Exhibit 10.43
FINANCE AGREEMENT
between
TETRA4 PROPRIETARY LIMITED
and
OVERSEAS PRIVATE INVESTMENT CORPORATION
Dated as of August 20, 2019
OPIC/9000083212
Exhibit 10.43
FINANCE AGREEMENT
between
TETRA4 PROPRIETARY LIMITED
and
OVERSEAS PRIVATE INVESTMENT CORPORATION
Dated as of August 20, 2019
OPIC/9000083212
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND INTERPRETATION 1
SECTION 1.01. Definitions and Interpretation 1
ARTICLE II AMOUNT AND TERMS OF THE LOAN 1
SECTION 2.01. Amount and Disbursement 1
SECTION 2.02. Interest; Default Interest 1
SECTION 2.03. Repayment of the Loan 2
SECTION 2.04. Voluntary Prepayment 2
SECTION 2.05. Mandatory Prepayment 3
SECTION 2.06. Loan Fees and Cancellation 3
SECTION 2.07. Tax Gross-Up; Stamp Duties; Proper Legal Form 4
SECTION 2.08. MISCELLANEOUS 4
ARTICLE III REPRESENTATIONS AND WARRANTIES 5
SECTION 3.01. Representations and Warranties 5
ARTICLE IV CONDITIONS PRECEDENT TO FIRST DISBURSEMENT 10
SECTION 4.01. Transaction Documents 10
SECTION 4.02. AUTHORIZATION 11
SECTION 4.03. OWNERSHIP 11
SECTION 4.04. CONSENTS 11
SECTION 4.05. SITE 11
SECTION 4.06. Security Interest 12
SECTION 4.07. INSURANCE 12
SECTION 4.08. ACCOUNTANTS 12
SECTION 4.09. LEGAL OPINIONS 13
SECTION 4.10. Appointment of Agent 13
SECTION 4.11. DSR ACCOUNT 13
SECTION 4.12. Financial Projections 13
SECTION 4.13. Construction Budget 13
SECTION 4.14. PRODUCTION RIGHT 13
SECTION 4.15. Environmental and Social Requirements 13
SECTION 4.16. Offtake Agreements 13
SECTION 4.17. DUE DILIGENCE 14
SECTION 4.18 Financial Statements 14
SECTION 4.19 Equity Contributions 14
SECTION 4.20. Independent Engineer Report 14
SECTION 4.21. Feasibility Studies 14
SECTION 4.22. Stakeholder Engagement Plan 14
SECTION 4.23. MOLOPO LOAN 14
SECTION 4.24. LAND BANK DEED OF SALE 14
SECTION 4.25. NOTICE TO PROCEED 14
ARTICLE V CONDITIONS PRECEDENT TO EACH DISBURSEMENT; ADDITIONAL CONDITIONS TO DISBURSEMENT OF THE CONTINGENCY COMMITMENT 15
SECTION 5.01. Disbursement Request 15
SECTION 5.02. Representations and Defaults 15
SECTION 5.03. Change in Circumstances 15
SECTION 5.04. NOTE 15
SECTION 5.05. Closing Certificate 15
TABLE OF CONTENTS
(continued)
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SECTION 5.06. Financial Information and Project Progress 16
SECTION 5.07. Payment or Reimbursement of Expenses 16
SECTION 5.08. SECURITY 16
SECTION 5.09. [RESERVED] 16
SECTION 5.10. DSR REQUIREMENT 16
SECTION 5.11. Independent Engineer Certificate 16
SECTION 5.12. Funding Arrangements 16
SECTION 5.13. Second Disbursement Equity Contribution 16
SECTION 5.14. OTHER DOCUMENTS 17
SECTION 5.16. SITE 17
SECTION 5.17. Balance of Plant Contract 17
ARTICLE VI AFFIRMATIVE COVENANTS 17
SECTION 6.01. Project Completion 18
SECTION 6.02. Company Operations 18
SECTION 6.03. Maintenance of Rights and Compliance with Laws 18
SECTION 6.04. Maintenance of Insurance 18
SECTION 6.05. Accounting and Financial Management 19
SECTION 6.06. Financial Statements and Other Information 19
SECTION 6.07. Access to Records; Inspection; Meetings; Cooperation 20
SECTION 6.08. Notice of Default and Other Matters 21
SECTION 6.09. Security Documents 21
SECTION 6.10. Financial Ratios; DSR Requirement 22
SECTION 6.11. Environmental, Health and Safety Compliance 22
SECTION 6.12. WORKER RIGHTS 24
SECTION 6.13. Additional Project Documents 25
SECTION 6.14 Liquefaction Plant Intellectual Property 25
SECTION 6.15 Operating License 25
SECTION 6.16 Re-zoning Property 25
ARTICLE VII NEGATIVE COVENANTS 26
SECTION 7.01. LIENS 26
SECTION 7.03. No Alteration or Assignment of Agreements 27
SECTION 7.04. Restricted Payments and Shareholder Payments 28
SECTION 7.05. Conduct of Business with Affiliates 28
SECTION 7.06. No Sale of Assets; Mergers 28
SECTION 7.07. Lease Obligations 28
SECTION 7.08. Ordinary Conduct of Business 28
SECTION 7.09. OFAC COMPLIANCE 29
SECTION 7.10. Prohibited Payments 29
SECTION 7.11. Inverted Domestic Corporation 30
SECTION 7.12. PHASE II EXPANSION 30
SECTION 7.13 Construction Budget 30
SECTION 7.14 PROJECT; SITE 30
SECTION 7.15 Prepayment of Phase II Indebtedness 30
ARTICLE VIII DEFAULTS AND REMEDIES 30
SECTION 8.01. EVENTS OF DEFAULT 30
SECTION 8.02. Remedies upon Event of Default 34
SECTION 8.03. Jurisdiction and Consent to Suit; Waivers 34
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TABLE OF CONTENTS
(continued)
Page
SECTION 8.04. Judgment Currency 35
SECTION 8.05. NO IMMUNITY 36
ARTICLE IX MISCELLANEOUS 36
SECTION 9.01. NOTICES 36
SECTION 9.02. ENGLISH LANGUAGE 37
SECTION 9.03. GOVERNING LAW 37
SECTION 9.04. Succession and Assignment; Benefit; Transfer to DFC 37
SECTION 9.05. Survival of Agreements 38
SECTION 9.06. Integration; Amendments 38
SECTION 9.07. SEVERABILITY 38
SECTION 9.08. NO WAIVER 38
SECTION 9.09. WAIVER OF JURY TRIAL 38
SECTION 9.10. INDEMNITY 39
SECTION 9.11. Further Assurances 39
SECTION 9.12. Counterparts; Electronic Execution 39
SECTION 9.13. Waiver of Litigation Payments 40
SECTION 9.14. Cooperation; Loan Servicing 40
SCHEDULES
2.08(b) Wire Transfer Instructions for Remittance of Payments to OPIC 3.01(d) Capitalization
3.01(l) Project Costs and Financing Plan
3.01(m) Disclosure
3.01(n) Other Business
3.01(v) Employee Benefit Plan 4.01(c)(iii) Land Use Agreements
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TABLE OF CONTENTS
(continued)
Page
EXHIBITS
B Disbursement Request
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FINANCE AGREEMENT
THIS FINANCE AGREEMENT, dated as of August 20, 2019 (this “Agreement”), is made by and between TETRA4 PROPRIETARY LIMITED, a limited liability company duly registered and validly existing under the laws of the Republic of South Africa (the “Borrower”), and OVERSEAS PRIVATE INVESTMENT CORPORATION, an agency of the United States of America (“OPIC”).
The Borrower intends to implement the Project and has requested that OPIC provide a credit facility pursuant to Section 234(b) of the Foreign Assistance Act of 1961, as amended, which OPIC is willing to do on the terms and conditions set forth herein. Accordingly, in consideration of the foregoing and of the agreements contained herein, it is agreed as follows:
SECTION 1.01. Definitions and Interpretation.
In this Agreement, including the Exhibits and Schedules hereto, (a) capitalized terms used but not otherwise defined have the meanings set forth in the attached Schedule X, and (b) the rules of interpretation set forth in Schedule X apply.
AMOUNT AND TERMS OF THE LOAN
SECTION 2.01. Amount and Disbursement.
SECTION 2.02. Interest; Default Interest.
provided, that if the Payment Date immediately following any Closing Date occurs within fifteen (15) Business Days of such Closing Date, the Borrower shall make its first interest payment under the related Note on the second Payment Date following such Closing Date.
and the Borrower shall, on demand, pay to OPIC the amount of such OPIC Guaranty Payment, together with interest thereon at the Default Rate (adjusted as provided in this Section 2.02(c)) in lieu of the OPIC Note Interest Rate.
SECTION 2.03. Repayment of the Loan.
The Borrower shall repay the Loan in approximately equal quarterly installments (collectively, the “Principal Installments”) on each Payment Date beginning August 1, 2022 (the period from the first Closing Date until such date, the “Grace Period”); and ending no later than the thirty-seventh (37th) Payment Date, August 15, 2031, following the end of the Grace Period (the “Loan Maturity Date”).
SECTION 2.04. Voluntary Prepayment.
Subject to the requirements of the Funding Documents, including payment of any Redemption Premium payable thereunder, on any Designated Prepayment Date following the last day of the Commitment Period, the Borrower may, upon not less than forty-five (45) days nor more than sixty (60) days’ prior notice to OPIC, prepay the Loan, in whole or in part, in a minimum partial prepayment amount of $5,000,000, together with the payment to OPIC of (a) interest accrued to the date of prepayment on the portion of the principal amount of each Note that is to be prepaid, and (b) a premium (the “Prepayment Premium”), calculated as a percentage of the Loan amount prepaid, in accordance with the following schedule:
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Year Following Expiration of Commitment Period
Year 1
Year 2
Year 3 and thereafter
Prepayment Premium
2%
1%
None
All voluntary prepayments shall be applied in accordance with the terms of the OPIC Funding Agreement.
SECTION 2.05. Mandatory Prepayment.
Subject to the requirements of the Funding Documents, including payment of any Redemption Premium payable thereunder, the Borrower shall, upon not less than forty-five (45) days nor more than sixty (60) days’ prior notice to OPIC (which notice shall be given as soon as practicable but no later than five (five) Business Days after the date the events stated in clause (a)-(c) below have occurred), prepay the Loan in the event that:
All mandatory prepayments shall be applied in accordance with the terms of the OPIC Funding Agreement.
SECTION 2.06. Loan Fees and Cancellation.
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SECTION 2.07. Tax Gross-Up; Stamp Duties; Proper Legal Form.
SECTION 2.08. Miscellaneous.
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Documents, including (i) the fees and expenses of outside legal counsel and business consultants, and
(ii) the costs of communications, preparation of any documents, authentication, registration, and recordation of any of the Financing Documents, preparation of a monitoring memorandum for OPIC’s use, and preparation of bound volumes or an electronic closing set of the Financing Documents for OPIC’s use, and termination of the Liens created pursuant to the Security Documents . The Borrower shall also reimburse OPIC, upon demand, for all costs and expenses (including attorneys’ fees and expenses and costs of travel) incurred by OPIC (A) in preserving in full force and effect, or enforcing its rights under, any of the Financing Documents or (B) in addition to the Modification Fee, in connection with the modification, amendment, or waiver of any provision of any Financing Document.
SECTION 3.01. Representations and Warranties.
The Borrower represents and warrants to OPIC that:
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case, free and clear of all Liens (other than Permitted Liens). Other than the rights referred to in the preceding sentences, no property rights (including easements, servitudes or other rights of ingress or egress) are required or can reasonably be expected to be necessary for the design, development, construction, supply, start-up, commissioning, testing, financing, implementation, operation or maintenance of the Project in accordance with Applicable Law and the Transaction Documents. All utility and other services, means of transportation, facilities, other materials, and other rights that are or can reasonably be expected to be necessary for the Project in accordance with Applicable Law and the Transaction Documents have been procured or are commercially available to the Project. Except as disclosed on Schedule 3(j), no material licenses, trademarks, patents, or other similar agreements are necessary for the design, operation or ownership of the Project. Upon Project Completion, the Gas Gathering System and the Liquefaction Plant will be located within the Production Area (as such term is defined in the Production Right) and on the Site.
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Agreement is amended to reflect the changes in any such schedule, no change shall be deemed to have been made.
CONDITIONS PRECEDENT TO FIRST DISBURSEMENT
Unless OPIC otherwise agrees in writing, the obligation of OPIC to make the first Disbursement is subject to the prior fulfillment, to OPIC’s satisfaction in its sole discretion, of the following conditions precedent as of the date that is ten (10) days prior to the first Closing Date and to their continued fulfillment on the first Closing Date:
SECTION 4.01. Transaction Documents.
OPIC shall have received the following documents, each of which shall be satisfactory to OPIC in form and substance and, if applicable, shall have been duly executed by the parties thereto and shall be in full force and effect in accordance with its terms without default:
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Cession, to the extent such consent is not provided in any Construction Contract Guarantee);
The Loan Documents, the Funding Documents, and the Security Documents, together with any other agreements or instruments entered into in connection with any of the foregoing or pursuant to which the Loan is made and designated by the parties thereto as a “Financing Document”, are collectively referred to herein as the “Financing Documents.” The Financing Documents and the Project Documents are collectively referred to herein as the “Transaction Documents.”
SECTION 4.02. Authorization.
OPIC shall have received a certificate of an Authorized Officer of the Borrower, dated the Closing Date substantially in the form of Exhibit C-1 and of each Shareholder, dated as of the Closing Date, substantially in the form of Exhibit C-2.
SECTION 4.03. Ownership.
OPIC shall have received evidence satisfactory to it, which evidence shall include Certified copies of relevant stock certificates, that the Shareholders hold the legal and beneficial title to the equity of the Borrower in the percentages set forth in Part I of Schedule 3.01(d).
SECTION 4.04. Consents.
OPIC shall have received Certified copies of any Consent (a) required by any relevant Governmental Authority, (b) obtained in order to satisfy Sections 3.01(b) and 3.01(i), or (c) which is, in the opinion of legal counsel to OPIC, necessary or advisable, in each case, for (i) the Financing Documents, and the payment of all amounts due or to become due with respect thereto, not to be subject to any Taxes, (ii) the execution, delivery, and performance by the Borrower and by each Shareholder of each Transaction Document to which it is a party, (iii) all such other Consents that are necessary for the Borrower to carry out its business and the Project, or (iv) the registration of the Loan with the Financial Surveillance Department of the South Africa Reserve Bank in the Project Country and evidence of all foreign exchange or other Consents necessary for the payment of all amounts payable under the Transaction Documents. Each such Consent is listed in Part A of Schedule 4.04.
SECTION 4.05. Site.
Except for the Land Use Agreement identified in Schedule 4.05, OPIC shall have received evidence in form and substance satisfactory to it that the Borrower holds lawful, valid and irrevocable
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rights to use the entire Site, together with lawful, valid and irrevocable right of use all necessary easements, servitudes and other rights of ingress and egress for the development, construction, operation and maintenance of the Project free and clear of any Liens other than Permitted Liens, and that such Site (together with such easements, servitudes and rights of ingress and egress) is sufficient for the Borrower to develop, construct, operate and maintain the Project as contemplated by the Transaction Documents.
SECTION 4.06. Security Interest.
SECTION 4.07. Insurance.
OPIC shall have received Certified copies of the insurance policies required by and issued in accordance with Section 6.04, showing OPIC’s endorsement as additional insured, together with evidence that such policies are in full force and effect without default.
SECTION 4.08. Accountants.
OPIC shall have received evidence that the Borrower has irrevocably instructed its accountants to communicate directly with OPIC regarding the Borrower’s accounts and operations pursuant to Section 6.05(a)(v).
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SECTION 4.09. Legal Opinions.
OPIC shall have received favorable written opinions, dated the Closing Date, satisfactory to OPIC in form and substance, of: (a) Fasken (incorporated in South Africa as Bell Dewar Inc.), the Borrower and the Sponsor’s legal counsel in the Project Country; (b) C.D.A. Loxton SC, the Sponsor’s special mining counsel in the Project Country; (c) Edward Nathan Sonnenbergs Inc, OPIC’s counsel in the Project Country; (d) Norton Rose Fulbright, the Borrower’ legal counsel in the United States; (e) Olivier & Partners, counsel to the EPC Contractor (Gas Gathering) in the Project Country; and (f) JunHe LLp, counsel to the Borrower in the Peoples Republic of China.
SECTION 4.10. Appointment of Agent.
OPIC shall have received evidence that the agent for service of process referred to in Section 8.03(c) has been duly appointed and holds such appointment without reservation until six (6) months after the Loan Maturity Date, together with evidence of the prepayment in full of the fees of such agent.
SECTION 4.11. DSR Account.
OPIC shall have received evidence that the DSR Account shall have been established.
SECTION 4.12. Financial Projections.
OPIC shall have received financial projections for the Project through six (6) months after the Loan Maturity Date, including projected financial statements prepared in English and in Dollars, which shall be satisfactory to OPIC in form and substance.
SECTION 4.13. Construction Budget.
OPIC shall have received a final construction budget, which shall be satisfactory to OPIC.
SECTION 4.14. Production Right.
OPIC shall have received Certified copies of the Production Right. The Production Right shall be in full force and effect and satisfactory to OPIC.
SECTION 4.15. Environmental and Social Requirements.
The Borrower shall deliver the Environmental and Social Plans, which shall be acceptable to OPIC in its sole discretion.
SECTION 4.16. Offtake Agreements
OPIC shall have received Certified copies of the Offtake Agreements in effect on the date of this Agreement which shall be satisfactory to OPIC.
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SECTION 4.17. Due Diligence.
OPIC shall have completed to its satisfaction its due diligence investigation of the Borrower, the Shareholders and any other party required to satisfy the U.S. connections requirement, the Project, and all other matters relating thereto, and the results of such investigations shall be satisfactory to OPIC.
SECTION 4.18Financial Statements
OPIC shall have received (a) the Sponsor’s audited Financial Statements dated February 28, 2019, and (b) the Borrower’s audited Financial Statements, dated February 28, 2019 (such Financial Statements, collectively, the “Original Financial Statements”).
SECTION 4.19 Equity Contributions
OPIC shall have received evidence satisfactory to it, that (x) the Borrower has received cash equity contributions or proceeds under Sponsor shareholder loans fully subordinated to the Loan on terms satisfactory to OPIC in an aggregate amount at least equal to $14,812,286 (Fourteen Million Eight Hundred Twelve Thousand Two Hundred Eighty Six 00/100 Dollars) (the “First Disbursement Equity Contribution”), and (y) the proceeds of the First Disbursement Equity Contribution shall have been applied to the payment of Project Costs in accordance with the Project Costs and Financing Plan.
SECTION 4.20. Independent Engineer Report.
OPIC shall have received the final report of the Independent Engineer in form and substance satisfactory to OPIC.
SECTION 4.21. Feasibility Studies.
All feasibility studies, appraisals, and reserve reports required of Borrower or Sponsor in connection with listing on the JSE Securities Exchange, JSE Alternative Exchange, or ASX Exchange shall have been completed and submitted to OPIC, and each shall be satisfactory to OPIC in its sole discretion.
SECTION 4.22. Stakeholder Engagement Plan
OPIC shall have received the Stakeholder Engagement Plan.
SECTION 4.23. Molopo Loan
OPIC shall have received a Certified copy of the Molopo Loan.
SECTION 4.24. Land Bank Deed of Sale
OPIC shall have received an amendment to the Land Bank Deed of sale executed by the parties to the Land Bank Deed of Sale in form and substance satisfactory to it and evidence that the Borrower has provided the bank guarantee required under the Land Bank Deed of Sale (as amended).
SECTION 4.25. Notice to Proceed
The Borrower shall have submitted a Notice to Proceed (as such term is defined in the EP Contract (Liquefaction Plant) to the counterparty under the EP Contract (Liquefaction Plant) and a notice of satisfaction (or waiver) of the Suspensive Conditions in favor of the Borrower (as defined in the EPC Contract (Gas Gathering)) to the counterparty under the EPC Contract (Gas Gathering).
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SECTION 4.26 Lombard Approval
The Borrower shall have provided evidence satisfactory to OPIC of the approval in writing of the EPC Contract (Gas Gathering) by Lombard Insurance Company Limited.
CONDITIONS PRECEDENT TO EACH DISBURSEMENT; ADDITIONAL CONDITIONS TO DISBURSEMENT OF THE CONTINGENCY COMMITMENT
Unless OPIC otherwise agrees in writing, the obligation of OPIC to make each Disbursement (including the first Disbursement) is subject to the prior fulfillment, to OPIC’s satisfaction in its sole discretion, of the following conditions precedent as of the date that is ten (10) days prior to such Closing Date and to their continued fulfillment on such Closing Date; provided that the conditions precedent in: (i) Section 5.15 need only be satisfied with respect to the third Disbursement pursuant to Section 2.01; and (ii) Section 5.13, Section 5.16 and Section 5.17 need only be satisfied with respect to the second Disbursement:
SECTION 5.01. Disbursement Request.
The Borrower shall have delivered a Disbursement Request in accordance with Section 2.01(b).
SECTION 5.02. Representations and Defaults.
Each of the representations and warranties of the Borrower and each Shareholder set forth in this Agreement and in each of the other Financing Documents shall be true and correct in all material respects (except with respect to any provision including the word “material” or words of similar import, with respect to which such representations and warranties shall be true and correct) on such Closing Date as if made on such Closing Date after giving effect to such Disbursement or if any such representation relates exclusively to an earlier date, as of such earlier date, and on such Closing Date no Default or Event of Default shall have occurred and be continuing or will result from the making of such Disbursement or from the application of the proceeds thereof.
SECTION 5.03. Change in Circumstances.
As of such Closing Date, nothing shall have occurred and be continuing that, in the reasonable judgment of OPIC, could reasonably be expected to be a Material Adverse Effect.
SECTION 5.04. Note.
The Borrower shall have furnished OPIC with an executed Note issued in connection with such Disbursement in accordance with Section 2.01(b).
SECTION 5.05. Closing Certificate.
The Borrower shall have furnished OPIC with a certificate of an Authorized Officer, dated the Closing Date, substantially in the form of Exhibit D.
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SECTION 5.06. Financial Information and Project Progress.
Not less than ten (10) Business Days before such Closing Date, OPIC shall have received: (a) all Financial Statements, reports, and other information that the Borrower, pursuant to Section 6.06, would otherwise be required to furnish to OPIC on or before such Closing Date; and (b) a report, satisfactory to OPIC in form and substance, setting forth in reasonable detail the progress of the Project, including the items described in Section 6.06(c).
SECTION 5.07. Payment or Reimbursement of Expenses.
All Fees and other amounts due, payable or reimbursable by the Borrower with respect to the Loan on or prior to such Closing Date shall have been paid in full.
SECTION 5.08. Security.
Each Lien created by the Security Documents required to be issued pursuant to Section 6.09) shall be of first priority and shall be enforceable against the Borrower, any Shareholder (where applicable) and third parties (including any holder of a subsequently established Lien). Each of the Security Documents required to be issued pursuant to Section 6.09 shall be in full force and effect and shall have been duly filed and registered or recorded in every jurisdiction in which such filing and registration or recording is necessary to make valid and effective the Liens intended to be created thereby and the rights of OPIC thereunder, and OPIC shall have received the legal opinions required to be delivered under Section 6.09. with respect to such Security Documents.
SECTION 5.09. [Reserved]
SECTION 5.10. DSR Requirement.
Except for the first Disbursement, OPIC shall have received evidence that the DSR Account has been funded in an amount equal to the DSR Requirement in accordance with Section 6.10(c).
SECTION 5.11. Independent Engineer Certificate.
OPIC shall have received from the Independent Engineer a certificate in the form of Exhibit X and otherwise in form and substance satisfactory to OPIC.
SECTION 5.12. Funding Arrangements.
Suitable arrangements shall have been made for funding such Disbursement in accordance with the Funding Documents, which funding arrangements and Funding Documents shall be satisfactory to OPIC in form and substance, including without limitation satisfaction by the Borrower of all conditions precedent to the obligations of any other party to the Funding Documents and performance by the Borrower of all other obligations on its part to be performed prior to the making of such Disbursement pursuant to any Transaction Document.
SECTION 5.13. Second Disbursement Equity Contribution
OPIC shall have received evidence satisfactory to it, that (x) the Borrower has received cash equity contributions or proceeds under Sponsor shareholder loans fully subordinated to the Loan on terms satisfactory to OPIC in an aggregate amount at least equal to $10,156,421 (Ten Million One Hundred Fifty Six Thousand Four Hundred Twenty One 00/100 Dollars), assuming USD to ZAR exchange rate of
14.65 as stipulated in the Base Case Financial Model (the “Second Disbursement Equity
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Contribution”), and (y) the proceeds of the Second Disbursement Equity Contribution shall have been applied to the payment of Project Costs in accordance with the Project Costs and Financing Plan.
SECTION 5.14. Other Documents.
OPIC shall have received any document required to have been delivered pursuant to Sections 6.03, 6.09 or 6.13 and any such other certificates, opinions, agreements, and documents, and translations of any of the foregoing, each satisfactory to OPIC in form and substance, as it may reasonably request.
SECTION 5.15. Disbursement of Contingency Commitment.
SECTION 5.16. Site.
OPIC shall have received a Certified copy of the Second Disbursement Lease executed by the parties thereto.
SECTION 5.17. Balance of Plant Contract.
OPIC shall have received the Balance of Plant Contract together with the applicable Construction Contract Guarantee, which shall each have been concluded on the terms and conditions set forth in the BOP Term Sheet and otherwise on terms reasonably satisfactory to OPIC and shall have been duly executed by the parties thereto and shall be in full force and effect in accordance with its terms without default. OPIC shall have received a legal opinion with respect to the Balance of Plant Contract from Fasken (incorporated in South Africa as Bell Dewar Inc.), the Borrower’s legal counsel in the Project Country, in form and substance satisfactory to it.
Unless OPIC otherwise agrees in writing, so long as the Commitment remains outstanding or until all amounts due and to become due hereunder and under the Notes shall have been indefeasibly paid in full, the Borrower agrees as follows:
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SECTION 6.01. Project Completion.
The Borrower shall: (a) implement the Project promptly in accordance with the Construction Contracts, the Project Costs and Financing Plan, and Prudent Industry Practices; (b) apply the proceeds of the Loan exclusively to the Project Costs; and (c) use its best efforts to cause Project Completion to be achieved on or prior to March 28, 2022. If the Borrower becomes unable to achieve Project Completion, or becomes unable to meet its other obligations prior to Project Completion, the Borrower shall promptly so notify OPIC.
SECTION 6.02. Company Operations.
SECTION 6.03. Maintenance of Rights and Compliance with Laws.
The Borrower shall: (a) obtain, maintain in full force and effect, and renew all Consents, leases and other rights in land, and franchises necessary for the conduct of its business and the performance of its obligations hereunder and under the other Transaction Documents; (b) conduct its business in compliance with its Charter Documents, the Production Right (including, without limitation, clause 20 thereof) and Consents, and in all material respects with Applicable Laws; and (c) duly pay before they become overdue all Taxes levied or imposed in any jurisdiction upon its property, earnings, or business that, if not paid, could reasonably be expected to be a Material Adverse Effect, and all Indebtedness in a timely manner in accordance with normal business practices and with the terms governing the same, except amounts being contested in good faith by appropriate proceedings diligently pursued for which adequate reserves shall have been set aside in accordance with Accounting Standards. To the extent that any Consent was not obtained by the Borrower prior to the first Disbursement, in accordance with Schedule 4.04, the Borrower shall promptly deliver to OPIC a Certified copy of any Consent obtained after the first Disbursement.
SECTION 6.04. Maintenance of Insurance.
The Borrower shall maintain or cause to be maintained in effect at all times insurance, with respect to the Project, against such risks and hazards, in such amounts, and in such form, as is usually carried by companies of a similar size that are engaged in the same or a similar business and that own similar properties in the same or similar geographic area as the Project. All such insurance shall be maintained with reputable insurance companies and shall, at OPIC’s request, name OPIC as an additional insured and/or loss payee thereunder.
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SECTION 6.05. Accounting and Financial Management.
SECTION 6.06. Financial Statements and Other Information.
At its cost, the Borrower shall furnish to OPIC each of the following:
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SECTION 6.07. Access to Records; Inspection; Meetings; Cooperation.
The Borrower shall, upon OPIC’s request, give, or cause to be given, to any representatives of OPIC access during normal business hours to the Site and the Borrower’s business and permit them to: (a) examine, copy, and make extracts from, any and all records and documents in the possession or subject to the control of the Borrower relating to its operations and financial affairs; (b) inspect any of its facilities or properties; and (c) communicate with employees, agents, or contractors of the Borrower who have or may have knowledge of matters with respect to which OPIC seeks information. If a Default or Event of Default shall have occurred and be continuing and if OPIC so requests, the Borrower shall give OPIC not less than fifteen (15) days’ notice of, and shall permit an OPIC representative to attend, as a non-voting observer, each meeting of the Borrower’s members.
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SECTION 6.08. Notice of Default and Other Matters.
The Borrower shall notify OPIC immediately of: (a) the occurrence of any Default or Event of Default and any steps the Borrower is taking to remedy such situation; (b) any legal or arbitral proceedings against the Borrower or the Sponsor, as the case may be, involving claims that either individually or in the aggregate at any given time exceed the equivalent of $500,000 or that otherwise could reasonably be expected to be a Material Adverse Effect; (c) any failed easement negotiation which results in (x) arbitration and/or (y) the compulsory granting of an easement over any portion of the Site (any such failed easement negotiation, a “Compulsory Easement Event”); and (d) the occurrence of any other condition or event (including action by any Governmental Authority) that could reasonably be expected to be a Material Adverse Effect and any steps the Borrower or the Sponsor, as the case may be, is taking to remedy such situation.
SECTION 6.09. Security Documents.
(i) LNG plant; (ii) helium plant; (iii) loading LNG; and (iv) loading helium included in the Liquefaction Plant within ninety (90) days of the delivery of the last component of the Liquefaction Plant to the Site;
(iii) and provide OPIC with evidence of each such registration with the appropriate Deeds Office in the Project Country no later than three (3) days after such registration.
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SECTION 6.10. Financial Ratios; DSR Requirement.
(4) consecutive full fiscal quarters, taken as a single accounting period, to Debt Service for the most recently completed four (4) consecutive full fiscal quarters, taken as a single accounting period, of not less than 1.30 to 1; and (ii) a ratio of Cash Flow for the most recently completed four (4) consecutive full fiscal quarters, taken as a single accounting period, to Debt Service for the next succeeding four (4) consecutive full fiscal quarters of not less than 1.3 to 1.
SECTION 6.11. Environmental, Health and Safety Compliance.
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the use, generation, storage, transportation, or disposal of toxic or hazardous substances or wastes; and (F) other environment, health and safety, and social performance matters.
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SECTION 6.12. Worker Rights.
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(c) Notwithstanding the foregoing, the Borrower shall not be responsible for any Policy Non-Compliance with the Worker Rights Requirements resulting from the actions of a government.
SECTION 6.13. Additional Project Documents.
(b) The Borrower shall promptly deliver to OPIC a Certified copy of any other Project Document entered into after the first Closing Date, or any amendment to any Project Document pursuant to Section
7.03 which Project Document or amendment shall be in form and substance satisfactory to OPIC.
SECTION 6.14 Liquefaction Plant Intellectual Property
The Borrower shall procure, preserve and maintain all Intellectual Property owned or licensed by it necessary for the operation of the Liquefaction Plant.
SECTION 6.15 Operating License
The Borrower shall: (i) apply to the National Energy Regulator for South Africa (“NERSA”) for the issuance of an operating license pursuant to Section 15(1)(b) of the Gas Act 48 of 2002 (as amended) for the operation of the Liquefaction Plant; and (ii) obtain such operating license prior to the commencement of operations of the Liquefaction Plant or March 31, 2021, whichever occurs first, unless the Borrower can demonstrate to OPIC’s satisfaction prior to commencement of operations of the Liquefaction Plant or March 31, 2021, as applicable, that the Borrower does not require an operating license under the Gas Act for the operation of the Liquefaction Plant.
SECTION 6.16 Re-zoning Property
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Liquefaction Plant) on the Re-Zoning Property. The Borrower shall use its best efforts to obtain written approval of such change in land use in the form of a municipal resolution and a zoning certificate issued by The Municipality of Matjhabeng and deliver that resolution and certificate to OPIC by no later than the earlier to occur of (i) commencement of construction of the Liquefaction Plant on the Re-zoning Property or (ii) September 1, 2020.
Unless OPIC otherwise agrees in writing, so long as the Commitment remains outstanding or until all amounts due and to become due hereunder and under the Notes shall have been indefeasibly paid in full, the Borrower agrees as follows:
SECTION 7.01. Liens.
The Borrower shall not, directly or indirectly, create, assume, or otherwise permit to exist any Lien on any of its assets, whether now owned or hereafter acquired, or in any proceeds or income therefrom, except for the following Liens (collectively, the “Permitted Liens”):
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SECTION 7.02. Indebtedness.
The Borrower shall not incur, assume, guarantee, or permit to exist, or otherwise become liable for Indebtedness except the following Indebtedness:
$2,000,000;
SECTION 7.03. No Alteration or Assignment of Agreements.
The Borrower shall not terminate, amend, grant any waiver of, suspend or assign any of the respective duties or obligations under, any provision of any Borrower Document (other than (i) amendments or waivers, either to correct manifest error or which are of a stylistic, minor, or purely technical nature and do not change materially any Person’s rights or obligations; provided, that the Borrower shall promptly give OPIC notice, and provide OPIC with a copy, of such amendment or waiver or (ii) any suspension permitted by the immediately succeeding sentence). Borrower shall not issue any notice of suspension under a Project Contract without OPIC’s consent, provided that the Borrower may issue a notice of suspension without OPIC’s prior consent if required to address any health and safety or other regulatory requirement and such suspension does not exceed 30 days, provided, further that Borrower shall promptly (and in any event no later than three (3) Business Days after the issuance of such notice of suspension) provide OPIC with copy of any notice of suspension issued hereunder. In addition, the Borrower shall not enter into any additional Project Documents exceeding a value of $500,000, without OPIC’s prior written consent.
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SECTION 7.04. Restricted Payments and Shareholder Payments.
The Borrower shall not make, or incur any obligation to make, any Restricted Payment or any Shareholder Payment; provided, however, that after (a) Project Completion and (b) the Borrower has paid at least one (1) Principal Installment, the Borrower may make Restricted Payments and Shareholder Payments on a Restricted Payment Date if, but only if, after giving effect to each such Restricted Payment or Shareholder Payment, (i) no Default or Event of Default shall have occurred and be continuing or will occur as a result of such Restricted Payment or Shareholder Payment, and (ii) the Borrower shall be in compliance with the financial ratios set forth in Section 6.10. For the avoidance of doubt, the ratios in Section 6.10(a)(i), Section 6.10(a)(ii) and Section 6.10(b) shall also be met notwithstanding the 18 months provided for after Project Completion.
SECTION 7.05. Conduct of Business with Affiliates.
The Borrower shall not conduct any business with or enter into any business transaction involving any Shareholder or any Affiliate of a Shareholder, except on an arm’s-length basis and subject to the reporting requirement set forth in Section 6.06(d).
SECTION 7.06. No Sale of Assets; Mergers.
The Borrower shall not:
SECTION 7.07. Lease Obligations.
The Borrower shall not enter into any agreement or arrangement to acquire by lease the use of any property or equipment of any kind, if the annual rental payable under such lease, when aggregated with the annual rentals payable under all other leases already entered into by the Borrower, would exceed
$2,000,000 or its equivalent in any Fiscal Year.
SECTION 7.08. Ordinary Conduct of Business.
The Borrower shall not:
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SECTION 7.09. OFAC Compliance.
SECTION 7.10. Prohibited Payments.
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SECTION 7.11. Inverted Domestic Corporation
The Borrower shall not become an Inverted Domestic Corporation or a Subsidiary Of An Inverted Domestic Corporation.
SECTION 7.12. Phase II Expansion
The Borrower shall not undertake the Phase II Expansion or incur any Indebtedness (including any Liens) with respect to the Phase II Expansion without OPIC’s prior written consent.
SECTION 7.13 Construction Budget
The Borrower shall not amend the Construction Budget to increase expenditures for the Project unless the remaining unfunded Commitment (including the Contingency Commitment), if fully utilized, would, in OPIC’s judgment (in consultation with the Independent Engineer), be sufficient to achieve Project Completion.
SECTION 7.14 Project; Site.
The Borrower shall not use, maintain, operate, or occupy, or allow the use, maintenance, operation, or occupancy of, any portion of the Site or the Project, other than in accordance with the Transaction Documents.
SECTION 7.15 Prepayment of Phase II Indebtedness
The Borrower shall not make or permit to be made on its behalf any prepayment of any Phase II Indebtedness unless the Borrower shall have made a contemporaneous pro rata voluntary prepayment of the Loan pursuant to Section 2.04.
SECTION 8.01. Events of Default.
Each of the following events or circumstances shall constitute an “Event of Default”:
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(i) ceases to be in full force and effect, (ii) is declared to be void or is repudiated, (iii) is suspended or revoked, or terminated, (iv) the validity or enforceability thereof is at any time contested by the Borrower, any Shareholder or any other counter-party or (v) ceases to give or provide the respective rights, titles, remedies, powers, or privileges intended to be created thereby.
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Contract Guarantees), such occurrence could not reasonably be expected to have a Material Adverse Effect.
(iv) OPIC’s security interest or other rights in any portion of the collateral pledged pursuant to the Security Documents shall terminate in any manner other than that contemplated by the Financing Documents.
(w) such failure is susceptible of cure within such cure period plus sixty (60) days, (x) such Borrower is proceeding with diligence and in good faith to cure such failure, (y) the existence of such failure has not had and could not, after considering the nature of the cure, be reasonably expected to have a Material Adverse Effect, and (z) OPIC shall have received an officer's certificate signed by an Authorized Officer to the effect of clauses (v), (w), (x) and (y) above and stating what action such Borrower is taking to cure such failure, then such cure period shall be extended to such date, not to exceed a total of sixty (60) days after the original cure period, as shall be necessary for such Borrower diligently to cure such failure; (iii) a counterparty to a Construction Contract or a Construction Contract Guarantee fails to comply with or perform any of its material obligations or undertakings set forth in any Construction Contract or Construction Contract Guarantee and such failure continues beyond the applicable cure period (or, if no such period is specified, thirty (30) days) (the last day of the relevant period the “End Date”), provided, that such occurrence shall not constitute an Event of Default if an agreement replacing such Construction Contract to which such counterparty is a party, in form and substance, and with a counterparty, reasonably satisfactory to OPIC, is entered into within sixty (60) days from the End Date.
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Guarantees (or any successor thereto): (i) applies for, or consents to the appointment of, a receiver, trustee, custodian, intervenor, business rescue practitioner or liquidator of itself or of all or a substantial part of its assets; (ii) files a voluntary petition in bankruptcy, admits in writing that it is unable to pay its debts as they become due, or generally fails to pay its debts as they become due; (iii) makes a general assignment for the benefit of creditors; (iv) files a petition or answer seeking reorganization or an arrangement with creditors or to take advantage of any bankruptcy, reorganization, or insolvency laws;
(v) files an answer admitting the material allegations of, or consents to, or defaults in answering, a petition filed against it in any bankruptcy, reorganization, business rescue proceedings or insolvency proceeding where such action or failure to act will result in a determination of bankruptcy or insolvency against it; or (vi) takes any corporate action to authorize any of the foregoing.
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SECTION 8.02. Remedies upon Event of Default.
SECTION 8.03. Jurisdiction and Consent to Suit; Waivers.
The Borrower hereby irrevocably and unconditionally:
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SECTION 8.04. Judgment Currency.
This is an international loan transaction in which the specification of Dollars is of the essence and such currency shall be the currency of account in all events. The payment obligations of the Borrower to OPIC under any Financing Document shall only be discharged by an amount paid in another currency, whether pursuant to a judgment or otherwise, to the extent of the amount in Dollars received by OPIC (after any premium and costs of exchange) on the prompt conversion to Dollars in the U.S. of the amount so paid in another currency under normal banking procedures. In the event that any payment by the Borrower in another currency, whether pursuant to a judgment or otherwise, upon conversion and transfer, does not result in the payment of the amount of Dollars then due at the place such amount is due, OPIC shall be entitled to demand immediate payment of and shall have a separate cause of action against the Borrower for the additional amount necessary to yield the amount of Dollars then due. In the event that OPIC upon the conversion of a payment in another currency into Dollars receives an amount greater than that to which it was entitled, the Borrower shall be entitled to prompt reimbursement of the excess amount.
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SECTION 8.05. No Immunity.
The Borrower represents and warrants that it is subject to civil and commercial law with respect to its obligations under each of the Borrower Documents, that the making and performance of such Borrower Documents and the borrowings by the Borrower pursuant hereto constitute private and commercial acts rather than governmental or public acts, and that neither the Borrower nor any of its properties or revenues has any right of immunity from suit, court jurisdiction, attachment prior to judgment, attachment in aid of execution of a judgment, set-off, execution of a judgment, or from any other legal process with respect to its obligations under such Borrower Documents. To the extent that the Borrower may hereafter be entitled, in any jurisdiction in which judicial or arbitral proceedings may at any time be commenced with respect to any Borrower Document, to claim for itself or its revenues or assets any such immunity, and to the extent that in any such jurisdiction there may be attributed to the Borrower such an immunity (whether or not claimed), the Borrower hereby irrevocably agrees not to claim and hereby irrevocably waives such immunity. The foregoing waiver of immunity shall have effect under the United States Foreign Sovereign Immunities Act of 1976.
SECTION 9.01. Notices
To the Borrower:
Tetra 4 Propriety Limited
1 Bompas Road Dunkeld West Johannesburg, 2196
Attn.: Stefano Marani and Nick Mitchell
E-mail: stefano@renergen.za and nick@renergen.za Phone: +27 10 045 6000
To OPIC:
Overseas Private Investment Corporation 1100 New York Avenue, N.W. Washington, D.C. 20527
United States of America
Attn.: Vice President, Structured Finance & Insurance
And attn.: Managing Director, Portfolio Management Division E-mail: notices@opic.gov
Re: Tetra4 (South Africa) Loan No.: OPIC/9000083212
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other communications hereunder by notice to the other parties hereto. No notice, demand or other communication to OPIC, including notices or other communications delivered pursuant to Section 6.11 or Section 6.12, shall be effective unless such notice, demand or other communication includes Project Name: Tetra 4 (South Africa), Project Number: OPIC/9000083212, and, prior to the first Disbursement, attention to Vice President, Structured Finance & Insurance and, subsequent to the first Disbursement, attention to Managing Director, Portfolio Management Division.
SECTION 9.02. English Language.
All documents to be furnished or communications made under each of the Financing Documents shall be in English or, if in another language, shall be accompanied by a Certified translation into English, which translation shall govern between the Borrower and OPIC.
THIS AGREEMENT AND THE NOTES AND ANY CLAIM, CONTROVERSY, DISPUTE, OR CAUSE OF ACTION (WHETHER IN CONTRACT, TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE NOTES AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, UNITED STATES OF AMERICA.
SECTION 9.04. Succession and Assignment; Benefit; Transfer to DFC.
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SECTION 9.05. Survival of Agreements.
Each agreement, representation, warranty, and covenant contained or referred to in this Agreement shall survive any investigation at any time made by OPIC and shall survive all disbursements of the Loan, except for changes permitted hereby, and, except as otherwise provided in this Section, shall terminate only when all amounts due or to become due under the Financing Documents are indefeasibly paid in full. Without prejudice to the survival of any other agreement of the Borrower hereunder, the agreements and obligations of the Borrower contained in Sections 2.07, 2.08(a), and 9.10 shall survive the payment in full of principal and interest hereunder and under the Notes.
SECTION 9.06. Integration; Amendments.
This Agreement, including the Exhibits and Schedules hereto, and the agreements referred to herein embody the entire understanding of the parties and supersede all prior negotiations, understandings, and agreements between them with respect to the subject matter hereof. The provisions of this Agreement may be waived, supplemented, or amended only by an instrument in writing signed by the parties hereto.
SECTION 9.07. Severability.
If any provision of this Agreement is prohibited or held to be invalid, illegal, or unenforceable in any jurisdiction, the parties hereto agree to the fullest extent permitted by law that it shall not affect the validity, legality, and enforceability of the other provisions of this Agreement and shall not render such provision prohibited, invalid, illegal, or unenforceable in any other jurisdiction. If, and to the extent that, any obligation of the Borrower (including that under Section 9.10) is unenforceable for any reason it agrees, independently of any other obligation hereunder, to make the maximum contribution to the payment and satisfaction thereof as is permissible under Applicable Law.
SECTION 9.08. No Waiver.
THE BORROWER AND OPIC EACH IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT (INCLUDING THE RESOLUTION OF ANY DISPUTE) OR ANY OTHER TRANSACTION DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).
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SECTION 9.10. Indemnity.
The Borrower shall, at all times, indemnify OPIC and its directors, officers, employees, and agents (each, an “Indemnified Person”) against, and hold each Indemnified Person harmless from, any losses, claims, damages, liabilities, penalties, judgments, or other costs (including (i) costs, fees, and expenses incurred by or imposed on any Indemnified Person in defending, analyzing, settling, or resolving any of the foregoing, and the expenses associated with the making of any affirmative claim in connection therewith and (ii) payments made by the Lender at its sole discretion to cure payment defaults by the Borrower under the Construction Contracts) of any nature whatsoever to which an Indemnified Person may become subject (“Loss”) arising out of, in connection with, or related to the Loan (including any actual or proposed use of the proceeds of the Loan), this Agreement, any other Financing Document, the Project, or any actual or prospective litigation, investigation or proceeding relating to any of the foregoing, regardless of whether any Indemnified Person is a party thereto (the “Borrower Indemnity”). The Borrower Indemnity shall not apply to the extent that a court or arbitral tribunal with jurisdiction over the Loss and each Indemnified Person who has a Loss in connection therewith renders a final determination that the Loss resulted from (a) the gross negligence or willful misconduct of the Indemnified Person, or (b) OPIC’s failure to perform any act required of it relating to the Loan. The Borrower Indemnity is independent of and in addition to (i) any rights of any party hereto in connection with any Loss, and (ii) any other agreement, and shall survive the execution, modification, and amendment of this Agreement and the other Financing Documents, the expiration, cancellation, or termination of the Commitment, the disbursement and repayment of the Loan, and the provisions of any other indemnity. Any exclusion of an obligation to pay any amount under this Section shall not affect the requirement to pay such amount under any other Section hereof or under any other agreement. OPIC and each Indemnified Person shall have the right to control its, his, or her defense; provided, however, that each Indemnified Person shall: (A) notify the Borrower in writing as soon as practicable of any Loss, and
(B) keep the Borrower reasonably informed of material developments with respect thereto. In exercising the right and power to control his, her, or its actions in connection with a Loss, including a decision to settle any such Loss, each Indemnified Person shall, taking into account the nature and policies of such Indemnified Person (I) consult with the Borrower, and (II) act as such Indemnified Person would act if the Loss or settlement were to be paid by such Indemnified Person. The Borrower acknowledges and agrees that each Indemnified Person is an express, third-party beneficiary of the Borrower’s obligations under this Section 9.10.
SECTION 9.11. Further Assurances.
The Borrower shall execute and deliver to OPIC such additional documents and take such additional action as OPIC may require to carry out the purposes of the Financing Documents, to cause the Financing Documents to be duly registered, notarized, and stamped in any applicable jurisdiction, and to preserve and protect OPIC’s rights as contemplated herein or therein.
SECTION 9.12. Counterparts; Electronic Execution.
(a)] This Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which when so executed and delivered shall be deemed an original and all of which together shall constitute one and the same instrument.
(b) Delivery of an executed counterpart of a signature page of this Agreement in an electronic format (including .pdf, .tif, and .jpeg file format) shall be effective as delivery of a manually executed counterpart of this Agreement. The words “execution”, “signed”, “signature” and words of like import shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity, or enforceability as a manually executed signature or
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the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any Applicable Law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.
SECTION 9.13. Waiver of Litigation Payments.
In the event that any action or lawsuit is initiated by or on behalf of OPIC against the Borrower or any other party to any Transaction Document, the Borrower, to the fullest extent permissible under Applicable Law, irrevocably waives its right to, and agrees not to request, plead, or claim that OPIC and its successors, transfers, and assigns (any such Person, an “OPIC Plaintiff”) post, pay, or offer, any cautio judicatum solvi bond, litigation bond, or any other bond, fee, payment, or security measure provided for by any provision of law applicable to such action or lawsuit (any such bond, fee, payment, or measure, a “Litigation Payment”), and the Borrower further waives any objection that it may now or hereafter have to an OPIC Plaintiff’s claim that such OPIC Plaintiff should be exempt or immune from posting, paying, making, or offering any such Litigation Payment.
SECTION 9.14. Cooperation; Loan Servicing.
At its own expense OPIC may assign or delegate all or part of the responsibility for servicing the Loan to a Person that shall act as OPIC’s agent in addressing such matters as may be required in connection with the servicing of the Loan, in which case the Borrower shall cooperate with OPIC. Any Person who acquires the right to service the Loan shall benefit from the indemnity set forth in Section
9.10 (as if the name of such Person had been stated in such provision).
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IN WITNESS WHEREOF, each of the parties has caused this Agreement to be executed and delivered on its behalf by its authorized representative as of the date first above written.
TETRA4 PROPRIETARY LIMITED
By: /s/ Stefano Marani
Name: Stefano Maran
Its: CEO
Authorized Officer
OVERSEAS PRIVATE INVESTMENT CORPORATION
By:
Name:
Its:
TETRA4 FINANCE AGREEMENT SIGNATlJRE PAGE
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be executed and delivered on its behalf by its authorized representative as of the date first above written.
TETRA4 PROPRIETARY LIMITED
By:
Name:
Its:
Authorized Officer
OVERSEAS PRIVATE INVESTMENT CORPORATION
By: /s/ Daniel F. Montgomery
Name: Daniel F. Montgomery
Its: Managing Director
TETRA4 FINANCE AGREEMENT SIGNATURE PAGE
SCHEDULE X
DEFINED TERMS AND RULES OF INTERPRETATION
“Acceptable Bank” shall mean any commercial bank or financial institution having a long-term unsecured senior debt rating of at least “A2” or better by Moody’s and “A” or better by S&P and otherwise approved by OPIC in its sole discretion.
“Acceptable Letter of Credit” shall mean an irrevocable stand by letter of credit issued by an Acceptable Bank for the benefit of the OPIC that has a stated maturity date that is not earlier than twelve (12) months after the date of issuance of such letter of credit, and which letter of credit and all related documentation are satisfactory to OPIC in its sole discretion. Any such letter of credit must be drawable if, (a) it is not renewed or replaced at least thirty (30) days prior to its stated maturity date or (b) the issuer thereof fails to satisfy the requirements of an “Acceptable Bank” and a replacement letter of credit has not been obtained from an Acceptable Bank within fifteen (15) days thereafter. The Borrower shall not be the account party in respect of any such letter of credit and the issuing bank shall have no recourse to the Borrower or the Project with respect to such letter of credit and any payments thereunder. Any drawing under such letter of credit shall be in an amount equal to the lesser of (1) the DSR Requirement at such time minus any amount on deposit in the DSR Account at such time (excluding the amount attributable to the letter of credit being drawn upon) and (2) the amount available to be drawn under such Acceptable Letter of Credit. The proceeds of such drawing shall be deposited into the DSR Account.
“Accounting Standards” means IFRS.
“Affiliate” means, with respect to any Person, (a) any other Person that is directly or indirectly controlled by, under common control with, or controlling such Person; (b) any other Person owning beneficially or controlling five percent (5%) or more of the equity interest in such Person; (c) any officer or director of such Person; or (d) any spouse or relative of such Person. As used herein, the term “control” means possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of partnership interests or voting securities, by contract or otherwise.
“Agreement” has the meaning set forth in the preamble to this Agreement. “Annual Monitoring Reporting” has the meaning set forth in Section 6.11(e).
“Anti-Money Laundering Laws” means (a) the Bank Secrecy Act, as amended by, inter alia, the USA PATRIOT Act of 2001, (Pub. L. No. 107-56) and (b) any other law, regulation, order, decree or directive of any relevant jurisdiction having the force of law and relating to anti-money laundering.
“Applicable Law” means, with respect to a given Person on a given date, any constitution, statute, law, rule, regulation, ordinance, judgment, order, decree, Consent of a Governmental Authority, or any published directive, guideline, requirement or other governmental restriction that has the force of law, or any determination by, or interpretation of any of the foregoing by, any judicial
authority, that is binding on such Person whether in effect as of the date hereof or as of any date thereafter.
“Authorized Officer” means, with respect to any Person, any officer designated in such Person’s Charter Documents or otherwise in writing as having been authorized to execute and deliver any of the Transaction Documents.
“Balance of Plant Contract” means the Agreement for the Design, Supply, Construction, Installation, Commissioning and Testing of all Associated Utilities Related to the LNG/LHe Process Plant between the Borrower and EPCM Bonisana Proprietary Limited to be entered into in pursuant to Section
6.13 (a).
“Base Case Financial Model” means the final base case financial model labeled, “Renergen_LHGP Phase 1 Model v 2.7_contingency_pre-funded DSRA.xlsm. provided to OPIC by the Borrower’s financial advisor”
“Balance of Plant Term Sheet” means the Binding Term Sheet for the Agreement for the Design, Supply, Construction, Installation, Commissioning and Testing of all Associated Utilities Related to the LNG/LHe Process Plant dated on or about the date hereof between the Borrower and EPCM Bonisana Proprietary Limited.
“Basic Commitment” means OPIC’s commitment to lend an amount up to $35,000,000 less (a) the portion thereof that pursuant to Section 2.06(b) has been canceled or has been deemed canceled, and (b) any amounts disbursed pursuant to Section 2.01.
“Board of Governors of the Federal Reserve System” means the Board of Governors of the Federal Reserve System, which is an agency of the United States of America responsible for the analysis of domestic and international financial and economic developments, and for regulating the operations of the Federal Reserve Banks and payment systems.
“BOP Contract Cession” means a cession in securitatem debiti agreement, in form and substance satisfactory to OPIC, duly executed by the parties thereto and in full force and effect in accordance with its terms without default, pursuant to which the Borrower cedes in securitatem debiti in favor of OPIC all of its right, title and interest in the Balance of Plant Contract.
“Borrower” has the meaning set forth in the preamble to this Agreement.
“Borrower Documents” means each of the Transaction Documents to which the Borrower is or will be a party.
“Borrower Indemnity” has the meaning set forth in Section 9.10.
“Borrower Security Cession” means the cession in securitatem debiti agreement dated as of the date hereof pursuant to which the Borrower cedes in securitatem debiti in favor of OPIC all of its right, title and interest in and to (a) the EPC Contract (Gas Gathering), (b) the EP Contract (Liquefaction Plant), (c) the DSR Account, (d) the Land Bank Deed of Sale, (e) the Construction Contract Guarantees and (f) the Intellectual Property necessary for the operation of the Liquefaction Plant.
“Build Act” means the Better Utilization of Investments Leading to Development Act of 2018 (Pub. L. No. 115-254).
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“Business Day” means any day other than (a) a Saturday, Sunday, or day on which commercial banks are authorized by law to close in the City of New York or Washington, D.C., United States of America, (b) with respect to any communication to OPIC, a day on which OPIC is not open for business, and (c) with respect to any Disbursement or payment to OPIC, a day on which OPIC or the United States Department of the Treasury is not open for business.
“Cancellation Fee” has the meaning set forth in Section 2.06(b).
“Cash Flow” of the Borrower, for any period, means the amount resulting from (a) its Net Income for such period, plus (b) all interest expense, any expense for any Fees, and depreciation, amortization, deferred income taxes, and other non-cash expenses for such period (but only to the extent deducted in determining Net Income), minus (c) the amount of net increase or net decrease in Working Capital between the first day of such period and the last day of such period, minus (d) any capital expenditure incurred in such period for repair or replacement of a capital asset.
“Certificate Interest Rate” has the meaning set forth in the OPIC Funding Agreement. “Certified” means, in respect of any document, that such document is being delivered
accompanied by a certification from an Authorized Officer that it is true and complete (or a true and complete copy, as the case may be), including all amendments to date, and, if applicable, is in full force and effect in accordance with its terms as of the date of such certification.
“Change of Ownership” means any change, directly or indirectly, of beneficial ownership of the Borrower other than through a sale or transfer of ownership to (a) a Qualified Purchaser,
(b) any other Person who is satisfactory to OPIC or (c) any person pursuant to a bona fide public offering on any U.S. securities exchange, the JSE Securities Exchange, JSE Alternative Exchange, ASX Exchange or any other securities exchange acceptable to OPIC in writing or the subsequent trading of securities thereof on such exchanges.
“Charter Documents” means, in respect of any Person, such Person’s founding act, charter, articles of incorporation and by-laws, memorandum and articles of association, statute, or similar instrument.
“Closing Date” for any Disbursement means the Business Day on which a Disbursement
is made.
“Code” means the Internal Revenue Code of 1986, as amended, and any successor statute and all rules and regulations promulgated thereunder.
“Commitment” means, collectively, the Basic Commitment and the Contingency
Commitment.
“Commitment Fee” has the meaning set forth in Section 2.06(a).
“Commitment Period” means the period commencing on the date of execution of the Finance Agreement and ending on the earliest of (a) the first date on which the total Disbursements equal the Commitment, (b) March 1, 2021; provided, however, that if the first Disbursement has not occurred on or before the first anniversary of the date of execution of the Finance Agreement, the Commitment Period shall end on such date, and (c) the date on which the Commitment has otherwise been terminated.
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“Consents” means any registration, declaration, filing, consent, license, right, approval, authorization, or permit.
“Construction Budget” means the construction budget for the Project delivered to OPIC pursuant to Section 4.13 (as amended from time to time in accordance with Section 7.12.
“Construction Contract Guarantees” means any guarantee or security provided by a Contractor under a Construction Contract, including but not limited to the Performance Security (as defined under the EPC Contract (Gas Gathering)), the Performance Guarantee (as defined in the EP Contract (Liquefaction Plant)) and Advance Payment Guarantee (as defined in the EP Contract (Liquefaction Plant)).
“Construction Contracts” means, collectively, (a) the EPC Contract (Gas Gathering), (b) the EP Contract (Liquefaction Plant), and (c) the Balance of Plant Term Sheet, or, upon execution, the Balance of Plant Contract.
“Contingency Commitment” means OPIC’s commitment to lend an amount up to
$5,000,000 less (a) the portion thereof that pursuant to Section 2.06(b) has been canceled or has been deemed canceled, and (b) any amounts disbursed pursuant to Section 2.01.
“Compulsory Easement Event” has the meaning set forth in Section 6.08(c).
“Corrupt Practices Laws” means (a) the Foreign Corrupt Practices Act of 1977 (Pub. L. No. 95-213, §§101-104), as amended, and (b) any other Applicable Law relating to bribery, kick-backs, or similar business practices.
“Current Assets” means assets of the Borrower treated as current assets under Accounting Standards, which, for the avoidance of doubt, does not include amounts that may be on deposit in the DSR Account or otherwise held to satisfy the DSR Requirement.
“Current Liabilities” means liabilities of the Borrower treated as current liabilities under Accounting Standards.
“Debt” means, with respect to any person or entity at any date, total liabilities as defined by Accounting Standards and any obligation created, issued, incurred, or assumed by such Person for borrowed money or arising out of any credit facility, financial accommodation or hedge agreement, or for the deferred purchase price of goods or services, including, any credit to such person under any conditional sale or other title retention agreement, all guaranties by such person of liabilities or Debt of any other person, liabilities or Debt of any other person secured by any assets or revenue of such person, and the net aggregate rentals under any lease by such person as lessee that under Accounting Standards would be capitalized on the books of the lessee or that is substantial equivalent of the financing of the property so leased.
“Debt Service” means for any period, the sum of all payments of principal, interest, and fees made or required to be made by the Borrower in respect of its Indebtedness during such period.
“Default” means an event or condition that, with the passage of time or the giving of notice, or both, could constitute an Event of Default.
“Default Rate” means at the time any amount due to OPIC under any Financing Document is not paid when due (a) with respect to amounts due under a Note, an amount equal to the sum
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of (i) the applicable OPIC Note Interest Rate (as such rate may be adjusted as provided in Section 2.02(c)) and (ii) two percent (2.00%) per annum, and (b) with respect to any other amounts due, an amount equal to the sum of (i) the highest OPIC Note Interest Rate set forth in any Note then outstanding (as such rate may be adjusted as provided in Section 2.02(c)) and (ii) two percent (2%) per annum.
“Designated Prepayment Date” has the meaning set forth in the OPIC Funding
Agreement.
“DFC” has the meaning set forth in Section 9.04(c).
“DFC Transfer” has the meaning set forth in Section 9.04(c).
“DFC Transfer Notice” has the meaning set forth in Section 9.04(c). “Disbursement” means any disbursement of the Commitment.
“Disbursement Request” means a request for disbursement of the Commitment substantially in the form of Exhibit B.
“Dollars” or “$” means U.S. dollars.
“DSR Account” means a Dollar-denominated account established by the Borrower with the First National Bank of South Africa on terms acceptable to OPIC and pledged to OPIC pursuant to the Borrower Security Agreement.
“DSR Requirement” means, on any given date, a Dollar amount equal to the aggregate amount of Debt Service with respect to the Loan for the immediately succeeding six-month period.
“EBITDA” for the Borrower means, as of any date, net earnings for the immediately prior 12 months before deducting interest, taxes, depreciation and amortization, in accordance with the Accounting Standards.
“Employee Benefit Plan” means any employee benefit plan within the meaning of §3(3) of ERISA maintained or contributed to by the Borrower, other than a Guaranteed Pension Plan or a Multiemployer Plan.
“Environmental and Social Plans” means each of the following, which shall be prepared in accordance with the Environmental and Social Requirements: (a) Environmental Management Programme (2017); (b) ESMP Objectives, Actions and Targets (Undated); (c) Bureau for International Risk Assessment (Pty) Ltd. (2016), Major Hazard Installation (MHI) Risk Assessment on the Tetra4 Compressed Natural Gas Facility Near Virginia in the Free State; (d) Emergency Response Procedure (2016); (e) Fire Safety Permit and Risk Assessment (2018); (f) Health and Safety Programme (2016); (g) chance find procedures for cultural heritage artifacts; (h) a plan to ensure compliance by contractors with IFC’s Performance Standard 2 as updated pursuant to Section 6.11(b); and (i) Stakeholder Engagement Plan and grievance mechanism.
“Environmental and Social Requirements” means (a) the applicable provisions of the IFC’s Performance Standard 1 on Assessment and Management of Environmental and Social Risks and Impacts (January 1, 2012), the IFC’s Performance Standard 2 on Labor and Working Conditions (January 1, 2012), IFC’s Performance Standard 3 on Resource Efficiency and Pollution Prevention, IFC’s Performance Standard 4 on Community Health, Safety, and Security, and IFC’s Performance Standard 6
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on Biodiversity Conservation and Sustainable Management of Living Natural Resources; (b) the IFC’s Environmental, Health, and Safety (1) General Guidelines (April 30, 2007), (2) Gas Distribution Systems (2007), (3) Liquefied Natural Gas Facilities (April 11, 2017), and (4) Crude Oil and Petroleum Product Terminals (2007); (c) National Fire Protection Association (NFPA) Codes 59A (Standard for the Production, Storage, and Handling of Liquefied Natural Gas 2016 and 704 Standard System for the Identification of the Hazards of Materials for Emergency Response for Liquefied Natural Gas, and the
U.S. 49 Code of Federal Regulations Part 193 for Liquefied Natural Gas Facilities: Federal Safety Standards (CAS Registration Number 74-82-8) or their international equivalent; and (d) the applicable provisions of OPIC’s ESPS.
“EP Contract (Liquefaction Plant)” means the Contract for the Design, Procurement, Testing, Packing, Supervision of Installation, Commissioning and Performance Testing for the Liquefied Natural Gas (LNG) / Liquid Helium (LHe) Process Plant to be entered into between the Borrower and Western Shell Cryogenic Equipment Inc in connection with the Liquefaction Plant.
“EPC Contract (Gas Gathering)” means the Contract for the Design, Supply, Construction & Installation, Commissioning and Testing for the Gas Gathering System to be entered into between the Borrower and EPCM Bonisana Proprietary Limited in connection with the engineering, procurement, and construction of the Gas Gathering System.
“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended and in effect from time to time, and all rules and regulations promulgated thereunder.
“ERISA Affiliate” shall mean any Person that is treated as a single employer with the Borrower under §414 of the Code.
“Event of Default” has the meaning set forth in Section 8.01.
“ESPS” means the Environmental and Social Policy Statement dated as of January, 2017, which is available at OPIC’s website at http://www.opic.gov/environment, as the same may be revised and supplemented by OPIC from time to time.
“Facility Fee” has the meaning set forth in Section 2.06(c).
“Fees” means the Commitment Fee, the Cancellation Fee, the Facility Fee, the Maintenance Fee and the Modification Fee (if applicable).
“Financial Statements” means, with respect to any Person, its quarterly or annual consolidating and consolidated balance sheet and statements of income, retained earnings, and sources and uses of funds for such fiscal period, together with all notes thereto and with comparable figures for the corresponding period of its previous Fiscal Year, each prepared in English and in Rand in accordance with Accounting Standards.
“Financing Documents” has the meaning set forth in Section 4.01.
“First Disbursement Equity Contribution” has the meaning set forth in Section 4.19. “Fiscal Year” means, with respect to the Borrower, the period beginning on March 1 and
ending on February 28 of each year.
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“Fixed Rate Note” means any promissory note issued by the Borrower pursuant to this Agreement substantially in the form of Exhibit A of the OPIC Funding Agreement.
“Funding Documents” means the OPIC Funding Agreement and all other agreements and documents required in connection with the funding arrangements established therein.
“Gas Gathering System” means the infrastructure required to gather gas from the Phase I Wells and to transport the collected gas to the feed to the Liquefaction Plant, including the (i) infield pipelines and trunkline, (ii) valves, (iii) compressors, (iv) communications systems, (v) roads, condensate and water handling and disposal infrastructure, (vi) security infrastructure, (vii) fencing and gates, and
(viii) any other infrastructure contemplated in Schedule Y within the circle labeled “EPC-Gas Gathering”.
“General Notarial Bond” means a general notarial bond to be registered by the Borrower in favor of OPIC, in form and substance acceptable to OPIC, for the capital sum of $40,000,000 together with an additional sum set out therein over all the movable assets of the Borrower.
“Governmental Authority” means any national, state, county, city, town, village, municipal or other local governmental department, commission, board, bureau, agency, authority or instrumentality of the Project Country or the U.S., as applicable, or any political subdivision thereof, and any person exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to any of the foregoing entities, having jurisdiction over the Persons or matters in question.
“Grace Period” has the meaning set forth in Section 2.03.
“Guaranteed Pension Plan” means any employee pension benefit plan within the meaning of §3(2) of ERISA which is maintained or contributed to by the Borrower or any ERISA Affiliate, the benefits of which are guaranteed on termination in full or in part by the PBGC pursuant to Title IV of ERISA, other than a Multiemployer Plan.
“Hedge Agreement” means any interest rate swap agreement, interest rate cap agreement, interest rate collar agreement, interest rate insurance, currency swap agreement, currency option, futures contract, forward contract or any other similar agreement or arrangement with respect to interest rates and currency exchange rates, currencies, commodities or indices or to the hedging of assets or liabilities.
“IFC” means the International Finance Corporation, a member of the World Bank Group. “IFRS” means the International Financial Reporting Standards (formerly International
Accounting Standards), which are the standards issued by the International Accounting Standards Board
together with the interpretations issued by the International Financial Reporting Interpretations Committee of the International Accounting Standards Board (as amended, supplemented or re-issued from time to time), applied on a consistent basis both as to classification of items and amounts.
“Incident Reporting” has the meaning set forth in Section 6.11(d).
“Indebtedness” means, with respect to any person or entity at any date, total liabilities as defined by Accounting Standards and any obligation created, issued, incurred, or assumed by such Person for borrowed money or arising out of any credit facility, financial accommodation or Hedge Agreement, or for the deferred purchase price of goods or services, including, any credit to such person under any conditional sale or other title retention agreement, all guaranties by such person of liabilities or debt of any other person, liabilities or debt of any other person secured by any assets or revenue of such person, and the net aggregate rentals under any lease by such person as lessee that under Accounting Standards
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would be capitalized on the books of the lessee or that is the substantial equivalent of the financing of the property so leased.
“Indemnified Person” has the meaning set forth in Section 9.10. “Independent Engineer” means Sargent & Lundy LLC.
“Intellectual Property” means the intellectual property of any person including any patents, trademarks, service marks, designs, business names, copyrights, database rights, design rights, domain names, moral rights, inventions, confidential information, knowhow and other intellectual property rights and interests (which may now or in the future subsist), whether registered or unregistered; and the benefit of all applications and rights to use such intellectual property (which may now or in the future subsist).
“Inverted Domestic Corporation” means an entity formed outside of the United States which is treated as an inverted domestic corporation under 6 U.S.C. 395(b).
“Land Bank Deed of Sale” means the Deed of Sale Agreement entered into between the Land and Agricultural Development Bank of South Africa and Tetra4 in respect of Portion 10 of the Farm Annex Glen Ross 562, measuring 38,4370 hectares, District Theunissen, Free State Province and the Remaining Extend of the Farm Mond Van Doornrivier 38, measuring 370, 1527 hectares, District Theunissen, Free State Province;
“Land Use Agreements” means each of the agreements and instruments identified in Schedule 4.01(c)(iii) and the Land Bank Deed of Sale.
“Lien” means any lien, pledge, mortgage, security interest, deed of trust, charge, assignment, hypothecation, title retention, assignment or other encumbrance on or with respect to, or any preferential arrangement having the practical effect of constituting a security interest with respect to the payment of any obligation with, or from the proceeds of, any asset or revenue of any kind.
“Linde Helium Agreement” means that certain Helium Purchase and Sales Agreement by and between the Borrower and Linde Global Helium, a division of Linde Gas North America LLC, dated as of May 3, 2016.
“Liquefaction Plant” means the infrastructure required to liquefy up to 450 kilograms per day of liquid helium and up to 50 tons per day of liquefied natural gas, including the (i) LNG plant,
(ii) helium plant, (iii) LNG storage, (iv) loading LNG, (v) loading helium, (vi) control rooms, and (vii) any other infrastructure contemplated in Schedule Y within the circle labeled “LNG/LHe Plant”.
“Litigation Payment” has the meaning set forth in Section 9.13.
“Loan” means, on any date, the aggregate of the outstanding unpaid principal amounts of the Notes then outstanding.
“Loan Documents” has the meaning set forth in Section 4.01(a). “Loan Maturity Date” has the meaning set forth in Section 2.03. “Loss” has the meaning set forth in Section 9.10.
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“Maintenance Fee” has the meaning set forth in Section 2.06(d).
“Major Hazard” means any (a) explosion, fire or spill that results in material pollution,
(b) any workplace accident that results in death or serious injury, (c) community unrest or safety incidents, or (d) other circumstance having, or which could reasonably expected to have, a Material Adverse Effect or material adverse impact on the implementation or operation of the Project in accordance with the Environmental and Social Requirements.
“Material Adverse Effect” means any event, development, or circumstance having a material adverse effect on (a) the Project, (b) the business, operations, prospects, condition (financial or otherwise), or property of the Borrower, the Shareholders, or any other Person whose continuing viability, because of its guaranty or other undertaking, is essential to the Project, (c) the ability of the Borrower or any other party to perform in a timely manner its payment obligations or other material obligations under any of the Transaction Documents, (d) the validity or enforceability of any material provision of any Transaction Document, (e) the rights and remedies of OPIC under any of the Financing Documents, or (f) the Liens provided to OPIC under the Security Documents.
“Modification Fee” has the meaning set forth in Section 2.06(e).
“Molopo Loan” means that certain Loan Agreement between Molopo Energy Limited and Molopo South Africa Exploration and Production Proprietary Limited, dated April 11, 2014.
“Mortgage Bond” means a first covering mortgage bond to be registered by the Borrower in favor of OPIC, in form and substance satisfactory to OPIC, duly executed by the parties thereto and in full force and effect in accordance with its terms without default, over of the real property identified in the Land Bank Deed of Sale and for the capital sum of $40,000,000 together with an additional sum set out therein.
“MPRDA” means the Mineral and Petroleum Resources Development Act, 28 of 2008. “Multiemployer Plan” means any multiemployer plan within the meaning of §3(37) of
ERISA which is maintained or contributed to by the Borrower or any ERISA Affiliate and subject to
Title IV of ERISA.
“Net Income” means, with respect to the Borrower, for any period, the net income (loss) of the Borrower for such period, as determined in accordance with Accounting Standards, provided, that there shall be excluded in such determination (a) any restoration to income of any contingency reserve, except to the extent that provision for such reserve was made out of income accrued during such period,
(b) any aggregate net gain during such period arising from the sale, conversion, exchange, or other disposition of capital assets, (c) any gains resulting from the write-up of any assets, (d) any net gain arising from the extinguishment, under Accounting Standards, of any Indebtedness of the Borrower, and
(e) any net income or gain during such period resulting from (i) any change in accounting principles in accordance with Accounting Standards, (ii) any prior period adjustments resulting from any change in accounting principles in accordance with Accounting Standards, (iii) any extraordinary items, and (iv) any discontinued operations or the disposition thereof.
“Note” means any Fixed Rate Note.
“OFAC” means the Office of Foreign Assets Control of the U.S. Department of the Treasury, which administers and enforces economic and trade sanctions based on U.S. foreign policy and national security goals against targeted individuals, organizations, and foreign countries and regimes.
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“OFAC List” means the Specially Designated Nationals and Blocked Persons List and any other lists administered or enforced by OFAC, including but not limited to the Palestinian Legislative Council list and the Part 561 list, in each case as published by OFAC from time to time and available at http://www.treasury.gov/resource-center/sanctions/SDN-List/Pages/default.aspx or any official successor website.
“OFAC Regulations” means (a) the rules and regulations promulgated by OFAC, as may be published in Title 31, Chapter V of the Code of Federal Regulations from time to time, and (b) any Executive orders administering or imposing economic sanctions on individuals, organizations or foreign countries and regimes.
“Official” means any officer of a political party or candidate for political office in the Project Country or the U.S. or any officer or employee (a) of the government of the Project Country or the
U.S. (including any Governmental Authority of the Project Country or the U.S.) or (b) of a public international organization.
“Offtake Agreements” means the Linde Helium Agreement and / or any other agreement designated as such by OPIC and the Borrower.
“OPIC” shall have the initial meaning set forth in the preamble to this Agreement and shall also refer thereafter to any successor or assign of OPIC, including, from and after the date of the DFC Transfer, the DFC.
“OPIC Guaranty Fee” means four percent (4.00%) per annum.
“OPIC Guaranty Payment” has the meaning set forth in Section 2.02(c).
“OPIC Funding Agreement” means the Funding and OPIC Guaranty Agreement dated as of August 20, 2019, among the Borrower, the Paying Agent, the Placement Agent and OPIC.
“OPIC Note Interest Rate” has the meaning set forth in Section 2.02(a) or Section 2.02(c), as the case may be.
“OPIC Plaintiff” has the meaning set forth in Section 9.13.
“Original Financial Statements” has the meaning set forth in Section 4.18.
“Paying Agent” means U.S. Bank National Association, a national banking association existing under the federal laws of the United States or any successor or successors thereto designated as Paying Agent under the Funding Documents.
“Payment Date” means the 15th day of February, May, August, and November of each year after the date hereof until the Loan and all amounts due hereunder or under the Notes are paid in full, unless such Payment Date is not a Business Day, in which case the Payment Date will be the next succeeding Business Day.
“PBGC” means the Pension Benefit Guaranty Corporation created by §4002 of ERISA and any successor entity or entities having similar responsibilities.
“Performance LDs” means any performance or delay liquidated damages under a Construction Contract, including Delay Damages (as defined by the EPC Contract (Gas Gathering)) under
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the EPC Contract (Gas Gathering)), Delay Damages (as defined by the Balance of Plant Contract under the Balance of Plant Contract), Quantity Threshold Liquidated Damages (as defined by the EP Contract (Liquefaction Plant)), and Delay Liquidated Damages (as defined by the EP Contract (Liquefaction Plant)).
“Permitted BBBEE Investment” means, the acquisition by the Borrower of capital stock, partnership or other ownership interests of any other Person in the Project Country and the making of any advance or loan to such Person as a shareholder, partner or owner of such Person, provided that (i) that such Person was formed and continues to be maintained solely for purposes of supporting suppliers pursuant to the Broad-Based Economic Empowerment Act (Act 53 of 2003) in connection with food farming community initiatives; (ii) neither such Person nor any of its directors, members of senior management, or any shareholder of such Person is a Person included in any OFAC List or otherwise subject to sanctions under OFAC Regulations and the Borrower shall have received written confirmation from OPIC that OPIC has no objection on the basis of its know your customer requirements determined in OPIC’s sole discretion; (iii) the Borrower’s investment in such Person (whether by way of equity or debt) together with any investment in any other Person does not exceed $250,000 in the aggregate.
“Permitted Indebtedness” means any Indebtedness permitted under Section 7.02. “Permitted Investments” means Dollar-denominated investments in the following:
share of $1, and;
and
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“Permitted Lien” has the meaning set forth in Section 7.01.
“Person” means an individual, a legal entity, including, a partnership, a joint venture, a corporation, a trust, and an unincorporated organization, and a government or any department or agency thereof.
“Phase I Wells” means the twelve (12) wells included in Schedule Y.
“Phase II Wells” means gas wells located on the Site other than the Phase I Wells. “Phase II Expansion” means the second phase of the development and
commercialization of a natural gas and helium field gas field at the Site in Virginia, South Africa comprised of the development and construction of: (i) the Phase II Wells (ii) the infrastructure required to gather gas from the Phase II Wells and to transport the collected gas to a new liquefaction plant to be constructed, (iii) all of the infrastructure required to liquefy helium and natural gas, including a liquefaction plant, in each case, in accordance with the Production Right.
“Phase II Indebtedness” means any Indebtedness incurred by the Borrower to fund the Phase II Expansion.
“Placement Agent” means R.W. Pressprich & Co., a company organized and existing under the laws of the State of Delaware or any successor or successors thereto designated as Placement Agent under the Funding Documents.
“Pledge Agreement (Sjoeberg)” the Guarantee, Pledge and Subordination Agreement entered into between Advocate Cheryl Danielle Sjoberg, the Borrower and OPIC on or about the date hereof in form and substance satisfactory to OPIC.
“Policy Non-Compliance” means any non-compliance with the Environmental and Social Requirements or the Worker Rights Requirements.
“Prepayment Premium” has the meaning set forth in Section 2.04. “Principal Installment” has the meaning set forth in Section 2.03.
“Production Right” means the production right with reference number PR 12/3/1/07/2/2 held by the Borrower and granted to the Borrower under Section 84(1) of the MPRDA.
“Prohibited Payment” means the giving or making by any Person (such Person, the “Payor”) of any offer, gift, payment, promise to pay or authorization of the payment of any money or anything of value, directly or indirectly, to or for the use or benefit of any Official (including to or for the use or benefit of any other Person if the Payor knows, or has reasonable grounds for believing, that the other Person would use such offer, gift, payment, promise or authorization of payment for the benefit of any such Official), for the purpose of influencing any act or decision or omission of any Official in order to obtain, retain or direct business to, or to secure any improper benefit or advantage for, the Borrower or the Project, or any other Person; provided that any such offer, gift, payment, promise or authorization of payment shall not be considered a Prohibited Payment if it (a) is expressly permitted by Applicable Law
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or (b) is made for the purpose of expediting or securing the performance of a routine governmental action (as such term is construed under Applicable Law).
“Project” means the first phase of the development and commercialization of a 36.4 billion standard cubic feet (“bcf”) natural gas and 0.87 bcf helium field gas field in Virginia, South Africa comprised of the development and construction of: (i) the Gas Gathering System, (ii) the Liquefaction Plant; and (iii) the Phase I Wells.
“Project Completion” means the issuance by the Borrower of the Taking-Over Certificates (as defined in the relevant Construction Contract) pursuant to all three, and not less than three, of the Construction Contracts.
“Project Contractor” means any Person that is a party to a Project Contract with the
Borrower.
“Project Contracts” means any contract related to the development, construction or operation of the Project between the Borrower and a Project Contractor or between a Project Contractor and a Project Subcontractor.
“Project Costs” means all costs incurred by the Borrower in connection with the Project in accordance with the Project Costs and Financing Plan, including, but not limited to (a) amounts payable as and to the extent set forth in the Construction Budget (as may be adjusted in accordance with the terms of this Agreement); (b) interest, fees and expenses payable with respect to the Loan, (c) expenses incurred to obtain use of the Site, (d) costs and expenses of legal, engineering, accounting, construction management, and other advisors incurred in connection with the Project, (e) funding of the DSR Account, and (g) funding of working capital.
“Project Costs and Financing Plan” has the meaning set forth in Section 3.01(l). “Project Country” means the Republic of South Africa.
“Project Documents” has the meaning set forth in Section 4.01(c). “Project Report” has the meaning set forth in Section 6.06(c).
“Project Subcontractor” means a Person, other than the Borrower or a Project Contractor, that is a party to a Project Contract with a Project Contractor.
“Proved Reserves” means the estimated quantities of natural gas and helium which geological and engineering data demonstrate with reasonable certainty to be recoverable in future years from known reservoirs under existing economic and operating conditions. Proved Reserves are limited to those quantities of natural gas and helium, which can be estimated, with reasonable certainty, to be recoverable commercially at current prices and costs, under existing regulatory practices and with existing conventional equipment and operating methods (taking into account applicable laws and regulations to which the Borrower is subject).
“Prudent Industry Practices” means those practices, methods and equipment that are commonly used in prudent engineering, design, construction, operation and maintenance in the oil and gas industry in the U.S. or Project Country to design, engineer, construct, operate and maintain gas gathering and liquefaction equipment lawfully and with safety, reliability, efficiency, operability and
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maintainability and, without limitation of the foregoing, in a manner compliant with Applicable Laws and Consents of Governmental Authorities.
“Qualified Purchaser” means a Person who (a) is not on any OFAC List and (b) (i) prior to the transfer in question, is a Shareholder who owns ten percent (10%) or more of the direct or indirect ownership interests in the Borrower, or (ii) after the transfer in question will own, in the aggregate, less than ten percent (10%) of the direct or indirect ownership interests in the Borrower.
“Redemption Premium” has the meaning set forth in the OPIC Funding Agreement. “Reserve Tail Ratio” means for any calculation date, the quotient obtained by dividing
(a) all of the Borrower’s remaining Proved Reserves as of such calculation date by (b) all of the
Borrower’s Proved Reserves as of the date of this Agreement.
“Restricted Payment” means any of the following made directly or indirectly by the Borrower: (a) any dividend or distribution on any account of any interest in the Borrower, including any reduction of capital; (b) any payment of principal or interest on any Indebtedness of the Borrower to or for the benefit of any Shareholder or any other Affiliate of the Borrower, other than accounts payable for goods or services provided on an arm’s-length basis; and (c) any purchase, redemption, acquisition, or retirement of any limited liability company interests of the Borrower or any Indebtedness of the Borrower held by any Shareholder or any Affiliate of the Borrower.
“Restricted Payment Date” means with respect to the date of any proposed Restricted Payment, any Business Day that is not more than forty-five (45) days after the Payment Date immediately preceding such date.
“Re-zoning Property” means Portion 10 of the Farm Annex Glen Ross 562 and Remaining Extent of the Farm Mond River 38.
“Second Disbursement Equity Contribution” has the meaning set forth in Section 5.13. “Second Disbursement Lease” means the lease identified as a Second Disbursement
Lease in Schedule 4.01(c)(iii).
“Security Documents” has the meaning set forth in Section 4.01(b).
“Self-Monitoring Questionnaire” means the Annual Self-Monitoring Questionnaire used by OPIC to monitor compliance with OPIC’s policy requirements, a copy of which is available and which may be completed online at http://smq.opic.gov.
“Servitude Security” means (i) a cession in securitatem debiti agreement, in form and substance satisfactory to OPIC, duly executed by the parties thereto and in full force and effect in accordance with its terms without default, pursuant to which the Borrower cedes in securitatem debiti in favor of OPIC all of its right, title and interest in and servitudes over the real property identified in the Land Use Agreements and (ii) a first covering mortgage bond to be registered by the Borrower in favor of OPIC, in form and substance satisfactory to OPIC, duly executed by the parties thereto and in full force and effect in accordance with its terms without default, over of the servitudes identified in the Land Use Agreements (other than the Land Bank Deed of Sale) and for the capital sum of $40,000,000 together with an additional sum set out therein.
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“Shareholders” means the Persons identified as “Shareholders” on Part I of Schedule
3.01(d).
“Shareholder Payment” means any payment by the Borrower to, or on behalf of, any Shareholder or any Affiliate of any Shareholder other than a Restricted Payment, including any payment in respect of compensation, fees, salaries, bonuses, or commissions or any payment made on behalf of any Shareholder or any Affiliate of any Shareholder that is for the benefit of such party.
“Site” means that real property on which the Project is located as described in (i) the Land Bank Deed of Sale and (ii) the Land Use Agreements.
“Special Notarial Bond (Gas Gathering)” means a special notarial bond to be registered by the Borrower in favor of OPIC, by OPIC’s conveyancers/notary publics, in such form and subject to such terms and conditions as OPIC may require, for the capital sum of $40,000,000 together with an additional sum set out therein, over the (a) infield pipelines and trunkline, (b) valves, (c) compressors, and
(d) communication system of the Gas Gathering System.
“Special Notarial Bond (Liquefaction Plant)” means a special notarial bond to be registered by the Borrower in favor of OPIC, by OPIC’s conveyancers/notary publics, in such form and subject to such terms and conditions as OPIC may require, for the capital sum of $40,000,000 together with an additional sum set out therein, over the (i) LNG plant, (ii) helium plant, (iii) loading LNG, and
(iv) loading helium of the Liquefaction Plant of the Borrower.
“Special Notarial Bonds” means each of the Special Notarial Bond (Gas Gathering) and the Special Notarial Bond (Liquefaction Plant).
“Sponsor” means Renergen Limited, a public company duly registered and validly existing under the laws of the Republic of South Africa (Registration Number 2014/195093/06).
“Sponsor Guarantee, Pledge and Subordination Agreement” means the Guarantee, Pledge and Subordination Agreement entered into between the Sponsor, the Borrower and OPIC on or about the date hereof in form and substance satisfactory to OPIC.
“Sponsor Intercompany Loan” means the Intercompany Loan entered into by and between the Sponsor and the Borrower dated March 13, 2018.
“Stakeholder Engagement Plan” means the stakeholder engagement plan, in form and substance satisfactory to OPIC.
“Subsidiary Of An Inverted Domestic Corporation” means an entity that is more than fifty percent (50%) owned (a) directly by an Inverted Domestic Corporation, or (b) through another entity that is more than fifty percent (50%) owned by an Inverted Domestic Corporation.
“Taxes” means all taxes, charges, fees, levies or other assessments, including without limitation, all net income, gross income, gross receipts, sales, use, ad valorem, value added, turnover, transfer, franchise, profits, license, withholding, payroll, employment, excise, estimated, severance, stamp duties, occupation, property or other taxes, customs duties, fees, assessments or charges of any kind whatsoever, together with any interest and any penalties, additions to tax or additional amounts imposed by any taxing authority and any political subdivision, instrumentality, agency or similar body of any taxing authority.
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“Transaction Documents” has the meaning set forth in Section 4.01.
“Uniform Commercial Code” means the Uniform Commercial Code as in effect in the State of New York or in any other applicable jurisdiction.
“U.S.” means the United States of America.
“U.S. Government” means the government of the United States of America and its agencies and instrumentalities.
“U.S. Person” means a:
“U.S. Taxpayer Identification Number” means an identification number used by
the Internal Revenue Service, an agency of the United States of America, in the administration of tax laws, which is issued either by the Social Security Administration, an agency of the United States of America, or the Internal Revenue Service.
“U.S. Treasury Cost” has the meaning set forth in the OPIC Funding Agreement. “Worker Rights Requirements” has the meaning set forth in Section 6.12(a).
“Workers” means, collectively, (a) individuals that are employed directly by the Borrower, and (b) individuals that, under a Project Contract, perform continuous on-site work that is either (i) of substantial duration or (ii) material to the primary operations of the Project.
“Working Capital” means the amount resulting from Current Assets (excluding cash) minus Current Liabilities (excluding Debt Service for the Loan and for all other Long-term Indebtedness).
In this Agreement, including Exhibits and Schedules hereto, unless otherwise indicated or required by the context: (a) reference to and the definition of any document (including this Agreement) shall be deemed a reference to such document as it may be amended, supplemented, revised, or modified from time to time; (b) all references to an “Article,” “Section”, “Schedule,” or “Exhibit” are to an Article or Section of this Agreement or to a Schedule or an Exhibit attached thereto and shall be deemed to have
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been made a part thereof; (c) the table of contents and article and section headings and other captions are for the purpose of reference only and do not limit or affect the meaning of the terms and provisions thereof; (d) defined terms in the singular include the plural and vice versa, and the masculine, feminine and neuter gender include all genders; (e) accounting terms not defined in this Schedule X have the meanings given to them under Accounting Standards; (f) the words “hereof,” “herein” and “hereunder” and words of similar import refer to this Agreement as a whole and not to any particular provision of this Agreement; (g) the words “include,” “includes,” and “including” mean include, includes and including “without limitation” and “without limitation by specification”; (h) terms capitalized for other than grammatical purposes that are defined in (i) the preamble, (ii) the recitals, or (iii) the Sections of this Agreement have the meanings ascribed to them therein; (i) phrases such as “satisfactory to OPIC”, “in such manner as OPIC may determine,” “in OPIC’s determination,” “to OPIC’s satisfaction,” “acceptable to OPIC”, “at OPIC’s election”, and phrases of similar import authorize and permit OPIC to approve, disapprove, act or decline to act in its sole discretion; and (j) the words “reasonable”, “reasonably”, “unreasonably”, and words of similar import, when applied to OPIC’s satisfaction, acceptance, determination, consent, discretion or approval, take into account any special consideration affecting decisions of OPIC in its capacity as a governmental entity or its responsibilities as such and are based on its policies, practices, and procedures, and law and regulations applicable to it.
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