Exhibit 10.2
Second Amendment to the
Syndicated Facility
Agreement
Dated 18 June 2025
Coronado Finance Pty Ltd (ACN 628 668 235) and Coronado Curragh Pty Ltd (ACN
009 362 565) (each, a “
Borrower
”)
Each person listed in Schedule 2 (each, a “
Guarantor
”)
Global Loan Agency Services Australia Pty Ltd (ACN 608 829 303)
(“
Administrative Agent
”)
Global Loan Agency Services Australia Nominees Pty Ltd (ACN 608 945 008)
(“
Collateral Agent
”)
King & Wood Mallesons
Level 61
Governor Phillip Tower
1 Farrer Place
Sydney NSW 2000
Australia
T
+61 2 9296 2000
www.kwm.com
Second Amendment to the Syndicated Facility
Agreement
Contents
Second Amendment to the Syndicated Facility Agreement
i
Details
1
General terms
3
1
Definitions and interpretation
3
1.1
Terms defined in the Amended SFA
3
1.2
Definitions
3
1.3
Interpretation
3
2
Capacity of the Administrative Agent
4
3
Amendments
4
3.1
Amendments to the Original SFA
4
3.2
Amendments to the Original STD
4
3.3
Remaining provisions unaffected
4
4
Representations and warranties
5
4.1
Affirmation of representations and warranties
5
4.2
Reliance
5
5
Affirmations
5
5.1
Affirmation of Security
5
5.2
Affirmation of Guarantee
5
6
Limitation of Liability
6
7
Acknowledgement – Australian Withholding Tax
6
8
General
6
8.1
Notices
6
8.2
Loan Document
6
8.3
Assignment
6
8.4
Further assurances
6
8.5
Severability
6
8.6
Entire agreement
6
8.7
Governing law
6
8.8
Counterparts
7
8.9
Electronic signature and exchange
7
8.1
Consideration
7
8.11
Conflict
7
Schedule 1 – Guarantors
8
Signing page
9
Annexure A – Amended SFA
13
Second Amendment to the Syndicated Facility
Agreement
Second Amendment to the Syndicated Facility Agreement
i
Details
Parties
Each
, each
Guarantor
, the
Administrative Agent
Collateral Agent
Borrower
Name
Coronado Finance Pty Ltd
ACN
628 668 235
Address
Level 33, Central Plaza One
345 Queen Street
Brisbane QLD 4000
AUSTRALIA
Email
Attention
Barrie Van der Merwe
Name
Coronado Curragh Pty Ltd
ACN
009 362 565
Address
Level 33, Central Plaza One
345 Queen Street
Brisbane QLD 4000
AUSTRALIA
Email
Attention
Barrie Van der Merwe
Guarantor
Each person listed in Schedule 1 ("Guarantors"). Their details are also in
Schedule 1 (“Guarantors”).
Administrative
Agent
Name
Global Loan Agency Services Australia Pty Ltd
ACN
608 829 303
Address
Level 4, 88 Phillip Street
Sydney NSW 2000
Telephone
Email
Attention
Transaction Management Group (Coronado)
Second Amendment to the Syndicated Facility Agreement
i
Collateral Agent
Name
Global Loan Agency Services Australia Nominees
Pty Ltd
ACN
608 945 008
Address
Level 4, 88 Phillip Street
Sydney NSW 2000
Telephone
Email
Attention
Transaction Management Group (Coronado)
Date of
document
See signing page
Second Amendment to the Syndicated Facility
Agreement
Second Amendment to the Syndicated Facility Agreement
i
General terms
1 Definitions and interpretation
1.1 Terms defined in the Amended SFA
Unless the context otherwise requires or the relevant term is defined in this document, a term
which has a defined meaning in the Amended SFA (including by incorporation) has the same
meaning when used in this document.
1.2 Definitions
In this document:
Amended SFA
means the Original SFA as amended by this document and set out in
Annexure A to this document.
Amended STD
means the Original STD as amended by clause 3.2 (“Amendments to the
Original STD”) of this document.
Australian Withholding Tax
from any interest or other payment under Division 11A of Part III of the ITAA 1936 or
Subdivision 12-F of Schedule 1 to the TAA.
Effective Time
Coordination Deed.
Obligor
means each Borrower and each Guarantor.
Original SFA
means the document titled ‘Syndicated Facility Agreement’ dated 8 May 2023
between, among others, Coronado Global Resources Inc., each Borrower, each Guarantor, the
Administrative Agent and the Collateral Agent (whether originally or by accession), as
amended and/or amended and restated from time to time (other than by this document).
Original STD
dated 12 May 2021 between, among others, each Obligor and the Collateral Agent (whether
originally or by accession).
Refinancing Coordination Deed
means the document titled ‘Refinancing Coordination
Deed’ dated on or about the date of this document between, among others, each Borrower,
each Guarantor, the Administrative Agent and the Collateral Agent.
SFA
means:
(a) prior to the Effective Time, the Original SFA; and
(b) on and from the Effective Time, the Amended SFA.
Second Amendment to the Syndicated Facility Agreement
i
1.3 Interpretation
(a) Section 1.02 (“Other Interpretative Provisions”) of the Amended SFA applies to this
document as if set out in full
mutatis mutandis
.
(b) A reference to the Effective Time is a reference to the Effective Time and the order
and sequence set out in clause 3.5 ("Sequencing") of the Refinancing Coordination
Deed.
2 Capacity of the Administrative Agent
(a) The Administrative Agent enters into this document as Administrative Agent and
performs the transactions contemplated by it in its own right and as agent for the
Lenders and L/C Issuers under the SFA .
(b) The Administrative Agent confirms that the Lenders and L/C Issuers have
authorised it to enter into this document (in its own capacity and on behalf of them)
in accordance with section 11.01 of the SFA and that its liability is limited to the
extent set out in the SFA.
3 Amendments
3.1 Amendments to the Original SFA
From (and including) the Effective Time , the Original SFA is amended so as to read as set out
in Annexure A to this document.
3.2 Amendments to the Original STD
From (and including) the Effective Time, the definition of “Majority Beneficiaries” in clause
1.1 (“Definitions”) of the Original STD is deleted and replaced with the following new
definition:
“
Majority Beneficiaries
to the Lenders under the Initial Facility Agreement, the Administrative Agent
(acting on the instructions of the Lenders given under and in accordance with the
Initial Facility Agreement), and in all other circumstances, a Beneficiary or
Beneficiaries whose Exposures aggregate to at least 66 2/3% of the total Exposures
of all Beneficiaries.”.
3.3 Remaining provisions unaffected
(a) This document is intended only to vary the Original SFA and the Original STD and
not to terminate, discharge, rescind or replace it.
(b) Except as specifically amended by this document, the provisions of the Original
SFA and the Original STD remain in full force and effect.
(c) The amendments to the Original SFA in clause 3.1 (“Amendments to the SFA ”) and
the Original STD in clause 3.2 (“Amendments to the STD”) do not affect the
validity or enforceability of the Original SFA , the Original STD or any other Loan
Document.
(d) Nothing in this document:
Second Amendment to the Syndicated Facility Agreement
i
(i) prejudices or adversely affects any right, power, authority, discretion or
remedy arising under the Original SFA , the Original STD or any other
Loan Document before the Effective Time; or
(ii) discharges, releases or otherwise affects any liability or obligation arising
under the Original SFA , the Original STD or any other Loan Document
before the Effective Time.
(e) On and with effect from the Effective Time :
(i) each party is bound by the Amended SFA and the Amended STD;
(ii) any reference in the Loan Documents (except in this document) to the
Original SFA is a reference to the Amended SFA; and
(iii) any reference in the Loan Documents (except in this document) to the
Original STD is a reference to the Amended STD.
(f) Without limiting the foregoing, clause 3.2 (“Amendments to the Original STD”) is
not intended to operate as a resettlement of the security trust under the Original STD
or create a new agreement or deed that replaces, reconstitutes, terminates, rescinds,
restates or discharges the Original STD.
4 Representations and warranties
4.1 Affirmation of representations and warranties
Each Obligor represents and warrants that, as at the date of this document and at the Effective
Time:
(a) all its representations and warranties in the Original SFA or Amended SFA (as
applicable) are true as though they had been made at that date in respect of the facts
and circumstances then subsisting; and
(b) no Event of Default is continuing or will result from the amendments in clause 3.1
(“Amendments”) taking effect.
4.2 Reliance
The Administrative Agent has relied on the representations and warranties set out in this
clause 4 in entering into this document.
5 Affirmations
5.1 Affirmation of Security
Each Obligor acknowledges and agrees that each Guarantee and each Security and Lien
granted by it in favour of each Lender, the Australian Security Trustee and the Administrative
Agent under a Loan Document remains in full force and effect and continues to secure that
Obligor’s obligations and liabilities under the Amended SFA and other relevant Loan
Documents.
Second Amendment to the Syndicated Facility Agreement
i
5.2 Affirmation of Guarantee
Each Obligor acknowledges and agrees that each Obligor is and remains jointly and severally
liable for the whole of the Secured Money (as that term is defined in the Australian Security
Trust Deed) (including all amounts made or to be made available to a Borrower under the
Amended SFA) under the Guarantee given by it.
6 Limitation of Liability
Clause 3.13 (“Limitations of liability of Security Trustee to Beneficiaries”) and 3.14
(“Security Trustee limitation of liability to non-Beneficiaries”) of the Australian Security
Trust Deed applies to this document as if set out in full in this document, with any necessary
changes.
7 Acknowledgement – Australian Withholding Tax
The parties acknowledge and agree that the exclusion in clause 15.3(b)(ii) of the Australian
Security Trust Deed with respect to Australian Withholding Tax shall not apply to clauses
15.2(c) or 15.3(a) of the Australian Security Trust Deed.
8 General
8.1 Notices
Any notice, demand, consent, waiver, approval or other communication given or made under
or in connection with this document must be given or made, and will be effective and taken to
be received, in accordance with section 11.03 of the Amended SFA.
8.2 Loan Document
This document is a Loan Document for the purposes of the SFA .
8.3 Assignment
A party may not assign, encumber, declare a trust over or otherwise deal with its rights or
obligations under this document, or attempt or purport to do so, without the prior written
consent of each other party.
8.4 Further assurances
Each party must promptly do, and procure that its employees and agents promptly do, all
things necessary, including executing agreements and documents, to give full effect to this
document and the transactions contemplated by it.
8.5 Severability
Any provision of this document which is prohibited or unenforceable in any jurisdiction is
ineffective as to that jurisdiction to the extent of the prohibition or unenforceability. That
does not invalidate the remaining provisions of this document nor affect the validity or
enforceability of that provision in any other jurisdiction.
Second Amendment to the Syndicated Facility Agreement
i
8.6 Entire agreement
This document contains the entire agreement between the parties with respect to its subject
matter and supersedes all previous agreements, understandings and negotiations on that
subject matter.
8.7 Governing law
This document is governed by the laws of Queensland, Australia. Each party irrevocably
submits to the non-exclusive jurisdiction of the courts of that place, and any court that may
hear appeals from any of those courts, for any proceedings in connection with this document.
8.8 Counterparts
This document may be executed in any number of counterparts. All counterparts together will
be taken to constitute one instrument.
8.9 Electronic signature and exchange
Without limitation, the parties:
(a) consent to each other party executing this document by any method of electronic
signature that other party uses (at that other party’s discretion), including signing on
an electronic device or by digital signature; and
(b) agree that their communication of an offer or acceptance of this document, including
exchanging counterparts, may be by any electronic method that evidences that
party’s execution of this document.
8.10 Consideration
Each party to this document acknowledges incurring obligations and giving rights under this
document for valuable consideration received from each other party to this document.
8.11 Conflict
If there is a conflict between the Loan Documents, the Original SFA and this document, the
terms of this document prevail.
EXECUTED
Second Amendment to the Syndicated Facility Agreement
i
Schedule 1 – Guarantors
Guarantor
Jurisdiction
Coronado Global Resources Inc.
Delaware
Coronado Finance Pty Ltd
Australia
Coronado Coal Corporation
Delaware
CORONADO II LLC
Delaware
CORONADO COAL II LLC
Delaware
CORONADO COAL LLC
Delaware
Mon Valley Minerals LLC
Delaware
Greenbrier Minerals, LLC
Delaware
POWHATAN MID-VOL COAL SALES, L.L.C.
Delaware
CORONADO IV LLC
Delaware
BUCHANAN MINERALS, LLC
Delaware
Buchanan Mining Company LLC
Delaware
CORONADO VA, LLC
Delaware
Coronado Australia Holdings Pty Ltd
Australia
Coronado Curragh LLC
Delaware
Coronado Curragh Pty Ltd
Australia
Curragh Coal Sales Co. Pty. Ltd.
Australia
Curragh Queensland Mining Pty Ltd
Australia
Second Amendment to the Syndicated Facility
Agreement
Signing page
Second Amendment to the Syndicated Facility Agreement
i
Signing page
DATED:
18 June
2025
BORROWERS AND GUARANTORS
EXECUTED
by
CORONADO
FINANCE PTY LTD
in accordance with
section 127(1) of the
Corporations Act
2001
(Cth) by authority of its directors:
/s/ Douglas Thompson
Signature of director
DOUGLAS THOMPSON
Name of director (block letters)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
/s/ Susan Casey
Signature of director/company secretary*
*delete whichever is not applicable
SUSAN CASEY
Name of director/company secretary*
(block letters)
*delete whichever is not applicable
EXECUTED
by
CORONADO
CURRAGH PTY LTD
in accordance with
section 127(1) of the
Corporations Act
2001
(Cth) by authority of its directors:
/s/ Douglas Thompson
Signature of director
DOUGLAS THOMPSON
Name of director (block letters)
)
)
)
)
)
)
)
)
)
)
)
)
)
/s/ Susan Casey
Signature of director/company secretary*
*delete whichever is not applicable
SUSAN CASEY
Name of director/company secretary*
(block letters)
*delete whichever is not applicable
Second Amendment to the Syndicated Facility Agreement
i
GUARANTORS
EXECUTED
by
CORONADO
AUSTRALIA HOLDINGS PTY LTD
in
accordance with section 127(1) of the
Corporations Act 2001
(Cth) by authority
of its directors:
/s/ Douglas Thompson
Signature of director
DOUGLAS THOMPSON
Name of director (block letters)
)
)
)
)
)
)
)
)
)
)
)
)
)
/s/ Susan Casey
Signature of director/company secretary*
*delete whichever is not applicable
SUSAN CASEY
Name of director/company secretary*
(block letters)
*delete whichever is not applicable
EXECUTED
by
CURRAGH COAL
SALES CO. PTY. LTD.
in accordance
with section 127(1) of the
Corporations Act
2001
(Cth) by authority of its directors:
/s/ Douglas Thompson
Signature of director
DOUGLAS THOMPSON
Name of director (block letters)
)
)
)
)
)
)
)
)
)
)
)
)
)
/s/ Susan Casey
Signature of director/company secretary*
*delete whichever is not applicable
SUSAN CASEY
Name of director/company secretary*
(block letters)
*delete whichever is not applicable
EXECUTED
by
CURRAGH
QUEENSLAND MINING PTY LTD
in
accordance with section 127(1) of the
Corporations Act 2001
(Cth) by authority
of its directors:
/s/ Douglas Thompson
Signature of director
DOUGLAS THOMPSON
Name of director (block letters)
)
)
)
)
)
)
)
)
)
)
)
)
)
/s/ Susan Casey
Signature of director/company secretary*
*delete whichever is not applicable
SUSAN CASEY
Name of director/company secretary*
(block letters)
*delete whichever is not applicable
Second Amendment to the Syndicated Facility Agreement
i
SIGNED, SEALED AND DELIVERED
by
each of
CORONADO GLOBAL RESOURCES
INC.
CORONADO COAL CORPORATION
CORONADO II LLC
CORONADO COAL II LLC
CORONADO COAL LLC
MON VALLEY MINERALS LLC
GREENBRIER MINERALS, LLC
POWHATAN MID-VOL COAL SALES,
L.L.C.
CORONADO IV LLC
BUCHANAN MINERALS, LLC
BUCHANAN MINING COMPANY LLC
CORONADO VA, LLC
CORONADO CURRAGH LLC
in the presence of:
/s/ Susan Casey
Signature of witness
SUSAN CASEY
Name of witness (block letters)
/s/ Douglas Thompson
Signature of authorised signatory
DOUGLAS THOMPSON
Name of authorised signatory (block
letters)
Seal
Second Amendment to the Syndicated Facility Agreement
i
ADMINISTRATIVE AGENT
SIGNED, SEALED AND DELIVERED
by Matthew O’Donohue
as attorney for
GLOBAL LOAN
AGENCY SERVICES AUSTRALIA
PTY LTD
under power of attorney dated 2
February 2022 in the presence of:
/s/ Peter Ip
Signature of witness
PETER IP
Name of witness (block letters)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
/s/ Matthew O’Donohue
By executing this document the attorney
states that the attorney has received no
notice of revocation of the power of
attorney
COLLATERAL AGENT
SIGNED, SEALED AND DELIVERED
by Matthew O’Donohue
as attorney for
GLOBAL LOAN
AGENCY SERVICES AUSTRALIA
NOMINEES PTY LTD
under power of
attorney dated 2 February 2022 in the
presence of:
/s/ Peter Ip
Signature of witness
PETER IP
Name of witness (block letters)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
/s/ Matthew O’Donohue
By executing this document the attorney
states that the attorney has received no
notice of revocation of the power of
attorney
Second Amendment to the Syndicated Facility
Agreement
Second Amendment to the Syndicated Facility Agreement
i
Annexure A – Amended SFA
Execution version
i
Dated as of __________________ 2025
among
CORONADO GLOBAL RESOURCES INC.,
as Holdings
CORONADO AUSTRALIA HOLDINGS PTY LTD,
as Australian Parent
CORONADO FINANCE PTY LTD,
as Australian Borrower
CORONADO CURRAGH PTY LTD
as Australian Borrower
THE GUARANTORS PARTY HERETO
GLOBAL LOAN AGENCY SERVICES AUSTRALIA PTY LTD
as Administrative Agent
and
GLOBAL LOAN AGENCY SERVICES AUSTRALIA NOMINEES PTY LTD
as Collateral Agent and
The Other Lenders Party Hereto
AMENDED AND RESTATED SYNDICATED FACILITY AGREEMENT
1
1
1
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Section 6.27.
Cash balance covenant. During the Financial Covenant Waiver
Period, each Loan Party must ensure that in aggregate they maintain
a cash balance at all times of at least $100,000,000 in one or more
Control Accounts held with a Lender.
125
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Section 9.08.
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`
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6
SCHEDULES
Schedule 1.01(a)
185
Guarantors
185
Schedule 1.01(b)
186
Commitments, Facility A Limit and Facility B Limit
186
Schedule 1.01(c)
187
Acceptable Storage Locations
187
Schedule 5.06
188
Litigation
188
Schedule 5.08(a)
189
Material Leased Real Property
189
Schedule 5.08(b)
190
Material Owned Real Property
190
Schedule 5.08(c)
191
Subsidiaries
191
Schedule 5.09
192
Environmental Matters
192
Schedule 5.10
193
Mining
193
Schedule 5.14
194
Existing Indebtedness
194
Schedule 5.18
197
Intellectual Property Matters
197
Schedule 5.21
198
Labor Matters
198
Schedule 6.23
199
Post-Closing Obligations
199
Schedule 7.01
200
Existing Liens
200
Schedule 11.02
201
Agents’ Offices, Certain Addresses for Notices
201
7
EXHIBITS
Form of
A Borrowing Notice
B [Not used]
C [Not used]
D [Not used]
E Compliance Certificate
F Assignment and Acceptance
G Borrowing Base Certificate
H-1 [Not used]
H-2 [Not used]
I Perfection Certificate
J Perfection Certificate Supplement
K Assumption Agreement
L Solvency Certificate
1
AMENDED AND RESTATED SYNDICATED FACILITY AGREEMENT
INTRODUCTORY STATEMENT
This SYNDICATED FACILITY AGREEMENT (this “
Agreement
”) is entered into as of
8 May 2023 and is amended and restated as of __________________ 2025, among CORONADO
GLOBAL RESOURCES INC., a Delaware corporation (“
Holdings
”), CORONADO COAL
CORPORATION, a Delaware corporation (“
CCC
”), CORONADO AUSTRALIA HOLDINGS
PTY LTD (ACN 623 524 989), an Australian proprietary limited company (“
Australian Parent
”),
CORONADO FINANCE PTY LTD (ACN 628 668 235), an Australian proprietary limited
company (“
Australian Borrower
”) and CORONADO CURRAGH PTY LTD (ACN 009 362 565),
an Australian proprietary limited company (“
Australian Borrower
” and, together with Coronado
Finance Pty Ltd, the “
Borrowers
”), each Guarantor party hereto, each lender from time to time
party hereto, GLOBAL LOAN AGENCY SERVICES AUSTRALIA PTY LTD (ABN 68 608 829
303), as administrative agent (the “
Administrative Agent
”), GLOBAL LOAN AGENCY
SERVICES AUSTRALIA NOMINEES PTY LTD (ABN 39 608 945 008), as collateral agent (the
“
Collateral Agent
”), and HIGHLAND PARK XII PTE. LTD. as lender.
WHEREAS, the Borrowers have requested that the Lenders extend credit in the form of a
senior secured asset-based revolving credit facility consisting of the Commitments in an aggregate
principal amount of $150,000,000 (the “
Facility
”), and the Lenders and Administrative Agent are
willing to extend such credit to the Borrowers on the terms and subject to the conditions set forth
in the Existing Syndicated Facility Agreement.
WHEREAS, the Borrowers and the Lenders, among others, have entered into a Second
Amendment Deed which amends and restates the Existing Syndicated Facility Agreement on the
terms set out in this Agreement.
Accordingly, in consideration of the mutual covenants and agreements herein contained,
the parties hereto covenant and agree as follows:
ARTICLE 1.
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01. Defined Terms
.
As used in this Agreement, the following
terms shall have the meanings set forth below:
“
ABL Debt
” means Funded Debt with respect thereto incurred by the Borrowers or any of
the Guarantors hereunder.
“
ABL Intercreditor Agreement
” means that certain New York law governed Intercreditor
Agreement, dated May 12, 2021, among the Administrative Agent, the Collateral Agent and the
Senior Secured Notes Trustee and acknowledged by each Loan Party, as amended by that certain
First Amendment to Intercreditor Agreement dated as of August 3, 2023, certain Second
Amendment to Intercreditor Agreement dated as of October 2, 2024, and as may be amended,
restated, replaced, supplemented, varied, assigned or otherwise modified from time to time in
accordance with this Agreement.
2
“
ABL Intercreditor Agreement Joinder
” means certain Joinder Agreement dated on or
about the date hereof between, among others the Administrative Agent, the Collateral Agent and
Senior Secured Notes Trustee.
“
ABL Priority Collateral
” means all rights, title and interests of each Loan Party in the
following Collateral, in each case, whether now owned or existing or hereafter acquired or arising
and wherever located, including, without duplication,
(a) all rights of each Loan Party to receive moneys due and to become due under or
pursuant to the following,
(b) all rights of each Loan Party to receive return of any premiums for or Proceeds of
any insurance, indemnity, warranty or guarantee with respect to the following or to receive
condemnation Proceeds with respect to the following,
(c) all claims of each Loan Party for damages arising out of or for breach of or default
under any of the following, and
(d) all rights of each Loan Party to terminate, amend, supplement, modify or waive
performance under any of the following, to perform thereunder and to compel performance and
otherwise exercise all remedies thereunder:
(i) all Accounts, but solely for purposes of this
clause (i)
, excluding
identifiable rights to payment for any property which specifically constitutes Non-ABL
Priority Collateral that has been sold, leased, licensed, assigned or otherwise disposed of;
provided
,
however
, that, for the avoidance of doubt, all rights to payment arising from any
sale, lease, license, assignment or other disposition of Inventory or Goods (other than
Fixtures or Equipment) or the provision of services shall constitute ABL Priority
Collateral;
(ii) all Chattel Paper;
(iii) all intercompany indebtedness of Holdings and the other Loan Parties owed
to any other Loan Party;
(iv) all Deposit Accounts, Securities Accounts and all other demand, deposit,
time, savings, cash management, passbook and similar accounts maintained with any bank
or other financial institution (other than to the extent any such Deposit Accounts, Securities
Accounts or other accounts solely contain identifiable Proceeds of any Non-ABL Priority
Collateral) and all cash, money, securities, Instruments and other investments deposited or
required to be deposited in any of the foregoing;
(v) all Inventory and all rights to receive payments, indebtedness and other
obligations which arise as a result of the sale, lease or other disposition of Inventory or
Goods (in each case other than Fixtures or Equipment) or provision of services, including
the right to payment of interest or finance charges and all As-Extracted Collateral (as
defined in the UCC);
3
(vi) all cash, Money and Cash Equivalents ((A) other than identifiable Proceeds
of any Non-ABL Priority Collateral and (B) including, for the avoidance of doubt, Proceeds
of Borrowings under this Agreement);
(vii) to the extent evidencing or governing any of the items referred to in the
preceding
clauses (i)
(vi)
, all General Intangibles (excluding Equity Interests and
any Intellectual Property to the extent such Intellectual Property is not attached to or
necessary to sell any item of Inventory), letters of credit and bank guarantees (whether or
not the respective letter of credit or bank guarantee is evidenced by a writing), Letter-of-
Credit Rights, Instruments and Documents;
provided
also relates to any Non-ABL Priority Collateral, only that portion related to the items
referred to in the preceding
clauses (i)
(vi)
Collateral shall be included in the ABL Priority Collateral;
(viii) to the extent relating to any of the items referred to in the preceding
clauses (i)
(vii)
, all insurance;
relates to Non-ABL Priority Collateral, only that portion related to the items referred to in
the preceding
clauses (i)
(vii)
shall be included in the ABL Priority Collateral;
(ix) to the extent relating to any of the items referred to in the preceding
clauses (i)
(viii)
, all Supporting Obligations;
foregoing also relates to Non-ABL Priority Collateral, only that portion related to the items
referred to in the preceding
clauses (i)
(viii)
Collateral shall be included in the ABL Priority Collateral;
provided
,
further
, that any
business interruption insurance shall be ABL Priority Collateral;
(x) to the extent relating to any of the items referred to in the preceding
clauses (i)
(ix)
, all Commercial Tort Claims;
provided
foregoing also relates to Non-ABL Priority Collateral, only that portion related to the items
referred to in the preceding
clauses (i)
(ix)
Collateral shall be included in the ABL Priority Collateral;
(xi) all Books and records, including all books, databases, customer lists and
records related thereto and any General Intangibles at any time evidencing or relating to
any of the foregoing; and
(xii) all cash Proceeds and, solely to the extent not constituting Non-ABL
Priority Collateral, non-cash Proceeds, products, accessions, rents and profits of or in
respect of any of the foregoing (including all insurance Proceeds) and all collateral security,
guarantees and other collateral support given by any Person with respect to any of the
foregoing;
provided
,
however
, that
(x) if Collateral of any type is received in exchange for ABL Priority Collateral
pursuant to an enforcement action or during an Insolvency Proceeding, such Collateral will
be treated as ABL Priority Collateral and
4
(y) if Collateral of any type is received in exchange for Non-ABL Priority
Collateral pursuant to an enforcement action or during an Insolvency Proceeding, such
Collateral will be treated as Non-ABL Priority Collateral.
For the avoidance of doubt, no Excluded Asset of a U.S. Loan Party and no Foreign
Excluded Asset of any Loan Party that is a Foreign Subsidiary shall constitute ABL Priority
Collateral.
“
Acceptable Credit Support
” means
(a) a credit insurance policy satisfactory to the Administrative Agent (acting
reasonably) (including, without limitation, as to the creditworthiness of the insurance company
issuing such policy, the scope and amount of coverage, any deductibles and any other terms and
conditions applicable thereto), so long as the limits and terms of such credit insurance policy are
being complied with and for which the Administrative Agent is named as the beneficiary, loss
payee or additional insured so as to insure that the Administrative Agent has the right to receive
payments thereunder; or
(b) an irrevocable letter of credit or bank guarantee satisfactory to the Administrative
Agent (acting reasonably) (including, without limitation, as to the issuer or domestic confirming
bank with respect thereto, and the form and substance thereof (it being understood that, at the
request of the Administrative Agent, the Borrower shall cause a commercial letter of credit to be
confirmed to the extent not otherwise confirmed in the ordinary course of business)), that has been
delivered to the Administrative Agent and, in the case of standby letters of credit and subject to
Section 6.23
, is directly drawable by the Administrative Agent and, in the case of other letters of
credit (together with any bills of lading or other shipping documents), remains in the possession
and control of the Loan Parties free and clear of any Liens senior to those securing the Obligations.
“
Acceptable Storage Location
” means a physical storage location owned and/or operated
by Persons who are acceptable to and approved by the Administrative Agent (acting on the
instructions of the Required Lenders), it being acknowledged and agreed that:
(a) subject to paragraph
(b)
storage locations set out in Schedule 1.01(c) are acceptable to and approved by the Administrative
Agent for the purposes of this Agreement; and
(b) the Administrative Agent (acting on the instructions of the Required Lenders) may,
on 3 months written notice to the Borrowers and specifying the basis of its decision, reject any
prior approved Acceptable Storage Location and such storage location will no longer constitute an
Acceptable Storage Location on the relevant date as specified in the notice. The Loan Parties
acknowledge and agree that the Required Lenders would be acting reasonably as required by this
clause if there were no Rights of Entry satisfactory to the Required Lenders from time to time in
place in connection with the prior approved Acceptable Storage Location.
“
Account
” has the meaning specified in the UCC, to the extent such term is being
interpreted pursuant thereto, and otherwise, the Australian PPS Act.
5
“
Account Debtor
” has the meaning given to such term in the UCC and the Australian PPS
Act.
“
Accounting Change
” means a change in accounting principles required by the
promulgation of any rule, regulation, pronouncement or opinion by the Financial Accounting
Standards Board of the American Institute of Certified Public Accountants or, if applicable, the
SEC.
“
ACH
” means the Automated Clearing House system for electronic funds transfer.
“
Activities
” has the meaning specified in
Section 9.09(b)
.
“
Administrative Agent
” has the meaning specified in the preamble hereto.
“
Administrative Agent’s Office
” means the Administrative Agent’s address and, as
appropriate, account as set forth on Schedule 11.02, or such other address or account of the
Administrative Agent as the Administrative Agent may from time to time notify to the Borrowers
and the Lenders.
“
Administrative Questionnaire
” means an Administrative Questionnaire in a form
reasonably acceptable to the Administrative Agent.
“
Affected Financial Institution
” means (a) any EEA Financial Institution, or (b) any UK
Financial Institution.
“
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.
“A-GAAP”
“
Agent Affiliate
” has the meaning specified in
Section 9.16(c)
.
“
Agent’s Group
” has the meaning specified in
Section 9.09(b)
.
“
Agents
” means the Administrative Agent and the Collateral Agent and “
Agent
” shall mean
either the Administrative Agent or the Collateral Agent, as applicable.
“
Agreement
” has the meaning assigned in the preamble hereto.
“
Amendment and Restatement Effective Date
” means the date on which the
Administrative Agent notifies the other parties to the Refinancing Coordination Deed that each of
the conditions precedent described in clause 2 (“
Effective Time
”) of the Refinancing Coordination
Deed have been satisfied or otherwise waived.
“
Anti-Corruption Laws
” means all Laws of any jurisdiction applicable to Holdings or any
of its Subsidiaries from time to time concerning or relating to bribery or corruption, including
without limitation the Foreign Corrupt Practices Act of 1977, 15 U.S.C. §§ 78dd-1, et seq and the
United Kingdom Bribery Act 2010.
6
“
Anti-Money Laundering Laws
” means all Laws of any jurisdiction applicable to
Holdings or any of its Subsidiaries from time to time concerning or relating to money laundering,
including, without limitation, the Patriot Act and the
Anti-Money Laundering and Counter-
Terrorism Financing Act 2006
“
Anti-Terrorism Laws
” means Title III of the USA Patriot Act, the Trading with the
Enemy Act, and each of the foreign assets control regulations of the United States Treasury
Department (31 C.F.R. Subtitle B, Chapter V, as amended) and any other enabling legislation or
executive order relating thereto and the
Anti-Money Laundering and Counter-Terrorism Financing
Act 2006
“
Applicable Percentage
” means, with respect to any Lender, the percentage (carried out to
the ninth decimal place) of the Facility represented by such Lender’s Commitment at such time
(or, if the Commitment of each Lender shall have been terminated or expired, then the percentage
of Total Outstandings represented by the aggregate Outstanding Amount of such Lender’s Loans).
The initial Applicable Percentage of each Lender in respect of the Facility is set forth on Schedule
1.01(b) or in the Assignment and Acceptance pursuant to which such Lender becomes a party
hereto, as applicable.
“
Applicable Rate
” means, as of any date of determination, 15% per annum.
“
Appraisal
” means, as applicable, (a) the appraisal delivered to the Administrative Agent
on or prior to the Amendment and Restatement Effective Date, or (b) any appraisal in form and
substance reasonably satisfactory to the Administrative Agent delivered to the Administrative
Agent pursuant to
Section 6.14(b)
.
“
Approved Electronic Communications
” means each notice, demand, communication,
information, document and other material that any Loan Party is obligated to, or otherwise chooses
to, provide to the Administrative Agent pursuant to any Loan Document or the transactions
contemplated therein, including
(a) any supplement to this Agreement, any joinder to any Collateral Document
(including any Australian Collateral Document) and any other written Contractual Obligation
delivered or required to be delivered in respect of any Loan Document or the transactions
contemplated therein; and
(b) any Financial Statement, financial and other report, notice, request, certificate and
other information material;
provided
,
however
, that, “Approved Electronic Communication” shall exclude
(v) any notice of Borrowing and any other notice, demand, communication,
information, document and other material relating to a request for a new Borrowing,
(w) any notice pursuant to
Section 2.08
any principal or other amount due under any Loan Document prior to the scheduled date therefor,
(x) all notices of any Default or Event of Default, and
7
(y) any notice, demand, communication, information, document and other material
required to be delivered to satisfy any of the conditions set forth in
Article 4
or any other condition
to any Borrowing hereunder or any condition precedent to the effectiveness of this Agreement.
“
Approved Electronic Platform
” has the meaning specified in
Section 9.16(a)
.
“
Approved Fund
” means any Fund that is administered or managed by (a) a Lender, (b)
an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a
Lender.
“ASX”
“
Assignment and Acceptance
” means an assignment and acceptance entered into by a
Lender and an Eligible Assignee (with the consent of any party whose consent is required by
Section 11.07(b)
), and accepted by the Administrative Agent, substantially in the form of
Exhibit F
“
Attributable Debt
” in respect of a Sale/Leaseback Transaction means, as at the time of
determination, the present value (discounted at the interest rate implicit in such transaction) of the
obligations of the lessee for net rental payments during the remaining term of the lease included
in such Sale/Leaseback Transaction (including any period for which such lease has been extended);
provided
,
however
, that if such Sale/Leaseback Transaction results in a Capital Lease Obligation,
the amount of Indebtedness represented thereby will be determined in accordance with the
definition of “Capital Lease Obligation.”
“
Auditors
” means KPMG, Ernst Young, PWC or Deloitte, or any other firm approved in
advance by the Required Lenders.
“
Australia
” means the Commonwealth of Australia.
“
Australian Borrower
” has the meaning specified in the preamble hereto.
“
Australian Collateral Documents
” means, collectively, the Australian General Security
Deed, the Australian Mortgages and each of the mortgages, collateral assignments, security
agreements, pledge agreements, account control agreements or other similar agreements delivered
to the Administrative Agent pursuant to
Section 6.12
, and each of the other agreements,
instruments or documents that creates or purports to create a Lien in favor of the Australian
Security Trustee for the benefit of the Secured Parties as security for the Obligations.
“
Australian Corporations Act
” means the
Corporations Act 2001
“
Australian Dollars
” and “
A$
” mean the lawful currency of Australia.
“
Australian
General
Security Deed
” means the general security deed dated on or about
the date of the Original Syndicated Facility Agreement between the Australian Security Trustee
and each of the Loan Parties party thereto, as amended, restated, amended and restated
supplemented or otherwise modified from time to time.
8
“
Australian Guarantor
” means each Guarantor listed on Schedule 1.01(a) incorporated in
Australia, and each of the existing and future, direct or indirect, Foreign Subsidiaries (other than
any Excluded Subsidiary) incorporated in Australia that guarantees the Obligations pursuant to
Section 6.16
.
“
Australian Insolvency Proceeding
” means in respect of a Loan Party or any of its
Subsidiaries, the happening of any of the following:
(a) an order is made that it be wound up;
(b) the appointment of a liquidator to it;
(c) the appointment of a provisional liquidator to it and the provisional liquidator is
required to admit all debts to proof or pay all debts capable of being admitted to proof
proportionately;
(d) it is under administration or wound up or has had a controller appointed to its
property;
(e) it is subject to any arrangement, assignment, moratorium or composition, protected
from creditors under any statute, or dissolved (in each case, other than to carry out a reconstruction
or amalgamation while solvent on terms approved by the Administrative Agent); or
(f) entry by it into a scheme of arrangement or deed of company arrangement,
composition with, or assignment for the benefits of, all or any class of, its creditors.
“
Australian Loan Party
” means each Australian Borrower and each Australian Guarantor.
“
Australian Mining Tenements
” means Mining Lease Numbers 1878, 1990, 80010,
80011, 80012, 80086, 80110, 80112, 80123, 80171, 700006, 700007, 700008 and 700009 and
Mineral Development Licence Numbers 162, 328 and 329 and any renewals, extensions and
amendments thereof and any tenements issued to CCPL.
“
Australian Mortgages
” means (i) each real property mortgage to be granted by a Loan
Party over its interests in freehold property in Australia, (ii) each real property mortgage to be
granted by a Loan Party over its interests in leasehold property in Australia and (iii) each mining
tenement mortgage to be granted by a Loan Party over its interest in the Australian Mining
Tenements, as amended, restated, amended and restated supplemented or otherwise modified from
time to time.
“
Australian Parent
” has the meaning specified in the preamble hereto.
“
Australian PPS Act
” means the
Personal Property Securities Act 2009
“
Australian PPS Law
” means:
(a) the Australian PPS Act;
9
(b) regulations made under the Australian PPS Act as amended from time to time; or
(c) any amendment made at any time to any other legislation as a consequence of an
Australian PPS Law referred to in
clauses (a)
(b)
the Australian Corporations Act.
“
Australian Pension Plan
” means the Australian Superannuation Guarantee Scheme
(established under the Superannuation Guarantee (Administration) Act 1992 (Cth)), a defined
benefit scheme (whether established by deed or under statute of Australia or any state or territory
of Australia) and any other superannuation or pension plan maintained or contributed to by, or to
which there is or may be an obligation to contribute by, any Loan Party in respect of its Australian
employees and officers or former employees and officers.
“
Australian Priority Payables Reserve
” means on any date of determination, a reserve in
such amount as the Administrative Agent may determine (acting on the instructions of all Lenders,
acting reasonably) which reflects amounts secured by any rights (whether imposed under a statute
of Australia or any state or territory of Australia), Liens, choate or inchoate, which rank or are
capable of ranking in priority to the Administrative Agent’s or Collateral Agent’s Liens and/or for
amounts which represent costs relating to the enforcement of the Administrative Agent’s or
Collateral Agent’s Liens including to the extent applicable by operation of law, any such amounts
due and not paid for wages, long service leave or vacation pay (including amounts protected by
the Fair Work Act 2009 (Cth)), any preferential claims as set out in the Australian Corporations
Act, amounts due and not paid under any legislation relating to workers’ compensation or to
employment insurance, all amounts deducted or withheld and not paid and remitted when due
under the TAA (but excluding Pay as You Go installment amounts) and amounts currently or past
due and not contributed, remitted or paid in respect of any Australian Pension Plan, together with
any charges which may be levied by a Governmental Authority as a result of any default in
payment obligations in respect of any Australian Pension Plan.
“
Australian Provisional Invoice
” means an Account generated by way of a provisional
invoice for payment for sale of Coal Inventory which:
(a) is sourced from a Loan Party’s Australian mine site;
(b) is based on a historic price; and
(c) is subject to adjustment by way of generation of a further Account or credit note
(for any difference) once current price becomes known.
“
Australian Recognition Certificate
” means a “Recognition Certificate” as defined in the
Australian Security Trust Deed.
“
Australian Security Trust Deed
” means the security trust deed dated 12 May 2021, by
and among each of the Loan Parties party thereto and the Australian Security Trustee, as amended,
restated, amended and restated supplemented or otherwise modified from time to time.
10
“
Australian Security Trustee
” means Global Loan Agency Services Australia Nominees
Pty Ltd (ABN 39 608 945 008) in its capacity as security trustee for the Secured Parties or any
successor security trustee appointed in accordance with this Agreement.
“
Australian Subordination Deed
” means the subordination deed dated as of the date
hereof, by and among the Administrative Agent and each of the Loan Parties party thereto, as
amended, restated, amended and restated supplemented or otherwise modified from time to time.
“
Australian Tax Agreement
” means the Tax Sharing and Funding Agreement dated 20
December 2018 between the Australian Parent, each other Australian Loan Party and Coronado
Curragh LLC.
“
Australian Tax Consolidated Group
” means a ‘Consolidated Group’ or a ‘MEC Group’,
each as defined in the ITAA 1997.
“
Australian TFA
” mans a tax funding agreement between each member of the Australian
Tax Consolidated Group which includes
(a) reasonably appropriate arrangements for the funding of income tax (and certain
related Taxes) payments by the Head Company of the Australian Tax Consolidated Group, having
regard to the position of each member of the Australian Tax Consolidated Group;
(b) an undertaking from each member of the Australian Tax Consolidated Group to
compensate each other member adequately for loss of income tax attributes (including tax losses
and tax offsets) as a result of being a member of the Australian Tax Consolidated Group; and
(c) an undertaking from the Head Company of the Australian Tax Consolidated Group
to pay all group liabilities (as described in section 721-10 of the ITAA 1997) of the Australian Tax
Consolidated Group before the members of the Australian Tax Consolidated Group make any
payments to the Head Company of the Australian Tax Consolidated Group under the agreement.
“
Australian TSA
” means any tax sharing agreement in relation to the sharing of income
tax (and certain related Taxes) liabilities in a jurisdiction between one or more Loan Parties in that
jurisdiction, including an agreement between each member of the Australian Tax Consolidated
Group which takes effect as a tax sharing agreement under section 721-25 of the ITAA 1997 and
which complies with the ITAA 1997 and any law, official directive, request, guideline or policy
(whether or not having the force or law issued in connection with the ITAA 1936, ITAA 1997 or
TAA).
Availability
” means, at any time of determination, the Maximum Revolving Credit at
such time
minus
“
Availability Period
” means the period from and including the date of the Second
Amendment Deed to but not including the earliest to occur of:
(a) the date falling 30 days prior to the Maturity Date;
11
(b) if the Amendment and Restatement Effective Date and the first Utilisation on or
after the Amendment and Restatement Effective Date does not occur within 15 Business Days of
the date of the Second Amendment Deed, that date; and
(c) the date of termination or cancellation of the Commitments in full of each Lender.
“
Bankruptcy Code
” means Title 11 of the United States Code.
“
Beneficiary
” means the Collateral Agent, the Administrative Agent and each Lender.
“
Benefit Plan
” means any of (a) an “employee benefit plan” (as defined in ERISA) that is
subject to Title I of ERISA, (b) a “plan” as defined in and subject to Section 4975 of the Code or
(c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for
purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit
plan” or “plan”.
“
Black Lung Act
” means the Black Lung Benefits Act of 1972, 30 U.S.C. §§ 901, et seq.,
the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 801, et seq., the Black Lung Benefits
Reform Act of 1977, Pub. L. No. 95-239, 92 Stat. 95 (1978), and the Black Lung Benefits
Amendments of 1981, Pub. L. No. 97-119, Title 11, 95 Stat. 1643, in each case as amended.
“
Black Lung Liability
” means any liability or benefit obligations related to black lung
claims and benefits under the Black Lung Act, and liabilities and benefits related to
pneumoconiosis, silicosis, exposure to isocyanates or other lung disease arising under any federal
or state law.
“
Blocked Account Agreement
” means, with respect to any Deposit Account, Securities
Account, Commodities Contract or Commodities Account of any Loan Party, an agreement among
the Administrative Agent, such Loan Party and such depository bank, securities intermediary or
commodity intermediary, as applicable, sufficient to grant “control” to the Collateral Agent (a)
under 9-104 of the UCC with respect to any Deposit Account, (b) under 9-106 of the UCC with
respect to any Commodities Contract or Commodities Account, (c) under 8-106 of the UCC with
respect to any Securities Account or (d) under the Australian PPS Law.
“
Books
” means books, records, ledger cards, files, correspondence, customer lists, supplier
lists, blueprints, technical specifications, manuals, computer software and related documentation,
computer printouts, tapes, disks and related data processing software and similar items that at any
time evidence, indicate, summarize or contain information relating to any assets (including the
Collateral) or liabilities of any Loan Party or any Loan Party’s business operations or financial
condition.
“
Borrower Obligations
” means the Obligations of the Borrowers.
“
Borrower Representative
” has the meaning specified in
Section 11.21
.
“
Borrowers
” has the meaning specified in the preamble hereto.
“
Borrowing
” means any borrowing consisting of simultaneous Loans.
12
“
Borrowing Base
” means, at any time
the sum of:
(a) seventy percent (70%) of the lower of Inventory Value or Market Value of Eligible
Inventory,
plus
(b) up to seventy percent (70%) of the face value (exclusive GST, VAT and other
Taxes) of Eligible Accounts,
plus
(c) up to seventy percent (70%) of the lower of Inventory Value or Market Value of
Coal Inventory that is subject to Eligible Unbilled US Accounts, with the amount in this paragraph
(c) being capped at 30% of the face value (exclusive of GST, VAT and other Taxes) of total
Eligible Accounts at the relevant time,
less
,
(d) to the extent not included in the calculation of clauses (a) through (c) above:
(i) if the aggregate amount of any Reserves then in effect does not exceed
US$35,000,000, 70% of such Reserves; or
(ii) if the aggregate amount of any Reserves then in effect exceeds
US$35,000,000 (such excess amount being the “
Excess Reserve Amount”
), an amount
equal to the sum of US$24,500,000 and 100% of the Excess Reserve Amount.
For the avoidance of doubt, each specified percentage set forth in this definition of
“Borrowing Base” will not be reduced without the consent of the Loan Parties.
“
Borrowing Base Certificate
” means a certificate substantially in the form of
Exhibit G
(with such changes therein as may be required by the Administrative Agent, acting reasonably, to
reflect the components of the Borrowing Base including Reserves from time to time), executed
and certified as accurate and complete by the chief financial officer or chief executive officer or
group financial controller of Holdings for itself and on behalf of all other Loan Parties, which shall
include detailed calculations as to the Borrowing Base as reasonably requested by the
Administrative Agent.
“
Borrowing Base Collateral
” means the Collateral of the Loan Parties of the type included
in the definition of “Borrowing Base”.
“
Borrowing Notice
” means a notice of a Borrowing, pursuant to
Section 2.01
, which shall
be substantially in the form of
Exhibit A
.
“
Buchanan Mine
” means the underground mine located near the town of Oakwood in
Buchanan County, in the State of Virginia, in the United States of America.
“
Business
” has the meaning specified in
Section 5.09(a)
.
“
Business Day
” means a day other than a Saturday, Sunday or other day on which
commercial banks are authorized to close under the laws of, or are in fact closed in, the state of
13
New York, United States, the states of New South Wales and Queensland, Australia, Singapore or
the state where the Administrative Agent’s Office is located.
“
Capital Expenditures
” means, with respect to any Person for any period, any expenditure
in respect of the purchase or other acquisition of any fixed or capital asset (excluding normal
replacements and maintenance which are properly charged to current operations). For purposes of
this definition, the purchase price of equipment that is purchased substantially concurrently with
the trade-in of existing equipment or with insurance proceeds shall be included in Capital
Expenditures only to the extent of the gross amount by which such purchase price exceeds the
credit granted by the seller of such equipment for the equipment being traded in at such time, the
proceeds of such asset sale or the amount of such insurance proceeds, as the case may be.
“
Capital Lease
Obligation
” means an obligation that is required to be classified and
accounted for as a finance lease for financial reporting purposes in accordance with GAAP, and
the amount of Indebtedness represented by such obligation shall be the capitalized amount of such
obligation determined in accordance with GAAP; and the stated maturity thereof shall be the date
of the last payment of rent or any other amount due under such lease prior to the first date upon
which such lease may be terminated by the lessee without payment of a penalty;
provided
notwithstanding the foregoing, any obligation that would have been categorized as an operating
lease in accordance with GAAP prior to the adoption of ASU No. 2016-02 “Leases (Topic 842)”
and ASU No. 2018-11 “Leases (Topic 842)” (collectively, the “
Capital Lease Accounting
Policies
”) shall be accounted for as an operating leases for all purposes hereunder (including for
purposes of all financial definitions and calculations) and not as a finance lease. For purposes of
Section 7.01
, a Capital Lease Obligation will be deemed to be secured by a Lien on the property
being leased.
“
Capital Stock
” means:
(a) in the case of a corporation, corporate stock, including, in the case of Holdings,
shares of common stock of Holdings publicly traded on the Australian Securities Exchange in the
form of CHESS Depositary Interests convertible at the option of the holders into shares of
Holdings’ common stock on a 10-for-1 basis;
(b) in the case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate stock;
(c) in the case of a partnership or limited liability company, partnership or membership
interests (whether general or limited); and
(d) any other interest or participation that confers on a Person the right to receive a
share of the profits and losses of, or distributions of assets of, the issuing Person,
but excluding from all of the foregoing any debt securities convertible into Capital Stock, whether
or not such debt securities include any right of participation with Capital Stock, until such time as
such debt securities have been duly converted into Capital Stock.
14
“
Cash Collateral
” means Unrestricted Cash which is deposited into a Collateral Account.
“
Cash Equivalents
” means any of the following:
(a) Dollars, Australian Dollars, English pounds or Euros;
(b) securities issued or directly and fully guaranteed or insured by the government of
the United States, Australia, the United Kingdom or a Specified Member of the European Union
(collectively, the “
Specified Countries
”) or any agency or instrumentality thereof having
maturities of not more than one year from the date of acquisition;
(c) readily marketable direct obligations issued by any state of the United States or any
political subdivision thereof, or any state of Australia, in each case, having one of the two highest
rating categories obtainable from either Moody’s or S&P;
(d) certificates of deposit, time deposits and eurodollar time deposits with maturities of
one year or less from the date of acquisition, bankers’ acceptances with maturities not exceeding
one year and overnight bank deposits, in each case, with any bank organized under the laws of any
Specified Country or any state thereof (or, in the case of the United States, the District of
Columbia) or a branch of a foreign bank located in a Specified Country, in each case, having at
the date of acquisition thereof combined net capital and surplus in excess of $500,000,000;
(e) repurchase obligations with a term of not more than 30 days for underlying
securities of the types described in
clauses (b)
,
(c)
(d)
institution meeting the qualifications specified in
clause (d)
(f) commercial paper having one of the two highest ratings obtainable from Moody’s
or S&P and, in each case, maturing within one year after the date of acquisition;
(g) money market funds at least 95% of the assets of which constitute Cash Equivalents
of the kinds described in
clauses (a)
(f)
(h) (i) investments consisting of purchases of local currencies of those countries
in which Holdings or any of its Subsidiaries transacts business from time to time in the ordinary
course of business,
(ii) investments of comparable tenor and credit quality to those described in
clauses (a)
(g)
Subsidiaries operate for short-term cash management purposes and
(iii) overnight bank deposits, time deposit accounts, certificates of deposit,
banker’s acceptances and money market deposits with maturities (and similar instruments)
of 12 months or less from the date of acquisition issued by a bank or trust company which
is organized under, or authorized to operate as a bank or trust company under, the laws of
any jurisdiction (other than Specified Countries) in which Holdings or any of its
Subsidiaries transacts business from time to time in the ordinary course of business;
provided
,
however
, that such deposits do not exceed $10,000,000 in the aggregate, at any
date of determination thereafter.
15
“
CCC
” has the meaning specified in the preamble hereto.
“
CCPL
” means Coronado Curragh Pty Ltd (ACN 009 362 565).
“
CFC
” means a Person that is a controlled foreign corporation under Section 957 of the
Code.
“
Change in Law
” means the occurrence, after the date of the Second Amendment Deed,
of any of the following:
(a) the enactment, adoption or taking effect of any law, rule, regulation or treaty,
(b) any change in any law, rule, regulation or treaty or in the administration,
interpretation, implementation or application thereof by any Governmental Authority; or
(c) the making or issuance of any request, rule, guideline or directive (whether or not
having the force of law) by any Governmental Authority required to be complied with by any
Lender, or by any office of such Lender or by such Lender’s holding company, if any;
provided
(x) the Dodd-Frank Wall Street Reform and Consumer Protection Act (Pub. L. 111-
203, H.r. 4173) and all requests, rules, guidelines or directives thereunder or issued in connection
therewith; and
(y) all requests, rules, guidelines or directives promulgated by the Bank for
International Settlements, the Basel Committee on Banking Supervision (or any successor or
similar authority) or the United States or foreign regulatory authorities, in each case pursuant to
Basel III,
shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or
issued.
“
Change of Control
” means the occurrence of any of the following:
(a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the
Exchange Act), including any group acting for the purpose of acquiring, holding or disposing of
Securities (within the meaning of Rule 13d under the Exchange Act) (in each case other than the
Energy & Minerals Group and its Affiliates ) shall be the “beneficial owner” (as defined in Rules
13d-3 and 13d-5 under the Exchange Act) of Capital Stock having more, directly or indirectly,
than 50% of the total voting power of all outstanding Capital Stock of Holdings;
(b) any person alone or together with its associates (as defined in section 12 of the
Corporations Act) other than the Energy & Minerals Group and its Affiliates has voting power (as
defined in s610 of the Australian Corporations Act) in Holdings of more than 50%, or otherwise
controls Holdings (where, in this paragraph (b), “control” has the meaning given in s50AA of the
Corporations Act);
16
(c) Energy & Minerals Group and its Affiliates cease to be the “beneficial owner” (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act) of Capital Stock having more, directly
or indirectly, than 50% of the total voting power of all outstanding Capital Stock of Holdings,
other than as a result of a New Holdco Issuance;
(d) the Energy & Minerals Group and its Affiliates cease to have voting power (as
defined in s610 of the Australian Corporations Act) in Holdings of more than 50%, or otherwise
controls Holdings (where, in this paragraph (b), “control” has the meaning given in s50AA of the
Corporations Act), other than as a result of a New Holdco Issuance.
For the purposes of this definition,
Affiliate
which directly or indirectly controls, is controlled by, or is under common control with such
Person.
Control
, as used in this definition, shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a Person, whether through
the ownership of voting securities, by contract or otherwise, including the power to elect a majority
of the directors or trustees of a corporation or trust, as the case may be.
“
Chattel Paper
” has the meaning specified in the UCC and the Australian PPS Act.
“
Coal
” means coal owned by Holdings or any of its Subsidiaries, or coal that Holdings or
any of its Subsidiaries has the right to extract, in each case located on, under or within, or produced
or severed from Real Property owned by, or leased or licensed to, Holdings or any of its
Subsidiaries.
“
Coal Act
” means the Coal Industry Retiree Health Benefit Act of 1992, 26 U.S.C. §§
9701, et seq., as amended.
“
Coal Inventory
” means any Inventory consisting of metallurgical coal;
provided
, that in
the case of any such Inventory that constitutes raw coal, such raw coal Inventory shall be converted
to the “clean coal equivalent” quantity thereof.
“
Code
” means the Internal Revenue Code of 1986, as amended.
“
Collateral
” means all of the property and assets of the Loan Parties, whether real, personal
or mixed (other than Excluded Assets of a U.S. Loan Party or Foreign Excluded Assets of a Foreign
Subsidiary that is a Loan Party) that is, under the terms of the Collateral Documents (including the
Australian Collateral Documents), subject to Liens in favor of the Collateral Agent (including in
its capacity as the Australian Security Trustee (as applicable)) for the benefit of the Secured Parties
as security for the Obligations, including all proceeds and products thereof (it being understood
and agreed that the Collateral shall include both the ABL Priority Collateral and the Non-ABL
Priority Collateral).
“
Collateral Account
” means the account established by, and under the sole dominion and
control of, the Administrative Agent maintained with DBS Bank Limited, Australia branch or any
other bank reasonably acceptable to the Administrative Agent and designated by the Borrowers as
the “Coronado Collateral Account”.
17
“
Collateral Agent
” has the meaning specified in the preamble hereto and, in respect of the
Australian Collateral Documents, the Australian Security Trustee.
“
Collateral Documents
” means, collectively, the Security Agreement, the Mortgages and
each of the mortgages, collateral assignments, security agreements, pledge agreements or other
similar agreements delivered to the Administrative Agent pursuant to
Section 6.12
, and each of
the other agreements, instruments or documents that creates or purports to create a Lien in favor
of the Collateral Agent and/or the Australian Security Trustee for the benefit of the Secured Parties
as security for the Obligations (including the Australian Collateral Documents).
“
Commercial Tort Claim
” has the meaning specified in the UCC.
“
Commitment
” means, as to each Lender, the amount set forth under the caption
“Commitment” opposite such Lender’s name on Schedule 1.01(b), or, as the case may be, opposite
such caption in the Assignment and Acceptance pursuant to which such Lender becomes a party
hereto, as applicable, as such amount may be adjusted from time to time in accordance with this
Agreement. The aggregate amount of the Commitments as of the Amendment and Restatement
Effective Date is $150,000,000.
“
Commitment Fee
” has the meaning specified in
Section 2.13(a)
.
“
Commodities
Account
” has the meaning specified in the UCC.
“
Commodities Contract
” has the meaning specified in the UCC.
“
Commodity Agreement
” means any commodity futures contract, commodity option or
other similar agreement or arrangement with respect to commodity prices.
“
Commodity Exchange Act
” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.),
as amended from time to time, and any successor statute.
“
Compliance Certificate
” means a certificate substantially in the form of
Exhibit E
.
“
Consolidated EBITDA
” means for any period, Consolidated Net Income for such period
plus, to the extent such amount was deducted in calculating such Consolidated Net Income (or
minus, to the extent such amount was added in calculating such Consolidated Net Income, as
applicable):
(i) Consolidated Interest Expense;
(ii) income tax expense (benefit or expenses);
(iii) depreciation, depletion and amortization expense;
(iv) any extraordinary, discrete or non-recurring items that are excluded in
analyzing operating performance, including, without limitation, (i) losses on debt
extinguishment, (ii) uncertain stamp duty position; (iii) losses on idled assets held for sale,
(iv) gains on disposal of assets held for sale, (v) provision for discounting and credit losses
18
and (vi) other foreign exchange losses (or gains, as applicable);non-cash impairment
charges or asset write-offs and non-cash charges due to cumulative effects of changes in
accounting principles,
(i) unrealized gains or losses from derivative instruments included in
Consolidated Net Income; and
(ii) the effect of any non-cash impairment charge affecting goodwill or
intangibles,
all as determined on a consolidated basis for Holdings and its Subsidiaries in conformity
with GAAP;
provided
that if any Subsidiary is not a wholly-owned Subsidiary, Consolidated
EBITDA will be reduced (to the extent not otherwise reduced in accordance with GAAP) by an
amount equal to (A) the amount of the Consolidated EBITDA attributable to such Subsidiary
multiplied by (B) the percentage ownership interest in the income of such Subsidiary not owned
on the last day of such period by Holdings or any Subsidiary.
“
Consolidated Fixed Charges
” means, for any period, the sum (without duplication) of:
(i) Consolidated Interest Expense for such period (and for the purpose of this
definition, without deducting any interest income);
(ii) all cash and non-cash dividends paid, declared, accrued or accumulated
during such period on any Disqualified Stock of Holdings or Preferred Stock of any
Subsidiary held by Persons other than Holdings or any Subsidiary, except for dividends
payable in Holding’s Capital Stock (other than Disqualified Stock); provided that dividends
declared, accrued or accounted for in one period shall not be included in “Consolidated
Fixed Charges” of a later period when subsequently paid in such later period, less
(iii) non-cash items in relation to the Stanwell Obligations or in relation to
Indebtedness not included in paragraph (d) of
Section 7.02
, included in Consolidated
Interest Expense, including (i) amortization of debt issuance costs, (ii) original issue
discount expense, (iii) non-cash interest expense in respect of any such Indebtedness and
(iv) non-cash impact of the unwind of the discounts related to the deferred purchase price
of the Stanwell Reserved Area/Stanwell Arrangements.
“
Consolidated Interest Expense
” means for any period, the amount that would be included
in interest expense (net of interest income) on a consolidated income statement prepared in
accordance with GAAP for such period of Holdings and its Subsidiaries.
“
Consolidated Net Income
” means, with respect to any specified Person for any period,
the aggregate of the net income (or loss) of such Person and its Subsidiaries for such period, on a
consolidated basis, determined in conformity with GAAP.
“
Consolidated Tangible Assets
” means the consolidated assets of the Group as of the end
of the most recent fiscal quarter for which consolidated financial statements of Holdings are
available after deducting intangible assets.
19
“
Contractual Obligation
” means, as to any Person, any provision of any security issued
by such Person or of any agreement, document, mortgage, deed of trust, instrument or other
undertaking to which such Person is a party or by which it or any of its property is bound.
“
Control
” means the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the ability to exercise voting
power, by contract or otherwise. “
Controlling
” and “
Controlled
” have meanings correlative
thereto.
“
Control Account
” has the meaning specified in
Section 6.22
.
“
Cure Amount
” has the meaning specified in
Section 8.04
.
“
Cure Right
” has the meaning specified in
Section 8.04
.
“
Curragh Mine
” means Holdings’ open-pit mines located in Queensland’s Bowen Basin,
in Australia and the subject of the Australian Mining Tenements.
“
Curragh Transaction
” means one or more Dispositions of, or Sale/Leaseback
Transactions involving, freehold or leasehold interests in accommodation facilities held for
employees and contractors at the Curragh Mine;
provided
thereof shall not exceed $30,000,000 at any one time outstanding.
“
Currency Agreement
” means any foreign exchange contract, currency swap agreement
or other similar agreement or arrangement with respect to currency exchange rates or values.
“
Debtor Relief Laws
” means the Bankruptcy Code, Chapter 5 of the Australian
Corporations Act and all other liquidation, conservatorship, bankruptcy, assignment for the benefit
of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar
debtor relief laws of the United States, Australia or other applicable jurisdictions from time to time
in effect and affecting the rights of creditors generally.
“
Default
” means any event or condition that constitutes an Event of Default or that, with
the giving of any notice, the passage of time, or both, would be an Event of Default.
“
Default Rate
” means, at any time, an interest rate equal to (i) the Applicable Rate
plus
(iii) 6.00% per annum.
“
Delaware Divided LLC
” means any Delaware LLC which has been formed upon the
consummation of a Delaware LLC Division.
“
Delaware LLC
” means any limited liability company organized or formed under the laws
of the State of Delaware.
“
Delaware LLC Division
” means the statutory division of any Delaware LLC into two or
more Delaware LLCs pursuant to Section 18-217 of the Delaware Limited Liability Company Act.
20
“
Deposit
Account
” has the meaning specified in the UCC and includes any bank account
with a financial institution.
“
Designation Notice
” has the meaning specified in
Section 11.17(a)
.
“
Disposition
” or “
Dispose
” means the sale, transfer, license, lease, allocation or other
disposition (including any sale and leaseback transaction) of any property or asset by any Person
(or the granting of any option or other similar right), including any sale, assignment, transfer or
other disposal, with or without recourse, of any Real Property Leases, notes or accounts receivable
or any rights and claims associated therewith or entering into an agreement to do the same and
including any disposition of property to a Delaware Divided LLC pursuant to a Delaware LLC
Division.
“
Disqualified Stock
” means, with respect to any Person, any Equity Interest which by its
terms (or by the terms of any security into which it is convertible or for which it is exchangeable
at the option of the holder) or upon the happening of any event:
(a) matures or is mandatorily redeemable (other than redeemable only for Equity
Interests of such Person which is not itself Disqualified Stock) pursuant to a sinking fund
obligation or otherwise;
(b) is convertible or exchangeable at the option of the holder for Indebtedness or
Disqualified Stock; or
(c) is mandatorily redeemable or must be purchased upon the occurrence of certain
events or otherwise, in whole or in part;
in each case, on or prior to the date that is 91 days after the then-latest Maturity Date.
The amount of any Disqualified Stock that does not have a fixed redemption, repayment
or repurchase price will be calculated in accordance with the terms of such Disqualified Stock as
if such Disqualified Stock were redeemed, repaid or repurchased on any date on which the amount
of such Disqualified Stock is to be determined pursuant to this Agreement;
provided
,
however
,
that if such Disqualified Stock could not be required to be redeemed, repaid or repurchased at the
time of such determination, the redemption, repayment or repurchase price will be the book value
of such Disqualified Stock as reflected in the most recent financial statements of such Person.
“
Disregarded Domestic Person
” means any direct or indirect Domestic Subsidiary (a)
substantially all of the assets of which consist of the Equity Interests (or Equity Interests and
Indebtedness) of one or more Foreign Subsidiaries that are CFCs, (b) that is treated as a disregarded
entity for U.S. federal income tax purposes that holds no material assets other than Equity Interests
(or Equity Interests and Indebtedness) of one or more Foreign Subsidiaries that are CFCs or (c)
substantially all of the assets of which consist of the Equity Interests (or Equity Interests and
Indebtedness) of one or more other Domestic Subsidiaries of the type referred to in the
immediately preceding sub-paragraph (a) and/or (b).
21
“
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 Facility (or otherwise in order for the transactions contemplated by the Loan
Documents to be carried out) which disruption is not caused by, and is beyond the control of, any
of the parties to this Agreement; 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 to this Agreement
preventing that, or any other party to this Agreement:
(i) from performing its payment obligations under the Loan Documents; or
(ii) from communicating with other parties to this Agreement in accordance
with the terms of the Loan Documents,
and which (in either such case) is not caused by, and is beyond the control of, the party
whose operations are disrupted.
“
Dollar
” and “
$
” mean lawful money of the United States.
“
Dollar Equivalent
” means with respect to any amount denominated in a currency other
than Dollars, the equivalent amount thereof in Dollars as determined by the Administrative Agent
at such time on the basis of the Spot Rate (determined in respect of the applicable date of
determination) for the purchase of Dollars with such currency.
“
Domestic Subsidiary
” means any Subsidiary of Holdings that is organized under the laws
of the United States, any state thereof or the District of Columbia.
“
Dormant Subsidiary
” means:
(a)
Company B Virginia LLC and Metallurgical Mineral Holdings Pty Ltd; and
(b)
any other entity approved by the Administrative Agent.
“
EEA Financial Institution
” means
(a) any credit institution or investment firm established in any EEA Member Country
which is subject to the supervision of an EEA Resolution Authority,
(b) any entity established in an EEA Member Country which is a parent of an
institution described in
clause (a)
(c) any financial institution established in an EEA Member Country which is a
subsidiary of an institution described in
clauses (a)
(b)
consolidated supervision with its parent.
22
“
EEA Member Country
” means any of the member states of the European Union, Iceland,
Liechtenstein, and Norway.
“
EEA Resolution Authority
” means any public administrative authority or any person
entrusted with public administrative authority of any EEA Member Country (including any
delegee) having responsibility for the resolution of any EEA Financial Institution.
“
Eligible Accounts
”
means, at any time of determination, the aggregate amount of all
Accounts (including an Account which is an Australian Provisional Invoice) due to any of
Coronado Curragh Pty Ltd, Powhatan Mid-Vol Coal Sales LLC, Coronado II LLC or Coronado
IV LLC, or such other Loan Party as approved by the Administrative Agent (on the instructions of
the Required Lenders) from time to time;
provided
, that unless otherwise approved from time to
time in writing by the Administrative Agent (acting on the instructions of the Required Lenders),
no Account shall constitute an Eligible Account if, without duplication:
(a) except as provided in
clause (v)
from the sale of Eligible Inventory of the Loan Parties in the ordinary course of its business;
(b) (i) such Account is contingent in any respect or for any reason, not valid or
binding for any reason or the applicable Loan Party’s right to receive payment with respect to such
Account is subject to or contingent upon the satisfaction of any condition whatsoever (other than
the preparation and delivery of an invoice); or
(ii) as to which the applicable Loan Party is prohibited by applicable Law from
bringing and maintaining an action in the courts of the state or other jurisdiction where the
Account Debtor is located;
(c) such Account is not a true and correct statement of bona fide indebtedness incurred
in the amount of the Account for the sale of goods to or services rendered for the applicable
Account Debtor;
(d) the Account Debtor with respect to such Account
(i) has or has asserted a right of set-off, offset, deduction, defense, dispute, or
counterclaim against any of the Loan Parties (unless such Account Debtor has entered into
a written agreement reasonably satisfactory to the Administrative Agent to waive such set-
off, offset, deduction, defense, dispute, or counterclaim rights),
(ii) has disputed its liability (whether by chargeback or otherwise) or made any
claim with respect to the Account or any other Account of any of the Loan Parties which
has not been resolved, in each case of
clause (i)
(ii)
, without duplication, only to the
extent of the amount of such actual or asserted right of set-off, or the amount of such dispute
or claim, as the case may be;
(e) an invoice, in form and substance consistent with such Loan Party’s credit and
collection policies, or otherwise reasonably acceptable to the Administrative Agent, has not been
sent to the applicable Account Debtor in respect of such Account within 30 days of such
23
preparation or otherwise reported to the Administrative Agent as Collateral (including Accounts
identified as inactive, warranty or otherwise not attributable to an Account Debtor);
(f) such Account
(i) is not owned by a Loan Party; or
(ii) is subject to any Lien (other than Liens permitted by paragraph
(g)
(s)
of
Section 7.01
a Reserve in an amount satisfactory to the Administrative Agent acting on the instructions
of the Lenders (acting reasonably) has been established in respect thereof));
(g) such Account is the obligation of an Account Debtor that is
(i) a Loan Party or any of its Affiliates, or any of their respective directors,
officers, employees or agents;
(ii) Stanwell; or
(iii) a natural Person;
(h) such Account
(i) is subject to a partial payment plan;
(ii) was not paid in full, and any Loan Party created a new receivable for the
unpaid portion of such Account; or
(iii) constitutes or is subject to chargebacks, debit memos and other adjustments
for unauthorized deductions;
(i) such Account is created on cash on delivery terms, or on extended terms and is due
and payable more than 90 days from the invoice date thereof;
(j) such Account
(i) is not paid within 30 days following the original due date or 90 days
following the original invoice date; or
(ii) has been written off or impaired on the books of any of the Loan Parties or
has otherwise been designated on such books as uncollectible;
(k) the Account Debtor obligated upon such Account suspends business, makes a
general assignment for the benefit of creditors or fails to pay its debts generally as they come due;
(l) any Account Debtor obligated upon such Account is a debtor or a debtor in
possession under any bankruptcy law or any other federal, state or foreign (including any
provincial or territorial) receivership, liquidation, insolvency relief or any other Debtor Relief Law,
unless the payment with respect to such Account is supported by Acceptable Credit Support;
24
(m) (i) with respect to such Account (or any other Account due from the applicable
Account Debtor), in whole or in part, a check, promissory note, draft, trade acceptance, or other
instrument for the payment of money has been received, presented for payment and returned
uncollected for any reason; or
(ii) such Account is otherwise classified as a note receivable and the obligation
with respect thereto is evidenced by a promissory note or other debt instrument or
agreement;
(n) such Account is the obligation of an Account Debtor from whom 20% or more of
the face amount of all Accounts owing by such Account Debtor are ineligible under
paragraph
(j)
(o) such Account is one as to which the Collateral Agent’s Lien (and/or the Australian
Security Trustee’s Lien (as applicable)) attached thereon, for the benefit of itself and the other
Secured Parties, is not a valid first priority perfected Lien (subject to Permitted Liens for which a
Reserve in an amount satisfactory to the Administrative Agent acting on the instructions of the
Lenders (acting reasonably) has been established);
(p) Accounts as to which any of the representations or warranties in the Loan
Documents with respect to such Accounts are untrue or inaccurate in any material respect (or, with
respect to representations or warranties that are qualified by materiality, any of such
representations and warranties are untrue or inaccurate);
(q) such Account is payable in any currency other than Dollars or Australian Dollars;
(r)
(i) the Account Debtor with respect to such Account
(A) is not incorporated or organized under laws of the United
States, any state thereof or the District of Columbia, Australia, England,
Singapore, Poland, Italy or Spain; or
(B) is not located, resident or domiciled in, or does not maintain
its chief executive office in, the United States, Australia, England,
Singapore, Poland, Italy or Spain; or
(ii) the law governing the Account is not the United States, any state thereof or
the District of Columbia, Australia, England, Singapore or any other jurisdiction acceptable
to the Administrative Agent (acting on the instructions of the Required Lenders);
unless,
(A) in the case of
clause (r)(i)
, subject to the prior written consent of the
Administrative Agent (acting on the instructions of the Required Lenders),
25
(1) the jurisdiction of organization of such Account Debtor and its
location, residence, domicile and jurisdiction of its chief executive office are
satisfactory to the Administrative Agent (acting on the instructions of the Required
Lenders); and
(2) payment with respect to such Account is supported by Acceptable
Credit Support and
(B) in the case of
clause (r)(ii)
, subject to the prior written consent of the
Administrative Agent (acting on the instructions of the Required Lenders),
(1) the applicable Loan Party
(I) has delivered a written notice, in form and substance
reasonably acceptable to the Administrative Agent, to such Account Debtor
that such Loan Party has pledged, assigned or granted to the Collateral
Agent (including in its capacity as the Australian Security Trustee) a
security interest in all or any portion of its rights to such Account and the
right to receive payments thereunder (each, a “
Notification
”); and
(II) has obtained an acknowledgement, in form and substance
reasonably acceptable to the Administrative Agent, to each Notification
from each such Account Debtor; and
(2) (I) such Account is not subject to a restriction on assignment
or the contract giving rise to such Account explicitly permits such Account to be
pledged to the Collateral Agent; and
(II) the law governing the Account is a jurisdiction acceptable
to the Administrative Agent (acting on the instructions of the Required
Lenders);
(s) such Account is the obligation of an Account Debtor that
(i) is the United States government or a political subdivision thereof, or
department, agency or instrumentality thereof, unless the applicable Loan Party has duly
assigned its rights to payments of such Account to the Administrative Agent pursuant to,
and has otherwise complied with, the Federal Assignment of Claims Act of 1940, as
amended, and any other applicable state, county or municipal Law restricting assignment
thereof, which assignments and any related documents and filings, shall be satisfactory to
the Administrative Agent (acting reasonably); or
(ii) is another governmental entity (or a political subdivision thereof, or
department, agency or instrumentality thereof) of any applicable jurisdiction;
(t) such Account has been redated, extended, compromised, settled, adjusted or
otherwise modified or discounted, except discounts or modifications that are granted by a Loan
26
Party in the ordinary course of business and that are reflected in the calculation of the Borrowing
Base;
(u) the Account Debtor with respect to such Account is located in a state of the United
States of America requiring the filing of a notice of business activities report or similar report in
order to permit a Loan Party to seek judicial enforcement in such state of payment of such Account,
unless such Loan Party has qualified to do business in such state or has filed a notice of business
activities report or equivalent report for the then-current year;
(v) such Account was acquired or originated by a Person acquired in an Investment
(until such time as the Administrative Agent has completed a customary due diligence
investigation as to such Accounts and such Person, which investigation may, if required by the
Administrative Agent (acting on the instructions of the Required Lenders), include an appraisal
and/or field examination, and the Administrative Agent is satisfied with the results thereof acting
reasonably);
(w) such Account
(i) represents a sale on a bill-and-hold, guaranteed sale, sale and return, ship-
and-return, sale on approval, consignment or other similar basis; or
(ii) was made pursuant to any other agreement providing for repurchases or
return of any merchandise which has been claimed to be defective or otherwise
unsatisfactory;
(x) any such Account that is the obligation of an Account Debtor that is, to the
knowledge of any Borrower or the Administrative Agent, a Sanctioned Person;
(y) any such Account that is subject to a restriction on assignment that is enforceable
against third parties and that impairs the Collateral Agent’s Lien (and/or the Australian Security
Trustee’s Lien) on such Account or the Administrative Agent’s ability to enforce the Account or
any such Account that is not otherwise capable of assignment or transfer to the Collateral Agent
or other Beneficiary; or
(z) (i) such Account was invoiced in advance of Coal Inventory being provided,
(ii) such Account was invoiced twice or more, or
(iii) the associated revenue has not been earned;
(aa) the goods giving rise to such Account have not been shipped and/or title has not
been transferred to the Account Debtor, or the Account represents a progress billing or otherwise
does not represent a complete sale; for purposes hereof, “progress billing” means any invoice for
goods sold or leased or services rendered under a contract or agreement pursuant to which the
Account Debtor’s obligation to pay such invoice is conditioned upon the completion by a Loan
Party of any further performance under the contract or agreement;
27
(bb) if applicable, such Account is not subject to the insurance requirements in
Section
6.11
; or
(cc) such Account is otherwise unacceptable to the Administrative Agent (acting
reasonably).
In determining the amount of any Account, the face amount of such Account shall be
reduced by, without duplication, to the extent not reflected in such face amount, (A) the amount
of all accrued and actual discounts, claims, credits or credits pending, promotional program
allowances, price adjustments, finance charges or other allowances (including any amount that any
of the Loan Parties may be obligated to rebate to a customer pursuant to the terms of any written
agreement or understanding), (B) the aggregate amount of all limits and deductions provided for
in this definition and elsewhere in the Loan Documents, if any, and (C) the aggregate amount of
all cash received in respect of such Account but not yet applied by a Loan Party to reduce the
amount of such Account.
Notwithstanding the foregoing, if at any time the aggregate amount of all Accounts of any
single Account Debtor and its Affiliates exceeds 40% of the aggregate amount of all Eligible
Accounts, then the Accounts of such Account Debtor in excess of such percentage shall not be
deemed “Eligible Accounts”, unless such Account is supported by Acceptable Credit Support.
“
Eligible Assignee
” means
(a) a Lender;
(b) an Affiliate of a Lender;
(c) an Approved Fund; and
(d) any other Person,
in each case, without the consent or approval of any Loan Party,
provided
that in no event shall
Holdings or its Subsidiaries (or any Affiliate thereof) be an “Eligible Assignee”.
“
Eligible Inventory
” means, at any time of determination, all Coal Inventory of the Loan
Parties at such time (including, without limitation, all Coal Inventory located at mines and ports
reported in the most recent Borrowing Base Certificate provided to the Administrative Agent);
provided
, that unless otherwise from time to time approved in writing by the Administrative Agent
(acting on the instructions of the Required Lenders), no Coal Inventory shall constitute Eligible
Inventory if, without duplication:
(a) the applicable Loan Party does not have good and valid title to such Inventory, free
and clear of any Lien (other than Permitted Liens (and, to the extent such Permitted Lien is senior
to the Liens securing the Obligations, a Reserve has been established in respect thereof (including,
in respect of Inventory subject to retention of title, amounts equal to amounts payable to suppliers
of such Inventory)));
28
(b) the Administrative Agent’s Lien on such Inventory, for the benefit of itself and the
other Secured Parties, is not a valid first priority perfected Lien (subject to Permitted Liens for
(and, to the extent such Permitted Lien is senior to the Liens securing the Obligations, a Reserve
in an amount satisfactory to the Administrative Agent acting on the instructions of the Lenders
(acting reasonably) has been established in respect thereof));
(c) any of the representations or warranties in the Loan Documents with respect to
such Inventory are untrue or inaccurate in any material respect (or, with respect to representations
or warranties that are qualified by materiality, any of such representations and warranties are
untrue or inaccurate);
(d) such Inventory constitutes goods held on consignment (including any goods
consigned at the location of a customer, supplier or contractor, but that are accounted for in the
Inventory balance of the Loan Parties);
(e) such Inventory is not held in an Acceptable Storage Location other than any Coal
Inventory that is either (a) in-transit between mines and wash plants or (b) from wash plants to
ports;
(f) such Inventory is being processed or manufactured offsite (unless such processor
or manufacturer has delivered to the Administrative Agent a Landlord Lien Waiver and such other
documentation as the Administrative Agent may reasonably require);
(g) such Inventory was acquired or originated by a Person acquired in an Investment
(until such time as the Administrative Agent has completed a customary due diligence
investigation as to such Inventory and such Person, which investigation may, if required by the
Administrative Agent (acting on the instructions of the Required Lenders), include an inventory
appraisal and/or field examination, and the Administrative Agent (acting on the instructions of the
Required Lenders) is satisfied with the results thereof (acting reasonably));
(h) such Inventory is obsolete, slow-moving, nonconforming or unmerchantable or is
identified as a write-off, overstock or excess by any of the Loan Parties;
(i) any such Inventory is not metallurgical coal;
(j) any such Inventory as to which any of the Loan Parties takes an unrecorded book
to physical inventory reduction; or
(k) such Inventory is otherwise unacceptable to the Administrative Agent (acting on
the instructions of the Required Lenders).
“
Eligible Unbilled US Account
” means, at any time of determination, without duplication,
each Unbilled US Account of the Loan Parties which, other than due to its unbilled status,
constitutes an Eligible Account at such time;
provided
, that unless otherwise approved from time
to time in writing by the Administrative Agent (acting on the instructions of the Required Lenders),
an Unbilled US Account may only constitute an Eligible Unbilled US Account if:
29
(a) the entire amount of the relevant Coal Inventory pertaining to such Unbilled US
Account has been shipped from a mine or wash plant, with the intended destination being either a
domestic or export port, shipping terminal, customer location or other waypoint at which it is to
be weighed and graded, with the additional expectation that, if such port, shipping terminal or
other waypoint, is not a customer location, the entire amount of the relevant Coal Inventory
pertaining to such Unbilled US Account is expected to be loaded onto a vessel and shipped to a
customer;
(b) a provisional invoice has been created but has not yet been sent to the Account
Debtor (other than in the case of an Account where the Account Debtor is Pacific Minerals Limited
in which case an Account in the form of a provisional invoice may have been sent); and
(c) the provisional invoice related to such Unbilled US Account was created less than
30 days ago.
“
Environment
” means ambient and indoor air, surface water and groundwater (including
potable water, navigable water and wetlands), the land surface or subsurface strata or sediment,
and natural resources such as flora or fauna.
“
Environmental Laws
” means any and all Laws or other governmental restrictions,
including the common law and any governmental concessions, grants, franchises or agreements,
in each case having the force of law relating to
(a) (i) preservation or protection of the Environment or
(ii) the generation, manufacture, use, labeling, treatment, storage, handling, or
transportation of pollutants, contaminants, chemicals, or industrial, toxic or hazardous
materials, substances or wastes, or the emission, discharge, release or threatened release of
such materials, substances or wastes into the Environment,
(b) the SMCRA,
(c) the MSHA,
(d) human health as affected by exposure to hazardous or toxic materials substances or
wastes,
(e) acid mine drainage or
(f) mining operations and activities to the extent relating to protection of the
Environment or Reclamation;
provided
, that “Environmental Laws” do not include any laws relating to worker or retiree benefits,
including benefits arising out of occupational diseases.
“
Environmental Liability
” means any liability, contingent or otherwise (including any
liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the
30
Borrowers, any other Loan Party or any of their respective Subsidiaries directly or indirectly
resulting from or based upon
(a) any non-compliance with any Environmental Law,
(b) the generation, use, handling, transportation, storage, treatment or disposal of any
Hazardous Materials,
(c) exposure to any Hazardous Materials,
(d) the release or threatened release of any Hazardous Materials into the Environment,
(e) Reclamation or
(f) any contract, agreement or other consensual arrangement pursuant to which
liability is assumed or imposed with respect to any of the foregoing.
“
Environmental Permits
” means any and all permits, licenses, registrations, certifications,
exemptions and any other authorization required under any applicable Environmental Law
(including, without limitation, those necessary under any applicable Environmental Laws for the
construction, maintenance and operation of any coal mine or related processing facilities or
Reclamation).
“
Equipment
” has the meaning specified in the UCC.
“
Equity Interests
” means Capital Stock and all warrants, options or other rights to acquire
Capital Stock (but excluding any debt security that is convertible into, or exchangeable for, Capital
Stock, until such debt security has been converted into Capital Stock).
“
ERISA
” means the Employee Retirement Income Security Act of 1974, as amended, and
the rules and regulations promulgated thereunder.
“
ERISA Affiliate
” means any trade or business (whether or not incorporated) under
common control with any of the Loan Parties or any of its Subsidiaries within the meaning of
Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of
provisions relating to Section 412 of the Code).
“
ERISA Event
” means
(a) a Reportable Event with respect to a Pension Plan;
(b) a withdrawal by any Loan Party or any ERISA Affiliate from a Pension Plan
subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as
defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a
withdrawal under Section 4062(e) of ERISA;
31
(c) a complete or partial withdrawal by any Loan Party or any ERISA Affiliate from a
Multiemployer Plan or notification that a Multiemployer Plan is in “endangered” or “critical”
status;
(d) the filing of a notice of intent to terminate, the treatment of a Plan amendment as a
termination under Section 4041 or 4041A of ERISA, or the commencement of proceedings by the
PBGC to terminate a Pension Plan or Multiemployer Plan;
(e) an event or condition which constitutes grounds under Section 4042 of ERISA for
the termination of, or the appointment of a trustee to administer, any Pension Plan or
Multiemployer Plan;
(f) the imposition of any Lien pursuant to ERISA or the Code with respect to any
Pension Plan or any liability under Title IV of ERISA, other than for PBGC premiums due but not
delinquent under Section 4007 of ERISA, upon any Loan Party or any of their respective ERISA
Affiliates; or
(g) the failure to meet the minimum funding standard of Section 412 of the Code with
respect to a Pension Plan or the filing of a request for a waiver of such standards.
“
Erroneous
Payment
” has the meaning assigned to it in
Section 9.17(a)
.
“
Erroneous Payment Deficiency Assignment
” has the meaning assigned to it in
Section
9.17(d)
.
“
Erroneous Payment Impacted Class
” has the meaning assigned to it in
Section 9.17(d)
.
“
Erroneous Payment Return Deficiency
” has the meaning assigned to it in
Section
9.17(d)
.
“
Erroneous Payment Subrogation Obligations
” has the meaning assigned to it in
Section
9.17(d)
.
“
Euros
”, “
EUR
” and “
€
” mean the single currency unit of the Participating Member States.
“
Event of Default
” has the meaning specified in
Section 8.01
.
“
Excluded Account
” means
(a) any Deposit Account, Securities Account or Commodities Account of any Loan
Party holding at all times less than $500,000 individually and $2,000,000 in the aggregate; and
(b) any other Deposit Account of any Loan Party used exclusively to hold funds
(i) to be used to pay payroll and other employee wage and benefit payments
to or for the benefit of any Loan Party’s or any of its Subsidiaries’ officers, directors or
employees,
32
(ii) to be used to pay Taxes (including sales Tax) required to be collected,
remitted or withheld by any Loan Party or any of its Subsidiaries,
(iii) zero balance disbursement accounts, or
(iv) which any Loan Party or any of its Subsidiaries holds on behalf of a third
party (other than any Affiliate of such Loan Party or such Subsidiary) as escrow or
fiduciary for such third party.
“
Excluded Assets
” has the meaning specified in the Security Agreement and applies in
respect of the property and assets of a U.S. Loan Party only.
“
Excluded Equity Interests
” has the meaning specified in the Security Agreement.
“
Excluded Subsidiary
” means any Subsidiary of Holdings that is a Disregarded Domestic
Person, a CFC or a Subsidiary of a CFC.
Notwithstanding the foregoing, (x) no Subsidiary of Holdings that is a direct or indirect parent of
the Australian Borrower or the CCC may be an Excluded Subsidiary and (y) any Subsidiary that
guarantees the Senior Secured Notes or any other Series of Notes Secured Debt shall not be an
Excluded Subsidiary.
Notwithstanding anything hereunder or under any Loan Documents, no Subsidiary (x) formed or
organized under the laws of Australia (or successors thereto) or (y) that is a Subsidiary of Holdings
as of the Amendment and Restatement Effective Date (or successors thereto), in each case, shall
be considered a CFC or Disregarded Domestic Person or be subject to any Section 956 Limitations,
or be or become owned by any entity other than Loan Parties (such that Lenders are unable to
obtain a 100% pledge of the Equity Interests issued by such entities described under clause (x) and
clause (y)); for purposes of the foregoing, “
Section 956 Limitation
” means any exclusion or
limitation on an entity providing guarantees, pledging its assets, or engaging in any repayment or
repatriation transaction or on the pledge of Equity Interests issued by such entity, in each case, as
a result of such entity being considered a CFC or any adverse tax consequences, cost or impact
under Section 956 of the Code.
“
Excluded Swap Obligation
” means, with respect to any Guarantor, any Swap Obligation
if, and to the extent that, all or a portion of the Guarantee of such Guarantor of, or the grant by
such Guarantor of a security interest to secure, such Swap Obligation (or any Guarantee thereof)
is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the
Commodity Futures Trading Commission (or the application or official interpretation of any
thereof) by virtue of such Guarantor’s failure for any reason not to constitute an “eligible contract
participant” as defined in the Commodity Exchange Act at the time the Guarantee of such
Guarantor becomes effective with respect to such related Swap Obligation. If a Swap Obligation
arises under a master agreement governing more than one swap, such exclusion shall apply only
to the portion of such Swap Obligation that is attributable to swaps for which such Guarantee or
security interest is or becomes illegal.
33
“
Excluded Taxes
” means, with respect to the Administrative Agent, any Lender or any
other recipient of any payment to be made by or on account of any obligation of the Borrowers
hereunder,
(a) branch profits Taxes, Taxes imposed on or measured by net income (however
denominated), and franchise Taxes, in each case,
(i) imposed on it as a result of the Administrative Agent, such Lender (or such
other recipient) being organized under the laws of, or having its principal office located in,
the jurisdiction imposing such Tax (or any political subdivision thereof), or
(ii) that are Other Connection Taxes,
(b) any Tax that is attributable to the failure of the Administrative Agent, such Lender
(or such other recipient) to comply with
Section 3.01(f)
,
(c) any withholding Taxes imposed under FATCA,
(d) any deduction or withholding arising as a result of a notice or direction under
Section 260-5 of Schedule 1 to the TAA, or under Section 255 of the ITAA 1936 or under other
similar legislation (as applicable) requiring an Australian Loan Party (or any person on their
behalf) to deduct or withhold from sums payable by it to a person under this Agreement an amount
on account of any Taxes or other charges payable by the payee to the extent such deduction or
withholding is not on account of an Indemnified Tax, or
(e) Tax required to be deducted or withheld that could have been avoided had the
relevant payee provided the Australian Loan Party with its name, address, Australian Business
Number, Tax File Number, similar details or proof of other applicable exemptions or complied
with any necessary procedural formalities.
“
Existing Credit Facilities
” means the facilities provided pursuant to the Existing
Syndicated Facility Agreement.
“
Existing Syndicated Facility Agreement
” means the syndicated facility agreement dated
12 May 2021 among the Loan Parties, Citibank, N.A., BMO Harris Bank N.A. and Credit Suisse
Securities (USA) LLC.
“
Facility
” has the meaning specified in the introductory statement hereto.
“
Fair Market Value
” means, with respect to any asset or property, the price which could
be negotiated in an arm’s length, free market transaction, for cash, between a willing seller and a
willing and able buyer, neither of whom is under undue pressure or compulsion to complete the
transaction.
“
FATCA
” means Sections 1471 through 1474 of the Code, as of the date of the Original
Syndicated Facility Agreement (or any amended or successor version that is substantively
comparable and not materially more onerous to comply with) and any current or future regulations
or official interpretations thereof and any agreement entered into pursuant to Section 1471(b)(1)
34
of the Code, and any fiscal or regulatory legislation, rules or practices adopted pursuant to any
intergovernmental agreement, treaty or convention among Governmental Authorities and
implementing such Sections of the Code.
“
FATCA Deduction
” means a deduction or withholding from a payment under a Loan
Document required by FATCA.
“
Federal Funds Rate
” means, for any period, a fluctuating interest rate per annum equal
for each day during such period to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the immediately preceding
Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for
any day that is a Business Day, the average of the quotations for such day on such transactions
received by the Administrative Agent from three Federal funds brokers of recognized standing
selected by it.
“
Federal Reserve Board
” means the Board of Governors of the United States Federal
Reserve System, or any successor thereto.
“
Fee Letter
” means, any fee letter between a Loan Party and a Secured Party dated on or
about the date of the Original Syndicated Facility Agreement and on or about the date of the
Second Amendment Deed or any other letter so designated by any Loan Party and any Finance
Party.
“
Financial Statements
” means the financial statements of Holdings and its Subsidiaries,
on a consolidated basis, delivered in accordance with
Section 6.01
.
“
Financing Lease
” means any lease of property, real or personal, the obligations of the
lessee in respect of which are required in accordance with GAAP to be capitalized on a balance
sheet of the lessee;
provided
Financing Lease shall be the capitalized amount thereof appearing on such balance sheet in
accordance with GAAP.
“
Fixtures
” has the meaning specified in the UCC and the Australian PPS Law.
“
Foreign Excluded Asset”
pledge of which would result in adverse tax consequences, and in each case applies in respect of
the property and assets of a Loan Party that is a Foreign Subsidiary.
“
Foreign Lender
” means, with respect to the Borrowers, any Lender that is organized
under the laws of a jurisdiction other than the United States, any state thereof or the District of
Columbia.
“
Foreign Subsidiary
” means any Subsidiary of Holdings that is not a Domestic Subsidiary.
“
Fund
” means any Person (other than a natural person) that is (or will be) engaged in
making, purchasing, holding or otherwise investing in commercial loans and similar extensions of
credit in the ordinary course of its business.
35
“
Funded Debt
” means, with respect to any specified Person, any Indebtedness of such
Person (excluding accrued expenses and trade payables), whether or not contingent,
(a) in respect of borrowed money or advances (and Guarantees thereof); or
(b) evidenced by loan agreements, bonds, notes or debentures or similar instruments or
letters of credit or bank guarantees (solely to the extent such letters of credit, bank guarantees or
other similar instruments have been drawn and remain unreimbursed) or, without duplication,
reimbursement agreements in respect thereof.
“
Future Notes Priority Lien Indebtedness
” means any Indebtedness of the Australian
Borrower and/or the Guarantors that is secured by a Lien on the Collateral ranking equally and
ratably with the Senior Secured Notes as permitted by the Senior Secured Notes Indenture;
provided
(a) the trustee, agent or other authorized representative for the holders of such
Indebtedness (other than in the case of any additional notes issued pursuant to the Senior Secured
Notes Indenture) shall execute a joinder or amendment to the applicable Notes Security
Documents and the ABL Intercreditor Agreement and Stanwell Intercreditor Agreement, as
applicable;
(b) Holdings shall designate such Indebtedness as “Future Priority Lien
Indebtedness”; and
(c) such Indebtedness is permitted under this Agreement.
“
GAAP
” means generally accepted accounting principles in the United States set forth in
the opinions and pronouncements of the Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial Accounting
Standards Board or in such other statements by such other entity as have been approved by a
significant segment of the accounting profession, which are in effect on the Amendment and
Restatement Effective Date other than the Capital Lease Accounting Policies.
“
GST
” means a goods and services tax, or a similar value added tax, levied or imposed
under the GST Law.
“
GST Group
”
has the same meaning as in the GST Law.
“
GST Law
” has the meaning given to it in the
A New Tax System (Goods and Services Tax)
Act 1999
other jurisdiction.
“
General Intangible
” has the meaning set forth in Article 9 of the UCC and the meaning
given to the term “intangible property” in the Australian PPS Act.
“
Goods
” has the meaning specified in the UCC and the Australian PPS Act.
“
Governmental Authority
” means the government of the United States, Australia or any
other nation, or any political subdivision thereof, whether state or local, and any agency, authority,
36
instrumentality, regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to
government (including any supra-national bodies such as the European Union or the European
Central Bank).
“
Greenbrier Mine
” means the underground bord and pillar mine and the surface contour
and highwall mining operations located in the Greenbrier and Nicholas Counties of West Virginia,
in the United States of America.
“
Group
” means Holdings and its Subsidiaries.
“
Guarantee
” means, as to any Person (the “guaranteeing person”), any obligation of
(a) the guaranteeing person or
(b) another Person (including, without limitation, any bank under any letter of credit or
bank guarantee) to the extent the guaranteeing person has issued a reimbursement,
counterindemnity or similar obligation, in either case guaranteeing or in effect guaranteeing any
Indebtedness, leases, dividends or other obligations (the “
primary obligations
”) of any other third
Person (the “
primary obligor
”) in any manner, whether directly or indirectly, including, without
limitation, reimbursement obligations under letters of credit and bank guarantees and any
obligation of the guaranteeing person, whether or not contingent,
(i) to purchase any such primary obligation or any property constituting direct
or indirect security therefor,
(ii) to advance or supply funds (1) for the purchase or payment of any such
primary obligation or (2) to maintain working capital or equity capital of the primary
obligor or otherwise to maintain the net worth or solvency of the primary obligor,
(iii) to purchase property, securities or services primarily for the purpose of
assuring the owner of any such primary obligation of the ability of the primary obligor to
make payment of such primary obligation or
(iv) otherwise to assure or hold harmless the owner of any such primary
obligation against loss in respect thereof;
provided
,
however
, that the term Guarantee shall not include
(x) ordinary course performance guarantees by any Loan Party of the
obligations (other than for the payment of borrowed money) of any other Loan Party in the
ordinary course of trading of that Loan Party and
(y) endorsements of instruments for deposit or collection in the ordinary course
of business.
The amount of any Guarantee obligation of any guaranteeing person shall be deemed to be the
lower of
37
(a) an amount equal to the stated or determinable amount of the primary obligation in
respect of which such Guarantee obligation is made and
(b) the maximum amount for which such guaranteeing person may be liable pursuant
to the terms of the instrument embodying such Guarantee obligation, unless such primary
obligation and the maximum amount for which such guaranteeing person may be liable are not
stated or determinable, in which case the amount of such Guarantee obligation shall be such
guaranteeing person’s maximum reasonably anticipated liability in respect thereof as determined
by the Borrowers in good faith.
The term “
Guarantee
” as a verb has a corresponding meaning.
“
Guarantor
” means each Guarantor listed on
Schedule 1.01(a), and each of the existing
and future, direct or indirect, Subsidiaries of Holdings (other than any Excluded Subsidiary or
Dormant Subsidiary) that guarantees the Obligations pursuant to
Section 6.16
.
“
Hazardous Materials
” means any substances, materials or wastes, defined, listed or
regulated as “hazardous”, “toxic”, a “pollutant”, or a “contaminant” (or terms of similar regulatory
intent or meaning) under, any applicable Environmental Law or that could reasonably be expected
to give rise to liability under, any applicable Environmental Law, including, without limitation,
asbestos, polychlorinated biphenyls, urea-formaldehyde insulation, gasoline or petroleum
(including crude oil or any fraction thereof), explosive substances, radioactive materials or wastes,
petroleum products, or any coal ash, coal combustion by-products or waste, boiler slag, scrubber
residue or flue desulphurization residue.
“
Head Company
” has the meaning specified in the ITAA 1997.
“
Hedge Bank
” means any entity that is a counterparty to a Secured Hedge Agreement
which has become a party to this Agreement as a Hedge Bank in accordance with
Section 11.17
.
“
Hedging Obligations
” means, with respect to any Person, any obligations arising under
any Swap Contract, Interest Rate Agreement, Currency Agreement or Commodity Agreement.
“
Holding Company
”
means
,
in relation to a Person, any other Person in respect of which
it is a Subsidiary.
“
Indebtedness
” means, with respect to any Person on any date of determination (without
duplication, whether or not contingent):
(a) The principal in respect of (i) indebtedness of such Person for borrowed money and
(ii) indebtedness evidenced by notes, debentures, bonds or other similar instruments for the
payment of which such Person is responsible or liable, including, in each case, any premium on
such indebtedness to the extent such premium has become due and payable;
(b) any amount raised under any acceptance credit, bill acceptance or bill endorsement
facility or dematerialised equivalent;
38
(c) receivables sold or discounted (other than any receivables to the extent they are
sold on a non-recourse basis);
(d) 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 of money, which would, in accordance with US GAAP, be
treated as a liability in the audited consolidated financial statements of that Person (but excluding
any amount raised pursuant to the Stanwell Arrangements);
(e) all Capital Lease Obligations of such Person and all Attributable Debt in respect of
Sale/Leaseback Transactions entered into by such Person;
(f) all obligations of such Person issued or assumed as the deferred purchase price of
property (but excluding obligations relating to the Stanwell Arrangements), all conditional sale
obligations of such Person and all obligations of such Person under any title retention agreement
(but excluding any accrued expenses or accounts payable or other liability to trade creditors arising
and paid in the ordinary course of business);
(g) all obligations of such Person for the reimbursement of any obligor on any letter of
credit, bank guarantee, bankers’ acceptance or similar credit transaction (but excluding any
aforementioned transactions which are backed by cash collateral, by the amount equal to any such
cash collateral);
(h) to the extent not otherwise included in this definition, Hedging Obligations of such
Person; and
(i) the amount of any liability in respect of any guarantee or indemnity for any of the
items referred to in
paragraphs (a)
(h)
Notwithstanding the foregoing, in connection with the purchase by Holdings or any
Subsidiary of any business, the term “Indebtedness” will exclude post-closing payment
adjustments, earn-outs or similar obligations to which the seller may become entitled to the extent
such payment is determined by a final closing balance sheet or such payment depends on the
performance of such business after the closing;
provided
,
however
, that, at the time of closing, the
amount of any such payment is not determinable and, to the extent such payment thereafter
becomes fixed and determined, the amount is paid within 60 days thereafter.
Notwithstanding the foregoing, “Indebtedness” shall not include any Reclamation
Obligations.
“
Indemnified Liabilities
” has the meaning specified in
Section 11.05
.
“
Indemnified Taxes
” means Taxes, other than Excluded Taxes, imposed on or with respect
to any payment made by or on account of any obligation of any Loan Party under any Loan
Document.
“
Indemnitee
” has the meaning specified in
Section 11.05(b)
.
39
“
Indirect Tax
” means any goods and services tax (including GST), consumption tax, value
added tax (including VAT) or any tax of a similar nature, including charges or similar levies (and
interest, fines, penalties and additions related thereto).
“
Information
” has the meaning specified in
Section 11.08
.
“
Insolvency Proceeding
” means:
(a) any voluntary or involuntary case or proceeding under any Debtor Relief Law with
respect to any Loan Party or its Subsidiaries;
(b) any other voluntary or involuntary insolvency or bankruptcy case or proceeding,
or any receivership, liquidation or other similar case or proceeding with respect to any Loan Party
or its Subsidiaries or with respect to a material portion of its assets;
(c) any liquidation, dissolution or winding up of any Loan Party or its Subsidiary other
than as permitted hereunder and under the Senior Secured Notes Documents whether voluntary or
involuntary and whether or not involving insolvency or bankruptcy;
(d) any assignment for the benefit of creditors or any other marshaling of assets or
liabilities of any Loan Party or its Subsidiaries; or
(e) any Australian Insolvency Proceeding.
“
Instrument
” has the meaning specified in the UCC.
“
Intellectual Property
” means all intellectual property of every kind and nature and any
other similar intangible rights throughout the world, including inventions, designs, patents,
copyrights, licenses, trademarks and service marks (including the goodwill connected with the use
thereof and symbolized thereby), domain names, trade secrets, confidential or proprietary technical
and business information, know-how or other confidential or proprietary data or information,
technology, processes, software and databases, together with any and all
(a) rights and privileges arising under applicable law with respect to the foregoing,
(b) income, fees, royalties, damages, claims and payments now or hereafter due and/or
payable with respect thereto, including, without limitation, damages and payments for past, present
or future infringements thereof,
(c) rights to sue for past, present or future infringements thereof, and
(d) rights corresponding thereto throughout the world.
“
Intellectual Property Security Agreements
” has the meaning specified in the Security
Agreement.
“
Intercreditor Agreements
” means the ABL Intercreditor Agreement and the Stanwell
Intercreditor Agreement.
40
“
Interest Coverage Ratio
” means, with respect to any period, the ratio of:
(a) Consolidated EBITDA for such period to
(b) Consolidated Fixed Charges during such period.
“
Interest Payment Date
” means the last day of each Interest Period applicable to such Loan
and the Termination Date.
“
Interest Period
” means, as to each Loan, the period commencing on the date such Loan
is disbursed or converted to or continued as a Loan and ending on the date one month thereafter;
provided
, that:
(a) each Loan shall have an Interest Period commencing on its Utilisation Date;
(b) the Administrative Agent may shorten the first Interest Period of a new Loan as
may be necessary so that such Interest Period ends on the Interest Payment Date of an existing
Loan;
(c) each successive Interest Period applicable to a Loan shall commence on the last day
of the immediately preceding Interest Period for that Loan;
(d) any Interest Period that would otherwise end on a day that is not a Business Day
shall be extended to the next succeeding Business Day unless such Business Day falls in another
calendar month, in which case such Interest Period shall end on the next preceding Business Day;
(e) any Interest Period that begins on the last Business Day of a calendar month (or on
a day for which there is no numerically corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest
Period; and
(f) no Interest Period shall extend beyond the Maturity Date.
“
Interest Rate Agreement
” means any interest rate swap agreement, interest rate cap
agreement, interest rate collar agreement or other financial agreement or arrangement with respect
to exposure to interest rates.
“
Inventory
” has the meaning specified in the UCC or Australian PPS Act.
“
Inventory Value
” means, at any time of determination, with respect to any Coal Inventory
of any of the Loan Parties, the actual production cost per ton thereof, based on the “clean coal
equivalent” thereof.
“
Investment
” in any Person means any direct or indirect advance, loan (other than
advances to customers in the ordinary course of business that are recorded as accounts receivable
on the balance sheet of the lender) or other extensions of credit (including by way of Guarantee or
similar arrangement) or capital contribution to (by means of any transfer of cash or other property
to others or any payment for property or services for the account or use of others), or any purchase
41
or acquisition of Equity Interests, Indebtedness or other similar instruments issued by such Person.
If Holdings or any Subsidiary issues, sells or otherwise disposes of any Equity Interests of a Person
that is a Subsidiary such that, after giving effect thereto, such Person is no longer a Subsidiary,
any Investment by Holdings or any Subsidiary in such Person remaining after giving effect thereto
will be deemed to be a new Investment at such time. The acquisition by Holdings or any
Subsidiary of a Person that holds an Investment in a third Person will be deemed to be an
Investment by Holdings or such Subsidiary in such third Person at such time. Except as otherwise
provided for herein, the amount of an Investment shall be its Fair Market Value at the time the
Investment is made and without giving effect to subsequent changes in value.
“
Ipso Facto Event
” means a Borrower is the subject of:
(a) an announcement, application, compromise, arrangement, managing controller, or
administration as described in section 415D(1), 434J(1) or 451E(1) of the Australian Corporations
Act, or
(b) any process which under any law with a similar purpose may give rise to a stay on,
or prevention of, the exercise of contractual rights.
“
ITAA 1936
” means the
Income Tax Assessment Act 1936
(Cth) of Australia.
“
ITAA 1997
” means the
Income Tax Assessment Act 1997
(Cth) of Australia.
“
Landlord Lien Waiver
” means any landlord lien waiver, estoppel, warehouseman waiver
or other collateral access or similar letter or agreement.
“
Laws
” means, as to any Person, collectively, all international, foreign, federal, state and
local laws, statutes, treaties, rules, regulations, ordinances, codes, and determinations of arbitrators
or courts or other Governmental Authorities, in each case applicable to or binding upon such
Person or any of its property or to which such Person or any of its property is subject.
“
Lender
” means each financial institution listed on Schedule 1.01(b), as well as any Person
that becomes a “Lender” hereunder pursuant to
Section 11.07(b)
.
“
Letter-of-Credit Rights, Instruments and Documents
” has the meaning specified in the
UCC.
“
Leverage Ratio
” means, as of any date of determination the ratio of
(a) the aggregate outstanding principal amount of all Indebtedness (excluding, for the
avoidance of doubt, the obligations relating to the Stanwell Arrangements) of Holdings and its
Subsidiaries on a consolidated basis as of such date (net of the Unrestricted Cash Amount as of
such date) to
(b) Consolidated EBITDA of Holdings and its Subsidiaries for the Test Period then
most recently ended for which Financial Statements have been, or were required to have been,
delivered pursuant to
Section 6.01
.
42
“
Lien
” means any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory, judgment, liens arising by operation of law or other), charge or
preference, priority or other security interest or preferential arrangement in the nature of a security
interest of any kind or nature whatsoever (including any conditional sale or other title retention
agreement, any easement, right of way or other encumbrance on title to real property, and any
financing lease having substantially the same economic effect as any of the foregoing), including
to secure any obligation of any Person or any other agreement or arrangement having a similar
effect, including any “security interest” as defined in the Australian PPS Act or the UCC, and any
option, call, trust (whether contractual, statutory, deemed, equitable, constructive, resulting or
otherwise), UCC financing statement or other preferential arrangement having the practical effect
of any of the foregoing, including any right of set-off or recoupment.
“
Limited Recourse Financial Indebtedness
”
connection with a Project relating to a Similar Business where the provider of the indebtedness
only has recourse, in respect of Holdings and its Subsidiaries, to all or any of the following:
(a) the assets used exclusively for an in connection with such project (
Project Assets
);
(b) shares in a Project Company; and
(c) the Project Company or Project Companies, provided that (other than in the case of
fraud, wilful misconduct or negligence of the Project Company), if the Project Assets do not
comprise all or substantially all of a Project Company’s business or interests the recourse is limited
to recoveries in respect of the Project Assets and the provider of the indebtedness or any agent
appointed by the provider of the indebtedness has no right to take any step towards its winding up
or dissolution or the appointment of a liquidator, administrator, administrative receiver or similar
officer in respect of it or its assets.
“
Loan
” means a loan made or to be made under the Facility or the principal amount
outstanding for the time being of that loan.
“
Loan Documents
” means, collectively, (a) this Agreement, (b) the Collateral Documents
(including the Australian Collateral Documents and any Intellectual Property Security
Agreements), (c) each Secured Hedge Agreement, (d) the ABL Intercreditor Agreement and the
Stanwell Intercreditor Agreement (e) the Australian Security Trust Deed, (f) the Australian
Subordination Deed, (g) each Borrowing Notice, (h) Fee Letters, (i) the Rights of Entry, (j) the
Blocked Account Agreements, (k) the Second Amendment Deed, (l) the Refinancing Coordination
Deed and (m) any Assignment and Acceptance.
“
Loan Parties
” means, collectively, the Borrowers and each Guarantor, and each a “
Loan
Party
”.
“
Logan Mine
” means the underground and surface mining operations located in the
Counties of Boone, Logan, and Wyoming in West Virginia, in the United States of America.
"
Make-Whole Date
" means, in respect of each Loan, the earlier of:
(a) the date falling 18 months after the Utilisation Date of such Loan; and
43
(b) the Maturity Date.
"
Make-Whole Premium
" means an amount equal to the aggregate of all interest that would
have accrued on a Loan (or part thereof) to be prepaid from the date of the prepayment until and
including the Make-Whole Date if such prepayment had not taken place; provided that, in respect
of any Loan where the Utilisation Date is less than 18 months prior to the Maturity Date, the Make-
Whole Premium shall be an amount equal to all interest that would have accrued on such Loan if
the Utilisation Date had been exactly 18 months prior to the Maturity Date, less the amount of all
interest actually paid on such Loan from the actual Utilisation Date until the Maturity Date.
“
Market Value
” means, with respect to any Coal Inventory, the fair market value thereof,
determined based on the actual selling price of coal to third-parties at any time during the period
following Wednesday (or if Wednesday is not a Business Day, Thursday) of the week immediately
preceding the calculation date and prior to the delivery of the Borrowing Base Certificate with
respect to such week, as applicable;
provided
, that if the aggregate volume of Coal Inventory sold
at any time during such period is less than the aggregate on-hand volume of Coal Inventory as of
the date of such Borrowing Base Certificate, the Market Value shall be reasonably determined in
good faith by the Loan Parties consistent with past practices of the Loan Parties.
“
Material Adverse Effect
” means a material adverse effect upon
(a) the business, assets, operations, property or condition (financial or otherwise) of
Holdings and its Subsidiaries taken as a whole,
(b) the validity or enforceability of this Agreement or any of the other Loan Documents
or the rights or remedies of the Administrative Agent or the Secured Parties hereunder or
thereunder,
(c) the validity, priority or enforceability of the Liens created or purported to be created
over the Collateral pursuant to the Collateral Documents, or
(d) the ability of the Loan Parties (taken as a whole) to perform their obligations under
the applicable Loan Documents.
“
Material Fixed Assets
” means:
(a) Material Leased Real Property; and
(b) Material Owned Real Property.
“
Material Leased Real Property
” means
(a) as of the Amendment and Restatement Effective Date, all Real Property subject to
a Real Property Lease under which Holdings, the Borrowers or any other Loan Party is the lessee
or tenant, including those listed on Schedule 5.08(a), and
(b) any other Real Property subject to a Real Property Lease that Holdings, the
Borrowers or any other Loan Party enters into or acquires after the Amendment and Restatement
44
Effective Date as the lessee or tenant thereunder for the purpose of mining or conducting mining
operations on such leased Real Property (including, without limitation, extraction of coal and other
minerals and the processing and transport thereof) in respect of which the coal royalties payable
under such Real Property Lease are or would reasonably be expected to be equal to or greater than
$1,500,000, in the aggregate, during the period from date of execution of such Real Property Lease
to the Maturity Date, as determined by Holdings on the date of execution of such Real Property
Lease in its reasonable judgment,
provided, however,
if any Material Leased Real Property requires a consent from the counterparty,
then the Loan Party a party thereto shall use commercially reasonable efforts to obtain such
consent. If such consent is not obtained within 120 days, which shall be automatically extended
by the same period of time as the Notes Priority Lien Collateral Trustee under the Senior Secured
Notes Documents may agree to extend the corresponding post-closing perfection period with
respect to the Senior Secured Notes Documents, the Administrative Agent may elect to exclude
such Real Property Lease from the definition of Material Leased Real Property.
“
Material Owned Real Property
” means any Real Property consisting of a fee or surface
estate that Holdings, the Borrowers or any other Loan Party:
(a) owns as of the Amendment and Restatement Effective Date, including those listed
on Schedule 5.08(b), or
(b) acquires an ownership interest in after the Amendment and Restatement Effective
Date for the purpose of mining or conducting mining operations on such Real Property (including,
without limitation, extraction of coal and other minerals and the processing and transport thereof)
the fair value of which, as of the date of acquisition thereof, is equal to or greater than $5,000,000
as determined by the applicable tax assessor
.
“
Material Real Property
” shall mean, collectively, all right, title and interest (including
any leasehold estate) in and to any and all parcels of or interests in real property owned, leased or
operated by any Person, whether by lease, license or other means, together with, in each case, all
improvements, fixtures, easements, hereditaments, permits and appurtenances relating thereto, and
including, with respect to the Loan Parties, all property listed on Schedule 5.08(a) and
Schedule
5.08(b)
,
excluding any portion of real property mutually agreed-upon by Borrower and
Administrative Agent containing improvements on the Amendment and Restatement Effective
Date or on each date of the acquisition thereof.
“
Maturity Date
” means the date that is three (3) years after the Amendment and
Restatement Effective Date.
“
Maximum Rate
” has the meaning specified in
Section 11.10
.
“
Maximum Revolving Credit
” means, at any time, the lesser of (i) the Borrowing Base at
such time and (ii) the aggregate amount of Commitments in effect at such time.
“
Mining Financial Assurances
” has the meaning specified in
Section 5.10
.
45
“
Mining Title
” means fee simple title to surface and/or Coal or an undivided interest in fee
simple title thereto or a leasehold interest in all or an undivided interest in surface and/or Coal
together with (A) for Real Property designated for surface mining, no less than those easements,
licenses, privileges, rights and appurtenances as are necessary to mine, remove, and transport Coal
by surface mining methods; (B) for Real Property designated for underground mining, no less than
those easements, licenses, privileges, rights and appurtenances as are necessary to mine, remove,
and transport Coal by underground mining methods; and (C) for Real Property where Holdings or
any of its Subsidiaries has facilities currently used in the Coal mining business, including office
and administrative buildings, mine openings, air shafts, preparation and processing plants, slurries
and gob disposal areas, retention and drainage ponds, unfinished Reclamation areas, coal
terminals, and coal loading and storage facilities, no less than those easements, licenses, privileges,
rights, and appurtenances as are necessary to operate such facilities in the manner presently
operated.
“
Money
” has the meaning specified in the UCC.
“
Moody’s
” means Moody’s Investors Service, Inc. and any successor thereto.
“
Mortgage
” means a deed of trust, trust deed, deed to secure debt, mortgage, leasehold
mortgage and leasehold deed of trust on Real Property or Fixtures owned or leased by any Loan
Party that is granted to secure any Obligations in form and substance reasonably satisfactory to the
Administrative Agent, in each case as amended, restated, supplemented or otherwise modified
from time to time.
“
MSHA
” means the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 801 et seq.,
as amended.
“
Multiemployer Plan
” means any employee benefit plan of the type described in Section
4001(a)(3) of ERISA, to which any Loan Party or any ERISA Affiliate makes or is obligated to
make contributions, or during the preceding five (5) plan years, has made or been obligated to
make contributions.
“
New Holdco Issuance
” means the issue of new Capital Stock by Holdings or by newly
formed direct or indirect Subsidiary of Holdings, formed for the sole purpose of issuing such
Capital Stock, in each case, for cash, to any person other than the Energy & Minerals Group and
its Affiliates after the date of the Second Amendment Deed. For the avoidance of doubt, a New
Holdco Issuance shall not include the acquisition of Capital Stock of Holdings by such person in
connection with a transfer, sale, disposal or otherwise reduction of any Capital Stock of Holdings
held by Energy & Minerals Group or any of its Affiliate as at the date of the Second Amendment
Deed.
“
Non-ABL Priority Collateral
” means all rights, title and interests of each Loan Party in
the following Collateral, in each case, whether now owned or existing or hereafter acquired or
arising and wherever located, including, without duplication,
(a) all rights of each Loan Party to receive moneys due and to become due under or
pursuant to the following,
46
(b) all rights of each Loan Party to receive return of any premiums for or Proceeds of
any insurance, indemnity, warranty or guarantee with respect to the following or to receive
condemnation Proceeds with respect to the following,
(c) all claims of each Loan Party for damages arising out of or for breach of or default
under any of the following, and
(d) all rights of each Loan Party to terminate, amend, supplement, modify or waive
performance under any of the following, to perform thereunder and to compel performance and
otherwise exercise all remedies thereunder:
(i) all machinery and Equipment;
(ii) all Material Owned Real Property and Material Leased Real Property;
(iii) all Intellectual Property;
(iv) all Equity Interests in all direct Subsidiaries of any Loan Party;
(v) all intercompany indebtedness of any Subsidiary of Holdings that is not a
Loan Party of any other Affiliate (other than a Loan Party) of any Loan Party, in each case,
owed to any Loan Party (other than, in the case of any other Affiliate of any Loan Party,
all rights to payment arising from any sale, lease, license, assignment or other disposition
of Inventory or Goods (other than Fixtures or Equipment) or the provision of services);
(vi) all Fixtures;
(vii) all other assets of any Loan Party, whether real, personal or mixed, in each
case, not constituting ABL Priority Collateral;
(viii) to the extent evidencing or governing any of the items referred to in the
preceding
clauses (i)
(vii)
, all General Intangibles, letters of credit and bank
guarantees (whether or not the respective letter of credit or bank guarantee is evidenced by
a writing), Letter-of-Credit Rights, Instruments and Documents;
provided
any of the foregoing also relates to any ABL Priority Collateral, only that portion related
to the items referred to in the preceding
clauses (i)
(vii)
Non-ABL Priority Collateral shall be included in the Non-ABL Priority Collateral;
(ix) to the extent relating to any of the items referred to in the preceding
clauses (i)
(viii)
, all insurance;
provided
also relates to ABL Priority Collateral, only that portion related to the items referred to in
the preceding
clauses (i)
(viii)
Collateral shall be included in the Non-ABL Priority Collateral;
(x) to the extent relating to any of the items referred to in the preceding
clauses (i)
(ix)
, all Supporting Obligations;
provided
foregoing also relates to ABL Priority Collateral, only that portion related to the items
47
referred to in the preceding
clauses (i)
(ix)
Priority Collateral shall be included in the Non-ABL Priority Collateral;
(xi) to the extent relating to any of the items referred to in the preceding
clauses (i)
(x)
, all Commercial Tort Claims;
provided
foregoing also relates to ABL Priority Collateral, only that portion related to the items
referred to in the preceding
clauses (i)
(x)
Priority Collateral shall be included in the Non-ABL Priority Collateral;
(xii) all Books and records, including all books, databases, customer lists and
records related thereto and any General Intangibles at any time evidencing or relating to
any of the foregoing; and
(xiii) all cash Proceeds and, solely to the extent not constituting ABL Priority
Collateral, non-cash Proceeds, products, accessions, rents and profits of or in respect of
any of the foregoing (including all insurance Proceeds) and all collateral security,
guarantees and other collateral support given by any Person with respect to any of the
foregoing;
provided
,
however
, that
(x) if Collateral of any type is received in exchange for Non-ABL Priority
Collateral pursuant to an enforcement action or during an Insolvency Proceeding, such
Collateral will be treated as Non-ABL Priority Collateral and
(y) if Collateral of any type is received in exchange for ABL Priority Collateral
pursuant to an enforcement action or during an Insolvency Proceeding, such Collateral will
be treated as ABL Priority Collateral.
“
Note Guarantors
” means Holdings and the Subsidiaries of Holdings that are guarantors
under the Notes Collateral Trust Agreement.
“
Notes Collateral Trust Agreement
” means a collateral trust agreement dated on or about
the date of the Senior Secured Notes Issue Date, by and among the Australian Borrower, the Note
Guarantors and the Notes Priority Lien Collateral Trustee.
“
Notes Collateral Trust Joinder
” means
(a) with respect to the provisions of the Notes Collateral Trust Agreement relating to
any additional Notes Priority Secured Obligations, an agreement substantially in the form attached
to the Notes Collateral Trust Agreement and
(b) with respect to the provisions of the Notes Collateral Trust Agreement relating to
the addition of additional guarantors, an agreement substantially in the form attached to the Notes
Collateral Trust Agreement.
“
Notes Hedge Agreement
” means any Interest Rate Agreement, Currency Agreement or
Commodity Agreement.
48
“
Notes Hedging Obligations
” of any Person means the obligations of such Person pursuant
to any Notes Hedge Agreement.
“
Notes Junior Lien
” means a Lien on Collateral granted by a Notes Junior Lien Security
Document to the Notes Junior Lien Collateral Trustee, at any time, upon any property of the
Australian Borrower or any Note Guarantor to secure Notes Junior Lien Obligations.
“
Notes Junior Lien Collateral Trustee
” means such Person nominated by the holders of
the Notes Junior Lien Obligations under any Notes Collateral Trust Joinder, to act in its capacity
as collateral trustee for the Notes Junior Lien Secured Parties under the Notes Collateral Trust
Agreement, together with its successors in such capacity.
“
Notes Junior Lien Debt
” means Funded Debt (excluding any ABL Debt and any Notes
Priority Lien Debt), that is secured by a Notes Junior Lien and that is permitted to be incurred and
permitted to be so secured under each applicable Notes Secured Debt Document;
provided
, that:
(a) on or before the date on which such Funded Debt is incurred by the Australian
Borrower, such Funded Debt is designated by the Australian Borrower as “Junior Lien Debt” for
the purposes of the Notes Secured Debt Documents and the Notes Collateral Trust Agreement
pursuant to the procedures set forth in the Notes Collateral Trust Agreement;
provided
, that no
Funded Debt may be designated as both Notes Junior Lien Debt and Notes Priority Lien Debt and
no ABL Debt may be designated as Notes Junior Lien Debt;
(b) the Notes Junior Lien Representative for such Funded Debt executes and delivers
a Notes Collateral Trust Joinder in accordance with the terms of the Notes Collateral Trust
Agreement; and
(c) all other relevant requirements set forth in the Notes Collateral Trust Agreement
are complied with.
“
Notes Junior Lien Documents
” means, collectively, any indenture, credit agreement or
other agreement pursuant to which any Notes Junior Lien Debt is incurred and the Notes Junior
Lien Security Documents.
“
Notes Junior Lien Obligations
” means the Notes Junior Lien Debt and all other Notes
Obligations in connection therewith, including, without limitation, interest and premium (if any)
(including post-petition interest whether or not allowable), and all guarantees of any of the
foregoing.
“
Notes Junior Lien Representative
” means the trustee, agent or representative of the
holders of such Series of Notes Junior Lien Debt who maintains the transfer register for such Series
of Notes Junior Lien Debt and
(a) is appointed as a Notes Junior Lien Representative (for purposes related to the
administration of the Notes Security Documents) pursuant to the Senior Secured Notes Indenture,
a credit agreement or other agreement governing such Series of Notes Junior Lien Debt, together
with its successors in such capacity, and
49
(b) who has executed a Notes Collateral Trust Joinder, together with its successor in
such capacity.
“
Notes Junior Lien Secured Parties
” means the holders of Notes Junior Lien Obligations
and each Notes Junior Lien Representative and the Notes Junior Lien Collateral Trustee.
“
Notes Junior Lien Security Documents
” means all security agreements, pledge
agreements, collateral assignments, mortgages, deeds of trust, collateral agency agreements,
control agreements or other grants or transfers for security executed and delivered by Australian
Borrower or any Notes Guarantor creating (or purporting to create) a Lien upon Collateral in favor
of the Notes Junior Lien Collateral Trustee, for the benefit of any of the Notes Junior Lien Secured
Parties, in each case, as amended, modified, renewed, restated or replaced, in whole or in part,
from time to time, in accordance with its terms and the Notes Collateral Trust Agreement.
“
Notes Obligations
” means any principal, interest (including any interest accruing
subsequent to the filing of a petition in bankruptcy, reorganization or similar proceeding at the rate
provided for in the documentation with respect thereto, whether or not such interest an allowed
claim under applicable bankruptcy or insolvency laws, or U.S. federal or state law or under any
foreign law), other monetary obligations, penalties, fees, indemnifications, reimbursements
(including reimbursement obligations with respect to letters of credit, bank guarantees and
banker’s acceptances), damages and other liabilities, and Guarantees of payment of such principal,
interest, penalties, fees, indemnifications, reimbursements, damages and other liabilities, payable
under the Notes Secured Debt Documents.
“
Notes Priority Lien
” means a Lien granted, or purported to be granted, by a Senior
Secured Notes Security Document to the Notes Priority Lien Collateral Trustee, at any time, upon
any property of the Australian Borrower or any Notes Guarantor to secure Notes Priority Lien
Obligations.
“
Notes Priority Lien Collateral Trustee
” means Wilmington Trust, National Association,
in its capacity as collateral trustee for the Notes Priority Lien Secured Parties under the Notes
Collateral Trust Agreement, together with its successors in such capacity.
“
Notes Priority Lien Debt
” means:
(a) the Senior Secured Notes issued on the Senior Secured Notes Issue Date; and any
other Funded Debt (excluding any ABL Debt and any Notes Junior Lien Debt) that is secured by
a Notes Priority Lien and that is permitted to be incurred and permitted to be so secured hereunder;
provided
, that, in the case of Funded Debt referred to in this
clause (a)
:
(i) on or before the date on which such Funded Debt is incurred by the
Australian Borrower, such Funded Debt is designated by the Australian Borrower as
“Priority Lien Debt” for the purposes of the Notes Secured Debt Documents and the Notes
Collateral Trust Agreement pursuant to the procedures set forth in the Collateral Trust
Agreement;
provided
, that no Funded Debt may be designated as both Notes Priority Lien
Debt and Notes Junior Lien Debt and no ABL Debt may be designated as Notes Priority
Lien Debt;
50
(ii) unless such Funded Debt is issued under an existing Notes Secured Debt
Document for any Series of Notes Priority Lien Debt whose representative is already party
to the Collateral Trust Agreement, the Notes Priority Lien Representative for such Funded
Debt executes and delivers a Notes Collateral Trust Joinder in accordance with the terms
of the Notes Collateral Trust Agreement; and
(iii) all other relevant requirements set forth in the Notes Collateral Trust
Agreement are complied with.
For the avoidance of doubt, Notes Hedging Obligations do not constitute Notes Priority
Lien Debt but may constitute Notes Priority Lien Obligations. Notes Hedging Obligations that are
secured pursuant to the Notes Priority Lien Documents with respect to a Series of Notes Priority
Lien Debt shall be “related to” such Series of Notes Priority Lien Debt for purposes of the Notes
Collateral Trust Agreement.
“
Notes Priority Lien Document
” means, collectively, the Senior Secured Notes Indenture,
the Senior Secured Notes and the Notes Priority Lien Security Documents (in the case of the
Collateral Trust Agreement, to the extent effective at the relevant time), any other indenture, credit
agreement or other agreement pursuant to which any Notes Priority Lien Debt is incurred, and
each of the other agreements, documents and instruments executed pursuant thereto or in
connection therewith.
“
Notes
Priority Lien Obligations
” means the Notes Priority Lien Debt and all other Notes
Obligations in connection therewith, including without limitation any post-petition interest
whether or not allowable, together with all Notes Hedging Obligations and guarantees of any of
the foregoing.
“
Notes Priority Lien Representative
” means:
(a) in the case of the Senior Secured Notes, the Senior Secured Notes Trustee; and
(b) in the case of any other Series of Notes Priority Lien Debt, the trustee, agent or
representative of the holders of such Series of Notes Priority Lien Debt who maintains the transfer
register for such Series of Notes Priority Lien Debt and is appointed as a representative of the
Notes Priority Lien Debt (for purposes related to the administration of the Notes Security
Documents) pursuant to the agreement governing such Series of Notes Priority Lien Debt, and
who has executed a Notes Collateral Trust Joinder, together with any successor in such capacity.
“
Notes Priority Lien Secured Parties
” means, as of any date of determination, the holders
of Notes Priority Lien Obligations at that time, including
(a) each Notes Priority Lien Representative and the Notes Priority Lien Collateral
Trustee,
(b) the noteholders and any other holders of Notes Priority Lien Debt and
(c) counterparties to Notes Swap Contracts in respect of Notes Hedging Obligations.
51
“
Notes Priority Lien Security Documents
” means all security agreements, pledge
agreements, collateral assignments, mortgages, deeds of trust, collateral agency agreements,
control agreements or other grants or transfers for security executed and delivered by the
Australian Borrower or any Guarantor creating (or purporting to create) a Lien upon Collateral in
favor of the Notes Priority Lien Collateral Trustee, for the benefit of any of the Notes Priority Lien
Secured Parties, in each case, as amended, modified, renewed, restated or replaced, in whole or in
part, from time to time, in accordance with its terms thereof.
“
Notes Priority Secured Obligations
” means Notes Priority Lien Obligations and Notes
Junior Lien Obligations.
“
Notes Secured Debt Documents
” means the Notes Priority Lien Documents and the Notes
Junior Lien Documents.
“
Notes Security Documents
” means the Notes Collateral Trust Agreement, the ABL
Intercreditor Agreement, the Stanwell Intercreditor Agreement, each joinder to the Notes
Collateral Trust Agreement or the ABL Intercreditor Agreement or the Stanwell Intercreditor
Agreement, each Notes Priority Lien Security Document and each Notes Junior Lien Security
Document, in each case, as amended, modified, renewed, restated or replaced, in whole or in part,
from time to time, in accordance with its terms and the terms of the Notes Collateral Trust
Agreement. Notwithstanding the foregoing, to the extent that references to “Notes Security
Documents” relate solely to Notes Priority Lien Obligations or Notes Junior Lien Obligations,
such references shall refer only to the Notes Security Documents applicable to Notes Priority Lien
Obligations or Notes Junior Lien Obligations, as the case may be.
“
Notes Swap Contract
” means
(a) any interest rate swap agreement, interest rate cap agreement, interest rate future
agreement, interest rate collar agreement, interest rate hedging agreement or other similar
agreement or arrangement designed to protect against or mitigate interest rate risk,
(b) any foreign exchange contract, currency swap agreement, futures contract, option
contract, synthetic cap or other similar agreement or arrangement designed to protect against or
mitigate foreign exchange risk and
(c) any commodity or raw material, including coal, futures contract, commodity hedge
agreement, option agreement, any actual or synthetic forward sale contracts or other similar device
or instrument or any other agreement designed to protect against or mitigate raw material price
risk (which shall for the avoidance of doubt include any forward purchase and sale of coal for
which full or partial payment is required or received), in each case, that is secured under the Notes
Priority Lien Documents.
“
Notification
” shall have the meaning given to such term in
clause (r)
“Eligible Accounts.”
“
Obligations
” means all advances to, and debts, liabilities and obligations (including,
without limitation, interest accruing after the maturity of the Loans and interest accruing after the
filing of any petition in bankruptcy, or the commencement of any proceeding under any Debtor
52
Relief Law, relating to Holdings or any of its Subsidiaries, whether or not a claim for post-filing
or post-petition interest is allowed in such proceeding) of, any Loan Party arising under any Loan
Document (or otherwise with respect to any Loan or, without duplication and for the avoidance of
doubt, obligations described under
Section 9.17(e)
) whether direct or indirect (including those
acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter
arising,
provided
,
however
, that the “Obligations” of a Loan Party shall exclude any Excluded
Swap Obligations with respect to such Loan Party.
“
Obligee Guarantor
” shall have the meaning given to such term in
Section 10.08
.
“
OFAC
” means the Office of Foreign Assets Control of the U.S. Department of Treasury.
“
Organization Documents
” means,
(a) with respect to any corporation, the certificate or articles of incorporation and the
bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S.
jurisdiction);
(b) with respect to any limited liability company,
(i) the certificate or articles of formation or organization and operating
agreement and
(ii) with respect to any limited liability company incorporated in Australia, the
certificate of incorporation and the constitution (if any); and
(c) with respect to any partnership, joint venture, trust or other form of business entity,
the partnership, joint venture or other applicable agreement of formation or organization and any
agreement, instrument, filing or notice with respect thereto filed in connection with its formation
or organization with the applicable Governmental Authority in the jurisdiction of its formation or
organization and, if applicable, any certificate or articles of formation or organization of such
entity.
“
Original Syndicated Facility Agreement
” means
the document titled ‘Syndicated Facility
Agreement’ dated 8 May 2023 between, among others, Coronado Global Resources Inc., each
Borrower, each Guarantor, the Administrative Agent, the Collateral Agent and the Existing
Lenders (as defined in the Refinancing Coordination Deed), as amended and/or amended and
restated prior to the date of the Second Amendment Deed.
“
Original Financial Statements
” means the financial statements of Holdings and its
Subsidiaries, on a consolidated basis, for the financial year ending December 31, 2024, delivered
to the Administrative Agent and the Lenders prior to the Amendment and Restatement Effective
Date.
“
Other Connection Taxes
” means, with respect to any Administrative Agent or Lender (or
any such other recipient) Taxes imposed as a result of a present or former connection between the
recipient and the jurisdiction imposing such Tax (other than connections arising from the
Administrative Agent or such Lender (or such other recipient) having executed, delivered, become
53
a party to, performed its obligations under, received a payment under, received or perfected a
security interest under, engaged in any other transaction pursuant to or enforced any Loan
Document, or sold or assigned an interest in any Loan or Loan Document).
“
Outstanding Amount
” means the aggregate outstanding principal amount of the Loans
after giving effect to any borrowings and prepayments or repayments of Loans occurring on such
date.
“
Overnight Rate
” means, for any day, the greater of (a) the Federal Funds Rate and (b) an
overnight rate determined by the Administrative Agent, as the case may be, in accordance with
banking industry rules on interbank compensation.
“
Participant
” has the meaning specified in
Section 11.07(d)
.
“
Participant Register
” has the meaning specified in
Section 11.07(d)
.
“
Participating Member State
” means any member state of the European Union that adopts
or has adopted (and has not ceased to adopt) the euro as its lawful currency in accordance with
legislation of the European Union relating to Economic and Monetary Union.
“
Payment Recipient
” has the meaning assigned to it in
Section 9.17(a)
.
“
PBGC
” means the Pension Benefit Guaranty Corporation established pursuant to Subtitle
A of Title IV of ERISA, or any successor thereto.
“
Pension Plan
” means any “employee pension benefit plan” (as such term is defined in
Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and
is sponsored or maintained by any Loan Party or any ERISA Affiliate or to which any Loan Party
or any ERISA Affiliate contributes or has an obligation to contribute.
“
Perfection Certificate
” means a perfection certificate substantially in the form of
Exhibit
I
amended, restated, supplemented or otherwise modified from time to time.
“
Perfection Certificate Supplement
” means a supplement to the Perfection Certificate
substantially in the form of
Exhibit J
.
“
Permitted Financial Accommodation
” means:
(a) except where such is prohibited under the laws of incorporation or formation of the
relevant Loan Party, a loan or other accommodation made available by a Loan Party to or for the
benefit of employees or directors or officers of a Loan Party to acquire shares in a Loan Party in
an amount in aggregate for all employees and directors not exceeding US$5,000,000;
(b) any deposit funds of a Loan Party with a bank in the ordinary course of its business;
54
(c) any trade credit not exceeding 180 days provided, or otherwise accommodated by
a Loan Party for the supply of goods and services on extended terms in the ordinary course of
trading; and
(d) any other accommodation made by a Loan Party to another Loan Party so long as
they are subordinated in accordance with the terms of the Australian Subordination Deed.
“
Permitted Liens
” has the meaning specified in
Section 7.01
.
“
Person
” or “
person
” means any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated organization,
government or any agency or political subdivision thereof or any other entity.
“
Plan
” means any “employee benefit plan” (as such term is defined in Section 3(3) of
ERISA) established by any Loan Party or, with respect to any such plan that is subject to Section
412 of the Code or Title IV of ERISA, by any ERISA Affiliate.
“
Plan Asset Regulations
” means 29 CFR § 2510.3-101 et seq., as amended from time to
time.
“
Pledged Collateral
” has the meaning specified in Section 1.03 of the Security Agreement.
“
Pledged Stock
” has the meaning specified in Section 1.03 of the Security Agreement.
“
Proceeds
” has the meaning specified in the UCC and the Australian PPS Law and, in any
event, shall also include, but not be limited to, (i) any and all proceeds of any insurance, indemnity,
warranty or guarantee payable to the Administrative Agent or Holdings or any of its Subsidiaries
from time to time with respect to any of the Collateral, (ii) any and all payments (in any form
whatsoever) made or due and payable to Holdings or any of its Subsidiaries from time to time in
connection with any requisition, confiscation, condemnation, seizure or forfeiture of all or any part
of the Collateral by any Governmental Authority (or any Person acting under color of
Governmental Authority) and (iii) any and all other amounts from time to time paid or payable
under or in connection with any of the Collateral.
“
Project
” means any particular project of Holdings or any Subsidiary of Holdings relating
to the ownership, creation, development, operation, exploration, investigation or exploitation of
any assets in the coal sector acquired by Holdings or any Subsidiary of Holdings after the
Amendment and Restatement Effective Date.
“
Project Company
” means any entity which is a Subsidiary of Holdings (other than one
which is a Subsidiary of Holdings at the Amendment and Restatement Effective Date) and is
established or maintained following the Amendment and Restatement Effective Date solely for the
purpose of the acquisition, development or operation of a Project, either alone or in conjunction
with other parties that are non-Group members and in respect of which no Indebtedness is owed,
or any Guarantee or indemnity has been granted, other than Limited Recourse Financial
Indebtedness.
55
“
Properties
” means the facilities and properties currently or formerly owned, leased or
operated by Holdings or any of its Subsidiaries.
“
PTE
” means a prohibited transaction class exemption issued by the U.S. Department of
Labor, as any such exemption may be amended from time to time.
“
Qualified ECP Guarantor
” means, in respect of any Swap Obligation, each Loan Party
that has total assets exceeding $10,000,000 at the time such Swap Obligation is incurred or such
other person as constitutes an ECP under the Commodity Exchange Act or any regulations
promulgated thereunder and can cause another person to qualify as an “eligible contract
participant” at such time by entering into a keepwell under Section 1a(18)(A)(v)(II) of the
Commodity Exchange Act.
“
Ratable Portion
” or (other than in the expression “equally and ratably”)
“
ratably
”
means,
with respect to any Lender, the percentage obtained by dividing (a) the Commitment of such
Lender by (b) the aggregate Commitments of all Lenders (or, at any time after the Termination
Date, the percentage obtained by dividing the aggregate outstanding principal balance of the Total
Outstandings owing to such Lender by the aggregate outstanding principal balance of the Total
Outstandings owing to all Lenders).
“
Real Property
” shall mean, collectively, all right, title and interest (including any
leasehold estate) in and to any and all parcels of or interests in real property owned, leased or
operated by any Person, whether by lease, license or other means, together with, in each case, all
improvements, fixtures, easements, hereditaments, permits and appurtenances relating thereto.
“
Real Property Lease
” means any lease, license, letting, concession, occupancy agreement,
sublease, easement or right of way to which such Person is a party and is granted a possessory
interest in or a right to use or occupy all or any portion of the Real Property (including, without
limitation, the right to extract minerals from any portion of Real Property) and every amendment
or modification thereof including with respect to the Loan Parties, without limitation, the leases
with respect to Real Property listed on Schedule 5.08(a) and any Contractual Obligation with
respect to any of the foregoing.
“
Receivables Assets
” means accounts receivable (including any bills of exchange) and
related assets and property from time to time originated, acquired or otherwise owned by Holdings,
the Borrowers or any Subsidiary, in each case, not included within the Borrowing Base.
“
Recipient
” means (a) the Administrative Agent or (b) any Lender, as applicable.
“
Reclamation
” means the reclamation and restoration of land, water and any future,
current, abandoned or former mines, and of any other Environment affected by such mines, as
required pursuant to SMCRA, any other Environmental Law or any Environmental Permit.
“
Reclamation Obligations
” means the reclamation, rehabilitation, revegetation and other
mine closure obligations (including reclamation mine closure guarantees) of Holdings or any
Subsidiary with respect to mines or other assets of Holdings or any Subsidiary used in a Related
Business.
56
“
Refinance
” means, in respect of any Indebtedness or any commitment to extend credit
(and the documents governing such indebtedness or commitment to extend credit), to refinance,
amend and restate, extend, renew, supplement, restructure, replace, refund or repay, or to issue
other Indebtedness or commitment to extend credit in exchange or replacement for such
Indebtedness, in whole or in part, whether with the same or different lenders, arrangers, or agents.
“
Refinanced
” and “
Refinancing
” shall have correlative meanings.
“
Refinancing Coordination Deed
” means the document titled ‘Refinancing Coordination
Deed’ dated on or about the date of the Second Amendment Deed between, among others, each
Loan Party, the Administrative Agent and the Collateral Agent.
“
Refinancing Indebtedness
” means Indebtedness that Refinances any Indebtedness of
Holdings or any Subsidiary existing on the Amendment and Restatement Effective Date or
incurred in compliance herewith, including Indebtedness that Refinances Refinancing
Indebtedness;
provided
,
however
, that:
(a) such Refinancing Indebtedness has a maturity no earlier than the maturity of the
Indebtedness being Refinanced;
(b) such Refinancing Indebtedness has a weighted average life at the time such
Refinancing Indebtedness is incurred that is equal to or greater than the weighted average life of
the Indebtedness being Refinanced;
(c) such Refinancing Indebtedness has an aggregate principal amount (or if incurred
with original issue discount, an aggregate issue price) that is equal to or less than the aggregate
principal amount (or if incurred with original issue discount, the aggregate accreted value) then
outstanding under the Indebtedness being Refinanced (plus fees and expenses, including any
premium, accrued interest, underwriting discounts and defeasance costs);
(d) (i) if the Indebtedness being Refinanced is subordinated in right of payment to
the Obligations, such Refinancing Indebtedness is subordinated in right of payment to the
Obligations, at least to the same extent as the Indebtedness being Refinanced and
(ii) if the Lien securing the Indebtedness being Refinanced is subordinated to
the Lien securing the Obligations, the Lien securing the Refinancing Indebtedness shall be
subordinated to the Lien securing the Obligations;
(e) (i) such Refinancing Indebtedness is incurred by either (A) the Subsidiary that
is the obligor on the Indebtedness being Refinanced or (B) Holdings, the Borrowers or a Loan
Party and
(ii) such Refinancing Indebtedness may not be secured by property that did not
secured the Indebtedness being Refinanced; and
(f) (i) to the extent secured by a Lien on Collateral, such Refinancing
Indebtedness shall be subject to the ABL Intercreditor Agreement and the Stanwell Intercreditor
Agreement and
57
(ii) no Refinancing Indebtedness shall be secured by Lien on ABL Priority
Collateral that is senior to or pari passu to the Lien securing the Obligations.
“
Register
” has the meaning specified in
Section 11.07(c)
.
“
Related Business
” means any business in which Holdings or any of its Subsidiaries was
engaged on the Amendment and Restatement Effective Date and any business or activity related,
ancillary or complementary to such business or that is a natural outgrowth or reasonable extension,
development or expansion of such business.
“
Related Parties
” means, with respect to any Person, such Person’s Affiliates and such
Person’s and such Person’s Affiliates’ respective managers, administrators, trustees, members,
partners, directors, officers, employees, agents, attorneys, fund managers, advisors and
representatives.
“
Relevant Nominating Body
” means any applicable central bank, regulator or other
supervisory authority or a group of them, or any working group or committee sponsored or chaired
by, or constituted at the request of, any of them or the Financial Stability Board.
“
Repeating Representations
” means each of the representations set out in
Sections 5.01
5.04
,
Section 5.05(a)
,
Section 5.07
,
Section 5.08(a)
(b)
,
Section 5.10
,
Section 5.12
,
Section
5.13
,
Section 5.17
,
Section 5.22
,
Sections 5.23
5.25
,
Sections 5.28
5.30
.
“
Replacement Assets
”
means:
(a) (i) any properties or assets that replace the properties or assets that were the
subject of such Disposition and properties or assets used or useful in a Related Business that are
not classified as current assets under GAAP; or
(ii) any other capital expenditure,
(b) all or substantially all the assets of a Related Business or
(c) a majority of the Voting Stock of any Person engaged in a Related Business that
will become, on the date of acquisition thereof, a Subsidiar
y.
“
Reportable Event
” means any of the events set forth in Section 4043(c) of ERISA, other
than events for which the 30 day notice period has been waived.
“
Reports
” has the meaning specified in
Section 9.15
.
“
Required Lenders
” means, as of any date of determination where there are only two
Lenders, both Lenders and in all other circumstances as of any determination date, Lenders holding
more than 50% of the sum of
(a) the Total Outstandings, and
(b) the aggregate unused Commitments.
58
“
Reserve
” means any “Reserve” required by this Agreement including Australian Priority
Payables Reserves.
“
Responsible Officer
” means the chief executive officer, president, chief financial officer,
the treasurer, any assistant treasurer, any vice president or the controller of a Person, or if such
person is a limited partnership, a general partner of such Person or such Person’s or such general
partner’s manager or managing member, as applicable, or any officer with substantially equivalent
responsibilities, but, in any event, with respect to financial matters, the chief financial officer, the
chief executive officer or any other officer with substantially equivalent responsibilities.
“
Restricted Payment
” means any dividend or other distribution (whether in cash, securities
or other property) with respect to any Equity Interests of Holdings or any of its Subsidiaries, or
any payment (whether in cash, securities or other property), including any sinking fund or similar
deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or
termination of any such Equity Interests, or on account of any return of capital to Holdings’
stockholders, partners or members (or the equivalent Person thereof).
“
Restricted Subsidiary
” means any Subsidiary of Holdings.
“
Review Event
” means any one or more of the following occurring (whether or not within
a Loan Party’s control):
(a) a downgrade of the credit rating by S&P or Moody’s by one notch in respect of a
Loan Party which applies as at the Amendment and Restatement Effective Date; and
(b) a delisting of any listed Loan Party from the relevant stock exchange on which it
was listed or a trading halt in respect of such Loan Party for more than 5 Business Days.
“
Rights of Entry
” means a deed in form and substance acceptable to the Administrative
Agent (acting on the instructions of all Lenders) between the relevant Loan Party, the Collateral
Agent and / or Administrative Agent and the operator and / or owner of an Acceptable Storage
Location.
“
Russell County Project
” means one or more Dispositions of freehold and leasehold
interests in the mining tenements (including associated mining information and assets) of the
Russell County Coal mine located in Virginia United States.
“
S&P
” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill
Companies, Inc., and any successor thereto.
“
Sale/Leaseback Transaction
” means an arrangement relating to property owned by
Holdings or a Subsidiary on the Amendment and Restatement Effective Date or thereafter acquired
by Holdings or a Subsidiary whereby Holdings or a Subsidiary transfers such property to a Person
and Holdings or a Subsidiary leases it from such Person.
“
Sanctioned Person
” means, at any time, any Person with which dealings are prohibited
or restricted by Sanctions.
59
“
Sanctions
” means economic or financial sanctions or trade embargoes imposed,
administered, or enforced by (a) the U.S. government, including those administered by the OFAC,
the U.S. Department of State, and the U.S. Department of Commerce, (b) the United Nations
Security Council, (c) the European Union, (d) any European Union member state, (e) the United
Kingdom, including His Majesty’s Treasury of the United Kingdom, (f) the Hong Kong Monetary
Authority or (g) the Australian Department of Foreign Affairs and Trade.
“
SEC
” means the Securities and Exchange Commission, or any Governmental Authority
succeeding to any of its principal functions.
“
Second Amendment Deed
” means the document titled ‘Second Amendment to the
Syndicated Facility Agreement’ dated in or about June 2025 between each Loan Party, the
Administrative Agent and the Collateral Agent.
“
Secured Hedge Agreement
” means any Swap Contract permitted under
Article 7
entered into by and between the Borrowers and any Hedge Bank to the extent designated as such
by the Borrowers and such Hedge Bank in writing to the Administrative Agent from time to time
in accordance with
Section 11.17
.
“
Secured Hedging Obligations
” means the amount of all debts, liabilities and obligations
of any Loan Party in respect of any Secured Hedge Agreement;
provided
(a) in respect of Hedging Obligations of such Loan Party owed to the applicable Hedge
Bank at any time, such amount shall be deemed to be the Swap Termination Value thereof as of
such date and
(b) any such Hedging Obligation is not also secured pursuant to the Notes Security
Documents.
“
Secured Parties
” means, collectively, (i) the Lenders, (ii) the Administrative Agent, (iv)
the Australian Security Trustee and (v) each Hedge Bank that is a counterparty to a Secured Hedge
Agreement with a Loan Party, and (vi) beneficiaries of each indemnification obligation undertaken
by any Loan Party under any Loan Document.
“
Securities Account
” has the meaning specified in the UCC and the Australian PPS Act.
“
Securities Act
” means the Securities Act of 1933, as amended, and the rules and
regulations of the SEC promulgated thereunder.
“
Security
” has the meaning given to “security interest” in the Australian PPS Act.
“
Security Agreement
” means that certain “Pledge and Security Agreement”, dated as of 3
August 2023, by and among the Collateral Agent and each of the Loan Parties party thereto, as
amended, restated, amended and restated supplemented or otherwise modified from time to time.
“
Senior Secured Notes
”
means 9.250% senior notes due 2029 issued by the Australian
Borrower pursuant to the Senior Secured Notes Indenture.
60
“
Senior Secured Notes Indenture
” means that certain Indenture, dated as of the Senior
Secured Notes Issue Date, among Coronado Finance Pty Ltd as issuer, Holdings, certain
Subsidiaries of Holdings, as guarantors, and Wilmington Trust, National Association, as trustee
(as amended, restated, supplemented or otherwise modified from time to time) and any
supplemental indenture or additional indenture to be entered into with respect to the Senior
Secured Notes.
“
Senior Secured Notes Issue Date
” means 2 October 2024.
“
Senior Secured Notes Security Document
” means “Security Documents” as defined in
the Senior Secured Notes Indenture.
“
Senior Secured Notes Trustee
” means Wilmington Trust, National Association, in its
capacity as indenture trustee.
“
Series of Notes Junior Lien Debt
” means, severally, each issue or series of Notes Junior
Lien Debt for which a single transfer register is maintained.
“
Series of Notes Priority Lien Debt
” means, severally, each issue or series of Notes
Priority Lien Debt for which a single transfer register is maintained.
“
Series of Notes Secured Debt
” means each Series of Notes Priority Lien Debt and each
Series of Notes Junior Lien Debt.
“
Similar Business
” means coal production, coal mining, coal gasification, coal
liquefaction, other British thermal unit conversions, coal brokering, coal transportation, mine
development, coal supply contract restructurings, ash disposal, environmental remediation,
Reclamation, coal and coal bed methane exploration, production, marketing, transportation and
distribution and other related businesses, and activities of Holdings and its Subsidiaries as of the
Amendment and Restatement Effective Date and any business or activity that is reasonably similar
thereto or a reasonable extension, development or expansion thereof or ancillary thereto, including
the production or sale of any inputs (such as gas or solar or wind energy) provided in respect of
coal mining or coal production activities.
“
SMCRA
” means the Surface Mining Control and Reclamation Act of 1977, 30 U.S.C.
§§1201 et seq., as amended.
“
Specified Member of the European Union
” means a member of the European Union
whose sovereign ratings are at least “AAA” as rated by S&P and at least “Aaa” by Moody’s.
“
Spot Rate
” shall mean, on any day, with respect to any currency in relation to Dollars, the
rate at which such currency may be exchanged into Dollars, as set forth at approximately 12:00
noon, London time, on such date on the Oanda Corporation currency page for such currency. In
the event that such rate does not appear on the applicable Oanda Corporation currency page, the
Spot Rate shall be calculated by reference to such other publicly available service for displaying
exchange rates as may be agreed upon by the Administrative Agent and the Borrowers, or, in the
absence of such agreement, such Spot Rate shall instead be the arithmetic average of the spot rates
of exchange of the Administrative Agent, at or about 11:00 a.m., London time, on such date for
61
the purchase of Dollars for delivery two Business Days later;
provided
such determination, for any reason, no such spot rate is being quoted, the Administrative Agent,
after consultation with the Borrowers, may use any reasonable method it deems appropriate to
determine such rate, and such determination shall be conclusive absent manifest error.
“
Stanwell
” means Stanwell Corporation Limited (ACN 078 848 674).
“
Stanwell Agreements
” means
(a) the “Stanwell Amended Coal Supply Agreement” dated November 6, 2009
between Stanwell and CCPL, as amended by the ACSA Deed of Amendment, dated into on or
about November 21, 2016;
(b) the “Curragh Mine - New Coal Supply Deed” dated August 14, 2018 between
Stanwell and CCPL;
(c) the “New Coal Supply Agreement” dated July 12, 2019 between Stanwell and
CCPL, as amended by the ‘Deed of Amendment – New Coal Supply Agreement (Prepayment and
Rebate Release)’ dated 10 June 2025;
(d) the “Option Coal Supply Agreement”, dated as of January 18, 2021, by and between
Stanwell and CCPL; and
(e) the ‘Deed of Amendment – New Coal Supply Agreement (Prepayment and Rebate
Release),
in each case, as such agreements may be amended, restated, replaced, supplemented or modified
from time to time in accordance herewith.
“
Stanwell Arrangements
” means:
(a)
any rebate arrangements under the Stanwell Agreements, including any release,
buyout, deferral or any transaction of a similar nature of such rebate arrangements;
(b)
any coal prepayment arrangements under the Stanwell Agreements; and
(c)
any deferred consideration under the Stanwell Agreements in relation to the
Stanwell Reserved Area.
“
Stanwell Intercreditor Agreement
” means that “Existing Arrangements Intercreditor
Deed”, dated May 12, 2021, by and among the Collateral Agent, Senior Secured Notes Trustee,
Stanwell Corporation Limited, Coronado Australia Holdings Pty Ltd, Coronado Global Resources,
Inc., and the other parties from time to time party thereto, and acknowledged by Holdings and the
other Loan Parties, as supplemented by that certain Joinder No. 1 dated as of August 3, 2023,
certain Joinder No. 2 dated as October 2, 2024 and as may be amended, restated, replaced,
supplemented, varied, assigned or otherwise modified from time to time in accordance with this
Agreement.
62
“
Stanwell Obligations
” means all obligations in connection with the Stanwell
Arrangements and the Stanwell Agreements as in effect on the Amendment and Restatement
Effective Date.
“
Stanwell Reserved Area
” means certain area adjacent to the Curragh Mine acquired by
Holdings on a deferred consideration basis and as contemplated by the Stanwell Agreements.
“
Subsidiary
” means, with respect to any Person,
(a) any corporation, association or other business entity (other than a partnership, joint
venture or limited liability company)
(i) of which more than 50% of the total voting power of shares of Capital Stock
entitled (without regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof, and/or the management decisions of the relevant
corporation, association or other business entity, is at the time of determination owned or
controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries
of that Person or a combination thereof or
(ii) of which more than 50% of the total issued Capital Stock is legally, and/or
beneficially owned (directly or indirectly) by such Person, or whose accounts are otherwise
consolidated with the accounts of such Person or one or more subsidiaries of such Person
in such Person’s or subsidiary’s Securities and Exchange Commission filings,
(b) any partnership, joint venture or limited liability company
(i) of which more than 50% of the capital accounts, distribution rights, total
equity and voting interests or general and limited partnership interests, as applicable, are
owned or controlled, directly or indirectly, by such Person or one or more of the other
Subsidiaries of that Person or a combination thereof, whether in the form of membership,
general, special or limited partnership interests or otherwise,
(ii) of which such Person or any Subsidiary of such Person is a controlling
general partner or otherwise controls such entity or
(iii) whose accounts are consolidated with the accounts of such Person or one
or more subsidiaries of such Person in such Person’s or subsidiary’s filings with the
Securities and Exchange Commission,
(c) a subsidiary within the meaning of the Australian Corporations Act, or
(d) is part of the consolidated entity constituted by such Person and the entities it is
required to include in the consolidated financial statements it prepares, or would be if such Person
was required to prepare consolidated financial statements.
A trust may be a Subsidiary (and an entity may be a Subsidiary of a trust) if it would have
been a Subsidiary under this definition if that trust were a corporation. For purposes of this
definition, a unit or other beneficial interest in a trust is to be regarded as a share. Unless otherwise
63
specified, all references herein to a “
Subsidiary
” or to “
Subsidiaries
” shall refer to a Subsidiary
or Subsidiaries of Holdings.
“
Supporting Obligation
” has the meaning specified in the UCC.
“
Surface Facilities
” means the coal washing and preparation facilities, together with
related structures and equipment, which provide coal washing, preparation, storage and loadout
services at the Logan Mine, the Buchanan Mine, and the Greenbrier Mine.
“
Swap Contract
” means any and all rate swap transactions, basis swaps, credit derivative
transactions, forward rate transactions, commodity swaps, commodity options, forward
commodity contracts, equity or equity index swaps or options, bond or bond price or bond index
swaps or options or forward bond or forward bond price or forward bond index transactions,
interest rate options, forward foreign exchange transactions, cap transactions, floor transactions,
collar transactions, currency swap transactions, cross-currency rate swap transactions, currency
options, spot contracts, or any other similar transactions or any combination of any of the foregoing
(including any options to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement.
“
Swap Obligation
” means, with respect to any Guarantor, any obligation to pay or perform
under any agreement, contract or transaction that constitutes a “swap” within the meaning of
section 1a(47) of the Commodity Exchange Act.
“
Swap Termination Value
” means, in respect of any one or more Swap Contracts, after
taking into account the effect of any valid netting agreement relating to such Swap Contracts,
(a) for any date on or after the date such Swap Contracts have been closed out and
termination value(s) determined in accordance therewith, such termination value(s), and
(b) for any date prior to the date referenced in clause (a), the amount(s) determined as
the mark-to-market value(s) for such Swap Contracts, as determined based upon one or more mid-
market or other readily available quotations provided by any recognized dealer in such Swap
Contracts (which may include a Lender or any Affiliate of a Lender).
“
TAA
” means the Taxation Administration Act 1953 (Cth) of Australia.
“
Tax Deduction
” means a deduction or withholding for or on account of Tax from a
payment under a Loan Document.
“
Tax
” includes:
(a) any tax, levy, impost, deduction, charge, rate, compulsory loan, withholding or duty
by whatever name called levied, imposed or assessed under the Income Tax Assessment Act 1936
Act, the Income Tax Assessment Act 1997 or any other statute, ordinance or law, in Australia or
elsewhere (including, without limitation, profits tax, property tax, interest tax, income tax, tax
related to capital gains, tax related to franking of dividends, bank account debits tax, fringe benefits
tax, sales tax, payroll tax, group or “pay as you go” withholding tax, land tax, financial institutions
64
duties, water and municipal rates, excise duties, customs duties, prescribed payments system tax,
reportable payments system tax, wine equalisation tax and transaction duties);
(b) any Indirect Tax; and
(c) any interest, penalty, charge, fine or fee or other amount of any kind assessed,
charged or imposed on or in respect of the above;
and “Taxes” has a corresponding meaning.
“
Termination Date
” means the earliest of
(a) the Maturity Date; and
(b) the date of termination or cancellation of the Commitment in full of each Lender.
“
Test Period
” means, at any time, from and inclusive of 30 September 2025, the most
recently ended period of four consecutive fiscal quarters of Holdings ended on or prior to such
time in respect of which Financial Statements for each quarter or fiscal year in such period have
been or are required to be delivered pursuant to
Section 6.01.
“
Thermal Coal Asset
” means any mining company or business where:
(a) thermal coal related revenues of that company or business are ≥10% of total
revenues for that company or business; or
(b) annual thermal coal production for that company or business is >5Mt; or
(c) thermal coal, as a by-product from the extraction of metallurgical coal for that
company or business is >15% of total production volumes for that company or business.
“
Threshold Amount
” means $10,000,000.
“
Total Outstandings
” means the aggregate Outstanding Amount of all Loans.
“
Total Tangible Assets
” means the total assets shown as such in the most recent
consolidated Financial Statements delivered to the Administrative Agent under
Section 6.01
deducting intangible assets and deferred tax assets.
“
Transaction Costs
” means, collectively, the costs, fees and expenses payable by Holdings
or any of its Subsidiaries in connection with the Facility and the Transactions.
“
Transactions
” means, collectively, (a) the entering into by the Loan Parties of the Loan
Documents to which they are a party, (b) the payment of the Transaction Costs.
“
Treasury Transaction”
means any interest rate swap, foreign exchange transaction,
equity or equity index option, bond option, commodity swap, commodity option, cap transaction,
currency swap transaction, cross-currency swap rate transaction or any other hedge or derivative
65
transaction or product entered into in connection with protection against, or benefit from,
fluctuation in any rate, currency, commodity or price.
“
UCC
” means the Uniform Commercial Code as in effect from time to time in the State of
New York, or if the perfection or priority of, or remedies with respect to, any Collateral is governed
by the Uniform Commercial Code as in effect in a jurisdiction other than the State of New York,
the Uniform Commercial Code as in effect from time to time in such other jurisdiction.
“
UK Financial Institution
” means any BRRD Undertaking (as such term is defined under
the PRA Rulebook (as amended form time to time) promulgated by the United Kingdom Prudential
Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended
from time to time) promulgated by the United Kingdom Financial Conduct Authority, which
includes certain credit institutions and investment firms, and certain affiliates of such credit
institutions or investment firms.
“
Unbilled US Account
” means, on any date of determination, each Account of the Loan
Parties for the sale of Coal Inventory sourced from a Loan Party’s U.S. mine site which (a) the
sale represented by such Account was made not more than 30 days prior to such date and (b) an
invoice has not yet been sent to the applicable Account Debtor with respect to such Account as at
such date of determination (other than in the case of an Account where the Account Debtor is
Pacific Minerals Limited in which case an Account in the form of a provisional invoice may have
been sent).
“
Unfunded Pension Liability
” means the excess of a Pension Plan’s accrued benefit
liabilities under Section 4001(a)(16) of ERISA, over the current value of that Pension Plan’s assets,
determined in accordance with the actuarial assumptions used for funding the Pension Plan
pursuant to Section 412 of the Code for the applicable plan year.
“
United States
” and “
U.S.
” mean the United States of America.
“
Unrestricted Cash Amount
” means, as of any date of determination, the aggregate
amount of cash or Cash Equivalents of the Loan Parties that:
(a) would not appear as “restricted” on a consolidated balance sheet of Holdings and
its Subsidiaries or
(b) would appear as “restricted” on a consolidated balance sheet of Holdings and its
Subsidiaries, but solely in the case of this
clause (b)
are restricted in favor of the Administrative Agent or any Lender, in each case of
clauses (a)
(b)
, determined in accordance with GAAP
provided further that, in the case of cash:
(i) such cash is repayable within 30 days after the relevant date of
determination;
66
(ii) repayment of such cash is not contingent on the prior discharge of any other
Indebtedness of any Loan Party or of any other person whatsoever or on the satisfaction of
any other condition;
(iii) such cash is denominated in Dollars, Australian Dollars, English pounds or
Euros and is in hand or at bank and (in the latter case) credited to an account in the name
of a Loan Party with a bank acceptable to the Administrative Agent and to which a Loan
Party is alone (or together with other Loan Parties) beneficially entitled; and
(iv) such cash is freely and (except as mentioned in paragraph (i) above)
immediately available to be applied in repayment or prepayment of the Facilities.
“
URDG
” means the Uniform Rules for Demand Guarantees, ICC Publication No.758
(URDG 758).
“
U.S. Guarantor
” means each Guarantor listed on Schedule 1.01(a) incorporated in
Delaware or West Virginia, and each of the existing and future, direct or indirect, Domestic
Subsidiaries (other than any Excluded Subsidiary or any Dormant Subsidiary) that guarantees the
Obligations pursuant to
Section 6.16
.
“
U.S. Loan Parties
” means, collectively, the CCC and each U.S. Guarantor.
“
U.S. Person
” means any Person that is a “United States person” as defined in Section
7701(a)(30) of the Code.
"
Utilisation
" means a utilisation of the Facility.
"
Utilisation Date
" means the date of a Utilisation, being the date on which the relevant
Loan is to be made.
“VAT”
(a) 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
(b) any other tax of a similar nature, whether imposed in a member state of the
European Union in substitution for, or levied in addition to, such tax referred to in paragraph (a)
above, or imposed elsewhere.
“
Voting Stock
” of a Person means all classes of Equity Interests of such Person then
outstanding and normally entitled (without regard to the occurrence of any contingency) to vote in
the election of directors, managers or trustees thereof.
Withholding Agent
” means any Loan Party and Administrative Agent.
67
Section 1.02. Other Interpretive Provisions.
With reference to this
Agreement and each other Loan Document, unless otherwise specified herein or in
such other Loan Document:
(a) The definitions of terms herein shall apply equally to the singular and plural
forms of the terms defined. Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. The words “
include,
” “
includes
” and
“
including
” shall be deemed to be followed by the phrase “
without limitation.
” The word
“
will
” shall be construed to have the same meaning and effect as the word “
shall.
” Unless the
context requires otherwise,
(i)
any definition of or reference to any agreement, instrument or other
document (including any Organization Document) shall be construed as referring to such
agreement, instrument or other document as from time to time amended, supplemented or
otherwise modified (subject to any restrictions on such amendments, supplements or
modifications set forth herein or in any other Loan Document),
(ii)
any reference herein to any Person shall be construed to include such
Person’s successors and assigns,
(iii)
the words “
herein,
” “
hereof
” and “
hereunder,
” and words of similar
import when used in any Loan Document, shall be construed to refer to such Loan
Document in its entirety and not to any particular provision thereof,
(iv)
all references in a Loan Document to Articles, Sections, Preliminary
Statements, Exhibits and Schedules shall be construed to refer to Articles and Sections of,
and Preliminary Statements, Exhibits and Schedules to, the Loan Document in which
such references appear,
(v)
any reference to any law shall include all statutory and regulatory
provisions consolidating, amending, replacing or interpreting such law and any reference
to any law or regulation shall, unless otherwise specified, refer to such law or regulation
as amended, modified or supplemented from time to time,
(vi)
the words “
asset
” and “
property
” shall be construed to have the same
meaning and effect and to refer to any and all tangible and intangible assets and
properties, including cash, securities, accounts and contract rights, and
(vii)
a Default is “
continuing
” if it has not been remedied or waived. An Event
of Default is “
continuing
” if it has not been waived.
(b) In the computation of periods of time from a specified date to a later specified
date, the word “
from
” means “
from and including;
” the words “
to
” and “
until
” each mean “
to
but excluding;
” and the word “
through
” means “
to and including.”
(c) Reference to “
this Agreement
” or to “
the date of this Agreement
” shall be
construed to include the Second Amendment Deed and the Amendment and Restatement
Effective Date, respectively.
68
(d) Section headings herein and in the other Loan Documents are included for
convenience of reference only and shall not affect the interpretation of this Agreement or any
other Loan Document.
(e) For all purposes under the Loan Documents, in connection with any division or
plan of division under Delaware law (or any comparable event under a different jurisdiction’s
laws) or any creation of, or allocation or transfer of assets, rights, obligations or liabilities to, a
series under Delaware law (or any comparable Person under a different jurisdiction’s laws):
(i)
if any asset, right, obligation or liability of any Person becomes the asset,
right, obligation or liability of a different Person, then it shall be deemed to have been
transferred from the original Person to the subsequent Person, and
(ii)
if any new Person comes into existence, such new Person shall be deemed
to have been organized on the first date of its existence by the holders of its Equity
Interests at such time.
Section 1.03. Accounting Terms.
(a)
Generally
. All accounting terms not specifically or completely defined herein
shall be construed in conformity with, and all financial data (including financial ratios and other
financial calculations) required to be submitted pursuant to this Agreement shall be prepared in
conformity with, GAAP applied on a consistent basis, as in effect from time to time,
except
otherwise specifically prescribed herein.
(b)
Changes in GAAP
. If at any time any Accounting Change or any other change
as permitted by
Section 6.02
set forth in any Loan Document, and either the Borrowers or the Required Lenders shall so
request, the Administrative Agent and the Borrowers shall negotiate in good faith to amend such
ratio or requirement to preserve the original intent thereof in light of such Accounting Change as
if such Accounting Change has not been made;
provided
, that until so amended, all financial
covenants, standards, and terms in this Agreement shall continue to be calculated or construed as
if such Accounting Change had not occurred.
Section 1.04. Times of Day
Unless otherwise specified, all references
herein to times of day shall be references to Sydney time.
Section 1.05. Timing of Payment or Performance.
any payment of any obligation or the performance of any covenant, duty or
obligation is stated to be due or performance required on a day that is not a
Business Day, the date of such payment (other than as described in the definition of
Interest Period) or performance shall extend to the immediately succeeding
69
Business Day, and, in the case of any payment accruing interest, interest thereon
shall be payable for the period of such extension.
Section 1.06. [Reserved]
Section 1.07. [Reserved]
Section 1.08. [Reserved]
Section 1.09. Australian Terms
In this Agreement, where it relates to a person or entity incorporated or established under
the laws of Australia and including, for the avoidance of doubt, the Australian Loan Parties, a
reference to:
(a) a person being “unable to pay its debts” includes such person being insolvent
within the meaning of section 95A of the Australian Corporations Act; and
(b) a lien or security interest includes any “security interest” as defined in sections
12(1) or (2) of the Australian PPS Act.
Section 1.10. Australian PPS Act Provisions
(a) Where the Administrative Agent or the Australian Security Trustee has a
“security interest” (as defined in section 12(1) and 12(2) the Australian PPS Act) under any Loan
Document, to the extent the law permits:
(i)
for the purposes of sections 115(1) and 115(7) of the Australian PPS Act:
(A)
the Administrative Agent or the Australian Security Trustee with
the benefit of the security interest need not comply with sections 95, 118, 121(4),
125, 130, 132(3)(d) or 132(4) of the Australian PPS Act; and
(B)
sections 142 and 143 of the Australian PPS Act are excluded;
(ii)
for the purposes of section 115(7) of the Australian PPS Act, the
Administrative Agent or the Australian Security Trustee with the benefit of the security
interest need not comply with sections 132 and 137(3);
(iii)
each party to this Agreement waives its right to receive from the
Administrative Agent or the Australian Security Trustee any notice required under the
Australian PPS Act (including a notice of a verification statement); and
(iv)
if the Administrative Agent or the Australian Security Trustee with the
benefit of a security interest exercises a right, power or remedy in connection with it, that
exercise is taken not to be an exercise of a right, power or remedy under the Australian
PPS Act unless the Administrative Agent or the Australian Security Trustee states
70
otherwise at the time of exercise. However, this clause does not apply to a right, power
or remedy which can only be exercised under the Australian PPS Act.
(b) This does not affect any rights a person has or would have other than by reason of
the Australian PPS Act and applies despite any other clause in any Loan Document.
(c) Despite anything else in any Loan Document, no party may disclose any
information in connection with any Loan Document under section 275(4) of the Australian PPS
Act unless section 275(7) of the Australian PPS Act applies.
Section 1.11. Exchange Rates; Currency Equivalents.
(a) Except for purposes of financial statements delivered by Loan Parties hereunder
or calculating financial ratios hereunder or except as otherwise provided herein (including for
purposes of
Article 7
than Dollars) for purposes of the Loan Documents shall be such Dollar Equivalent amount as
determined by the Administrative Agent in accordance with this Agreement. No Default or
Event of Default shall arise as a result of any limitation or threshold set forth in Dollars in
Article 6
exchange rates between the date on which the relevant amount is due to be calculated in
accordance with the terms of the Loan Documents and the actual date of determination of the
Dollar Equivalent that amount.
Section 1.12. [Reserved]
ARTICLE 2.
THE COMMITMENTS AND BORROWINGS
Section 2.01. The Facility.
each Lender severally agrees to make available to the Borrowers the Facility, for
Loans drawable in Dollars,
provided
,
however
, that after giving effect to any
Borrowing:
(a) the Total Outstandings shall not exceed the Maximum Revolving Credit; and
(b) the aggregate Outstanding Amount of the Loans of any Lender shall not exceed
such Lender’s Commitment; and
(c) the Total Outstandings of the Loans shall not exceed the aggregate amount of
Commitments of all Lenders taken as a whole.
The obligations of each Lender under this Agreement are several. Failure by a Lender to
perform its obligations under this Agreement does not affect the obligations of any other Party
under this Agreement. No Lender is responsible for the obligations of any other Lender under this
Agreement.
The rights of each Lender under or in connection with this Agreement are separate and
independent rights and any debt arising under this Agreement to a Lender from a Loan Party is a
71
separate and independent debt in respect of which a Lender shall be entitled to enforce its rights in
accordance with this Agreement. The rights of each Lender include any debt owing to that Lender
under this Agreement and for the avoidance of doubt, any part of a Utilisation or any other amount
owed by a Loan Party which relates to a Lender’s participation in a Facility is a debt owing to that
Lender by that Loan Party.
A Lender may, except as specifically provided in the Loan Documents, separately enforce
its rights under or in connection with this Agreement.
Section 2.02. Utilisation.
(a) A Borrower may utilize the Facility by delivery to the Administrative Agent of a
duly completed Borrowing Notice by no later than 11:00 a.m. (Sydney time) five (5) Business
Days prior to the proposed Utilisation Date.
(b) Each Borrowing Notice for a Loan is irrevocable and will not be regarded as
having been duly completed unless:
(i)
it identifies the applicable Borrower requesting the proposed Loan;
(ii)
[not used];
(iii)
the proposed Utilisation Date is a Business Day within the Availability
Period;
(iv)
the currency and amount of the Utilisation comply with
Section 2.03
; and
(v)
the proposed Interest Period complies with
Section 2.12
.
(c) Only one Loan may be requested in each Borrowing Notice.
Section 2.03. Currency and amount
(a) The currency specified in a Borrowing Notice must be Dollars.
(b) The amount of the proposed Loan must be an amount which would not cause a
breach of the proviso in
Section 2.01
agreed by the Administrative Agent.
Section 2.04. Lenders’ participations
(a) Following receipt of a Borrowing Notice, the Administrative Agent shall
promptly notify each Lender of the amount of its Applicable Percentage under the applicable
Loan. In the case of any Borrowing, each Lender shall make the amount of its Loan available to
the Administrative Agent in immediately available funds at the Administrative Agent’s Office
not later than 1:00 p.m. (Sydney time) on the Business Day specified in the applicable
Borrowing Notice. Upon satisfaction or waiver of the applicable conditions set forth in
Section
4.02
Section
72
4.01)
Borrower in like funds as received by the Administrative Agent either by (A) crediting the
account of the applicable Borrower on the books of the Administrative Agent with the amount of
such funds or (B) wire transfer of such funds, in each case in accordance with instructions
provided to (and reasonably acceptable to) the Administrative Agent by the applicable Borrower.
(b) [Not used]
(c) [Not used]
Section 2.05. [Reserved]
Section 2.06. [Reserved]
Section 2.07. [Reserved]
Section 2.08. Prepayments.
(a)
Optional
. The Borrowers may, upon notice to the Administrative Agent, at any
time or from time to time voluntarily prepay Loans in whole or in part without premium or
penalty;
provided
, that:
(i)
such notice must be received by the Administrative Agent not later than
11:00 a.m. (Sydney time) prior to the date of the proposed prepayment;
(ii)
any prepayment of Loans shall be in a minimum principal amount of
$1,000,000 or a whole multiple of $500,000 in excess thereof or, in each case, if less, the
entire principal amount thereof then outstanding; and
(iii)
the Borrowers shall pay the Administrative Agent (for the account or each
Lender) any accrued but unpaid interest and (if the prepayment is to be made before the
Make-Whole Date) any Make-Whole Premium on the Loans or any part thereof prepaid
on the date of such prepayment.
(b)
Mandatory
.
(i)
If, at any time (including as determined on delivery of a Borrowing Base
Certificate), the Total Outstandings at such time exceed the Maximum Revolving Credit,
then, within three (3) Business Day of the occurrence of such event or of receipt of a
notice from the Administrative Agent, the Borrowers shall prepay the outstanding Loans
(together with any Make-Whole Premium in respect of the amount prepaid) and/or
provide Cash Collateral (the “
Borrowing Base Cash Collateral
”), in either case, in an
aggregate amount sufficient (or which would, on prepayment, be sufficient) to reduce the
amount of Total Outstandings as of such date of payment to an amount less than or equal
to the Maximum Revolving Credit; provided that, where Borrowing Base Cash Collateral
is provided:
73
(A)
if on either of the following two consecutive dates on which a
Borrowing Base Certificate is required to be delivered in accordance with the
terms of this Agreement (each a “
Borrowing Base Certificate Delivery Date
”),
the Total Outstandings (as determined on the date of each such Borrowing Base
Certificate and without taking into account any Borrowing Base Cash Collateral)
exceed the Maximum Revolving Credit, then, at any time on or after the date of
the second Borrowing Base Certificate Delivery Date following the payment of
the Borrowing Base Cash Collateral, the Administrative Agent shall be entitled to
apply that Borrowing Base Cash Collateral towards prepayment of the
outstanding Loans in an aggregate amount sufficient to reduce the amount of
Total Outstandings as of such date of prepayment to an amount less than or equal
to the Maximum Revolving Credit; and
(B)
if, on each of the first, second, third and fourth Borrowing Base
Certificate Delivery Dates following the payment of the Borrowing Base Cash
Collateral, the Total Outstandings (as determined on the date of each Borrowing
Base Certificate delivered in accordance with the terms of this Agreement on and
prior to the fourth Borrowing Base Certificate Delivery Date, and without taking
into account any Borrowing Base Cash Collateral held in the Collateral Account
at the relevant time) are less than or equal to the Maximum Revolving Credit,
then, within five (5) Business Days of the date of the fourth Borrowing Base
Certificate Delivery Date following the payment of the Borrowing Base Cash
Collateral, the Borrowers may withdraw (and, upon request by a Borrower, the
Administrative Agent shall withdraw) all or a portion of that Borrowing Base
Cash Collateral from the Collateral Account for deposit into a Deposit Account
provided that no Event of Default is continuing or would result from the proposed
withdrawal.
(ii)
Prepayments of the Facility made pursuant to this
Section 2.08(b)
, shall
be applied ratably to the outstanding Loans.
(iii)
If the Administrative Agent exercises its right to apply any Borrowing
Base Cash Collateral held in the Collateral Account towards prepaying the outstanding
Loans, the Borrowers shall pay all accrued interest and Make-Whole Premium in respect
of the amount prepaid promptly on demand by the Administrative Agent.
(c)
Change of Control.
(i)
If a Change of Control occurs, the Borrowers shall promptly notify the
Administrative Agent upon becoming aware of such event, and each Lender shall be
entitled to require, by written notice to the Borrowers, that on or before the date that is
five (5) Business Days after the date on which it has been notified that such Change of
Control has occurred, that:
(A)
all amounts arising under the Loan Documents that are owed or
outstanding or otherwise payable by the Loan Parties to that Lender will become
immediately due and payable, and the Borrowers will immediately prepay or
74
procure the prepayment of all such amounts (including all accrued interest,
applicable Make-Whole Premium, fees, expenses and other amounts due and/or
payable under the Loan Documents), including all Loans provided by that Lender;
and
(B)
the undrawn Availability of that Lender will be cancelled and such
Lender shall have no obligation to participate in further Borrowings requested
under this Agreement.
(ii)
For the avoidance of doubt, the Collateral Agent shall not be required to
release any Collateral in connection with a Change of Control until such all amounts that
are required to be prepaid pursuant to this
Section 2.08(c)
Administrative Agent.
Section 2.09. Cancellation of Commitments
At the close of business on the last Business Day of the Availability Period, any portion of
the Commitments remaining undrawn will be cancelled.
Section 2.10. Restrictions
(a) Any notice of cancellation, prepayment, authorization or other election given by
any Party under
Section 2.08
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.
(b) Any prepayment under this Agreement shall be made together with accrued
interest and any applicable Make-Whole Premium on the amount prepaid and, subject to
Section
3.07
, without premium or penalty.
(c) Unless a contrary indication appears in this Agreement, any part of the Facility
which is prepaid or repaid may be reborrowed subject to:
(i)
the delivery of a written request by the Borrowers within 5 Business Days
after the relevant prepayment or repayment (the “
Reborrowing Election Period
”) that
such amount shall remain available to be reborrowed; and
(ii)
the written consent of all Lenders in their absolute discretion to such
request (failing which an amount of the Commitments equal to the amount prepaid or
repaid shall be permanently cancelled on the last day of the Reborrowing Election Period
or, if earlier, the date on which the Administrative Agent has notified the Borrowers in
writing that the Lenders have declined to consent to the relevant amount continuing to be
available for reborrowing and shall not be available to be reborrowed),
provided that for any relevant prepayment or repayment by the Borrowers, if the Borrowers do not
deliver a written request within the Reborrowing Election Period in accordance with
paragraph
(c)(i)
75
prepaid or repaid by the Borrowers shall be automatically and permanently cancelled on the last
day of that Reborrowing Election Period.
(d) The Borrowers shall not repay or prepay all or any part of the Utilisations or
cancel all or any part of the Commitments except at the times and in the manner expressly
provided for in this Agreement.
(e) No amount of the Commitments cancelled under this Agreement may be
subsequently reinstated.
(f) If the Administrative Agent receives a notice under
Section 2.08
forward a copy of that notice to either the Borrowers or the affected Lender, as appropriate
(g) Notwithstanding any other provision in this Agreement, in the event that all or
any portion of any Loan is (or is required to be) repaid or prepaid pursuant to
Section 2.08, 3.02,
8.02 or 8.05(b)
at any time on or before the applicable Make-Whole Date for such Loan, any
such repayment or prepayment of such Loan shall be made together with the Make-Whole
Premium.
Section 2.11. Repayment of Loans.
The Borrowers shall, on a joint and several basis in accordance with
Section 11.19
, repay
to the Lenders on the Maturity Date the aggregate principal amount of all Loans together with
accrued interest, applicable Make-Whole Premium, fees, expenses and any other amounts
outstanding under the Loan Documents on such date.
Section 2.12. Interest
.
(a) Subject to the provisions of
Section 2.12(b)
, each Loan shall bear interest on the
outstanding principal amount thereof from the applicable borrowing date at a rate per annum
equal to the Applicable Rate.
(b) While any Event of Default exists, if any principal of or interest on any Loan or
any fee or any other amount payable by the Borrowers hereunder is not, in each case, paid or
reimbursed when due, whether at stated maturity, by acceleration, on demand or otherwise, the
relevant overdue amount shall bear interest, to the fullest extent permitted by law, after as well as
before judgment, at a rate per annum equal to the Default Rate. Accrued and unpaid interest on
past due amounts (including interest on past due interest) shall be due and payable upon demand
by the Administrative Agent and will be compounded at the end of each Interest Period.
(c) Interest on each Loan under
paragraph (a)
arrears on each Interest Payment Date applicable thereto and at such other times as may be
specified herein.
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Section 2.13. Fees
.
(a)
Commitment Fee
. The Borrowers shall pay to the Administrative Agent for the
account of each Lender in accordance with its Applicable Percentage, a commitment fee (the
“
Commitment Fee
”) equal to 9.00% per annum, calculated on the actual daily amount by which
the aggregate Commitments of all Lenders exceed the Total Outstandings, determined as of the
date of the Second Amendment Deed and daily thereafter. The Commitment Fee shall accrue on
a daily basis at all times from the date of the Second Amendment Deed to and including the date
falling 12 months after the Second Amendment Deed, including at any time during which one or
more of the conditions in
Article 4
Interest Payment Date, commencing with the first Interest Payment Date to occur after the date
of the Second Amendment Deed, and on the date falling 12 months after the date of the Second
Amendment Deed.
(b)
Upfront Fees
. The Borrowers shall pay to the Administrative Agent, for the
account of each Lender, fees in the amounts and at the times specified in the applicable Fee
Letter. Such fees shall be fully earned when paid and shall not be refundable for any reason
whatsoever.
(c)
Administrative Agent Fees
. The Borrowers shall pay to the Administrative
Agent for its own account fees in the amounts and at the times specified in the applicable Fee
Letter. Such fees shall be fully earned when paid and shall not be refundable for any reason
whatsoever.
(d)
Collateral Agent Fees
. The Borrowers shall pay to the Collateral Agent for its
own account fees in the amounts and at the times specified in the applicable Fee Letter. Such
fees shall be fully earned when paid and shall not be refundable for any reason whatsoever.
Section 2.14. Computation of Interest and Fees
.
All computations of interest for Loans shall be made on the basis of a year of 360 days,
as the case may be, and actual days elapsed. All other computations of fees and interest shall be
made on the basis of a 360-day year and actual days elapsed. Interest shall accrue on a daily
basis on each Loan on and from the day on which the Loan is made, but shall not accrue on a
Loan, or any portion thereof, for the day on which the Loan or such portion is paid,
provided
,
that any Loan that is repaid on the same day on which it is made shall, subject to
Section 2.16(a)
,
bear interest for one day. Each determination by the Administrative Agent of an interest rate or
fee hereunder shall be conclusive and binding for all purposes, absent manifest error.
Section 2.15. Evidence of Debt
.
The Borrowings made by each Lender shall be evidenced by one or more accounts or
records maintained by such Lender and, as part of the Register, by the Administrative Agent in
the ordinary course of business. The accounts or records maintained by the Administrative
Agent and each Lender shall be conclusive absent manifest error of the amount of the
Borrowings made by the Lenders to the Borrowers and the interest and payments thereon. Any
failure to so record or any error in doing so shall not, however, limit or otherwise affect the
obligation of the Borrowers hereunder to pay any amount owing with respect to the Obligations.
77
In the event of any conflict between the accounts and records maintained by any Lender and the
accounts and records of the Administrative Agent in respect of such matters, the accounts and
records of the Administrative Agent shall control in the absence of manifest error.
Section 2.16. Payments Generally; Administrative Agent’s
Clawback
.
(a)
General
. All payments to be made by the Borrowers or the other Loan Parties
shall be made without condition or deduction for any counterclaim, defense, recoupment or
setoff. Except as otherwise expressly provided herein, all payments by the Borrowers or the
other Loan Parties hereunder shall be made to the Administrative Agent, for the account of the
respective Lenders to which such payment is owed, at the Administrative Agent’s Office in
Dollars and in immediately available funds not later than 2:00 p.m. (Sydney time) on the date
specified herein. The Administrative Agent will promptly distribute to each Lender its ratable
share of such payment in like funds as received by wire transfer to such Lender. All payments
received by the Administrative Agent after 2:00 p.m. (Sydney time) shall be deemed received on
the next succeeding Business Day and any applicable interest or fee shall continue to accrue. If
any payment to be made by the Borrowers shall come due on a day other than a Business Day,
payment shall be made on the next following Business Day, and such extension of time shall be
reflected in computing interest or fees, as the case may be. Notwithstanding anything to the
contrary, to the extent the Administrative Agent receives a payment or other amount after the
date such payment or other amount is due, the Administrative Agent, in its sole discretion, may
distribute such payment or other amount to the relevant Lender of record (or other Person of
record entitled to such payment) as of the date such payment or other amount is received by the
Administrative Agent.
(b)
Payments by Borrowers; Presumptions by Administrative Agent
. Unless the
Administrative Agent shall have received notice from the Borrowers prior to the date on which
any payment is due to the Administrative Agent for the account of the Lenders hereunder that
such Borrowers will not make such payment, the Administrative Agent may assume that such
Borrower has made such payment on such date in accordance herewith and may, in reliance upon
such assumption, distribute to such Lenders, as the case may be, the amount due. In such event,
if such Borrower has not in fact made such payment, then each of the Lenders, as the case may
be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so
distributed to such Lender, in immediately available funds with interest thereon, for each day
from and including the date such amount is distributed to it to but excluding the date of payment
to the Administrative Agent, at the Overnight Rate.
Notwithstanding the foregoing paragraphs in this
Section 2.16(b)
, where a sum is to be
paid by Borrower to the Administrative Agent under the Loan Documents for for the account of a
Secured Party, the Administrative Agent is not obliged to pay that sum to that other party (or to
enter into or perform any related exchange contract) until it has been able to establish to its
satisfaction that it has actually received that sum.
A notice of the Administrative Agent to any Lender or the Borrowers with respect to any
amount owing under this
Section 2.16(b)
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(c)
Failure to Satisfy Conditions Precedent
. If any Lender makes available to the
Administrative Agent funds for any Loan to be made by such Lender to the Borrowers as
provided in the foregoing provisions of this
Article 2
, and such funds are not made available to
the Borrowers by the Administrative Agent because the conditions to the applicable Borrowing
set forth in
Article 4
are not satisfied or waived in accordance with the terms hereof, the
Administrative Agent shall promptly return such funds (in like funds as received from such
Lender) to such Lender, without interest.
(d)
Obligations of Lenders Several
. The obligations of the Lenders hereunder to
make Loans are several and not joint.
The failure of any Lender to make any Loan on any date required hereunder shall not relieve any
other Lender of its corresponding obligation to do so on such date, and no Lender shall be
responsible for the failure of any other Lender to do so.
(e)
Funding Source
. Nothing herein shall be deemed to obligate any Lender to
obtain the funds for any Loan in any particular place or manner or to constitute a representation
by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or
manner.
(f)
Payments after due date.
the Administrative Agent receives a payment or other amount after the date such payment or
other amount is due, the Administrative Agent, in its sole discretion, may distribute such
payment or other amount to the relevant Lender of record (or other Person of record entitled to
such payment) as of the date such payment or other amount is received by the Administrative
Agent.
Section 2.17. Sharing of Payments by Lenders
.
If any Lender would,
as a result of (and after taking account of) exercising or having exercised any right
of setoff or counterclaim or otherwise, obtain payment in respect of:
(a) Obligations due and payable to such Lender hereunder and under the other Loan
Documents at such time in excess of its ratable share (according to the proportion of (i) the
amount of such Obligations due and payable to such Lender at such time to (ii) the aggregate
amount of the Obligations due and payable to all Lenders hereunder and under the other Loan
Documents at such time) of the relevant payment on account of the Obligations which have
become due and payable, or
(b) Obligations owing (but not due and payable) to such Lender hereunder and under
the other Loan Documents at such time in excess of its ratable share (according to the proportion
of (x) the amount of such Obligations owing (but not due and payable) to such Lender at such
time to (y) the aggregate amount of the Obligations owing (but not due and payable) to all
Lenders hereunder and under the other Loan Parties at such time) of the relevant payment on
account of the Obligations owing (but not due and payable),
then the Lender receiving such greater proportion shall (i) notify the Administrative
Agent of such fact, and (ii) purchase (for cash at face value) participations in the Loans of the
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other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all
such payments shall be shared by the Lenders ratably in accordance with the aggregate amount
of Obligations then due and payable to the Lenders or owing (but not due and payable) to the
Lenders, as the case may be,
provided
, that:
(i)
if any such participations or subparticipations are purchased and all or any
portion of the payment giving rise thereto is recovered, such participations or
subparticipations shall be rescinded and the purchase price restored to the extent of such
recovery, without interest; and
(ii)
the provisions of this
Section 2.17
(A)
any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans to any assignee or
participant, other than to the Borrowers or any Subsidiary thereof (as to which the
provisions of this
Section 2.17
(B)
any payments pursuant to the Fee Letter.
The Borrowers consent to the foregoing and agree, to the extent it may effectively do so
under applicable law, that any Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against the Borrowers rights of setoff and counterclaim with respect to
such participation as fully as if such Lender were a direct creditor of the Borrowers in the amount
of such participation.
Section 2.18. Disruption to payment systems.
Administrative Agent determines (in its discretion) that a Disruption Event has
occurred or the Administrative Agent is notified by a Borrower that a Disruption
Event has occurred:
(a) the Administrative Agent may, and shall if requested to do so by the Borrowers,
consult with the Borrowers with a view to agreeing with the Borrowers such changes to the
operation or administration of the Facility as the Administrative Agent may deem necessary in
the circumstances;
(b) the Administrative Agent shall not be obliged to consult with the Borrowers in
relation to any changes mentioned in
paragraph (a)
to do so in the circumstances and, in any event, shall have no obligation to agree to such
changes;
(c) the Administrative Agent may consult with the Secured Parties in relation to any
changes mentioned in
paragraph (a)
is not practicable to do so in the circumstances;
(d) any such changes agreed upon by the Administrative Agent and the Borrowers
shall (whether or not it is finally determined that a Disruption Event has occurred) be binding
80
upon all parties to this Agreement as an amendment to (or, as the case may be, waiver of) the
terms of the Loan Documents notwithstanding the provisions of
Section 11.01
;
(e) the Administrative Agent shall not be liable for any damages, costs or losses to
any person, any diminution in value or any liability whatsoever (other than any such damages,
costs, losses, diminution in value or liability arising as a result of the negligence, gross
negligence or fraud of the Administrative Agent) arising as a result of its taking, or failing to
take, any actions pursuant to or in connection with this
Section 2.18
; and
(f) the Administrative Agent shall notify the Secured Parties of all changes agreed
pursuant to
paragraph (d)
Section 2.19. [Reserved]
ARTICLE 3.
TAXES, YIELD PROTECTION AND ILLEGALITY
Section 3.01. Taxes.
(a)
Payments Free of Taxes
. Any and all payments by or on account of any
obligation of any Loan Party under any Loan Document shall be made without deduction or
withholding for any Taxes, except as required by applicable law. If any applicable law (as
determined in good faith discretion of an applicable Withholding Agent) requires the deduction
or withholding of any Tax from any such payment by a Withholding Agent, then the applicable
Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay
the full amount deducted or withheld to the relevant Governmental Authority in accordance with
applicable law and, if such Tax is an Indemnified Tax then the applicable Loan Party shall pay
an additional amount as is necessary so that after such deductions or withholding has been made
(including such deductions and withholdings applicable to additional sums payable under this
Section 3.01) the applicable Recipient receives an amount equal to the sum it would have
received had no such deductions or withholding been made.
(b)
Payment of Other Taxes by the Borrowers
. The Loan Parties shall timely pay
any Taxes to the relevant Governmental Authority in accordance with applicable law, or at the
option of the Administrative Agent timely reimburse it for the payment of any other Taxes.
(c)
Indemnification by the Borrowers
. The Loan Parties shall jointly and severally
indemnify the Administrative Agent and each Lender, within 10 days after demand therefor, for
the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on
or attributable to amounts payable under this Section) payable or paid by the Administrative
Agent or such Lender, or required to be withheld or deducted from a payment to the
Administrative Agent or such Lender, as the case may be, and any reasonable expenses arising
therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority.
(d)
Indemnification by the Lenders
. Each Lender shall severally indemnify the
Administrative Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes
attributable to such Lender (but only to the extent that any Loan Party has not already
81
indemnified the Administrative Agent for such Indemnified Taxes and without limiting the
obligation of the Loan Parties to do so), (ii) any Taxes attributable to such Lender’s failure to
comply with the provisions of
Section 11.07(d)
Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable
or paid by the Administrative Agent in connection with any Loan Document, and any reasonable
expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority. A certificate as to the
amount of such payment or liability delivered to any Lender by the Administrative Agent shall
be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to
set off and apply any and all amounts at any time owing to such Lender under any Loan
Document or otherwise payable by the Administrative Agent to the Lender from any other
source against any amount due to the Administrative Agent under this
Section 3.01(d)
.
(e)
Evidence of Payments
. As soon as practicable after any payment of Taxes by
any Loan Party to a Governmental Authority pursuant to this
Section 3.01
, such Loan Party shall
deliver to the Administrative Agent the original or a certified copy of a receipt issued by such
Governmental Authority evidencing such payment, a copy of the return reporting such payment
or other evidence of such payment reasonably satisfactory to the Administrative Agent.
(f)
Status of Lenders
.
(i)
Any Lender that is entitled to an exemption from or reduction of
withholding Tax with respect to payments made under any Loan Document shall deliver
to the Borrower and the Administrative Agent, at the time or times reasonably requested
by the Borrower or the Administrative Agent, such properly completed and executed
documentation reasonably requested by the Borrower or the Administrative Agent as will
permit such payments to be made without withholding or at a reduced rate of
withholding. In addition, any Lender, if reasonably requested by the Borrower or the
Administrative Agent, shall deliver such other documentation prescribed by applicable
law or reasonably requested by the Borrower or the Administrative Agent as will enable
the Borrower or the Administrative Agent to determine whether or not such Lender is
subject to backup withholding or information reporting requirements. Notwithstanding
anything to the contrary in the preceding two sentences, the completion, execution and
submission of such documentation (other than such documentation set forth in
Section
3.01(f)(ii)
below) shall not be required if in the Lender’s reasonable judgment such
completion, execution or submission would subject such Lender to any material
unreimbursed cost or expense or would materially prejudice the legal or commercial
position of such Lender.
(ii)
Each Lender shall deliver to the Administrative Agent, upon reasonable
prior request by Administrative Agent, duly completed copies of Internal Revenue
Service Form W-8BEN, W-8BEN-E, W-8ECI, W-8IMY, W-EXP or W-9, as may be
applicable, together with any required attachments, if required to establish that such
Lender is exempt from United States backup withholding Taxes (unless such Lender is
not subject to United States backup withholding requirements). Without prejudice to any
Recipient’s right to additional amount or indemnification under this Section 3.01, the
Borrowers, each Lender and the Agents agree to treat interest and fees with respect to the
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Facility as foreign-source income for U.S. federal income tax purposes, unless otherwise
required by a Change in Law after the Amendment and Restatement Effective Date or a
determination within the meaning of Section 1313(a) of the Code. The Borrowers shall
timely and accurately make any reporting or disclosures required under the Code relating
to the position in the preceding sentence (including reporting on behalf of any Lender to
the extent reporting by such Lender would be required and may be made by the
Borrowers under Section 6114 of the Code and the regulations thereunder).
(iii)
if a payment made to a Lender under any Loan Document would be
subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail
to comply with the applicable reporting requirements of FATCA (including those
contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall
deliver to the Borrowers and the Administrative Agent at the time or times prescribed by
law and at such time or times reasonably requested by the Borrowers or the
Administrative Agent such documentation prescribed by applicable law (including as
prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation
reasonably requested by the Borrowers or the Administrative Agent as may be necessary
for the Borrowers and the Administrative Agent to comply with their obligations under
FATCA and to determine that such Lender has complied with such Lender’s obligations
under FATCA or to determine the amount to deduct and withhold from such payment.
Solely for purposes of this
clause (iii)
, “FATCA” shall include any amendments made to
FATCA after the date of the Second Amendment Deed.
Each Lender agrees that if it becomes aware that any form or certification it previously
delivered expires or has become obsolete or inaccurate in any respect, it shall update such form or
certification or promptly notify the Borrower and the Administrative Agent in writing of its legal
inability to do so.
(g)
Treatment of Certain Refunds
. If any party determines, in its sole discretion
and good faith judgment, that it has received a refund of any Taxes as to which it has been
indemnified pursuant to this
Section 3.01
pursuant to this
Section 3.01
), it shall promptly pay to the indemnifying party an amount equal to
such refund (but only to the extent of indemnified payments made under this Section with
respect to the Taxes giving rise to such refund) net of all out-of-pocket expenses (including
Taxes) of such indemnified party and without interest (other than any interest paid by the
relevant Governmental Authority with respect to such refund). Such indemnifying party, upon
the request of such indemnified party, shall repay to such indemnified party the amount paid over
pursuant to this
paragraph (g)
plus
relevant Governmental Authority) in the event that such indemnified party is required to repay
such refund to such Governmental Authority. Notwithstanding anything to the contrary in this
paragraph (g)
, in no event will the indemnified party be required to pay any amount to an
indemnifying party pursuant to this
paragraph (g)
indemnified party in a less favorable net after-Tax position than the indemnified party would
have been in if the Tax subject to indemnification and giving rise to such refund had not been
deducted, withheld or otherwise imposed and the indemnification payments or additional
amounts with respect to such Tax had never been paid. This paragraph shall not be construed to
83
require any indemnified party to make available its Tax returns (or any other information relating
to its Taxes that it deems confidential) to the indemnifying party or any other Person.
(h)
Survival
. Each party’s obligations under this
Section 3.01
resignation or replacement of the Administrative Agent or any assignment of rights by, or the
replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or
discharge of all obligation under any Loan Document.
(i)
Defined Terms
. For purpose of this
Section 3.01
, the term “applicable law”
includes FATCA.
Section 3.02. Illegality
.
If any Lender determines that as a result of any Change in Law it becomes unlawful, or
that any Governmental Authority asserts that it is unlawful, for any Lender to make, maintain or
fund any Loans, any Loans, or to determine or charge interest rates, then, on notice thereof by
such Lender to the Borrowers through the Administrative Agent, any obligation of such Lender
to make or continue the relevant Loans shall be suspended until such Lender notifies the
Administrative Agent and the Borrowers that the circumstances giving rise to such determination
no longer exist. Upon receipt of such notice, the Borrowers shall, upon demand from such
Lender (with a copy to the Administrative Agent), prepay all such Loans of such Lender
(together with all accrued but unpaid interest on such Loans, applicable Make-Whole Premium,
and all fees, expenses and other amounts due and/or payable to that Lender or on or in respect of
such Loans), either on the last day of the Interest Period therefor, if such Lender may lawfully
continue to maintain such Loans to such day, or immediately, if such Lender may not lawfully
continue to maintain such Loans. Upon any such prepayment, the Borrowers shall also pay
accrued interest on the amount so prepaid.
Section 3.03. [Reserved]
Section 3.04. Increased Costs
(a) Subject to
Section 3.06
demand by the Administrative Agent, pay for the account of a Lender the amount of any
Increased Costs incurred by that Lender 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;
(ii)
compliance with any law or regulation,
made after the Amendment and Restatement Effective Date. This includes any law or
regulation with regard to capital adequacy, prudential limits, liquidity, reserve assets or
Tax.
84
(b) In this agreement "
Increased Costs
" means:
(i)
a reduction in the rate of return from a Facility or on a Lender’s (or its
Affiliate’s) overall capital (including as a result of any Tax on capital or reduction in the
rate of return on capital as more capital is required to be allocated);
(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 Lender or any of its Affiliates to the extent that it is
attributable to that Lender having entered into its Commitment or funding or performing
its obligations under any Loan Document.
(c) 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".
Section 3.05. Increased cost claims
(a) A Lender intending to make a claim pursuant to
Section 3.04
Administrative Agent of the event giving rise to the claim, following which the Administrative
Agent shall promptly notify a Borrower.
(b) Each Lender shall, as soon as practicable after a demand by the Administrative
Agent, provide a certificate confirming the amount of its Increased Costs.
Section 3.06. Exceptions
Section 3.04
(a) attributable to a Tax Deduction required by law to be made by a Loan Party;
(b) attributable to a FATCA Deduction required to be made by a Party;
85
(c) compensated for by
Section 3.01
Section 3.01
Section 3.01
applied)); or
(d) attributable to the wilful breach by the relevant Lender or its Affiliates of any law
or regulation; or
(e) attributable to the implementation or application of or compliance with the
"International Convergence of Capital Measurement and Capital Standards, a Revised
Framework" published by the Basel Committee on Banking Supervision in June 2004 in the
form existing on the Amendment and Restatement Effective Date (but excluding any amendment
arising out of Basel III) (
"Basel II"
) or any other law or regulation which implements Basel II
(whether such implementation, application or compliance is by a government, regulator, Lender
or any of its Affiliates).
Section 3.07. Compensation for Losses
.
Upon demand of any Lender
(with a copy to the Administrative Agent) from time to time, the Borrowers shall
promptly indemnify and compensate such Lender for and hold such Lender
harmless from any loss, cost or expense incurred by it as a result of:
(a) any conversion, payment or prepayment of any Loan, on a day other than the last
day of the Interest Period for such Loan (whether voluntary, mandatory, automatic, by reason of
acceleration, or otherwise);
(b) any failure by the Borrowers (for a reason other than the failure of such Lender to
make a Loan) to prepay, borrow, or continue any Loan on the date or in the amount notified by
the Borrowers; or
(c) any assignment of a Loan on a day other than the last day of the Interest Period
therefor as a result of a request by the Borrowers pursuant to
Section 11.14
;
including any loss or expense arising from the liquidation or reemployment of funds obtained by
it to maintain such Loan or from fees payable to terminate the deposits from which such funds
were obtained, but excluding any loss of anticipated profits. The Borrowers shall also pay any
customary administrative fees charged by such Lender in connection with the foregoing.
Amounts payable under this clause will be calculated to include the amount (if any) by which:
(d) 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 to the last day of the current Interest Period
in respect of that Loan, had the principal amount received been paid on the last day of that Interest
Period;
exceeds:
(e) the amount which that Lender would be able to obtain by placing an amount equal
to the principal amount received by it on deposit with a leading bank in the relevant market or
86
acquiring a bill of exchange accepted by 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.
It is an amount payable in lieu of interest which would otherwise have been paid.
Section 3.08. Mitigation Obligations; Replacement of Lenders.
(a) If any Lender requests compensation under
, or the Borrowers are
required to pay any Indemnified Taxes or additional amount to any Lender, the Administrative
Agent or any Governmental Authority for the account of any Lender pursuant to
Section 3.01
, or
if any Lender gives a notice pursuant to
Section 3.02
, then such Lender shall use reasonable
efforts to assign its rights and obligations hereunder to another of its offices, branches or
Affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate
or reduce amounts payable pursuant to
Section 3.01
, as the case may be, in the
future, or eliminate the need for the notice pursuant to
Section 3.02
, as applicable, and (ii) in
each case, would not subject such Lender to any unreimbursed cost or expense and would not
otherwise be disadvantageous to such Lender. The Borrowers hereby agree to pay all reasonable
costs and expenses incurred by any Lender in connection with any such designation or
assignment.
(b)
Replacement of Lenders
. If any Lender requests compensation under
Section
3.04
, then the Borrowers may replace such Lender in accordance with
Section 11.14
.
Section 3.09. Survival
.
All of the Borrowers’ obligations under this
Article 3
of all other Obligations hereunder.
ARTICLE 4.
CONDITIONS PRECEDENT TO BORROWINGS
Section 4.01. Conditions of Amendment and Restatement Effective
Date
.
effective, on the terms and subject to the other conditions set forth herein, upon the
satisfaction (or waiver) of the conditions precedent in Schedule 2 (“
Conditions
precedent
”) of the Refinancing Coordination Deed.
Section 4.02. Conditions to All Borrowings
.
The obligation of each
Lender to honor any Borrowing Notice is subject to the following conditions
precedent:
(a) The representations and warranties of each Loan Party and its Subsidiaries
contained in this Agreement and each other Loan Document, shall be true and correct in all
material respects (or, if such representation or warranty is subject to a materiality or Material
Adverse Effect qualification, in all respects) on and as of the date of such Borrowing, except to
the extent that such representations and warranties specifically refer to an earlier date, in which
case they shall be true and correct in all material respects as of such earlier date.
87
(b) No Default or Event of Default shall have occurred and be continuing, or would
result from such proposed Borrowing or from the application of the proceeds thereof.
(c) After giving effect to any Borrowing, the Total Outstandings shall not exceed the
Maximum Revolving Credit.
(d) The Administrative Agent shall have received a Borrowing Notice in accordance
with the requirements hereof.
(e) If the Utilisation Date of such proposed Borrowing falls after the date falling 12
months after the date of the Second Amendment Deed, the Administrative Agent (acting on the
instructions of all Lenders) has given its prior written consent to such proposed Borrowing.
Each Borrowing Notice submitted by the Borrowers shall be deemed to be a representation
and warranty that the conditions specified in
Sections 4.02(a)
(b)
as of the date of the applicable Borrowing.
ARTICLE 5.
REPRESENTATIONS AND WARRANTIES
The Borrowers and each Guarantor, on behalf of themselves and their respective
Subsidiaries, represents and warrants to the Administrative Agent and the Lenders (at the times
specified in
Section 5.30
) that:
Section 5.01. Existence, Qualification and Power
.
(a) (i) Each Loan Party and each of its respective Subsidiaries is duly
incorporated, organized or formed and validly existing under the Laws of its jurisdiction of
incorporation or organization and
(ii)
each U.S. Loan Party and each of its respective Subsidiaries is in good
standing under the Laws of the jurisdiction of its incorporation or organization, except, in
the case of this
clause (ii)
, to the extent that failure to do so could not reasonably be
expected to have a Material Adverse Effect.
(b) Each Loan Party and each of its respective Subsidiaries has all requisite power
and authority and all requisite governmental licenses, authorizations, consents and approvals to
(i)
own or lease its material assets and to carry on its business substantially as
it is conducted immediately prior to the Amendment and Restatement Effective Date,
(ii)
execute, deliver and perform its obligations under the Loan Documents to
which it is a party and consummate the Transactions, and
(iii)
is duly qualified and is licensed and, as applicable, in good standing, under
the Laws of each jurisdiction where its ownership, lease or operation of properties or the
conduct of its business requires such qualification or license.
88
Section 5.02. Authorization; No Contravention
.
delivery and performance by each Loan Party of each Loan Document,
(a) have been duly authorized by all necessary corporate or other organizational
action, and
(b) do not and will not
(i)
contravene the terms of any of such Person’s Organization Documents;
(ii)
conflict with or result in any breach or contravention of, or the creation of
any Lien (except for any Liens that may arise under the Loan Documents) under, or
require any payment to be made under (A) any Contractual Obligation to which such
Person is a party or affecting such Person or the properties of such Person or any of its
Subsidiaries or (B) any order, injunction, writ or decree of any Governmental Authority
or any arbitral award to which such Person or its property is subject; or
(iii)
violate any Law,
except, in the case of
clauses (b)(ii)
(iii)
, as could not reasonably be expected to have a
Material Adverse Effect.
Section 5.03. Governmental Authorization; Other Consents.
(a) No approval, consent, exemption, authorization, or other action by, or notice to, or
filing with, any Governmental Authority, and
(b) no material approval, consents (except consents required from a counterparty to a
Real Property Lease), exemption, authorization, or other action by, or notice to, or filing with
any other Person,
in each case, is necessary or required in connection with
(i)
the execution, delivery or performance by any Loan Party of this
Agreement or any other Loan Document, or for the consummation of the Transactions,
(ii)
the grant by any Loan Party of the Liens granted by it pursuant to the
Collateral Documents (including the Australian Collateral Documents), or
(iii)
the perfection of the Liens created under the Collateral Documents
(including the Australian Collateral Documents) (subject to the terms, conditions and
priorities set forth in the ABL Intercreditor Agreement), except for (x) those approvals,
consents, exemptions, authorizations or other actions which have already been obtained,
taken, given or made and are in full force and effect, and (y) any filings or registrations
(including the lodgment of any financing statement in accordance with the Australian
PPS Act) required to perfect the Liens created under the Collateral Documents (including
the Australian Collateral Documents).
89
Section 5.04. Binding Effect
.
This Agreement has been, and each other
Loan Document, when delivered hereunder, will have been, duly executed and
delivered by each Loan Party that is party thereto. This Agreement constitutes, and
each other Loan Document when so delivered will constitute, a legal, valid and
binding obligation of each Loan Party that is party thereto, enforceable against such
Loan Party in accordance with its terms, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other Laws
relating to or affecting creditors’ rights generally, general principles of equity,
regardless of whether considered in a proceeding in equity or at law and an implied
covenant of good faith and fair dealing.
Section 5.05. Financial Statements; No Material Adverse Effect
.
(a) The
Financial Statements
(i)
of Holdings and its Subsidiaries (other than CCPL and Australian Parent)
were prepared in accordance with GAAP consistently applied throughout the period
covered thereby, except as otherwise expressly noted therein or in the notes thereto;
(ii)
of CCPL and Australian Parent were prepared in accordance with A-
GAAP consistently applied throughout the period covered thereby, except as otherwise
expressly noted therein or in the notes thereto; and
(iii)
give a true and fair view (in the case of audited financial statements) and
fairly present (in respect of unaudited financial statements) in all material respects the
financial condition and performance of Holdings and its Subsidiaries as of the date
thereof and their results of operations for the period covered thereby in accordance with
GAAP consistently applied throughout the period covered thereby (subject, in the case of
unaudited statements, to normal year-end audit adjustments and to any other adjustments
described therein including in any notes thereto).
(b) The Original Financial Statements of Holdings and its Subsidiaries, certified by a
Responsible Officer of Holdings, copies of which have been furnished to the Administrative
Agent, on or prior to the Amendment and Restatement Effective Date, fairly present in all
material respects the consolidated financial condition of Holdings and its Subsidiaries, on a
consolidated basis, as at such date and the consolidated results of operations of Holdings and its
Subsidiaries for the period ended on such date, all prepared in accordance with GAAP, except as
otherwise noted therein.
(c) Since the Amendment and Restatement Effective Date, there has been no event or
circumstance, either individually or in the aggregate, that has had or could reasonably be
expected to have a Material Adverse Effect.
Section 5.06. Litigation
.
Except as set forth on
Schedule 5.06
, there
are no actions, suits, proceedings, claims, investigations or disputes pending or, to
the knowledge of the Borrowers, threatened, at law, in equity, in arbitration or
before any Governmental Authority, by or against Holdings or any of its
90
Subsidiaries or against any of their properties or revenues that purport to affect or
pertain to this Agreement or any other Loan Document (including the legality or
enforceability thereof) or the consummation of the Transactions or as to which there
is a reasonable possibility of an adverse determination and that could reasonably be
expected to have a Material Adverse Effect.
Section 5.07. No Default
.
is in default under or with respect to any Contractual Obligation that could, either
individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect. No Default has occurred and is continuing or would result from the
consummation of the transactions contemplated by this Agreement or any other
Loan Document.
Section 5.08. Ownership of Property; Subsidiaries; Equity Interests
.
(a) Each of Holdings and each of its Subsidiaries, subject to Permitted Liens, has
(i)
good and marketable or valid leasehold Mining Title to the Material
Owned Real Property and the Material Leased Real Property necessary for the ordinary
conduct of the business and operations of each of the Loan Parties and each of their
respective Subsidiaries as presently conducted as of the Amendment and Restatement
Effective Date, and
(ii)
good record title to, or valid leasehold, easement or other real property
interests in all other Real Property necessary for the ordinary conduct of the business and
operations of the Loan Parties and their respective Subsidiaries as presently conducted,
subject to such defects in title as could not reasonably be expected to materially interfere
with the ordinary conduct of the business and operations of any Loan Party or any of its
Subsidiaries.
(b) Holdings and each of its Subsidiaries has good record title to, or valid leasehold,
easement or other property interests in all personal property necessary for or used in the ordinary
conduct of the business and operations of the Loan Parties and their respective Subsidiaries as
presently conducted.
(c) as of the Amendment and Restatement Effective Date,
(i)
all Equity Interests held by Holdings or any of its Subsidiaries are set forth
on
Schedule 5.08(c)
,
(ii)
all of the outstanding Equity Interests in Holdings and its Subsidiaries
have been validly issued, are fully paid and nonassessable (to the extent such concepts
exist under applicable Law), and
(iii)
all Equity Interests owned by Holdings and its Subsidiaries are free and
clear of all Liens except (x) those created under the Collateral Documents and Australian
Collateral Documents and (y) any Permitted Liens.
91
(d) To the knowledge of the Loan Parties on the Amendment and Restatement
Effective Date, all Material Owned Real Property and Material Leased Real Property of the Loan
Parties that is being mined or operated as of the Amendment and Restatement Effective Date is
in physical condition that would permit mining or operations presently conducted.
Section 5.09. Environmental Compliance
.
Except as disclosed on
Schedule 5.09
, or as otherwise could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect:
(a) None of Holdings nor any of its Subsidiaries has received any notice of violation,
alleged violation, non-compliance, liability or potential liability concerning or arising out of
Environmental Laws or Hazardous Materials with regard to any of the Properties, any properties
formerly owned or operated by Holdings or its Subsidiaries, or the business operated by
Holdings or any of its Subsidiaries (the “
Business
”).
(b) Hazardous Materials have not been transported disposed of, released or threatened
to be released, from the Properties or otherwise in connection with the Business, in violation of,
or in a manner or to a location which could reasonably be expected to give rise to liability of
Holdings or any of its Subsidiaries under, any applicable Environmental Law, nor have any
Hazardous Materials been generated, treated, stored, released or threatened to be released, or
disposed of at, on or under any of the Properties or otherwise in connection with the Business, in
violation of, or in a manner that could reasonably be expected to give rise to liability of the Loan
Parties or any of their Subsidiaries under, any applicable Environmental Law.
(c) No judicial proceeding or governmental or administrative action is pending or, to
the knowledge of the Borrowers, threatened under any Environmental Law to which Holdings or
any of its Subsidiaries is or, to the knowledge of the Borrowers, will be named as a party or with
respect to the Properties or the Business, nor are there any consent decrees or other decrees,
consent orders, administrative orders or other orders, or other similar administrative or judicial
requirements outstanding under any Environmental Law with respect to the Loan Parties, any of
their Subsidiaries, the Properties or the Business.
(d) [Reserved].
(e) The Properties and all operations at the Properties and of the Business are and
have been in compliance with all applicable Environmental Laws.
(f) Holdings and each of its Subsidiaries
(i)
hold and have held all Environmental Permits required for any of their
current operations or for the current ownership, operation or use of the Properties,
including all Environmental Permits required for the coal mining-related operations of
Holdings or any its Subsidiaries or, to the extent currently required, any pending
construction or expansion related thereto. Each such Environmental Permit is in full
force and effect and is not subject to appeal, except in such instances where the
requirement to hold such Environmental Permit is being contested in good faith by
Holdings or any of its Subsidiaries by appropriate proceedings diligently conducted;
92
(ii)
are, or have been, in compliance with all Environmental Permits, except in
such instances where the requirement of an Environmental Permit is being contested in
good faith by Holdings or any its Subsidiaries by appropriate proceedings diligently
conducted; and
(iii)
have used commercially reasonable efforts to cause all contractors, lessees
and other Persons occupying, operating or using the mines on the Properties to comply
with all Environmental Laws and obtain all Environmental Permits required for the
operation of the mines.
(g) To the knowledge of the Borrowers, none of the Properties have any associated
direct or indirect acid mine drainage which (i) constitutes or constituted a violation of, or (i)
could reasonably be expected to give rise to liability under, any applicable Environmental Law.
Section 5.10. Mining.
(a) Holdings and each of its Subsidiaries has, in the amounts and forms required
pursuant to Environmental Law, obtained all performance bonds and surety bonds, or otherwise
provided any financial assurance required under Environmental Law for Reclamation or
otherwise in the ordinary conduct of the business and operations of the Loan Parties
(collectively, “
Mining Financial Assurances
”), except as could not reasonably be expected to
result in a Material Adverse Effect.
(b) There have been no accidents, explosions, implosions, collapses or flooding at or
otherwise related to the Properties of the Business that have, directly or indirectly, resulted in, or
could reasonably be expected to result in, a Material Adverse Effect.
(c) Except as listed on
Schedule 5.10
, no mining tenement or interest in Real Property
is necessary to enable the mining of the Buchanan Mine, the Greenbrier Mine, the Logan Mine or
the Curragh Mine, as such operations are currently conducted and each such tenement or interest
is subject to a Collateral Document or an Australian Collateral Document.
(d) All Surface Facilities are located on the surface of Real Property that is owned (and
not leased) by a Loan Party and is subject to a perfected mortgage or security interest under a
Collateral Document, with the following exceptions:
(i)
all of the Surface Facilities servicing the Logan Mine are on leased land;
and
(ii)
a small part of the Surface Facilities servicing the Buchanan Mine are on
leased land,
(iii)
a small part of the Surface Facilities servicing the Greenbrier Mine are on
leased land,
but in the case of
clauses (i)
,
(ii)
(iii)
and equipment comprising the Surface Facilities.
93
Section 5.11. Insurance
.
The properties of Holdings and its
Subsidiaries are insured with financially sound and reputable insurance companies
in such amounts (after giving effect to any self-insurance compatible with the
following standards), with such deductibles and covering such risks as are
customarily carried by companies engaged in similar businesses and owning similar
properties in localities where the Borrowers or the applicable Subsidiary operates.
Section 5.12. Taxes
.
(a) Holdings and its Subsidiaries have filed all material federal, state and other Tax
returns and reports required to be filed, and have paid all material federal, state and other Taxes,
assessments, fees and other governmental charges levied or imposed upon them or their
properties, income or assets otherwise due and payable (other than those which are being
contested in good faith by appropriate proceedings diligently conducted and for which adequate
reserves have been provided in accordance with GAAP) and are not tax resident in any
jurisdiction other than the jurisdiction other than the jurisdiction of their incorporation;
(b) so far as Holdings and each Subsidiary is aware, there is no proposed material
Tax assessment against Holdings or any of its Subsidiaries;
(c) the Australian Tax Agreement constitutes an Australian TSA and Australian TFA;
(d) no Borrower has been a member of any Australian Tax Consolidated Group other
than the Australian Tax Consolidated Group of which the Australian Parent is the Head
Company; and
(e) no Borrower has been a member of any GST Group, other than the GST Group of
which CCPL is the representative member.
Section 5.13. ERISA Compliance
.
(a) Except as could not reasonably be expected, individually or in the aggregate, to
have a Material Adverse Effect,
(i)
each Plan is in compliance with the applicable provisions of ERISA and
the Code (except that with respect to any Multiemployer Plan which is a Plan, such
representation is deemed made only to the knowledge of the Loan Parties), and
(ii)
with respect to each Plan, no failure to satisfy the minimum funding
standards of Sections 412 or 430 of the Code has occurred, and no application for a
funding waiver or an extension of any amortization period pursuant to Section 412 of the
Code has been made.
(b) There are no pending or, to the knowledge of the Loan Parties, threatened claims,
actions or lawsuits, or action by any Governmental Authority, with respect to any Plan that could
reasonably be expected to have a Material Adverse Effect. To the knowledge of the Loan
Parties, there has been no nonexempt “prohibited transaction” (as defined in Section 406 of
94
ERISA) or violation of the fiduciary responsibility rules with respect to any Plan that has
resulted or could reasonably be expected to result in a Material Adverse Effect.
(c) Except as could not reasonably be expected, individually or in the aggregate, to
have a Material Adverse Effect:
(i)
no ERISA Event has occurred or is reasonably expected to occur;
(ii)
no Pension Plan has any Unfunded Pension Liability;
(iii)
no Loan Party nor any ERISA Affiliate has incurred, or reasonably
expects to incur, any liability under Title IV of ERISA with respect to any Pension Plan
(other than premiums due and not delinquent under Section 4007 of ERISA);
(iv)
no Loan Party nor any ERISA Affiliate has incurred, or reasonably
expects to incur (except as may occur as a result of relief granted pursuant to section
1113 of the Bankruptcy Code), any liability (and no event has occurred which, with the
giving of notice under Section 4219 of ERISA, would result in such liability) under
Section 4201 or 4243 of ERISA with respect to a Multiemployer Plan; and
(v)
no Loan Party nor any ERISA Affiliate has engaged in a transaction that
could be subject to Section 4069 or 4212(c) of ERISA.
Section 5.14. Existing Indebtedness
incurred pursuant to the agreements, documents or instruments set out in
Schedule
5.14
, no Loan Party or any of its Subsidiaries has incurred any other Indebtedness
as at the Amendment and Restatement Effective Date.
Section 5.15. Margin Regulations; Investment Company Act
.
(a) The Borrowers are not engaged and will not engage, principally or as one of its
important activities, in the business of purchasing or carrying margin stock (within the meaning
of Regulation U issued by the Federal Reserve Board), or extending credit for the purpose of
purchasing or carrying margin stock. Following the application of the proceeds of each
Borrowing, not more than 25% of the value of the assets (either of the Borrowers only or of the
Borrowers and their Subsidiaries on a consolidated basis) subject to the provisions of
Section
7.01
Section 7.05
between the Borrowers and any Lender or any Affiliate of any Lender relating to Indebtedness
and within the scope of
Section 8.01(e)
(b) None of the Borrowers, any Person controlling the Borrowers (as determined
under the Investment Company Act of 1940), or any Subsidiary is, or is required to register as,
an “investment company” under the Investment Company Act of 1940.
Section 5.16. Disclosure
.
No report, financial statement, certificate or
other information furnished (in writing) by or on behalf of any Loan Party or any of
its Subsidiaries to the Administrative Agent or any Lender in connection with the
95
transactions contemplated hereby and the negotiation of this Agreement or
delivered hereunder or under any other Loan Document contains any material
misstatement of fact or omits to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were made,
not materially misleading as of the date when made or delivered;
provided
, that
with respect to any forecast, projection or other statement regarding future
performance, future financial results or other future developments, the Borrowers
represent only that such information was prepared in good faith based upon
assumptions believed to be reasonable at the time such information was prepared (it
being understood that any such information is subject to significant uncertainties
and contingencies, many of which are beyond the Borrowers’ control, and that no
assurance can be given that the future developments addressed in such information
can be realized).
Section 5.17. Compliance with Laws
.
Holdings and each of its
Subsidiaries are in compliance with the requirements of all Laws (including any
zoning, building, ordinance, code or approval or any building or mining permits)
and all orders, writs, injunctions and decrees applicable to it or to its properties,
except in such instances in which
(a) such requirement of Law or order, writ, injunction or decree is being contested in
good faith by appropriate proceedings diligently conducted, or
(b) the failure to comply therewith, either individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.
Section 5.18. Intellectual Property; Licenses, Etc
.
Holdings and each
of its Subsidiaries exclusively own, or possess the valid and continuing right to use,
all of the Intellectual Property (as set forth on
Schedule 5.18
) necessary to the
conduct of its business as presently conducted free and clear of all Liens (other than
Permitted Liens), except where failure to have such Intellectual Property
individually or in the aggregate could not reasonably be expected to have a Material
Adverse Effect. To the knowledge of the Borrowers, the use of such Intellectual
Property by Holdings or any Subsidiary does not infringe upon any rights held by
any other Person. No claim or litigation regarding any of the foregoing is pending
or, to the knowledge of the Borrowers, threatened that either individually or in the
aggregate could reasonably be expected to have a Material Adverse Effect.
Section 5.19. Solvency
.
Effective Date and after giving effect to the Transactions and the incurrence of the
Indebtedness and obligations being incurred in connection with this Agreement and
the Transactions and at all times thereafter,
(a) the sum of the debt (including contingent liabilities) of Holdings and its
Subsidiaries, on a consolidated basis, does not exceed the fair value of the present assets of
Holdings and its Subsidiaries, on a consolidated basis;
96
(b) the present fair saleable value of the assets of Holdings and its Subsidiaries, on a
consolidated basis, is not less than the amount that will be required to pay the probable liabilities
(including contingent liabilities) of Holdings and its Subsidiaries, on a consolidated basis, as they
become absolute and matured;
(c) the capital of Holdings and its Subsidiaries, on a consolidated basis, is not
unreasonably small in relation to the business of Holdings or its Subsidiaries, on a consolidated
basis, contemplated as of the Amendment and Restatement Effective Date;
(d) Holdings and its Subsidiaries, on a consolidated basis, do not intend to incur, or
believe that they will incur, debts (including current obligations and contingent liabilities)
beyond their ability to pay such debt as they mature in the ordinary course of business; and
(e) Holdings and its Subsidiaries are not otherwise unable to pay its or their
respective debts.
For the purposes hereof, the amount of any contingent liability at any time shall be computed as
the amount that, in light of all of the facts and circumstances existing at such time, represents the
amount that can reasonably be expected to become an actual or matured liability.
Section 5.20. Casualty, Etc
.
Neither the businesses nor the properties
of Holdings or any of its Subsidiaries have been affected by any fire, explosion,
accident, strike, lockout or other labor dispute, drought, storm, hail, earthquake,
embargo, act of God or of the public enemy or other casualty (whether or not
covered by insurance) that, either individually or in the aggregate, could reasonably
be expected to have a Material Adverse Effect.
Section 5.21. Labor Matters.
Schedule 5.21
, there are no collective bargaining agreements or Multiemployer
Plans covering the employees of Holdings or any of its Subsidiaries as of the
Amendment and Restatement Effective Date. As of the Amendment and
Restatement Effective Date, neither Holdings nor any Subsidiary has suffered any
strikes, walkouts, work stoppages or other material labor difficulty within the last
five (5) years. Since the Amendment and Restatement Effective Date, neither
Holdings nor any Subsidiary has suffered any strikes, walkouts, work stoppages or
other material labor difficulty that could reasonably be expected to result in a
Material Adverse Effect.
Section 5.22. Collateral Documents
.
The provisions of the Collateral
Documents (including the Australian Collateral Documents), together with such
filings and other actions required to be taken hereby or by the applicable Collateral
Documents or the Australian Collateral Documents, when executed and delivered
(and at all times thereafter) are effective to create in favor of the Collateral Agent or
the Australian Security Trustee (as applicable) for the benefit of the Secured Parties
97
a legal, valid and enforceable Lien on all right, title and interest of the Collateral
owned by the Loan Parties and described therein.
Section 5.23. Use of Proceeds
.
The Borrowers will use the proceeds of
the Loans solely as provided for in
Section 6.15
.
Section 5.24. Coal Act; Black Lung Act.
(a) (i) Holdings, each of its Subsidiaries and each of their respective “related
persons” (as defined in the Coal Act) are, and have been, in compliance in all material respects
with the Coal Act and any regulations promulgated thereunder, and
(ii)
none of Holdings, its Subsidiaries or each of their respective “related
persons” (as defined in the Coal Act) has any liability under the Coal Act, except, in the
case of this
clause (ii)
, as disclosed in Holdings’ Financial Statements (after deducting
the minimum balance required by the United States Department of Labor to be
maintained in the 501(c)(21) Trust) on or prior to the Amendment and Restatement
Effective Date (or as otherwise disclosed from time to time to the Administrative Agent
in form and substance reasonably satisfactory to the Administrative Agent) or which
could not reasonably be expected to have a Material Adverse Effect, or with respect to
premiums or other material payments required thereunder which have been paid when
due.
(b) (i) Holdings and each of its Subsidiaries are, and have been, in compliance in all
material respects with the Black Lung Act, and
(ii)
neither Holdings nor any of its Subsidiaries has either incurred any Black
Lung Liability or assumed any other Black Lung Liability, or with respect to premiums,
contributions or other material payments required thereunder which have been paid when
due, except, in the case of this
clause (ii)
, as disclosed in Holdings’ Financial Statements
after deducting the minimum balance required by the United States Department of Labor
to be maintained in the 501(c)(21) Trust on or prior to the Amendment and Restatement
Effective Date (or as otherwise disclosed from time to time to the Administrative Agent
in form and substance reasonably satisfactory to the Administrative Agent), or which
could not reasonably be expected to have a Material Adverse Effect.
Section 5.25. Anti-Terrorism Laws; Anti-Corruption Laws and
Sanctions
.
(a) None of the Loan Parties or any of their respective Subsidiaries, or any of their
respective directors, officers, employees or, to the knowledge of any Loan Party, any of their
respective agents, Affiliates or representatives is an individual or entity that is, or is owned or
controlled by one or more individuals or entities that are (i) currently the target of any Sanctions
or (ii) located, organized or resident in a country or territory that is the target of comprehensive
country-wide or territory-wide Sanctions;
98
(b) Each of the Loan Parties and their respective Subsidiaries and their respective
directors, officers and employees, in each case acting in their capacity as such, is in compliance
with, and has not taken any action directly or indirectly that would violate, Anti-Corruption
Laws, Anti-Money Laundering Laws, Anti-Terrorism Laws or Sanctions, and each of the Loan
Parties and their respective Subsidiaries have conducted their business in compliance with those
laws and have instituted and maintain policies and procedures designed to ensure, and which are
reasonably expected to continue to ensure, continued compliance with those laws and Sanctions.
Section 5.26. Australian Representations.
(a)
Trustee
. It is not the trustee of any trust or settlement.
Section 5.27. Structure Chart
The most recent structure chart provided by Holdings to the Administrative Agent is a true
and accurate chart setting out the Group showing all ownership percentages.
Section 5.28. Pari Passu ranking
Each Loan Party’s payment obligations under this Agreement ranks 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.
Section 5.29. Governing Law
The choice of law of Queensland as the governing law of this Agreement will be recognized
and enforced in each Loan Party’s jurisdiction of incorporation and any judgement obtained
against such Loan Party in relation to this Agreement will be recognized in its jurisdiction of
incorporation.
Section 5.30. Permitted Factoring Arrangement
Other than a factoring arrangement permitted under Section 7.04, no Loan Party or any of
its Subsidiaries has entered into any factoring arrangement.
Section 5.31. Repetition
The representations and warranties in this
Article 5
Amendment Deed. Each Repeating Representation shall be deemed repeated on the date of each
Borrowing Notice, on each Utilisation Date and on the last day of each Interest Period by reference
to the facts and circumstances existing on such date.
Section 5.05(a) and (b)
repeated on each date of delivery of the relevant Financial Statements.
ARTICLE 6.
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied (other than in respect of contingent obligations,
99
indemnities and expenses related thereto not then payable or in existence as of the Termination
Date), each Loan Party shall, and shall cause each of its respective Subsidiaries to comply at all
times with the following undertakings:
Section 6.01. Financial Statements
.
Holdings shall supply to the Administrative Agent in sufficient copies for all the Lenders:
(a) as soon as the same become available, but in any event within 90 days after the
end of each of its financial years, 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 the first half of its financial years, its consolidated Financial Statements for that first half.
(c) as soon as the same become available, but in any event within 45 days after the
end of each quarter of its financial years, its consolidated Financial Statements for that quarter.
Section 6.02. Requirements as to financial statements
(a) Holdings shall procure that each set of annual Financial Statements delivered by
Holdings pursuant to
Section 6.01(a)
(b) Each set of Financial Statements delivered by Holdings pursuant to
Section 6.01
shall be certified by a Responsible Officer of Holdings that is the chief financial officer as giving
a true and fair view of (in the case of annual Financial Statements for any financial year), or (in
other cases) fairly representing its financial condition as at the date as at which those Financial
Statements were drawn up.
(c) Holdings shall procure that each set of Financial Statements delivered for a Loan
Party pursuant to
Section 6.01
reference periods consistent with those applied in the preparation of the Original Financial
Statements for that Loan Party unless, in relation to any set of Financial Statements, it notifies
the Administrative Agent that there has been a change in GAAP, the accounting practices or
reference periods and its auditors (or, if appropriate, the auditors of the Loan Party) deliver to the
Administrative Agent:
(i)
a description of any change necessary for those Financial Statements to
reflect the GAAP, accounting practices and reference periods upon which that Loan
Party’s Original Financial Statements were prepared; and
(ii)
sufficient information, in form and substance as may be reasonably
required by the Administrative Agent, to enable the Lenders to determine whether
Section 7.09
financial position indicated in those Financial Statements and that Loan Party’s Original
Financial Statements.
100
(d) Any reference in this Agreement to those Financial Statements shall be construed
as a reference to those Financial Statements as adjusted to reflect the basis upon which the
Original Financial Statements were prepared.
Section 6.03. Year -end
Holdings shall not change its financial year-end.
Section 6.04. Information: miscellaneous
Holdings shall supply to the Administrative Agent (in sufficient copies for all the
Lenders, if the Administrative Agent so requests):
(a) all documents dispatched by Holdings to its shareholders (or any class of them) or
its creditors generally (or any class of them) at the same time as they are dispatched;
(b) promptly upon becoming aware of them, the details of any litigation, arbitration
or administrative proceedings which are current, threatened or pending against any member of
the Group, and which might, if adversely determined, have a Material Adverse Effect;
(c) promptly upon becoming aware of them, the details of any judgment or order of a
court, arbitral tribunal or other tribunal or any order or sanction of any governmental or other
regulatory body which is made against any member of the Group and which is reasonably likely
to have a Material Adverse Effect;
(d) promptly following a change in the structure of the Group, an updated group
structure chart;
(e) promptly, such further information regarding the financial condition, business and
operations of any member of the Group as any Lender (through the Administrative Agent) may
reasonably request;
(f) promptly, such information as the Administrative Agent may reasonably require
about the Collateral and compliance of the Loan Parties with the terms of any Loan Documents;
and
(g) promptly, notice of any change in authorised signatories of any Borrower signed
by a director or secretary of the Borrower accompanied by specimen signatures of any new
signatories, provided that no notice of change shall be effective until the Agent and the Lenders
have conducted "know your customer" checks on each such new authorised signatory as required
under
Section 6.06
Section 6.05. Notification of Default
(a) Each Loan Party shall notify the Administrative Agent of any Default (and the
steps, if any, being taken to remedy it) promptly upon becoming aware of its occurrence (unless
that Loan Party is aware that a notification has already been provided by another Loan Party).
101
(b) Promptly upon a request by the Administrative Agent, Holdings shall supply to
the Administrative 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).
Section 6.06. "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 date of the Second
Amendment Deed;
(ii)
any change in the status of a Loan Party (or of a Holding Company of a
Loan Party) after the date of the Second Amendment Deed;
(iii)
any change in the authorised signatories of a Loan Party after the date of
the Second Amendment Deed; or
(iv)
a proposed assignment or transfer by a Lender of any of its rights and
obligations under this agreement to a party that is not a Lender prior to such assignment
or transfer,
obliges the Administrative Agent or any Lender (or, in the case of
paragraph (iv)
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 Loan Party shall promptly upon the request of the Administrative
Agent or any Lender supply, or procure the supply of, such documentation and other
evidence as is reasonably requested by the Administrative Agent (for itself or on behalf
of any Lender) or any Lender (for itself or, in the case of the event described in
paragraph (iv)
Administrative Agent, such Lender or, in the case of the event described in
paragraph
(iv)
all necessary "know your customer" or other similar checks under all applicable laws and
regulations pursuant to the transactions contemplated in the Loan Documents.
Section 6.07. Certificates; Other Information.
Deliver to the
Administrative Agent, in form and substance reasonably satisfactory to the
Administrative Agent (or, in the case of
clause (h)
(a) Concurrently with the delivery of the annual field examination delivered under
Section 6.14
, certification from an independent third party acceptable to the Administrative
Agent (acting on the instruction of all Lenders) confirming whether any factoring arrangement
has been drawn down or utilized in any way including such that the Loan Party has assigned and
sold, or granted security over or factored its right, title and interest in any of its Accounts or
receivables pursuant to the factoring arrangement, together with detailed information on the
terms of the factoring transaction in form and substance satisfactory to the Administrative Agent;
102
(b) concurrently with the delivery of the Financial Statements referred to in
Sections
6.01(a), 6.01(b)
6.01(c)
fiscal quarter ending 30 June 2023), a duly completed Compliance Certificate signed by a
Responsible Officer of Holdings, which shall
(i)
include reasonably detailed computations of the financial covenants set
forth in
Section 7.09
;
(ii)
state that no Default or Event of Default has occurred and is continuing or,
if a Default or an Event of Default has occurred and is continuing, stating the nature
thereof and the action that the Borrowers propose to take with respect thereto;
(iii)
either confirm that there has been no change in the information with
respect to the Collateral owned by any Loan Party in the Perfection Certificate delivered
on the Amendment and Restatement Effective Date since the date of such Perfection
Certificate or the date of the most recent certificate delivered pursuant to this Section or if
any such change has occurred, attaching a Perfection Certificate Supplement signed by
the Loan Parties, identifying such changes;
(iv)
confirm compliance with
Section 7.07(b)
made in the quarter in respect of which that Compliance Certificate relates; and
(v)
confirm that each Dormant Subsidiary has complied with the terms of
Section 6.26
(c) unless otherwise required to be delivered to the Lenders hereunder, promptly after
the furnishing thereof, copies of any statement or report furnished to any holder of debt securities
of any Loan Party or any of its Subsidiaries pursuant to the terms of any indenture or similar
agreement and not otherwise required to be furnished to the Lenders pursuant to
Section 6.01
any other clause of this
Section 6.07
;
(d) not later than 90 days after the end of each fiscal year of Holdings, a copy of
summary projections by Holdings of the operating budget and cash flow budget of Holdings and
its respective Subsidiaries for the succeeding fiscal year, such projections to be accompanied by
a certificate of a Responsible Officer to the effect that such projections have been prepared based
on assumptions believed by the Borrowers to be reasonable;
(e) monthly (as of the last day of each month (or, if such day is not a Business Day,
as of the Business Day immediately preceding such last day)), commencing with Borrowing
Base Certificate for the month ended immediately prior to the date of to the date of the Second
Amendment Deed, on or before the twentieth day of each month (or if such twentieth day is not a
Business Day, the next Business Day thereafter), a Borrowing Base Certificate substantially in
the form of
Exhibit G
, as of the date required to be delivered or so requested, in each case with
supporting documentation;
(f) weekly (on or before Friday of each week (or if Friday is not a Business Day, the
following Business Day)), commencing with a Borrowing Base Certificate for the week ended
immediately prior to the date of the Second Amendment Deed, a Borrowing Base Certificate
103
substantially in the form of
Exhibit G
, as of the date required to be delivered or so requested, in
each case with supporting documentation;
(g) at any other time when the Administrative Agent reasonably believes that the then
existing Borrowing Base Certificate is materially inaccurate or when the Administrative Agent
reasonably believes that there is a diminution in value of 10% or more in respect of the
Borrowing Base Collateral, in each case, as soon as reasonably available after such request, in
each case with supporting documentation as the Administrative Agent may reasonably request,
such other reports, statements and reconciliations with respect to the Borrowing Base or
Collateral of any or all Loan Parties as the Administrative Agent shall from time to time
reasonably request; and
(h) promptly notice of (and in any event within three (3) Business Days) after any
Loan Party has knowledge that
(i)
Accounts of the Loan Parties in an aggregate face amount of $2,500,000
or more cease to be Eligible Accounts, or
(ii)
Inventory with an Inventory Value of $1,000,000 or more ceases to be
Eligible Inventory.
(i) following the delivery of the Financial Statements referred to in
Section 6.01(a)
, a
conference call with the Lenders at a time to be mutually agreed between the Borrowers and the
Administrative Agent.
(j) promptly following any reasonable request therefor, information and
documentation reasonably requested by the Administrative Agent in connection with any
outstanding letters of credit providing Acceptable Credit Support.
(k) on a quarterly basis or on such other frequencies as the Administrative Agent may
require from time to time, market prices for metallurgical coal provided or published by an
independent third party source acceptable to the Administrative Agent.
Documents required to be delivered pursuant to
Section 6.01
Section 6.07(a)
extent any such documents are included in materials otherwise filed with the SEC or the ASX)
may be delivered electronically and if so delivered, shall be deemed to have been delivered on the
date:
(i) on which the Borrowers post such documents, or provide a link thereto on
the Borrowers’ website on the internet at the website address listed on
Schedule 11.02
as the Borrowers may otherwise notify the Administrative Agent);
(ii) on which such documents are posted on the Borrowers’ behalf on an
internet or intranet website, if any, to which each Lender and the Administrative Agent
have access (whether a commercial, third-party website or whether sponsored by the
Administrative Agent); or
104
(iii) on which such documents are filed for public availability of the SEC’s
Electronic Data Gathering and Retrieval system or on the ASX;
provided
, that the Borrowers shall notify the Administrative Agent of the posting of any such
documents.
(l) within 2 Business Days of the date on which the Senior Secured Notes are
redeemed in full, a duly completed Compliance Certificate signed by a Responsible Officer of
Holdings which shall confirm that
Section 6.16
redemption of the Senior Secured Notes and include reasonably detailed computations of:
(i)
Total Tangible Assets and Consolidated EBITDA of the Group and the
Loan Parties; and
(ii)
particulars of all Project Companies and Excluded Subsidiaries,
in each case, reflecting the position post full redemption of the Senior Secured Notes.
(m) within 5 Business Days before the first day of each fiscal quarter, a 12-week cash
flows projection of the Group.
(n) promptly on request by the Administrative Agent, a copy of the monthly
statements of any bank accounts of any member of the Group, any daily and/or weekly cash
position reports of any member of the Group and any other information, documents or reports in
relation to the Group’s cash position.
(o) immediately upon any significant write-down of, or damage to, Inventory, notice
to the Administrative Agent of the details of such write-down or damage.
Section 6.08. Payment of Obligations
.
Pay and discharge as the same
shall become due and payable
(a) all Tax liabilities, assessments and governmental charges or levies upon it or its
properties or assets except where failure to do so could not reasonably be expected to result in a
Material Adverse Effect, or
(b) all lawful claims which, if unpaid, would by law become a Lien upon any material
portion of the Collateral, unless, in each of
clause (a)
(b)
governmental charges, levies or claims are being contested in good faith by appropriate
proceedings diligently conducted and adequate reserves in accordance with GAAP are being
maintained by Holdings or any of its Subsidiaries.
105
Section 6.09. Preservation of Existence, Etc.
With respect to each of
the Loan Parties and each of its respective Subsidiaries,
(a) preserve, renew and maintain in full force and effect its (i) legal existence and (ii)
good standing, in each case, under the Laws of the jurisdiction of its organization except in a
transaction permitted by
Section 7.05
Section 7.06
;
(b) take all reasonable action to maintain all material rights, privileges, permits,
licenses and franchises necessary for the normal conduct of its business substantially as it is
conducted immediately prior to the Amendment and Restatement Effective Date, except in
connection with transactions permitted by
Section 7.05
Section
7.06
; and
(c) preserve or renew all of its registered patents, trademarks, trade names and service
marks, the non-preservation of which could reasonably be expected to have a Material Adverse
Effect.
Section 6.10. Maintenance of Properties
.
With respect to Holdings
and each of its Subsidiaries, maintain, preserve and protect all of its properties and
equipment necessary in the operation of its business in good working order and
condition (ordinary wear and tear and damage by fire or other casualty or taking by
condemnation excepted), except where the failure to do so could not reasonably be
expected to have a Material Adverse Effect. The Loan Parties shall use, store and
maintain all Inventory with reasonable care and caution, in accordance with
applicable standards of any insurance and in conformity with all applicable Law.
Section 6.11. Maintenance of Insurance
.
(a) Maintain with financially sound and reputable insurance companies, insurance
with respect to its properties and business against loss or damage of the kinds customarily
insured against by Persons engaged in the same or Similar Business, of such types and in such
amounts (after giving effect to any self-insurance compatible with the following standards) as are
customarily carried by companies engaged in Similar Businesses and owning similar properties
in localities where Holdings or its Subsidiaries operate. Without limiting the generality of the
foregoing, each of Holdings and its Subsidiaries will maintain or cause to be maintained:
(i)
liability insurance,
(ii)
business interruption insurance,
(iii)
replacement value casualty insurance on the Collateral and Coal Inventory
under such policies of insurance, with such insurance companies, in such amounts, with
such deductibles, and covering such risks as would be carried or maintained under similar
circumstances by Persons of established reputation engaged in Similar Businesses; and
(iv)
trade credit insurance in respect of Eligible Accounts of a Loan Party
incorporated in Australia.
106
(b) Each such policy of insurance shall
(i)
name the Collateral Agent, on behalf of Secured Parties, as an additional
insured thereunder as its interests may appear,
(ii)
in the case of each casualty insurance policy, contain a loss payable clause
or endorsement, reasonably satisfactory in form and substance to the Administrative
Agent, that names the Collateral Agent, on behalf of the Secured Parties, as the loss
payee thereunder, and
(iii)
in the case of the trade credit insurance in respect of Eligible Accounts of
a Loan Party incorporated in Australia, that names the Collateral Agent, on behalf of the
Secured Parties, as the loss payee thereunder,
in each case, require that Holdings and its Subsidiaries use commercially reasonable efforts
to provide for at least 30 days’ prior written notice to the Administrative Agent of any
modification or cancellation of such policy.
Section 6.12. Compliance with Laws
.
Comply in all respects with the
requirements of all Laws and all orders, writs, injunctions and decrees applicable to
it or to its business or property, except in such instances in which
(a) such requirement of Law or order, writ, injunction or decree is being contested in
good faith by Holdings or any of its Subsidiaries by appropriate proceedings diligently
conducted, or
(b) the failure to comply therewith could not reasonably be expected to have a
Material Adverse Effect.
Section 6.13. Books and Records
.
(a) Maintain proper books of record and account, in which in all material respects
full, true and correct entries in conformity with GAAP consistently applied shall be made of all
material financial transactions and matters involving the assets and business of Holdings and its
Subsidiaries, as the case may be;
(b) maintain such books of record and account in material conformity with all
applicable requirements of any Governmental Authority having regulatory jurisdiction over
Holdings or such Subsidiary, as the case may be; and
(c) each Loan Party shall keep accurate and complete records of its Inventory,
including costs and daily withdrawals and additions.
Section 6.14. Inspection Rights; Field Exams; Appraisals
.
(a) Provide such assistance to the Secured Parties and electronic copies of such
corporate, financial and operating records as reasonably required by the Secured Parties (except
to the extent (i) any the provision of any such information is restricted by a requirement of Law
107
or (ii) any such agreements, contracts or the like are subject to a written confidentiality
agreement with a non-Affiliate that prohibits Holdings or any its Subsidiaries from granting such
access to the Secured Parties;
provided
, that with respect to such confidentiality restrictions
affecting Holdings or any of its Subsidiaries, a Responsible Officer is made available to such
Secured Party to discuss such confidential information to the extent permitted), and to discuss
the business, finances and accounts with its officers at such reasonable times during normal
business hours, so as to facilitate the conduct of a desktop validation by the Secured Parties (or
representatives or independent contractors of the Secured Parties) in respect of the Collateral.
(b) At any reasonable time and from time to time during regular business hours, upon
reasonable notice, permit
(i)
any appraisers or field examiners, in each case as appointed or approved
by the Administrative Agent (acting on the instructions of the Required Lenders), to visit
the properties of the Loan Parties to, at the Borrowers’ expense, conduct field
examinations and inventory appraisals in connection with the Borrowers’ computation of
the Borrowing Base, and
(ii)
any representatives or independent contractors of the Administrative
Agent or any of the Lenders to visit the properties of the Loan Parties to, at the Lenders’
expense, conduct evaluations and ongoing maintenance and monitoring of the assets and
properties of the Loan Parties or their Subsidiaries constituting Non-ABL Priority
Collateral as the Administrative Agent may reasonably require (acting on the instructions
of the Required Lenders);
provided
Borrowers’ expense per every six-month period.
Notwithstanding the foregoing, following the occurrence and during the continuation of a
Default or an Event of Default, such field examinations and inventory appraisals may be conducted
at the Borrowers’ expense as many times as the Administrative Agent shall consider reasonably
necessary (acting on the instructions of the Required Lenders). In addition, the Borrowers shall
have the right (but not the obligation), at the Borrowers’ expense, at any time and from time to
time (but not more than once per twelve -month period) to provide the Administrative Agent with
additional field examinations and additional inventory appraisals of any or all of the Collateral,
prepared in a form and on a basis reasonably satisfactory to the Administrative Agent (acting on
the instructions of the Required Lenders), in which case such field examination or such inventory
appraisal shall be used in connection with the calculation of the Borrowing Base hereunder. Each
inventory appraisal after the Amendment and Restatement Effective Date shall be performed by
any appraiser appointed or approved by the Administrative Agent (acting on the instructions of the
Required Lenders). Each field examination after the Amendment and Restatement Effective Date
shall be performed by any field examiner appointed or approved by the Administrative Agent
(acting on the instructions of the Required Lenders). With respect to each field examination or
inventory appraisal made after the Amendment and Restatement Effective Date, the
Administrative Agent and the Borrowers shall each be given at least five (5) Business Days to
review and comment on the facts set forth in a draft form of such field examination or such
inventory appraisal prior to its finalization and any adjustments to the Borrowing Base as a result
108
of such field examination or such inventory appraisal shall become effective immediately
following the finalization of such field examination or inventory appraisal;
provided
,
pending the
expiration of such five Business Day period, no Borrowings may be made if such Borrowing would
result in the Total Outstandings to exceed the Availability, calculated as if such proposed
adjustments had been implemented.
(c) At any reasonable time and from time to time during regular business hours, upon
reasonable notice, permit any appraisers, field examiner or any representatives or independent
contractors of the Administrative Agent to visit the Real Property of any of the Borrowers to
conduct evaluations, appraisals, surveys and environmental assessments
(i)
at the Lenders’ expense, in connection with monitoring any Non-ABL
Priority Collateral, and
(ii)
after the occurrence and during the continuance of a Default or an Event
of Default, at the Borrowers’ expense, in order to market any Collateral for sale in
connection with an exercise of remedies by the Administrative Agent under the
applicable Collateral Documents, Australian Collateral Documents and applicable Laws.
Section 6.15. Use of Proceeds.
(a) Use the proceeds of the Borrowings to fund working capital needs and other
general corporate purposes of Holdings and its Subsidiaries, including the financing of capital
expenditures, other permitted Investments and any other purpose not prohibited by the Loan
Documents, but in each case, must be in connection with the mining, transportation, storage and
sale of Eligible Inventory by any Loan Party or any of Holdings’ Subsidiaries.
(b) None of the Borrowers shall, directly or indirectly, (x) use the proceeds of any
Borrowing or (y) lend, contribute, or otherwise make available such proceeds to any Subsidiary,
joint venture partner, or other Person (i) to fund, finance, or facilitate any activities or business of
or with any Person or in any country or territory that, at the time of such funding, is the target of
Sanctions, or (ii) in any other manner that would result in the violation of Sanctions, Anti-
Corruption Laws, Anti-Money Laundering Laws and Anti-Terrorism Laws, or (iii) to purchase or
carry margin stock (within the meaning of Regulation U of the Federal Reserve Board) or to
refund Indebtedness originally incurred for such purpose, in each case, applicable to any party to
this Agreement, whether as underwriter, advisor, investor or otherwise.
Section 6.16. Composition of Loan Party group.
(a) Subject to
paragraph
(e)
, Holdings must ensure that, at all times during the term
of the Facility, the Loan Parties shall be comprised of all Subsidiaries of Holdings (other than
Excluded Subsidiaries and Dormant Subsidiaries from time to time) (
Loan
Party
Group
).
(b) [Reserved]
(c) [Reserved]
(d) [Reserved]
109
(e) For so long as the Senior Secured Notes remain outstanding, the members of the
Loan Party Group
will be the same as those entities which are “guarantors” and security
providers (howsoever described) under the Senior Secured Notes Documents, provided that:
(i)
this clause of itself does not require a Secured Party to release an existing
Loan Party; and
(ii)
upon all of the Senior Secured Notes being redeemed, the test provided for
in
Section 6.16(a)
Group.
(f) Upon the acquisition of any Material Fixed Asset by any Loan Party (including,
without limitation, any acquisition pursuant to a Delaware LLC Division), the Borrowers shall, at
the Borrowers’ expense:
(i)
within 30 days (or such longer period as the Administrative Agent may
agree) after such acquisition, furnish to the Administrative Agent a description of the
Material Fixed Assets (including if applicable any serial numbers) so acquired in detail
reasonably satisfactory to the Administrative Agent; and
(ii)
(A) with respect to Material Real Property, cause the applicable Loan
Party to duly execute and deliver to the Administrative Agent within 45 days after such
acquisition (or such longer period as the Administrative Agent may agree), deeds of trust,
trust deeds, deeds to secure debt and/or mortgages, in each case, in form and substance
reasonably satisfactory to the Administrative Agent, securing payment of all the
Obligations; and
(A)
in connection with the foregoing, upon the request of the
Administrative Agent in its reasonable discretion, deliver to the Administrative
Agent any legal opinions addressed to the Administrative Agent and the other
Secured Parties, reasonably acceptable to the Administrative Agent as to such
matters as the Administrative Agent may reasonably request; and
(iii)
within 30 days (or such longer period as the Administrative Agent may
agree) after such request, cause the applicable Loan Party to provide the Administrative
Agent with all reserve data, material existing mine maps, surveys, title insurance policies,
title insurance, abstracts and other evidence of title, Coal reserve calculations or reports,
mine plans, mining permit applications and supporting data, but only to the extent that
each of the foregoing shall be (x) in the possession of such Loan Party and relating to or
affecting the Real Property, including the Coal reserves, Coal ownership, Real Property
Leases, mining conditions, mines, and mining plans of such Loan Party and (y) prepared
and utilized by such Loan Party in its ordinary course of business.
(g) Notwithstanding anything to the contrary in this
Section 6.16
Document
(i)
neither the Borrowers nor the Guarantors will be required to perfect
security interests
110
(A)
in motor vehicles or other assets covered by a certificate of title,
other than by the filing of UCC financing statements and Australian PPS Act
financing statements,
(B)
in letter of credit rights or other supporting obligations with a
value less than $250,000 individually or in the aggregate, and
(C)
in assets requiring perfection solely through control agreements
(other than (A) control of Pledged Collateral to the extent required herein or under
any other Loan Document and (B) Deposit Accounts, Securities Accounts and
Commodities Accounts requiring perfection through Blocked Account
Agreements to the extent required by
Section 6.22
and
(ii)
unless otherwise agreed by the Borrower, no security or pledge
agreements or foreign intellectual property filings will be required outside of the United
States and Australia.
(h) [Reserved].
(i) Holdings shall ensure that:
(i)
all Subsidiaries (other than Excluded Subsidiaries and Dormant
Subsidiaries) as at the Amendment and Restatement Effective Date are a Borrower, a
Guarantor or a Borrower and a Guarantor under the Loan Documents as at the
Amendment and Restatement Effective Date; and
(ii)
any Subsidiary (other than Excluded Subsidiaries and Dormant
Subsidiaries) after the date of the Second Amendment Deed will become party to this
Agreement (and the Security Trust Deed and relevant Loan Documents) as a Borrower, a
Guarantor or a Borrower and a Guarantor by executing and delivering to the
Administrative Agent an “Assumption Agreement” in the form of
Exhibit K
supplements to the Security Agreement or Intellectual Property Security Agreements, and
any other security and pledge agreements (including any applicable Australian Collateral
Documents), in all such cases, as specified by and in form and substance reasonably
satisfactory to the Administrative Agent, within five Business Days of the relevant entity
becoming a Subsidiary.
Section 6.17. Compliance with Environmental Laws
.
(a) Comply, and use commercially reasonable efforts to cause all lessees and other
Persons operating or occupying its properties to comply with all applicable Environmental Laws
and Environmental Permits and obtain, to the extent necessary, and renew all Environmental
Permits for its operations and properties, except in such instances in which
(i)
the requirement of an Environmental Permit is being contested in good
faith by the Borrowers or any of their respective Subsidiaries by appropriate proceedings
diligently conducted, or
111
(ii)
the failure to so comply, obtain or renew, in addition to the risk thereof,
has been disclosed on
Schedule 5.09
(b) undertake and perform any cleanup, removal, remedial or other action necessary
to remove and clean up all Hazardous Materials from any of its properties, in accordance with
the requirements of all Environmental Laws, except in such instances in which
(i)
the requirement to undertake or perform is being contested in good faith
by the Borrowers or any of their respective Subsidiaries by appropriate proceedings
diligently conducted, or
(ii)
the failure to so undertake or perform has been, in addition to the risk
thereof, disclosed on
Schedule 5.09
Section 6.18. Further Assurances
.
Promptly upon request by the
Administrative Agent, or any Lender through the Administrative Agent,
(a) correct any material defect or error that may be discovered in any Loan Document
or in the execution, acknowledgment, filing or recordation thereof, and
(b) do, execute, acknowledge, deliver, record, re-record, file, re-file, register and re-
register any and all such further acts, deeds, certificates, assurances and other instruments
(including Mortgages) as the Administrative Agent, the Collateral Agent (including, in its
capacity as Australian Security Trustee) or any Lender through the Administrative Agent, may
reasonably require from time to time in order to
(i)
carry out more effectively the purposes of the Loan Documents,
(ii)
to the fullest extent permitted by applicable law, subject each of the Loan
Parties’ properties, assets, rights or interests (other than, in respect of any U.S. Loan
Party, any Excluded Assets and, in respect of any Loan Party that is a Foreign Subsidiary,
Foreign Excluded Assets) to the Liens now or hereafter intended to be covered by any of
the Collateral Documents (including the Australian Collateral Documents), and
(iii)
perfect and maintain the validity, effectiveness and priority of any of the
Collateral Documents (including the Australian Collateral Documents) and any of the
Liens intended to be created thereunder.
Section 6.19. Certain Long Term Liabilities and Environmental
Reserves
.
financial assurances for
(a) future costs associated with any lung disease claim alleging pneumoconiosis or
silicosis or arising out of exposure or alleged exposure to coal dust or the coal mining
environment,
(b) future costs associated with retiree and health care benefits,
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(c) future costs associated with Reclamation of disturbed acreage, removal of
facilities and other closing costs in connection with its mining operations, and
(d) future costs associated with other potential Environmental Liabilities.
Section 6.20. Mining Financial Assurances
.
Maintain all material
Mining Financial Assurances to the extent required pursuant to any Environmental
Law.
Section 6.21. Administration of Accounts.
(a) If an Account of any Loan Party includes a charge for any Taxes, the
Administrative Agent is authorized, in its discretion, to pay the amount thereof to the proper
taxing authority for the account of such Loan Party if such Loan Party does not do so and to
charge such Loan Party therefor;
provided
,
however
, that neither the Administrative Agent nor
the Lenders shall be liable for any Taxes that may be due from the Loan Parties or with respect
to any Collateral.
(b) Whether or not any Default or Event of Default exists, the Administrative Agent
shall have the right at any time, in the name of the Administrative Agent, any designee of the
Administrative Agent or any Loan Party, to verify the validity, amount or any other matter
relating to any Accounts of any Loan Party by mail, telephone or otherwise. The Loan Parties
shall cooperate fully with the Administrative Agent in an effort to facilitate and promptly
conclude any such verification process.
Section 6.22. Cash Management System.
(a) On and from the Amendment and Restatement Effective Date, and at all times
thereafter, each of the Loan Parties shall enter into and maintain a Blocked Account Agreement
(it being acknowledged that this may constitute an amendment to any existing blocked account
agreement in place prior to the Amendment and Restatement Effective Date on terms acceptable
to the Lenders (acting reasonably)), satisfactory in form and substance to the Administrative
Agent in its reasonable discretion, with respect to each of its Deposit Accounts, Securities
Accounts or Commodities Accounts (other than any Excluded Account) (each such Deposit
Account, Securities Account or Commodities Account, a “
Control Account
”). Each such
Blocked Account Agreement shall permit the Administrative Agent, if a Default or Event of
Default has occurred, upon written notice thereof from the Administrative Agent to Holdings, to
instruct the applicable depository to transfer (whether by ACH, wire transfer or otherwise as the
Administrative Agent may direct) by the end of each Business Day all ledger or available, as
applicable, cash receipts held in such Control Accounts to the Collateral Account, as directed by
the Administrative Agent. No Loan Party shall direct any Account Debtor, or any customer, to
make payments on Accounts to any Deposit Account other than the Control Accounts and the
Collateral Account.
(b) Each Loan Party shall not establish or maintain any Securities Account,
Commodities Account or Deposit Account that is not a Control Account, in each case, other than
any Excluded Accounts. Each Loan Party shall instruct each Person that is obligated to make
113
any payment to it, to make such payment or to continue to make payment, to the appropriate
Control Account as required by this
Section 6.22
.
(c) Each Loan Party hereby acknowledges and agrees that (i) if a Default or Event of
Default has occurred and is continuing, it shall have no right of withdrawal from the Control
Accounts and (ii) the funds on deposit in the Control Accounts shall at all times continue to be
collateral security for all of the Obligations. In the event that, notwithstanding the provisions of
this
Section 6.22
, a Loan Party receives or otherwise has dominion and control of any such
proceeds or collections, such proceeds and collections shall be held in trust by such Loan Party
for the Administrative Agent, shall not be commingled with any of such Loan Party’s other funds
or deposited in any account of such Loan Party and shall promptly be deposited into the
appropriate Control Account or dealt with in such other fashion as such Loan Party may be
instructed by the Administrative Agent.
(d) Without limiting the foregoing, funds on deposit in any Deposit Account or
Securities Account under the sole dominion and control of the Administrative Agent may be
invested (but the Administrative Agent shall be under no obligation to make any such
investment) in Cash Equivalents at the direction of the Administrative Agent and, except if a
Default or Event of Default has occurred and is continuing, the Administrative Agent agrees with
the Borrowers to issue entitlement orders for such investments in Cash Equivalents as reasonably
requested by the Borrowers;
provided
,
however
, that the Administrative Agent shall not have any
responsibility for, or bear any risk of loss of, any such investment or income thereon.
(e) Subject to
clause (a)
each other Control Account shall be applied,
first
then
provided
Accounts shall be applied pursuant to
Section 8.03
.
Section 6.23. Post-Closing Obligations
.
Perform the obligations set
forth on
Schedule 6.23
, as and when set forth therein.
Section 6.24. Australian Covenants.
(a)
Trustee
. No Australian Loan Party shall become a trustee of any trust or
settlement without the prior written consent of the Administrative Agent (acting reasonably)
other than any trust which arises in the ordinary course of its ordinary trading activities.
(b)
Tax Consolidation
. Each Australian Loan Party will:
(i)
comply with the Australian Tax Agreement and the Australian TFA and
ensure that the Australian TSA and Australian TFA are maintained in full force and
effect;
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(ii)
not amend the Australian Tax Agreement where such variation or
amendment may result in it not being a valid Australian TSA for the purposes of the
ITAA 1997;
(iii)
not amend or vary the Australian Tax Agreement or the Australian TFA
without the Administrative Agent’s consent where the amendment or variation would
materially adversely affect an Australian Loan Party’s cash flows or financial condition
or materially increase its present or prospective tax liabilities or liabilities under the
Australian Tax Agreement or the Australian TFA ;
(iv)
not cease to be a party to, or replace or terminate the Australian Tax
Agreement or the Australian TFA without the Administrative Agent’s consent (acting on
the instruction of the Lenders);
(v)
it has provided or will provide a copy of the Australian Tax Agreement to
the Australian Commissioner of Taxation within the period required by section 721-
25(3)(b) of the Tax Act if the Australian Taxation Office gives a notice requiring it to do
so;
(vi)
procure that any member that subsequently joins the Australian Tax
Consolidated Group accede to the Australian Tax Agreement and the Australian TFA.
(vii)
notify the Finance Parties of any actual or alleged breach of the terms of
the Australian Tax Agreement and/or the Australian TFA promptly after its occurrence.
Section 6.25. Lender Calls.
Receive any presentations prepared by management for investors and participate in annual
and quarterly conference calls with the Administrative Agent and the Lenders, such calls to be
held at such time as may be agreed to by the Borrowers and the Administrative Agent, but in any
event not later than the date which is 10 Business Days after the annual or quarterly Financial
Statements are to be delivered pursuant to
Section 6.01
, it being understood that this covenant may
be satisfied by permitting the Lenders to participate in conference calls with the Borrower’s public
shareholders.
Section 6.26.
Dormant Subsidiaries
No Dormant Subsidiary shall:
(a)
carry on any business or incur any liabilities, including any Financial Indebtedness;
or
(b)
enter into any transactions (including to sell, lease, transfer or otherwise dispose
any assets) other than for the purposes of winding up.
ARTICLE 7.
NEGATIVE COVENANTS
115
Section 7.01. Liens
.
Holdings and each other Borrower shall not, nor
shall they permit any of their respective Subsidiaries to, directly or indirectly create,
incur, assume or suffer to exist any Lien upon, or exception to title to, any of its
property, assets or revenues, whether now owned or hereafter acquired, or sign or
file under the Uniform Commercial Code of any jurisdiction a financing statement
that names the Borrowers or any of their respective Subsidiaries as debtor, or assign
any accounts or other right to receive income, other than the following (“
Permitted
Liens
”):
(a) pledges or deposits by such Person under worker’s compensation laws,
unemployment insurance laws or similar legislation, or good faith deposits in connection with
bids, tenders, contracts (other than for the payment of Indebtedness) or leases to which such
Person is a party, or deposits to secure public or statutory obligations of such Person or deposits
of cash or United States government bonds to secure surety, indemnity, performance or appeal
bonds to which such Person is a party, or deposits as security for contested Taxes or import
duties or for the payment of rent, in each case incurred in the ordinary course of business;
(b) Liens imposed by law, such as carriers’, warehousemen’s and mechanics’ Liens,
in each case for sums not yet due or being contested in good faith by appropriate proceedings or
other Liens arising out of judgments or awards against such Person with respect to which such
Person shall then be proceeding with an appeal or other proceedings for review;
(c) Liens for Taxes, assessments and other governmental charges not yet subject to
penalties for non-payment or which are being contested in good faith by appropriate
proceedings;
provided
,
however
, that any reserve or other appropriate provision as is required in
conformity with GAAP has been made therefor;
(d) Liens or deposits (including liens on cash deposited) to secure the performance of
statutory or regulatory obligations or of surety, appeal, indemnity or performance bonds,
warranty and contractual requirements, or to secure the performance of tenders, bills or contracts
other obligations of a like nature or letters of credit or to secure reimbursement obligations with
respect to letters of credit and bank guarantees issued pursuant to the request of and for the
account of such Persons in the ordinary course of its business, including those outstanding on the
Amendment and Restatement Effective Date;
provided
,
however
, that such letters of credit and
bank guarantees do not constitute Indebtedness;
(e) minor survey exceptions, minor encumbrances, easements or reservations of, or
rights of others (including, without limitation, lessors and other surface owners and owners of
other minerals) for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines,
mineral development, extraction and transportation, and other similar purposes, or zoning or
other restrictions as to the use of real property or Liens incidental to the conduct of the business
of such Person or to the ownership of its properties which were not incurred in connection with
Indebtedness and which do not in the aggregate materially adversely affect the value of said
properties or materially impair their use in the operation of the business of such Person;
(f) Liens securing Indebtedness incurred in accordance with
Section 7.02
the construction, purchase or lease of, or repairs, improvements or additions to, property, plant or
116
equipment of such Person;
provided
,
however
, that the Lien may not extend to any other
property owned by such Person or any of its Subsidiaries at the time the Lien is incurred (other
than assets and property affixed or appurtenant thereto), and the Indebtedness (other than any
interest thereon) secured by the Lien may not be incurred more than 90 days after the later of the
acquisition, completion of construction, repair, improvement, addition or commencement of full
operation of the property subject to the Lien;
(g) Liens on the Collateral securing
(i)
the Obligations;
(ii)
so long as such Liens are subject to the Stanwell Intercreditor Agreement
and the ABL Intercreditor Agreement, (A) Indebtedness in respect of the Senior Secured
Notes issued on the Senior Secured Notes Issue Date (and any Refinancing Indebtedness
in respect thereof) and (B) Indebtedness permitted to be incurred pursuant to Section
7.02(d)(ii);
(iii)
so long as such Liens are subject to the Stanwell Intercreditor Agreement
and the ABL Intercreditor Agreement, Indebtedness permitted to be incurred pursuant to
7.02(d)(iii);
(iv)
so long as such Liens are subject to the Stanwell Intercreditor Agreement,
the Stanwell Obligations pursuant to the Stanwell Agreements as in effect on the
Amendment and Restatement Effective Date and as listed on
Schedule 7.01
(or as
subsequently amended);
(h) Liens existing on the Amendment and Restatement Effective Date and as listed on
Schedule 7.01
(other than described in
clause (g)
(i) Liens on property or Equity Interests of another Person at the time such other
Person becomes a Subsidiary of such Person;
provided
,
however
, (i) that such Liens are not
created or incurred in connection with or in contemplation of such acquisition, (ii) that the Liens
may not extend to any other property owned by such Person or any of its Subsidiaries (other than
assets and property affixed or appurtenant thereto) and (iii) that such Liens are released within 90
days after the date of such acquisition;
(j) Liens on property at the time such Person or any of its Subsidiaries acquires the
property, including any acquisition by means of a merger or consolidation with or into such
Person or a Subsidiary of such Person;
provided
,
however
, (i) that such Liens are not created or
incurred in connection with or in contemplation of such acquisition, (ii) that the Liens may not
extend to any other property owned by such Person or any of its Subsidiaries (other than assets
and property affixed or appurtenant thereto) and (iii) that such Liens are released within 90 days
after the date of such acquisition;
(k) Liens securing Indebtedness or other obligations of a Subsidiary owing to
Holdings or a Subsidiary of Holdings;
117
(l) Liens securing Hedging Obligations incurred in the ordinary course of business
(and not for speculative purposes);
(m) Leases and subleases of real property that do not materially interfere with the
ordinary conduct of the business of Holdings or any of its Subsidiaries;
(n) Liens arising out of conditional sale, title retention, consignment or similar
arrangements for the sale of goods entered into in the ordinary course of business;
(o) Liens to secure any Refinancing (or successive Refinancings) as a whole, or in
part, of any Indebtedness secured by any Lien referred to in the foregoing
clause (h)
;
provided
,
however
, that:
(i)
such new Lien shall be limited to all or part of the same property and
assets that secured or, under the written agreements pursuant to which the original Lien
arose, could secure the original Lien (plus improvements and accessions to, such property
or proceeds or distributions thereof); and
(ii)
the Indebtedness secured by such Lien at such time is not increased to any
amount greater than the sum of (x) the outstanding principal amount or, if greater,
committed amount of the Indebtedness described under
clause (h)
Lien became a Permitted Lien and (y) an amount necessary to pay any fees and expenses,
including premiums, related to such refinancing, refunding, extension, renewal or
replacement;
(p) Liens on equipment of Holdings or any Subsidiary granted in the ordinary course
of business to clients on or about the premises of which such equipment is located;
(q) judgment and attachment Liens not giving rise to an Event of Default and notices
of lis pendens and associated rights related to litigation that is being contested in good faith by
appropriate proceedings and for which adequate reserves have been made;
(r) Liens upon specific items of inventory or other goods and proceeds of any Person
securing such Person’s obligations in respect of banker’s acceptances issues or credit for the
account of such Person to facilitate the purchase, shipment or storage of such inventory or other
goods;
provided
deemed Eligible Inventory;
(s) Liens granted to Senior Secured Notes Trustee to secure its compensation and
indemnities pursuant to the Senior Secured Notes Indenture;
provided
, to the extent such Liens
are on ABL Priority Collateral, such Liens shall be junior to the Liens securing the Obligations
and shall be subject to the ABL Intercreditor Agreement;
(t) any cross charge between members of a joint venture over joint venture assets
securing obligations to contribute to that joint venture or repay other joint venturers who
contribute to the joint venture in default of the charger doing so;
(u) Liens encumbering customary initial deposits in the ordinary course of business;
118
(v) Liens on cash, Cash Equivalents or other property arising in connection with the
defeasance, discharge or redemption of Indebtedness;
(w) Liens in favor of customs and revenue authorities arising as a matter of law to
secure payment of customs duties in connection with the importation and exportation of goods in
the ordinary course of business;
(x) Liens (i) attaching to commodity trading accounts or other commodity brokerage
accounts incurred in the ordinary course of business; and (ii) in favor of banking institutions
arising as a matter of law encumbering deposits (including the right of setoff) and that are within
the general parameters customary in the banking industry;
(y) any interest or title of a lessor in the property subject to any operating lease (other
than any property that is subject of a Sale/Leaseback Transaction);
(z) Liens on any cash earnest money deposits made by Holdings or any of its
Subsidiaries in connection with any letter of intent or purchase agreement permitted by this
Agreement;
(aa) Liens in respect of any factoring arrangement permitted under
Section 7.04
extend only to the Receivables Assets subject thereto;
(bb) Liens on the assets subject to a Sale/Leaseback Transaction in respect of the
Curragh Transaction; and
(cc) Liens securing obligations the outstanding principal amount of which does not,
taken together with the outstanding principal amount of all other obligations secured by Liens
incurred under this
clause (cc)
$25,000,000 (or equivalent thereof) and 1.25% of Consolidated Tangible Assets.
Section 7.02. Indebtedness
.
may permit any of their respective Subsidiaries to, create, incur, assume or suffer to
exist any Indebtedness, but only if:
(a) there is no Default or Event of Default subsisting at the time such Indebtedness is
incurred, (and no such Default or Event of Default would result therefrom);
(b) without limiting
paragraph (a)
paragraph (d)
covenant under
Section 7.09
(c) such Indebtedness is not in connection with any factoring arrangement; and
(d) the aggregate principal amount (or if incurred with original issue discount, the
aggregate accreted value) of:
(i)
the Obligations;
(ii)
the Notes Obligations; and
119
(iii)
any other Indebtedness which is secured by Lien on any asset or property
of any member of the Group that is senior to or pari passu to the Lien securing the
Obligations (other than any Indebtedness as at the Amendment and Restatement Effective
Date as set out in Schedule 5.14, or any Indebtedness in respect of any equipment lease,
housing lease or other operating lease or secured by a Lien permitted under paragraph
(d)
of
Section 7.01
),
(in each case, plus fees and expenses, including any premium, accrued interest (other than
any unpaid interest or coupon on the Obligations and Notes Obligations which is not yet due and
will be paid on the next payment date), underwriting discounts and defeasance costs) shall not at
any time exceed $650,000,000.
Notwithstanding any other provision in this Agreement, the Lenders and Holdings agree that
Coronado Curragh Pty Ltd is permitted to enter into the Stanwell Arrangements and any other
transactions contemplated by, and incur the Stanwell Obligations under, in each case the Stanwell
Arrangements as at the Amendment and Restatement Effective Date.
Notwithstanding any other provision in this Agreement, Holdings and each other Borrower shall
not permit any agreement to be recognised as a “Facility Agreement” or “Hedging Agreement”
(other than this Agreement) or any party to be recognised as a “Beneficiary” (other than the
Secured Parties), in each case, for the purposes of the Security Trust Deed without the prior written
consent from the Administrative Agent (acting on the instructions of all Lenders).
Section 7.03. Financial Accommodation.
No Loan Party or any of their
respective Subsidiaries may:
(a) advance money or make available financial accommodation to or for the benefit
of; or
(b) give a Guarantee
or indemnity
in connection with an obligation or liability of,
any Person who is not also a Loan Party or any of their respective Subsidiaries, unless it is
a Permitted Financial Accommodation.
Section 7.04. Permitted Factoring Arrangement
.
Each of Holdings and the Loan Parties must not draw down or utilize in any way any
factoring arrangement without prior written consent from the Administrative Agent (acting on the
instructions of all Lenders).
Section 7.05. Fundamental Changes
.
Each of Holdings and the Loan
Parties must not enter into any amalgamation, demerger, merger or corporate
120
reconstruction other than for the purposes of a solvent reconstruction, merger or
amalgamation.
Section 7.06. Dispositions
.
Holdings and each Borrower shall not
make, and shall not permit any of their respective Subsidiaries to make, any
Disposition or enter into any agreement to make any Disposition, unless:
(a) if the Disposition is of any Equity Interests or assets in any Subsidiary of
Holdings, other than a Dormant Subsidiary (the
“Relevant Subsidiary”
):
(i)
such Disposition is for cash on arm’s length or better terms;
(ii)
such Disposition is for no more than 30% of the total Equity Interests or
assets in the Relevant Subsidiary;
(iii)
at all times following such Disposition, 70% or more of the total Equity
Interests or assets in the Relevant Subsidiary shall continue to be directly legally and
beneficially owned by a wholly-owned Subsidiary of Holdings;
(iv)
the purchaser of the relevant Equity Interests or assets does not have the
right to purchase Inventory from the Relevant Subsidiary, Holdings or any of its
Subsidiaries at a price that is lower than the relevant market price at the applicable time;
and
(v)
if the Relevant Subsidiary is a Guarantor prior to such Disposition, it shall
remain as a Guarantor following such Disposition;
(b) the Disposition is not of any asset included within the Borrowing Base and made
outside of the ordinary course of business;
(c) there is no Default or Event of Default subsisting at the time such Disposition is
made (and no such Default or Event of Default would result therefrom);
(d) without limiting
paragraph (a)
Section 7.09
will be breached as a result of such Disposition;
(e) the Disposition is not of any interest in the Buchanan Mine or the Curragh Mine,
other than the Disposition of up to 6.5% of the annual production of Coal Inventory from the
Buchanan Mine up to an aggregate amount of not more than 1.3mt of Coal Inventory for cash for
a purchase price of not less than $150,000,000
provided that
shall be used for general corporate purposes of the Group and (ii) notwithstanding any Restricted
Payments permitted to be made under
Section 7.07
, no Restricted Payment may be made directly
or indirectly from proceeds of such Disposition;
(f) the Disposition is of assets in any single transaction or series of related transaction
(except for any Dispositions made under paragraph (a) above) with a Fair Market Value of
$10,000,000 or less, or if the Disposition is of assets in any single transaction or series of related
transactions (except for any Dispositions made under paragraph (a) above) with a Fair Market
121
Value of $10,000,000 (the “
Aggregate Disposal Threshold
”) or more, the Administrative Agent
has provided its prior written consent to such Disposition, provided that the proceeds of such
Disposition are used to:
(i)
redeem all or part of the Senior Secured Notes then outstanding; or
(ii)
applied to purchase replacement assets within 12 months of such
Disposition being made and, during such period prior to the purchase of replacement
assets, the proceeds of the Disposition are held in a Collateral Account,
provided that:
(iii)
Disposition is of the Russell County Project; and
(iv)
is made in connection with or as part of the Curragh Transaction, and
Section 7.06(f)(i)
and
Section 7.06(f)(ii)
of the Curragh Transaction;
(g) where the Disposition is in connection with a factoring or supply chain financing
arranging, it is permitted under
Section 7.04,
provided that this Section 7.06 does not apply to the following Dispositions:
(i)
Disposition of Inventory in the ordinary course of trading, including
pursuant to the Stanwell Arrangements,
(ii)
of any asset by a member of the Group to another member of the Group;
(iii)
of assets in exchange for other assets comparable or superior as to type,
value and quality;
(iv)
of obsolete or unserviceable vehicles, plant or equipment or of any
Dormant Subsidiary; or
(v)
of Cash Equivalents for cash or in exchange for Cash Equivalents.
Section 7.07. Restricted Payments
.
Holdings and each Borrower will
not, and will not permit any of their respective Subsidiaries to declare or make,
directly or indirectly, any Restricted Payment except in accordance with the law
and only if:
(a) a Default or Event of Default is not continuing and will not occur as a result of the
Restricted Payment;
(b) immediately after such Restricted Payment has been made, the Unrestricted Cash
Amount is at least $100,000,000; and
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(c) a Responsible Officer of Holdings provides a certificate to the Administrative
Agent not later than five (5) Business Days before making such Restricted Payment certifying
that (i) if the Leverage Ratio was recalculated for the last Test Period on a pro forma basis as if
such Restricted Payment was made on the last day of such Test Period, it would be 3.00 times or
less and (ii) if the Interest Coverage Ratio for the last Test Period on a pro forma basis as if such
Restricted Payment was made on the last day of such Test Period, it would be 3.00 times or
more, such certificate to set out (in reasonable detail) computations as to the aforementioned
matters, provided that this Section 7.07 does not apply to the following Restricted Payments:
(a) any distribution from one Member of the Group to another Member of the Group;
(b) any distribution under or in connection with any Australian TFA or Australian
TSA;
(c) any payment of any management, director or other similar fee to directors of
Energy & Minerals Group (or any of its Affiliates) for performing the functions of such
management and/or director in connection with the Group, provided that the aggregate amount of
such payments shall not exceed $250,000 per annum per director; and
(d) any payment of any costs and expenses reasonably incurred by Energy &
Minerals Group (or any of its Affiliates) on behalf of a member of the Group, provided that the
aggregate amount of such payment shall not exceed $250,000 per annum per director.
Notwithstanding the foregoing, no Restricted Payment may be made directly or indirectly
from proceeds of a Loan.
Section 7.08. Change in Nature of Business
.
Holdings and each
Borrower shall not, and shall not permit any of their respective Subsidiaries to,
engage in any business other than a Similar Business.
Section 7.09. Financial covenants
Holdings and each Borrower shall
not:
(a) during the term of this Agreement, permit the Leverage Ratio for:
(i)
the Test Period ended on 30 September 2025, to be more than 5.00 times;;
(ii)
the Test Period ended on 30 December 2025, to be more than 4.00 times;
(iii)
the Test Period ended on 31 March 2026, to be more than 4.00 times;
(iv)
each Test Period ended on or after 30 June 2026, to be more than 3.00
times; and
(b) during the term of this Agreement, permit the Interest Coverage Ratio for:
(i)
123
(ii)
the Test Period ended on 31 December 2025, to be less than 2.00 times;
(iii)
each Test Period ended on or after 31 March 2026, to be less than 3.00
times.
For the purpose of calculating the Leverage Ratio and the Interest Coverage Ratio under
this
Section 7.09
:
(A)
the Consolidated EBITDA of Holdings and its Subsidiaries for the
Test Period ended on 30 September 2025 shall be an annualised amount (on a
straight-line basis) of the aggregate Consolidated EBITDA of Holdings and its
Subsidiaries for the fiscal quarter ended on 30 September 2025; and
(B)
the Consolidated EBITDA of Holdings and its Subsidiaries for the
Test Period ended on 31 December 2025 shall be the lower of (x) an annualised
amount (on a straight-line basis) of the aggregate Consolidated EBITDA of
Holdings and its subsidiaries for the fiscal quarter ended on 31 December 2025 or
(y) an annualised amount (on a straight-line basis) of the aggregate Consolidated
EBITDA of Holdings and its subsidiaries for the two fiscal quarters ended on 30
September 2025 and 31 December 2025.
Section 7.10. Thermal coal.
Amendment Deed, Holdings and each Borrower shall not, and shall not permit any
of their respective Subsidiaries, acquire any Thermal Coal Assets.
Section 7.11. Port and rent charges.
at all times all amounts payable by a member of the Group to a counterparty that is
a port authority, vendor providing sampling and/or loading services, landlord,
warehouseman, processor, repairman, mechanic, shipper, or freight forwarder are
paid when due and are not in arrears.
Section 7.12. Payroll Taxes.
times all amounts payable by a member of the Group in connection with US payroll
Taxes are provisioned for in segregated bank accounts.
Section 7.13. Arm’s length basis.
ensure that no other member of the Group will) enter into any transaction with any
third party except on arm's length terms or better.
Section 7.14. Affiliate transactions.
shall ensure that no other member of the Group will) conduct any business with or
enter into any business transaction involving:
(a) the Energy & Mineral Group (or any of its Affiliates), other than receiving
capital contribution or making a Restricted Payment to the extent permitted under
Section 7.07
;
or
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(b) any shareholder of any Relevant Subsidiary (as defined in
Section 7.06(a)
), other
than any shareholder that is also a Loan Party,
unless (i) expressly permitted under the Loan Documents and/or (ii) the transaction is permitted
under
Section 7.07
.
ARTICLE 8.
EVENTS OF DEFAULT AND REMEDIES
Section 8.01. Events of Default
.
Any of the following shall constitute
an Event of Default:
(a)
Non-Payment
. Any Borrower or any other Loan Party fails to pay when and as
required any amount payable pursuant to a Loan Document, unless the failure to pay is caused
solely by:
(i)
administrative or technical error; or
(ii)
a Disruption Event,
and payment is made within three (3) Business Days after the same becomes due; or
(b)
Specific Covenants
. Holdings or the Borrowers fail to:
(i)
comply with the financial covenants at
Section 7.09
;
or
(ii)
provide the information within the specified time periods pursuant to
Section 6.01 and Section 6.07
;
(iii)
comply with any obligation under
Section 6.15(b), 7.01, 7.02, 7.03, 7.04,
7.05, 7.06 or 7.07
; or
(c)
Other Defaults
. Holdings or any of its Subsidiaries fails to perform or observe
any other term, covenant or agreement (other than those specified in
Section 8.01(a)
(b)
above) contained in any Loan Document on its part to be performed or observed and such failure
continues for 10 Business Days in each case, after the earlier of (x) receipt by any Borrower of
written notice thereof from the Administrative Agent and (y) knowledge of any Loan Party of
such default or failure to perform or observe; or
(d)
Representations and Warranties
. Any representation, warranty, certification or
statement of fact made or deemed made by or on behalf of Holdings or any of its Subsidiaries
herein, in any other Loan Document, or in any document delivered in connection herewith or
therewith shall be incorrect or misleading in any material respect (or, where any representation,
warranty, certification or statement is already qualified by materiality or Material Adverse
Effect, in all respects) when made or deemed made, provided that, in relation to such
representation, warranty, certification or statement of fact (other than those specified in Section
5.05 or 5.25) (each a
Representation
), no Event of Default under this
paragraph (d)
made or deemed made being incorrect or misleading if the facts and circumstances which caused
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the Representation to be incorrect or misleading are capable of remedy and are remedied within
10 Business Days of (x) receipt by any Borrower of written notice thereof from the
Administrative Agent and (y) knowledge of any Loan Party of such default or failure to perform
or observe, whichever earlier; or
(e)
Cross-Default
.
(i)
Holdings or any of its Subsidiaries fails to make any payment when due
(whether by scheduled maturity, required prepayment, acceleration, demand, or
otherwise) in respect of any Indebtedness or Guarantee (other than Indebtedness
hereunder, Indebtedness under Swap Contracts or Guarantees of the Obligations), in each
case having an aggregate principal amount (including amounts owing to all creditors
under any combined or syndicated credit agreement) of more than the Threshold Amount,
beyond the period of grace, if any, provided in the instrument or agreement under which
such Indebtedness or Guarantee was created; or
(ii)
Holdings or any of its Subsidiaries fails to observe or perform any other
agreement or condition relating to any such Indebtedness or Guarantee or contained in
any instrument or agreement evidencing, securing or relating thereto, or any other event
occurs, the effect of which default or other event is to cause, or to permit the holder or
holders of such Indebtedness or the beneficiary or beneficiaries of such Guarantee (or a
trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to
cause, with the giving of notice if required, such Indebtedness to become due prior to its
stated maturity, or such Guarantee to become due or payable; or
(iii)
there occurs under any Swap Contract an Early Termination Date (as
defined under such Swap Contract) resulting from
(A)
any event of default under such Swap Contract as to which
Holdings or any of its Subsidiaries is the Defaulting Party (as defined in such
Swap Contract), or
(B)
any Termination Event (as so defined) under such Swap Contract
as to which Holdings or any of its Subsidiaries is an Affected Party (as so
defined) and, in either event, the Swap Termination Value owed by Holdings or
such Subsidiary as a result thereof is greater than the Threshold Amount; or
(f)
Insolvency Proceedings, Etc
.
(i)
Holdings or any of its Subsidiaries:
(A)
institutes or consents to the institution of any proceeding under
any Debtor Relief Law or any Insolvency Proceeding, or
(B)
makes an assignment for the benefit of creditors; or
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(C)
applies for or consents to the appointment of any receiver, trustee,
custodian, conservator, liquidator, rehabilitator, controller or similar officer for it
or for all or any substantial part of its property; or
(ii)
any receiver, trustee, custodian, conservator, liquidator, rehabilitator,
controller or similar officer is appointed without the application or consent of such
Person, other than any such appointment that is frivolous or vexatious and has been
discharged or stayed within 10 Business Days of commencement; or
(iii)
any proceeding under any Debtor Relief Law or any Insolvency
Proceeding relating to any such Person or to all or any substantial part of its property is
instituted without the consent of such Person, other than any such proceeding that is
frivolous or vexatious and has been discharged or stayed within 10 Business Days of
commencement, or an order for relief has been entered in such proceeding within 10
Business Days of commencement; or
(g)
Inability to Pay Debts; Attachment
.
(i)
Holdings or any of its Subsidiaries becomes unable or admits in writing its
inability or fails generally to pay its debts as they become due, or
(ii)
any writ or warrant of attachment or execution or similar process is issued
or levied against all or any substantial part of the property of Holdings or any of its
Subsidiaries, other than any such process that is frivolous or vexatious and has been
released, vacated or fully bonded within 10 Business Days after its issue or levy; or
(h)
Judgments
. There is entered against Holdings or any of its Subsidiaries one or
more final judgments or orders for the payment of money in an aggregate amount (as to all such
judgments and orders) exceeding the Threshold Amount (to the extent not covered by
independent third-party insurance); or
(i)
ERISA
. The occurrence of any of the following events that, individually or in the
aggregate, could reasonably be expected to result in a Material Adverse Effect:
(i)
an ERISA Event with respect to a Pension Plan or Multiemployer Plan
which has resulted or could reasonably be expected to result in an actual obligation to pay
money of the Borrowers under Title IV of ERISA to the Pension Plan, Multiemployer
Plan or the PBGC, or
(ii)
any Loan Party or any ERISA Affiliate fails to pay when due, after the
expiration of any applicable grace period, any installment payment with respect to its
withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan; or
(j)
Invalidity of Loan Documents
. Any Loan Document, at any time after its
execution and delivery and for any reason other than as expressly permitted hereunder or
satisfaction in full of all the Obligations, ceases to be in full force and effect; or Holdings, any of
its Subsidiaries or any other Person contests in any manner the validity or enforceability of any
Loan Document; or Holdings or any of its Subsidiaries denies that it has any or further liability
127
or obligation under any Loan Document, or purports to revoke, terminate or rescind any Loan
Document; or
(k)
Collateral Documents
. Any Collateral Document (including the Australian
Collateral Document) after delivery thereof pursuant to
Section 4.01
6.16
(other than pursuant to the terms hereof or thereof, including as a result of a transaction
permitted by
Section 7.05
) cease to create a valid and perfected Lien, with the priority required
hereby or thereby (subject to Liens permitted by
Section 7.01
), on the Collateral purported to be
covered thereby; or
(l)
Credit Rating
. A downgrade of the credit rating by two or more notches by S&P
or Moody’s in respect of a Loan Party which applies as at the Amendment and Restatement
Effective Date; or
(m)
Trading Halt.
reason of any proposed merger and/or acquisition of such listed Loan Party) for more than 10
Business Days.
Section 8.02. Remedies Upon Event of Default
.
(a) If any Event of Default occurs and is continuing, the Administrative Agent shall,
at the request of, or may, with the consent of, the Required Lenders, take any or all of the
following actions, subject to the terms of the ABL Intercreditor Agreement:
(i)
declare the commitment of each Lender to make Loans to be terminated,
whereupon such commitments and obligation shall be terminated;
(ii)
declare the unpaid principal amount of all outstanding Loans, all interest
accrued and unpaid thereon, any Make-Whole Premium and all other amounts owing or
payable hereunder or under any other Loan Document to be immediately due and
payable, without presentment, demand, protest or other notice of any kind, all of which
are hereby expressly waived by the Borrowers;
(iii)
exercise on behalf of itself and the Lenders all rights and remedies
available to it and such Lenders under the Loan Documents or applicable law (including
in respect of the Collateral);
provided
,
however
, that upon the occurrence of an actual or deemed entry of an order for relief
with respect to the Borrowers under the Debtor Relief Laws, the obligation of each Lender to make
Loans shall automatically terminate, the unpaid principal amount of all outstanding Loans and all
interest and other amounts as aforesaid shall automatically become due and payable without further
act of the Administrative Agent or any Lender.
(b) Upon the occurrence of the Termination Date,
(i)
the Commitments of each Lender to make Loans shall each automatically
be terminated, and
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(ii)
the Loans, all interest thereon and all other amounts and Obligations shall
automatically become due and payable in cash, without presentment, demand, protest or
notice of any kind, all of which are hereby expressly waived by the Borrowers and the
other Loan Parties.
Section 8.03. Application of Funds
.
On the Termination Date and after
the exercise of remedies provided for in
Section 8.02
automatically become immediately due and payable), any amounts received on
account of the Obligations shall, subject to the provisions of
Section 2.19
and the ABL Intercreditor Agreement, be applied by the Administrative Agent in
the following order:
First
, to payment of that portion of the Obligations constituting fees, indemnities,
expenses and other amounts (including fees, charges and disbursements of counsel to the
Administrative Agent and Collateral Agent and amounts payable under
Article 3
) payable
to the Administrative Agent and the Collateral Agent in their respective capacity;
Second
, to payment of that portion of the Obligations constituting accrued and
unpaid interest on the Loans, applicable Make-Whole Premium and other Obligations,
ratably among the Lenders in proportion to the respective amounts described in this clause
Second
payable to them;
Third
, to payment of that portion of the Obligations constituting unpaid principal
of the Loans and, to the extent a Reserve is established in respect thereof, amounts owing
under Secured Hedge Agreements, ratably among the Lenders, and the Hedge Banks, as
applicable, in proportion to the respective amounts described in this clause
Third
them;
Fourth
, to payment of that portion of the Obligations constituting fees, indemnities
and other amounts (other than amounts owing under Secured Hedge Agreements ) payable
to the Lenders (including fees, charges and disbursements of counsel to the respective
Lenders (including fees and time charges for attorneys who may be employees of any
Lender)) and amounts payable under
Article 3
, ratably among them in proportion to the
respective amounts described in this clause
Fourth
Fifth
, to the payment of other Obligations, including, any amounts owing under
Secured Hedge Agreements, ratably among the applicable Secured Parties, in proportion
to the respective amounts described in this clause
Fifth
Last
, the balance, if any, after all of the Obligations have been indefeasibly paid in
full, to the Borrowers or as otherwise required by Law or the ABL Intercreditor Agreement
or the Stanwell Intercreditor Agreement.
Section 8.04. Equity Cure Rights
.
(a) In the event Holdings and the Borrowers fail to comply with any financial
covenant set forth in
Section 7.09
, subject to the terms and conditions hereof, Holdings and the
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Borrowers shall have the right (the “
Cure Right
”) from the last day of the applicable fiscal
quarter until the expiration of the
10
th
Financial Statements are required to be delivered to the Administrative Agent with respect
thereto, to prepay any part or all of the outstanding Loans (together with the Make-Whole
Premium in respect of the amount prepaid) and/or provide Cash Collateral (the “
Equity Cure
Cash Collateral
”) in an aggregate net amount equal to, but not greater than, the amount
necessary to cure the relevant financial covenants (hereinafter, the “
Cure Amount
”), and upon
the prepayment of the relevant principal amount of the Loans and/or the provision of the Equity
Cure Cash Collateral, the relevant financial covenants shall then be recalculated (by either
reducing the principal of the Loans or increasing the Consolidated EBITDA (for the applicable
fiscal quarter and for the subsequent three (3) consecutive fiscal quarters, solely for the purpose
of measuring compliance with the relevant financial covenants and not for any other purpose
under this Agreement) by the Cure Amount, at the election of the Borrowers) and if, after giving
effect to the foregoing recalculations, Holdings and the Borrowers shall then be in compliance
with the requirements of the relevant financial covenants, Holdings and the Borrowers shall be
deemed to have been in compliance with such financial covenants as of the relevant date of
determination with the same effect as though there had been no failure to comply therewith at
such date, and the applicable breach, Default or Event of Default of such financial covenants that
had occurred shall be deemed not to have occurred for the purposes of the Agreement.
(b) If:
(i)
Holdings and the Borrowers fail to comply with any financial covenant
and elect to exercise the Cure Right with the payment of Equity Cure Cash Collateral in
accordance with
paragraph (a)
(ii)
relevant financial covenants (without taking into account any Cure Amount held in the
Collateral Account) in respect of the first Test Period (the “
Subsequent Test Period
”)
following the relevant Test Period in respect of which Holdings and Borrowers paid
Equity Cure Cash Collateral in exercise of the Cure Right under
paragraph (a)
then, at any time on or after the last day of the Subsequent Test Period, the
Administrative Agent shall be entitled to apply any Equity Cure Cash Collateral
held in the Collateral Account towards prepaying the outstanding Loans in an
aggregate amount equal to, but not greater than, the amount necessary to cure the
relevant financial covenants in respect of the Subsequent Test Period.
(c) If:
(i)
Holdings and the Borrowers fail to comply with any financial covenant
and elect to exercise the Cure Right with the payment of Equity Cure Cash Collateral in
accordance with
paragraph (a)
(ii)
Holdings and Borrowers comply with the required financial covenants for
two consecutive Test Periods (in each case, without taking into account any Cure Amount
held in the Collateral Account),
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then, within five (5) Business Days of the date of delivery of the Compliance
Certificate in respect of the latter of the two consecutive Test Periods which
confirms compliance with the financial covenants, the Borrowers may withdraw
(and, upon request by a Borrower, the Administrative Agent shall withdraw) all or
a portion of any Equity Cure Cash Collateral from the Collateral Account for
deposit into a Deposit Account provided that no Event of Default is continuing or
would result from the proposed withdrawal.
(d) Notwithstanding anything herein to the contrary, in no event shall Holdings and
the Borrowers be permitted to exercise the Cure Right hereunder (x) more than three (3) times in
the aggregate during the term of this Agreement or (y) more than two (2) times in any 4
consecutive fiscal quarters or (z) by increasing the Consolidated EBITDA more than one (1) time
in the aggregate during the term of this Agreement.
(e) If the Administrative Agent exercises its right to apply any Equity Cure Cash
Collateral held in the Collateral Account towards prepaying the outstanding Loans, the
Borrowers shall pay all accrued interest and Make-Whole Premium in respect of the amount
prepaid promptly on demand by the Administrative Agent.
Section 8.05. Review Events
.
If a Review Event occurs:
(a) during the Review Period commencing after the earlier of (i) the occurrence of a
Review Event and (ii) the Administrative Agent becoming aware of the occurrence of a Review
Event and requesting a discussion with the Borrowers in relation to that Review Event, the
Borrowers must promptly meet and consult in good faith with the Administrative Agent and the
Lenders to agree a strategy to address the Review Event, including but not limited to a
restructure of the terms of the Facility to the satisfaction of the Lenders;
(b) if at the end of that Review Period, the Lenders are not satisfied with the result of
their discussion or meeting with the Borrowers or the Lenders do not wish to continue to provide
their Commitments, then the Administrative Agent may by written notice to the Borrowers
declare that:
(i)
the Commitment of each lender to make Loans to be terminated; and
(ii)
unpaid principal amount of all outstanding Loans, all interest accrued and
unpaid thereon, any Make-Whole Premium and all other amounts owing or payable
hereunder or under any other Loan Document to be due and payable, without
presentment, demand, protest or other notice of any kind, all of which are hereby
expressly waived by the Borrowers,
on the date stipulated in the notice (such date to be no earlier than the end of the Prepayment
Period), in which case, the Commitments shall be automatically cancelled on that date, all
amounts referred to at (ii) shall become immediately due and payable on that date,
(c) For the purpose of this section:
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(i)
“
Review Period
” means 10 Business Days; and
(ii)
“
Prepayment Period
” means 20 Business Days from the date of the notice
referred to at
paragraph (b)
For the avoidance of doubt, any failure to pay all amounts referred to in
paragraph (b)(ii)
by the required date will constitute an Event of Default.
ARTICLE 9
.
ADMINISTRATIVE AGENT
Section 9.01. Appointment.
(a) Each Lender hereby irrevocably appoints, designates and authorizes each of the
Administrative Agent and the Collateral Agent to take such actions on its behalf under the
provisions of this Agreement and each other Loan Document and to exercise such powers and
perform such duties as are delegated to the Administrative Agent and/or the Collateral Agent by
the terms and provisions hereof and of the other Loan Documents, together with such power as
are reasonably incidental thereto. Notwithstanding any provision to the contrary contained
elsewhere herein or in any other Loan Document, each of the Administrative Agent and the
Collateral Agent shall have no duties or responsibilities, except those expressly set forth herein,
nor shall the Administrative Agent or the Collateral Agent have or be deemed to have any
fiduciary relationship with any Lender or participant, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other
Loan Document or otherwise exist against the Administrative Agent or the Collateral Agent.
Without limiting the generality of the foregoing sentence, the Administrative Agent’s and the
Collateral Agent’s duties under the Loan Documents are solely mechanical and administrative in
nature, neither the Administrative Agent nor the Collateral Agent is required to account to any
other Secured Party for any sum or profit received by it for its own account, and the use of the
term “agent” herein and in the other Loan Documents with reference to the Administrative Agent
or the Collateral Agent is not intended to connote any fiduciary or other implied (or express)
obligations arising under agency doctrine of any applicable Law. Instead, such term is used
merely as a matter of market custom, and is intended to create or reflect only an administrative
relationship between independent contracting parties. The provisions of this
Article 9
(other
than
Sections
9.10
9.12
) are solely for the benefit of the Administrative Agent, the Collateral
Agent and the Lenders, and neither the Borrowers nor any other Loan Party shall have rights as a
third party beneficiary of any such provisions.
(b) The Collateral Agent shall have all of the benefits and immunities provided to the
Administrative Agent in this
Article 9
Collateral Agent hereunder.
(c) The Collateral Agent shall also act as the “collateral agent” under the Loan
Documents, and each Lender hereby irrevocably appoints and authorizes the Collateral Agent to
act as the agent of (and to hold any security interest created by the Collateral Documents
(including the Australian Collateral Documents) for and on behalf of) such Lender and its
Affiliates for purposes of acquiring, holding and enforcing any and all Liens on Collateral
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granted by any of the Loan Parties to secure any of the Obligations, together with such powers
and discretion as are reasonably incidental thereto. In this connection, the Collateral Agent, as
“collateral agent” (and any co-agents, sub-agents and attorneys-in-fact appointed by the
Collateral Agent pursuant to
Section 9.01(c)
the Collateral (or any portion thereof) granted under the Collateral Documents (including the
Australian Collateral Documents), or for exercising any rights and remedies thereunder at the
direction of the Collateral Agent (or Required Lenders)), shall be entitled to the benefits of all
provisions of this
Article 9
Section 9.07
, as though such co-agents, sub-agents and
attorneys-in-fact were the “collateral agent” under the Loan Documents) as if set forth in full
herein with respect thereto. Without limiting the generality of the foregoing, the Lenders hereby
expressly authorize the Collateral Agent to execute any and all documents (including releases)
with respect to the Collateral and the rights of the Secured Parties with respect thereto, as
contemplated by and in accordance with the provisions of this Agreement and the Collateral
Documents (including the Australian Collateral Documents) and acknowledge and agree that any
such action by the Collateral Agent shall bind the Lenders.
Section 9.02. Delegation of Duties.
The Administrative Agent and the Collateral Agent may execute any of their duties under
this Agreement or any other Loan Document (including for purposes of holding or enforcing any
Lien on the Collateral (or any portion thereof) granted under the Collateral Documents (including
the Australian Collateral Documents) or of exercising any rights and remedies thereunder) by or
through agents, sub-agents, employees or attorneys-in-fact (including for the purpose of any
Borrowing or payment in Alternate Currencies) as shall be deemed necessary by the
Administrative Agent or the Collateral Agent and shall be entitled to engage and pay for the advice
or services of any lawyers, accountants, surveyors or other experts or professional advisers
concerning all matters pertaining to such duties. Without limiting the generality of the foregoing
sentence, each Agent may at any time engage and pay for the services of any lawyers to act as its
independent counsel (and so separate from any lawyers instructed by the Lenders) if the Agent in
its reasonable opinion deems this to be necessary. Each such sub-agent and the Affiliates of the
Administrative Agent and the Collateral Agent and each such sub-agent shall be entitled to the
benefits of all provisions of this
Article 9
,
Section 11.05(a)
Section 11.05(b)
sub-agents were the “Administrative Agent” or the “Collateral Agent” (as applicable) under the
Loan Documents) as if set forth in full herein with respect thereto. Neither the Administrative
Agent nor the Collateral Agent shall not be responsible or liable for any damages, costs or losses
to any person for the actions, negligence or misconduct of any agent or sub-agent or attorney-in-
fact that it selects or engages in the absence of gross negligence or willful misconduct (as
determined in the final judgment of a court of competent jurisdiction).
Section 9.03. Liability of Agents.
(a) No Agent Affiliate shall
(i)
be liable for any action taken or omitted to be taken by any of them under
or in connection with this Agreement or any other Loan Document or the transactions
contemplated hereby (except for its own gross negligence or willful misconduct, as
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determined by the final judgment of a court of competent jurisdiction, in connection with
its duties expressly set forth herein), or
(ii)
be responsible in any manner to any Lender or participant for any recital,
statement, representation or warranty made by any Loan Party or any officer thereof,
contained herein or in any other Loan Document, or in any certificate, report, statement
or other document referred to or provided for in, or received by the Administrative Agent
or the Collateral Agent under or in connection with, this Agreement or any other Loan
Document, or the execution, validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or any other Loan Document, or the perfection or priority
of any Lien or security interest created or purported to be created under the Collateral
Documents (including, the Australian Collateral Documents), or for any failure of any
Loan Party or any other party to any Loan Document to perform its obligations hereunder
or thereunder.
(b) No Agent Affiliate shall be under any obligation to any Lender or participant to
ascertain or to inquire into
(i)
any statement, warranty or representation made in or in connection with
this Agreement or any other Loan Document,
(ii)
the contents of any certificate, report or other document delivered
hereunder or thereunder or in connection herewith or therewith,
(iii)
the performance or observance of any of the covenants, agreements or
other terms or conditions set forth herein or therein or the occurrence of any Default or
Event of Default,
(iv)
the validity, enforceability, effectiveness or genuineness of this
Agreement, any other Loan Document or any other agreement, instrument or document
or the perfection or priority of any Lien or security interest created or purported to be
created by the Collateral Documents (including the Australian Collateral Documents),
(v)
the satisfaction of any condition set forth in
Article 4
other than to confirm receipt of documentary items expressly required to be delivered to
the Administrative Agent, or
(vi)
to inspect the properties, books or records of any Loan Party or any
Affiliate thereof.
(c) No Agent Affiliate shall have any duties or obligations to any Lender or
participant except those expressly set forth herein and in the other Loan Documents, and without
limiting the generality of the foregoing, the Agent Affiliates:
(i)
shall not be subject to any fiduciary or other implied duties, regardless of
whether a Default has occurred and is continuing;
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(ii)
shall not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly contemplated
hereby or by the other Loan Documents that such Person is required to exercise as
directed in writing by the Required Lenders (or such other number or percentage of the
Lenders as shall be expressly provided for herein or in the other Loan Documents),
provided
the opinion of its counsel, may expose it to liability or that is contrary to any Loan
Document or applicable law; and
(iii)
shall not be required to carry out any “know your customer” or other
checks in relation to any person on behalf of any Lender and each Lender confirms to the
Administrative Agent that it is solely responsible for any such checks it is required to
carry out and that it may not rely on any statement in relation to such checks made by the
Administrative Agent or any of its Affiliates.
(d) No Agent Affiliate shall be liable
(i)
to any participant or Secured Party or their Affiliates for any failure, delay
in performance, breach by, or as a result of information provided by, any other party to
any Loan Document or action taken or not taken by it with the consent or at the request of
the Required Lenders (or such other number or percentage of the Lenders as shall be
necessary, or such Person shall believe in good faith shall be necessary under the
circumstances) or
(ii)
in the absence of its own gross negligence or willful misconduct, as
determined by a final judgment of a court of competent jurisdiction.
(e) For the avoidance of doubt, no Agent Affiliate shall be obligated to calculate or
confirm the calculations of any financial covenants set forth herein or the other Loan Documents
or in any of the Financial Statements of the Loan Parties. No Agent Affiliate shall be liable to
the Lenders for any apportionment or distribution of payments made by it to such Lenders in
good faith and if any such apportionment or distribution is subsequently determined to have been
made in error, the sole recourse of any Lender to whom payment was due but not made shall be
to recover pro rata from the other Lenders any payment equal to the amount to which they are
determined to be entitled (and such other Lenders hereby agree to return to such Lender any such
erroneous payments received by them).
(f) In no event shall any Agent Affiliate be liable for any failure or delay in the
performance of their respective obligations under this Agreement or any related documents
because of circumstances beyond such Agent Affiliate’s control, including, but not limited to, a
failure, termination, or suspension of a clearing house, securities depositary, settlement system or
central payment system in any applicable part of the world or acts of God, flood, war (whether
declared or undeclared), civil or military disturbances or hostilities, nuclear or natural
catastrophes, political unrest, explosion, severe weather or accident, earthquake, terrorism, fire,
riot, labor disturbances, strikes or work stoppages for any reason, embargo, government action,
including any laws, ordinances, regulations or the like (whether domestic, federal, state, county
or municipal or foreign) which delay, restrict or prohibit the providing of the services
135
contemplated by this Agreement or any related documents, or the unavailability of
communications or computer facilities, the failure of equipment or interruption of
communications or computer facilities, or the unavailability of the Federal Reserve Bank wire or
telex or other wire or communication facility, or any other causes beyond such Agent Affiliate’s
control whether or not of the same class or kind as specified above.
(g) Nothing in this Agreement or any other Loan Document shall require any Agent
Affiliate to expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties or in the exercise of any of its rights or powers hereunder.
(h) Without limiting anything contained herein, each Agent Affiliate shall have no
obligation for (i) perfecting, maintaining, monitoring, preserving or protecting the security
interest or Lien granted under this Agreement, any other Loan Document, or any agreement or
instrument contemplated hereby or thereby; (ii) the filing, re-filing, recording, re-recording, or
continuing of any document, financing statement, mortgage, assignment, notice, instrument of
further assurance, or other instrument in any public office at any time or times; or (iii) providing,
maintaining, monitoring, or preserving insurance on or the payment of Taxes with respect to any
Collateral.
(i) No Agent Affiliate shall be liable for any delay (or any related consequences) in
crediting an account with an amount required under the Loan Documents to be paid by the
Administrative Agent if the Agent Affiliate has taken all necessary steps as soon as reasonably
practicable to comply with the regulations or operating procedures of any recognised clearing or
settlement system used by the Administrative Agent for that purpose.
(j) No party to this Agreement (other than an Agent) may take any proceedings
against any Agent’s officer, employee, agent, director, advisor, attorney or representative
(“
Agent Representative
”
) in respect of any claim it might have against that Agent Representative
or in respect of any act or omission of any kind by that Agent Representative in relation to any
Loan Document and any Agent Representative may rely on this
Section 9.03
.
Section 9.04. Reliance by Agents.
(a) The Agents shall be entitled to rely, and shall be fully protected in relying, upon
any writing, instrument, document, communication, signature, resolution, representation, notice,
consent, certificate (including Borrowing Base Certificates), affidavit, letter, electronic mail
message, statement or other document believed by it to be genuine and correct and to have been
signed, sent or made by the proper Person or Persons, and/or upon advice and statements of any
lawyers, accountants, surveyors or other experts or professional advisers engaged by the
Administrative Agent.
(b) The Agents shall be fully justified in failing or refusing to take any action under
any Loan Document unless it shall first receive such advice or concurrence of the Required
Lenders (or such greater number of Lenders) as it deems appropriate and, if it so requests, it shall
first be indemnified to its satisfaction by the Lenders against any and all liability and expense
which may be incurred by it by reason of taking or continuing to take (or declining to take or
continuing to decline to take) any such action, which indemnification may be joint and several.
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(c) The Agents shall in all cases be fully protected in acting, or in refraining from
acting, under this Agreement or any other Loan Document in accordance with a request, consent
of or ratification by the Required Lenders (or such greater number of Lenders as may be
expressly required hereby in any instance) and such request and any action taken or failure to act
pursuant thereto shall be binding upon all the Lenders;
provided
to take any action that, in its opinion or in the opinion of its counsel, may expose the Agent to
liability or that is contrary to any Loan Document or applicable Law.
(d) Any notice, consent, request, direction, instruction or ratification by the Required
Lenders shall be executed by the Lenders of record providing such consent, request, direction,
instruction or ratification.
(e) Each Agent may assume that any instructions received by it from the Required
Lenders, any Lender or any group of Lenders are duly given in accordance with the terms of the
Loan Documents and unless it has received notice of revocation, it may assume that those
instructions have not been revoked.
(f) Each Agent may assume (unless it has received notice to the contrary in its
capacity as Administrative Agent or Collateral Agent (as applicable)) that:
(i)
any right, power, authority or discretion vested in any party to this
Agreement or any group of Lenders has not been exercised; and
(ii)
any notice or request made by any Borrower (other than a Borrowing
Notice) is made on behalf of and with the consent and knowledge of all the Loan Parties.
Section 9.05. Notice of Default.
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default, unless the Administrative Agent shall have received written notice from
Required Lender or a Borrower referring to this Agreement, describing such
Default or Event of Default and stating that such notice is a “notice of default” or
“notice of an event of default” as applicable. The Administrative Agent will notify
the Lenders of its receipt of any such notice. The Administrative Agent shall take
such action with respect to any Event of Default as may be directed by the Required
Lenders in accordance with
Article 8
;
provided
that unless and until the
Administrative Agent has received any such direction, the Administrative Agent
may (but shall not be obligated to) take such action, or refrain from taking such
action, with respect to such Event of Default as it shall deem advisable or in the
best interest of the Lenders.
Section 9.06. Credit Decision; Disclosure of Information by Agents.
Each Lender acknowledges that no Agent Affiliate has made any representation or
warranty to it, and that no act by the Administrative Agent hereafter taken,
including any consent to and acceptance of any assignment or review of the affairs
of any Loan Party or any Affiliate thereof, shall be deemed to constitute any
representation or warranty by any Agent Affiliate to any Lender as to any matter,
including whether Agent Affiliates have disclosed material information in their
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possession. Each Lender represents to the Administrative Agent that it has,
independently and without reliance upon any Agent Affiliate and based on such
documents and information as it has deemed appropriate, made its own appraisal of
and investigation into the business, prospects, operations, property, financial and
other condition and creditworthiness of the Loan Parties and their respective
Subsidiaries, and all applicable bank or other regulatory Laws relating to the
transactions contemplated hereby, and made its own decision to enter into this
Agreement and to extend credit to the Borrowers and the other Loan Parties
hereunder. Each Lender also represents that it will, independently and without
reliance upon any Agent Affiliate and based on such documents and information as
it shall deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement and the
other Loan Documents, and to make such investigations as it deems necessary to
inform itself as to the business, prospects, operations, property, financial and other
condition and creditworthiness of the Borrowers and the other Loan Parties. Except
for notices, reports and other documents expressly required to be furnished to the
Lenders by the Administrative Agent herein, the Administrative Agent shall not
have any duty or responsibility to provide any Lender with any credit or other
information concerning the business, prospects, operations, property, financial and
other condition or creditworthiness of any of the Loan Parties or any of their
respective Affiliates which may come into the possession of any Agent Affiliate.
Section 9.07. Indemnification of Agents.
Whether or not the transactions contemplated hereby are consummated, the Lenders shall
indemnify upon demand the Agents and each other Agent Affiliate, pro rata, and hold harmless
the Agents and each other Agent Affiliate from and against any and all Indemnified Liabilities
incurred by it (whether based on contract, tort or any other theory, whether brought by or against
a third party or by or against the Lenders, and regardless of whether any Indemnitee is a party
thereto);
provided
that no Lender shall be liable for the payment to any Agent Affiliate of any
portion of such Indemnified Liabilities resulting from such Agent Affiliate’s own gross negligence,
willful misconduct or fraud, as determined by the final judgment of a court of competent
jurisdiction;
provided
that no action taken in accordance with the directions of the Required
Lenders (or such other number or percentage of the Lenders as shall be required by the Loan
Documents) shall be deemed to constitute gross negligence, willful misconduct or fraud for
purposes of this
Section 9.07
. In the case of any investigation, litigation or proceeding giving rise
to any Indemnified Liabilities, this
Section 9.07
or proceeding is brought by or against any Lender or any other Person (or whether any Agent or
an Agent Affiliate is a party to any such Proceeding).
Without limitation of the foregoing, each Lender shall reimburse each Agent upon demand
for its ratable share of any costs or out-of-pocket expenses (including all reasonable fees, expenses
and disbursements of any law firm or other external legal counsel and compensation of agents and
employees paid for services rendered on behalf of the Lenders) incurred by the Agent in connection
with the preparation, execution, delivery, administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in
respect of rights or responsibilities under, this Agreement, any other Loan Document, or any
138
document contemplated by or referred to herein, to the extent that the Agent is not reimbursed for
such expenses by or on behalf of the Borrowers,
provided
shall not affect the Borrowers’ continuing reimbursement obligations with respect thereto.
Each Lender hereby authorizes the Administrative Agent and Collateral Agent (including
in its capacity as Australian Security Trustee) to set off and apply any and all amounts at any time
owing to such Lender under any Loan Document or otherwise payable or distributable by the
Administrative Agent or the Collateral Agent (including in its capacity as Australian Security
Trustee) to such Lender from any source against any amount due to the Administrative Agent or
the Collateral Agent under
Section 2.16
Section 9.07
.
The undertaking in this
Section 9.07
Lenders, the payment of all other Obligations and the resignation of the Administrative Agent or
the Collateral Agent.
Section 9.08. Withholding Tax.
United States, Australia or other jurisdiction asserts a claim that the Administrative
Agent did not properly withhold Taxes from amounts paid to or for the account of
any Lender for any reason (including, without limitation, because the appropriate
form was not delivered or not property executed, or because such Lender failed to
notify the Administrative Agent of a change in circumstance that rendered the
exemption from, or reduction of withholding Tax ineffective), such Lender shall
indemnify and hold harmless the Administrative Agent (to the extent that the
Administrative Agent has not already been reimbursed by any Loan Party and
without limiting or expanding the obligation of the applicable Loan Party to do so)
for all amounts paid, directly or indirectly, by the Administrative Agent as Taxes or
otherwise, including any interest, additions to tax or penalties thereto, together with
all reasonable expenses incurred, including legal expenses and any other out-of-
pocket expenses, whether or not such Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. A certificate as to the amount of
such payment or liability delivered to any Lender by the Administrative Agent shall
be conclusive absent manifest error.
Section 9.09. Agents in Their Individual Capacity.
(a) Any Person serving as an Agent hereunder shall have the same rights and powers
in its capacity as a Lender as any other Lender and may exercise the same as though it were not
an Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or
unless the context otherwise requires, include each Person serving as an Agent hereunder in its
individual capacity. Each Agent and its Affiliates may make loans to, issue letters of credit and
bank guarantees for the account of, accept deposits from, acquire Equity Interests in and
generally engage in any kind of banking, trust, financial advisory, underwriting or other business
with each of the Loan Parties and their respective Affiliates as though the Agent were not the an
Agent hereunder and without notice to or consent of the Lenders. The Lenders acknowledge
that, pursuant to such activities, the Agent or their Affiliates may receive information regarding
any Loan Party or any of its Affiliates (including information that may be subject to
confidentiality obligations in favor of such Loan Party or such Affiliate) and acknowledge that
139
the Agents shall not be under any obligation to provide such information to them. With respect
to its Loans, each Agent shall have the same rights and powers under this Agreement as any
other Lender and may exercise such rights and powers as though it were not an Agent, and the
terms “Lender” and “Lenders” include the Agents, each in its individual capacity.
(b) Each Lender understands that each Person serving as an Agent, acting in its
individual capacity, and its Affiliates (collectively, the “
Agent’s Group
”) are engaged in a wide
range of financial services and businesses (including investment management, financing,
securities trading, corporate and investment banking and research) (such services and businesses
are collectively referred to in this
Section 9.09
Activities
”) and may engage in the Activities
with or on behalf of one or more of the Loan Parties or their respective Affiliates. Furthermore,
the Agent’s Group may, in undertaking the Activities, engage in trading in financial products or
undertake other investment businesses for its own account or on behalf of others (including the
Loan Parties and their Affiliates and including holding, for its own account or on behalf of
others, equity, debt and similar positions in Holdings, another Loan Party or their respective
Affiliates), including trading in or holding long, short or derivative positions in securities, loans
or other financial products of one or more of the Loan Parties or their Affiliates. Each Lender
understands and agrees that in engaging in the Activities, the Agent’s Group may receive or
otherwise obtain information concerning the Loan Parties or their Affiliates (including
information concerning the ability of the Loan Parties to perform their respective Obligations
hereunder and under the other Loan Documents) which information may not be available to any
of the Lenders that are not members of the Agent’s Group. No Agent nor any member of the
Agent’s Group shall have any duty to disclose to any Lender or use on behalf of the Lenders, and
shall not be liable for the failure to so disclose or use, any information whatsoever about or
derived from the Activities or otherwise (including any information concerning the business,
prospects, operations, property, financial and other condition or creditworthiness of any Loan
Party or any Affiliate of any Loan Party) or to account for any revenue or profits obtained in
connection with the Activities, except that the Agents shall deliver or otherwise make available
to each Lender such documents as are expressly required by any Loan Document to be
transmitted by the Agents to the Lenders.
(c) Each Lender further understands that there may be situations where members of
the Agent’s Group or their respective customers (including the Loan Parties and their Affiliates)
either now have or may in the future have interests or take actions that may conflict with the
interests of any one or more of the Lenders (including the interests of the Lenders hereunder and
under the other Loan Documents). Each Lender agrees that no member of the Agent’s Group is
or shall be required to restrict its activities as a result of the Person serving as an Agent being a
member of the Agent’s Group, and that each member of the Agent’s Group may undertake any
Activities without further consultation with or notification to any Lender. None of (i) this
Agreement nor any other Loan Document, (ii) the receipt by the Agent’s Group of information
(including Information) concerning the Loan Parties or their Affiliates (including information
concerning the ability of the Loan Parties to perform their respective Obligations hereunder and
under the other Loan Documents) nor (iii) any other matter shall give rise to any fiduciary,
equitable or contractual duties (including without limitation any duty of trust or confidence)
owing by any Agent or any member of the Agent’s Group to any Lender including any such duty
that would prevent or restrict the Agent’s Group from acting on behalf of customers (including
the Loan Parties or their Affiliates) or for its own account.
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Section 9.10. Resignation by the Agents.
(a) Any Agent may resign as Agent upon 30 days’ prior notice to the Lenders and the
Borrowers. If the Agent resigns under this Agreement, the Required Lenders shall appoint from
among the Lenders a successor agent for the Lenders (or such other Person reasonably
acceptable to Holdings), which successor agent shall be consented to by Holdings at all times
other than during the existence of an Event of Default under
Section 8.01(f)
Holdings shall not be unreasonably withheld or delayed). The resigning Agent shall make
available to the successor Agent such documents and records and provide such assistance as the
successor agent may reasonably request for the purposes of performing its functions as Agent
under the Loan Documents. The Borrowers shall within 3 Business Days of demand, reimburse
the resigning Agent for the amount of all costs and expenses (including legal fees) properly
incurred by it in making available such documents and records and providing such assistance.
(b) If no successor agent is appointed prior to the effective date of the resignation of
the Agent, the Agent may appoint, after consulting with the Lenders and Holdings, a successor
agent. Upon the acceptance of its appointment as successor agent hereunder, the Person acting
as such successor agent shall succeed to all the rights, powers and duties of the retiring Agent,
and the term “Administrative Agent” or “Collateral Agent”, as applicable, shall mean such
successor agent and/or supplemental agent, as the case may be, and the retiring Agent’s
appointment, powers and duties as the Administrative Agent or the Collateral Agent, as
applicable, shall be terminated. After the retiring Agent’s resignation hereunder as Agent, the
provisions of this
Article 9
,
Section 11.05(a)
Section 11.05(b)
any actions taken or omitted to be taken by it while it was Agent under this Agreement.
(c) If no successor agent has accepted appointment as the Administrative Agent or
the Collateral Agent, as applicable, by the date which is 30 days following the retiring Agent’s
notice of resignation, the retiring Agent’s resignation shall nevertheless thereupon become
effective and the Lenders shall perform all of the duties of the applicable Agent hereunder until
such time, if any, as the Required Lenders appoint a successor agent as provided for above.
(d) Upon the acceptance of any appointment as the Administrative Agent or the
Collateral Agent hereunder by a successor and upon the execution and filing or recording of such
financing statements, or amendments thereto, and such other instruments or notices, as may be
necessary or desirable, or as the Required Lenders may request, in order to (i) continue the
perfection of the Liens granted or purported to be granted by the Collateral Documents or (ii)
otherwise ensure that the requirements of
Section 6.16
successor Agent shall thereupon succeed to and become vested with all the rights, powers,
discretion, privileges, and duties of the retiring Agent, and the retiring Agent shall be discharged
from its duties and obligations under the Loan Documents (if not already discharged therefrom
as provided above in this
Section 9.10
).
(e) After the retiring Agent’s resignation hereunder as the Agent, the provisions of
this
Article 9
,
Section 11.05(a)
Section 11.05(b)
respect of any actions taken or omitted to be taken by it while it was acting as the Agent.
141
Section 9.11. Administrative Agent May File Proofs of Claim.
case of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial proceeding
relative to any Loan Party, the Administrative Agent (irrespective of whether the
principal of any Loan shall then be due and payable as herein expressed or by
declaration or otherwise and irrespective of whether the Administrative Agent shall
have made any demand on the Borrowers) shall be entitled and empowered, by
intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of the principal and interest owing
and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file
such other documents as may be necessary or advisable in order to have the claims of the
Lenders and the Administrative Agent (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Lenders and the Administrative Agent and its
agents and counsel and all other amounts due the Lenders and the Administrative Agent under
Section 2.13
Section 11.05(b)
) allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property payable or deliverable on any
such claims and to distribute the same;
(c) and any custodian, receiver, interim receiver, receiver and manager, assignee,
trustee, liquidator, sequestrator, controller or other similar official in any such judicial
proceeding is hereby authorized by each Lender to make such payments to the Administrative
Agent and, in the event that the Administrative Agent shall consent to the making of such
payments directly to the Lenders, to pay to the Administrative Agent any amount due for the
reasonable compensation, expenses, disbursements and advances of the Administrative Agent
and their respective agents and counsel, and any other amounts due the Administrative Agent
under
Section 2.13
Section 11.05(b)
.
Nothing contained herein shall be deemed to authorize the Administrative Agent to
authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization,
arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or
to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such
proceeding.
Section 9.12. Collateral and Guarantee Matters.
The Lenders irrevocably agree:
(a) that any Lien on any property granted to or held by the Administrative Agent or
the Collateral Agent (including, in its capacity as Australian Security Trustee) under any Loan
Document shall be automatically released
(i)
upon termination of the Commitments of all the Lenders and payment in
full of all Obligations (other than contingent indemnification obligations not yet accrued
and payable);
142
(ii)
at the time the property subject to such Lien is transferred or to be
transferred as part of or in connection with any transfer permitted hereunder or under any
other Loan Document, other than any transfer to a Loan Party; and
(iii)
subject to
Section 11.01
, if the release of such Lien is approved,
authorized or ratified in writing by the Required Lenders;
(b) to release or subordinate any Lien on any property granted to or held by the
Collateral Agent under any Loan Document to the holder of any Lien on such property that is
permitted by
Section 7.01(f)
; and
(c) that any Guarantor (other than the Borrowers) shall be automatically released
from its obligations under the Guarantee in
Article 10
Person ceases to be a Subsidiary as a result of a transaction or designation permitted hereunder.
Notwithstanding the foregoing, a release of Collateral that is ABL Priority Collateral
outside of the ordinary course of business, a subordination of the Lien securing the Obligations
and a release of any Guarantor, in each case, shall be subject to Holdings delivering updated
Borrowing Base Certificate demonstrating, after giving effect to such release (including any
prepayment or repayment of the Loans), the Total Outstandings does not exceed the Maximum
Revolving Credit.
Upon request by the Administrative Agent at any time, the Required Lenders will confirm
in writing the Collateral Agent’s authority to release or subordinate its interest in particular types
or items of property, or to release any Guarantor from its obligations under the Guarantee pursuant
to this
Section 9.12
. In each case as specified in this
Section 9.12
, the applicable Agent will
promptly (and each Lender irrevocably authorizes such Agent to), at Holding’s expense, execute
and deliver to the applicable Loan Party such documents as such Loan Party may reasonably
request to evidence the release or subordination of such item of Collateral from the assignment
and security interest granted under the Collateral Documents (including the Australian Collateral
Documents), or to evidence the release of such Loan Party from its obligations under any of the
Loan Documents, in each case in accordance with the terms of the Loan Documents and this
Section 9.12
.
Section 9.13. No requirement to enquire authority
No party to this Agreement needs to enquire whether any instructions from all or a
percentage of Lenders or the Required Lenders have been given to the Administrative Agent or as
to the terms of those instructions. As between a Loan Party on the one hand and the Administrative
Agent and Lenders on the other, everything done by the Administrative Agent under or in relation
to the Loan Documents will be taken to be authorised.
Section 9.14. Appointment of Supplemental Collateral Agents.
(a) It is the purpose of this Agreement and the other Loan Documents that there shall
be no violation of any Law of any jurisdiction denying or restricting the right of banking
corporations or associations to transact business as agent or trustee in such jurisdiction. It is
143
recognized that in case of litigation under this Agreement or any of the other Loan Documents,
and in particular in case of the enforcement of any of the Loan Documents, or in case the
Collateral Agent deems that by reason of any present or future Law of any jurisdiction it may not
exercise any of the rights, powers or remedies granted herein or in any of the other Loan
Documents or take any other action which may be desirable or necessary in connection
therewith, the Collateral Agent is hereby authorized to appoint an additional individual or
institution selected by the Administrative Agent in its sole discretion as a separate trustee, co-
trustee, collateral agent, collateral sub-agent or collateral co-agent (any such additional
individual or institution being referred to herein individually as a “
Supplemental Collateral
Agent
” and collectively as “
Supplemental Collateral Agents
”).
(b) In the event that the Collateral Agent appoints a Supplemental Collateral Agent
with respect to any Collateral,
(i)
each and every right, power, privilege or duty expressed or intended by
this Agreement or any of the other Loan Documents to be exercised by or vested in or
conveyed to the Collateral Agent with respect to such Collateral shall be exercisable by
and vest in such Supplemental Collateral Agent to the extent, and only to the extent,
necessary to enable such Supplemental Collateral Agent to exercise such rights, powers
and privileges with respect to such Collateral and to perform such duties with respect to
such Collateral, and every covenant and obligation contained in the Loan Documents and
necessary to the exercise or performance thereof by such Supplemental Collateral Agent
shall run to and be enforceable by either the Collateral Agent or such Supplemental
Collateral Agent, and
(ii)
the provisions of this
Article 9
Section 11.05(a)
Section
11.05(b)
Collateral Agent and all references therein to the Collateral Agent shall be deemed to be
references to the Collateral Agent and/or such Supplemental Collateral Agent, as the
context may require.
(c) Should any instrument in writing from any Loan Party be required by any
Supplemental Collateral Agent so appointed by the Collateral Agent for more fully and certainly
vesting in and confirming to it such rights, powers, privileges and duties, such Loan Party shall
execute, acknowledge and deliver any and all such instruments promptly upon request by the
Collateral Agent. In case any Supplemental Collateral Agent, or a successor thereto, shall die,
become incapable of acting, resign or be removed, all the rights, powers, privileges and duties of
such Supplemental Collateral Agent, to the extent permitted by Law, shall vest in and be
exercised by the Collateral Agent until the appointment of a new Supplemental Collateral Agent.
Section 9.15. Reports and Financial Statements.
Agreement, each Lender:
(a) is deemed to have requested that the Administrative Agent furnish such Lender,
as applicable, promptly after they become available, copies of all Financial Statements required
to be delivered by Holdings hereunder and all field examinations, audits and appraisals of the
Collateral received by the Administrative Agent (collectively, the “
Reports
”);
144
(b) expressly agrees and acknowledges that the Administrative Agent (i) makes no
representation or warranty as to the accuracy of the Reports, and (ii) shall not be liable for any
information contained in any Report;
(c) expressly agrees and acknowledges that the Reports are not comprehensive audits
or examinations, that the Administrative Agent or any other party performing any audit or
examination will inspect only specific information regarding the Loan Parties and will rely
significantly upon the Loan Parties’ books and records, as well as on representations of the Loan
Parties’ personnel;
(d) agrees to keep all Reports confidential in accordance with the provisions of
Section 11.08
clause (g)
(e) without limiting the generality of any other indemnification provision contained
in this Agreement, agrees:
(i)
to hold the Administrative Agent and any such other Lender preparing a
Report harmless from any action the indemnifying Lender may take or conclusion the
indemnifying Lender may reach or draw from any Report in connection with any Loans
that the indemnifying Lender has made or may make to the Borrowers, or the
indemnifying Lender’s participation in, or the indemnifying Lender’s purchase of, a Loan
or Loans of the Borrowers; and
(ii)
to pay and protect, and indemnify, defend, and hold the Administrative
Agent and any such other Lender preparing a Report harmless from and against, the
claims, actions, proceedings, damages, costs, expenses, and other amounts (including
reasonable attorney costs) incurred by the Administrative Agent and any such other
Lender preparing a Report as the direct or indirect result of any third parties who might
obtain all or part of any Report through the indemnifying Lender
in each case, including, in connection with, or as a result of any actual or prospective claim, actions,
suits, inquiries, litigation, investigation or proceeding relating to any of the foregoing or the
preparation of any defense in connection therewith, whether based on contract, tort or any other
theory, whether brought by or against such Lender, a third party or by the Borrowers or any other
Loan Party, and regardless of whether the Administrative Agent ( or such preparing Lender) is a
party thereto.
Section 9.16. Posting of Approved Electronic Communications.
(a) Each of the Lenders and each Loan Party agree that the Administrative Agent
may, but shall not be obligated to, make the Approved Electronic Communications available to
the Lenders by posting such Approved Electronic Communications on Debt Domain,
IntraLinks™ or a substantially similar electronic platform chosen by the Administrative Agent to
be its electronic transmission system (the “
Approved Electronic Platform
”).
(b) Although the Approved Electronic Platform and its primary web portal are
secured with generally-applicable security procedures and policies implemented or modified by
the Administrative Agent from time to time (including, as of the Amendment and Restatement
145
Effective Date, a dual firewall and a User ID/Password Authorization System) and the Approved
Electronic Platform is secured through a single-user-per-deal authorization method whereby each
user may access the Approved Electronic Platform only on a deal-by-deal basis, each of the
Lenders and each Loan Party acknowledges and agrees that the distribution of material through
an electronic medium is not necessarily secure and that there are confidentiality and other risks
associated with such distribution. In consideration for the convenience and other benefits
afforded by such distribution and for the other consideration provided hereunder, the receipt and
sufficiency of which is hereby acknowledged, each of the Lenders and each Loan Party hereby
approves distribution of the Approved Electronic Communications through the Approved
Electronic Platform and understands and assumes the risks of such distribution.
(c) The Approved Electronic Platform and the Approved Electronic Communications
are provided “as is” and “as available”. None of the Administrative Agent, the Collateral Agent
(including in its capacity as the Australian Security Trustee) nor any of their respective Affiliates
or any of their respective officers, directors, employees, agents, advisors, attorneys or
representatives (the Administrative Agent, the Collateral Agent (including in its capacity as the
Australian Security Trustee) and each of the foregoing, each, an “
Agent Affiliate
”) warrant the
accuracy, adequacy or completeness of the Approved Electronic Communications or the
Approved Electronic Platform and each expressly disclaims liability for errors or omissions in
the Approved Electronic Platform and the Approved Electronic Communications. No warranty
of any kind, express, implied or statutory, including, without limitation, any warranty of
merchantability, fitness for a particular purpose, non-infringement of third party rights or
freedom from viruses or other code defects, is made by the Agent Affiliates in connection with
the Approved Electronic Platform or the Approved Electronic Communications.
(d) Each of the Lenders and each Loan Party agree that the Administrative Agent
may, but (except as may be required by applicable law) shall not be obligated to, store the
Approved Electronic Communications on the Approved Electronic Platform in accordance with
the Administrative Agent’s generally-applicable document retention procedures and policies.
Section 9.17. Erroneous Payments.
(a) If the Administrative Agent notifies a Lender or Secured Party, or any Person who
has received funds on behalf of a Lender or Secured Party such Lender (any such Lender,
Secured Party or other recipient, a “
Payment Recipient
”) that the Administrative Agent has
determined in its sole discretion (whether or not after receipt of any notice under immediately
succeeding
clause (b)
) that any funds received by such Payment Recipient from the
Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise
erroneously or mistakenly received by, such Payment Recipient (whether or not known to such
Lender, Secured Party or other Payment Recipient on its behalf) (any such funds, whether
received as a payment, prepayment or repayment of principal, interest, fees, distribution or
otherwise, individually and collectively, an “
Erroneous
Payment
”) and demands the return of
such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain
the property of the Administrative Agent and shall be segregated by the Payment Recipient and
held in trust for the benefit of the Administrative Agent, and such Lender or Secured Party shall
(or, with respect to any Payment Recipient who received such funds on its behalf, shall cause
such Payment Recipient to) promptly, but in no event later than two Business Days thereafter,
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return to the Administrative Agent the amount of any such Erroneous Payment (or portion
thereof) as to which such a demand was made, in same day funds (in the currency so received),
together with interest thereon in respect of each day from and including the date such Erroneous
Payment (or portion thereof) was received by such Payment Recipient to the date such amount is
repaid to the Administrative Agent in same day funds at the greater of the Overnight Rate and a
rate determined by the Administrative Agent in accordance with banking industry rules on
interbank compensation from time to time in effect. A notice of the Administrative Agent to any
Payment Recipient under this
clause (a)
(b) Without limiting immediately preceding
clause (a)
, each Lender or Secured Party,
or any Person who has received funds on behalf of a Lender or Secured Party such Lender,
hereby further agrees that if it receives a payment, prepayment or repayment (whether received
as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise)
from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or
on a different date from, that specified in a notice of payment, prepayment or repayment sent by
the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or
repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or
repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender or
Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in
error or by mistake (in whole or in part) in each case:
(i)
(A) in the case of immediately preceding
clauses (x)
(y)
, an error shall
be presumed to have been made (absent written confirmation from the Administrative
Agent to the contrary) or (B) an error has been made (in the case of immediately
preceding
clause (z)
), in each case, with respect to such payment, prepayment or
repayment; and
(ii)
such Lender or Secured Party shall (and shall cause any other recipient
that receives funds on its respective behalf to) promptly (and, in all events, within one
Business Day of its knowledge of such error) notify the Administrative Agent of its
receipt of such payment, prepayment or repayment, the details thereof (in reasonable
detail) and that it is so notifying the Administrative Agent pursuant to this
Section
9.17(b)
.
(c) Each Lender or Secured Party hereby authorizes the Administrative Agent to set
off, net and apply any and all amounts at any time owing to such Lender or Secured Party under
any Loan Document, or otherwise payable or distributable by the Administrative Agent to such
Lender or Secured Party from any source, against any amount due to the Administrative Agent
under immediately preceding
clause (a)
Agreement.
(d) In the event that an Erroneous Payment (or portion thereof) is not recovered by
the Administrative Agent for any reason, after demand therefor by the Administrative Agent in
accordance with immediately preceding
clause (a)
, from any Lender that has received such
Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such
Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an
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“
Erroneous Payment Return Deficiency
”), upon the Administrative Agent’s notice to such
Lender at any time,
(i)
such Lender shall be deemed to have assigned its Loans (but not its
Commitments) of the relevant class with respect to which such Erroneous Payment was
made (the “
Erroneous Payment Impacted Class
”) in an amount equal to the Erroneous
Payment Return Deficiency (or such lesser amount as the Administrative Agent may
specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment
Impacted Class, the “
Erroneous Payment Deficiency Assignment
”) at par plus any
accrued and unpaid interest (with the assignment fee to be waived by the Administrative
Agent in such instance), and is hereby (together with the Borrowers) deemed to execute
and deliver an Assignment and Acceptance (or, to the extent applicable, an agreement
incorporating an Assignment and Acceptance by reference pursuant to an Approved
Electronic Platform as to which the Administrative Agent and such parties are
participants) with respect to such Erroneous Payment Deficiency Assignment, and such
Lender shall deliver any Notes evidencing such Loans to the Borrowers or the
Administrative Agent,
(ii)
the Administrative Agent as the assignee Lender shall be deemed to
acquire the Erroneous Payment Deficiency Assignment,
(iii)
upon such deemed acquisition, the Administrative Agent as the assignee
Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous
Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as
applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment,
excluding, for the avoidance of doubt, its obligations under the indemnification
provisions of this Agreement and its applicable Commitments which shall survive as to
such assigning Lender and
(iv)
the Administrative Agent may reflect in the Register its ownership interest
in the Loans subject to the Erroneous Payment Deficiency Assignment.
The Administrative Agent may, in its discretion, sell any Loans acquired pursuant to an Erroneous
Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous
Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds
of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other
rights, remedies and claims against such Lender (and/or against any recipient that receives funds
on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency
Assignment will reduce the Commitments of any Lender and such Commitments shall remain
available in accordance with the terms of this Agreement. In addition, each party hereto agrees
that, except to the extent that the Administrative Agent has sold a Loan (or portion thereof)
acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether
the Administrative Agent may be equitably subrogated, the Administrative Agent shall be
contractually subrogated to all the rights and interests of the applicable Lender or Secured Party
under the Loan Documents with respect to each Erroneous Payment Return Deficiency (any such
Obligations to which the Administrative Agent has become a subrogee, the “
Erroneous Payment
Subrogation Obligations
”).
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(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay,
discharge or otherwise satisfy any Obligations owed by the Borrowers or any other Loan Party,
except, in each case, to the extent such Erroneous Payment is, and solely with respect to the
amount of such Erroneous Payment that is, comprised of funds received by the Administrative
Agent from the Borrowers or any other Loan Party for the purpose of making such Erroneous
Payment.
(f) To the extent permitted by applicable law, no Payment Recipient shall assert any
right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim,
counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or
counterclaim by the Administrative Agent for the return of any Erroneous Payment received,
including without limitation waiver of any defense based on “discharge for value” or any similar
doctrine.
(g) Neither the obligations of any party to this Agreement to the Administrative
Agent nor the remedies of the Administrative Agent (whether arising under this
Section 9.17
or
otherwise) which relate to an Erroneous Payment will be affected by any act, omission, matter or
thing which, but for this
paragraph (g)
, would reduce, release or prejudice any such obligation
or remedy (whether or not known by the Administrative Agent or any other party to this
Agreement). All payments to be made by a party to this Agreement to the Administrative Agent
(whether made pursuant to this
or otherwise) which relate to an Erroneous Payment
shall be calculated and be made without (and free and clear of any deduction for) set-off or
counterclaim.
(h) Each party’s obligations, agreements and waivers under this
Section 9.17
survive the resignation or replacement of the Administrative Agent, any transfer of rights or
obligations by, or the replacement of, a Lender,
the termination of the Commitments and/or the
repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan
Document.
ARTICLE 10.
GUARANTEE
Section 10.01. Guarantee
.
(a) Each of the Guarantors hereby, jointly and severally, unconditionally and
irrevocably,
(i)
guarantees to the Administrative Agent, for the ratable benefit of the
Secured Parties and their respective successors, endorsees, transferees and assigns, the
prompt and complete payment and performance by the Borrowers and each other Loan
Party when due (whether at the stated maturity, by acceleration or otherwise) of the
Obligations;
(ii)
undertakes to the Administrative Agent, for the ratable benefit of the
Secured Parties and their respective successors, endorsees, transferees and assigns that:
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(A)
whenever a Loan Party does not pay any amount when due under
or in connection with any Loan Document (or anything which would have been
due if the Loan Document or the amount was enforceable, valid and not illegal),
immediately on demand by the Administrative Agent, the Guarantor shall pay that
amount as if it was the principal obligor; and
(B)
if an Ipso Facto Event has occurred, then immediately on demand
by the Administrative Agent, the Guarantor shall pay all amounts referred to in
Section 8.02(a)(ii)
Each of
paragraph 10.01(a)(i)
,
10.01(a)(ii)(A)
10.01(a)(ii)(B)
obligation, None is limited by reference to the other.
(b) Anything herein or in any other Loan Document to the contrary notwithstanding,
the maximum liability of each Guarantor hereunder and under the other Loan Documents shall in
no event exceed the amount which can be guaranteed by such Guarantor under any applicable
Law relating to fraudulent conveyances, fraudulent transfers, or the insolvency of debtors (after
giving effect to the right of contribution established in
Section 10.02
).
(c) Each Guarantor agrees that the Obligations may at any time and from time to time
exceed the maximum amount of the liability of such Guarantor under
Section 10.01(b)
impairing the guarantee contained in this
Article 10
Secured Parties hereunder.
(d) The guarantee contained in this
Article 10
until all the Obligations (other than any contingent indemnification obligations not then due)
shall have been satisfied by payment in full, and the Commitments shall be terminated,
notwithstanding that from time to time during the term of the Agreement the Borrowers may be
free from any Borrower Obligations.
(e) No payment made by the Borrowers, any of the Guarantors, any other Guarantor
or any other Person or received or collected by any Secured Party from the Borrowers, any of the
Guarantors, any other Guarantor or any other Person by virtue of any action or proceeding or any
set-off or appropriation or application at any time or from time to time in reduction of or in
payment of the Obligations shall be deemed to reduce, release, modify or otherwise affect the
liability of any Guarantor hereunder which shall, notwithstanding any such payment (other than
any payment made by such Guarantor in respect of the Obligations or any payment received or
collected from such Guarantor in respect of the Obligations), remain liable for the Obligations up
to the maximum liability of such Guarantor hereunder until the Obligations (other than any
contingent indemnification obligations not then due) are paid in full and the Commitments are
terminated.
Section 10.02. Right of Contribution
.
Each Guarantor hereby agrees
that to the extent that a Guarantor shall have paid more than its proportionate share
of any payment made hereunder (including by way of set-off rights being exercised
against it), such Guarantor shall be entitled to seek and receive contribution from
and against any other Guarantor hereunder which has not paid its proportionate
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share of such payment. Each Guarantor’s right of contribution shall be subject to
the terms and conditions of
Section 10.03
. The provisions of this
Section 10.02
shall in no respect limit the obligations and liabilities of any Guarantor to the
Secured Parties, and each Guarantor shall remain jointly and severally liable to the
Secured Parties for the full amount guaranteed by such Guarantor hereunder.
Section 10.03. No Subrogation
.
Notwithstanding any payment made by
any Guarantor hereunder or any set-off or application of funds of any Guarantor by
any Secured Party, no Guarantor shall be entitled to be subrogated to any of the
rights of any Secured Party against the Borrowers or any Guarantor or any
collateral security or guarantee or right of offset held by any Secured Party for the
payment of the Obligations, nor shall any Guarantor seek or be entitled to seek any
contribution or reimbursement from the Borrowers or any other Guarantor in
respect of payments made by such Guarantor hereunder, until all amounts owing to
the Secured Parties by the Borrowers on account of the Obligations (other than any
contingent indemnification obligations not then due) are paid in full and the
Commitments are terminated. If any amount shall be paid to any Guarantor on
account of such subrogation rights at any time when all of the Obligations (other
than any contingent indemnification obligations not then due) shall not have been
paid in full, such amount shall be held by such Guarantor in trust for the Secured
Parties, segregated from other funds of such Guarantor, and shall, forthwith upon
receipt by such Guarantor, be turned over to the Administrative Agent in the exact
form received by such Guarantor (duly indorsed by such Guarantor to the
Administrative Agent, if required), to be applied against the Obligations, whether
matured or unmatured, in such order as the Administrative Agent may determine.
Section 10.04. Amendments, etc. with Respect to the Borrower
Obligations
.
Each Guarantor shall remain obligated hereunder notwithstanding
that, without any reservation of rights against any Guarantor and without notice to
or further assent by any Guarantor, any demand for payment of any of the
Obligations made by any Secured Party may be rescinded by such Secured Party
and any of the Borrower Obligations continued, and the Obligations, or the liability
of any other Person upon or for any part thereof, or any collateral security or
guarantee therefor or right of offset with respect thereto, may, from time to time, in
whole or in part, be renewed, extended, increased, amended, modified, accelerated,
compromised, waived, surrendered or released by any Secured Party, and this
Agreement and the other Loan Documents and any other documents executed and
delivered in connection therewith may be amended, modified, supplemented or
terminated, in whole or in part, as the Administrative Agent (or the Required
Lenders or all Lenders, as the case may be) may deem advisable from time to time,
and any collateral security, guarantee or right of offset at any time held by any
Secured Party for the payment of the Obligations may be sold, exchanged, waived,
surrendered or released. No Secured Party shall have any obligation to protect,
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secure, perfect or insure any Lien at any time held by it as security for the
Obligations or for the guarantee contained herein or any property subject thereto.
Section 10.05. Guarantee Absolute and Unconditional.
Each
Guarantor agrees that its obligations hereunder are irrevocable, absolute,
independent and unconditional and shall not be affected by any circumstance that
constitutes a legal or equitable discharge of a guarantor or a surety other than
payment in full of the Obligations. In furtherance of the foregoing and without
limiting the generality thereof, each Guarantor agrees as follows:
(a) The guarantee under this
Article 10
of collectability, and is a primary obligation of each Guarantor and not merely a contract of
surety.
(b) The Administrative Agent may enforce the guarantee under this
Article 10
the occurrence of an Event of Default notwithstanding the existence of any dispute between the
Borrowers and any Beneficiary with respect to the existence of such Event of Default.
(c) Each Guarantor waives any and all notice of the creation, renewal, extension or
accrual of any of the Obligations and notice of or proof of reliance by any Secured Party upon
the guarantee contained in this
Article 10
Article 10
.
(d) The Obligations, and any of them, shall conclusively be deemed to have been
created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon the
guarantee contained in this
Article 10
Guarantors, on the one hand, and the Secured Parties, on the other hand, likewise shall be
conclusively presumed to have been had or consummated in reliance upon the guarantee
contained in this
Article 10
.
(e) To the fullest extent permitted by applicable law, each Guarantor waives
diligence, presentment, protest, demand for payment and notice of default or nonpayment to or
upon the Borrowers or any of the Guarantors with respect to the Obligations.
(f) Each Guarantor understands and agrees that the guarantee contained in this
Article 10
and performance without regard to
(i)
the validity or enforceability of the Agreement or any other Loan
Document, any of the Obligations or any other collateral security therefor or guarantee or
right of offset with respect thereto at any time or from time to time held by any Secured
Party,
(ii)
any defense, set-off or counterclaim (other than a defense of payment or
performance) which may at any time be available to or be asserted by the Borrowers or
any other Person against any Secured Party,
152
(iii)
any acts of any legislative body or Governmental Authority affecting the
Borrowers, including but not limited to, any restrictions on the conversion of currency or
repatriation or control of funds or any total or partial expropriation of the Borrowers’
property, or by economic, political, regulatory or other events in the countries where the
Borrowers are located, or
(iv)
knowledge of the Borrowers or such Guarantor) which constitutes, or might be construed
to constitute, an equitable or legal discharge of the Borrowers for the Obligations, or of
such Guarantor under the guarantee contained in this, in bankruptcy or in any other
instance.
(g) When making any demand hereunder or otherwise pursuing its rights and
remedies hereunder against any Guarantor, any Secured Party may, but shall be under no
obligation to, make a similar demand on or otherwise pursue such rights and remedies as it may
have against the Borrowers, any other Guarantor or any other Person or against any collateral
security or guarantee for the Obligations or any right of offset with respect thereto, and any
failure by the Administrative Agent or any other Secured Party to make any such demand, to
pursue such other rights or remedies or to collect any payments from the Borrowers, any other
Guarantor or any other Person or to realize upon any such collateral security or guarantee or to
exercise any such right of offset, or any release of the Borrowers, any other Guarantor or any
other Person or any such collateral security or guarantee or right of offset, shall not relieve any
Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and
remedies, whether express, implied or available as a matter of law, of the Secured Parties against
any Guarantor. For the purposes hereof “demand” shall include the commencement and
continuance of any legal proceedings.
Section 10.06. Waiver by Guarantors
.
Each Guarantor hereby waives,
for the benefit of the Secured Parties:
(a) any right to require any Secured Party, as a condition of payment or performance
by such Guarantor, to
(i)
proceed against Borrowers, any other Guarantor of the Obligations or any
other Person,
(ii)
proceed against or exhaust any security held from Borrowers, any such
other Guarantor or any other Person,
(iii)
proceed against or have resort to any balance of any deposit account or
credit on the books of any Secured Party in favor of Borrowers or any other Person, or
(iv)
pursue any other remedy in the power of any Secured Party whatsoever;
(b) any defense arising by reason of the incapacity, lack of authority or any disability
or other defense of Borrowers or any other Guarantor including any defense based on or arising
out of the lack of validity or the unenforceability of the Obligations or any agreement or
153
instrument relating thereto or by reason of the cessation of the liability of Borrowers or any other
Guarantor from any cause other than payment in full of the Obligations;
(c) any defense based upon any statute or rule of law which provides that the
obligation of a surety must be neither larger in amount nor in other respects more burdensome
than that of the principal;
(d) any defense based upon any Secured Party’s errors or omissions in the
administration of the Obligations, except behavior which amounts to bad faith;
(e) (i) any principles or provisions of law, statutory or otherwise, which are or
might be in conflict with the terms hereof and any legal or equitable discharge of such
Guarantor’s obligations hereunder,
(ii) the benefit of any statute of limitations affecting such Guarantor’s liability
hereunder or the enforcement hereof,
(iii) any rights of set offs, recoupments and counterclaims, and
(iv) promptness, diligence and any requirement that any Secured Party protect,
secure, perfect or insure any security interest or lien or any property subject thereto;
(f) notices, demands, presentments, protests, notices of protest, notices of dishonor
and notices of any action or inaction, including the acceptance hereof, notices of default
hereunder, the Secured Hedge Agreements or any agreement or instrument related thereto or any
agreement or instrument related thereto, notices of any renewal, extension or modification of the
Obligations or any agreement related thereto, notices of extension of credit to Borrowers;
(g) any defenses or benefits that may be derived from or afforded by law which limit
the liability of or exonerate Guarantors or sureties, or which may conflict with the terms hereof;
(h) any defenses arising from the amendment of waiver of any term of the Loan
Documents;
(i) any defenses arising from failure to perfect any security granted over the
Collateral or any release of security over the Collateral;
(j) any law or regulation of any jurisdiction or any other event affecting any term of
the Loan Documents or the Obligations; and
(k) any other circumstances that might constitute a defense to the Guarantor.
Section 10.07. Releases
.
(a) At such time as the Obligations shall have been confirmed by the Administrative
Agent to have been paid in full (other than any contingent indemnification obligations not then
due), the Commitments have been terminated, all obligations (other than those expressly stated
to survive such termination) of each Guarantor hereunder shall terminate, all without delivery of
154
any instrument or performance of any act by any party. At the request and sole expense of any
Guarantor following any such termination, the Administrative Agent shall execute and deliver to
such Guarantor such documents as such Guarantor shall reasonably request to evidence such
termination.
(b) A Guarantor shall automatically be released from its obligations hereunder and
the Guarantee of such Guarantor shall automatically be released
(i)
upon the consummation of any transaction or related series of transaction
permitted hereunder if as a result thereof such Guarantor shall cease to be a Subsidiary
(or becomes an Excluded Subsidiary);
provided
, that a Guarantor shall not be released
until Holdings delivers an updated Borrowing Base Certificate in form and substance
satisfactory to the Administrative Agent demonstrating, after giving effect to such release
(including any prepayment or repayment of the Loans), that the Total Outstandings do
not exceed the Maximum Revolving Credit or
(ii)
upon the repayment in full in cash of all of the Obligations (other than any
contingent indemnification obligations not then due), as confirmed in writing by the
Administrative Agent, and the termination of the Commitments.
In connection with any such release, the Administrative Agent shall promptly execute and deliver
to any Guarantor, at such Guarantor’s expense, all documents that such Guarantor shall reasonably
request to evidence termination or release. Any execution and delivery of documents pursuant to
the preceding sentence of this
Section 10.07(b)
Administrative Agent (other than as to the Administrative Agent’s authority to execute and deliver
such documents).
Section 10.08. Subordination of Other Obligations.
of the Borrowers or any Guarantor held as of the Amendment and Restatement
Effective Date or thereafter by any Guarantor (the “
Obligee Guarantor
”) is hereby
subordinated in right of payment to the Obligations, and any such indebtedness
collected or received by the Obligee Guarantor after an Event of Default has
occurred and is continuing shall be held in trust for the Administrative Agent on
behalf the Beneficiaries and shall forthwith be paid over to the Administrative
Agent for the benefit of the Beneficiaries to be credited and applied against the
Obligations but without affecting, impairing or limiting in any manner the liability
of the Obligee Guarantor under any other provision hereof.
Section 10.09. Authority of Guarantors or Borrowers.
necessary for any Beneficiary to inquire into the capacity or powers of any
Guarantor or Borrowers or the officers, directors or agents acting or purporting to
act on behalf of any of them.
Section 10.10. Financial Condition of Borrowers.
be made to the Borrowers or continued from time to time, without notice to or
authorization from any Guarantor regardless of the financial or other condition of
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Borrowers at the time of such grant or continuation. No Beneficiary shall have any
obligation to disclose or discuss with any Guarantor its assessment, or any
Guarantor’s assessment, of the financial condition of the Borrowers. Each
Guarantor has adequate means to obtain information from the Borrowers on a
continuing basis concerning the financial condition of the Borrowers and its ability
to perform its obligations under the Loan Documents, and each Guarantor assumes
the responsibility for being and keeping informed of the financial condition of the
Borrowers and all circumstances bearing upon the risk of nonpayment of the
Obligations. Each Guarantor hereby waives and relinquishes any duty on the part
of any Beneficiary to disclose any matter, fact or thing relating to the business,
operations or conditions of the Borrowers known as of the Amendment and
Restatement Effective Date or thereafter known by any Beneficiary.
Section 10.11. Taxes and Payments.
Section 3.01(a)
-
(e)
mutatis mutandis
Section 10.12. Assignments.
Administrative Agent or any Lender may assign or otherwise transfer all or any
portion of its rights and obligations under this Agreement (including, without
limitation, all or any portion of its Commitments, the Loans owing to it) and such
assignee, transferee or participant shall thereupon become vested with all the
benefits in respect thereof granted to such party herein or otherwise, in each case as
and to the extent provided in
Section 11.07
. No Guarantor shall have the right to
assign its rights hereunder or any interest herein except in accordance with
Section
11.07
.
Section 10.13. Reinstatement.
payment made by the Borrowers or any other Person and applied to the Obligations
is at any time annulled, avoided, set aside, rescinded, invalidated, declared to be
fraudulent or preferential or otherwise required to be refunded or repaid, or (b) the
proceeds of Collateral are required to be returned by any Beneficiary to the
Borrowers or its estate, trustee, receiver or any other Party including any Guarantor
or its estate, trustee, or receiver under any requirement of Law, then, to the extent of
such payment or repayment, any such Guarantors liability hereunder shall be and
remain in full force and effect, as fully as if such payment had never been made. If,
prior to any of the foregoing, the guarantee under this
Article 10
cancelled or surrendered (and, if any Lien or other Collateral securing such
Guarantor’s liability hereunder shall have been released or terminated by virtue of
such cancellation or surrender), the guarantee under this
Article 10
or other Collateral) shall be reinstated in full force and effect, and such prior
cancellation or surrender shall not diminish, release, discharge, impair or otherwise
156
affect the obligations of any such Guarantor in respect of the amount of such
payment (or any lien or other Collateral securing such obligation).
Section 10.14. Keepwell.
and severally absolutely, unconditionally and irrevocably undertakes to provide
such funds or other support as may be needed from time to time by each other
Loan Party to honor all of its obligations under this Guarantee in respect of Swap
Contracts (
provided
,
however
, that each Qualified ECP Guarantor
shall only be
liable under this
Section 10.14
for the maximum amount of such liability that can
be hereby incurred without rendering its obligations under this
Section 10.14
, or
otherwise under this Guarantee, voidable under applicable law relating to fraudulent
conveyance or fraudulent transfer, and not for any greater amount). The obligations
of each Qualified ECP Guarantor under this
Section 10.14
shall remain in full
force and effect until the Obligations have been paid in full and the Commitments
have been terminated. Each Qualified ECP Guarantor intends that this
Section
10.14
constitute, and this
Section 10.14
shall be deemed to constitute, a
“keepwell, support, or other agreement” for the benefit of each Loan Party for all
purposes of Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.
ARTICLE 11.
MISCELLANEOUS
Section 11.01. Amendments and waivers
(a)
Required consents:
(i)
Subject to
Section 11.01(b)
Documents may be amended or waived only with the consent of the Required Lenders
and the Borrowers and any such amendment or waiver will be binding on all parties.
(ii)
The Administrative Agent may effect, on behalf of any Loan Party, any
amendment or waiver permitted by this
Section 11.01
.
(b)
All-Lender matters:
Subject to
Section 11.01(c)
amendment or waiver of any term of any Loan Document that has the effect of changing or
which relates to:
(i)
the definition of “Required Lenders”;
(ii)
a waiver of any of the conditions precedent under
Article 4
;
(iii)
an extension to the date of payment of any amount under the Loan
Documents;
(iv)
a reduction in the Applicable Rate or Make-Whole Premium or a
reduction in the amount of any payment of principal, interest, fees or commission
payable;
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(v)
an increase in any Commitment, an extension of the Availability Period, a
change to a sublimit, or any requirement that a cancellation of Commitments reduces the
Commitments of the Lenders rateably under the Facility;
(vi)
a change to the Loan Parties other than in accordance with the terms of
this Agreement;
(vii)
the definition of “Borrowing Base”, “Borrowing Base Collateral”,
“Availability” or “Maximum Revolving Credit”;
(viii)
any provision which expressly requires the consent of all the Lenders;
(ix)
Section 2.02
Section 3.02
Section 8.03
(Application of Funds),
Section 8.05
Section 11.01
and waivers) and
Section 11.15
(Governing Law; Jurisdiction; Etc);
(x)
(other than as expressly permitted by the provisions of this Agreement or
the Security Trust Deed):
(A)
the nature or scope of the Collateral Documents or the nature or
scope of the guarantee and indemnity granted under
Article 10
(B)
the Collateral; or
(C)
the manner in which the proceeds of enforcement of the Collateral
Documents are distributed; or
(xi)
the release of any guarantee and indemnity granted under
Article 10
(Guarantee) or of any Collateral Documents unless permitted under this Agreement or the
Security Trust Deed or relating to a disposal of an asset which is the subject of the
Collateral Document, or of the grantor of the guarantee and indemnity or Collateral
Document or of the grantor’s Holding Company, where such disposal is permitted under
this Agreement or the Security Trust Deed or relating to a disposal of an asset which is
the subject of the Collateral Document, or of the grantor of the guarantee and indemnity
or Collateral Document or of the grantor’s Holding Company, where such disposal is
permitted under this Agreement,
shall not be made without the prior consent of all the Lenders.
(c)
Other exceptions:
(i)
An amendment or waiver which relates to the rights or obligations of the
Administrative Agent or the Collateral Agent (each in their capacity as such) may not be
effected without the consent of the Administrative Agent or, as the case may be, the
Collateral Agent.
(ii)
Any Fee Letter may be amended, or rights or privileges thereunder
waived, in a writing executed only by the parties thereto.
158
(iii)
Notwithstanding the foregoing, no Lender consent is required to effect any
amendment or supplement to the ABL Intercreditor Agreement, the Stanwell
Intercreditor Agreement or other intercreditor agreement or arrangement permitted under
this Agreement that is for the purpose of adding the holders of any other Indebtedness
and Liens permitted hereunder to be secured by a Lien on Collateral, as expressly
contemplated by the terms of such ABL Intercreditor Agreement, the Stanwell
Intercreditor Agreement or such other intercreditor agreement or arrangement permitted
under this Agreement, as applicable (it being understood that any such amendment or
supplement may make such other changes to the applicable intercreditor agreement as, in
the good faith determination of the Administrative Agent, are required to effectuate the
foregoing).
Section 11.02. [Reserved]
Section 11.03. Notices; Effectiveness; Electronic Communications
.
(a)
Notices Generally
. Except in the case of notices and other communications
expressly permitted to be given by telephone (and except as provided in
subsection (b)
all notices and other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or registered mail as follows,
and all notices and other communications expressly permitted hereunder to be given by
telephone shall be made to the applicable telephone number, as follows:
(i)
if to the Borrowers or the Administrative Agent, to the address, electronic
mail address or telephone number specified for such Person on
Schedule 11.02
other address or number as the Borrowers or the Administrative Agent may from time to
time notify to each other party); and
(ii)
if to any other Lender, to the address, electronic mail address or telephone
number specified in its Administrative Questionnaire.
Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall
be deemed to have been given when received (except that, if not given during normal business
hours for the recipient, shall be deemed to have been given at the opening of business on the next
business day for the recipient). Notices delivered through electronic communications to the extent
provided in
subsection (b)
subsection (b)
.
(b)
Electronic Communications
. Notices and other communications to the Lenders
hereunder may be delivered or furnished by electronic communication (including e-mail and
Internet or intranet websites) pursuant to procedures approved by the Administrative Agent,
provided
, that the foregoing shall not apply to notices to any Lender pursuant to
Article 2
Lenderhas notified the Administrative Agent that it is incapable of receiving notices under such
Article by electronic communication. The Administrative Agent or the Borrowers may, in their
discretion, agree to accept notices and other communications to it hereunder by electronic
communications pursuant to procedures approved by it,
provided
, that approval of such
procedures may be limited to particular notices or communications.
Unless the Administrative Agent otherwise prescribes,
159
(i)
notices and other communications sent to the Lenders to an e-mail address
shall be deemed received upon the sender’s receipt of an acknowledgement from the
intended recipient (such as by the “return receipt requested” function, as available, return
e-mail or other written acknowledgement),
provided
, that if such notice or other
communication is not sent during the normal business hours of the recipient, such notice
or communication shall be deemed to have been sent at the opening of business on the
next business day for the recipient, and
(ii)
notices or communications posted to an Internet or intranet website shall
be deemed received upon the deemed receipt by the intended recipient at its e-mail
address as described in the foregoing
clause (i)
communication is available and identifying the website address therefor.
(c)
Approved Electronic Platform
. THE APPROVED ELECTRONIC
PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT PARTIES (AS
DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF
THE BORROWER MATERIALS OR THE ADEQUACY OF THE APPROVED
ELECTRONIC PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN
OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY
KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT
OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE
DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE
BORROWER MATERIALS OR THE APPROVED ELECTRONIC PLATFORM. In no event
shall the Administrative Agent or any of its Related Parties (collectively, the “Agent Parties”)
have any liability to the Borrowers, any Lender or any other Person for losses, claims, damages,
liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of the
Borrowers’ or the Administrative Agent’s transmission of Borrower Materials through the
Internet, except to the extent that such losses, claims, damages, liabilities or expenses have
resulted from the gross negligence or willful misconduct of such Agent Party as determined by a
court of competent jurisdiction in a final, non-appealable judgment; provided, however, that in
no event shall the Agent Party have any liability to the Borrowers, any Lender or any other
Person for indirect, special, incidental, consequential or punitive damages (as opposed to direct
or actual damages).
(d)
Change of Address, Etc
. Each of the Borrowers and the Administrative Agent
may change its address or telephone number for notices and other communications hereunder by
notice to the other parties hereto. Each other Lender may change its address or telephone
number for notices and other communications hereunder by notice to the Borrowers and the
Administrative Agent. In addition, each Lender agrees to notify the Administrative Agent from
time to time to ensure that the Administrative Agent has on record (i) an effective address,
contact name, telephone number and electronic mail address to which notices and other
communications may be sent and (ii) accurate wire instructions for such Lender.
(e)
Reliance by Administrative Agent and Lenders
. The Administrative Agent
and the Lenders shall be entitled to rely and act upon any notices purportedly given by or on
behalf of the Borrowers even if (i) such notices were not made in a manner specified herein,
160
were incomplete or were not preceded or followed by any other form of notice specified herein,
or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof.
All telephonic notices to and other telephonic communications with the Administrative Agent
may be recorded by the Administrative Agent, and each of the parties hereto hereby consents to
such recording.
Section 11.04. No Waiver; Cumulative Remedies
.
None of the Secured
Parties shall by any act (except by a written instrument pursuant to
Section 11.01
),
delay, indulgence, omission or otherwise be deemed to have waived any right or
remedy hereunder or to have acquiesced in any Default or Event of Default. No
failure by any Lender or the Administrative Agent to exercise, and no delay by any
such Person in exercising, any right, remedy, power or privilege hereunder or under
any other Loan Document shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, remedy, power or privilege hereunder preclude any
other or further exercise thereof or the exercise of any other right, remedy, power or
privilege. A waiver by any Secured Party of any right or remedy hereunder on any
one occasion shall not be construed as a bar to any right or remedy which such
Secured Party would otherwise have on any future occasion. The rights, remedies,
powers and privileges herein provided, and provided under each other Loan
Document, are cumulative and not exclusive of any rights, remedies, powers and
privileges provided by law.
Section 11.05. Expenses; Indemnity; Damage Waiver
.
(a)
Costs and Expenses
. The Borrowers shall pay within 3 Business Days of
demand:
(i)
all reasonable and documented out-of-pocket expenses incurred by the
Administrative Agent, the Lenders, and their Affiliates (including the reasonable and
documented fees, charges and disbursements of counsel, financial advisor and industry
advisors for the Administrative Agent), in connection with the Facility (whether or not
the Amendment and Restatement Effective Date or first Utilisation Date occurs),
including, without limitation, internal per diem field examination costs, syndication of the
Facility, closing and due diligence costs and costs in connection with the preparation,
negotiation, execution, delivery, administration and enforcement of this Agreement and
the other Loan Documents or any amendments, modifications or waivers of the
provisions hereof or thereof (whether or not the transactions contemplated hereby or
thereby shall be consummated),
(ii)
all reasonable and documented out-of-pocket expenses incurred by the
Administrative Agent or any Lender, including the reasonable and documented fees,
charges and disbursements of any
(A)
one primary counsel, one local for counsel for each relevant
jurisdiction (which may include a single counsel acting for multiple jurisdictions)
and, to the extent necessary or appropriate, one specialist counsel for each
applicable specialty for the Administrative Agent or any Lender,
161
(B)
in the case of an actual or perceived conflict of interest, one
additional primary counsel, one additional local counsel for all such Persons taken
as a whole in each relevant jurisdiction (which may include a single counsel
acting for multiple jurisdictions) and, to the extent necessary or appropriate, one
additional specialist counsel for each applicable specialty, in each case, for the
similarly affected Persons taken as a whole, and
(C)
one financial advisor, to the extent necessary and appropriate,
regardless of whether any of the transactions contemplated hereby is consummated or in
connection with the enforcement or protection of its rights
(D)
in connection with this Agreement and the other Loan Documents,
including its rights under this
Section 11.05
, or
(E)
in connection with the Loans made hereunder, including all such
all reasonable and documented out-of-pocket expenses incurred during any
workout, restructuring or negotiations in respect of such Loans.
Each Guarantor agrees to pay or reimburse each Secured Party within 3 Business Days of demand
for all its reasonable and documented out-of-pocket expenses incurred in collecting against such
Guarantor under the guarantee contained in
Article 10
rights under this Agreement and the other Loan Documents to which such Guarantor is a party,
including, without limitation, the fees and disbursements of counsel to each Secured Party and of
counsel to the Administrative Agent.
(b)
Indemnification by the Loan Parties
. The Borrowers and each Guarantor shall,
within 3 Business Days of demand, indemnify the Administrative Agent (and any sub-agent
thereof), each Lender, and each of their Related Party of any of the foregoing Persons (each such
Person being called an “
Indemnitee
”) against, and hold each Indemnitee harmless from, any and
all losses, claims, damages, liabilities, costs and expenses (including, without limitation, the
reasonable and documented out-of-pocket fees, charges and disbursements of any counsel for
any Indemnitee on a full indemnity basis), incurred by any Indemnitee or asserted by or against
any Indemnitee by any third party or by or against the Borrowers or any other Loan Party arising
out of, in connection with, or as a result of:
(i)
the execution or delivery of this Agreement, any other Loan Document or
any agreement or instrument contemplated hereby or thereby, the performance by the
parties hereto of their respective obligations hereunder or thereunder or the
consummation of the transactions contemplated hereby or thereby, or, in the case of the
Administrative Agent (and any sub-agent thereof) and its Related Parties only, the
administration of this Agreement and the other Loan Documents,
(ii)
any Loan or the use or proposed use of the proceeds therefrom,
(iii)
the occurrence of any Default,
162
(iv)
a failure by an Loan Party to pay any amount due under a Loan Document
on its due date,
(v)
funding, or making arrangements to fund, its participation in a Loan
requested by a Borrower in a Borrowing Notice 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 Indemnitee alone),
(vi)
a Loan (or part of a Loan) not being prepaid in accordance with a notice of
prepayment given by a Borrower,
(vii)
any actual or alleged presence or release of Hazardous Materials at, on,
under or from any property currently or formerly owned or operated by the Borrowers or
any of their respective Subsidiaries, or any Environmental Liability related in any way to
the Borrowers or any of their respective Subsidiaries, or
(viii)
any actual or prospective claim, actions, suits, inquiries, litigation,
investigation or proceeding relating to any of the foregoing (each, a “
Proceeding
”) or the
preparation of any defense in connection therewith, in each case, arising out of or in
connection with or by reason of this Agreement, the Loan Documents or the transactions
contemplated hereby or thereby, or any actual or proposed use of the proceeds of the
Facility, whether based on contract, tort or any other theory, whether brought by or
against a third party or by or against the Borrowers or any other Loan Party, and
regardless of whether any Indemnitee is a party thereto (all of the foregoing, collectively,
the “
Indemnified Liabilities
”);
provided
, that such indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities or related expenses
(ix)
have resulted from the gross negligence or willful misconduct of such
Indemnitee as determined by a court of competent jurisdiction in a final, non-appealable
judgment,
(x)
other than in respect of the Administrative Agent or Collateral Agent
(including, in its capacity as the Australian Security Trustee) in its capacity as such, have
resulted from a material breach of such Indemnitee’s obligations under this Agreement or
other Loan Documents as determined by a court of competent jurisdiction in a final, non-
appealable judgment, or
(xi)
arises out of any Proceeding that does not involve an act or omission of
the Loan Parties or any of its respective Affiliates and that is brought by an Indemnitee
against any other Indemnitee (other than any Proceeding against the Collateral Agent or
the Administrative Agent solely in their respective capacities or in fulfilling their
respective roles as Collateral Agent, Administrative Agent or similar role under the
Facility),
provided
further
, that the Loan Parties shall not be required to reimburse the legal fees and
expenses of more than
163
(xii)
one primary counsel, one local for counsel for each relevant jurisdiction
(which may include a single counsel acting for multiple jurisdictions) and, to the extent
necessary or appropriate, one specialist counsel for each applicable specialty for the
Administrative Agent or any Lender,
(xiii)
in the case of an actual or perceived conflict of interest, one additional
primary counsel, one additional local counsel in each relevant jurisdiction (which may
include a single counsel acting for multiple jurisdictions) and, to the extent necessary or
appropriate, one additional specialist counsel for each applicable specialty, in each case,
for the similarly affected Persons taken as a whole, and
(xiv)
one financial advisor, to the extent necessary and appropriate.
In the case of any Proceeding to which the indemnity in this paragraph applies, such indemnity
shall be effective, whether or not such Proceeding is brought by or against any Borrower, any of
its directors, security holders or creditors, an Indemnitee or any other person, or an Indemnitee is
otherwise a party thereto and whether or not the transactions contemplated hereby are
consummated. Notwithstanding any other provision in this Agreement or any other Loan
Document, no Indemnitee shall be liable for any indirect, special, punitive or consequential
damages (including, without limitation, any loss of profits, business or anticipated savings) in
connection with its activities related to this Agreement, the other Loan Documents or the
transactions contemplated hereby or thereby;
provided
consequential or punitive damages shall not limit the indemnification obligations of the Borrower
under this
Section 11.05(b)
.
No Loan Party shall, without the prior written consent of any affected Indemnitee, effect
any settlement of any pending or threatened proceedings in respect of which indemnity could have
been sought hereunder by such Indemnitee unless such settlement (i) includes an unconditional
release of such Indemnitee from all liability or claims that are the subject matter of such
proceedings and (ii) does not include any statement as to or any admission of fault, culpability,
wrongdoing or a failure to act by or on behalf of any Indemnitee.
Each Borrower acknowledges that information and other materials relative to the Facility
and the transactions contemplated hereby may be transmitted through the Approved Electronic
Platform. No Indemnitee will be liable to any Borrower or any of its affiliates or any of their
respective security holders or creditors for any damages arising from the use by unauthorized
persons of information or other materials sent through the Approved Electronic Platform that are
intercepted by such persons.
(c)
Reimbursement by Lenders
.
Each Lender severally agrees to pay to the Administrative Agent (or any such sub-agent)
or such Related Party, as the case may be, such Lender’s pro rata share (based on the Loans and
unused Commitments held by such Lender relative to the total Loans and unused Commitments
then outstanding) of such unpaid amount,
provided
, that the unreimbursed expense or indemnified
loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent (or any such sub-agent) in its capacity as such, or against any
164
Related Party of any of the foregoing acting for the Administrative Agent (or any such sub-agent)
in connection with such capacity. The obligations of the Lenders under this
subsection (c)
subject to the provisions of
Section 2.16(d)
.
(d)
Waiver of Consequential Damages, Etc
. To the fullest extent permitted by
applicable law, the Borrowers shall not assert, and hereby waives, any claim against any
Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as
opposed to direct or actual damages) arising out of, in connection with, or as a result of, this
Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the
transactions contemplated hereby or thereby, any Loan or the use of the proceeds thereof. No
Indemnitee referred to in
subsection (b)
use by unintended recipients of any information or other materials distributed by it through
telecommunications, electronic or other information transmission systems in connection with this
Agreement or the other Loan Documents or the transactions contemplated hereby or thereby,
except to the extent such damages result from the gross negligence or willful misconduct of such
Indemnitee, in each case, as determined by the final nonappealable judgment of a court of
competent jurisdiction.
(e)
Payments
. All amounts due under this
Section 11.05
than 10 Business Days after demand therefor.
(f)
Administrative Agent’s management time.
Any amount payable to the
Administrative Agent under
Section 9.07
Section 11.05
shall include the cost of
utilising the Administrative Agent’s management time or other resources and will be calculated
on the basis of such reasonable daily or hourly rates as the Administrative Agent may notify to
the Borrowers and the Lenders, and is in addition to any fee paid or payable to the
Administrative Agent under
Section 2.13.
(g)
Survival
. The agreements in this
Section 11.05
the Administrative Agent, the replacement of any Lender, the termination of the aggregate
Commitments and the repayment, satisfaction or discharge of all the other Obligations.
Section 11.06. Payments Set Aside
.
To the extent that any payment by
or on behalf of the Borrowers is made to the Administrative Agent or any Lender,
or the Administrative Agent or any Lender exercises its right of setoff, and such
payment or the proceeds of such setoff or any part thereof is subsequently
invalidated, declared to be fraudulent or preferential, set aside or required
(including pursuant to any settlement entered into by the Administrative Agent or
such Lender in its discretion) to be repaid to a trustee, receiver or any other party, in
connection with any proceeding under any Debtor Relief Law or otherwise, then
(a) to the extent of such recovery, the obligation or part thereof originally intended to
be satisfied shall be revived and continued in full force and effect as if such payment had not
been made or such setoff had not occurred, and
(b) each Lender severally agrees to pay to the Administrative Agent upon demand its
applicable share (without duplication) of any amount so recovered from or repaid by the
165
Administrative Agent,
plus
payment is made at a rate per annum equal to the Overnight Rate from time to time in effect.
The obligations of the Lenders under
clause (b)
payment in full of the Obligations and the termination of this Agreement.
Section 11.07. Successors and Assigns
.
(a)
Successors and Assigns Generally
. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby, except that no Loan Party may assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent of the Administrative Agent and
each Lender, and no Lender may assign or otherwise transfer any of its rights or obligations
hereunder except
(i)
to an Eligible Assignee in accordance with the provisions of
Section
11.07(b)
,
(ii)
by way of participation in accordance with the provisions of
Section
11.07(d)
, or
(iii)
by way of pledge or assignment of a security interest subject to the
restrictions of
Section 11.07(f)
.
Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person
(other than the parties hereto, their respective successors and assigns permitted hereby, Participants
to the extent provided in
subsection (d)
hereby, the Related Parties of each of the Administrative Agent and the Lenders) any legal or
equitable right, remedy or claim under or by reason of this Agreement.
(b)
Assignments by Lenders
.
(i)
Any Lender may at any time assign to one or more Eligible Assignees all
or a portion of its rights and obligations under this Agreement (including all or a portion
of its Commitments and the Loans at the time owing to it),
provided
, that:
(A)
except in the case of an assignment of the entire remaining
amount of the assigning Lender’s Commitment and the Loans at the time owing
to it, the aggregate amount of the Commitment (which for this purpose includes
Loans outstanding thereunder) or, if the Commitment is not then in effect, the
principal outstanding balance of the Loans of the assigning Lender subject to each
such assignment, determined as of the date the Assignment and Acceptance with
respect to such assignment is delivered to the Administrative Agent or, if “Trade
Date” is specified in the Assignment and Acceptance, as of such “Trade Date”,
shall not be less than $5,000,000;
166
(B)
each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender’s rights and obligations under this
Agreement with respect to the Loans or the Commitment assigned;
(C)
the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Acceptance, together with a processing
and recordation fee in the amount of $3,500;
provided
,
however
, that the
Administrative Agent may, in its sole discretion, elect to waive such processing
and recordation fee in the case of any assignment;
(D)
each party to an assignment appoints the Administrative Agent to
act as its agent to execute an Australian Recognition Certificate on its behalf,
ratifies that execution, and agrees it is therefore bound as set out in the Australian
Recognition Certificate by the terms set out in the Australian Security Trust Deed;
and
(E)
an assignment will only be effective on completion by the
Administrative Agent of all necessary “know your customer” or other similar
checks under all applicable laws and regulations in relation to such assignment
and on receipt by the Administrative Agent of confirmation from the Australian
Security Trustee that the Australian Security Trustee has performed all necessary
“know your customer” or other similar checks under all applicable laws and
regulations in relation to such assignment (the receipt of which the Administrative
Agent shall promptly notify to the parties to the assignment) and the new Lender
has become bound by an Australian Recognition Certificate.
(ii)
The Eligible Assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire.
Subject to acceptance and recording thereof by the Administrative Agent pursuant to
subsection (c)
Acceptance, the Eligible Assignee thereunder shall be a party to this Agreement and, to the extent
of the interest assigned by such Assignment and Acceptance, have the rights and obligations of a
Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Acceptance, be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance covering all of the assigning
Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto)
but shall continue to be entitled to the benefits of
Sections 3.01,
3.04
,
3.07
11.05
to facts and circumstances occurring prior to the effective date of such assignment. Any
assignment or transfer by a Lender of rights or obligations under this Agreement that does not
comply with this subsection shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with
Section 11.07(d)
.
(c)
Register
. The Administrative Agent, acting solely for this purpose as a non-
fiduciary agent of the Borrowers, shall maintain at the Administrative Agent’s Office a copy of
each Assignment and Acceptance delivered to it and a register for the recordation of the names
and addresses of the Lenders, and the Commitments of, and principal amounts (and stated
167
interest) of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the
“
Register
”). The entries in the Register shall be conclusive absent manifest error, and the
Borrowers, the Administrative Agent and the Lenders shall treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of
this Agreement, notwithstanding notice to the contrary. The Register shall be available for
inspection by the Borrowers, at any reasonable time and from time to time upon reasonable prior
notice.
(d)
Participations
.
(i)
Any Lender may at any time, without the consent of, or notice to, the
Borrowers or the Administrative Agent, sell participations to any Person (other than a
natural person or the Borrowers or any of the Borrowers’ Affiliates or Subsidiaries)
(each, a “
Participant
”) in all or a portion of such Lender’s rights and/or obligations under
this Agreement (including all or a portion of its Commitment and/or the Loans owing to
it);
provided
, that
(A)
such Lender’s obligations under this Agreement shall remain
unchanged,
(B)
such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and
(C)
the Borrowers, the Administrative Agent, the Lenders shall
continue to deal solely and directly with such Lender in connection with such
Lender’s rights and obligations under this Agreement.
Any agreement or instrument pursuant to which a Lender sells such a participation shall
provide that such Lender shall retain the sole right to enforce this Agreement and to
approve any amendment, modification or waiver of any provision of this Agreement;
provided
, that such agreement or instrument may provide that such Lender will not, without
the consent of the Participant, agree to any amendment, waiver or other modification
described in
Section 11.01(b)
subsection (e)
this Section, the Borrowers agree that each Participant shall be entitled to the benefits of
Sections 3.01,
Section 3.04
3.07
acquired its interest by assignment;
provided
,
further
, that in the case of
Section 3.01
, such
Participant shall have complied with the requirements of such section (it being understood
that the documentation required under
Section 3.01
Lender). To the extent permitted by law, each Participant also shall be entitled to the
benefits of
Section 10.07
provided
be subject to
Section 2.17
agrees, at the Borrowers’ request and expense, to use reasonable efforts to cooperate with
the Borrowers to effectuate the provisions of
Section 11.14
with respect to any Participant.
(ii)
Each Lender that sells a participation shall, acting solely for this purpose
as a non-fiduciary agent of the Borrowers, maintain a register on which it enters the name
and address of each Participant and the principal amounts (and stated interest) of each
168
Participant’s interest in the Loans or other obligations under the Loan Documents (the
“
Participant Register
”);
provided
or any portion of the Participant Register (including the identity of any Participant or any
information relating to a Participant’s interest in any commitments, loans, letters of
credit, bank guarantees or its other obligations under any Loan Document) to any Person
except to the extent that such disclosure is necessary to establish that such commitment,
loan, letter of credit, bank guarantee or other obligation is in registered form under
Section 5f.103-1(c) or Proposed Section 1.163-5(b) of the U.S. Treasury Regulations (or,
in each case, any amended or successor version). The entries in the Participant Register
shall be conclusive absent manifest error, and such Lender shall treat each Person whose
name is recorded in the Participant Register as the owner of such participation for all
purposes of this Agreement notwithstanding any notice to the contrary. For the
avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent)
shall have no responsibility for maintaining a Participant Register.
(e)
Limitations upon Participant Rights
. A Participant shall not be entitled to
receive any greater payment under
Section 3.01
,
Section 3.04
Section 3.07
applicable Lender would have been entitled to receive with respect to the participation sold to
such Participant, unless the sale of the participation to such Participant is made with Holding’s
prior written consent or such entitlement to receive a greater payment results from a Change in
Law that occurs after the Participant acquired the applicable participation.
(f)
Certain Pledges
. Any Lender may at any time pledge or assign to any Person a
security interest in all or any portion of its rights under this Agreement (including under its Note,
if any) to secure obligations of such Lender, including any pledge or assignment to secure
obligations to a Federal Reserve Bank or other central bank;
provided
, that no such pledge or
assignment shall release such Lender from any of its obligations hereunder or substitute any such
pledgee or assignee for such Lender as a party hereto.
(g)
Electronic Execution of Assignments
. The words “execution,” “signed,”
“signature,” and words of like import in any Assignment and Acceptance shall be deemed to
include electronic signatures or the keeping of records in electronic form, each of which shall be
of the same legal effect, validity or enforceability as a manually executed signature or the use of
a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any
applicable law, including the Federal Electronic Signatures in Global and National Commerce
Act, the New York State Electronic Signatures and Records Act, or any other similar state Laws
based on the Uniform Electronic Transactions Act.
Section 11.08. Treatment of Certain Information; Confidentiality
.
Each of the Administrative Agent and, the Lenders agrees to maintain the
confidentiality of the Information (as defined below), except that Information may
be disclosed
(a) on a need-to-know basis to its Affiliates and to its and its Affiliates’ respective
partners, directors, officers, employees, agents, counsel, independent auditors, professionals and
other experts, advisors and representatives (it being understood that the Persons to whom such
169
disclosure is made will be informed of the confidential nature of such Information and instructed
to keep such Information confidential),
(b) to the extent requested by any regulatory authority purporting to have jurisdiction
over it (including any self-regulatory authority, such as the National Association of Insurance
Commissioners),
(c) to the extent required by applicable Laws or regulations or by any subpoena,
compulsory legal process or similar legal process,
(d) to any other party hereto,
(e) in connection with the exercise of any remedies hereunder or under any other
Loan Document or any action or proceeding relating to this Agreement or any other Loan
Document or the enforcement of rights hereunder or thereunder,
(f) subject to an agreement containing provisions substantially the same as those of
this
Section 11.08
(i)
any assignee of or Participant in, or any prospective assignee of or
Participant in, any of its rights or obligations under this Agreement or any Eligible
Assignee invited to be a Lender pursuant to
Section 11.07
(ii)
any actual or prospective counterparty (or its advisors) to any swap or
derivative transaction relating to the Borrowers and their obligations,
(g) with the consent of Holdings,
(h) to the extent such Information becomes publicly available other than as a result of
a breach of this
Section 11.08
,
(i) to any rating agencies, or
(j) any proxy relating to transactions contemplated hereby.
In addition, each of the Administrative Agent and the Lenders may disclose the existence of this
Agreement and the information about the Facility to market data collectors, similar services
providers to the lending industry, and service providers to the Administrative Agent and the
Lenders in connection with the administration and management of the Facility.
For purposes of this
Section 11.08
, “
Information
” means all information received from
the Borrowers or any of their Subsidiary relating to the Borrowers or any of their Subsidiary or
any of their respective businesses, other than any such information that is available to the
Administrative Agent or any Lender on a nonconfidential basis prior to disclosure by the
Borrowers or any Subsidiary,
provided
, that in the case of information received from the
Borrowers or any such Subsidiary after the Amendment and Restatement Effective Date, such
information is clearly identified at the time of delivery as confidential. Any Person required to
maintain the confidentiality of Information as provided in this
Section 11.08
170
to have complied with its obligation to do so if such Person has exercised reasonable care to protect
such Information, and in no event less than the same degree of care to maintain the confidentiality
of such Information as such Person would accord to its own confidential information.
Each of the Administrative Agent and the Lenders acknowledges that (a) the Information
may include material non-public information concerning the Borrowers or a Subsidiary, as the
case may be, (b) it has developed compliance procedures regarding the use of material non-public
information and (c) it will handle such material non-public information in accordance with
applicable Law, including Federal and state securities laws.
In acting as agent for the Lenders, the Administrative Agent shall be regarded as acting
through its agency division which shall be treated as a separate entity from any other of its divisions
or departments. If information is received by another division or department of the Administrative
Agent, it may be treated as confidential to that division or department and the Administrative Agent
shall not be deemed to have notice of it.
Section 11.09. Right of Setoff
.
A Secured Party may, but need not, set
off any matured obligation due from a Loan Party under the Loan Documents (to
the extent beneficially owned by that Secured Party) against any obligation owed by
that Secured Party to that Loan Party (whether or not matured), regardless of the
place of payment, booking branch or currency of either obligation. If the
obligations are in different currencies, the Secured Party may convert either
obligation at a market rate of exchange in its usual course of business for the
purpose of the set-off.
Section 11.10. Interest Rate Limitation
.
Notwithstanding anything to
the contrary contained in any Loan Document, the interest paid or agreed to be paid
under the Loan Documents shall not exceed the maximum rate of non-usurious
interest permitted by applicable Law (the “
Maximum Rate
”). If the Administrative
Agent or any Lender shall receive interest in an amount that exceeds the Maximum
Rate, the excess interest shall be applied to the principal of the Loans or, if it
exceeds such unpaid principal, refunded to the Borrowers. In determining whether
the interest contracted for, charged, or received by the Administrative Agent or a
Lender exceeds the Maximum Rate, such Person may, to the extent permitted by
applicable Law, (a) characterize any payment that is not principal as an expense,
fee, or premium rather than interest, (b) exclude voluntary prepayments and the
effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal
parts the total amount of interest throughout the contemplated term of the
Obligations hereunder.
Section 11.11. Counterparts; Integration
.
This Agreement may be
executed in counterparts (and by different parties hereto in different counterparts),
each of which shall constitute an original, but all of which when taken together
shall constitute a single contract. This Agreement and the other Loan Documents
constitute the entire contract among the parties relating to the subject matter hereof
and supersede any and all previous agreements and understandings, oral or written,
171
relating to the subject matter hereof. The words “delivery,” “execution,” “execute,”
“signed,” “signature,” and words of like import in or related to this Agreement or
any document to be signed in connection with this Agreement and the transactions
contemplated hereby shall be deemed to include electronic signatures which shall
be of the same legal effect, validity or enforceability as a manually executed
signature, to the extent and as provided for in any applicable law, including the
Federal Electronic Signatures in Global and National Commerce Act, the New York
State Electronic Signatures and Records Act, or any other similar state laws based
on the Uniform Electronic Transactions Act.
Section 11.12. Survival of Representations and Warranties.
All
representations and warranties made hereunder and in any other Loan Document or
other document delivered pursuant hereto or thereto or in connection herewith or
therewith shall survive the execution and delivery hereof and thereof. Such
representations and warranties have been or will be relied upon by the
Administrative Agent and each Lender, regardless of any investigation made by the
Administrative Agent or any Lender or on their behalf and notwithstanding that the
Administrative Agent or any Lender may have had notice or knowledge of any
Default at the time of any Borrowing, and shall continue in full force and effect as
long as any Loan or any other Obligation hereunder shall remain unpaid or
unsatisfied.
Section 11.13. Severability
.
If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid
or unenforceable,
(a) the legality, validity and enforceability of the remaining provisions of this
Agreement and the other Loan Documents shall not be affected or impaired thereby and
(b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid
or unenforceable provisions with valid provisions the economic effect of which comes as close
as possible to that of the illegal, invalid or unenforceable provisions.
The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable
such provision in any other jurisdiction.
Section 11.14. Replacement of Lenders.
If any Lender requests compensation under
Section 3.04
, then the Borrowers may, at their
sole expense and effort, upon notice to such Lender and the Administrative Agent, require such
Lender to (and such Lender shall) assign and delegate, without recourse (in accordance with and
subject to the restrictions contained in, and consents required by,
Section 11.07
), all of its interests,
rights and obligations under this Agreement and the related Loan Documents to an assignee
172
selected by the Borrowers that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment),
provided
, that:
(i) such Lender shall have received payment of an amount equal to the
outstanding principal amount of its Loans, accrued interest thereon, applicable Make-
Whole Premium (assuming that the assignment or transfer of its interest, rights and
obligations in the Loans were a prepayment of the relevant Loans), accrued fees and all
other amounts payable to it hereunder and under the other Loan Documents (including any
amounts under
Section 3.07
) from the assignee (to the extent of such outstanding principal
and accrued interest and fees) or the Borrowers (in the case of all other amounts);
(ii) such assignment will result in a reduction in such compensation or
payments thereafter;
(iii) such assignment does not conflict with applicable Laws; and
(iv) neither the Administrative Agent nor any Lender shall be obligated to be or
to find the assignee.
A Lender shall not be required to make any such assignment or delegation if, prior thereto,
as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrowers to
require such assignment and delegation cease to apply.
Section 11.15. Governing Law; Jurisdiction; Etc.
(a)
Governing law
. This agreement and the rights and obligations of the parties
hereunder shall be governed by, and construed and interpreted in accordance with, the law of
Queensland, Australia.
(b)
Submission to jurisdiction
. Each party hereto irrevocably and unconditionally
submits, for itself and its property, to the exclusive jurisdiction of the courts of Queensland, and
any appellate court from any thereof, in any action or proceeding arising out of or relating to this
agreement or any other loan document, or for recognition or enforcement of any judgment, and
each of the parties hereto irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in such Queensland court or, to the
fullest extent permitted by applicable law, in such federal court. Each of the parties hereto
agrees that a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
nothing in this agreement or in any other loan document shall affect any right to bring any action
or proceeding relating to this agreement or any other loan document against the borrowers or any
other loan party or its properties in the courts of any jurisdiction.
(c)
Waiver of venue
. Each party hereto irrevocably and unconditionally waives, to
the fullest extent permitted by applicable law, any objection that it may now or hereafter have to
the laying of venue of any action or proceeding arising out of or relating to this agreement or any
other loan document in any court referred to in
paragraph
(b)
of this section. Each of the
parties hereto hereby irrevocably waives, to the fullest extent permitted by applicable law, the
173
defense of an inconvenient forum to the maintenance of such action or proceeding in any such
court.
(d)
Service of process
.
(e) Each party hereto irrevocably consents to service of process in the manner
provided for notices in
Section 11.03
. Nothing in this agreement will affect the right of any
party hereto to serve process in any other manner permitted by applicable law.
(i)
Each Loan Party that is organized under the laws of a jurisdiction outside
the United States of America hereby appoints Holdings, as its agent for service of process
in the United States of America in any matter related to this Agreement or the other Loan
Documents and shall provide written evidence of acceptance of such appointment by
such agent on or before the Amendment and Restatement Effective Date.
(ii)
Each Loan Party that is organized under the laws of a jurisdiction outside
Australia hereby appoints Coronado Finance Pty Ltd (ACN 628 668 235) as its agent for
service of process in Australia in any matter related to this Agreement or the other Loan
Documents and shall provide written evidence of acceptance of such appointment by
such agent on or before the Amendment and Restatement Effective Date.
Section 11.16. Waiver of Jury Trial
.
Each party hereto hereby
irrevocably waives, to the fullest extent permitted by applicable law, any right it
may have to a trial by jury in any legal proceeding directly or indirectly arising out
of or relating to this agreement or any other loan document or the transactions
contemplated hereby or thereby (whether based on contract, tort or any other
theory). Each party hereto (a) certifies that no representative, agent or attorney of
any other person has represented, expressly or otherwise, that such other person
would not, in the event of litigation, seek to enforce the foregoing waiver and (b)
acknowledges that it and the other parties hereto have been induced to enter into
this agreement and the other loan documents by, among other things, the mutual
waivers and certifications in this section.
Section 11.17. Designation of Secured Hedge Agreements
.
(a)
No person providing hedging arrangements to any Borrowers shall be entitled to
the benefits of
Section 8.03
,
Article 10
, or any Collateral by virtue of the provisions hereof or of
any Guarantee or any Collateral Document (including any Australian Collateral Document),
unless:
(i)
the Borrowers have provided a written notice to the Administrative Agent
(in form reasonably acceptable to the Administrative Agent), designating the person
providing hedging arrangements as a Hedge Bank and designating a Swap Contract (to
which that person is a counterparty) as a Secured Hedge Agreement (a “
Designation
Notice
”);
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(ii)
the Designation Notice includes a description of such Hedge Bank and
Secured Hedge Agreement; and
(iii)
the Designation Notice has been accepted and consented to in writing by
the Administrative Agent (in its absolute discretion).
(b)
The Borrowers and any Hedge Bank may increase, decrease or terminate any
amount of obligations under the Secured Hedge Agreement upon written notice to the
Administrative Agent; provided that such notice has been accepted and consented to in writing by
the Administrative Agent (in its absolute discretion).
(a) No Hedge Bank that obtains the benefits of
Section 8.03
,
Article 10
, or any
Collateral by virtue of the provisions hereof or of any Guarantee or any Collateral Document
(including any Australian Collateral Document) shall have any right to notice of any action or to
consent to, direct or object to any action hereunder or under any other Loan Document or
otherwise in respect of the Collateral (including the release or impairment of any Collateral)
other than in its capacity as a Lender and, in such case, only to the extent expressly provided in
the Loan Documents. The Administrative Agent shall not be required to verify the payment of,
or that other satisfactory arrangements have been made with respect to, Obligations arising under
Secured Hedge Agreements unless the Administrative Agent has received written notice of such
Obligations, together with such supporting documentation as the Administrative Agent may
request, from the applicable Hedge Bank.
Section 11.18. No Advisory or Fiduciary Responsibility
.
In connection with all aspects of each transaction contemplated hereby (including in
connection with any amendment, waiver or other modification hereof or of any other Loan
Document), the Borrowers and the other Loan Parties acknowledge and agree that:
(a) (i) the arranging and other services regarding this Agreement provided by the
Administrative Agent are arm’s-length commercial transactions between the Borrowers, the
other Loan Parties and their respective Affiliates, on the one hand, and the Administrative Agent,
on the other hand,
(ii) the Borrowers and the other Loan Parties have consulted their own legal,
accounting, regulatory and tax advisors to the extent deemed appropriate by such Loan
Parties, and
(iii) the Borrowers and the other Loan Parties are capable of evaluating, and
understand and accept, the terms, risks and conditions of the transactions contemplated
hereby and by the other Loan Documents;
(b) (i) the Administrative Agent is and has been acting solely as a principal and,
except as expressly agreed in writing by the relevant parties, has not been, is not, and will not be
acting as an advisor, agent or fiduciary for the Borrowers, the other Loan Parties, their respective
Affiliates or any other Person, and
175
(ii) the Administrative Agent has no obligation to the Borrowers, the other
Loan Parties or any of its Affiliates with respect to the transactions contemplated hereby
except those obligations expressly set forth herein and in the other Loan Documents; and
(c) the Administrative Agent and its respective Affiliates may be engaged in a broad
range of transactions that involve interests that differ from those of the Borrowers and their
Affiliates, and the Administrative Agent has no obligation to disclose any of such interests to the
Borrowers or their Affiliates.
To the fullest extent permitted by law, the Borrowers and each other Loan Party hereby waives
and releases any claims that it may have against the Administrative Agent with respect to any
breach or alleged breach of agency or fiduciary duty in connection with any aspect of any
transaction contemplated hereby.
Section 11.19. Joint and Several Liability.
All Loans, upon funding, shall be deemed to be jointly funded to and received by the
Borrowers. Each Borrower is jointly and severally liable under this Agreement for all Obligations,
regardless of the manner or amount in which proceeds of Loans are used, allocated, shared or
disbursed by or among the Borrowers themselves, or the manner in which the Administrative
Agent and/or any Lender accounts for such Loans or other Borrowings on its books and records.
Each Borrower shall be liable for all amounts due to the Administrative Agent and/or any Lender
from the Borrowers under this Agreement, regardless of which Borrower actually receives Loans
or other Borrowings hereunder or the amount of such Loans and Borrowings received or the
manner in which the Administrative Agent and/or such Lender accounts for such Loans or other
Borrowings on its books and records. Each Borrower’s Obligations with respect to Loans and
other Borrowings made to it, and such Borrower’s Obligations arising as a result of the joint and
several liability of such Borrower hereunder with respect to Loans made to the other Borrowers
hereunder shall be separate and distinct obligations, but all such Obligations shall be primary
obligations of such Borrower. The Borrowers acknowledge and expressly agree with the
Administrative Agent and each Lender that the joint and several liability of each Borrower is
required solely as a condition to, and is given solely as inducement for and in consideration of,
credit or accommodations extended or to be extended under the Loan Documents to any or all of
the other Borrowers and is not required or given as a condition of Borrowings to such Borrower.
Each Borrower’s Obligations under this Agreement shall, to the fullest extent permitted by law,
be unconditional irrespective of:
(a) the release of any other Borrower pursuant to
Section 9.12
enforceability, avoidance, or subordination of the Obligations of any other Borrower or of any
promissory note or other document evidencing all or any part of the Obligations of any other
Borrower,
(b) the absence of any attempt to collect the Obligations from any other Borrower, or
any other security therefor, or the absence of any other action to enforce the same,
(c) the waiver, consent, extension, forbearance, release, or granting of any indulgence
by the Administrative Agent and/or any Lender with respect to any provision of any instrument
176
evidencing the Obligations of any other Borrower, or any part thereof, or any other agreement
now or hereafter executed by any other Borrower and delivered to the Administrative Agent
and/or any Lender,
(d) the failure by the Administrative Agent and/or any Lender to take any steps to
perfect and maintain its security interest in, or to preserve its rights to, any security or collateral
for the Obligations of any other Borrower,
(e) the Administrative Agent’s and/or any Lender’s election, in any proceeding
instituted under the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy
Code,
(f) any borrowing or grant of a security interest by any other Borrower, as debtor-in-
possession under Section 364 of the Bankruptcy Code,
(g) the disallowance of all or any portion of the Administrative Agent’s and/or any
Lender’s claim(s) for the repayment of the Obligations of any other Borrower under Section 502
of the Bankruptcy Code, or
(h) any other circumstances which might constitute a legal or equitable discharge or
defense of a guarantor or of any other Borrower.
With respect to any Borrower’s Obligations arising as a result of the joint and several liability of
the Borrowers hereunder with respect to Loans or other Borrowings made to any of the other
Borrowers hereunder, such Borrower waives, until the Obligations shall have been paid in full and
this Agreement shall have been terminated, any right to enforce any right of subrogation or any
remedy which the Administrative Agent and/or any Lender now has or may hereafter have against
any other Borrower, any endorser or any guarantor of all or any part of the Obligations, and any
benefit of, and any right to participate in, any security or collateral given to the Administrative
Agent and/or any Lender to secure payment of the Obligations or any other liability of any
Borrower to the Administrative Agent and/or any Lender. Upon any Event of Default, the
Administrative Agent may proceed directly and at once, without notice, against any Borrower to
collect and recover the full amount, or any portion of the Obligations, without first proceeding
against any other Borrower or any other Person, or against any security or collateral for the
Obligations. Each Borrower consents and agrees that the Administrative Agent shall be under no
obligation to marshal any assets in favor of any Borrower or against or in payment of any or all of
the Obligations. Notwithstanding anything to the contrary in the foregoing, any Person released
from its Obligations in accordance with
Section 9.12
foregoing provisions of this
Section 11.19
.
Section 11.20. Contribution and Indemnification Among the
Borrowers.
Each Borrower is obligated to repay the Obligations as a joint and several obligor under
this Agreement.
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Section 11.21. Agency of the Administrative Borrower for Each
Other Borrower.
agent for all purposes relevant to this Agreement (in such capacity, the “
Borrower
Representative
”), including the giving and receipt of notices and execution and
delivery of all documents, instruments, and certificates contemplated herein
(including, without limitation, execution and delivery to the Administrative Agent
of Borrowing Base Certificates and Borrowing Notices) and all modifications
hereto. Any acknowledgment, consent, direction, certification, or other action
which might otherwise be valid or effective only if given or taken by all or any of
the Borrowers or acting singly, shall be valid and effective if given or taken only by
the Borrower Representative, whether or not any of the other Borrowers join
therein, and the Administrative Agent and the Lenders shall have no duty or
obligation to make further inquiry with respect to the authority of the Borrower
Representative under this
Section 11.21
;
provided
that nothing in this
Section
11.21
the Lenders to rely upon, any notice (including, without limitation, a Borrowing
Notice), document, instrument, certificate, acknowledgment, consent, direction,
certification or other action delivered by any Borrower pursuant to this Agreement.
Section 11.22. USA Patriot Act Notice
.
Each Lender that is subject to
the Act (as hereinafter defined) and the Administrative Agent (for itself and not on
behalf of any Lender) hereby notifies the Borrowers that pursuant to the
requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into
law October 26, 2001)) (the “
Patriot Act
”), it is required to obtain, verify and
record information that identifies each Loan Party, which information includes the
name and address of each Loan Party and other information that will allow such
Lender or the Administrative Agent, as applicable, to identify each Loan Party in
accordance with the Act.
Section 11.23. Time of the Essence
.
Time is of the essence of the Loan
Documents.
Section 11.24. [Reserved]
Section 11.25. Terms of Intercreditor Agreements.
understands, acknowledges and agrees that Liens shall be created on the Collateral
pursuant to the Loan Documents, which Liens shall be subject to terms, conditions
and priorities set forth in the Intercreditor Agreements. Pursuant to the terms of the
ABL Intercreditor Agreement, in the event of any conflict between the terms of the
ABL Intercreditor Agreement and any of the Loan Documents, the provisions of the
ABL Intercreditor Agreement shall govern and control. Pursuant to the terms of the
Stanwell Intercreditor Agreement, in the event of any conflict between the terms of
the Stanwell Intercreditor Agreement and any of the Loan Documents, the
provisions of the Stanwell Intercreditor Agreement shall govern and control. Each
Lender authorizes and instructs the Administrative Agent and the Collateral Agent
(including in its capacity as the Australian Security Trustee) to enter into the ABL
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Intercreditor Agreement and the Stanwell Intercreditor Agreement on behalf of the
Lenders, and to take all actions (and execute all documents) required (or deemed
advisable) by it in accordance with the terms of the ABL Intercreditor Agreement
or the Stanwell Intercreditor Agreement.
Section 11.26. Australian Code of Banking Practice.
acknowledge and agree that the Code of Banking Practice of the Australian
Bankers’ Association (as updated from time to time) does not apply to the Loan
Documents or the Transactions
Section 11.27. Certain ERISA Matters.
warrants, as of the date such Person became a Lender party hereto, to, and (y)
covenants, from the date such Person became a Lender party hereto to the date such
Person ceases being a Lender party hereto, for the benefit of, the Administrative
Agent and not, for the avoidance of doubt, to or for the benefit of any Loan Party,
that at least one of the following is and will be true:
(a) such Lender is not using “plan assets” (within the meaning of the Plan Asset
Regulations, as modified by Section 3(42) of ERISA) of one or more Benefit Plans with respect
to such Lender’s entrance into, participation in, administration of and performance of the Loans,
the Commitments or this Agreement,
(b) the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a
class exemption for certain transactions determined by independent qualified professional asset
managers), PTE 95-60 (a class exemption for certain transactions involving insurance company
general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance
company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions
involving bank collective investment funds) or PTE 96-23 (a class exemption for certain
transactions determined by in-house asset managers), is applicable with respect to such Lender’s
entrance into, participation in, administration of and performance of the Loans, the
Commitments and this Agreement,
(c) (i) such Lender is an investment fund managed by a “Qualified Professional
Asset Manager” (within the meaning of Part VI of PTE 84-14),
(ii) such Qualified Professional Asset Manager made the investment decision
on behalf of such Lender to enter into, participate in, administer and perform the Loans,
the Commitments and this Agreement,
(iii) the entrance into, participation in, administration of and performance of the
Loans, the Commitments and this Agreement satisfies the requirements of sub-sections (b)
through (g) of Part I of PTE 84-14 and
(iv) to the best knowledge of such Lender, the requirements of subsection (a)
of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into,
participation in, administration of and performance of the Loans, the Commitments and
this Agreement, or
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(d) such other representation, warranty and covenant as may be agreed in writing
between the Administrative Agent, in its sole discretion, and such Lender.
Section 11.28. Acknowledgement Regarding Any Supported QFCs.
To the extent that the Loan Documents provide support, through a guarantee or otherwise,
for Swap Contracts or any other agreement or instrument that is a QFC (such support, “
QFC Credit
Support
” and each such QFC a “
Supported QFC
”), the parties acknowledge and agree as follows
with respect to the resolution power of the Federal Deposit Insurance Corporation under the
Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer
Protection Act (together with the regulations promulgated thereunder, the “
U.S. Special
Resolution Regimes
”) in respect of such Supported QFC and QFC Credit Support (with the
provisions below applicable notwithstanding that the Loan Documents and any Supported QFC
may in fact be stated to be governed by the laws of the State of New York and/or of the United
States or any other state of the United States):
(a) In the event a Covered Entity that is party to a Supported QFC (each, a “
Covered
Party
”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of
such Supported QFC and the benefit of such QFC Credit Support (and any interest and
obligation in or under such Supported QFC and such QFC Credit Support, and any rights in
property securing such Supported QFC or such QFC Credit Support) from such Covered Party
will be effective to the same extent as the transfer would be effective under the U.S. Special
Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest,
obligation and rights in property) were governed by the laws of the United States or a state of the
United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes
subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan
Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that
may be exercised against such Covered Party are permitted to be exercised to no greater extent
than such Default Rights could be exercised under the U.S. Special Resolution Regime if the
Supported QFC and the Loan Documents were governed by the laws of the United States or a
state of the United States.
(b) As used in this
Section 11.28
, the following terms have the following meanings:
“
BHC Act Affiliate
” of a party means an “
affiliate
” (as such term is defined under,
and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.
“
Covered Entity
” means any of the following:
(i) a “
covered entity
” as that term is defined in, and interpreted in
accordance with, 12 C.F.R. § 252.82(b);
(ii) a “
covered bank
” as that term is defined in, and interpreted in
accordance with, 12 C.F.R. § 47.3(b); or
(iii) a “
covered FSI
” as that term is defined in, and interpreted in
accordance with, 12 C.F.R. § 382.2(b).
180
“
Default Right
” has the meaning assigned to that term in, and shall be interpreted
in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“
QFC
” has the meaning assigned to the term “
qualified financial contract
” in, and
shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).
Section 11.29. Judgment Currency.
In respect of any judgment or order given or made for any amount due under this
Agreement or any other Loan Document that is expressed and paid in a currency (the “
judgment
currency
”) other than Dollars, the Loan Parties will indemnify Administrative Agent and any
Lender against any loss incurred by them as a result of any variation as between (i) the rate of
exchange at which the Dollar amount is converted into the judgment currency for the purpose of
such judgment or order and (ii) the rate of exchange, as quoted by the Administrative Agent or by
a known dealer in the judgment currency that is designated by the Administrative Agent, at which
the Administrative Agent or such Lender is able to purchase Dollars with the amount of the
judgment currency actually received by the Administrative Agent or such Lender. The foregoing
indemnity shall constitute a separate and independent obligation of the Loan Parties and shall
survive any termination of this Agreement and the other Loan Documents, and shall continue in
full force and effect notwithstanding any such judgment or order as aforesaid. The term “rate of
exchange” shall include any premiums and costs of exchange payable in connection with the
purchase of or conversion into Dollars.
Section 11.30. Anti-money laundering
(a) A Secured Party may delay, block or refuse to process any payment or other
transaction without incurring any liability if the Secured Party knows or reasonably suspects that
the transaction or the application of its proceeds will:
(i)
breach, or cause a Secured Party to breach, any applicable laws or
regulations of any jurisdiction (including any Sanctions); or
(ii)
allow the imposition of any penalty on the Secured Party or its Affiliates
under any such law or regulation,
including where the transaction or the application of its proceeds involves any entity or
activity the subject of any applicable Sanctions of any jurisdiction binding on the Secured
Party or its Affiliate, or the direct or indirect proceeds of unlawful activity.
(b) As soon as practicable after a Secured Party becomes aware that it will delay,
block or refuse to process a transaction under
paragraph (a)
, it will notify Holdings and the
Administrative Agent and consult in good faith but in each case only to the extent the Secured
Party determines it is legally permitted to do so. In making that determination the Secured Party
shall act reasonably.
(c) Holdings shall promptly advise the Administrative Agent if any Loan Party enters
into any Loan Document in the capacity as agent and promptly supply, or procure the supply of,
such information as may be reasonably requested by the Administrative Agent (for itself or on
181
behalf of any Secured Party) from time to time in relation to any principal for which a Loan
Party may be acting.
(d) Each Loan Party undertakes to exercise its rights and perform its obligations
under the Loan Documents in accordance with all applicable laws or regulations relating to anti-
money laundering, counter-terrorism financing or Sanctions.
(e) Each party to this Agreement shall provide any information and documents
reasonably required by any Agent to enable that Agent to comply with any applicable laws or
regulations relating to anti-money laundering, counter-terrorism financing or Sanctions.
Section 11.31. Know your customer
Each Lender shall promptly upon the request of the Administrative Agent supply, or
procure the supply of, such documentation and other evidence as is reasonably requested by the
Administrative Agent (for itself) in order for the Administrative 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 Loan Documents.
Section 11.32. Recognition of Hong Kong Stay Powers
(a) Notwithstanding anything to the contrary in this Agreement or any other Loan
Document or any other agreement, arrangement or understanding between the parties to this
Agreement, each of the parties to this Agreement (other than any Excluded Counterparties)
expressly agrees to be bound by any suspension of any termination right in relation to this
Agreement imposed by the HK Resolution Authority in accordance with section 90(2) of the
Financial Institutions (Resolution) Ordinance (Cap. 628) of Hong Kong, to the same extent as if
this Agreement was governed by the laws of Hong Kong.
(b) For the purpose of this
Section 11.32
:
(i)
“
Excluded Counterparty
” means any party which is (a) a financial
market infrastructure; (b) the Hong Kong Monetary Authority; (c) the Government of the
Hong Kong Special Administrative Region; (d) the government of a jurisdiction other
than Hong Kong; or (e) the central bank of a jurisdiction other than Hong Kong; and
(ii)
“
HK
Resolution Authority
” means the resolution authority in Hong
Kong in relation to a banking sector entity from time to time, which is currently the Hong
Kong Monetary Authority.
[Signature Pages Follow]
1
[
Signature Pages Intentionally Omitted
]
2
Schedule 1.01(a)
Guarantors
Guarantor
Jurisdiction
Coronado Global Resources Inc.
Delaware
Coronado Finance Pty Ltd
Australia
Coronado Coal Corporation
Delaware
CORONADO II LLC
Delaware
CORONADO COAL II LLC
Delaware
CORONADO COAL LLC
Delaware
Mon Valley Minerals LLC
Delaware
Greenbrier Minerals, LLC
Delaware
POWHATAN MID-VOL COAL SALES, L.L.C.
Delaware
CORONADO IV LLC
Delaware
BUCHANAN MINERALS, LLC
Delaware
Buchanan Mining Company LLC
Delaware
CORONADO VA, LLC
Delaware
Coronado Australia Holdings Pty Ltd
Australia
Coronado Curragh LLC
Delaware
Coronado Curragh Pty Ltd
Australia
Curragh Coal Sales Co Pty Ltd
Australia
Curragh Queensland Mining Pty Ltd
Australia
3
Schedule 1.01(b)
Commitments
Lender
Commitment
HIGHLAND PARK XII PTE.LTD
US$150.0 million
Total
US$150.0 million
4
Schedule 1.01(c)
Acceptable Storage Locations
Storage
Location
Owned by
Coronado- Specify
name of entity
Operated by
Coronado-
Specify name of entity
RoE required
(Yes/No)
Curragh Mine
Blackwater Cooroorah
Rd, Blackwater QLD
4717
AU
Yes
Coronado Curragh
Pty Ltd
Yes
Coronado Curragh Pty
Ltd
No
Buchanan Mine
4082 Page Drive
Oakwood, VA 24631
US
Yes
Coronado Coal IV,
LLC
Yes
Coronado Coal IV,
LLC
No
Norfolk Southern Pier
6
Norfolk, VA 23507
US
No
No
No
Logan Mine
Elk Lick LP
Lorado, WV 25630
US
Yes
Coronado Coal II,
LLC
Yes
Coronado Coal II, LLC
No
CSX Pier 9 Hamptons
Road
1900 Harbor Road.
Newport News, VA
2360
US
No
No
No
Quincy Dock
Quincy Dock Rd
West Virginia 25015
US
No
No
No
191
Schedule 5.08(c)
Subsidiaries
Loan Party
Record Owner
No. Shares/Interest
Coronado Coal Corporation
Coronado Global Resources Inc.
100 Common Shares
Coronado Coal Corporation
Coronado Global Resources Inc.
196,394 Common Shares
Coronado II LLC
Coronado Coal Corporation
100%
Coronado Coal II LLC
Coronado II LLC
100%
Coronado Coal LLC
Coronado Coal Corporation
99%
Coronado Coal LLC
Coronado Coal Corporation
1%
Mon Valley Minerals LLC
Coronado Coal LLC
100%
Greenbrier Minerals, LLC
Coronado Coal LLC
100%
Powhatan Mid-Vol Coal Sales,
L.L.C.
Greenbrier Minerals, LLC
100%
Buchanan Minerals, LLC
Coronado Coal LLC
100%
Coronado IV LLC
Coronado Coal Corporation
100%
Buchanan Mining Company LLC
Coronado IV LLC
100%
Coronado VA, LLC
Coronado IV LLC
100%
Coronado Australia Holdings Pty
Ltd
Coronado Global Resources Inc.
(f/k/a Coronado Group Holdco
LLC)
0.01%
Coronado Australia Holdings Pty
Ltd
Coronado Global Resources Inc.
(f/k/a Coronado Group Holdco
LLC)
99.99%
Coronado Curragh LLC
Coronado Australia Holdings
Pty Ltd
100%
Coronado Finance Pty Ltd
Coronado Australia Holdings
Pty Ltd
100%
Coronado Curragh Pty Ltd
Coronado Australia Holdings
Pty Ltd
100%
Curragh Coal Sales Co Pty Ltd
Coronado Curragh Pty Ltd (f/k/a
Wesfarmers Curragh Pty Ltd)
100%
Curragh Queensland Mining Pty
Ltd
Coronado Curragh Pty Ltd (f/k/a
Wesfarmers Curragh Pty Ltd)
100%
Metallurgical Minerals Holding
PTY LTD
CORONADO AUSTRALIA
HOLDINGS PTY LTD
2 ordinary shares
Company B Virginia LLC
Buchanan Mining Company
LLC
100%
Coronado II Offshore Holdings,
Ltd.
CORONADO II LLC
100%
192
Schedule 5.09
Environmental Matters
None.
193
Schedule 5.10
Mining
1. U.S. Loan Parties:
Schedule 5.08(a)
Schedule 5.08(b)
2. Australian Loan Parties:
Loan Party
Property Type
Title Reference / Tenement
Jurisdiction
Coronado Curragh
Pty Ltd
Mining Lease
Mining Lease Numbers 1878,
1990, 80010, 80011, 80012,
80086, 80110, 80112, 80123,
80171, 700006, 700007, 700008,
700009
Queensland
Coronado Curragh
Pty Ltd
Mineral Development
Licence
Mineral Development Licence
Numbers 162, 328, 329
Queensland
194
Schedule 5.14
Existing Indebtedness
1. Royalty Deed, dated 31 August 2010 (as amended, supplemented, restated or otherwise modified from
time to time), pursuant to which Winged Horse Pty Limited as trustee for the Pegasus Royalty Unit
Trust and B. McDonald (No. 2) Pty Limited are entitled to a royalty with respect to any coal produced
from any mine covering some or all of MDL 162.
2. Obligations incurred under the Stanwell Agreements.
3. Senior Secured Notes.
4. Buchanan Mining Company, LLC and Coronado IV, LLC - Joy Global Underground Mining, LLC,
Continuous Miner Life Cycle Management Agreement dated November 1, 2014.
5. Buchanan Mining Company, LLC with Coronado IV, LLC as Guarantor – Joy Global Underground
Mining, LLC, Shearer Life Cycle Management Agreement dated September 21, 2018.
6. Coronado Coal II, LLC with Coronado Group, LLC as Guarantor - Joy Global Underground Mining,
LLC, Continuous Miner Life Cycle Management Agreement dated October 25, 2016. Listed below are
amendments to the original agreement. Listed below are amendments to the original agreement:
●
First Amendment dated Mary 2017
●
Second Amendment dated April 2017
●
Third Amendment dated May 2018
●
Fourth Amendment dated April 2020
●
Fifth Amendment dated August 2020
●
Six Amendment dated April 2021
7. Coronado Group, LLC - Bank of America Merrill Lynch Commercial Card Agreement dated March
2, 2018.
8. Coronado Finance Pty Ltd – American Express Corporate Account Agreement dated June 25 2021.
9. Coronado Coal II, LLC and Coronado IV, LLC – Bank of America Merrill Lynch Draft Purchase
Agreement dated August 19, 2015 and July 12, 2016, respectively.
10. Coronado Coal, LLC – GSG Financial, LLC dated July 11, 2016, Xerox copiers/printers with an
amendment dated October 27, 2016 for additional Xerox copier/printer.
11. Draft Purchase Agreement, dated as of August 19, 2015 (as amended, restated, amended and restated,
supplemented or otherwise modified from time to time), by and between Coronado II LLC and Bank of
America, N.A. with respect to ArcelorMittal USA LLC receivables.
12. Supplier Agreement, dated as of May 12, 2021, by and among Coronado Coal II LLC and Coronado IV
LLC and LSQ Funding Group, L.C. with respect to United States Steel Corporation receivables.
13. Coronado has bank guarantees to secure various obligations and commitments. As of March 31, 2025,
the outstanding amount of such bank guarantees was approximately $40.7 million.
14.
As of December 31, 2022, the Company had outstanding surety bonds of approximately $43.8 million.
15.
HSBC U.S. Self-Disclosure Letter Information Request – Swap Dealer and SBS Dealer
De Minimis
Counting Entities, dated as August 20, 2021, by Coronado Finance Pty Ltd.
16.
HSBC Evolve Post Trade Portal User Terms, dated as of August 20, 2021, by and between HSBC and
195
Coronado Finance Pty Ltd.
17.
Obligations incurred under the Loan Agreement dated on or about 29 March 2018 between Coronado
Australia Holdings Pty Limited, Coronado Curragh Pty Ltd and others.
18.
Obligations incurred under the Loan Agreement dated 25 January 2017, as amended on or about 8
February 2017, August 2017 and 22 December 2017, and as assigned to Coronado Group LLC pursuant to
a deed of assignment and assumption between Wesfarmers Limited and Coronado Group LLC dated 29
March 2018, and as assigned to Coronado Global Resources Inc (formerly Coronado Group Holdco LLC)
pursuant to a deed of assignment and assumption dated 13 August 2018 between Coronado Global
Resources Inc (formerly Coronado Group Holdco LLC) and Coronado Group LLC, and as amended
pursuant to a deed of amendment dated 31 August 2018.
19.
Obligations under financing arrangements with Macquarie Bank Limited comprising the following
agreements:
●
Agreement named “Master Equipment Lease Agreement”, dated as of January 5,
2021, by and between Macquarie Bank Limited, Coronado Curragh Pty Ltd and
Coronado Global Resources Inc.
●
5, 2021, by and between Macquarie Bank Limited, Coronado Curragh Pty Ltd and
Coronado Global Resources Inc.
●
Various lease agreement schedules entered into in connection with the abovenamed
Master Equipment Lease Agreement.
●
Bill of Sale, dated as of January 6, 2021, by and between Macquarie Bank Limited
and Coronado Curragh Pty Ltd.
●
Equipment Sale and Purchase Agreement, dated as of January 5, 2021, by and
between Macquarie Bank Limited and Coronado Curragh Pty Ltd.
20.
Obligations pursuant to the following agreements with Minumbra Blackwater Pty Ltd:
●
Agreement for Lease and Sublease, dated 8 May 2023 between Coronado Curragh
Pty Ltd, Curragh Queensland Mining Pty Ltd and Minumbra Blackwater Pty Ltd.
●
Asset Sale Agreement Camp buildings and houses, dated 8 May 2023 between,
Coronado Curragh Pty Ltd, Curragh Queensland Mining Pty Ltd and Minumbra
Blackwater Pty Ltd.
●
Services Agreement dated 8 May 2023 between Coronado Curragh Pty Ltd, Curragh
Queensland Mining Pty Ltd and Minumbra Blackwater Pty Ltd.
●
Novation and amendment deed dated 30 April 2024 between Coronado Curragh Pty
Ltd, Compass Group Remote Hospitality Services Pty Ltd and Minumbra
Blackwater Pty Ltd.
●
Priority Deed Poll dated 16 May 2024 made by Minumbra Blackwater Pty Ltd.
●
Specific Security Deed dated 8 May 2023 between Minumbra Blackwater Pty Ltd
and Coronado Curragh Pty Ltd.
21.
Obligations under the agreement titled “Fleet Agreement” dated 5 October 2023 between Orix Australia
Corporation Limited and Coronado Curragh Pty Limited.
196
22.
Obligations under the contract titled “Equipment Hire Contract – Goods supply contract for the provision
of surface electrical equipment” dated 1 June 2024 entered into by Coronado Curragh Pty Ltd and AC2
Electrical Pty Ltd t/as Australian Power Equipment.
197
Schedule 5.18
Intellectual Property Matters
United States Patents:
None.
Other Patents:
None.
United States Trademarks:
Owner
Jurisdiction
Mark
U.S. Serial
Number
Filing Date
Coronado Global
Resources Inc.
United States
CORONADO STEEL
STARTS HERE
(Stylized/Design)
88-142,683
October 4,
2018
Other Trademarks:
None.
Copyrights:
None.
Intellectual Property Licenses:
None.
Domain Names:
●
Coronadous.com
●
Coronadocoal.com
●
Curragh.com.au
●
Coronadoglobal.com
●
Coronadoglobal.com.au
●
Coronadoglobal.net
●
Coronado-global.com
●
Coronadogroup.net
●
Coronadoresourcesinc.com
●
Coronadoresourcesinc.info
●
Coronadoresourcesinc.net
●
Coronadoresourcesinc.org
●
Coronado.email
●
Coronadoresources.com.au
●
Coronadousa.biz
●
Coronadousa.info
●
Coronadousa.online
201
Schedule 11.02
Agents’ Offices, Certain Addresses for Notices
If to the Borrower:
Coronado Finance Pty Ltd
Level 33, Central Plaza One
345 Queen Street
Brisbane QLD 4000
Attention: Barrie Van der Merwe
Email:
Phone:
Australian Borrower Website:
with copies to (which shall not constitute notice):
Jones Day
Aurora Place
Level 41, 88 Phillip Street
Sydney NSW 2000
Australia
Attention: Alastair Gourlay
Email:
If to any U.S. Loan Party:
Coronado Coal Corporation
100 Bill Baker Way
Beckley, West Virginia 25801
Attention: Chris Meyering
Email:
Phone:
with copies to (which shall not constitute notice):
Jones Day
901 Lakeside Avenue
Cleveland, OH 44114-1190
Attention: Kevin Samuels
Email:
If to any Australian Loan Party:
Coronado Finance Pty Ltd
Level 33, Central Plaza One
345 Queen Street
Brisbane QLD 4000
202
Attention: Barrie Van der Merwe
Email:
Phone:
with copies to (which shall not constitute notice):
Jones Day
Aurora Place
Level 41, 88 Phillip Street
Sydney NSW 2000
Australia
Attention: Alastair Gourlay
Email:
If to the Administrative Agent:
Global Loan Agency Services Australia Pty Ltd
Level 4, 88 Phillip Street, Sydney NSW 2000
Attention: Transaction Management Group (Coronado)
Email:
Phone:
A-203
E
XHIBIT
A
TO
C
REDIT
A
GREEMENT
F
ORM OF
B
ORROWING
N
OTICE
Global Loan Agency Services Australia Pty Ltd
(ABN 39 608 945 008)
as Administrative Agent under the
Credit Agreement referred to below
Level 4, 88 Phillip Street
Sydney NSW 2000
Attention:
Transaction Management Group (Coronado)
Re: Borrowing Notice (this “
Notice
”) of Coronado Global Resources
Inc., a Delaware corporation (“
Holdings
”), Coronado Australia
Holdings Pty Ltd (ACN 623 524 989), an Australian proprietary
limited company (“
Australian Parent
”), and Coronado Finance Pty
Ltd (ACN 628 668 235) and Coronado Curragh Pty Ltd (ACN 009
362 565), each an Australian proprietary limited company (each an
“
Australian Borrower
” and, together the “
Borrowers
”),
Reference is made to the Syndicated Facility Agreement, dated as of 8 May 2023, by and among Holdings,
the Borrowers, the Guarantors party thereto, each lender from time to time party thereto, Global Loan Agency Services
Australia Pty Ltd (ABN 39 608 945 008) as administrative agent (the “
Administrative Agent
”), Global Loan Agency
Services Australia Nominees Pty Ltd (ABN 39 608 945 008) as collateral agent (the “
Collateral Agent
”), as may be
amended, supplemented, restated or otherwise modified from time to time, and as last amended by the certain Second
Amendment to the Syndicated Facility Agreement, among the Borrowers and Guarantors parties thereto, the
Administrative Agent and the Collateral Agent, dated as of [●] 2025 (the “
Credit Agreement
”).
Capitalized terms used herein and not otherwise defined herein shall have the meanings given to such terms
in the Credit Agreement.
[The undersigned][Holdings, as Borrower Representative, on behalf of the Borrowers] hereby gives you
notice, irrevocably, pursuant to Section 2.02(a)
of the Credit Agreement that the undersigned hereby requests a
Borrowing of Loans under the Credit Agreement and, in connection therewith, sets forth below the information
relating to such Borrowing (the “
Proposed Borrowing
”) as required by Section 2.02(a)
of the Credit Agreement:
A. Borrower: [●]
B. The Business Day of the Proposed Borrowing is ________ __, ____ (the
“
Funding Date
”).
1
11:00 a.m. (Sydney time): five (5) Business Days prior to the Funding Date.
A-204
C. [The amount of the Borrowing is [$] , having an initial Interest Period
of one month.]
The undersigned, being a Responsible Officer, hereby certifies, in its capacity as a Responsible Officer and
not in his/her individual capacity, that the following statements are true and correct on the date hereof and will be true
and correct on the Funding Date:
(i) the representations and warranties of each Loan Party contained in the Credit
Agreement and each other Loan Document or which are contained in any document
furnished at any time under or in connection herewith or therewith, are true and correct
in all material respects (or, if such representation or warranty is subject to a materiality
or Material Adverse Effect qualification, in all respects) on and as of each such date,
except to the extent that such representations and warranties specifically refer to an
earlier date, in which case they shall have been true and correct in all material respects
(or, if such representation or warranty is subject to a materiality or Material Adverse
Effect qualification, in all respects) as of such earlier date;
(ii) the Proposed Borrowing would not cause a breach of the proviso in Section 2.01 of the
Credit Agreement; and
(iii) no Default or Event of Default has occurred or is continuing, or would result from the
Proposed Borrowing or from the application of the Proceeds thereof.
[SIGNATURE PAGES FOLLOW]
2
by the Administrative Agent.
[Signature Page to Borrowing Notice]
IN WITNESS WHEREOF, the undersigned has caused this Notice to be executed and delivered by a duly
authorized officer as of the date first written above.
[CORONADO GLOBAL RESOURCES INC.]
[CORONADO FINANCE PTY LTD]
[CORONADO CURRAGH PTY LTD]
Title:
B-1
E
XHIBIT
B
TO
C
REDIT
A
GREEMENT
[
NOT USED
]
C-1
E
XHIBIT
C
TO
C
REDIT
A
GREEMENT
[
NOT USED
]
D-1
E
XHIBIT
D
TO
C
REDIT
A
GREEMENT
[
NOT USED
]
E-2
E
XHIBIT
E
TO
C
REDIT
A
GREEMENT
F
ORM OF
C
OMPLIANCE
C
ERTIFICATE
(this “
Certificate
”)
Financial Statement Date: ________, ____
To: Global Loan Agency Services Australia Pty Ltd (ABN 39 608 945 008) as
Administrative Agent
Ladies and Gentlemen:
Reference is made to the Syndicated Facility Agreement, dated as of 8 May 2023,
by and among Coronado Global Resources Inc., a Delaware corporation (“
Holdings
”), Coronado
Australia Holdings Pty Ltd (ACN 623 524 989), an Australian proprietary limited company
(“
Australian Parent
”), and Coronado Finance Pty Ltd (ACN 628 668 235) and Coronado Curragh
Pty Ltd (ACN 009 362 565), each an Australian proprietary limited company (each an “
Australian
Borrower
” and, together the “
Borrowers
”), the Guarantors party thereto, each lender from time
to time party thereto, Global Loan Agency Services Australia Pty Ltd (ABN 39 608 945 008) as
administrative agent and collateral agent (in such capacities, the “
Administrative Agent
”), Global
Loan Agency Services Australia Nominees Pty Ltd (ABN 39 608 945 008) as collateral agent (the
“
Collateral Agent
”), as may be amended, supplemented, restated or otherwise modified from time
to time, and as last amended by the certain Second Amendment to the Syndicated Facility
Agreement, among the Borrowers and Guarantors parties thereto, the Administrative Agent and
the Collateral Agent, dated as of [●] 2025 (the “
Credit Agreement
”).
Capitalized terms used herein shall have the meanings given to them in the Credit
Agreement.
The undersigned Responsible Officer hereby certifies as of the date hereof that
he/she is the [
Chief Executive Officer/Chief Financial Officer/President/the Treasurer/Assistant
Treasurer/Vice President or Financial Controller
] of Holdings, and that, as such, he/she is
authorized to execute and deliver this Certificate to the Administrative Agent on the behalf of
Holdings, and that:
1. [Holdings has delivered the audited consolidated financial statements
required by Section 6.01(a) of the Credit Agreement for the fiscal year of Holdings ended [●],
20[●].]
2. [Holdings has delivered the consolidated financial statements required by
Section 6.01(b) of the Credit Agreement for the financial half-year of Holdings ended as of [●],
20[●].]
3. [Holdings has delivered the consolidated financial statements required by
Section 6.01(c) of the Credit Agreement for the fiscal quarter of Holdings ended as of [●], 20[●].]
Such consolidated financial statements fairly present in all material respects the financial
3
E-3
condition, results of operations, changes in shareholders’ equity and cash flows of Holdings and
its Subsidiaries in accordance with GAAP as at such date and for such period, subject only to
normal year-end audit adjustments and the absence of footnotes.]
4. The undersigned has reviewed and is familiar with the terms of the Credit
Agreement and has made, or has caused to be made under his/her supervision, a detailed review
of the financial condition of Holdings and its Subsidiaries during the accounting period covered
by such [audited] [unaudited] financial statements.
5. A review of the activities of Holdings and its Subsidiaries during such fiscal
period has been made under the supervision of the undersigned with a view to determining whether
during such fiscal period Holdings and its Subsidiaries performed and observed all their respective
Obligations under the Loan Documents, and
[select one:]
[to the best knowledge of the undersigned, during such fiscal period Holdings
and its Subsidiaries performed and observed each covenant of the Loan Documents
applicable to it, and no Default or Event of Default has occurred and is continuing.]
--or--
[to the best knowledge of the undersigned, the following covenants or
conditions have not been performed or observed and the following is a list of each such
Default or Event of Default, its nature and status and the action that Holdings and its
Subsidiaries propose to take with respect thereto:]
6. [[To the best knowledge of the undersigned, during such fiscal period, there
has been no change in the information with respect to the Collateral owned by any Loan Party in
the Perfection Certificate delivered on the Amendment and Restatement Effective Date since the
date of such Perfection Certificate or the date of the most recent Compliance Certificate][Attached
to this Certificate as Schedule 2 is a Perfection Certificate Supplement, signed by the Loan Parties,
identifying such changes to the Collateral since the Amendment and Restatement Effective Date
or the date of the most recent Compliance Certificate, as applicable].]
7. The financial covenant analyses and information set forth in Schedule 1
attached hereto are true and accurate on and as of the date of this Certificate.
8. [Restricted Payment has been made by [●] during the accounting period
covered by such [audited] [unaudited] financial statements and Section 7.07(b) has been
4
5
6
7
E-4
complied with (ie. immediately after such Restricted Payment was made, the Unrestricted Cash
Amount was at least $100,000,000.]
9. Each Dormant Subsidiary and Excluded Subsidiary remains the same.
8
[SIGNATURE PAGE TO COMPLIANCE CERTIFICATE]
IN WITNESS WHEREOF, the undersigned has caused this Certificate to be executed and delivered by a
duly authorized officer as of the date first written above.
CORONADO GLOBAL RESOURCES INC.
By:
Name:
Title:
E-6
SCHEDULE
1
For the period of four consecutive fiscal quarters ended ___________________, ____ (“
Statement Date
”)
Leverage Ratio
The Leverage Ratio for the Test Period ended as of the Statement Date written above (“
Measurement
Period
”) is set forth below and
[is/is not]
more than
[5.00
/4.00
/4.00
/3.00
Leverage Ratio means, as of any date of determination, the ratio of:
A.
Aggregate outstanding principal amount of all Indebtedness (excluding, for the
avoidance of doubt, the obligations relating to the Stanwell Arrangements ) of Holdings
and its Subsidiaries on a consolidated basis as of the Statement Date (net of the
Unrestricted Cash Amount as of the Statement Date) to
$__________
B.
Consolidated EBITDA of Holdings and its Subsidiaries for the Test Period ending on
the Statement Date for which Financial Statements have been, or were required to have
been, delivered pursuant to Section 6.01 of the Credit Agreement)
$__________
C.
Leverage Ratio (A
divided
______ times
Interest Coverage Ratio
The Interest Coverage Ratio for the Test Period ended as of the Statement Date written above
(“
Measurement Period
”) is set forth below and
[is/is not]
less than
[2.00]
/[
3.00
]
times for the Measurement
Period.
Interest Coverage Ratio is defined as follows, with respect to any period, the ratio of:
A.
Consolidated EBITDA for the Measurement Period to
$__________
B.
Consolidated Fixed Charges during the Measurement Period
$__________
C.
Interest Coverage Ratio (A
divided
______ times
9
Select for the Test Period ended on 30 September 2025.
10
Select for the Test Period ended on 30 December 2025.
11
Select for the Test Period ended on 31 March 2026.
12
Select for the Test Period ended on or after 30 June 2026.
13
Select for the Test Period ended on 30 September 2025 or 31 December 2025.
14
Select for the Test Period ended on or after 31 March 2026.
E-7
E-8
E
XHIBIT
A
C
ONSOLIDATED
EBITDA
A
Consolidated Net Income for the Measurement Period and with respect to
Holdings and its Subsidiaries for such period
$_________
B
Plus
, the sum of the following, without duplication and to the extent such
amount was deducted in calculating Consolidated Net Income for the
Measurement Period (or minus, to the extent such amount was added in
calculating such Consolidated Net Income for the Measurement Period, as
applicable) and all as determined on a consolidated basis for Holdings and
its Subsidiaries in conformity with GAAP:
$_________
1.
Consolidated Interest Expense
2.
Income tax expense (benefit or expenses)
$_________
3.
Depreciation, depletion and amortization expense
$_________
4.
any extraordinary, discrete or non-recurring items that are excluded in
analyzing operating performance, including, without limitation, (i)
losses on debt extinguishment, (ii) uncertain stamp duty position; (iii)
losses on idled assets held for sale, (iv) gains on disposal of assets held
for sale, (v) provision for discounting and credit losses and (vi) other
foreign exchange losses (or gains, as applicable);non-cash impairment
charges or asset write-offs and non-cash charges due to cumulative
effects of changes in accounting principles
$_________
5.
unrealized gains or losses from derivative instruments included in
Consolidated Net Income
$_________
6.
the effect of any non-cash impairment charge affecting goodwill or
intangibles
Consolidated EBITDA (Lines A
plus (or minus)
$_________
Notwithstanding the foregoing, if any Subsidiary is not a wholly-owned Subsidiary, Consolidated EBITDA
will be reduced (to the extent not otherwise reduced in accordance with GAAP) by an amount equal to (A) the
amount of the Consolidated EBITDA attributable to such Subsidiary multiplied by (B) the percentage ownership
interest in the income of such Subsidiary not owned on the last day of such period by Holdings or any Subsidiary.
E-9
E
XHIBIT
B
C
ONSOLIDATED
F
IXED CHARGES
A
Consolidated Fixed Charges for the Measurement Period, being
$_________
B
the sum (without duplication) of the following:
1
Consolidated Interest Expense for such period (and for the purpose of this
definition, without deducting any interest income)
$_________
2
all cash and non-cash dividends paid, declared, accrued or
accumulated during such period on any Disqualified Stock of
Holdings or Preferred Stock of any Subsidiary held by Persons other
than Holdings or any Subsidiary, except for dividends payable in
Holding’s Capital Stock (other than Disqualified Stock); provided
that dividends declared, accrued or accounted for in one period shall
not be included in “Consolidated Fixed Charges” of a later period
when subsequently paid in such later period
$_________
C
Minus
Indebtedness not included in paragraph (d) of Section 7.02, included in Consolidated
Interest Expense, including (i) amortization of debt issuance costs, (ii) original issue
discount expense, (iii) non-cash interest expense in respect of any such Indebtedness and
(iv) non-cash impact of the unwind of the discounts related to the deferred purchase price
of the Stanwell Reserved Area/Stanwell Arrangements
$_________
E-10
E
XHIBIT
D
I
NDEBTEDNESS
Indebtedness means, with respect to any Person on any date of determination (without duplication, whether
or not contingent):
A.
The principal in respect of (i) indebtedness of such Person for borrowed money and (ii)
indebtedness evidenced by notes, debentures, bonds or other similar instruments for the
payment of which such Person is responsible or liable, including, in each case, any premium
on such indebtedness to the extent such premium has become due and payable
$_________
B.
any amount raised under any acceptance credit, bill acceptance or bill endorsement facility
or dematerialised equivalent
$_________
C.
receivables sold or discounted (other than any receivables to the extent they are sold on a
non-recourse basis)
$_________
D.
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 of money, which would, in accordance with US GAAP,
be treated as a liability in the audited consolidated financial statements of that Person (but
excluding any amount raised pursuant to the Stanwell Arrangements)
$_________
E.
all Capital Lease Obligations of such Person and all Attributable Debt in respect of
Sale/Leaseback Transactions entered into by such Person
$_________
F.
all obligations of such Person issued or assumed as the deferred purchase price of property
(but excluding obligations relating to the Stanwell Arrangements), all conditional sale
obligations of such Person and all obligations of such Person under any title retention
agreement (but excluding any accrued expenses or accounts payable or other liability to
trade creditors arising and paid in the ordinary course of business)
$_________
G.
all obligations of such Person for the reimbursement of any obligor on any letter of credit,
bank guarantee, bankers’ acceptance or similar credit transaction (but excluding any
aforementioned transactions which are backed by cash collateral, by the amount equal to
any such cash collateral)
$_________
H.
to the extent not otherwise included in this definition, Hedging Obligations of such Person
$_________
I
the amount of any liability in respect of any guarantee or indemnity for any of the Lines A
through H.
$_________
Indebtedness (The sum of Lines A through I):
$_________
Notwithstanding the foregoing, in connection with the purchase by Holdings or any Subsidiary of any
business, the term “Indebtedness” will exclude post-closing payment adjustments, earn-outs or similar obligations to
which the seller may become entitled to the extent such payment is determined by a final closing balance sheet or such
payment depends on the performance of such business after the closing;
provided
,
however
, that, at the time of closing,
the amount of any such payment is not determinable and, to the extent such payment thereafter becomes fixed and
determined, the amount is paid within 60 days thereafter.
Notwithstanding the foregoing, “Indebtedness” shall not include any Reclamation Obligations.
E-11
[SCHEDULE 2]
[PERFECTION CERTIFICATE SUPPLEMENT]
[[See attached.]]
15
to the Collateral owned by any Loan Party in the Perfection delivered on the Amendment and Restatement Effective
Date since the date of such Perfection Certificate or the date of the most recent certificate delivered, as applicable.
F-1
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A
SSIGNMENT AND
A
CCEPTANCE
This Assignment and Acceptance (the “Assignment and Acceptance”) is dated as of the Effective
Date set forth below and is entered into by and between [
Insert name of Assignor
] (the “Assignor”) and [
Insert name
of Assignee
] (the “Assignee”). It is understood and agreed that the rights and obligations of [the Assignors][the
Assignees] hereunder are several and not joint.] Capitalized terms used but not defined herein shall have the
meanings given to such terms in the Credit Agreement referenced below, receipt of a copy of which is hereby
acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby
agreed to and incorporated herein by reference and made a part of this Assignment and Acceptance as if set forth
herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the Assignee, and
the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to and in accordance with the
Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the Administrative
Agent as contemplated below (i) all of the Assignor’s rights and obligations in its capacity as a Lender under the
Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the
amount and percentage interest identified below of all of such outstanding rights and obligations of the Assignor under
the Facility (including without limitation any guarantees included in the Facility), and (ii) to the extent permitted to
be assigned under applicable law, all claims, suits, causes of action and any other right of the Assignor (in its capacity
as a Lender) against any Person, whether known or unknown, arising under or in connection with the Credit
Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby
or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims,
malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold
and assigned pursuant to clause (i) above (the rights and obligations sold and assigned by the Assignor to the Assignee
pursuant to clauses (i) and (ii) above being referred to herein collectively as the “Assigned Interest”). Each such sale
and assignment is without recourse to the Assignor and, except as expressly provided in this Assignment and
Acceptance, without representation or warranty by the Assignor.
1. Assignor: ________________________________
2. Assignee: ________________________________
identify Lender
]
3. Borrowers: Coronado Finance Pty Ltd (ACN 628 668 235) and Coronado Curragh Pty Ltd
(ACN 009 362 565), each an Australian proprietary limited company
(“
Australian Borrower
” and, together, the “
Borrowers
”)
4. Administrative Agent: Global Loan Agency Services Australia Pty Ltd (ABN 39 608 945 008) in such
capacity, as the Administrative Agent under the Credit Agreement
16
F-2
5. Credit Agreement: Syndicated Facility Agreement, dated as of 8 May 2023, by and among Coronado
Global Resources, Inc., a Delaware corporation, Coronado Australia Holdings Pty
Ltd (ACN 623 524 989), an Australian proprietary limited company, the
Borrowers, the Guarantors party thereto, each lender from time to time party
thereto, Global Loan Agency Services Australia Pty Ltd (ABN 39 608 945 008)
as administrative agent (the “
Administrative Agent
”), Global Loan Agency
Services Australia Nominees Pty Ltd (ABN 39 608 945 008) as collateral agent
(the “
Collateral Agent
”), as the same may be amended, supplemented, restated
or otherwise modified from time to time, and as last amended by the certain
Second Amendment to the Syndicated Facility Agreement, among the Borrowers
and Guarantors parties thereto, the Administrative Agent and the Collateral
Agent, dated as of [●] 2025 (the “
Credit Agreement
”).
6. Assigned Interest:
Assignor
Assignee
Facility
Assigned
Aggregate Amount
of Commitment/
Loans for all
Lenders
Amount of
Commitment/
Loans Assigned
Percentage
Assigned of
Commitment/
Loans
$
$
%
$
$
%
$
$
%
7.
Trade Date: ______________
Effective Date: _____________ ___, 20___ [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH
SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
The terms set forth in this Assignment and Acceptance are hereby agreed to:
ASSIGNOR
[NAME OF ASSIGNOR]
By:
Name:
Title:
ASSIGNEE
[NAME OF ASSIGNEE]
By:
17
determined as of the Trade Date.
F-3
Name:
Title:
[Consented to and] Accepted:
GLOBAL LOAN AGENCY SERVICES AUSTRALIA
PTY LTD
as Administrative Agent[
By:
Name:
Title:
[Consented to]:
CORONADO GLOBAL RESOURCES INC., as the Borrower Representative
By:
Name:
Title:
18
11.07(b) or the definition of “Eligible Assignee.”
19
definition of “Eligible Assignee.”
F-4
ANNEX 1 TO ASSIGNMENT AND ACCEPTANCE
SYNDICATED FACILITY AGREEMENT DATED AS OF 8 MAY 2023, BY AND AMONG
HOLDINGS, THE AUSTRALIAN PARENT, THE BORROWERS, THE GUARANTORS, THE
LENDERS PARTY THERETO FROM TIME TO TIME, GLOBAL LOAN AGENCY SERVICES
AUSTRALIA PTY LTD AS ADMINISTRATIVE AGENT , GLOBAL LOAN AGENCY SERVICES
AUSTRALIA NOMINEES PTY LTD AS COLLATERAL AGENT, AS MAY BE AMENDED,
SUPPLEMENTED, RESTATED OR OTHERWISE MODIFIED FROM TIME TO TIME
STANDARD TERMS AND CONDITIONS
1. Representations and Warranties .
owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any lien, encumbrance or other
adverse claim, (iii) it has full power and authority, and has taken all action necessary, to execute and deliver
this Assignment and Acceptance and to consummate the transactions contemplated hereby; and (b) assumes
no responsibility with respect to (i) any statements, warranties or representations made in or in connection
with the Credit Agreement or any other Loan Document, (ii) the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial
condition of the Borrowers, any of their Subsidiaries or Affiliates or any other Person obligated in respect of
any Loan Document, or (iv) the performance or observance by the Borrowers, any of their Subsidiaries or
Affiliates or any other Person of any of their respective obligations under any Loan Document.
and has taken all action necessary, to execute and deliver this Assignment and Acceptance and to consummate
the transactions contemplated hereby and to become a Lender under the Credit Agreement, (ii) it meets all
the requirements to be an assignee under Section 11.07 of the Credit Agreement (subject to such consents, if
any, as may be required thereunder), (iii) from and after the Effective Date, it shall be bound by the provisions
of the Credit Agreement as a Lender thereunder and, to the extent of the Assigned Interest, shall have the
obligations of a Lender thereunder, (iv) it is sophisticated with respect to decisions to acquire assets of the
type represented by the Assigned Interest and either it, or the Person exercising discretion in making its
decision to acquire the Assigned Interest, is experienced in acquiring assets of such type, (v) it has received
a copy of the Credit Agreement, and has received or has been accorded the opportunity to receive copies of
the most recent financial statements delivered pursuant to Section 6.01 thereof, as applicable, and such other
documents and information as it deems appropriate to make its own credit analysis and decision to enter into
this Assignment and Acceptance and to purchase the Assigned Interest, (vi) it has, independently and without
reliance upon the Administrative Agent or any other Lender and based on such documents and information
as it has deemed appropriate, made its own credit analysis and decision to enter into this Assignment and
Acceptance and to purchase the Assigned Interest, and (vii) if it is a Foreign Lender, attached to the
Assignment and Acceptance is any documentation required to be delivered by it pursuant to the terms of the
Credit Agreement, duly completed and executed by the Assignee; and (b) agrees that (i) it will, independently
and without reliance on the Administrative Agent, the Assignor or any other Lender, and based on such
documents and information as it shall deem appropriate at the time, continue to make its own credit decisions
in taking or not taking action under the Loan Documents, and (ii) it will perform in accordance with their
terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as
a Lender.
2. Payments. From and after the Effective Date, the Administrative Agent shall make all payments in
respect of the Assigned Interest (including payments of the principal amount outstanding, interest, fees and
other amounts) to the Assignor for amounts which have accrued to but excluding the Effective Date and to
the Assignee for amounts which have accrued from and after the Effective Date. Notwithstanding the
foregoing, the Administrative Agent shall make all payments of interest, fees or other amounts paid or
payable in kind from and after the Effective Date to the Assignee.
F-5
3. General Provisions. This Assignment and Acceptance shall be binding upon, and inure to the
benefit of, the parties hereto and their respective successors and assigns. This Assignment and Acceptance
may be executed in any number of counterparts, which together shall constitute one instrument. Delivery of
an executed counterpart of a signature page of this Assignment and Acceptance by telecopy shall be effective
as delivery of a manually executed counterpart of this Assignment and Acceptance. This Assignment and
Acceptance shall be governed by, and construed in accordance with, Queensland law.
G-1
E
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B
ORROWING
B
ASE
C
ERTIFICATE
To:
GLOBAL LOAN AGENCY SERVICES AUSTRALIA PTY LTD
as Administrative Agent,
From:
CORONADO GLOBAL RESOURCES INC., as Holdings,
CORONADO AUSTRALIA HOLDINGS PTY LTD, as Australian Parent
CORONADO FINANCE PTY LTD, as Australian Borrower
CORONADO CURRAGH PTY LTD as Australian Borrower
and
THE GUARANTORS PARTY TO THE AGREEMENT
Syndicated Facility Agreement dated [ ] (the "Agreement")
I refer to the Agreement. Words defined in this Certificate have the same meaning as in the “Agreement” unless the
context otherwise requires. This is a Borrowing Base Certificate.
This Borrowing Base Certificate is delivered with respect to the [Last Day of the Month or the Week whichever is
applicable] (“
Reporting Date
”).
Borrowing Base as on the Reporting Date is as follows:
Asset Type
Country
Valuation
Basis
Amount (in
USD)
Advance
Rate
Borrowing
Base Value in
USD
Eligible Inventory
US
Lower of
Inventory
Value or
Market Value
70%
Eligible Accounts
US
face value
(exclusive of
GST, VAT and
other Taxes)
Up to 70%
Asset Type
Country
Valuation
Basis
Valuation
Amount (in
USD)
Advance
Rate
Borrowing
Base Value in
USD
Coal Inventory subject to
Eligible Unbilled US
Accounts
US
Lower of
Inventory
Value or
Market Value,
capped at 30%
Up to 70%
G-2
of the face
value
(exclusive of
GST, VAT and
other Taxes) of
total Eligible
Accounts
Eligible Inventory
AU
Lower of
Inventory
Value or
Market Value
70%
Eligible Accounts
(excluding Australian
Provisional Invoices)
AU
face value
(exclusive of
GST, VAT and
other Taxes)
70%
Eligible Accounts
(comprised of Accounts
from Australian
Provisional Invoices only)
AU
face value
(exclusive of
GST, VAT and
other Taxes)
70%
Total
Reserves adjusted total
(see paragraph (f) below)
Attached are copies of the following:
1 Eligible Inventory Storage Summary detailing the locations, aging, grade and commodities stored by the
Loan Parties along with Inventory Value and Market Values (supported by relevant market index
information).
2 Eligible Accounts Summary detailing debtors and amounts outstanding by age from original due date.
3 Eligible Unbilled US Accounts Summary detailing debtors and amounts outstanding by age from original
due date.
4 Electronic file (Excel file) containing raw data together with relevant calculations to determine the
Borrowing Base.
The Company represents and warrants to the Security Trustee/ Collateral Agent and the Lenders that:
(a)
the Borrowing Base Certificate is accurate in all material respects and not deficient, misleading or
deceptive in any material respect (whether by its inclusion or by omission of other information),
including whether or not an asset included towards calculation of the Borrowing Base constitutes an
Eligible Inventory, Eligible Account and Eligible Unbilled US Account (as applicable);
(b)
all assets listed in the Borrowing Base Certificate are:
(i)
secured by a Collateral Document in favour of the Security Trustee; and
G-3
(ii)
legally and beneficially owned by a Loan Party; and
(iii)
free from any Lien (other than those created under the Collateral Documents) ; and
(iv)
are insured to the limits required by the Agreement and otherwise to the Administrative
Agent's satisfaction (acting on the instructions of all Lenders); and
(c)
all insurance policies required to be maintained under Section 6.11 of the Agreement are in effect and
current; and
(d)
[none of the Permitted Factoring Arrangements are currently being drawn down or utilized or have
been drawn down or utilized since the date of the last Borrowing Base Certificate]
OR
[[Insert description of Permitted Factoring Arrangement] is currently being drawn down or utilized or
has been drawn down or utilized since the date of the last Borrowing Base Certificate in respect of the
following Accounts or receivables:
-
[insert description of relevant Accounts/receivables],
and these Accounts or receivables have not been included in any Borrowing Base calculations.]
(e)
We confirm that the cap on Coal Inventory subject to Eligible Unbilled US Accounts (being 30% of
the face value (exclusive GST, VAT and other Taxes) of total Eligible Accounts) is USD$[•] and the
Borrowing Base Value in USD for Coal Inventory subject to Eligible Unbilled US Accounts is equal
to or less than this amount.
(f)
In accordance with paragraph (d) of the definition of “Borrowing Base”, the Borrowing Base is reduced
by:
(i)
if the aggregate amount of any Reserves then in effect does not exceed US$35,000,000, 70%
of such Reserves; or
(ii)
if the aggregate amount of any Reserves then in effect exceeds US$35,000,000 (such excess
amount being the “
Excess Reserve Amount
”), an amount equal to the sum of
US$24,500,000 and 100% of the Excess Reserve Amount.
(g)
Without limitation to any other requirement for an “Eligible Account”, no Accounts from any single
Account Debtor and its Affiliates in aggregate exceeds 40% of the aggregate amount of all “Eligible
Accounts” subject to this Certificate.
(h)
Without limitation to any other requirement for an “Eligible Inventory”, only Inventory consisting of
metallurgical coal forms part of the “Eligible Inventory” and the “Borrowing Base” subject to this
Certificate.
Dated [•]
Signed:
[
Chief Financial Officer/Chief Executive Officer/Group Financial Controller
]
of Holdings (for itself and on behalf of each other Loan Party)
G-4
[SIGNATURE PAGES FOLLOW]
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UPPLEMENT
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K
F
ORM OF
A
SSUMPTION
A
GREEMENT
(this “
Assumption Agreement
”)
ASSUMPTION AGREEMENT, dated as of __________, 20___, made by __________________, a
________________ [corporation] [limited liability company] [limited partnership] (the “
Additional Loan Party
”),
in favor of Global Loan Agency Services Australia Pty Ltd (ABN 39 608 945 008) as administrative agent (in such
capacity, the “
Administrative Agent
”) for the banks and other financial institutions (the “
Lenders
”) parties to the
Credit Agreement referred to below. All capitalized terms not defined herein shall have the meaning ascribed to
them in such Credit Agreement.
WITNESSETH:
WHEREAS, Coronado Global Resources Inc., a Delaware corporation (“
Holdings
”), Coronado Australia
Holdings Pty Ltd (ACN 623 524 989), an Australian proprietary limited company (“
Australian Parent
”), Coronado
Finance Pty Ltd (ACN 628 668 235) and Coronado Curragh Pty Ltd (ACN 009 362 565), each an Australian
proprietary limited company (“
Australian Borrower
” and, together, the “
Borrowers
”), the Guarantors party thereto,
each lender from time to time party thereto, Global Loan Agency Services Australia Pty Ltd (ABN 39 608 945 008)
as administrative agent (the “
Administrative Agent
”), Global Loan Agency Services Australia Nominees Pty Ltd
(ABN 39 608 945 008) as collateral agent (the “
Collateral Agent
”), have entered into that certain Syndicated Facility
Agreement, dated as of 8 May 2023 (as the same may be amended, supplemented, restated or otherwise modified from
time to time, and as last amended by the certain Second Amendment to the Syndicated Facility Agreement, among
the Borrowers and Guarantors parties thereto, the Administrative Agent and the Collateral Agent, dated as of [●] 2025,
the “
Credit Agreement
”);
WHEREAS, the Credit Agreement provides for a guarantee by the Guarantors in favor of the Administrative
Agent for the benefit of the Secured Parties;
WHEREAS, the Credit Agreement requires the Additional Loan Party to become a party to thereto as a loan
party and guarantee the Obligations thereunder pursuant to Article 10 therefor; and
WHEREAS, the Additional Loan Party has agreed to execute and deliver this Assumption Agreement in
order to become a party to the Credit Agreement and the Security Agreement;
NOW, THEREFORE, IT IS AGREED:
1. By executing and delivering this Assumption Agreement, the Additional Loan
Party, as provided in Section 6.16 of the Credit Agreement, hereby becomes a party to the Credit
Agreement as [both a Borrower and] a Guarantor thereunder with the same force and effect as if
originally named therein as [a Borrower and] a Guarantor and, without limiting the generality of
the foregoing, hereby expressly assumes all obligations and liabilities of [a Borrower and] a
Guarantor thereunder.
2. The Additional Loan Party hereby represents and warrants that (i) each of the
representations and warranties, to the extent applicable to [a Borrower and] a Guarantor, contained
in the Credit Agreement and in each other Loan Document, is true and correct in all material
respects (or, if such representation or warranty is subject to materiality or Material Adverse Effect
qualification, in all respects) on and as the date hereof as if made on and as of such date (after
giving effect to this Assumption Agreement), except to the extent that such representations and
warranties specifically refer to an earlier date, in which case they shall be true and correct in all
K-2
material respects as of such earlier date and (ii) at the time of and immediately after the date hereof,
no Default or Event of Default has occurred or is continuing, or would result from such Person
becoming [a Borrower and] a Guarantor under the Credit Agreement.
3. The Additional Loan Party agrees that the guarantees of the Obligations contained
in the Credit Agreement will apply to the Obligations of the Additional Loan Party, to the extent
applicable in accordance with the terms thereof. Upon execution of this Assumption Agreement
by each of the Existing Borrowers, the Additional Loan Party and the Administrative Agent, and
the satisfaction of the conditions set forth in Section 6.16 of the Credit Agreement, the Additional
Loan Party (i) shall be a party to the Credit Agreement and the other Loan Documents and shall
constitute [a “Borrower” and] a “Guarantor” for all purposes thereof with the same force and effect
as if originally named [a Borrower and] a Guarantor therein and (ii) agrees to be bound by all
provisions of the Credit Agreement and the other Loan Documents and shall have all the rights
and obligations of [a Borrower or] a Guarantor thereunder.
4. The Additional Loan Party hereby ratifies and agrees to be bound by Section 11.19
(
Joint and Several Liability
) of the Credit Agreement and the appointment of the Borrower
Representative under Section 11.21 of the Credit Agreement.
5.
Governing Law
. THIS ASSUMPTION AGREEMENT AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, QUEENSLAND
LAW .
6.
Counterparts
.
by different parties hereto in different counterparts), each of which shall constitute an original, but
all of which when taken together shall constitute a single contract. The words “delivery,”
“execution,” “execute,” “signed,” “signature,” and words of like import in or related to this
Agreement or any document to be signed in connection with this Assumption Agreement and the
transactions contemplated hereby shall be deemed to include electronic signatures which shall be
of the same legal effect, validity or enforceability as a manually executed signature, to the extent
and as provided for in any applicable law, including the Federal Electronic Signatures in Global
and National Commerce Act, the New York State Electronic Signatures and Records Act, or any
other similar state laws based on the Uniform Electronic Transactions Act
[SIGNATURE PAGES FOLLOW]
[Signature Page to Assumption Agreement]
IN WITNESS WHEREOF, the undersigned has caused this Assumption Agreement to be duly
executed and delivered as of the date first above written.
[ADDITIONAL LOAN PARTY ]
By:
Name:
Title:
L-1
E
XHIBIT
L
TO
C
REDIT
A
GREEMENT
F
ORM OF
S
OLVENCY
C
ERTIFICATE
________________ 2023
This Solvency Certificate is being delivered pursuant to that certain Syndicated Facility Agreement,
dated as of the date hereof (
as the same may be amended, supplemented, restated or otherwise modified from time
to time
, the “Agreement”), by and among CORONADO GLOBAL RESOURCES INC., a Delaware
corporation (“Holdings”), CORONADO AUSTRALIA HOLDINGS PTY LTD (ACN 623 524 989), an
Australian proprietary limited company (the “Australian Parent”), CORONADO FINANCE PTY LTD
(ACN 628 668 235), an Australian proprietary limited company ("Coronado Finance”), CORONADO
CURRAGH PTY LTD (ACN 009 362 565), an Australian proprietary limited company ("Coronado
Curragh”) (“Coronado Curragh”, and together with “Coronado Finance”, “Borrowers”), certain
Subsidiaries of Holdings party thereto from time to time, as Guarantors, each lender from time to time party
thereto, GLOBAL LOAN AGENCY SERVICES AUSTRALIA PTY LTD (ABN 68 608 829 303), as the
Administrative Agent, GLOBAL LOAN AGENCY SERVICES AUSTRALIA NOMINEES PTY LTD
(ABN 39 608 945 008), as collateral agent, and THE HONGKONG AND SHANGHAI BANKING
CORPORATION LIMITED, SYDNEY BRANCH (ABN 65 117 925 970) and DBS BANK LIMITED,
AUSTRALIA BRANCH (ARBN 601 105 373), as L/C Issuers. Capitalized terms used but not otherwise
defined herein shall have the respective meanings assigned to such terms in the Agreement.
The undersigned, being a Responsible Officer of Holdings, hereby certifies to the Administrative
Agent, in his capacity as a Responsible Officer of Holdings, and not in any individual capacity, on behalf
of Holdings and each other Loan Party, as follows:
(a)
I am generally familiar with the businesses and assets of Holdings and its Subsidiaries, taken as a
whole, and am duly authorized to execute this Solvency Certificate on behalf of Holdings and its
Subsidiaries pursuant to Section 4.01(a)(xi) the Credit Agreement. I have reviewed the Agreement
and the other Loan Documents referred to therein and the contents of this Solvency Certificate and
such other documents as I have deemed relevant and, in connection herewith, have made such
investigation as I have deemed necessary therefor.
(b)
As of the Closing Date, and after giving effect to the Transactions and the incurrence of the
Indebtedness and obligations being incurred in connection with the Agreement and the Transactions,
(i) the sum of the debt (including contingent liabilities) of Holdings and its Subsidiaries, on a
consolidated basis, does not exceed the fair value of the present assets of Holdings and its
Subsidiaries on a consolidated basis, (ii) the present fair saleable value of the assets of Holdings and
its Subsidiaries, on a consolidated basis, is not less than the amount that will be required to pay the
probable liabilities (including contingent liabilities) of Holdings and its Subsidiaries, on a
consolidated basis, as they become absolute and matured, (iii) the capital of Holdings and its
Subsidiaries, on a consolidated basis, is not unreasonably small in relation to the business of
Holdings or its Subsidiaries, on a consolidated basis, contemplated as of the Closing Date, (iv)
Holdings and its Subsidiaries, on a consolidated basis, do not intend to incur, or believe that they
will incur, debts (including current obligations and contingent liabilities) beyond their ability to pay
such debt as they mature in the ordinary course of business, and (v) Holdings and its Subsidiaries
are not otherwise unable to pay its or their respective debts. For the purposes hereof, the amount of
any contingent liability at any time shall be computed as the amount that, in light of all of the facts
and circumstances existing at such time, represents the amount that can reasonably be expected to
become an actual or matured liability.
[Signature Page to Solvency Certificate]
IN WITNESS WHEREOF
, the undersigned has executed this Solvency Certificate as of the date
first set forth above.
CORONADO GLOBAL RESOURCES INC.
By: ___________________________________
Name:
Title: