Exhibit 10.2

LOAN AGREEMENT

Dated 15 December 2017

between

TITAN AMERICA LLC

as Borrower

and

TITAN GLOBAL FINANCE PLC

as Lender

 

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CONTENTS

 

Clause				Page
1.		Definitions			3
2.		The Loan			7
3.		Purpose			8
4.		Borrower’s account			8
5.		Repayment			8
6.		Interest			8
7.		Payments			8
8.		Representations, Warranties and Undertakings			9
9.		Events of Default			10
10.		Miscellaneous			11
11.		Assignment			11
12.		Governing law and Jurisdiction			11

 

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THIS AGREEMENT is dated 15^th December 2017.

BETWEEN:

 

(1)	TITAN AMERICA LLC, a company organised and existing under the laws of the United States of America, with its head office and registered address at 1151 Azalea Garden Road, Norfolk Virginia, 23502, U.S.A., as Borrower (the Borrower); and

 

(2)	TITAN GLOBAL FINANCE PLC, a company organised and existing under the laws of England, with its registered office at Shed 12, King George Dock, Hull HU9 5PR, United Kingdom, with registered number 6199510, as Lender (the Lender).

WHEREAS:

 

(A)	The Borrower is an affiliate of the Lender.

 

(B)	The Lender has agreed to make available to the Borrower a loan of EUR 150,000,000.-

IT IS HEREBY AGREED:

 

1.	DEFINITIONS

In this Agreement:

“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;

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

 

(a)

if on that day a payment in or a purchase of a currency (other than Euro) is to be made, the principal financial centre of the country of that currency; or

 

(b)

if on that day a payment in or a purchase of Euro is to be made, which is also a TARGET Day.

“Disruption Event” means either or both of:

(a) a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with the Loan which disruption is not caused by, and is beyond the control of the Borrower and/or the Lender; 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 the Borrower and/or the Lender, preventing them from performing its payment obligations or from communicating with each other in accordance with the terms of the Loan.

“Euro”, “EUR” and “€” denote the single currency unit of the Participating Member States of the European Monetary Union.

“Finance Documents” means this agreement and any other document designated as such by the Lender and the Borrower.

 

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“Group” means the Borrower and its Subsidiaries for the time being;

“Holding Company” means, in relation to a company or corporation, any other company or corporation in respect of which it is a Subsidiary;

“Indebtedness for Borrowed Money” means any indebtedness (whether being principal, interest, or other amounts) for or in respect of any notes, bonds, debentures, debenture stock, loan stock or other securities or any borrowed money or any liability under or in respect of any acceptance or acceptance credit other than intra-Group indebtedness.

“Indebtedness” means any indebtedness of any person for money borrowed or raised including (without limitation) any indebtedness for or in respect of:

(a) amounts raised by acceptance under any acceptance credit facility;

(b) amounts raised under any note purchase facility;

(c) the amount of any liability in respect of any lease or hire purchase contract which would, in accordance with applicable law and generally accepted accounting principles, be treated as a finance or capital lease;

(d) the amount of any liability in respect of any purchase price for assets or services the payment of which is deferred for a period of 60 days; and

(e) amounts raised under any other transaction (including, without limitation, any forward sale or purchase agreement) having the commercial effect of a borrowing.

“Material Adverse Effect”: any event or circumstance which, in the opinion of the Lender:

(a) is likely to materially and adversely affect the Borrower’s ability to perform or otherwise comply with all or any of its material obligations under the Finance Documents;

(b) is likely to materially and adversely affect the business, operations, property, condition (financial or otherwise) or prospects of the Borrower; or

(c) is likely to result in any Finance Document not being legal, valid and binding on, and enforceable in accordance with its terms against, the Borrower.

“Participating Member State” means any member state of the European Communities that adopts or has adopted the Euro as its lawful currency in accordance with legislation of the European Community relating to Economic and Monetary Union.

“Permitted Reorganization” means

(a) an amalgamation, demerger, merger, consolidation, reconstruction or a transaction involving the transfer of shares (‘the ‘Reorganization’) on a solvent basis of:

 

1.

Any member of Titan Group (other than the Borrower); or

 

2.

The Borrower, provided that:

 

i.

The entity resulting from or surviving the Reorganisation is the Borrower; and

 

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ii.

After such transaction the Borrower has retained title in and continues to hold all or substantially all of its assets and property existing prior to that transaction; and

 

iii.

The relevant transaction involving the Borrower is confirmed by an opinion of counsel satisfactory to the Lender to constitute a valid Reorganization under the laws of the relevant jurisdiction.

(b) the solvent liquidation of any member of Titan Group (other than the Borrower)

“Project Finance Company” means any company, partnership or other legal entity (whether or not a member of the Group) where its (or one or more of its Subsidiaries’) principal assets and business are constituted by the ownership, creation, exploitation, acquisition, development and/or operation of an asset or project whether directly or indirectly, and where none of its indebtedness or that of one or more of its Subsidiaries in respect of the financing of such ownership, creation, exploitation, acquisition, development and/or operation of an asset or project benefits from any recourse whatsoever to any member of the Group other than:

 

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(a) the assets comprised in the project; or

(b) the Project Finance Company itself or another Project Finance Company; or

(c) to such other member of the Group’s shareholding, investment or other interest in such company, partnership or legal entity; or

(d) to such other member of the Group under any form of assurance, undertaking or support, where:

 

(i)

the recourse is limited to a claim for damages (not being liquidated damages or damages required to be calculated in a specified way) for breach of any obligation; and

 

(ii)

the obligation is not in any way a guarantee, indemnity or other assurance against financial loss or an obligation to ensure compliance by another with a financial ratio or other test of financial condition.

“Project Finance Indebtedness” means any indebtedness incurred to finance the ownership, creation, exploitation, acquisition, construction, development and/or operation of an asset or project:

(a) which is incurred by a Project Finance Company; or

(b) in respect of which the person or persons to whom such indebtedness is or may be owed by the relevant debtor (whether or not a member of the Group) have no recourse whatsoever for the repayment of or payment of any sum relating to such indebtedness to any member of the Group other than recourse to:

 

(i)

such debtor or any one or more of its Subsidiaries for amounts limited to the aggregate cash flow or net cash flow (other than historic cash flow or historic net cash flow) from such asset; and/or

 

(ii)

such debtor or any one or more of its Subsidiaries or any shareholder of such debtor for the purpose only of enabling amounts to be claimed in respect of such indebtedness in an enforcement of any encumbrance given by such debtor over the assets comprised in the project (or given by any shareholder of such debtor over its investment in such debtor) or the income, cash flow or other proceeds deriving therefrom to secure such indebtedness provided that (A) the extent of such recourse to such debtor or any one or more of its Subsidiaries or any shareholder of such debtor or any one or more of its Subsidiaries or any shareholder of such debtor is limited solely to the amount of any recoveries made on any such enforcement, and (B) if the assets comprised in the project do not represent all or substantially all of the assets of the Project Finance Company’s business, such person or persons are not entitled, by virtue of any right or claim arising out of or in connection with such indebtedness, to commence proceedings for the winding up or dissolution of the debtor or the shareholder of such debtor or to appoint or procure the appointment of any receiver, trustee or similar person or officer in respect of the debtor or any of its assets (save for the assets such subject of such encumbrance).

“Relevant Indebtedness” means any Indebtedness which is in the form of or represented by any bond, note, debenture, debenture stock, loan stock, certificate or other instrument which is, or is capable of being, listed, quoted or traded on any stock exchange or in any securities market (including, without limitation, any over-the counter market) other than Project Finance indebtedness and Securitization Indebtedness.

 

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“Securitization Indebtedness” means indebtedness issued pursuant to a securitization program (including for the avoidance of doubt under Greek law 3156/2003 on securitization of receivables) relating to trade receivables operated by any member of the Group where the recourse of the holders of such debt is limited to the proceeds of and recoveries from such receivables and which involves the sale of trade receivables on terms whereby there is no recourse to the relevant member of the Group selling such receivables other than customary recourse limited to damages for breach of a warranty relating to the receivables or breach of undertaking relating to the origination, management and/or collection of the receivables negotiated on an arm’s length basis.

“Security Interest” means any mortgage, mortgage pre-notice (under articles 1274 et seq. of the Greek Civil Code), charge, pledge, lien or other security interest including, without limitation, anything analogous to any of the foregoing under the laws of any jurisdiction.

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

(a) which is controlled, directly or indirectly, solely by the first mentioned company or corporation;

(b) more than half the issued share capital of which is beneficially owned, directly or indirectly, by the first mentioned company or corporation; or

(c) which is a Subsidiary of another Subsidiary of the first mentioned company or corporation, and for this purpose, a company or corporation shall be treated as being controlled by another if that other company or corporation is able to direct its affairs and/or to control the composition of its board of directors or equivalent body.

“TARGET” means the Trans-European Automated Real-time Gross Settlement Express Transfer payment system which utilises interlinked national real time gross settlement systems and the European Central Bank’s payment mechanism and which began operations on 4 January 1999.

“TARGET2” means the Trans-European Automated Real-time Gross Settlement Express Transfer payment system which utilises a single shared platform and which was launched on 19 November 2007.

“TARGET Day” means:

 

(a)

until such time as TARGET is permanently closed down and ceases operations any day on which both TARGET and TARGET2 are; and

 

(b)

following such time as TARGET is permanently closed down and ceased operations, any day on which TARGET2 is,

open for the settlement of payments in Euro.

 

2.

THE LOAN

 

(a)

The Lender will advance to the Borrower on 15th December 2017, a loan (the “Loan”) in an amount of EUR 150,000,000 (the “Loan Amount”).

 

(b)

The Loan is denominated in Euros.

 

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3.

PURPOSE

The Loan may be used for general corporate purposes.

 

4.	BORROWER’S ACCOUNT

The Loan amount will be credited to the account number with IBAN GB39MIDL40051574121733 in the name of the Borrower at HSBC BANK PLC, London Branch (S.W.I.F.T.: MIDLGB22XXX) (or such other account located in England as the Borrower notifies to the Lender in writing from time to time) (the “Borrower’s Account”).

 

5.

REPAYMENT

(a) The Loan shall be repaid by the Borrower on 15/11/2024 (the “Repayment Date”).

(b) The Borrower may repay or prepay the Loan in whole or in part at any time without repayment or prepayment penalty, subject to a prior notice of not less than three Business Days given by the Borrower to the Lender.

 

6.

INTEREST

 

(a)

The Borrower will pay interest on the Loan at a rate determined by the Lender to be 2.52 per cent. per annum until 16/7/2021 and 2.60 per cent per annum from 16/7/2021 until 16/11/2024

(the “Lending Rate”)

 

(b)

Interest will accrue from day to day on the outstanding amount of the Loan and be payable in arrear on the last day of each successive period (each an “Interest Period”). The first Interest Period commences on the advance of the Loan and is expiring on 16/5/2018. Each subsequent Interest Period commences at the end of the preceding one and will be for six months, namely 16/11/2018, 16/05/2019, 15/11/2019, 15/05/2020, 16/11/2020, 17/05/2021, 16/11/2021, 16/05/2022, 16/11/2022, 16/05/2023, 16/11/2023, 16/05/2024, 15/11/2024. Interest accrued to the date on which the Loan is prepaid or repaid will be paid on the prepayment or repayment date. Interest for all interest periods is calculated on an actual/actual basis.

 

(c)

Interest will also accrue on any overdue sum and will be payable (both before and after judgment) on demand at the aggregate of the Lending Rate and the rate representing the Lender’s additional cost of funding the overdue sum from such sources and in respect of such periods as the Lender may choose. The Lender will specify in its demand the amount of such interest and the manner in which it was calculated.

 

7.

PAYMENTS

 

(a)

All payments by the parties are to be made in immediately available funds, in the relevant currency and for value on the due date to a designated account, such account to have been notified in writing to the other party at least three Business Days in advance of the relevant payment. Unless the Lender advises the Borrower in writing otherwise, the account into which the Borrower must make all payments to the Lender (including, for the avoidance of doubt, payments of interest) is account number 68015949 (IBAN No. GB51 MIDL 4005 1568 0159 49) in the name of the Lender at the HSBC BANK PLC, London Branch (or such other account located in England as the Lender notifies to the Borrower in writing from time to time).

 

(b)

The relevant currency is:

 

(i)

in respect of interest, Euros;

 

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(ii)

in respect of a repayment or prepayment of any principal amount, Euros;

 

(iii)

in respect of amounts payable by the Borrower to the Lender hereunder in respect of taxes, fees, costs and expenses, the currency in which such amounts are incurred by the Lender; and

 

(iv)

in respect of each other amount, Euros.

 

(c)

The Borrower must make all payments without set-off or counterclaim and without any deduction. If the Borrower is required to make any deductions, then it must:

 

(i)

make the minimum deduction allowed by law and must make any payment required in connection with that deduction within the time allowed by law; and

 

(ii)

pay at the same time as the time of the payment additional amounts to ensure receipt by the Lender of the full amount which the Lender would have received but for such deduction.

 

(d)

The Borrower will pay:

 

(i)

all funding breakage costs of the Lender and any stamp duties in connection with this Agreement;

 

(ii)

such amount as is necessary to indemnify the Lender against the consequences of any non-compliance or default by the Borrower;

 

(iii)

all costs including legal fees incurred by the Lender in connection with the enforcement of this Agreement; and

 

(iv)

losses flowing from any judgment or claim being payable in a different currency from that agreed hereunder.

 

8.	REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS

The Borrower represents and warrants, on the date of this agreement that:

(a) all necessary corporate and other action has been taken to authorise it to enter into the Finance Documents and perform the transactions contemplated in them;

(b) its obligations under the Finance Documents are legal, valid, binding and enforceable.

(c) at all times carry on and conduct its affairs and procure its subsidiaries to carry on and conduct their respective affairs in a proper and efficient manner.

(d) give or procure to be given to the Lender such opinions, certificates, information and evidence as it shall reasonably require and in such form as it shall require.

(e) cause to be prepared and certified by the Auditors in respect of each financial accounting period accounts in such form as will comply with all relevant legal and accounting requirements.

(f) at all times keep and procure its subsidiaries to keep proper books of accounts.

 

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9.	EVENTS OF DEFAULT

 

(a)

Non-payment

The Borrower does not pay on due date any amount payable pursuant to this Loan Agreement at the place and in the currency in which it is expressed to be payable unless:

(1) its failure to pay is caused by:

administrative or technical error; or

a Disruption Event; and

(2) payment is made within three Business Days of its due date

 

(b)

Other obligations

The Borrower fails to perform or observe any of its other obligations under the Loan unless this failure is remedied within 30 Business Days from the date on which the Borrower becomes aware of this failure.

 

(c)

Cross-acceleration

Any Indebtedness for Borrowed Money of the Borrower or of any of its subsidiaries becomes due and payable prematurely by reason of an event of default or fails to make any payment in respect of any Indebtedness for Borrowed Money or any security given by the Borrower becomes enforceable and any legal action is taken to enforce the same, unless the Indebtedness for Borrowed Money or other relative liability due and unpaid, either alone or when aggregated (without duplication) with other amounts of Indebtedness for Borrowed Money and/or other liabilities due and unpaid relative to all other events specified in this 9.(c) amounts to at least EUR 25,000,000 (or its equivalent in any other currency)

 

(d)

Ownership

The Borrower ceases to own, directly or indirectly, 100% of the outstanding equity interest of the Lender.

 

(e)

Cessation of business

The Borrower ceases or threatens to cease to carry on the whole or substantially the whole of its business, save for the purposes of (and followed by) a Permitted Reorganization.

 

(f)

Litigation

The Borrower initiates or consents to judicial proceedings relating to itself under any applicable liquidation, insolvency, composition, reorganization or other similar laws (including the obtaining of a moratorium) or makes a conveyance or assignment for the benefit of, or enters into any composition or other arrangement with, its creditors generally (or any class of its creditors) or any meeting is convened to consider a proposal for an arrangement or composition with its creditors generally (or any class of its creditors)

 

(g)

Negative Pledge

So long as the Loan remains outstanding, the Borrower shall not and shall procure that none of its Subsidiaries will, create or permit to subsist any Security Interest upon the whole or any part of its present or future undertaking, assets or revenues (including uncalled capital) to secure any Relevant Indebtedness or any guarantee of Relevant Indebtedness without (a) at the same time or prior thereto securing the Loan equally and rateably therewith to the satisfaction of the Lender or (b) providing such other security or other arrangement which in the opinion of the Lender shall not be materially less beneficial to the Lender.

 

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(h) Pari passu ranking

The Borrower’s payment obligations under the Loan rank at least pari passu with the claims of all it other unsecured and unsubordinated creditors, except for obligations mandatorily preferred by law applying to companies generally

(i) Market Adverse Effect

Any event occurs (or circumstances exist) which in the opinion of the Lender, has or it is likely to have a Material Adverse Effect

 

10.	MISCELLANEOUS

 

a)

A certificate, or notice from the Lender as to the Lending Rate and/or the amount at any time due from the Borrower to the Lender under this Agreement will, in the absence of manifest error be conclusive.

 

b)

This Agreement may be executed in any number of counterparts. This has the same effect as if the signatures on the counterparts were on a single copy of this Agreement.

 

c)

Any notice given in connection with this Agreement must be in English.

 

d)

Any communication in connection with this Agreement must be in writing and, unless otherwise stated, may be given in person, by post or fax and, unless the Lender specifies otherwise, by e-mail or other electronic communication (which will be treated as being in writing).

 

e)

The Lender will provide the Borrower with a duly completed “Claim for the Application of the Double Taxation Convention between Greece and the UK”.

 

11.	ASSIGNMENT

The Borrower may not assign or transfer all or any of its rights under this Agreement without the consent of the Lender.

 

12.	GOVERNING LAW AND JURISDICTION

This Agreement will be governed by and shall be construed in accordance with English law and the Lender hereby submits to the jurisdiction of the English courts for all purposes relating to this Agreement.

SIGNED on behalf of the Borrower in London, U.K. and on behalf of the Lender in Norfolk, Virginia, U.S.A.

 

TITAN AMERICA LLC.
By:		/s/ John W. Christy
Name:		John W. Christy
Title:		Chief Legal Counsel
By:		/s/ Christopher R. Chater
Name:		Christopher R. Chater
Title:		Chief Accounting & Treasury Officer

 

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TITAN GLOBAL FINANCE PLC
By:		/s/ Lawrence H. Wilt, Jr.
Name:		Lawrence H. Wilt, Jr.
Title:		Director
By:		/s/ Karen V. Fittler
Name:		Karen Virginia Fittler
Title:		Director

 

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