Polestar与吉利关联方GSAI签署4亿美元定期贷款协议，用于置换现有吉利现金担保银行贷款，含债转股权利

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6-K
1
tm2624554d1_6k.htm
FORM 6-K
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 6-K
REPORT OF FOREIGN PRIVATE ISSUER
PURSUANT TO RULE 13a-16 OR 15d-16
UNDER THE SECURITIES EXCHANGE ACT OF 1934
For the month of September 2026
Commission File Number: 001-41431
Polestar Automotive Holding UK PLC
Assar Gabrielssons Väg 9
405 31 Göteborg, Sweden
(Address of principal executive office)
Indicate by check mark whether the registrant files or will file annual
reports under cover of Form 20-F or Form 40-F.
Form 20-F
x
Form 40-F
¨
Indicate by check mark if the registrant is submitting the Form 6-K in
paper as permitted by Regulation S-T Rule 101(b)(1):
¨
Indicate by check mark if the registrant is submitting the Form 6-K in
paper as permitted by Regulation S-T Rule 101(b)(7):
¨
INFORMATION CONTAINED IN THIS REPORT ON FORM 6-K
On September 3,
2026, Polestar Automotive Holding UK PLC (“Polestar”), as borrower, entered into the credit agreement in relation to a USD 400,000,000 term
loan facility (the “Term Loan Facility”) with Geely Sweden Automotive Investment AB, as original lender and
agent (“GSAI”). GSAI is a wholly-owned subsidiary of Geely Sweden Holdings AB, the parent company
of Volvo Car AB (publ), and one of Polestar’s affiliates. The first USD 100,000,000 of the Term Loan Facility is committed
and the second USD 300,000,000, which is to be disbursed in an equivalent amount of RMB, is uncommitted and therefore available only
with lender consent.
The Term Loan Facility consists
of a USD 100,000,000 term loan denominated in U.S. dollars (the “Term A Loan”) and a USD 300,000,000 term loan that
will be denominated and disbursed in Chinese Renminbi (RMB) available for repayment of certain outstanding loans. The Term Loan
Facility is available for utilization until 30 September 2026 and is required to be repaid on the Termination Date falling
365 days from the first Utilization Date, subject to GSAI exercising an option to convert all or part of the loan and
accrued interest into shares of Polestar at an equity conversion price calculated based on an average closing price
as reported by NASDAQ for the Class A American Depositary Shares of the Borrower over the 5 trading days immediately preceding the
date of the Equity Conversion Exercise Notice (as defined in the Term Loan Facility).
The Term Loan is subordinated
to the EUR 340,000,000 and USD 583,489,000 multicurrency green term loan facilities agreement entered into by Polestar as Borrower
and amongst others, the Original Lenders (as defined in the agreement) as lenders and Standard Chartered Bank as security agent and agent
on February 22, 2024 (the “Club Loan Facilities Agreement”). Repayment of Loans and accrued interest on
the Termination Date is subject to the lenders under the Club Loan Facilities Agreement having consented to releasing the
liabilities owed by the Borrower under the Term Loan Facility from the subordination.
The interest rate applicable
to borrowings under the Term A Loan is Term SOFR (as described in the Term Loan Facility and subject to a zero floor) plus 3.20%.
The interest rate applicable to borrowings under the Term B Loan is 4.48%, unless, with lender consent, the Term B Loan is disbursed
in USD, in which case the rate will be the same as the Term A Loan. Accrued interest on the Term A Loan and Term B Loan is payable on
the Termination Date. Polestar may voluntarily prepay loans or reduce commitments under the Term Loan Facility, in whole or in part,
subject to minimum amounts, with prior notice but without premium or penalty. Polestar has an obligation to prepay the loan
on the occurrence of a change of control or illegality.
Polestar’s obligations
under the Term Loan Facility are not guaranteed or secured. The Term Loan Facility contains customary negative covenants, including,
but not limited to, restrictions on Polestar’s ability to make certain acquisitions, loans and guarantees. The Term Loan Facility
also contains certain affirmative covenants, including, but not limited to, certain information undertakings and access to
senior management.
The Term Loan Facility contains
certain customary representations and warranties, subject to certain customary materiality, best knowledge and other qualifications,
exceptions and baskets, and with certain representations and warranties being repeated, including: (i) status; (ii) binding
obligations; (iii) non-conflict with constitutional documents, laws or other obligations; (iv) power and authority; (v) validity
and admissibility in evidence; (vi) governing law and enforcement; (vii) ranking; and (viii) financial information.
The Term Loan Facility provides
that, upon the occurrence of certain events of default, Polestar’s obligations thereunder may be accelerated. Such events of default
include payment defaults to GSAI thereunder, material inaccuracies of representations and warranties, covenant defaults, cross acceleration
with respect to our other indebtedness, corporate arrangement, winding-up, liquidation or similar proceedings, creditors’ process
affecting assets over a certain minimum amount, and other customary events of default. The Term Loan Facility is governed by
English law.
As promptly as practicable
following the Equity Conversion Date (as defined in the Term Loan Facility), the Borrower and the Lender will enter into a registration
rights agreement that is, in form and substance, similar to the registration rights agreement dated 27 September 2021, as later
amended, among the Borrower and other parties (the "Registration Rights Agreement"). Polestar has agreed to include any Conversion
Shares issued by Polestar to GSAI pursuant to exercise of the Conversion Right pursuant to the Term
loan Facility in the definition of "Registrable Securities" in the Registration Rights Agreement. Polestar has agreed,
within 90 days following the Equity Conversion Date, to file a new shelf registration statement on Form F-3 in
view of registering the resale of any Conversion Shares and cause such registration statement to become effective as soon as practicable after
such filing.
A copy of the Term Loan
Facility is included in this Report on Form 6-K as Exhibit 10.1 and the foregoing description of the Term Loan Facility
is qualified in its entirety by reference thereto.
Exhibits 10.1 to
this Report on Form 6-K shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of
1934 (the “Exchange Act”) or otherwise subject to the liabilities of that section, nor shall they be deemed incorporated
by reference in any filing under the Securities Act of 1933 or the Exchange Act.
EXHIBIT INDEX
Exhibit No.
Description
of Exhibit
10.1
GSAI
AB Polestar Facilities Agreement dated S
eptember
3,
2026.
SIGNATURES
Pursuant to the requirements of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
POLESTAR
AUTOMOTIVE HOLDING UK PLC
Date:
September 3, 2026
By:
/s/ Michael Lohscheller
Name:
Michael
Lohscheller
Title:
Chief
Executive Officer
Date:
September 3, 2026
By:
/s/ Jean-François Mady
Name:
Jean-François
Mady
Title:
Chief
Financial Officer

----- tm2624554d1_ex10-1.htm -----
EX-10.1
2
tm2624554d1_ex10-1.htm
EXHIBIT 10.1
Exhibit 10.1
Execution version
USD 400,000,000
FACILITY
AGREEMENT
dated
3 September 2026
for
POLESTAR
AUTOMOTIVE HOLDING UK PLC
as Borrower
with
Geely Sweden
Automotive Investment AB
as Lender
TERM FACILITY AGREEMENT
Contents
Clause
Page
1.
Definitions and Interpretation
1
2.
The Facility
12
3.
Purpose
12
4.
Conditions of Utilisation
12
5.
Utilisation
13
6.
Repayment
13
7.
Prepayment and Cancellation
15
8.
Interest
17
9.
Interest Periods
18
10.
Changes to the Calculation of Interest
18
11.
Subordination
20
12.
Tax Gross Up and Indemnities
21
13.
Increased Costs
25
14.
Other Indemnities
27
15.
Mitigation by the Lender
29
16.
Costs and Expenses
29
17.
Representations
30
18.
Information Undertakings
32
19.
General Undertakings
34
20.
Events of Default
36
21.
Changes to the Lender
39
22.
Changes to the Borrower
40
23.
Role of the Agent
40
24.
Conduct of business by the Finance Parties
47
25.
Payment Mechanics
47
26.
Set-off
50
27.
Notices
51
28.
Calculations and Certificates
53
29.
Partial Invalidity
53
30.
Remedies and Waivers
53
31.
Amendments and Waivers
53
32.
Confidential Information
54
33.
Confidentiality of Funding Rates
57
34.
Counterparts
58
35.
Governing Law
58
36.
Enforcement
59
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i
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Schedule
1 Conditions Precedent to Initial Utilisation
60
Schedule
2 Utilisation Request
61
Schedule
3 Form of Equity Conversion Exercise Notice
62
Schedule
4 Reference Rate Terms
63
Schedule
5 Form of Compliance Certificate
66
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ii
-
THIS AGREEMENT
is dated 3 September 2026
and made between:
(1)
POLESTAR AUTOMOTIVE HOLDING UK PLC
, a public limited
company registered in England and Wales with number 13624182 (the "
Borrower
");
(2)
Geely Sweden Automotive Investment AB
,
a private
company incorporated under Swedish law and registered with the Swedish Companies Registration Office under number 559263-3035, as lender
(the "
Original Lender
"); and
(3)
Geely Sweden Automotive Investment AB
,
a private
company incorporated under Swedish law and registered with the Swedish Companies Registration Office under number 559263-3035, as facility
agent (the "
Agent
").
IT IS AGREED
as follows:
1.
Definitions and Interpretation
1.1
Definitions
In this Agreement:
"
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.
"
Alternative Term Rate
"
means any rate specified as such in the Reference Rate Terms.
"
Alternative Term Rate Adjustment
"
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.
"
Authorisation
" means
an authorisation, consent, approval, resolution, licence, exemption, filing, notarisation or registration.
"
Availability Period
"
means the period from and including the date of this Agreement to and including 30 September 2026.
"
Available Facility
"
means the amount of the Facility minus:
(a)
the amount of any outstanding Loans; and
(b)
in relation to any proposed Utilisation, the amount of any Loans that are due to be made on or before
the proposed Utilisation Date.
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1
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"
Break Costs
" means
the amount (if any) by which:
(a)
the interest (excluding Margin) which the Lender should have received for the period from the date of
receipt of all or any part of its participation in the relevant 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 the 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 Hong Kong, Amsterdam, London, Stockholm and New
York and, in relation to the fixing of an interest rate in relation to a Loan, which is an Additional Business Day relating to that Loan
or Unpaid Sum.
"
Cashflow Forecast
"
means the cashflow forecast most recently delivered to the Agent in accordance with Clause 18.2 (
Cashflow Forecast
).
"
Code
" means the US
Internal Revenue Code of 1986.
"
Compliance Certificate
"
means a certificate substantially in the form set out in Schedule 5 (
Form of Compliance Certificate
).
"
Confidential Information
"
means all information relating to the Borrower, the Finance Documents or the 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 the Facility from the Borrower or any of its advisers in whatever form, and includes information
given orally and any document, electronic file or any other way of representing or recording information which contains or is derived
or copied from such information but excludes:
(a)
information that:
(i)
is or becomes public information other than as a direct or indirect result of any breach by that Finance
Party of Clause 32 (
Confidential Information
); or
(ii)
is identified in writing at the time of delivery as non-confidential by the Borrower or any of its advisers;
or
(iii)
is known by that Finance Party before the date the information is disclosed to it 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 Borrower and
which, in either case, as far as that Finance Party is aware, has not been obtained in breach of, and is not otherwise subject to, any
obligation of confidentiality, and
-
2
-
(b)
any Funding Rate.
"
Confidentiality Undertaking
"
means a confidentiality undertaking substantially in a recommended form of the LMA or in any other form agreed between the Borrower and
the Agent.
"
Conversion Right
"
has the meaning given to it in Clause 6.2 (
Lender debt-for-equity option
).
"
Conversion Shares
"
means shares of the same class, bearing the same rights and entitlements, and ranking
pari passu
in all respects, with the shares
offered by the Borrower to investors pursuant to the terms of the Equity Conversion.
"
Converted Amount
"
has the meaning given to it in Clause 6.2 (
Lender debt-for-equity option
).
"
Daily Rate
" means
the rate specified as such in the Reference Rate Terms.
"
Default
" means an
Event of Default or any event or circumstance specified in Clause 20 (
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.
"
Designated Recipients
"
means:
(a)
Zhe Jia (
zhe.jia1@geely.com
) and
(b)
Peter Lundin (
peter.lundin@gshab.com
).
"
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 Facility (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.
-
3
-
"
Equity Conversion
"
means a partial or full conversion of principal and accrued interest due to the Lender under this Facility into of shares (or depositary
receipts or other securities representing shares) of any class in the share capital of the Borrower.
"
Equity Conversion Date
"
means the date on which the relevant shares are delivered to Lender by the Borrower pursuant to the terms of the Equity Conversion.
"
Equity Conversion Price
"
means the price per share at which the Equity Conversion shall occur, which shall be calculated based on an average closing price as reported
by NASDAQ for the Class A American Depositary Shares of the Borrower over the 5 trading days immediately preceding the date of the
Equity Conversion Exercise Notice.
"
Equity Conversion Exercise
Notice
" means a notice duly completed and delivered by the Lender to the Borrower specifying that a particular amount of principal
and accrued interest in respect of one or more outstanding Loans is subject to conversion.
"
Event of Default
"
means any event or circumstance specified as such in Clause 20 (
Events of Default
).
"
Facility
" means the
term loan facilities made available under this Agreement described in Clause 2 (
The Facility
), comprising: (a) a USD term
loan facility in an aggregate amount of USD 100,000,000 (“Tranche A”); and (b) a term loan facility in an aggregate amount
equivalent to USD 300,000,000, to be disbursed in RMB (CNY) (with the RMB equivalent determined using the Spot Rate on the relevant Utilisation
Date) or, with the prior written consent of the Lender, in USD (“Tranche B”), to the extent not cancelled or reduced under
this Agreement.
"
Facility Office
" means
the office or offices identified with the Lender's signature below or such other office as it may from time to time select by notice to
the Borrower 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
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4
-
(b)
in relation to a "passthru payment" described in section 1471(d)(7) of the Code not falling
within paragraph (a) above, the first date from which such payment may become subject to a deduction or withholding required by FATCA.
"
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.
"
Finance Document
"
means this Agreement and any other document designated as such by the Agent and the Borrower.
"
Finance Party
" means
any of the Agent or any Lender.
"
Financial Indebtedness
"
means (without double counting) any indebtedness for or in respect of:
(a)
moneys borrowed;
(b)
any acceptance credit (including any dematerialised equivalent);
(c)
any bond, note, debenture, loan stock or other security (other than Trade Instruments);
(d)
the amount of any liability in respect of any lease or hire purchase contract which would, in accordance
with GAAP, be treated as a balance sheet liability;
(e)
receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse
basis);
(f)
the acquisition cost of any asset or service to the extent payable before or after its acquisition or
possession by the party liable where the advance or deferred payment:
(i)
is arranged primarily as a method of raising finance or of financing the acquisition of that asset or
service or the construction of that asset or service; or
(ii)
is due more than 210 days after the date of acquisition or supply;
(g)
for the purpose of Clause 20.4 (
Cross default
) only, any gains or losses realised on the termination
of any Treasury Transaction to the extent not settled on its due date and only where such early settlement has been caused by a default
(however described) of the Borrower;
(h)
any counter-indemnity obligation in respect of any guarantee, indemnity, bond, letter of credit or any
other instrument issued by a bank or financial institution in respect of an underlying liability other than Trade Instruments; or
(i)
any guarantee, indemnity or similar assurance against financial loss of any person in respect of any item
referred to in the above paragraphs.
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5
-
"
Financial Quarter
"
means the period commencing on the day after one Quarter Date and ending on the next Quarter Date.
"
Funding Rate
" means
any individual rate notified by the Lender to the Agent pursuant to paragraph (a)(ii) of Clause 10.3 (
Cost of funds
).
"
GAAP
" means generally
accepted accounting principles in the United Kingdom including IFRS.
"
Holding Company
" means,
in relation to a person, any other person in respect of which it is a Subsidiary.
"
IFRS
" means UK- adopted
international accounting standards within the meaning of section 474(1) of the Companies Act 2006 to the extent applicable to the
relevant financial statements.
"
Interest Period
" means,
in relation to a Loan, each period determined in accordance with Clause 9 (
Interest Periods
) and, in relation to an Unpaid
Sum, each period determined in accordance with Clause 8.3 (
Default interest
).
"
Interpolated Alternative Term
Rate
" means, in relation to any Loan, the rate (rounded to the same number of decimal places as the relevant Alternative Term
Rate) which results from interpolating on a linear basis between:
(a)
either:
(i)
the applicable Alternative Term Rate (as of the Quotation Time) for the longest period (for which that
Alternative Term Rate is available) which is less than the Interest Period of that Loan; or
(ii)
if no such Alternative Term Rate is available for a period which is less than the Interest Period of that
Loan, the applicable Overnight Rate (if any) for the Overnight Reference Day; and
the applicable Alternative Term Rate
(as of the Quotation Time) for the shortest period (for which that Alternative Term Rate is available) which exceeds the Interest Period
of that Loan.
"
Interpolated Primary Term Rate
"
means, in relation to any Loan, the rate (rounded to the same number of decimal places as the relevant Primary Term Rate) which results
from interpolating on a linear basis between:
(a)
either:
(i)
the applicable Primary Term Rate (as of the Quotation Time) for the longest period (for which that Primary
Term Rate is available) which is less than the Interest Period of that Loan; or
(ii)
if no such Primary Term Rate is available for a period which is less than the Interest Period of that
Loan, the applicable Overnight Rate (if any) for the Overnight Reference Day; and
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6
-
(b)
the applicable Primary Term Rate (as of the Quotation Time) for the shortest period (for which that Primary
Term Rate is available) which exceeds the Interest Period of that Loan.
"
ITA
" means the Income
Tax Act 2007.
"
Legal Reservations
"
means:
(a)
the principle that certain remedies may be granted or refused at the discretion of a court and the limitation
of enforcement by laws relating to bankruptcy, insolvency, reorganisation and other laws generally affecting the rights of creditors;
(b)
the time barring of claims under applicable limitation laws (including the English Limitation Acts), defences
of set-off or counterclaim and the possibility that an undertaking to assume liability for or indemnify a person against non-payment of
UK stamp duty may be void; and
(c)
similar principles, rights and defences under the laws of any Relevant Jurisdiction.
"
Lender
" means:
(a)
the Original Lender; and
(b)
any entity which has become a Party as a "Lender" in accordance with Clause 21 (
Changes to
the Lender
),
which in each case has not ceased to
be a Party as such in accordance with the terms of this Agreement.
"
LMA
" means the Loan
Market Association.
"
Loan
" means a loan
made or to be made under the Facility or the principal amount outstanding for the time being of that loan.
"
Margin
" means 3.20
per cent. per annum.
"
Material Adverse Effect
"
means any event or condition that (individually or in aggregate) has a material adverse effect on the ability of the Borrower to perform
its payment obligations under the Finance Documents taking into account all other relevant circumstances, including (i) any insurance,
warranty, or other claim or indemnification in respect of such event or circumstances held by the Borrower (and having regard to the creditworthiness
of each insurer, warrantor or indemnifier) and (ii) any commitment by any person to provide any additional contribution, subscription
of equity or other amount directly or indirectly to the Borrower (and having regard to the creditworthiness of the person and the latest
date by which such payment is committed to be made).
"
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.
-
7
-
"
Original Jurisdiction
"
means, in relation to the Borrower, the jurisdiction under whose laws the Borrower is incorporated as at the date of this Agreement.
"
Overnight Rate
" means
the rate (if any) specified as such in the Reference Rate Terms.
"
Overnight Reference Day
"
means the day (if any) specified as such in the Reference Rate Terms.
"
Primary Term Rate
"
means the rate specified as such in the Reference Rate Terms.
"
Party
" means a party
to this Agreement.
"
Quarter Date
" means
each of 31 March, 30 June, 30 September and 31 December.
"
Quotation Day
" means
the day specified as such in the Reference Rate Terms.
"
Quotation Time
" means
the relevant time specified as such in the Reference Rate Terms.
"
Quoted Tenor
" means,
in relation to a Primary Term Rate or an Alternative Term Rate, any period for which that rate is customarily displayed on the relevant
page or screen of an information service.
"
Reference Rate Terms
"
means the terms set out in Schedule 4 (
Reference Rate Terms
).
"
Registration Rights Agreement
"
has the meaning given to it in Clause 19.6 (
Registration Rights
).
"
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 Clearing System
"
means the Depository Trust Company.
"
Relevant Market
" means
the market specified as such in the Reference Rate Terms.
"
Repayment Date
" means
the Termination Date.
"
Repeating Representations
"
means each of the representations set out in Clauses 17.1 (
Status
) to 17.6 (
Governing law and enforcement
) (inclusive) and
Clauses 17.9 (
No default
) to 16.10 (
Pari passu ranking
) (inclusive).
"
Reporting Day
" means
the day specified as such in the Reference Rate Terms.
"
Reporting Time
" means
the relevant time specified as such in the Reference Rate Terms.
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8
-
"
Representative
" means
any delegate, agent, manager, administrator, nominee, attorney, trustee or custodian.
"
Securities Act
" has
the meaning given to it in clause 19.6 (
Registration Rights
).
"
Security
" means a
mortgage, charge, pledge, lien or other security interest securing any obligation of any person or any other agreement or arrangement
having a similar effect.
"
Subsidiary
" means
a subsidiary undertaking within the meaning of section 1162 of the Companies Act 2006 which for this purpose shall be treated as including
any person the shares or ownership interests in which are subject to Security and where the legal title to the shares or ownership interests
so secured are registered in the name of the secured party or its nominee pursuant to such Security.
"
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).
"
Term Reference Rate
"
means, in relation to a Loan:
(a)
the Primary Term Rate as of the Quotation Time for a period equal in length to the Interest Period of
that Loan; or
(b)
as otherwise determined pursuant to Clause 10.1 (
Interest calculation if no Primary Term Rate
),
and if, in either case, that rate is
less than zero, the Term Reference Rate shall be deemed to be zero.
"
Termination Date
"
means the date falling 365 days from the Proposed Utilisation Date as set out in the first Utilisation Request hereunder.
"
Trade Instruments
"
means any performance bonds, advance payment bonds or documentary letters of credit issued in respect of the obligations of the Borrower
arising in the ordinary course of business of the Borrower.
“
Tranche A
” has the
meaning given to it in Clause 2
(The Facility)
.
“
Tranche A Loan
”
means a Loan made under Tranche A.
“
Tranche B
” has the
meaning given to it in Clause 2
(The Facility)
.
“
Tranche B Interest Rate
”
means, in respect of a Tranche B Loan disbursed in RMB (CNY), the fixed interest rate of 4.48 per cent. per annum, calculated on the RMB
principal amount and payable in RMB (CNY). Where a Tranche B Loan is disbursed in USD with the Lender’s consent, the Tranche B Interest
Rate shall not apply and the interest rate provisions applicable to Tranche A Loans shall apply instead.
“
Tranche B Loan
”
means a Loan made under Tranche B.
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"
Treasury Transaction
"
means any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price entered
into in connection with treasury operations conducted as part of the ordinary course of business of the Borrower.
"
Unpaid Sum
" means
any sum due and payable but unpaid by the Borrower under the Finance Documents.
"
US
" means the United
States of America.
“
USD/CNY Spot Rate
”
means, in respect of any Utilisation under Tranche B, the Bloomberg BFIX USD/CNY Mid Rate published at or about 15.00 p.m. London
time on the date falling two Business Days prior to such Utilisation Date, as displayed on the Bloomberg terminal under the applicable
Bloomberg BFIX fixing.
"
Utilisation
" means
a utilisation of the Facility.
"
Utilisation Date
"
means the date of a Utilisation, being the date on which the relevant Loan is to be made.
"
Utilisation Request
"
means a notice substantially in the relevant form set out in Schedule 2 (
Utilisation Request
).
"
VAT
" means:
(a)
any value added tax imposed by the UK Value Added Tax Act 1994;
(b)
any tax imposed in compliance with the Council Directive of 28 November 2006 on the common system
of value added tax (EC Directive 2006/112); and
(c)
any other tax of a similar nature, whether imposed in the United Kingdom or in a member state of the European
Union in substitution for, or levied in addition to, such tax referred to in paragraphs (a) or (b) above, or imposed elsewhere.
1.2
Construction
(a)
Unless a contrary indication appears any reference in this Agreement to:
(i)
the "
Agent
", 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)
the Lender's "
cost of funds
" in relation to its participation in a Loan is a reference
to the average cost (determined either on an actual or a notional basis) which the Lender would incur if it were to fund, from whatever
source(s) it may reasonably select, an amount equal to the amount of that participation in that Loan for a period equal in length
to the Interest Period of that Loan;
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(iv)
a "
Finance Document
" or any other agreement or instrument is a reference to that Finance
Document or other agreement or instrument as amended, novated, supplemented, extended, replaced or restated;
(v)
"
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;
(vi)
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);
(vii)
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;
(viii)
a provision of law is a reference to that provision as amended or re-enacted from time to time; and
(ix)
a time of day is a reference to London time.
(b)
The determination of the extent to which a rate is "
for a period equal in length
" to
an Interest Period shall disregard any inconsistency arising from the last day of that Interest Period being determined pursuant to the
terms of this Agreement.
(c)
Section, Clause and Schedule headings are for ease of reference only.
(d)
Unless a contrary indication appears, a term used in any other Finance Document or in any notice given
under or in connection with any Finance Document has the same meaning in that Finance Document or notice as in this Agreement.
(e)
A Default or an Event of Default is "
continuing
" if it has not been remedied or waived.
(f)
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,
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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.
1.3
Currency symbols and definitions
"
$
", "
USD
"
and "
dollars
" denote the lawful currency of the United States of America.
1.4
Third party rights
A person who is not a Party has no right
under the Contracts (Rights of Third Parties) Act 1999 to enforce or to enjoy the benefit of any term of this Agreement.
2.
The Facility
2.1
The Facility
Subject to the terms of this Agreement,
the Lender makes available to the Borrower the following term loan facilities (together, the “Facility”): (a) Tranche
A: a USD term loan facility in an aggregate amount of USD 100,000,000; and (b) Tranche B: a term loan facility in an aggregate amount
equivalent to USD 300,000,000, to be disbursed in RMB (CNY) (with the RMB equivalent determined using the USD/CNY Spot Rate) or, with
the prior written consent of the Lender, in USD. Where Tranche B is disbursed in USD, the interest rate and payment currency provisions
applicable to Tranche A Loans shall apply mutatis mutandis to such Tranche B Loan.
3.
Purpose
3.1
Purpose
The Borrower shall apply all amounts
borrowed by it under the Facility solely for the purpose of repaying the Specified Geely Facility (as defined in Clause 19.8
(Use of
Proceeds)
) and for no other purpose.
4.
Conditions of Utilisation
4.1
Initial conditions precedent
The Borrower may not deliver a Utilisation
Request unless the Agent has received all of the documents and other evidence listed in Schedule 1 (
Conditions precedent
) in form
and substance satisfactory to the Agent. The Agent shall notify the Borrower and the Lender promptly upon being so satisfied.
4.2
Further conditions precedent
The Lender will only be obliged to comply
with Clause 5.4 (
Making of a 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; and
(b)
the Repeating Representations to be made by the Borrower are true in all material respects.
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5.
Utilisation
5.1
Delivery of a Utilisation Request
(a)
The Borrower may utilise the Facility by delivery to the Agent of a duly completed Utilisation Request
not later than 2.00 p.m. on the date falling one Business Day prior to the proposed Utilisation Date.
(b)
No more than two Utilisation Requests may be delivered during the Availability Period.
5.2
Completion of a Utilisation Request
(a)
Each Utilisation Request is irrevocable and will not be regarded as having been duly completed unless:
(i)
the proposed Utilisation Date is a Business Day within the Availability Period; and
(ii)
the currency and amount of the Utilisation comply with Clause 5.3 (
Currency and amount
).
(b)
Only one Loan may be requested in each Utilisation Request.
5.3
Currency and amount
(a)
The currency specified in a Utilisation Request must be U.S. dollars for the Tranche A Loan and, unless
Lender consent is provided, RMB (CNY) for the Tranche Loan B.
(b)
The amount of the proposed Loan must be an amount which is a minimum of USD 50,000,000 or if less,
the Available Facility.
5.4
Making of a Loan
If the conditions set out in this Agreement
have been met, the Lender shall make its participation in each Loan available by the Utilisation Date through its Facility Office.
5.5
Cancellation of Facility
The amount of the Facility which, at
that time, is unutilised shall be immediately cancelled at the end of the Availability Period.
6.
Repayment
6.1
Repayment of Loans
(a)
On the Termination Date, provided the consents set out in Clause11.2 have been secured or the restriction
set out in Clause 11.1 has otherwise become not applicable, the Borrower shall repay in full all Loans then outstanding, in the same currency
as specified in the respective Utilisation Request.
(b)
The Borrower may not reborrow any part of the Facility which is repaid.
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6.2
Lender debt-for-equity option
(a)
The Lender shall have the right at any time prior to the Termination Date to convert any or all amounts
owing by Borrower under this Facility into shares or American Depositary Receipts of the Borrower at the Equity Conversion Price.
(b)
The Lender may effect a conversion as specified in Clause 6.2(a) above by delivering to the Borrower
an Equity Conversion Exercise Notice in the form of Schedule 3 attached hereto.
(c)
Provided that the Borrower receives a duly completed Equity Conversion Exercise Notice prior to the Termination
Date, the aggregate amount of principal and interest specified in the Equity Conversion Exercise Notice in respect of which conversion
rights are exercised (the "
Converted Amount
"), will be converted on the Equity Conversion Date into the relevant number
of Conversion Shares at the Equity Conversion Price. In such circumstances, upon delivery of the relevant number of Conversion Shares
to the Lender, and the payment of any accrued but unpaid interest (which is not included in the Converted Amount) up to (but excluding)
the Equity Conversion Date, any Break Costs and any other fees or expenses payable by the Borrower under this Agreement, accrued but not
paid by the Borrower at such date, the Converted Amount shall be deemed repaid and discharged.
(d)
Each Equity Conversion Exercise Notice delivered by the Lender to the Borrower shall specify:
(i)
the aggregate amount of principal and accrued interest in respect of one or more outstanding Loans, in
integral multiples of USD 1,000, which the Lender wishes to convert; and
(ii)
the number and account name of the security account(s) at the Relevant Clearing System which are
to be credited with the relevant number of Conversion Shares required to be delivered to the Lender hereunder.
(e)
On the Equity Conversion Date, the Borrower shall deliver, or procure the delivery of, the relevant number
of Conversion Shares with full and clean title to the Lender. The relevant number of Conversion Shares will be determined by dividing
the Converted Amount by the Equity Conversion Price, and rounding the result down to the nearest whole number of shares. Fractions of
Conversion Shares will not be delivered upon conversion and no cash adjustments will be payable in respect thereof.
(f)
The Lender must pay directly to the relevant authorities any taxes and capital, stamp, issue, registration
and transfer taxes and duties arising on conversion of its Conversion Amount, other than any capital, stamp, issue, registration and transfer
taxes and duties payable in the United Kingdom in respect of the initial allotment, issue or transfer and delivery of any Conversion Shares
which shall be paid by the Borrower. In addition, the Borrower shall pay any capital, stamp, issue, registration and transfer taxes and
duties payable in the United Kingdom or in the jurisdiction of the Relevant Clearing System in respect of the allotment, issue or transfer
and delivery of any Conversion Shares into the Relevant Clearing System.
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7.
Prepayment and Cancellation
7.1
Illegality
If, in any applicable jurisdiction,
it becomes unlawful for the Lender to perform any of its obligations as contemplated by this Agreement or to fund, issue or maintain its
participation in any Loan it becomes unlawful for any Affiliate of the Lender or for the Lender to do so:
(a)
the Lender shall promptly notify the Agent upon becoming aware of that event;
(b)
upon the Agent notifying the Borrower, the Available Facility will be immediately cancelled; and
(c)
the Borrower shall repay the outstanding Loans made to the Borrower 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 the Available Facility shall be
immediately cancelled in the amount of the participations repaid.
7.2
Change of control
(a)
If any person or group of persons acting in concert that is not a Permitted Holder gains control of the
Borrower:
(i)
the Borrower shall promptly notify the Agent upon becoming aware of that event;
(ii)
the Lender shall not be obliged to fund a Utilisation; and
(iii)
if the Lender so requires, the Agent shall, by notice to the Borrower, cancel the Available Facility and
declare all outstanding Loans, together with accrued interest, and all other amounts accrued or outstanding under the Finance Documents
immediately due and payable, whereupon the Available Facility will be immediately cancelled, the Facility shall immediately cease to be
available for further utilisation and all such Loans, accrued interest and other amounts will become immediately due and payable.
(b)
For the purpose of paragraph (a) above:
(i)
"
acting in concert
" means, a group of persons who, pursuant to an agreement or understanding
(whether formal or informal), actively co-operate, through the acquisition by any of them, either directly or indirectly, of shares in
the Borrower, to obtain or consolidate control of the Borrower;
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(ii)
"
control
" means the power (whether by way of ownership of shares, proxy, contract, agency
or otherwise) to cast, or control the casting of, more than 30 per cent. of the maximum number of votes that might be cast at a general
meeting of the Borrower; and
(iii)
"
Permitted Holder
" means:
(A)
Snita Holding B.V.;
(B)
PSD Investment Limited; or
(C)
Zhejiang Geely Holding Group Co., Ltd. and any of its Subsidiaries.
7.3
Voluntary cancellation
The Borrower may, if it gives the Agent
not less than five Business Days' (or such shorter period as the Agent may agree) prior notice, cancel the whole or any part (being a
minimum amount of USD 5,000,000) of the Available Facility.
7.4
Voluntary prepayment of Loans
The Borrower may, if it gives the Agent
not less than five Business Days' (or such shorter period as the Lender 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 Loan by a minimum amount of USD 5,000,000).
7.5
Restrictions
(a)
Any notice of cancellation or prepayment given by any Party under this Clause 7 shall be irrevocable
and, unless a contrary indication appears in this Agreement, shall specify the date or dates upon which the relevant cancellation or prepayment
is to be made and the amount of that cancellation or prepayment.
(b)
Any prepayment under this Agreement shall be made together with accrued interest on the amount prepaid
and, subject to any Break Costs, without premium or penalty.
(c)
The Borrower may not reborrow any part of the Facility which is prepaid.
(d)
The Borrower shall not repay or prepay all or any part of the Loans or cancel all or any part of the Facility
except at the times and in the manner expressly provided for in this Agreement.
(e)
No amount of the Available Facility cancelled under this Agreement may be subsequently reinstated.
(f)
If the Agent receives a notice under this Clause 7 it shall promptly forward a copy of that notice to
either the Borrower or the Lender, as appropriate.
(g)
If all or part of the Lender's participation in a Loan is repaid or prepaid, an amount of the Available
Facility (equal to the amount of the participation which is repaid or prepaid) will be deemed to be cancelled on the date of repayment
or prepayment.
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8.
Interest
8.1
Calculation of interest
The rate of interest on each Loan for
each Interest Period shall be determined as follows:
(a)
in respect of a Tranche A Loan: the Margin plus the Term Reference Rate; and
(b)
in respect of a Tranche B Loan: (i) if disbursed in RMB (CNY), the Tranche B Interest Rate (being
a fixed rate of 4.48 per cent. per annum); or (ii) if disbursed in USD with the Lender’s consent, the Margin plus the Term
Reference Rate (as applicable to Tranche A Loans).
8.2
Payment of interest
The Borrower shall pay accrued interest
on the Loans on the Termination Date. For the avoidance of doubt: (a) where a Tranche B Loan is disbursed in RMB (CNY), interest
shall be calculated on the RMB principal amount (being the RMB equivalent of USD 300,000,000 as determined using the USD/CNY Spot Rate)
and all payments of principal and interest shall be made in RMB (Renminbi); and (b) where a Tranche B Loan is disbursed in USD with
the Lender’s prior written consent, interest shall be calculated on the USD principal amount and all payments of principal and interest
shall be made in USD, and the provisions applicable to Tranche A Loans regarding interest calculation and payment shall apply mutatis
mutandis.
8.3
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,
subject to paragraph (b) below, is one per cent. per annum higher than the rate which would have been payable if the overdue amount
had, during the period of non-payment, constituted a Loan in the currency of the overdue amount for successive Interest Periods, each
of a duration selected by the Agent (acting reasonably). Any interest accruing under this Clause 8.3 shall be immediately payable by the
Borrower on demand by the Agent.
(b)
If any overdue amount consists of all or part of a Loan which became due on a day which was not the last
day of an Interest Period relating to that Loan:
(i)
the first Interest Period for that overdue amount shall have a duration equal to the unexpired portion
of the current Interest Period relating to that Loan; and
(ii)
the rate of interest applying to the overdue amount during that first Interest Period shall be one per
cent. per annum higher than the rate which would have applied if the overdue amount had not become due.
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(c)
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.
(d)
Any overdue amount that is subject to contractual subordination shall not accrue Default interest under
this Clause 8.3 and instead only regular interest pursuant to Clause 8.1 shall continue to accrue on such overdue amount.
8.4
Notification of rates of interest
(a)
The Agent shall promptly notify the Lender and the Borrower of the determination of a rate of interest
under this Agreement.
(b)
If Clause 10.3 applies the Agent shall promptly notify the Borrower of each Funding Rate relating to a
Loan.
(c)
This Clause 8.4 shall not require the Agent to make any notification to any Party on a day which is not
a Business Day.
9.
Interest Periods
9.1
Duration
(a)
Subject to this Clause 9, an Interest Period for a Loan shall be three Months.
(b)
An Interest Period for a Loan shall not extend beyond the Termination Date.
(c)
Each Interest Period for a Loan shall start on its Utilisation Date or (if already made) on the last day
of its preceding Interest Period.
9.2
Non-Business Days
Any rules specified as "Business
Day Conventions" in the Reference Rate Terms shall apply to each Interest Period.
9.3
Consolidation and division of Loans
If two or more Interest Periods end
on the same date, those Loans will be consolidated into, and treated as, a single Loan on the last day of the Interest Period.
10.
Changes to the Calculation of Interest
10.1
Interest Calculation if no Primary Term Rate
(a)
Interpolated Primary Term Rate
: If no Primary Term Rate is available for the Interest Period of
a Loan, the applicable Term Reference Rate shall be the Interpolated Primary Term Rate for a period equal in length to the Interest Period
of that Loan.
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(b)
Alternative Term Rate
If paragraph (a) above applies but it is not possible to calculate the
Interpolated Primary Term Rate, the applicable Term Reference Rate shall be the aggregate of:
(i)
the Alternative Term Rate as of the Quotation Time for a period equal in length to the Interest Period
of that Loan; and
(ii)
any applicable Alternative Term Rate Adjustment.
(c)
Interpolated Alternative Term Rate:
If paragraph (b) above applies but no Alternative Term
Rate is available for the Interest Period of that Loan, the applicable Term Reference Rate shall be the aggregate of:
(i)
the Interpolated Alternative Term Rate for a period equal in length to the Interest Period of that Loan;
and
(ii)
any applicable Alternative Term Rate Adjustment.
(d)
Cost of funds
: If paragraph (c) above applies but it is not possible to calculate the Interpolated
Alternative Term Rate and "
Cost of funds will apply as a fallback
" is specified in the Reference Rate Terms, Clause 10.3
(
Cost of funds
) shall apply to that Loan for that Interest Period.
10.2
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 the Lender that its cost of funds relating
to its participation in that Loan would be in excess of that Market Disruption Rate,
then Clause 10.3 (
Cost of funds
)
shall apply to that Loan for the relevant Interest Period.
10.3
Cost of funds
(a)
If this Clause 10.3 applies, the rate of interest on a Loan for the relevant Interest Period shall
be the percentage rate per annum which is the sum of:
(i)
the Margin; and
(ii)
the rate determined by the Agent as soon as practicable and in any event by the Reporting Time, to be
that which expresses as a percentage rate per annum its cost of funds relating to that Loan.
(b)
If this Clause 10.3 applies and the Agent or the Borrower so requires, the Agent and the Borrower
shall enter into negotiations (for a period of not more than thirty days) with a view to agreeing a substitute basis for determining the
rate of interest.
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(c)
Any alternative basis agreed pursuant to paragraph (b) above shall, with the prior consent of
the Agent and the Borrower, be binding on all Parties.
(d)
If this Clause ‎10.3 applies pursuant to Clause 10.2 (
Market disruption
) and:
(i)
the Lender's Funding Rate is less than the Market Disruption Rate; or
(ii)
the Agent does not supply a rate by the time specified in Clause 10.3(a)(ii),
the Lender's cost of funds relating to
its participation in that Loan for that Interest Period shall be deemed, for the purposes of paragraph ‎(a) above, to be the
Market Disruption Rate.
10.4
Notification to Borrower
If Clause 10.3 (
Cost of funds
)
applies, the Agent shall, as soon as is practicable, notify the Borrower.
10.5
Break Costs
(a)
If an amount is specified as Break Costs in the Reference Rate Terms the Borrower shall, within five 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)
The 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 become, or may become, payable.
11.
Subordination
11.1
The Lender and the Borrower acknowledge that this Facility and all amounts owing thereunder by the Borrower
to the Lender are subordinated to the Facilities Agreement dated 22 February 2024 amongst the Borrower, as borrower, and the lenders
under Facility A and Facility B thereto, as further amended from time to time (the “
Club Loan Facilities Agreement
”),
by virtue of the Subordination Deed dated 22 February 2024 amongst the Borrower, as borrower, and the Lender and Polestar Automotive
(Singapore) Pte. Ltd, as subordinated creditors, and Standard Chartered Bank, as agent (the “
Subordination Deed
”).
11.2
Prior to the Termination Date, the Borrower undertakes to use reasonable endeavours, with the support
from the Lender and Zhejiang Geely Holding Group Co., Ltd., to procure consent from the lenders under the Club Loan Facilities Agreement
to:
(a)
release the liabilities owed by the Borrower under this Agreement from the subordination in favour of
the Senior Debt under the Subordination Deed (and as defined therein); and
(b)
the repayment of the Loans made under this Agreement on the Termination Date together with all interest
accrued thereon.
11.3
In the event the liabilities owed by the Borrower under this Agreement are released from the subordination
under the Subordination Deed after the Termination Date (a “Subordination Release”), the Borrower undertakes to repay the
Loans made under this Agreement together with all interest accrued thereon (which shall continue to accrue until the date of actual repayment)
as soon as practically possible from the effectiveness of such Subordination Release without any Break Costs.
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12.
Tax Gross Up and Indemnities
12.1
Definitions
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.
"
Tax Credit
" means
a credit against, relief or remission for, or repayment of any Tax.
"
Tax Deduction
" means
a deduction or withholding for or on account of Tax from a payment under a Finance Document, other than a FATCA Deduction.
"
Tax Payment
" means
either the increase in a payment made by the Borrower to a Finance Party under Clause 12.2 (
Tax gross-up
) or a payment under Clause 12.3
(
Tax indemnity
).
12.2
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.
(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, the Lender shall notify the Borrower on becoming
so aware in respect of a payment payable to the Lender.
(c)
If a 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 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 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 Agent for the Finance Party entitled to the payment a statement under section 975 of the
ITA or other 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.
(f)
The Original Lender and the Borrower shall co-operate in completing any procedural formalities necessary
for the Borrower to obtain authorisation to make that payment without a Tax Deduction.
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12.3
Tax indemnity
(a)
The Borrower shall (within five Business Days of demand by the Agent) pay to a Protected Party an amount
equal to the loss, liability or cost which that Protected Party determines will be or has been (directly or indirectly) suffered for or
on account of Tax by that Protected Party in respect of a Finance Document.
(b)
Paragraph (a) above shall not apply:
(i)
with respect to any Tax assessed on a Finance Party:
(A)
under the law of the jurisdiction in which that Finance Party is incorporated or, if different, the jurisdiction
(or jurisdictions) in which that Finance Party is treated as resident for tax purposes; or
(B)
under the law of the jurisdiction in which that Finance Party's Facility Office is located in respect
of amounts received or receivable in that jurisdiction,
if that Tax is imposed on or calculated
by reference to the net income received or receivable (but not any sum deemed to be received or receivable) by that Finance Party; or
(ii)
to the extent a loss, liability or cost:
(A)
is compensated for by an increased payment under Clause 12.2 (
Tax gross-up
); or
(B)
relates to a FATCA Deduction required to be made by a Party.
(c)
A Protected Party making, or intending to make a claim under paragraph (a) above shall promptly notify
the 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 12.3, notify the Agent.
12.4
Tax Credit
If the Borrower makes a Tax Payment
and the relevant Finance Party 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 Finance Party has obtained and utilised 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.
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12.5
Stamp taxes
The Borrower shall pay and, within five
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 payable in respect of any Finance Document.
12.6
VAT
(a)
All amounts expressed to be payable under a Finance Document by any Party to a Finance Party which (in
whole or in part) constitute the consideration for any supply for VAT purposes are deemed to be exclusive of any VAT which is chargeable
on that supply, and accordingly, subject to paragraph (b) below, if VAT is or becomes chargeable on any supply made by any Finance
Party to any Party under a Finance Document and such Finance Party is required to account to the relevant tax authority for the VAT, that
Party must pay to such Finance Party (in addition to and at the same time as paying any other consideration for such supply) an amount
equal to the amount of the VAT (and such Finance Party must promptly provide an appropriate VAT invoice to that Party).
(b)
If VAT is or becomes chargeable on any supply made by any Finance Party (the "
Supplier
")
to any other Finance Party (the "
Recipient
") under a Finance Document, and any Party other than the Recipient (the "
Relevant
Party
") is required by the terms of any Finance Document to pay an amount equal to the consideration for that supply to the Supplier
(rather than being required to reimburse or indemnify the Recipient in respect of that consideration):
(i)
(where the Supplier is the person required to account to the relevant tax authority for the VAT) the Relevant
Party must also pay to the Supplier (at the same time as paying that amount) an additional amount equal to the amount of the VAT. The
Recipient must (where this paragraph (i) applies) promptly pay to the Relevant Party an amount equal to any credit or repayment the
Recipient receives from the relevant tax authority which the Recipient reasonably determines relates to the VAT chargeable on that supply;
and
(ii)
(where the Recipient is the person required to account to the relevant tax authority for the VAT) the
Relevant Party must promptly, following demand from the Recipient, pay to the Recipient an amount equal to the VAT chargeable on that
supply but only to the extent that the Recipient reasonably determines that it is not entitled to credit or repayment from the relevant
tax authority in respect of that VAT.
(c)
Where a Finance Document requires any Party to reimburse or indemnify a Finance Party for any cost or
expense, that Party shall reimburse or indemnify (as the case may be) such Finance Party for the full amount of such cost or expense,
including such part thereof as represents VAT, save to the extent that such Finance Party reasonably determines that it is entitled to
credit or repayment in respect of such VAT from the relevant tax authority.
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(d)
Any reference in this Clause 12.6 to any Party shall, at any time when such Party is treated as a member
of a group for VAT purposes, include (where appropriate and unless the context otherwise requires) a reference to the representative member
of such group at such time (the term "representative member" to have the same meaning as in the UK Value Added Tax Act 1994).
(e)
In relation to any supply made by a Finance Party to any Party under a Finance Document, if reasonably
requested by such Finance Party, that Party must promptly provide such Finance Party with details of that Party's VAT registration and
such other information as is reasonably requested in connection with such Finance Party's VAT reporting requirements in relation to such
supply.
12.7
FATCA information
(a)
Subject to paragraph (c) below, each Party shall, within
ten
Business Days of a reasonable
request by another Party:
(i)
confirm to that other Party whether it is:
(A)
a FATCA Exempt Party; or
(B)
not a FATCA Exempt Party;
(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 purposes of that other Party's compliance with FATCA; and
(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 other law, regulation, or exchange of information
regime.
(b)
If a Party confirms to another Party pursuant to paragraph (a)(i) 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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12.8
FATCA Deduction
(a)
Each Party may make any FATCA Deduction it is required to make by FATCA, and any payment required in connection
with that FATCA Deduction, and no Party shall be required to increase any payment in respect of which it makes such a FATCA Deduction
or otherwise compensate the recipient of the payment for that FATCA Deduction.
(b)
Each Party shall promptly, upon becoming aware that it must make a FATCA Deduction (or that there is any
change in the rate or the basis of such FATCA Deduction), notify the Party to whom it is making the payment and, in addition, shall notify
the Borrower and the Agent and the Agent shall notify the other Finance Parties.
13.
Increased Costs
13.1
Increased costs
(a)
Subject to Clause 13.3 (
Exceptions
) the Borrower shall, within five 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 after the date of this Agreement;
(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 or CRD IV or any law or regulation
that implements or applies Basel III or CRD IV.
(b)
In this Agreement:
(i)
"
Increased Costs
" means:
(A)
a reduction in the rate of return from the 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;
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(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
(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)
"
EU 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
(B)
Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the
activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC
and repealing Directives 2006/48/EC and 2006/49/EC; and
(v)
"
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 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; and
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(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.
13.2
Increased Cost claims
(a)
A Finance Party intending to make a claim pursuant to Clause 13.1 (
Increased Costs
) shall notify
the Agent of the event giving rise to the claim, following which the Agent shall promptly notify the Borrower.
(b)
Each Finance Party shall, as soon as practicable after a demand by the Agent, provide a certificate confirming
the amount of its Increased Costs.
13.3
Exceptions
(a)
Clause 13.1 (
Increased Costs
) does not apply to the extent any Increased Cost is:
(i)
attributable to a Tax Deduction required by law to be made by the Borrower;
(ii)
attributable to a FATCA Deduction required to be made by a Party;
(iii)
compensated for by Clause 12.3 (
Tax indemnity
) (or would have been compensated for under Clause
12.3 (
Tax indemnity
) but was not so compensated solely because any of the exclusions in paragraph (b) of Clause 12.3 (
Tax
indemnity
) applied); or
(iv)
attributable to the wilful breach by the relevant Finance Party or its Affiliates of any law or regulation.
(b)
In this Clause 13.3, a reference to a "
Tax Deduction
" has the same meaning given to that
term in Clause 12.1 (
Definitions
).
14.
Other Indemnities
14.1
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;
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(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 five 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.
14.2
Other indemnities
The Borrower shall, within five Business
Days of demand, indemnify each Finance Party against any cost, loss or liability incurred by that Finance Party as a result of:
(a)
the occurrence of any Event of Default;
(b)
a failure by the Borrower to pay any amount due under a Finance Document on its due date;
(c)
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);
(d)
a Loan (or part of a Loan) not being prepaid in accordance with a notice of prepayment given by the Borrower;
or
(e)
a failure by the Borrower to deliver, or procure the delivery of, the relevant number of Conversion Shares
upon the exercise of an Equity Conversion Exercise Notice in accordance with the terms of this Agreement.
14.3
Indemnity to the Agent
The Borrower shall promptly indemnify
the Agent against any cost, loss or liability incurred by the Agent (acting reasonably) as a result of:
(a)
investigating any event which it reasonably believes is a Default;
(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; and
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15.
Mitigation by the Lender
15.1
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 the Facility ceasing to be available or any amount becoming payable under or pursuant
to, or cancelled pursuant to, any of Clause 7.1 (
Illegality
) , Clause 8 (
Tax gross-up and indemnities
) or Clause 13 (
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.
15.2
Limitation of liability
(a)
The Borrower shall promptly indemnify each Finance Party for all costs and expenses reasonably incurred
by that Finance Party as a result of steps taken by it under Clause 15.1 (
Mitigation
).
(b)
A Finance Party is not obliged to take any steps under Clause 15.1 (
Mitigation
) if, in the opinion
of that Finance Party (acting reasonably), to do so might be prejudicial to it.
16.
Costs and Expenses
16.1
Transaction expenses
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 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.
16.2
Amendment costs
If the Borrower requests an amendment,
waiver or consent, the Borrower shall, within five Business Days of demand, reimburse the Agent for the amount of all costs and expenses
(including legal fees subject to any pre-agreed cap) reasonably incurred by the Agent in responding to, evaluating, negotiating or, complying
with or implementing that request or, requirement or actual or contemplated agreement.
16.3
Enforcement costs
The Borrower shall, within five 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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17.
Representations
The Borrower makes the representations
and warranties set out in this Clause 17 to each Finance Party on the date of this Agreement.
17.1
Status
(a)
It is a corporation, duly incorporated and validly existing under the law of its Original Jurisdiction.
(b)
It has the power to own its assets and carry on its business as it is being conducted.
17.2
Binding obligations
Subject to Legal Reservations, the obligations
expressed to be assumed by it in each Finance Document are legal, valid, binding and enforceable obligations.
17.3
Non-conflict with other obligations
The entry into and performance by it
of, and the transactions contemplated by, the Finance Documents 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.
17.4
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 Finance Documents to which
it is a party and the transactions contemplated by those Finance Documents.
17.5
Validity and admissibility in evidence
All Authorisations required or desirable:
(a)
to enable it lawfully to enter into, exercise its rights and comply with its obligations in the Finance
Documents to which it is a party; and
(b)
to make the Finance Documents to which it is a party admissible in evidence in its Original Jurisdiction,
have been (or, prior to the first Utilisation
Date, will be) obtained or effected and are (or, prior to the first Utilisation Date, will be) in full force and effect.
17.6
Governing law and enforcement
(a)
Subject to the Legal Reservations, the choice of English law as the governing law of the Finance Documents
will be recognised and enforced in its Original Jurisdiction.
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(b)
Subject to the Legal Reservations, any judgment obtained in England in relation to a Finance Document
will be recognised and enforced in its Original Jurisdiction.
17.7
Deduction of Tax
It is not required to make any Tax Deduction
(as defined in Clause 12.1 (
Definitions
)) from any payment it may make under any Finance Document to the Original Lender.
17.8
No filing or stamp taxes
Under the law of its Original Jurisdiction
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.
17.9
No default
(a)
No Event of Default is continuing or might reasonably be expected to result from the making of any Utilisation.
(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 which has or is reasonably likely to have a Material Adverse Effect.
17.10
Cashflow Forecast
The Cashflow Forecast has been prepared
on the basis of recent historical information and on the basis of reasonable assumptions.
17.11
Financial statements
The Borrower's financial statements
most recently delivered to the Agent:
(a)
have been prepared in accordance with GAAP, consistently applied; and
(b)
fairly represent its financial condition (consolidated, if applicable) as at the date to which they were
drawn up,
except, in each case, as disclosed to
the contrary in those financial statements.
17.12
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 and except as otherwise provided in Clause 11.
17.13
No proceedings
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.
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17.14
Repetition
The Repeating Representations are deemed
to be made by the Borrower (by reference to the facts and circumstances then existing) on the date of each Utilisation Request and the
first day of each Interest Period.
18.
Information Undertakings
The undertakings in this Clause 18 remain
in force from the date of this Agreement for so long as any amount is outstanding under the Finance Documents or the Facility is in force.
18.1
Financial statements
The Borrower shall deliver to the Agent
(or otherwise make available to the Agent, and notify the Agent of this):
(a)
as soon as the same become available, but in any event within 120 days after the end of each of its financial
years, its audited consolidated financial statements for that financial year; and
(b)
as soon as the same become available, but in any event within 60 days after the end of each Financial
Quarter, its consolidated financial statements for that period.
18.2
Cashflow Forecast
The Borrower shall supply to the Agent
(marked for the attention of the Designated Recipients) on request (such request to be made no later than the last calendar day of the
preceding Financial Quarter), on or before the fifth Business Day of a Financial Quarter, an updated Cashflow Forecast in respect of each
Financial Quarter (starting from the beginning of the Financial Quarter in which the Cashflow Forecast is delivered) to (and including)
March 2026, in a format to be jointly agreed between the Lender and the Borrower.
18.3
Compliance Certificate
The Borrower shall supply to the Agent
on request (such request to be made in connection with a Utilisation Request or otherwise no more frequently than once per Financial Quarter)
a Compliance Certificate signed by the chief executive officer or the chief financial officer of the Borrower.
18.4
Information: miscellaneous
The Borrower shall supply to the Agent:
(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;
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(b)
promptly following any such approval, a copy of any written material approved by the board of directors
of the Borrower relating to active cost management activities of the Borrower;
(c)
promptly upon becoming aware of them, the details of any litigation, arbitration or administrative proceedings
which are current, threatened or pending against the Borrower (or against the directors of the Borrower), and which might, if adversely
determined, have a Material Adverse Effect;
(d)
promptly upon becoming aware of them, the details of any judgment or order of a court, arbitral body or
agency which is made against the Borrower (or against the directors of the Borrower), and which might have a Material Adverse Effect;
and
(e)
promptly, such further information regarding the financial condition, business and operations of the Borrower
as any Finance Party (through the Agent) may reasonably request.
18.5
Notification of default
(a)
The Borrower shall notify the Agent of any Default (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 the
chief executive officer or the chief financial officer of the Borrower on its behalf certifying that no Default is continuing (or if a
Default is continuing, specifying the Default and the steps, if any, being taken to remedy it).
18.6
Direct electronic delivery by Company
The Borrower may satisfy its obligation
under this Agreement to deliver any information by delivering that information to the Agent in accordance with Clause 27.5 (
Electronic
communication
).
18.7
"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 (or of a Holding Company of the Borrower) or the composition
of the shareholders of the Borrower (or of a Holding Company of the Borrower) after the date of this Agreement; or
(iii)
a proposed assignment or transfer by the Lender of any of its rights and obligations under this Agreement
to a party that is not a Lender prior to such assignment or transfer,
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obliges the Agent or the 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 the 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 the Lender) or the 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, the 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)
The 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.
General 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
Authorisations
The Borrower shall promptly:
(a)
obtain, comply with and do all that is necessary to maintain in full force and effect; and
(b)
if requested by the Agent, supply certified copies to the Agent of,
any Authorisation required under any
law or regulation of its Original Jurisdiction to enable it to perform its obligations under the Finance Documents and to ensure the legality,
validity, enforceability or admissibility in evidence in its Original Jurisdiction of any Finance Document.
19.2
Compliance with laws
The Borrower shall comply in all respects
with all laws to which it may be subject, if failure so to comply would materially impair its ability to perform its obligations under
the Finance Documents.
19.3
Acquisitions
The Borrower shall not acquire any company,
business, assets or undertaking (a) with the proceeds of any Loan or (b) if the amount of the acquisition cost, when aggregated
with the aggregate acquisition cost of any other companies, business, assets or undertaking acquired by the Borrower during that financial
year exceeds USD 30,000,000.
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19.4
Loans and Guarantees
(a)
The Borrower shall not make any loans, grant any credit (save in the ordinary course of business) or give
any guarantee or indemnity (except as required under any of the Finance Documents) to or for the benefit of any person or otherwise voluntarily
assume any liability, whether actual or contingent, in respect of any obligation of any person.
(b)
Paragraph (a) above does not apply to: (i) any Financial Indebtedness made available by the
Borrower to one or more of its Subsidiaries; (ii) any trade credit extended by the Borrower to its customers on normal commercial
terms and in the ordinary course of its trading activities; (iii) any guarantees made by the Borrower for customs purposes in the
ordinary course of business; (iv) liabilities (not otherwise described in this paragraph (b)) in an aggregate principal amount of
up to USD 30,000,000; and (v) liabilities incurred with the prior written consent of the Agent.
19.5
Senior management time
The Borrower shall, on request of the
Agent (specifying on reasonable notice a time during business hours) in connection with the supply of documentation pursuant to Clause
18 (
Information Undertakings
) procure that relevant members of the senior management of the Borrower (including, on each occasion
unless agreed otherwise with the Agent, at least one of the chief executive officer or chief financial officer of the Borrower) meet with
representatives of the Lender(s), either in a mutually convenient location or online, and discuss the Cashflow Forecast and/or the active
cost management activities of the Borrower.
19.6
Registration Rights
Any Conversion Shares into which any
outstanding loan(s) may be converted have not been registered under the U.S. Securities Act of 1933, as amended (the "
Securities
Act
") or under the securities laws of any state. In the absence of an effective registration statement as to the Conversion Shares
under the Securities Act, the Borrower may require an opinion of counsel reasonably satisfactory in form, scope and substance to the Borrower
to the effect that such registration is not required, unless sold pursuant to Rule 144 of the Securities Act or in a transaction
not subject to the Securities Act. Each Conversion Share shall bear a legend as to the applicable restrictions on transferability in order
to ensure compliance with the Securities Act. Following the earlier of: (x) the effective date of a registration statement filed
pursuant to the Securities Act that includes any Conversion Shares; or (y) any Conversion Shares becoming eligible for sale without
restriction under Rule 144(d)(1) of the Securities Act, the Borrower, upon the written request of the Lender, shall remove or,
if applicable, instruct its transfer agent to remove, the restrictive legend from such Conversion Shares and shall cause its counsel to
issue any legend removal opinion it or, if applicable, its transfer agent requires. Any fees (with respect to the transfer agent, the
Borrower's counsel or otherwise) associated with the issuance of such opinion or the removal of such legend shall be borne by the Borrower.
The Borrower may issue stop transfer instructions to its transfer agent and/or depositary in connection with such restrictions.
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As promptly as practicable following
the Equity Conversion Date, the Borrower and the Lender will enter into a registration rights agreement that is, in form and substance,
similar to the registration rights agreement dated 27 September 2021, as later amended, among the Borrower and other parties (the
"
Registration Rights Agreement
"). The Borrower hereby agrees to include any Conversion Shares issued by the Borrower
to the Lender pursuant to exercise of the Conversion Right pursuant to this Agreement in the definition of "Registrable Securities"
in the Registration Rights Agreement. In furtherance of the foregoing, the Borrower shall, within 90 days following the Equity Conversion
Date, file a new Form F-3 Shelf (as defined in the Registration Rights Agreement) in view of registering the resale of any Conversion
Shares and cause such registration statement to become effective as soon as practicable after such filing.
19.7
Allotment of shares
(a)
The Borrower shall have available for issue and authority to allot, free from pre-emption rights, sufficient
Conversion Shares to enable the Conversion Rights set out herein to be satisfied in full, and all other rights of subscription or conversion
for the Conversion Shares to be satisfied in full.
(b)
The Borrower shall use its best endeavours to procure and maintain the listing of any Conversion Shares
on NASDAQ with effect from the Equity Conversion Date.
19.8
Use of Proceeds
(a)
The Borrower undertakes that all proceeds of any Utilisation under the Facility shall ultimately be applied
exclusively towards the repayment of the USD 400,000,000 Geely cash-backed bank facility (the “Specified Geely Facility”)
on or before 30 September 2026 or such later date as the Lender may agree in writing and for no other purpose. For the avoidance
of doubt, proceeds of Tranche B shall be disbursed in RMB (CNY) or, with the prior written consent of the Lender, in USD.
(b)
The Borrower shall, within five (5) Business Days of the Tranche B Loan Utilisation but no earlier
than 30 September 2026, provide the Lender with evidence (including but not limited to bank payment confirmations or wire transfer
receipts) reasonably satisfactory to the Lender that the proceeds of such Utilisation have been applied in full towards the repayment
of the Specified Geely Facility.
20.
Events of Default
Each of the events or circumstances
set out in this Clause 20 is an Event of Default (save for Clause 20.11 (
Acceleration
)).
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20.1
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:
(a)
its failure to pay is caused by:
(i)
administrative or technical error; or
(ii)
a Disruption Event; and
(b)
payment is made within: (i) in the case of paragraph (a)(i) above, five Business Days of
its due date; or (ii) in the case of paragraph (a)(ii) above, three Business Days following the cessation of the Disruption
Event.
20.2
Other obligations
(a)
The Borrower does not comply with any provision of the Finance Documents (other than those referred to
in Clause 20.1 (
Non-payment
).
(b)
No Event of Default under paragraph (a) above if the failure to comply is capable of remedy and is
remedied within fifteen Business Days of the earlier of (i) the Agent giving notice of the failure to comply to the Borrower and
(ii) the Borrower becoming aware of the non-compliance.
20.3
Misrepresentation
(a)
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.
(b)
No Event of Default under paragraph (a) above will occur if the circumstances giving rise to
the misrepresentation or breach of warranty are capable of remedy and are remedied within fifteen Business Days of the earlier of (i) the
Agent giving notice of the misrepresentation or breach of warranty to the Borrower and (ii) the Borrower becoming aware of the misrepresentation
or breach of warranty.
20.4
Cross default
(a)
Any Financial Indebtedness of the Borrower is declared to be or otherwise becomes due and payable prior
to its specified maturity as a result of an event of default (however described).
(b)
Any commitment for any Financial Indebtedness of the Borrower is cancelled or suspended by a creditor
of the Borrower as a result of an event of default (however described).
(c)
No Event of Default will occur under this Clause 20.4 if the aggregate amount of Financial Indebtedness
or commitment for Financial Indebtedness falling within paragraphs (a) and (b) above is less than USD 40,000,000 (or its equivalent
in any other currency or currencies).
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20.5
Insolvency
(a)
The Borrower:
(i)
is unable or admits inability to pay its debts as they fall due;
(ii)
suspends making payments on any of its debts; or
(iii)
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.
20.6
Insolvency proceedings
Any corporate action, legal proceedings
or other procedure or step is taken in relation to:
(a)
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;
(b)
a composition, compromise, assignment or arrangement with any creditor of the Borrower;
(c)
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
or any analogous procedure or step is
taken in any jurisdiction.
This Clause 20.6 shall not apply to
any winding up petition which is frivolous or vexatious and is discharged, stayed or dismissed within twenty-eight days of commencement.
20.7
Creditors' process
Any expropriation, attachment, sequestration,
distress or execution affects any asset or assets of the Borrower having an aggregate value of USD 40,000,000.
20.8
Unlawfulness
It is or becomes unlawful for the Borrower
to perform any of its material obligations under the Finance Documents to the extent that the Lender reasonably considers to be materially
prejudicial to the interests of the Lender under the Finance Documents.
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20.9
Repudiation
The Borrower repudiates a Finance Document
or evidences an intention to repudiate a Finance Document.
20.10
Material adverse change
Any event or series of events occurs
which has a Material Adverse Effect.
20.11
Breach of use of proceeds restriction
The Borrower fails to comply with its
obligations regarding the use of proceeds under Clause 19.8 (
Use of Proceeds
) or applies any amount borrowed under the Facility
for any purpose other than the repayment of the Specified Geely Facility (as defined therein).
20.12
Acceleration
On and at any time after the occurrence
of an Event of Default which is continuing the Agent may, and shall if so directed by the Lender, by notice to the Borrower:
(a)
cancel the Available Facility whereupon the Available Facility shall immediately be cancelled and the
Facility shall immediately cease to be available for further utilisation;
(b)
declare that all or part of the Loans, together with accrued interest, and all other amounts accrued or
outstanding under the Finance Documents be immediately due and payable, whereupon they shall become immediately due and payable; and/or
(c)
declare that all or part of the Loans be payable on demand, whereupon they shall immediately become payable
on demand by the Agent on the instructions of the Lender.
21.
Changes to the Lender
21.1
Assignments and transfers by the Lender
The Lender (the "
Existing Lender
")
may:
(a)
assign any of its rights; or
(b)
transfer by novation any of its rights and obligations,
to (i) any Affiliate of the Lender;
or (ii) with the prior consent of the Borrower, to any other person.
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21.2
Security over Lenders' rights
In addition to the other rights provided
to Lender(s) under this Clause 21.2, any Lender may without consulting with or obtaining consent from the Borrower, at any time charge,
assign 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:
(a)
any charge, assignment or other Security to secure obligations to a federal reserve or central bank; and
(b)
any charge, assignment 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 charge, assignment
or Security shall:
(i)
release that Lender from any of its obligations under the Finance Documents or substitute the beneficiary
of the relevant charge, assignment or Security for the Lender as a party to any of the Finance Documents; or
(ii)
require any payments to be made by 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.
22.
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.
23.
Role of the Agent
23.1
Appointment of the Agent
(a)
The Lender appoints the Agent to act as its agent under and in connection with the Finance Documents.
(b)
The Lender 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.
23.2
Instructions
(a)
The Agent shall not be liable for any act (or omission) if it exercises or refrains from exercising any
right, power, authority or discretion vested in it as Agent in accordance with any instructions given to it by the Lender.
(b)
The Agent shall be entitled to request instructions, or clarification of any instruction, from the Lender
as to whether, and in what manner, it should exercise or refrain from exercising any right, power, authority or discretion. The Agent
may refrain from acting unless and until it receives any such instructions or clarification that it has requested.
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(c)
Save in the case of decisions stipulated to be a matter for the Lender under the relevant Finance Document
and unless a contrary indication appears in a Finance Document, any instructions given to the Agent by the Lender shall override any conflicting
instructions given by any other Parties and will be binding on all Finance Parties.
(d)
The Agent may refrain from acting in accordance with any instructions of the Lender 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.
(e)
In the absence of instructions, the Agent may act (or refrain from acting) as it considers to be in the
best interest of the Lender.
(f)
The Agent is not authorised to act on behalf of the Lender (without first obtaining the Lender's consent)
in any legal or arbitration proceedings relating to any Finance Document.
23.3
Duties of the Agent
(a)
The Agent's duties under the Finance Documents are solely mechanical and administrative in nature.
(b)
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)
Except where a Finance Document specifically provides otherwise, the Agent is not obliged to review or
check the adequacy, accuracy or completeness of any document it forwards to another Party.
(d)
If the 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.
(e)
If the Agent is aware of the non-payment of any principal, interest, commitment fee or other fee payable
to a Finance Party (other than the Agent) under this Agreement, it shall promptly notify the other Finance Parties.
(f)
The 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).
23.4
No fiduciary duties
(a)
Nothing in any Finance Document constitutes the Agent as a trustee or fiduciary of any other person.
(b)
The Agent shall not be bound to account to the Lender for any sum or the profit element of any sum received
by it for its own account.
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23.5
Business with the Borrower
The Agent may accept deposits from,
lend money to and generally engage in any kind of banking or other business with the Borrower.
23.6
Rights and discretions
(a)
The 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 Lender are duly given in accordance with the terms of the Finance
Documents; and
(B)
unless it has received notice of revocation, that those instructions have not been revoked; and
(iii)
rely on a certificate from any person:
(A)
as to any matter of fact or circumstance which might reasonably be expected to be within the knowledge
of that person; or
(B)
to the effect that such person approves of any particular dealing, transaction, step, action or thing,
as sufficient evidence that that is
the case and, in the case of paragraph (A) above, may assume the truth and accuracy of that certificate.
(b)
The Agent may assume (unless it has received notice to the contrary in its capacity as agent for the Lender)
that:
(i)
no Default has occurred (unless it has actual knowledge of a Default arising under Clause 20.1 (
Non-payment
));
and
(ii)
any right, power, authority or discretion vested in any Party or the Lender has not been exercised.
(c)
The Agent may engage and pay for the advice or services of any lawyers, accountants, tax advisers, surveyors
or other professional advisers or experts.
(d)
Without prejudice to the generality of paragraph (c) above or paragraph (e) below, the 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 Lender) if the Agent in its reasonable opinion deems this to be necessary.
(e)
The 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 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.
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(f)
The Agent may act in relation to the Finance Documents through its officers, employees and agents.
(g)
Unless a Finance Document expressly provides otherwise, the Agent may disclose to any other Party any
information it reasonably believes it has received as agent under this Agreement.
(h)
Notwithstanding any other provision of any Finance Document to the contrary, the Agent is not obliged
to do or omit to do anything if it would, or might in its reasonable opinion, constitute a breach of any law or regulation or a breach
of a fiduciary duty or duty of confidentiality.
(i)
Notwithstanding any provision of any Finance Document to the contrary, the Agent is not obliged to expend
or risk its own funds or otherwise incur any financial liability in the performance of its duties, obligations or responsibilities or
the exercise of any right, power, authority or discretion if it has grounds for believing the repayment of such funds or adequate indemnity
against, or security for, such risk or liability is not reasonably assured to it.
23.7
Responsibility for documentation
The Agent is not responsible or liable
for:
(a)
the adequacy, accuracy or completeness of any information (whether oral or written) supplied by the Agent,
the Borrower or any other person in or in connection with any Finance Document or the transactions contemplated in the Finance Documents
or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance
Document;
(b)
the legality, validity, effectiveness, adequacy or enforceability of any Finance Document or any other
agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document;
(c)
any determination as to whether any information provided or to be provided to any Finance Party is non-public
information the use of which may be regulated or prohibited by applicable law or regulation relating to insider dealing or otherwise.
23.8
No duty to monitor
The Agent shall not be bound to enquire:
(a)
whether or not any Default has occurred;
(b)
as to the performance, default or any breach by any Party of its obligations under any Finance Document;
or
(c)
whether any other event specified in any Finance Document has occurred.
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23.9
Exclusion of liability
(a)
Without limiting paragraph (b) below (and without prejudice to any other provision of any Finance
Document excluding or limiting the liability of the Agent), the Agent will not be liable for:
(i)
any damages, costs or losses to any person, any diminution in value, or any liability whatsoever arising
as a result of taking or not taking any action under or in connection with any Finance Document, unless directly caused by its gross negligence
or wilful misconduct;
(ii)
exercising, or not exercising, any right, power, authority or discretion given to it by, or in connection
with, any Finance Document or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or
in connection with, any Finance Document; or
(iii)
without prejudice to the generality of paragraphs (i) and (ii) above, any damages, costs or
losses to any person, any diminution in value or any liability whatsoever (including, without limitation, for negligence or any other
category of liability whatsoever but not including any claim based on the fraud of the Agent) arising as a result of:
(A)
any act, event or circumstance not reasonably within its control; or
(B)
the general risks of investment in, or the holding of assets in, any jurisdiction,
including (in each case and without
limitation) such damages, costs, losses, diminution in value or liability arising as a result of: nationalisation, expropriation or other
governmental actions; any regulation, currency restriction, devaluation or fluctuation; market conditions affecting the execution or settlement
of transactions or the value of assets (including any Disruption Event); breakdown, failure or malfunction of any third party transport,
telecommunications, computer services or systems; natural disasters or acts of God; war, terrorism, insurrection or revolution; or strikes
or industrial action.
(b)
No Party (other than the Agent) may take any proceedings against any officer, employee or agent of the
Agent in respect of any claim it might have against the Agent or in respect of any act or omission of any kind by that officer, employee
or agent in relation to any Finance Document and any officer, employee or agent of the Agent may rely on this paragraph (b).
(c)
The Agent will not be liable for any delay (or any related consequences) in crediting an account with
an amount required under the Finance Documents to be paid by the Agent if the Agent has taken all necessary steps as soon as reasonably
practicable to comply with the regulations or operating procedures of any recognised clearing or settlement system used by the Agent for
that purpose.
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(d)
Nothing in this Agreement shall oblige the Agent to carry out:
(i)
any "know your customer" or other checks in relation to any person; or
(ii)
any check on the extent to which any transaction contemplated by this Agreement might be unlawful for
any Lender,
on behalf of any Lender and each Lender
confirms to the Agent that it is solely responsible for any such checks it is required to carry out and that it may not rely on any statement
in relation to such checks made by the Agent.
(e)
Without prejudice to any provision of any Finance Document excluding or limiting the Agent's liability,
any liability of the Agent arising under or in connection with any Finance Document shall be limited to the amount of actual loss which
has been suffered (as determined by reference to the date of default of the Agent or, if later, the date on which the loss arises as a
result of such default) but without reference to any special conditions or circumstances known to the Agent at any time which increase
the amount of that loss. In no event shall the Agent be liable for any loss of profits, goodwill, reputation, business opportunity or
anticipated saving, or for special, punitive, indirect or consequential damages, whether or not the Agent has been advised of the possibility
of such loss or damages.
23.10
Lender's indemnity to the Agent
(a)
The Lender shall indemnify the Agent, within three Business Days of demand, against any cost, loss or
liability (including, without limitation, for negligence or any other category of liability whatsoever) incurred by the Agent (otherwise
than by reason of the Agent's gross negligence or wilful misconduct) (or, in the case of any cost, loss or liability pursuant to Clause
25.10 (
Disruption to payment systems etc.
), notwithstanding the Agent's negligence, gross negligence or any other category of liability
whatsoever but not including any claim based on the fraud of the Agent) in acting as Agent under the Finance Documents (unless the Agent
has been reimbursed by the Borrower pursuant to a Finance Document).
(b)
the Borrower shall immediately on demand reimburse the Lender for any payment that Lender makes to the
Agent pursuant to paragraph ‎(a) above.
23.11
Confidentiality
(a)
In acting as agent for the Finance Parties, the Agent shall be regarded as acting through its agency division
which shall be treated as a separate entity from any other of its divisions or departments.
(b)
If information is received by another division or department of the Agent, it may be treated as confidential
to that division or department and the Agent shall not be deemed to have notice of it.
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23.12
Relationship with the Lender
(a)
The Agent may treat the person shown in its records as Lender at the opening of business (in the place
of the Agent's principal office as notified to the Finance Parties from time to time) as the Lender acting through its Facility Office:
(i)
entitled to or liable for any payment due under any Finance Document on that day; and
(ii)
entitled to receive and act upon any notice, request, document or communication or make any decision or
determination under any Finance Document made or delivered on that day,
unless it has received not less than five
Business Days' prior notice from that Lender to the contrary in accordance with the terms of this Agreement.
(b)
The Lender may by notice to the Agent appoint a person to receive on its behalf all notices, communications,
information and documents to be made or despatched to that Lender under the Finance Documents. Such notice shall contain the address and
(where communication by electronic mail or other electronic means is permitted under Clause 27.5 (
Electronic communication
)) electronic
mail address and/or any other information required to enable the transmission of information by that means (and, in each case, the department
or officer, if any, for whose attention communication is to be made) and be treated as a notification of a substitute address, electronic
mail address (or such other information), department and officer by that Lender for the purposes of Clause 27.2 (
Addresses
) and
paragraph (a)(ii) of Clause 27.5 (
Electronic communication
) and the Agent shall be entitled to treat such person as the person
entitled to receive all such notices, communications, information and documents as though that person were the Lender.
23.13
Credit appraisal by the Lender
Without affecting the responsibility
of the Borrower for information supplied by it or on its behalf in connection with any Finance Document, the Lender confirms to the Agent
that it has been, and will continue to be, solely responsible for making its own independent appraisal and investigation of all risks
arising under or in connection with any Finance Document including but not limited to:
(a)
the financial condition, status and nature of the Borrower;
(b)
the legality, validity, effectiveness, adequacy or enforceability of any Finance Document and any other
agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document;
(c)
whether the Lender has recourse, and the nature and extent of that recourse, against any Party or any
of its respective assets under or in connection with any Finance Document, the transactions contemplated by the Finance Documents or any
other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document;
and
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(d)
the adequacy, accuracy or completeness of the Information and any other information provided by the Agent,
any Party or by any other person under or in connection with any Finance Document, the transactions contemplated by any Finance Document
or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance
Document.
23.14
Deduction from amounts payable by the Agent
If any Party owes an amount to the Agent
under the Finance Documents the Agent may, after giving notice to that Party, deduct an amount not exceeding that amount from any payment
to that Party which the Agent would otherwise be obliged to make under the Finance Documents and apply the amount deducted in or towards
satisfaction of the amount owed. For the purposes of the Finance Documents that Party shall be regarded as having received any amount
so deducted.
24.
Conduct of business by the Finance Parties
No provision of this Agreement will:
(a)
interfere with the right of any Finance Party to arrange its affairs (tax or otherwise) in whatever manner
it thinks fit;
(b)
oblige any Finance Party to investigate or claim any credit, relief, remission or repayment available
to it or the extent, order and manner of any claim; or
(c)
oblige any Finance Party to disclose any information relating to its affairs (tax or otherwise) or any
computations in respect of Tax.
25.
Payment Mechanics
25.1
Payments to the Agent
(a)
On each date on which the Borrower or the Lender is required to make a payment under a Finance Document,
the Borrower or the Lender shall make the same available to the Agent (unless a contrary indication appears in a Finance Document) for
value on the due date at the time and in such funds specified by the Agent as being customary at the time for settlement of transactions
in the relevant currency in the place of payment.
(b)
Payment shall be made to such account in the principal financial centre of the country of that currency
and with such bank as the Agent, in each case, specifies.
25.2
Distributions by the Agent
Each payment received by the Agent under
the Finance Documents for another Party shall, subject to Clause 25.3 (
Distributions to the Borrower
), Clause 25.4 (
Clawback
and pre-funding
) and Clause 23.14 (
Deduction from amounts payable by the Agent
) be made available by the Agent as soon as practicable
after receipt to the Party entitled to receive payment in accordance with this Agreement (in the case of a Lender, for the account of
its Facility Office), to such account as that Party may notify to the Agent by not less than five Business Days' notice with a bank specified
by that Party in the principal financial centre of the country of that currency.
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25.3
Distributions to the Borrower
The Agent may (with the consent of the
Borrower or in accordance with Clause 26 (
Set-off
)) apply any amount received by it for the Borrower in or towards payment (on
the date and in the currency and funds of receipt) of any amount due from the Borrower under the Finance Documents or in or towards purchase
of any amount of any currency to be so applied.
25.4
Clawback and pre-funding
(a)
Where a sum is to be paid to the Agent under the Finance Documents for another Party, the Agent is not
obliged to pay that sum to that other Party (or to enter into or perform any related exchange contract) until it has been able to establish
to its satisfaction that it has actually received that sum.
(b)
Unless paragraph (c) below applies, if the Agent pays an amount to another Party and it proves to
be the case that the Agent had not actually received that amount, then the Party to whom that amount (or the proceeds of any related exchange
contract) was paid by the Agent shall on demand refund the same to the Agent together with interest on that amount from the date of payment
to the date of receipt by the Agent, calculated by the Agent to reflect its cost of funds.
(c)
If the Agent is willing to make available amounts for the account of the Borrower before receiving funds
from the Lender then if and to the extent that the Agent does so but it proves to be the case that it does not then receive funds from
a Lender in respect of a sum which it paid to the Borrower:
(i)
the Borrower shall on demand refund it to the Agent; and
(ii)
the Lender by whom those funds should have been made available or, if that Lender fails to do so, the
Borrower shall on demand pay to the Agent the amount (as certified by the Agent) which will indemnify the Agent against any funding cost
incurred by it as a result of paying out that sum before receiving those funds from that Lender.
25.5
Partial payments
(a)
If the Agent receives a payment that is insufficient to discharge all the amounts then due and payable
by the Borrower under the Finance Documents, the Agent shall apply that payment towards the obligations of the Borrower under the Finance
Documents in the following order:
(i)
first
, in or towards payment
pro rata
of any unpaid amount owing to the Agent under the
Finance Documents;
(ii)
secondly
, in or towards payment pro rata of any accrued interest, fee or commission due but unpaid
under this Agreement;
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(iii)
thirdly
, in or towards payment
pro rata
of any principal due but unpaid under this Agreement;
and
(iv)
fourthly
, in or towards payment pro rata of any other sum due but unpaid under the Finance Documents.
(b)
The Agent shall, if so directed by the Lender, vary the order set out in paragraphs (a)(ii) to (a)(iv) above.
(c)
Paragraphs (a) and (b) above will override any appropriation made by the Borrower.
25.6
No set-off by the Borrower
All payments to be made by the Borrower
under the Finance Documents shall be calculated and be made without (and free and clear of any deduction for) set-off or counterclaim.
25.7
Business Days
(a)
Any payment under any Finance Document which is due to be made on a day that is not a Business Day shall
be made on the next Business Day in the same calendar month (if there is one) or the preceding Business Day (if there is not).
(b)
During any extension of the due date for payment of any principal or Unpaid Sum under this Agreement interest
is payable on the principal or Unpaid Sum at the rate payable on the original due date.
25.8
Currency of account
(a)
Subject to paragraphs (b) and (c) below, dollars is the currency of account and payment for
any sum due from the Borrower under any Finance Document.
(b)
Each payment in respect of costs, expenses or Taxes shall be made in the currency in which the costs,
expenses or Taxes are incurred.
(c)
Any amount expressed to be payable in a currency other than dollars shall be paid in that other currency.
25.9
Change of currency
(a)
Unless otherwise prohibited by law, if more than one currency or currency unit are at the same time recognised
by the central bank of any country as the lawful currency of that country, then:
(i)
any reference in the Finance Documents to, and any obligations arising under the Finance Documents in,
the currency of that country shall be translated into, or paid in, the currency or currency unit of that country designated by the Agent
(after consultation with the Borrower); and
(ii)
any translation from one currency or currency unit to another shall be at the official rate of exchange
recognised by the central bank for the conversion of that currency or currency unit into the other, rounded up or down by the Agent (acting
reasonably).
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(b)
If a change in any currency of a country occurs, this Agreement will, to the extent the Agent (acting
reasonably and after consultation with the Borrower) specifies to be necessary, be amended to comply with any generally accepted conventions
and market practice to reflect the change in currency.
25.10
Disruption to payment systems etc.
If either the Agent determines (in its
discretion) that a Disruption Event has occurred or the Agent is notified by the Borrower that a Disruption Event has occurred:
(a)
the Agent may, and shall if requested to do so by the Borrower, consult with the Borrower with a view
to agreeing with the Borrower such changes to the operation or administration of the Facility as the Agent may deem necessary in the circumstances;
(b)
the Agent shall not be obliged to consult with the Borrower in relation to any changes mentioned in paragraph
(a) above if, in its opinion, it is not practicable to do so in the circumstances and, in any event, shall have no obligation to
agree to such changes;
(c)
the Agent may consult with the Finance Parties in relation to any changes mentioned in paragraph (a) above
but shall not be obliged to do so if, in its opinion, it is not practicable to do so in the circumstances;
(d)
any such changes agreed upon by the Agent and the Borrower shall (whether or not it is finally determined
that a Disruption Event has occurred) be binding upon the Parties as an amendment to (or, as the case may be, waiver of) the terms of
the Finance Documents notwithstanding the provisions of Clause 31 (
Amendments and Waivers
);
(e)
the Agent shall not be liable for any damages, costs or losses to any person, any diminution in value
or any liability whatsoever (including, without limitation for negligence, gross negligence or any other category of liability whatsoever
but not including any claim based on the fraud of the Agent) arising as a result of its taking, or failing to take, any actions pursuant
to or in connection with this Clause 25.10; and
(f)
the Agent shall notify the Finance Parties of all changes agreed pursuant to paragraph (d) above.
26.
Set-off
A Finance Party may set off any matured
obligation due from the Borrower under the Finance Documents (to the extent beneficially owned by that Finance Party) against any matured
obligation owed by that Finance Party to the Borrower, regardless of the place of payment, booking branch or currency of either obligation.
If the obligations are in different currencies, the Finance Party may convert either obligation at a market rate of exchange in its usual
course of business for the purpose of the set-off.
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27.
Notices
27.1
Communications in writing
Any communication to be made under or
in connection with the Finance Documents shall be made in writing and, unless otherwise stated, may be made by letter.
27.2
Addresses
The address (and the department or officer,
if any, for whose attention the communication is to be made) of each Party for any communication or document to be made or delivered under
or in connection with the Finance Documents is:
(a)
in the case of the Borrower, that identified with its name below;
(b)
in the case of each Lender, that notified in writing to the Agent on or prior to the date on which it
becomes a Party; and
(c)
in the case of the Agent, that identified with its name below,
or any substitute address or department
or officer as the Party may notify to the Agent (or the Agent may notify to the other Parties, if a change is made by the Agent) by not
less than five Business Days' notice.
27.3
Delivery
(a)
Any communication or document made or delivered by one person to another under or in connection with the
Finance Documents will only be effective if by way of letter, when it has been left at the relevant address or five Business Days after
being deposited in the post postage prepaid in an envelope addressed to it at that address and, if a particular department or officer
is specified as part of its address details provided under Clause 27.2 (
Addresses
), if addressed to that department or officer.
(b)
Any communication or document to be made or delivered to the Agent will be effective only when actually
received by the Agent and then only if it is expressly marked for the attention of the department or officer identified with the Agent's
signature below (or any substitute department or officer as the Agent shall specify for this purpose).
(c)
All notices from or to the Borrower shall be sent through the Agent.
(d)
Any communication or document which becomes effective, in accordance with paragraphs (a) to ‎(c)
‎
above, after 5:00 p.m. in the place of receipt shall be deemed only to become effective on the following day.
27.4
Notification of address
Promptly upon changing its address,
the Agent shall notify the other Parties.
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27.5
Electronic communication
(a)
Any communication or document to be made or delivered by one Party to another under or in connection with
the Finance Documents may be made by electronic mail or other electronic means (including, without limitation, by way of posting to a
secure website) if those two Parties:
(i)
notify each other in writing of their electronic mail address and/or any other information required to
enable the transmission of information by that means; and
(ii)
notify each other of any change to their address or any other such information supplied by them by not
less than five Business Days' notice.
(b)
Any such electronic communication or delivery as specified in paragraph (a) above to be made between
the Borrower and a Finance Party may only be made in that way to the extent that those two Parties agree that, unless and until notified
to the contrary, this is to be an accepted form of communication or delivery.
(c)
Any such electronic communication or document as specified in paragraph (a) above made or delivered
by one Party to another will be effective only when actually received (or made available) in readable form and in the case of any electronic
communication or document made or delivered by a Party to the Agent only if it is addressed in such a manner as the Agent shall specify
for this purpose.
(d)
Any electronic communication or document which becomes effective, in accordance with paragraph I above,
after 5:00 p.m. in the place in which the Party to whom the relevant communication or document is sent or made available has its
address for the purpose of this Agreement shall be deemed only to become effective on the following day.
(e)
Any reference in a Finance Document to a communication being sent or received or a document being delivered
shall be construed to include that communication or document being made available in accordance with this Clause 27.5.
27.6
English language
(a)
Any notice given under or in connection with any Finance Document must be in English.
(b)
All other documents provided under or in connection with any Finance Document must be:
(i)
in English; or
(ii)
if not in English, and if so required by the Agent, accompanied by a certified English translation and,
in this case, the English translation will prevail unless the document is a constitutional, statutory or other official document.
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28.
Calculations and Certificates
28.1
Accounts
In any litigation or arbitration proceedings
arising out of or in connection with a Finance Document, the entries made in the accounts maintained by a Finance Party are
prima facie
evidence of the matters to which they relate.
28.2
Certificates and determinations
Any certification or determination by
a Finance Party of a rate or amount under any Finance Document is, in the absence of manifest error, conclusive evidence of the matters
to which it relates.
28.3
Day count convention
Any interest, commission or fee accruing
under a Finance Document will accrue from day to day and is calculated on the basis of the actual number of days elapsed and a year of
360 days.
29.
Partial Invalidity
If, at any time, any provision of a
Finance Document is or becomes illegal, invalid or unenforceable in any respect under any law of any jurisdiction, neither the legality,
validity or enforceability of the remaining provisions nor the legality, validity or enforceability of such provision under the law of
any other jurisdiction will in any way be affected or impaired.
30.
Remedies and Waivers
No failure to exercise, nor any delay
in exercising, on the part of any Finance Party, any right or remedy under a Finance Document shall operate as a waiver of any such right
or remedy or constitute an election to affirm any of the Finance Documents. No election to affirm any Finance Document on the part of
any Finance Party shall be effective unless it is in writing. No single or partial exercise of any right or remedy shall prevent any further
or other exercise or the exercise of any other right or remedy. The rights and remedies provided in each Finance Document are cumulative
and not exclusive of any rights or remedies provided by law.
31.
Amendments and Waivers
Any term of the Finance Documents may
be amended or waived only with the written consent of the Agent, the Lender(s) and the Borrower.
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32.
Confidential Information
32.1
Confidentiality
Each Finance Party agrees to keep all
Confidential Information confidential and not to disclose it to anyone, save to the extent permitted by Clause 32.2 (
Disclosure of
Confidential Information
), and to ensure that all Confidential Information is protected with security measures and a degree of care
that would apply to its own confidential information.
32.2
Disclosure of Confidential Information
Any Finance Party may disclose:
(a)
to any of its Affiliates and Related Funds and any of its or their officers, directors, employees, professional
advisers, auditors, partners and Representatives such Confidential Information as that Finance Party shall consider appropriate if any
person to whom the Confidential Information is to be given pursuant to this paragraph (a) is informed in writing of its confidential
nature and that some or all of such Confidential Information may be price-sensitive information except that there shall be no such requirement
to so inform if the recipient is subject to professional obligations to maintain the confidentiality of the information or is otherwise
bound by requirements of confidentiality in relation to the Confidential Information;
(b)
to any person:
(i)
to (or through) whom it assigns or transfers (or may potentially assign or transfer) all or any of its
rights and/or obligations under one or more Finance Documents or which succeeds (or which may potentially succeed) it as Agent and, in
each case, to any of that person's Affiliates, Related Funds, Representatives and professional advisers;
(ii)
with (or through) whom it enters into (or may potentially enter into), whether directly or indirectly,
any sub-participation in relation to, or any other transaction under which payments are to be made or may be made by reference to, one
or more Finance Documents and/or the Borrower and to any of that person's Affiliates, Related Funds, Representatives and professional
advisers;
(iii)
appointed by any Finance Party or by a person to whom paragraph (b)(i) or (ii) above applies
to receive communications, notices, information or documents delivered pursuant to the Finance Documents on its behalf (including, without
limitation, any person appointed under paragraph (b) of Clause 23.12 (
Relationship with the Lender
));
(iv)
who invests in or otherwise finances (or may potentially invest in or otherwise finance), directly or
indirectly, any transaction referred to in paragraph (b)(i) or (b)(ii) above;
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(v)
to whom information is required or requested to be disclosed by any court of competent jurisdiction or
any governmental, banking, taxation or other regulatory authority or similar body, the rules of any relevant stock exchange or pursuant
to any applicable law or regulation;
(vi)
to whom information is required to be disclosed in connection with, and for the purposes of, any litigation,
arbitration, administrative or other investigations, proceedings or disputes;
(vii)
to whom or for whose benefit that Finance Party charges, assigns or otherwise creates Security (or may
do so) pursuant to Clause 21.2 (
Security over Lender's rights
);
(viii)
who is a Party; or
(ix)
with the consent of the Borrower;
in each case, such Confidential Information
as that Finance Party shall consider appropriate if:
(A)
in relation to paragraphs (b)(i), (b)(ii) and (b)(iii) above, the person to whom the Confidential
Information is to be given has entered into a Confidentiality Undertaking except that there shall be no requirement for a Confidentiality
Undertaking if the recipient is a professional adviser and is subject to professional obligations to maintain the confidentiality of the
Confidential Information;
(B)
in relation to paragraph (b)(iv) above, the person to whom the Confidential Information is to be
given has entered into a Confidentiality Undertaking or is otherwise bound by requirements of confidentiality in relation to the Confidential
Information they receive and is informed that some or all of such Confidential Information may be price-sensitive information;
(C)
in relation to paragraphs (b)(v), (b)(vi) and (b)(vii) above, the person to whom the Confidential
Information is to be given is informed of its confidential nature and that some or all of such Confidential Information may be price-sensitive
information except that there shall be no requirement to so inform if, in the opinion of that Finance Party, it is not practicable so
to do in the circumstances;
(c)
to any person appointed by that Finance Party or by a person to whom paragraph (b)(i) or (b)(ii) above
applies to provide administration or settlement services in respect of one or more of the Finance Documents including without limitation,
in relation to the trading of participations in respect of the Finance Documents, such Confidential Information as may be required to
be disclosed to enable such service provider to provide any of the services referred to in this paragraph (c) if the service provider
to whom the Confidential Information is to be given has entered into a confidentiality agreement substantially in the form of the LMA
Master Confidentiality Undertaking for Use With Administration/Settlement Service Providers or such other form of confidentiality undertaking
agreed between the Borrower and the relevant Finance Party; and
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(d)
to any rating agency (including its professional advisers) such Confidential Information as may be required
to be disclosed to enable such rating agency to carry out its normal rating activities in relation to the Finance Documents and/or the
Borrower if the rating agency to whom the Confidential Information is to be given is informed of its confidential nature and that some
or all of such Confidential Information may be price-sensitive information.
Nothing in any Finance Document shall
prevent disclosure of any Confidential Information or other matter to the extent that preventing that disclosure would otherwise cause
any transaction contemplated by the Finance Documents or any transaction carried out in connection with any transaction contemplated by
the Finance Documents to become an arrangement described in Part II A 1 of Annex IV of Directive 2011/16/EU.
32.3
Entire agreement
This Clause 32 constitutes the entire
agreement between the Parties in relation to the obligations of the Finance Parties under the Finance Documents regarding Confidential
Information and supersedes any previous agreement, whether express or implied, regarding Confidential Information.
32.4
Inside information
Each of the Finance Parties acknowledges
that some or all of the Confidential Information is or may be price-sensitive information and that the use of such information may be
regulated or prohibited by applicable legislation including securities law relating to insider dealing and market abuse and each of the
Finance Parties undertakes not to use any Confidential Information for any unlawful purpose.
32.5
Notification of disclosure
Each of the Finance Parties agrees (to
the extent permitted by law and regulation) to inform the Borrower:
(a)
of the circumstances of any disclosure of Confidential Information made pursuant to paragraph (b)(v) of
Clause 32.2 (
Disclosure of Confidential Information
) except where such disclosure is made to any of the persons referred to in
that paragraph during the ordinary course of its supervisory or regulatory function; and
(b)
upon becoming aware that Confidential Information has been disclosed in breach of this Clause 32.
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32.6
Continuing obligations
The obligations in this Clause 32 are
continuing and, in particular, shall survive and remain binding on each Finance Party for a period of twelve months from the earlier of:
(a)
the date on which all amounts payable by the Borrower under or in connection with this Agreement have
been paid in full and the Facility has been cancelled or otherwise cease to be available; and
(b)
the date on which such Finance Party otherwise ceases to be a Finance Party.
33.
Confidentiality of Funding Rates
33.1
Confidentiality and disclosure
(a)
The Agent and the Borrower agree to keep each Funding Rate confidential and not to disclose it to anyone,
save to the extent permitted by paragraphs (b) and (c) below.
(b)
The Agent may disclose:
(i)
any Funding Rate to the Borrower pursuant to Clause 8.4 (
Notification of rates of interest
); and
(ii)
any Funding Rate to any person appointed by it to provide administration services in respect of one or
more of the Finance Documents to the extent necessary to enable such service provider to provide those services if the service provider
to whom that information is to be given has entered into a confidentiality agreement substantially in the form of the LMA Master Confidentiality
Undertaking for Use With Administration/Settlement Service Providers or such other form of confidentiality undertaking agreed between
the Agent and the relevant Lender.
(c)
The Agent may disclose any Funding Rate, and the Borrower may disclose any Funding Rate, to:
(i)
any of its Affiliates and any of its or their officers, directors, employees, professional advisers, auditors,
partners and Representatives if any person to whom that Funding Rate is to be given pursuant to this paragraph (i) is informed in
writing of its confidential nature and that it may be price-sensitive information except that there shall be no such requirement to so
inform if the recipient is subject to professional obligations to maintain the confidentiality of that Funding Rate or is otherwise bound
by requirements of confidentiality in relation to it;
(ii)
any person to whom information is required or requested to be disclosed by any court of competent jurisdiction
or any governmental, banking, taxation or other regulatory authority or similar body, the rules of any relevant stock exchange or
pursuant to any applicable law or regulation if the person to whom that Funding Rate is to be given is informed in writing of its confidential
nature and that it may be price-sensitive information except that there shall be no requirement to so inform if, in the opinion of the
Agent or the Borrower, as the case may be, it is not practicable to do so in the circumstances;
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(iii)
any person to whom information is required to be disclosed in connection with, and for the purposes of,
any litigation, arbitration, administrative or other investigations, proceedings or disputes if the person to whom that Funding Rate is
to be given is informed in writing of its confidential nature and that it may be price-sensitive information except that there shall be
no requirement to so inform if, in the opinion of the Agent or the Borrower, as the case may be, it is not practicable to do so in the
circumstances; and
(iv)
any person with the consent of the relevant Lender.
33.2
Related obligations
(a)
The Agent and the Borrower acknowledge that each Funding Rate is or may be price-sensitive information
and that its use may be regulated or prohibited by applicable legislation including securities law relating to insider dealing and market
abuse and the Agent and the Borrower undertake not to use any Funding Rate for any unlawful purpose.
(b)
The Agent and the Borrower agree (to the extent permitted by law and regulation) to inform the relevant
Lender:
(i)
of the circumstances of any disclosure made pursuant to paragraph I(ii) of Clause 33.1 (
Confidentiality
and disclosure
) except where such disclosure is made to any of the persons referred to in that paragraph during the ordinary course
of its supervisory or regulatory function; and
(ii)
upon becoming aware that any information has been disclosed in breach of this Clause 33.
33.3
No Event of Default
No Event of Default will occur under
Clause 20.2 (
Other obligations
) by reason only of the Borrower's failure to comply with this Clause 33.
34.
Counterparts
Each Finance Document may be executed
in any number of counterparts, and this has the same effect as if the signatures on the counterparts were on a single copy of the Finance
Document.
35.
Governing Law
This Agreement and any non-contractual
obligations arising out of or in connection with it are governed by English law.
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36.
Enforcement
36.1
Jurisdiction
(a)
The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection
with this Agreement (including a dispute relating to the existence, validity or termination of this Agreement or the consequences of its
nullity or any non-contractual obligations arising out of or in connection with this Agreement) (a "
Dispute
").
(b)
The Borrower agrees that the courts of England are the most appropriate and convenient courts to settle
Disputes and accordingly the Borrower will not argue to the contrary.
(c)
Notwithstanding paragraph (a) and (b) above, any Finance Party may take proceedings relating
to a Dispute in any other courts with jurisdiction. To the extent allowed by law, the Finance Parties may take concurrent proceedings
in any number of jurisdictions.
This Agreement has been entered into on the
date stated at the beginning of this Agreement.
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Schedule
1
Conditions Precedent to Initial Utilisation
1.
The Borrower
(a)
A copy of the constitutional documents of the Borrower.
(b)
A copy of a resolution of the board of directors of the Borrower:
(i)
approving the terms of, and the transactions contemplated by, the Finance Documents to which it is a party
and resolving that it may execute the Finance Documents to which it is a party;
(ii)
authorising a specified person or persons to execute the Finance Documents to which it is a party on its
behalf; and
(iii)
authorising a specified person or persons, on its behalf, to sign and/or despatch all documents and notices
(including, any Utilisation Request) to be signed and/or despatched by it under or in connection with the Finance Documents to which it
is a party.
(c)
A certificate of the Borrower (signed by the chief executive officer or the chief financial officer of
the Borrower) confirming that borrowing the Facility would not cause any borrowing or similar limit binding on the Borrower to be exceeded.
(d)
A certificate of the chief executive officer or the chief financial officer of the Borrower certifying
that each copy document relating to it specified in this Schedule 1 is correct, complete and in full force and effect as at a date no
earlier than the date of the first Utilisation Request to be delivered under this Agreement.
2.
Other documents and evidence
(a)
Evidence that the fees, costs and expenses then due from the Borrower pursuant to Clause 16 (Costs and
expenses) have been paid or will be paid (by authorising the Lender to withhold proceeds from the first Utilisation) by the first Utilisation
Date.
(b)
A copy of any other Authorisation or other document, opinion or assurance which the Agent considers to
be necessary or desirable (if it has notified the Borrower accordingly) in connection with the entry into and performance of the transactions
contemplated by any Finance Document or for the validity and enforceability of any Finance Document.
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Schedule
2
Utilisation Request
From:
Polestar Automotive Holding UK PLC as Borrower
To:
Geely Sweden Automotive Investment AB as Agent
Dated:
Polestar Automotive Holding UK PLC –
USD 400,000,000 Facility Agreement
dated [] (the "Agreement")
1.
We refer to the Agreement. This is a Utilisation Request. Terms defined in the Agreement have the same
meaning in this Utilisation Request unless given a different meaning in this Utilisation Request.
2.
We wish to borrow a Loan on the following terms:
Proposed Utilisation Date:
[ ] (or, if that is not a Business Day, the next Business Day)
Amount:
[USD/CNY] [ ] or, if less, the Available Facility
3.
We confirm that each condition specified in Clause 4.2 (Further conditions precedent) of the Agreement
is satisfied on the date of this Utilisation Request.
4.
[We authorise you to deduct from the proceeds of the Loan an aggregate amount equal to the aggregate amount
of any fees, costs and expenses due from us as of the Utilisation Date pursuant to Clause 16 (Costs and expenses) of the Agreement,
and apply such amount in discharge of such payments.]
5.
[Following the deduction pursuant to paragraph 5 above, the]/[The] proceeds of this Loan should be
credited to [account].
This Utilisation Request is irrevocable.
authorised signatory for and on behalf of
Polestar Automotive Holding UK PLC
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Schedule
3
Form of Equity Conversion Exercise Notice
From:
Geely Sweden Automotive Investment AB as Lender
To:
Polestar Automotive Holding UK PLC as Borrower
Dated:
Polestar Automotive Holding UK PLC – USD
400,000,000 Facility Agreement
dated [] (the " Agreement")
We refer to the Agreement. This is an Equity Conversion
Exercise Notice. Terms defined in the Agreement have the same meaning when used in this Equity Conversion Exercise Notice unless given
a different meaning in this Equity Conversion Exercise Notice.
Geely Sweden Automotive Investment AB requests
the conversion of [all amounts owing by the Borrower under the Agreement][$____________ of outstanding principal and interest owed by
the Borrower under the Agreement].
Geely Sweden Automotive Investment AB requests
that the Equity Conversion Date occur on: _______________.
The closing prices of PSNY Class A ADS as
reported by NASDAQ on the 5 trading days immediately preceding this notice are as follows:
PSNY Closing Price Date
PSNY Closing Price
1.
2.
3.
4.
5.
Average closing price for above dates, being the
Equity Conversion Price
:
By:
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Schedule
4
Reference Rate Terms
CURRENCY:
Dollars.
Cost of funds as a fallback
Cost of funds will apply as a fallback.
Definitions
Additional Business Days:
Any day other than:
(a)           a
Saturday or a Sunday; and
(b)           a
day on which the Securities Industry and Financial Markets Association (or any successor organisation) recommends that the fixed income
departments of its members be closed for the entire day for purposes of trading in US Government securities.
Alternative Term Rate:
The Term SOFR reference rate administered by ICE Benchmark Administration Limited (or any other person which takes over the administration of that rate) for the relevant period published (before any correction, recalculation or republication by the administrator) by ICE Benchmark Administration Limited (or any other person which takes over the publication of that rate).
Alternative Term Rate Adjustment:
None specified.
Business Day Conventions (definition of "Month" and Clause 9.2 (
Non-Business Days
)):
(a)           If any period is expressed to accrue by reference to a Month or any number of Months then, in respect of the last Month of that period:
(i)            subject to paragraph (iii) below, if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day in that calendar month in which that period is to end if there is one, or if there is not, on the immediately preceding Business Day;
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(ii)           if there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Business Day in that calendar month; and
(iii)          if an Interest Period begins on the last Business Day of a calendar month, that Interest Period shall end on the last Business Day in the calendar month in which that Interest Period is to end.
(b)           If an Interest Period would otherwise end on a day which is not a Business Day, that Interest Period will instead end on the next Business Day in that calendar month (if there is one) or the preceding Business Day (if there is not).
Market Disruption Rate:
None specified.
Overnight Rate:
The secured overnight financing rate (SOFR) administered by the Federal Reserve Bank of New York (or any other person which takes over the administration of that rate) published (before any correction, recalculation or republication by the administrator) by the Federal Reserve Bank of New York (or any other person which takes over the publication of that rate).
Overnight Reference Day:
The day which is two Additional Business Days before the Quotation Day.
Primary Term Rate:
The Term SOFR reference rate administered by CME Group Benchmark Administration Limited (or any other person which takes over the administration of that rate) for the relevant period published (before any correction, recalculation or republication by the administrator) by CME Group Benchmark Administration Limited (or any other person which takes over the publication of that rate).
Quotation Day:
Two Additional Business Days before the first day of the relevant Interest Period (unless market practice differs in the relevant syndicated loan market, in which case the Quotation Day will be determined by the Agent in accordance with that market practice (and if quotations would normally be given on more than one day, the Quotation Day will be the last of those days)).
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Quotation Time:
The Quotation Day.
Relevant Market:
The market for overnight cash borrowing collateralised by US Government securities.
Reporting Day:
(a)           Subject
to paragraph (b) below, the Quotation Day.
(b)           If
the Term Reference Rate is, or is based on the Alternative Term Rate, the date falling one Business Day after the Quotation Day.
Reporting Times
Deadline for the Lender to report market disruption in accordance with Clause 10.2 (
Market disruption
):
Close of business in London on the Reporting Day for the relevant Loan.
Deadline for the Lender to report their cost of funds in accordance with Clause 10.3 (
Cost of funds
):
Close of business on the date falling two Business Days after the Reporting Day for the relevant Loan (or, if earlier, on the date falling two Business Days before the date on which interest is due to be paid in respect of the Interest Period for that Loan).
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Schedule
5
Form of
Compliance Certificate
From:
Polestar Automotive Holding UK PLC as Borrower
To:
Geely Sweden Automotive Investment AB as Agent
Dated:
Polestar Automotive Holding UK PLC – USD
400,000,000 Facility Agreement
dated [] (the " Agreement")
1.
We refer to the Agreement. This is a Compliance Certificate. Terms defined in the Agreement have the same
meaning when used in this Compliance Certificate unless given a different meaning in this Compliance Certificate.
2.
[We confirm that no Event of Default is continuing.]*
[Chief Executive Officer]/[Chief Financial Officer]
of
Polestar Automotive Holding UK PLC
NOTE:
*
If
this statement cannot be made, the Compliance Certificate should identify any Event of Default that is continuing and the steps, if any,
being taken to remedy it.
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SIGNATURES
THE BORROWER
For and on behalf of
POLESTAR AUTOMOTIVE HOLDING
UK PLC
By:
/s/ Michael Lohscheller
By:
/s/ Jean-François
Mady
Name:
Michael Lohscheller
Name:
Jean-François Mady
Title:
CEO
Title:
CFO
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THE AGENT
For and on behalf of
GEELY SWEDEN AUTOMOTIVE
INVESTMENT AB
By:
/s/ Per Ansgar
Name:
Per Ansgar
Title:
CEO
THE ORIGINAL LENDER
For and on behalf of
GEELY SWEDEN AUTOMOTIVE
INVESTMENT AB
By:
/s/ Per Ansgar
Name:
Per Ansgar
Title:
CEO
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