IN079 Bijlage brief Alliander.pdf

pay or any delay in paying any of the same); Tax Deduction Event means that the Borrower has obtained an opinion in writing from areputable firm of tax advisors of good standing (pre-approved by the Majority Lenders, such approval not unreasonably to be withheld), adecision of the Dutch tax authorities and/or acourt ruling to the effect that interest payments under any of the Loans were, but are or will no longer be, tax-deductible by the Borrower for Dutch corporate income tax purposes by reason of:

(i)

any actual or proposed change in or amendment to the laws, regulations or rulings of the Netherlands or any political subdivision or taxing authority thereof or therein; or

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(ii)

any actual or proposed change in the official application or interpretation of such laws, regulations or rulings; or

(iii)

any action which shall have been taken by any taxing authority or any court of competent jurisdiction of the Netherlands or any political subdivision or taxing authority thereof or therein, whether or not such action was taken or brought with respect to the Borrower,

which change, amendment or execution becomes effective, taking of action occurs, or proposal is made, on or after the date of this Agreement and provided that such Tax Deduction Event cannot be avoided by the Borrower taking all reasonable measures available to it; Termination Date means 15 December 2081; Transfer Certificate means acertificate, substantially in the form of Schedule 4(Form of Transfer Certificate) or any other form agreed between the Majority Lenders and the Borrower; Total Commitments means the aggregate of the Commitments; Unpaid Sum means any sum due and payable but unpaid by the Borrower under this Agreement; Utilisation means the utilisation of aLoan under the Facility; Utilisation Date means each date on which the Facility is utilised; Winding-up means asituation where or the event that (i) an order is made or adecree or resolution is passed for the winding-up, liquidation or dissolution of the Borrower, or (ii) atrustee (curator) is appointed by the competent District Court in the Netherlands in the event of bankruptcy (faillissement) affecting the whole or a substantial part of the undertaking or assets of the Borrower and such appointment is not discharged within 30 days; and Withholding Tax Event means that the Borrower has obtained an opinion in writing from areputable firm of tax advisors of good standing (pre-approved by the Majority Lenders, such

approval not unreasonably to be withheld) to the effect that the Borrower would be required to pay Additional Amounts upon the next due date for apayment in respect of any of the Loans by reason of: any actual or proposed change in or amendment to the laws, regulations or rulings of the Netherlands or any political subdivision or taxing authority thereof or therein; or (ii)

any actual or proposed change in the official application or interpretation of such laws, regulations or rulings; or

(iii)

any action which shall have been taken by any taxing authority or any court of competent jurisdiction of the Netherlands or any political subdivision or taxing authority thereof or therein, whether or not such action was taken or brought with respect to the Borrower,

which change, amendment or execution becomes effective, taking of action occurs, or proposal is made, on or after the date of this Agreement and provided that such Withholding Tax Event cannot be avoided by the Borrower taking all reasonable measures available to it. 1.2

Construction (a)

Unless acontrary indication appears, any reference in this Agreement to: the list of contents and headings are for ease of reference only and shall not be taken into account in construing this Agreement;

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(ii)

"Clauses" and "Schedules" are to be construed as references to the clauses of, and schedules to, this Agreement;

(iii)

the words "include(s)", "including" and "in particular" shall be construed as being by way of illustration or emphasis only and shall not be construed as, nor shall they take effect as, limiting the generality of any preceding words;

(iv)

the expression "this Clause" shall, unless followed by reference to a specific provision, be deemed to refer to the whole clause (not merely the clause, paragraph or other provision) in which the expression occurs;

(v)

any "assignee" of aperson shall include any person who has assumed all or some of the rights and/or obligations of the relevant person, whether by assignment (cessie), transfer of contract (contractsoverneming), novation or otherwise;

(vi)

"in writing" means any communication made by letter or email;

(vii)

"assets" includes revenues, property and rights of every kind, present, future, actual and contingent and whether tangible or intangible (including uncalled share capital);

(viii)

the words "other" and "otherwise" shall not be construed ejusdein generis with any preceding words where awider construction is possible;

(ix)

words importing the "plural" shall include the "singular" and vice versa and words importing genre shall include any genre;

(x)

any "person" or "Person" includes one or more of that person's assignees, transferees, successors in title, delegates, sub-delegates and appointees (in the case of aParty, in so far as such assignees, transferees, successors in title, delegates, sub-delegates and appointees are permitted) and any person, firm, company, corporation, government, state or agency of astate or any association, trust or partnership (whether or not having separate legal personality);

(xi)

a "regulation" includes any regulation, rule, official directive, request or guideline (whether or not having the force of law, but if not having the force of law, only if the persons to whom it is intended to apply generally comply with it) of any governmental, intergovernmental or supranational body, agency, department or regulatory, self-regulatory or other authority or organisation;

(b)

(xii)

any "statute" or "statutory provision" includes any statute or statutory provision which amends, extends, consolidates or replaces it, or which has been amended, extended, consolidated or replaced by it, and any orders, regulations, instruments or other subordinate legislation made under it; and

(xiii)

this "Agreement" or any other agreement or instrument is a reference to the Agreement or other agreement or instrument as amended, varied, novated, supplemented or replaced from time to time.

Unless the contrary intention appears, areference to a"month" or "months" is areference to aperiod starting on one day in acalendar month and ending on the numerically corresponding day in the next calendar month, except that: (i)

if the numerically corresponding day is not aBusiness Day, the period shall end on the next Business Day in that calendar month in which that period is to end if there is one, or if there is not, on the immediately preceding Business Day;

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(ii)

if there is no numerically corresponding day in that month in which that period is to end, that period shall end on the last Business Day in that month; and

(iii)

notwithstanding paragraph (a) above, aperiod which commences on the last Business Day of amonth will end on the last Business Day in the next month or the calendar month in which it is to end, as appropriate.

The above rules will only apply to the last month of any period. (c)

Unless the contrary intention appears, areference to a"year" or "years" is areference to a period starting on one day in acalendar month and ending on the numerically corresponding day in the next calendar year, except that: (subject to Clause 1.2(b)) if the numerically corresponding day is not aBusiness Day, that period shall end on the next Business Day in that calendar year in which that period is to end if there is one or, if there is not, on the immediately preceding Business Day; (ii)

if there is no numerically corresponding day in the calendar year in which that period is to end, that period shall end on the last Business Day in that calendar year; and

(iii)

if an Interest Period begins on the last Business Day of acalendar year, that Interest Period shall end on the last Business Day in the calendar year in which that Interest Period is to end.

The above rules (a) to (c) will only apply to the last year of any period. (d) 1.3

1.4

Section, clause and schedule headings are for ease of reference only.

Third party rights (a)

Unless expressly provided to the contrary in this Agreement, aperson who is not aParty has no right to enforce or to enjoy the benefit of any term of this Agreement.

(b)

Notwithstanding any term of this Agreement, the consent of any person who is not aParty is not required to rescind or vary this Agreement at any time.

Dutch terms In this Agreement, areference to: (a)

a"necessary action to authorise" includes without limitation, where applicable, compliance with any requirements of Wet op de ondernemingsraden (Works Councils Act of the Netherlands);

2.

(b)

any "step or procedure" taken in connection with insolvency proceedings includes aDutch entity having filed anotice under section 36 of the Invorderingswet 1990 (Tax Collection Act of the Netherlands); and

(c)

a"merger" includes ajuridische fusie.

SUBORDINATION (a)

Obligations under the Facility (including in respect of interest and Arrears of Interest) are unsecured and subordinated in accordance with this Clause 2. In the event of the Winding-up

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of the Borrower, the Lenders shall be entitled to claim acash payment equal to the Liquidation Preference. Such claim of the Lenders under the Facility shall rank: junior to the Senior Obligations;

3.

(ii)

paripassu with the Parity Obligations; and

(iii)

senior only to the Junior Instruments.

(b)

Accordingly, no amounts shall be payable in such Winding-up of the Borrower in respect of the Facility unless all the claims of all other Senior Obligations shall have been paid in full.

(c)

Subject to applicable law, no Lender may exercise or claim any right of set-off in respect of any amount owed to it by the Borrower arising under or in connection with the Facility and each Lender will be deemed to have waived all such rights of set-off.

(d)

This Clause 2is an irrevocable stipulation (derdenbeding) for the benefit of the creditors of the Senior Obligations and each such creditor may rely on and enforce this Clause 2under Section 6:253 of the Dutch Civil Code.

THE FACILITY Subject to the terms of this Agreement, the Lenders make available to the Borrower aeuro term loan facility in amaximum aggregate amount equal to the Total Commitments.

4.

PURPOSE

4.1

Purpose The Borrower shall apply all amounts borrowed by it under the Facility towards its general corporate and working capital purposes, including but not limited to refinancing of its existing financial indebtedness.

4.2

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

5.

ALLOCATION OF COMMITMENTS The Commitments of each Lender shall be established and allocated in accordance with the provisions of this Clause 5.

5.1

Lenders (a)

Each Lender shall no later than 10 Business Days prior to the Closing Date, deliver to the Borrower aduly completed and executed Commitment Proposal.

(b)

Upon receipt of all Commitment Proposals, the Borrower shall allocate the available commitments, taking into account the Loan Amount and provided that if the aggregate of the Commitment Proposals exceed the Loan Amount, each Lender's allocated Commitments shall be no greater than the proportion born by the aggregate of Ordinary Shares held by it to the aggregate of Ordinary Shares held by all Shareholders. The total commitments so allocated shall constitute the Initial Allocated Commitments.

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(c)

If the Remaining Available Sum is greater than zero, the Borrower shall allocate the Remaining Available Sum to each Oversubscribing Lender, by allocating aCommitment to each such Oversubscribing Lender which is apercentage of the Remaining Available Sum equal to the percentage of the amount by which its Commitment Proposal exceeds the Relevant Pro Rata Loan Amount relative to the Remaining Available Amount.

(d)

The Borrower shall, no later than 8 Business Days prior to the Closing Date, inform each Lender of its final Commitments and deliver to each Lender an updated Schedule 1(The Lenders) setting out the final Commitments of each Lender on the Closing Date.

6.

CONDITIONS OF UTILISATION

6.1

Conditions precedent to utilisation (a)

The Borrower may not deliver a Request unless the Closing Agent has received all the documents and other evidence listed in Schedule 2 (Conditions precedent) in form and substance satisfactory to the Closing Agent. The Closing 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 Closing Agent in writing to the contrary before the Closing Agent gives the notification described in paragraph (a) above, the Lenders hereby authorise (but do not require) the Closing Agent to give that notification. The Closing Agent shall not be liable for any damages, costs or losses whatsoever as aresult of giving any such notification.

6.2

Further conditions precedent The obligations of each Lender to participate in any Loan are subject to the further conditions precedent that on both the date of the Request and the Utilisation Date for that Loan, the Borrower represents and warrants for the benefit of the Lenders that: (a)

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

(b)

the Representations made by the Borrower (other than the representations set out in Clause 16.7 (No Conversion Event) and Clause 17.11(Tax Deduction)) by reference to the facts and circumstances then existing were true in all material respects.

7.

LOANS

7.1

Delivery of arequest The Borrower shall utilise the Facility by delivery to the Closing Agent of aduly completed Request not later than 5Business Days prior to the Closing Date.

7.2

Lenders' participation If the conditions set out in this Agreement have been met, each Lender shall make its participation in each Loan available by the applicable Closing Date.

8.

REPAYMENT AND PREPAYMENT

8.1

The Borrower shall repay the Loans in full on the Termination Date.

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8.2

The Borrower may, if it gives the Lenders no earlier than 45 days' and no later than 15 days' notice, prepay the whole of the Loans (together with any accrued and unpaid interest and any outstanding Arrears of Interest up to (but excluding) the date of repayment), as follows:

8.3

8.4

(a)

on any Reset Date at 100% of the outstanding principal amount of each Loan; or

(b)

on any Business Day following the occurrence of aRating Event, aSubstantial Repurchase Event, aTax Deduction Event or a Withholding Tax Event, in each case at 101% of the outstanding principal amount of each Loan, (each such prepayment date, aRepayment Date).

Any notice of repayment given by the Borrower pursuant to this Clause 8(a Repayment Notice) shall be irrevocable. The Repayment Notice shall specify: (a)

the Repayment Date;

(b)

the principal amount of the Loans outstanding, in each case as at the latest practicable date prior to the publication of the Repayment Notice; and

(c)

the amount of accrued interest and Arrears of Interest (if any) payable in respect of the Loans on the Repayment Date.

Cancellation If all or part of any Lender's participation in aLoan is repaid or in respect of which Conversion Rights are exercised, an amount of that Lender's Commitment (equal to the amount of participation which is repaid or the amount of the Loan in respect of which Conversion Rights are exercised) will be deemed to be cancelled on the date of repayment or the Conversion Date, as applicable.

8.5

Multiple notices If more than one notice of repayment is given pursuant to this Clause 8, the first of such notices shall prevail.

8.6

Re-borrowing The Borrower may not re-borrow any part of the Facility which is repaid or in respect of which Conversion Rights have been exercised pursuant to Clause 12 (Conversion).

8.7

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

8.8

Prepayment intention The Borrower intends (without thereby assuming alegal or contractual obligation) that it will prepay the Loans only to the extent that the part of the aggregate outstanding principal amount of the Loans to be prepaid which was assigned "equity credit" (or such similar nomenclature used by S&P from time to time) at the time of the entering into of the Loans does not exceed such part of the net proceeds received by the Borrower or any Subsidiary of the Borrower after the applicable Closing Date but on or prior to the date of such prepayment from the sale or issuance of securities or the borrowing of a loan by the Borrower or such Subsidiary to third party purchasers or from third party lenders (other than group entities of the Borrower) which are assigned by S&P "equity credit" (or such similar nomenclature used by S&P from time to time) (but taking into account any changes in hybrid capital

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methodology or another relevant methodology or the interpretation thereof since the entering into of the Loans), unless: (a)

the long-term corporate credit rating assigned by S&P to the Borrower at the time of such prepayment is at least equal to the rating at the time of the last additional hybrid issuance and the Borrower is comfortable that such rating would not fall below this level, as aresult of such prepayment;

(b)

in the case of aprepayment, such prepayment is, taken together with relevant repurchases or redemptions of other Hybrid Securities or Hybrid Loans of the Borrower: (i) in any period of 12 consecutive months starting at the Relevant Time, of less than 10% of the Relevant Amount; or (ii) in any period of 10 consecutive years starting at the Relevant Time, of less than 25% of the Relevant Amount, provided that such prepayment has no materially negative effect on the Borrower's credit profile;

(c)

if, in the case of aprepayment, such prepayment is in an amount necessary to allow the Borrower's aggregate amount of hybrid capital remaining outstanding after such prepayment to remain below the maximum aggregate principal amount of hybrid capital to which S&P would assign equity content under its prevailing methodology;

9.

(d)

the Loans are prepaid pursuant to aSubstantial Repurchase Event, or aTax Deduction Event, aWithholding Tax Event or aRating Event;

(e)

the Loans are not assigned an "equity credit" by S&P (or such similar nomenclature then used by S&P) at the time of such prepayment; or

(f)

such prepayment occurs on or after the Reset Date falling on 15 December 2051.

SUBSTITUTION OR VARIATION The Borrower may, upon the occurrence of aRating Event, aTax Deduction Event or aWithholding Tax Event, at any time, without the consent of the relevant Lenders, either: (a) substitute the Loans (in full) for; or (b) vary the terms of the Loans with the effect that the Loans remain or become, as the case may be, aQualifying Loan. The Lenders shall be obliged to co-operate with such substitution or variation.

10.

COSTS OF UTILISATION

10.1

Interest The rate of interest on the Loan is the Interest Rate.

10.2

Interest rate for any year until the First Reset Date (a)

The interest rate for any Interest Period until the First Reset Date will be calculated by reference to the midpoint of arange of 10 Year Swap Rates that is quoted on each of the second to seventh Business Day before the Closing Date by Ernst & Young together with KPMG (the Selected Parties), rounded to the nearest 5basis points, in accordance with this Clause 10.2.

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(b)

Two Business Days prior to the Closing Date, the applicable 10 Year Swap Rate as determined pursuant to paragraph (a) above will be added to the Margin to create the interest rate applicable to the Loan.

10.3

(c)

For purposes of paragraph (a) and (b) above, any reference to a'Reset Date' in the definition of 10 Year Swap Rate shall be deemed to refer to each of the second to seventh Business Day before to the Closing Date.

(d)

A Pricing Report will be drafted by the Selected Parties, which will be shared with the Borrower and Lenders, excluding any information that cannot be made public on the basis of applicable law (including, for avoidance of doubt, the Market Abuse Regulation) (the Pricing Report).

Payment of interest The Borrower shall pay accrued interest on each Loan on the last day of each Interest Period with the final interest payment in respect of each Loan being paid on the earlier of the Termination Date and the applicable Repayment Date for the Loan.

11.

INTEREST

11.1

Interest Periods (a)

Subject to paragraph (d) below, interest accrued on the Loans shall be payable in arrears and calculated by reference to successive Interest Periods of one (1) years' duration (or such shorter period as may be agreed between the Borrower and the Lender, acting reasonably, with respect to: (i) the Repayment Date for the Loans; or (ii) the last Interest Period in respect of the Loans).

11.2

(b)

Interest on the Loans shall be calculated and payable on the basis of the actual number of days elapsed in a360-day year.

(c)

No Interest Period for the Loans shall extend beyond the earlier of the Termination Date and the applicable Repayment Date.

(d)

The first Interest Period for the Loan starts on the Closing Date. The first Interest Period ends on the first anniversary of the Closing Date.

Non-business days If an Interest Period would otherwise end on aday which is not aBusiness Day, that Interest Period will instead end on the next Business Day in that calendar month (if there is one) or the preceding Business Day (if there is not) and the Interest payable shall be adjusted accordingly.

11.3

Accrual of interest Each Loan will cease to bear interest: (a)

where the Conversion Right shall have been exercised by the Borrower, from the relevant Conversion Date (subject as provided in Clause 12 (Conversion)); or

(b)

where such Loan is repaid pursuant to Clause 8(Repayment and Prepayment) or Clause 18 (Events of Default), from the due date for repayment thereof unless, upon due presentation thereof, payment of principal in respect of such Loan is improperly withheld or refused, in which event interest will continue to accrue at the rate specified in Clause 10.1 (Interest) (both

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before and after judgment) until the day on which all sums due in respect of aLoan up to that day are received by or on behalf of the relevant Lender. 11.4

Optional deferral of interest by the Borrower (a)

The Borrower may, at its discretion, elect to defer all or part of any Interest Payment (a Deferred Interest Payment) which is otherwise scheduled to be paid on an Interest Payment Date by giving notice (a Deferral Notice) of such election to the Lenders in accordance with Clause 24 (Notices) not less than 10 Business Days prior to the relevant Interest Payment Date. Subject to Clause 11.5 (Mandatory settlement of interest), if the Borrower elects not to make all or part of any Interest Payment on an Interest Payment Date, then it will not have any obligation to pay such interest on the relevant Interest Payment Date and any such nonpayment of interest will not constitute an Event of Default or any other breach of its obligations under this Agreement or for any other purpose.

(b)

Any Deferred Interest Payment shall itself bear interest (such further interest together with the Deferred Interest Payment, being Arrears of Interest), at the Interest Rate prevailing from time to time, from (and including) the date on which (but for such deferral) the Deferred Interest Payment would otherwise have been due to be made to (but excluding) the relevant optional settlement date of such Arrears of Interest specified in the Deferral Notice or, as appropriate, such other date on which such Deferred Interest Payment is paid in accordance with Clause 11.5 (Mandatory settlement of interest), in each case such further interest being compounded to the Loans on each Interest Payment Date.

(c)

11.5

Non-payment of Arrears of Interest shall not constitute adefault by the Borrower under this Agreement or for any other purpose, unless such payment is required in accordance with Clause 11.5 (Mandatory settlement of interest).

Mandatory settlement of interest Notwithstanding the provisions of this Clause 11 relating to the ability of the Borrower to defer Interest Payments, the Borrower shall pay any outstanding Arrears of Interest, in whole but not in part, on the first occurring Mandatory Settlement Date following the Interest Payment Date on which aDeferred Interest Payment first arose.

12.

CONVERSION

12.1

Conversion Right (a)

If (i)

aConversion Event has occurred and as long as it is continuing; or

(ii)

the Majority Lenders have so requested and the Borrower has so agreed, and subject to and as provided in this Agreement, the Borrower shall be entitled to convert each Loan and any outstanding Arrears of Interest, together with any accrued and unpaid interest to (but excluding) the relevant Conversion Date (together, the Convertible Amount) relating to such Loan into new and/or existing Ordinary Shares, as determined by the Borrower, credited as fully paid (a Conversion Right).

If the Lenders do not agree with the Convertible Amount as determined by the Borrower, the Selected Independent Valuation Service Provider shall be requested to determine the Convertible Amount and any such determination shall be binding on all Parties.

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(b)

The number of Ordinary Shares to be issued on exercise of aConversion Right in respect of a Loan shall be determined by dividing the Convertible Amount outstanding on the Conversion Date by the market value per Ordinary Share (such value per Ordinary Share, as calculated in accordance with Clause 12.2, the Conversion Price) in effect on the relevant Conversion Date.

(e)

Conversion Rights may only be exercised in respect of the Convertible Amount in relation to such Loan (if any).

(d)

The resultant Conversion Price, if not an integral multiple of €1.00 (one Euro), shall be rounded down to the nearest whole multiple of €1.00 (one Euro). The part of the Conversion Price that will not be converted because of the aforementioned rounding off, will be paid in cash by the Borrower to the relevant Lenders before issuing the Conversion Shares.

(e)

Fractions of Conversion Shares will not be issued to the Lenders upon the exercise of a Conversion Right and no cash payment will be made in lieu thereof.

(0

Any interest amounts unpaid and accrued during the period from (and including) the dividend payment date immediately preceding the relevant Conversion Date to (but excluding) the relevant Conversion Date, forming part of the Convertible Amount relating to aLoan, shall be deducted by the Borrower from any dividend amount payable in respect of the Ordinary Shares received by aLender following exercise by the Borrower of its Conversion Right on the dividend payment date immediately succeeding the relevant Conversion Date.

(g)

The Borrower undertakes that prior to the exercise by it of its Conversion Right, it shall use its best efforts to investigate whether in its sole determination it is commercially feasible to issue Hybrid Loans or Hybrid Securities to parties other than the Lenders instead of exercising its Conversion Right and the Borrower will discuss this investigation with the Lender Committee. In making such determination the Borrower shall amongst other things take into account its funding plan, its financial policy framework and any guidance received from the Rating Agencies in respect of the impact of any decision not to exercise its Conversion Right on the Borrower's credit ratings and the FFO/Net Debt Ratio.

(h)

Upon the first exercise by the Borrower of its Conversion Right, each Loan, together with any accrued and unpaid interest to (but excluding) the relevant Conversion Date and any outstanding Arrears of Interest, shall be converted into Ordinary Shares in accordance with this Clause 13.1 for an amount at least equal to EUR 200,000,000 in aggregate principal amount of the Loans or, in the case or the occurrence of an event mentioned under (c) of the definition of Conversion Event, any amount in excess of EUR 200,000,000 in aggregate principal amount of the Loans that as determined by the Selected Independent Valuation Service Provider is required to accomplish that an event mentioned under (c) of the definition of Conversion Event no longer occurs. The Borrower shall provide the substantiated analysis of such determination by the Selected Independent Valuation Service Provider to the Lenders prior to the exercise of its Conversion Right. Any such exercise by the Borrower of its Conversion Right shall be for apro rata part of each Loan.

(i)

Upon the exercise by the Borrower of its Conversion Right in the case or the occurrence of an event mentioned under (c) of the definition of Conversion Event, the Selected Independent Valuation Service Provider shall validate the expectation of the Borrower that within 18 months after the date by reference to which it is determined that it has fallen below 16% (i) the FFO/Net Debt Ratio will not increase to at least 16% or (ii) the FFO/Net Debt Ratio will fall below 15% and shall include such validation in the valuation report referred to in Clauses 12.2 and 12.3. If no such validation can be made by the Selected Independent Valuation

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Service Provider aConversion Event mentioned under (c) of the definition of Conversion Event shall be deemed not to have occurred. (i)

If as aresult of the exercise by the Borrower of its Conversion Right aChange of Control would occur, the Convertible Amount of the Loan of the Lender that would as aresult of such exercise by the Borrower of its Conversion Right directly or indirectly or acquire(s) or come(s) to own (A) more than 50 per cent. of the issued Ordinary Shares of the Borrower or (B) such number of the shares in the capital of the Borrower carrying more than 50 per cent, of the voting rights normally exercisable at ageneral meeting of shareholders of the Borrower, will be determined by the Borrower in such amanner that aChange of Control shall not occur and any remaining amount of the Loan of that Lender not converted into Ordinary Shares shall be repaid by the Borrower to that Lender on the relevant Conversion Date.

12.2

Conversion Price (a)

The Conversion Price shall be calculated by the Selected Independent Valuation Service Provider, which shall prepare avaluation report for this purpose. Upon receipt of the valuation report, the Borrower shall request Lender Committee to appoint an Independent Valuation Service Provider to prepare afairness opinion in respect of the valuation report for the benefit of the Lenders. For this purpose, the valuation report prepared by the Selected Independent Valuation Service Provider shall be shared with the Independent Valuation Service Provider appointed by the Lender Committee and the valuation report will be available for inspection by the Lender Committee at the registered office of the Borrower.

(b)

The Selected Independent Valuation Service Provider shall base the valuation of the Ordinary Shares on: (i)

events, circumstances and assumptions assuming a Conversion Event has occurred based on events, circumstances and assumptions on the last day of the month ending prior to the date of the Conversion Notice;

(ii)

the premise of value and framework assumptions, which were used in the most recent Independent Valuation Opinion, as included in Schedule 6(Valuation Framework), to the extent possible and considered to be reasonable by the Selected Independent Valuation Service Provider.

12.3

Independent Valuation Service Provider (a)

The Conversion Notice sent by the Borrower to the Lenders shall include the details of no more than three parties that the Borrower would be willing to appoint as Independent Valuation Service Provider.

(b)

Within 3 Business Days of receipt by the Lenders of the Conversion Notice, the Lender Committee shall select one of the three proposed parties as Independent Valuation Service Provider (the Selected Independent Valuation Service Provider) and shall inform the Borrower accordingly. In case the Borrower is not so informed or the Lenders have not made aselection, in each case within 3Business Days of receipt by the Lenders of the Conversion Notice, it shall appoint, in its sole discretion, any of the three parties suggested to the Lenders in the Conversion Notice.

(c)

The engagement of the Selected Independent Valuation Service Provider shall provide for a 60-day term to prepare the valuation report and promptly deliver the valuation results to the Borrower.

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(d)

Should the Selected Independent Valuation Service Provider not issue the valuation report in accordance with the terms of this Clause 12 or significantly qualify the valuation:

(c)

(i)

the Borrower shall immediately inform the Lenders in writing; and

(ii)

the Borrowers and the Lenders shall appoint adifferent valuation services provider in accordance with this Clause 12.3.

The Selected Independent Valuation Service Provider will be given access to the Borrower's most recent long term financial plan taking into account the facts and circumstances which have precipitated the Conversion Event, and other information reasonably required by the Selected Independent Valuation Service Provider in order to prepare the valuation on the basis of anon-disclosure agreement and will be made an insider for the purposes of the Market Abuse Regulation.

12.4

Procedure for exercise of Conversion Right (a)

The Conversion Right may be exercised by the Borrower by delivering to the Lenders, during usual business hours, aduly completed and signed notice of conversion (a Conversion Notice) stating the Convertible Amount and specifying the outstanding principal amount of the Loans, the amount of any accrued and unpaid interest and any amount of Arrears of Interest related thereto, the Borrower's explicit statement of exercise of the Conversion Right, the Conversion Event that has resulted in the Conversion Right and asubstantiation thereof, the names and details of the three proposed Independent Valuation Service Providers, aconfirmation that the proposed conversion will comply with applicable fiscal and other laws and regulations applicable to the Borrower and containing such further information as may reasonably be required pursuant to this Agreement.

(b)

Conversion Rights shall be exercised subject in each case to any applicable fiscal and other laws or regulations applicable to the Borrower.

(c)

If the delivery of the Conversion Notice as described in paragraph (a) above is made after the end of normal business hours or on aday which is not aBusiness Day in the Netherlands, such delivery shall be deemed for all purposes of this Agreement to have been made on the next following Business Day.

(d)

A Conversion Notice, once delivered, shall be irrevocable.

(e)

The conversion date in respect of aLoan (the Conversion Date) shall be the first day of the second calendar month immediately following the receipt by the Borrower of the valuation report prepared by the Selected Independent Valuation Service Provider, or such later date as may be agreed by the Borrower and the Lender Committee (acting on the instructions of the Majority Lenders) in writing.

(f)

Upon the delivery of aConversion Notice and if required for purposes of effectuating the Conversion Right, the Borrower shall promptly: (i)

provide evidence of the Issuance Authorisation; and

(ii)

if required, call ashareholders' meeting for the purpose of amending the Articles of Association and increasing the share capital of the Borrower by an amount to be calculated in accordance with the Conversion Price, subject to applicable law; and

(iii)

provide adraft notarial deed of issue of shares with an irrevocable power of attorney to be signed by each Lender for the execution of the notarial deed of issue of shares.

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The Borrower and the Shareholders, and to the extent required under applicable law or the Articles of Association, the Lenders, shall take any such action, at the cost and expense of the Borrower, as may be necessary to effect the registration and effectiveness of the capital increase. 12.5

Ordinary Shares Ordinary Shares issued upon exercise of Conversion Rights will be fully paid and will in all respects rank pari passu with the fully paid Ordinary Shares in issue on the relevant Conversion Date, except in any such case for any right excluded by mandatory provisions of applicable law and except that such Ordinary Shares will not rank for (or, as the case may be, the relevant holder shall not be entitled to receive) any rights, distributions or payments the record date or other due date for the establishment of entitlement for which falls prior to the relevant Conversion Date.

12.6

Limitations on ownership of Ordinary Shares The Lenders acknowledge that the Ordinary Shares issued upon conversion of any Loan are subject to the provisions of Dutch corporate law and the limitations on ownership in accordance with the Articles of Association of the Borrower, relating to the requirement that the Borrower must at all times be directly or indirectly owned or controlled by the Dutch State, municipalities or provinces.

12.7

Issuance Authorisation Each year the Lenders and other shareholders of the Borrower shall be asked by the Borrower to cast their vote at ashareholders' meeting of the Borrower, in favour of such aresolution to ensure that the Issuance Authorisation again has avalidity of the maximum statutory period of 5years.

13.

TAXATION

13.1

Definitions (a)

13.2

In this Agreement:

(i)

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

(ii)

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

(iii)

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

(iv)

Tax Payment means either the increase in apayment made by an Obligor to aLender under Clause 13.2 (Tax gross-up) or apayment 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 aTax Deduction (or that there is any change in the rate or the basis of a Tax Deduction) notify the Lender Committee accordingly. Similarly, aLender shall notify the Lender Committee on becoming so aware in respect of apayment payable to that Lender. If the Lender Committee receives such notification from aLender it shall notify the Borrower.

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13.3

(c)

If aTax 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 if no Tax Deduction had been required.

(d)

If the Borrower is required to make aTax 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.

(c)

Within thirty days of making either aTax 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 aProtected 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: (i)

with respect to any Tax assessed on aLender 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 aloss, liability or cost is compensated for by an increased payment under Clause 13.2 (Tax gross-up).

(c)

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)

A Protected Party shall, on receiving apayment from the Borrower under this Clause 13.3, notify the Lender Committee.

13.4

Tax credit If the Borrower makes aTax Payment and the relevant Lender determines that: (a)

aTax Credit is attributable to an increased payment of which that Tax Payment forms part, to that Tax Payment or to aTax 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 aLender 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 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 (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 aLender 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 aLender 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, aMitigation Period) to try to find ameans 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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(c)

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

(d)

14.2

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 If the Borrower requests an amendment, waiver or consent, the Borrower shall reimburse the Lenders 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 apublic 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: (a)

any law or regulation applicable to it;

(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 adefault 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 aMaterial 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 of 20 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 aLender.

(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)

It is not (and none of its Subsidiaries is) materially overdue in the filing of any Tax returns 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 amaterial adverse effect.

(c)

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 aliability of, or claim against, any member of the Group would have or would be reasonably likely to have amaterial adverse effect.

16.14

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)

(b)

The representations set out in this Clause 16 are made by the Borrower on the date of this Agreement. Unless arepresentation is expressed to be given at aspecific 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 arepresentation 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 approval of the Majority Lenders, (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: (j)

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 aconsideration 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 aresult 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 apurchase 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 depositary or other receipts or certificates representing Ordinary Shares without the consent of any Lender;

18.

(d)

provide to the Lenders, by no later than 5Business 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 amaterial 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.