the Overview of Share Transactions on or prior to December 12, 2022. The Borrower’s “holding period” under Rule 144(d) with respect to the Pledged Target Shares acquired after the date of this Agreement under the SPA Acquisition and the Bid Acquisition will commence, respectively upon closing of the SPA Acquisition and upon settlement of the tender offer in connection with the Bid Acquisition.

 

(f)

No:

 

  (i)

notification by the Borrower or any of its Affiliates (other than pursuant to their obligations, as applicable, under Section 13(d) under the Exchange Act and/or the Belgian law of 2 May 2007 on disclosure of major holdings in issuers whose shares are admitted to trading on a regulated market and laying down miscellaneous provisions (as amended from time to time) or any reporting requirements of the Target under Section 13(a) under the Exchange Act) to or approval from any stock exchange, regulatory authority or similar body or any other person is or will be required;

 

  (ii)

breach by the Borrower or of its Affiliates of the relevant Listing Rules for the relevant exchange for the admission and operations of the regulated market and any other rules or regulations required for the admission of securities to such exchange, including, without limitation, the Securities Act and the rules and regulations thereunder or any other similar law or regulation has or would occur;

 

60


  (iii)

clearance to deal under the relevant Listing Rules or any other similar law or regulation is or will be required by the Borrower or any of its Affiliates; or

 

  (iv)

mandatory offer or bid will be required to be made by a Lender or any transferee as purchaser of shares,

as a result of:

 

  (A)

Pledged Target Shares being subject to Security created by the Finance Documents; or

 

  (B)

the enforcement of a Security Document relating to the Pledged Target Shares or the Security created thereby or any appropriation or transfer of all or any part of the Pledged Target Shares, in each case, by or to a Lender, the Security Agent or any other person, provided that such Lender, the Security Agent or such other person does not hold any other Pledged Target Shares or otherwise have any connection to Target Shares, as applicable, at that time and the Security Agent or such other person is not subject to any relevant additional regulatory regime other than in the United States.

 

(g)

The total number of Target Shares held by the Borrower, as at the date of this Agreement is 50,425,600.

 

18.22

Certain US securities law matters

 

(a)

Each Loan is entered into by the Borrower in good faith and at arm’s length and is a bona fide loan.

 

(b)

No Loan is entered into with an expectation that the Borrower would default in its obligations with respect thereto.

 

(c)

The Transaction Security is a bona fide Security to secure the obligations of the Borrower under the Finance Documents, which obligations provide for full recourse to the Borrower, and is not entered into by the Borrower with the intent of facilitating a disposition of any Pledged Target Shares, whether directly or indirectly.

 

(d)

The Borrower agrees that the Pledged Target Shares are bona fide pledged not “without recourse” within the meaning of Rule 144(d)(3)(iv).

 

18.23

U.S. Investment Company Act status

The Borrower is not required to be registered as an “investment company” within the meaning of the Investment Company Act of 1940.

 

18.24

U.S. margin regulations

The Borrower is not engaged, directly or indirectly, in the business of extending credit for the purpose of purchasing or carrying Margin Stock. Neither the borrowing hereunder, nor the use of the proceeds thereof, will violate the provisions of the Margin Regulations.

 

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18.25

U.S. beneficial ownership reporting

The Borrower has complied in all material respects with any beneficial ownership reporting obligations under Section 13 of the Exchange Act and requirements under 31 C.F.R. § 1010.230 (including the delivery relevant certifications, if applicable).

 

18.26

Repetition

The Repeating Representations are deemed to be made by the Borrower by reference to the facts and circumstances then existing on:

 

  (a)

the date of each Utilisation Request and the first day of each Interest Period;

 

  (b)

the date of each Extension Request;

 

  (c)

the date of a Bid Certificate Request; and

 

  (d)

the Original Termination Date subject to the Extension being exercised,

in each case except that those contained in paragraphs (a) and (b) of Clause 18.12 (Financial statements) will, once subsequent financial statements have been delivered under this Agreement, be deemed to relate to those subsequently delivered financial statements.

 

19.

INFORMATION UNDERTAKINGS

The undertakings in this Clause 19 remain in force from the date of this Agreement for so long as any amount is outstanding under the Finance Documents or any Commitment is in force.

 

19.1

Financial statements

The Borrower shall supply to the Agent in sufficient copies for all the Lenders as soon as the same become available, but in any event:

 

  (a)

within 120 days after the end of each of its financial years:

 

  (i)

its audited consolidated annual financial statements for that financial year; and

 

  (ii)

its audited individual financial statements for that financial year;

 

  (b)

within 90 days after the end of the first half of each of its financial year:

 

  (i)

its audited (based on a limited review) consolidated financial statements for that financial half year; and

 

  (ii)

its unaudited individual financial statements for that financial half year.

 

19.2

Requirements as to financial statements

 

(a)

Each set of financial statements delivered by the Borrower pursuant to paragraph (b)(ii) of Clause 19.1 (Financial statements) shall be certified by the chief financial officer of the Borrower as fairly presenting its financial condition as at the date as at which those financial statements were drawn up and include a computation (in reasonable detail) as to the compliance with Clause 20.9 (Financial covenants) certified by the chief financial officer of the Borrower.

 

62


(b)

The Borrower shall procure that each set of financial statements delivered pursuant to Clause 19.1 (Financial statements) is prepared using GAAP, accounting practices and financial reference periods consistent with those applied in the preparation of the Original Financial Statements unless, in relation to any set of financial statements, it notifies the Agent that there has been a change in GAAP, the accounting practices or reference periods and its auditors deliver to the Agent:

 

  (i)

a description of any change necessary for those financial statements to reflect the GAAP, accounting practices and reference periods upon which the Original Financial Statements were prepared; and

 

  (ii)

sufficient information, in form and substance as may be reasonably required by the Agent, to enable the Lenders to make an accurate comparison between the financial position indicated in those financial statements and the Original Financial Statements.

Any reference in this Agreement to those financial statements shall be construed as a reference to those financial statements as adjusted to reflect the basis upon which the Original Financial Statements were prepared.

 

19.3

Information: miscellaneous

The Borrower shall supply to the Agent (in sufficient copies for all the Lenders, if the Agent so requests):

 

  (a)

all documents dispatched by the Borrower to its shareholders (or any class of them) or its creditors generally at the same time as they are dispatched;

 

  (b)

within 60 days after the end of each quarter of each of the Borrower’s financial years for as long as the Permitted CMB.TECH Sale has not occurred, an updated spreadsheet substantially in the form set out in Schedule 14 (Form of CMB.TECH valuation) and otherwise acceptable to the Agent with details of the net asset value of CMB.TECH Shares as at the last day of such quarter and calculated using a method acceptable to the Agent and accounting for the most recent market valuations of any assets of CMB.TECH NV and any outstanding debt of CMB.TECH NV;

 

  (c)

promptly upon payment of each vessel sale under an MoA, evidence that such payment has occurred in accordance with the relevant MoA;

 

  (d)

promptly upon becoming aware of them, the details of any material litigation, arbitration or administrative proceedings which are current, threatened or pending against any member of the Group or the Target Group;

 

  (e)

promptly upon becoming aware of them, the details of any judgment or order of a court, arbitral body or agency which is made against any member of the Group or the Target Group, and which might have a Material Adverse Effect;

 

  (f)

promptly upon becoming aware of the relevant claim, the details of any claim which is current, threatened or pending against the vendors under the Acquisition Documents or any other person in respect of the Acquisition Documents; and

 

  (g)

promptly, such further information regarding the financial condition, business and operations of any member of the Group as any Finance Party (through the Agent) may reasonably request provided that if the information relates to the Target or a Subsidiary of the Target such information shall only be made available to the Lenders to the extent it is not prohibited by any mandatory laws and regulations.

 

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19.4

Notification of default or Sanctions event

 

(a)

The Borrower shall notify the Agent of any Default and/or Sanctions Event (and the steps, if any, being taken to remedy it) promptly upon becoming aware of its occurrence.

 

(b)

Promptly upon a request by the Agent, the Borrower shall supply to the Agent a certificate signed by two of its directors or senior officers on its behalf certifying that no Default and/or Sanctions Event is continuing (or if a Default and/or Sanctions Event is continuing, specifying the Default and/or Sanctions Event and the steps, if any, being taken to remedy it).

 

19.5

Direct electronic delivery by Borrower

The Borrower may satisfy its obligation under this Agreement to deliver any information in relation to a Lender by delivering that information directly to that Lender in accordance with Clause 30.6 (Electronic communication) to the extent that Lender and the Agent agree to this method of delivery.

 

19.6

“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;

 

  (ii)

any change in the status of the Borrower after the date of this Agreement; or

 

  (iii)

a proposed transfer by a Lender of any of its rights and obligations under this Agreement to a party that is not a Lender prior to such transfer,

obliges the Agent or any Lender (or, in the case of paragraph (iii) above, any prospective new Lender) to comply with “know your customer” or similar identification procedures in circumstances where the necessary information is not already available to it, the Borrower shall promptly upon the request of the Agent or any Lender supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Agent (for itself or on behalf of any Lender) or any Lender (for itself or, in the case of the event described in paragraph (iii) above, on behalf of any prospective new Lender) in order for the Agent, such Lender or, in the case of the event described in paragraph (iii) above, any prospective new Lender to carry out and be satisfied it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in the Finance Documents.

 

(b)

Each Lender shall promptly upon the request of the Agent supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Agent (for itself) in order for the Agent to carry out and be satisfied it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in the Finance Documents.

 

19.7

Provision of Material Non-Public Information

 

(a)

Neither the Borrower nor its Representative shall provide any Finance Party with any Material Non-Public Information in any document or notice required to be delivered pursuant to this Agreement or any other Finance Document or in any communication connected with this Agreement or any other Finance Document (each a Communication) without: (i) first notifying such Finance Party in writing that the Communication that it is about to deliver contains Material Non-Public Information; and (ii) the relevant Finance Party having confirmed that it wishes to receive such information and instructed the Borrower or their agent of the person to whom such information shall be delivered.

 

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(b)

If a Finance Party has refused to receive such Material Non-Public Information (directly by notice to the Borrower or their agent or by notice to the Agent) or a Finance Party has not provided such notification, the Borrower or their Representative shall only deliver the Communication to the extent that it does not contain Material Non-Public Information, in which event that the Borrower or their Representative shall not be deemed to have breached this Agreement or any other Finance Document.

 

20.

GENERAL UNDERTAKINGS

The undertakings in this Clause 20 remain in force from the date of this Agreement for so long as any amount is outstanding under the Finance Documents or any Commitment is in force.

 

20.1

Authorisations

The Borrower shall promptly:

 

  (a)

obtain, comply with and do all that is necessary to maintain in full force and effect; and

 

  (b)

supply certified copies to the Agent of,

any Authorisation required under any law or regulation of its jurisdiction of incorporation to enable it to perform its obligations under the Bid Acquisition, the SPA Acquisition, the Finance Documents and the Acquisition Documents and to ensure the legality, validity, enforceability or admissibility in evidence in its jurisdiction of incorporation of any Finance Document or the Acquisition Documents.

 

20.2

Compliance with laws

The Borrower shall comply in all material respects with all laws (including any Environmental Law) to which it may be subject.

 

20.3

Foreign Private Issuer Status

To the Borrower’s knowledge based on the Target’s most recent Annual Report on Form 20-F and without any independent investigation that the Target meets the requirements to qualify as a foreign private issuer (as defined in 17 C.F.R. §240.3b-4(c)), and the Borrower will use its commercially reasonable efforts to cause the Target to maintain such foreign private issuer status.

 

20.4

Pari passu ranking

The Borrower shall ensure that at all times any unsecured and unsubordinated claims of a Finance Party against it under the Finance Documents rank at least pari passu with the claims of all its other unsecured and unsubordinated creditors except those creditors whose claims are mandatorily preferred by laws of general application to companies.

 

20.5

Financial Indebtedness

 

(a)

Except as permitted under paragraph (b) below, the Borrower will not incur or allow to remain outstanding any Financial Indebtedness.

 

(b)

Paragraph (a) above does not apply to:

 

  (i)

as long as the Permitted Trigger is not met, (A) any Financial Indebtedness outstanding under this Agreement, (B) any Financial Indebtedness outstanding under the Existing Margin Loan Facilities Agreement until and including the SPA Closing Date, (C) any existing and new Financial Indebtedness for assets and investments included in the CMB Cashflow Forecast for the period until the end of 2024 and (D) any other drawn Financial Indebtedness related to new projects and/or capex (which is not included in the CMB Cashflow Forecast) the aggregate outstanding amount of which does not exceed USD 125,000,000 at any time; and

 

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  (ii)

as from the moment the Permitted Trigger is met, and if (A) the Borrower is in compliance with the financial covenants set out in Clause 20.9 (Financial covenants), (B) no breach of financial covenants set out in Clause 20.9 (Financial covenants) has occurred as a result of the incurrence of such Financial Indebtedness and (C) neither the Borrower nor any other member of the Group is obliged to maintain or create any security interest over any Target Shares as security for its obligations in respect of such Financial Indebtedness.

 

20.6

Merger

 

(a)

Except as permitted under paragraph (b) below, the Borrower may not enter into any amalgamation, demerger, merger or corporate reconstruction.

 

(b)

Paragraph (a) above does not apply to any merger with the Borrower provided that

 

  (i)

the Borrower is the surviving entity;

 

  (ii)

such merger would not result in a Borrower Change of Control;

 

  (iii)

no Default is continuing or would occur as a result of such merger; and

 

  (iv)

such merger can reasonably be expected to not be materially adverse to the interests of the Lenders (taken as a whole)

 

20.7

Insurance

 

(a)

The Borrower will maintain insurances on and in relation to its business and assets against those risks and to the extent as is usual for companies carrying on the same or substantially similar business.

 

(b)

All insurances must be with reputable independent insurance companies or underwriters.

 

20.8

Change of business

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, unless approved by all Lenders, such approval not to be unreasonably withheld.

 

20.9

Financial covenants

 

(a)

The Borrower will ensure that the consolidated financial position of the Group (which for this Clause 20.9 will include, as from the SPA Closing Date, the financial position of the Target Group) shall at all times during the lifetime of the Facilities be such that:

 

  (i)

Cash is not less than USD 20,000,000;

 

  (ii)

the ratio of Net Funded Debt to Total Capitalisation is not more than 70 percent;

 

  (iii)

the aggregate of Cash and Cash Equivalents is not less than the aggregate of:

 

  (A)

USD 700,000 multiplied by the aggregate of:

 

  I.

the number of vessels owned by members of the Group; and

 

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  II.

the number of vessels (other than the vessels referred to in paragraph (a)(iii)(A) I above) time chartered or bareboat chartered to any member of the Group for a period of 6 months or more (inclusive of any optional extensions); and

 

  (B)

the Dollar equivalent of EUR 45,000 multiplied by the aggregate of:

 

  I.

the number of crew transfer vessels owned by members of the Group; and

 

  II.

the number of crew transfer vessels (other than the crew transfer vessels referred to in paragraph (a)(iii)(B) I above) time chartered or bareboat chartered to any member of the Group for a period of 6 months or more (inclusive of any optional extensions); and

 

  (iv)

Stockholders’ Equity is not less than USD 375,000,000.

 

(b)

In this Clause 20.9:

Cash means, at any date of determination under this Agreement, the aggregate value of the Group’s credit balances on any deposit, savings or current account and cash in hand but excluding any such credit balances and cash subject to a Security Interest at any time (the Relevant Cash Amounts) and where any Relevant Cash Amounts are of a subsidiary of the Borrower, the value of Relevant Cash Amounts in respect of each such subsidiary for the purposes of calculating the value of Cash shall be the value of the Relevant Cash Amounts of that subsidiary multiplied by the percentage direct or indirect shareholding of the Borrower in that subsidiary.

Cash Equivalents means, at any date of determination under this Agreement, the aggregate value of the Group’s:

 

  (a)

certificates of deposit of, or time deposits or overnight bank deposits with, any Lender or any commercial bank whose short-term securities are rated at least A-2 by Standard and Poor’s Rating Group and P-3 by Moody’s Investor Services, Inc. having maturities of 12 months or less from the date of acquisition;

 

  (b)

commercial paper of, or money market accounts or funds with or issued by, any Lender or by an issuer rated at least A-2 by Standard & Poor’s Ratings Group and P-3 by Moody’s Investor Services, Inc. and having an original tenor of 12 months or less;

 

  (c)

medium term fixed or floating rate notes of any Lender or an issuer rated at least AA by Standard & Poor’s Rating Group and/or Aa3 by Moody’s Investor Services, Inc. at the time of acquisition and having a remaining term of 12 months or less from the date of acquisition; and

 

  (d)

undrawn amounts under this Agreement and other committed, available credit facilities having remaining maturities of more than 6 months which are available for borrowing by members of the Group,

but excluding any of those assets subject to a Security Interest at any time, provided that paragraphs (a), (b) and (c) shall include any such certificates of deposit, commercial paper or notes with or issued by (as the case may be) a bank or financial institution or issuer, as the case may be, which, in the reasonable opinion of the Borrower, has a similar credit quality to the rating required by Standard & Poor’s Rating Group and Moody’s Investor Services, Inc. as referred to in the relevant paragraph.

 

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Excluded Funded Debt means the lower of:

 

  (a)

USD75,000,000; and

 

  (b)

the aggregate amount of:

 

  (i)

unsecured non-interest bearing loans; or

 

  (ii)

unsecured loans with a tenor of not more than 12 months,

that form a part of Funded Debt.

Funded Debt means, at any date of determination under this Agreement, the aggregate amount of the Financial Indebtedness of the Group determined on a consolidated basis in accordance with IFRS and as shown in the Latest Balance Sheet provided that Financial Indebtedness shall, for the purpose of this financial covenant, mean:

 

  (a)

subject to paragraph (b), a liability to a party which is not a member of the Group falling within paragraphs (a), (b), (c), (d) or (f) of Financial Indebtedness and including the principal outstanding amount of the Loan at the date of determination;

 

  (b)

but excluding trade payables, expenses incurred in the ordinary course of business, obligations under any master agreement, pension liabilities, and any charter-in obligations to the extent that any such amounts would otherwise be included in paragraph (a) above.

Latest Balance Sheet means, at any date, the consolidated balance sheet of the Group most recently delivered to the Agent pursuant to Clause 19.1 (Financial statements) and/or most recently made publicly available.

Net Funded Debt means Funded Debt less the sum of:

 

  (a)

Excluded Funded Debt;

 

  (b)

Cash; and

 

  (c)

Cash Equivalents (excluding undrawn amounts under this Agreement and other committed, available credit facilities having remaining maturities of more than 6 months which are available for borrowing by members of the Group).

Stockholders’ Equity means, at any date of determination under this Agreement, the amount of the capital and reserves of the Group determined on a consolidated basis in accordance with IFRS and as shown in the Latest Balance Sheet.

Total Capitalisation means the sum of Net Funded Debt and Stockholders’ Equity.

 

20.10

Distributions to shareholders

 

(a)

Except as permitted under paragraph (b) below, the Borrower may not:

 

  (i)

declare, make or pay any dividend, charge, fee (including any management fees to the Permitted Holders) 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 any class of its share capital);

 

  (ii)

repay or distribute any dividend or share premium reserve; and

 

  (iii)

redeem, repurchase, defease, retire or repay any of its share capital or resolve to do so, except with the prior written consent of all Lenders.

 

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(b)

Paragraph (a) above does not apply to:

 

  (i)

as long as the Permitted Trigger is not met, (A) any action mentioned in paragraph (a) above so long the aggregate of such payments does not exceed USD 10,000,000 over the lifetime of this Agreement and (B) management fees for an amount up to USD 10,000,000 over the lifetime of this Agreement; and

 

  (ii)

as from the moment the Permitted Trigger is met, any action mentioned in paragraph (a) above provided that (A) no Default or Event of Default has occurred and which has not been waived or remedied or would result upon payment of the proposed dividend or distribution and no breach of financial covenants set out in Clause 20.9 (Financial covenants) would occur and (B) immediately following the payment of the proposed dividend or distribution on the date of such payment, the aggregate of Cash and Cash Equivalents shall not be less than the aggregate of USD 775,000 multiplied by: (i) the number of vessels owned by members of the Group and (ii) the number of vessels (other than the vessels referred to in (B)(i) above) time chartered or bareboat chartered to any member of the Group for a period of 6 months or more (inclusive of any optional extensions).

 

20.11

Sanctions

 

(a)

The Borrower will not (and shall ensure that no Sanctions Relevant Person will), directly or indirectly, use the proceeds of the loans hereunder, or lend, contribute or otherwise make available such proceeds to any person, (i) to fund any activities or business of or with any Person, or in any country, region or territory, that, at the time of such funding, is, a Sanctioned Person or Sanctioned Country, or (ii) in any other manner that would result in a violation of Sanctions by any Person (including any Person participating in the Facility hereunder).

 

(b)

The Borrower shall not (and shall ensure that no Sanctions Relevant Person shall) use any revenue, proceeds or benefit derived from any activity or dealing with a Sanctioned Person or a Person located, organised or resident in a Sanctioned Country in discharging any obligation due or owing to the Finance Parties.

 

(c)

The Borrower shall (and shall ensure that each Sanctions Relevant Person will) comply in all respects with Sanctions and shall ensure that appropriate controls and safeguards are in place designed to prevent any action being taken that would be contrary to the paragraphs of this Clause.

 

20.12

Anti-corruption law

 

(a)

The Borrower shall not, and shall ensure that none of its Subsidiaries or any member of the Target Group will, directly or indirectly use the proceeds of a Loan for any purpose which would breach any applicable anti-bribery, anti-corruption or anti-money laundering laws, rules or regulations.

 

(b)

The Borrower shall (and shall ensure that each of its Subsidiaries and each member of the Target Group will):

 

  (i)

conduct its businesses in compliance with applicable anti-bribery, anti-corruption and anti-money laundering laws, rules and regulations; and

 

  (ii)

maintain policies and procedures designed to promote and achieve compliance with such laws, rules and regulations.

 

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20.13

Financial assistance

The Borrower will comply in all respects with the provisions of the Belgian Code of Companies and Associations relating to financial assistance in relation to the payment of amounts due under this Agreement.

 

20.14

Acquisitions

 

(a)

Except as permitted under paragraph (b) below, the Borrower will not:

 

  (i)

acquire a company or any shares or securities or a business or undertaking (or, in each case, any interest in any of them); or

 

  (ii)

incorporate a company.

 

(b)

Paragraph (a) does not apply to:

 

  (i)

the SPA Acquisition;

 

  (ii)

the Bid Acquisition; or

 

  (iii)

any acquisition in the ordinary course of trading.

 

20.15

Loans or credit

 

(a)

Except as permitted under paragraph (b) below, the Borrower will not be a creditor in respect of any Financial Indebtedness as long as the Permitted Trigger is not met.

 

(b)

Paragraph (a) above does not apply to any loan made to a member of the Group:

 

  (i)

for assets and investments included in the CMB Cashflow Forecast for the period until the end of 2024; and

 

  (ii)

for new projects and/or capex (not included in the CMB Cashflow Forecast) so long as the aggregate amount of the Financial Indebtedness incurred under those loans does not exceed USD 125,000,000 over the lifetime of this Agreement.

 

20.16

Further assurance

 

(a)

The Borrower shall promptly do all such acts or execute all such documents (including assignments, transfers, mortgages, charges, notices and instructions) as the Security Agent may reasonably specify (and in such form as the Security Agent may reasonably require in favour of the Security Agent or its nominee(s)):

 

  (i)

to perfect the Security created or intended to be created under or evidenced by the Transaction Security Documents (which may include the execution of a mortgage, charge, assignment or other Security over all or any of the assets which are, or are intended to be, the subject of the Transaction Security) or for the exercise of any rights, powers and remedies of the Security Agent or the Finance Parties provided by or pursuant to the Finance Documents or by law;

 

  (ii)

to confer on the Security Agent or confer on the Finance Parties Security over any property and assets of the Borrower located in any jurisdiction equivalent or similar to the Security intended to be conferred by or pursuant to the Transaction Security Documents; and/or

 

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  (iii)

to facilitate the realisation of the assets which are, or are intended to be, the subject of the Transaction Security.

 

(b)

The Borrower shall take all such action as is available to it (including making all filings and registrations) as may be necessary for the purpose of the creation, perfection, protection or maintenance of any Security conferred or intended to be conferred on the Security Agent or the Finance Parties by or pursuant to the Finance Documents.

 

20.17

No guarantees or indemnities

 

(a)

Except as permitted under paragraph (b) below, the Borrower shall not incur or allow to remain outstanding any guarantee in respect of any obligation of any person, as long as the Permitted Trigger is not met.

 

(b)

Paragraph (a) above does not apply to:

 

  (i)

any guarantee made for assets and investments included in the CMB Cashflow Forecast for the period until the end of 2024;

 

  (ii)

any guarantee in respect of any obligation of a member of the Group incurred for new projects and/or capex (not included in the CMB Cashflow Forecast) so long as the aggregate amount of the Financial Indebtedness incurred under those guarantees does not exceed USD 320,000,000 over the lifetime of this Agreement; and

 

  (iii)

any guarantee made in the ordinary course of trading so long as the aggregate amount of the Financial Indebtedness incurred under those guarantees does not exceed USD 10,000,000 at any time.

 

20.18

U.S. margin regulations

Neither the borrowing hereunder, nor the use of the proceeds thereof, will violate the provisions of the Margin Regulations. The Borrower is not engaged and will not engage in extending credit for the purpose of carrying Margin Stock.

 

20.19

Regulation S

Following the occurrence of any Event of Default, none of the Borrower nor its Affiliates or any person acting on its or their behalf will engage in any directed selling efforts, as defined in Regulation S under the Securities Act, with respect to any of the Pledged Target Shares.

 

20.20

Bid covenants

The Borrower shall:

 

  (a)

from time to time, keep the Agent informed about any material changes in the status and progress of the Bid;

 

  (b)

except with the prior written consent of all Lenders (not to be unreasonably withheld, delayed or conditioned and which consent shall be deemed to have been given if no reply to the contrary is received within five Business Days of such request for consent), not issue any press release or make any statement or announcement which makes reference to:

 

  (i)

any Facility;

 

  (ii)

any Finance Party in connection with the Finance Documents;

 

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  (iii)

any Finance Document,

unless it is contained in an amendment to the Borrower’s Schedule 14D or in its Schedule TO filed with the SEC in respect of the Bid or otherwise required by law, regulation or a competent regulatory authority, provided that a press release, statement or announcement referring to the certain funds shall only be issued if that announcement is substantially consistent with the terms and conditions of the Prospectus, or, to the extent not in a form substantially consistent with the terms and conditions of the Prospectus in relation to the financing of the Bid, in the form agreed with all Lenders;

 

  (c)

not amend or waive or not enforce any other material term or condition of the Bid in a way which would reasonably be expected to be materially adverse to the interests of the Lenders (taken as a whole) unless required by applicable law;

 

  (d)

not increase (or act that may result in an increase) the cash consideration to be paid in respect of the Target Outstanding Shares to an amount in excess of the Maximum Bid Price without the prior written consent of all Lenders unless required by applicable law;

 

  (e)

ensure that the making and conclusion of the Bid and the Bid Acquisition complies in all material respects with all applicable laws and regulations including, without limitation, including the Public Take-Over Law, the Public Take-Over Royal Decree and the European Market Abuse Regulation (596/2014) or with any derogations thereof granted by the FSMA pursuant to the FSMA Letter or otherwise; and

 

  (f)

lever its controlling voting power as shareholder of the Target to the fullest extent to:

 

  (i)

as soon as practically possible following the Bid Closing Date, take all required corporate resolutions and execution steps so as to upstream cash from the Target towards the Borrower in accordance with the options set out in the Structure Memorandum, in form and substance satisfactory to the Lenders; and

 

  (ii)

ensure that the Bid Closing Date is compatible with a sizeable cash upstreaming occurring during the same calendar quarter and postpone or delay the Bid Closing Date to ensure that such date does not occur in the last 10 days prior to the last day of the relevant calendar quarter in which such sizeable cash upstreaming occurs; and

 

  (iii)

as from the SPA Closing Date, refrain from any major new investment or acquisition (other than a Permitted CMB.TECH Sale) to be made by the Target and in general use its best efforts to refrain from any action that is reasonably likely to impede, delay or otherwise preclude the upstreaming of cash in the amounts and within the timeframe set out in paragraph (f)(i) above (other than a Permitted CMB.TECH Sale); and

 

  (iv)

oppose any proposed increase in remuneration paid by the Target to the Permitted Holders other than remuneration that is (i) at arm’s length terms and (ii) approved by the remuneration committee of the Target.

 

20.21

Repositioning

Subject to any legal restrictions, the Borrower will upon first request of the Majority Lenders reposition all Pledged Target Shares acquired under the Share Purchase Agreement or the Bid that are traded on the New York Stock Exchange to Euronext Brussels, it being understood that the Majority Lenders can only make such request until the six-month holding period under Rule 144 with respect of those Pledged Target Shares has been satisfied, provided, however, that the Borrower shall not be obligated to comply with such request if, in the reasonable judgement of the Borrower, such repositioning would cause the Target Shares to fail to meet the NYSE’s continuing listing standards.

 

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20.22

Compliance with the A-Fleet Closing Mechanics and delivery and payment of individual vessels

The Borrower (i) shall use its reasonable endeavours to comply with the closing mechanics as set out in the A-Fleet Closing Mechanics and (ii) will ensure that the delivery and payment of the individual vessels of the A-Fleet under the A-Fleet Acquisition Agreement will in any case take place within a period of 60 calendar days from the Effective Date.

 

20.23

Acquisition Documents and A-Fleet Acquisition Agreement

 

(a)

The Borrower shall ensure that no party to an Acquisition Document or the A-Fleet Acquisition Agreement agrees to amend, vary, supplement, supersede, waive, suspend or terminate such document in a way which could have a material adverse effect on the interests of the Lenders, including but not limited to a reduction of the A-Fleet Acquisition Amount, except if as a result of the A-Fleet Price Reduction.

 

(b)

The Borrower shall promptly pay all amounts payable to the vendor under the Acquisition Documents as and when they become due (except to the extent that any such amounts are being contested in good faith by a member of the Group and if required where adequate reserves are set aside for any such payment).

 

(c)

The Borrower shall, (and the Borrower will procure that each relevant member of the Group will), take all reasonable and practical steps to preserve and enforce its rights (or the rights of any other member of the Group) and pursue any claims and remedies arising under the Acquisition Documents.

 

20.24

Conditions subsequent

Within 5 Business Days from the SPA Closing Date, the Borrower shall provide to the Agent the SPA Closing Memorandum duly executed by the parties thereto.

 

21.

EVENTS OF DEFAULT

Each of the events or circumstances set out in Clause 21 is an Event of Default (save for Clause 21.14 (Acceleration)).

 

21.1

Non-payment

The Borrower does not pay on the due date any amount payable pursuant to a Finance Document at the place and in the currency in which it is expressed to be payable unless its failure to pay is caused by:

 

  (a)

administrative or technical error; or

 

  (b)

a Disruption Event; and

payment is made within three (3) Business Days of its due date.

 

21.2

Anti-corruption, sanctions and financial covenants

Non compliance with the provisions of Clause 18.17 (Anti-bribery, anti-corruption and anti-money laundering), Clause 18.18 (Sanctions), Clause 20.11 (Sanctions), Clause 20.12 (Anti-corruption law) or Clause 20.9 (Financial covenants).

 

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21.3

Other obligations

 

(a)

Non compliance with any provision of the Finance Documents (other than those referred to in Clause 21.1 (Non-payment) and Clause 21.2 (Anti-corruption, sanctions and financial covenants)).

 

(b)

No Event of Default under paragraph (a) above will occur if the failure to comply is capable of remedy and is remedied within ten (10) Business Days of the earlier of (A) the Agent giving notice to the Borrower and (B) the Borrower becoming aware of the failure to comply.

 

21.4

Misrepresentation

Any representation or statement made or deemed to be made by the Borrower in the Finance Documents or any other document delivered by or on behalf of the Borrower under or in connection with any Finance Document is or proves to have been incorrect or misleading in any material respect when made or deemed to be made, unless, but not in respect of the representations and statements set out in Clause 18.17 (Anti-bribery, anti-corruption and anti-money laundering) and Clause 18.18 (Sanctions), the circumstances giving rise to the misrepresentation or breach of statement:

 

  (a)

are capable of remedy; and

 

  (b)

are remedied within ten (10) Business Days of the earlier of (A) the Agent giving notice to the Borrower and (B) the Borrower becoming aware of the misrepresentation or breach of statement.

 

21.5

Cross default

 

(a)

Any Financial Indebtedness of the Borrower, the Target or any member of the Group or Target Group is not paid when due nor within any originally applicable grace period.

 

(b)

Any Financial Indebtedness of the Borrower, the Target or any member of the Group or Target Group is declared to be or otherwise becomes due and payable prior to its specified maturity as a result of a default (however described).

 

(c)

Any commitment for any Financial Indebtedness of the Borrower, the Target or any member of the Group or Target Group is cancelled or suspended by a creditor of the Borrower, the Target or any member of the Group or Target Group (as applicable) as a result of a default (however described).

 

(d)

Any creditor of the Borrower, the Target or any member of the Group or Target Group becomes entitled to declare any Financial Indebtedness of the Borrower, the Target or any member of the Group or Target Group (as applicable) due and payable prior to its specified maturity as a result of a default (however described).

 

(e)

No Event of Default will occur under this Clause 21.5 if the aggregate amount of Financial Indebtedness or commitment for Financial Indebtedness falling within paragraphs (a) to (d) above is less than USD 10,000,000 (or its equivalent in any other currency or currencies).

 

21.6

Insolvency

 

(a)

The Borrower, the Target or any member of the Group or Target Group:

 

  (i)

is unable or admits inability to pay its debts as they fall due;

 

  (ii)

is deemed or is declared for the purposes of any applicable law to be unable to pay its debts as they fall due, subject to a grace period ending on the last day of the relevant payment period;

 

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  (iii)

suspends making payments on any of its debts; or

 

  (iv)

by reason of actual or anticipated financial difficulties, commences negotiations with one or more of its creditors (excluding any Finance Party in its capacity as such) with a view to rescheduling any of its indebtedness.

 

(b)

A moratorium is declared in respect of any indebtedness of the Borrower, the Target or any member of the Group or Target Group.

 

21.7

Insolvency proceedings

 

(a)

Any corporate action, legal proceedings or other procedure or step is taken in relation to:

 

  (i)

the suspension of payments, a moratorium of any indebtedness, winding-up, dissolution, administration or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) of the Borrower, the Target or any member of the Group or Target Group (with the exception of any company which is dormant and the value of whose gross assets is USD 10,000,000 or less);

 

  (ii)

a composition, compromise, assignment or arrangement with any creditor of the Borrower, the Target or any member of the Group or Target Group;

 

  (iii)

the appointment of a liquidator, receiver, administrative receiver, administrator, compulsory manager or other similar officer in respect of the Borrower or any of its assets or the Target or any of its assets or any member of the Group or Target Group (with the exception of any company which is dormant and the value of whose gross assets is USD 10,000,000 or less) or any of their assets;

 

  (iv)

enforcement of any Security over any assets of the Borrower, the Target or any member of the Group or Target Group, if the aggregate amount of such assets exceed USD 10,000,000 over the lifetime of the Facilities;

 

  (v)

the exercise in respect of the Borrower of any of the resolution powers under the United Kingdom Banking Act 2009;

 

  (vi)

or any analogous procedure or step is taken in any jurisdiction.

 

(b)

This Clause 21.7 shall not apply to any winding-up petition which is frivolous or vexatious and is discharged, stayed or dismissed within 14 days of commencement.

 

21.8

U.S. Bankruptcy Laws

Any of the following occurs in respect of the Borrower in each case under U.S. Bankruptcy Law:

 

  (a)

it makes a general assignment for the benefit of creditors;

 

  (b)

it commences a voluntary case or proceeding under any U.S. Bankruptcy Law; or

 

  (c)

an involuntary case under any U.S. Bankruptcy Law is commenced against it and is not controverted within 20 days or is not dismissed or stayed within 60 days after commencement of the case; or

 

  (d)

an order for relief or other order approving any case or proceeding is entered under any U.S. Bankruptcy Law.

 

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21.9

Creditors’ process

Any expropriation, attachment, sequestration, distress or execution affects any asset or assets of the Borrower, the Target or any member of the Group or Target Group in respect of a sum of, or sums aggregating, USD 10,000,000 or more or the equivalent in another currency, save where, in relation to a conservatory attachment or arrest of any vessel only, such attachment or arrest is discharged within 30 days.

 

21.10

Unlawfulness

 

(a)

It is or becomes unlawful for the Borrower to perform any of its obligations under the Finance Documents.

 

(b)

It is or becomes unlawful or impossible for the Agent, the Security Agent or the Lenders to exercise or enforce any right under, or to enforce any Security created by, a Transaction Security Document.

 

21.11

Repudiation

 

(a)

The Borrower (or any other relevant party) rescinds or purports to rescind or repudiates or purports to repudiate a Finance Document or any of the Transaction Security or evidences an intention to rescind or repudiate a Finance Document or any Transaction Security.

 

(b)

Any party to the Acquisition Documents rescinds or purports to rescind or repudiates or purports to repudiate any of those agreements or instruments in whole or in part where to do so has or is, in the reasonable opinion of the Majority Lenders, likely to have a material adverse effect on the interests of the Lenders under the Finance Documents.

 

21.12

Cessation of business

The Borrower, the Target or any member of the Group or Target Group suspends or ceases to carry on (or threatens to suspend or cease to carry on) all or a material part of its business, except for the Permitted CMB.TECH Sale and the A-Fleet Acquisition.

 

21.13

Material adverse change

Any event or circumstance occurs which the Majority Lenders reasonably believe has or is reasonably likely to have a Material Adverse Effect.

 

21.14

Acceleration

On and at any time after the occurrence of an Event of Default which is continuing the Agent may, and shall:

 

  (i)

in the case of a Specified Event of Default, immediately, or

 

  (ii)

in the case of any other Event of Default which is continuing, if after providing notice to each Lender and being so directed by Lenders whose commitments together constitute the Majority Lenders (each acting independently of each other without coordination),

 

  (a)

cancel each Available Commitment of each Lender whereupon each such Available Commitment shall immediately be cancelled and the Facility shall immediately cease to be available for further utilisation;

 

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  (b)

declare that all or part of the Loans, together with accrued interest, and all other amounts accrued or outstanding under the Finance Documents be immediately due and payable, whereupon they shall become immediately due and payable; and/or

 

  (c)

declare that all or part of the Loans be payable on demand, whereupon they shall immediately become payable on demand by the Agent on the instructions of the Majority Lenders.

 

22.

CHANGES TO THE LENDERS

 

22.1

Transfers by the Lenders

Subject to this Clause 22, a Lender (the Existing Lender) may transfer by way of transfer of contract (overdracht van contract / cession de contrat) any of its rights and obligations to another bank or financial institution or to an insurer, reinsurer, trust, fund or to other entity which is regularly engaged in or established for the purpose of making, purchasing or investing in loans, securities or other financial assets (the New Lender).

 

22.2

Borrower Consent

 

  (a)

The consent of the Borrower is required for a transfer by an Existing Lender, unless the transfer is:

 

  (i)

to another Lender or an Affiliate of a Lender;

 

  (ii)

made at a time when an Event of Default is continuing; or

 

  (iii)

to any refinancing entity, including without limitation any insurer, reinsurer, securitisation special purpose entity, trust or fund, for the purpose of that Existing Lender refinancing or hedging its loan exposure, provided no such transfer shall either (a) release the relevant Existing Lender from any of its obligations under the Finance Documents or (b) require any payments to be made by the Borrower other than or in excess of, or grant to any person any more extensive rights than, those required to be made or those granted to the relevant Existing Lender under the Finance Documents.

 

(b)

The consent of the Borrower to a transfer must not be unreasonably withheld or delayed. The Borrower will be deemed to have given its consent five Business Days after the Existing Lender has requested it unless consent is expressly refused by the Borrower within that time.

 

22.3

Other conditions of transfer

 

(a)

A transfer will only be effective if the procedure set out in Clause 22.6 (Procedure for transfer) is complied with.

 

(b)

If:

 

  (i)

a Lender transfers any of its rights or obligations under the Finance Documents or changes its Facility Office; and

 

  (ii)

as a result of circumstances existing at the date the transfer or change occurs, the Borrower would be obliged to make a payment to the New Lender or Lender acting through its new Facility Office under Clause 13 (Tax Gross Up and Indemnities) or Clause 14 (Increased Costs),

then the New Lender or Lender acting through its new Facility Office is only entitled to receive payment under those Clauses to the same extent as the Existing Lender or Lender acting through its previous Facility Office would have been if the transfer or change had not occurred.

 

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(c)

Each New Lender, by executing the relevant Transfer Certificate, confirms, for the avoidance of doubt, that the Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or prior to the date on which the transfer becomes effective in accordance with this Agreement and that it is bound by that decision to the same extent as the Existing Lender would have been had it remained a Lender.

 

22.4

Transfer fee

The New Lender shall, on the date upon which a transfer takes effect, pay to the Agent (for its own account) a fee of USD 3,000.

 

22.5

Limitation of responsibility of Existing Lenders

 

(a)

Unless expressly agreed to the contrary, an Existing Lender makes no representation or warranty and assumes no responsibility to a New Lender for:

 

  (i)

the legality, validity, effectiveness, adequacy or enforceability of the Finance Documents or any other documents;

 

  (ii)

the financial condition of the Borrower;

 

  (iii)

the performance and observance by the Borrower of its obligations under the Finance Documents or any other documents; or

 

  (iv)

the accuracy of any statements (whether written or oral) made in or in connection with any Finance Document or any other document,

and any representations or warranties implied by law are excluded.

 

(b)

Each New Lender confirms to the Existing Lender and the other Finance Parties that it:

 

  (i)

has made (and shall continue to make) its own independent investigation and assessment of the financial condition and affairs of the Borrower and its related entities in connection with its participation in this Agreement and has not relied exclusively on any information provided to it by the Existing Lender in connection with any Finance Document; and

 

  (ii)

will continue to make its own independent appraisal of the creditworthiness of the Borrower and its related entities whilst any amount is or may be outstanding under the Finance Documents or any Commitment is in force.

 

(c)

Nothing in any Finance Document obliges an Existing Lender to:

 

  (i)

accept a re-transfer from a New Lender of any of the rights and obligations assigned or transferred under this Clause 22; or

 

  (ii)

support any losses directly or indirectly incurred by the New Lender by reason of the non-performance by the Borrower of its obligations under the Finance Documents or otherwise.

 

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22.6

Procedure for transfer

 

(a)

Subject to the conditions set out in Clause 22.2 (Borrower Consent) and Clause 22.3 (Other conditions of transfer) a transfer is effected in accordance with paragraph (c) below when the Agent executes an otherwise duly completed Transfer Certificate delivered to it by the Existing Lender and the New Lender. The Agent shall, subject to paragraph (b) below, as soon as reasonably practicable after receipt by it of a duly completed Transfer Certificate appearing on its face to comply with the terms of this Agreement and delivered in accordance with the terms of this Agreement, execute that Transfer Certificate.

 

(b)

The Agent shall only be obliged to execute a Transfer Certificate delivered to it by the Existing Lender and the New Lender once it is satisfied it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations in relation to the transfer to such New Lender.

 

(c)

Subject to Clause 22.9 (Pro rata interest settlement), on the Transfer Date:

 

  (i)

to the extent that in the Transfer Certificate the Existing Lender seeks to transfer by transfer of contract its rights and obligations under the Finance Documents and in respect of the Transaction Security, the Borrower 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)

the Borrower 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 the Borrower and the New Lender have assumed and/or acquired the same in place of the Borrower and the Existing Lender;

 

  (iii)

the Agent, the Arranger, the Coordinators, the Issuing Bank, the Security Agent, the New Lender and other Lenders shall acquire the same rights and assume the same obligations between themselves and in respect of Transaction Security as they would have acquired and assumed had the New Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result of the transfer and to that extent the Agent, the Security Agent, the Arranger, the Coordinators, the Issuing Bank and the Existing Lender shall each be released from further obligations to each other under the Finance Documents; and

 

  (iv)

the New Lender shall become a Party as a “Lender”.

 

22.7

Copy of Transfer Certificate or Increase Confirmation to Borrower

The Agent shall, as soon as reasonably practicable after it has executed a Transfer Certificate or an Increase Confirmation, send to the Borrower a copy of that Transfer Certificate or Increase Confirmation.

 

22.8

Security over Lenders’ rights

 

(a)

In addition to the other rights provided to Lenders under this Clause 22, each Lender may without consulting with or obtaining consent from the Borrower, at any time directly or indirectly transfer, charge, pledge or otherwise create Security in or over (whether by way of collateral or otherwise) all or any of its rights under any Finance Document to secure obligations of that Lender including, without limitation:

 

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  (i)

any transfer, charge, pledge or other Security to secure obligations to a federal reserve or central bank including without limitation any transfer of rights to a special purpose vehicle where Security over securities issued by such special purpose vehicle is to be created in favour of a federal reserve or central bank (including, for the avoidance of doubt, the European Central Bank); and

 

  (ii)

any transfer, charge, pledge or other Security granted to any holders (or trustee or representatives of holders) of obligations owed, or securities issued, by that Lender as security for those obligations or securities,

except that no such transfer, charge, pledge or Security shall:

 

  (A)

release a Lender from any of its obligations under the Finance Documents or substitute the beneficiary of the relevant transfer, charge, pledge or Security for the Lender as a party to any of the Finance Documents; or

 

  (B)

require any payments to be made by the Borrower other than or in excess of, or grant to any person any more extensive rights than, those required to be made or granted to the relevant Lender under the Finance Documents.

 

(b)

The limitations on transfers by a Lender set out in any Finance Document, in particular in Clause 22.1 (Transfers by the Lenders), Clause 22.2 (Borrower Consent) and Clause 22.4 (Transfer fee), shall not apply to the creation of Security pursuant to paragraph (a) above.

 

(c)

The limitations and provisions referred to in paragraph (b) above shall further not apply to any direct or indirect transfer of rights under the Finance Documents or of the securities issued by the special purpose vehicle, made by a federal reserve or central bank (including, for the avoidance of doubt, the European Central Bank) to a third party in connection with the enforcement of Security created pursuant to paragraph (a) above.

 

22.9

Pro rata interest settlement

 

(a)

If the Agent has notified the Lenders that it is able to distribute interest payments on a “pro rata basis” to Existing Lenders and New Lenders then (in respect of any transfer pursuant to Clause 22.6 (Procedure for transfer) the Transfer Date of which, in each case, is after the date of such notification and is not on the last day of an Interest Period):

 

  (i)

any interest or fees in respect of the relevant participation which are expressed to accrue by reference to the lapse of time shall continue to accrue in favour of the Existing Lender up to but excluding the Transfer Date (Accrued Amounts) and shall become due and payable to the Existing Lender (without further interest accruing on them) on the last day of the current Interest Period; and

 

  (ii)

the rights assigned or transferred by the Existing Lender will not include the right to the Accrued Amounts, so that, for the avoidance of doubt:

 

  (A)

when the Accrued Amounts become payable, those Accrued Amounts will be payable to the Existing Lender; and

 

  (B)

the amount payable to the New Lender on that date will be the amount which would, but for the application of this Clause 22.9, have been payable to it on that date, but after deduction of the Accrued Amounts.

 

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(b)

In this Clause 22.9 references to ‘Interest Period’ shall be construed to include a reference to any other period for accrual of fees.

 

(c)

An Existing Lender which retains the right to the Accrued Amounts pursuant to this Clause 22.9 but which does not have a Commitment shall be deemed not to be a Lender for the purposes of ascertaining whether the agreement of any specified group of Lenders has been obtained to approve any request for a consent, waiver, amendment or other vote of Lenders under the Finance Documents.

 

23.

CHANGES TO THE BORROWER

The Borrower may not assign any of its rights or transfer any of its rights or obligations under the Finance Documents.

 

24.

SECURITY

 

24.1

Security Agent as holder of Transaction Security

 

(a)

In this Clause:

 

  Finance

Party Claim means:

 

  (i)

all obligations and liabilities (whether present or future, actual or contingent, and whether incurred jointly or severally, and whether as principal, guarantor or in some other capacity) at any time owing or incurred by the Borrower to a Finance Party (or any of their successors, transferees or assigns) under or in connection with the Finance Documents, as the same may be amended, supplemented, extended or restated from time to time (including by way of transfer of contract), however fundamental any amendment, supplement, extension or restatement may be, including (without affecting the generality of the foregoing) if the amendment, supplement, extension or restatement would result in:

 

  (A)

a change of the purpose, increase, extension or restructuring of any kind (in whole or in part and including as to its type) of any facility made available under this Agreement; and/or

 

  (B)

an additional facility being made available under this Agreement; and

 

  (ii)

subject to the restrictions set out in this Agreement, any obligations and liabilities referred to under paragraph (i) above which are assumed by any successor to the Borrower further to any merger, demerger, partial demerger (partiële splitsing), contribution of assets or other corporate restructuring affecting the Borrower, any assignment, novation, transfer of contract, transfer of debt, delegation, subrogation of obligations or liabilities, or otherwise.

 

  Security

Agent Claim means any amount which the Borrower owes to the Security Agent under this Clause.

 

(b)

The Borrower must pay the Security Agent, as an independent and separate creditor, an amount equal to each Finance Party Claim on its due date.

 

(c)

The Security Agent may enforce performance of any Security Agent Claim in its own name as an independent and separate right. This includes any suit, execution, enforcement of security, recovery of guarantees and applications for and voting in respect of any kind of insolvency proceeding.

 

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(d)

Each Finance Party must, at the request of the Security Agent, perform any act required in connection with the enforcement of any Security Agent Claim. This includes joining in any proceedings as co-claimant with the Security Agent.

 

(e)

Unless the Security Agent fails to enforce a Security Agent Claim or any Transaction Security within a reasonable time after its due date and except with the consent of the Majority Lenders, a Finance Party may not take any action to enforce the corresponding Finance Party Claim or any Transaction Security unless it is requested to do so by the Security Agent.

 

(f)

The Borrower irrevocably and unconditionally waives any right it may have to require a Finance Party to join in any proceedings as co-claimant with the Security Agent in respect of any Security Agent Claim.

 

(g)

Discharge by the Borrower of a Finance Party Claim will discharge the corresponding Security Agent Claim in the same amount.

 

  (i)

Discharge by the Borrower of a Security Agent Claim will discharge the corresponding Finance Party Claim in the same amount.

 

(h)

The aggregate amount of the Security Agent Claim will never exceed the aggregate amount of Finance Party Claims.

 

(i)

A defect affecting a Security Agent Claim against the Borrower will not affect any Finance Party Claim.

 

  (i)

A defect affecting a Finance Party Claim against the Borrower will not affect any Security Agent Claim.

 

(j)

If the Security Agent returns to the Borrower, whether in any kind of insolvency proceedings or otherwise, any recovery in respect of which it has made a payment to a Finance Party, that Finance Party must repay an amount equal to that recovery to the Security Agent.

 

24.2

Responsibility

 

(a)

The Security Agent is not liable or responsible to any other Finance Party for:

 

  (i)

any failure in perfecting or protecting the security created by any Transaction Security Document;

 

  (ii)

any other action taken or not taken by it in connection with any Transaction Security Document,

unless directly caused by its gross negligence or wilful misconduct.

 

(b)

None of the Agent, the Security Agent or the Arranger is responsible for:

 

  (i)

the right or title of any person in or to, or the value of, or sufficiency of any part of Transaction Security;

 

  (ii)

the priority of any Transaction Security; or

 

  (iii)

the existence of any other Security affecting any asset secured under a Transaction Security Document.

 

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24.3

Title

The Security Agent may accept, without enquiry, the title (if any) the Borrower may have to any asset over which security is intended to be created by any Transaction Security Document.

 

24.4

Possession of documents

The Security Agent is not obliged to hold in its own possession any Transaction Security Document, title deed or other document in connection with any asset over which security is intended to be created by a Transaction Security Document. Without prejudice to the above, the Security Agent may allow any bank providing safe custody services or any professional adviser to the Security Agent to retain any of those documents in its possession.

 

24.5

Investments

Except as otherwise provided in any Transaction Security Document, all moneys received by the Security Agent under a Transaction Security Document may be:

 

  (a)

invested in the name of, or under the control of, the Security Agent in any investments which may be selected by the Security Agent with the consent of the Majority Lenders; or

 

  (b)

placed on deposit in the name of, or under the control of, the Security Agent at any bank or institution (including any Finance Party) and on such terms as the Security Agent may agree.

 

24.6

Approval

Each Finance Party:

 

  (a)

confirms its approval of each Transaction Security Document; and

 

  (b)

authorises and directs the Security Agent (by itself or by such person(s) as it may nominate), to enter into and enforce the Transaction Security Documents as agent or as otherwise provided (and whether or not expressly in the names of the Finance Parties) on its behalf.

 

24.7

Conflict with Transaction Security Documents

If there is any conflict between this Agreement and any Transaction Security Document with regard to instructions to, or other matters affecting, the Security Agent, this Agreement will prevail.

 

24.8

Release of security

 

(a)

If a disposal of any asset subject to security created by a Transaction Security Document is made (other than pursuant to a Permitted CMB.TECH Sale or a Permitted Euronav Sale) to a person (which is and will remain) outside the Group in the following circumstances:

 

  (i)

all Lenders agree to the disposal;

 

  (ii)

the disposal is being made at the request of the Security Agent in circumstances where any Transaction Security has become enforceable; or

 

  (iii)

the disposal is being effected by enforcement of a Transaction Security Document,

the asset(s) being disposed of will be released from any Transaction Security. However, the proceeds of any disposal (or an amount corresponding to them) must be applied in accordance with the requirements of the Finance Documents (if any).

 

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(b)

If a disposal of any asset subject to security created by a Transaction Security Document is made pursuant to a Permitted CMB.Tech Sale or a Permitted Euronav Sale, the asset(s) being disposed of will be released from any Transaction Security, for the avoidance of doubt, without any consent from the Lenders being required for such release, provided that the proceeds of any disposal (or an amount corresponding to them) must be applied in accordance with Clause 8.6 (Mandatory Prepayment – Permitted CMB.TECH Sale and Permitted Euronav Sale).

 

(c)

Any release under this Clause will not become effective until the date of the relevant disposal or otherwise in accordance with the consent of the Majority Lenders.

 

(d)

If a disposal is not made, then any release relating to that disposal will have no effect, and the obligations of the Borrower under the Finance Documents will continue in full force and effect.

 

(e)

If the Security Agent is satisfied that a release is allowed under this Clause, (at the request and expense of the Borrower) each Finance Party must enter into any document and do all such other things which are reasonably required to achieve that release. Each other Finance Party irrevocably authorises the Security Agent to enter into any such document.

 

24.9

Co-security Agent

 

(a)

The Security Agent may appoint a separate security agent or a co-security agent in any jurisdiction:

 

  (i)

if the Security Agent reasonably considers that without the appointment the interests of the Lenders under the Finance Documents might be materially and adversely affected;

 

  (ii)

for the purpose of complying with any law, regulation or other condition in any jurisdiction; or

 

  (iii)

for the purpose of obtaining or enforcing a judgment or enforcing any Finance Document in any jurisdiction.

 

(b)

Any appointment under this Clause will only be effective if the security agent or co-security agent confirms to the Security Agent and the Borrower in form and substance satisfactory to the Security Agent that it is bound by the terms of this Agreement as if it were the Security Agent.

 

(c)

The Security Agent may remove any security agent or co-security agent appointed by it and may appoint a new security agent or co-security agent in its place.

 

(d)

The Borrower must pay to the Security Agent any reasonable remuneration paid by the Security Agent to any security agent or co-security agent appointed by it, together with any related costs and expenses properly incurred by the security agent or co-security agent.

 

24.10

Information

Each Finance Party and the Borrower must supply the Security Agent with any information that the Security Agent may reasonably specify as being necessary or desirable to enable it to perform its functions under this Clause.

 

24.11

Perfection of security

The Borrower must (at its own cost) take any action and enter into and deliver any document which is required by the Security Agent so that a Transaction Security Document provides for effective and perfected security in favour of any successor Security Agent.

 

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25.

ROLE OF THE AGENT, THE SECURITY AGENT, THE ARRANGER AND OTHERS

 

25.1

Appointment of the Agent

 

(a)

Each of the Arranger, the Issuing Bank and the Lenders appoints the Agent to act as its agent under and in connection with the Finance Documents.

 

(b)

Each of the Arranger, the Issuing Bank and the Lenders authorises the Agent to perform the duties, obligations and responsibilities and to exercise the rights, powers, authorities and discretions specifically given to the Agent under or in connection with the Finance Documents together with any other incidental rights, powers, authorities and discretions.

 

25.2

Appointment of the Security Agent

 

(a)

Each Finance Party irrevocably appoints the Security Agent (individually) in accordance with the following provisions of this Clause to act as its agent, in accordance with article 5 of the Belgian Financial Collateral Law and article 3 of the Belgian MAS Law and as beneficiary of a parallel debt (as the case may be) under this Agreement and with respect to the Transaction Security Documents, and irrevocably authorises the Security Agent (acting jointly or severally) on its behalf to:

 

  (i)

execute each Transaction Security Document expressed to be executed by the Security Agent (as the case may be) on its behalf; and

 

  (ii)

perform such duties and exercise such rights and powers under this Agreement and the Transaction Security Documents as are specifically delegated to the Security Agent by the terms thereof, together with such rights, powers and discretions as are reasonably incidental thereto, including the release of the Transaction Security in accordance with the terms of the Transaction Security Documents.

 

(b)

The Security Agent has only those duties which are expressly specified in the Finance Documents.

 

25.3

Instructions

 

(a)

The 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 Agent in accordance with any instructions given to it by:

 

  (A)

all Lenders if the relevant Finance Document stipulates the matter is an all Lender decision; and

 

  (B)

in all other cases, the Majority Lenders; and

 

  (ii)

not be liable for any act (or omission) if it acts (or refrains from acting) in accordance with paragraph (i) above.

 

(b)

The Security Agent shall:

 

  (i)

unless a contrary indication appears in a Finance Document, exercise or refrain from exercising any right, power, authority or discretion vested in it as Security Agent in accordance with any instructions given to it by:

 

  (A)

all Lenders if the relevant Finance Document stipulates the matter is an all Lender decision; and

 

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  (B)

in all other cases, the Majority Lenders; and

 

  (ii)

not be liable for any act (or omission) if it acts (or refrains from acting) in accordance with paragraph (i) above.

 

(c)

The Agent and Security Agent shall be entitled to request instructions, or clarification of any instruction, from the Majority Lenders (or, if the relevant Finance Document stipulates the matter is a decision for any other Lender or group of Lenders, from that Lender or group of Lenders) as to whether, and in what manner, it should exercise or refrain from exercising any right, power, authority or discretion. Each of the Agent and Security Agent may refrain from acting unless and until it receives any such instructions or clarification that it has requested.

 

(d)

Save in the case of decisions stipulated to be a matter for any other Lender or group of Lenders under the relevant Finance Document and unless a contrary indication appears in a Finance Document, any instructions given to the Agent or the Security Agent by the Majority Lenders shall override any conflicting instructions given by any other Parties and will be binding on all Finance Parties.

 

(e)

Each of the Agent and Security Agent may refrain from acting in accordance with any instructions of any Lender or group of Lenders until it has received any indemnification and/or security that it may in its discretion require (which may be greater in extent than that contained in the Finance Documents and which may include payment in advance) for any cost, loss or liability which it may incur in complying with those instructions.

 

(f)

In the absence of instructions, each of the Agent and Security Agent may act (or refrain from acting) as it considers to be in the best interest of the Lenders.

 

(g)

Neither the Agent nor the Security Agent is authorised to act on behalf of a Lender (without first obtaining that Lender’s consent) in any legal or arbitration proceedings relating to any Finance Document.

 

25.4

Duties of the Agent and Security Agent

 

(a)

The Agent’s and Security Agent’s duties under the Finance Documents are solely mechanical and administrative in nature.

 

(b)

The Security Agent and, subject to paragraph (c) below, the Agent shall promptly forward to a Party the original or a copy of any document which is delivered to the Agent for that Party by any other Party.

 

(c)

Without prejudice to Clause 22.7 (Copy of Transfer Certificate or Increase Confirmation to Borrower), paragraph (b) above shall not apply to any Transfer Certificate or Increase Confirmation.

 

(d)

Except where a Finance Document specifically provides otherwise, neither the Security Agent nor the Agent is obliged to review or check the adequacy, accuracy or completeness of any document it forwards to another Party.

 

(e)

If the Agent or Security Agent receives notice from a Party referring to this Agreement, describing a Default and stating that the circumstance described is a Default, it shall promptly notify the other Finance Parties.

 

(f)

If the Agent is aware of the non-payment of any principal, interest, Ticking Fee or other fee payable to a Finance Party (other than the Agent or the Arranger) under this Agreement it shall promptly notify the other Finance Parties.

 

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(g)

Each of the Agent and Security Agent shall have only those duties, obligations and responsibilities expressly specified in the Finance Documents to which it is expressed to be a party (and no others shall be implied).

 

(h)

The Agent must provide to the Borrower within five (5) Business Days of a request by the Borrower (but no more frequently than once per calendar month) a list (which may be in electronic form) setting out the names of the Lenders as at the date of that request, their respective Commitments, the address (and the department or officer, if any, for whose attention any communication is to be made) of each Lender for any communication to be made or document to be delivered under or in connection with the Finance Documents, the electronic mail address and/or any other information required to enable the sending and receipt of information by electronic mail or other electronic means to and by each Lender to whom any communication under or in connection with the Finance Documents may be made by that means and the account details of each Lender for any payment to be distributed by the Agent to that Lender under the Finance Documents.

 

25.5

Role of the Arranger, the Documentation Agent and the Coordinators

Except as specifically provided in the Finance Documents, the Arranger, the Documentation Agent, and the Coordinators have no obligations of any kind to any other Party under or in connection with any Finance Document.

 

25.6

No fiduciary duties

 

(a)

Nothing in any Finance Document constitutes the Agent, the Security Agent, the Arranger, the Documentation Agent, the Coordinators or the Issuing Bank as a trustee or fiduciary of any other person.

 

(b)

None of the Agent, the Security Agent, the Arranger, the Documentation Agent, the Coordinators or the Issuing Bank shall be bound to account to any Lender for any sum or the profit element of any sum received by it for its own account.

 

25.7

Business with the Group

The Agent, the Security Agent, the Arranger, the Documentation Agent, the Coordinators or the Issuing Bank may accept deposits from, lend money to and generally engage in any kind of banking or other business with any member of the Group.

 

25.8

Rights and discretions of the Agent and the Security Agent

 

(a)

Each of the Agent and the Security Agent may:

 

  (i)

rely on any representation, communication, notice or document believed by it to be genuine, correct and appropriately authorised;

 

  (ii)

assume that:

 

  (A)

any instructions received by it from the Majority Lenders, any Lenders or any group of Lenders or the Issuing Bank 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:

 

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  (A)

as to any matter of fact or circumstance which might reasonably be expected to be within the knowledge of that person; or

 

  (B)

to the effect that such person approves of any particular dealing, transaction, step, action or thing,

as sufficient evidence that that is the case and, in the case of paragraph (A) above, may assume the truth and accuracy of that certificate.

 

(b)

Each of the Agent and the Security Agent may assume (unless it has received notice to the contrary in its capacity as agent for the Lenders) that:

 

  (i)

no Default has occurred (unless it has actual knowledge of a Default arising under Clause 21.1 (Non-payment)); and

 

  (ii)

any right, power, authority or discretion vested in any Party or any group of Lenders has not been exercised.

 

(c)

Each of the Agent and the Security Agent may engage and pay for the advice or services of any lawyers, accountants, tax advisors, surveyors or other professional advisors or experts when reasonably required.

 

(d)

Without prejudice to the generality of paragraph (c) above or paragraph (e) below, each of the Agent and Security Agent may at any time engage and pay for the services of any lawyers to act as independent counsel to the Agent (and so separate from any lawyers instructed by the Lenders) if the Agent in its reasonable opinion deems this to be necessary.

 

(e)

Each of the Agent and Security Agent may rely on the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts (whether obtained by the Agent, the Security Agent or by any other Party) and shall not be liable for any damages, costs or losses to any person, any diminution in value or any liability whatsoever arising as a result of its so relying.

 

(f)

Each of the Agent and the Security Agent may act in relation to the Finance Documents through its officers, employees and agents.

 

(g)

Unless a Finance Document expressly provides otherwise, each of the Agent and the Security Agent may disclose to any other Party any information it reasonably believes it has received as agent under this Agreement.

 

(h)

Without prejudice to the generality of paragraph (g) above, the Agent may disclose the identity of a Defaulting Lender to the other Finance Parties and the Borrower shall, as soon as reasonably practicable, disclose the same upon the written request of the Borrower or the Majority Lenders.

 

(i)

Notwithstanding any other provision of any Finance Document to the contrary, none of the Agent, the Security Agent, the Documentation Agent, the Coordinators, the Issuing Bank or the Arranger is obliged to do or omit to do anything if it would or might in its reasonable opinion constitute a breach of any law or regulation or a breach of a fiduciary duty or duty of confidentiality.

 

(j)

Notwithstanding any provision of any Finance Document to the contrary, neither the Agent nor the Security Agent is obliged to expend or risk its own funds or otherwise incur any financial liability in the performance of its duties, obligations or responsibilities or the exercise of any right, power, authority or discretion if it has grounds for believing the repayment of such funds or adequate indemnity against, or security for, such risk or liability is not reasonably assured to it.

 

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