ACCELERATED MATURITY. 7.1 Without prejudice to any of its other rights and obligations, the Lender may, at its option, terminate all of its obligations under this Agreement with immediate effect, and demand immediate payment of all of its claims under this Agreement in their nominal amount, by notifying the Borrower in writing if one of the following events (a “Ground for Repayment”) occurs: a. Any of the following occurs in respect of a member of the JV Group: (i) any step is taken with a view to a moratorium or a composition, assignment or similar arrangement with any of its creditors; (ii) a meeting of its shareholders, directors or other officers is convened for the purpose of considering any resolution for, to petition for or to file documents with a court or any registrar for, its bankruptcy, suspension of payment, winding-up, administration or dissolution or any such resolution is passed; (iii) any person presents a petition, or files documents with a court or any registrar, for its bankruptcy, suspension of payment, winding-up, administration or dissolution; (iv) an order for its winding-up, administration or dissolution is made; (v) any liquidator, trustee in bankruptcy, judicial custodian, compulsory manager, receiver, administrative receiver, administrator or similar officer is appointed in respect of it or any of its assets; (vi) its shareholders, directors or other officers request the appointment of, or give notice of their intention to appoint, a liquidator, trustee in bankruptcy, judicial custodian, compulsory manager, receiver, administrative receiver, administrator or similar officer; or (vii) any other analogous step or procedure is taken in any jurisdiction. The above does not apply to any petition for winding-up, administration or dissolution presented by a creditor which is being contested in good faith and with due diligence and is discharged or struck out within 10 Business Days. b. The JV Group’s business has been discontinued, or the JV Group’s business has, or one or more assets of the JV Group with a (total) book value exceeding 10% (ten percent) of the book value of all of the assets of the JV Group have been transferred to a third party outside the normal course of the Borrower’s business and without the consent of the Lender, or one or more assets of the JV Group with a (total) book value exceeding 10% (ten percent) of the book value of all of the assets of the JV Group has become subject to a limited right or attachment. c. Any member of the JV Group has assumed liability, directly or indirectly, and as surety, joint and several co-debtor, guarantor or otherwise, for the debts of a third party, other than for debts of a member of the JV Group pursuant to a declaration of liability as referred to in Section 2:403 Civil Code or a similar declaration of liability in respect of a non-Dutch group company of the JV Group and other than for tax debts for which the JV Group, as part of a fiscal unity, is or will become liable by law. Guarantees issued by any member of the JV Group in favour of certain of its customers to warrant compliance with the Safeguard Measures imposed by the European Commission in Regulation (EC) Nr. 206/2005 of 4 February 2005, shall be excluded from the aforesaid guarantee restriction during the time said Safeguard Measures are in force and provided the aggregate amount of such guarantees does not exceed an amount equal to 10% (ten percent) of the book value of all of the assets of the JV Group. d. The Borrower has failed to perform any material obligation under this Agreement to repay Principal or to pay interest as referred to in clause 4 e. The Borrower has failed to perform any material obligation under this Agreement other than an obligation referred to in paragraph e, and, to the extent that performance is not permanently or temporarily impossible, no performance has taken place within thirty Business Days after the Lender has given the Borrower written notice of default, the foregoing unless the failure is the fault of the Lender or of a person for whom the Lender is liable by law. For the purposes of this paragraph, any statement which clearly demonstrates that the Lender requires performance shall constitute a notice of default. f. Any debt of the Borrower, including any debt under the Nutreco Shareholder Loan Agreement to which the Borrower is a party as borrower, has, fully or partly, become due prematurely. g. Proceedings have been brought before a court or a competent arbitration tribunal which, if they result in a ruling against the other party and the court’s or tribunal’s decision is enforced, constitute a Ground for Repayment, or a competent government body has taken an irrevocable or other decision which, if it is carried out, constitutes a Ground for Repayment, or a body of the Borrower has passed a resolution which, with or without other resolutions or action, is a prerequisite by law or under the articles of association for the existence of a Ground for Repayment, or the Borrower has undertaken, or has otherwise become obliged, whether or not subject to a condition or time limit, to carry out an act which will constitute a Ground for Repayment if it is carried out. h. Any circumstance has occurred in respect of a group company which belongs to a group or subgroup headed by the Borrower which would have been a Ground for Repayment if it would have occurred in relation to the Borrower himself. i. Any circumstance occurs which in the Lender’s opinion, acting reasonably, justifies a concern that the Borrower will fail to perform its obligations under this agreement or that the Lender’s rights of recourse will be adversely affected. k. The Borrower applies for listing of its shares through an initial public offering. 7.2 If a Ground for Repayment occurs or threatens to occur, the Borrower shall immediately notify the Lender thereof. 7.3 Without prejudice to subclause 4, the Lender may no longer invoke the occurrence of a particular Ground for Repayment if all consequences of that Ground for Repayment have been remedied at the time of the notification referred to in subclause 1. 7.4 The Borrower must compensate the Lender for all damage suffered by the latter as a result of the Ground for Repayment occurring or in the Lender’s reasonable opinion threatening to occur, when the Ground for Repayment can be attributed to the Borrower. The obligation to compensate shall also include any reasonable costs incurred by the Lender to prevent the Ground for Repayment from occurring, to prevent or limit damage or to enforce its rights under this Agreement in or out of court. 7.5 The Lender may only terminate its obligations hereunder pursuant to subclause 1 with the prior consent of the lender under the Nutreco Shareholder Loan Agreement. 7.6 In the event the Lender reduces its stake in the Borrower, the Lender and the Borrower shall agree to continue, to repay, to refinance or to transfer its loan hereunder to the new shareholder.
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ACCELERATED MATURITY. 7.1 Without prejudice to any of its other rights and obligations, the Lender may, at its option, terminate all of its obligations under this Agreement with immediate effect, and demand immediate payment of all of its claims under this Agreement in their nominal amount, by notifying the Borrower in writing if one of the following events (a “Ground for Repayment”) occurs:
a. Any of the following occurs in respect of a member of the JV Group:
(i) any step is taken with a view to a moratorium or a composition, assignment or similar arrangement with any of its creditors;
(ii) a meeting of its shareholders, directors or other officers is convened for the purpose of considering any resolution for, to petition for or to file documents with a court or any registrar for, its bankruptcy, suspension of payment, winding-up, administration or dissolution or any such resolution is passed;
(iii) any person presents a petition, or files documents with a court or any registrar, for its bankruptcy, suspension of payment, winding-up, administration or dissolution;
(iv) an order for its winding-up, administration or dissolution is made;
(v) any liquidator, trustee in bankruptcy, judicial custodian, compulsory manager, receiver, administrative receiver, administrator or similar officer is appointed in respect of it or any of its assets;
(vi) its shareholders, directors or other officers request the appointment of, or give notice of their intention to appoint, a liquidator, trustee in bankruptcy, judicial custodian, compulsory manager, receiver, administrative receiver, administrator or similar officer; or
(vii) any other analogous step or procedure is taken in any jurisdiction. The above does not apply to any petition for winding-up, administration or dissolution presented by a creditor which is being contested in good faith and with due diligence and is discharged or struck out within 10 Business Days.
b. The JV Group’s business has been discontinued, or the JV Group’s business has, or one or more assets of the JV Group with a (total) book value exceeding 10% (ten percent) of the book value of all of the assets of the JV Group have been transferred to a third party outside the normal course of the Borrower’s business and without the consent of the Lender, or one or more assets of the JV Group with a (total) book value exceeding 10% (ten percent) of the book value of all of the assets of the JV Group has become subject to a limited right or attachment.
c. Any member of the JV Group has assumed liability, directly or indirectly, and as surety, joint and several co-debtor, guarantor or otherwise, for the debts of a third party, other than for debts of a member of the JV Group pursuant to a declaration of liability as referred to in Section 2:403 Civil Code or a similar declaration of liability in respect of a non-Dutch group company of the JV Group and other than for tax debts for which the JV Group, as part of a fiscal unity, is or will become liable by law. Guarantees issued by any member of the JV Group in favour of certain of its customers to warrant compliance with the Safeguard Measures imposed by the European Commission in Regulation (EC) Nr. 206/2005 of 4 February 2005, shall be excluded from the aforesaid guarantee restriction during the time said Safeguard Measures are in force and provided the aggregate amount of such guarantees does not exceed an amount equal to 10% (ten percent) of the book value of all of the assets of the JV Group.
d. The Borrower has failed to perform any material obligation under this Agreement to repay Principal or to pay interest as referred to in clause 4
e. The Borrower has failed to perform any material obligation under this Agreement other than an obligation referred to in paragraph e, and, to the extent that performance is not permanently or temporarily impossible, no performance has taken place within thirty Business Days after the Lender has given the Borrower written notice of default, the foregoing unless the failure is the fault of the Lender or of a person for whom the Lender is liable by law. For the purposes of this paragraph, any statement which clearly demonstrates that the Lender requires performance shall constitute a notice of default.
f. Any debt of the Borrower, including any debt under the Nutreco Shareholder Loan Agreement to which the Borrower is a party as borrower, has, fully or partly, become due prematurely.
g. Proceedings have been brought before a court or a competent arbitration tribunal which, if they result in a ruling against the other party and the court’s or tribunal’s decision is enforced, constitute a Ground for Repayment, or a competent government body has taken an irrevocable or other decision which, if it is carried out, constitutes a Ground for Repayment, or a body of the Borrower has passed a resolution which, with or without other resolutions or action, is a prerequisite by law or under the articles of association for the existence of a Ground for Repayment, or the Borrower has undertaken, or has otherwise become obliged, whether or not subject to a condition or time limit, to carry out an act which will constitute a Ground for Repayment if it is carried out.
h. Any circumstance has occurred in respect of a group company which belongs to a group or subgroup headed by the Borrower which would have been a Ground for Repayment if it would have occurred in relation to the Borrower himself.
i. Any circumstance occurs which in the Lender’s opinion, acting reasonably, justifies a concern that the Borrower will fail to perform its obligations under this agreement or that the Lender’s rights of recourse will be adversely affected.
k. The Borrower applies for listing of its shares through an initial public offering.
7.2 If a Ground for Repayment occurs or threatens to occur, the Borrower shall immediately notify the Lender thereof.
7.3 Without prejudice to subclause 4, the Lender may no longer invoke the occurrence of a particular Ground for Repayment if all consequences of that Ground for Repayment have been remedied at the time of the notification referred to in subclause 1.
7.4 The Borrower must compensate the Lender for all damage suffered by the latter as a result of the Ground for Repayment occurring or in the Lender’s reasonable opinion threatening to occur, when the Ground for Repayment can be attributed to the Borrower. The obligation to compensate shall also include any reasonable costs incurred by the Lender to prevent the Ground for Repayment from occurring, to prevent or limit damage or to enforce its rights under this Agreement in or out of court.
7.5 The Lender may only terminate its obligations hereunder pursuant to subclause 1 with the prior consent of the lender under the Nutreco Shareholder Loan Agreement.
7.6 In the event the Lender reduces its stake in the Borrower, the Lender and the Borrower shall agree to continue, to repay, to refinance or to transfer its loan hereunder to the new shareholder.
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Sources: Subordinated Shareholder Loan Agreement (Stolt Nielsen S A)