Amendment Deed (relating to a Global Deed of Discharge and Release dated 3 November 2022)
Exhibit 10.15.1
Dated 21 April 2023
Amendment
Deed
(relating to a Global Deed of Discharge and Release dated 3 November 2022)
between
Wilmington Trust (London) Limited
as Common Security Agent
Wilmington Trust (London) Limited
as DB Facility Agent
Deutsche Bank AG, London Branch
as DB Facility Lender
Xxxxxxx European Specialty Lending Company II S.à. x.x.
as Xxxxxxx Xxxxxxxx Xxxxxx
and
The
companies listed in Schedule 1
as Released Parties
White & Case Pte. Ltd.
00 Xxxxxx Xxxxxx #00-00
CapitaSpring
Singapore 048948
Table of Contents
| Page | ||
| 1. | Interpretation | 2 |
| 2. | Amendment of the Release Deed | 3 |
| 3. | Undertaking on Near NA | 4 |
| 4. | Representations by the Borrower | 4 |
| 5. | Incorporation of Terms | 4 |
| 6. | Amendments and Waivers | 4 |
| 7. | Governing Law | 4 |
| Schedule 1 Released Parties | 5 | |
(i)
This Deed is made on 21 April 2023
Between:
| (1) | Wilmington Trust (London) Limited as security trustee for the Secured Parties (as defined in the Intercreditor Agreement) (the “Common Security Agent”); |
| (2) | Wilmington Trust (London) Limited as DB Facility Agent (the “DB Facility Agent”); |
| (3) | Deutsche Bank AG, London Branch as DB Facility Lender (the “DB Facility Lender”); |
| (4) | Xxxxxxx European Specialty Lending Company II S.à. x.x. as Xxxxxxx Xxxxxxxx Xxxxxx (the “Xxxxxxx Facility Lender”); and |
| (5) | The Companies listed in Schedule 1 (Released Parties) (the “Released Parties”). |
Recitals:
| (A) | Each Party has entered into a global deed of discharge and release dated 3 November 2022 (the “Release Deed”), pursuant to which the Borrower has agreed to pay to the DB Facility Lender and the Xxxxxxx Facility Lender, the Final Settlement Deferred Payment Amount (DB Facility) and the Final Settlement Deferred Payment Amount (Xxxxxxx Facility) respectively. |
| (B) | The Parties have agreed to enter into this Deed to give effect to the amendments to the Release Deed set out in this Deed. |
| (C) | It is intended that this document takes effect as a deed notwithstanding the fact that a Party may only execute this document under hand. |
It is agreed as follows:
| 1. | Interpretation |
| 1.1 | Definitions |
In this Deed:
“Near NA” means Near North America, Inc., a corporation incorporated under the laws of Delaware, United States of America with registration number 00-0000000.
“New Deferred Payment Deadline” means 5:00 p.m. (London time) on 24 April 2023.
“New Final Settlement Deferred Payment Amount (DB Facility)” means US$1,650,000, which amount includes US$50,000 as reimbursement for fees and expenses of legal counsel of the DB Facility Lender.
“New Final Settlement Deferred Payment Amount (Xxxxxxx Facility)” means €910,454.03.
“Party” means a party to this Deed.
| 1.2 | Incorporation of defined terms |
Unless a contrary indication appears, terms defined in the Release Deed (including by way of incorporation) have the same meaning in this Deed.
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| 1.3 | Third Party Rights |
| (a) | A person who is not party to this Deed has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce or to enjoy the benefit of any term of this Deed. |
| (b) | Notwithstanding any term of this Deed, the consent of any person who is not a Party is not required to rescind, vary or amend this Deed at any time. |
| 2. | Amendment of the Release Deed |
| 2.1 | Amendments |
With effect on and from the date of this Deed but subject to the conditions in Clause 2.3 (Non-payment on New Deferred Payment Deadline), each Party agrees to make the following amendments to the Release Deed:
| (a) | the following definitions shall replace the corresponding definitions in clause 1.1 (Definitions) of the Release Deed: |
““Deferred Payment Deadline” means 5:00 p.m. (London time) on 24 April 2023.
“Final Settlement Deferred Payment Amount (DB Facility)” means US$1,650,000, which amount includes US$50,000 as reimbursement for fees and expenses of legal counsel of the DB Facility Lender.
“Final Settlement Deferred Payment Amount (Xxxxxxx Facility)” means €910,454.03.”
| (b) | Clause 2(d)(i) (Settlement Conditions) of the Release Deed shall be deleted in its entirety and no amount shall be required to be deducted from the Final Settlement Deferred Payment Amount (Xxxxxxx Facility) in accordance with that provision. |
For the avoidance of doubt, each Party acknowledges that the Borrower has, as at the date of this Deed, paid the Final Settlement Initial Payment Amount (DB Facility) and the Final Settlement Initial Payment Amount (Xxxxxxx Facility) in accordance with the Release Deed notwithstanding any adjustment to the Final Settlement Deferred Payment Amount (DB Facility) or the Final Settlement Deferred Payment Amount (Xxxxxxx Facility) pursuant to this Deed.
| 2.2 | Continuing obligations |
Each Party agrees and acknowledges that, save as amended by this Deed, the Release Deed shall continue in full force and effect.
| 2.3 | Non-payment on New Deferred Payment Deadline |
If:
| (a) | the DB Facility Lender does not receive all of the New Final Settlement Deferred Payment Amount (DB Facility); or |
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| (b) | the Xxxxxxx Facility Lender does not receive all of the New Final Settlement Deferred Payment Amount (Xxxxxxx Facility), |
in each case, by the New Deferred Payment Deadline, this Clause 2 shall be deemed to have been not effective since the date of this Deed and each of the DB Facility Lender and the Xxxxxxx Facility Lender shall be entitled to exercise any of their respective rights and remedies as if the amendments to the Release Deed under this Clause 2 did not occur and the Final Settlement Deferred Payment Amount (DB Facility) and the Final Settlement Deferred Payment Amount (Xxxxxxx Facility) shall be paid by the Borrower in accordance with the Release Deed.
| 3. | Undertaking on Near NA |
| (a) | Near NA undertakes, on behalf of the Borrower, to pay to the DB Facility Lender the New Final Settlement Deferred Payment Amount (DB Facility) by the New Deferred Payment Deadline or the Final Settlement Deferred Payment Amount (DB Facility) by the Deferred Payment Deadline (as applicable). |
| (b) | With effect from the time of receipt by the DB Facility Lender of all of the New Final Settlement Deferred Payment Amount (DB Facility) or the Final Settlement Deferred Payment Amount (DB Facility) (as applicable), the DB Facility Lender unconditionally and irrevocably releases the Borrower from its payment obligation under paragraph (b) of clause 4.1 (Deferral of Settlement Amounts) of the Release Deed, to pay the Final Settlement Deferred Payment Amount (DB Facility). |
| 4. | Representations by the Borrower |
The Borrower makes the representations and warranties set out in clause 5 (Representations by the Borrower) of the Release Deed to each of the DB Facility Lender and the Xxxxxxx Facility Lender on the date of this Deed as if any reference therein to “this Deed” included a reference to this Deed.
| 5. | Incorporation of Terms |
Clauses 1.3 (Construction), 12 (Costs and Expenses), 15 (Assignments and Transfers), 16 (Partial Invalidity), 17 (Counterparts) and 19 (Enforcement) of the Release Deed shall be incorporated in this Deed as if set out in full herein mutatis mutandis and as if any reference therein to “this Deed” included a reference to this Deed.
| 6. | Amendments and Waivers |
Any term of this Deed may be amended or waived only with the consent of each Party.
| 7. | Governing Law |
This Deed and any non-contractual obligations arising out of or in connection with it are governed by English law.
In Witness whereof this Deed has been executed and delivered as a deed by the Released Parties and signed by the Common Security Agent, the DB Facility Agent, the DB Facility Lender and the Xxxxxxx Xxxxxxxx Xxxxxx on the date stated at the beginning of this Deed.
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Schedule 1
Released Parties
| Company | Jurisdiction of incorporation |
Company number | ||
| Near Intelligence LLC (being the surviving entity following the merger of Near Intelligence Holdings Inc. with and into Paas Merger Sub 2 LLC) | Delaware | 6751083 | ||
| Near Pte. Ltd. | Singapore | 201205693G | ||
| Near Intelligence Pte. Ltd. | Singapore | 202004197Z | ||
| Near North America, Inc. | Delaware | 00-0000000 |
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Signatories
| The Borrower |  |
| SIGNED, SEALED AND DELIVERED AS A DEED |
| By: | NEAR INTELLIGENCE LLC |
| /s/ Xxxx Xxxxxxx | Signature | |
| Xxxx Xxxxxxx | Name | |
| Chief Executive Officer | Title | |
| in the presence of | ||
| /s/ Xxxxxxx Xxxxxx | Signature of witness | |
| Xxxxxxx Xxxxxx | Name of witness | |
| Villa 384, Xxxxxx Palm Retreat | Address of witness | |
| President | Occupation of witness |
Signature page of the Amendment Deed (Global Deed of Discharge and Release)
Other Released Parties
EXECUTED AND DELIVERED AS A DEED
| By: | NEAR PTE. LTD. |
| /s/ Xxxx Xxxxxxx | Signature of Director | |
| Xxxx Xxxxxxx | Name of Director | |
| in the presence of | ||
| /s/ Xxxxxxx Xxxxxx | Signature of witness | |
| Xxxxxxx Xxxxxx | Name of witness | |
| Villa 384, Xxxxxx Palm Retreat | Address of witness | |
| President | Occupation of witness |
EXECUTED AND DELIVERED AS A DEED
| By: | NEAR INTELLIGENCE PTE. LTD. |
| /s/ Xxxx Xxxxxxx | Signature of Director | |
| Xxxx Xxxxxxx | Name of Director | |
| in the presence of | ||
| /s/ Xxxxxxx Xxxxxx | Signature of witness | |
| Xxxxxxx Xxxxxx | Name of witness | |
| Villa 384, Xxxxxx Palm Retreat | Address of witness | |
| President | Occupation of witness |
Signature page of the Amendment Deed (Global Deed of Discharge and Release)
| SIGNED, SEALED AND DELIVERED AS A DEED | |
| By: | NEAR NORTH AMERICA, INC. |
| /s/ Xxxx Xxxxxxx | Signature | |
| Xxxx Xxxxxxx | Name | |
| Chief Executive Officer | Title | |
| in the presence of | ||
| /s/ Xxxxxxx Xxxxxx | Signature of witness | |
| Xxxxxxx Xxxxxx | Name of witness | |
| Villa 384, Xxxxxx Palm Retreat | Address of witness | |
| President | Occupation of witness |
Signature page of the Amendment Deed (Global Deed of Discharge and Release)
| The Common Security Agent |
| WILMINGTON TRUST (LONDON) LIMITED |
| By: | Xxxx Xxxxxxxxx | |
| /s/ Xxxx Xxxxxxxxx |
Signature page of the Amendment Deed (Global Deed of Discharge and Release)
| The DB Facility Agent |
| WILMINGTON TRUST (LONDON) LIMITED |
| By: | Xxxx Xxxxxxxxx | |
| /s/ Xxxx Xxxxxxxxx |
Signature page of the Amendment Deed (Global Deed of Discharge and Release)
| The DB Facility Lender |
| DEUTSCHE BANK AG, LONDON BRANCH |
| By: | Xxxxxx Xxxxxx | By: | Xxxx Xxxxxx | |
| /s/ Xxxxxx Xxxxxx | /s/ Xxxx Xxxxxx |
Signature page of the Amendment Deed (Global Deed of Discharge and Release)
The Xxxxxxx Facility Lender
XXXXXXX EUROPEAN SPECIALTY LENDING COMPANY II S.À. X.X.
| By: | /s/ Xxxxx Xxxxx | |
| Name: | Xxxxx Xxxxx | |
| Title: | Class A Manager |
Signature page of the Amendment Deed (Global Deed of Discharge and Release)
