Exhibit 10.2
Equitable Mortgage Over Shares
___ October 2016
TriLinc Global Impact Fund Cayman, Ltd.
(as Company)
This Equitable Mortgage is made on ___ day of October 2016
By:
In favour of:
(2) | the persons from time to time registered as the holders (the "Noteholders") of the Notes (as defined below) as specified in the Company's applicable register of holders of the Notes (as defined below). |
Whereas:
(B) | Company intends to issue up to $100,000,000 Senior Secured Promissory Notes, in four different series with four different maturity dates, and may issues additional notes from time to as further described in the Private Placement Memorandum, (all such notes issued by the Company as contemplated by the Private Placement Memorandum, the "Notes"). |
(C) | As security for the Notes, the Company wishes to execute this Mortgage as a deed poll and secure the Mortgaged Shares (as defined below). |
It is agreed as follows:
"Business Day" | means any day which is not a Saturday or Sunday or a public holiday in the place or at which the notice is left or sent; |
"Cayman Subsidiaries" | means the entities set out in Schedule 1; |
"Electronic Transactions Law" | means the Electronic Transactions Law (2003 Revision) of the Cayman Islands; |
"Event of Default" | means the failure to pay any amount due under the Notes within 30 days after written demand from the Noteholders; |
"Gross Negligence" | in relation to a person means a standard of conduct beyond negligence whereby that person acts with reckless disregard for the consequences of a breach of a duty of care owed to another; |
means any obligation for the payment or repayment of money in any currency, whether present or future, actual or contingent, joint or several, whether incurred as principal or surety or in any other way whatever, and including principal, interest, commission, fees and other charges; | |
"Liability" | means any liability, damage, loss, cost, claim or expense of any kind or nature, whether direct, indirect, special, consequential or otherwise; |
"Mortgaged Shares" | means the securities listed in Schedule 1 which are all registered in the name of the Company; |
"Nominee" | means the nominee appointed by the Noteholders; |
"Private Placement Memorandum" | means the confidential private placement memorandum dated 17 June 2016 of the Company issued in connection with the Notes; |
"Receiver" | has the meaning given to it in Clause 8; |
"Secured Obligations" | means all and any amounts of any kind now or in the future, actual or contingent, due or payable (or expressed to be due or payable) by the Company to the Noteholders in any currency, actually or contingently, solely and/or jointly and/or severally with another or others as principal or surety on any account whatsoever under or in connection with the Notes or as a consequence of any breach, non-performance, disclaimer or repudiation by the Company of any of the Company's obligations under this Mortgage or the Notes and references to the Secured Obligations include references to any part of them; |
"Security Interest" | means any mortgage, charge, pledge, lien, encumbrance, right of set off or any security interest, howsoever created or arising; |
| (a) | any reference to a Recital, Clause or Schedule is to the relevant Recital, Clause or Schedule of or to this Mortgage; |
| (b) | the clause headings are included for convenience only and shall not affect the interpretation of this Mortgage; |
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| (h) | sections 8 and 19(3) of the Electronic Transactions Law shall not apply; and |
| (i) | no person shall be found to have committed actual fraud or wilful default under this Mortgage unless or until a court of competent jurisdiction shall have made a finding to that effect. |
1.5 | The Recitals and Schedule form part of this Mortgage and shall have effect as if set out in full in the body of this Mortgage and any reference to this Mortgage includes the Recitals and Schedule. |
1.6 | References to the Noteholders shall be construed as references to the Noteholders acting as a whole or in accordance with such consent or voting provisions set out in the Notes. |
2.1 | The Company hereby mortgages to the Noteholders by way of a first equitable mortgage as a continuing security for the payment and discharge of the Secured Obligations, the Mortgaged Shares. |
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rights and remedies of the Noteholders under this Mortgage or under the Notes nor any of the obligations of the Company under this Mortgage or the Notes. |
The Company covenants that, for so long as any Secured Obligations remain outstanding:
| (c) | permit any person other than the Nominee to be registered as, or become the holder of, the Mortgaged Shares; |
| (e) | exercise any voting or other rights in a way which may prejudice the value of its the Mortgaged Shares or otherwise jeopardise the security constituted by this Mortgage over them. |
3.3 | it shall procure that the Register of Members of each Cayman Subsidiary is located and maintained at the registered office of such Cayman Subsidiary in the Cayman Islands. |
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The Company represents and warrants to the Noteholders and undertakes that:
4.2 | the Mortgaged Shares represent all the shares issued by the Cayman Subsidiaries registered in the name of the Company; |
4.3 | the Register of Members of each Cayman Subsidiary is located and maintained at the registered office of such Cayman Subsidiary in the Cayman Islands; |
4.5 | this Mortgage constitutes its legal, valid, binding and enforceable obligation and is a first priority security interest over the Mortgaged Shares effective in accordance with its terms; |
4.8 | the execution, delivery, observance and performance by the Company of the Mortgage will not constitute an event of default or trigger any enforcement under any Security Interest in the |
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Company's assets nor will it result in the creation of any Security Interest over or in respect of the present or future assets of the Cayman Subsidiaries. |
which may be required of the Company under this Mortgage or may be deemed by such attorney necessary or desirable for any purpose of this Mortgage or to constitute, enhance or perfect the security intended to be constituted by it or to convey or transfer legal ownership of any Mortgaged Shares, provided that unless and until the occurrence of an Event of Default, a Receiver may not do anything pursuant to this appointment.
5.2 | The Company ratifies and confirms whatever any attorney does or purports to do pursuant to its appointment under this Clause. |
5.3 | All sums expended by any Receiver under this Clause shall be recoverable from the Company in accordance with the terms of this Mortgage. |
| (b) | the Company shall be entitled to receive and retain any and all dividends paid in respect of the Mortgaged Shares or any thereof. |
6.2 | The Company shall forthwith following the occurrence of an Event of Default sign, seal, deliver and complete all transfers, renunciations, proxies, mandates, assignments, deeds and documents and |
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do all acts and things which the Noteholders may, in their absolute discretion (acting as a whole), at any time and from time to time specify for enabling or assisting the Noteholders: |
| (c) | to procure that the Nominee is registered in the Register of Members of the Cayman Subsidiaries in respect of the Mortgaged Shares; |
| (d) | to exercise (or enable the Nominee to exercise) any rights or powers attaching to the Mortgaged Shares; |
| (f) | otherwise to enforce any of the rights of the Noteholders under or in connection with this Mortgage. |
At any time after the occurrence of an Event of Default, the Nominee shall, without prejudice to any other right or remedy available hereunder or under applicable law, forthwith become entitled:
7.5 | to take all steps to register the Mortgaged Shares in the name of the Nominee and to assume control as registered owner of the Mortgaged Shares. |
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8.5 | Every Receiver shall have all the powers of the Noteholders in this Mortgage and, without prejudice to the foregoing, shall have the following powers: |
| (a) | power to take possession of, collect and get in any of the Mortgaged Shares and, for that purpose, to take such proceedings as may seem to him to be expedient; |
| (d) | power to appoint attorneys or accountants or other professionally qualified persons to assist him in the performance of his functions; |
| (e) | power to bring or defend any action or other legal proceedings in the name of and on behalf of the Company in respect of the Mortgaged Shares; |
| (f) | power to do all acts and execute in the name and on behalf of the Company any document or deed in respect of the Mortgaged Shares; |
| (h) | power to make any arrangement or compromise on behalf of the Company in respect of the Mortgaged Shares; |
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| (i) | power to rank and claim in the insolvency or liquidation of a Cayman Subsidiary and to receive dividends and to accede to trust deeds for the creditors of such Cayman Subsidiary; |
8.9 | To the fullest extent permissible under law, the Noteholders may exercise any right or power that the Receiver may exercise in relation to the enforcement of this Mortgage. |
9.1 | The Receiver shall apply the monies received by it as a result of the enforcement of the security: |
| (a) | firstly, in payment or satisfaction of the expenses related to enforcement of this security (including without limitation the fees and expenses of the Receiver); |
| (b) | secondly, in meeting claims of the Noteholders, on a pro rata and pari passu basis, in respect of the Secured Obligations; and |
| (c) | any neglect or default to pay any instalment or accept any offer or notify the Company of any such neglect or default; or |
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11 | Payment to Holder Good Discharge |
11.1 | Each Noteholder is entitled to receive payment of all the amounts due in respect of its Notes and of all other sums referable to such Notes in accordance with the terms thereof to the exclusion of any other person and payment in full by the Company to such Noteholder shall discharge the Company from all obligations in respect of such Notes. |
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The Company shall on demand pay to the Noteholders the amount of all reasonable costs and expenses and other liabilities (including stamp duty, and reasonable legal and out of pocket expenses) which the Noteholders incur in connection with:
| (a) | the preservation or exercise (or attempted preservation or exercise) of any rights under or in connection with and the enforcement (or attempted enforcement) of this Mortgage; or |
| (b) | dealing with or obtaining advice about any matter or question arising out of or in connection with enforcing a Noteholder's exercise of its rights under this Mortgage. |
This Mortgage shall remain in full force and effect notwithstanding any amendments or variations from time to time of the Notes and no variation of this Mortgage shall be valid unless it is in writing and signed by or on behalf of the Company and consented to in writing by the Noteholders.
If, for any reason, any amount payable to the Noteholders by the Company under this Mortgage is paid or recovered in a currency other than that in which it is required to be paid (the "contractual currency"), then, to the extent that the payment to the Noteholders (when converted into the contractual currency at its then applicable rate of exchange) falls short of the amount payable in the contractual currency, the Company shall, as a separate and independent obligation, fully indemnify the Noteholders on demand against the amount of the shortfall.
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19.2 | No provision of this Mortgage shall be avoided or invalidated by reason only of one or more other provisions being invalid or unenforceable. |
This Mortgage and the Notes constitutes the entire agreement and understanding of the parties and supersedes any previous agreement between the parties relating to the subject matter of this Mortgage.
The Company shall promptly execute all documents and do all things that the Noteholders may reasonably specify for the purpose of:
| (b) | enabling the Noteholders to vest all or part of the Mortgaged Shares in its name or in the names of its nominee(s), agent or any purchaser, |
including the execution and delivery of all assignments, transfers, mortgages, charges, notices, instructions and such other documents as the Noteholders may in its discretion think fit.
Company:
TriLinc Global Impact Fund Cayman, Ltd.
PO Box 309, Ugland House, Grand Cayman, KY1-1104, Cayman Islands
Facsimile Number: 1 (440) 247-3709
For the attention of: Jessica Risch
| (a) | if sent by facsimile transmission, at the time of transmission, or the following Business Day if transmitted after normal business hours; |
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| (b) | if delivered personally (including being sent by courier), at the time of delivery, or the following Business Day if delivered after normal business hours; and |
| (c) | if posted, on the fifth Business Day following the day on which it was properly despatched by mail courier. |
22.3 | Any notice given to a Noteholder shall be deemed to have been given only on actual receipt by the Noteholder in accordance with, and in the manner specified in, the Notes. |
23.8 | Waiver of Defences: The Company shall be deemed to be a principal debtor and the sole, original and independent obligor for the Secured Obligations and the Security Interest created by this |
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Mortgage shall be deemed to be a principal security for the Secured Obligations. The Liability of the Company under this Mortgage shall not be discharged, impaired or otherwise affected by any circumstance, act, omission, matter or thing which but for this provision might operate to reduce, release, prejudice or otherwise exonerate the Company from its obligations under the Notes in whole or in part, including without limitation and whether or not known to the Company, the Noteholders or any other person any variation (however fundamental and whether or not involving any increase in the Liability of the Company) or replacement of any Notes or any other document or security so that the Company's obligations under this Mortgage remain in full force and effect and that this Mortgage shall be construed accordingly as if there were no such circumstance, act, omission, matter or thing. |
23.9 | This Mortgage shall take effect as a deed poll for the benefit of the Noteholders from time to time. |
24.1 | This Mortgage is governed by, and shall be construed in accordance with, the laws of the Cayman Islands. |
25.1 | Each Receiver, the Nominee and the Noteholders have the right under the Contracts (Rights of Third Parties) Law, 2014, as amended, modified, re-enacted or replaced (the "Third Party Rights Law"), to enforce, in its own right, its rights pursuant to Clauses 5, 8, 9 and 10 of this Mortgage subject to and in accordance with the provisions of the Third Party Rights Law. |
25.2 | Notwithstanding any other term of this Mortgage save for Clause 17, the consent of any person who is not a party to this Mortgage (including, without limitation, any Receiver) is not required for any amendment to, or variation, release, rescission or termination of this Mortgage. |
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This Mortgage has been executed as a deed poll by the Company and is intended to be and is hereby delivered on the date first before written.
The Company
EXECUTED as a deed poll by)
TriLinc Global Impact Fund Cayman, Ltd.)
acting by:)
in the presence of:)
Witness Name: )
Witness Signature: )
Witness Address: )
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Amount or number of Mortgaged Shares | Description of Shares
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1 | Ordinary shares of US$1.00 par value in TriLinc Global Impact Fund – Africa, Ltd., a Cayman Islands exempted company of PO Box 309, Ugland House, Grand Cayman, KY1-1104, Cayman Islands.
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1 | Ordinary shares of US$1.00 par value in TriLinc Global Impact Fund – African Trade Finance II, Ltd., a Cayman Islands exempted company of PO Box 309, Ugland House, Grand Cayman, KY1-1104, Cayman Islands.
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1 | Ordinary shares of US$1.00 par value in TriLinc Global Impact Fund - African Trade Finance, Ltd., a Cayman Islands exempted company of PO Box 309, Ugland House, Grand Cayman, KY1-1104, Cayman Islands.
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1 | Ordinary shares of US$1.00 par value in TriLinc Global Impact Fund - Asia, Ltd., a Cayman Islands exempted company of PO Box 309, Ugland House, Grand Cayman, KY1-1104, Cayman Islands.
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1 | Ordinary shares of US$1.00 par value in TriLinc Global Impact Fund – Latin America II, Ltd., a Cayman Islands exempted company of PO Box 309, Ugland House, Grand Cayman, KY1-1104, Cayman Islands.
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1 | Ordinary shares of US$1.00 par value in TriLinc Global Impact Fund – Latin America III, Ltd., a Cayman Islands exempted company of PO Box 309, Ugland House, Grand Cayman, KY1-1104, Cayman Islands.
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Ordinary shares of US$1.00 par value in TriLinc Global Impact Fund - Latin America, Ltd., a Cayman Islands exempted company of PO Box 309, Ugland House, Grand Cayman, KY1-1104, Cayman Islands.
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1 | Ordinary shares of US$1.00 par value in TriLinc Global Impact Fund - Trade Finance, Ltd., a Cayman Islands exempted company of PO Box 309, Ugland House, Grand Cayman, KY1-1104, Cayman Islands.
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1 | Ordinary shares of US$1.00 par value in TriLinc Global Impact Fund – Asia II, Ltd., a Cayman Islands exempted company of PO Box 309, Ugland House, Grand Cayman, KY1-1104, Cayman Islands.
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