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4818-2283-0963 v18
EXECUTION VERSION
INTERCREDITOR AGREEMENT
dated _______________________ 2018
relating to
NOBLE TRADING HOLD CO LIMITED
as Trading Hold Co
with
MADISON PACIFIC TRUST LIMITED
acting as Common Security Agent
20 December
4818-2283-0963 v18
CONTENTS
Clause Page
1. DEFINITIONS AND INTERPRETATION ....................................................................... 2
2. PRIORITY ........................................................................................................................ 27
3. PAYMENT RESTRICTIONS .......................................................................................... 28
4. SECURITY ....................................................................................................................... 29
5. ENFORCEMENT ACTION ............................................................................................. 29
6. AMENDMENTS TO DEBT DOCUMENTS ................................................................... 30
7. DEBTOR AND INTRA-GROUP LENDER REPRESENTATIONS .............................. 31
8. EFFECT OF INSOLVENCY EVENT ............................................................................. 31
9. TURNOVER OF RECEIPTS ........................................................................................... 33
10. REDISTRIBUTION ......................................................................................................... 35
11. ENFORCEMENT OF TRANSACTION SECURITY ..................................................... 36
12. NON-DISTRESSED DISPOSALS................................................................................... 40
13. DISTRESSED DISPOSALS AND APPROPRIATION .................................................. 41
14. NON-CASH RECOVERIES ............................................................................................ 48
15. FURTHER ASSURANCE – DISPOSALS AND RELEASES ........................................ 50
16. APPLICATION OF PROCEEDS ..................................................................................... 51
17. FACILITATION OF QUALIFYING TFF REFINANCING ........................................... 56
18. THE SECURITY AGENTS ............................................................................................. 57
19. CHANGES TO THE PARTIES ....................................................................................... 72
20. COSTS AND EXPENSES ................................................................................................ 75
21. OTHER INDEMNITIES .................................................................................................. 76
22. INFORMATION............................................................................................................... 77
23. NOTICES .......................................................................................................................... 78
24. PRESERVATION............................................................................................................. 80
25. CONSENTS, AMENDMENTS AND OVERRIDE ......................................................... 81
26. COUNTERPARTS ........................................................................................................... 83
27. GOVERNING LAW ......................................................................................................... 83
28. ENFORCEMENT ............................................................................................................. 83
SCHEDULE 1 FORM OF DEBTOR ACCESSION DEED ........................................................ 85
SCHEDULE 2 FORM OF CREDITOR ACCESSION UNDERTAKING .................................. 87
SCHEDULE 3 FORM OF DEBTOR RESIGNATION REQUEST ............................................ 89
SCHEDULE 4 SECURITY PRINCIPLES ................................................................................. 90
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THIS AGREEMENT is dated ______________________ 2018 and made between:
(1) MADISON PACIFIC TRUST LIMITED as Facility Agent under the Original NTFF
Agreement (in this capacity, the "Original NTFF Agent");
(2) THE FINANCIAL INSTITUTIONS named on the signing pages as NTFF Fronting
Banks, as fronting banks under the Original NTFF Agreement (in this capacity, the
"Original NTFF Fronting Banks");
(3) THE ORIGINAL NTFF FRONTING BANKS as holders of the Trade-Specific Security
pursuant to the Original NTFF Facility Agreement and MADISON PACIFIC TRUST
LIMITED as holder of the NTFF Borrower Cash Collateral Security (in this capacity, the
"Original NTFF Security Agents");
(4) THE ENTITIES named on the signing pages as NTFF Participants, as participants under
the Original NTFF Agreement (in this capacity, the "Original NTFF Participants");
(5) MADISON PACIFIC TRUST LIMITED as Facility Agent under the Original ITFF
Agreement (in this capacity, the "Original ITFF Agent");
(6) THE FINANCIAL INSTITUTION named on the signing pages as ITFF Fronting Bank,
as fronting bank under the Original ITFF Agreement (in this capacity, the "Original ITFF
Fronting Bank");
(7) THE ORIGINAL ITFF FRONTING BANKS as holders of the Trade-Specific Security
pursuant to the Original ITFF Facility Agreement and MADISON PACIFIC TRUST
LIMITED as holder of the ITFF Borrower Cash Collateral Security (in this capacity, the
"Original ITFF Security Agents");
(8) THE ENTITIES named on the signing pages as ITFF Participants, as participants under
the Original ITFF Agreement (in this capacity, the "Original ITFF Participants");
(9) DB TRUSTEES (HONG KONG) LIMITED as trustee of the Trading Co Bonds (in this
capacity, the "Trading Co Bond Trustee");
(10) DB TRUSTEES (HONG KONG) LIMITED as trustee of the Trading Hold Co Bonds
(in this capacity, the "Trading Hold Co Bond Trustee");
(11) ING BELGIUM NV/SA as facility agent under the RPP Facility Agreement (in this
capacity, the "RPP Agent");
(12) NOBLE INTERMEDIATE HOLD CO LIMITED ("Intermediate Hold Co");
(13) NOBLE TRADING HOLD CO LIMITED ("Trading Hold Co");
(14) NOBLE TRADING CO LIMITED ("Trading Co");
(15) THE SUBSIDIARIES of Trading Co named on the signing pages as Debtors (together
with Intermediate Hold Co, Trading Hold Co and Trading Co, the "Original Debtors");
(16) THE ENTITIES named on the signing pages as Intra-Group Lenders;
(17) NOBLE GROUP HOLDINGS LIMITED ("New Noble");
20 December
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(18) NOBLE NEW ASSET CO LIMITED ("Asset Co");
(19) MADISON PACIFIC TRUST LIMITED as security trustee or agent for the Trading
Hold Co Secured Parties (in this capacity, the "Trading Hold Co Security Agent"); and
(20) MADISON PACIFIC TRUST LIMITED as security trustee or agent for the Secured
Parties (in this capacity, the "Common Security Agent").
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Agreement:
"Acceleration Event" means an NTFF Acceleration Event, an ITFF Acceleration Event
or a Pari Passu Debt Acceleration Event, other than (in each case) one where the only
effect is to place any relevant Liabilities on demand.
"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.
"Agent" means each Creditor Representative and each Security Agent.
"Appropriation" means the appropriation (or similar process) of the shares in the capital
of any member of the Trading Hold Co Group which is effected by enforcement of the
Transaction Security.
"Asset Co Bond Trust Deed" means the trust deed dated on or about the date of this
Agreement and made between, among others, Asset Co and Madison Pacific Trust Limited
as security trustee.
"Borrowing Liabilities" means, in relation to a member of the Trading Hold Co Group,
the liabilities and obligations (not being Guarantee Liabilities) it may have as a principal
debtor to a Creditor (other than to a Creditor Representative) or a Debtor in respect of
Liabilities arising under the Debt Documents (whether incurred solely or jointly).
"Business Day" means a day (other than a Saturday or Sunday) on which banks are open
for general business in London, New York City, Singapore and Hong Kong and in relation
to any date for payment or purchase of a currency other than euro the principal financial
centre of the country of that currency.
"Business Separation Creditors" means Asset Co and each Subsidiary of Asset Co that
is owed obligations by the relevant members of the Trading Co Group under the Business
Separation Documents.
"Business Separation Documents" means the Key Documents as that term is defined in
the Asset Co Bond Trust Deed.
"Business Separation Liabilities" means the Liabilities owed by the relevant members of
the Trading Co Group to the Business Separation Creditors under the Business Separation
Documents.
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"Cash Proceeds" means:
(a) proceeds of the Security Property which are in the form of cash; and
(b) any cash which is generated by holding, managing, exploiting, collecting,
realising or disposing of any proceeds of the Security Property which are in the
form of Non-Cash Consideration.
"Charged Property" means all of the assets which from time to time are, or are expressed
to be, the subject of the Transaction Security.
"Common Currency" means the currency from time to time of the United States of
America being, as at the date of this Agreement, U.S. Dollars.
"Common Currency Amount" means, in relation to an amount, that amount converted
(to the extent not already denominated in the Common Currency) into the Common
Currency at the Security Agent's Spot Rate of Exchange on the Business Day prior to the
relevant calculation.
"Competitive Sales Process" means
(a) any auction or other competitive sales process conducted with the advice of a
Financial Adviser appointed by, or approved by, a Security Agent pursuant to
Clause 13.9 (Appointment of Financial Adviser); and
(b) any enforcement of the Transaction Security carried out by way of auction or
other competitive sales process pursuant to requirements of applicable law.
"Consent" means any consent, approval, release or waiver or agreement to any
amendment.
"Creditor Accession Undertaking" means an undertaking substantially in the form set
out in Schedule 2 (Form of Creditor Accession Undertaking).
"Creditor Representative" means:
(a) in relation to the NTFF Fronting Banks and NTFF Participants, the NTFF Agent;
(b) in relation to the ITFF Fronting Banks and ITFF Participants, the ITFF Agent;
(c) in relation to the Trading Co Bondholders, the Trading Co Bond Trustee;
(d) in relation to the RPP Creditors, the RPP Agent;
(e) in relation to any other Pari Passu Lender, the person which has acceded to this
Agreement as the Creditor Representative of those Pari Passu Lenders pursuant
to Clause 19.6 (Additional parties); and
(f) in relation to the Trading Hold Co Bondholders, the Trading Hold Co Bond
Trustee.
"Creditors" means the Primary Creditors, the Intra-Group Lenders and the Subordinated
Creditors.
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"Debt Disposal" means, as applicable, any disposal of any Liabilities pursuant to
paragraphs (d) or (e) of Clause 13.1 (Facilitation of Distressed Disposals and
Appropriation – Trading Co Group) or paragraphs (c) or (d) of Clause 13.2 (Distressed
Disposal or Appropriation – Trading Hold Co Security).
"Debt Document" means each of this Agreement, the TFF Finance Documents, the
Trading Co Credit Facility Agreement, the Pari Passu Debt Documents, the Trading Hold
Co Bond Documents, the Security Documents, any agreement evidencing the terms of the
Intra-Group Liabilities or any Subordinated Liabilities and any other document designated
as such by the Common Security Agent and Trading Co, acting reasonably.
"Debtor" means each Original Debtor and any person which becomes a Party as a Debtor
in accordance with the terms of Clause 19 (Changes to the Parties).
"Debtor Accession Deed" means a deed substantially in the form set out in Schedule 1
(Form of Debtor Accession Deed).
"Debtor Resignation Request" means a notice substantially in the form set out in
Schedule 3 (Form of Debtor Resignation Request).
"Default" means an Event of Default or an event or circumstance specified as an event of
default in any relevant Debt Document which would, with the expiry of a grace period, the
giving of notice, the making of any determination or any combination of the foregoing, be
an Event of Default provided that any such event or circumstance which requires the
satisfaction of a condition as to materiality before it becomes an Event of Default (or event
of default in any relevant Debt Document) shall not be a Default or an Event of Default
unless that condition is satisfied.
"Delegate" means any delegate, agent, attorney or co-trustee appointed by a Security
Agent.
"Distress Event" means any of:
(a) an Acceleration Event; or
(b) the enforcement of any General Security.
"Distressed Disposal" means:
(a) subject to paragraph (b) below, a disposal of the shares in Trading Co or of an
asset of a member of the Trading Co Group which is:
(i) being effected in accordance with Clause 11 (Enforcement of Transaction
Security) in circumstances where the applicable Transaction Security has
become enforceable;
(ii) being effected by enforcement of the Transaction Security (including the
disposal of any Property of a member of the Trading Co Group, the shares
in which have been subject to an Appropriation); or
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(iii) being effected, after the occurrence of a Distress Event, by a Debtor to a
person or persons which is, or are, not a member, or members, of the
Trading Hold Co Group; and
(b) for the purposes of Clauses 13.2 (Distressed Disposal or Appropriation – Trading
Hold Co Security) and 13.11 (Security Agent's actions – Trading Hold Co
Security) only, a disposal of an asset which is subject to Trading Hold Co Security
which is:
(i) being effected at the request of the Trading Hold Co Bond Creditors in
circumstances where the relevant Trading Hold Co Security has become
enforceable;
(ii) being effected by enforcement of the Trading Hold Co Security (including
the disposal of the shares in Trading Hold Co or any Property of Trading
Hold Co, the shares in which have been subject to an Appropriation); or
(iii) being effected, after the occurrence of an Trading Hold Co Bond
Acceleration Event, to a person or persons which is, or are, not a member,
or members, of the Trading Hold Co Group.
"Enforcement Action" means:
(a) in relation to any Liabilities:
(i) the acceleration of any Liabilities or the making of any declaration that any
Liabilities are prematurely due and payable;
(ii) the making of any declaration that any Liabilities are payable on demand;
(iii) the making of a demand in relation to a Liability that is payable on demand;
(iv) the making of any demand against any Debtor or any member of the
Trading Co Group in relation to any Guarantee Liabilities of that Debtor or
that member of the Trading Co Group;
(v) the exercise of any right to require a Debtor or any member of the Trading
Co Group to acquire any Liability (including exercising any put or call
option against a Debtor or any member of the Trading Co Group for the
redemption or purchase of any Liability other than in connection with an
asset sale offer or a change of control offer (however defined) as set out in
the Debt Documents);
(vi) the exercise of any right of set-off, account combination or payment netting
against a Debtor or any member of the Trading Co Group in respect of any
Liabilities; and
(vii) the suing for, commencing or joining of any legal or arbitration proceedings
against any Debtor or any member of the Trading Co Group to recover any
Liabilities;
(b) the taking of any steps:
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(i) to enforce, or require the enforcement of, any Transaction Security
(including the crystallisation of any floating charge forming part of the
Transaction Security); or
(ii) in respect of a Distressed Disposal;
(c) the entering into of any composition, compromise, assignment or arrangement
with any Debtor or any member of the Trading Co Group which owes any
Liabilities, or has given any Security, guarantee or indemnity or other assurance
against loss in respect of the Liabilities (other than any action permitted under
Clause 19 (Changes to the Parties)); or
(d) the petitioning, applying or voting for, or the taking of any steps (including the
appointment of any liquidator, receiver, administrator or similar officer) in
relation to, the winding up, dissolution, administration or reorganisation of any
Debtor or any member of the Trading Co Group which owes any Liabilities, or
has given any Security, guarantee, indemnity or other assurance against loss in
respect of any of the Liabilities, or any of such Debtor's or such member of the
Trading Co Group's assets or any suspension of payments or moratorium of any
indebtedness of any such Debtor or member of the Trading Co Group, or any
analogous procedure or step in any jurisdiction,
except that the following shall not constitute Enforcement Action:
(ii) the taking of any action falling within paragraphs (a) or (d) above which is
necessary (but only to the extent necessary) to preserve the validity, existence or
priority of claims in respect of Liabilities, including the registration of such
claims before any court or governmental authority and the bringing, supporting
or joining of proceedings to prevent any loss of the right to bring, support or join
proceedings by reason of applicable limitation periods; and
(iii) a Creditor bringing legal proceedings against any person solely for the purpose
of:
(A) obtaining injunctive relief (or any analogous remedy outside England and
Wales) to restrain any actual or putative breach of any Debt Document to
which it is party;
(B) obtaining specific performance (other than specific performance of an
obligation to make a payment) with no claim for damages; or
(C) requesting judicial interpretation of any provision of any Debt Document
to which it is party with no claim for damages.
"Equivalent Provision" means:
(a) with respect to a Pari Passu Facility Agreement, in relation to a provision or term
of the Trading Co Bond Trust Deed, any equivalent provision or term in the Pari
Passu Facility Agreement which is similar in meaning and effect; and
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(b) with respect to a Pari Passu Note Indenture, in relation to a provision or term of
the Trading Co Bond Trust Deed, any equivalent provision or term in the Pari
Passu Note Indenture which is similar in meaning and effect.
"Event of Default" means any event or circumstance specified as such in the relevant Debt
Document.
"Fairness Opinion" means, in respect of a Distressed Disposal or a Liabilities Sale, an
opinion that the proceeds received or recovered in connection with that Distressed
Disposal or Liabilities Sale are fair from a financial point of view taking into account all
relevant circumstances, including, without limitation, the method of enforcement or
disposal.
"Fee Letter" means any letter entered into by reference to this Agreement or by such other
Debt Document between respectively, the Security Agents and the Original Debtors setting
out the amount of any fees referred to in this Agreement or such other Debt Document,
and as may be amended from time to time.
"Final Discharge Date" means the first date on which each of the NTFF Discharge Date,
the ITFF Discharge Date and the Pari Passu Debt Discharge Date has occurred.
"Financial Adviser" means any:
(a) independent internationally recognised investment bank;
(b) independent internationally recognised accountancy firm; or
(c) other independent internationally recognised professional services firm which is
regularly engaged in providing valuations of businesses or financial assets or,
where applicable, advising on competitive sales processes.
"General Security" means any Transaction Security which:
(a) is created in favour of the Common Security Agent as trustee or agent for the
Secured Parties in respect of their Liabilities including any Shared Security; or
(b) in the case of any jurisdiction in which effective Security cannot be granted in
favour of the Common Security Agent as trustee or agent for the Secured Parties,
is created in favour of:
(i) all the Secured Parties in respect of their Liabilities; or
(ii) the Common Security Agent under a parallel debt structure for the benefit
of all the Secured Parties.
"General Security Documents" means:
(a) any document entered into at any time by any of the Debtors creating any
guarantee, indemnity, Security or other assurance against financial loss in favour
of the Common Security Agent as security for any of the Liabilities owing to the
Secured Parties;
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(b) any other document entered into by any Debtor creating or expressed to create
any General Security.
"General Security Property" means:
(a) the General Security and all proceeds of the General Security;
(b) all obligations expressed to be undertaken by a Debtor to pay amounts in respect
of the Liabilities to the Common Security Agent as trustee or agent for the
Secured Parties and secured by the General Security together with all
representations and warranties expressed to be given by a Debtor in favour of the
Common Security Agent as trustee or agent for the Secured Parties;
(c) the Common Security Agent's interest in any trust fund in any amounts to be
applied for the benefit only of the Secured Parties created pursuant to Clause 9
(Turnover of Receipts); and
(d) any other amounts or property, whether rights, entitlements, choses in action or
otherwise, actual or contingent, which the Common Security Agent is required
by the terms of the Debt Documents to hold as trustee on trust or as agent for the
Secured Parties.
"Guarantee Liabilities" means, in relation to a member of the Trading Hold Co Group,
the liabilities and obligations under the Debt Documents (present or future, actual or
contingent and whether incurred solely or jointly) it may have to a Creditor (other than to
a Creditor Representative) or Debtor as or as a result of its being a guarantor or surety
(including, without limitation, liabilities and obligations arising by way of guarantee,
indemnity, contribution or subrogation and in particular any guarantee or indemnity arising
under or in respect of the Debt Documents).
"Hardening Period" means any period during which Security, or any other assurance
against loss, is capable of being avoided by virtue of any bankruptcy, insolvency,
liquidation or similar laws.
"Holding Company" means, in relation to a person, any other person in respect of which
it is a Subsidiary.
"Insolvency Event" means, in relation to any member of the Trading Co Group:
(a) any resolution is passed or order made for the winding up, dissolution,
administration or reorganisation of that member of the Trading Co Group, a
moratorium is declared in relation to all or a material part of the indebtedness of
that member of the Trading Co Group or an administrator is appointed to that
member of the Trading Co Group;
(b) as a result of financial difficulties, any composition, compromise, assignment or
arrangement is made with any of its creditors in respect of all or any material part
of its debts;
(c) the appointment of any liquidator (other than in respect of a solvent liquidation
of any member of the Trading Co Group), receiver, administrative receiver,
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administrator, compulsory manager or other similar officer in respect of that
member of the Trading Co Group or any of its assets; or
(d) any analogous procedure or step is taken in any jurisdiction.
"Instructing Group" means, subject to Clause 11.4 (Failure to give Enforcement
Instructions – General Security):
(a) prior to the completion of a Qualifying NTFF Refinancing:
(i) if an NTFF FB Payment Default has occurred and is continuing, the NTFF
Fronting Banks;
(ii) if an NTFF Participant Payment Default has occurred and is continuing
and provided that no NTFF FB Payment Default has occurred and is
continuing at that time, the Majority NTFF Participants; or
(iii) if neither paragraph (i) nor paragraph (ii) applies:
(A) prior to the Trading Co Bond Discharge Date, the Trading Co Bond
Trustee; and
(B) after the Trading Co Bond Discharge Date, the Majority Pari Passu
Creditors; and
(C) after a Trading Hold Co Bond Standstill Period End Date or the Pari
Passu Debt Discharge Date, in respect of enforcement of the Shared
Security in accordance with Clause 11 (Enforcement of Transaction
Security) only, the Trading Hold Co Bond Trustee; and
(b) at any other time:
(i) prior to the Trading Co Bond Discharge Date, the Trading Co Bond
Trustee; and
(ii) after the Trading Co Bond Discharge Date, the Majority Pari Passu
Creditors;
(iii) after a Trading Hold Co Bond Standstill Period End Date or the Pari Passu
Debt Discharge Date, in respect of enforcement of the Shared Security in
accordance with Clause 11 (Enforcement of Transaction Security) only,
the Trading Hold Co Bond Trustee.
"Intercreditor Amendment" means any amendment or waiver which is subject to Clause
25 (Consents, Amendments and Override).
"Intra-Group Lender" means each member of the Trading Co Group which (i) is a
Debtor and has made a loan available to, granted credit to or made any other financial
arrangement having similar effect with a member of the Trading Co Group, or (ii) is named
on the signing pages as an Intra-Group Lender or which becomes a Party as an Intra-Group
Lender in accordance with the terms of Clause 19 (Changes to the Parties).
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"Intra-Group Lending" means the loans, credit or other financial arrangements made
available by any Intra-Group Lender to any member of the Trading Co Group.
"Intra-Group Liabilities" means the Liabilities owed by any member of the Trading Co
Group to any Intra-Group Lender.
“ITFF Acceleration Event” means the ITFF Agent delivering a notice under Clause 29.1
(Acceleration – Participants) or Clause 29.2 (Acceleration – Fronting Banks) of the ITFF
Agreement.
"ITFF Administrative Creditors" means:
(a) the ITFF Agent;
(b) each ITFF Security Agent; and
(c) prior to the completion of a Qualifying ITFF Refinancing, each ITFF Fronting
Bank.
"ITFF Administrative Liabilities" means the Liabilities owed by the Debtors to the ITFF
Administrative Creditors under the ITFF Finance Documents.
"ITFF Agent" means the Facility Agent under and as defined in the ITFF Agreement.
"ITFF Agreement" means:
(a) prior to the completion of a Qualifying ITFF Refinancing, the Original ITFF
Agreement; and
(b) on and after the completion of a Qualifying ITFF Refinancing, the Replacement
ITFF Agreement.
"ITFF Borrower Cash Collateral Account" means a multicurrency account with account
name “Madison Pacific Trust Limited – CTA – Account Bank Sub 2” and account number
“8460 0003 3396” held in the name of Madison Pacific Trust Limited with China
Construction Bank (Asia) Corporation Limited or any account into which all or part of the
balance on such account is transferred on a change of custodian, and includes in each case
any successor account on any re-numbering or re-designation of accounts and any account
into which all or part of the balance on such account is transferred for investment or
administrative purpose.
"ITFF Borrower Cash Collateral Security" means the Security granted in favour of the
ITFF Security Agent over the ITFF Borrower Cash Collateral Account.
"ITFF Creditors" means the ITFF Administrative Creditors and the ITFF Participants.
"ITFF Discharge Date" means the first date on which:
(a) all ITFF Liabilities have been fully and finally discharged to the satisfaction of
the ITFF Agent, whether or not as the result of an enforcement; and
(b) the ITFF Creditors are under no further obligation to provide financial
accommodation to any of the Debtors under any of the ITFF Finance Documents.
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"ITFF Event of Default" means an Event of Default as defined in the ITFF Agreement.
"ITFF Finance Documents" means the Finance Documents as defined in the ITFF
Agreement.
"ITFF Fronting Bank" means a Fronting Bank as defined in the Original ITFF
Agreement.
"ITFF Liabilities" means the ITFF Administrative Liabilities and the ITFF Participant
Liabilities.
"ITFF Participant" means a Participant as defined in the Original ITFF Agreement or
each lender, holder or other creditor in respect of the Replacement ITFF Agreement from
time to time.
"ITFF Participant Liabilities" means the Liabilities owed by the Debtors to the ITFF
Participants under or in connection with the ITFF Finance Documents.
"ITFF Participant Payment Default" means, the failure at any time, of a Debtor to pay
any amount that is due to an ITFF Participant under the ITFF Finance Documents, which
amount has not been received by that ITFF Participant under any applicable risk
participation arrangement within any applicable grace period.
"ITFF Security" means the ITFF Borrower Cash Collateral Security or any other Security
created or evidenced or expressed to be created or evidenced under or pursuant to the ITFF
Security Documents other than the General Security.
"ITFF Security Agent" means:
(a) the Original ITFF Security Agent; and
(b) any other person that becomes a Party as an ITFF Security Agent, as permitted
by the ITFF Finance Documents.
"ITFF Security Documents" means:
(a) any document entered into at any time by any of the Debtors creating any
guarantee, indemnity, Security or other assurance against financial loss in favour
of any of the ITFF Security Agents as security for any of the Secured Obligations;
(b) any Security granted under any covenant for further assurance in any of the
documents referred to in paragraph (a) above,
other than, in each case, the General Security.
"ITFF Security Property" means:
(a) the ITFF Security and all proceeds of the ITFF Security;
(b) all obligations expressed to be undertaken by a Debtor to pay amounts in respect
of the ITFF Liabilities to an ITFF Security Agent as trustee or agent for the
Secured Parties, and secured by the ITFF Security together with all
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representations and warranties expressed to be given by a Debtor in favour of an
ITFF Security Agent as trustee or agent for the Secured Parties;
(c) any other amounts or property, whether rights, entitlements, choses in action or
otherwise, actual or contingent, which an ITFF Security Agent is required by the
terms of the Debt Documents to hold as trustee on trust or as agent for the Secured
Parties,
other than, in each case, the General Security.
"ITFF Standstill End Date" means the date which is 179 days after the last of the
following to occur:
(a) an Acceleration Event;
(b) the NTFF Discharge Date; and
(c) the date on which all ITFF Security has been enforced and no ITFF Security
Property remains available to discharge the ITFF Liabilities.
"Liabilities" means all present and future liabilities and obligations at any time of any
member of the Trading Hold Co Group and any member of the Trading Co Group to any
Creditor under the Debt Documents or under any other Intra-Group Lending or any other
Subordinated Liabilities, both actual and contingent and whether incurred solely or jointly
or as principal or surety or in any other capacity together with any of the following matters
relating to or arising in respect of those liabilities and obligations:
(a) any refinancing, novation, deferral or extension;
(b) any claim for breach of representation, warranty or undertaking or on an event of
default or under any indemnity given under or in connection with any document
or agreement evidencing or constituting any other liability or obligation falling
within this definition;
(c) any claim for damages or restitution; and
(d) any claim as a result of any recovery by any Debtor of a Payment on the grounds
of preference or otherwise,
and any amounts which would be included in any of the above but for any discharge, non-
provability, unenforceability or non-allowance of those amounts in any insolvency or other
proceedings.
"Liabilities Acquisition" means, in relation to a person and to any Liabilities, a transaction
where that person:
(a) purchases by way of assignment or transfer;
(b) enters into any sub-participation in respect of; or
(c) enters into any other agreement or arrangement having an economic effect
substantially similar to a sub-participation in respect of,
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the rights in respect of those Liabilities.
"Liabilities Sale" means, as applicable, a Debt Disposal pursuant to paragraph (e) of
Clause 13.1 (Facilitation of Distressed Disposals and Appropriation) or paragraph (d) of
Clause 13.2 (Distressed Disposal or Appropriation – Trading Hold Co Security).
"Majority ITFF Participants" has the meaning given to the term 'Majority Participants'
in the Original ITFF Agreement or such equivalent term applying to any ITFF Participants
under a Replacement ITFF Agreement.
"Majority NTFF Participants" has the meaning given to the term 'Majority Participants'
in the Original NTFF Agreement or such equivalent term applying to any NTFF
Participants under a Replacement NTFF Agreement.
"Majority Pari Passu Creditors" means, at any time, those Pari Passu Noteholders and
Pari Passu Lenders whose Pari Passu Credit Participations at that time aggregate more than
50 per cent. of the total Pari Passu Credit Participations at that time.
"NCFL" means Noble Clean Fuels Limited, incorporated in England and Wales with
registered number 06810620.
"New Noble Group" means New Noble and each of its Subsidiaries for the time being.
"Non-Cash Consideration" means consideration in a form other than cash.
"Non-Cash Recoveries" means:
(a) any proceeds of a Distressed Disposal or a Debt Disposal; or
(b) any amount distributed to the Common Security Agent pursuant to Clause 9.2
(Turnover by the Creditors),
which are, or is, in the form of Non-Cash Consideration.
"Non-Distressed Disposal" has the meaning given to that term in Clause 12 (Non-
Distressed Disposals).
"NRIPL" means Noble Resources International Pte. Ltd., incorporated in Singapore with
registered number 201115304N.
"NTFF Acceleration Event" means the NTFF Agent delivering a notice under Clause
31.1 (Acceleration – Participants) or Clause 31.2 (Acceleration – Fronting Banks) of the
NTFF Agreement.
"NTFF Administrative Creditors" means:
(a) the NTFF Agent;
(b) each NTFF Security Agent; and
(c) prior to a Qualifying NTFF Refinancing, each NTFF Fronting Bank.
"NTFF Administrative Liabilities" means the Liabilities owed by the Debtors to the
NTFF Administrative Creditors under the NTFF Finance Documents.
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"NTFF Agent" means the Facility Agent under and as defined in the NTFF Agreement.
"NTFF Agreement" means:
(a) prior to the completion of a Qualifying NTFF Refinancing, the Original NTFF
Agreement; and
(b) on and after the completion of a Qualifying NTFF Refinancing, the Replacement
NTFF Agreement.
"NTFF Borrower Cash Collateral Account" means a multicurrency account with
account name “Madison Pacific Trust Limited – CTA – Account Bank Sub 1” and account
number “8460 0003 3388” held in the name of Madison Pacific Trust Limited with China
Construction Bank (Asia) Corporation Limited or any account into which all or part of the
balance on such account is transferred on a change of custodian, and includes in each case
any successor account on any re-numbering or re-designation of accounts and any account
into which all or part of the balance on such account is transferred for investment or
administrative purpose.
"NTFF Borrower Cash Collateral Security" means the Security granted in favour of an
NTFF Security Agent over the NTFF Borrower Cash Collateral Account.
"NTFF Creditors" means the NTFF Administrative Creditors and the NTFF Participants.
"NTFF Discharge Date" means the first date on which:
(a) all NTFF Liabilities have been fully and finally discharged to the satisfaction of
the NTFF Agent, whether or not as the result of an enforcement; and
(b) the NTFF Creditors are under no further obligation to provide financial
accommodation to any of the Debtors under any of the NTFF Finance
Documents.
"NTFF Event of Default" means an Event of Default as defined in the NTFF Agreement.
"NTFF FB Payment Default" means, the failure at any time, of a Debtor to:
(a) pay any amount that is due to an NTFF Fronting Bank under the NTFF Finance
Documents;
(b) post any amount to the NTFF Borrower Cash Collateral Account required by the
NTFF Agreement to be posted within any applicable grace period,
in each case which failure has not been remedied by one or more NTFF Participants in
accordance with the NTFF Agreement or the NTFF Finance Documents, as applicable.
"NTFF Finance Documents" means the Finance Documents as defined in the NTFF
Agreement.
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"NTFF Fronting Bank" means a Fronting Bank as defined in the Original NTFF
Agreement.
"NTFF Liabilities" means the NTFF Administrative Liabilities and the NTFF Participant
Liabilities.
"NTFF Participant" means a Participant as defined in the Original NTFF Agreement or
each lender, holder or other creditor in respect of the Replacement NTFF Agreement from
time to time.
"NTFF Participant Liabilities" means the Liabilities owed by the Debtors to the NTFF
Participants under or in connection with the NTFF Finance Documents.
"NTFF Participant Payment Default" means, the failure at any time, of a Debtor to pay
any amount that is due to an NTFF Participant under the NTFF Finance Documents, which
amount has not been received by that NTFF Participant under any applicable risk
participation arrangement within any applicable grace period.
"NTFF Security" means the NTFF Borrower Cash Collateral Security or any other
Security created or evidenced or expressed to be created or evidenced by any Debtor under
or pursuant to the NTFF Security Documents other than the General Security.
"NTFF Security Agent" means:
(a) each Original NTFF Security Agent; and
(b) any other person that becomes a Party as an NTFF Security Agent, as permitted
by the NTFF Finance Documents.
"NTFF Security Documents" means:
(a) any document entered into at any time by any of the Debtors creating or
evidencing (or expressed to create or evidence) any guarantee, indemnity,
Security or other assurance against financial loss in favour of any of the NTFF
Security Agents as security for the Trading Co Secured Obligations; and
(b) any Security granted under any covenant for further assurance in any of the
documents referred to in paragraph (a) above.
"NTFF Security Property" means:
(a) the NTFF Security and all proceeds of the NTFF Security;
(b) all obligations expressed to be undertaken by a Debtor to pay amounts in respect
of the Liabilities to an NTFF Security Agent as trustee or agent for the Trading
Co Secured Parties, and secured by the NTFF Security together with all
representations and warranties expressed to be given by a Debtor in favour of an
NTFF Security Agent as trustee or agent for the Trading Co Secured Parties;
(c) any other amounts or property, whether rights, entitlements, choses in action or
otherwise, actual or contingent, which an NTFF Security Agent is required by the
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terms of the Debt Documents to hold as trustee on trust or as agent for the Trading
Co Secured Parties.
"Other Liabilities" means, in relation to any Debtor or any other member of the Trading
Co Group, any trading and other liabilities and obligations (not being Borrowing
Liabilities or Guarantee Liabilities) it may have to an Intra-Group Lender, Subordinated
Creditor or Debtor.
"Original ITFF Agreement" means the trade finance facility agreement made between
Trading Co, the Original ITFF Agent, the Original ITFF Fronting Bank, the Original ITFF
Participants and others dated on or about the date of this Agreement.
"Original NTFF Agreement" means the trade finance facility agreement made between
Trading Co, the Original NTFF Agent, the Original NTFF Fronting Bank, the Original
NTFF Participants and others dated on or about the date of this Agreement.
"Original TFF Finance Documents" means the Finance Documents as defined in the
Original ITFF Agreement and the Original NTFF Agreement, as applicable.
"Pari Passu Arranger" means any arranger of a credit facility which creates or evidences
any Pari Passu Debt Liabilities which becomes a Party pursuant to Clause 19.6 (Additional
parties) and as permitted by the Pari Passu Debt Documents in effect from time to time.
"Pari Passu Credit Participation" means in relation to a Pari Passu Noteholder or a Pari
Passu Lender, the aggregate of:
(a) its aggregate Pari Passu Facility Commitments, if any;
(b) the aggregate outstanding principal amount of the Trading Co Bonds held by it,
if any; and
(c) to the extent not falling within paragraphs (a) or (b) above, the aggregate
outstanding principal amount of any other Pari Passu Debt Liabilities in respect
of which it is the creditor, if any.
"Pari Passu Debt Acceleration Event" means:
(a) the Trading Co Bond Trustee (or the requisite Trading Co Bondholders under the
Trading Co Bond Trust Deed) exercising any of its or their rights under Condition
13 (Events of Default) of the Trading Co Bonds set out in the Trading Co Bond
Trust Deed and delivering a notice of acceleration in accordance with that
Condition;
(b) the RPP Agent exercising any of its rights under paragraph (b) of Clause 19.7
(Consequences of Trigger Event) of the RPP Facility Agreement;
(c) the Creditor Representative of any other Pari Passu Noteholder(s) (or the requisite
Pari Passu Noteholders under any other Pari Passu Note Indenture) exercising
any of its or their rights and delivering a notice of acceleration under an
Equivalent Provision of the relevant Pari Passu Note Indenture; or
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(d) the Creditor Representative of any other Pari Passu Lender(s) (or any of the other
Pari Passu Lenders) exercising any of its or their rights and delivering a notice of
acceleration under an Equivalent Provision of the relevant Pari Passu Facility
Agreement,
other than the right to declare any amount payable on demand.
"Pari Passu Debt Creditors" means:
(a) each Trading Co Bond Creditor;
(b) the RPP Creditors; and
(c) each other Creditor Representative in relation to any Pari Passu Debt Liabilities,
each Pari Passu Arranger, each other Pari Passu Noteholder and each Pari Passu
Lender as permitted by the Pari Passu Debt Documents in effect from time to
time.
"Pari Passu Debt Discharge Date" means the first date on which all Pari Passu Debt
Liabilities have been fully and finally discharged to the satisfaction of the Creditor
Representative(s) in relation to any Pari Passu Debt Liabilities, whether or not as the result
of an enforcement, and the Pari Passu Debt Creditors are under no further obligation to
provide financial accommodation to any of the Debtors under the Pari Passu Debt
Documents.
"Pari Passu Debt Documents" means:
(a) each Trading Co Bond Document;
(b) the RPP Finance Documents; and
(c) each other document or instrument entered into between Trading Co or any
member of the Trading Co Group and a Pari Passu Debt Creditor setting out the
terms of any credit facility, notes, indenture or debt security which creates or
evidences any Pari Passu Debt Liabilities as permitted by the Pari Passu Debt
Documents in effect from time to time.
"Pari Passu Debt Liabilities" means the Liabilities owed by the Debtors to the Pari Passu
Debt Creditors under or in connection with the Pari Passu Debt Documents.
"Pari Passu Event of Default" means any event or circumstance specified as such in a
Pari Passu Note Indenture or a Pari Passu Facility Agreement.
"Pari Passu Facility Agreement" means:
(a) the RPP Facility Agreement; and
(b) any facility agreement setting out the terms of any credit facility which creates or
evidences any Pari Passu Debt Liabilities where any agent of the lenders in
respect of the credit facility becomes a Party as a Creditor Representative in
respect of that credit facility pursuant to Clause 19.6 (Additional parties) and as
permitted by the Pari Passu Debt Documents in effect from time to time.
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"Pari Passu Facility Commitment" means any "Commitment" or "Allocation" under and
as defined in a Pari Passu Facility Agreement.
"Pari Passu Lender" means each "Lender" under and as defined in the relevant Pari Passu
Facility Agreement.
"Pari Passu Note Indenture" means the Trading Co Bond Trust Deed and any other note
indenture or bond trust deed setting out the terms of any debt security which creates or
evidences any Pari Passu Debt Liabilities as permitted by the Pari Passu Debt Documents
in effect from time to time and which contains an obligation to maintain a listing of the
relevant Pari Passu Notes equivalent to that in the Trading Co Bond Trust Deed.
"Pari Passu Note Trustee" means:
(a) the Trading Co Bond Trustee; and
(b) any other note trustee in respect of Pari Passu Notes which has acceded to this
Agreement as a Creditor Representative pursuant to Clause 19.6 (Additional
parties) and as permitted by the Pari Passu Debt Documents in effect from time
to time.
"Pari Passu Noteholder" means a Trading Co Bondholder and any other holder from time
to time of any Pari Passu Notes.
"Pari Passu Notes" means:
(a) the Trading Co Bonds; and
(b) any other senior secured notes issued or to be issued under a Pari Passu Note
Indenture.
"Party" means a party to this Agreement.
"Payment" means, in respect of any Liabilities (or any other liabilities or obligations), a
payment, prepayment, repayment, redemption, defeasance or discharge of those Liabilities
(or other liabilities or obligations) and includes, as applicable, entering into any Liabilities
Acquisition or beneficially owning all or any part of the share capital of a company that is
party to a Liabilities Acquisition.
"Primary Creditors" means the TFF Creditors, the Pari Passu Debt Creditors, Asset Co
(as the creditor in respect of the Trading Co Credit Facility only) and the Trading Hold Co
Bond Creditors.
"Property" of a member of the Trading Hold Co Group or of a Debtor means:
(a) any asset of that member of the Trading Hold Co Group or of that Debtor;
(b) any Subsidiary of that member of the Trading Hold Co Group or of that Debtor;
and
(c) any asset of any such Subsidiary.
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"Qualifying ITFF Refinancing" means a replacement of the Original ITFF Agreement
with a new trade finance facility agreement permitted under the terms of the Trading Co
Bond Documents and where all the ITFF Liabilities under the Original ITFF Agreement
are discharged in full.
"Qualifying NTFF Refinancing" means a replacement of the Original NTFF Agreement
with a new trade finance facility agreement permitted under the terms of the Trading Co
Bond Documents and where all the NTFF Liabilities under the Original NTFF Agreement
are discharged in full.
"Qualifying TFF Refinancing" means a Qualifying ITFF Refinancing or a Qualifying
NTFF Refinancing, as applicable.
"Receiver" means a receiver or receiver and manager or administrative receiver of the
whole or any part of the Charged Property.
"Recoveries" has the meaning given to that term in Clause 16.3 (Order of application:
General Security).
"Relevant Amount" means that amount of any receipt or recovery (if any) that exceeds
the amount the relevant Creditor or Debtor would have received had that receipt or
recovery been distributed in accordance with Clause 16 (Application of Proceeds).
"Relevant Event of Default" means an NTFF Event of Default, an ITFF Event of Default
or a Pari Passu Event of Default.
"Relevant TFF Event of Default" means an NTFF Event of Default specified in Clauses
1 (Non-Payment) and 6 (Insolvency) of Part 4 (Events of Default) of Schedule 5 (General
Covenants) of the NTFF Agreement or an ITFF Event of Default specified in Clauses 1
(Non-Payment) and 6 (Insolvency) of Part 4 (Events of Default) of Schedule 4 (General
Covenants) of the ITFF Agreement.
"Replacement ITFF Agreement" means the trade finance facility agreement which
replaces the Original ITFF Agreement in accordance with the definition of Qualifying
ITFF Refinancing in Clause 1.1 (Definitions).
"Replacement NTFF Agreement" means the trade finance facility agreement which
replaces the Original NTFF Agreement in accordance with the definition of Qualifying
NTFF Refinancing in Clause 1.1 (Definitions).
"Replacement TFF Finance Documents" means the 'Finance Documents' as defined in
a Replacement ITFF Agreement or a Replacement NTFF Agreement, as applicable.
"Replacement TFF Liabilities" means the Liabilities owed under a Replacement ITFF
Agreement or a Replacement NTFF Agreement, as applicable.
"RPP Creditor" means the RPP Agent, the RPP Trustee and each RPP Purchaser.
"RPP Facility Agreement" means the receivables purchasing facility agreement dated on
or about the date of this Agreement entered into between, among others, Trading Co and
the RPP Agent.
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"RPP Facility Liabilities" means the Liabilities owed by the Debtors to the RPP Creditors
under or in connection with the RPP Finance Documents.
"RPP Finance Documents" means the 'Finance Documents' as defined in the RPP Facility
Agreement.
"RPP Purchaser" means each "Purchaser" as defined in the RPP Facility Agreement.
"RPP Trustee" means the "Trustee" as defined in the RPP Facility Agreement.
"Secured Obligations" means all the Liabilities and all other present and future liabilities
and obligations at any time due, owing or incurred by any member of the Trading Hold Co
Group to any Secured Party under the Debt Documents, both actual and contingent and
whether incurred solely or jointly and as principal or surety or in any other capacity.
"Secured Parties" means the Primary Creditors, the Common Security Agent, the Trading
Hold Co Security Agent and any Receiver or Delegate.
"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.
"Security Agent" means the Common Security Agent, an NTFF Security Agent, an ITFF
Security Agent or the Trading Hold Co Security Agent, as applicable.
"Security Agent's Spot Rate of Exchange" means, in respect of the conversion of one
currency (the "First Currency") into another currency (the "Second Currency") by a
Security Agent:
(a) that Security Agent's spot rate of exchange; or
(b) (if that Security Agent does not have an available spot rate of exchange) any other
publicly available spot rate of exchange selected by that Security Agent (acting
reasonably),
for the purchase of the Second Currency with the First Currency in the London foreign
exchange market at or about 11:00 a.m. (Hong Kong time) on a particular day, which
shall, in either case, be notified by that Security Agent in accordance with paragraph (e)
of Clause 18.5 (Duties of the Security Agents).
"Security Documents" means the NTFF Security Documents, the ITFF Security
Documents, the General Security Documents and the Trading Hold Co Security
Documents.
"Security Principles" means the principles set out in Schedule 4 (Security Principles).
"Security Property" means the General Security Property, the NTFF Security Property,
the ITFF Security Property and the Trading Hold Co Security Property.
"Shared Security" means any Transaction Security over or in respect of:
(a) the shares in Trading Co; and
(b) the Intra-Group Liabilities (excluding the Trading Co Intra-Group Liabilities).
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"Standstill Period End Date" means the date falling 179 days after the date on which the
Common Security Agent is notified by a Debtor or the relevant Creditor Representative
that a Relevant Event of Default has occurred (and the circumstances that give rise to that
Relevant Event of Default), if that Relevant Event of Default is continuing on that date.
"Subordinated Creditors" means (i) each member of the New Noble Group that is not a
member of the Trading Hold Co Group and which has made a loan available to, granted
credit to or made any other financial arrangement having similar effect with a member of
the Trading Hold Co Group (excluding Asset Co in relation to the Trading Co Credit
Facility and the Business Separation Creditors in relation to the Business Separation
Liabilities), and (ii) Trading Hold Co with respect to any loan, credit or other financial
arrangement having similar effect that it has made to a member of the Trading Co Group.
"Subordinated Liabilities" means the Liabilities owed by any member of the Trading
Hold Co Group or any member of the Trading Co Group to any Subordinated Creditor
(excluding the Trading Co Credit Facility Liabilities and the Business Separation
Liabilities).
"Subsidiary" means, in relation to any company or corporation:
(a) a company or corporation which is controlled, directly or indirectly, by the first
mentioned company or corporation; or
(b) more than 50 per cent. of the voting shares of which is beneficially owned,
directly or indirectly, by the first mentioned company or corporation,
and for this purpose, a company or corporation shall be treated as being controlled by
another if that other company or corporation is able to direct its affairs and/or to control
the composition of its board of directors or equivalent body.
"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).
"TFF Cash Cover" has the meaning given to the term "cash cover" (or any equivalent
term or concept) in the NTFF Facility Agreement and the ITFF Facility Agreement, as
applicable, provided that the ITFF Borrower Cash Collateral Security and the NTFF
Borrower Cash Collateral Security shall not constitute TFF Cash Cover.
"TFF Creditors" means the ITFF Creditors and the NTFF Creditors.
"TFF Discharge Date" means the first date on which both the NTFF Discharge Date and
the ITFF Discharge Date have occurred.
"TFF Finance Documents" means the ITFF Finance Documents and the NTFF Finance
Documents.
"TFF Fronting Bank" means any ITFF Fronting Bank and any NTFF Fronting Bank.
"TFF Liabilities" means the ITFF Liabilities and the NTFF Liabilities.
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"TFF Participants" means the ITFF Participants and the NTFF Participants from time to
time.
"TFF Participant Liabilities" means the ITFF Participant Liabilities and the NTFF
Participant Liabilities.
"TFF Security Agent" means an ITFF Security Agent or an NTFF Security Agent, as
applicable.
"Trade-Specific Security" has the meaning given to it in the Original ITFF Agreement
and the Original NTFF Agreement.
"Trading Co Bond Creditors" means the Trading Co Bondholders and the Trading Co
Bond Trustee.
"Trading Co Bond Discharge Date" means the first date on which all Trading Co Bond
Liabilities have been fully and finally discharged to the satisfaction of the Trading Co
Bond Trustee, whether or not as a result of an enforcement.
"Trading Co Bond Documents" mean the Trading Co Bond Trust Deed, the Trading Co
Bonds and the Trading Co Bond Guarantees (whether contained in the Trading Co Bond
Trust Deed, as a notation of guarantee attached to the Trading Co Bonds or otherwise).
"Trading Co Bond Guarantees" means each "Notes Guarantee" as defined in the Trading
Co Bond Trust Deed.
"Trading Co Bond Liabilities" means the Liabilities owed by the Debtors to the Trading
Co Bond Creditors under or in connection with the Trading Co Bond Documents.
"Trading Co Bond Trust Deed" means the trust deed governing the Trading Co Bonds
dated on or about the date of this Agreement and made between, among others, the Trading
Co Bond Trustee, the Common Security Agent, and Trading Co.
"Trading Co Bondholders" means the holders from time to time of the Trading Co Bonds.
"Trading Co Bonds" means:
(a) the 8.75% notes due 2023 issued or to be issued by Trading Co pursuant to the
Trading Co Bond Trust Deed; and
(b) any other senior secured notes issued by Trading Co pursuant to the Trading Co
Bond Trust Deed provided that Trading Co has confirmed in writing that the
incurrence of those notes will not breach the terms of any of the Debt Documents.
"Trading Co Credit Facility" means the working capital credit facility made available by
Asset Co to NRIPL pursuant to the Trading Co Credit Facility Agreement.
"Trading Co Credit Facility Agreement" means the working capital facility agreement
made between Asset Co and NRIPL dated on or about the date of this Agreement.
"Trading Co Credit Facility Liabilities" means the Liabilities owed by the Debtors to
Asset Co under the Trading Co Credit Facility Agreement.
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"Trading Co Creditor" means the Pari Passu Debt Creditors, the TFF Creditors and Asset
Co (as the creditor in respect of the Trading Co Credit Facility only) and the RPP Creditors.
"Trading Co Group" means Trading Co and each of its Subsidiaries for the time being.
"Trading Co Liabilities" means the Liabilities owed by any member of the Trading Co
Group to any Creditor.
"Trading Co Secured Obligations" means all the Trading Co Liabilities and all other
present and future liabilities and obligations at any time due, owing or incurred by any
member of the Trading Co Group to any Trading Co Secured Party under the Debt
Documents, both actual and contingent and whether incurred solely or jointly and as
principal or surety or in any other capacity.
"Trading Co Secured Parties" means the TFF Creditors, the Pari Passu Debt Creditors,
Asset Co (as the creditor in respect of the Trading Co Credit Facility only), the Common
Security Agent and any Receiver or Delegate.
"Trading Hold Co Bond Acceleration Event" means the Trading Hold Co Bond Trustee
(or the requisite Trading Hold Co Bondholders under the Trading Hold Co Bond Trust
Deed) exercising any of its or their rights under Condition 11 (Events of Default) of the
Trading Hold Co Bonds as set out in the Trading Hold Co Bond Trust Deed and delivering
a notice of acceleration in accordance with that Condition.
"Trading Hold Co Bond Creditors" means the Trading Hold Co Bondholders and the
Trading Hold Co Bond Trustee.
"Trading Hold Co Bond Discharge Date" means the first date on which all Trading Hold
Co Bond Liabilities have been fully and finally discharged to the satisfaction of the
Trading Hold Co Bond Trustee, whether or not as a result of an enforcement.
"Trading Hold Co Bond Documents" mean the Trading Hold Co Bond Trust Deed, the
Trading Hold Co Bonds, the Trading Hold Co Security Documents and any other
document designated as such by the Common Security Agent and Trading Hold Co in
accordance with the Debt Documents in place from time to time.
"Trading Hold Co Bond Liabilities" means the Liabilities owed by the Debtors to the
Trading Hold Co Bond Creditors under or in connection with the Trading Hold Co Bond
Documents.
"Trading Hold Co Bond Standstill Period End Date" means the date falling 179 days
after a Distress Event has occurred, if that Distress Event has not been revoked or
otherwise reversed by that date, or such earlier date as agreed in writing by the Common
Security Agent acting on the instructions of the Instructing Group.
"Trading Hold Co Bond Trust Deed" means:
(a) the trust deed governing the Trading Hold Co Bonds dated on or about the date
of this Agreement and made between, among others, the Trading Hold Co Bond
Trustee, the Trading Hold Co Security Agent and Trading Hold Co; and
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(b) any other note indenture or bond trust deed setting out the terms of any debt
security which creates or evidences any Liabilities owed by Trading Hold Co, as
permitted by the Debt Documents in place from time to time.
"Trading Hold Co Bondholders" means the holders from time to time of the Trading
Hold Co Bonds.
"Trading Hold Co Bonds" means:
(a) the 5% notes due 2025 issued or to be issued by Trading Hold Co pursuant to the
Trading Hold Co Bond Trust Deed; and
(b) any other senior secured notes issued by Trading Hold Co pursuant to the Trading
Hold Co Bond Trust Deed provided that Trading Hold Co has confirmed in
writing that the incurrence of those notes will not breach the terms of any of the
Debt Documents in place from time to time.
"Trading Hold Co Group" means Trading Hold Co and each of its Subsidiaries from
time to time.
"Trading Hold Co Secured Obligations" means all the Liabilities and all other present
and future liabilities and obligations at any time due, owing or incurred by Trading Hold
Co to any Trading Hold Co Secured Party under the Debt Documents, both actual and
contingent and whether incurred solely or jointly and as principal or surety or in any other
capacity.
"Trading Hold Co Secured Parties" means the Trading Hold Co Bond Creditors, the
Trading Hold Co Security Agent and any Receiver or Delegate.
"Trading Hold Co Security" means any Transaction Security created in favour of the
Trading Hold Co Security Agent as trustee or agent for the Trading Hold Co Bond
Creditors in respect of the Trading Hold Co Secured Obligations (being a first-ranking
pledge over the shares in Trading Hold Co and a fixed and floating charge over all of the
assets of Trading Hold Co (excluding the assets subject to the Shared Security) and any
other Transaction Security granted in favour of the Trading Hold Co Security Agent in
accordance with the Security Principles).
"Trading Hold Co Security Documents" means:
(a) any document entered into at any time by any of the Debtors creating any
guarantee, indemnity, Security or other assurance against financial loss in favour
of the Trading Hold Co Security Agent as security for any of the Trading Hold
Co Bond Liabilities owing to the Trading Hold Co Bond Creditors; and
(b) any other document entered into by any Debtor creating or expressed to create
any Trading Hold Co Security.
"Trading Hold Co Security Property" means:
(a) the Trading Hold Co Security and all proceeds of the Trading Hold Co Security;
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(b) all obligations expressed to be undertaken by a Debtor to pay amounts in respect
of the Trading Hold Co Bond Liabilities to the Trading Hold Co Security Agent
as trustee or agent for the Trading Hold Co Bond Creditors, and secured by the
Trading Hold Co Security together with all representations and warranties
expressed to be given by a debtor in favour of the Trading Hold Co Security
Agent as trustee or agent for the Trading Hold Co Bond Creditors in respect of
the Trading Hold Co Security; and
(c) any other amounts or property, whether rights, entitlements, choses in action or
otherwise, actual or contingent, which the Trading Hold Co Security Agent is
required by the terms of the Debt Documents to hold as trustee on trust or as agent
for the Trading Hold Co Bond Creditors in respect of the Trading Hold Co
Security.
"Transaction Security" means the Security created or evidenced or expressed to be
created or evidenced under or pursuant to the Security Documents.
"VAT" means:
(a) any tax imposed in compliance with the Council Directive of 28 November 2006
on the common system of value added tax (EC Directive 2006/112); and
(b) any other tax of a similar nature, whether imposed in a member state of the
European Union in substitution for, or levied in addition to, such tax referred to
in paragraph (a) above, or imposed elsewhere.
1.2 Construction
(a) Unless a contrary indication appears, a reference in this Agreement to:
(i) any Party in a particular capacity shall be construed to be a reference to it
in its capacity as such and not in any other capacity;
(ii) any person shall be construed so as to include its successors in title,
permitted assigns and permitted transferees to, or of, its rights and/or
obligations under the Debt Documents and, in the case of a Security
Agent, any person for the time being appointed as a Security Agent (as
the case may be) in accordance with this Agreement;
(iii) an "amount" includes an amount of cash and an amount of Non-Cash
Consideration;
(iv) "assets" includes present and future properties, revenues and rights of
every description;
(v) a "Debt Document" or any other agreement or instrument is (other than
a reference to a "Debt Document" or any other agreement or instrument
in "original form") a reference to that Debt Document, or other
agreement or instrument, as amended, novated, supplemented, extended
or restated as permitted by this Agreement;
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(vi) a "distribution" of or out of the assets of a member of the New Noble
Group, includes a distribution of cash and a distribution of Non-Cash
Consideration;
(vii) "enforcing" (or any derivation) the Transaction Security includes:
(A) the appointment of an administrator (or any analogous officer in any
jurisdiction) of a Debtor by the Common Security Agent; and
(B) the making of a demand under Clause 18.3 (Parallel debt) by the
Common Security Agent, or by any other Security Agent under any
equivalent provision of any Debt Document;
(viii) a "group of Creditors" includes all the Creditors in that group;
(ix) "indebtedness" includes any obligation (whether incurred as principal or
as surety) for the payment or repayment of money, whether present or
future, actual or contingent;
(x) the "original form" of a "Debt Document" or any other agreement or
instrument is a reference to that Debt Document, agreement or instrument
as originally entered into;
(xi) 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);
(xii) "proceeds" of a Distressed Disposal or of a Debt Disposal includes
proceeds in cash and in Non-Cash Consideration;
(xiii) a "regulation" includes any regulation, rule, official directive, request or
guideline (whether or not having the force of law) of any governmental,
intergovernmental or supranational body, agency, department or of any
regulatory, self-regulatory or other authority or organisation; and
(xiv) a provision of law is a reference to that provision as amended or re-
enacted.
(b) Clause and Schedule headings are for ease of reference only.
(c) A Default, Event of Default, "ITFF Event of Default", "NTFF Event of
Default", "Pari Passu Event of Default", "Relevant Event of Default" and
"Relevant TFF Event of Default" is "continuing" if it has not been remedied or
waived.
(d) Nothing in this Agreement shall be construed as, or have the effect of, giving rise
to a Default or an Event of Default, or any rights of acceleration, in respect of a
Debt Document other than in accordance with the relevant provisions contained
in that Debt Document.
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1.3 Third party rights
(a) Unless expressly provided to the contrary in this Agreement, a person who is not
a Party has no right under the Contracts (Rights of Third Parties) Act 1999 (the
"Third Parties Act") to enforce or to enjoy the benefit of any term of this
Agreement.
(b) Notwithstanding any term of this Agreement, the consent of any person who is
not a Party is not required to rescind or vary this Agreement at any time.
(c) Any Receiver, Delegate or any other person described in paragraph (b) of Clause
18.12 (Exclusion of liability) may, subject to this Clause 1.3 and the Third Parties
Act, rely on any Clause of this Agreement which expressly confers rights on it.
2. PRIORITY
2.1 Transaction Security
Each of the Parties agrees that:
(a) the NTFF Security shall rank and secure the following Liabilities in the following
order;
(i) first, the NTFF Liabilities in accordance with the NTFF Finance
Documents; and
(ii) second, each of the remaining Liabilities in the order specified in
paragraph (c) below;
(b) the ITFF Security shall rank and secure the following Liabilities in the following
order:
(i) first, the ITFF Liabilities in accordance with the ITFF Finance
Documents; and
(ii) second, each of the remaining Liabilities in the order specified in
paragraph (c) below;
(c) the General Security shall rank and secure the following Liabilities in the
following order:
(i) first, the NTFF Administrative Liabilities in accordance with the NTFF
Finance Documents and the ITFF Administrative Liabilities in
accordance with the ITFF Finance Documents pari passu and without any
preference between them;
(ii) second, the NTFF Participant Liabilities in accordance with the NTFF
Finance Documents and the ITFF Participant Liabilities in accordance
with the ITFF Finance Documents pari passu and without any preference
between them;
(iii) third, the Trading Co Credit Facility Liabilities;
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(iv) fourth, the Pari Passu Debt Liabilities pari passu and without any
preference between them; and
(v) fifth, to the extent that the General Security is Shared Security, the
Trading Hold Co Bond Liabilities pari passu and without any preference
between them; and
(d) the Trading Hold Co Security shall rank and secure the Trading Hold Co Bond
Liabilities in accordance with the Trading Hold Co Bond Documents.
2.2 Intra-Group Liabilities
(a) Each of the Parties agrees that the Intra-Group Liabilities and the Subordinated
Liabilities are postponed and subordinated to the Liabilities owed by the Debtors
to the Primary Creditors.
(b) This Agreement does not purport to rank any of the Intra-Group Liabilities or the
Subordinated Liabilities as between themselves.
3. PAYMENT RESTRICTIONS
3.1 Payment of Liabilities
The Debtors may make Payments of the Liabilities at any time:
(a) subject to the following provisions of this Clause 3, in accordance with the
relevant Debt Documents; and
(b) in accordance with Clause 8 (Effect of Insolvency Event).
3.2 Pari Passu Debt Liabilities
Except in relation to the RPP Facility Liabilities, the Debtors shall not, and shall procure
that no other member of the Trading Co Group will, make any Payments of the Pari Passu
Debt Liabilities at a time when a Relevant TFF Event of Default is continuing.
3.3 RPP Facility Utilisation
Without the consent of the Instructing Group, the Debtors shall not, and shall procure that
no other member of the Trading Co Group will, utilise the RPP Facility (including by
selling or assigning any receivables to any RPP Creditor in accordance with the RPP
Finance Documents) following an Acceleration Event.
3.4 Trading Co Credit Facility Liabilities
The Debtors shall not, and shall procure that no other member of the Trading Co Group
will, make any Payments of the Trading Co Credit Facility Liabilities at a time when a
Relevant TFF Event of Default is continuing.
3.5 Intra-Group Liabilities
Prior to the Final Discharge Date, without the consent of the Instructing Group, the Debtors
shall not, and shall procure that no other member of the Trading Hold Co Group will, make
any Payments of the Intra-Group Liabilities at any time unless:
(a) that Payment is not prohibited by the Debt Documents; and
(b) no Relevant Event of Default has occurred and is continuing.
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3.6 Subordinated Liabilities
Prior to the Final Discharge Date, without the consent of the Instructing Group, the Debtors
shall not, and shall procure that no other member of the Trading Hold Co Group will, make
any Payments of the Subordinated Liabilities at any time.
3.7 Payment obligations continue
No Debtor shall be released from the liability to make any Payment (including default
interest and / or fees, which shall continue to accrue) to a Creditor under the Debt
Documents by the operation of any provision of this Clause 3.
3.8 Restriction on Trading Co Bonds refinancing by notes, bonds or other debt securities
To the extent that indebtedness in the form of notes, bonds or other debt securities is
incurred and the proceeds of which are used to repay the Trading Co Bond Liabilities, no
Debtor will incur such indebtedness other than under a Pari Passu Note Indenture.
4. SECURITY
The Debtors shall not, and shall procure that no other member of the Trading Co Group
will, grant any Security in respect of any Liabilities other than in accordance with schedule
2 (Restrictions on granting security) of the Security Principles.
5. ENFORCEMENT ACTION
5.1 Restriction on Enforcement
No Creditor may take any Enforcement Action in respect of any of the Liabilities or against
any Debtor other than:
(a) in accordance with Clause 8 (Effect of Insolvency Event);
(b) in the case of a TFF Creditor, in accordance with Clause 16.4 (Treatment of TFF
Cash Cover);
(c) in the case of enforcement of any Transaction Security or a Distressed Disposal,
in accordance with Clause 11 (Enforcement of Transaction Security) and Clause
13 (Distressed Disposals and Appropriation);
(d) in the case of any RPP Creditor, any Enforcement Action (other than any action
falling within paragraph (b)(i) or paragraph (d) of the definition of Enforcement
Action) which is taken in accordance with the terms of the RPP Finance
Documents;
(e) in the case of any other Enforcement Action, as permitted by this Clause 5.
5.2 Permitted Enforcement Action – TFF Creditors
(a) The NTFF Creditors may take Enforcement Action in respect of the NTFF
Liabilities at any time in accordance with the terms of the NTFF Finance
Documents.
(b) The ITFF Creditors may take Enforcement Action in respect of the ITFF
Liabilities at any time in accordance with the terms of the ITFF Finance
Documents.
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5.3 Permitted Enforcement – Pari Passu Debt Creditors
The Pari Passu Debt Creditors may take Enforcement Action in respect of the Pari Passu
Debt Liabilities owed to them in accordance with the terms of the relevant Pari Passu Debt
Documents:
(a) if, at the relevant time, they are the Instructing Group;
(b) with the consent of the NTFF Fronting Banks and Majority NTFF Participants;
or
(c) at any time after:
(i) the NTFF Discharge Date;
(ii) an NTFF Acceleration Event has occurred; or
(iii) a Standstill Period End Date.
5.4 Permitted Enforcement – Trading Hold Co Bond Creditors
The Trading Hold Co Bond Creditors may take Enforcement Action in respect of the
Trading Hold Co Bond Liabilities in accordance with the terms of the relevant Trading
Hold Co Bond Documents:
(a) with the consent of the NTFF Fronting Banks, Majority NTFF Participants and:
(i) before the Trading Co Bond Discharge Date, the Trading Co Bond
Trustee, or
(ii) after the Trading Co Bond Discharge Date, the Majority Pari Passu
Creditors; or
(b) at any time after a Trading Hold Co Bond Standstill Period End Date.
6. AMENDMENTS TO DEBT DOCUMENTS
6.1 Permitted amendments
Subject to Clause 6.2 (Restrictions on amendments), the Debt Documents may be amended
in accordance with their terms by the parties thereto.
6.2 Restrictions on amendments
(a) Clause 6.1 (Permitted amendments) does not override any requirements for
consent or other restrictions contained in any Debt Document.
(b) The terms of the TFF Finance Documents may not be amended or waived if the
effect of such amendment or waiver would be to adversely affect the
subordination, ranking or priority of any Party (or the Liabilities owed to it) under
this Agreement without the consent of each Party whose ranking, subordination
or priority would be so adversely affected by such amendment or waiver.
(c) The RPP Finance Documents may not be amended, without the consent of the
Instructing Group, to increase the aggregate amount of the "Total Allocations"
(as defined in the RPP Facility Agreement) to an amount that exceeds a maximum
aggregate principal amount of US$250,000,000.
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7. DEBTOR AND INTRA-GROUP LENDER REPRESENTATIONS
Each Intra-Group Lender (which is not a Debtor) represents and warrants to the Primary
Creditors that:
(a) it is a corporation, duly incorporated or formed and validly existing under the
laws of its jurisdiction of incorporation or formation;
(b) the obligations expressed to be assumed by it in this Agreement are, subject to
any general principles of law limiting its obligations which are applicable to
creditors generally, legal, valid, binding and enforceable obligations; and
(c) the entry into and performance by it of this Agreement does not and will not:
(i) conflict with any law or regulation applicable to it, its constitutional
documents or any agreement or instrument binding upon it or any of its
assets; or
(ii) constitute a default or termination event (however described) under any
agreement or instrument binding on it or any of its assets.
8. EFFECT OF INSOLVENCY EVENT
8.1 TFF Cash Cover
This Clause 8 is subject to Clause 16.4 (Treatment of TFF Cash Cover) and Clause 16.5
(Treatment of RPP Receipts).
8.2 Distributions
(a) Subject to paragraph (c) below, after the occurrence of an Insolvency Event in
relation to any member of the Trading Co Group, any Party entitled to receive a
Payment or distribution out of the assets of that member of the Trading Co Group
in respect of Liabilities owed to that Party shall, to the extent it is able to do so,
direct the person responsible for the distribution of the assets of that member of
the Trading Co Group to make that Payment or distribution to the Common
Security Agent (or to such other person as the Common Security Agent shall
direct) until the Liabilities owing to the Secured Parties have been paid in full.
(b) The Common Security Agent shall apply any Payments or distributions made to
it under paragraph (a) above in accordance with Clause 16 (Application of
Proceeds) as if those amounts were the proceeds of enforcement of Transaction
Security.
(c) If the Party entitled to receive a Payment or distribution is a TFF Security Agent,
then that TFF Security Agent shall, prior to the applicable TFF Discharge Date,
be permitted to direct the person responsible for the Payment or distribution out
of the assets of that member of the Trading Co Group to make that distribution to
that TFF Security Agent (or to such other person as such TFF Security Agent
shall direct) for application in accordance with Clause 16 (Application of
Proceeds) as if those amounts were the proceeds of enforcement of Transaction
Security.
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8.3 Set-Off
To the extent that any member of the Trading Co Group's Liabilities are discharged by
way of set-off (mandatory or otherwise) after the occurrence of an Insolvency Event in
relation to that member of the Trading Co Group, any Creditor which benefited from that
set-off shall pay an amount equal to the amount of the Trading Co Liabilities owed to it
which are discharged by that set-off to the Common Security Agent for application in
accordance with Clause 16 (Application of Proceeds).
8.4 Non-cash distributions
If a Secured Party receives a distribution in the form of Non-Cash Consideration in respect
of any of the Liabilities (other than any distribution of Non-Cash Recoveries), the
Liabilities will not be reduced by that distribution until and except to the extent that the
realisation proceeds are actually applied towards the Liabilities.
8.5 Filing of claims
(a) Subject to paragraphs (b) and (d) below, after the occurrence of an Insolvency
Event in relation to any member of the Trading Co Group, each Creditor
irrevocably authorises the Common Security Agent, on its behalf, to:
(i) take any Enforcement Action (in accordance with the terms of this
Agreement) against that member of the Trading Co Group;
(ii) demand, sue, prove and give receipt for any or all of that member of the
Trading Co Group's Liabilities;
(iii) collect and receive all distributions on, or on account of, any or all of that
member of the Trading Co Group's Liabilities; and
(iv) file claims, take proceedings and do all other things the Common Security
Agent considers reasonably necessary to recover that member of the
Trading Co Group's Liabilities.
(b) The Common Security Agent is not authorised to take any action referred to in
paragraph (a) above in relation to the NTFF Security or any NTFF Liabilities,
unless the NTFF Agent (in accordance with the NTTF Agreement) has given its
prior consent.
(c) After the occurrence of an Insolvency Event in relation to any member of the
Trading Co Group, each NTFF Creditor irrevocably authorises each NTFF
Security Agent, on its behalf, to:
(i) take any Enforcement Action (in accordance with the terms of this
Agreement) against that member of the Trading Co Group;
(ii) demand, sue, prove and give receipt for any or all of that member of the
Trading Co Group's NTFF Liabilities;
(iii) collect and receive all distributions on, or on account of, any or all of that
member of the Trading Co Group's NTFF Liabilities; and
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(iv) file claims, take proceedings and do all other things which any NTFF
Security Agent considers reasonably necessary to recover that member of
the Trading Co Group's NTFF Liabilities.
(d) The Common Security Agent is not authorised to take any action referred to in
paragraph (a) above in relation to the ITFF Security or any ITFF Liabilities,
unless the ITFF Agent (in accordance with the ITTF Agreement) has given its
prior consent.
(e) After the occurrence of an Insolvency Event in relation to any member of the
Trading Co Group, each ITFF Creditor irrevocably authorises each ITFF Security
Agent, on its behalf, to:
(i) take any Enforcement Action (in accordance with the terms of this
Agreement) against that member of the Trading Co Group;
(ii) demand, sue, prove and give receipt for any or all of that member of the
Trading Co Group's ITFF Liabilities;
(iii) collect and receive all distributions on, or on account of, any or all of that
member of the Trading Co Group's ITFF Liabilities; and
(iv) file claims, take proceedings and do all other things which any ITFF
Security Agent considers reasonably necessary to recover that member of
the Trading Co Group's ITFF Liabilities.
8.6 Further assurance – Insolvency Event
Each Creditor will:
(a) do all things that the relevant Security Agent requests in order to give effect to
this Clause 8; and
(b) if the relevant Security Agent is not entitled to take any of the actions
contemplated by this Clause 8 or if that Security Agent requests that a Creditor
takes that action, undertake that action itself in accordance with the instructions
of that Security Agent or grant a power of attorney to that Security Agent (on
such terms as that Security Agent may reasonably require) to enable that Security
Agent to take such action.
8.7 Common Security Agent instructions
For the purposes of Clause 8.2 (Distributions), Clause 8.5 (Filing of claims) and Clause
8.6 (Further assurance – Insolvency Event) the Common Security Agent shall act on the
instructions of the Instructing Group.
9. TURNOVER OF RECEIPTS
9.1 TFF Cash Cover
This Clause 9 is subject to Clause 16.4 (Treatment of TFF Cash Cover) and Clause 16.5
(Treatment of RPP Receipts).
9.2 Turnover by the Creditors
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Subject to Clause 9.3 (Permitted assurance and receipts), if at any time prior to the Final
Discharge Date, any Creditor receives or recovers:
(a) any Payment or distribution of, or on account of or in relation to, any of the
Liabilities which is neither:
(i) a Payment permitted by Clause 3 (Payment restrictions); nor
(ii) made in accordance with Clause 16 (Application of Proceeds);
(b) any amount by way of set-off in respect of any of the Liabilities owed to it which
does not give effect to a Payment permitted by Clause 3 (Payment restrictions);
(c) notwithstanding paragraphs (a) and (b) above, any amount:
(i) on account of, or in relation to, any of the Liabilities owing to it by any
member of the Trading Co Group:
(A) after the occurrence of a Distress Event; or
(B) as a result of any other litigation or proceedings against a member of
the Trading Co Group (other than after the occurrence of an
Insolvency Event in respect of that member of the Trading Co Group);
or
(ii) by way of set-off in respect of any of the Liabilities owed to it by any
member of the Trading Co Group after the occurrence of a Distress Event,
other than, in each case, any amount received or recovered in accordance with
Clause 16 (Application of Proceeds);
(d) the proceeds of any enforcement of any Transaction Security except in
accordance with (or to be dealt with in accordance with) Clause 16 (Application
of Proceeds); or
(e) any distribution or Payment of, or on account of or in relation to, any of the
Liabilities owed by any member of the Trading Co Group which is not in
accordance with (or to be dealt with in accordance with) Clause 16 (Application
of Proceeds) and which is made as a result of, or after, the occurrence of an
Insolvency Event in respect of that member of the Trading Co Group,
that Creditor will:
(i) in relation to receipts and recoveries not received or recovered by way of
set-off:
(A) hold an amount of that receipt or recovery equal to the Relevant
Amount (or if less, the amount received or recovered) on trust for the
Common Security Agent and promptly pay or distribute that amount
to the Common Security Agent for application in accordance with the
terms of this Agreement; and
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(B) promptly pay or distribute an amount equal to the amount (if any) by
which the receipt or recovery exceeds the Relevant Amount to the
Common Security Agent for application in accordance with the terms
of this Agreement; and
(ii) in relation to receipts and recoveries received or recovered by way of set-
off, promptly pay an amount equal to that recovery to the Common
Security Agent for application in accordance with the terms of this
Agreement.
9.3 Permitted assurance and receipts
Nothing in this Agreement shall restrict the ability of any Creditor to:
(a) arrange with any person which is not a member of the New Noble Group any
assurance against loss in respect of, or reduction of its credit exposure to, a Debtor
(including assurance by way of credit based derivative or sub-participation); or
(b) make any assignment or transfer permitted by Clause 19 (Changes to the Parties),
and that Creditor shall not be obliged to account to any other Party for any sum received
by it as a result of that action.
9.4 Saving provision
If, for any reason, any of the trusts expressed to be created in this Clause 9 should fail or
be unenforceable, the affected Creditor or Debtor will promptly pay or distribute an
amount equal to that receipt or recovery to a Security Agent to be held on trust by that
Security Agent for application in accordance with the terms of this Agreement.
9.5 Turnover of Non-Cash Consideration
For the purposes of this Clause 9, if any Creditor receives or recovers any amount or
distribution in the form of Non-Cash Consideration which is subject to Clause 9.1
(Turnover by the Creditors) the cash value of that Non-Cash Consideration shall be
determined in accordance with Clause 14.2 (Cash value of Non-Cash Recoveries).
9.6 Trading Co Bond Trustee Obligations
The obligations of the Trading Co Bond Trustee and the Trading Hold Co Bond Trustee
under this Clause 9, shall only apply to the extent that the relevant Trading Co Bond
Trustee or Trading Hold Co Bond Trustee still holds the sums it has received or recovered
and such sums remain available to be repaid under this Clause 9.
10. REDISTRIBUTION
10.1 Recovering Creditor's rights
(a) Any amount paid or distributed by a Creditor (a "Recovering Creditor") to a
Security Agent, under Clause 8 (Effect of Insolvency Event) or Clause 9
(Turnover of Receipts) shall be treated as having been paid or distributed by the
relevant Debtor and shall be applied by that Security Agent in accordance with
Clause 16 (Application of Proceeds).
(b) On an application by the relevant Security Agent pursuant to Clause 16
(Application of Proceeds) of a Payment or distribution received by a Recovering
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Creditor from a Debtor, as between the relevant Debtor and the Recovering
Creditor an amount equal to the amount received or recovered by the Recovering
Creditor and paid or distributed to the relevant Security Agent by the Recovering
Creditor (the "Shared Amount") will be treated as not having been paid or
distributed by that Debtor.
10.2 Reversal of redistribution
(a) If any part of the Shared Amount received or recovered by a Recovering Creditor
becomes repayable or returnable to a Debtor and is repaid or returned by that
Recovering Creditor to that Debtor, then:
(i) each Party that received any part of that Shared Amount pursuant to an
application by the relevant Security Agent of that Shared Amount under
Clause 10.1 (Recovering Creditor's rights) (a "Sharing Party") shall,
upon request of the relevant Security Agent pay or distribute to the
relevant Security Agent for the account of that Recovering Creditor an
amount equal to the appropriate part of its share of the Shared Amount
(together with an amount as is necessary to reimburse that Recovering
Creditor for its proportion of any interest on the Shared Amount which
that Recovering Creditor is required to pay) (the "Redistributed
Amount"); and
(ii) as between the relevant Debtor and each relevant Sharing Party, an
amount equal to the relevant Redistributed Amount will be treated as not
having been paid or distributed by that Debtor.
(b) No Security Agent shall be obliged to pay or distribute any Redistributed Amount
to a Recovering Creditor under paragraph (a)(i) above until it has been able to
establish to its satisfaction that it has actually received that Redistributed Amount
from the relevant Sharing Party.
10.3 Deferral of subrogation
No Creditor or Debtor will exercise any rights which it may have by reason of the
performance by it of its obligations under the Debt Documents to take the benefit (in whole
or in part and whether by way of subrogation or otherwise) of any rights under the Debt
Documents of any Creditor which ranks ahead of it in accordance with the priorities set
out in Clause 2 (Priority) until such time as all of the Liabilities owing to each prior
ranking Creditor (or, in the case of any Debtor, owing to each Creditor) have been
irrevocably discharged in full.
11. ENFORCEMENT OF TRANSACTION SECURITY
11.1 Enforcement of NTFF Security and ITFF Security
(a) The NTFF Security shall become enforceable, and may be enforced by the
relevant NTFF Security Agent, in accordance with the NTFF Finance Documents
and the Security Principles.
(b) The ITFF Security shall become enforceable, and may be enforced by the relevant
ITFF Security Agent, in accordance with the ITFF Finance Documents and the
Security Principles.
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(c) If it has not already become enforceable, all NTFF Security will become
enforceable on the occurrence of an NTFF Acceleration Event and all ITFF
Security will become enforceable on the occurrence of an ITFF Acceleration
Event.
(d) An NTFF Security Agent or an ITFF Security Agent may refrain from enforcing
the NTFF Security or the ITFF Security (as applicable) held by it unless instructed
otherwise in accordance with paragraph (c) or (d), as applicable, below.
(e) Following the NTFF Security becoming enforceable:
(i) the NTFF Fronting Banks or the Majority NTFF Participants; or
(ii) after a Standstill Period End Date (if no prior instructions have been given
by the NTFF Fronting Banks or the Majority NTFF Participants under
paragraph (i) above) or the NTFF Discharge Date, the Common Security
Agent acting on the instructions of the Instructing Group,
may give or refrain from giving instructions to the NTFF Security Agent to
enforce or refrain from enforcing the NTFF Security held by it as they see fit.
(f) Following the ITFF Security becoming enforceable:
(i) the ITFF Fronting Banks or the Majority ITFF Participants; or
(ii) after a Standstill Period End Date (if no prior instructions have been given
by the ITFF Fronting Banks or the Majority ITFF Participants under
paragraph (i) above) or the ITFF Discharge Date, the Common Security
Agent acting on the instructions of the Instructing Group,
may give or refrain from giving instructions to the ITFF Security Agent to
enforce or refrain from enforcing the ITFF Security held by it as they see fit.
11.2 Enforcement of Trading Hold Co Security
(a) If it has not already become enforceable, all the Trading Hold Co Security will
become enforceable on the occurrence of a Trading Hold Co Bond Acceleration
Event (and provided that, at that time, the conditions in paragraph (a) or (b) of
Clause 5.4 (Permitted Enforcement – Trading Hold Co Bond Creditors have been
met with respect to the enforcement of the Trading Hold Co Security).
(b) The Trading Hold Co Security Agent may refrain from enforcing the Trading
Hold Co Security held by it unless instructed otherwise by the Trading Hold Co
Bond Trustee.
(c) Following the Trading Hold Co Security becoming enforceable, the Trading Hold
Co Bond Trustee may give or refrain from giving instructions to the Trading Hold
Co Security Agent to enforce or refrain from enforcing the Trading Hold Co
Security held by it as they see fit.
11.3 Enforcement of General Security
(a) If it has not already become enforceable, all General Security will become
enforceable on the occurrence of an Acceleration Event.
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(b) The Common Security Agent may refrain from enforcing the General Security
held by it unless instructed otherwise by the Instructing Group.
(c) Following the General Security becoming enforceable, the Instructing Group may
give or refrain from giving instructions to the Common Security Agent to enforce
or refrain from enforcing the General Security held by it as they see fit.
11.4 Failure to give Enforcement Instructions – General Security
(a) If, following the General Security becoming enforceable:
(i) neither the Trading Co Bond Trustee nor the Majority Pari Passu Creditors
is the Instructing Group;
(ii) the Instructing Group has not instructed the Common Security Agent to
enforce the General Security; and
(iii) the Standstill Period End Date has occurred,
then:
(A) prior to the Trading Co Bond Discharge Date, the Trading Co Bond
Trustee will be the Instructing Group; and
(B) after the Trading Co Bond Discharge Date, the Majority Pari Passu
Creditors will be the Instructing Group.
(b) If, following the General Security becoming enforceable:
(i) the Instructing Group has not instructed the Common Security Agent to
enforce the General Security; and
(ii) the ITFF Standstill End Date has occurred,
then the Majority ITFF Participants will be the Instructing Group.
11.5 Manner of enforcement
If any Transaction Security is being enforced pursuant to Clause 11.1 (Enforcement of
NTFF Security and ITFF Security), Clause 11.2 (Enforcement of Trading Hold Co
Security) or Clause 11.3 (Enforcement of General Security), the relevant Security Agent
shall enforce such Transaction Security, or (in relation to the Common Security Agent)
shall instruct the other Security Agents to enforce the other relevant Transaction Security,
as applicable, in such manner (including, without limitation, the selection of any
administrator (or any analogous officer in any jurisdiction) of any Debtor to be appointed
by the relevant Security Agent):
(a) in relation to the NTFF Security, as:
(i) the NTFF Fronting Banks or the Majority NTFF Participants; or
(ii) after a Standstill Period End Date (if no prior instructions have been given
by the NTFF Fronting Banks or the Majority NTFF Participants under
paragraph (i) above) or the NTFF Discharge Date, the Instructing Group,
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shall instruct;
(b) in relation to the ITFF Security, as:
(i) the ITFF Fronting Banks or the Majority ITFF Participants; or
(ii) after a Standstill Period End Date (if no prior instructions have been given
by the ITFF Fronting Banks or the Majority ITFF Participants under
paragraph (i) above) or the ITFF Discharge Date, the Instructing Group,
shall instruct;
(c) in relation to the Trading Hold Co Security, as the Trading Hold Co Bond Trustee
shall instruct; or
(d) in relation to the General Security, as the Instructing Group shall instruct.
11.6 Waiver of rights
To the extent permitted under applicable law and subject to Clause 11.1 (Enforcement of
NTFF Security and ITFF Security), Clause 11.2 (Enforcement of Trading Hold Co
Security), Clause 11.3 (Enforcement of General Security), Clause 11.5 (Manner of
enforcement), Clause 13.5 (Fair value) and Clause 16 (Application of Proceeds), each of
the Secured Parties, the Intra-Group Lenders and the Subordinated Creditor, waives all
rights it may otherwise have to require that the Transaction Security be enforced in any
particular order or manner or at any particular time or that any amount received or
recovered from any person, or by virtue of the enforcement of any of the Transaction
Security or of any other security interest, which is capable of being applied in or towards
discharge of any of the Secured Obligations is so applied.
11.7 Duties owed
Each of the Creditors acknowledges that, in the event that a Security Agent enforces or is
instructed to enforce, or (in the case of the Common Security Agent) to instruct any other
Security Agent to enforce, the Transaction Security held by it at any time, the duties of
that Security Agent and of any Receiver or Delegate owed to those Creditors who are not
Trading Hold Co Bond Creditors (in relation to the Trading Hold Co Security) or do not,
at that time, comprise the Instructing Group (in relation to the General Security) in respect
of the method, type and timing of that enforcement or of the exploitation, management or
realisation of any of that Transaction Security shall, subject to Clause 13.5 (Fair value),
be no different to or greater than the duty that is owed by that Security Agent or Receiver
or Delegate to the Debtors under general law.
11.8 Enforcement through Security Agent only
No Creditor shall have any independent power to enforce, or have recourse to, any of the
Transaction Security or to exercise any right, power, authority or discretion arising under
the Security Documents except through the applicable Security Agent.
11.9 Alternative Enforcement Action
After a Security Agent has commenced any Enforcement Action with respect to any
Transaction Security, it shall not accept any subsequent instructions as to enforcement of
such Transaction Security from anyone other than the Instructing Group (or other party
entitled to give such instruction) that instructed it to commence such enforcement of the
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Transaction Security, regarding any other enforcement of the Transaction Security over or
relating to shares or assets directly or indirectly the subject of the enforcement of the
Transaction Security which has been commenced.
12. NON-DISTRESSED DISPOSALS
12.1 Definitions
In this Clause 12, "Non-Distressed Disposal" means a disposal of:
(a) with respect to any member of the Trading Co Group:
(i) a member of the Trading Co Group which has given Transaction Security
over its assets; or
(ii) an asset which is subject to the Transaction Security,
to a person or persons outside the Trading Hold Co Group where:
(A) (prior to the NTFF Discharge Date) the NTFF Agent notifies the
relevant Security Agent that that disposal and the release of the
relevant Transaction Security is permitted under the NTFF Finance
Documents, provided that (if that disposal and release is so
permitted) the NTFF Agent shall provide such notification to the
relevant Security Agent promptly after a director or authorised officer
of Trading Co provides written confirmation to the NTFF Agent that
the disposal and the release of the relevant Transaction Security is
permitted under the NTFF Finance Documents;
(B) (prior to the ITFF Discharge Date) the ITFF Agent notifies the
relevant Security Agent that that disposal and the release of the
relevant Transaction Security is permitted under the ITFF Finance
Documents, provided that (if that disposal and release is so
permitted) the ITFF Agent shall provide such notification to the
relevant Security Agent promptly after a director or authorised officer
of Trading Co provides written confirmation to the ITFF Agent that
the disposal and the release of the relevant Transaction Security is
permitted under the ITFF Finance Documents;
(C) (prior to the Pari Passu Debt Discharge Date) the relevant Creditor
Representative notifies the relevant Security Agent that that disposal
and the release of the relevant Transaction Security is permitted under
the Pari Passu Debt Documents, provided that (if that disposal and
release is so permitted) the Creditor Representative shall provide such
notification to the relevant Security Agent promptly after a director
or authorised officer of Trading Co provides written confirmation to
that Creditor Representative that the disposal and the release of the
relevant Transaction Security is permitted under the Pari Passu Debt
Documents; and
(b) with respect to Trading Hold Co, an asset which is subject to the Trading Hold
Co Security,
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and, in each case, which is not a Distressed Disposal.
12.2 Facilitation of Non-Distressed Disposals
(a) If a disposal is a Non-Distressed Disposal, the relevant Security Agent is
irrevocably authorised (at the cost of Trading Co and without any consent,
sanction, authority or further confirmation from any Creditor, other Secured Party
or Debtor) but subject to paragraph (b) below:
(i) to release the Transaction Security held by it or any other claim (relating
to a Debt Document) over that asset;
(ii) where that asset consists of shares in the capital of a member of the
Trading Co Group, to release the Transaction Security held by it or any
other claim (relating to a Debt Document) over that member of the
Trading Co Group's Property; and
(iii) to execute and deliver or enter into any release of the Transaction Security
held by it or any claim described in paragraphs (i) and (ii) above and issue
any certificates of non-crystallisation of any floating charge or any
consent to dealing that may, in the discretion of the relevant Security
Agent be considered necessary or desirable.
(b) Each release of Transaction Security or any claim described in paragraph (a)
above shall become effective only on the making of the relevant Non-Distressed
Disposal.
12.3 Disposal Proceeds
If the proceeds of any Non-Distressed Disposal are required to be applied in mandatory
prepayment of the Trading Co Credit Facility Liabilities, the TFF Liabilities, the Pari Passu
Debt Liabilities or the Trading Hold Co Liabilities then those proceeds shall, subject to
any restrictions on the making of Payments set out in this Agreement, be applied in
accordance with the Debt Documents and the consent of any other Party shall not be
required for that application.
13. DISTRESSED DISPOSALS AND APPROPRIATION
13.1 Facilitation of Distressed Disposals and Appropriation – Trading Co Group
Subject to Clause 13.7 (Restriction on Pari Passu Creditor enforcement) and Clause 13.8
(Restriction on Trading Hold Co Creditor enforcement), if a Distressed Disposal or an
Appropriation is being effected, the Common Security Agent (and, in respect of paragraph
(a) below only, any other Security Agent) is irrevocably authorised (at the cost of Trading
Co and without any consent, sanction, authority or further confirmation from any Creditor,
other Secured Party or Debtor):
(a) release of Transaction Security/non-crystallisation certificates: to release the
Transaction Security (including any Shared Security) held by it or any other claim
over the asset subject to the Distressed Disposal or Appropriation and execute
and deliver or enter into any release of that Transaction Security (including
Shared Security) or claim and issue any letters of non-crystallisation of any
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floating charge or any consent to dealing that may, in the discretion of the relevant
Security Agent be considered necessary or desirable;
(b) release of liabilities and Transaction Security on a share sale/Appropriation
(Debtor): if the asset subject to the Distressed Disposal or Appropriation consists
of shares in the capital of a Debtor (other than Trading Hold Co), to release:
(i) that Debtor and any Subsidiary of that Debtor from all or any part of:
(A) its Borrowing Liabilities;
(B) its Guarantee Liabilities; and
(C) its Other Liabilities;
(ii) any Transaction Security (including Shared Security) granted by that
Debtor or any Subsidiary of that Debtor over any of its assets; and
(iii) any other claim of an Intra-Group Lender, Subordinated Creditor or
another Debtor (including Trading Hold Co) over that Debtor's assets or
over the assets of any Subsidiary of that Debtor,
on behalf of the relevant Creditors and Debtors;
(c) release of liabilities and Transaction Security on a share sale/Appropriation
(Holding Company): if the asset subject to the Distressed Disposal or
Appropriation consists of shares in the capital of any Holding Company of a
Debtor (other than Trading Hold Co or any Holding Company of Trading Hold
Co), to release:
(i) that Holding Company and any Subsidiary of that Holding Company from
all or any part of:
(A) its Borrowing Liabilities;
(B) its Guarantee Liabilities; and
(C) its Other Liabilities;
(ii) any Transaction Security (including Shared Security) granted by any
Subsidiary of that Holding Company over any of its assets; and
(iii) any other claim of an Intra-Group Lender, Subordinated Creditor or
another Debtor (including Trading Hold Co) over the assets of any
Subsidiary of that Holding Company,
on behalf of the relevant Creditors and Debtors;
(d) facilitative disposal of liabilities on a share sale/Appropriation: if the asset
subject to the Distressed Disposal or Appropriation consists of shares in the
capital of a Debtor or the Holding Company of a Debtor (other than Trading Hold
Co or a Holding Company of Trading Hold Co) and the Common Security Agent
decides to dispose of all or any part of the Liabilities owed by that Debtor or
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Holding Company or any Subsidiary of that Debtor or Holding Company (on the
basis that any transferee of those Liabilities (the "Transferee") will not be treated
as a Creditor or a Secured Party for the purposes of this Agreement), to execute
and deliver or enter into any agreement to dispose of all or part of those Liabilities
on behalf of the relevant Creditors and Debtors provided that notwithstanding
any other provision of any Debt Document the Transferee shall not be treated as
a Creditor or a Secured Party for the purposes of this Agreement;
(e) sale of liabilities on a share sale/Appropriation: if the asset subject to the
Distressed Disposal or Appropriation consists of shares in the capital of a Debtor
or the Holding Company of a Debtor (other than Trading Hold Co or a Holding
Company of Trading Hold Co) and the Common Security Agent decides to
dispose of all or any part of the Liabilities owed by that Debtor or Holding
Company or any Subsidiary of that Debtor or Holding Company on the basis that
any transferee of those Liabilities will be treated as a Creditor or a Secured Party
for the purposes of this Agreement, to execute and deliver or enter into any
agreement to dispose of:
(A) all (and not part only) of the Liabilities owed to the Primary Creditors;
and
(B) all or part of any other Liabilities,
on behalf of, in each case, the relevant Creditors and Debtors;
(f) transfer of obligations in respect of liabilities on a share sale/Appropriation: if
the asset subject to the Distressed Disposal or Appropriation consists of shares in
the capital of a Debtor or the Holding Company of a Debtor (other than Trading
Hold Co or a Holding Company of Trading Hold Co) (the "Disposed Entity")
and the Common Security Agent decides to transfer to another Debtor (the
"Receiving Entity") all or any part of the Disposed Entity's obligations or any
obligations of any Subsidiary of that Disposed Entity in respect of the Intra-Group
Liabilities or Subordinated Liabilities to execute and deliver or enter into any
agreement to:
(i) agree to the transfer of all or part of the obligations in respect of those
Intra-Group Liabilities or Subordinated Liabilities on behalf of the
relevant Intra-Group Lenders and Subordinated Creditors to which those
obligations are owed and on behalf of the Debtors which owe those
obligations; and
(ii) to accept the transfer of all or part of the obligations in respect of those
Intra-Group Liabilities and Subordinated Creditors on behalf of the
Receiving Entity or Receiving Entities to which the obligations in respect
of those Intra-Group Liabilities or Subordinated Liabilities are to be
transferred.
13.2 Distressed Disposal or Appropriation – Trading Hold Co Security
If a Distressed Disposal or an Appropriation is being effected by the Trading Hold Co
Security Agent in connection with the Trading Hold Co Security, the Trading Hold Co
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Security Agent is irrevocably authorised (at the cost of Trading Hold Co and without any
consent, sanction, authority or further confirmation from any Creditor, other Secured Party
or Debtor):
(a) release of Trading Hold Co Security/non-crystallisation certificates: to release
the Trading Hold Co Security over the asset subject to the Distressed Disposal or
Appropriation and execute and deliver or enter into any release of that Trading
Hold Co Security and issue any letters of non-crystallisation of any floating
charge or any consent to dealing that may, in the discretion of the Trading Hold
Co Security Agent be considered necessary or desirable;
(b) release of liabilities and Trading Hold Co Security on a share
sale/Appropriation (Trading Hold Co): if the asset subject to the Distressed
Disposal or Appropriation consists of shares in the capital of Trading Hold Co or
any Holding Company of Trading Hold Co, to release Trading Hold Co from all
or any part of:
(i) its Borrowing Liabilities;
(ii) its Guarantee Liabilities; and
(iii) its Other Liabilities,
on behalf of the relevant Trading Hold Co Creditors and Debtors;
(c) facilitative disposal of liabilities on a share sale/Appropriation: if the asset
subject to the Distressed Disposal or Appropriation consists of shares in the
capital of Trading Hold Co or any Holding Company of Trading Hold Co and the
Trading Hold Co Security Agent decides to dispose of all or any part of the
Liabilities owed by Trading Hold Co on the basis that any transferee of those
Liabilities (the "Transferee") will not be treated as a Primary Creditor or a
Trading Hold Co Secured Party for the purposes of this Agreement, to execute
and deliver or enter into any agreement to dispose of all or part of those Trading
Hold Co Bond Liabilities on behalf of the relevant Trading Hold Co Bond
Creditors and Debtors provided that notwithstanding any other provision of any
Debt Document the Transferee shall not be treated as a Primary Creditor or a
Secured Party for the purposes of this Agreement;
(d) sale of liabilities on a share sale/Appropriation: if the asset subject to the
Distressed Disposal or Appropriation consists of shares in the capital of Trading
Hold Co or a Holding Company of Trading Hold Co and the Trading Hold Co
Security Agent decides to dispose of all or any part of the Trading Hold Co Bond
Liabilities owed by Trading Hold Co on the basis that any transferee of those
Trading Hold Co Bond Liabilities will be treated as a Primary Creditor or a
Secured Party for the purposes of this Agreement, to execute and deliver or enter
into any agreement to dispose of:
(A) all (and not part only) of the Trading Hold Co Bond Liabilities owed
to the Trading Hold Co Bond Creditors; and
(B) all or part of any other Trading Hold Co Bond Liabilities,
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on behalf of, in each case, the relevant Creditors and Debtors;
(e) transfer of obligations in respect of liabilities on a share sale/Appropriation: if
the asset subject to the Distressed Disposal or Appropriation consists of shares in
the capital of Trading Hold Co or a Holding Company of Trading Hold Co (the
"Disposed Entity") and the Trading Hold Co Security Agent decides to transfer
to another Debtor (the "Receiving Entity") all or any part of the Disposed Entity's
obligations in respect of the Intra-Group Liabilities or Subordinated Liabilities in
each case owed by Trading Hold Co to execute and deliver or enter into any
agreement to:
(i) agree to the transfer of all or part of the obligations in respect of those
Intra-Group Liabilities or Subordinated Liabilities on behalf of the
relevant Creditors to which those obligations are owed and on behalf of
the Debtors which owe those obligations; and
(ii) to accept the transfer of all or part of the obligations in respect of those
Intra-Group Liabilities or Subordinated Liabilities on behalf of the
Receiving Entity or Receiving Entities to which the obligations in respect
of those Intra-Group Liabilities or Subordinated Liabilities are to be
transferred.
13.3 Form of consideration for Distressed Disposals and Debt Disposals
Subject to Clause 13.7 (Restriction on Pari Passu Creditor enforcement) and Clause 14.4
(Security Agent protection), a Distressed Disposal or a Debt Disposal may be made in
whole or in part for consideration in the form of cash or, if not for cash, for Non-Cash
Consideration which is acceptable to the relevant Security Agent.
13.4 Proceeds of Distressed Disposals and Debt Disposals
The net proceeds of each Distressed Disposal and each Debt Disposal shall be paid, or
distributed, to the relevant Security Agent for application in accordance with Clause 16
(Application of Proceeds) and, to the extent that:
(a) any Liabilities Sale has occurred; or
(b) any Appropriation has occurred,
as if that Liabilities Sale, or any reduction in the Secured Obligations resulting from that
Appropriation, had not occurred.
13.5 Fair value
In the case of:
(a) a Distressed Disposal; or
(b) a Liabilities Sale,
effected by, or at the request of, a Security Agent, that Security Agent shall take reasonable
care to obtain a fair market price having regard to the prevailing market conditions (though
that Security Agent shall have no obligation to postpone (or request the postponement of)
any Distressed Disposal or Liabilities Sale in order to achieve a higher price).
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13.6 Fair value – safe harbours
(a) Each Security Agent may seek to satisfy the requirement in Clause 13.5 (Fair
value) in any manner.
(b) Without prejudice to the generality of paragraph (a) above, the requirement in
Clause 13.5 (Fair value) shall be satisfied (and as between the Creditors and the
Debtors shall be conclusively presumed to be satisfied) and the relevant Security
Agent will be taken to have discharged all its obligations in this respect under this
Agreement, the other Debt Documents and generally at law if:
(i) that Distressed Disposal or Liabilities Sale is made pursuant to any
process or proceedings approved or supervised by or on behalf of any
court of law;
(ii) that Distressed Disposal or Liabilities Sale is made by, at the direction of
or under the control of, a liquidator, receiver, administrative receiver,
administrator, compulsory manager or other similar officer (or any
analogous officer in any jurisdiction) appointed in respect of a member of
the Trading Co Group or the assets of a member of the Trading Co Group;
(iii) that Distressed Disposal or Liabilities Sale is made pursuant to a
Competitive Sales Process; or
(iv) a Financial Adviser appointed by the relevant Security Agent pursuant to
Clause 13.8 (Appointment of Financial Adviser) has delivered a Fairness
Opinion to that Security Agent in respect of that Distressed Disposal or
Liabilities Sale.
13.7 Restriction on Pari Passu Creditor enforcement
If a Distressed Disposal, Appropriation or a Debt Disposal is being effected at a time when
either the Trading Co Bond Trustee is or the Majority Pari Passu Creditors are entitled to
give, and has or have given, instructions under Clause 11.5 (Manner of enforcement) on
which the Common Security Agent is acting:
(a) prior to the NTFF Discharge Date:
(i) no Security Agent is authorised to release (or instruct any NTFF Security
Agent to release) any NTFF Security over any asset or any other claim
over that asset and the Common Security Agent is not authorised to
release any Debtor, Subsidiary or Holding Company from any Borrowing
Liabilities or Guarantee Liabilities owed to any NTFF Creditor, unless
those Borrowing Liabilities or Guarantee Liabilities will be paid (or
repaid) in full (or, in the case of any contingent Liability, made the subject
of cash collateral arrangements acceptable to the relevant Creditor),
following that release; and
(ii) no Distressed Disposal, Appropriation or Debt Disposal may be made for
Non-Cash Consideration unless the prior consent of the NTFF Fronting
Banks and the Majority NTFF Participants is obtained;
(b) prior to the ITFF Discharge Date:
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(i) no Security Agent is authorised to release (or instruct any ITFF Security
Agent to release) any ITFF Security over any asset or any other claim over
that asset and the Common Security Agent is not authorised to release any
Debtor, Subsidiary or Holding Company from any Borrowing Liabilities
or Guarantee Liabilities owed to any ITFF Creditor, unless those
Borrowing Liabilities or Guarantee Liabilities will be paid (or repaid) in
full (or, in the case of any contingent Liability, made the subject of cash
collateral arrangements acceptable to the relevant Creditor), following
that release; and
(ii) no Distressed Disposal, Appropriation or Debt Disposal may be made for
Non-Cash Consideration unless the prior consent of the Majority ITFF
Participants is obtained; and
13.8 Restriction on Trading Hold Co Creditor enforcement
If, prior to the Final Discharge Date, a Distressed Disposal or a Liabilities Sale is being
effected at a time when Trading Hold Co Bond Trustee entitled to give, and has given,
instructions under Clause 11.5 (Manner of enforcement) on which the Common Security
Agent is acting:
(a) the Common Security Agent is not authorised to release any member of the
Trading Co Group from any Borrowing Liabilities or Guarantee Liabilities owed
to any Trading Co Creditor, unless those Borrowing Liabilities or Guarantee
Liabilities will be paid (or repaid) in full (or, in the case of any contingent
Liability, made the subject of cash collateral arrangements acceptable to the
relevant Creditor), following that release; and
(b) no Distressed Disposal or Debt Disposal may be made for Non-Cash
Consideration unless the prior consent of each Trading Co Creditor's Creditor
Representative and (to the extent the Trading Co Credit Facility is outstanding at
the time) Asset Co is obtained.
13.9 Appointment of Financial Adviser
(a) Without prejudice to Clause 18.9 (Rights and discretions), a Security Agent may
engage, or approve the engagement of, (in each case on such terms as it may
consider appropriate (including, without limitation, restrictions on that Financial
Adviser's liability and the extent to which any advice, valuation or opinion may
be relied on or disclosed)), pay for and rely on the services of a Financial Adviser
to provide advice, a valuation or an opinion in connection with:
(i) a Distressed Disposal or a Debt Disposal;
(ii) the application or distribution of any proceeds of a Distressed Disposal or
a Debt Disposal; or
(iii) any amount of Non-Cash Consideration which is subject to Clause 9.2
(Turnover by the Creditors).
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(b) For the purposes of paragraph (a) above, a Security Agent shall act:
(i) on the instructions of the Instructing Group if the Financial Adviser is
providing a valuation for the purposes of Clause 14.2 (Cash value of Non-
Cash Recoveries); or
(ii) otherwise in accordance with Clause 13.10 (Security Agent's actions).
13.10 Security Agent's actions
For the purposes of Clause 13.1 (Facilitation of Distressed Disposals and Appropriation
– Trading Co Group), Clause 13.3 (Form of consideration for Distressed Disposals and
Debt Disposals), Clause 13.5 (Fair Value) and Clause 13.6 (Fair value - safe harbours) a
Security Agent shall act in accordance with Clause 11.5 (Manner of enforcement) mutatis
mutandis.
13.11 Security Agent's actions – Trading Hold Co Security
For the purposes of Clause 13.2 (Distressed Disposal or Appropriation – Trading Hold
Co Security), Clause 13.3 (Form of consideration for Distressed Disposals and Debt
Disposals), Clause 13.5 (Fair Value) and Clause 13.6 (Fair value - safe harbours) the
Trading Hold Co Security Agent shall act on the instructions of the Trading Hold Co Bond
Trustee.
14. NON-CASH RECOVERIES
14.1 Non-Cash Recoveries
To the extent a Security Agent receives or recovers any Non-Cash Recoveries, it may
(acting on the instructions of the Instructing Group) but without prejudice to its ability to
exercise discretion under Clause 16.6 (Prospective liabilities)):
(a) distribute those Non-Cash Recoveries pursuant to Clause 16 (Application of
proceeds) as if they were Cash Proceeds;
(b) hold, manage, exploit, collect, realise and dispose of those Non-Cash Recoveries;
and
(c) hold, manage, exploit, collect, realise and distribute any resulting Cash Proceeds.
14.2 Cash value of Non-Cash Recoveries
(a) The cash value of any Non-Cash Recoveries in respect of the Transaction
Security shall be determined by reference to a valuation obtained by the relevant
Security Agent from a Financial Adviser appointed by that Security Agent
pursuant to Clause 13.9 (Appointment of Financial Adviser) taking into account
any notional conversion made pursuant to Clause 16.8 (Currency conversion).
(b) If any Non-Cash Recoveries are distributed pursuant to Clause 16 (Application of
proceeds), the extent to which such distribution is treated as discharging the
Liabilities shall be determined by reference to the cash value of those Non-Cash
Recoveries determined pursuant to paragraph (a) above.
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14.3 Alternative to Non-Cash Consideration
(a) If any Non-Cash Recoveries are to be distributed pursuant to Clause 16
(Application of proceeds), the applicable Security Agent shall (prior to that
distribution and taking into account the Liabilities then outstanding and the cash
value of those Non-Cash Recoveries) notify the Creditors entitled to receive those
Non-Cash Recoveries pursuant to that distribution (the "Entitled Creditors").
(b) If:
(i) it would be unlawful for an Entitled Creditor to receive such Non-Cash
Recoveries (or it would otherwise conflict with that Entitled Creditor's
constitutional documents for it to do so); and
(ii) that Entitled Creditor promptly so notifies the applicable Security Agent,
as applicable, and supplies such supporting evidence as the applicable
Security Agent may reasonably require,
that Primary Creditor shall be a "Cash Only Creditor" and the Non-Cash
Recoveries to which it is entitled shall be "Retained Non-Cash".
(c) To the extent that, in relation to any distribution of Non-Cash Recoveries, there
is a Cash Only Creditor, the applicable Security Agent shall not distribute any
Retained Non-Cash to that Cash Only Creditor (or to any Creditor Representative
on behalf of that Cash Only Creditor) but shall otherwise treat the Non-Cash
Recoveries in accordance with this Agreement.
(d) Subject to Clause 14.4 (Security Agent protection), the applicable Security Agent
shall hold any Retained Non-Cash and shall, acting on the instructions of the Cash
Only Creditor entitled to it, manage, exploit, collect, realise and dispose of that
Retained Non-Cash for cash consideration and shall distribute any Cash Proceeds
of that Retained Non-Cash to that Cash Only Creditor in accordance with Clause
16 (Application of proceeds).
(e) On any such distribution of Cash Proceeds which are attributable to a disposal of
any Retained Non-Cash, the extent to which such distribution is treated as
discharging the Liabilities due to the relevant Cash Only Creditor shall be
determined by reference to:
(i) the valuation which determined the extent to which the distribution of the
Non-Cash Recoveries to the other Entitled Creditors discharged the
Liabilities due to those Entitled Creditors; and
(ii) the Retained Non-Cash to which those Cash Proceeds are attributable.
(f) Each Creditor shall, following a request by the applicable Security Agent (acting
in accordance with Clause 13.10 (Security Agent's actions)), notify the applicable
Security Agent of the extent to which paragraph (b)(i) above would apply to it in
relation to any distribution or proposed distribution of Non-Cash Recoveries.
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14.4 Security Agent protection
(a) No Distressed Disposal or Debt Disposal may be made in whole or part for Non-
Cash Consideration if the relevant Security Agent has reasonable grounds for
believing that its receiving, distributing, holding, managing, exploiting,
collecting, realising or disposing of that Non-Cash Consideration would have an
adverse effect on it.
(b) If Non-Cash Consideration is distributed to a Security Agent pursuant to Clause
9.2 (Turnover by the Creditors) that Security Agent may, at any time after
notifying the Creditors entitled to that Non-Cash Consideration and
notwithstanding any instruction from a Creditor or group of Creditors pursuant to
the terms of any Debt Document, immediately realise and dispose of that Non-
Cash Consideration for cash consideration (and distribute any Cash Proceeds of
that Non-Cash Consideration to the relevant Creditors in accordance with Clause
16 (Application of Proceeds)) if that Security Agent has reasonable grounds for
believing that holding, managing, exploiting or collecting that Non-Cash
Consideration would have an adverse effect on it.
(c) If a Security Agent holds Retained Non-Cash for a Cash Only Creditor (each as
defined in Clause 14.3 (Alternative to Non-Cash Consideration)) that Security
Agent may at any time, after notifying that Cash Only Creditor and
notwithstanding any instruction from a Creditor or group of Creditors pursuant to
the terms of any Debt Document, immediately realise and dispose of that
Retained Non-Cash for cash consideration (and distribute any Cash Proceeds of
that Retained Non-Cash to that Cash Only Creditor in accordance with Clause 16
(Application of proceeds)) if that Security Agent has reasonable grounds for
believing that holding, managing, exploiting or collecting that Retained Non-
Cash would have an adverse effect on it.
15. FURTHER ASSURANCE – DISPOSALS AND RELEASES
Each Creditor and Debtor will:
(a) do all things that a Security Agent requests in order to give effect to Clause 12
(Non-Distressed Disposals) and Clause 13 (Distressed Disposals and
Appropriation) (which shall include, without limitation, the execution of any
assignments, transfers, releases or other documents that the relevant Security
Agent may consider to be necessary to give effect to the releases or disposals
contemplated by those Clauses); and
(b) if a Security Agent is not entitled to take any of the actions contemplated by those
Clauses or if a Security Agent requests that any Creditor or Debtor take any such
action, take that action itself in accordance with the instructions of the relevant
Security Agent,
provided that the proceeds of those disposals are applied in accordance with Clause 12
(Non-Distressed Disposals) or Clause 13 (Distressed Disposals and Appropriation) as the
case may be.
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16. APPLICATION OF PROCEEDS
16.1 Order of application: NTFF Security
All amounts from time to time received or recovered by an NTFF Security Agent in
connection with the realisation or enforcement of all or any part of the NTFF Security shall
be held by that NTFF Security Agent on trust to apply them, to the extent permitted by
applicable law, in the following order of priority:
(a) first, until the NTFF Discharge Date, in payment or distribution to the NTFF
Agent for application in or towards discharging the NTFF Liabilities (in
accordance with the NTFF Agreement); and
(b) thereafter, in payment or distribution to the Common Security Agent for
application in accordance with the order of priority set out in Clause 16.3 (Order
of application: General Security).
16.2 Order of application: ITFF Security
All amounts from time to time received or recovered by an ITFF Security Agent in
connection with the realisation or enforcement of all or any part of the ITFF Security shall
be held by that ITFF Security Agent on trust to apply them, to the extent permitted by
applicable law, in the following order of priority:
(a) until the ITFF Discharge Date, in payment or distribution to the ITFF Agent for
application in or towards discharging the ITFF Liabilities (in accordance with the
ITFF Agreement); and
(b) thereafter, in payment or distribution to the Common Security Agent for
application in accordance with the order of priority specified in Clause 16.3
(Order of application: General Security).
16.3 Order of application: General Security
Subject to Clause 16.6 (Prospective liabilities), all amounts from time to time received or
recovered by the Common Security Agent under this Agreement (together, the
"Recoveries") shall be held by the Common Security Agent on trust to apply them at any
time as the Common Security Agent (in its discretion) sees fit, to the extent permitted by
applicable law (and subject to the provisions of this Clause 16), in the following order of
priority:
(a) in payment or distribution to the Common Security Agent, any Receiver or any
Delegate for application in or towards discharging any sums owing to the
Common Security Agent (other than pursuant to Clause 18.3 (Parallel debt)), any
Receiver or any Delegate;
(b) in discharging all costs and expenses incurred by any Primary Creditor in
connection with any realisation or enforcement of the Transaction Security taken
in accordance with the terms of this Agreement or any action taken at the request
of the Common Security Agent under Clause 8.6 (Further assurance – Insolvency
Event);
(c) in payment or distribution to:
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(i) the NTFF Agent for application in or towards discharging the NTFF
Administrative Liabilities (in accordance with the NTFF Agreement); and
(ii) to the ITFF Agent for application in or towards discharging the ITFF
Administrative Liabilities (in accordance with the ITFF Agreement),
on a pro rata basis and pari passu between paragraphs (i) and (ii) above;
(d) in payment or distribution to:
(i) the NTFF Agent for application in or towards discharging the NTFF
Participant Liabilities (in accordance with the NTFF Agreement); and
(ii) the ITFF Agent for application in or towards discharging the ITFF
Participant Liabilities (in accordance with the ITFF Agreement);
on a pro rata basis and pari passu between paragraphs (i) and (ii) above;
(e) in payment or distribution to Asset Co for application in or towards discharging
the Trading Co Credit Facility Liabilities;
(f) in payment or distribution to:
(i) the Trading Co Bond Trustee on its own behalf and on behalf of the
Trading Co Bondholders for application in or towards discharging any
amounts owing to the Trading Co Bond Creditors in respect of the Trading
Co Bond Liabilities (in accordance with the terms of the Trading Co Bond
Documents); and
(ii) each other Creditor Representative in relation to any other Pari Passu Debt
Liabilities on its own behalf and on behalf of each Pari Passu Arranger
and each Pari Passu Lender for application in or towards the discharge of
those other Pari Passu Debt Liabilities (in accordance with the terms of
the other Pari Passu Debt Documents and, if there is more than one other
Pari Passu Debt Document, on a pro rata basis between them),
on a pro rata basis and pari passu between paragraphs (i) and (ii) above;
(g) if the Recovery arises from any asset which is or was subject to Shared Security,
to the Trading Hold Co Bond Trustee for application in or towards discharging
the Trading Hold Co Bond Liabilities in accordance with the Trading Hold Co
Bond Documents;
(h) if none of the Debtors is under any further actual or contingent liability under any
Debt Document, in payment or distribution to any person to whom the Common
Security Agent is obliged to pay or distribute in priority to any Debtor; and
(i) the balance, if any, in payment or distribution to the relevant Debtor.
16.4 Treatment of TFF Cash Cover
Notwithstanding anything to the contrary in this Agreement:
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(a) nothing in this Agreement shall prevent any TFF Creditor taking any
Enforcement Action in respect of any TFF Cash Cover which has been provided
for it in accordance with the relevant TFF Finance Document, as applicable;
(b) to the extent that any TFF Cash Cover is held with the relevant TFF Creditor,
nothing in this Agreement shall prevent that relevant TFF Creditor receiving and
retaining any amount in respect of that TFF Cash Cover provided for it in
accordance with the relevant TFF Finance Document, as applicable;
(c) to the extent that any TFF Cash Cover is not held with the relevant TFF Creditor,
all amounts from time to time received or recovered in connection with the
realisation or enforcement of that TFF Cash Cover shall be paid to the relevant
Security Agent in whose favour that TFF Cash Cover has been secured and shall
be held by that Security Agent on trust to apply them at any time as that Security
Agent (in its discretion) sees fit, to the extent permitted by applicable law, in the
following order of priority:
(i) to the relevant TFF Creditor towards the discharge of the applicable TFF
Liabilities for which that TFF Cash Cover was provided; and
(ii) the balance, if any, in accordance with:
(A) Clause 16.1 (Order of application: NTFF Security), if the amount
relates to TFF Cash Cover provided for an NTFF Liability; and
(B) Clause 16.2 (Order of application: ITFF Security), if the amount
relates to TFF Cash Cover provided for an ITFF Liability.
16.5 Treatment of RPP Receipts
Notwithstanding anything to the contrary in this Agreement, without the consent of any
other Party:
(a) if any Debtor or any other member of the Trading Hold Co Group receives or
recovers any amount that it or any Debtor is obliged to pay or otherwise make
available to a RPP Creditor in connection with an invoice or receivable that has
been (or has been purported to have been) sold or assigned to that RPP Creditor
pursuant to the RPP Finance Documents (a "RPP Receipt"), that Debtor will, and
Trading Co will procure that such other member of the Trading Hold Co Group
will, promptly pay that RPP Receipt (or an amount equal to that RPP Receipt) to
(or as directed by) the relevant RPP Creditor; and
(b) if any amount is paid into a Collection Account (as defined in the NTFF Facility
Agreement) which the relevant NTFF Fronting Bank identifies as relating to an
amount owing to a RPP Creditor, the relevant NTFF Fronting Bank will promptly
apply that amount (or an amount equal to that amount) in payment to (or as
directed by) that RPP Creditor in accordance with the NTFF Facility Agreement.
16.6 Prospective liabilities
(a) Following a Distress Event any Security Agent may, in its discretion:
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(i) hold any amount of the Recoveries which is in the form of cash, and any
cash which is generated by holding, managing, exploiting, collecting,
realising or disposing of any Non-Cash Consideration, in one or more
suspense or impersonal accounts in the name of that Security Agent with
such financial institution (including itself) as that Security Agent shall
think fit (the interest being credited to the relevant account); and
(ii) hold, manage, exploit, collect and realise any amount of the Recoveries
which is in the form of Non-Cash Consideration,
in each case for so long as that Security Agent shall think fit for later application
under this Clause 16 in respect of:
(A) any amount to that Security Agent, any Receiver or any Delegate; and
(B) any part of the Liabilities,
that that Security Agent reasonably considers, in each case, might become
due or owing at any time in the future.
(b) Any reference in this Clause 16 to any Liabilities includes any amount for which
a Debtor may become liable to pay a TFF Fronting Bank in respect of any letter
of credit or other contingent instrument which is outstanding, and any other
amount which a relevant Agent reasonably considers might become due or owing
at any time in the future.
16.7 Investment of Cash Proceeds
Prior to the application of any amounts in accordance with this Clause 16, a Security Agent
may, in its discretion, hold all or part of any Cash Proceeds in one or more suspense or
impersonal accounts in the name of that Security Agent with such financial institution
(including itself) and for so long as that Security Agent shall think fit (with any interest
being credited to the relevant account) pending the application from time to time of those
monies in that Security Agent's discretion in accordance with the provisions of this Clause
16.
16.8 Currency conversion
(a) For the purpose of, or pending the discharge of, any of the Secured Obligations a
Security Agent may:
(i) convert any moneys received or recovered by that Security Agent
(including, without limitation, any Cash Proceeds) from one currency to
another, at that Security Agent's Spot Rate of Exchange; and
(ii) notionally convert the valuation provided in any opinion or valuation from
one currency to another, at that Security Agent's Spot Rate of Exchange.
(b) The obligations of any Debtor to pay in the due currency shall only be satisfied:
(i) in the case of paragraph (a)(i) above, to the extent of the amount of the
due currency purchased after deducting the costs of conversion; and
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(ii) in the case of paragraph (a)(ii) above, to the extent of the amount of the
due currency which results from the notional conversion referred to in that
paragraph.
16.9 Permitted Deductions
Each Security Agent shall be entitled, in its discretion, (a) to set aside by way of reserve
amounts required to meet and (b) to make and pay, any deductions and withholdings (on
account of Taxes or otherwise) which it is or may be required by any law or regulation to
make from any distribution or payment made by it under this Agreement, and to pay all
Taxes which may be assessed against it in respect of any of the Charged Property, or as a
consequence of performing its duties or exercising its rights, powers, authorities and
discretions, or by virtue of its capacity as Security Agent under any of the Debt Documents
or otherwise (other than in connection with its remuneration for performing its duties under
this Agreement).
16.10 Good Discharge
(a) Any distribution or payment to be made in respect of the Secured Obligations by
a Security Agent may be made to the relevant Creditor Representative on behalf
of its Creditors.
(b) Any distribution or payment made as described in paragraph (a) above shall be a
good discharge, to the extent of that payment or distribution, by a Security Agent:
(i) in the case of a payment made in cash, to the extent of that payment; and
(ii) in the case of a distribution of Non-Cash Recoveries, as determined by
Clause 14.2 (Cash value of Non-Cash Recoveries).
(c) No Security Agent is under any obligation to make the payments to the Creditor
Representatives under paragraph (a) above in the same currency as that in which
the Liabilities owing to the relevant Primary Creditor are denominated pursuant
to the relevant Debt Document.
16.11 Calculation of Amounts
For the purpose of calculating any person's share of any amount payable to or by it, a
Security Agent shall be entitled to:
(a) notionally convert the Liabilities owed to any person into a common base
currency (decided in its discretion by that Security Agent), that notional
conversion to be made at the spot rate at which the that Security Agent is able to
purchase the notional base currency with the actual currency of the Liabilities
owed to that person at the time at which that calculation is to be made; and
(b) assume that all amounts received or recovered as a result of the enforcement or
realisation of the Security Property are applied in discharge of the Liabilities in
accordance with the terms of the Debt Documents under which those Liabilities
have arisen.
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17. FACILITATION OF QUALIFYING TFF REFINANCING
17.1 Release of Transaction Security by Security Agent
If, in relation to a Qualifying TFF Refinancing, any amount received pursuant to the
enforcement of the Transaction Security would not be available for application by a
Security Agent towards the discharge of the Replacement TFF Liabilities as contemplated
in Clause 16 (Application of Proceeds) to the same extent as that amount would have been
available for application towards the discharge of the TFF Liabilities being refinanced, the
relevant Security Agent is irrevocably authorised (at the cost of Trading Co and without
any consent, sanction, authority or further confirmation from any Creditor, other Secured
Party or Debtor) to release that Transaction Security if:
(a) immediately on such release, Security will be provided in favour of the Secured
Parties under the Replacement TFF Documents over the same assets as under the
relevant Security Document, on terms substantially the same as the terms of that
Security Document and subject to the same ranking as set out in Clause 2
(Priority); and
(b) that release and provision of Security would not have a material adverse effect on
any of those Secured Parties provided that the retaking of Security and the
restarting of any related Hardening Period shall not, in itself, constitute such a
material adverse effect.
17.2 Facilitation
Subject to Clause 17.3 (Exceptions), each Secured Party shall, at the request (and cost) of
Trading Co, promptly execute such documents and give such instructions to the relevant
Security Agent as are reasonably necessary:
(a) to provide substantially the same rights and remedies to the providers of any TFF
Liabilities under the Replacement TFF Finance Documents as those provided to
the providers of the TFF Liabilities in the Original TFF Finance Documents
including, without limitation, entering into further security, priority and
intercreditor agreements; or
(b) to implement successfully the terms of a Qualifying TFF Refinancing by the
providers of that refinancing and to give effect to the providing of Security as
contemplated by this Clause 17 in respect of the Replacement TFF Liabilities,
including, without limitation, any amendment required to the terms of this
Agreement or any other Debt Document and any amendment, consent, waiver or
release in respect of any Security Document and any grant of security pursuant to
a new Security Document.
17.3 Exceptions
(a) This Clause 17 shall not require any Secured Party to facilitate a release of, or
amendment to, the Transaction Security or any guarantee, indemnity or other
assurance against loss if so doing would have a material adverse effect on any
Secured Party provided that the retaking of Security or assurance against loss,
and the restarting of any related Hardening Period, shall not, in itself, constitute
such a material adverse effect.
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(b) This Clause 17 shall not require any Party to provide financial accommodation to
any member of the Group in connection with, or otherwise to participate in, a
Qualifying TFF Refinancing.
18. THE SECURITY AGENTS
18.1 Security Agent as trustee
(a) Each Secured Party (other than the applicable Security Agent) appoints the
relevant Security Agent to act as trustee or its agent (whichever is applicable)
under this Agreement and the other applicable Debt Documents.
(b) Each NTFF Security Agent declares that it holds the NTFF Security Property
subject to the NTFF Security on trust (or as agent, whichever is applicable) for
the Trading Co Secured Parties on the terms contained in this Agreement.
(c) Each ITFF Security Agent declares that it holds the ITFF Security Property
subject to the ITFF Security on trust (or as agent, whichever is applicable) for the
Trading Co Secured Parties on the terms contained in this Agreement.
(d) The Common Security Agent declares that it holds the General Security Property
subject to the General Security on trust (or as agent, whichever is applicable) for
the Secured Parties on the terms contained in this Agreement.
(e) The Trading Hold Co Security Agent declares that it holds the Trading Hold Co
Security Property subject to the Trading Hold Co Security on trust (or as agent,
whichever is applicable) for the Trading Hold Co Secured Parties on the terms
contained in this Agreement.
(f) Each of the Creditors authorises each Security Agent to perform the duties,
obligations and responsibilities and to exercise the rights, powers, authorities and
discretions specifically given to that Security Agent under or in connection with
the Debt Documents together with any other incidental rights, powers, authorities
and discretions.
18.2 Dutch Security
In respect of any Security Document governed by Dutch law, each Secured Party (other
than the applicable Security Agent) hereby irrevocably appoints the relevant Security
Agent to act as agent for the relevant Secured Parties under the Debt Documents, including
the Security Documents, and irrevocably authorises such Security Agent on its behalf to
execute each Security Document expressed to be executed by such Security Agent on its
behalf and perform such duties and exercise such rights and powers under the Debt
Documents, including the Security Documents, as are specifically delegated to such
Security Agent by the terms thereof, together with such rights, powers and discretions as
are reasonably incidental thereto including, without limitation, enforcing the Transaction
Security in accordance with the terms of the Debt Documents and the relevant Security
Documents.
18.3 Parallel debt
(a) In this Clause 18.3:
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"Secured Creditor Claim" means any amount which a Debtor owes to a Secured
Party under or in connection with the Debt Documents.
"Security Agent Claim" has the meaning given to it in paragraph (c) below.
(b) Unless expressly provided to the contrary in any Debt Document, each Security
Agent holds:
(i) any Security created by a Security Document to which it is a party and
which is governed by any law other than English law (and any other law
agreed in writing by Trading Co and that Security Agent from time to
time);
(ii) the benefit of any Security Agent Claims owed to it; and
(iii) any proceeds of Transaction Security held by it,
for the benefit, and as the property, of the Secured Parties and so that they are not
available to the personal creditors of that Security Agent.
(c) Each Debtor must pay each Security Agent as an independent and separate
creditor, an amount equal to each Secured Creditor Claim owed to that Security
Agent on its due date (the "Security Agent Claim").
(d) In relation to a Security Agent Claim, each Security Agent acts in its own name
and not as agent, representative or trustee of the Secured Parties and its claims in
respect of the Security Agent Claims owed to it shall not be held on trust.
(e) Each Security Agent may enforce performance of the Security Agent Claims
owed to it in its own name as an independent and separate right. This includes
any suit, execution, enforcement of security, recovery of guarantees and
applications for and voting in respect of any kind of insolvency proceeding.
(f) Each Secured Party must, at the request of a Security Agent, perform any act
required in connection with the enforcement of a Security Agent Claim owed to
that Security Agent. This includes joining in any proceedings as co-claimant with
that Security Agent.
(g) Discharge by a Debtor of:
(i) a Secured Creditor Claim will discharge the corresponding Security Agent
Claim in the same amount.
(ii) a Security Agent Claim will discharge the corresponding Secured Creditor
Claim in the same amount.
(h) The aggregate amount of the Security Agent Claims will never exceed the
aggregate amount of Secured Creditor Claims.
(i) A defect affecting a Security Agent Claim against a Debtor will not affect any
Secured Creditor Claim.
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(j) A defect affecting a Secured Creditor Claim against a Debtor will not affect any
Security Agent Claim.
(k) If a Security Agent returns to any Debtor, whether in any kind of insolvency
proceedings or otherwise, any recovery in respect of which it has made a payment
to a Secured Party, that Secured Party must repay an amount equal to that
recovery to that Security Agent.
(l) Paragraphs (c) to (j) above apply, inter alia, for the purpose of determining the
Secured Obligations in the Security Documents governed by any law other than
English law.
18.4 Instructions
(a) Each Security Agent shall:
(i) subject to paragraphs (d) and (e) below, exercise or refrain from
exercising any right, power, authority or discretion vested in it as Security
Agent in accordance with any instructions given to it by the Instructing
Group; and
(ii) not be liable for any act (or omission) if it acts (or refrains from acting) in
accordance with paragraph (i) above (or, if this Agreement stipulates the
matter is a decision for any other Creditor or group of Creditors, in
accordance with instructions given to it by that Creditor or group of
Creditors).
(b) Each Security Agent shall be entitled to request instructions, or clarification of
any instruction, from the Instructing Group (or, if this Agreement stipulates the
matter is a matter or decision for any other Creditor or group of Creditors, in
accordance with instructions given to it by that Creditor or group of Creditors) as
to whether, and in what manner, it should exercise or refrain from exercising any
right, power, authority or discretion and that Security Agent may refrain from
acting unless and until it receives those instructions or that clarification.
(c) Save in the case of decisions stipulated to be a matter for any other Creditor or
group of Creditors under this Agreement and unless a contrary intention appears
in this Agreement, any instructions given to a Security Agent by the Instructing
Group shall override any conflicting instructions given by any other Parties and
will be binding on all Secured Parties.
(d) Paragraph (a) above shall not apply:
(i) where a contrary indication appears in this Agreement;
(ii) where this Agreement requires a Security Agent to act in a specified
manner or to take a specified action;
(iii) in respect of any provision which protects a Security Agent's own position
in its personal capacity as opposed to its role of Security Agent for any of
the Secured Parties including Clauses 18.7 (No duty to account) to Clause
18.12 (Exclusion of liability), Clause 18.15 (Confidentiality) to Clause
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18.22 (Custodians and nominees) and Clause 18.25 (Acceptance of title)
to Clause 18.28 (Disapplication of Trustee Acts);
(iv) in respect of the exercise of a Security Agent's discretion to exercise a
right, power or authority under any of:
(A) Clause 12 (Non-Distressed Disposals);
(B) Clause 16.1 (Order of application: NTFF Security);
(C) Clause 16.2 (Order of application: ITFF Security);
(D) Clause 16.3 (Order of application: General Security);
(E) Clause 16.6 (Prospective liabilities); and
(F) Clause 16.9 (Permitted Deductions).
(e) The Instructing Group shall not give an instruction to a Security Agent where
giving effect to that instruction would have an effect equivalent to an Intercreditor
Amendment unless the Instructing Group has obtained consent from each Party
whose consent would be required in respect of that Intercreditor Amendment. In
so giving an instruction to that Security Agent, where that instruction would have
an effect equivalent to an Intercreditor Amendment, the Instructing Group shall
expressly confirm in the instruction for the benefit of all Parties that any such
consent which would be required has been obtained. That Security Agent must
notify the Common Security Agent, and the Common Security Agent must notify
each other Party, of any instruction from the Instructing Group given under this
Clause as soon as practicable upon receiving it.
(f) In exercising any discretion to exercise a right, power or authority under the Debt
Documents where either:
(i) it has not received any instructions as to the exercise of that discretion; or
(ii) the exercise of that discretion is subject to paragraph (d)(iv) above,
the relevant Security Agent shall do so having regard to the interests of all the
Secured Parties.
(g) A Security Agent may refrain from acting in accordance with any instructions of
any Creditor or group of Creditors 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 Debt Documents and which may include payment in
advance) for any cost, loss or liability (together with any applicable VAT) which
it may incur in complying with those instructions, save in the case of instructions
in relation to the dating and delivery of any executed but undated notice to any
bank or financial institution in accordance with the terms of any Security
Documents. For the avoidance of doubt, a Security Agent so acting in relation to
instructions by a Creditor for such notices in accordance with the Security
Documents for the purpose of this provision will be indemnified pursuant to this
Agreement and/or the applicable Security Document irrespective of whether such
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notice is in conflict with an Instructing Group instruction and its actions will not
be deemed gross negligence, wilful misconduct or fraud by any Party.
18.5 Duties of the Security Agents
(a) The Security Agents' duties under the Debt Documents are solely mechanical and
administrative in nature.
(b) A TFF Security Agent shall promptly forward to the Common Security Agent
any document received by that TFF Security Agent from any Debtor under any
Debt Document, which that TFF Security Agent reasonably believes relates to
the General Security.
(c) The Common Security Agent shall promptly:
(i) forward to each Creditor Representative a copy of any document received
by the Common Security Agent from any Debtor under any Debt
Document or from any TFF Security Agent under paragraph (b) above;
and
(ii) forward to a Party the original or a copy of any document which is
delivered to the Common Security Agent for that Party by any other Party.
(d) Except where a Debt Document specifically provides otherwise, a Security Agent
is not obliged to review or check the adequacy, accuracy or completeness of any
document it forwards to another Party.
(e) Without prejudice to Clause 22.2 (Notification of prescribed events), if a Security
Agent receives notice from a Party referring to any Debt Document, describing a
Default and stating that the circumstance described is a Default, it shall promptly
notify the Creditors.
(f) To the extent that a Party (other than a Security Agent) is required to calculate a
Common Currency Amount, the Common Security Agent shall upon a request
by that Party, promptly notify that Party of that Security Agent's Spot Rate of
Exchange.
(g) Each Security Agent shall have only those duties, obligations and responsibilities
expressly specified in the Debt Documents to which it is expressed to be a party
(and no others shall be implied).
18.6 No fiduciary duties to Debtors
Nothing in this Agreement constitutes a Security Agent as an agent, trustee or fiduciary of
any Debtor.
18.7 No duty to account
No Security Agent shall be bound to account to any other Secured Party for any sum or
the profit element of any sum received by it for its own account.
18.8 Business with the New Noble Group
Each Security Agent may accept deposits from, lend money to and generally engage in
any kind of banking or other business with any member of the New Noble Group.
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18.9 Rights and discretions
(a) Each Security Agent may:
(i) rely on any representation, communication, notice or document believed
by it to be genuine, correct and appropriately authorised;
(ii) assume that:
(A) any instructions received by it from the Instructing Group, any
Creditors or any group of Creditors are duly given in accordance with
the terms of the Debt Documents;
(B) unless it has received notice of revocation, that those instructions have
not been revoked; and
(C) if it receives any instructions to act in relation to the Transaction
Security, that all applicable conditions under the Debt Documents for
so acting have been satisfied; and
(iii) rely on a certificate from any person:
(A) as to any matter of fact or circumstance which might reasonably be
expected to be within the knowledge of that person; or
(B) to the effect that such person approves of any particular dealing,
transaction, step, action or thing,
as sufficient evidence that that is the case and, in the case of paragraph (A)
above, may assume the truth and accuracy of that certificate.
(b) Each Security Agent may assume (unless it has received notice to the contrary in
its capacity as security trustee or agent for any Secured Parties) that:
(i) no Default has occurred;
(ii) any right, power, authority or discretion vested in any Party or any group
of Creditors has not been exercised; and
(iii) any notice made by Trading Co is made on behalf of and with the consent
and knowledge of all the Debtors.
(c) Each Security 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,
a Security Agent may at any time engage and pay for the services of any lawyers
to act as independent counsel to that Security Agent (and so separate from any
lawyers instructed by any Primary Creditor) if that Security Agent in its
reasonable opinion deems this to be desirable.
(e) A Security Agent may rely on the advice or services of any lawyers, accountants,
tax advisers, surveyors or other professional advisers or experts (whether
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obtained by that Security Agent or by any other Party) and shall not be liable for
any damages, costs or losses to any person, any diminution in value or any
liability whatsoever arising as a result of its so relying.
(f) A Security Agent, any Receiver and any Delegate may act in relation to the Debt
Documents and the Security Property through its officers, employees and agents
and shall not:
(i) be liable for any error of judgment made by any such person; or
(ii) be bound to supervise, or be in any way responsible for any loss incurred
by reason of misconduct, omission or default on the part of any such
person,
unless such error or such loss was directly caused by that Security Agent's,
Receiver's or Delegate's gross negligence or wilful misconduct.
(g) Unless this Agreement expressly specifies otherwise, a Security Agent may
disclose to any other Party any information it reasonably believes it has received
as security trustee or agent under this Agreement.
(h) Notwithstanding any other provision of any Debt Document to the contrary, a
Security Agent is not obliged to do or omit to do anything if it would, or might in
its reasonable opinion, constitute a breach of any law or regulation or a breach of
a fiduciary duty or duty of confidentiality.
(i) Notwithstanding any provision of any Debt Document to the contrary, a Security
Agent is not obliged to expend or risk its own funds or otherwise incur any
financial liability in the performance of its duties, obligations or responsibilities
or the exercise of any right, power, authority or discretion if it has grounds for
believing the repayment of such funds or adequate indemnity against, or security
for, such risk or liability is not reasonably assured to it.
18.10 Responsibility for documentation
No Security Agent nor any Receiver or any Delegate is responsible or liable for:
(a) the adequacy, accuracy or completeness of any information (whether oral or
written) supplied by that Security Agent, a Debtor or any other person in or in
connection with any Debt Document or the transactions contemplated in the Debt
Documents or any other agreement, arrangement or document entered into, made
or executed in anticipation of, under or in connection with any Debt Document;
or
(b) the legality, validity, effectiveness, adequacy or enforceability of any Debt
Document, the Security Property or any other agreement, arrangement or
document entered into, made or executed in anticipation of, under or in
connection with any Debt Document or the Security Property; or
(c) any determination as to whether any information provided or to be provided to
any Secured Party is non-public information the use of which may be regulated
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or prohibited by applicable law or regulation relating to insider dealing or
otherwise.
18.11 No duty to monitor
No Security Agent shall 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 Debt Document; or
(c) whether any other event specified in any Debt Document has occurred.
18.12 Exclusion of liability
(a) Without limiting paragraph (b) below (and without prejudice to any other
provision of any Debt Document excluding or limiting the liability of a Security
Agent, any Receiver or Delegate), no Security Agent nor any Receiver or any
Delegate will 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 Debt Document or the Security
Property 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 Debt Document, the Security Property
or any other agreement, arrangement or document entered into, made or
executed in anticipation of, under or in connection with, any Debt
Document or the Security Property;
(iii) any shortfall which arises on the enforcement or realisation of the Security
Property; or
(iv) without prejudice to the generality of paragraphs (i) to (iii) above, any
damages, costs, losses, any diminution in value or any liability whatsoever
arising as a result of:
(A) any act, event or circumstance not reasonably within its control; or
(B) the general risks of investment in, or the holding of assets in, any
jurisdiction,
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; 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.
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(b) No Party (other than that Security Agent, that Receiver or that Delegate (as
applicable)) may take any proceedings against any officer, employee or agent of
a Security Agent, a Receiver or a Delegate in respect of any claim it might have
against that Security Agent, a Receiver or a Delegate or in respect of any act or
omission of any kind by that officer, employee or agent in relation to any Debt
Document or any Security Property and any officer, employee or agent of a
Security Agent, a Receiver or a Delegate may rely on this Clause subject to
Clause 1.3 (Third party rights) and the provisions of the Third Parties Act.
(c) Nothing in this Agreement shall oblige a Security Agent to carry out:
(i) any "know your customer" or other checks in relation to any person; or
(ii) any check on the extent to which any transaction contemplated by this
Agreement might be unlawful for any Primary Creditor,
on behalf of any Primary Creditor and each Primary Creditor confirms to the
relevant Security 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 that Security Agent.
(d) Without prejudice to any provision of any Debt Document excluding or limiting
the liability of a Security Agent, any Receiver or Delegate, any liability of a
Security Agent, any Receiver or Delegate arising under or in connection with any
Debt Document or the Security Property shall be limited to the amount of actual
loss which has been finally judicially determined to have been suffered (as
determined by reference to the date of default of that Security Agent, Receiver or
Delegate (as the case may be) 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 that Security Agent, Receiver or Delegate (as the case
may be) at any time which increase the amount of that loss. In no event shall a
Security Agent, any Receiver or Delegate be liable for any loss of profits,
goodwill, reputation, business opportunity or anticipated saving, or for special,
punitive, indirect or consequential damages, whether or not that Security Agent,
Receiver or Delegate (as the case may be) has been advised of the possibility of
such loss or damages.
18.13 Creditors' indemnity to each Security Agent
(a) Each Trading Co Creditor (other than the relevant Creditor Representatives) shall
(in the proportion that the Liabilities due to it bear to the aggregate of the
Liabilities due to all the Trading Co Creditors for the time being (or, if the
Liabilities due to the Trading Co Creditors are zero, immediately prior to their
being reduced to zero)), indemnify each Security Agent and every Receiver and
every Delegate, within three Business Days of demand, against any cost, loss or
liability properly incurred by any of them (otherwise than by reason of the
relevant Security Agent's, Receiver's or Delegate's gross negligence or wilful
misconduct) in acting as Security Agent, Receiver or Delegate under, or
exercising any authority conferred under, the Debt Documents (unless the
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relevant Security Agent, Receiver or Delegate has been reimbursed by a Debtor
pursuant to a Debt Document).
(b) Subject to paragraph (c) below, Trading Co shall immediately on demand
reimburse any Trading Co Creditor for any payment that Trading Co Creditor
makes to a Security Agent pursuant to paragraph (a) above.
(c) Paragraph (c) above shall not apply to the extent that the indemnity payment in
respect of which the Trading Co Creditor claims reimbursement relates to a
liability of the relevant Security Agent to a Debtor.
18.14 Resignation of a Security Agent
(a) A Security Agent may resign and appoint one of its Affiliates as successor by
giving notice to the Primary Creditors and Trading Co.
(b) Alternatively a Security Agent may resign by giving 30 days' notice to the
Primary Creditors and Trading Co, in which case the Instructing Group may
appoint a successor Security Agent in its place.
(c) If the Instructing Group has not appointed a successor Security Agent in
accordance with paragraph (b) above within 20 days after notice of resignation
was given, the retiring Security Agent (after consultation with the Creditor
Representatives) may appoint a successor Security Agent in its place.
(d) A retiring Security Agent shall, at its own cost, make available to the successor
Security Agent such documents and records and provide such assistance as the
successor Security Agent may reasonably request for the purposes of performing
its functions as Security Agent under the Debt Documents.
(e) A Security Agent's resignation notice shall only take effect upon:
(i) the appointment of a successor; and
(ii) the transfer of all the relevant Security Property to that successor.
(f) Upon the appointment of a successor, a Security Agent shall be discharged from
any further obligation in respect of the Debt Documents (other than its obligations
under paragraph (b) of Clause 18.26 (Winding up of trusts) and paragraph (d)
above) but shall remain entitled to the benefit of this Clause 18 and Clause 21.1
(Indemnity to the Security Agents) (and any Security Agent fees for the account
of the retiring Security Agent shall cease to accrue from (and shall be payable on)
that date). Any successor and each of the other Parties shall have the same rights
and obligations amongst themselves as they would have had if that successor had
been an original Party.
(g) The Instructing Group may, by notice to a Security Agent, require it to resign in
accordance with paragraph (b) above. In this event, the relevant Security Agent
shall resign in accordance with paragraph (b) above but the cost referred to in
paragraph (d) above shall be for the account of Trading Co.
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18.15 Confidentiality
(a) In acting as trustee or agent for the relevant Secured Parties, each Security Agent
(as relevant) shall be regarded as acting through its trustee division which shall
be treated as a separate entity from any other of its divisions or departments.
(b) If information is received by another division or department of a Security Agent,
it may be treated as confidential to that division or department and that Security
Agent shall not be deemed to have notice of it.
(c) Notwithstanding any other provision of any Debt Document to the contrary, a
Security Agent is not obliged to disclose to any other person (i) any confidential
information or (ii) any other information if the disclosure would, or might in its
reasonable opinion, constitute a breach of any law or regulation or a breach of a
fiduciary duty.
18.16 Information and cooperation
Each Creditor shall supply each Agent, and each Agent shall supply each other Agent,
with any information that the Agent (or the other Agent, with respect to sharing of
information between Agents) may reasonably specify as being necessary or desirable to
enable each Agent to perform its functions as such.
18.17 Credit appraisal by the Secured Parties
Without affecting the responsibility of any Debtor for information supplied by it or on its
behalf in connection with any Debt Document, each Secured Party confirms to each
Security 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 Debt Document including but not limited to:
(a) the financial condition, status and nature of each member of the New Noble
Group;
(b) the legality, validity, effectiveness, adequacy or enforceability of any Debt
Document, the Security Property and any other agreement, arrangement or
document entered into, made or executed in anticipation of, under or in
connection with any Debt Document or the Security Property;
(c) whether that Secured Party has recourse, and the nature and extent of that
recourse, against any Party or any of its respective assets under or in connection
with any Debt Document, the Security Property, the transactions contemplated
by the Debt Documents or any other agreement, arrangement or document
entered into, made or executed in anticipation of, under or in connection with any
Debt Document or the Security Property;
(d) the adequacy, accuracy or completeness of any information provided by any
Security Agent, any Party or by any other person under or in connection with any
Debt Document, the transactions contemplated by any Debt Document or any
other agreement, arrangement or document entered into, made or executed in
anticipation of, under or in connection with any Debt Document; and
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(e) the right or title of any person in or to, or the value or sufficiency of any part of
the Charged Property, the priority of any of the Transaction Security or the
existence of any Security affecting the Charged Property.
18.18 Security Agent's management time and additional remuneration
(a) Any amount payable to a Security Agent under Clause 18.13 (Creditors'
indemnity to each Security Agent) or to any Security Agent under Clause 20
(Costs and Expenses) or Clause 21.1 (Indemnity to the Security Agents) shall
include the cost of utilising such Security Agent's management time or other
resources and will be calculated on the basis of such reasonable daily or hourly
rates as such Security Agent may notify to Trading Co or in accordance with a
Fee Letter, and is in addition to any other fee paid or payable to that Security
Agent.
(b) Without prejudice to paragraph (a) above, in the event of:
(i) a Default; or
(ii) a Security Agent being requested by a Debtor or the Instructing Group to
undertake duties which that Security Agent and Trading Co agree to be of
an exceptional nature or outside the scope of the normal duties of that
Security Agent under the Debt Documents; or
(iii) a Security Agent and Trading Co agreeing that it is otherwise appropriate
in the circumstances,
Trading Co shall pay or procure that a member of the Trading Co Group pays to
that Security Agent any additional remuneration (together with any applicable
VAT) that may be agreed between them or determined pursuant to paragraph (c)
below.
(c) If a Security Agent and Trading Co fail to agree upon the nature of the duties or
upon the additional remuneration referred to in paragraph (b) above or whether
additional remuneration is appropriate in the circumstances, any dispute shall be
determined by an investment bank (acting as an expert and not as an arbitrator)
selected by that Security Agent and approved by Trading Co or, failing approval,
nominated (on the application of that Security Agent) by the President for the
time being of the Law Society of England and Wales (the costs of the nomination
and of the investment bank being payable by Trading Co or any member of the
Trading Co Group procured by Trading Co to pay) and the determination of any
investment bank shall be final and binding upon the Parties.
18.19 Reliance and engagement letters
A Security Agent may obtain and rely on any certificate or report from any Debtor's auditor
and may enter into any reliance letter or engagement letter relating to that certificate or
report on such terms as it may consider appropriate (including, without limitation,
restrictions on the auditor's liability and the extent to which that certificate or report may
be relied on or disclosed).
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18.20 No responsibility to perfect Transaction Security
A Security Agent shall not be liable for any failure to:
(a) require the deposit with it of any deed or document certifying, representing or
constituting the title of any Debtor to any of the Charged Property;
(b) obtain any licence, consent or other authority for the execution, delivery, legality,
validity, enforceability or admissibility in evidence of any Debt Document or the
Transaction Security;
(c) register, file or record or otherwise protect any of the Transaction Security (or the
priority of any of the Transaction Security) under any law or regulation or to give
notice to any person of the execution of any Debt Document or of the Transaction
Security;
(d) take, or to require any Debtor to take, any step to perfect its title to any of the
Charged Property or to render the Transaction Security effective or to secure the
creation of any ancillary Security under any law or regulation; or
(e) require any further assurance in relation to any Security Document.
18.21 Insurance by Security Agent
(a) A Security Agent shall not be obliged:
(i) to insure any of the Charged Property;
(ii) to require any other person to maintain any insurance; or
(iii) to verify any obligation to arrange or maintain insurance contained in any
Debt Document,
and that Security Agent shall not be liable for any damages, costs or losses to any
person as a result of the lack of, or inadequacy of, any such insurance.
(b) Where a Security Agent is named on any insurance policy as an insured party, it
shall not be liable for any damages, costs or losses to any person as a result of its
failure to notify the insurers of any material fact relating to the risk assumed by
such insurers or any other information of any kind, unless the Instructing Group
(or such other Creditor or group of Creditors as may be entitled to do so) requests
it to do so in writing and that Security Agent fails to do so within fourteen days
after receipt of that request.
18.22 Custodians and nominees
A Security Agent may appoint and pay any person to act as a custodian or nominee on any
terms in relation to any asset of the trusts as that Security Agent may determine, including
for the purpose of depositing with a custodian this Agreement or any document relating to
the trusts created under this Agreement and that Security Agent shall not be responsible
for any loss, liability, expense, demand, cost, claim or proceedings incurred by reason of
the misconduct, omission or default on the part of any person appointed by it under this
Agreement or be bound to supervise the proceedings or acts of any person.
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18.23 Delegation by the Security Agents
(a) Each of the Security Agents, any Receiver and any Delegate may, at any time,
delegate by power of attorney or otherwise to any person for any period, all or
any right, power, authority or discretion vested in it in its capacity as such.
(b) That delegation may be made upon any terms and conditions (including the power
to sub-delegate) and subject to any restrictions that the relevant Security Agent,
that Receiver or that Delegate (as the case may be) may, in its discretion, think
fit in the interests of the Secured Parties.
(c) No Security Agent, Receiver or Delegate shall be bound to supervise, or be in
any way responsible for any damages, costs or losses incurred by reason of any
misconduct, omission or default on the part of, any such delegate or sub-delegate.
18.24 Additional Security Agents
(a) A Security Agent may at any time appoint (and subsequently remove) any person
to act as a separate trustee or as a co-trustee jointly with it:
(i) if it considers that appointment to be in the interests of the Secured Parties;
(ii) for the purposes of conforming to any legal requirement, restriction or
condition which that Security Agent deems to be relevant; or
(iii) for obtaining or enforcing any judgment in any jurisdiction,
and that Security Agent shall give prior notice to Trading Co and the Creditors of
that appointment.
(b) Any person so appointed shall have the rights, powers, authorities and discretions
(not exceeding those given to the relevant Security Agent under or in connection
with the Debt Documents) and the duties, obligations and responsibilities that are
given or imposed by the instrument of appointment.
(c) The remuneration that the relevant Security Agent may pay to that person, and
any costs and expenses (together with any applicable VAT) incurred by that
person in performing its functions pursuant to that appointment shall, for the
purposes of this Agreement, be treated as costs and expenses incurred by the
relevant Security Agent.
18.25 Acceptance of title
A Security Agent shall be entitled to accept without enquiry, and shall not be obliged to
investigate, any right and title that any Debtor may have to any of the Charged Property
and shall not be liable for, or bound to require any Debtor to remedy, any defect in its right
or title.
18.26 Winding up of trusts
If the Common Security Agent, with the approval of each Creditor Representative,
determines that:
(a) all of the Secured Obligations and all other obligations secured by the Security
Documents have been fully and finally discharged; and
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(b) no Secured Party is under any commitment, obligation or liability (actual or
contingent) to make advances or provide other financial accommodation to any
Debtor pursuant to the Debt Documents,
then:
(i) the trusts set out in this Agreement shall be wound up and each Security
Agent shall release, without recourse or warranty, all of the Transaction
Security and the rights of each Security Agent under each of the Security
Documents; and
(ii) any Security Agent which has resigned pursuant to Clause 18.14
(Resignation of a Security Agent) shall release, without recourse or
warranty, all of its rights under each Security Document.
18.27 Powers supplemental to Trustee Acts
The rights, powers, authorities and discretions given to the Security Agents under or in
connection with the Debt Documents shall be supplemental to the Trustee Act 1925 and
the Trustee Act 2000 and in addition to any which may be vested in the Security Agents
by law or regulation or otherwise.
18.28 Disapplication of Trustee Acts
Section 1 of the Trustee Act 2000 shall not apply to the duties of a Security Agent in
relation to the trusts constituted by this Agreement. Where there are any inconsistencies
between the Trustee Act 1925 or the Trustee Act 2000 and the provisions of this
Agreement, the provisions of this Agreement shall, to the extent permitted by law and
regulation, prevail and, in the case of any inconsistency with the Trustee Act 2000, the
provisions of this Agreement shall constitute a restriction or exclusion for the purposes of
that Act.
18.29 Intra-Group Lenders, Subordinated Creditors and Debtors: Power of Attorney
(a) Each Intra-Group Lender, Debtor and Subordinated Creditor by way of security
for its obligations under this Agreement irrevocably appoints each Security Agent
jointly and severally to be its attorney to do anything which that Intra-Group
Lender, Debtor or Subordinated Creditor has authorised that Security Agent or
any other Party to do under this Agreement or is itself required to do under this
Agreement but has failed to do (and each Security Agent may delegate that power
on such terms as it sees fit).
(b) The powers conferred on each Security Agent pursuant to paragraph (a) above
shall only be exercisable by that Security Agent:
(i) on and at any time after an Acceleration Event; or
(ii) following any failure by any Intra-Group Lender, Debtor or Subordinated
Creditor (as applicable) to comply with any of its obligations under this
this Agreement, within five Business Days after written notification by
the relevant Security Agent to that Intra-Group Lender, Debtor or
Subordinated Creditor.
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18.30 Appointment by Secured Parties – other laws
Each Secured Party (other than the Security Agents) grants full power to each Security
Agent so that each Security Agent, acting through a duly appointed representative, may
exercise, in the name and instead of each Secured Party the following faculties:
(a) to appear before a notary public and accept any type of guarantee or security,
whether personal or real, granted in favour of the Secured Parties (whether in its
own capacity or as agent of other parties) over any and all assets (as for instance
and without limitation, shares, rights, receivables, goods and chattels), fixing
their price for the purposes of an auction and the address for serving of notices
and submitting to the jurisdiction of law courts by waiving its own forum, and
release such guarantees or security, all of the foregoing under the terms and
conditions which the attorney may freely agree;
(b) to execute and/or do any and all deeds, documents, acts and things, required in
connection with the execution of the Security Documents, and/or the execution
of any further notarial deed of amendment that may be required for the purpose
or in connection with the faculties granted in this Clause 18.30; and
(c) to execute in the name of any of the Secured Parties (whether in its own capacity
or as agent of other parties) any novation, amendment or ratification to any
Finance Document permitted to be made by the terms of this Agreement and
appear before a notary public and raise into the status of a public document such
documents.
19. CHANGES TO THE PARTIES
19.1 Assignments and transfers
No Party may:
(a) assign any of its rights; or
(b) transfer any of its rights and obligations,
in respect of any Debt Documents or the Liabilities except as permitted by this Clause 19.
19.2 Change of Creditor
A Creditor may:
(a) assign any of its rights; or
(b) transfer by novation any of its rights and obligations,
in respect of any Debt Documents or the Liabilities if:
(i) that assignment or transfer is in accordance with the terms of the Debt
Documents to which it is a party;
(ii) any assignee or transferee has (if not already a Party as a Creditor)
acceded to this Agreement pursuant to Clause 19.4 (Creditor Accession
Undertaking) in the same capacity as the assigning or transferring
Creditor.
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(c) A creditor transfer and assignment fee of US$5,000 will be payable to the relevant
Common Security Agent by each new Primary Creditor acceding to this
Agreement.
19.3 New Intra-Group Lender or Subordinated Creditor
(a) If any Intra-Group Lender or any member of the Trading Co Group makes, or
permits to remain outstanding, any loan to or grants any credit to or makes any
other financial arrangement having similar effect with any Debtor or any other
member of the Trading Co Group, to the extent required under the Debt
Documents, Trading Co will procure that the person giving that loan, granting
that credit or making that other financial arrangement (if not already a Party as
an Intra-Group Lender) accedes to this Agreement as an Intra-Group Lender,
pursuant to Clause 19.4 (Creditor Accession Undertaking).
(b) If any member of the Trading Hold Co Group incurs, or permits to remain
outstanding, any Subordinated Liabilities, New Noble will procure that the person
giving that loan, granting that credit or making that other financial arrangement
(if not already a Party as a Subordinated Creditor) accedes to this Agreement as
a Subordinated Creditor, pursuant to Clause 19.4 (Creditor Accession
Undertaking).
19.4 Creditor Accession Undertaking
With effect from the date of acceptance by the Common Security Agent of a Creditor
Accession Undertaking duly executed and delivered to the Common Security Agent by the
relevant acceding party or, if later, the date specified in that Creditor Accession
Undertaking:
(a) any Party ceasing entirely to be a Creditor shall be discharged from further
obligations towards the Common Security Agent and other Parties under this
Agreement and their respective rights against one another shall be cancelled
(except in each case for those rights which arose prior to that date); and
(b) as from that date, the replacement or new Creditor shall assume the same
obligations and become entitled to the same rights, as if it had been an original
Party in the capacity specified in the Creditor Accession Undertaking.
19.5 New Debtor
(a) If any member of the Trading Hold Co Group:
(i) incurs any Liabilities; or
(ii) gives any Security, guarantee, indemnity or other assurance against loss
in respect of any of the Liabilities,
the Debtors will procure that the person incurring those Liabilities or giving that
assurance accedes to this Agreement as a Debtor, in accordance with paragraph
(b) below, no later than contemporaneously with the incurrence of those
Liabilities or the giving of that assurance.
(b) With effect from the date of acceptance by the Common Security Agent of a
Debtor Accession Deed duly executed and delivered to the Common Security
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Agent by the new Debtor or, if later, the date specified in the Debtor Accession
Deed, the new Debtor shall assume the same obligations and become entitled to
the same rights as if it had been an original Party as a Debtor.
19.6 Additional parties
Each of the Parties appoints the Common Security Agent to receive on its behalf each
Debtor Accession Deed and Creditor Accession Undertaking delivered to the Common
Security Agent and the Common Security Agent shall, as soon as reasonably practicable
after receipt by it, sign and accept the same if it appears on its face to have been completed,
executed and, where applicable, delivered in the form contemplated by this Agreement.
The Common Security Agent is not obliged to execute a Debtor Accession Deed or a
Creditor Accession Undertaking until it has satisfactorily completed all necessary "know
your customer" checks as may be required by regulation and law in relation to the acceding
party.
19.7 Resignation of a Debtor
(a) Trading Co may request that a Debtor ceases to be a Debtor by delivering to the
Common Security Agent a Debtor Resignation Request.
(b) The Common Security Agent shall accept a Debtor Resignation Request and
notify Trading Co and each other Party of its acceptance if:
(i) Trading Co has confirmed that no Default is continuing or would result
from the acceptance of the Debtor Resignation Request;
(ii) to the extent that the NTFF Discharge Date has not occurred, the NTFF
Agent notifies the Common Security Agent that that Debtor is under no
actual or contingent obligations in respect of the NTFF Liabilities and that
such resignation is permitted under the NTFF Finance Documents;
(iii) to the extent that the ITFF Discharge Date has not occurred, the ITFF
Agent notifies the Common Security Agent that that Debtor is under no
actual or contingent obligations in respect of the ITFF Liabilities and that
such resignation is permitted under the ITFF Finance Documents;
(iv) to the extent that the Pari Passu Debt Discharge Date has not occurred,
the relevant Creditor Representative for the Pari Passu Debt Creditors
notifies the Common Security Agent that that Debtor is under no actual
or contingent obligations in respect of the Pari Passu Debt Liabilities; and
(v) Trading Co confirms that that Debtor is under no actual or contingent
obligations in respect of the Intra-Group Liabilities or Subordinated
Liabilities, and is not a creditor in respect of any Intra-Group Liabilities.
(c) Upon notification by the Common Security Agent to Trading Co of its acceptance
of the resignation of a Debtor, that member of the Trading Co Group shall cease
to be a Debtor and shall have no further rights or obligations under this
Agreement as a Debtor.
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20. COSTS AND EXPENSES
20.1 Transaction expenses
Trading Co shall, promptly on demand, pay each Security Agent the amount of all costs
and expenses (including legal fees) (together with any applicable VAT) properly incurred
by that Security Agent and by any Receiver or Delegate in connection with the negotiation,
preparation, printing, execution and perfection of:
(a) this Agreement and any other documents referred to in this Agreement and the
Transaction Security; and
(b) any other Debt Documents executed after the date of this Agreement.
20.2 Amendment costs
If a Debtor requests an amendment, waiver or consent, Trading Co shall, within three
Business Days of demand, reimburse each Security Agent for the amount of all costs and
expenses (including legal fees) (together with any applicable VAT) properly incurred by
that Security Agent (and by any Receiver or Delegate) in responding to, evaluating,
negotiating or complying with that request or requirement.
20.3 Enforcement and preservation costs
Trading Co shall, within three Business Days of demand, pay to a Security Agent the
amount of all costs and expenses (including legal fees and together with any applicable
VAT) incurred by it in connection with the enforcement of or the preservation of any rights
under any Debt Document and the Transaction Security and any proceedings instituted by
or against that Security Agent as a consequence of taking or holding the Transaction
Security or enforcing these rights.
20.4 Stamp taxes
Trading Co shall pay and, within three Business Days of demand, indemnify each Security
Agent against any cost, loss or liability that Security Agent incurs in relation to all stamp
duty, registration and other similar Taxes payable in respect of any Debt Document.
20.5 Interest on demand
If any Creditor or Debtor fails to pay any amount payable by it under this Agreement on
its due date and such amount does not accrue default interest under the terms of any other
Debt Document, interest shall accrue on the overdue amount (and be compounded with it)
from the due date up to the date of actual payment (both before and after judgment and to
the extent interest at a default rate is not otherwise being paid on that sum) at the rate which
is two per cent. per annum over the rate at which the relevant Security Agent would be
able to obtain by placing on deposit with a leading bank an amount comparable to the
unpaid amounts in the currencies of those amounts for any period(s) that that Security
Agent may from time to time select provided that if any such rate is below zero, that rate
will be deemed to be zero.
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21. OTHER INDEMNITIES
21.1 Indemnity to the Security Agents
(a) Each Debtor jointly and severally shall promptly indemnify each Security Agent
and every Receiver and Delegate against any cost, loss or liability (together with
any applicable VAT) incurred by any of them as a result of:
(i) any failure by Trading Co to comply with its obligations under Clause 20
(Costs and Expenses);
(ii) acting or relying on any notice, request or instruction which it reasonably
believes to be genuine, correct and appropriately authorised;
(iii) the taking, holding, protection or enforcement of the Transaction Security;
(iv) the exercise of any of the rights, powers, discretions, authorities and
remedies vested in that Security Agent, each Receiver and each Delegate
by the Debt Documents or by law;
(v) any default by any Debtor in the performance of any of the obligations
expressed to be assumed by it in the Debt Documents;
(vi) instructing lawyers, accountants, tax advisers, surveyors, a Financial
Adviser or other professional advisers or experts as permitted under this
Agreement; or
(vii) acting as Security Agent, Receiver or Delegate under the Debt Documents
or which otherwise relates to any of the Security Property (otherwise, in
each case, than by reason of the relevant Security Agent's, Receiver's or
Delegate's gross negligence or wilful misconduct).
(b) Each Debtor expressly acknowledges and agrees that the continuation of its
indemnity obligations under this Clause 21.1 will not be prejudiced by any
release or disposal under Clause 13 (Distressed Disposals and Appropriation)
taking into account the operation of that Clause 13.
(c) Each Security Agent and every Receiver and Delegate may, in priority to any
payment to the Secured Parties, indemnify itself out of the Charged Property held
by it in respect of, and pay and retain, all sums necessary to give effect to the
indemnity in this Clause 21.1 and shall have a lien on the Transaction Security
held by it and the proceeds of the enforcement of that Transaction Security for all
moneys payable to it.
21.2 Trading Co's indemnity to Creditors
Trading Co shall promptly and as principal obligor indemnify each Primary Creditor
against any cost, loss or liability (together with any applicable VAT), whether or not
reasonably foreseeable, incurred by any of them in relation to or arising out of the
operation of Clause 13 (Distressed Disposals and Appropriation).
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22. INFORMATION
22.1 Disclosure between Creditors and Security Agents
(a) Notwithstanding any agreement to the contrary, each of the Debtors consents,
until the Final Discharge Date, to the disclosure by any Creditor and any Security
Agent to each other of such information concerning the Debtors as any Creditor
or Security Agent shall see fit.
(b) Paragraph (a) above is subject to any confidentiality obligations agreed by any
Creditor and any Security Agent in any of the Debt Documents. Each Party
acknowledges that certain information, including (but not limited to) any
Administrative Party Confidential Information (as defined in each of the Original
ITFF Agreement and the Original NTFF Agreement), may not be disclosed
except as expressly provided for in the relevant Debt Document.
22.2 Notification of prescribed events
(a) To the extent required under the relevant Debt Document, each Debtor shall
promptly notify the Common Security Agent promptly upon becoming aware that
an Event of Default has occurred or ceased to be continuing (including the
relevant fact and that it is or was an Event of Default) and the Common Security
Agent shall, upon receiving that notification, notify each Creditor Representative
of the same.
(b) Other than in the circumstances set out in paragraph (a) above, if a Creditor
Representative is notified that an Event of Default has occurred or ceased to be
continuing (and the notification refers to the relevant fact and that it is or was an
Event of Default), that Creditor Representative shall promptly notify the
Common Security Agent and the Common Security Agent shall, upon receiving
that notification, notify each other Creditor Representative, Trading Co and Asset
Co of the same.
(c) If an NTFF FB Payment Default either occurs or ceases to be continuing the
relevant NTFF Fronting Bank shall notify the Common Security Agent and the
Common Security Agent shall, upon receiving that notification, notify each other
Party.
(d) If an Acceleration Event occurs the relevant Creditor Representative in respect of
those Liabilities shall notify the Common Security Agent and the Common
Security Agent shall, upon receiving that notification, notify each other Party.
(e) If a Security Agent enforces, or takes formal steps to enforce, any of the
Transaction Security it shall notify each Party of that action.
(f) If any Primary Creditor exercises any right it may have to enforce, or to take
formal steps to enforce, any of the Transaction Security it shall notify the
Common Security Agent and the Common Security Agent shall, upon receiving
that notification, notify each Party of that action.
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23. NOTICES
23.1 Communications in writing
Any communication to be made under or in connection with this Agreement or any
Security Document shall be made in writing and, unless otherwise stated, may be made by
fax, electronic communication or letter.
23.2 Security Agents' communications with Creditors
(a) The Common Security Agent shall be entitled to carry out all dealings:
(i) with each NTFF Creditor, through the NTFF Agent;
(ii) with each ITFF Creditor, through the ITFF Agent;
(iii) with each Trading Co Bond Creditor, through the Trading Co Bond
Trustee;
(iv) with each Trading Hold Co Bond Creditor, through the Trading Hold Co
Bond Trustee; and
(v) with each Pari Passu Debt Creditor (which is not a Trading Hold Co Bond
Creditor), through its relevant Creditor Representative.
(b) Each other Security Agent shall be entitled to carry out all dealings with other
parties through the Common Security Agent.
23.3 Addresses
The address and fax number (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 this Agreement or any Security Document
is:
(a) in the case of Trading Co or any other Debtor, that identified with the name of
Trading Co below;
(b) in the case of a Security Agent, that identified with its name below; and
(c) in the case of each other Party, that notified in writing to the Common Security
Agent on or prior to the date on which it becomes a Party,
or any substitute address, fax number or department or officer which that Party may notify
to the Common Security Agent (or the Common Security Agent may notify to the other
Parties, if a change is made by the Common Security Agent) by not less than five Business
Days' notice.
23.4 Delivery
(a) Any communication or document made or delivered by one person to another
under or in connection with this Agreement or any Security Document will only
be effective:
(i) if by way of fax, when received in legible form; or
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(ii) 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 23.3 (Addresses), if addressed to that department or
officer.
(b) Any communication or document to be made or delivered to a Security Agent
will be effective only when actually received by that Security Agent and then
only if it is expressly marked for the attention of the department or officer
identified with the relevant Security Agent's signature below (or any substitute
department or officer as that Security Agent shall specify for this purpose).
(c) Any communication or document made or delivered to Trading Co in accordance
with this Clause 23.4 will be deemed to have been made or delivered to each of
the Debtors.
(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.
23.5 Notification of address and fax number
Promptly upon receipt of notification of an address and fax number or change of address
or fax number pursuant to Clause 23.3 (Addresses) or changing its own address or fax
number, the Common Security Agent shall notify the other Parties.
23.6 Electronic communication
(a) Any communication to be made between any two Parties under or in connection
with this Agreement or any Security Document 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 as specified in paragraph (a) above made
between any two Parties will be effective only when actually received (or made
available) in readable form and in the case of any electronic communication made
by a Party to a Security Agent only if it is addressed in such a manner as that
Security Agent shall specify for this purpose.
(c) Any electronic communication which becomes effective, in accordance with
paragraph (c) above, after 5:00 p.m. in the place in which the Party to whom the
relevant communication is sent or made available has its address for the purpose
of this Agreement or any Security Document shall be deemed only to become
effective on the following day.
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(d) Any reference in this Agreement or any Security Document to a communication
being sent or received shall be construed to include that communication being
made available in accordance with this Clause 23.6.
23.7 English language
(a) Any notice given under or in connection with this Agreement or any Security
Document must be in English.
(b) All other documents provided under or in connection with this Agreement or any
Security Document must be:
(i) in English; or
(ii) if not in English, and if so required by the relevant Security 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.
24. PRESERVATION
24.1 Partial invalidity
If, at any time, any provision of a Debt 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
that provision under the law of any other jurisdiction will in any way be affected or
impaired.
24.2 No impairment
If any provision of a Debt Document is not binding on or enforceable in accordance with
its terms against a Party, neither the binding nature nor the enforceability of that provision
or any other provision of that Debt Documents will be impaired as against the other parties
to that Debt Document.
24.3 Remedies and waivers
No failure to exercise, nor any delay in exercising, on the part of any Party, any right or
remedy under a Debt Document shall operate as a waiver of any such right or remedy or
constitute an election to affirm such Debt Document. No election to affirm any Debt
Document on the part of a 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 Debt
Document are cumulative and not exclusive of any rights or remedies provided by law.
24.4 Waiver of defences
The provisions of this Agreement or any Transaction Security will not be affected by an
act, omission, matter or thing which, but for this Clause 24.4, would reduce, release or
prejudice the subordination and priorities expressed to be created by this Agreement
including (without limitation and whether or not known to any Party):
(a) any time, waiver or consent granted to, or composition with, any Debtor or other
person;
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(b) the release of any Debtor or any other person under the terms of any composition
or arrangement with any creditor of any member of the New Noble Group;
(c) the taking, variation, compromise, exchange, renewal or release of, or refusal or
neglect to perfect, take up or enforce, any rights against, or security over assets
of, any Debtor or other person or any non-presentation or non-observance of any
formality or other requirement in respect of any instrument or any failure to
realise the full value of any Security;
(d) any incapacity or lack of power, authority or legal personality of or dissolution
or change in the members or status of any Debtor or other person;
(e) any amendment, novation, supplement, extension (whether of maturity or
otherwise) or restatement (in each case, however fundamental and of whatsoever
nature, and whether or not more onerous) or replacement of a Debt Document or
any other document or security;
(f) any unenforceability, illegality or invalidity of any obligation of any person under
any Debt Document or any other document or security;
(g) any intermediate Payment of any of the Liabilities owing to the Creditors in whole
or in part; or
(h) any insolvency or similar proceedings.
24.5 Priorities not affected
Except as otherwise provided in this Agreement, the priorities referred to in Clause 2
(Priority) will:
(a) not be affected by any reduction or increase in the principal amount secured by
the Transaction Security in respect of the Liabilities owing to the Creditors or by
any intermediate reduction or increase in, amendment or variation to any of the
Debt Documents, or by any variation or satisfaction of, any of the Liabilities or
any other circumstances;
(b) apply regardless of the order in which or dates upon which this Agreement and
the other Debt Documents are executed or registered or notice of them is given
to any person; and
(c) secure the Liabilities owing to the Creditors in the order specified, regardless of
the date upon which any of the Liabilities arise or of any fluctuations in the
amount of any of the Liabilities outstanding.
25. CONSENTS, AMENDMENTS AND OVERRIDE
25.1 Amendments
(a) Subject to paragraph (b) below, this Agreement may be amended or waived only
with the consent of the NTFF Agent and NTFF Fronting Banks, the ITFF Agent
and ITFF Fronting Bank (which consent shall only be required to the extent that
the right of any of the ITFF Creditors are adversely affected by such amendment
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or waiver), the Trading Co Bond Trustee, the Trading Hold Co Bond Trustee,
Asset Co and the Common Security Agent.
(b) This Agreement may be amended in order to facilitate the inclusion of additional
trade finance facility providers (and related administrative parties) as Secured
Parties in respect of the General Security only (for the purposes of this paragraph
(b), the "Additional TFF Creditors"), with the consent of the NTFF Agent, the
ITFF Agent, the Trading Co Bond Trustee and the Common Security Agent,
provided that:
(i) if the General Security will rank or secure any liabilities owed to the
Additional TFF Creditors at the same level of priority as, or at a superior
level of priority to, the TFF Creditors, the consent of each NTFF Fronting
Bank and each ITFF Fronting Bank shall also be required; and
(ii) unless otherwise agreed with each NTFF Fronting Bank, the Majority
NTFF Participants, the Majority ITFF Participants and the Trading Co
Bond Trustee, the Additional TFF Creditors shall not:
(A) be permitted to take any Enforcement Action against any Debtor or
in respect of any of the liabilities owed to any of them by any Debtor;
or
(B) have any right to instruct the Common Security Agent (whether as
part of an Instructing Group or otherwise) or have any other
enforcement rights in respect of the General Security (provided that
this restriction shall not apply to any Additional TFF Creditor taking
any Enforcement Action in respect of trade-specific security or cash
collateral granted by any Debtor in respect of any additional trade
finance facility which that Additional TFF Creditor provides (to the
extent such trade-specific security or cash collateral is permitted
under this Agreement and not prohibited under any other Debt
Document)).
25.2 Amendments and Waivers: Security Documents
Unless the provisions of any Debt Document expressly provide otherwise:
(a) the Common Security Agent may, if authorised by the Instructing Group and the
Trading Co Bond Trustee (if it is not the Instructing Group) and if Trading Co
consents, amend the terms of, waive any of the requirements of or grant consents
under, any of the General Security Documents;
(b) any NTFF Security Agent may amend the terms of, waive any of the requirements
of or grant consents under, any of the NTFF Security Documents, if Trading Co
consents and if authorised by:
(i) prior to the NTFF Discharge Date, the NTFF Fronting Banks and the
Majority NTFF Participants; and
(ii) after the NTFF Discharge Date, the Instructing Group,
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(c) any ITFF Security Agent may amend the terms of, waive any of the requirements
of or grant consents under, any of the ITFF Security Documents, if Trading Co
consents and if authorised by:
(i) prior to the ITFF Discharge Date, the ITFF Fronting Banks and the
Majority ITFF Participants; and
(ii) after the ITFF Discharge Date, the Instructing Group,
and any such amendments shall be binding on each Party.
25.3 Effectiveness
(a) Any amendment, waiver or consent given in accordance with this Clause 25 will
be binding on all Parties and the Common Security Agent may effect, on behalf
of any Creditor, any amendment, waiver or consent permitted by this Clause 25.
(b) Without prejudice to the generality of Clause 18.9 (Rights and discretions) the
Common Security Agent may engage, pay for and rely on the services of lawyers
in determining the consent level required for and effecting any amendment,
waiver or consent under this Agreement.
25.4 Agreement to override
Unless expressly stated otherwise in this Agreement, this Agreement overrides anything
in the Debt Documents to the contrary, other than in relation to any Security Document
governed by Dutch law to the extent Dutch mandatory law applies.
26. COUNTERPARTS
This Agreement may be executed in any number of counterparts, and this has the same
effect as if the signatures on the counterparts were on a single copy of this Agreement.
27. GOVERNING LAW
This Agreement and any non-contractual obligations arising out of or in connection with
it are governed by English law.
28. ENFORCEMENT
28.1 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 any non-contractual
obligation arising out of or in connection with this Agreement) (a "Dispute").
(b) The Parties agree that the courts of England are the most appropriate and
convenient courts to settle Disputes and accordingly no Party will argue to the
contrary.
(c) Notwithstanding paragraph (a) above, no Secured Party shall be prevented from
taking proceedings relating to a Dispute in any other courts with jurisdiction. To
the extent allowed by law, the Secured Parties may take concurrent proceedings
in any number of jurisdictions.
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28.2 Service of process
(a) Without prejudice to any other mode of service allowed under any relevant law:
(i) each Debtor (unless incorporated in England and Wales):
(A) irrevocably appoints NCFL as its agent for service of process in
relation to any proceedings before the English courts in connection
with this Agreement and NCFL, by its execution of this Agreement,
accepts that appointment; and
(B) agrees that failure by a process agent to notify the relevant Debtor of
the process will not invalidate the proceedings concerned.
(b) If any person appointed as an agent for service of process is unable for any reason
to act as agent for service of process, Trading Co (in the case of an agent for
service of process for a Debtor) must immediately (and in any event within 30
days of such event taking place) appoint another agent on terms acceptable to the
Common Security Agent. Failing this, the Common Security Agent may appoint
another agent for this purpose.
This Agreement has been entered into on the date stated at the beginning of this Agreement
and executed as a deed by the Debtors and is intended to be and is delivered by them as a
deed on the date specified above.
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SCHEDULE 1
FORM OF DEBTOR ACCESSION DEED
THIS AGREEMENT is made on [ ] and made between:
(1) [Insert Full Name of New Debtor] (the "Acceding Debtor"); and
(2) [Insert Full Name of Current Security Agent] (the "Security Agent"), for itself and each
of the other parties to the intercreditor agreement referred to below.
This agreement is made on [date] by the Acceding Debtor in relation to an intercreditor agreement
(the "Intercreditor Agreement") dated [ ] between, amongst others, [ ] as parent, [ ] as
company, [ ] as security agent, [ ], the other Creditors and the other Debtors (each as defined
in the Intercreditor Agreement).
The Acceding Debtor intends to [incur Liabilities under the following documents]/[give a
guarantee, indemnity or other assurance against loss in respect of Liabilities/be a creditor of
another member of the Trading Hold Co Group under the following documents]:
[Insert details (date, parties and description) of relevant documents]
the "Relevant Documents".
IT IS AGREED as follows:
1. Terms defined in the Intercreditor Agreement shall, unless otherwise defined in this
Agreement, bear the same meaning when used in this Agreement.
2. The Acceding Debtor confirms that it intends to be party to the Intercreditor Agreement
as a Debtor, undertakes to perform all the obligations expressed to be assumed by a Debtor
under the Intercreditor Agreement and agrees that it shall be bound by all the provisions
of the Intercreditor Agreement as if it had been an original party to the Intercreditor
Agreement.
3. This Agreement and any non-contractual obligations arising out of or in connection with
it are governed by, English law.
THIS AGREEMENT has been signed on behalf of the Common Security Agent and executed
as a deed by the Acceding Debtor and is delivered on the date stated above.
The Acceding Debtor
[EXECUTED AS A DEED )
By: [Full Name of Acceding Debtor] )
_____________________________________ Director
_____________________________________ Director/Secretary
OR
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[EXECUTED AS A DEED
By: [Full name of Acceding Debtor]
Signature of Director
Name of Director
in the presence of
Signature of witness
Name of witness
Address of witness
Occupation of witness]
Address for notices:
Address:
Fax:
The Security Agent
Accepted by the Common Security Agent
__________________________
for and on behalf of
[Insert full name of Common Security Agent]
Date:
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SCHEDULE 2
FORM OF CREDITOR ACCESSION UNDERTAKING
To: [Insert full name of current Security Agent] for itself and each of the other parties to the
Intercreditor Agreement referred to below.
From: [Acceding Creditor]
THIS UNDERTAKING is made on [date] by [insert full name of new Creditor] (the "Acceding
Creditor") in relation to the intercreditor agreement (the "Intercreditor Agreement") dated [
] between, among others, [INSERT NAME OF PARENT] as parent, [INSERT NAME OF
COMPANY] as company, [INSERT NAME OF SECURITY AGENT] as security agent,
[INSERT NAME OF TFF AGENT] as Fronting Bank, [INSERT NAME OF [PARTICIPANT
AGENT]] as [Participant Agent], the other Creditors and the other Debtors (each as defined in
the Intercreditor Agreement). Terms defined in the Intercreditor Agreement shall, unless
otherwise defined in this Undertaking, bear the same meanings when used in this Undertaking.
In consideration of the Acceding Creditor being accepted as a [ ] for the purposes of the
Intercreditor Agreement, the Acceding Creditor confirms that, as from [date], it intends to be party
to the Intercreditor Agreement as a [ ] and undertakes to perform all the obligations expressed
in the Intercreditor Agreement to be assumed by a [ ] and agrees that it shall be bound by all
the provisions of the Intercreditor Agreement, as if it had been an original party to the Intercreditor
Agreement.
This Undertaking and any non-contractual obligations arising out of or in connection with it are
governed by English law.
THIS UNDERTAKING has been entered into on the date stated above.
Acceding [Creditor]
[EXECUTED as a DEED]
[insert full name of Acceding
Creditor]
By:
Address:
Fax:
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Accepted by the Common Security
Agent
__________________________
for and on behalf of
[Insert full name of current Common
Security Agent]
Date:
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SCHEDULE 3
FORM OF DEBTOR RESIGNATION REQUEST
To: [ ] as Common Security Agent
From: [resigning Debtor] and [Parent]
Dated:
Dear Sirs
[Parent] - [ ] Intercreditor Agreement
dated [ ] (the "Intercreditor Agreement")
1. We refer to the Intercreditor Agreement. This is a Debtor Resignation Request. Terms
defined in the Intercreditor Agreement have the same meaning in this Debtor Resignation
Request unless given a different meaning in this Debtor Resignation Request.
2. Pursuant to Clause 19.7 (Resignation of a Debtor) of the Intercreditor Agreement we
request that [resigning Debtor] be released from its obligations as a Debtor under the
Intercreditor Agreement.
3. We confirm that:
(a) no Default is continuing or would result from the acceptance of this request; and
(b) [resigning Debtor] is under no actual or contingent obligations in respect of the
Intra-Group Liabilities or the Subordinated Liabilities.
4. This letter and any non-contractual obligations arising out of or in connection with it are
governed by English law.
[Parent] [resigning Debtor]
By: By:
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SCHEDULE 4
SECURITY PRINCIPLES
1 SECURITY PRINCIPLES
1.1 General
The guarantees and Transaction Security to be provided pursuant to the Debt Documents
will be given in accordance with these Security Principles and embody a recognition by
all parties that there may be certain legal and practical difficulties in obtaining guarantees
and/or Security from Trading Hold Co or members of the Trading Hold Co Group in
every jurisdiction in which they are incorporated or resident.
Each Security Document shall state that in the event of a conflict between the terms of
that Security Document and the Intercreditor Agreement, the terms of the Intercreditor
Agreement shall prevail and, in the case of conflict between the terms of that Security
Document and the Original NTFF Agreement or the Original ITFF Agreement, the terms
of the Original NTFF Agreement or the Original ITFF Agreement (as applicable) shall
prevail.
The nature of the Transaction Security to be granted, and the assets which will be subject
to it, are as set out paragraph 3 (Types of Assets - Borrower Cash Collateral), paragraph
4 (Types of Assets - General Security and Trading Hold Co Security) and paragraph 5
(Types of Assets - Trade-Specific Security).
Terms used in these Security Principles and not otherwise defined have the meanings
given to them in (or incorporated by reference to) the Intercreditor Agreement.
1.2 Considerations
In determining what Transaction Security and guarantees will be provided in support of
the new trade finance facility to be provided to Trading Co under the Original NTFF
Agreement (the “NTFF”), the increase trade finance facility to be provided to Trading
Co under the Original ITFF Agreement (the “ITFF”), the Trading Co Bonds, the Trading
Hold Co Bonds, the RPP Facility Agreement, any future trade finance facility (a “TFF”)
and the Trading Co Credit Facility, and any permitted refinancing thereof, the following
matters will be taken into account:
(a) Transaction Security and guarantees shall not be required to be created or
perfected to the extent that they would:
(i) taking into account any limitation required by paragraph 1.5 (Secured
Obligations) below, result (or would be reasonably likely to result) in
any breach of corporate benefit, financial assistance, fraudulent
preference or thin capitalisation laws or regulations (or analogous
restrictions) of any applicable jurisdiction;
(ii) taking into account any limitation required by paragraph 1.5 (Secured
Obligations) below, result in a significant risk to the officers of the
relevant grantor of Transaction Security of contravention of their
fiduciary duties and/or of civil or criminal liability;
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(iii) result in costs to the Trading Hold Co Group that are disproportionate to
the benefit obtained by the beneficiaries of that Transaction Security,
having regard to the extent of the obligations which can be secured by
that Transaction Security and the priority that will be offered by taking
or perfecting that Transaction Security;
(iv) require the consent of a certain percentage (the “Minimum Consent
Requirement”) of the holders of shares or equity interests in any
member of the Trading Hold Co Group that is not wholly-owned directly
or indirectly by Trading Co or, as the case may be, partners in any joint
venture, in circumstances where:
(A) the Trading Hold Co Group’s aggregate holding of shares or
equity interests or, as the case may be, partnership interests in
such non-wholly owned member of the Trading Hold Co Group
or joint venture is less than the Minimum Consent Requirement;
(B) that member of the Trading Hold Co Group has used
commercially reasonable endeavours to obtain the consent of the
other holder(s) of shares or equity interests in such non wholly-
owned member of the Trading Hold Co Group or, as the case
may be, partners in such joint venture to satisfy the Minimum
Consent Requirement; and
(C) notwithstanding those endeavours, the Minimum Consent
Requirement has not been obtained; or
(v) result (in the reasonable opinion of the relevant member of the Trading
Hold Co Group) in the breach or termination of any contract or joint
venture arrangement to which any member of the Trading Hold Co
Group or the New Noble Group is party.
All relevant members of the Trading Hold Co Group will use reasonable
endeavours to overcome any obstacle or limitation to creating or perfecting
Transaction Security and granting guarantees of a type set out in paragraphs (i)
to (iii) above.
(b) Transaction Security and guarantees shall only be given after taking into account:
(i) (in the case of Transaction Security) the extent to which such Transaction
Security may be unduly burdensome on the relevant member of the
Trading Hold Co Group or interfere unreasonably with the operation of
its business;
(ii) any adverse taxation implications for the Trading Hold Co Group and/or
the New Noble Group as a whole;
(iii) the benefit of the proposed Transaction Security to the Secured Parties
in the light of (A) the whole of the Transaction Security already provided
to them at that time, (B) the obligations which can be secured by that
Transaction Security and (C) the priority that will be offered by taking
or perfecting that Transaction Security;
(iv) general statutory limitations, financial assistance, corporate benefit,
fraudulent preference, "thin capitalisation" rules, retention of title claims
and similar principles that may limit the ability of any member of the
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Trading Hold Co Group to provide any guarantee or Transaction Security
or may require that any guarantee or Transaction Security be limited by
amount and/or scope;
(v) whether or not perfection of any such guarantee or Transaction Security
(to the extent required) is permissible or possible under applicable law
or regulation; and
(vi) any assets subject to any arrangements with third parties (which
arrangements are permitted under the Debt Documents) which prevent
those assets from being secured will be excluded from any Transaction
Security and any Security Document provided that the relevant member
of the Trading Hold Co Group will use reasonable endeavours to obtain
consent to the creation of Transaction Security over any such asset and
provided further that such arrangements with third parties were not
entered into primarily so that such guarantee or Transaction Security
would be exempted pursuant to this exception.
(c) certain assets of members of the Trading Hold Co Group will be subject to
arrangements whereby the beneficial and/or economic interests in those assets
are held for the benefit of Asset Co and/or its subsidiaries. Those assets comprise
the assets which are listed in Schedule 1 to these Security Principles and assets
which are identified in any Security Document as an "Asset Co Asset" (together,
the "Asset Co Assets"), and will not be subject to any Transaction Security
(whether fixed or floating).
In these Security Principles, cost includes, but is not limited to, income tax cost,
registration taxes payable on the creation or enforcement or for the continuance of any
Transaction Security, stamp duties, out-of-pocket expenses, and other fees and expenses
directly incurred by the relevant grantor of Transaction Security or any of its direct or
indirect owners, subsidiaries or Affiliates.
1.3 Government approvals
To the extent that any Transaction Security over any equity interest in any member of the
Trading Hold Co Group or any guarantee or Transaction Security to be provided by any
member of the Trading Hold Co Group (or the perfection thereof) requires the grantor or
any member of the Trading Hold Co Group and/or any member of the New Noble Group
to obtain or effect any authorisation from any governmental agency (including MOFCOM
approval and/or SAIC registration in respect of a member of the Trading Hold Co Group
incorporated in the PRC), the requirement to obtain or effect such authorisation will be
subject to these Security Principles and the applicable grantor or member of the Trading
Hold Co Group will use reasonable endeavours to obtain or effect such authorisation
within 120 days after the execution of the relevant Debtor Accession Deed in relation to
the granting of guarantee or the relevant Security Document conferring such Transaction
Security (as the case may be) provided that if such authorisation is not obtained or
effected within such time, the obligations of the Trading Hold Co Group to obtain or
effect, or to endeavour to obtain or effect, such authorisation shall cease on the expiry of
that 120 day period and provided further that no Transaction Security shall be given over
the shares or equity interest in, or over any assets of, any member of the Trading Hold Co
Group incorporated in the PRC that is not wholly-owned directly or indirectly by Trading
Co and that is not a first tier WFOE.
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1.4 Perfection of Transaction Security
The perfection of Transaction Security, when required in accordance with these Security
Principles, and other legal formalities will be completed as soon as reasonably practicable
and, in any event, within the time periods specified in the Debt Documents or (if earlier
or to the extent no such time periods are specified in the Debt Documents) within the time
periods specified by applicable law in order to ensure due perfection and priority. Except
to the extent expressly required otherwise in accordance with the Transaction Criteria (as
defined in the Original NTFF Agreement) (the “Transaction Criteria”), prior to a
request from the relevant Security Holder where an Event of Default is continuing, the
perfection of Transaction Security will not be required if it would have a material adverse
effect on the ability of the relevant member of the Trading Hold Co Group or the New
Noble Group as a whole to conduct its operations and business in the ordinary course or
as otherwise permitted by the Debt Documents.
1.5 Secured Obligations
(a) The secured obligations will be limited:
(i) to avoid any breach of corporate benefit, financial assistance, fraudulent
preference, thin capitalisation rules or the laws or regulations (or
analogous restrictions) of any applicable jurisdiction; and
(ii) to avoid any risk to officers of Trading Hold Co or the relevant member
of the Trading Hold Co Group that is granting Transaction Security of
contravention of their fiduciary duties and/or civil or criminal or personal
liability.
(b) All relevant members of the Trading Hold Co Group will use reasonable
endeavours to:
(i) assist in demonstrating adequate corporate benefit accrues to the relevant
member of the Trading Hold Co Group and any Guarantor (as defined in
the Original NTFF Agreement, the Original ITFF Agreement or the
Trading Co Bond Trust Deed (as applicable)); and
(ii) overcome any such limitation and/or obstacle of a type set out in
paragraph (a) above to creating or perfecting any Security Interest or
providing a guarantee, including undertaking any whitewash or
equivalent procedure (to the extent permitted by law).
2 SECURITY DOCUMENTS
2.1 General
Where appropriate, defined terms in the Security Documents should mirror those in the
Original NTFF Agreement, the Original ITFF Agreement, the Trading Co Bond Trust
Deed, the Trading Hold Co Bond Trust Deed or the Intercreditor Agreement (as
applicable).
The parties to the Debt Documents will negotiate the form of each Security Document in
good faith. The form of guarantee is set out in clause 27 (Guarantee and Indemnity) of
the Original NTFF Agreement, clause 25 (Guarantee and Indemnity) of the Original ITFF
Agreement and clause 6 (Guarantee and Indemnity) of the Trading Co Bond Trust Deed
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and, with respect to any Additional Guarantor (as defined in the Original NTFF
Agreement, the Original ITFF Agreement or the Trading Co Bond Trust Deed (as
applicable)), is subject to any limitations set out in the Debtor Accession Deed applicable
to such Additional Guarantor.
The Transaction Security shall, to the extent possible under local law, be enforceable:
(a) in the case of the General Security, on the occurrence of an Acceleration Event;
(b) in the case of the trade-specific security in respect of the NTFF or the ITFF (the
“Trade-Specific Security”):
(i) upon an NTFF Acceleration Event or an ITFF Acceleration Event (as
applicable); and
(ii) upon failure by an Obligor (as defined in the Original NTFF Agreement
or the Original ITFF Agreement, respectively) to reimburse the relevant
Trade Finance Instrument (as defined in the Original NTFF Agreement
or the Original ITFF Agreement, respectively); and
(c) in the case of NTFF Borrower Cash Collateral Security or the ITFF Borrower
Cash Collateral Security (the “Borrower Cash Collateral”), on the occurrence
of an NTFF Acceleration Event or ITFF Acceleration Event (as applicable)
provided that this will not prejudice the ability of the NTFF Fronting Banks or
the ITFF Fronting Bank (or the NTFF Security Agent, the NTFF Agent, the ITFF
Security Agent or the ITFF Agent (as applicable) on their behalf) to withdraw
amounts standing to the credit of the NTFF Borrower Cash Collateral Account
or the ITFF Borrower Cash Collateral Account (each a “Borrower Cash
Collateral Account”) in accordance with the terms of the Original NTFF
Agreement or the Original ITFF Agreement (as applicable).
The relevant holder of Transaction Security (a “Security Holder”) will only be entitled
to exercise a power of attorney under any Debt Document (or related document)
following the occurrence of an Acceleration Event or if the relevant grantor has failed to
comply with a further assurance or perfection obligation within 5 Business Days of being
so requested by that Security Holder in writing.
Unless granted under a global security document governed by the laws of the jurisdiction
of incorporation of a member of the Trading Hold Co Group or under the laws of Hong
Kong, Singapore or England and Wales and subject to paragraph 5 (Types of assets -
Trade-Specific Security) below, all Transaction Security shall be governed by the laws of
the jurisdiction in which the relevant asset to be made subject to such Transaction
Security is located and, where such asset comprises a contract, shall be governed by the
governing law of that contract and, save where it is inappropriate under applicable laws,
where shares or equity interests are to be made subject to Transaction Security, shall be
governed by the laws of the jurisdiction of incorporation or organisation of the entity
whose shares or equity interests are being made subject to such Transaction Security.
Subject to these Security Principles, information such as lists of assets (or classes of
assets, if customary under local law) will be provided if required by local law in order to
perfect or register the applicable Transaction Security and, when requested by a Security
Agent, shall be provided annually (unless required more frequently under local law) or,
whilst an Event of Default is continuing, on that Security Agent's request.
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Unless required by local law the circumstances in which the Transaction Security shall
be released should not be dealt with in individual Security Documents but, if so required,
shall, except to the extent required by local law, be the same as those set out in the
Intercreditor Agreement.
Any equity interests in any member of the Trading Hold Co Group that are held by a
nominee acting on behalf of, or held on trust for, any other member of the Trading Hold
Co Group shall be deemed to be owned by such member of the Trading Hold Co Group.
2.2 Representations and Warranties / Undertakings
Any representations, warranties or undertakings which are required to be included in any
Security Document shall reflect the commercial deal set out in the Original NTFF
Agreement, the Original ITFF Agreement, the Trading Co Bond Trust Deed and the
Trading Hold Co Bond Trust Deed (save to the extent that local counsel for the Secured
Parties and the Trading Hold Co Group agree it is necessary to include any further
provisions (or deviate from those contained in the Original NTFF Agreement, the
Original ITFF Agreement, the Trading Co Bond Trust Deed or the Trading Hold Co Bond
Trust Deed) in order to protect or preserve the Security granted to the Secured Parties).
Any representations, warranties or undertakings which are required to be included in any
Security Document shall not restrict the use of the assets subject to that Transaction
Security to a greater extent than provided for in the Original NTFF Agreement, the
Original ITFF Agreement, the Trading Co Bond Trust Deed or the Trading Hold Co Bond
Trust Deed and will not impose additional commercial obligations or otherwise restrict
the use of the assets subject to that Transaction Security to a greater extent than provided
for in the Original NTFF Agreement, the Original ITFF Agreement, the Trading Co Bond
Trust Deed or the Trading Hold Co Bond Trust Deed.
Representations and undertakings shall be included to the extent they relate to matters of
fact with respect to title to the assets which are the subject matter of the security or the
validity, registration, priority, perfection or maintenance of the relevant type of security
in the relevant jurisdiction.
Unless otherwise required under applicable law for the creation or perfection of
Transaction Security in accordance with these Security Principles, the Security
Documents will not contain any repetition of provisions of the other Debt Documents,
such as notices, costs and expenses, indemnities, Tax gross up and distribution of
proceeds.
3 TYPES OF ASSETS - BORROWER CASH COLLATERAL
The Borrower Cash Collateral will be first ranking and comprise fixed security over each
Borrower Cash Collateral Account. The applicable account bank will be notified of and
acknowledge the existence of such Transaction Security in the custodian agreement or
other equivalent document entered into in relation to each Borrower Cash Collateral
Account. The Borrower Cash Collateral shall be subject to any prior Security interests in
favour of the account bank which are created either by law or in the standard terms and
conditions of the account bank. The notice of Security will request these are waived by
the account bank but the relevant member of the Trading Hold Co Group shall not be
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required to change its banking arrangements if such Security interests are not waived or
only partially waived or waived subject to conditions. If required under local law,
Transaction Security over each Borrower Cash Collateral Account will be registered
subject to the general principles set out in these Security Principles.
Each Borrower Cash Collateral Account will be a blocked account which may only be
accessed in accordance with the terms set out in the Original NTFF Agreement or the
Original ITFF Agreement (as applicable).
4 TYPES OF ASSETS - GENERAL SECURITY AND TRADING HOLD CO
SECURITY
4.1 General
(a) Subject to these Security Principles, the General Security:
(i) (where possible) will be first ranking and comprise fixed and floating
General Security (or the nearest equivalent under applicable law) over
all present and future assets of the relevant member of the Trading Hold
Co Group and the shares in that member of the Trading Hold Co Group,
except to the extent such assets constitute any Borrower Cash Collateral
or are subject to (or are permitted to be subject to) Trade-Specific
Security, where such security will be second ranking; and
(ii) (where possible) will be automatically created over future assets of the
same type as those already subject to General Security granted by the
applicable member of the Trading Hold Co Group.
The Parties acknowledge that the assets to be subject to any General Security
shall (other than under any general floating charge or equivalent or unless
otherwise agreed by the Common Security Agent and Trading Co) be limited to
(a) shares and/or equity interests, (b) bank accounts (including each Borrower
Cash Collateral Account), (c) intercompany receivables, (d) insurance policies,
(e) fixed assets which have a standalone value of more than USD5,000,000 and
(f) trade receivables and other material contracts, and no General Security shall
be required in respect of any intellectual property rights, real estate or inventory
(the “Asset Principles”).
These Security Principles recognize that, notwithstanding the foregoing, certain
assets of the Trading Hold Co Group will no longer form part of the General
Security package if they become subject to Security in favour of third party
creditors, or are disposed of, under any trade finance facility finance documents
(other than under the TFF Finance Documents), securitisation transaction,
qualified receivables financing or factoring or invoice discounting permitted
under the Debt Documents, in each case where those third party creditors do not
share in the General Security and have not acceded to the Intercreditor
Agreement (each an “External Financing”). If any member of the Trading Hold
Co Group enters into an External Financing:
(i) any fixed security under the General Security package over the assets
subject to that External Financing will be released promptly following a
request by Trading Co; and
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(ii) any assets subject to that External Financing will constitute “Excluded
Assets” and be carved out of any floating charge under the General
Security package.
(b) Subject to these Security Principles, the Trading Hold Co Security:
(i) (where possible) will be first ranking and comprise fixed and floating
Trading Hold Co Security (or the nearest equivalent under applicable
law) over all present and future assets of Trading Hold Co, receivables
owing by Trading Hold Co to its immediate parent and the shares in
Trading Hold Co , except to the extent such assets constitute Shared
Security, where such security will be second ranking; and
(ii) (where possible) will be automatically created over future assets of the
same type as those already subject to Trading Hold Co Security granted
by the applicable member of the Trading Hold Co Group or the
immediate parent of Trading Hold Co.
The Parties acknowledge that the assets to be subject to any Trading Hold Co
Security shall (other than under any general floating charge or equivalent or
unless otherwise agreed by the Trading Hold Co Security Agent and Trading Co)
be limited to (a) shares and/or equity interests, (b) bank accounts, (c)
intercompany receivables, (d) insurance policies, (e) fixed assets which have a
standalone value of more than USD5,000,000 and (f) trade receivables and other
material contracts, and no Trading Hold Co Security shall be required in respect
of any intellectual property rights, real estate or inventory.
Further, no fixed or floating security will be granted over the Asset Co Assets (as defined
in paragraph 1.2(c) above) under the General Security or the Trading Hold Co Security
package.
4.2 Bank Accounts
To the extent General Security or Trading Hold Co Security is granted by a member of
the Trading Hold Co Group over its bank accounts (other than a Borrower Cash Collateral
Account), it shall be (unless expressly provided otherwise in the Debt Documents) free
to deal with those bank accounts in the course of its operations and business until an Event
of Default has occurred. If required by local law in order to perfect the General Security
or Trading Hold Co Security, pre-signed but undated notices of such General Security or
Trading Hold Co Security will be delivered to the Common Security Agent (for notices
in respect of General Security) and the Trading Hold Co Security Agent (for notices in
respect of Trading Hold Co Security) provided that (a) each notice of General Security
or Trading Hold Co Security from that member of the Trading Hold Co Group to the
relevant account bank will specify that such notice, and the General Security or the
Trading Hold Co Security (as applicable), does not affect that member of the Trading
Hold Co Group’s and that account bank’s rights and obligations in respect of any existing
agreements or arrangements between that member of the Trading Hold Co Group and
that account bank (including but not limited to any such agreement or arrangement in
respect of payment operations or cash pooling) prior to notification by the Common
Security Agent (in respect of General Security) or the Trading Hold Co Security Agent
(in respect of Trading Hold Co Security) to that account bank that the General Security
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or Trading Hold Co Security (as applicable) has become enforceable, and (b) there will
be no requirement to obtain an acknowledgement of that notice unless required by local
law in order to perfect the General Security or Trading Hold Co Security. If there is such
a requirement, the relevant member of the Trading Hold Co Group shall use its reasonable
endeavours to obtain an acknowledgement of that notice within 20 Business Days of
service. If the relevant member of the Trading Hold Co Group has used its reasonable
endeavours but has not been able to obtain such acknowledgement, its obligation to obtain
such acknowledgement shall continue for so long as there is a reasonable expectation that
the acknowledgement may be received. Any General Security or Trading Hold Co
Security over bank accounts shall be subject to any prior Security Interests in favour of
the account bank which are created either by law or in the standard terms and conditions
of the account bank. The notice of General Security or Trading Hold Co Security may
request these are waived by the account bank but the relevant member of the Trading
Hold Co Group shall not be required to change its banking arrangements if such Security
interests are not waived or only partially waived or waived subject to conditions. If
required under local law, General Security or Trading Hold Co Security over bank
accounts will be registered subject to the general principles set out in these Security
Principles.
4.3 Fixed assets
To the extent any member of the Trading Hold Co Group grants General Security or
Trading Hold Co Security over its fixed assets it shall be free to deal with those assets in
the course of its operations and business and in compliance with the Debt Documents
until an Acceleration Event has occurred. No notice whether to third parties or by
attaching a notice to the fixed assets or otherwise shall be prepared or given unless an
Acceleration Event has occurred and the Common Security Agent or the Trading Hold
Co Security Agent (as applicable) so requests for such notice to be prepared and given.
If required under local law, General Security or Trading Hold Co Security over fixed
assets will be registered subject to the general principles set out in these Security
Principles. Any General Security or Trading Hold Co Security over fixed assets will be
granted subject to any warehouse or other lien arising by operation of law or by the
standard terms of business of the storage or other facility where the relevant assets are
located.
4.4 Insurance Policies
To the extent any member of the Trading Hold Co Group grants General Security or
Trading Hold Co Security over its insurance policies, if required by local law to perfect
the General Security or Trading Hold Co Security, notice of the General Security or
Trading Hold Co Security will be served on the applicable insurance provider within 5
Business Days of the General Security or Trading Hold Co Security being granted over
the applicable insurance policy provided that there will be no requirement to obtain an
acknowledgement of that notice unless required by local law in order to perfect the
General Security or Trading Hold Co Security. If there is such a requirement, the relevant
member of the Trading Hold Co Group shall use its reasonable endeavours to obtain an
acknowledgement of that notice within 20 Business Days of service. If the relevant
member of the Trading Hold Co Group has used its reasonable endeavours but has not
been able to obtain such acknowledgement, its obligation to obtain such
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acknowledgement shall continue for so long as there is a reasonable expectation that the
acknowledgement may be received. No loss payee or other annotation or endorsement
shall be made on any insurance policy. There shall not be any requirement to include any
Secured Party as a co-insured or to note the interest of any Secured Party on any insurance
policy. No General Security or Trading Hold Co Security will be granted over any
insurance policy which cannot be made subject to security under the terms of such
insurance policy provided that such restriction was not included into primarily so that
such Transaction Security would be exempted pursuant to this exception.
4.5 Intercompany Receivables
To the extent any member of the Trading Hold Co Group grants General Security over
its intercompany receivables from other members of the Trading Hold Co Group, or the
immediate parent of Trading Hold Co grants Trading Hold Co Security over its
intercompany receivables from Trading Hold Co, it shall be free to deal with those
receivables in the course of its operations and business until an Acceleration Event has
occurred but subject always to the terms of the Debt Documents. Subject to the rest of
this paragraph, if required by local law to perfect the General Security or Trading Hold
Co Security, notice of the General Security or Trading Hold Co Security will be served
on the relevant debtor from which such intercompany receivables are owing within 5
Business Days of the General Security or Trading Hold Co Security being granted over
such intercompany receivables and the applicable member of the Trading Hold Co Group
or Trading Co shall obtain an acknowledgement of that notice within 5 Business Days of
service. If required under local law, General Security or Trading Hold Co Security over
such intercompany receivables will be registered subject to the general principles set out
in these Security Principles.
4.6 Trade receivables and other material contracts
To the extent any member of the Trading Hold Co Group grants General Security or
Trading Hold Co Security over its trade receivables and/or material contracts, it shall be
free to deal with those receivables and contracts in the course of its business in accordance
with the Debt Documents until an Acceleration Event has occurred. No notice of General
Security or Trading Hold Co Security will be required to be prepared or served unless an
Acceleration Event has occurred and the Common Security Agent or the Trading Hold
Co Security Agent (as applicable) so requests. If such notice is required to be delivered,
there will be no requirement to obtain an acknowledgement of that notice unless required
by local law in order to perfect the Transaction Security. If there is such a requirement,
the relevant member of the Trading Hold Co Group shall use its reasonable endeavours
to obtain an acknowledgement of that notice within 20 Business Days of service. If the
relevant member of the Trading Hold Co Group has used its reasonable endeavours but
has not been able to obtain such acknowledgement, its obligation to obtain such
acknowledgement shall continue for so long as there is a reasonable expectation that the
acknowledgement may be received.
No General Security or Trading Hold Co Security will be granted over any trade
receivables or material contract which cannot be made subject to General Security or
Trading Hold Co Security under the terms of the relevant receivables or contract provided
that such restriction was not included into primarily so that such Transaction Security
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would be exempted pursuant to this exception. If required under local law, General
Security or Trading Hold Co Security over trade receivables or material contracts will be
registered subject to the general principles set out in these Security Principles. Unless
required by local law, any list of trade receivables required shall not include details of the
underlying contracts giving rise to such receivables.
4.7 Shares
Subject to the rest of this paragraph, until an Acceleration Event has occurred, each
member of the Trading Hold Co Group and the immediate parent of Trading Hold Co
will be permitted to retain and to exercise voting rights pertaining to any shares or equity
interests over which it has created General Security or Trading Hold Co Security for a
purpose which:
(a) is not inconsistent with any Security Document, or would breach the terms of any
Debt Document;
(b) does not affect the validity or enforceability of the General Security or Trading
Hold Co Security; or
(c) does not cause an Event of Default to occur,
and the entity whose shares or equity interests have been made subject to General Security
or Trading Hold Co Security will be permitted to declare and pay dividends or
distributions on such shares or equity interests (to the extent not contrary to the Debt
Documents) and the proceeds of such dividends or distributions may be retained or
applied by the applicable member of the Trading Hold Co Group or the immediate parent
of Trading Hold Co (to the extent not contrary to the Debt Documents). Where
customary, on, or as soon as reasonably practicable and in any event no later than 5
Business Days after the General Security or Trading Hold Co Security over such shares
has been granted, the share certificate(s) representing such shares (if such shares are
certificated) and a (stamped, to the extent relevant under applicable law) stock transfer
form executed in blank (or local law equivalent) will be provided to the Common Security
Agent or the Trading Hold Co Security Agent (as applicable) and where required by law
or when customary the applicable share certificate or shareholders' register of the entity
(whose shares are made subject to General Security or Trading Hold Co Security) will be
endorsed or written up to reflect such General Security or Trading Hold Co Security, and
the endorsed share certificate or a copy of the written up register provided to the Common
Security Agent or the Trading Hold Co Security Agent (as applicable). To the extent
permitted by applicable law or regulation, the constitutional documents of the company
whose shares have been made subject to General Security or Trading Hold Co Security
will be amended to disapply any restriction on the transfer or the registration of the
transfer of such shares upon the taking or enforcement of such General Security or
Trading Hold Co Security over such shares. Subject to paragraph 1.2(a)(iv) above, shares
or interests in joint ventures will not be subject to General Security or Trading Hold Co
Security where such General Security or Trading Hold Co Security is prohibited or
restricted by the terms of any applicable joint venture, partnership or shareholders'
agreement.
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5 TYPES OF ASSETS - TRADE-SPECIFIC SECURITY
Subject to these Security Principles, the Trade-Specific Security:
(a) (where possible, and in each case subject to any warehouse or other lien arising
by operation of law and to the standard terms of business of the storage or other
facility where the relevant assets are located) will be first ranking and comprise
the following Security:
(i) an English or Singapore law pledge of financed goods and related
documents of title, transportation documents and holding certificates or
similar;
(ii) an English or Singapore law security assignment in relation to:
(A) inbound (i.e. export) documentary credits – in each case limited
to proceeds only; and
(B) inbound (i.e. export) and import contracts – in each case limited
to proceeds only;
(iii) local law security over the relevant account with the Fronting Bank to
which payments under the inbound (i.e. export) documentary credits and
on-sale contracts are payable;
(iv) loss payee endorsement on cargo insurance for financed goods in respect
of claims under the policy in respect of those goods (and not a security
assignment of rights and/or payments under the policy); and
(v) any other Security required under the Transaction Criteria,
in each case as required in accordance with the Transaction Criteria in relation to
specific assets being financed under the NTFF and the ITFF; and
(b) will only relate to specified assets and will not be automatically created over
future assets of the same type as those already subject to Transaction Security
granted by the applicable member of the Trading Hold Co Group.
To the extent Trade-Specific Security is granted by a member of the Trading Hold Co
Group over its bank accounts, it shall be (unless expressly provided otherwise in the Debt
Documents) free to deal with those bank accounts in the course of its operations and
business until an Event of Default has occurred. If required by local law in order to perfect
the Trade-Specific Security, pre-signed but undated notices of such Trade-Specific
Security will be delivered to each Fronting Bank provided that (a) each notice of Trade-
Specific Security from that member of the Trading Hold Co Group to the relevant account
bank will specify that such notice and the Trade-Specific Security does not affect that
member of the Trading Hold Co Group’s and that account bank’s rights and obligations
in respect of any existing agreements or arrangements between that member of the
Trading Hold Co Group and that account bank (including but not limited to any such
agreement or arrangement in respect of payment operations or cash pooling) prior to
notification by a Fronting Bank to that account bank that the Trade-Specific Security
granted to that Fronting Bank has become enforceable and (b) there shall be no
requirement to obtain an acknowledgement of that notice unless required by local law in
order to perfect the Trade-Specific Security. If there is such a requirement, the relevant
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member of the Trading Hold Co Group shall use its reasonable endeavours to obtain an
acknowledgement of that notice within 20 Business Days of service. If the relevant
member of the Trading Hold Co Group has used its reasonable endeavours but has not
been able to obtain such acknowledgement, its obligation to obtain such
acknowledgement shall continue for so long as there is a reasonable expectation that the
acknowledgement may be received. Any Trade-Specific Security over bank accounts
shall be subject to any prior Security Interests in favour of the account bank which are
created either by law or in the standard terms and conditions of the account bank. The
notice of Trade-Specific Security may request these are waived by the account bank but
the relevant member of the Trading Hold Co Group shall not be required to change its
banking arrangements if such Security interests are not waived or only partially waived
or waived subject to conditions. If required under local law, Trade-Specific Security over
bank accounts will be registered subject to the general principles set out in these Security
Principles.
To the extent any member of the Trading Hold Co Group grants Trade-Specific Security
over its trade receivables and/or material contracts, it shall be free to deal with those
receivables and contracts in the course of its business in accordance with the Debt
Documents until the occurrence of an Event of Default arising as a result of a Borrower
under the Original NTFF Agreement failing to pay an amount when due to the Fronting
Banks. Except to the extent the Transaction Criteria expressly provides otherwise, no
notice of Trade-Specific Security will be required to be prepared or served unless an
Event of Default has occurred as a result of a Borrower under the Original NTFF
Agreement failing to pay an amount when due to the Fronting Banks and the relevant
Security Holder so requests. If such notice is required to be delivered, there will be no
requirement to obtain an acknowledgement of that notice unless required by local law in
order to perfect the Transaction Security. If there is such a requirement, the relevant
member of the Trading Hold Co Group shall use its reasonable endeavours to obtain an
acknowledgement of that notice within 20 Business Days of service. If the relevant
member of the Trading Hold Co Group has used its reasonable endeavours but has not
been able to obtain such acknowledgement, its obligation to obtain such
acknowledgement shall continue for so long as there is a reasonable expectation that the
acknowledgement may be received.
No Trade-Specific Security will be granted over any trade receivables or material contract
which cannot be made subject to Trade-Specific Security under the terms of the relevant
receivables or contract provided that such restriction was not included in the terms of the
relevant receivable or contract primarily so that such Transaction Security would be
exempted pursuant to this exception. If required under local law, Trade-Specific Security
over trade receivables or material contracts will be registered and otherwise perfected
subject to the general principles set out in these Security Principles (including in respect
of notices). Unless required by local law, any list of trade receivables required shall not
include details of the underlying contracts giving rise to such receivables.
Trade-Specific Security will be subject to the limitations set out in the Transaction
Criteria, and in particular to the extent the relevant secured obligations relate to an import
letter of credit it will remain in place only as long as the corresponding import letter of
credit remains outstanding and is not reimbursed.
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6 RESTRICTIONS ON GRANTING SECURITY
To the extent any member of the Trading Hold Co Group is permitted to grant, or permit
to subsist, Security over its assets in accordance with condition 11.4 (Negative Pledge)
of the Terms and Conditions relating to the Trading Co Bonds (and the equivalent
provisions in the Original NTFF Agreement and the Original ITFF Agreement), Schedule
2 to these Security Principles sets out whether such Security may be in respect of assets
which are subject to fixed Transaction Security (and if so whether the relevant creditors
are required to accede to the Intercreditor Agreement as a condition to receiving the
benefit of such Security) or only in respect of assets which are not subject to fixed
Transaction Security.
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SCHEDULE 1
ASSET CO ASSETS
Terms used but not defined in this Schedule 1 (Asset Co Assets) are as defined in the Business
Separation Documents.
Member of the Trading Hold Co
Group
Asset
Jamalco Assets
Noble Resources Limited All shareholder interests in GAHL (including NRL’s rights to
dividend income or other distributions from GAHL (including
from the sale or liquidation of or otherwise derived from GAJ,
GAJ Inc or any Jamalco Assets) and all proceeds from the sale
or liquidation of GAHL) and all related rights arising out of or
in connection thereto
Any intra-group receivables owing by GAHL or any of its
subsidiaries (including GAJ and GAJ Inc) to NRL
All amounts received by NRL in respect of the sale of the
Noble Rights owned by it
Noble Resources International Pte. Ltd. NRIPL’s rights and all amounts received by NRIPL under the
Offtake Agreements
NRIPL’s rights and all amounts received by NRIPL under the
CAP Prepayment Facility, the insurance policy relating to the
CAP Prepayment Facility, and all other contractual
arrangements between NRIPL and CAP and any other rights
which NRIPL has in or deriving from any contract relating to
the CAP Prepayment Facility (including the Other CAP
Documents)
NRIPL’s rights and all amounts received by NRIPL under the
NRIPL On-Sale Agreements
Any intra-group receivables owing by GAHL or any of its
subsidiaries (including GAJ and GAJ Inc) to NRL
All amounts received by NRIPL in respect of the sale of the
Noble Rights owned by it
All other assets which are the subject of:
(i) the global rights transfer deed to be entered into on
or about the date of this Agreement between, among
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4818-2283-0963 v18
others, Noble New Asset Co Limited, NRIPL and
NRL; and/or
(ii) the Noble Plantations Receivables Deed (the
"NPRD") to be entered into on or about the date of
this Agreement between, among others, Noble New
Asset Co Limited, NRIPL, NPPL, PT HIP and PT
PAL and / or any deed of transfer entered into in
connection with or pursuant to the NPRD,
and all related rights (including, for the avoidance of doubt,
NRIPL’s rights, title and interest in and to, and the benefit of,
the same).
General Alumina Holdings Limited All assets of GAHL and its subsidiaries and investments,
including:
(i) shareholder interests in GAJ (including rights to dividend
income or other distributions (including from the sale or
liquidation of or otherwise derived from any Jamalco Assets
or the Membership Interest) and proceeds from the sale or
liquidation of GAJ) and all related rights arising out of or in
connection thereto,
(ii) shareholder interests in GAJ Inc (including rights to
dividend income or other distributions and proceeds from the
sale or liquidation of GAJ Inc),
(iii) any intra-group receivables owing by GAJ or GAJ Inc to
GAHL, and
(iv) GAHL’s rights and all amounts received by GAJ under
the GAJ Offtake Agreement
General Alumina Jamaica LLC All assets of GAJ and its subsidiaries and investments,
including:
(i) the Membership Interest (including rights to profit or other
distributions (including from the sale or liquidation of or
otherwise derived from any Jamalco Assets or the
Membership Interest)) and all related rights arising out of or
in connection thereto,
(ii) GAJ’s rights and all amounts received by GAJ under the
Jamalco Joint Venture Agreement,
(iii) GAJ’s rights and all amounts received by GAJ under the
GAJ Offtake Agreement, and
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4818-2283-0963 v18
(iv) the Jamalco Joint Venture account held in the name of
GAJ
General Alumina Jamaica Inc All assets of GAJ Inc and its subsidiaries and investments
Noble Plantations Assets
Noble Resources International Pte. Ltd. Shareholder interests in NPPL (including rights to dividend
income or other distributions (including from the sale or
liquidation of NPPL)) and all related rights arising out of or in
connection thereto
Any intra-group receivables owing by Noble Plantations
(including under the Noble Plantations Loan) or any of its
subsidiaries (including PT HIP and PT PAL))
NRIPL’s rights under the Plantations Sale Agreement,
including the right to sale proceeds to be received thereunder
Noble Plantations Pte. Ltd. All assets of NPPL and its subsidiaries and investments,
including shareholder interests in PT HIP and PT PAL
(including rights to dividend income or other distributions
(including from the sale or liquidation of PT HIP or PT PAL))
and all related rights arising out of or in connection thereto
PT. Hernison Inti Persada All assets of PT HIP and its subsidiaries and investments.
PT. Pusaka Agro Lestari All assets of PT PAL and its subsidiaries and investments.
NRIPL Assets
Noble Resources International Pte. Ltd. All assets of NRIPL the subject of (i) fixed security granted in
favour of the Security Agent (as defined in the Asset Co
Intercreditor Agreement) to secure the Secured Obligations (as
defined in the Asset Co Intercreditor Agreement), and (ii) each
Business Separation Document (as defined in the Asset Co
Intercreditor Agreement)
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4818-2283-0963 v18
SCHEDULE 2
RESTRICTIONS ON GRANTING SECURITY1
(References are to carve-outs in condition 11.4 (Negative Pledge) of the Terms and
Conditions of the Trading Co Bonds)
Basket Secured on assets which are
subject to fixed Transaction
Security
Secured on assets which are not
subject to fixed Transaction
Security
(i) NTFF/ITFF/Trading Co
Credit Facility
Yes (senior priority under
Intercreditor Agreement)*
Yes
(ii) [Notes] Yes* Yes
(iii) [QST/QRF] Yes* Yes
(iv) [Bank Products] No Yes
(v) [Non-Guarantor] No Yes
(vi) [Finance Leases] No Yes
(vii) [Local Lines] No Yes
(viii) [Acquired Debt] No Yes
(ix) [General Basket] Yes (junior to Transaction Security
and not party to the Intercreditor
Agreement)
Yes
(x) [Existing Liens] Yes Yes
(xi) [Acquisition Debt] No Yes
(xii) [Internal] No Yes
(xiii) [Gov’t Authorities] Yes Yes
(xiv) [JV] No Yes
(xv) [Operation of law] Yes Yes
(xvi) [Operation of law] Yes Yes
(xvii) [Treasury Transactions
- Set Off]
No Yes
1 Where used in this Schedule 2, an asterisk (*) denotes that accession to the Intercreditor Agreement is required.
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Basket Secured on assets which are
subject to fixed Transaction
Security
Secured on assets which are not
subject to fixed Transaction
Security
(xviii) [Trade Finance] (a) If permitted to share in General
Security and accede to the
Intercreditor Agreement - Yes*
(b) Otherwise - No
Yes
(xix) [Trade Finance that is
not debt]
No Yes
(xx) [Retention of Title] Yes Yes
(xxi) [Clearing] No Yes
(xxii) [Treasury
Transactions]
No Yes
(xxiii) [Supply of Goods] No Yes
(xxiv) [Import Contracts] No Yes
(xxv) [SLB] No Yes
(xxvi) [Operation of Law] Yes Yes
(xxvii) [PFI] Yes (same ranking as refinanced
debt)
*(solely to the extent that the
creditor of the refinanced debt was
a party to the Intercreditor
Agreement)
Yes
(xxviii) [Over Bonds] No Yes
(xxix) [Taxes] Yes Yes
