Alliander - brief verzoek kapitaalversterking.pdf

(ii)

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

(iii)

Tax Deduction means a deduction or withholding for or on account of Tax from a payment under this Agreement.

(iv)

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

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.

(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 Lender Committee accordingly. Similarly, a Lender shall notify the Lender Committee on becoming so aware in respect of a payment payable to that Lender. If the Lender Committee receives such notification from a Lender it shall notify the Borrower.

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13.3

(c)

Ifa Tax Deduction is required by law to be made by the Borrower, the amount of the payment due from the Borrower shall be increased to an amount (the Additional Amount) which (after making any Tax Deduction) leaves an amount equal to the payment which would have been due ifno Tax Deduction had been required.

( d)

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

( e)

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

Tax indemnity (a)

The Borrower shall (within three Business Days of demand by the Lender Committee) 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 this Agreement.

(b)

Paragraph (a) above shall not apply:

(c)

H

(i)

with respect to any Tax assessed on a Lender if that Tax is imposed on or calculated by reference to the net income ( deemed) received or receivable by that Lender; or

(ii)

to the extent a loss, liability or cost is compensated for by an increased payment under Clause 13.2 (Tax gross-up).

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

d) AProtected ( Partyshall, onreceivingapaymentfromtheBorrowerunder this Clause 13.3, notify the Lender Committee.

13.4

Tax credit If the Borrower makes a Tax Payment and the relevant Lender determines 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 Lender has or could have obtained and utilised that Tax Credit,

the Lender shall pay an amount to the Borrower which that Lender 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

Stamp taxes The Borrower shall pay and, within three Business Days of demand, indemnify each Lender against any cost, loss or liability that Lender incurs in relation to all stamp duty, registration and other similar Taxes payable in respect of this Agreement.

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13.6

Value added tax (a)

All amounts expressed to be payable under this Agreement by any Party to a Lender 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 Lender to any Party under this Agreement and such Lender is required to account to the relevant tax authority for the VAT, that Party must pay to such Lender (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 (provided such Lender promptly provides an appropriate VAT invoice to that Party).

(b)

If VAT is or becomes chargeable on any supply made by any Lender (the Supplier) to any other Lender (the Recipient) under this Agreement, and any Party other than the Recipient (the Relevant Party) is required by the terms of this Agreement to pay an amount equal to the consideration for that supply to the Supplier (rather than being required to reimburse or indemnity 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 (a) applies) promptly pay to the Relevant Party an amount equal to any credit or repayment the Recipient receives from the relevant tax authority which the Recipient reasonably determines relates to the VAT chargeable on that supply; and

(ii)

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

(c)

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

( d)

In relation to any supply made by a Lender to any Party under this Agreement, if reasonably requested by such Lender, that Party must promptly provide such Lender with details of that Party's VAT registration and such other information as is reasonably requested in connection with such Lender's VAT reporting requirements in relation to such supply.

14.

MITIGATION BY THE LENDERS

14.1

Mitigation (a)

If any circumstances arise which could result in any amount becoming payable under or pursuant to, or cancelled pursuant to, any of Clause 13 (Taxation) and Clause 8 (Repayment and Prepayment), the Parties will consult with each other until the expiry of thirty (30) days (each such period, a Mitigation Period) to try to find a means of avoiding or mitigating the effect of such additional payment obligation, but subject always to the Borrower's right pursuant to Clause 8 (Repayment and Prepayment).

(b)

No Party will be obliged to implement any arrangement proposed during the consultations referred to in paragraph (a) above.

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14.2

(c)

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

(d)

The Majority Lenders may, by written notice to the Borrower, terminate the Mitigation Period at any time if: (i)

an Event of Default has occurred and is continuing; or

(ii)

the continuation of the consultations would cause the Lenders to breach any applicable law.

Limitation of liability (a)

The Borrower shall promptly indemnify the Lenders for all costs and expenses reasonably incurred by any of the Lenders as a result of steps taken by a Lender under Clause 14.1 (Mitigation). The Lenders shall reasonably substantiate the amount of, and the grounds for, any such claim for indemnification.

(b)

The Lenders are not obliged to take any steps under Clause 14.1 (Mitigation) if, in the opinion of the Majority Lenders, to do so might be prejudicial to the Lenders.

15.

COSTS AND EXPENSES

15.1

Transaction costs Each of the Parties will be responsible for their own costs and expenses (including legal fees) incurred by them in connection with the negotiation, preparation, printing and execution of this Agreement and any other documents referred to in this Agreement. Any costs and expenses for account of the Lenders that are incurred by the Borrower will be set-off against any dividend amounts in respect of Ordinary Shares payable to the Lenders on the immediately succeeding dividend payment date.

15.2

Amendment costs

Ifthe Borrowerrequests an amendment,waiverorconsent,theBorrower shallreimburse theLenders for the amount of all documented costs and expenses (including legal fees) reasonably incurred by the Lenders in responding to, evaluating, negotiating or complying with that request or requirement. The Lenders shall provide such Borrower with an invoice setting out such costs and expenses in reasonable detail. 15.3

Enforcement costs The Borrower shall immediately on demand, pay to the Lenders the amount of all costs and expenses (including legal fees of one legal advisor to the Lenders) incurred by the Lenders in connection with the enforcement of, or the preservation of any rights under, this Agreement.

16.

REPRESENTATIONS AND WARRANTIES

16.1

Representations and warranties Each of the Lenders has entered into this Agreement in reliance on the representations given in this Clause 16, and the Borrower, unless the context requires otherwise, makes the representations set out in this Clause 16.

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16.2

Status It is a public company, duly incorporated and validly existing under the laws of the Netherlands.

16.3

Binding obligations The obligations expressed to be assumed by it in this Agreement are, subject to any general principles of law limiting its obligations which are specifically referred to in any legal opinion delivered pursuant to Clause 7 (Conditions of Utilisation), legal, valid, binding and enforceable obligations.

16.4

Non-conflict with Other Obligations The entry into and performance by it of, and the transactions contemplated by, this Agreement do not and will not conflict with: ·-

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(a)

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(b)

its or any of its Subsidiaries' constitutional documents; or

(c)

any agreement or instrument binding upon it or any of its Subsidiaries or any of its or any of its Subsidiaries' assets or constitute a default or termination event (however described) under any such agreement or instrument,

in each case to the extent it has or is reasonably like to have a Material Adverse Effect. 16.5

Power and authority It has the power to enter into and perform, and has taken all necessary action to authorise, (i) the entry into and performance of, this Agreement and (ii) the transactions contemplated by this Agreement.

16.6

No Default No Default is outstanding or will result from the execution of, or the performance of any transaction contemplated by, this Agreement.

16.7

No Conversion Event No Conversion Event has occurred.

16.8

Governing Law and Enforcement Subject to any qualifications or reservations as to matters of law of general application as set out in any legal opinion delivered pursuant to Clause 7 ( Conditions of Utilisation),

16.9

(a)

the choice of Dutch law as the governing law of this Agreement will be recognised and enforced in the Netherlands; and

(b)

any judgment obtained in the Netherlands in relation to this Agreement will be recognised and enforced in the Netherlands.

Centre of main interests and establishments For the purposes of Regulation (EU) 2015/848 of the European Parliament and of the Council of20 May 2015 on insolvency proceedings (the Regulation), its centre of main interest (as that term is used

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in Article 3(1) of the Regulation) is situated in the Netherlands and it has no "establishment" (as that term is used in Article 2(10) of the Regulation) in any other jurisdiction. 16.10

No Misleading Information Any information provided in writing by it or its representatives in connection with the entering into of this Agreement was true and accurate in all material respects as at the date it was provided and no information has been given or withheld that results in such information being untrue or misleading in any material respect, provided that the Borrower makes no representation or warranty as to the completeness or accuracy of forecasts, estimates, projections, statements of intent or statements of opinion provided to the Lenders or their representatives and advisers.

16.11

16.12

Tax Deduction (a)

It takes the position that it is not required to make any Tax Deduction from any payment it may make under this Agreement to a Lender.

(b)

It takes the position that the deduction of interest paid, accrued or otherwise due under this Agreement is not restricted on the basis of article 10, paragraph 1, sub a, b or d, of the Corporate Tax Act (Wet op de vennootschapsbelasting 1969).

Tax status No notice under Article 36 Tax Collection Act (Invorderingswet 1990) has been given by the Borrower.

16.13

Tax payment and filings (a)

It has duly and punctually paid and discharged all Taxes imposed upon it or its assets within the time period allowed without incurring recovery interest (invorderingsrente) or penalties (save to the extent that (i) payment is being contested in good faith, (ii) it has maintained adequate reserves for the payment of such Taxes and (iii) payment can be lawfully withheld).

(b) Itis not(andnone ofits Subsidiaries is) materially overdue in theiling f of anyTaxreturns and it is not ( and none of its Subsidiaries) is overdue in the payment of any amount in respect of Tax, in each case to the extent having or being reasonably likely to have a material adverse effect. (c)

16.14

No claims or investigations are being or are reasonably likely to be conducted against it (or any of its Subsidiaries) with respect to Taxes such that a liability of, or claim against, any member of the Group would have or would be reasonably likely to have a material adverse effect.

Stamp duty No stamp, transaction, registration or similar taxes are assessable or payable in the Netherlands in connection with the execution, delivery, performance and enforcement of this Agreement.

16.15

Times for making representations (a)

The representations set out in this Clause 16 are made by the Borrower on the date of this Agreement.

(b)

Unless a representation is expressed to be given at a specific date, each representation ( other than the representations set out in Clause 16.7 (No Conversion Event) and Clause 16.11 (Tax

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Deduction)) is deemed to be repeated by the Borrower on each Closing Date, on the date of each Utilisation Request and the first day of each Interest Period.

17.

(c)

The representation set out in Clause 16.7 (No Conversion Event) is deemed to be repeated by the Borrower on each Closing Date.

(d)

When a representation is made (or repeated as set out above) after the date of this Agreement, it will be deemed to be made ( or repeated as set out above) by reference to the facts and circumstances then existing at the time made (or repeated as set out above), taking into account any changes in law since the date of this Agreement.

UNDERTAKINGS The undertakings in this Clause 17 remain in force from the date of this Agreement for as long as any Commitment is in force or any amount is outstanding under this Agreement. The Borrower shall, save with the prior approvai of the Majority Lenàers, (a)

not in any way modify the rights attaching to the Ordinary Shares with respect to voting, dividends or liquidation nor issue any other class or type of equity share capital carrying any rights which are more favourable than such rights attaching to the Ordinary Shares, but so that nothing in this paragraph (a) shall prevent: (i)

any consolidation, reclassification or subdivision of the Ordinary Shares;

(ii)

any modification of such rights which is not, in the determination in its absolute discretion of an independent financial adviser (pre-approved by the Majority Lenders, such approval not unreasonably to be withheld), prejudicial to the interests of the Lenders;

(iii)

any alteration to the articles of association of the Borrower made in connection with the matters described in this Clause 17 to the extent permitted under this Clause 18 or which is supplemental or incidental to any of the foregoing (including any amendment made to enable or facilitate procedures relating to such matters and any amendment dealing with the rights and obligations of holders of Securities, including Ordinary Shares, dealt with under such procedures);

(iv)

any issue of equity share capital where the issue of such equity share capital results, or would, but for the provisions of Clause 12.4 (Procedure for exercise of Conversion Right) relating to roundings, otherwise result in an adjustment to, or a consideration with respect to the determination of, the Conversion Price;

(v)

any issue of equity share capital or modification of rights attaching to the Ordinary Shares, where prior thereto the Borrower shall have instructed an independent financial adviser to determine in its absolute discretion what (if any) adjustments should be made to, or considerations should be made with respect to the determination of, the Conversion Price as being fair and reasonable to take account thereof and such independent financial adviser shall have determined in its absolute discretion either that no adjustment or consideration is required or that an adjustment to or consideration in respect of the determination of the Conversion Price is required and, if so, the new Conversion Price as a result thereof and the basis upon which such adjustment or consideration in respect of the determination is to be made and, in any such case, the date on which the adjustment or consideration in respect of the determination shall take effect (and so that the adjustment or consideration in respect of the determination shall be made and shall take effect accordingly);

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(b)

not make any issue, grant or distribution or take or omit to take any other action if the effect thereof would be that, on the exercise of Conversion Rights, Ordinary Shares could not, under any applicable law then in effect, be legally issued as fully paid;

(c)

not reduce its issued share capital or any uncalled liability in respect thereof, or any non-distributable reserves, except: (i)

pursuant to the terms of issue of the relevant share capital;

(ii)

by means of a purchase or redemption of share capital of the Borrower to the extent, in any such case, permitted by applicable law;

(iii)

where the reduction does not involve any distribution of assets;

(iv)

solely in relation to a change in the currency in which the nominal value of the Ordinary Shares is expressed;

(v)

to create distributable reserves;

(vi)

by way of transfer to reserves as permitted under applicable law;

(vii)

where the reduction is permitted by applicable law and an independent financial adviser, acting as expert and in its absolute discretion, advises that the interests of the Lenders will not be materially prejudiced by such reduction;

(viii)

where the reduction is permitted by applicable law and results in an adjustment to, or a consideration with respect to the determination of, the Conversion Price or is otherwise taken into account for the purposes of determining whether such an adjustment or consideration with respect to the determination should be made; or

(ix)

provided that, without prejudice to the other provisions of this Agreement, the Borrower may exercise such rights as it may from time to time be entitled pursuant to applicable law to purchase, redeem or buy back its Ordinary Shares and any d epositary or otherreceipts or certificates representing Ordinary Shares without the consent of any Lender;

18.

( d)

provide to the Lenders, by no later than 5 Business Days prior to the Closing Date, all of the documents and evidence referred to in Schedule 2 (Conditions precedent) in form and substance satisfactory to the Lenders (acting reasonably) provided that the conditions may be waived by the Lenders in whole or in part; and

( e)

pay and discharge all Taxes due and payable by it prior to the accrual of any fine or penalty for late payment, unless (and only to the extent that) (i) payment of those Taxes is being contested in good faith, (ii) adequate reserves are being maintained for those Taxes and the costs required to contest them (iii) the payment can be lawfully withheld and (iv) failure to pay those Taxes is not reasonably likely to have a material adverse effect.

EVENTS OF DEFAULT Each of the events or circumstances set out in this Clause 18 is an Event of Default (save for Clause 18.4 (Acceleration)).

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18.1

Non-payment of principal The Borrower does not pay any amount of principal payable under this Agreement at the place and in the currency in which it is expressed to be payable within 14 days of the due date.

18.2

Non-payment of interest Subject to Clause 11.4 (Optional deferral of interest by the Borrower), the Borrower does not pay any amount of interest payable under this Agreement at the place and in the currency in which it is expressed to be payable within 14 days of the due date.

18.3

Insolvency proceedings An order is made or an effective resolution is passed for the Winding-up of the Borrower except in any such case for the purpose of and followed by a merger, reconstruction or amalgamation the terms of which have been previously approved by Majority Lenders.

18.4

Acceleration (a)

On and at any time after the occurrence of an Event of Default which is continuing the Majority Lenders may: (i)

by notice to the Borrower cancel the Commitment whereupon it shall immediately be cancelled;

(ii)

in the case of Clause 18.1 (Non-payment of principal) and Clause 18.2 (Non-payment of interest)), at their discretion and, subject to any applicable laws, without further notice, institute proceedings for the Winding-up of the Borrower in the Netherlands (but not elsewhere) and/or prove in any Winding-up of the Borrower, but may take no other action in respect of such default; and

(iii)

in the case of Clause 18.3 (Insolvency proceedings), declare the Loans immediately become due and repayable at their outstanding principal amount together with accrued interest and any Arrears oflnterest and/or prove in the Winding-up of the Borrower, subject always to the ranking provided in Clause 2 (Subordination).

(b)

Subject as provided in this Clause 18.4, a Lender may at its discretion and without further notice institute such proceedings or take such steps or actions against Borrower as it may think fit to enforce any term or condition binding on the Borrower but in no event shall the Borrower, by virtue of the institution of any such proceedings, steps or actions, be obliged to pay any sum or sums, in each case, sooner than the same would otherwise have been payable by it.

(c)

No remedy against the Borrower, other than as referred to in this Clause 18, shall be available to the Lenders whether for the recovery of amounts owing under this Agreement or in respect of any breach by the Borrower of any of its other obligations under or in respect of this Agreement.

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19.

CHANGES TO PARTIES

19.1

Transfers (a)

In this Clause 19: Transfer Date means, for a Transfer Certificate, the later of: (A)

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

(B)

the date on which the New Lender or the Borrower, as applicable, executes the relevant Transfer Certificate.

(b)

The Borrower may not assign any of its rights or transfer any of its rights or obligations under this Agreement without the prior written consent of all the Lenders.

(c)

A Lender (the Existing Lender) may transfer its contractual position in accordance with Section 6:159 Dutch Civil Code to: (i)

any other Lender (a New Lender), provided such Lender is a Shareholder at the time of the transfer and provided that such transfer does not result in a Change of Control; and

(ii)

the Borrower,

in each case, in accordance with applicable law (including, for avoidance of doubt, the Market Abuse Regulation). (d)

The Borrower and each Lender agree and confirm that it in advance provided its co-operation (as required by Section 6: 159 Dutch Civil Code) to any transfer which complies with paragraph (c) above.

(e)

Any reference in this Agreement to a Lender includes a New Lender but excludes a Lender if

noamount isormaybeowedoor t byitunderthis Agreement. 19.2

Procedure for transfer (a)

Subject to the conditions set out in Clause 19.1 (Transfers) a transfer is effected in accordance with paragraph (b) below when the New Lender or the Borrower, as applicable, executes an otherwise duly completed Transfer Certificate delivered to it by the Existing Lender.

(b)

On the Transfer Date:

(c)

(i)

the entire or part of the legal relationship under the Agreement of the existing Lender which is a party to the Transfer Certificate, expressed to be transferred thereby, will be transferred to the New Lender or the Borrower, as applicable, by way of an assumption of contract (contractsoverneming) pursuant to Section 6:159 Dutch Civil Code; and

(ii)

the New Lender shall become a Party as a Lender.

The New Lender shall notify the Borrower of any transfer promptly on execution of the Transfer Certificate in respect of such transfer and shall as soon as reasonably practicable after it has executed a Transfer Certificate, send to the Borrower a copy of that Transfer Certificate.

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( d) 20.

The Existing Lender shall notify the Borrower promptly of any proposed transfer.

LENDER COMMITTEE (a)

The Majority Lenders shall, within 6 months from the date of this Agreement, establish a committee of Lenders whose Commitments aggregate more than 10 per cent. of the Total Commitment ( or, if the Commitments have been reduced to zero, aggregated more than 10 per cent. of the Commitments immediately prior to that reduction) (the Lender Committee).

(b)

The Lender Committee shall (i) promptly when constituted inform the Borrower of the identity of its members, (ii) promptly inform the Borrower of any changes in its members and (iii) at all times ensure that the Borrower is in possession of the relevant contact details of each member of the Lender Committee.

(c)

The Lender Committee shall have an administrative role only for purposes of organising the group of Lenders and, if required, supporting the role of the Ciosing Agent under the documentation.

21.

THE CLOSING AGENT

21.1

No fiduciary duties Nothing in this Agreement constitutes the Closing Agent as trustee or fiduciary of any other person.

21.2

Rights and discretions of the Closing Agent (a)

(b)

The Closing Agent may rely on: (i)

any representation, warranty, notice or document believed by it to be genuine, correct and appropriately authorised; and

(ii)

any statement made by any person regarding any matters which may reasonably be assumed to be within his knowledge or within his power to verify.

The Closing Agent may assume (unless it has received notice to the contrary) that: (i)

no Default has occurred (unless it has actual knowledge of a Default arising under Clause 18.1 (Non-payment of principal) and/or Clause 18.2 (Non-payment of interest);

(ii)

any right, power, authority or discretion vested in any Party has not been exercised; and

(iii)

any notice or request delivered or made by the Borrower is made on behalf of and with the consent and knowledge of the Borrower.

( c)

The Closing Agent may engage, pay for and rely on the advice or services of any lawyers, accountants, surveyors or other experts.

(d)

The Closing Agent may act in relation to this Agreement through its personnel and agents.

(e)

Notwithstanding any other provision of this Agreement to the contrary, the Closing Agent shall not be 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.

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