6-K

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

 

FORM 6-K

 

 

REPORT OF FOREIGN PRIVATE ISSUER

PURSUANT TO RULE 13a-16 OR 15d-16

UNDER THE SECURITIES EXCHANGE ACT OF 1934

For the month of February 2024

Commission File Number: 001-41431

 

 

Polestar Automotive Holding UK PLC

 

 

Assar Gabrielssons Väg 9

405 31 Göteborg, Sweden

(Address of principal executive office)

 

 

Indicate by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F.

Form 20-F ☒   Form 40-F ☐

Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(1): ☐

Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(7): ☐

 

 

 


INFORMATION CONTAINED IN THIS REPORT ON FORM 6-K

Business Update Press Release

On February 28, 2024, Polestar issued a press release announcing it had secured external funding under the Facilities Agreement (as described below) and giving a business update and announcing its outlook for the 2024 fiscal year. A copy of the press release is attached hereto as Exhibit 99.1.

Entry into Term Loan Facilities

On February 22, 2024, Polestar Automotive Holding UK PLC (“Polestar”), as Borrower, entered into the EUR 340,000,000 and USD 583,489,000 multicurrency green term loan facilities, (“Facility A” and “Facility B” respectively, and together, the “Facilities”) among, amongst others, the Original Lenders (as defined in the agreement (the “Facilities Agreement”)) and Standard Chartered Bank as security agent and agent (“Agent”). Polestar drew down on each of Facility A and Facility B on February 28, 2024. Capitalized terms used herein and not otherwise defined herein shall have the respective meanings set forth in the Facilities Agreement.

The Facilities consist of two committed term loan facilities denominated in Euros and US Dollars, which are available for financing or refinancing of investments and expenditure incurred by Polestar and Group Members in the design, manufacturing, sales, and related administrative and operational activities of electric, hydrogen, or hybrid vehicles, including in each case by way of on-lending to, or equity injection into, any other Group Member; and/or payment of fees and expenses (including the funding of any Interest Reserve Amount) related to the Facilities. The Facilities will terminate on the date which is 36 Months after the Initial Utilisation Date, and provided that, if such date is not a Business Day, the Termination Date shall be the immediately preceding Business Day (the “Termination Date”), and the Facilities are required to be repaid on the Termination Date. Prior to the Termination Date Polestar may not reborrow any part of the Facilities, which has been repaid.

As of December 31, 2023, and (i) each date falling on the last day of each financial year thereafter, Polestar is required to ensure compliance with the Consolidated Revenue of the Group and the Capex Limit (subject to certain rollovers for unused amounts), undertakings set out in clause 22.2(a) of the Facilities Agreement; and (ii) each date falling on the last day of each financial quarter thereafter, Polestar is required to ensure compliance with the Group Cash, Group Cash Equivalent Investments and Available Credit available to any Group Member, the Consolidated Group Secured Financial Indebtedness, the Consolidated Group Financial Indebtedness and ratio of Consolidated Group Financial Indebtedness to Consolidated Group Assets undertakings set out in clause 22.2(a)-(e) of the Facilities Agreement.

The interest rate applicable to borrowings under Facility A is EURIBOR and subject to a zero floor plus 2.85% and Facility B is CME Term SOFR and subject to a zero floor plus 3.35%. The interest period of a Loan may be one (1), three (3) or six (6) Months or any period that the Agent (acting on the instructions of all Lenders), and default interest is calculated as an additional 2% on the overdue amount. Polestar may voluntarily prepay loans or reduce commitments under the Facilities, in whole or in part, subject to minimum amounts and subject to any Break Costs, with prior notice but without premium or penalty. Polestar may be required to prepay the loans on the occurrence of: (i) a change of control; (ii) illegality; (iii) certain disposals (subject to certain customary qualifications, exceptions and baskets).

Polestar’s obligations under the Facilities Agreement are guaranteed by Polestar Performance AB and secured by the Security Documents. Two indirect shareholders of Polestar provided Letters of Comfort. Zhejiang Geely Holding Group Co., LTD. (the Keepwell Provider) has entered into a Keepwell Deed in connection with the Facilities. The Facilities Agreement contains negative covenants, including, but not limited to a negative pledge and restrictions on the Obligors’ ability to make certain Disposal. The Facilities Agreement also contains certain affirmative covenants, including, but not limited to, certain information undertakings and access to premises and management.


The Facilities Agreement contains certain customary representations and warranties, subject to certain customary materiality, knowledge and other qualifications, exceptions and baskets, and with certain representations and warranties being repeated, including: (i) status; (ii) binding obligations; (iii) non-conflict with constitutional documents, laws or other obligations; (iv) power and authority; (v) validity and admissibility in evidence; (vi) governing law and enforcement; (vii) insolvency; (viii) deduction of tax; (ix) no filing or stamp duties; (x) no default (xi) no misleading information (xii) financial statements; (xiii) pari passu ranking; (xiv) no proceedings; (xv) no breach of laws; (xvi) environmental laws; (xvii) taxation; (xviii) anti-corruption and anti-money laundering; (xix) sanctions; (xx) good title to assets; (xxi) legal and beneficial ownership; (xxii) group structure chart; (xxiii) no adverse consequences; (xxiv) centre of main interest and establishments; (xxv) authorised signatories; and (xxvi) each green loan representation (not all of these repeat).

The Facilities Agreement provides that, upon the occurrence of an event of default, which is continuing, the Obligors’ obligations thereunder may be accelerated. Such events of default include the following events, subject to customary qualifications, exceptions, baskets and carve outs: (i) payment defaults on any amount payable by any Obligor or the Keepwell Provider pursuant to the Finance Documents (ii) a breach by an Obligor, the Keepwell Provider or a Subordinated Creditor of the terms of the Finance Documents; (iii) a misrepresentation by any Obligor, the Keepwell Provider or a Subordinated Creditor; (v) cross default for any financial indebtedness of any Group Member, Geely Automobile Holdings Limited, Geely International (Hong Kong) Limited, the Keepwell Provider or any other Obligor; (vi) if any insolvency or insolvency proceedings are entered into in respect of any Obligor, the Keepwell Provider and any Group Member; (vii) certain changes to the listing status of Polestar; and (viii) other customary events of default. The Facilities are governed by English law.

A copy of the Facilities Agreement is included in this Report on Form 6-K as Exhibit 10.1 and the foregoing description of the Facilities and the Facilities Agreement are qualified in its entirety by reference thereto.

Exhibit 10.1 shall be deemed to be incorporated by reference into Polestar’s registration statement on Form S-8 (File No: 333-267146), registration statement on Form F-3 (File No. 333-266101) and registration statement on Form F-3 (File No. 333-274918) and to be a part thereof from the date on which this report is submitted, to the extent not superseded by documents or reports subsequently filed or furnished. Exhibit 99.1 to this Report on Form 6-K shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934 (the “Exchange Act”) or otherwise subject to the liabilities of that section, nor shall it be deemed incorporated by reference in any filing under the Securities Act of 1933 or the Exchange Act.


EXHIBIT INDEX

 

Exhibit
No.
   Description of Exhibit
10.1*    Facilities Agreement by and among Polestar Automotive Holding UK PLC, Standard Chartered Bank and the Original Lenders named therein, dated February 22, 2024
99.1    Press Release of Polestar Automotive Holding UK PLC, dated February 28, 2024, titled “Polestar secures USD 1 billion external funding; business outlook confirmed”

 

*

Certain information has been redacted from this exhibit pursuant to Item 601(b)(10) of Regulation S-K.


SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.

 

    POLESTAR AUTOMOTIVE HOLDING UK PLC
Date: February 28, 2024     By:  

/s/ Thomas Ingenlath

    Name:   Thomas Ingenlath
    Title:   Chief Executive Officer
    By:  

/s/ Per Ansgar

    Name:   Per Ansgar
    Title:   Chief Financial Officer
EX-10.1

Exhibit 10.1

Execution version

Certain identified information marked with “[***]” has been omitted from this document because it is both (i) not material and (ii) the type that the registrant treats as private or confidential.

 

LOGO

 

LOGO

Dated 22 February 2024

for

POLESTAR AUTOMOTIVE HOLDING UK PLC

arranged by

BNP PARIBAS

NATIXIS, HONG KONG BRANCH

STANDARD CHARTERED BANK

THE HONGKONG AND SHANGHAI BANKING CORPORATION LIMITED

BANCO BILBAO VIZCAYA ARGENTARIA, S.A., LONDON BRANCH

SHANGHAI PUDONG DEVELOPMENT BANK CO., LTD. (acting through its Offshore Banking Unit) (a company incorporated in the PRC with limited liability)

CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK

CHINA BOHAI BANK CO., LTD. SHANGHAI FREE TRADE ZONE BRANCH

MIZUHO BANK, LTD.

MUFG Bank, Ltd. (incorporated in Japan with limited liability), HONG KONG BRANCH

CITIGROUP GLOBAL MARKETS ASIA LIMITED

CHINA ZHESHANG BANK CO., LTD. (HANGZHOU BRANCH)

with

STANDARD CHARTERED BANK

acting as Agent

and

STANDARD CHARTERED BANK

acting as Security Agent

Ref: L-344521


CONTENTS

 

CLAUSE        PAGE  

SECTION 1

 

INTERPRETATION

 

1.

  Definitions and interpretation      3  

SECTION 2

 

THE FACILITIES

 

2.

  The Facilities      41  

3.

  Purpose      42  

4.

  Conditions of Utilisation      42  

SECTION 3

 

UTILISATION

 

5.

  Utilisation      44  

SECTION 4

 

REPAYMENT, PREPAYMENT AND CANCELLATION

 

6.

  Repayment      46  

7.

  Illegality, voluntary prepayment and cancellation      46  

8.

  Mandatory prepayment and cancellation      49  

9.

  Restrictions      50  

SECTION 5

 

COSTS OF UTILISATION

 

10.

  Interest      52  

11.

  Interest Periods      53  

12.

  Changes to the calculation of interest      54  

13.

  Fees      57  

SECTION 6

 

ADDITIONAL PAYMENT OBLIGATIONS

 

14.

  Tax gross-up and indemnities      58  

15.

  Increased Costs      68  

16.

  Other indemnities      70  

17.

  Mitigation by the Lenders      72  

18.

  Costs and expenses      73  

SECTION 7

 

GUARANTEE

 

19.

  Guarantee and indemnity      74  

SECTION 8

 

REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT

 

20.

  Representations      77  

21.

  Information undertakings      83  

22.

  Financial covenants      87  

23.

  General undertakings      92  

24.

  Events of Default      100  

SECTION 9

 

CHANGES TO PARTIES

 

25.

  Changes to the Lenders      107  

 

(i)


26.

  Restriction on Debt Purchase Transactions      112  

27.

  Changes to the Obligors      113  

SECTION 10

 

THE FINANCE PARTIES

 

28.

  Role of the FINANCE PARTIES      114  

29.

  Application of Proceeds      131  

30.

  Conduct of business by the Secured Parties      132  

31.

  Sharing among the Finance Parties      132  

SECTION 11

 

ADMINISTRATION

 

32.

  Payment mechanics      134  

33.

  Set-off      138  

34.

  Notices      138  

35.

  Calculations and certificates      141  

36.

  Partial invalidity      141  

37.

  Remedies and waivers      141  

38.

  Amendments and waivers      141  

39.

  Confidential Information      149  

40.

  Confidentiality of Funding Rates      153  

41.

  Counterparts      154  

42.

  Bail-in      155  

43.

  Green Loan      157  

SECTION 12

 

GOVERNING LAW AND ENFORCEMENT

 

44.

  Governing law      161  

45.

  Enforcement      161  

46.

  Recognition of Hong Kong Stay Powers      161  

THE SCHEDULES

 

SCHEDULE    PAGE  

SCHEDULE 1 The Original Lenders

     164  

SCHEDULE 2 Conditions Precedent

     166  

SCHEDULE 3 Requests

     169  

SCHEDULE 4 Form of Transfer Certificate

     171  

SCHEDULE 5 Form of Assignment Agreement

     175  

SCHEDULE 6 Form of Compliance Certificate

     179  

SCHEDULE 7 Timetables

     181  

SCHEDULE 8 Forms of Notifiable Debt Purchase Transaction Notice

     182  

SCHEDULE 9 Form of Green Loan Impact Report

     184  

SCHEDULE 10 Form of QPP Certificate

     186  

 

(ii)


THIS AGREEMENT is dated 22 February 2024 and made between:

 

(1)

POLESTAR AUTOMOTIVE HOLDING UK PLC, with company registration number 13624182 and its registered address at The Pavilions, Bridgwater Road, Bristol, England, BS13 8AE (the “Company” or “Borrower”);

 

(2)

POLESTAR PERFORMANCE AB, with registration number 556653-3096 and its registered address at Assar Gabrielssons väg 9, 405 31 Gothenburg, Sweden (the “Guarantor”);

 

(3)

BNP PARIBAS, a public limited company (société anonyme) incorporated in the Republic of France with the liability of its members being limited and having a branch in Hong Kong, NATIXIS, HONG KONG BRANCH (incorporated in France and the liability of its members is limited), and STANDARD CHARTERED BANK (each a “Global Coordinator” and together the “Global Coordinators”);

 

(4)

BANCO BILBAO VIZCAYA ARGENTARIA, S.A., LONDON BRANCH, BNP PARIBAS, a public limited company (société anonyme) incorporated in the Republic of France with the liability of its members being limited and having a branch in Hong Kong, NATIXIS, HONG KONG BRANCH (incorporated in France and the liability of its members is limited) and STANDARD CHARTERED BANK (each a “Joint Green Loan Lead Coordinator” and together the “Joint Green Loan Lead Coordinators”);

 

(5)

THE HONGKONG AND SHANGHAI BANKING CORPORATION LIMITED as green loan coordinator (the “Green Loan Coordinator”);

 

(6)

BNP PARIBAS, a public limited company (société anonyme) incorporated in the Republic of France with the liability of its members being limited and having a branch in Hong Kong, NATIXIS, HONG KONG BRANCH (incorporated in France and the liability of its members is limited), STANDARD CHARTERED BANK, THE HONGKONG AND SHANGHAI BANKING CORPORATION LIMITED, BANCO BILBAO VIZCAYA ARGENTARIA, S.A., LONDON BRANCH and SHANGHAI PUDONG DEVELOPMENT BANK CO., LTD. (acting through its Offshore Banking Unit) (a company incorporated in the PRC with limited liability) as mandated lead arrangers and bookrunners (each an “MLAB” and together the “MLABs”);

 

(7)

CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK (incorporated in France with limited liability), China Bohai Bank Co., Ltd. Shanghai Free Trade Zone Branch, MIZUHO BANK, LTD. (incorporated in Japan with limited liability), MUFG Bank, Ltd. (incorporated in Japan with limited liability), Hong Kong Branch, CITIGROUP GLOBAL MARKETS ASIA LIMITED and CHINA ZHESHANG BANK CO., LTD. (HANGZHOU BRANCH) as mandated lead arrangers (each an “MLA” and together the “MLAs”);

 

(8)

THE FINANCIAL INSTITUTIONS listed in Schedule 1 (The Original Lenders) as lenders (the “Original Lenders”);

 

(9)

STANDARD CHARTERED BANK, incorporated in England by Royal Charter 1853 of 1 Basinghall Avenue, 6th Floor London EC2V 5DD, United Kingdom, as agent of the other Finance Parties (the “Agent”);

 

(10)

STANDARD CHARTERED BANK, incorporated in England by Royal Charter 1853 of 1 Basinghall Avenue, 6th Floor London EC2V 5DD, United Kingdom, as security agent for the Secured Parties (the “Security Agent”); and

 

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(11)

STANDARD CHARTERED BANK, incorporated with limited liability in England by Royal Charter 1853 (Reference No. ZC18), whose principal office is at 1 Basinghall Avenue, London EC2V 5DD, United Kingdom as account bank (the “Account Bank”)

IT IS AGREED as follows:

 

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SECTION 1

INTERPRETATION

 

1.

DEFINITIONS AND INTERPRETATION

 

1.1

Definitions

In this Agreement:

Acceptable Bank” has the meaning given to that term in Clause 22 (Financial covenants).

Accounting Principles” means, in respect of a person incorporated in a jurisdiction which has generally accepted accounting principles, such generally accepted accounting principles in such jurisdiction or IFRS.

Accounting Reference Date” means 31 December of each calendar year.

ADS” means American depositary shares.

Affiliate” means, in relation to any person, a Subsidiary of that person or a Holding Company of that person or any other Subsidiary of that Holding Company.

AML/CTF Laws” means all applicable financial record-keeping and reporting requirements, any anti-money laundering or counter-terrorism financing laws and any related or similar rules, regulations or guidelines, in each case of the PRC, of any jurisdiction of incorporation of any Lender, and of any jurisdiction applicable to any Obligor or any of its Affiliates from time to time.

Annual Financial Statements” means the financial statements in respect of a person delivered pursuant to paragraph (a) of Clause 21.1 (Financial statements).

“Anti-Corruption Laws” means all laws, rules and regulations concerning or relating to anti-bribery or anti-corruption of the PRC, of any jurisdiction of incorporation of any Lender, and of any jurisdiction applicable to any Obligor or any of its Affiliates from time to time, including but not limited to United Kingdom Bribery Act 2010 and the US Foreign Corrupt Practices Act of 1977 and similar laws or regulations in any jurisdiction relating to bribery, corruption or any similar practices.

Asset Freeze Target means any individual or entity who is directly or indirectly subject to an asset freeze, a prohibition to make funds available or a list-based transaction ban pursuant to Sanctions, including through being listed on or fifty percent (50%) or more owned or controlled by any individual or entity listed on (a) OFAC’s “Specially Designated Nationals and Blocked Persons List”; (b) the EU’s “Consolidated Financial Sanctions List”, (c) the UK’s “Consolidated List of Financial Sanctions Targets – Asset Freeze Targets” list, (d) Annex XIX of Regulation (EU) No 833/2014, or (e) an equivalent list maintained by any other Sanctions Authority.

Assignment Agreement” means an agreement substantially in the form set out in Schedule 5 (Form of Assignment Agreement) or any other form agreed between the relevant assignor and assignee.

Authorisation” means an authorisation, consent, approval, resolution, licence, exemption, filing, notarisation or registration.

 

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Availability Period” means the period from and including the Signing Date to and including the date which is six (6) Months after the Signing Date.

Available Commitment” means, in relation to a Lender and a Facility, that Lender’s Commitment under that Facility minus:

 

  (a)

the amount of its participation in any outstanding Loans under that Facility; and

 

  (b)

in relation to any proposed Utilisation under that Facility, the amount of its participation in any Loans under that Facility that are due to be made under that Facility on or before the proposed Utilisation Date.

Available Credit” has the meaning given to the term in Clause 22.1 (Financial definitions).

Available Facility” means, in relation to a Facility, the aggregate for the time being of each Lender’s Available Commitment in relation to that Facility.

Bank Group” means, in respect of a Lender, that Lender (including, if applicable, all that Lender’s branches and offices wherever located) and that Lender’s Subsidiaries and Affiliates.

Break Costs” means the amount (if any) by which:

 

  (a)

the interest which a Lender should have received for the period from the date of receipt of all or any part of its participation in a Loan or Unpaid Sum to the last day of the current Interest Period in respect of that Loan or Unpaid Sum, had the principal amount or Unpaid Sum received been paid on the last day of that Interest Period;

exceeds:

 

  (b)

the amount which that Lender would be able to obtain by placing an amount equal to the principal amount or Unpaid Sum received by it on deposit with a leading bank for a period starting on the Business Day following receipt or recovery and ending on the last day of the current Interest Period.

Business Day” means a day (other than a Saturday or Sunday) on which banks are open for general business in Beijing, Hong Kong and London and:

 

  (a)

(in relation to any date for payment or purchase of USD) New York;

 

  (b)

(in relation to the fixing of an interest rate for any Loan (Facility B)), which is a US Government Securities Business Day; or

 

  (c)

(in relation to any date for payment or purchase of EUR or fixing of an interest rate for any Loan (Facility A)) any TARGET Day.

Business Plan” means the financial model dated October 2023 including profit and loss, balance sheet and cashflow projections relating to the Group for the Financial Years ending on 31 December 2024, 31 December 2025 and 31 December 2026, as provided to the MLABs and the MLAs prior to the Signing Date.

Central Bank Rate” means:

 

  (a)

the short-term interest rate target set by the US Federal Open Market Committee as published by the Federal Reserve Bank of New York from time to time; or

 

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  (b)

if that target is not a single figure, the arithmetic mean of:

 

  (i)

the upper bound of the short-term interest rate target range set by the US Federal Open Market Committee and published by the Federal Reserve Bank of New York; and

 

  (ii)

the lower bound of that target range.

Central Bank Rate Adjustment” means in relation to the Central Bank Rate prevailing at close of business on any US Government Securities Business Day, the 20 per cent. trimmed arithmetic mean (calculated by the Agent, or by any other Finance Party which agrees to do so in place of the Agent) of the Central Bank Rate Spreads for the five most immediately preceding US Government Securities Business Days for which CME Term SOFR for a period equal in length to the applicable Interest Period is available.

Central Bank Rate Spread” means, in relation to any US Government Securities Business Day, the difference (expressed as a percentage rate per annum) calculated by the Agent (or by any other Finance Party which agrees to do so in place of the Agent) between:

 

  (a)

CME Term SOFR for a period equal in length to the applicable Interest Period for that US Government Securities Business Day; and

 

  (b)

the Central Bank Rate prevailing at close of business on that US Government Securities Business Day.

Change of Control” means the occurrence of any of the following events:

 

  (a)

Mr. Li ceases to:

 

  (i)

directly or indirectly hold legally and beneficially at least 80 per cent. of the issued share capital of the Keepwell Provider, or Control the Keepwell Provider; or

 

  (ii)

directly or indirectly hold legally and beneficially 100 per cent. of the issued share capital of PSD, or Control PSD; or

 

  (b)

the Keepwell Provider ceases to:

 

  (i)

directly or indirectly hold legally and beneficially at least 51 per cent. of the issued share capital of VCC or Control VCC; or

 

  (ii)

directly or indirectly hold legally and beneficially at least 25 per cent. of the issued share capital of Geely Automobile or Control Geely Automobile; or

 

  (c)

VCC and PSD (or any other person in which Mr. Li directly or indirectly holds at least 51 per cent. of the shares or equity interests), collectively, cease to directly or indirectly hold legally and beneficially at least 51 per cent. of the issued share capital of the Borrower, or Control the Borrower; or

 

  (d)

the Borrower ceases to directly or indirectly hold legally and beneficially 100 per cent. of the issued share capital of the Guarantor, or Control the Guarantor.

Charged Property” means the Interest Reserve Account or any other property from time to time which is, or is expressed to be, the subject of the Transaction Security.

 

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CME Term SOFR” means the Term SOFR reference rate administered by CME Group Benchmark Administration Limited (or any other person which takes over the administration of that rate) for the relevant period published (before any correction, recalculation or republication by the administrator) by CME Group Benchmark Administration Limited (or any other person which takes over the publication of that rate).

Code” means the U.S. Internal Revenue Code of 1986.

Commitment” means Commitment (Facility A) or Commitment (Facility B) and “Commitments” means both of them.

Commitment (Facility A)” means:

 

  (a)

in relation to an Original Lender, the amount set opposite its name under the heading “Commitment (Facility A)” in Schedule 1 (The Original Lenders) and the amount of any other Commitment (Facility A) transferred to it under this Agreement; and

 

  (b)

in relation to any other Lender, the amount of any Commitment (Facility A) transferred to it under this Agreement,

to the extent not cancelled, reduced or transferred by it under this Agreement.

Commitment (Facility B)” means:

 

  (a)

in relation to an Original Lender, the amount set opposite its name under the heading “Commitment (Facility B)” in Schedule 1 (The Original Lenders) and the amount of any other Commitment (Facility B) transferred to it under this Agreement; and

 

  (b)

in relation to any other Lender, the amount of any Commitment (Facility B) transferred to it under this Agreement,

to the extent not cancelled, reduced or transferred by it under this Agreement.

Competitor” means any person which is engaged in the design, manufacturing, sales, and/or related administrative and operational activities in each case of electric vehicles (the “Core Business”) operating in one or more jurisdictions in which any Group Member, or any person in whom Mr. Li directly or indirectly holds at least 51 per cent. of the shares or equity interests or who is otherwise Controlled by Mr. Li, conducts the Core Business, or any direct or indirect shareholder of such person (which beneficially owns more than 50 per cent. of the shares in such person), provided that such person will not be deemed as a Competitor:

 

  (a)

if solely by virtue of that person:

 

  (i)

dealing in shares in or securities of a Competitor, where the relevant teams and employees engaged in such dealings operate on the public side of an information barrier;

 

  (ii)

becoming an equity investor or equity holder in a Competitor as a consequence of (i) a debt-for-equity swap in, or (ii) any other arrangement entered into in connection with any restructuring of debt whereby creditors acquire an equity interest in or the right to participate in the equity of or (iii) the enforcement of security over shares of, that Competitor; provided that the relevant teams and employees involved in such transactions are separated from any teams or employees working in relation to the Group and the Finance Documents (and related transactions) by way of an information barrier; or

 

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  (b)

being an equity investor or equity holder in a Competitor provided that the relevant teams and employees involved in such equity investment(s) are distinct from the teams or employees working in relation to the Group and the Finance Documents (and related transactions); or

 

  (c)

where it is a financial institution subject to regulation or supervision by the Hong Kong Monetary Authority, the Monetary Authority of Singapore, the Financial Services Agency of Japan, the United Kingdom Financial Services Authority, the Bank of England, the European Central Bank, the Board of Governors of the Federal Reserve of the United States and/or any equivalent governmental authority regulating financial services in a jurisdiction or any successor or replacement governmental authority with equivalent principal functions from time to time or an Affiliate of such a financial institution.

Compliance Certificate” means a certificate substantially in the form set out in Schedule 6 (Form of Compliance Certificate).

Confidential Information” means all information relating to the Company, any Obligor, the Keepwell Provider, the Group, the Finance Documents or any Facility of which a Finance Party becomes aware in its capacity as, or for the purpose of becoming, a Finance Party or which is received by a Finance Party in relation to, or for the purpose of becoming a Finance Party under, the Finance Documents or a Facility from either:

 

  (a)

any Group Member or any of its advisers; or

 

  (b)

another Finance Party, if the information was obtained by that Finance Party directly or indirectly from any Group Member or any of its advisers,

in whatever form, and includes information given orally and any document, electronic file or any other way of representing or recording information which contains or is derived or copied from such information but excludes:

 

  (i)

information that:

 

  (A)

is or becomes public information other than as a direct or indirect result of any breach by that Finance Party of Clause 39 (Confidential Information); or

 

  (B)

is identified in writing at the time of delivery as non-confidential by any Group Member or any of its advisers; or

 

  (C)

is known by that Finance Party before the date the information is disclosed to it in accordance with paragraphs (A) or (B) above or is lawfully obtained by that Finance Party after that date, from a source which is, as far as that Finance Party is aware, unconnected with the Group and which, in either case, as far as that Finance Party is aware, has not been obtained in breach of, and is not otherwise subject to, any obligation of confidentiality; and

 

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  (ii)

any Funding Rate.

Confidentiality Undertaking” means a confidentiality undertaking substantially in a recommended form of the LMA or in any other form agreed between the Borrower and the Agent.

Consolidated Group Assets” has the meaning given to the term in Clause 22.1 (Financial definitions).

Control” means in respect of any company, having the power (either directly or indirectly and whether by way of ownership of shares, proxy, contract, agency or otherwise) to (a) appoint or remove the majority of the directors or other equivalent officers of such company; and (b) give directions with respect to the affairs, operating, investment decisions and financial or other policies of that company with which the directors or other equivalent officers of that company are obliged to comply.

Core Business” has the meaning given to the term under the definition of “Competitor”.

CTA” means the Corporation Tax Act 2009.

Debt Purchase Transaction” means, in relation to a person, a transaction where such person:

 

  (a)

purchases by way of assignment or transfer;

 

  (b)

enters into any sub-participation in respect of; or

 

  (c)

enters into any other agreement or arrangement having an economic effect substantially similar to a sub-participation in respect of,

any Commitment or amount outstanding under this Agreement.

Default” means an Event of Default or any event or circumstance specified in Clause 24 (Events of Default) which would (with the expiry of a grace period, the giving of notice, the making of any determination under the Finance Documents or any combination of any of the foregoing) be an Event of Default.

Defaulting Lender” means any Lender (other than a Lender which is a Sponsor Affiliate):

 

  (a)

which has failed to make its participation in a Loan available (or has notified the Agent or the Borrower (which has notified the Agent) that it will not make its participation in a Loan available) by the Utilisation Date of that Loan in accordance with Clause 5.4 (Lenders participation) ;

 

  (b)

which has otherwise rescinded or repudiated a Finance Document; or

 

  (c)

with respect to which an Insolvency Event has occurred and is continuing,

unless, in the case of paragraph (a) above:

 

  (i)

its failure to pay is caused by:

 

  (A)

administrative or technical error; or

 

  (B)

a Disruption Event; and

payment is made within five (5) Business Days of its due date; or

 

  (ii)

the Lender is disputing in good faith whether it is contractually obliged to make the payment in question.

 

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Delegate” means any delegate, agent, attorney or co-trustee appointed by the Security Agent.

Depositary” means Citibank, N.A., acting as depositary under the deposit agreements in respect of the Listco ADSs.

Disposal” means a sale, lease, licence, transfer, loan or other disposal by a person of any asset, undertaking or business (whether by a voluntary or involuntary single transaction or series of transactions).

Disposal Proceeds” has the meaning given to the term under paragraph (a) of Clause 8.2 (Disposal Proceeds).

Disruption Event” means either or both of:

 

  (a)

a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with any Facility (or otherwise in order for the transactions contemplated by the Finance Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the Parties; or

 

  (b)

the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payments operations of a Party preventing that, or any other Party:

 

  (i)

from performing its payment obligations under the Finance Documents; or

 

  (ii)

from communicating with other Parties in accordance with the terms of the Finance Documents,

and which (in either such case) is not caused by, and is beyond the control of, the Party whose operations are disrupted.

Distressed Investor” means a loan to own fund, vulture fund, distressed debt fund or any other entity (including a business group within a bank or financial institution) which is established for or principally invests in distressed debt (or any similar fund or entity).

Eligible Green Activities has the meaning given to the term in Clause 43 (Green Loan).

Eligible Institution” means any Lender or other bank, financial institution, trust, fund or other entity selected by the Company and which, in each case, is not a Group Member or a Sponsor Affiliate.

Environment” means humans, animals, plants and all other living organisms including the ecological systems of which they form part and the following media:

 

  (a)

air (including, without limitation, air within natural or man-made structures, whether above or below ground);

 

  (b)

water (including, without limitation, territorial, coastal and inland waters, water under or within land and water in drains and sewers); and

 

  (c)

land (including, without limitation, land under water).

 

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Environmental Claim” means any claim, proceeding, formal notice or investigation by any person in respect of any Environmental Law.

Environmental Law” means any applicable law or regulation which relates to:

 

  (a)

the pollution or protection of the Environment;

 

  (b)

the conditions of the workplace; or

 

  (c)

the generation, handling, storage, use, release or spillage of any substance which, alone or in combination with any other, is capable of causing harm to the Environment, including, without limitation, any waste.

Environmental Permits” means any permit and other Authorisation and the filing of any notification, report or assessment required under any Environmental Law for the operation of the business of any Group Member conducted on or from the properties owned or used by any Group Member.

EURIBOR” means, in relation to any Loan (Facility A):

 

  (a)

the applicable Screen Rate as of the Specified Time for EUR and for a period equal in length to the Interest Period of that Loan (Facility A); or

 

  (b)

as otherwise determined pursuant to Clause 12.1 (Unavailability of Screen Rate),

and if, in either case, that rate is less than zero, EURIBOR shall be deemed to be zero.

Event of Default” means any event or circumstance specified as such in Clause 24 (Events of Default).

Exchange” means NASDAQ Stock Market LLC or any successor to that exchange or any substitute exchange or quotation system in the same jurisdiction as the original Exchange acceptable to the Agent.

Exchange Business Day” means any day on which the Exchange is open for trading for a regular trading session.

Facility” means Facility A or Facility B and “Facilities” means both of them.

Facility A” means the term loan facility made available under this Agreement as described in paragraph (a) Clause 2.1 (The Facilities).

Facility B” means the term loan facility made available under this Agreement as described in paragraph (b) Clause 2.1 (The Facilities).

Facility Office” means the office or offices notified by a Lender to the Agent in writing on or before the date it becomes a Lender (or, following that date, by not less than five Business Days’ written notice) as the office or offices through which it will perform its obligations under this Agreement.

Fallback Interest Period” means:

 

  (a)

subject to paragraph (b), three (3) Months;

 

  (b)

(to the extent relating to a Loan (Facility B)) if the Reference Rate is, or is based on, the Central Bank Rate, one (1) Month.

 

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FATCA” means:

 

  (a)

sections 1471 to 1474 of the Code and any associated regulations;

 

  (b)

any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental agreement between the U.S. and any other jurisdiction, which (in either case) facilitates the implementation of any law or regulation referred to in paragraph (a) above; and

 

  (c)

any agreement pursuant to the implementation of any treaty, law or regulation referred to in paragraphs (a) or (b) above with the U.S. Internal Revenue Service, the U.S. government or any governmental or taxation authority in any other jurisdiction.

FATCA Application Date” means:

 

  (a)

in relation to a “withholdable payment” described in section 1473(1)(A)(i) of the Code (which relates to payments of interest and certain other payments from sources within the U.S.), 1 July 2014; or

 

  (b)

in relation to a “passthru payment” described in section 1471(d)(7) of the Code not falling within paragraph (a) above, the first date from which such payment may become subject to a deduction or withholding required by FATCA.

FATCA Deduction” means a deduction or withholding from a payment under a Finance Document required by FATCA.

FATCA Exempt Party” means a Party that is entitled to receive payments free from any FATCA Deduction.

FATCA FFI” means a foreign financial institution as defined in section 1471(d)(4) of the Code which, if any Finance Party is not a FATCA Exempt Party, could be required to make a FATCA Deduction.

Fee Letter” means any letter or letters dated on or about the Signing Date between, as the case may be, the Agent, each Global Coordinator, each MLAB, and/or each MLA and the Company, the Agent and the Company, the Security Agent and the Company, or the Account Bank and the Company setting out any of the fees referred to in Clause 13 (Fees).

Finance Document” means this Agreement, any Fee Letter, the Subordination Deed, the Keepwell Deed, each Security Document and any other document designated as such by the Agent and the Company.

Finance Lease” any lease or hire purchase contract, a liability under which would, in accordance with the applicable Accounting Principles, be treated as a balance sheet liability (other than a lease or hire purchase contract which would, in accordance with the Accounting Principles in force prior to 1 January 2019, have been treated as an operating lease).

Finance Party” means the Account Bank, the Agent, the Security Agent, a Global Coordinator, a Joint Green Loan Lead Coordinator, the Green Loan Coordinator, an MLAB, an MLA or a Lender.

Financial Indebtedness” means any indebtedness for or in respect of:

 

  (a)

moneys borrowed;

 

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  (b)

any amount raised by acceptance under any acceptance credit facility or dematerialised equivalent;

 

  (c)

any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument (other than Trade Instruments, but, for the avoidance of doubt, including any equity linked indebtedness contemplated under paragraph (c) of the definition of “Permitted Distribution”);

 

  (d)

the amount of any liability in respect of Finance Leases;

 

  (e)

receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse basis (subject to customary exceptions in the ordinary course of trading));

 

  (f)

any amount raised under any other transaction (including any forward sale or purchase agreement) of a type not referred to in any other paragraph of this definition having the commercial effect of a borrowing;

 

  (g)

any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price (and, when calculating the value of any derivative transaction, only the marked to market value (or, if any actual amount is due as a result of the termination or close-out of that derivative transaction, that amount) shall be taken into account);

 

  (h)

shares which are expressed to be redeemable (other than the shares redeemable solely at the option of the issuer) on or prior to the date falling six Months after the Termination Date;

 

  (i)

any counter-indemnity obligation in respect of a guarantee, indemnity, bond, standby or documentary letter of credit or any other instrument issued by a bank or financial institution (other than Trade Instruments); and

 

  (j)

(without double counting) the amount of any liability in respect of any guarantee or indemnity for any of the items referred to in paragraphs (a) to (i) above.

Financial Quarter” means the period commencing on the day after one Quarter Date and ending on the next Quarter Date.

Financial Year” means the financial year of the Borrower, ending on 31 December of each calendar year.

Funding Rate” means any individual rate notified by a Lender to the Agent pursuant to paragraph (a)(ii) of Clause 12.4 (Cost of funds).

Geely Automobile” means Geely Automobile Holdings Limited, a company incorporated under the laws of Cayman Islands with its registration no. of 66512 and its registered address at P.O. Box 309, Ugland House, Grand Cayman, KY1-1104, Cayman Islands, listed on the Hong Kong Stock Exchange with stock code HK: 00175.

Geely International” means GEELY INTERNATIONAL (HONG KONG) LIMITED, a company incorporated under the laws of Hong Kong with its registration no. of 940401 and its registered address at Unit 2204, 22/F, Lippo Centre, Tower 2, 89 Queensway, Hong Kong.

 

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GLP has the meaning given to the term in Clause 43 (Green Loan).

Green Loan Facility” has the meaning given to the term in Clause 43 (Green Loan).

Green Loan Impact Report has the meaning given to the term in Clause 43 (Green Loan).

Green Loan Information” means information which has been:

 

  (a)

provided by or on behalf of a Group Member to a Finance Party and/or to any Joint Green Loan Lead Coordinator or the Green Loan Coordinator; or

 

  (b)

approved by any Group Member, solely in connection with, and to the extent it relates to, any Green Loan Impact Report.)

Green Loan Provisions has the meaning given to the term in Clause 43 (Green Loan).

Green Loan Transaction” has the meaning given to the term in Clause 43 (Green Loan).

Group” means the Company and its Subsidiaries from time to time (each being a “Group Member”).

Group Cash” has the meaning given to the term in Clause 22.1 (Financial definitions).

Group Cash Equivalent Investments” has the meaning given to the term in Clause 22.1 (Financial definitions).

Group Member” has the meaning given to the term in the definition of “Group”.

Group Structure Chart” means the group structure chart delivered to the Agent on or around the Signing Date which shall comply with the requirements set out under Clause 20.22 (Group Structure Chart).

Historic CME Term SOFR” means, in relation to any Loan (Facility B), the most recent applicable CME Term SOFR for a period equal in length to the Interest Period of that Loan (Facility B) and which is as of a day which is no more than three U.S. Government Securities Business Days before the Quotation Day.

Historic Screen Rate” means, in relation to any Loan (Facility A), the most recent applicable Screen Rate for EUR and for a period equal in length to the Interest Period of that Loan (Facility A) and which is as of a day which is no more than three (3) Business Days before the Quotation Day.

Holding Company” means, in relation to a person, any other person in respect of which it is a Subsidiary.

ICE Term SOFR” means the Term SOFR reference rate administered by ICE Benchmark Administration Limited (or any other person which takes over the administration of that rate) for the relevant period published (before any correction, recalculation or republication by the administrator) by ICE Benchmark Administration Limited (or any other person which takes over the publication of that rate).

IFRS” means international accounting standards within the meaning of the IAS Regulation 1606/2002 to the extent applicable to the relevant financial statements.

 

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Impaired Agent” means the Agent at any time when:

 

  (a)

it has failed to make (or has notified a Party that it will not make) a payment required to be made by it under the Finance Documents by the due date for payment;

 

  (b)

the Agent otherwise rescinds or repudiates a Finance Document;

 

  (c)

(if the Agent is also a Lender) it is a Defaulting Lender under paragraph (a) or (b) of the definition of “Defaulting Lender”; or

 

  (d)

an Insolvency Event has occurred and is continuing with respect to the Agent;

unless, in the case of paragraph (a) above:

 

  (i)

its failure to pay is caused by:

 

  (A)

administrative or technical error; or

 

  (B)

a Disruption Event; and

payment is made within five (5) Business Days of its due date; or

 

  (ii)

the Agent is disputing in good faith whether it is contractually obliged to make the payment in question.

Increased Costs” has the meaning given to the term under paragraph (b) of Clause 15.1 (Increased Costs)

Initial Utilisation Date” means the date on which the first Loan (Facility A) and Loan (Facility B) is made.

Insolvency Event” in relation to an entity means that the entity:

 

  (a)

is dissolved (other than pursuant to a consolidation, amalgamation or merger);

 

  (b)

becomes insolvent or is unable to pay its debts or fails or admits in writing its inability generally to pay its debts as they become due;

 

  (c)

makes a general assignment, arrangement or composition with or for the benefit of its creditors;

 

  (d)

institutes or has instituted against it, by a regulator, supervisor or any similar official with primary insolvency, rehabilitative or regulatory jurisdiction over it in the jurisdiction of its incorporation or organisation or the jurisdiction of its head or home office, a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors’ rights, or a petition is presented for its winding-up or liquidation by it or such regulator, supervisor or other official;

 

  (e)

has instituted against it a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors’ rights, or a petition is presented for its winding-up or liquidation, and, in the case of any such proceeding or petition instituted or presented against it, such proceeding or petition is instituted or presented by a person or entity not described in paragraph (d) above and:

 

  (i)

results in a judgment of insolvency or bankruptcy or the entry of an order for relief or the making of an order for its winding-up or liquidation; or

 

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  (ii)

is not dismissed, discharged, stayed or restrained in each case within 30 days of the institution or presentation thereof;

 

  (f)

has exercised in respect of it one or more of the stabilisation powers pursuant to Part 1 of the Banking Act 2009 and/or has instituted against it a bank insolvency proceeding pursuant to Part 2 of the Banking Act 2009 or a bank administration proceeding pursuant to Part 3 of the Banking Act 2009;

 

  (g)

has a resolution passed for its winding-up, official management or liquidation (other than pursuant to a consolidation, amalgamation or merger);

 

  (h)

seeks or becomes subject to the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official for it or for all or substantially all its assets (other than, for so long as it is required by law or regulation not to be publicly disclosed, any such appointment which is to be made, or is made, by a person or entity described in paragraph (d) above);

 

  (i)

has a secured party take possession of all or substantially all its assets or has a distress, execution, attachment, sequestration or other legal process levied, enforced or sued on or against all or substantially all its assets and such secured party maintains possession, or any such process is not dismissed, discharged, stayed or restrained, in each case within 30 days thereafter;

 

  (j)

causes or is subject to any event with respect to it which, under the applicable laws of any jurisdiction, has an analogous effect to any of the events specified in paragraphs (a) to (i) above; or

 

  (k)

takes any action in furtherance of, or indicating its consent to, approval of, or acquiescence, in any of the foregoing acts.

Interest Period” means, in relation to a Loan, each period determined in accordance with Clause 11 (Interest Periods) and, in relation to an Unpaid Sum, each period determined in accordance with Clause 10.4 (Default interest).

Interest Reserve Account” means Interest Reserve Account (USD) or Interest Reserve Account (EUR) (or both of them), as the context may require.

Interest Reserve Account (EUR)” means an EUR bank account with account number [***] and [***] in the name of the Borrower held with the Account Bank, located in London, and designated as such by the Borrower and the Agent (as the same may be re-designated, substituted or replaced from time to time).

Interest Reserve Account (USD)” means a USD bank account with account number [***] and [***] in the name of the Borrower held with the Account Bank, located in London, and designated as such by the Borrower and the Agent (as the same may be re-designated, substituted or replaced from time to time).

Interest Reserve Amount” means Interest Reserve Amount (USD) or Interest Reserve Amount (EUR) (or both of them), as the context may require.

 

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Interest Reserve Amount (EUR)” means, on any date, an amount denominated in EUR equal to the aggregate amount of interest that will accrue on the Loans (Facility A) for the following three (3) Months from that date (calculated based on the amount of Loans (Facility A) outstanding as at such date, applying the interest rate most recently determined in relation to each of those Loans (Facility A) (disregarding any intervening consolidation or division of Loans (Facility A), for this purpose) and assuming no intervening prepayments or repayment of those Loans (Facility A)).

Interest Reserve Amount (USD)” means, on any date, an amount denominated in USD equal to the aggregate amount of interest that will accrue on the Loans (Facility B) for the following three (3) Months from that date (calculated based on the amount of Loans (Facility B) outstanding as at such date, applying the interest rate most recently determined in relation to each of those Loans (Facility B) (disregarding any intervening consolidation or division of Loans (Facility B), for this purpose) and assuming no intervening prepayments or repayment of those Loans (Facility B)).

Interpolated CME Term SOFR” means, in relation to any Loan (Facility B), the rate (rounded to the same number of decimal places as CME Term SOFR) which results from interpolating on a linear basis between:

 

  (a)

either:

 

  (i)

the applicable CME Term SOFR (as of the Specified Time) for the longest period (for which CME Term SOFR is available) which is less than the Interest Period of that Loan (Facility B); or

 

  (ii)

if no such CME Term SOFR is available for a period which is less than the Interest Period of that Loan (Facility B), SOFR for the day which is two US Government Securities Business Days before the Quotation Day; and

 

  (b)

the applicable CME Term SOFR (as of the Specified Time) for the shortest period (for which CME Term SOFR is available) which exceeds the Interest Period of that Loan (Facility B).

Interpolated Historic CME Term SOFR” means, in relation to any Loan (Facility B), the rate (rounded to the same number of decimal places as CME Term SOFR) which results from interpolating on a linear basis between:

 

  (a)

either:

 

  (i)

the most recent applicable CME Term SOFR (as of a day which is not more than three U.S. Government Securities Business Days before the Quotation Day) for the longest period (for which CME Term SOFR is available) which is less than the Interest Period of that Loan (Facility B); or

 

  (ii)

if no such CME Term SOFR is available for a period which is less than the Interest Period of that Loan (Facility B), the most recent SOFR (for a day which is no more than five U.S. Government Securities Business Days and no less than two US Government Securities Business Days before the Quotation Day); and

 

  (b)

the most recent applicable CME Term SOFR (as of a day which is not more than three U.S. Government Securities Business Days before the Quotation Day) for the shortest period (for which CME Term SOFR is available) which exceeds the Interest Period of that Loan (Facility B).

 

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Interpolated Historic Screen Rate” means, in relation to any Loan (Facility A), the rate (rounded to the same number of decimal places as the two relevant Screen Rates which results from interpolating on a linear basis between:

 

  (a)

the most recent applicable Screen Rate for the longest period (for which that Screen Rate is available) which is less than the Interest Period of that Loan (Facility A); and

 

  (b)

the most recent applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds the Interest Period of that Loan (Facility A),

each for EUR and each of which is as of a day which is no more than three (3) Business Days before the Quotation Day.

Interpolated ICE Term SOFR” means, in relation to any Loan (Facility B), the rate (rounded to the same number of decimal places as ICE Term SOFR) which results from interpolating on a linear basis between:

 

  (a)

either:

 

  (i)

the applicable ICE Term SOFR (as of the Specified Time) for the longest period (for which ICE Term SOFR is available) which is less than the Interest Period of that Loan (Facility B); or

 

  (ii)

if no such ICE Term SOFR is available for a period which is less than the Interest Period of that Loan (Facility B), SOFR for the day which is two US Government Securities Business Days before the Quotation Day; and

 

  (b)

the applicable ICE Term SOFR (as of the Specified Time) for the shortest period (for which ICE Term SOFR is available) which exceeds the Interest Period of that Loan (Facility B).

Interpolated Screen Rate” means, in relation to any Loan (Facility A), the rate (rounded to the same number of decimal places as the two relevant Screen Rates) which results from interpolating on a linear basis between:

 

  (a)

the applicable Screen Rate for the longest period (for which that Screen Rate is available) which is less than the Interest Period of that Loan (Facility A); and

 

  (b)

the applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds the Interest Period of that Loan (Facility A),

each as of the Specified Time for the currency of that Loan (Facility A).

ITA” means the Income Tax Act 2007.

Joint Venture” means any joint venture entity, whether a company, unincorporated firm, undertaking, association, joint venture or partnership or any other entity.

Keepwell Deed” means a Hong Kong law keepwell deed entered into by the Keepwell Provider in favour of the Finance Parties dated on or around the Signing Date.

 

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Keepwell Provider” means 浙江吉利控股集团有限公司 (ZHEJIANG GEELY HOLDING GROUP CO., LTD.), a limited liability company incorporated under the laws of the PRC, with its uniformed social credit code of 91330000747735638J and its registered address at 1760 Jiangling Road, Binjiang District, Hangzhou.

Legal Reservations” means:

 

  (a)

the principle that equitable remedies may be granted or refused at the discretion of a court and the limitation of enforcement by laws relating to insolvency, reorganisation and other laws generally affecting the rights of creditors;

 

  (b)

the time barring of claims under the Limitation Acts, the possibility that an undertaking to assume liability for or indemnify a person against non-payment of UK stamp duty may be void and defences of set-off or counterclaim;

 

  (c)

similar principles, rights and defences under the laws of any Relevant Jurisdiction; and

 

  (d)

any other matter which are set out as qualifications or reservations as to matters of law of general application in any legal opinion delivered under clause 4.1 (Initial conditions precedent).

Lender” means a Lender (Facility A) or a Lender (Facility B).

Lender (Facility A)” means:

 

  (a)

any Original Lender (Facility A); and

 

  (b)

any bank, financial institution, trust, fund or other entity which has become a Party as a “Lender (Facility A)” in accordance with Clause 25 (Changes to the Lenders),

which in each case has not ceased to be a Party as such in accordance with the terms of this Agreement.

Lender (Facility B)” means:

 

  (a)

any Original Lender (Facility B); and

 

  (b)

any bank, financial institution, trust, fund or other entity which has become a Party as a “Lender (Facility B)” in accordance with Clause 25 (Changes to the Lenders),

which in each case has not ceased to be a Party as such in accordance with the terms of this Agreement.

Letter of Comfort” means:

 

  (a)

a Swedish law letter of comfort entered into by Snita dated on or around the Signing Date and endorsed by VCC in favour of the Finance Parties; or

 

  (b)

a PRC law letter of comfort entered into by PSD and endorsed by the Keepwell Provider in favour of the Finance Parties.

Letter of Comfort Provider” means Snita or PSD and “Letter of Comfort Providers” means both of them.

Limitation Acts” means the Limitation Act 1980 and the Foreign Limitation Periods Act 1984.

 

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Listco ADSs” means the Listco Class A ADSs, Listco Class B ADSs, the Listco Class C-1 ADSs or the Listco Class C-2 ADSs.

Listco Class A ADSs” means the ADSs of the Borrower duly and validly issued against the deposit with the Depositary of underlying Class A ordinary shares of the Borrower, and listed on the Exchange (ticker symbol: PSNY).

Listco Class B ADSs” means the ADSs of the Borrower duly and validly issued against the deposit with the Depositary of underlying Class B ordinary shares of the Borrower.

Listco Class C-1 ADSs” means the ADSs of the Borrower duly and validly issued against the deposit with the Depositary of underlying Class C-1 ordinary shares of the Borrower, and listed on the Exchange (ticker symbol: PSNYW).

Listco Class C-2 ADSs” means the ADSs of the Borrower duly and validly issued against the deposit with the Depositary of the underlying Class C-2 ordinary shares of the Borrower.

LMA” means the Loan Market Association.

Loan” means a Loan (Facility A) or a Loan (Facility B).

Loan (Facility A)” means a loan made or to be made under Facility A or the principal amount outstanding for the time being of that loan.

Loan (Facility B)” means a loan made or to be made under Facility B or the principal amount outstanding for the time being of that loan.

Majority Lenders” means a Lender or Lenders whose Commitments aggregate more than 662/3 per cent. of the Total Commitments (or, if the Total Commitments have been reduced to zero, aggregated more than 662/3 per cent. of the Total Commitments immediately prior to the reduction).

Majority Lenders (Facility A)” means a Lender or Lenders whose Commitments (Facility A) aggregate more than 662/3 per cent. of the Total Facility A Commitments (or, if the Total Facility A Commitments have been reduced to zero, aggregated more than 662/3 per cent. of the Total Facility A Commitments immediately prior to the reduction).

Majority Lenders (Facility B)” means a Lender or Lenders whose Commitments (Facility B) aggregate more than 662/3 per cent. of the Total Facility B Commitments (or, if the Total Facility B Commitments have been reduced to zero, aggregated more than 662/3 per cent. of the Total Facility B Commitments immediately prior to the reduction).

Margin” means:

 

  (a)

in relation to Facility A, 2.85 per cent. per annum; or

 

  (b)

in relation to Facility B, 3.35 per cent. per annum.

Market Disruption Rate” means, in respect of the rate of interest of an Interest Period relating to a Loan (Facility B), the percentage rate per annum which is the applicable Reference Rate of that Loan (Facility B).

 

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Material Adverse Effect” means a material adverse effect on:

 

  (a)

the business, operations, property, condition (financial or otherwise) or prospects of the Group taken as a whole;

 

  (b)

the ability of an Obligor or the Keepwell Provider to perform its obligations under the Finance Documents; or

 

  (c)

subject to the Legal Reservations, the validity or enforceability of, or the effectiveness or ranking of any Security granted or purporting to be granted pursuant to any of, the Finance Documents or the rights or remedies of any Finance Party under any of the Finance Documents.

Material IP Disposal” means a Disposal (other than licensing) of an intellectual property the consideration in relation to which is equal to or more than ten (10) per cent. of the value of the Group’s reported intangible assets (for the avoidance of doubt, excluding goodwill) as at the end of the most recently reported on Financial Year of the Group, as reported in the annual financial statements relating to that Financial Year delivered pursuant to paragraph (a) of Clause 21.1 (Financial statements) (or the Original Financial Statements, if such Disposal is made before the first set of such annual financial statements is delivered).

Material Licences” means any licences necessary for the Group to conduct their business in such markets in which they operate.

Month” means a period starting on one day in a calendar month and ending on the numerically corresponding day in the next calendar month, except that:

 

  (a)

(subject to paragraph (c) below) if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day in that calendar month in which that period is to end if there is one, or if there is not, on the immediately preceding Business Day;

 

  (b)

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

 

  (c)

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

The above rules will only apply to the last Month of any period.

Mr. Li” means Mr. Li Shufu, a PRC citizen with identification number 332603196306255311.

NDRC” means the National Development and Reform Commission of the PRC (中华人民共和 国国家发展和改革委员会) or its competent local counterpart or any other authority succeeding to its functions.

NDRC Order No. 56” means the Administrative Measures for the Approval and Registration of Mid-to-Long Term Foreign Debt of Enterprises (《企业中长期外债审核登记管理办法》国家发展和改革委员会令第  56 号) promulgated by the NDRC on 5 January 2023 and effective from 10 February 2023 and its implementation rules and interpretations.

 

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NDRC Registration Certificate” means Enterprise Foreign Debt Filing/Registration Certificate (企业借用外债审核登记证明) issued by NDRC evidencing the completion of the NDRC foreign debt quota approval and registration process relating to the Facilities pursuant to the NDRC Order No. 56 showing an aggregate principal amount of no less than the Total Commitments.

New Lender” has the meaning given to that term in Clause 25 (Changes to the Lenders).

Non-Material IP Disposal” means a Disposal (other than licensing) of intellectual property that is not a Material IP Disposal.

Notifiable Debt Purchase Transaction” has the meaning given to that term in paragraph (b) of Clause 26.2 (Disenfranchisement of Sponsor Affiliates).

Obligor” means:

 

  (a)

the Borrower; or

 

  (b)

the Guarantor,

and “Obligors” means all of them.

Obligors’ Agent” means the Borrower, appointed to act on behalf of each Obligor (other than the Borrower) in relation to the Finance Documents pursuant to Clause 2.3 (Obligors’ Agent).

OFAC” has the meaning given to the term under the definition of “Sanctions Authority”.

Original Financial Statements” means the audited consolidated financial statements of the Group for the financial year ended 31 December 2022.

Original Jurisdiction” means, in relation to an Obligor, the jurisdiction under whose laws that Obligor is incorporated or organised as at the Signing Date.

Original Lender (Facility A)” means a Lender listed in Schedule 1 (The Original Lenders) as having a Commitment (Facility A).

Original Lender (Facility B)” means a Lender listed in Schedule 1 (The Original Lenders) as having a Commitment (Facility B).

Participating Member State” means any member state of the European Union that adopts or has adopted, and in each case continues to adopt, the euro as its lawful currency in accordance with legislation of the European Union relating to Economic and Monetary Union.

Party” means a party to this Agreement.

Permitted Acquisition” means:

 

  (a)

an acquisition by a Group Member of an asset sold, leased, transferred or otherwise disposed of by another Group Member in circumstances constituting a Permitted Disposal;

 

  (b)

an acquisition arising as a result of or in relation to a Permitted Share Transaction or Permitted Share Issue;

 

  (c)

the incorporation of a limited liability company (or acquisition of a newly incorporated or shelf company or special purpose vehicle with no material assets or liabilities (for the avoidance of doubt, with no Financial Indebtedness)) which on incorporation or acquisition (as applicable) becomes a Group Member;

 

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  (d)

the acquisition or establishment of, or involvement in, any share or interest in any Permitted Joint Venture (whether in cash or in kind) that gives the purchaser Control;

 

  (e)

any acquisition of cash or Cash Equivalent Investments for treasury management purposes in the ordinary course of business and not for speculative purposes;

 

  (f)

any acquisition of ownership interests in a Group Member which are not, in each case, already owned by a Group Member provided that:

 

  (i)

any Financial Indebtedness incurred to finance investment in such ownership interests is Permitted Financial Indebtedness;

 

  (ii)

(in case the acquisition is for the purposes of buying back any shares held by current or former managers, directors, employees or officers in an aggregate amount not exceeding US$5,000,000 (or its equivalent) in any Financial Year; or

 

  (iii)

(in any other cases, provided that the shares or equity interests to be acquired are not held by any person in which Mr. Li holds directly or indirectly holds at least 51 per cent. of the shares or equity interests or Mr. Li) in an aggregate amount (when aggregated with (I) the Total Purchase Price in respect of Permitted Business Acquisitions in that Financial Year and (II) the amount of any investment in any Permitted Joint Venture pursuant to paragraph (a) of that definition) not exceeding US$50,000,000 (or its equivalent) in any Financial Year; or

 

  (g)

a Permitted Business Acquisition.

Permitted Business Acquisition” means an acquisition, for cash consideration, of (A) a sufficient percentage of the issued share capital of a limited liability company as is required in order to have Control or (B) (if the acquisition is made by a limited liability company whose sole purpose is to make the acquisition) a business or undertaking carried on as a going concern, but only if:

 

  (a)

no Event of Default is continuing or would occur as a result of the acquisition, both tested on the date that the Group legally commits to the acquisition (the “Commitment Date”);

 

  (b)

the acquired company, business or undertaking is incorporated or established, and carries on a business substantially the same as (or complementary to) that carried on by the Group;

 

  (c)

the consideration (including associated costs and expenses) for the acquisition and any Financial Indebtedness or other assumed actual or contingent liability, in each case remaining in the acquired company (or any such business) at the date of acquisition (when aggregated with the consideration (including associated costs and expenses) for any other Permitted Business Acquisition and any Financial Indebtedness or other assumed actual or contingent liability, in each case remaining in any such acquired companies or businesses at the time of acquisition (the “Total Purchase Price”) together with (I) the amount of any investment in any Permitted Joint Venture pursuant to paragraph (a) of that definition and (II) the amount of any Permitted Acquisition pursuant to paragraph (f)(iii) of that definition) does not in any Financial Year of the Borrower exceed in aggregate USD50,000,000 or its equivalent in other currencies;

 

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  (d)

the earnings before tax, depreciation and amortisation of the entity or business so acquired for the 12-month period immediately prior to the proposed acquisition is:

 

  (i)

positive; or

 

  (ii)

negative, where the Total Purchase Price of all such acquisitions under this paragraph (B) does not in any Financial Year of the Borrower exceed in aggregate USD25,000,000 or its equivalent in other currencies;

 

  (e)

the acquired entity or business has (A) no material contingent liabilities other than as permitted under the Finance Documents and (B) no defined benefit pension scheme other than those which are or would be fully funded at the time of the completion of the acquisition;

 

  (f)

the Borrower would have remained in compliance with its obligations under Clause 22.2 (Financial condition) if each of the covenant tests were recalculated for the Test Date falling immediately prior to the Commitment Date and, for the purposes of such recalculation, consolidating the financial statements of the target entity (consolidated if it has Subsidiaries) or business with the financial statements of the Group for such period on a pro forma basis and as if the consideration for the proposed acquisition had been paid at the start of the period to which that Test Date relates; and

 

  (g)

final form legal, tax and accounting due diligence reports and other reports which would be customary for the type and scale of entity or business being acquired (including, if applicable, but not limited to, commercial, operational, environmental and pensions) have been delivered to the Agent.

Any acquisition will only be permitted under this definition if the Borrower has delivered to the Agent not later than 10 Business Days before the Commitment Date a certificate signed by a director of it (in form and substance satisfactory to the Agent (acting on the instructions of the Majority Lenders)) confirming or demonstrating (with calculations giving reasonable detail) that each of the conditions set out in this definition have been met and to which is attached a copy of the latest audited accounts (or if not available, management accounts) of the target company or business.

Permitted Disposal” means any Disposal:

 

  (a)

where the Loans are repaid or prepaid in full substantially simultaneously with that disposal;

 

  (b)

of cash for purposes not otherwise prohibited by this Agreement;

 

  (c)

pursuant to the terms of any Permitted Vehicle Leaseback and Financing Transaction to the extent such Permitted Vehicle Leaseback and Financing Transaction constitutes Permitted Financial Indebtedness;

 

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  (d)

(other than of any Charged Property) made in the ordinary course of day-to-day trading or operation of the disposing entity (including, without limitation, the licensing of intellectual property (which for the avoidance of doubt is not a Material IP Disposal or a Non-Material IP Disposal), the sale of inventory or the Disposal of receivables of any Group Member on a non-recourse basis (subject to customary exceptions in the ordinary course of trading) or on a basis which achieves accounting de-recognition under the applicable Accounting Principles;

 

  (e)

of any assets by a member of the Group to another member of the Group;

 

  (f)

of shares or equity interests in any Subsidiaries or Joint Ventures with a view to facilitating a listing on a public exchange of that Subsidiary or as part of such listing, to the extent the proceeds received by the disposing entity should be applied to prepay the Facilities immediately upon receipt of such proceeds;

 

  (g)

that consists of the making by the Borrower of a Permitted Distribution, a Permitted Share Issue or as a result of the conversion of shares or equity interests into another class of shares or equity interests;

 

  (h)

that consists of a distribution (within the meaning of relevant laws and regulations) by a Group Member (other than the Borrower) in favour of the holder(s) of shares or equity interests in such Group Member, provided that:

 

  (i)

such distribution is made pro rata (or more favourable to the holder(s) of shares or equity interests who is or are Group Member(s) according to the applicable shareholding of percentage in such first-mentioned Group Member; and

 

  (ii)

no Event of Default has occurred or would arise as a result thereof; and

 

  (i)

of an intra-Group loan as a result of the conversion of such intra-Group loan into equity;

 

  (j)

of assets in exchange for other assets comparable or superior as to type, value and quality which are also used or will be used in the operation of the business of the Group (other than an exchange of a non-cash asset for cash);

 

  (k)

of obsolete or redundant assets or waste;

 

  (l)

of non-Core Business related assets, businesses or product lines;

 

  (m)

of assets on arms’ length terms and in the ordinary course of business to a person who is providing services related to such assets, the provision of which have been (or are to be) outsourced by the Group to such person (or its affiliates or related entities), provided that the proceeds of such Disposal are either applied to set off the service fee payable to such service provider or applied in accordance with the parameters set out in Clause 8.2 (Disposal Proceeds);

 

  (n)

of Group Cash Equivalent Investments or cash, in each case in a manner not prohibited by the Finance Documents;

 

  (o)

made by any Group Member (otherwise than as permitted under any other paragraph of this definition “Permitted Disposal”) provided that the higher of book value and cash proceeds received by such Group Member pursuant to such Disposal (when aggregated with the higher of book value and cash proceeds received from all Group Members pursuant to any other such Disposals permitted under this paragraph (o)) in any Financial Year of the Borrower is no more than 10% of the Consolidated Group Assets (when expressed in dollar terms) of the Group in respect of that Financial Year on a consolidated basis;

 

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  (p)

arising as a result of or in relation to a Permitted Loan, Permitted Joint Venture, Permitted Acquisition, Permitted Security, or as permitted pursuant to Clause 23.10 (Merger);

 

  (q)

of assets which are seized, expropriated or acquired by compulsory purchase, in each case by or by the order of (as applicable) any central or local governmental agency or authority or other regulatory body, provided that such disposal is not attributable to any default or breach by the relevant Group Member and does not have a Material Adverse Effect;

 

  (r)

of any asset made in order to comply with an order of any agency of state, authority or other regulatory body or any applicable law or regulation, provided that such disposal is not attributable to any default or breach by the relevant Group Member and does not have a Material Adverse Effect;

 

  (s)

pursuant to the grant or termination of leasehold interests in, or licences, sub-licences or sub-letting of, real property in the ordinary course of business;

 

  (t)

consisting of set-off or netting arrangements under hedging transactions in the ordinary course of business of the Group and not for speculative purposes;

 

  (u)

that is a Material IP Disposal, provided that the proceeds of such Disposal are applied to prepay the Facilities on the last day of the Interest Period during which the date of receipt of such proceeds falls (however, if an Event of Default has occurred and is continuing at the date of such receipt or thereafter, such proceeds shall be applied to prepay the Facilities immediately in lieu of the last day of the relevant Interest Period);

 

  (v)

that is a Non-Material IP Disposal;

 

  (w)

made with the prior written consent of the Agent (acting on the instructions of the Majority Lenders);

 

  (x)

the Permitted Sale and Leaseback; or

 

  (y)

the Disposal of assets the aggregate value of all items disposed of pursuant to this paragraph (y) do not exceed USD10,000,000 for the purposes of acquisition and development of premises intended as the headquarters of any Group Member in Gothenburg, Sweden.

Permitted Distribution” means:

 

  (a)

a payment by the Borrower to a director officer, employee, member of management or manager of any Group Member provided such payment is required to be paid by a member of the Group under the terms of the relevant director’s or officer’s service contract (provided that their service contracts relate principally to the business of the Group and in the ordinary course of business);

 

  (b)

a distribution constituting a Permitted Share Transaction;

 

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  (c)

a distribution by the Borrower in the form of payment of any interest or premium in respect of any equity linked indebtedness (whether in the form of debt securities, notes, loans or similar instruments which are convertible into equity and/or shares that are redeemable and/or preference shares, or otherwise) raised by it from a person which is not a Sponsor Affiliate provided that no Event of Default is continuing or would occur immediately after making such a distribution and that such distribution would not result Clause 22.2 (Financial condition) being breached.

Permitted Financial Indebtedness” means Financial Indebtedness:

 

  (a)

arising under the Finance Documents or pursuant to the requirements of the Finance Documents (including, for the avoidance of doubt, any actions or measures required or contemplated under the Keepwell Deed);

 

  (b)

that constitutes Permitted Vehicle Leaseback and Financing Transaction;

 

  (c)

of a Group Member that is incurred in favour of another Group Member;

 

  (d)

arising under a foreign exchange transaction for spot or forward delivery entered into in connection with protection against fluctuation in currency rates where that foreign exchange exposure arises in the ordinary course of trade, but not a foreign exchange transaction for investment or speculative purposes;

 

  (e)

arising under, as a result of or in relation to a Permitted Loan or Permitted Guarantee;

 

  (f)

pursuant to any hedging transaction entered into by a Group Member for the purpose of (i) hedging any risk to which that Group Member is exposed in its ordinary course of trading; or (ii) its interest rate or currency management operations which are carried out in the ordinary course of business and for non-speculative purposes only;

 

  (g)

arising pursuant to cash pooling, overdraft arrangements, cash management and/or netting arrangements entered into by some or all of the Group Members with any bank or financial institution;

 

  (h)

of any person acquired by a Group Member after the Signing Date which is incurred under arrangements in existence at the date of acquisition, but not incurred or increased or having its maturity date extended in contemplation of, or since, that acquisition, and outstanding only for a period of three Months following the date of acquisition;

 

  (i)

any Subordinated Debt or any Unsubordinated Shareholder Loan provided that in each case, the parameters in respect of each such Financial Indebtedness under this Agreement or the Subordination Deed have been complied with and the Borrower shall not make any early repayment or payment (regardless of the reasons) of all or any part of the Unsubordinated Shareholder Loan unless with the prior written consent of the Agent (acting on the instructions of the Majority Lenders);

 

  (j)

not permitted by the preceding paragraphs, but the incurrence or subsistence of which would not result in any of paragraphs (c), (d) or (e) of Clause 22.2 (Financial condition) being breached;

 

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  (k)

any Financial Indebtedness incurred with the prior written consent of the Agent (acting on the instructions of the Majority Lenders) provided that the Group has a positive equity, earnings before interest, tax, depreciation and amortisation and cashflow (the parameters of “equity”, “earnings before interest, tax, depreciation and amortisation” and “cashflow” to be agreed between the Borrower and the Lenders) for the most recent 12-Month period as at date of incurrence of such Financial Indebtedness.

Permitted Guarantee” means:

 

  (a)

any guarantee under the Finance Documents;

 

  (b)

any guarantee in respect of, or constituting, Permitted Financial Indebtedness;

 

  (c)

any indemnity given in the ordinary course of the documentation of an acquisition or disposal transaction which is a Permitted Acquisition or Permitted Disposal and which indemnity is in customary form and subject to customary limitations;

 

  (d)

any performance bond, advance payment bond, documentary letter of credit, standby letter of credit, or similar bond guaranteeing performance by a member of the Group under any contract entered into in the ordinary course of trade;

 

  (e)

the endorsement of negotiable instruments and the giving of indemnities in the ordinary course of day-to-day business;

 

  (f)

a guarantee of a Joint Venture to the extent constituting a Permitted Joint Venture;

 

  (g)

any guarantee or indemnity arising as a result of or in relation to any Permitted Security, Permitted Loan or which, if it were a loan, would be a Permitted Loan;

 

  (h)

any guarantee or indemnity made, granted or given by any Group Member to its customers, suppliers, franchisees, licensees, depositary or relating to any research and/or development project, in each case of or concerning a Group Member, on normal commercial terms and in the ordinary course of business;

 

  (i)

guarantees to landlords and counter indemnities in favour of financial institutions or other persons which have guaranteed rent obligations of a Group Member (to the extent such rent obligations constitutes Permitted Financial Indebtedness, or does not constitute Financial Indebtedness);

 

  (j)

given by any Group Member after the Signing Date which is incurred under arrangements in existence at the date of acquisition and outstanding only for a period of three Months following the date of acquisition (save to the extent that such guarantee constitutes a Permitted Guarantee under another paragraph of this definition) provided that the aggregate principal liability (whether actual or contingent) of Group Members under all such guarantees does not exceed USD20,000,000 (or its equivalent in other currencies) in aggregate at any time;

 

  (k)

customary guarantees and indemnities given in favour of current or former directors, officers, employees, members of management and managers of any Group Member in respect of their function as such;

 

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  (l)

any guarantee given in respect of cash pooling, netting or set-off arrangements entered into by a Group Member in the ordinary course of its banking arrangements for the purpose of netting debit and credit balances of Group Member(s);

 

  (m)

any customary guarantees and indemnities given in mandate or engagement letters to professional advisers and consultants;

 

  (n)

guarantees and indemnities issued in respect of Tax or required under applicable law (or provided by contract with substantially the same effect and to the same extent) or required by any applicable Tax authorities;

 

  (o)

any liability arising as a result of two or more Group Members belonging to a fiscal unity for Tax purposes;

 

  (p)

any guarantee or indemnity provided by a Group Member for the obligations of another Group Member in connection with such other Group Member claiming exemption from audit, the preparation and filing of its accounts or other similar exemptions;

 

  (q)

any guarantee issued to the trustees of, or otherwise in respect of the obligations owing to, a pension scheme operated by a Group Member for the benefit of its employees where such guarantee is unsecured in the ordinary course of business;

 

  (r)

any guarantee not permitted by the preceding paragraphs and not given to or for the benefit of a Group Member or a Restricted Person, where the aggregate principal liability (whether actual or contingent) of Group Members under all such guarantees does not exceed USD50,000,000 (or its equivalent in other currencies) in aggregate at any time; or

 

  (s)

any guarantee or indemnity made, granted or given with the prior written consent of the Agent (acting on the instructions of the Majority Lenders).

Permitted Joint Venture” means any investment in any Joint Venture where:

 

  (a)

each of the following conditions is satisfied:

 

  (i)

the Joint Venture is engaged in a business substantially the same as (or complementary to) that carried on by the Group;

 

  (ii)

in any Financial Year of the Borrower, the aggregate of:

 

  (A)

all amounts subscribed for shares in, lent to, or invested in all such Joint Ventures by any Group Member;

 

  (B)

the contingent liabilities of any Group Member under any guarantee given in respect of the liabilities of any such Joint Venture; and

 

  (C)

the market value of any assets transferred by any Group Member to any such Joint Venture,

in each case, net of profit distributions and returns on investment in cash from Permitted Joint Ventures (in each case received by a Group Member after the Signing Date), when aggregated with (I) the Total Purchase Price in respect of Permitted Business Acquisitions in that Financial Year and (II) the amount of any Permitted Acquisition pursuant to paragraph (f)(iii) of that definition, does not exceed USD50,000,000 (or its equivalent in other currencies);

 

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  (iii)

no Event of Default is continuing on the date of the acquisition of, or investment in, or transfer or loan to, or guarantee, Security or Quasi-Security for the obligations of, or the incurring of any other liability to, the Joint Venture or would occur as a result of the acquisition of or investment in, or transfer or loan to, or guarantee, Security or Quasi-Security for the obligations of, or the incurring of any other liability to, the Joint Venture; and

 

  (iv)

the documents evidencing the terms of the Joint Venture do not commit any Group Member to fund obligations in excess of the amount permitted under paragraph (ii) above; and

 

  (b)

any other Joint Venture existing as at Signing Date, provided that the aggregate investment (in dollar terms) pursuant to this paragraph (b) is no greater than USD50,000,000 in excess of the amount which is contractually committed as at the Signing Date (or its equivalent in other currencies); or

 

  (c)

with the prior written consent of the Agent (acting on the instructions of the Majority Lenders).

Permitted Loan” means:

 

  (a)

any Financial Indebtedness which is referred to in the definition of, or otherwise constitutes, Permitted Financial Indebtedness;

 

  (b)

any intercompany loan or credit granted by a Group Member to another Group Member;

 

  (c)

a loan made to a Joint Venture to the extent constituting a Permitted Joint Venture;

 

  (d)

any deferred consideration in relation to Permitted Disposals where the amount of such deferred consideration does not exceed 30 per cent. of the aggregate consideration receivable by the Group Member(s) in respect of that Permitted Disposal and where such deferred consideration has to be paid within 12 months of the date of such Permitted Disposal;

 

  (e)

a loan made by a Group Member to a director, officer, employee, member of management or manager of any Group Member in the ordinary course of business provided that the aggregate principal liability (whether actual or contingent) of Group Members under all such loans does not exceed USD 5,000,000 (or its equivalent in other currencies) in aggregate at any time;

 

  (f)

any loan (other than a loan made by a Group Member to another Group Member or to any Restricted Person) so long as the aggregate amount of the Financial Indebtedness under any such loans, does not exceed USD20,000,000 (or its equivalent in other currencies) at any time; or

 

  (g)

any loan or credit made, granted or given with the prior written consent of the Agent (acting on the instructions of the Majority Lenders).

 

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Permitted Sale and Leaseback” means the disposal of tooling, machinery and other equipment used in the production or development of cars (each, a “Tooling Asset”) (for the avoidance of doubt, not including cars) by a Group Member to the Keepwell Provider or any of its Affiliates on terms where they may be leased back to a Group Member, provided that the aggregate amount of the book value of such Tooling Assets disposed of under such arrangement does not exceed (aggregated with any other such sale and leaseback arrangements) US$150,000,000 (or its equivalent) in any Financial Year of the Group.

Permitted Security” means:

 

  (a)

any Security or Quasi-Security arising as a result of or in relation to any Permitted Vehicle Leaseback or Finance Transaction or any Permitted Sale and Leaseback;

 

  (b)

any netting or set-off arrangement entered into by any Group Member in the ordinary course of its banking arrangements for the purpose of netting debit and credit balances (and if customary in the relevant jurisdiction, any other Security or Quasi-Security over cash balances granted in favour of an account bank in accordance with its general terms and conditions with respect to the relevant bank account);

 

  (c)

any payment or close out netting or set-off arrangement pursuant to any hedging transaction entered into by a Group Member for the purpose of:

 

  (i)

hedging any risk to which that Group Member is exposed in its ordinary course of trading; or

 

  (ii)

its interest rate or currency management operations which are carried out in the ordinary course of business and for non-speculative purposes only,

excluding, in each case, any Security or Quasi-Security under a credit support arrangement in relation to a hedging transaction;

 

  (d)

any lien arising by operation of law and/or in the ordinary course of business provided that the debt which is secured thereby is paid when due or contested in good faith by appropriate proceedings and properly provisioned;

 

  (e)

any Security or Quasi-Security created pursuant to any Finance Document;

 

  (f)

any Security or Quasi-Security arising under any retention of title, hire purchase or conditional sale arrangement or arrangements having similar effect in respect of goods supplied to a Group Member in the ordinary course of business and on the supplier’s standard or usual terms and not arising as a result of any default or omission by that Group Member;

 

  (g)

any Security or Quasi-Security arising in connection with a Permitted Disposal or that constitutes a Permitted Disposal;

 

  (h)

any Security or Quasi-Security over cash paid into an escrow account or in respect of cash cover, in each case in connection with a Permitted Acquisition;

 

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  (i)

any Security or Quasi-Security securing indebtedness the outstanding principal amount of which (when aggregated with the outstanding principal amount of any indebtedness has the benefit of Security given by any Group Member other than any permitted under paragraphs (b) to (h) of this definition) would not result in:

 

  (i)

where such Security or Quasi-Security is over cars of a Group Member, paragraph (c) or paragraph (d) of Clause 22.2 (Financial condition) being breached; or

 

  (ii)

where such Security or Quasi-Security is not over cars of a Group Member, paragraph (d) of Clause 22.2 (Financial condition) being breached.

 

  (j)

any Security or Quasi-Security created with the prior written consent of the Agent (acting on the instructions of the Majority Lenders).

Permitted Share Issue” means an issue of shares by any Group Member, to the extent such issue will not lead to a Change of Control and:

 

  (a)

(in case such Group Member is not a wholly-owned Subsidiary of the Borrower) proportionate to (or more favourable from the Borrower’s perspective) the Borrower’s direct or indirect existing holding of shares in such Group Member, provided further that it would not result in such Group Member ceasing to be a Group Member; and

 

  (b)

(in case such Group Member is a wholly-owned Subsidiary of the Borrower) would not result in such Group Member ceasing to be wholly-owned by the Borrower.

Permitted Share Transaction” means any acquisition or redemption of 50,000 redeemable preference shares in the Borrower, provided that the aggregate consideration payable in respect of such shares is no greater than GBP 70,000.

Permitted Vehicle Leaseback and Financing Transaction” means any bailment, sale and leaseback or sale and buyback transaction where vehicles are purchased by a lease company, buyback company or bank and then leased back, bought back or otherwise returned to a Group Member, in each case the subsistence or incurrence of which would to result in any of the financial covenants set out in paragraph (c), (d) or (e) of Clause 22.2 (Financial condition) being breached.

PPAB Group” means the Guarantor and its Subsidiaries from time to time (each being a “PPAB Group Member”).

PPAB Group Member” has the meaning given to the term under the definition of “PPAB Group”.

PRC” means the People’s Republic of China, but, for the purpose of Finance Documents, excluding Hong Kong, the Macau Special Administrative Region and Taiwan.

PSD” means PSD Investment Limited, a BVI business company with limited liability incorporated under the laws of BVI (Company number 2033695) with its registered address at Craigmuir Chambers, P.O. Box 71, Road Town, Tortola, VG1110, British Virgin Islands.

Qualifying Lender” has the meaning given to it in Clause 14 (Tax gross-up and indemnities).

Quarter Date” means each of 31 March, 30 June, 30 September and 31 December.

Quarterly Financial Statements” means the financial statements or management accounts in respect of a person delivered pursuant to paragraph (b) of Clause 21.1 (Financial statements).

Quasi-Security” has the meaning given to the term in Clause 23.3 (Negative pledge).

 

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Quotation Day” means, in relation to any period for which an interest rate is to be determined:

 

  (a)

(if the currency is euro) two TARGET Days before the first day of that period; or

 

  (b)

(if the currency is USD):

 

  (i)

subject to paragraph (ii) below, two US Government Securities Business Days before the first day of that period; or

 

  (ii)

if the Reference Rate is, or is based on, the Central Bank Rate, two US Government Securities Business Days before the first day of that period,

in each case, unless market practice differs in the Relevant Market for that currency, in which case the Quotation Day for that currency will be determined by the Agent in accordance with market practice in the Relevant Market (and if quotations for that currency and period would normally be given on more than one day, the Quotation Day will be the last of those days).

Receiver” means a receiver or receiver and manager or administrative receiver of the whole or any part of the Charged Property.

Reference Rate” means, in relation to any Loan (Facility B):

 

  (a)

the applicable CME Term SOFR as of the Specified Time and for a period equal in length to the Interest Period of that Loan (Facility B); or

 

  (b)

as otherwise determined pursuant to Clause 12.2 (Unavailability of CME Term SOFR),

and if, in either case, that rate is less than zero, the Reference Rate shall be deemed to be zero.

Related Fund” in relation to a fund (the “first fund”), means a fund which is managed or advised by the same investment manager or investment adviser as the first fund or, if it is managed by a different investment manager or investment adviser, a fund whose investment manager or investment adviser is an Affiliate of the investment manager or investment adviser of the first fund.

Reinvestment Period has the meaning given to the term under Clause 8.2 (Disposal Proceeds).

Relevant Jurisdiction” means, in relation to an Obligor:

 

  (a)

Its Original Jurisdiction;

 

  (b)

any jurisdiction where any asset subject to or intended to be subject to the Transaction Security to be created by it is situated;

 

  (c)

any jurisdiction where it conducts its business; and

 

  (d)

the jurisdiction whose laws govern the perfection of any of the Security Documents entered into by it.

Relevant Market” means:

 

  (a)

in relation to euro, the European interbank market; and

 

  (b)

in relation to USD, the market for overnight cash borrowing collateralised by US Government securities.

 

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Repeating Representations” means each of the representations set out in Clauses 20.1 (Status), 20.2 (Binding obligations), 20.3 (Non-conflict with other obligations), 20.4 (Power and authority), 20.6 (Governing law and enforcement), 20.10 (No default), 20.12 (Financial statements), 20.19 (Sanctions), and Clause 20.21 (Legal and beneficial ownership).

Reporting Day” means:

 

  (a)

subject to paragraph (b) below, the Quotation Day for the relevant Interest Period; or

 

  (b)

if the Reference Rate is, or is based on, ICE Term SOFR or the Central Bank Rate, the date falling one Business Day after the Quotation Day for the relevant Interest Period.

Representative” means any delegate, agent, manager, administrator, nominee, attorney, trustee or custodian.

Restricted Person” means:

 

  (a)

any direct or indirect shareholder of the Borrower;

 

  (b)

any person otherwise (except for those referred to under paragraph (a)) with an interest (direct or indirect) in the shares in the Borrower;

 

  (c)

any joint venture, consortium, partnership or similar arrangement of which any person described in paragraphs (a) to (b) above is a member; and

 

  (d)

any Affiliate of any person described in paragraphs (a) to (b) above.

Sanctioned Country” means, at any time, a country, region or territory which is the subject or target of any country-wide, region-wide or territory-wide Sanctions, being as at the date of this Agreement, Cuba, North Korea, Syria, Donetsk People’s Republic, Luhansk People’s Republic, the Crimea Region and Iran.

Sanctioned Person means, at any time, (i) any person listed in, or directly or indirectly owned or controlled by a person listed in, any Sanctions List; (ii) any person operating, incorporated under the laws of, organised or reside or owned or controlled by a person operating, incorporated under the laws of, organised or reside in a Sanctioned Country; (iii) the government of a Sanctioned Country or a member of the government of a Sanctioned Country; (iv) the Consolidated Sanctions List maintained by OFAC; (v) (in the case of the United States Department of State or the United States Department of Commerce) the Denied Persons List, the List of Statutorily Debarred Parties, the Entity List or the Terrorist Exclusion List; (vi) (in the case of His Majesty’s Treasury) List of Persons Subject to Restrictive Measures in View of Russia’s Actions Destabilising the Situation in Ukraine; (vii) (in the case of the European Union) the Consolidated List of Persons, Groups and Entities Subject to EU Financial Sanctions or (viii) any person that is otherwise a target of Sanctions (“target of Sanctions” signifying a person with whom a US person or other national of a Sanctions Authority would be prohibited or restricted by law from engaging in trade, business or other activities).

Sanctions” means economic, financial or trade sanctions laws, regulations or embargoes or restrictive measures imposed, administered, adopted, enacted or enforced from time to time by a Sanctions Authority.

 

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Sanctions Authority” means (i) the United Nations Security Council, the United States, the United Kingdom, the European Union, any member state of the European Union, PRC, Hong Kong, Japan, any jurisdiction in which a Group Member is incorporated or in, from or to which it conducts its business or any jurisdiction in which any Finance Party performs any of its obligations under the Finance Documents; or (ii) any of the respective governmental institutions and agencies of any of the forgoing (including without limitation the Office of Foreign Assets Control of the US Department of the Treasury (“OFAC”), the US Department of State, the US Department of Commerce, the US Department of Treasury, His Majesty’s Treasury, the Hong Kong Monetary Authority, Japan Ministry of Finance and PRC Ministry of Commerce and any other authorities.

Sanctions List” means the “Specially Designated Nationals and Blocked Persons” list maintained by OFAC, the Consolidated List of Financial Sanctions Targets and the Investment Ban List maintained by His Majesty’s Treasury, or any similar list maintained by, or public announcement of Sanctions designation made by, any of the Sanctions Authorities.

Screen Rate” means the euro interbank offered rate administered by the European Money Markets Institute (or any other person which takes over the administration of that rate) for the relevant period published (before any correction, recalculation or republication by the administrator) by the European Money Markets Institute (or any other person which takes over the publication of that rate). If such page or service ceases to be available, the Agent may specify another page or service displaying the relevant rate after consultation with the Company.

Secured Liabilities” means all present and future liabilities and obligations at any time due, owing or incurred by an Obligor or the Keepwell Provider to any Secured Party under the Finance Documents, both actual and contingent and whether incurred solely or jointly as principal or surety or in any other capacity together with any of the following matters relating to or arising in respect of those liabilities and obligations:

 

  (a)

any refinancing, novation, deferral or extension;

 

  (b)

any claim for breach of representation, warranty or undertaking or on an event of default or under any indemnity given under or in connection with any document or agreement evidencing or constituting any other liability or obligation falling within this definition;

 

  (c)

any claim for damages or restitution; and

 

  (d)

any claim as a result of any recovery by any Obligor or the Keepwell Provider of a payment, prepayment, repayment, redemption, defeasance or discharge of those liabilities or obligations on the grounds of preference or otherwise,

and any amounts which would be included in any of the above but for any discharge, non-provability, unenforceability or non-allowance of those amounts in any insolvency or other proceedings.

Secured Party” means a Finance Party, a Receiver or any Delegate.

Security” means a mortgage, charge, pledge, lien or other security interest securing any obligation of any person or any other agreement or arrangement having a similar effect.

Security Document” means:

 

  (a)

the English law charge over each of the Interest Reserve Accounts entered into by the Company in favour of the Security Agent (the “Security Document (Closing)”); or

 

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  (b)

any other document as may be designated as a Security Document by the Security Agent and the Company.

Security Document (Closing)” has the meaning given to the term under paragraph (a) of the definition of “Security Document”.

Selection Notice” means a notice substantially in the form set out in Part II of Schedule 3 (Requests) given in accordance with Clause 11 (Interest Periods).

Signing Date” means the date of this Agreement.

Snita” means Snita Holding B.V., a company incorporated in the Netherlands.

SOFR” means the secured overnight financing rate (SOFR) administered by the Federal Reserve Bank of New York (or any other person which takes over the administration of that rate) published (before any correction, recalculation or republication by the administrator) by the Federal Reserve Bank of New York (or any other person which takes over the publication of that rate).

Specified Time” means a day or time determined in accordance with Schedule 7 (Timetables).

Sponsor Affiliate” means Mr. Li, the Keepwell Provider, PSD, VCC or Geely Automobile (each as a “Sponsor”), each of any Sponsor’s Affiliates, any trust of which any Sponsor or any of its Affiliates is a trustee, any partnership of which any Sponsor or any of its Affiliates is a partner and any trust, fund or other entity which is managed by, or is under the control of, any Sponsor or any of its Affiliates provided that any such trust, fund or other entity which has been established for at least 12 months solely for the purpose of making, purchasing or investing in loans or debt securities and which is managed or controlled independently from all other trusts, funds or other entities managed or controlled by any Sponsor or any of its Affiliates which have been established for the primary or main purpose of investing in the share capital of companies shall not constitute a Sponsor Affiliate.

Subordinated Debt” has the meaning given to the term under the Subordination Deed.

Subordinated Creditor” means each subordinated creditor party to the Subordination Deed from time to time.

Subordination Deed” means an English law governed subordination deed dated on or around the Signing Date between, amongst others, the subordinated creditors named therein, the Borrower and the Agent.

Subsidiary” means, in relation to any company or corporation, a company or corporation:

 

  (a)

which is controlled, directly or indirectly, by the first mentioned company or corporation or Mr. Li (solely for the purposes of determining a “Sponsor Affiliate” in respect of Mr. Li);

 

  (b)

more than half the issued equity share capital of which is beneficially owned, directly or indirectly, by the first mentioned company or corporation or Mr. Li; or

 

  (c)

which is a Subsidiary of another Subsidiary of the first mentioned company or corporation or Mr. Li (solely for the purposes of determining a “Sponsor Affiliate” in respect of Mr. Li),

and, for this purpose, a company or corporation shall be treated as being controlled by another company or corporation or Mr. Li (solely for the purposes of determining a “Sponsor Affiliate” in respect of Mr. Li), if that other company or corporation or that natural person is able to direct its affairs and/or to control the composition of its board of directors or equivalent body.

 

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Super Majority Lenders” means a Lender or Lenders whose Commitments aggregate more than 75 per cent. of the Total Commitments (or, if the Total Commitments have been reduced to zero, aggregated more than 75 per cent. of the Total Commitments immediately prior to the reduction).

T2” means the real time gross settlement system operated by the Eurosystem, or any successor system.

TARGET Day” means any day on which T2 is open for the settlement of payments in euro.

Tax” means any tax, levy, impost, duty or other charge or withholding of a similar nature (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same).

Tax Credit” has the meaning given to the term in Clause 14.1 (Definitions).

Termination Date” means the date which is 36 Months after the Initial Utilisation Date, and provided that, if such date is not a Business Day, the Termination Date shall be the immediately preceding Business Day.

Test Date” has the meaning given to the term in Clause 22.1 (Financial definitions).

Total Commitments” means the aggregate of the Total Facility A Commitments and Total Facility B Commitments.

Total Facility A Commitments” means the aggregate of Commitments (Facility A), being EUR340,000,000 at the Signing Date.

Total Facility B Commitments” means the aggregate of Commitments (Facility B), being USD583,489,000 at the Signing Date.

Total Purchase Price” has the meaning given to the term in the definition of “Permitted Business Acquisition”.

Trade Instruments” means any performance bonds, advance payment bonds or documentary letters of credit issued in respect of the obligations of a Group Member arising in the ordinary course of business of a Group Member.

Transaction Security” means the Security created or evidenced or expressed to be created or evidenced under the Security Documents.

Transfer Certificate” means a certificate substantially in the form set out in Schedule 4 (Form of Transfer Certificate) or any other form agreed between the Agent and the Company.

Transfer Date” means, in relation to an assignment or a transfer the later of:

 

  (a)

the proposed Transfer Date specified in the relevant Assignment Agreement or Transfer Certificate; and

 

  (b)

the date on which the Agent executes the relevant Assignment Agreement or Transfer Certificate.

 

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Unpaid Sum” means any sum due and payable but unpaid by an Obligor under the Finance Documents.

Unsubordinated Shareholder Loan” means:

 

  (a)

a shareholder loan pursuant to a facility agreement dated 3 November 2022 between the Borrower (as borrower) and Snita (as lender) originally with a principal amount of USD800,000,000, with the principal amount being subsequently increased to USD1,000,000,000 and an extended maturity date of 30 June 2027 announced to be further extended to 31 December 2028; and

 

  (b)

any other shareholder loan from Snita to the Borrower already subsisting as at the Signing Date, and disclosed to the MLABs and the MLAs on or before the Signing Date,

each as amended from time to time, provided that, in each case, no such amendment shall have the effect of:

 

  (i)

making the maturity date of the relevant Unsubordinated Shareholder Loan fall before the Termination Date;

 

  (ii)

increasing the principal amount of the relevant Unsubordinated Shareholder Loan;

 

  (iii)

enabling the relevant Unsubordinated Shareholder Loan to be supported by any guarantee, Security or Quasi-Security; or

 

  (iv)

otherwise put the relevant Subordinated Creditor in a better position than it would have been, had the amendment not been effected,

unless otherwise approved by the Agent (acting on the instructions of the Super Majority Lenders).

U.S.” means the United States of America.

US Government Securities Business Day” means any day other than:

 

  (a)

a Saturday or a Sunday; and

 

  (b)

a day on which the Securities Industry and Financial Markets Association (or any successor organisation) recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in US Government securities.

U.S. Tax Obligor” means:

 

  (a)

the Borrower if it is resident for tax purposes in the U.S.; or

 

  (b)

an Obligor some or all of whose payments under the Finance Documents are from sources within the U.S. for U.S. federal income tax purposes.

Utilisation” means a utilisation of any Facility.

Utilisation Date” means the date of a Utilisation, being the date on which the relevant Loan is to be made.

Utilisation Request” means a notice substantially in the form set out in Part I of Schedule 3 (Requests).

 

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VAT” means:

 

  (a)

any value added tax imposed by the Value Added Tax Act 1994;

 

  (b)

any tax imposed in compliance with the Council Directive of 28 November 2006 on the common system of value added tax (EC Directive 2006/112); and

 

  (c)

any other tax of a similar nature, whether imposed in the United Kingdom or in a member state of the European Union in substitution for, or levied in addition to, such tax referred to in paragraphs (a) or (b) above or imposed elsewhere.

VCC” means Volvo Car Corporation, a company with limited liability incorporated under the laws of Sweden, with its company registration no. of 556074-3089 and its registered address at Avd. 50090 HB3S 405 31 Göteborg.

 

1.2

Construction

 

  (a)

Unless a contrary indication appears, any reference in this Agreement to:

 

  (i)

the “Agent”, any “Finance Party”, any “Global Coordinator”, any “Joint Green Loan Lead Coordinator”, the “Green Loan Coordinator”, any “MLAB”, any “MLA”, any “Lender”, any “Obligor”, any “Party”, any “Secured Party” or the “Security Agent” shall be construed so as to include its successors in title, permitted assigns and permitted transferees to, or of, its rights and/or obligations under the Finance Documents;

 

  (ii)

a document in “agreed form” is a document which is previously agreed in writing by or on behalf of the Company and the Agent or, if not so agreed, is in the form specified by the Agent;

 

  (iii)

assets” includes present and future properties, revenues and rights of every description;

 

  (iv)

a Lender’s “cost of funds”, or “cost to it of funding” (or similar expressions) in relation to its participation in a Loan is a reference to the average cost (determined either on an actual or a notional basis) which that Lender would incur if it were to fund, from whatever source(s) it may reasonably select, an amount equal to the amount of that participation in that Loan for a period equal in length to the Interest Period of that Loan;

 

  (v)

a “Finance Document” or any other agreement or instrument is a reference to that Finance Document or other agreement or instrument as amended, novated, supplemented, extended, restated (however fundamentally and whether or not more onerously) or replaced and includes any change in the purpose of, any extension of or any increase in any facility or the addition of any new facility under that Finance Document or other agreement or instrument;

 

  (vi)

a “group of Lenders” includes all the Lenders;

 

  (vii)

guarantee” means (other than in Clause 19 (Guarantee and indemnity)) any guarantee, letter of credit, bond, indemnity or similar assurance against loss, or any obligation, direct or indirect, actual or contingent, to purchase or assume any indebtedness of any person or to make an investment in or loan to any person or to purchase assets of any person where, in each case, such obligation is assumed in order to maintain or assist the ability of such person to meet its indebtedness;

 

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  (viii)

indebtedness” includes any obligation (whether incurred as principal or as surety) for the payment or repayment of money, whether present or future, actual or contingent;

 

  (ix)

a “person” includes any individual, firm, company, corporation, government, state or agency of a state or any association, trust, joint venture, consortium, partnership or other entity (whether or not having separate legal personality);

 

  (x)

a “regulation” includes any regulation, rule, official directive, request or guideline (whether or not having the force of law) of any governmental, intergovernmental or supranational body, agency, department or of any regulatory, self-regulatory or other authority or organisation, including, where applicable, those issued, promulgated or published by NDRC and/or any other governmental agency in the PRC;

 

  (xi)

a provision of law is a reference to that provision as amended or re-enacted from time to time; and

 

  (xii)

an “agency” shall be construed so as to include any governmental, intergovernmental or supranational agency, authority, body, central bank, commission, department, ministry, organisation, statutory corporation or tribunal (including any political sub-division, national, regional or municipal government and any administrative, fiscal, judicial, regulatory or self-regulatory body or persons) including, where applicable, those issued, promulgated or published by NDRC and/or any other governmental agency in the PRC;

 

  (xiii)

a time of day is a reference to London time.

 

  (b)

The determination of the extent to which a rate is “for a period equal in length” to an Interest Period shall disregard any inconsistency arising from the last day of that Interest Period being determined pursuant to the terms of this Agreement.

 

  (c)

Section, Clause and Schedule headings are for ease of reference only.

 

  (d)

Unless a contrary indication appears, a term used in any other Finance Document or in any notice given under or in connection with any Finance Document has the same meaning in that Finance Document or notice as in this Agreement.

 

  (e)

A Default (other than an Event of Default) is “continuing” if it has not been remedied or waived and an Event of Default is “continuing” if it has not been remedied to all the Lenders’ satisfaction or waived.

 

  (f)

A reference in this Agreement to a Central Bank Rate shall include any successor rate to, or replacement rate for, that rate.

 

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1.3

Currency symbols and definitions

U.S.$”, “USD” and “United States Dollars” denote the lawful currency of the United States of America. “”, “EUR” and “euro” denote the single currency of the Participating Member States. “GBP” denotes the lawful currency of the United Kingdom.

 

1.4

Third party rights

 

(a)

Unless expressly provided to the contrary in a Finance Document a person who is not a Party has no right under the Contracts (Rights of Third Parties) Act 1999 (the “Third Parties Act”) to enforce or to enjoy the benefit of any term of this Agreement.

 

(b)

Subject to Clause 38.3 (Other exceptions) but otherwise notwithstanding any term of any Finance Document the consent of any person who is not a Party is not required to rescind or vary this Agreement at any time.

 

(c)

Any Receiver, Delegate or any person described in paragraph (b) of Clause 28.11 (Exclusion of liability) may, subject to this Clause 1.4 and the Third Parties Act, rely on any Clause of this Agreement which expressly confers rights on it.

 

1.5

Swedish terms

 

(a)

Any transfer by novation in accordance with the Finance Documents, shall, as regards obligations owed by a company incorporated under Swedish law, be deemed to take effect as an assignment and assumption or transfer of such rights, benefits and obligations.

 

(b)

In this Agreement, where it relates to a Swedish entity, a reference to:

 

  (i)

a composition or arrangement with any creditor includes (A) any write-down of debt (Sw. skulduppgörelse) following from any procedure of business reorganisation (Sw. företagsrekonstruktion) under the Swedish Act on Business Reorganisation (Sw. Lag om företagsrekonstruktion (2022:964)), or (B) any write-down of debt in bankruptcy (Sw. ackcord i konkurs) under the Swedish Insolvency Act (Sw. Konkurslag (1987:672));

 

  (ii)

a compulsory manager, administrative receiver or administrator includes (A) a business reorganisation administrator (Sw. rekonstruktör) under the Swedish Act on business reorganisation, (B) a bankruptcy administrator (Sw. konkursförvaltare) under the Swedish Insolvency Act, or (C) liquidator (Sw. likvidator) under the Swedish Companies Act (Sw. Aktiebolagslagen (2005:551) (the”Swedish Companies Act”));

 

  (iii)

a merger includes any merger (Sw. fusion) implemented in accordance with Chapter 23 of the Swedish Companies Act; and

 

  (iv)

a winding up, administration or dissolution includes voluntary liquidation (Sw. frivillig likvidation) or mandatory liquidation (Sw. tvångslikvidation) under Chapter 25 of the Swedish Companies Act.

If any party to this Agreement that is incorporated in or established under the laws of Sweden (the ”Obligated Party”) is required to hold an amount on trust on behalf of another party, the Obligated Party shall hold such money as agent for such other party on a separate account.

 

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SECTION 2

THE FACILITIES

 

2.

THE FACILITIES

 

2.1

The Facilities

Subject to the terms of this Agreement:

 

  (a)

the Lenders (Facility A) make available to the Borrower a term loan facility in EUR in an aggregate amount equal to the Total Facility A Commitments.

 

  (b)

the Lenders (Facility B) make available to the Borrower a term loan facility in USD in an aggregate amount equal to the Total Facility B Commitments.

 

2.2

Finance Parties’ rights and obligations

 

(a)

The obligations of each Finance Party under the Finance Documents are several. Failure by a Finance Party to perform its obligations under the Finance Documents does not affect the obligations of any other Party under the Finance Documents. No Finance Party is responsible for the obligations of any other Finance Party under the Finance Documents.

 

(b)

The rights of each Finance Party under or in connection with the Finance Documents are separate and independent rights and any debt arising under the Finance Documents to a Finance Party from an Obligor or the Keepwell Provider is a separate and independent debt in respect of which a Finance Party shall be entitled to enforce its rights in accordance with paragraph (c) below. The rights of each Finance Party include any debt owing to that Finance Party under the Finance Documents and, for the avoidance of doubt, any part of a Loan or any other amount owed by an Obligor or the Keepwell Provider which relates to a Finance Party’s participation in any Facility or its role under a Finance Document (including any such amount payable to the Agent on its behalf) is a debt owing to that Finance Party by that Obligor or the Keepwell Provider.

 

(c)

A Finance Party may, except as specifically provided in the Finance Documents, separately enforce its rights under or in connection with the Finance Documents.

 

2.3

Obligors’ Agent

 

(a)

Each Obligor (other than the Borrower) by its execution of this Agreement irrevocably appoints the Borrower (acting through one or more authorised signatories) to act on its behalf as its agent in relation to the Finance Documents and irrevocably authorises:

 

  (i)

the Borrower on its behalf to supply all information concerning itself contemplated by this Agreement to the Finance Parties and to give all notices and instructions, to make such agreements and to effect the relevant amendments, supplements and variations capable of being given, made or effected by any Obligor notwithstanding that they may affect the Obligor, without further reference to or the consent of that Obligor; and

 

  (ii)

each Finance Party to give any notice, demand or other communication to that Obligor pursuant to the Finance Documents to the Borrower,

 

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and in each case the Obligor shall be bound as though the Obligor itself had given the notices and instructions or executed or made the agreements or effected the amendments, supplements or variations, or received the relevant notice, demand or other communication.

 

(b)

Every act, omission, agreement, undertaking, settlement, waiver, amendment, supplement, variation, notice or other communication given or made by the Obligors’ Agent or given to the Obligors’ Agent under any Finance Document on behalf of another Obligor or in connection with any Finance Document (whether or not known to any other Obligor and whether occurring before or after such other Obligor became an Obligor under any Finance Document) shall be binding for all purposes on that Obligor as if that Obligor had expressly made, given or concurred with it. In the event of any conflict between any notices or other communications of the Obligors’ Agent and any other Obligor, those of the Obligors’ Agent shall prevail.

 

3.

PURPOSE

 

3.1

Purpose

All amounts borrowed by the Borrower under any Facility shall be applied as per Clause 43.2 (Green Loan – Purpose).

 

3.2

Monitoring

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

 

4.

CONDITIONS OF UTILISATION

 

4.1

Initial conditions precedent

 

(a)

The Borrower may not deliver a Utilisation Request unless the Agent has received all of the documents and other evidence listed in Schedule 2 (Conditions Precedent) in form and substance satisfactory to the Agent. The Agent shall notify the Company and the Lenders promptly upon being so satisfied.

 

(b)

Other than to the extent that the Majority Lenders notify the Agent in writing to the contrary before the Agent gives the notification described in paragraph (a) above, the Lenders authorise (but do not require) the Agent to give that notification. The Agent shall not be liable for any damages, costs or losses whatsoever as a result of giving any such notification.

 

4.2

Further conditions precedent

The Lenders will only be obliged to comply with Clause 5.4 (Lenders participation) if on the date of the Utilisation Request and on the proposed Utilisation Date:

 

  (a)

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

 

  (b)

the Repeating Representations and any other representations expressed to repeat on such date in any other Finance Document to be made by each Obligor and the Keepwell Provider are true in all material respects.

 

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4.3

Maximum number of Loans

 

(a)

The Borrower may not deliver a Utilisation Request if as a result of the proposed Utilisation more than three (3) Loans (Facility A) would be outstanding.

 

(b)

The Borrower may not deliver a Utilisation Request if as a result of the proposed Utilisation more than three (3) Loans (Facility B) would be outstanding.

 

(c)

The Borrower may not request that a Loan be divided if, as a result of the proposed division, more than three (3) Loans (Facility A) would be outstanding.

 

(d)

The Borrower may not request that a Loan be divided if, as a result of the proposed division, more than three (3) Loans (Facility B) would be outstanding.

 

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SECTION 3

UTILISATION

 

5.

UTILISATION

 

5.1

Delivery of a Utilisation Request

The Borrower may utilise a Facility by delivery to the Agent of a duly completed Utilisation Request not later than the Specified Time.

 

5.2

Completion of a Utilisation Request

 

(a)

Each Utilisation Request is irrevocable and will not be regarded as having been duly completed unless:

 

  (i)

it identifies the Facility to be utilised;

 

  (ii)

the proposed Utilisation Date is a Business Day within the Availability Period;

 

  (iii)

the currency and amount of the Utilisation comply with Clause 5.3 (Currency and amount);

 

  (iv)

the proposed Interest Period complies with Clause 11 (Interest Periods); and

 

  (v)

it specifies the account and bank to which the proceeds of the Utilisation are to be credited.

 

(b)

Only one Loan may be requested in each Utilisation Request.

 

5.3

Currency and amount

 

(a)

The currency specified in a Utilisation Request must be:

 

  (i)

in the case of Facility A, EUR; or

 

  (ii)

in the case of Facility B, USD.

 

(b)

Subject to paragraphs (c) and (d) below, the amount of the proposed Loan must be:

 

  (i)

in the case of Facility A, a minimum of EUR5,000,000 or, if less, the Available Facility; and

 

  (ii)

in the case of Facility B, a minimum of USD5,000,000 or if less, the Available Facility.

 

(c)

(In case the Available Commitment of a Facility will not be reduced to zero after a proposed Utilisation) such Facility may only be drawn, to the extent the other Facility is also drawn on the same proposed Utilisation Date on a pro rata basis, such that the proportion of Loan (Facility A) that will become outstanding immediately after such Utilisation bears to the then Total Facility A Commitments is the same as the proportion of Loan (Facility B) that will become outstanding immediately after such Utilisation to the then Total Facility B Commitments.

 

(d)

(In case the Available Commitment of a Facility will be reduced to zero after a proposed Utilisation) such Facility may only be drawn to the extent the other Facility is also drawn in full.

 

5.4

Lenders’ participation

 

(a)

If the conditions set out in this Agreement have been met each Lender shall make its participation in each Loan available by the Utilisation Date through its Facility Office.

 

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(b)

The amount of each Lender’s participation in each Loan will be equal to the proportion borne by its Available Commitment under a Facility to the Available Facility (in respect of that Facility) immediately prior to making the Loan.

 

(c)

The Agent shall notify each Lender of the amount of each Loan and the amount of its participation in that Loan, in each case by the Specified Time.

 

5.5

Cancellation of Commitment

The Commitments in relation to a Facility which, at that time, are unutilised shall be immediately cancelled at the end of the Availability Period for such Facility.

 

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SECTION 4

REPAYMENT, PREPAYMENT AND CANCELLATION

 

6.

REPAYMENT

 

6.1

Repayment of Loans

 

(a)

The Borrower shall repay each Loan (together with any accrued but unpaid amount under any Finance Document) in full on the Termination Date.

 

(b)

The Borrower may not reborrow any part of any Facility which is repaid.

 

7.

ILLEGALITY, VOLUNTARY PREPAYMENT AND CANCELLATION

 

7.1

Illegality

If, in any applicable jurisdiction, it becomes unlawful for any Lender to perform any of its obligations as contemplated by this Agreement or to fund or maintain its participation in any Loan or it becomes unlawful for any Affiliate of a Lender for that Lender to do so:

 

  (a)

that Lender shall promptly notify the Agent upon becoming aware of that event;

 

  (b)

upon the Agent notifying the Company, each Available Commitment of that Lender will be immediately cancelled; and

 

  (c)

to the extent that the Lender’s participation has not been transferred pursuant to paragraph (d) of Clause 7.4 (Right of replacement or repayment and cancellation in relation to a single Lender), the Borrower shall repay that Lender’s participation in the Loans on the last day of the Interest Period for each Loan occurring after the Agent has notified the Borrower or, if earlier, the date specified by the Lender in the notice delivered to the Agent (being no earlier than the last day of any applicable grace period permitted by law) and that Lender’s corresponding Commitment(s) shall be immediately cancelled in the amount of the participations repaid.

 

7.2

Voluntary cancellation

The Company may, if it gives the Agent not less than five (5) Business Days (or such shorter period as the Majority Lenders may agree) prior written notice, cancel:

 

  (a)

the whole or any part (being a minimum amount of EUR5,000,000 and in integral multiples of EUR5,000,000) of the Available Facility under Facility A;

 

  (b)

the whole or any part (being a minimum of USD5,000,000 and in integral multiples of USD5,000,000) of the Available Facility under Facility B,

provided that any partial cancellation under this Clause 7.2 in respect of a Facility:

 

  (i)

shall reduce the Commitments of the Lenders under that Facility pro rata; and

 

  (ii)

shall not be made unless the Borrower simultaneously cancels the Commitments of the other Facility pro rata (such that the proportion of the Available Facility to be cancelled under Facility A bears to the then aggregate Total Facility A Commitments is the same as the proportion of the Available Facility to be cancelled under Facility B bears to the then Total Facility B Commitments), and each Lender’s Commitments under the other Facility shall also be reduced rateably.

 

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For the avoidance of doubt, no Facility may be cancelled in full unless the other Facility is also cancelled in full simultaneously.

 

7.3

Voluntary prepayment of Loans

 

(a)

The Borrower may, if it gives the Agent not less than five (5) Business Days’ (or such shorter period as the Majority Lenders may agree) prior written notice, prepay:

 

  (i)

the whole or any part of any Loan (Facility A) (but, if in part, being an amount that reduces that Loan (Facility A) by a minimum amount of EUR5,000,000 and in integral multiples of EUR5,000,000); and

 

  (ii)

the whole or any part of any Loan (Facility B) (but, if in part, being an amount that reduces that Loan (Facility B) by a minimum amount of USD5,000,000 and in integral multiples of USD5,000,000),

provided any partial prepayment of a Facility under this Clause 7.3 shall not be made, unless the Borrower simultaneously prepays the other Facility on a pro rata basis (such that the proportion of the amount to prepaid under Facility A bears to the then outstanding amount of Loans (Facility A) is the same as the proportion of the amount to be prepaid under Facility B bears to the then outstanding amount of Loans (Facility B)). For the avoidance of doubt, no Facility may be prepaid in full unless the other Facility is also prepaid in full simultaneously.

 

(b)

A Loan may only be prepaid after the last day of the Availability Period (or, if earlier, the day on which the Available Facility to which that Loan relates is zero).

 

7.4

Right of replacement or repayment and cancellation in relation to a single Lender

 

(a)

If:

 

  (i)

any sum payable to any Lender by an Obligor is required to be increased under paragraph (c) of Clause 14.2 (Tax gross-up); or

 

  (ii)

any Lender claims indemnification from the Borrower under Clause 14.3 (Tax indemnity) or Clause 15.1 (Increased Costs),

the Borrower may, whilst the circumstance giving rise to the requirement for that increase or indemnification continues, give the Agent notice of cancellation of the Commitment(s) of that Lender and its intention to procure the repayment of that Lender’s participation in the Loans or give the Agent notice of its intention to replace that Lender in accordance with paragraph (d) below.

 

(b)

On receipt of a notice of cancellation referred to in paragraph (a) above, the Available Commitment(s) of that Lender shall be immediately reduced to zero.

 

(c)

On the last day of each Interest Period which ends after the Borrower has given notice of cancellation under paragraph (a) above (or, if earlier, the date specified by the Borrower in that notice), the Borrower shall repay that Lender’s participation in each Loan and that Lender’s corresponding Commitment(s) shall be immediately cancelled in the amount of the participations repaid.

 

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(d)

If:

 

  (i)

any of the circumstances set out in paragraph (a) above apply to a Lender; or

 

  (ii)

an Obligor becomes obliged to pay any amount in accordance with Clause 7.1 (Illegality) to any Lender,

the Borrower may on 10 Business Days’ prior notice to the Agent and that Lender, replace that Lender by requiring that Lender to (and, to the extent permitted by law, that Lender shall) transfer pursuant to Clause 25 (Changes to the Lenders) all (and not part only) of its rights and obligations under this Agreement to an Eligible Institution which confirms its willingness to assume and does assume all the obligations of the transferring Lender in accordance with Clause 25 (Changes to the Lenders) for a purchase price in cash payable at the time of the transfer in an amount equal to the outstanding principal amount of such Lender’s participation in the outstanding Loans and all accrued interest (to the extent that the Agent has not given a notification under Clause 25.9 (Pro rata interest settlement)), Break Costs (as applicable) and other amounts payable in relation thereto under the Finance Documents.

 

(e)

The replacement of a Lender pursuant to paragraph (d) above shall be subject to the following conditions:

 

  (i)

the Borrower shall have no right to replace the Agent;

 

  (ii)

neither the Agent nor any Lender shall have any obligation to find a replacement Lender;

 

  (iii)

in no event shall the Lender replaced under paragraph (d) above be required to pay or surrender any of the fees received by such Lender pursuant to the Finance Documents; and

 

  (iv)

the Lender shall only be obliged to transfer its rights and obligations pursuant to paragraph (d) above once it is satisfied that it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations in relation to that transfer.

 

(f)

A Lender shall perform the checks described in paragraph (e)(iv) above as soon as reasonably practicable following delivery of a notice referred to in paragraph (d) above and shall notify the Agent and the Borrower when it is satisfied that it has complied with those checks.

 

(g)

 

  (i)

If any Lender becomes a Defaulting Lender, the Borrower may, at any time whilst the Lender continues to be a Defaulting Lender, give the Agent 10 Business Days’ notice of cancellation of the Available Commitment of that Lender.

 

  (ii)

On the notice referred to in paragraph (i) above becoming effective, the Available Commitment of the Defaulting Lender shall be immediately reduced to zero.

 

  (iii)

The Agent shall as soon as practicable after receipt of a notice referred to in paragraph (i) above, notify all the Lenders.

 

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8.

MANDATORY PREPAYMENT AND CANCELLATION

 

8.1

Change of control

If a Change of Control occurs:

 

  (a)

the Borrower shall promptly notify the Agent upon becoming aware of that event;

 

  (b)

a Lender shall not be obliged to fund a Utilisation; and

 

  (c)

if the Majority Lenders so require, the Agent shall, by not less than five (5) Business Days’ notice to the Borrower, cancel each Available Commitment and declare all Loans, together with accrued interest, and all other amounts accrued or outstanding under the Finance Documents immediately due and payable, whereupon each such Available Commitment will be immediately cancelled, each Facility shall immediately cease to be available for further utilisation and all such Loans, accrued interest and other amounts shall become immediately due and payable.

 

8.2

Disposal Proceeds

 

(a)

For the purposes of this Clause 8.2 and Clause 8.3 (Application of mandatory prepayments and cancellations):

Disposal Proceeds” means the consideration receivable by any Group Member for any Disposal made by any Group Member pursuant to paragraph (k), (l), (m), (o), (q), (r), (v) and (w) (in the case of paragraph (w), if applicable) of the definition of “Permitted Disposal” except for Excluded Disposal Proceeds and after deducting:

 

  (i)

any reasonable expenses which are incurred by any Group Member with respect to that Disposal to persons who are not Group Members; and

 

  (ii)

any Tax incurred and required to be paid by the seller in connection with that Disposal (as reasonably determined, on the basis of existing rates at the time of the Disposal, and taking account of any available Tax credit, deduction or allowance“.

Excluded Disposal Proceeds” means the Disposal Proceeds , provided that, in each case:

 

  (i)

to the extent those Disposal Proceeds are applied towards:

 

  (A)

replacement for or investments in other assets comparable or superior as to type, value and quality for use in the business of the Group,

 

  (B)

if (in the opinion of the Borrower, acting reasonably) such comparable or superior assets are not required based on the business of the Group at the relevant time, reinvestment in the Core Business of the Group;

in each case, as soon as possible but in any event within 120 days or such longer period as the Majority Lenders may agree after receipt or committed to be so applied within 120 days of receipt and actually applied as soon as possible but in any event within 180 days after being so committed (each such 120-day or 180-day period, the “Reinvestment Period”), those Disposal Proceeds shall constitute Excluded Disposal Proceeds. For the avoidance of doubt, after the expiry of the relevant Reinvestment Period, to the extent there is any amount from such Disposal Proceeds not so applied or designated (the “Remaining Amount”), such Remaining Amount shall count towards “Disposal Proceeds”); or

 

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  (ii)

the amount of Disposal Proceeds arising from any individual Disposal is equal to or less than USD10,000,000 and in aggregate equal to or less than USD50,000,000 in any Financial Year of the Borrower (and for the avoidance of doubt, any amount in excess of (to the extent of such excess) the de minimis thresholds set out in this paragraph (ii) shall count towards “Disposal Proceeds”).

 

(b)

The Borrower shall prepay the Loans, and cancels Available Commitments, in each case, in amounts equal to 50 per cent. of the amount of any Disposal Proceeds on the last day of the Interest Period during which the later of the following falls:

 

  (i)

the date of receipt of such Disposal Proceeds; or

 

  (ii)

the last day of the applicable Reinvestment Period,

and in the order of application contemplated by Clause 8.3 (Application of mandatory prepayments and cancellations).

 

8.3

Application of mandatory prepayments and cancellations

A prepayment of Loans or cancellation of Available Commitments under Clause 8.2 (Disposal Proceeds) shall be applied in the following order:

 

  (a)

firstly, in prepayment of the Loans on a pro rata basis between the outstanding Loans (Facility A) and the outstanding Loans (Facility B), such that the proportion of the amount due to be applied in prepayment of Facility A bears to the then outstanding amount of Loans (Facility A) is the same as the proportion of the amount the Borrower shall apply in prepayment of Loans (Facility B) bears to the then outstanding amount of Loans (Facility B); and

 

  (b)

thereafter, in cancellation of Available Commitments under each Facility on a pro rata basis (and the Available Commitments of each Lender under each Facility will be cancelled rateably).

 

8.4

Excluded proceeds

Where Excluded Disposal Proceeds are intended to be used for a specific purpose within a specified period, the Company shall ensure that those amounts are used for that purpose and, if requested to do so by the Agent, shall promptly deliver a certificate to the Agent at the time of such application and at the end of such period confirming the amount (if any) which has been so applied within the requisite time periods provided for in the relevant definition.

 

9.

RESTRICTIONS

 

9.1

Notices of cancellation or prepayment

Any notice of cancellation or prepayment given by any Party under Clause 7 (Illegality, voluntary prepayment and cancellation) shall be irrevocable and, unless a contrary indication appears in this Agreement, shall specify the date or dates upon which the relevant cancellation or prepayment is to be made and the amount of that cancellation or prepayment.

 

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9.2

Interest and other amounts

Any prepayment under this Agreement shall be made together with accrued interest on the amount prepaid and, subject to any Break Costs (as applicable), without premium or penalty.

 

9.3

Prepayment in accordance with Agreement

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

 

9.4

No reinstatement of Commitments

No amount of the Total Commitments cancelled under this Agreement may be subsequently reinstated.

 

9.5

Agent’s receipt of notices

If the Agent receives a notice under Clause 7 (Illegality, voluntary prepayment and cancellation) it shall promptly forward a copy of that notice to either the Borrower or the affected Lender, as appropriate.

 

9.6

Effect of repayment and prepayment on Commitments

If all or part of any Lender’s participation in a Loan under any Facility is repaid or prepaid, an amount of that Lender’s Commitment in respect of that Facility will be deemed to be cancelled on the date of repayment or prepayment.

 

9.7

Application of prepayments

Any prepayment of a Loan (other than a prepayment pursuant to Clause 7.1 (Illegality) or Clause 7.4 (Right of replacement or repayment and cancellation in relation to a single Lender)) shall be applied pro rata to each Lender’s participation in that Loan.

 

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SECTION 5

COSTS OF UTILISATION

 

10.

INTEREST

 

10.1

Calculation of interest (Facility A)

The rate of interest on each Loan (Facility A) for each Interest Period relating thereto is the percentage rate per annum which is the aggregate of the applicable:

 

  (a)

Margin; and

 

  (b)

EURIBOR.

 

10.2

Calculation of interest (Facility B)

The rate of interest on each Loan (Facility B) for each Interest Period relating thereto is the percentage rate per annum which is the aggregate of the applicable:

 

  (a)

Margin; and

 

  (b)

Reference Rate.

 

10.3

Payment of interest

The Borrower shall pay accrued interest on each Loan on the last day of each Interest Period relating thereto (and, if the Interest Period is longer than six Months, on the dates falling at six monthly intervals after the first day of the Interest Period).

 

10.4

Default interest

 

(a)

If an Obligor fails to pay any amount payable by it under a Finance Document on its due date, interest shall accrue on an Unpaid Sum from its due date up to the date of actual payment (both before and after judgment) at a rate which, subject to paragraph (b) below, is the sum of two (2) per cent. and the rate which would have been payable if that Unpaid Sum had, during the period of non-payment, constituted a Loan in the currency of that Unpaid Sum for successive Interest Periods, each of a duration selected by the Agent (acting reasonably). Any interest accruing under this Clause 10.4 shall be immediately payable by the relevant Obligor on demand by the Agent.

 

(b)

If any Unpaid Sum consists of all or part of a Loan which became due on a day which was not the last day of an Interest Period relating to that Loan:

 

  (i)

the first Interest Period for that Unpaid Sum shall have a duration equal to the unexpired portion of the current Interest Period relating to that Loan; and

 

  (ii)

the rate of interest applying to that Unpaid Sum during that first Interest Period shall be the sum of two (2) per cent. and the rate which would have applied if that Unpaid Sum had not become due.

 

(c)

Default interest (if unpaid) arising on an Unpaid Sum will be compounded with that Unpaid Sum at the end of each Interest Period applicable to that Unpaid Sum but will remain immediately due and payable.

 

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10.5

Notification of rates of interest

 

(a)

The Agent shall promptly notify the relevant Lenders and the Borrower of the determination of a rate of interest under this Agreement.

 

(b)

The Agent shall promptly notify the Borrower of each Funding Rate relating to a Loan (Facility A).

 

11.

INTEREST PERIODS

 

11.1

Selection of Interest Periods

 

(a)

The Borrower may select an Interest Period for a Loan in the Utilisation Request for that Loan or (if the Loan has already been borrowed) in a Selection Notice.

 

(b)

Each Selection Notice for a Loan is irrevocable and must be delivered to the Agent by the Borrower not later than the Specified Time.

 

(c)

If the Borrower fails to deliver a Selection Notice to the Agent in accordance with paragraph (b) above, the relevant Interest Period will be one Month.

 

(d)

Subject to this Clause 11, the Borrower may select an Interest Period of one (1), three (3) or six (6) Months or of any other period agreed between the Company, the Agent and all the Lenders in relation to the relevant Loan.

 

(e)

An Interest Period for a Loan shall not extend beyond the Termination Date.

 

(f)

Each Interest Period for a Loan shall start on its Utilisation Date or (if already made) on the last day of its preceding Interest Period.

 

11.2

Non-Business Days

If an Interest Period would otherwise end on a day which is not a Business Day, that Interest Period will instead end on the next Business Day in that calendar month (if there is one) or the preceding Business Day (if there is not).

 

11.3

Consolidation and division of Loans

 

(a)

If two or more Interest Periods relate to Loans in the same currency and end on the same date, those Loans will, unless the Borrower specifies to the contrary in the Selection Notice for the next Interest Period, be consolidated into, and treated as, a single Loan on the last day of the Interest Period.

 

(b)

Subject to Clause 4.3 (Maximum number of Loans) and Clause 5.3 (Currency and amount), if the Borrower requests in a Selection Notice that a Loan be divided into two or more Loans under the same Facility, that Loan will, on the last day of its Interest Period, be divided into the amounts specified in that Selection Notice, being an aggregate amount equal to the amount of the Loan immediately before its division.

 

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12.

CHANGES TO THE CALCULATION OF INTEREST

 

12.1

Unavailability of Screen Rate relating to a Loan (Facility A)

 

(a)

Interpolated Screen Rate: If no Screen Rate is available for EURIBOR for the Interest Period of a Loan (Facility A), the applicable EURIBOR shall be the Interpolated Screen Rate for a period equal in length to the Interest Period of that Loan (Facility A).

 

(b)

Shortened Interest Period: If no Screen Rate is available for EURIBOR for:

 

  (i)

the currency of a Loan (Facility A); or

 

  (ii)

the Interest Period of a Loan (Facility A) and it is not possible to calculate the Interpolated Screen Rate,

the Interest Period of that Loan (Facility A) shall (if it is longer than the applicable Fallback Interest Period) be shortened to the applicable Fallback Interest Period and the applicable EURIBOR for that shortened Interest Period shall be determined pursuant to the definition of EURIBOR.

 

(c)

Shortened Interest Period and Historic Screen Rate: If the Interest Period of a Loan (Facility A) is, after giving effect to paragraph (b) above, either the applicable Fallback Interest Period or shorter than the applicable Fallback Interest Period and, in either case, no Screen Rate is available for EURIBOR for:

 

  (i)

the currency of that Loan (Facility A); or

 

  (ii)

the Interest Period of that Loan (Facility A) and it is not possible to calculate the Interpolated Screen Rate,

the applicable EURIBOR shall be the Historic Screen Rate for that Loan (Facility A).

 

(d)

Shortened Interest Period and Interpolated Historic Screen Rate: If paragraph (c) above applies but no Historic Screen Rate is available for the Interest Period of a Loan (Facility A), the applicable EURIBOR shall be the Interpolated Historic Screen Rate for a period equal in length to the Interest Period of that Loan (Facility A).

 

(e)

Cost of funds: If paragraph (d) above applies but no Interpolated Historic Screen Rate is available for the relevant currency or Interest Period there shall be no EURIBOR for that Loan (Facility A) and Clause 12.4 (Cost of funds) shall apply to that Loan (Facility A) for that Interest Period.

 

12.2

Unavailability of CME Term SOFR

 

(a)

Interpolated CME Term SOFR: If no CME Term SOFR is available for the Interest Period of a Loan (Facility B), the applicable Reference Rate shall be the Interpolated CME Term SOFR for a period equal in length to the Interest Period of that Loan (Facility B).

 

(b)

Shortened Interest Period: If no CME Term SOFR is available for the Interest Period of a Loan (Facility B) and it is not possible to calculate the Interpolated CME Term SOFR, the Interest Period of that Loan (Facility B) shall (if it is longer than the applicable Fallback Interest Period) be shortened to the applicable Fallback Interest Period and the applicable Reference Rate for that shortened Interest Period shall be determined pursuant to the definition of “Reference Rate”.

 

(c)

Shortened Interest Period and Historic CME Term SOFR: If the Interest Period of a Loan (Facility B) is, after giving effect to paragraph (b) above, either the applicable Fallback Interest Period or shorter than the applicable Fallback Interest Period and, in either case, no CME Term SOFR is available for the Interest Period of that Loan (Facility B) and it is not possible to calculate the Interpolated CME Term SOFR, the applicable Reference Rate shall be the Historic CME Term SOFR for that Loan (Facility B).

 

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(d)

Shortened Interest Period and Interpolated Historic CME Term SOFR: If paragraph (c) above applies but no Historic CME Term SOFR is available for the Interest Period of the Loan (Facility B), the applicable Reference Rate shall be the Interpolated Historic CME Term SOFR for a period equal in length to the Interest Period of that Loan (Facility B).

 

(e)

ICE Term SOFR: If paragraph (d) above applies but it is not possible to calculate the Interpolated Historic CME Term SOFR, the Interest Period of that Loan (Facility B) shall, if it has been shortened pursuant to paragraph (b) above, revert to its previous length and the applicable Reference Rate shall be the applicable ICE Term SOFR as of the Specified Time and for a period equal in length to the Interest Period of that Loan (Facility B).

 

(f)

Interpolated ICE Term SOFR: If paragraph (e) above applies but no ICE Term SOFR is available for the Interest Period of that Loan (Facility B), the applicable Reference Rate shall be the Interpolated ICE Term SOFR for a period equal in length to the Interest Period of that Loan (Facility B).

 

(g)

Fixed Central Bank Rate: If paragraph (f) above applies but it is not possible to calculate the Interpolated ICE Term SOFR, the Interest Period of that Loan (Facility B) shall (if it is longer than the applicable Fallback Interest Period) be shortened to the applicable Fallback Interest Period and the applicable Reference Rate shall be:

 

  (i)

the percentage rate per annum which is the aggregate of:

 

  (A)

the Central Bank Rate for the Quotation Day; and

 

  (B)

the applicable Central Bank Rate Adjustment; or

 

  (ii)

if the Central Bank Rate for the Quotation Day is not available, the percentage rate per annum which is the aggregate of:

 

  (A)

the most recent Central Bank Rate for a day which is no more than three US Government Securities Business Days before the Quotation Day; and

 

  (B)

the applicable Central Bank Rate Adjustment.

 

(h)

If paragraph (g) above applies but there is no applicable Central Bank Rate, Clause 12.4 (Cost of funds) shall apply to that Loan (Facility B) for that Interest Period.

 

12.3

Market disruption

 

(a)

(In respect of a Loan (Facility A)) if before close of business in London on the Quotation Day for the relevant Interest Period, the Agent receives notifications from a Lender or Lenders (whose participations in that Loan (Facility A) exceed 35 per cent. of that Loan (Facility A)) that the cost to it of funding its participation in that Loan (Facility A) from whatever source it may reasonably select would be in excess of EURIBOR then Clause 12.4 (Cost of funds) shall apply to that Loan (Facility A) for the relevant Interest Period;

 

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(b)

(In respect of a Loan (Facility B) if before close of business in London on the Reporting Day for the relevant Interest Period, the Agent receives notifications from a Lender or Lenders (whose participations in that Loan (Facility B) exceed 35 per cent. of that Loan (Facility B)) that its cost of funds relating to its participation in that Loan (Facility B) would be in excess of the Market Disruption Rate, then Clause 12.4 (Cost of funds) shall apply to that Loan (Facility B) for the relevant Interest Period.

 

12.4

Cost of funds

 

(a)

If this Clause 12.4 applies, the rate of interest on each relevant Lender’s share of relevant Loan for the relevant Interest Period shall be the percentage rate per annum which is the sum of:

 

  (i)

the applicable Margin; and

 

  (ii)

the rates notified to the Agent by that Lender as soon as practicable and in any event by close of business on the date falling five (5) Business Days before the date on which interest is due to be paid in respect of that Interest Period), to be that which expresses as a percentage rate per annum the cost to the relevant Lender of funding its participation in that Loan from whatever source it may reasonably select.

 

(b)

If this Clause 12.4 applies and the Agent or the Borrower so requires, the Agent and the Borrower shall enter into negotiations (for a period of not more than thirty days) with a view to agreeing a substitute basis for determining the rate of interest.

 

(c)

Any alternative basis agreed pursuant to paragraph (b) above shall, with the prior consent of all the Lenders and the Borrower, be binding on all Parties.

 

(d)

(In respect of a Loan (Facility A)) if this Clause 12.4 applies pursuant to Clause 12.3 (Market disruption) and:

 

  (i)

a Lender’s Funding Rate is less than EURIBOR; or

 

  (ii)

a Lender does not supply a quotation by the time specified in paragraph (a)(ii) above,

the cost to that Lender of funding its participation in that Loan (Facility A) for that Interest Period shall be deemed, for the purposes of paragraph (a)(ii) above, to be EURIBOR.

 

(e)

(In respect of a Loan (Facility B)) if this Clause 12.4 applies pursuant to Clause 12.3 (Market disruption) and:

 

  (i)

a Lender’s Funding Rate is less than the Market Disruption Rate; or

 

  (ii)

a Lender does not notify a rate to the Agent by the time specified in paragraph (a)(ii) above,

that Lenders cost of funds relating to its participation in that Loan (Facility B) for that Interest Period shall be deemed, for the purposes of paragraph (a) above, to be the Market Disruption Rate.

 

12.5

Notification to Company

If Clause 12.4 (Cost of funds) applies the Agent shall, as soon as is practicable, notify the Borrower.

 

12.6

Break Costs

 

(a)

The Borrower shall, within three Business Days of demand by a Finance Party, pay to that Finance Party its Break Costs (as applicable) attributable to all or any part of a Loan or Unpaid Sum being paid by the Borrower on a day (in the case of any amount in euro) other than, or (in the case of any amount in USD) prior to, the last day of an Interest Period for that Loan or Unpaid Sum.

 

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(b)

Each Lender shall, as soon as reasonably practicable after a demand by the Agent, provide a certificate confirming the amount of its Break Costs for any Interest Period (in the case of any amount in euro) in which they accrue or (in the case of any amount in USD) in respect of which they become, or may become, payable.

 

13.

FEES

 

13.1

Commitment fee

 

(a)

The Borrower shall pay to the Agent (for the account of each relevant Lender) a commitment fee in respect of the Available Commitment of each Lender in respect of a Facility computed at the rate of 35 per cent. of the applicable Margin (on that Lender’s Available Commitment under that Facility, in the same currency in which that Facility is denominated).

 

(b)

Any commitment fee accrues on a daily basis, for the period starting from and including the Signing Date to and including the last day of the Availability Period.

 

(c)

The accrued commitment fee is payable on the last day of:

 

  (i)

each successive period of three Months starting from the Signing Date;

 

  (ii)

the Availability Period; and

 

  (iii)

if cancelled in full, on the cancelled amount of the relevant Lender’s Commitment in respect of that Facility, at the time the cancellation is effective.

 

(d)

No commitment fee is payable to the Agent (for the account of a Lender) on any Available Commitment of that Lender for any day on which that Lender is a Defaulting Lender.

 

13.2

Arrangement fee and coordination fee

The Borrower shall pay to the Agent (for the account of each MLAB and each MLA) an arrangement fee and the Agent (for the account of the Global Coordinators) a coordination fee in the amount and at the times agreed in one or more Fee Letters.

 

13.3

Agency fee

The Borrower shall pay to the Agent (for its own account) an agency fee in the amount and at the times agreed in a Fee Letter.

 

13.4

Security agency fee

The Borrower shall pay to the Security Agent (for its own account) a security agency fee in the amount and at the times agreed in a Fee Letter.

 

13.5

Account Bank fee

The Borrower shall pay to the Account Bank (for the account of the Account Bank) an account bank fee in the amount and at the times agreed in a Fee Letter.

 

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SECTION 6

ADDITIONAL PAYMENT OBLIGATIONS

 

14.

TAX GROSS-UP AND INDEMNITIES

 

14.1

Definitions

In this Agreement:

Borrower DTTP Filing” means an H.M. Revenue & Customs’ Form DTTP2 duly completed and filed by the relevant Borrower, which:

 

  (a)

where it relates to a Treaty Lender that is an Original Lender, contains the scheme reference number and jurisdiction of tax residence stated opposite that Lender’s name in Schedule 1 (The Original Lenders), and is filed with H.M. Revenue & Customs within 30 days of the date of this Agreement; or

 

  (b)

where it relates to a Treaty Lender that is not an Original Lender, contains the scheme reference number and jurisdiction of tax residence stated in respect of that Lender in the documentation which it executes on becoming a Party as a Lender, and is filed with H.M. Revenue & Customs within 30 days of the date that Treaty Lender becomes a Party as a Lender.

Cancelled Certificate” means any QPP Certificate in respect of which HM Revenue & Customs has given a notification under regulation 7 of the QPP Regulations so that such QPP Certificate is a cancelled certificate for the purposes of the QPP Regulations.

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

QPP Certificate” means a valid creditor certificate for the purposes of the QPP Regulations, given, in the case of an Original Lender, in the form set out in Schedule 10 (Form of QPP Certificate), or, in the case of a New Lender, in the form set out in the Schedule 2 of Schedule 4 (Form of Transfer Certificate), or Schedule 2 of Schedule 5 (Form of Assignment Agreement), as applicable.

QPP Lender” means a Lender which has delivered a QPP Certificate to the Company, provided that such QPP Certificate is not a Withdrawn Certificate or a Cancelled Certificate.

QPP Regulations” means the Qualifying Private Placement Regulations 2015 (2015 No. 2002).

Qualifying Lender” means:

 

  (a)

a Lender which is beneficially entitled to interest payable to that Lender in respect of an advance under a Finance Document and is:

 

  (i)

a Lender:

 

  (A)

which is a bank (as defined for the purpose of section 879 of the ITA) making an advance under a Finance Document and is within the charge to United Kingdom corporation tax as respects any payments of interest made in respect of that advance or would be within such charge as respects such payments apart from section 18A of the CTA; or

 

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  (B)

in respect of an advance made under a Finance Document by a person that was a bank (as defined for the purpose of section 879 of the ITA) at the time that that advance was made and is within the charge to United Kingdom corporation tax as respects any payments of interest made in respect of that advance; or

 

  (ii)

a Lender which is:

 

  (A)

a company resident in the United Kingdom for United Kingdom tax purposes;

 

  (B)

a partnership each member of which is (i) a company so resident in the United Kingdom; or (ii) a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the CTA) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the CTA;

 

  (C)

a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the CTA) of that company; or

 

  (iii)

a Treaty Lender; or

 

  (iv)

a QPP Lender;

 

  (b)

a Lender which is a building society (as defined for the purpose of section 880 of the ITA) making an advance under a Finance Document; or

 

  (c)

each Original Lender.

Tax Confirmation” means a confirmation by a Lender that the person beneficially entitled to interest payable to that Lender in respect of an advance under a Finance Document is either:

 

  (a)

a company resident in the United Kingdom for United Kingdom tax purposes;

 

  (b)

a partnership each member of which is:

 

  (i)

a company so resident in the United Kingdom; or

 

  (ii)

a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the CTA) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the CTA; or

 

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  (c)

a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the CTA) of that company.

Tax Credit” means a credit against, relief or remission for, or repayment of any Tax.

Tax Deduction” means a deduction or withholding for or on account of Tax from a payment under a Finance Document, other than a FATCA Deduction.

Tax Payment” means either the increase in a payment made by an Obligor to a Finance Party under Clause 14.2 (Tax gross-up) or a payment under Clause 14.3 (Tax indemnity).

Treaty Lender” means a Lender which is not a QPP Lender and:

 

  (a)

is treated as a resident of a Treaty State for the purposes of the Treaty;

 

  (b)

does not carry on a business in the United Kingdom through a permanent establishment with which that Lender’s participation in the Loans is effectively connected; and

 

  (c)

fulfils any conditions which must be fulfilled under the double taxation agreement for residents of that Treaty State to obtain full exemption from United Kingdom taxation on interest payable to that Lender in respect of an advance under a Finance Document, except that for this purpose it shall be assumed that the following are satisfied:

 

  (i)

any condition which relates (expressly or by implication) to there being a special relationship between the Borrower and the Lender or between both of them and another person, or to the amounts or terms of any Loan or the Finance Documents or to any other matter that is outside the exclusive control of that Lender; and

 

  (ii)

any necessary procedural formalities.

Treaty State” means a jurisdiction having a double taxation agreement (a “Treaty”) with the United Kingdom which makes provision for full exemption from tax imposed by the United Kingdom on interest.

UK Non-Bank Lender” means:

 

  (a)

an Original Lender listed in Schedule 1 (The Original Lenders); and

 

  (b)

a Lender which is not an Original Lender,

which gives a Tax Confirmation in the documentation which it executes on becoming a Party as a Lender.

Unless a contrary indication appears, in this Clause 14 a reference to “determines” or “determined” means a determination made in the absolute discretion of the person making the determination.

Withdrawn Certificate” means a withdrawn certificate for the purposes of the QPP Regulations.

 

14.2

Tax gross-up

 

(a)

Each Obligor shall make all payments to be made by it without any Tax Deduction, unless a Tax Deduction is required by law.

 

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(b)

The Company shall promptly upon becoming aware that an Obligor must make a Tax Deduction (or that there is any change in the rate or the basis of a Tax Deduction) notify the Agent accordingly. Similarly, a Lender shall notify the Agent on becoming so aware in respect of a payment payable to that Lender. If the Agent receives such notification from a Lender it shall notify the Company and that Obligor.

 

(c)

If a Tax Deduction is required by law to be made by an Obligor, the amount of the payment due from that Obligor shall be increased to an amount which (after making any Tax Deduction) leaves an amount equal to the payment which would have been due if no Tax Deduction had been required.

 

(d)

A payment shall not be increased under paragraph (c) above by reason of a Tax Deduction on account of Tax imposed by the United Kingdom, if on the date on which the payment falls due:

 

  (i)

the payment could have been made to the relevant Lender without a Tax Deduction if the Lender had been a Qualifying Lender, but on that date that Lender is not or has ceased to be a Qualifying Lender other than as a result of any change after the date it became a Lender under this Agreement in (or in the interpretation, administration, or application of) any law or Treaty or any published practice or published concession of any relevant taxing authority; or

 

  (ii)

the relevant Lender is a Qualifying Lender solely by virtue of paragraph (a)(ii) of the definition of Qualifying Lender and:

 

  (A)

an officer of H.M. Revenue & Customs has given (and not revoked) a direction (a “Direction”) under section 931 of the ITA which relates to the payment and that Lender has received from the Obligor making the payment or from the Company a certified copy of that Direction; and

 

  (B)

the payment could have been made to the Lender without any Tax Deduction if that Direction had not been made; or

 

  (iii)

the relevant Lender is a Qualifying Lender solely by virtue of paragraph (a)(ii) of the definition of Qualifying Lender and:

 

  (A)

the relevant Lender has not given a Tax Confirmation to the Company; and

 

  (B)

the payment could have been made to the Lender without any Tax Deduction if the Lender had given a Tax Confirmation to the Company, on the basis that the Tax Confirmation would have enabled the Company to have formed a reasonable belief that the payment was an “excepted payment” for the purpose of section 930 of the ITA; or

 

  (iv)

the relevant Lender is a Treaty Lender and the Obligor making the payment is able to demonstrate that the payment could have been made to the Lender without the Tax Deduction had that Lender complied with its obligations under paragraph (g) or (h) (as applicable) below.

 

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(e)

If an Obligor is required to make a Tax Deduction, that Obligor shall make that Tax Deduction and any payment required in connection with that Tax Deduction within the time allowed and in the minimum amount required by law.

 

(f)

Within thirty days of making either a Tax Deduction or any payment required in connection with that Tax Deduction, the Obligor making that Tax Deduction shall deliver to the Agent for the Finance Party entitled to the payment a statement under section 975 of the ITA or other evidence reasonably satisfactory to that Finance Party that the Tax Deduction has been made or (as applicable) any appropriate payment paid to the relevant taxing authority.

 

(g)

 

  (i)

Subject to paragraph (ii) below, a Treaty Lender and each Obligor which makes a payment to which that Treaty Lender is entitled shall co-operate in completing any procedural formalities necessary for that Obligor to obtain authorisation to make that payment without a Tax Deduction.

 

  (ii)

 

  (A)

A Treaty Lender which is an Original Lender and that holds a passport under the HMRC DT Treaty Passport scheme, and which wishes that scheme to apply to this Agreement, shall confirm its scheme reference number and its jurisdiction of tax residence opposite its name in Schedule 1 (The Original Lenders); and

 

  (B)

a Treaty Lender which is not an Original Lender and that holds a passport under the HMRC DT Treaty Passport scheme, and which wishes that scheme to apply to this Agreement, shall confirm its scheme reference number and its jurisdiction of tax residence in the documentation which it executes on becoming a Party as a Lender,

and, having done so, that Lender shall be under no obligation pursuant to paragraph (i) above.

 

  (iii)

Each Lender that includes the confirmation described in paragraph (ii)(A) above in Schedule 1 (The Original Lenders) or the confirmation described in paragraph (ii)(B) above in the documentation which it executes on becoming a Party as a Lender thereby notifies the Borrower that, to the extent that that Lender is a Lender under a Facility made available to that Borrower and the HMRC DT Treaty Passport scheme is to apply in respect of that Lender’s Commitment(s) or its participation in any Loan to the Borrower, the Borrower must file a Borrower DTTP Filing.

 

(h)

If a Lender has confirmed its scheme reference number and its jurisdiction of tax residence in accordance with paragraph (g)(ii) above and:

 

  (i)

the Borrower making a payment to that Lender has not made a Borrower DTTP Filing in respect of that Lender; or

 

  (ii)

the Borrower making a payment to that Lender has made a Borrower DTTP Filing in respect of that Lender but:

 

  (A)

that Borrower DTTP Filing has been rejected by H.M. Revenue & Customs;

 

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  (B)

H.M. Revenue & Customs has not given the Borrower authority to make payments to that Lender without a Tax Deduction within 60 days of the date of the Borrower DTTP Filing; or

 

  (C)

H.M. Revenue & Customs has given the Borrower authority to make payments to that Lender without a Tax Deduction but such authority has subsequently been revoked or expired,

and in each case, the Borrower has notified that Lender in writing, that Lender and the Borrower shall co-operate in completing any additional procedural formalities necessary for that Borrower to obtain authorisation to make that payment without a Tax Deduction.

 

(i)

If a Lender has not confirmed its scheme reference number and jurisdiction of tax residence in accordance with paragraph (g)(ii) above, no Obligor shall make a Borrower DTTP Filing or file any other form relating to the HMRC DT Treaty Passport scheme in respect of that Lender’s Commitment(s) or its participation in any Loan unless the Lender otherwise agrees.

 

(j)

The Borrower shall, promptly on making a Borrower DTTP Filing, deliver a copy of that Borrower DTTP Filing to the Agent for delivery to the relevant Lender.

 

(k)

A UK Non-Bank Lender which is an Original Lender gives a Tax Confirmation to the Company by entering into this Agreement.

 

(l)

A UK Non-Bank Lender shall promptly notify the Company and the Agent if there is any change in the position from that set out in the Tax Confirmation.

 

(m)

If any Obligor receives a notification from HM Revenue & Customs that a QPP Certificate given by a Lender has no effect, the relevant Obligor shall deliver a copy of that notification to the Lender.

 

(n)

The Parties acknowledge without any liability to any Party that, where a Lender can deliver a QPP Certificate, it will do so in the form set out in Schedule 10 (Form of QPP Certificate).

 

(o)

Each Lender shall use reasonable endeavours to submit to the Borrower any forms, documents or information as may be necessary for the Borrower to determine whether it is required to make payments under this Agreement subject to a Tax Deduction. For the avoidance of doubt, the provision of any forms, documents or information by the Lenders shall not be a condition to the Borrower’s obligation at paragraph 14.2(c) above to increase the amount of any such payments.

 

14.3

Tax indemnity

 

(a)

The Company shall (within three Business Days of demand by the Agent) pay to a Protected Party an amount equal to the loss, liability or cost which that Protected Party determines will be or has been (directly or indirectly) suffered for or on account of Tax by that Protected Party in respect of a Finance Document.

 

(b)

Paragraph (a) above shall not apply:

 

  (i)

with respect to any Tax assessed on a Finance Party:

 

  (A)

under the law of the jurisdiction in which that Finance Party is incorporated or, if different, the jurisdiction (or jurisdictions) in which that Finance Party is treated as resident for tax purposes; or

 

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  (B)

under the law of the jurisdiction in which that Finance Party’s Facility Office is located in respect of amounts received or receivable in that jurisdiction,

if that Tax is imposed on or calculated by reference to the net income received or receivable (but not any sum deemed to be received or receivable) by that Finance Party; or

 

  (ii)

to the extent a loss, liability or cost:

 

  (A)

is compensated for by an increased payment under Clause 14.2 (Tax gross-up);

 

  (B)

would have been compensated for by an increased payment under Clause 14.2 (Tax gross-up) but was not so compensated solely because one of the exclusions in paragraph (d) of Clause 14.2 (Tax gross-up) applied; or

 

  (C)

relates to a FATCA Deduction required to be made by a Party.

 

(c)

A Protected Party making, or intending to make, a claim under paragraph (a) above shall promptly notify the Agent of the event which will give, or has given, rise to the claim, following which the Agent shall notify the Company.

 

(d)

A Protected Party shall, on receiving a payment from an Obligor under this Clause 14.3, notify the Agent.

 

14.4

Tax Credit

If an Obligor makes a Tax Payment and the relevant Finance Party determines that:

 

  (a)

a Tax Credit is attributable to an increased payment of which that Tax Payment forms part, to that Tax Payment or to a Tax Deduction in consequence of which that Tax Payment was required; and

 

  (b)

that Finance Party has obtained and utilised that Tax Credit,

the Finance Party shall pay an amount to the Obligor which that Finance Party determines will leave it (after that payment) in the same after-Tax position as it would have been in had the Tax Payment not been required to be made by the Obligor.

 

14.5

Lender status confirmation

Each Lender which is not an Original Lender shall indicate, in the documentation which it executes on becoming a Party as a Lender, and for the benefit of the Agent and without liability to any Obligor, which of the following categories it falls in:

 

  (1)

not a Qualifying Lender;

 

  (2)

a Qualifying Lender (other than a Treaty Lender or a QPP Lender);

 

  (3)

a Treaty Lender; or

 

  (4)

a QPP Lender.

If such a Lender fails to indicate its status in accordance with this Clause 14.5 then that Lender shall be treated for the purposes of this Agreement (including by each Obligor) as if it is not a Qualifying Lender until such time as it notifies the Agent which category applies (and the Agent, upon receipt of such notification, shall inform the Company). For the avoidance of doubt, the documentation which a Lender executes on becoming a Party as a Lender shall not be invalidated by any failure of a Lender to comply with this Clause 14.5.

 

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14.6

Stamp taxes

The Company shall pay and, within three Business Days of demand, indemnify each Secured Party against any cost, loss or liability that Secured Party incurs in relation to all stamp duty, registration and other similar Taxes payable in respect of any Finance Document.

 

14.7

VAT

 

(a)

All amounts expressed to be payable under a Finance Document by any Party to a Finance Party which (in whole or in part) constitute the consideration for any supply for VAT purposes are deemed to be exclusive of any VAT which is chargeable on that supply, and accordingly, subject to paragraph (b) below, if VAT is or becomes chargeable on any supply made by any Finance Party to any Party under a Finance Document and such Finance Party is required to account to the relevant tax authority for the VAT, that Party must pay to such Finance Party (in addition to and at the same time as paying any other consideration for such supply) an amount equal to the amount of the VAT (and such Finance Party must promptly provide an appropriate VAT invoice to that Party).

 

(b)

If VAT is or becomes chargeable on any supply made by any Finance Party (the “Supplier”) to any other Finance Party (the “Recipient”) under a Finance Document, and any Party other than the Recipient (the “Relevant Party”) is required by the terms of any Finance Document to pay an amount equal to the consideration for that supply to the Supplier (rather than being required to reimburse or indemnify the Recipient in respect of that consideration):

 

  (i)

(where the Supplier is the person required to account to the relevant tax authority for the VAT) the Relevant Party must also pay to the Supplier (at the same time as paying that amount) an additional amount equal to the amount of the VAT. The Recipient must (where this paragraph (i) applies) promptly pay to the Relevant Party an amount equal to any credit or repayment the Recipient receives from the relevant tax authority which the Recipient reasonably determines relates to the VAT chargeable on that supply; and

 

  (ii)

(where the Recipient is the person required to account to the relevant tax authority for the VAT) the Relevant Party must promptly, following demand from the Recipient, pay to the Recipient an amount equal to the VAT chargeable on that supply but only to the extent that the Recipient reasonably determines that it is not entitled to credit or repayment from the relevant tax authority in respect of that VAT.

 

(c)

Where a Finance Document requires any Party to reimburse or indemnify a Finance Party for any cost or expense, that Party shall reimburse or indemnify (as the case may be) such Finance Party for the full amount of such cost or expense, including such part thereof as represents VAT, save to the extent that such Finance Party reasonably determines that it is entitled to credit or repayment in respect of such VAT from the relevant tax authority.

 

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(d)

Any reference in this Clause 14.7 to any Party shall, at any time when such Party is treated as a member of a group or unity (or fiscal unity) for VAT purposes, include (where appropriate and unless the context otherwise requires) a reference to the person who is treated at that time as making the supply, or (as appropriate) receiving the supply, under the grouping rules (provided for in the Value Added Tax Act 1994, Article 11 of Council Directive 2006/112/EC (or as implemented by the relevant member state of the European Union) or any other similar provision in any jurisdiction other than the United Kingdom or a member state of the European Union) so that a reference to a Party shall be construed as a reference to that Party or the relevant group or unity (or fiscal unity) of which that Party is a member for VAT purposes at the relevant time or the relevant representative member (or head) of that group or unity (or fiscal unity) at the relevant time (as the case may be).

 

(e)

In relation to any supply made by a Finance Party to any Party under a Finance Document, if reasonably requested by such Finance Party, that Party must promptly provide such Finance Party with details of that Party’s VAT registration and such other information as is reasonably requested in connection with such Finance Party’s VAT reporting requirements in relation to such supply.

 

14.8

FATCA information

 

(a)

Subject to paragraph (c) below, each Party shall, within ten Business Days of a reasonable request by another Party:

 

  (i)

confirm to that other Party whether it is:

 

  (A)

a FATCA Exempt Party; or

 

  (B)

not a FATCA Exempt Party;

 

  (ii)

supply to that other Party such forms, documentation and other information relating to its status under FATCA as that other Party reasonably requests for the purposes of that other Party’s compliance with FATCA; and

 

  (iii)

supply to that other Party such forms, documentation and other information relating to its status as that other Party reasonably requests for the purposes of that other Party’s compliance with any other law, regulation, or exchange of information regime.

 

(b)

If a Party confirms to another Party pursuant to paragraph (a)(i) above that it is a FATCA Exempt Party and it subsequently becomes aware that it is not or has ceased to be a FATCA Exempt Party, that Party shall notify that other Party reasonably promptly.

 

(c)

Paragraph (a) above shall not oblige any Finance Party to do anything, and paragraph (a)(iii) above shall not oblige any other Party to do anything, which would or might in its reasonable opinion constitute a breach of:

 

  (i)

any law or regulation;

 

  (ii)

any fiduciary duty; or

 

  (iii)

any duty of confidentiality.

 

(d)

If a Party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation or other information requested in accordance with paragraph (a)(i) or (a)(ii) above (including, for the avoidance of doubt, where paragraph (c) above applies), then such Party shall be treated for the purposes of the Finance Documents (and payments under them) as if it is not a FATCA Exempt Party until such time as the Party in question provides the requested confirmation, forms, documentation or other information.

 

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(e)

If the Borrower is a U.S. Tax Obligor, or the Agent reasonably believes that its obligations under FATCA or any other applicable law or regulation require it, each Lender shall, within ten Business Days of:

 

  (i)

where the Borrower is a U.S. Tax Obligor and the relevant Lender is an Original Lender, the Signing Date;

 

  (ii)

where the Borrower is a U.S. Tax Obligor on a date on which any other Lender becomes a Party as a Lender, that date; or

 

  (iii)

where the Borrower is not a U.S. Tax Obligor, the date of a request from the Agent,

supply to the Agent:

 

  (A)

a withholding certificate on Form W-8, Form W-9 or any other relevant form; or

 

  (B)

any withholding statement or other document, authorisation or waiver as the Agent may require to certify or establish the status of such Lender under FATCA or that other law or regulation.

 

(f)

The Agent shall provide any withholding certificate, withholding statement, document, authorisation or waiver it receives from a Lender pursuant to paragraph (e) above to the Borrower.

 

(g)

If any withholding certificate, withholding statement, document, authorisation or waiver provided to the Agent by a Lender pursuant to paragraph (e) above is or becomes materially inaccurate or incomplete, that Lender shall promptly update it and provide such updated withholding certificate, withholding statement, document, authorisation or waiver to the Agent unless it is unlawful for the Lender to do so (in which case the Lender shall promptly notify the Agent). The Agent shall provide any such updated withholding certificate, withholding statement, document, authorisation or waiver to the Borrower.

 

(h)

The Agent may rely on any withholding certificate, withholding statement, document, authorisation or waiver it receives from a Lender pursuant to paragraph (e) or (g) above without further verification. The Agent shall not be liable for any action taken by it under or in connection with paragraph (e), (f) or (g) above.

 

14.9

FATCA Deduction

 

(a)

Each Party may make any FATCA Deduction it is required to make by FATCA, and any payment required in connection with that FATCA Deduction, and no Party shall be required to increase any payment in respect of which it makes such a FATCA Deduction or otherwise compensate the recipient of the payment for that FATCA Deduction.

 

(b)

Each Party shall promptly, upon becoming aware that it must make a FATCA Deduction (or that there is any change in the rate or the basis of such FATCA Deduction), notify the Party to whom it is making the payment and, in addition, shall notify the Company, the Agent and the other Finance Parties.

 

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15.

INCREASED COSTS

 

15.1

Increased Costs

 

(a)

Subject to Clause 15.3 (Exceptions) the Borrower shall, within three Business Days of a demand by the Agent, pay for the account of a Finance Party the amount of any Increased Costs incurred by that Finance Party or any of its Affiliates as a result of (i) the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation or (ii) compliance with any law or regulation made after the Signing Date or (iii) the implementation or application of or compliance with Basel III, CRD IV or CRD V or any law or regulation that implements or applies Basel III, CRD IV or CRD V. The term “law” in this paragraph (a) shall include any law concerning capital adequacy, prudential limits, liquidity, reserve assets or Tax.

 

(b)

In this Agreement:

Basel III” means:

 

  (i)

the agreements on capital requirements, a leverage ratio and liquidity standards contained in “Basel III: A global regulatory framework for more resilient banks and banking systems”, “Basel III: International framework for liquidity risk measurement, standards and monitoring” and “Guidance for national authorities operating the countercyclical capital buffer” published by the Basel Committee on Banking Supervision in December 2010, each as amended, supplemented or restated;

 

  (ii)

the rules for global systemically important banks contained in “Global systemically important banks: assessment methodology and the additional loss absorbency requirement – Rules text” published by the Basel Committee on Banking Supervision in November 2011, as amended, supplemented or restated; and

 

  (iii)

any further guidance or standards published by the Basel Committee on Banking Supervision relating to “Basel III”.

CRD IV” means EU CRD IV and UK CRD IV.

CRD V” means EU CRD V and UK CRD V.

EU CRD IV” means:

 

  (i)

Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012 (“CRR”); and

 

  (ii)

Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC (“CRD4”).

EU CRD V” means:

 

  (i)

Regulation (EU) No 2019/876 of the European Parliament and of the Council of 20 May 2019 amending CRR and Regulation (EU) No 648/2012 (“CRR2”; and

 

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  (ii)

Directive (EU) 2019/878 of the European Parliament and of the Council of 20 May 2019 amending CRD4 (“CRD5”).

””Increased Costs” means:

 

  (i)

a reduction in the rate of return from a Facility or on a Finance Party’s (or its Affiliate’s) overall capital;

 

  (ii)

an additional or increased cost; or

 

  (iii)

a reduction of any amount due and payable under any Finance Document,

which is incurred or suffered by a Finance Party or any of its Affiliates to the extent that it is attributable to that Finance Party having entered into its Commitment or funding or performing its obligations under any Finance Document.

UK CRD IV” means:

 

  (i)

CRR as it forms part of domestic law of the United Kingdom;

 

  (ii)

the law of the United Kingdom or any part of it, which immediately before IP completion day (as defined in the WAA) implemented CRD4 and its implementing measures;

 

  (iii)

direct EU legislation (as defined in the Withdrawal Act), which immediately before IP completion day (as defined in the WAA) implemented EU CRD IV as it forms part of domestic law of the United Kingdom; and

 

  (iv)

any law which amends, replaces or restates any law specified in paragraphs (i) to (iii) above.

UK CRD V” means:

 

  (i)

CRR2 as it forms part of domestic law of the United Kingdom;

 

  (ii)

the law of the United Kingdom or any part of it, which immediately before IP completion day (as defined in the WAA) implemented CRD5 and its implementing measures;

 

  (iii)

direct EU legislation (as defined in the Withdrawal Act), which immediately before IP completion day (as defined in the WAA) implemented EU CRD V as it forms part of domestic law of the United Kingdom; and

 

  (iv)

any law which amends, replaces or restates any law specified in paragraphs (i) to (iii) above or which otherwise implements Basel III in the United Kingdom.

WAA” means the European Union (Withdrawal Agreement) Act 2020.

Withdrawal Act” means the European Union (Withdrawal) Act 2018.

 

15.2

Increased Cost claims

 

(a)

A Finance Party intending to make a claim pursuant to Clause 15.1 (Increased Costs) shall notify the Agent of the event giving rise to the claim, following which the Agent shall promptly notify the Company.

 

(b)

Each Finance Party shall, as soon as practicable after a demand by the Agent, provide a certificate confirming the amount of its Increased Costs.

 

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15.3

Exceptions

 

(a)

Clause 15.1 (Increased Costs) does not apply to the extent any Increased Cost is:

 

  (i)

attributable to a Tax Deduction required by law to be made by an Obligor;

 

  (ii)

attributable to a FATCA Deduction to be made by a Party;

 

  (iii)

compensated for by Clause 14.3 (Tax indemnity) (or would have been compensated for under Clause 14.3 (Tax indemnity) but was not so compensated solely because any of the exclusions in paragraph (b) of Clause 14.3 (Tax indemnity) applied); or

 

  (iv)

attributable to the wilful breach by the relevant Finance Party or its Affiliates of any law or regulation.

 

(b)

In this Clause 15.3, a reference to a “Tax Deduction” has the same meaning given to that term in Clause 14.1 (Definitions).

 

16.

OTHER INDEMNITIES

 

16.1

Currency indemnity

 

(a)

If any sum due from an Obligor under the Finance Documents (a “Sum”), or any order, judgment or award given or made in relation to a Sum, has to be converted from the currency (the “First Currency”) in which that Sum is payable into another currency (the “Second Currency”) for the purpose of:

 

  (i)

making or filing a claim or proof against that Obligor; or

 

  (ii)

obtaining or enforcing an order, judgment or award in relation to any litigation or arbitration proceedings,

that Obligor shall as an independent obligation, within three Business Days of demand, indemnify each Secured Party to whom that Sum is due against any cost, loss or liability arising out of or as a result of the conversion including any discrepancy between (A) the rate of exchange used to convert that Sum from the First Currency into the Second Currency and (B) the rate or rates of exchange available to that person at the time of its receipt of that Sum.

 

(b)

Each Obligor waives any right it may have in any jurisdiction to pay any amount under the Finance Documents in a currency or currency unit other than that in which it is expressed to be payable.

 

16.2

Other indemnities

The Company shall (or shall procure that an Obligor will), within three Business Days of demand, indemnify each Secured Party against any cost, loss or liability incurred by that Secured Party as a result of:

 

  (a)

the occurrence of any Event of Default;

 

  (b)

any information produced or approved by or on behalf of an Obligor or the Keepwell Provider in connection with a Facility being or being alleged to be misleading and/or deceptive in any respect;

 

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  (c)

any enquiry, investigation, subpoena (or similar order) or litigation with respect to any Obligor or the Keepwell Provider or with respect to the transactions contemplated or financed under the Finance Documents;

 

  (d)

a failure by an Obligor or the Keepwell Provider to pay any amount due under a Finance Document on its due date, including without limitation, any cost, loss or liability arising as a result of Clause 31 (Sharing among the Finance Parties);

 

  (e)

funding, or making arrangements to fund, its participation in a Loan requested by the Borrower in a Utilisation Request but not made by reason of the operation of any one or more of the provisions of this Agreement (other than by reason of default or negligence by that Secured Party alone); or

 

  (f)

a Loan (or part of a Loan) not being prepaid in accordance with a notice of prepayment given by the Borrower.

 

16.3

Indemnity to the Agent or Account Bank

The Company shall (or shall procure that an Obligor will) promptly indemnify the Agent or the Account Bank against:

 

  (a)

any cost, loss or liability incurred by the Agent or the Account Bank (acting reasonably) as a result of:

 

  (i)

investigating any event which it reasonably believes is a Default;

 

  (ii)

acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised; or

 

  (iii)

instructing lawyers, accountants, tax advisers, surveyors or other professional advisers or experts as permitted under this Agreement; and

 

  (b)

any cost, loss or liability (including, without limitation, for negligence or any other category of liability whatsoever) incurred by the Agent or the Account Bank (otherwise than by reason of the Agent’s or the Account Bank’s gross negligence or wilful misconduct) (or, in the case of any cost, loss or liability pursuant to Clause 32.11 (Disruption to payment systems etc.), notwithstanding the Agent’s the Account Banks’ negligence, gross negligence or any other category of liability whatsoever but not including any claim based on the fraud of the Agent or the Account Bank) in acting as Agent or Account Bank under the Finance Documents.

 

16.4

Indemnity to the Security Agent

 

(a)

The Company shall (or shall procure that an Obligor will) promptly indemnify the Security Agent and every Receiver and Delegate against any cost, loss or liability incurred by any of them as a result of:

 

  (i)

any failure by the Company to comply with its obligations under Clause 18 (Costs and expenses);

 

  (ii)

acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised;

 

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  (iii)

the taking, holding, protection or enforcement of the Transaction Security;

 

  (iv)

the exercise of any of the rights, powers, discretions, authorities and remedies vested in the Security Agent and each Receiver and Delegate by the Finance Documents or by law;

 

  (v)

any default by any Obligor or the Keepwell Provider in the performance of any of the obligations expressed to be assumed by it in the Finance Documents;

 

  (vi)

instructing lawyers, accountants, tax advisers, surveyors or other professional advisers or experts as permitted under this Agreement; or

 

  (vii)

acting as Security Agent, Receiver or Delegate under the Finance Documents or which otherwise relates to any of the Charged Property (otherwise, in each case, than by reason of the relevant Security Agent’s, Receiver’s or Delegate’s gross negligence or wilful misconduct).

 

(b)

The Security Agent and every Receiver and Delegate may, in priority to any payment to the Secured Parties, indemnify itself out of the Charged Property in respect of, and pay and retain, all sums necessary to give effect to the indemnity in this Clause 16.4 and shall have a lien on the Transaction Security and the proceeds of the enforcement of the Transaction Security for all moneys payable to it.

 

16.5

Indemnity to the Joint Green Loan Lead Coordinator and the Green Loan Coordinator

The Company shall promptly indemnify each Joint Green Loan Lead Coordinator and the Green Loan Coordinator against:

 

  (a)

any cost, loss or liability incurred by any Joint Green Loan Lead Coordinator and the Green Loan Coordinator (acting reasonably) as a result of acting or relying on any notice, request, instruction or communication which it reasonably believes to be genuine, correct and appropriately authorised; and

 

  (b)

any cost, loss or liability incurred by any Joint Green Loan Lead Coordinator and the Green Loan Coordinator (otherwise than by reason of such Joint Green Loan Lead Coordinator’s or Green Loan Coordinator’s gross negligence or wilful misconduct) in acting as Joint Green Loan Lead Coordinator or Green Loan Coordinator in relation to the Facilities.

 

17.

MITIGATION BY THE LENDERS

 

17.1

Mitigation

 

(a)

Each Finance Party shall, in consultation with the Company, take all reasonable steps to mitigate any circumstances which arise and which would result in any amount becoming payable under or pursuant to, or cancelled pursuant to, any of Clause 7.1 (Illegality), Clause 14 (Tax gross-up and indemnities) or Clause 15 (Increased Costs) including (but not limited to) transferring its rights and obligations under the Finance Documents to another Affiliate or Facility Office.

 

(b)

Paragraph (a) above does not in any way limit the obligations of any Obligor or the Keepwell Provider under the Finance Documents.

 

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17.2

Limitation of liability

 

(a)

The Company shall promptly indemnify each Finance Party for all costs and expenses reasonably incurred by that Finance Party as a result of steps taken by it under Clause 17.1 (Mitigation).

 

(b)

A Finance Party is not obliged to take any steps under Clause 17.1 (Mitigation) if, in the opinion of that Finance Party (acting reasonably), to do so might be prejudicial to it.

 

18.

COSTS AND EXPENSES

 

18.1

Transaction expenses

The Company shall promptly on demand pay the Agent, the Account Bank, the Security Agent, each Global Coordinator, each MLAB and each MLA the amount of all costs and expenses (including legal fees up to an amount of any agreed cap, to the extent that assumptions forming the basis for that cap were not breached) reasonably incurred by any of them (and, in the case of the Security Agent, by any Receiver or Delegate) in connection with the negotiation, preparation, printing, execution, syndication and perfection of:

 

  (a)

this Agreement and any other documents referred to in this Agreement and any Transaction Security; and

 

  (b)

any other Finance Documents executed after the Signing Date.

For the avoidance of doubt, the Company is liable to any such costs and expenses whether any of the Facilities is drawn or not.

 

18.2

Amendment costs

If:

 

  (a)

an Obligor or the Keepwell Provider requests an amendment, waiver or consent;

 

  (b)

an amendment is required pursuant to Clause 32.10 (Change of currency); or

 

  (c)

any amendment or waiver is contemplated or agreed pursuant to Clause 38.4 (Replacement of Screen Rate – Facility A) or Clause 38.5 (Replacement of Reference Rate – Facility B),

the Company shall, within three Business Days of demand, reimburse the Agent, the Account Bank and the Security Agent for the amount of all costs and expenses (including legal fees) reasonably incurred by the Agent, the Account Bank or the Security Agent (and, in the case of the Security Agent, by any Receiver or Delegate) in responding to, evaluating, negotiating, complying with or implementing that request, requirement or actual or contemplated agreement.

 

18.3

Enforcement and preservation costs

The Company shall, within three Business Days of demand, pay to each Secured Party the amount of all costs and expenses (including legal fees) incurred by that Secured Party in connection with the enforcement of, or the preservation of any rights under, any Finance Document or the Transaction Security and with any proceedings instituted by or against that Secured Party as a consequence of it entering into a Finance Document or taking or holding the Transaction Security, or enforcing those rights.

 

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SECTION 7

GUARANTEE

 

19.

GUARANTEE AND INDEMNITY

 

19.1

Guarantee and indemnity

The Guarantor irrevocably and unconditionally:

 

  (a)

guarantees to each Finance Party punctual performance by the Borrower of all that Borrower’s obligations under the Finance Documents;

 

  (b)

undertakes with each Finance Party that whenever the Borrower does not pay any amount when due under or in connection with any Finance Document, the Guarantor shall immediately on demand pay that amount as if it was the principal obligor; and

 

  (c)

agrees with each Finance Party that if any obligation guaranteed by it is or becomes unenforceable, invalid or illegal, it will, as an independent and primary obligation, indemnify that Finance Party immediately on demand against any cost, loss or liability it incurs as a result of the Borrower not paying any amount which would, but for such unenforceability, invalidity or illegality, have been payable by it under any Finance Document on the date when it would have been due. The amount payable by the Guarantor under this indemnity will not exceed the amount it would have had to pay under this Clause 19 if the amount claimed had been recoverable on the basis of a guarantee.

 

19.2

Continuing guarantee

This guarantee is a continuing guarantee and will extend to the ultimate balance of sums payable by any Obligor under the Finance Documents, regardless of any intermediate payment or discharge in whole or in part.

 

19.3

Reinstatement

If any discharge, release or arrangement (whether in respect of the obligations of any Obligor or any security for those obligations or otherwise) is made by a Finance Party in whole or in part on the basis of any payment, security or other disposition which is avoided or must be restored in insolvency, liquidation, administration or otherwise, without limitation, then the liability of the Guarantor under this Clause 19 will continue or be reinstated as if the discharge, release or arrangement had not occurred.

 

19.4

Waiver of defences

The obligations of the Guarantor under this Clause 19 will not be affected by an act, omission, matter or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under this Clause 19 (without limitation and whether or not known to it or any Finance Party) including:

 

  (a)

any time, waiver or consent granted to, or composition with, any Obligor or other person;

 

  (b)

the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor of any Group Member;

 

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  (c)

the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;

 

  (d)

any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any other person;

 

  (e)

any amendment, novation, supplement, extension, restatement (however fundamental and whether or not more onerous) or replacement of any Finance Document or any other document or security including without limitation any change in the purpose of, any extension of or any increase in any facility or the addition of any new facility under any Finance Document or other document or security;

 

  (f)

any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document or any other document or security;

 

  (g)

any insolvency or similar proceedings; or

 

  (h)

this Agreement or any other Finance Document not being executed by or binding upon any other party.

 

19.5

Guarantor intent

Without prejudice to the generality of Clause 19.4 (Waiver of defences), the Guarantor expressly confirms that it intends that this guarantee shall extend from time to time to any (however fundamental) variation, increase, extension or addition of or to any of the Finance Documents and/or any facility or amount made available under any of the Finance Documents for the purposes of or in connection with any of the following: business acquisitions of any nature; increasing working capital; enabling investor distributions to be made; carrying out restructurings; refinancing existing facilities; refinancing any other indebtedness; making facilities available to new borrowers; any other variation or extension of the purposes for which any such facility or amount might be made available from time to time; and any fees, costs and/or expenses associated with any of the foregoing.

 

19.6

Immediate recourse

The Guarantor waives any right it may have of first requiring any Finance Party (or any trustee or agent on its behalf) to proceed against or enforce any other rights or security or claim payment from any person before claiming from the Guarantor under this Clause 19. This waiver applies irrespective of any law or any provision of a Finance Document to the contrary.

 

19.7

Appropriations

Until all amounts which may be or become payable by the Obligors under or in connection with the Finance Documents have been irrevocably paid in full, each Finance Party (or any trustee or agent on its behalf) may:

 

  (a)

refrain from applying or enforcing any other moneys, security or rights held or received by that Finance Party (or any trustee or agent on its behalf) in respect of those amounts, or apply and enforce the same in such manner and order as it sees fit (whether against those amounts or otherwise) and the Guarantor shall not be entitled to the benefit of the same; and

 

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  (b)

hold in an interest-bearing suspense account any moneys received from the Guarantor or on account of the Guarantor’s liability under this Clause 19.

 

19.8

Deferral of Guarantor’s rights

Until all amounts which may be or become payable by the Obligors under or in connection with the Finance Documents have been irrevocably paid in full and unless the Agent otherwise directs, the Guarantor will not exercise any rights which it may have by reason of performance by it of its obligations under the Finance Documents or by reason of any amount being payable, or liability arising, under this Clause 19:

 

  (a)

to be indemnified by an Obligor;

 

  (b)

to claim any contribution from any other guarantor of any Obligor’s obligations under the Finance Documents;

 

  (c)

to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Finance Parties under the Finance Documents or of any other guarantee or security taken pursuant to, or in connection with, the Finance Documents by any Finance Party;

 

  (d)

to bring legal or other proceedings for an order requiring any Obligor to make any payment, or perform any obligation, in respect of which the Guarantor has given a guarantee, undertaking or indemnity under Clause 19.1 (Guarantee and indemnity);

 

  (e)

to exercise any right of set-off against any Obligor; and/or

 

  (f)

to claim or prove as a creditor of any Obligor in competition with any Finance Party.

If the Guarantor receives any benefit, payment or distribution in relation to such rights it shall hold that benefit, payment or distribution to the extent necessary to enable all amounts which may be or become payable to the Finance Parties by the Obligors under or in connection with the Finance Documents to be repaid in full on trust for the Finance Parties and shall promptly pay or transfer the same to the Agent or as the Agent may direct for application in accordance with Clause 32 (Payment mechanics).

 

19.9

Additional security

This guarantee is in addition to and is not in any way prejudiced by any other guarantee or security now or subsequently held by any Finance Party.

 

19.10

Guarantee Limitations – Sweden

The obligations and liabilities of the Guarantor and any other obligor incorporated in Sweden in its capacity as guarantor (each a “Swedish Guarantor”) under this Agreement and the other Finance Documents in respect of obligations of any Obligor other than such Swedish Guarantor or its wholly-owned Subsidiaries shall be limited if (and only if) required by the provisions of the Swedish Companies Act (Sw. Aktiebolagslagen (2005:551)) regulating distribution of assets within the meaning of Chapter 17, Section 3 (or its equivalent from time to time) of the Swedish Companies Act, and it is understood that the liabilities of each Swedish Guarantor under this Clause 19 only applies to the extent permitted by the above mentioned provisions of the Swedish Companies Act.

 

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SECTION 8

REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT

 

20.

REPRESENTATIONS

Each of the Borrower and the Guarantor makes the representations and warranties set out in this Clause 20 to each Finance Party on the Signing Date.

 

20.1

Status

 

(a)

Each Obligor party hereto is a limited liability corporation, duly incorporated and validly existing under the law of its Original Jurisdiction.

 

(b)

Each Group Member is a limited liability corporation, duly incorporated and validly existing under the law of its jurisdiction of incorporation.

 

(c)

Each Obligor party hereto and each Group Member has the power to own its assets and carry on its business as it is being conducted.

 

(d)

No Obligor party hereto is a FATCA FFI or a U.S. Tax Obligor.

 

20.2

Binding obligations

Subject to the Legal Reservations and, in the case of the Security Documents, the requirements specified in Clause 20.5 (Validity and admissibility in evidence):

 

  (a)

the obligations expressed to be assumed by each Obligor in each Finance Document to which it is a party are legal, valid, binding and enforceable obligations; and

 

  (b)

(without limiting the generality of paragraph (a), each Security Document to which each Obligor is a party creates the security interests which that Security Document purports to create and those security interests are valid and effective.

 

20.3

Non-conflict with other obligations

The entry into and performance by an Obligor party hereto of, and the transactions contemplated by, the Finance Documents and the granting of the Transaction Security do not and will not conflict with:

 

  (a)

any law or regulation applicable to that Obligor;

 

  (b)

that Obligor’s or any of that Obligor’s Subsidiaries’ constitutional documents; or

 

  (c)

any agreement or instrument binding upon that Obligor or any of that Obligor’s Subsidiaries or any of that Obligor’s or any of that Obligor’s Subsidiaries’ assets or constitute a default or termination event (however described) under any such agreement or instrument.

 

20.4

Power and authority

 

(a)

Each Obligor party hereto has the power to enter into, perform and deliver, and has taken all necessary action to authorise its entry into, performance and delivery of, the Finance Documents to which it is a party and the transactions contemplated by those Finance Documents.

 

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(b)

No limit on any powers of an Obligor party hereto will be exceeded as a result of the borrowing, grant of security or giving of guarantees or indemnities contemplated by the Finance Documents to which it is a party.

 

20.5

Validity and admissibility in evidence

 

(a)

Subject to the Legal Reservations, all Authorisations required or desirable:

 

  (i)

to enable each Obligor party hereto lawfully to enter into, exercise its rights and comply with its obligations in the Finance Documents to which it is a party; and

 

  (ii)

to make the Finance Documents to which each Obligor hereto is a party admissible in evidence in its Relevant Jurisdictions;

 

  (iii)

to enable each Obligor hereto to create the Security expressed to be created by it pursuant to any Security Document and ensure that such Security has the priority and ranking it is expressed to have,

have been obtained, effected, done, fulfilled or performed and are in full force and effect.

 

(b)

All Authorisations necessary for the conduct of the business, trade and ordinary activities of the Group as a whole have been obtained or effected and are in full force and effect, if, in each case failure to do so is reasonably likely to have a Material Adverse Effect.

 

(c)

All the Material Licences have been obtained or effected and are in full force and effect.

 

20.6

Governing law and enforcement

 

(a)

Subject to the Legal Reservations, the choice of the law stated to be the governing law of each Finance Document will be recognised and enforced in each of the Borrower’s and the Guarantor’s Relevant Jurisdictions.

 

(b)

Subject to the Legal Reservations, any judgment obtained in relation to a Finance Document in the jurisdiction of the stated governing law of that Finance Document will be recognised and enforced in each of the Borrower’s and the Guarantor’s Relevant Jurisdictions.

 

20.7

Insolvency

No:

 

  (a)

corporate action, legal proceeding or other procedure or step described in Clause 24.7 (Insolvency proceedings); or

 

  (b)

creditors’ process described in Clause 24.8 (Creditors process),

has been taken or, to the knowledge of any Obligor, threatened in relation to any Obligor or a Group Member and none of the circumstances described in Clause 24.6 (Insolvency) applies to any Obligor or any Group Member.

 

20.8

Deduction of Tax

No Obligor is required to make any Tax Deduction (as defined in Clause 14.1 (Definitions)) from any payment it may make under any Finance Document to a Lender which is:

 

  (a)

a Qualifying Lender:

 

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  (i)

falling within paragraph (a)(i) of the definition of Qualifying Lender; or

 

  (ii)

except where a Direction has been given under section 931 of the ITA in relation to the payment concerned, falling within paragraph (a)(ii) of the definition of Qualifying Lender;

 

  (iii)

that is a QPP Lender; or

 

  (iv)

falling within paragraph (b) of the definition of Qualifying Lender; or;

 

  (b)

a Treaty Lender and the payment is one specified in a direction given by the Commissioners of Revenue & Customs under Regulation 2 of the Double Taxation Relief (Taxes on Income) (General) Regulations 1970 (SI 1970/488).

 

20.9

No filing or stamp taxes

Except for any filing with NDRC in accordance with the NDRC Order No. 56, under the law of each Obligor’s Relevant Jurisdiction it is not necessary that the Finance Documents be filed, recorded or enrolled with any court or other authority in that jurisdiction or that any stamp, registration, notarial or similar taxes or fees be paid on or in relation to the Finance Documents or the transactions contemplated by the Finance Documents.

 

20.10

No default

 

(a)

No Event of Default is continuing or might reasonably be expected to result from the making of any Utilisation or the entry into, the performance of, or any transaction contemplated by, any Finance Document.

 

(b)

No other event or circumstance is outstanding which constitutes (or, with the expiry of a grace period, the giving of notice, the making of any determination or any combination of any of the foregoing, would constitute) a default or termination event (however described) under any other agreement or instrument which is binding on any Obligor or any of its Subsidiaries or to which any Obligor’s (or any of its Subsidiaries’) assets are subject which might have a Material Adverse Effect.

 

20.11

No misleading information

 

(a)

Any factual written information provided by any Group Member in relation to the transactions contemplated by any Finance Document was true and accurate in all material respects and was not misleading in any material aspect, in each case as at the date it was provided or as at the date (if any) at which it is stated (being, in the case of the Business Plan, the date of the Business Plan, 17 October 2023).

 

(b)

Any financial projections or forecasts made by a Group Member and contained in the Business Plan have been prepared on the basis of historical information that was recent as at the date of the Business Plan (being 17 October 2023), on the basis of assumptions that were reasonable and fair as at the date of the Business Plan (being 17 October 2023), and arrived at after careful consideration.

 

(c)

Other than in respect of the Business Plan:

 

  (i)

no event or circumstance has occurred or arisen and no information has been omitted from any information provided in respect of any of the paragraphs (a) and (b) above; and

 

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  (ii)

no information has been given or withheld that results in the foregoing being untrue or misleading in any material respect.

 

(d)

In the case of the Business Plan:

 

  (i)

no event or circumstance had occurred or arisen and no information had been omitted from any information provided; and

 

  (ii)

no information had been given or withheld that resulted in the Business Plan being untrue or misleading in any material respect,

in each case as at the date of the Business Plan, being 17 October 2023.

 

20.12

Financial statements

 

(a)

Each of the financial statements most recently supplied to the Agent (which, at the date of this Agreement, are the Original Financial Statements) were prepared in accordance with the Accounting Principles consistently applied save to the extent expressly disclosed in such financial statements.

 

(b)

Each of the financial statements most recently supplied to the Agent (which, at the date of this Agreement, are the Original Financial Statements) give a true and fair view of (if audited) or fairly present (if unaudited) the relevant person’s financial condition as at the end of the relevant financial year and its results of operations as at the end of and for the relevant financial year (consolidated in each case).

 

(c)

The budgets and forecasts supplied under this Agreement were arrived at after careful consideration and have been prepared in good faith on the basis of recent historical information and on the basis of assumptions which were reasonable as at the date they were prepared and supplied.

 

(d)

There has been no material adverse change in the business, or financial condition of the Group, in each case, as a whole since the date of the Original Financial Statements.

 

20.13

Pari passu ranking

 

(a)

Subject to the requirements specified in Clause 20.5 (Validity and admissibility in evidence) and to the Legal Reservations, the Security has or will have the ranking in priority which it is expressed to have in the Security Documents and it is not subject to any prior ranking or pari passu ranking Security.

 

(b)

Without limiting paragraph (a) above, each Obligor’s payment obligations under the Finance Documents rank at least pari passu with the claims of all its other unsecured and unsubordinated creditors, except for obligations mandatorily preferred by law applying to companies generally.

 

20.14

No proceedings

 

(a)

No litigation, arbitration, administrative, governmental, criminal, regulatory or other investigative proceedings of or before any court, arbitral body or agency which, if adversely determined, might reasonably be expected to have a Material Adverse Effect has or have (to the best of its knowledge and belief (having made due and careful enquiry)) been started or threatened against any Obligor or any Group Member.

 

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(b)

No judgment or order of a court, arbitral body or agency which might reasonably be expected to have a Material Adverse Effect has (to the best of its knowledge and belief) been made against any Obligor or any Group Member.

 

20.15

No breach of laws

 

(a)

No Obligor has (and none of its Subsidiaries has) breached any law or regulation which breach has or is reasonably likely to have a Material Adverse Effect.

 

(b)

No labour disputes are current or, to the best of its knowledge and belief (having made due and careful enquiry), threatened against any Group Member which have or are reasonably likely to have a Material Adverse Effect.

 

20.16

Environmental laws

 

(a)

Each Group Member is in compliance with Clause 23.15 (Environmental compliance) and to the best of the knowledge and belief of any Group Member (having made due and careful enquiry) no circumstances have occurred which would prevent such compliance in a manner or to an extent which has or is reasonably likely to have a Material Adverse Effect.

 

(b)

No Environmental Claim has been commenced or (to the best of the knowledge and belief of any Group Member (having made due and careful enquiry)) is threatened against any Group Member where that claim has or is reasonably likely if determined against that Group Member, to have a Material Adverse Effect.

 

20.17

Taxation

 

(a)

No Group Member or Obligor is overdue in the payment of any Taxes required to be paid by it other than any Taxes:

 

  (i)

being contested by it in good faith and in accordance with the relevant procedures;

 

  (ii)

which have been disclosed to the MLABs and the MLAs and for which adequate reserves are being maintained in accordance with the Accounting Principles; and

 

  (iii)

where payment can be lawfully withheld and will not result in the imposition of any penalty nor in any Security ranking in priority to the claims of any Finance Party under any Finance Document or to any Security created under any Security Document.

 

(b)

Each Obligor is resident for Tax purposes only in its Original Jurisdiction.

 

20.18

Anti-corruption and anti-money laundering

 

(a)

Each of the Obligors, their respective Subsidiaries and (to the best of their knowledge and belief) their Affiliates, each of their respective directors, officers, employees, agents and any other person acting on their behalf, have conducted their businesses in compliance with applicable Anti-Corruption Laws and AML/CTF Laws and have instituted and maintained policies and procedures designed to promote, achieve and are reasonably expected to ensure continued compliance with applicable Anti-Corruption Laws and AML/CTF Laws.

 

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(b)

None of the Obligors or their respective Subsidiaries, nor, to their knowledge, any director, officer, agent, employee, Affiliate or other person acting on behalf of any of the Obligors or their respective Subsidiaries is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of any applicable Anti-Corruption Laws and AML/CTF Laws.

 

(c)

No action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving any Obligor or any of its Subsidiaries, any of their Affiliates or any of their respective directors, officers, agents or employees, in each case, with respect to applicable Anti-Corruption Laws and AML/CTF Laws is pending or, to the best of its knowledge, threatened.

 

20.19

Sanctions

None of the Obligors or their respective Subsidiaries, or any of their respective directors, Affiliates, officers, employees, beneficial owner or agents:

 

  (a)

is a Sanctioned Person;

 

  (b)

has been engaged in any transaction, activity or conduct (i) that might result in it or any of them being designated as a Sanctioned Person or (ii) with any Asset Freeze Target or (iii) with any other Sanctioned Person in violation of Sanctions or (iv) in any Sanctioned Country; or

 

  (c)

that is in breach of or is the subject of any action or investigation under any applicable Sanctions.

 

20.20

Good title to assets

Each Obligor and each of its Subsidiaries has a good, valid and marketable title to, or valid leases or licences of, and all appropriate Authorisations to use, the assets necessary to carry on its business as presently conducted (including but not limited to the vehicle inventories it may own).

 

20.21

Legal and beneficial ownership

The relevant Obligor is the sole legal and beneficial owner of the respective assets over which it purports to grant Transaction Security.

 

20.22

Group Structure Chart

The Group Structure Chart delivered to the Agent pursuant to Clause 4.1 (Initial conditions precedent) or most recently delivered pursuant to paragraph (d) of Clause 21.4 (Information: miscellaneous) is true, complete and accurate in all material respects and shows the following information:

 

  (a)

each Obligor, each Group Member, including current name and company registration number, its Original Jurisdiction (in the case of an Obligor), its jurisdiction of incorporation (in the case of a Group Member which is not an Obligor) and/or its jurisdiction of establishment, a list of shareholders and indicating whether a company is not a company with limited liability; and

 

  (b)

all minority interests in any Group Member and any person in which any Group Member holds shares in its issued share capital or equivalent ownership interest of such person.

 

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20.23

No adverse consequences

 

(a)

It is not necessary under the laws of any Obligor’s Relevant Jurisdictions:

 

  (i)

in order to enable any Finance Party to enforce its rights under any Finance Document; or

 

  (ii)

by reason of the execution of any Finance Document or the performance by it of its obligations under any Finance Document,

that any Finance Party should be licensed, qualified or otherwise entitled to carry on business in any of its Relevant Jurisdictions.

 

(b)

No Finance Party is or will be deemed to be resident, domiciled or carrying on business in its Relevant Jurisdictions by reason only of the execution, performance and/or enforcement of any Finance Document.

 

20.24

Centre of main interests and establishments

Each Obligor’s centre of main interest (as that term is used in Article 3(1) of Regulation (EU) 2015/848 of 20 May 2015 on insolvency proceedings (recast) (the Regulation)) (COMI) is situated in its Original Jurisdiction and it has no “establishment” (as that term is used in Article 2(10) of the Regulation) in any other jurisdiction.

 

20.25

Authorised signatures

Any person specified as each Obligor’s authorised signatory under Schedule 2 (Conditions Precedent) or paragraph (f) of Clause 21.4 (Information: miscellaneous) is authorised to sign the Utilisation Request (in the case of the Company only) and other notices on its behalf.

 

20.26

Repetition

The Repeating Representations are deemed to be made by each Obligor by reference to the facts and circumstances then existing on the date of each Utilisation Request, each Utilisation Date and the first day of each Interest Period.

 

21.

INFORMATION UNDERTAKINGS

The undertakings in this Clause 21 remain in force from the Signing Date for so long as any amount is outstanding under the Finance Documents or any Commitment is in force.

 

21.1

Financial statements

The Borrower shall supply (or procure to be supplied) to the Agent in sufficient copies for all the Lenders:

 

  (a)

as soon as the same become available, but in any event within the later of (i) 120 days after the end of each Financial Year or (ii) the filing deadline for the Annual Report on Form 20-F imposed on foreign private issuers by the U.S. Securities Exchange Commission’ in respect of the Borrower (starting from the Financial Year ending on 31 December 2023) its audited consolidated financial statements for that Financial Year; and

 

  (b)

as soon as the same become available, but in any event within 60 days after the end of each Financial Quarter (starting from the Financial Quarter ending on 31 March 2024) its consolidated management accounts for that Financial Quarter.

 

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21.2

Provision and contents of Compliance Certificate

 

(a)

The Company shall supply a Compliance Certificate to the Agent with each set of the Annual Financial Statements and Quarterly Financial Statements (except for the Quarterly Financial Statements relating to a Financial Quarter ending on 31 December of each calendar year).

 

(b)

Each Compliance Certificate shall, amongst other things, set out (in reasonable detail) computations as to compliance with Clause 22 (Financial covenants) as at the date as at which those financial statements were drawn up, and, for the avoidance of doubt, shall include the then current Group Cash, Group Cash Equivalent Investment and Available Credit available to the Group and such other information as may be reasonably required by the Agent for it to verify each such computation.

 

(c)

The Borrower shall notify the Agent under each Compliance Certificate if a Default or Event of Default has occurred.

 

(d)

Each Compliance Certificate shall be signed by a director of the Borrower.

 

21.3

Requirements as to financial statements

 

(a)

Each set of financial statements or management accounts delivered by the Borrower pursuant to Clause 21.1 (Financial statements) shall include a balance sheet, profit and loss account and cashflow statement, and be certified by a director of the Borrower as fairly presenting its financial condition as at the date as at which those financial statements were drawn up.

 

(b)

The Borrower shall procure that each set of financial statements or management accounts delivered pursuant to Clause 21.1 (Financial statements) is prepared using the applicable Accounting Principles, accounting practices and financial reference periods consistent with those applied in the preparation of the Original Financial Statements for that person unless, in relation to any set of financial statements or management accounts, it notifies the Agent that there has been a change in the relevant Accounting Principles, the accounting practices or reference periods and delivers to the Agent:

 

  (i)

a description of any change necessary for those financial statements or management accounts to reflect the Accounting Principles, accounting practices and reference periods upon which that person’s Original Financial Statements were prepared; and

 

  (ii)

sufficient information, in form and substance as may be reasonably required by the Agent, to enable the Lenders to determine whether Clause 22 (Financial covenants) has been complied with and make an accurate comparison between the financial position indicated in those financial statements or management accounts and that person’s Original Financial Statements.

Any reference in this Agreement to those financial statements or management accounts shall be construed as a reference to those financial statements as adjusted to reflect the basis upon which the Original Financial Statements were prepared.

 

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(c)

If the Borrower notifies the Agent of a change in accordance with paragraph (b) above, the Borrower and the Agent shall enter into negotiations in good faith with a view to agreeing any amendments to this Agreement which are necessary as a result of the change. To the extent practicable these amendments will be such as to ensure that the change does not result in any material alteration in the commercial effect of the obligations in this Agreement. If any amendments are agreed they shall take effect and be binding on each of the Parties in accordance with their terms.

 

21.4

Information: miscellaneous

The Borrower shall supply to the Agent (in sufficient copies for all the Lenders, if the Agent so requests):

 

  (a)

at the same time as they are dispatched, copies of all documents dispatched by the Borrower to its shareholders generally (or any class of them) or dispatched by the Borrower or any Obligors to its creditors generally (or any class of them);

 

  (b)

promptly upon becoming aware of them, the details of any litigation, arbitration, administrative, governmental, criminal, regulatory or other investigative proceedings which are current, threatened or pending against any Obligor or any Group Member (including from any Sanctions Authority), and which, if adversely determined, are reasonably likely to have a Material Adverse Effect;

 

  (c)

promptly upon becoming aware of them, the details of any judgment or order of a court, arbitral body or agency which is made against any Obligor or any Group Member, and which might have a Material Adverse Effect;

 

  (d)

at the end of each Financial Quarter, if there has been any change to the Group structure, a revised Group Structure Chart on the date falling 14 days after the last day thereof. If this sub-paragraph (d) is applicable, the Borrower shall notify the Agent in writing of such change promptly on or prior to such change;

 

  (e)

promptly, such information as the Security Agent may reasonably require about the Charged Property and compliance of the Obligors with the terms of any Security Document;

 

  (f)

promptly, notice of any change in authorised signatories of any Obligor signed by a director or company secretary of such Obligor accompanied by specimen signatures of any new authorised signatories; and

 

  (g)

promptly, on request such further information regarding the financial condition, assets and operations of the Group and/or any Group Member as any Finance Party (through the Agent) may reasonably request.

 

21.5

Year-end

No Accounting Reference Date may be changed.

 

21.6

Notification of default

 

(a)

The Borrower shall (and shall procure that each other Obligor will) shall notify the Agent of any Default (and the steps, if any, being taken to remedy it) promptly upon becoming aware of its occurrence (unless that Obligor is aware that a notification has already been provided by another Obligor).

 

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(b)

Promptly upon a request by the Agent, the Borrower shall supply to the Agent a certificate signed by two of its directors or senior officers on its behalf certifying that no Default is continuing (or if a Default is continuing, specifying the Default and the steps, if any, being taken to remedy it).

 

21.7

Direct electronic delivery by Borrower

The Borrower may satisfy its obligation under this Agreement to deliver any information in relation to a Lender by delivering that information directly in accordance with Clause 34.5 (Electronic communication) to the extent that Lender and the Agent agree to this method of delivery.

 

21.8

Anti-corruption information

Unless such disclosure would constitute a breach of any applicable law or regulation, the Borrower shall supply to the Agent (in sufficient copies for all the Lenders, if the Agent so requests):

 

  (a)

promptly upon becoming aware of them, the details of any actual violation by, or creation of liability for, any Obligor, any Group Member or any agent, director, employee or officer of any Obligor or any Group Member (or any counterparty of any such person in relation to any transaction contemplated by a Finance Document) of or in relation to any Anti-Corruption Laws; and

 

  (b)

promptly upon request by any Finance Party (through the Agent), such further information relating to any matter referred to in paragraph (a) above as that Finance Party may reasonably require.

 

21.9

“Know your customer” checks

 

(a)

If:

 

  (i)

the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation made after the Signing Date;

 

  (ii)

any change in the status of an Obligor (or of a Holding Company of an Obligor) or the composition of the shareholders of an Obligor after the Signing Date; or

 

  (iii)

a proposed assignment or transfer by a Lender of any of its rights and/or obligations under this Agreement to a party that is not a Lender prior to such assignment or transfer,

obliges the Agent or any Lender (or, in the case of paragraph (iii) above, any prospective new Lender) to comply with “know your customer” or similar identification procedures in circumstances where the necessary information is not already available to it, each Obligor shall promptly upon the request of the Agent or any Lender supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Agent (for itself or on behalf of any Lender) or any Lender (for itself or, in the case of the event described in paragraph (iii) above, on behalf of any prospective new Lender) in order for the Agent, such Lender or, in the case of the event described in paragraph (iii) above, any prospective new Lender to carry out and be satisfied it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in the Finance Documents.

 

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(b)

Each Lender shall promptly upon the request of the Agent supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Agent (for itself) in order for the Agent to carry out and be satisfied it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in the Finance Documents.

 

22.

FINANCIAL COVENANTS

 

22.1

Financial definitions

In this Agreement:

Acceptable Bank” means:

 

  (a)

an Original Lender;

 

  (b)

a bank or financial institution which has a rating for its long-term unsecured and non-credit-enhanced debt obligations of BBB or higher by Standard & Poor’s Rating Services or Fitch Ratings Ltd or Baa2 or higher by Moody’s Investors Service Limited or a comparable rating from an internationally recognised credit rating agency; or

 

  (c)

any other bank or financial institution approved by the Agent.

Available Credit” means in relation to any person and as at any date, any maximum available commitments under any of its committed facilities which are available to that person according to the terms of the relevant credit agreement (provided that no event of default is outstanding under such credit agreement) as of that date.

Capex” means any expenditure or obligation in respect of expenditure which, in accordance with the applicable Accounting Principles, is treated as capital expenditure (including, for the avoidance of doubt, (i) the capital element of any expenditure or obligation incurred in connection with Capitalised Lease Obligations and (ii) any expenditure incurred in connection with any Capex Acquisition).

Capex Acquisition” means the acquisition of a company (or any equity interests in a company) where the following criteria are met:

 

  (a)

the only material assets of that company are assets (the direct acquisition of which would be treated as capital expenditure in the financial statements of the acquiror in accordance with the applicable Accounting Principles) and other assets that are incidental to and non-material to such first-mentioned assets; and

 

  (b)

such company has no or a de minimis number of employees or such greater number of employees required to service and maintain the assets referred to in paragraph (a).

Capitalised Lease Obligations” means with respect to any person, any rental obligation (including any hire purchase payment obligation) which, under the applicable Accounting Principles, would be required to be treated as a Finance Lease or otherwise capitalised in the audited financial statements of that person, but only to the extent of that treatment.

Consolidated Group Assets” means, in respect of the Group, its consolidated gross assets as at the end of a financial period as shown in the financial statements or management accounts of the Group in relation to such financial period.

 

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Consolidated Group Financial Indebtedness” means, in respect of the Group, its consolidated Financial Indebtedness which is interest-bearing and not (or not required to) subordinated to the Facilities pursuant to the Subordination Deed, or otherwise on terms in form and satisfactory to the Agent.

Consolidated Group Secured Financial Indebtedness” means, in respect of the Group, its Consolidated Group Financial Indebtedness supported by any Security or Quasi-Security over cars of any Group Member (to the extent permitted under this Agreement).

Consolidated Revenue” means, in respect of the Group, its consolidated net operating revenue in respect of a financial period as shown in the financial statements in relation to such financial period.

First Test Date” means 31 December 2023.

Group Cash” means at any time, cash in hand or at bank and (in the latter case) credited to an account in the name of a Group Member with an Acceptable Bank and to which a Group Member is alone beneficially entitled and for so long as:

 

  (a)

that cash is repayable within 3 days after the relevant date of calculation;

 

  (b)

repayment of that cash is not contingent on the prior discharge of any other indebtedness of any Group Member or of any other person whatsoever or on the satisfaction of any other condition;

 

  (c)

there is no Security or Quasi-Security over that cash except for Transaction Security or any Permitted Security constituted by a netting or set-off arrangement entered into by any Group Member in the ordinary course of its banking arrangements; and

 

  (d)

the cash is freely and (except as mentioned in paragraph (a) above) immediately available to be applied in repayment or prepayment of the Facilities.

Group Cash Equivalent Investments” means at any time:

 

  (a)

certificates of deposit maturing within one year after the relevant date of calculation and issued by an Acceptable Bank;

 

  (b)

any investment in marketable debt obligations issued or guaranteed by the government of the United States of America, the United Kingdom, any member state of the European Economic Area or any Participating Member State or by an instrumentality or agency of any of them having an equivalent credit rating, maturing within one year after the relevant date of calculation and not convertible or exchangeable to any other security;

 

  (c)

commercial paper not convertible or exchangeable to any other security:

 

  (i)

for which a recognised trading market exists;

 

  (ii)

issued by an issuer incorporated in the United States of America, the United Kingdom, any member state of the European Economic Area or any Participating Member State;

 

  (iii)

which matures within one year after the relevant date of calculation; and

 

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  (iv)

which has a credit rating of either A-1 or higher by Standard & Poor’s Rating Services or Fl or higher by Fitch Ratings Ltd or P-1 or higher by Moody’s Investors Service Limited, or, if no rating is available in respect of the commercial paper, the issuer of which has, in respect of its long-term unsecured and non-credit enhanced debt obligations, an equivalent rating;

 

  (d)

sterling bills of exchange eligible for rediscount at the Bank of England and accepted by an Acceptable Bank (or their dematerialised equivalent);

 

  (e)

any investment in money market funds which:

 

  (i)

have a credit rating of either A-1 or higher by Standard & Poor’s Rating Services or Fl or higher by Fitch Ratings Ltd or P-1 or higher by Moody’s Investors Service Limited; and

 

  (ii)

invest substantially all their assets in securities of the types described in paragraphs (a) to (d) above,

to the extent that investment can be turned into cash on not more than 30 days’ notice; or

 

  (f)

any other debt security approved by the Majority Lenders,

in each case, to which any Group Member is alone (or together with other Group Members) beneficially entitled at that time and which is not issued or guaranteed by any Group Member or subject to any Security (other than Security arising under the Transaction Security Documents).

Test Date” means:

 

  (a)

in respect of each of the financial covenants set out in paragraph (a) of Clause 22.2 (Financial condition), the First Test Date and date falling on the last day of each Financial Year of the Borrower thereafter; and

 

  (b)

in respect of each of the financial covenants set out in paragraphs (b) to (e) of Clause 22.2 (Financial condition), the First Test Date, and the date falling on the last day of each Financial Quarter of the Borrower thereafter.

 

22.2

Financial condition

The Borrower shall ensure that:

 

  (a)

in respect of a Financial Year ending on the following Test Dates:

 

  (i)

the Consolidated Revenue of the Group shall not be less than the amount set out in the table below opposite such Test Date:

 

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Test Date

   Consolidated Revenue of the
Group (USD, in millions)
 

31 December 2023

     1,862.7  

31 December 2024

     5,359.9  

31 December 2025

     7,144.9  

31 December 2026

     8,670.2  

 

  (ii)

the Group (on a consolidated basis) shall not incur any Capex in any Financial Year in excess of the amount (the “Capex Limit”) set out in the table below opposite such Financial Year:

 

Financial Year ending on

   Capex Limit (USD, in millions)  

31 December 2023

     636  

31 December 2024

     788  

31 December 2025

     534  

31 December 2026

     443  

provided that:

 

  (A)

the Capex Limit for each Financial Year (starting from the Financial Year ending on 31 December 2023, each a “Relevant Financial Year” for the purpose of this paragraph (A)) may be increased by an amount equal to the difference (if positive) (the “Unused Capex”) between the Capex Limit in the immediately preceding Financial Year in respect of such Relevant Financial Year and the Capex actually incurred during such preceding Financial Year provided that:

 

  (A)

the amount of Unused Capex that may be carried forward from the Financial Year ending on 31 December 2023 shall be no more than USD40,000,000;

 

  (B)

any amount so carried forward will be deemed to be utilised after the utilisation of the Capex Limit of such Relevant Financial Year;

 

  (C)

no Unused Capex may be allowed to carried forward more than once; and

 

  (D)

no Event of Default has occurred as at the time of the utilisation of such Unused Capex, or will result from its utilisation; and

 

  (B)

any Capex funded by any Excluded Disposal Proceeds (falling within paragraph (i) of that definition and only to the extent the applicable Reinvestment Period in respect of those Excluded Disposal Proceeds has not elapsed) in a Financial Year shall not be taken into account for the purpose of the calculation of the Capex Limit in respect of that Financial Year.

 

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  (b)

the aggregate amount of the Group Cash, Group Cash Equivalent Investments and Available Credit available to any Group Member (or the equivalent value in EUR) shall be no less than EUR400,000,000 at any time;

 

  (c)

the aggregate outstanding principal amount of any Consolidated Group Secured Financial Indebtedness shall not exceed USD1,375,000,000 at any time;

 

  (d)

the aggregate outstanding principal amount of any Consolidated Group Financial Indebtedness shall not exceed USD5,500,000,000 at any time; and

 

  (e)

the ratio of Consolidated Group Financial Indebtedness to Consolidated Group Assets as at a Test Date shall not exceed the ratio set out in the table below opposite such Test Date at any time:

 

The Test Date(s)

   Ratio of Consolidated Group
Financial Indebtedness to
Consolidated Group Assets
 

31 December 2023, 31 March 2024, 30 June 2024 and 30 September 2024

     1.00:1  

31 December 2024, 31 March 2025, 30 June 2025 and 30 September 2025

     0.90:1  

31 December 2025, 31 March 2026, 30 June 2026 and 30 September 2026

     0.85:1  

31 December 2026 and each Test Date thereafter

     0.80:1  

 

22.3

Financial testing

 

(a)

The financial covenants set out in Clause 22.2 (Financial condition) shall be calculated in accordance with the applicable Accounting Principles and tested by reference to each of the financial statements or management accounts delivered pursuant to Clause 21.1 (Financial statements) and/or each Compliance Certificate delivered pursuant to Clause 21.2 (Provision and contents of Compliance Certificate).

 

(b)

For the purpose of this Clause 22, no item shall be included or excluded more than once in any calculation.

 

22.4

Currency

For the purpose of this Clause 22, if any amount is in a currency other than EUR or USD, and is to be taken into account at its EUR or USD equivalent, it should be calculated on the basis of:

 

  (a)

(subject to paragraph (b) below) on the day the relevant amount falls to be calculated;

 

  (b)

if the amount is to be calculated on the last day of a financial period of the Borrower, the relevant rates of exchange used by the Borrower in, or in connection with, its financial statements for that period which are used to determine or calculate that amount.

 

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23.

GENERAL UNDERTAKINGS

The undertakings in this Clause 23 remain in force from the Signing Date for so long as any amount is outstanding under the Finance Documents or any Commitment is in force.

 

23.1

Authorisations

 

(a)

The Borrower and the Guarantor shall promptly:

 

  (i)

obtain, comply with and do all that is necessary to maintain in full force and effect; and

 

  (ii)

supply certified copies to the Agent of,

any Authorisation required to:

 

  (A)

enable it to perform its obligations under the Finance Documents to which it is a party; and

 

  (B)

ensure the legality, validity, enforceability or admissibility in evidence in its Relevant Jurisdictions of any Finance Document to which it is a party.

 

(b)

The Borrower and the Guarantor shall (and the Borrower shall ensure that each other Group Member will) maintain all its licenses, approvals, registrations or filings required under any law or regulation of a Relevant Jurisdiction in full force and effect to enable it to carry on business, if failure so to comply has or is reasonably expected to have a Material Adverse Effect.

 

23.2

Compliance with laws

The Borrower and the Guarantor shall (and the Borrower shall ensure that each other Group Member will) comply in all respects with all laws to which it may be subject, if failure so to comply would materially impair its ability to perform its obligations under the Finance Documents.

 

23.3

Negative pledge

In this Clause 23.3, “Quasi-Security” means an arrangement or transaction described in paragraph (b) below.

Except as permitted under paragraph (c) below:

 

  (a)

neither the Borrower nor the Guarantor shall (and the Borrower shall ensure that no other Group Member will) create or permit to subsist any Security over any of its assets.

 

  (b)

neither the Borrower nor the Guarantor shall (and the Borrower shall ensure that no Group Member will):

 

  (i)

sell, transfer or otherwise dispose of any of its assets on terms whereby they are or may be leased to or re-acquired by the Borrower, the Guarantor or any other Group Member;

 

  (ii)

sell, transfer or otherwise dispose of any of its receivables on recourse terms;

 

  (iii)

enter into or permit to subsist any title retention arrangement;

 

  (iv)

enter into or permit to subsist any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or

 

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  (v)

enter into or permit to subsist any other preferential arrangement having a similar effect,

in circumstances where the arrangement or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the acquisition of an asset.

 

  (c)

Paragraphs (a) and (b) above do not apply to any Security or (as the case may be) Quasi-Security, which is a Permitted Security.

 

23.4

Disposals

 

(a)

Except as permitted under paragraph (b) below, neither the Borrower nor the Guarantor shall (and the Borrower shall ensure that no other Group Member will) enter into a single transaction or a series of transactions (whether related or not) and whether voluntary or involuntary to sell, lease, transfer or otherwise dispose of any asset.

 

(b)

Paragraph (a) above does not apply to any sale, lease, transfer or other disposal which is a Permitted Disposal or a Permitted Share Issue.

 

23.5

Arm’s length basis

Neither the Borrower nor the Guarantor shall (and shall ensure that no other Group Member will) enter into any transaction with any person otherwise than on arm’s length terms and for fair market value unless as otherwise expressly permitted under a Finance Document or required to be entered into pursuant to the terms of a Finance Document (including, for the avoidance of doubt, any actions or measures required or contemplated under the Keepwell Deed).

 

23.6

Loans or credit

 

(a)

Except as permitted under paragraph (b) below, neither the Borrower nor the Guarantor shall (and the Borrower shall ensure that no other Group Member will) be a creditor in respect of any Financial Indebtedness.

 

(b)

Paragraph (a) above does not apply to a Permitted Loan.

 

23.7

No guarantees or indemnities

 

(a)

Except as permitted under paragraph (b) below, neither the Borrower nor the Guarantor shall (and the Borrower shall ensure that no other Group Member will) incur or allow to remain outstanding any guarantee in respect of any obligation of any person.

 

(b)

Paragraph (a) above does not apply to a guarantee which is a Permitted Guarantee.

 

23.8

Dividends and share redemption

 

(a)

Except as permitted under paragraph (b) below, the Borrower shall not:

 

  (i)

declare, make or pay any dividend, charge, fee or other distribution (or interest on any unpaid dividend, charge, fee or other distribution) (whether in cash or in kind) on or in respect of its share capital (or any class of its share capital);

 

  (ii)

repay or distribute any dividend or share premium reserve;

 

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  (iii)

pay or allow any Group Member to pay any management, advisory or other fee to or to the order of any of the shareholders of the Borrower; or

 

  (iv)

redeem, repurchase, defease, retire or repay any of its share capital or resolve to do so,

in each case, to any Restricted Person.

 

(b)

Paragraph (a) above does not apply to a Permitted Distribution.

 

(c)

The Borrower shall ensure that:

 

  (i)

none of the corporate policies or constitutional documents of any Group Member (other than the Borrower) contains any restriction on the payment of dividends or the making of other distributions by any Group Member (other than the Borrower) to the Borrower, in each case other than any procedures for effecting such distributions existing in its constitutional documents at the Signing Date; and

 

  (ii)

subject to any restrictions on the payment of dividends or the making of distributions or otherwise by any agreement (except for any entered into with a view to avoiding the payment of dividends or the making of distributions), judgment, decree, order, statue, governmental rule or regulation or applicable law and provided it would not cause and provided the relevant Group Member has excess funds available for such remittance, the relevant Group Member shall remit to the Borrower (whether by way of dividend or otherwise) such funds as are required by the Borrower to pay all amounts due and payable by the Borrower under this Agreement (as a result of the operation of any mandatory prepayment, acceleration or maturity of any Loan or otherwise) to the extent funds required for such purposes are not otherwise available to the Borrower.

 

23.9

Financial Indebtedness

 

(a)

Except as permitted under paragraph (b) below, neither the Borrower nor the Guarantor shall (and the Borrower shall ensure that no other Group Member will) incur or allow to remain outstanding any Financial Indebtedness.

 

(b)

Paragraph (a) above does not apply to Financial Indebtedness which is Permitted Financial Indebtedness.

 

23.10

Merger

 

(a)

Neither the Borrower nor the Guarantor shall (and the Company shall ensure that no other Group Member will) enter into any amalgamation, demerger, merger or corporate reconstruction.

 

(b)

Paragraph (a) does not apply to any solvent reorganisation of a Group Member (other than an Obligor):

 

  (i)

that is:

 

  (A)

not resulting from any actual or anticipated financial difficulties;

 

  (B)

(in the case of a merger or corporate reconstruction between a Group Member (other than an Obligor) with another person that is not a Group Member) such Group Member will be the surviving entity assuming all the assets of that other person; and

 

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  (C)

does not have or is not reasonably likely to have a Material Adverse Effect; or

 

  (ii)

any amalgamation, demerger, merger or corporate reconstruction entered into with the prior written consent of the Agent (acting on the instructions of the Majority Lenders).

 

23.11

Change of business

The Borrower shall procure that no substantial change is made to the general nature of the business of the Group (as a whole) from that carried on at the Signing Date.

 

23.12

Insurance

 

(a)

The Borrower and the Guarantor shall (and the Borrower shall ensure that each member of the Group will) maintain insurances on and in relation to its business and assets against those risks and to the extent as is usual for companies carrying on the same or substantially similar business located in the same or a similar location.

 

(b)

All insurances must be with reputable independent insurance companies or underwriters.

 

23.13

Acquisitions and Joint Ventures

 

(a)

Except as permitted under paragraph (b) below, neither the Borrower nor the Guarantor shall (and the Company shall ensure that no other member of the Group will):

 

  (i)

acquire a company or any shares or securities or a business or undertaking (or, in each case, any interest in any of them);

 

  (ii)

enter into, invest in or acquire any shares, stocks, securities or other interest in any Joint Venture; or

 

  (iii)

enter into, invest in, or otherwise acquire any interest in, transfer any assets or lend to or guarantee or give an indemnity for or give security for the obligations of a Joint Venture or maintain the solvency of or provide working capital to any Joint Venture; or

 

  (iv)

incorporate a company.

 

(b)

Paragraph (a) above does not apply to an acquisition of a company, of shares, securities or a business or undertaking (or, in each case, any interest in any of them) or the incorporation of a company which is a Permitted Acquisition or a Permitted Joint Venture.

 

23.14

Preservation of assets

The Borrower and the Guarantor shall (and the Borrower shall ensure that each other Group Member will) maintain in good working order and condition (ordinary wear and tear excepted) all of its assets necessary or desirable in the conduct of its business where failure to do so has or is reasonably likely to have a Material Adverse Effect.

 

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23.15

Environmental compliance

The Borrower and the Guarantor shall (and the Borrower shall ensure that each Group Member will):

 

  (a)

comply with all Environmental Law;

 

  (b)

obtain, maintain and ensure compliance with all requisite Environmental Permits;

 

  (c)

implement procedures to monitor compliance with and to prevent liability under any Environmental Law,

where failure to do so has or is reasonably likely to have a Material Adverse Effect.

 

23.16

Environmental Claims

The Borrower and the Guarantor shall, promptly upon becoming aware of the same, inform the Agent in writing of:

 

  (a)

any Environmental Claim against any Group Member which is current, pending or threatened; and

 

  (b)

any facts or circumstances which are reasonably likely to result in any Environmental Claim being commenced or threatened against any Group Member,

where the claim, if determined against that Group Member, has or is reasonably likely to have a Material Adverse Effect.

 

23.17

Sanctions, anti-corruption, anti-money laundering and anti-terrorism

 

(a)

The Company shall not (and the Company shall ensure that no other Obligors, their respective Subsidiaries or Group Members will) contract, enter into any arrangements, transactions or agreements or otherwise establish any form of relationships with (i) any Asset Freeze Target, (ii) any other Sanctioned Person in violation of Sanctions or (iii) any Sanctioned Country or in any Sanctioned Country.

 

(b)

Each Obligor party to this Agreement shall ensure (and each Obligor shall ensure that each of the other Obligors, each of their respective Subsidiaries, Group Members will ensure) that it shall not and shall not permit or authorise any other person to directly or indirectly use, lend, make payments of, contribute or otherwise make available all or any part of the proceeds of any financing or any transactions contemplated by or provided under or in connection with the Finance Documents to fund any trade, business or other activities:

 

  (i)

either directly or indirectly involving or for the benefit of (i) any Asset Freeze Target, (ii) any other Sanctioned Person in violation of Sanctions or (iii) any Sanctioned Country;

 

  (ii)

for the purpose of funding, financing or facilitating any activities, business or transaction of or with (i) any Asset Freeze Target, (ii) any other Sanctioned Person in violation of Sanctions, or (iii) in any Sanctioned Country;

 

  (iii)

in any manner that might result in any Obligor, any of its Affiliates, Group Members, or any member of the Bank Group being in breach of any Sanctions or becoming a Sanctioned Person or permit or authorise any other person to do so; or

 

  (iv)

in a way that could reasonably be expected to (either directly or indirectly) result in an Obligor, any of its Affiliates, Group Members or any member of the Bank Group being in breach of any Anti-Corruption Laws or AML/CTF Laws.

 

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(c)

The Company shall not (and the Company shall ensure that none of the other Obligors, their respective Subsidiaries or Group Members will) fund directly or indirectly all or part of any payment pursuant to the Finance Documents or discharge any obligation under the Finance Documents out of proceeds derived from or otherwise directly or indirectly sourced from:

 

  (i)

(i) any Asset Freeze Target, (ii) any other Sanctioned Person in violation of Sanctions or (iii) any Sanctioned Country;

 

  (ii)

any sanctioned or sanctionable activity or whose source is sanctioned; or

 

  (iii)

any action or status which is prohibited by, or might cause any Obligor, any of their respective Affiliates, Group Members, any member of the Bank Group or any other person (including any person participating in the Loans, whether as administrative agent, arranger, issuing bank, lender, underwriter, advisor, investor or otherwise) to be in breach of, any Sanctions.

 

(d)

The Company shall not (and the Company shall ensure that none of the other Obligors, their respective Subsidiaries or Group Members will) directly or indirectly use the proceeds of any Facility (including the furtherance of an offer, payment, promise to pay, or authorisation of the payment or giving of money, or anything else of value to any person) for any purpose which would breach applicable Anti-Corruption Laws or AML/CTF Laws.

 

(e)

The Company shall, and the Company shall ensure that each of the other Obligors, their respective Subsidiaries, and Group Members and their respective directors, Affiliates, officers, employees, and agents will, conduct its businesses in compliance with applicable Anti-Corruption Laws and AML/CTF Laws and not in breach of any Sanctions, and maintain and enforce policies and procedures designed to promote and achieve compliance with such laws and to avoid breaching any Sanctions.

 

23.18

Taxation

 

(a)

The Borrower and the Guarantor shall (and the Company shall ensure that each Group Member will) pay and discharge all Taxes imposed upon it or its assets within the time period allowed without incurring penalties unless and only to the extent that:

 

  (i)

such payment is being contested in good faith;

 

  (ii)

adequate reserves are being maintained for those Taxes and the costs required to contest them which have been disclosed in its latest financial statements delivered to the Agent under Clause 21.1 (Financial statements); and

 

  (iii)

such payment can be lawfully withheld and failure to pay those Taxes does not have or is not reasonably likely to have a Material Adverse Effect.

 

(b)

No Group Member may change its residence for Tax purposes.

 

23.19

Pari passu ranking

The Borrower and the Guarantor shall ensure that at all times any unsecured and unsubordinated claims of a Secured Party against it under the Finance Documents rank at least pari passu with the claims of all its other unsecured and unsubordinated creditors except those creditors whose claims are mandatorily preferred by laws of general application to companies.

 

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23.20

Access

The Borrower and the Guarantor shall, and the Borrower shall ensure that each Group Member will, (not more than once in every Financial Year unless the Agent reasonably suspects a Default is continuing or may occur) permit the Agent and/or the Security Agent and/or if reasonably necessary, any accountants or other professional advisers and contractors of the Agent and/or the Security Agent free access at all reasonable times and on reasonable notice at the risk and cost of the Obligor or Borrower to (a) following the occurrence of an Event of Default or where the Lenders reasonably suspect an Event of Default has occurred or is likely to occur, the premises, assets, books, accounts and records of each member of the Group and (b) meet and discuss matters with management of the Group following reasonable notice and at agreed times.

 

23.21

Subordination

The Borrower must ensure that all present or future Subordinated Debt shall be, or become subordinated to, the Facilities by procuring that any creditor in respect of such Subordinated Debt becomes a party to the Subordination Deed as a “Subordinated Creditor” (as defined therein) on or before the Signing Date (or, if any Subordinated Debt is incurred after the Signing Date, by no later than the date on which such Subordinated Debt is incurred, in each case on terms as set out in the Subordination Deed) and in each case provided that Subordinated Debt falling under limb (c) of the defined term shall only be required to be subordinated to the Facilities following an Event of Default that is continuing.

 

23.22

Centre of main interests and establishments

The Borrower must procure that each Obligor shall maintain its centre of main interest (as that term is used in Article 3(1) of Regulation (EU) 2015/848 of 20 May 2015 on insolvency proceedings (recast) (the “Regulation”)) and/or (where relevant) the Regulation as it may form part the laws of the United Kingdom (“COMI”) in its Original Jurisdiction and shall not register any “establishment” (as that term is used in Article 2(10) of the Regulation) in any other jurisdiction.

 

23.23

Further assurance

 

(a)

The Borrower shall (and the Borrower shall procure that each other Group Member will) promptly do all such acts or execute all such documents (including assignments, transfers, mortgages, charges, notices and instructions) as the Security Agent may reasonably specify (and in such form as the Security Agent may reasonably require in favour of the Security Agent or its nominee(s)):

 

  (i)

to perfect the Security created or intended to be created under or evidenced by the Security Documents (which may include the execution of a mortgage, charge, assignment or other Security over all or any of the assets which are, or are intended to be, the subject of the Transaction Security) or for the exercise of any rights, powers and remedies of the Security Agent or the Secured Parties provided by or pursuant to the Finance Documents or by law;

 

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  (ii)

to confer on the Security Agent or confer on the Secured Parties Security over any property and assets of that Obligor located in any jurisdiction equivalent or similar to the Security intended to be conferred by or pursuant to the Security Documents; and/or

 

  (iii)

to facilitate the realisation of the assets which are, or are intended to be, the subject of the Transaction Security.

 

(b)

The Borrower shall (and the Borrower shall procure that each Group Member will) take all such action as is available to it (including making all filings and registrations) as may be necessary for the purpose of the creation, perfection, protection or maintenance of any Security conferred or intended to be conferred on the Security Agent or the Secured Parties by or pursuant to the Finance Documents.

 

23.24

NDRC reporting

To the extent that the Facilities have been registered with NDRC in accordance with the NDRC Order No. 56, the Borrower shall:

 

  (a)

procure that any reporting requirements under NDRC Order No. 56 in relation to the Facilities are complied with, and deliver to the Agent a copy of the evidence of the completion of such reporting requirement (which evidence may be in the form of a screenshot of the NDRC system showing that such reporting has been duly made);

 

  (b)

(if applicable) submit an amendment application to the NDRC prior to the occurrence of any following circumstances:

 

  (i)

any change in the currency of the Facilities to be utilised;

 

  (ii)

change of the type of debt instrument;

 

  (iii)

any material change in the purpose of the Facilities; and

 

  (iv)

any other circumstances which may result in any material amendment and/or update of the items recorded in the NDRC Registration Certificate from time to time being required under the NDRC Order No. 56,

(any of the above, an “NDRC Approval Change”); and

 

  (c)

(if applicable) deliver to the Agent a copy of the updated Enterprise Foreign Debt Filing/Registration (企业借用外债审核登记证明) or such other evidence that the NDRC Approval Change has been approved by NDRC.

 

23.25

Interest reserve

 

(a)

The Borrower shall maintain each of the Interest Reserve Accounts with the Account Bank and provide to the Agent, promptly on its request, any information relating to any Interest Reserve Account including the balance standing to its credit and account statements.

 

(b)

The Borrower shall maintain, in respect of any day on and following the Initial Utilisation Date:

 

  (i)

in the Interest Reserve Account (EUR), an aggregate amount equal to or greater than the Interest Reserve Amount (EUR); and

 

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  (ii)

in the Interest Reserve Account (USD), an aggregate amount equal to or greater than the Interest Reserve Amount (USD),

in respect of that day.

 

(c)

At any time when no Event of Default has occurred, the Borrower may withdraw or transfer any amount standing to the credit of any of the Interest Reserve Accounts for the purposes of paying any amount due from it under the Finance Documents, provided that the balance standing to the credit of any of the Interest Reserve Accounts will not be less than any applicable Interest Reserve Amount, immediately after such withdrawal or transfer provided further that no Interest Reserve Account shall go into overdraft as a result of such withdrawal or transfer.

 

(d)

Where an Event of Default has occurred, the Security Agent may, and is hereby unconditionally and irrevocably authorised by the Borrower, to have sole signing rights in respect of each of the Interest Reserve Accounts and to operate each of the Interest Reserve Accounts, including giving or withdrawal instructions to the Account Bank for the withdrawal or transfer of any amount from each of the Interest Reserve Accounts for the purpose of satisfying any amount that is then due and payable by the Borrower under the Finance Documents.

 

23.26

BELR

The Borrower shall supply to a Lender which is an authorized institution (within the meaning of the Banking Ordinance (Cap. 155 of the Laws of Hong Kong)), immediately, notice in writing if, to the best of its knowledge, it is or becomes in any way related or connected (within the meaning of the Banking (Exposure Limits) Rules (Cap. 155S of the laws of Hong Kong) and regulations in respect thereof in Hong Kong) to the Bank Group of which that Lender is a member and, in the absence of any such notice, that Lender may assume that the Borrower is not so related or connected.

 

23.27

Loan proceeds to be applied towards PPAB Group

The Borrower shall, within 30 days of the Utilisation Date of a Loan, apply an amount not less than 50 per cent. of the proceeds of that Loan to the Guarantor for use by any member of the PPAB Group towards a purpose that is compliant with Clause 43 (Green Loan).

 

24.

EVENTS OF DEFAULT

Each of the events or circumstances set out in Clause 24 is an Event of Default (save for Clause 24.19 (Acceleration)).

 

24.1

Non-payment

An Obligor or the Keepwell Provider does not pay on the due date any amount payable pursuant to a Finance Document at the place at and in the currency in which it is expressed to be payable unless:

 

  (a)

its failure to pay is caused by:

 

  (i)

administrative or technical error; or

 

  (ii)

a Disruption Event; and

 

  (b)

payment is made within three (3) Business Days of its due date.

 

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24.2

Financial covenants

Any requirement of Clause 22 (Financial covenants) of this Agreement or Clause 6 (Financial covenants) under the Keepwell Deed is not satisfied.

 

24.3

Other obligations

 

(a)

An Obligor, the Keepwell Provider or a Subordinated Creditor does not comply with any provision of the Finance Documents (other than those referred to in Clause 24.1 (Non-payment), Clause 24.2 (Financial covenants) of this Agreement and Clause 6 (Financial covenants) under the Keepwell Deed).

 

(b)

No Event of Default under paragraph (a) above will occur if the failure to comply is capable of remedy and is remedied within 10 Business Days of the earlier of (i) the Agent giving notice to the Borrower and (ii) the Borrower becoming aware of the failure to comply.

 

24.4

Misrepresentation

 

(a)

Any representation or statement made or deemed to be made by an Obligor, the Keepwell Provider or a Subordinated Creditor in the Finance Documents to which it is a party or any other document delivered by or on behalf of any Obligor, the Keepwell Provider (for the avoidance of doubt, to be limited to the Keepwell Deed and any other documents delivered by or on behalf of the Keepwell Provider under the Keepwell Deed) or Subordinated Creditor under or in connection with any Finance Document is or proves to have been incorrect or misleading in any material respect when made or deemed to be made.

 

24.5

Cross default

 

(a)

Any Financial Indebtedness of any Group Member, Geely Automobile, Geely International, the Keepwell Provider or any other Obligor is not paid when due nor within any originally applicable grace period.

 

(b)

Paragraph (a) above shall not apply in respect of trade or other receivables which may from time to time be outstanding from any Group Member for the supply of goods and services to a Group Member, which are due and payable to any person:

 

  (i)

which (as at the time such trade or other receivables arise) is its Affiliate; or

 

  (ii)

in which (as at the time such trade or other receivables arise) Mr. Li directly or indirectly holds at least 51 per cent. of the shares or equity interests or which is otherwise Controlled by Mr. Li,

including any such person which is a supplier to the Guarantor, including for the avoidance of doubt Asia Euro Automobile Manufacturing (Taizhou) Co. Ltd., in each case provided that no event of default (however described) has been called by the relevant creditor and payment has not been formally demanded by the relevant creditor.

 

(c)

Any Financial Indebtedness of any Group Member, Geely Automobile, Geely International, The Keepwell Provider or any other Obligor is declared to be or otherwise becomes due and payable prior to its specified maturity as a result of an event of default (however described). This paragraph (b) shall not apply in respect of any Financial Indebtedness incurred by any Group Member owing to any Restricted Person to the extent such Financial Indebtedness is subordinated to the Facilities on terms satisfactory to the Lenders.

 

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(d)

Any c