Exhibit 10.5
Execution version
Third Amendment to the Syndicated
Facility Agreement
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
and
Australian Security Trustee
”)
Jones Day
Aurora Place
Level 41, 88 Phillip Street
Sydney NSW 2000, Australia
Tel: 61 2 8272 0500
Fax: 61 2 8272 0599
www.jonesday.com
i
Contents
4
4
4
4
4
5
5
5
5
5
5
6
`
6
6
6
6
6
6
6
6
6
6
7
7
7
7
8
1
1
2
Details
Date
27 November 2025
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)
Collateral Agent
and
Australian
Security Trustee
Name
Global Loan Agency Services Australia Nominees Pty Ltd
3
ACN
608 945 008
Address
Level 4, 88 Phillip Street
Sydney NSW 2000
Telephone
Email
Attention
Transaction Management Group (Coronado)
4
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
this document.
Effective Time
Deed.
Obligor
Original SFA
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).
Refinancing Coordination Deed
or about the date of this document between, among others, each Borrower, each Guarantor, the
Administrative Agent and the Collateral Agent.
SFA
(a) prior to the Effective Time, the Original SFA; and
(b) on and from the Effective Time, the Amended SFA.
1.3 Interpretation
(a) Clause 1.2 ("Construction") 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 4.4 ("Sequencing") of the Refinancing Coordination Deed.
2. Capacity of the Administrative Agent and Collateral 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 under the SFA.
(b) The Administrative Agent confirms that the Lenders have authorised it to enter into this
document (in its own capacity and on behalf of them) in accordance with section 11.01
("Amendments and waivers") of the SFA and that its liability is limited to the extent set out in
the SFA.
(c) The Collateral Agent enters into this document as collateral agent appointed pursuant to:
5
(i) section 9 (
Administrative Agent
) of the Original SFA; and
(ii) clause 25 (
Role and appointment of the Collateral Agent
) of the Amended SFA,
and also in its capacity as Australian Security Trustee appointed pursuant to the Australian
Security Trust Deed.
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 Remaining provisions unaffected
(a) This document is intended only to vary the Original SFA and not to terminate, discharge,
rescind or replace it.
(b) Except as specifically amended by this document, the provisions of the Original SFA remain
in full force and effect.
(c) The amendments to the Original SFA in clause 3.1 ("Amendments to the Original SFA") do
not affect the validity or enforceability of the Original SFA or any other Finance Document.
(d) Nothing in this document:
(i) prejudices or adversely affects any right, power, authority, discretion or remedy
arising under the Original SFA or any other Finance Document before the Effective
Time; or
(ii) discharges, releases or otherwise affects any liability or obligation arising under the
Original SFA or any other Finance Document before the Effective Time.
(e) On and with effect from the Effective Time:
(i) each party is bound by the Amended SFA; and
(ii) any reference in the Finance Documents (except in this document) to the Original
SFA is a reference to the Amended SFA.
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 to the Original SFA ") 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.
6
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 Collateral Agent, the Australian Security Trustee and the Administrative
Agent under a Finance Document remains in full force and effect and continues to secure that Obligor's
obligations and liabilities under the Amended SFA and other relevant Finance Documents.
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. General
7.1 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 clause 30 (“Notices”) of the Amended SFA.
7.2 Finance Document
This document is a Finance Document for the purposes of the SFA.
7.3 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.
7.4 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.
7.5 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.
7.6 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.
7
7.7 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.
7.8 Counterparts
(a) This document may be executed in any number of counterparts or copies, each of which may
be executed by physical signature in wet ink or electronically (whether in whole or part). A
Party who has executed a counterpart of this document may exchange it with another Party
(the
Recipient
) by:
(i) emailing a copy of the executed counterpart to the Recipient; or
(ii) utilising an electronic platform (including DocuSign) to circulate the executed
counterpart,
and will be taken to have adequately identified themselves by so emailing the copy to the
Recipient or utilising the electronic platform.
(b) Each Party consents to signatories and Parties executing this document by electronic means
and to identifying themselves in the manner specified in this clause.
(c) Each counterpart constitutes an original (whether kept in electronic or paper form), all of
which together constitute one instrument as if the signatures (or other execution markings) on
the counterparts or copies were on a single physical copy of this document in paper form.
Without limiting the foregoing, if any of the signatures or other markings on behalf of one
Party are on different counterparts or copies of this document, this shall be taken to be, and
have the same effect as, signatures on the same counterpart and on a single copy of this
document.
7.9 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.
7.10 Conflict
If there is a conflict between the Finance Documents, the Original SFA and this document, the terms of
this document prevail.
8
Schedule 1- Guarantors
Guarantor
Jurisdiction
Coronado Global Resources Inc.
Delaware
Coronado Finance Pty Ltd ACN 628 668 235
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 ACN 623 524 989
Australia
Coronado Curragh LLC
Delaware
Coronado Curragh Pty Ltd ACN 009 362 565
Australia
Curragh Coal Sales Co. Pty. Ltd. ACN 010 459 220
Australia
Curragh Queensland Mining Pty Ltd ACN 095 450 418
Australia
Signature page – Third Amendment to the Syndicated Facility Agreement
Signing page
EXECUTED
BORROWERS AND GUARANTORS
SIGNED, SEALED AND DELIVERED
by
CORONADO FINANCE PTY LTD
in
accordance with section 127(1) of the
Corporations Act 2001
(Cth) by:
/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
SIGNED, SEALED AND DELIVERED
by
CORONADO CURRAGH PTY LTD
in accordance with section 127(1) of the
Corporations Act 2001
(Cth) by:
/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
Signature page – Third Amendment to the Syndicated Facility Agreement
GUARANTORS
SIGNED, SEALED AND DELIVERED
by
CORONADO AUSTRALIA
HOLDINGS PTY LTD
in accordance
with section 127(1) of the
Corporations Act
2001
(Cth) by:
/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
SIGNED, SEALED AND DELIVERED
by
CURRAGH COAL SALES CO. PTY.
LTD.
in accordance with section 127(1) of
the
Corporations Act 2001
(Cth) by:
/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
SIGNED, SEALED AND DELIVERED
by
CURRAGH QUEENSLAND
MINING PTY LTD
in accordance with
section 127(1) of the
Corporations Act
2001
(Cth) by:
/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
Signature page – Third Amendment to the Syndicated Facility Agreement
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
Signature page – Third Amendment to the Syndicated Facility Agreement
ADMINISTRATIVE AGENT
SIGNED, SEALED AND DELIVERED
by
as attorney for
GLOBAL LOAN
AGENCY SERVICES AUSTRALIA
PTY LTD
under power of attorney dated
2 February 2022 in the presence of:
/s/ Andrea Fok
Signature of witness
Andrea Fok
Name of witness (block letters)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
/s/ Luke Goldsworthy
By executing this document the attorney
states that the attorney has received no
notice of revocation of the power of
attorney
COLLATERAL AGENT AND AUSTRALIAN SECURITY TRUSTEE
SIGNED, SEALED AND DELIVERED
by
as attorney for
GLOBAL LOAN
AGENCY SERVICES AUSTRALIA
NOMINEES PTY LTD
under power of
attorney dated 2 February 2022 in the
presence of:
/s/ Andrea Fok
Signature of witness
Andrea Fok
Name of witness (block letters)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
/s/ Luke Goldsworthy
By executing this document the attorney
states that the attorney has received no
notice of revocation of the power of
attorney
Annexure A - Amended SFA
Execution Version
(Australian Branch)
AMENDED AND RESTATED SYNDICATED FACILITY AGREEMENT
for
CORONADO GLOBAL RESOURCES INC.
with
GLOBAL LOAN AGENCY SERVICES AUSTRALIA PTY LTD
acting as Agent
GLOBAL LOAN AGENCY SERVICES AUSTRALIA NOMINEES PTY LTD
acting as Collateral Agent and Australian Security Trustee
Jones Day
Aurora Place
Level 41, 88 Phillip Street
Sydney NSW 2000, Australia
Tel: 61 2 8272 0500
Fax: 61 2 8272 0599
www.jonesday.com
- i -
CONTENTS
Clause
Page
3
57
57
58
59
61
61
63
64
64
65
65
69
70
70
72
77
87
92
93
105
109
114
118
127
127
128
131
136
136
139
141
141
141
143
143
146
147
147
147
147
149
149
149
151
151
153
154
- ii -
154
154
156
157
157
161
162
163
164
Schedule 9 Transaction Security
164
Part I Blocked Account Security
164
Part II Australian Real Property Mortgages
164
Part III U.S. Real Property Mortgages
164
167
167
- 3 -
THIS AGREEMENT
and Restatement Effective Date and made between:
(1)
CORONADO GLOBAL RESOURCES INC.
Company
" or "
Holdings
");
(2)
THE SUBSIDIARIES
"
Original Borrowers
");
(3)
THE SUBSIDIARIES
(together with the Company the "
Original Guarantors
");
(4)
THE ENTITY
Original Lender
");
(5)
GLOBAL LOAN AGENCY SERVICES AUSTRALIA PTY LTD (ABN 68 608 829 303)
(the "
Agent
" and "
Administrative Agent
"); and
(6)
GLOBAL LOAN AGENCY SERVICES AUSTRALIA NOMINEES PTY LTD (ABN 39
608 945 008)
as Collateral Agent (the "
Collateral Agent
") and as Australian Security Trustee
("
Australian
Security Trustee
").
IT IS AGREED
SECTION 1
(1) INTERPRETATION
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Agreement:
"
ABL Debt Cap
" has the meaning given to the term in the Senior Secured Notes Indenture.
"
ABL Intercreditor Agreement
" means that certain New York law governed Intercreditor
Agreement, dated 12 May 2021, among the Agent, the Collateral Agent and the Senior Secured
Notes Trustee and acknowledged by each Obligor, as amended by that certain First Amendment
to Intercreditor Agreement dated as of 3 August 2023 and certain Second Amendment to
Intercreditor Agreement dated as of 2 October 2024, and as amended, restated, replaced,
supplemented, varied, assigned or otherwise modified from time to time.
"
ABL Priority Collateral
" has the meaning given to the term in the ABL Intercreditor
Agreement.
"
Acceptable Credit Support
" means
(a) a credit insurance policy satisfactory to the 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 Agent is named as the beneficiary,
loss payee or additional insured so as to insure that the Agent has the right to receive
payments thereunder; or
- 4 -
(b) an irrevocable letter of credit or bank guarantee satisfactory to the 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 Agent, the Borrowers 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 Agent and, in the case of standby letters of credit and is
directly drawable by the 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 Obligors free and clear of any Security 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 Agent (acting on the instructions of the
Majority Lenders), it being acknowledged and agreed that:
(a) subject to paragraph (b) below as at the Amendment and Restatement Effective Date
the storage locations set out in Schedule 10 (
Acceptable Storage Locations
) are
acceptable to and approved by the Agent for the purposes of this Agreement; and
(b) the Agent (acting on the instructions of the Majority 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 Obligors acknowledge and agree that the Majority Lenders would be acting
reasonably as required by this paragraph if there were no Rights of Entry satisfactory
to the Majority Lenders from time to time in place in connection with the prior
approved Acceptable Storage Location.
"
Accession Deed
" has the meaning given to the term "Accession Deed" in the Australian
Security Trust Deed.
"
Accession Letter
" means a document substantially in the form set out in Schedule 5 (
Form of
Accession Letter
).
"
Account
" has the meaning specified in the UCC, to the extent such term is being interpreted
pursuant thereto, and otherwise, the PPSA.
"
Account Debtor
" has the meaning given to such term in the UCC and the PPSA.
"
Additional Borrower
" means a company which becomes an Additional Borrower in
accordance with Clause 23 (
Changes to the Obligors
).
"
Additional Guarantor
" means a company which becomes an Additional Guarantor in
accordance with Clause 23 (
Changes to the Obligors
).
"
Additional Obligor
" means an Additional Borrower or an Additional Guarantor.
"
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.
- 5 -
"
Amendment and Restatement Effective Date
" means the date on which the Agent notifies
the other parties to the Refinancing Coordination Deed that the Effective Time (as defined in
the Refinancing Coordination Deed) has occurred.
"
Anti-Corruption Laws
" means all laws of any jurisdiction applicable to any Obligor from
time to time concerning or relating to bribery or corruption, including without limitation the
U.S. Foreign Corrupt Practices Act of 1977, 15 U.S.C. §§ 78dd-1, et seq and the United
Kingdom Bribery Act 2010.
"
Anti-Money Laundering Laws
" means all laws of any jurisdiction applicable to any Obligor
from time to time concerning or relating to money laundering, including, without limitation,
the U.S. Patriot Act and the
Anti-Money Laundering and Counter-Terrorism Financing Act
2006
"
Anti-Terrorism Laws
" means all laws of any jurisdiction applicable to any Obligor from time
to time concerning or relating to terrorism, including, without limitation, Title III of the U.S.
Patriot Act, the U.S. Trading with the Enemy Act, 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
"
Assignment Agreement
" means an agreement in the form agreed between the Agent and the
relevant assignor and assignee.
"
ASX
" means the Australian Securities Exchange.
"
Auditors
" means KPMG, Ernst Young, PWC or Deloitte, or any other firm approved in
advance by the Majority Lenders (such approval not to be unreasonably withheld or delayed).
"
Australian General Security Deed
" means the general security deed dated 3 August 2023
between the Australian Security Trustee and each of the Obligors party thereto, as amended,
restated, amended and restated, supplemented or otherwise modified from time to time.
"
Australian Mining Mortgage
" means the mining mortgage dated 3 August 2023 between the
Australian Security Trustee and CCPL in respect of the Australian Mining Tenements, as
amended, restated, amended and restated, supplemented or otherwise modified from time to
time.
"
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, 329 and any renewals, extensions and amendments
thereof and any tenements issued to CCPL.
"
Australian Obligor
" means each Obligor incorporated in Australia.
"
Australian Parent
" means Coronado Australia Holdings Pty Ltd (ACN 623 524 989).
"
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
- 6 -
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 Obligor 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 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), Security, choate or inchoate, which rank or are capable of
ranking in priority to the Transaction Security and/or for amounts which represent costs relating
to the enforcement of the Transaction Security 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 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 an Obligor’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 Security Documents
" or "
Australian Collateral Document
" means:
(a) the Australian General Security Deed;
(b) the Australian Mining Mortgage;
(c) each Australian real property mortgage referred to in Part II of Schedule 9; and
(d) any other document designated as such by the Agent and the Company.
"
Australian
Security Trust Deed
" means the security trust deed dated 12 May 2021, by and
among each of the Obligors party thereto and the Australian Security Trustee, as amended,
restated, amended and restated supplemented or otherwise modified from time to time.
"
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 Tax Consolidated Group
" means a 'Consolidated Group' or a 'MEC Group', each
as defined in the ITAA 1997.
- 7 -
"
Australian TFA
" means 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 Obligors 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).
"
Australian Withholding Tax
" means any Tax required to be withheld or deducted from any
interest or other payment under Division 11A of Part III of the Tax Act or Subdivision 12-F of
Schedule 1 to the Taxation Administration Act 1953 (Cth).
"
Australian Subordination Deed
" means the subordination deed dated 2 October 2024, by
and among the Agent, the Senior Secured Notes Trustee, each of the Obligors party thereto and
others, 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 Obligor and Coronado
Curragh LLC.
"
Authorisation
" means:
(a) an authorisation, consent, approval, resolution, licence, exemption, filing or
registration; or
(b) in relation to anything which will be fully or partly prohibited or restricted by law if a
Governmental Agency intervenes or acts in any way within a specified period after
lodgement, filing, registration or notification, the expiry of that period without
intervention or action.
- 8 -
"
Availability Period
" means the period from and including the later of:
(a) the Amendment and Restatement Effective Date; and
(b) 1 December 2025,
to and including the date falling 30 days before the Termination Date.
"
Available Commitment
" or "
Availability
" means a Lender's Commitment minus:
(a) the amount of its participation in any outstanding Utilisations; and
(b) in relation to any proposed Utilisation, the amount of its participation in any
Utilisations that are due to be made under that Facility on or before the proposed
Utilisation Date,
other than that Lender's participation in any Utilisations that are due to be repaid or prepaid
on or before the proposed Utilisation Date.
"
Available Facility
" means the aggregate for the time being of each Lender's Available
Commitment.
"
Bankruptcy Code
" means Title 11 of the United States Code.
"
Beneficiaries
" has the meaning given to it in the Australian Security Trust Deed.
"
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 Obligor, an agreement among
the Agent, such Obligor and the applicable depository bank, securities intermediary or
commodity intermediary, sufficient to grant "control" to the Collateral Agent or Australian
Security Trustee (as applicable) (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, including each document referred to in Part I of Schedule 9,
in each case, as amended, restated, amended and restated, supplemented or otherwise modified
from time to time
"
Borrower
" means an Original Borrower or an Additional Borrower unless it has ceased to be
a Borrower in accordance with Clause 23 (
Changes to the Obligors
).
"
Borrowing
" means any borrowing consisting of simultaneous Loans.
- 9 -
"
Borrowing Base
" means , at any time, the sum of:
(a) the lower of the Inventory Value or Market Value of Eligible Inventory;
plus
(b) the face value (exclusive GST, VAT and other Taxes) of Eligible Accounts;
plus
(c) the lower of Inventory Value or Market Value of Coal Inventory that is subject to
Eligible Unbilled US Accounts;
plus
(d) fifty (50%) of the book value of all Inventory (other than Coal Inventory);
less
(e) to the extent not included in the calculation of clauses (a) through (d) above, 100% of
the Reserves.
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 Obligors.
"
Borrowing Base Certificate
" means a certificate substantially in the form set out in Schedule
8 (
Form of Borrowing Certificate
).
"
Borrowing Base Undertaking
" means the undertaking set out in Clause 19.1(a) (
Financial
Covenants
).
"
Borrowing Base Ratio
" means, at any time, the ratio, expressed as a percentage, of:
(a) the Borrowing Base at that time; to
(b) the aggregate amount of all outstanding Loans at that time converted into U.S. dollars
at the Fixed Rate of Exchange.
"
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 given to the term in Clause 17.22(a) (
Environmental compliance
).
"
Business Day
" means a day (other than a Saturday or Sunday) on which banks are open for
general business in Sydney and Brisbane.
"
Capital Stock
" means:
(a) in the case of a corporation, corporate stock, including, in the case of the Company,
shares of common stock of the Company publicly traded on the Australian Securities
Exchange in the form of CHESS Depositary Interests convertible at the option of the
holders into shares of the Company's 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
- 10 -
(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.
"
Cash Equivalents
" means at any time:
(a) U.S. 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 US$500,000,000;
(e) repurchase obligations with a term of not more than 30 days for underlying securities
of the types described in paragraphs (b), (c) and (d) above entered into with any
financial institution meeting the qualifications specified in clause (d) above;
(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) through (f) of this definition; and
(h) investments consisting of purchases of local currencies of those countries in which the
Company or any of its Subsidiaries transacts business from time to time in the ordinary
course of business,
(i) investments of comparable tenor and credit quality to those described in paragraphs (a)
through (g) customarily utilized in countries in which the Company or such
Subsidiaries operate for short-term cash management purposes; and
(j) overnight bank deposits, time deposit accounts, certificates of deposit, banker’s
acceptances and money market deposits (and similar instruments) with maturities 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
- 11 -
of any jurisdiction (other than Specified Countries) in which the Company or any of its
Subsidiaries transacts business from time to time in the ordinary course of business.
"
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 of Control
" has the meaning given to the term in the Stanwell Deed of Amendment
No. 2.
"
Change of Control Prepayment Event
" means the Company being required to repay all
Rebate Amounts (as defined in the Stanwell Deed of Amendment No. 2) and interest on such
Rebate Amounts pursuant to clause 4.2 (
Change of Control
) under the Stanwell Deed of
Amendment No. 2.
"
Coal
" means coal owned by the Company or any of its Subsidiaries, or coal that the Company
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, the Company 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 Coal.
"
Code
" means the U.S. Internal Revenue Code of 1986.
"
Collateral
" means all of the property and assets of the Obligors, whether real, personal or
mixed (other than Excluded Assets of a U.S. Obligor or Foreign Excluded Assets of a Foreign
Subsidiary that is an Obligor) that is, under the terms of the Collateral Documents (including
the Australian Security Documents) subject to the Transaction Security in favour of the
Collateral Agent (including in its capacity as the Australian Security Trustee (as applicable)) in
each case 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 Agent (or a Lender) maintained with a bank reasonably acceptable to the Agent
(or a Lender) and designated by the Borrowers as the “Coronado Collateral Account”.
"
Collateral Documents
" or "
ABL Security Documents
" means:
(a) the Security Agreement;
(b) each Real Property Mortgage;
(c) the Australian General Security Deed;
(d) the Australian Mining Mortgage;
(e) the Intellectual Property Security Agreement;
- 12 -
(f) the English Deed of Assignment;
(g) the Singapore Deed of Assignment; and
(h) any other document designated as such by the Agent and the Company.
"
Commitment
" means:
(a) in relation to an Original Lender, the amount set opposite its name under the heading
"Commitment" in Part II of Schedule 1 (
The Original Parties
) and the amount of any
other Commitment transferred to it under this Agreement; and
(b) in relation to any other Lender, the amount of any Commitment transferred to it under
this Agreement,
to the extent not cancelled, reduced or transferred by it under this Agreement.
"
Commodities Account
" has the meaning specified in the UCC.
"
Compliance Certificate
" means a certificate substantially in the form set out in Schedule 7
(
Form of Compliance Certificate
).
"
Confidential Information
" or "
Information
" means all information relating to the Company,
any Obligor, the Group, the Finance Documents or the Facility of which a Finance Party
becomes aware in its capacity as, or for the purpose of becoming, a Finance Party or which is
received by a Finance Party in relation to, or for the purpose of becoming, a Finance Party
under, the Finance Documents or the Facility from either:
(a) any member of the Group or any of its advisers; or
(b) another Finance Party, if the information was obtained by that Finance Party directly
or indirectly from any member of the Group or any of its advisers,
in whatever form, and includes information given orally and any document, electronic file or
any other way of representing or recording information which contains or is derived or copied
from such information but excludes information that:
(i) is or becomes public information other than as a direct or indirect result of any
breach by that Finance Party of Clause 36 (
Confidentiality
); or
(ii) is identified in writing at the time of delivery as non-confidential by any
member of the Group or any of its advisers; or
(iii) is known by that Finance Party before the date the information is disclosed to
it in accordance with paragraphs (a) or (b) above or is lawfully obtained by that
Finance Party after that date, from a source which is, as far as that Finance
Party is aware, unconnected with the Group and which, in either case, as far as
that Finance Party is aware, has not been obtained in breach of, and is not
otherwise subject to, any obligation of confidentiality.
- 13 -
"
Confidentiality Undertaking
" means a confidentiality undertaking substantially in a form
recommended by the APLMA from time to time or in any other form agreed between the
Company and the Agent.
"
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):
(a) Consolidated Interest Expense;
(b) income tax expense (or benefit);
(c) depreciation, depletion and amortization expense;
(d) 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 positions;
(iii) losses on idled assets held for sale;
(iv) gains on disposal of assets held for sale;
(v) provision for discounting and credit losses;
(vi) other foreign exchange losses (or gains, as applicable); and
(vii) non-cash impairment charges or asset write-offs and non-cash charges due to
cumulative effects of changes in accounting principles;
(e) unrealized gains or losses from derivative instruments included in Consolidated Net
Income; and
(f) the effect of any non-cash impairment charge affecting goodwill or intangibles,
all as determined on a consolidated basis for the Company 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 the Company or any Subsidiary.
"
Consolidated
Equity
" means the total stockholder equity of the Group as of the end of the
most recent fiscal quarter for which consolidated financial statements of the Company are
available.
- 14 -
"
Consolidated Fixed Charges
" means, for any period:
(a) the sum (without duplication) of:
(i) Consolidated Interest Expense for such period; and
(ii) all cash and non-cash dividends paid, declared, accrued or accumulated during
such period on any Disqualified Stock of the Company or Preferred Stock of
any Subsidiary held by Persons other than the Company or any Subsidiary,
except for dividends payable in the Company'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
(b) non-cash items in relation to the Stanwell Obligations or in relation to Financial
Indebtedness not included in Clause 20.16(a)(iv) (
Financial Indebtedness
), 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
Financial 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 the Company and its Subsidiaries.
"
Consolidated Net Debt
" means the aggregate outstanding principal amount of all Financial
Indebtedness (excluding, for the avoidance of doubt, the obligations relating to the Stanwell
Arrangements) of the Company and its Subsidiaries as expressed in U.S. dollars on a
consolidated basis as of such date (net of the aggregate amount of Unrestricted Cash as of such
date).
"
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 the Company are
available after deducting intangible assets.
"
Corporations Act
" means the
Corporations Act 2001
"
Costs
" means, in relation to a Finance Party (or Controller or an Attorney (each as defined in
any Collateral Document)), any costs incurred by that party including any legal costs and
expenses and any professional consultant’s fees, on a full indemnity basis.
"
Curragh Mine
" means the Company’s open-pit mines located in Queensland’s Bowen Basin,
in Australia and the subject of the Australian Mining Tenements.
"
Debtor Relief Laws
" means the Bankruptcy Code, Chapter 5 of the Corporations Act and all
other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors,
- 15 -
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 an Event of Default or any event or circumstance specified in Clause 21
(
Events of Default
) which would (with the expiry of a grace period, the giving of notice, the
making of any determination under the Finance Documents or any combination of any of the
foregoing) be an Event of Default.
"
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.
"
Deposit Account
" has the meaning specified in the UCC and includes any bank account with
a financial institution.
"
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 Financial 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 Termination 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
- 16 -
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 Financial 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 Financial
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 paragraph (a) and/or (b) above.
"
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 Facilities (or otherwise in order for the transactions
contemplated by the Finance Documents to be carried out) which disruption is not
caused by, and is beyond the control of, any of the Parties; or
(b) the occurrence of any other event which results in a disruption (of a technical or
systems-related nature) to the treasury or payments operations of a Party preventing
that, or any other Party:
(i) from performing its payment obligations under the Finance Documents; or
(ii) from communicating with other Parties in accordance with the terms of the
Finance Documents,
and which (in either such case) is not caused by, and is beyond the control of, the Party
whose operations are disrupted.
"
Distribution
" has the meaning given to the term in the Stanwell Deed of Amendment No. 2.
"
Dollar Equivalent
" or "
U.S.
Dollar Equivalent
" means with respect to any amount
denominated in a currency other than U.S. dollars, the equivalent amount thereof in U.S. dollars
as determined by the Agent at such time on the basis of the Spot Rate (determined in respect of
the applicable date of determination) for the purchase of U.S. dollars with such currency.
"
Domestic Subsidiary
"
means any Subsidiary of the Company 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
- 17 -
(b) any other entity approved by the Agent.
"
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 Obligor; provided
that unless otherwise approved from time to time in writing by the Agent (acting on the
instructions of the Majority Lenders), no Account shall constitute an Eligible Account if,
without duplication:
(a) except as provided in paragraph (v) below in relation to an Account where the Account
Debtor is the Australian Tax Office, such Account does not arise from the sale of
Eligible Inventory of the Obligors in the ordinary course of its business;
(b) either:
(i) such Account is contingent in any respect or for any reason, not valid or
binding for any reason or the applicable Obligor’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 Obligor 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 Obligors (unless such Account Debtor has
entered into a written agreement reasonably satisfactory to the Agent to waive
such set-off, offset, deduction, defense, dispute, or counterclaim rights); or
(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 Obligors
which has not been resolved,
and, in each case of paragraph (i) and (ii) above, 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 Obligor’s credit and collection
policies, or otherwise reasonably acceptable to the Agent, has not been sent to the
applicable Account Debtor in respect of such Account within 30 days of such
preparation or otherwise reported to the Agent as Collateral (including Accounts
identified as inactive, warranty or otherwise not attributable to an Account Debtor);
(f) such Account:
- 18 -
(i) is not owned by an Obligor;
(ii) is subject to any factoring arrangement entered into by an Obligor including
any Permitted Factoring Arrangement; or
(iii) is subject to any Security (other than Security referred to in paragraphs (g) and
(s) of the definition of Permitted Lien (and, to the extent such Security is senior
to the Security securing the Obligations, a Reserve in an amount satisfactory
to the 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) an Obligor or any of its Affiliates, or any of their respective directors, officers,
employees or agents;
(ii) a natural Person;
(h) such Account:
(i) is subject to a partial payment plan;
(i) was not paid in full, and any Obligor created a new receivable for the unpaid
portion of such Account; or
(ii) 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 Obligors 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;
(m) 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
- 19 -
instrument for the payment of money has been received, presented for payment and
returned uncollected for any reason;
(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) above;
(o) such Account is one as to which the Transaction Security attached thereon, for the
benefit of itself and the other Secured Parties, is not a valid first priority perfected
Security (subject to Permitted Liens for which a Reserve in an amount satisfactory to
the 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 Finance
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 U.S. dollars or Australian dollars;
(r) either:
(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 Agent (acting on the instructions of the Majority Lenders);
unless:
(A) in the case of paragraph (r)(i) above, subject to the prior written
consent of the Agent (acting on the instructions of the Majority
Lenders):
(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 Agent (acting on the
instructions of the Majority Lenders); and
(2) payment with respect to such Account is supported by
Acceptable Credit Support; and
- 20 -
(B) in the case of paragraph (r)(ii) above, subject to the prior written
consent of the Agent (acting on the instructions of the Majority
Lenders):
(1) the applicable Obligor:
(I) has delivered a written notice, in form and substance
reasonably acceptable to the Agent, to such Account Debtor
that such Obligor 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 Agent, to each
Notification from each such Account Debtor; and
(2) 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
(3) the law governing the Account is a jurisdiction acceptable to
the Agent (acting on the instructions of the Majority 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 Obligor
has duly assigned its rights to payments of such Account to the 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 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 an
Obligor 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 an Obligor to seek judicial enforcement in such state of
payment of such Account, unless such Obligor 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;
- 21 -
(v) such Account was acquired or originated by a Person acquired in an Investment (until
such time as the Agent has completed a customary due diligence investigation as to
such Accounts and such Person, which investigation may, if required by the Agent
(acting on the instructions of the Majority Lenders), include an appraisal and/or field
examination, and the 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 Agent, a Person with which dealings are prohibited or restricted
by Sanctions;
(y) any such Account that is subject to a restriction on assignment that is enforceable
against third parties and that impairs the Transaction Security on such Account or the
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) either:
(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 an Obligor of any further performance under the
contract or agreement;
(bb) if applicable, such Account is not subject to the insurance requirements in Clause 20.12
(
Insurance
); or
(cc) such Account is otherwise unacceptable to the 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:
(i) the amount of all accrued and actual discounts, claims, credits or credits
pending, promotional program allowances, price adjustments, finance charges
- 22 -
or other allowances (including any amount that any of the Obligors may be
obligated to rebate to a customer pursuant to the terms of any written agreement
or understanding);
(ii) the aggregate amount of all limits and deductions provided for in this definition
and elsewhere in the Finance Documents, if any; and
(iii) the aggregate amount of all cash received in respect of such Account but not
yet applied by an Obligor 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 Inventory
" means, at any time of determination, all Coal Inventory of the Obligors
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 Agent); provided that
unless otherwise from time to time approved in writing by the Agent (acting on the instructions
of the Majority Lenders), no Coal Inventory shall constitute Eligible Inventory if, without
duplication:
(a) the applicable Obligor does not have good and valid title to such Inventory, free and
clear of any Security (other than Permitted Liens (and, to the extent such Permitted
Liens is senior to the Transaction Security, 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)));
(b) the Transaction Security on such Inventory, for the benefit of itself and the other
Secured Parties, is not a valid first priority perfected Security (subject to Permitted
Liens for (and, to the extent such Permitted Lien is senior to the Security securing the
Obligations, a Reserve in an amount satisfactory to the 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 Finance 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 Obligors);
(e) such Inventory is not held in an Acceptable Storage Location other than any Coal
Inventory that is either:
(i) in-transit between mines and wash plants; or
(ii) from wash plants to ports;
- 23 -
(f) such Inventory is being processed or manufactured offsite (unless such processor or
manufacturer has delivered to the Agent a Landlord Lien Waiver and such other
documentation as the Agent may reasonably require);
(g) such Inventory was acquired or originated by a Person acquired in an Investment (until
such time as the Agent has completed a customary due diligence investigation as to
such Inventory and such Person, which investigation may, if required by the Agent
(acting on the instructions of the Majority Lenders), include an inventory appraisal
and/or field examination, and the Agent (acting on the instructions of the Majority
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 Obligors;
(i) any such Inventory as to which any of the Obligors takes an unrecorded book to
physical inventory reduction; or
(j) such Inventory is otherwise unacceptable to the Agent (acting reasonably on the
instructions of the Majority Lenders).
"
Eligible Unbilled US Account
" means, at any time of determination, without duplication,
each Unbilled US Account of the Obligors 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 Agent (acting on the instructions of the Majority Lenders), an
Unbilled US Account may only constitute an Eligible Unbilled US Account if:
(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.
"
English Deed of
Assignment
" means the document titled "Deed of Assignment" dated 3
August 2023 between the Collateral Agent, CCPL and Coronado IV LLC, as governed by
English law, and as amended, restated, amended and restated, supplemented or otherwise
modified from time to time.
- 24 -
"
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) preservation or protection of the Environment;
(b) 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;
(c) the U.S. Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. §§1201 et
seq., as amended;
(d) the U.S. Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 801 et seq., as
amended;
(e) human health as affected by exposure to hazardous or toxic materials substances or
wastes;
(f) acid mine drainage; or
(g) 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 Permits
" means any and all permits, licenses, registrations, certifications,
exemptions and other authorizations 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).
"
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 Obligors 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:
- 25 -
(a) a Reportable Event with respect to a Pension Plan;
(b) a withdrawal by any Obligor 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;
(c) a complete or partial withdrawal by any Obligor 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 Security 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 Obligor 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.
"
Event of Default
" means any event or circumstance specified as such in Clause 21 (
Events of
Default
).
"
Excluded Account
" means:
(a) any Deposit Account, Securities Account or Commodities Account of any Obligor
holding at all times less than US$500,000 (or its equivalent); and
(b) any other Deposit Account of any Obligor used exclusively to hold funds:
(i) to be used to pay:
(A) payroll and other employee wage and benefit payments to or for the
benefit of any Obligor's or any of its Subsidiaries' officers, directors or
employees; and/or
(B) Taxes (including sales Tax) required to be collected, remitted or
withheld by any Obligor or any of its Subsidiaries;
(ii) being zero balance disbursement accounts, or
(iii) which any Obligor or any of its Subsidiaries holds on behalf of a third party
(other than any Affiliate of such Obligor or such Subsidiary) as escrow or
fiduciary for such third party.
- 26 -
"
Excluded Assets
" has the meaning specified in the Security Agreement and applies in respect
of the property and assets of a U.S. Obligor only.
"
Excluded Equity Interests
" has the meaning specified in the Security Agreement.
"
Excluded Swap Obligation
" means, with respect to any Guarantor, any Hedging Obligations
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 Hedging Obligation (or any guarantee
thereof) is or becomes illegal under the U.S. Commodity Exchange Act or any rule, regulation
or order of the U.S. 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 U.S. Commodity Exchange Act at
the time the guarantee of such Guarantor becomes effective with respect to such related
Hedging Obligation. If a Hedging Obligation arises under a master agreement governing more
than one swap, such exclusion shall apply only to the portion of such Hedging Obligation that
is attributable to swaps for which such guarantee or security interest is or becomes illegal.
"
Excluded Subsidiary
" means a Subsidiary of the Company that is a Disregarded Domestic
Person, a CFC or a Subsidiary of a CFC.
Notwithstanding the foregoing, (x) no Subsidiary of the Company that is a direct or indirect
parent of a Borrower or Coronado Coal Corporation 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 Finance Documents, no Subsidiary (x)
formed or organized under the laws of Australia (or successors thereto) or (y) that is a
Subsidiary of the Company 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
Obligors (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.
"
Facility
" means the revolving credit facility made available under this Agreement as described
in Clause 2 (
The Facilities
).
"
Facility Office
" means a Lender's funding office specified in Part II of Schedule 1 or as
otherwise notified by the Lender to the Company as the office or offices through which it will
perform its obligations under this Agreement.
"
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
- 27 -
willing and able buyer, neither of whom is under undue pressure or compulsion to complete the
transaction.
"
FATCA
" means:
(a) sections 1471 to 1474 of the Code or any associated regulations;
(b) any treaty, law or regulation of any other jurisdiction, or relating to an
intergovernmental agreement between the U.S. and any other jurisdiction, which (in
either case) facilitates the implementation of any law or regulation referred to in
paragraph (a) above; or
(c) any agreement pursuant to the implementation of any treaty, law or regulation referred
to in paragraphs (a) or (b) above with the U.S. Internal Revenue Service, the U.S.
government or any governmental or taxation authority in any other jurisdiction.
"
FATCA Application Date
" means:
(a) in relation to a "withholdable payment" described in section 1473(1)(A)(i) of the Code
(which relates to payments of interest and certain other payments from sources within
the U.S.), 1 July 2014; or
(b) in relation to a "passthru payment" described in section 1471(d)(7) of the Code not
falling within paragraph (a) above, the first date from which such payment may become
subject to a deduction or withholding required by FATCA.
"
FATCA Deduction
" means a deduction or withholding from a payment under a Finance
Document required by FATCA.
"
FATCA Exempt Party
" means a Party that is entitled to receive payments free from any
FATCA Deduction.
"
Fee Letter
" means any letter or letters dated on or about the Amendment and Restatement
Effective Date between the Original Lender and the Company (or the Agent and the Company
or the Collateral Agent and the Company) setting out any of the fees referred to in Clause 11
(
Fees
).
"
Finance Document
" or "
Loan Document
" means:
(a) this Agreement;
(b) the Collateral Documents;
(c) each Secured Hedge Agreement;
(d) each Intercreditor Agreement;
(e) the Australian Security Trust Deed;
(f) the Australian Subordination Deed;
(g) each Compliance Certificate;
- 28 -
(h) each Borrowing Base Certificate;
(i) each Utilisation Request;
(j) each Fee Letter;
(k) the Rights of Entry;
(l) the Blocked Account Agreements;
(m) the Third Amending Deed;
(n) the Refinancing Coordination Deed;
(o) any Accession Letter; and
(p) any other document designated as such by the Agent and the Company.
"
Finance Party
" means the Agent, the Collateral Agent or a Lender.
"
Financial Covenant
" means each undertaking set out in Clauses 19.1(b) and 19.1(c)
(
Financial Covenants
).
"
Financial Indebtedness
" or "
Indebtedness
" means any indebtedness for or in respect of:
(a) moneys borrowed and any debit balance at any financial institution;
(b) any amount raised by acceptance under any acceptance credit, bill acceptance or bill
endorsement facility or dematerialised equivalent;
(c) any amount raised pursuant to any note purchase facility or the issue of bonds, notes,
debentures, loan stock or any similar instrument;
(d) the amount of any liability in respect of any lease or hire purchase contract which would,
in accordance with GAAP, be treated as a balance sheet liability;
(e) receivables sold or discounted (other than any receivables to the extent they are sold
on a non-recourse basis);
(f) any redeemable shares where the holder has the right, or the right in certain conditions,
to require redemption;
(g) 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;
(h) consideration for the acquisition of assets or services payable more than 90 days after
acquisition;
(i) any derivative transaction entered into in connection with protection against or benefit
from fluctuation in any rate or price (and, when calculating the value of any derivative
transaction, only the marked to market value (or, if any actual amount is due as a result
- 29 -
of the termination or close-out of that derivative transaction, that amount) shall be taken
into account);
(j) any counter-indemnity obligation in respect of a guarantee, indemnity, bond, standby
or documentary letter of credit or any other instrument issued by a bank or financial
institution (but excluding any which are backed by cash collateral, by the amount equal
to any such cash collateral); and
(k) the amount of any liability in respect of any guarantee or indemnity for any of the items
referred to in paragraphs (a) to (j) above,
but, notwithstanding anything else in this Agreement, Financial Indebtedness does not include:
(i) any amount raised, or obligations, under the Stanwell Arrangements; or
(ii) any amounts raised under a prepayment arrangement whereby any amounts
owing under such prepayment arrangement will be discharged by way of
delivery of Coal.
"
Fixed Rate of Exchange
" means the Spot Rate on the Amendment and Restatement Effective
Date, as notified by the Agent to the Company and the Original Lender.
"
Foreign Excluded Asset
" means (a) Excluded Equity Interests, and (b) any asset the pledge
of which would result in adverse tax consequences, and in each case applies in respect of the
property and assets of an Obligor that is a Foreign Subsidiary.
"
Foreign Subsidiary
" means any Subsidiary of the Company that is not a Domestic Subsidiary.
"
GAAP
" means generally accepted accounting principles, standards and practices in Australia
or the United States of America (as applicable).
"
Gearing Ratio
" means, at any time, the ratio, expressed as a percentage, of:
(a) the Consolidated Net Debt at that time; to
(b) the aggregate of Consolidated Net Debt and Consolidated Equity, in each case, at that
time.
"
Governmental Agency
" or "
Governmental Authority
" means any government or any
governmental, semi-governmental or judicial entity or authority. It also includes any self
regulatory organisation established under statute or any stock exchange.
"
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 the Company and its Subsidiaries for the time being.
"
GST Group
" has the same meaning as in the GST Law.
- 30 -
"
GST Law
" has the meaning given to it in the
A New Tax System (Goods and Services Tax)
Act 1999
other jurisdiction.
"
Guarantee
" means the guarantee, undertaking and indemnity given under Clause 16
(
Guarantee
).
"
Guarantor
" means an Original Guarantor or an Additional Guarantor, unless it has ceased to
be a Guarantor in accordance with Clause 23 (
Changes to the Obligors
).
"
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 Clause 41
(
Designation of Secured Hedge Agreements
).
"
Hedging Obligations
" means, with respect to any Person, any obligations arising under any
Swap Contract.
"
Holding Company
" means, in relation to a person, any other person in respect of which it is
a Subsidiary.
"
Indirect Tax
" means any goods and services tax, consumption tax, value added tax or any tax
of a similar nature.
"
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.
- 31 -
"
Intellectual Property Security Agreement
" means the intellectual property security
agreement entered into on 3 August 2023 between the Company and the Collateral Agent, as
amended, restated, amended and restated, supplemented or otherwise modified from time to
time.
"
Insolvency Proceeding
" means, with respect to any Obligor or its Subsidiaries:
(a) any voluntary or involuntary case or proceeding under any Debtor Relief Law with
respect to any Obligor 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
Obligor or its Subsidiaries or its assets;
(c) any liquidation, dissolution or winding up of any Obligor or its Subsidiary other than
as permitted hereunder and under the Senior Secured Notes Indenture, 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 Obligor or its Subsidiaries;
(e) an order is made that it be wound up;
(f) 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;
(g) it is under administration or wound up or has had a controller appointed to its property;
(h) 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 Agent);
(i) entry by it into a scheme of arrangement or deed of company arrangement, or any
composition with, or assignment for the benefit of, all or any class of its creditors; or
(j) an analogous or equivalent event to any listed above occurs in any jurisdiction.
"
Intercreditor Agreements
" means the ABL Intercreditor Agreement and the Stanwell
Intercreditor Agreement.
"
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 Period
" means, in relation to a Loan, each period determined in accordance with
Clause 10 (
Interest Periods
) and, in relation to an Unpaid Sum, each period determined in
accordance with Clause 9.3 (
Default interest
).
- 32 -
"
Interest Rate
" shall be determined by reference to the table below based on the Borrowing
Base Ratio as set out in the most recent Borrowing Base Certificate provided to the Agent in
accordance with Clause 18.2 (
Provision and contents of certificates
) (with any change to take
effect on the first day of the month in which that Borrowing Base Certificate was delivered):
Borrowing Base Ratio
Interest Rate (per cent per annum)
Equal to or greater than 100%
9.00
Less than 100%
12.00
"
Inventory
" means any "Inventory" as defined in either the UCC or PPSA.
"
Inventory Value
" means, at any time of determination, with respect to any Coal Inventory of
any of the Obligors, 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 or acquisition of Equity Interests, Financial Indebtedness or other similar
instruments issued by such Person. If the Company 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 the Company 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 the Company or any Subsidiary of a Person that
holds an Investment in a third Person will be deemed to be an Investment by the Company 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
" has the meaning given to it in Clause 16.1 (
Guarantee)
.
"
ITAA 1936
" means the
Income Tax Assessment Act 1936
"
ITAA 1997
" means the
Income Tax Assessment Act 1997
"
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
- 33 -
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:
(a) any Original Lender; and
(b) any bank, financial institution, trust, fund or other entity which has become a Party as
a "Lender" in accordance with Clause 22 (
Changes to the Lenders
),
which in each case has not ceased to be a Party in accordance with the terms of this Agreement.
"
Licence
"
means any present or future licence or permit or agreement to grant a licence or
permit whether statutory or otherwise which allows a particular activity or business to be
conducted on or in respect of the Collateral or is held by an Obligor in relation to that Obligor’s
business and activities or the ownership or use of the Collateral.
"
Loan
" means a loan made or to be made under the Facility or the principal amount outstanding
for the time being of that loan.
"
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.
"
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 the last day of the financial quarter (or if such day is not a Business Day, the next
Business Day) and prior to the delivery of the Borrowing Base Certificate with respect to such
financial quarter, 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 Obligors consistent with past practices of the Obligors.
"
Majority Lenders
" means a Lender or Lenders whose Commitments aggregate at least 66
2/3
per cent of the Total Commitments (or, if the Total Commitments have been reduced to zero,
aggregated at least 66
2/3
Where a Lender's Commitment has been reduced to zero, but it has an outstanding participation
in any outstanding Utilisations, then for this purpose its Commitment will be taken to be the
aggregate amount of its participation.
"
Material Adverse Effect
" means a material adverse effect on:
(a) the business, assets, operations, property or condition (financial or otherwise) of the
Company and its Subsidiaries taken as a whole;
(b) the validity or enforceability of this Agreement or any of the other Finance Documents
or the rights or remedies of the Agent or any Secured Party under this Agreement or
any other Finance Documents;
(c) the validity, priority or enforceability of the Security created or purported to be created
over the Collateral pursuant to the Collateral Documents; or
- 34 -
(d) the ability of the Obligors (taken as a whole) to perform their obligations under the
Finance Documents.
"
Material Fixed Assets
" means:
(a) Material Leased Real Property; and
(b) Material Owned Real Property.
"
Material Owned Real Property
" means any Real Property consisting of a freehold, fee or
surface estate that an Obligor:
(a) owns as of the Amendment and Restatement Effective Date; 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 US$5,000,000 (or its equivalent) as determined by the
applicable tax assessor.
"
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 an Obligor is the lessee or tenant; and
(b) any other Real Property subject to a Real Property Lease that an Obligor enters into or
acquires after the Amendment and Restatement 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 US$1,500,000 (or its equivalent), in the aggregate, during the period from
date of execution of such Real Property Lease to the Termination Date, as determined
by the Company on the date of execution of such Real Property Lease in its reasonable
judgment;
provided, however, that if any Material Leased Real Property requires a consent from the
counterparty, then the Obligor a party thereto shall use commercially reasonable efforts to
obtain such consent. If such consent is not obtained within 120 days, the Agent may elect to
exclude such Real Property Lease from the definition of Material Leased Real Property.
"
Mining Financial Assurances
" has the meaning given to the term in Clause 17.23 (
Mining
).
"
Month
" means a period starting on one day in a calendar month and ending on the numerically
corresponding day in the next calendar month, except that:
(a) if the numerically corresponding day is not a Business Day, that period shall end on the
next Business Day in that calendar month in which that period is to end if there is one,
or if there is not, on the immediately preceding Business Day; and
- 35 -
(b) if there is no numerically corresponding day in the calendar month in which that period
is to end, that period shall end on the last Business Day in that calendar month.
The above rules will only apply to the last Month of any period.
"
Multiemployer Plan
" means any employee benefit plan of the type described in Section
4001(a)(3) of ERISA, to which any Obligor 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.
"
NCSA
" means the "New Coal Supply Agreement", dated 12 July 2019, between Stanwell and
CCPL, as amended by the Stanwell Deed of Amendment (No. 1) and the Stanwell Deed of
Amendment (No. 2), as amended, restated, replaced, supplemented or modified from time to
time.
"
New Lender
" has the meaning given to that term in Clause 22 (
Changes to the Lenders
).
"
Non-ABL Priority Collateral
" has the meaning given to the term “Term Priority Collateral”
in the ABL Intercreditor Agreement.
"
Notes Junior Lien Debt
" has the meaning given to the term ‘Junior Lien Debt’ in the Senior
Secured Notes Indenture.
"
Notes Priority Lien Debt
" has the meaning given to the term ‘Priority Lien Debt’ in the
Senior Secured Notes Indenture.
"
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 Senior Secured Notes Indenture.
"
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 Relief
Law, relating to the Company or any of its Subsidiaries, whether or not a claim for post-filing
or post-petition interest is allowed in such proceeding) of, any Obligor arising under any
Finance Document 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 an Obligor shall exclude any Excluded Swap Obligations
with respect to such Obligor.
"
Obligor
" or "
Loan Party
" means a Borrower or a Guarantor.
"
Organization Documents
" means:
- 36 -
(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 of 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 Financial Statements
" means the financial statements of the Company and its
Subsidiaries, on a consolidated basis, for the financial year ending 31 December 2024, delivered
to the Agent and the Lenders prior to the Amendment and Restatement Effective Date.
"
Original Obligor
" means an Original Borrower or an Original Guarantor.
"
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 Collateral Agent and the Existing Lender (as defined in the
Refinancing Coordination Deed), as amended and/or amended and restated prior to the date of
the Third Amending Deed.
"
Party
" means a party to this Agreement.
"
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 Obligor or any ERISA Affiliate or to which any Obligor or any
ERISA Affiliate contributes or has an obligation to contribute.
"
Perfection Certificate
" means a perfection certificate in the form approved by the Agent, as
such perfection certificate may be amended, restated, supplemented or otherwise modified from
time to time.
"
Perfection Certificate Supplement
" means a supplement to the Perfection Certificate in the
form approved by the Agent.
- 37 -
"
Permitted Disposition
" means:
(a) if the Disposition is of any Equity Interests or assets in any Subsidiary of the Company,
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 the Company;
(iv) the purchaser of the relevant Equity Interests or assets does not have the right
to purchase Inventory from the Relevant Subsidiary, the Company or any of
its Subsidiaries at a price that is lower than the relevant market price at the
applicable time;
(v) if the Relevant Subsidiary is a Guarantor prior to such Disposition, it shall
remain as a Guarantor following such Disposition;
(vi) there is no Default, Event of Default or Review Event subsisting at the time
such Disposition is made (and no such Default, Event of Default or Review
Event would result therefrom); and
(vii) without limiting paragraph (vi) above, no Financial Covenant will be breached
as a result of such Disposition assuming that, irrespective of the requirements
of Clause 19.1 (
Financial covenants
), the Test Date or the end of the Test
Period for the Financial Covenant (as applicable) is the date of the Disposition;
(b) if the Disposition is made in connection with a factoring or supply chain financing
arrangements, the Disposition is made in connection with a Permitted Factoring
Arrangement;
(c) except for any Dispositions made under paragraphs (a) or (b) above, if the Disposition
is of assets in any single transaction or series of related transactions with a Fair Market
Value of US$10,000,000 (or its equivalent) or less (or, if the Disposition is of the
Russell County Project, US$25,000,000 (or its equivalent) or less):
(i) there is no Default, Event of Default or Review Event subsisting at the time
such Disposition is made (and no such Default, Event of Default or Review
Event would result therefrom); and
(ii) without limiting paragraph (i) above, no Financial Covenant will be breached
as a result of such Disposition assuming that, irrespective of the requirements
of Clause 19.1 (
Financial covenants
), the Test Date or the end of the Test
Period for the Financial Covenant (as applicable) is the date of the Disposition;
- 38 -
(d) except for any Dispositions made under paragraphs (a) or (b) above, if the Disposition
is of assets in any single transaction or series of related transactions with a Fair Market
Value of US$10,000,000 (or its equivalent) or more (or, if the Disposition is of the
Russell County Project, US$25,000,000 (or its equivalent) or more):
(i) the Agent has provided its prior written consent to such Disposition; and
(ii) the proceeds of such Disposition are used to:
(A) redeem all or part of the Senior Secured Notes then outstanding; or
(B) applied to purchase replacement assets within 12 months of such
Disposition being made;
(e) notwithstanding any other provision in the Finance Documents, a Disposition which is:
(i) a Disposition of Inventory in the ordinary course of trading, including pursuant
to the Stanwell Arrangements;
(ii) a Disposition of any asset by an Obligor to another Obligor;
(iii) a Disposition of assets in exchange for other assets comparable or superior as
to type, value and quality;
(iv) a Disposition of obsolete or unserviceable vehicles, plant or equipment or of
any Dormant Subsidiary; or
(v) a Disposition of Cash Equivalents for cash or in exchange for Cash Equivalents.
"
Permitted Distribution
" means any Distribution made where:
(a) a Default, Event of Default or Review Event is not continuing and will not occur as a
result of such Distribution; and
(b) the Distribution is expressly permitted under the terms of the Stanwell Deed of
Amendment No. 2.
"
Permitted Factoring Arrangement
" means any factoring arrangement entered into by an
Obligor, whereby such Obligor agrees to assign and sell from time to time to a financial
institution or third-party factor its right, title and interest in certain of its accounts receivable
(which, for the avoidance of doubt, shall include any draft or invoice sold under a draft purchase
agreement or similar supply chain finance arrangement), which either:
(a) has been entered into and drawn and utilised by the Obligor prior to the Amendment
and Restatement Effective Date, as disclosed and accepted by the Original Lender in
writing; or
(b) has been entered into with the prior written consent of the Agent.
"
Permitted Financial Indebtedness
" means:
- 39 -
(a) Financial Indebtedness permitted to be incurred pursuant to Clause 20.16 (
Financial
Indebtedness
); or
(b) any other Financial Indebtedness consented to in writing by the Agent.
"Permitted Loan" means:
(a) a loan or other accommodation made available by an Obligor to or for the benefit of
employees or directors or officers of an Obligor to acquire shares in an Obligor in an
amount in aggregate for all employees and directors for all Obligors not exceeding
US$5,000,000 (or its equivalent) (except where loan or other accommodation is
prohibited under the laws of incorporation or formation of the relevant Obligor);
(b) any deposit funds of an Obligor with a bank in the ordinary course of its business;
(c) any trade credit not exceeding 180 days provided, or otherwise accommodated by an
Obligor for the supply of goods and services on extended terms in the ordinary course
of trading; and
(d) any other accommodation made by an Obligor to another Obligor so long as they are
subordinated in accordance with the terms of the Australian Subordination Deed.
"
Permitted Lien
" means, with respect to any Person:
(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 Financial 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) Security imposed by law, such as carriers’, warehousemen’s and mechanics’ Security,
in each case for sums not yet due or being contested in good faith by appropriate
proceedings or other Security 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) Security 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) Security 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
- 40 -
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 Financial 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 Security
incidental to the conduct of the business of such Person or to the ownership of its
properties, which were not incurred in connection with Financial 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) Security securing Financial Indebtedness incurred in accordance with Clause 20.16
(
Financial Indebtedness
) to finance the construction, purchase or lease of, or repairs,
improvements or additions to, property, plant or equipment of such Person; provided
that:
(i) the Security may not extend to any other property owned by such Person or
any of its Subsidiaries at the time the Security is incurred (other than assets and
property affixed or appurtenant thereto); and
(ii) the Financial Indebtedness (other than any interest thereon) secured by the
Security 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 Security;
(g) Security on the Collateral securing:
(i) the Obligations;
(ii) so long as such Security is subject to the Stanwell Intercreditor Agreement and
the ABL Intercreditor Agreement, Security securing Financial Indebtedness in
respect of the Senior Secured Notes issued on the Senior Secured Notes Issue
Date (and any Financial Indebtedness in respect of any Refinance of the Senior
Secured Notes permitted by the Finance Documents thereof);
(iii) so long as such Security is subject to the Stanwell Intercreditor Agreement and
the ABL Intercreditor Agreement, Security securing Financial Indebtedness
permitted to be incurred pursuant to Clause 20.16(a)(iv) (
Financial
Indebtedness
); and
(iv) so long as such Security is subject to the Stanwell Intercreditor Agreement, the
Stanwell Obligations pursuant to the Stanwell Agreements;
- 41 -
(h) Security existing on the Amendment and Restatement Effective Date and as disclosed
to, and accepted by, the Original Lender in writing (other than described in clause (g)
above);
(i) Security on property or Equity Interests of another Person at the time such other Person
becomes a Subsidiary of such Person; provided that:
(i) such Security is not created or incurred in connection with or in contemplation
of such acquisition; and
(ii) such Security does 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) such Security is released within 90 days after the date of such acquisition;
(j) Security 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 that:
(i) such Security is not created or incurred in connection with or in contemplation
of such acquisition;
(ii) such Security does not extend to any other property owned by such Person or
any of its Subsidiaries (other than assets and property affixed or appurtenant
thereto);
(iii) such Security is released within 90 days after the date of such acquisition;
(k) Security securing Financial Indebtedness or other obligations of an Obligor owing to
the Company or an Obligor of the Company;
(l) Security 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 the Company or any of its Subsidiaries;
(n) Security 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) Security to secure any Refinancing (or successive Refinancings) as a whole, or in part,
of any Financial Indebtedness secured by any Security referred to in paragraph (h)
above; provided that:
(i) such new Security 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
Security arose, could secure the original Security (plus improvements and
accessions to, such property or proceeds or distributions thereof); and
- 42 -
(ii) the Financial Indebtedness secured by such Security at such time is not
increased to any amount greater than the sum of:
(A) the outstanding principal amount or, if greater, committed amount of
the Financial Indebtedness described under paragraph (h) above at the
time the original Security became a Permitted Lien; and
(B) an amount necessary to pay any fees and expenses, including
premiums, related to such refinancing, refunding, extension, renewal
or replacement;
(p) Security on equipment of the Company 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 Security 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) Security upon specific items of inventory or other goods and proceeds of such 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;
(s) Security granted to the Senior Secured Notes Trustee to secure its compensation and
indemnities pursuant to the Senior Secured Notes Indenture; provided that to the extent
such Security is on ABL Priority Collateral, such Security shall be junior to the Security
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) Security encumbering customary initial deposits in the ordinary course of business;
(v) Security on cash, Cash Equivalents or other property arising in connection with the
defeasance, discharge or redemption of Financial Indebtedness;
(w) Security 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) Security:
(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;
- 43 -
(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) Security on any cash earnest money deposits made by the Company or any of its
Subsidiaries in connection with any letter of intent or purchase agreement permitted by
this Agreement;
(aa) Security in respect of any Permitted Factoring Arrangement;
(bb) Security in respect of any arrangements for the prepayment of the sale of Inventory;
provided that (i) the property secured is limited to the Inventory being sold under such
prepayment arrangement, (ii) the amount secured is limited to the amount prepaid
under such prepayment arrangement, (iii) if such Security is to rank ahead of the
Transaction Security, the relevant secured party has entered into a deed of priority on
terms acceptable to Agent (acting reasonably) and (iv) the relevant Obligor ensures that
such Inventory is separately identifiable to other Inventory and is not comingled with
any other Inventory; and
(cc) Security securing obligations the outstanding principal amount of which does not, taken
together with the outstanding principal amount of all other obligations secured by
Security incurred under this paragraph (cc) that are at that time outstanding, exceed the
greater of US$25,000,000 (or equivalent thereof) and 1.25% of Consolidated Tangible
Assets.
"
Person
" or "
person
" includes any individual, firm, company, limited liability company, joint-
stock company, uninconrporated organization, corporation, government, state or agency of a
state or political subdivision therefore or any association, trust, joint venture, consortium or
partnership or other entity (whether or not having separate legal personality) or two or more of
them and any reference to a particular person or entity (as so defined) includes a reference to
that person's or entity's executors, administrators, successors, substitutes (including by novation)
and assigns.
"
Plan
" means any "employee benefit plan" (as such term is defined in Section 3(3) of ERISA)
established by any Obligor 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.
"
Pledged Stock
" has the meaning specified in Section 1.03 of the Security Agreement.
"
Power
" means any right, power, discretion or remedy of a Finance Party, a receiver or an
attorney under any Finance Document or applicable law.
"
PPSA
", "
PPS Law
", "
Australian PPS Law
" or "
Australian PPS Act
" means the
Personal
Property Securities Act 2009
"
Qualified ECP Guarantor
" means, in respect of any Hedging Obligation, each Obligor that
has total assets exceeding US$10,000,000 at the time such Hedging Obligation is incurred or
such other person as constitutes an ECP under the U.S. Commodity Exchange Act or any
regulations promulgated thereunder and can cause another person to qualify as an “eligible
- 44 -
contract participant” at such time by entering into a keepwell under Section 1a(18)(A)(v)(II) of
the U.S. Commodity Exchange Act.
"
Preferred Stock
", as applied to the Equity Interests of any Person, means Equity Interests of
any class or classes (however designated) which are preferred as to the payment of dividends
or distributions, or as to the distribution of assets upon any voluntary or involuntary liquidation
or dissolution of such Person, over Equity Interests of any other class of such Person.
"
Properties
" means the facilities and properties currently or formerly owned, leased or
operated by the Company or any of its Subsidiaries.
"
Real Property
" means, 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 mining tenement, lease, license, letting, concession,
occupancy agreement, sublease, easement or right of way to which any 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 Coal, minerals or any other resource from
any portion of Real Property) and every amendment or modification thereof including with
respect to the Obligors.
"
Real Property Mortgage
" or "
Mortgage
" means:
(a) each document referred to in Part II and Part III of Schedule 9; and
(b) any other document designated as such by the Agent and the Company,
in each case, as amended, restated, amended and restated, supplemented or otherwise modified
from time to time.
"
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 the U.S. Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. §§1201
et seq., as amended, any other Environmental Law or any Environmental Permit.
"
Recognition Certificate
" has the meaning given to that term in the Australian Security Trust
Deed.
"
Refinance
" means, in respect of any Financial 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 Financial Indebtedness or commitment to extend credit in exchange or
replacement for such Financial Indebtedness, in whole or in part, whether with the same or
different lenders, arrangers, or agents.
"
Refinancing Coordination Deed
" means the document titled ‘Refinancing Coordination
Deed’ dated in or about November 2025 between, among others, each Obligor, the Agent and
the Collateral Agent.
- 45 -
"
Related Fund
" in relation to a fund (the "
first fund
"), means a fund which is managed or
advised by the same investment manager or investment adviser as the first fund or, if it is
managed by a different investment manager or investment adviser, a fund whose investment
manager or investment adviser is an Affiliate of the investment manager or investment adviser
of the first fund.
"
Relevant Market
" means the Australian interbank market for bank accepted bills and
negotiable certificates of deposits.
"
Repeating Representations
" means each of the representations set out in Clauses 17.1 to 17.6,
Clause 17.8, Clause 17.11(c) , Clause 17.12, Clauses 17.15 to 17.20, Clause 17.21(b), Clause
17.23, Clause 17.25, Clause 17.27 and Clauses 17.31 to 17.33.
"
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.
"
Representative
" means any delegate, agent, manager, administrator, nominee, attorney,
trustee or custodian.
"
Reserve
" means any “Reserve” required by this Agreement including Australian Priority
Payables Reserves.
"
Resignation Letter
" means a letter substantially in the form set out in Schedule 6 (
Form of
Resignation Letter
).
"
Responsible Officer
" means the chief executive officer, president, chief financial officer,
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 Subsidiary
" means any Subsidiary of the Company.
"
Review Event
" means the Borrowing Base Undertaking has not been complied with on a Test
Date.
"
Rights of Entry
" means a deed in form and substance acceptable to the Agent (acting on the
instructions of all Lenders) between the relevant Obligor, the Collateral Agent and / or the
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 the state of Virginia. in the United States.
"
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
- 46 -
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 U.S. Securities and Exchange Commission, or any Governmental Authority
succeeding to any of its principal functions.
"
Secured Hedge Agreement
" means any Swap Contract permitted under this Agreement that
is entered into by and between an Obligor and any Hedge Bank to the extent as consented by
the Agent (in its absolute discretion) and designated as such by the Borrowers and such Hedge
Bank in writing to the Agent from time to time in each case in accordance with Clause 41
(
Designation of Secured Hedge Agreements
).
"
Secured Party
" means:
(a) the Agent;
(b) each Lender;
(c) the Australian Security Trustee;
(d) the Collateral Agent;
(e) each other Beneficiary;
(f) each Hedge Bank that is a counterparty to a Secured Hedge Agreement with an Obligor;
and
(g) beneficiaries of each indemnification obligation undertaken by any Obligor under any
Finance Document.
"
Securities Account
" has the meaning specified in the UCC and the PPSA.
"
Security
" or "
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 PPSA
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.
"
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 Obligors party thereto, as
amended, restated, amended and restated, supplemented or otherwise modified from time to
time.
- 47 -
"
Senior Secured Notes
"
means 9.250% senior notes due 2029 issued by Coronado Finance Pty
Ltd pursuant to the Senior Secured Notes Indenture.
"
Senior Secured Notes Indenture
" means that certain Indenture, dated as of the Senior
Secured Notes Issue Date, among Coronado Finance Pty Ltd as issuer, the Company, certain
Subsidiaries of the Company, 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 the Company and its Subsidiaries as of the date of
this Agreement 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.
"
Singapore Deed of
Assignment
" means the document titled "Deed of Assignment" dated 3
August 2023 between the Collateral Agent and CCPL, as governed by Singapore law, and as
amended, restated, amended and restated, supplemented or otherwise modified from time to
time.
"
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 other than U.S. dollars, the
rate at which such currency may be exchanged into U.S. dollars using the market based spot
rate of exchange in the Sydney foreign exchange market as reasonably determined by the Agent
at or about 11:00 a.m. (Sydney time).
- 48 -
"
Stanwell
" means Stanwell Corporation Limited (ACN 078 848 674).
"
Stanwell Agreements
" means:
(a) the “Stanwell Amended Coal Supply Agreement”, dated 6 November 2009, between
Stanwell and CCPL, as amended by the ACSA Deed of Amendment, dated on or about
21 November 2016;
(b) the “Curragh Mine - New Coal Supply Deed”, dated 14 August 2018, between Stanwell
and CCPL;
(c) the NCSA;
(d) the “Option Coal Supply Agreement”, dated as of 18 January 2021, by and between
Stanwell and CCPL;
(e) the Stanwell Deed of Amendment (No. 1);
(f) the Stanwell Deed of Amendment (No. 2); and
(g) any other agreement designated as such by the Agent and the Company,
in each case, as amended, restated, replaced, supplemented or modified from time to time.
"
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,
in each case, as amended, restated, replaced, supplemented or modified from time to time.
"
Stanwell Deed of Amendment (No. 1)
" means the "Deed of Amendment – New Coal Supply
Agreement (Prepayment and Rebate Release)", dated 10 June 2025, between, among others,
Stanwell and CCPL.
"
Stanwell Deed of Amendment (No. 2)
" means the “Deed of Amendment (No. 2) – Amended
Coal Supply Agreement and New Coal Supply Agreement” dated in or about November 2025
between, among others, Stanwell and CCPL.
"
Stanwell Intercreditor Agreement
" or "
Stanwell Intercreditor Deed
" means that “Existing
Arrangements Intercreditor Deed”, dated 12 May 2021, by and among the Collateral Agent,
Senior Secured Notes Trustee, Stanwell, Coronado Australia Holdings Pty Ltd, Coronado
Global Resources, Inc., and the other parties from time to time party thereto, and acknowledged
by the Company and the other Obligors, as supplemented by that certain Joinder No. 1 dated as
of 3 August 2023, and that certain Joinder No. 2 dated as 2 October 2024, as amended, restated,
- 49 -
replaced, supplemented, varied, assigned or otherwise modified from time to time in
accordance with this Agreement.
"
Stanwell Obligations
" means all obligations in connection with the Stanwell Arrangements
and the Stanwell Agreements (as amended, restated, replaced, supplemented or modified from
time to time).
"
Stanwell Reserved Area
" means that certain area adjacent to the Curragh Mine acquired by
the Company on a deferred consideration basis and as contemplated by the Stanwell
Agreements.
"
Subsidiary
" has the meaning given in the Corporations Act, but as if body corporate includes
any entity.
"
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, in each case entered into by an
Obligor and any Hedge Bank.
"
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 Contract:
(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 paragraph (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
"
Tax
" or "
Taxes
" means any tax, levy, impost, duty or other charge or withholding of a similar
nature (including any penalty or interest payable in connection with any failure to pay or any
delay in paying any of the same).
"
Tax Act
" means the Income Tax Assessment Act 1936.
- 50 -
"
Tax Consolidated Group
" means a Consolidated Group or an MEC Group, as defined in the
Income Tax Assessment Act 1997.
"
Tax Deduction
" means a deduction or withholding for or on account of Tax from a payment
under a Finance Document.
"
Termination Date
" or "
Maturity Date
" means the date falling 5 years after the Amendment
and Restatement Effective Date.
"
Test Date
" means:
(a) in respect of the Borrowing Base Ratio, each of 31 March, 30 June, 30 September and
31 December of each year; and
(b) in respect of the Gearing Ratio, each of 30 June and 31 December of each year falling
on or after 31 December 2027.
"
Test Period
" means, at any time, from and inclusive of 31 December 2027, the most recently
ended period of four consecutive fiscal quarters of the Company ended on or prior to such time
in respect of which financial statements for each half year or fiscal year in such period have
been or are required to be delivered pursuant to Clause 18.1 (
Financial statements
).
"
Third Amending Deed
" means the document titled ‘Third Amendment to the Syndicated
Facility Agreement’ dated in or about November 2025 between each Obligor, the Agent and
the Collateral Agent.
"
Threshold Amount
" means US$25,000,000 (or its equivalent).
"
Total Commitments
" means the aggregate of the Commitments.
"
Transaction Costs
" means, collectively, the costs, fees and expenses payable by the
Companies or any of its Subsidiaries in connection with the Facility and the Transactions.
"
Transaction Security
" means the Security created or expressed to be created in favour of, or
held for the benefit of, the Collateral Agent (including in its capacity as Australian Security
Trustee) pursuant to the Collateral Documents.
"
Transactions
" means, collectively, (a) the entering into by the Obligors of the Finance
Documents to which they are a party and (b) the payment of the Transaction Costs.
"
Transfer Certificate
" means a certificate substantially in the form set out in Schedule 4 (
Form
of Transfer Certificate
) or any other form agreed between the Agent and the Company.
"
Transfer Date
" means, in relation to an assignment or a transfer, the later of:
(a) the proposed Transfer Date specified in the relevant Assignment Agreement or
Transfer Certificate; and
(b) the date on which the Agent executes the relevant Assignment Agreement or Transfer
Certificate.
- 51 -
"
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 Security 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.
"
Unbilled US Account
" means, on any date of determination, each Account of the Obligors
for the sale of Coal Inventory sourced from an Obligor’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.
"
Unpaid Sum
" means any sum due and payable but unpaid by an Obligor under the Finance
Documents.
"
Unrestricted Cash
" means, as of any date of determination, the aggregate amount of cash or
Cash Equivalents of the Obligors that:
(a) would not appear as "restricted" on a consolidated balance sheet of the Company and
its Subsidiaries: or
(b) would appear as "restricted" on a consolidated balance sheet of the Company and its
Subsidiaries, but solely in the case of this paragraph (b) to the extent such cash and
Cash Equivalents are restricted in favour of the Agent or any Lender,
in each case of paragraphs (a) and (b), determined in accordance with GAAP; and provided,
further, that:
(c) such cash is repayable within 30 days after the relevant date of determination;
(d) repayment of such cash is not contingent on the prior discharge of any other Financial
Indebtedness of any Obligor or of any other person whatsoever or on the satisfaction
of any other condition;
(e) such cash is denominated in U.S. 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
an Obligor with a bank acceptable to the Agent and to which an Obligor is alone (or
together with other Obligors ) beneficially entitled; and
(f) such cash is freely and (except as mentioned in paragraph (c) above) immediately
available to be applied in repayment or prepayment of the Facility.
- 52 -
"
U.S.
" means the United States of America.
"
U.S. Obligors
" or "
U.S. Loan Parties
" means each Obligor that is organized under the laws
of the United States, any state thereof or the District of Columbia.
"
Utilisation
" or "
Credit Extension
" 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.
"
Utilisation Request
" means a notice substantially in the form set out in Schedule 3 (
Form of
Utilisation Request
).
1.2 Construction
(a) Unless a contrary indication appears, any reference in this Agreement to:
(i) the "
Agent
", any "
Finance Party
", any "
Lender
", any "
Obligor
", any "
Party
",
the "
Collateral Agent
" or the "
Australian Security Trustee
" shall be construed
so as to include its executors, administrators, successors, substitutes (including
by novation) and assigns to, or of, its rights and/or obligations under the Finance
Documents;
(ii) "
assets
" includes present and future properties, revenues and rights of every
description;
(iii) a "
Finance Document
" or any other agreement or instrument is a reference to
that Finance Document or other agreement or instrument as amended, novated,
supplemented, extended or restated;
(iv) “
this Agreement
” or to “
the date of this Agreement
” shall be construed to
include the Third Amending Deed and the Amendment and Restatement Effective
Date, respectively.
(v) a "
group of Lenders
" includes all the Lenders;
(vi) "
guarantee
" means (other than in Clause 16 (
Guarantee
)) (A) any guarantee,
letter of credit, bond, indemnity or similar assurance against loss, or (B) any
obligation, direct or indirect, actual or contingent, to purchase or assume any
indebtedness of any person or to make an investment in or loan to any person or
to purchase assets of any person where, in each case, such obligation is assumed
in order to maintain or assist the ability of such person to meet its indebtedness;
(vii) "
indebtedness
" or "
financial
indebtedness
" includes any obligation (whether
incurred as principal or as surety) for the payment or repayment of money,
whether present or future, actual or contingent;
(viii) a "
Person
", "
person
" or "
entity
" includes any individual, firm, company, limited
liability company, joint-stock company, unincorporated organization, corporation,
government, state or agency of a state or political subdivision therefore or any
association, trust, joint venture, consortium or partnership or other entity (whether
- 53 -
or not having separate legal personality) or two or more of them and any reference
to a particular person or entity (as so defined) includes a reference to that person's
or entity's executors, administrators, successors, substitutes (including by
novation) and assigns;
(ix) a "
regulation
" includes any regulation, rule, official directive, request or
guideline (whether or not having the force of law) of any governmental,
intergovernmental or supranational body, agency or department, or of any
regulatory, self-regulatory or other authority or organisation, and if not having
the force of law, with which responsible entities in the position of the relevant
Party would normally comply;
(x) a provision of law or a regulation is a reference to that provision as amended or
re-enacted from time to time;
(xi) a time of day is a reference to Brisbane time; and
(xii) the words "
including
", "
for example
" or "
such as
" when introducing an example
do not limit the meaning of the words to which the example relates to that example
or examples of a similar kind.
(b) The determination of the extent to which a rate is "
for a period equal in length
" to an
Interest Period shall disregard any inconsistency arising from the last day of that
Interest Period being determined pursuant to the terms of this Agreement.
(c) Section, Clause and Schedule headings are for ease of reference only.
(d) Unless a contrary indication appears, a term used in any other Finance Document or in
any notice given under or in connection with any Finance Document has the same
meaning in that Finance Document or notice as in this Agreement.
(e) A Default (other than an Event of Default) or Review Event is "
continuing
" if it has
not been remedied to the satisfaction of the Majority Lenders acting reasonably or
waived and an Event of Default is "continuing" if it has not been remedied to the
satisfaction of the Majority Lenders acting reasonably or waived.
(f) “
$
”, "
US$
", "
USD
" and "
U.S. dollars
" denote the lawful currency of the United States
of America.
(g) "
A$
", "
AUD
" and "
Australian dollars
" denote the lawful currency of Australia.
(h) "
Euros
" denote the lawful currency of the European Union.
(i) "
English pounds
" denote the lawful currency of the United Kingdom.
(j) For all purposes under the Finance 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):
- 54 -
(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.
(k) Each Party agrees that for the purposes of each Finance Document any reference:
(i) to the ‘Facility Agreement’ or the ‘Credit Agreement’ is a reference to such
document as amended, novated, supplemented, extended or restated;
(ii) to ‘Section 1.02 (
Other Interpretative Provisions
) of the Facility Agreement’ in
any Finance Document is to be construed as a reference to this clause 1.2;
(iii) to ‘Section 5.11 of the Credit Agreement’ in any Finance Document is to be
construed as a reference to clause 17.24 (
Insurance
) of this Agreement;
(iv) to ‘Section 6.16 of the Credit Agreement’ in any Finance Document is to be
construed as a reference to clause 20.4 (
Composition of Obligors
) of this
Agreement;
(v) to ‘Section 7.01 of the Credit Agreement’ in any Finance Document is to be
construed as a reference to clause 20.8 (
Negative Pledge
) of this Agreement;
(vi) to ‘Section 8.02(a)(ii) (Remedies Upon Event of Default) of the Facility
Agreement’ in any Finance Document is to be construed as a reference to clause
21.13 (
Acceleration
) of this Agreement;
(vii) to ‘Article 9 of the Credit Agreement’ or ‘Article 9 of the ABL Facility
Agreement’ in any Finance Document is to be construed as a reference to clause
24 (
Role of Agent
) of this Agreement;
(viii) to ‘Article 10 of the Credit Agreement’ in any Finance Document is to be
construed as a reference to clause 16 (
Guarantee
) of this Agreement;
(ix) to ‘Section 11.01 of the Credit Agreement’ in any Finance Document is to be
construed as a reference to clause 34 (
Amendments and Waivers
) of this
Agreement;
(x) to ‘Section 11.03 of the Credit Agreement’ in any Finance Document is to be
construed as a reference to clause 30 (
Notices
) of this Agreement;
(xi) to ‘Section 11.05 of the Credit Agreement’ in any Finance Document is to be
construed as a reference to clauses 13.2 (
Other indemnities
),13.3 (
Indemnity to
the Agent
) and clause 15 (
Costs and Expenses
) of this Agreement; and
(xii) to ‘Section 11.05(a) of the Credit Agreement’ in any Finance Document is to be
construed as a reference to clause 15 (
Costs and Expenses
) of this Agreement.”
- 55 -
(l) Each Party agrees that for the purposes of each Real Property Mortgage referred to in
Part III of Schedule 9:
(i) a reference to ‘Section 11.02 of the Credit Agreement’ is to be construed as
reference to clause 30 (
Notices
) of this Agreement; and
(ii) a reference to Section 8.02(o) of the Credit Agreement is to be construed as a
reference to Section 4.01(d) of the Security Agreement.
1.3 Limitation on liability of trustee Lenders
Any limitation of liability conforming to the requirements of Schedule 4 (
Form of Transfer
Certificate
) contained in a Transfer Certificate or in an Assignment Agreement signed by a Lender
which is a trustee of a fund will apply in respect of that Lender as if incorporated in this Agreement.
1.4 Collateral Agent and Australian Security Trustee
(a) The Collateral Agent enters into this Agreement as collateral agent appointed pursuant
to Clause 25 (
Role and appointment of the Collateral Agent
) and also in its capacity as
Australian Security Trustee appointed pursuant to the Australian Security Trust Deed.
Clause 3.14 (
Security Trustee limitation of liability to non-Beneficiaries
) of the
Australian Security Trust Deed applies to this Agreement as if it was fully set out in
this Agreement and as if references in it to "the Security Trustee" were references to
"the Collateral Agent".
(b) Unless the context otherwise requires, a reference in this Agreement to the Collateral
Agent includes the Collateral Agent in its capacity as collateral agent appointed
pursuant to Clause 25 (
Role and appointment of the Collateral Agent
) and also in its
capacity as Australian Security Trustee.
1.5 Obligors' agent
(a) All communications and notices under the Finance Documents to and from the Obligors
may be given to or by the Company and each Obligor irrevocably authorises each
Finance Party to give those communications to the Company.
(b) Each Obligor (other than the Company) irrevocably appoints the Company to act on its
behalf as its agent in connection with the Finance Documents and irrevocably
authorises the Company on its behalf to:
(i) supply all information relating to itself as contemplated by any Finance
Document to any Finance Party;
(ii) give and receive all communications and notices (including any Utilisation
Request) and instructions under the Finance Documents; and
(iii) agree to and sign all documents under or in connection with the Finance
Documents (including any amendment, novation, supplement, extension or
restatement of or to any Finance Document) without further reference to, or the
consent of, that Obligor.
- 56 -
(c) An Obligor shall be bound by any act of the Company under this Clause 1.5 irrespective
of whether the Obligor knew about it or whether it occurred before the Obligor became
an Obligor under any Finance Document.
(d) To the extent that there is any conflict between any communication or notice by the
Company on behalf of an Obligor and any other Obligor, those of the Company shall
prevail.
1.6 Australian Code of Banking Practice
The parties 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 Finance Documents or the
Transactions.
1.7 Intercreditor Agreements
(a) Each Lender understands, acknowledges and agrees that Security shall be created on
the Collateral pursuant to the Finance Documents, which Security shall be subject to
terms, conditions and priorities set forth in the Intercreditor Agreements.
(b) 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 Finance
Documents, the provisions of the ABL Intercreditor Agreement shall govern and
control.
(c) 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
Finance Documents, the provisions of the Stanwell Intercreditor Agreement shall
govern and control.
(d) Each Lender authorizes and instructs the Agent and the Collateral Agent (including in
its capacity as the Australian Security Trustee) to enter into the ABL 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.
1.8 Exchange Rates; Currency Equivalents
Except for the purpose of financial statements delivered by Obligors pursuant to this Agreement or
except as otherwise provided under this Agreement (but, for the avoidance of doubt, including for the
purposes of calculating financial ratios under this Agreement, for the purposes of Clause 20 (
General
Undertakings
) (and any definitions referred to therein) and for calculating the Threshold Amount), the
applicable amount of any currency (other than U.S. dollars) for the purposes of the Finance
Documents (including for the purposes of making any calculation or distribution under the Finance
Documents) shall be such Dollar Equivalent amount as determined by the 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 U.S. dollars in Clause 20 (
General Undertakings
) (and any definitions referred to therein)
or the Threshold Amount being exceeded solely as a result of changes in currency exchange rates
- 57 -
between the date on which the relevant amount is due to be calculated in accordance with the terms of
the Finance Documents and the actual date of determination of the Dollar Equivalent that amount.
SECTION 2
THE FACILITIES
2. THE FACILITIES
2.1 The Facilities
Subject to the terms of this Agreement, the Lenders make available to the Borrowers an Australian
dollar revolving credit facility in an aggregate amount equal to the Total Commitments.
2.2 Finance Parties' rights and obligations
(a) The obligations of each Finance Party under the Finance Documents are several.
Failure by a Finance Party to perform its obligations under the Finance Documents does
not affect the obligations of any other Party under the Finance Documents. No Finance
Party is responsible for the obligations of any other Finance Party under the Finance
Documents.
(b) The rights of each Finance Party under or in connection with the Finance Documents
are separate and independent rights and any debt arising under the Finance Documents
to a Finance Party from an Obligor is a separate and independent debt in respect of
which a Finance Party shall be entitled to enforce its rights in accordance with
paragraph (c) below. The rights of each Finance Party include any debt owing to that
Finance Party under the Finance Documents and for the avoidance of doubt, any part
of a Utilisation or any other amount owed by an Obligor which relates to a Finance
Party's participation in the Facility or its role under a Finance Document (including any
such amount payable to the Agent on its behalf) is a debt owing to that Finance Party
by that Obligor.
(c) A Finance Party may, except as specifically provided in the Finance Documents,
separately enforce its rights under or in connection with the Finance Documents.
3. PURPOSE
3.1 Purpose
Each Borrower shall apply all amounts borrowed by it under the Facility towards:
(a) repayment of all amounts owing under the Original Syndicated Facility Agreement;
(b) funding working capital needs and other general corporate purposes of CCPL; and
(c) any other purposes agreed between the Company and the Agent.
3.2 Monitoring
No Finance Party is bound to monitor or verify the application of any amount borrowed pursuant to
this Agreement.
- 58 -
4. CONDITIONS OF UTILISATION
4.1 Initial conditions precedent
No Borrower may deliver a Utilisation Request unless the Agent has received all of the documents
and other evidence listed in Part I of Schedule 2 (
Conditions Precedent
) in form and substance
satisfactory to the Agent acting on the instructions of all Lenders. The Agent shall notify the
Company and the Lenders promptly upon being so satisfied.
4.2 Further conditions precedent
The Lenders will only be obliged to comply with Clause 5.4 (
Lenders' participation
) if on the date of
the Utilisation Request and on the proposed Utilisation Date:
(a) no Event of Default or Review Event is continuing or would result from the proposed
Utilisation;
(b) the Original Lender is satisfied (acting reasonably) that the Obligors are able to perform
the Stanwell Obligations from the Utilisation Date;
(c) the Lenders are satisfied that the aggregate of all amounts outstanding under this
Agreement following the proposed Utilisation will not exceed the ABL Debt Cap as
calculated in accordance with the terms of the Senior Secured Notes Indenture (which,
for the avoidance of doubt, sees such calculation made on a pro forma basis by the book
value set forth on the consolidated balance sheet of the Company for the most recently
ended full fiscal quarter for which financial statements are available);
(d) the Repeating Representations to be made by each Obligor are true in all material
respects and not misleading; and
(e) the Borrowers have delivered a Borrowing Base Certificate demonstrating that the
Borrowing Base Undertaking will be complied with after such proposed Utilisation.
- 59 -
SECTION 3
UTILISATION
5. UTILISATION - LOANS
5.1 Delivery of a Utilisation Request for a Loan
A Borrower may utilise the Facility by delivery to the Agent of a duly completed Utilisation Request
not later than 11:00 a.m. 5 Business Days prior to the proposed Utilisation Date.
5.2 Completion of a Utilisation Request for Loans
(a) Each Utilisation Request for a Loan is irrevocable and will not be regarded as having
been duly completed unless:
(i) the proposed Utilisation Date is a Business Day within the Availability Period;
and
(ii) the currency and amount of the Utilisation comply with Clause 5.3 (
Currency and
amount
).
(b) Only one Loan may be requested in each Utilisation Request.
5.3 Currency and amount
(a) The currency specified in a Utilisation Request must be Australian dollars.
(b) The amount of the proposed Loan must be an amount which is not more than the
Available Facility and must be a minimum of A$775,000 or, if less, the Available
Facility.
(c) The Original Lender may agree in its absolute discretion to fund a portion of the Loan
subject to the initial Utilisation Request in U.S. dollars ("
Relevant Portion
"), in which
case:
(i) the funded amount in U.S. dollars of the Relevant Portion shall be the amount as
determined by the Original Lender using any market based spot rate of exchange
as determined by the Original Lender;
(ii) despite such Relevant Portion being funded in U.S. dollars, the Obligors agree
and acknowledge that such amounts are required to be repaid to the Agent in
Australian dollars in accordance with this Agreement; and
(iii) the relevant Loan shall be expressed solely in Australian dollars for the purposes
of this Agreement.
5.4 Lenders' participation
(a) If the conditions set out in this Agreement have been met, each Lender shall make its
participation in each Loan available by the Utilisation Date through its Facility Office.
(b) The amount of each Lender's participation in each Loan will be equal to the proportion
borne by its Available Commitment to the Available Facility immediately prior to
making the Loan.
- 60 -
5.5 Cancellation of Commitment
The Commitments which, at that time, are unutilised shall be immediately cancelled at the end of the
Availability Period.
- 61 -
SECTION 4
REPAYMENT, PREPAYMENT AND CANCELLATION
6. REPAYMENT
6.1 Repayment of Loans
Each Borrower which has drawn a Loan shall repay it on the Termination Date along with all other
amounts outstanding under the Finance Documents.
7. PREPAYMENT AND CANCELLATION
7.1 Illegality
If, in any applicable jurisdiction, it becomes unlawful (or impossible as a result of a change in law or
regulation) for any Lender to perform any of its obligations as contemplated by this Agreement or to
fund or maintain its participation in any Utilisation:
(a) that Lender shall promptly notify the Agent upon becoming aware of that event;
(b) upon the Agent notifying the Company, each Available Commitment of that Lender
will be immediately cancelled; and
(c) each Borrower shall repay that Lender's participation in the Utilisations made to that
Borrower on the last day of the Interest Period for each Utilisation occurring after the
Agent has notified the Company or, if earlier, the date specified by the Lender in the
notice delivered to the Agent (being no earlier than the last day of any applicable grace
period permitted by law) and that Lender's corresponding Commitment(s) shall be
immediately cancelled in the amount of the participations repaid.
7.2 Review Event
(a) If a Review Event occurs:
(i) the Agent (as instructed by the Lenders) may, by written notice to the Borrowers,
require the Borrowers to promptly meet and consult in good faith with the Agent
and the Lenders for a period of 10 Business Days commencing from the date of
such written request (the “
Review Period
”) to determine whether the Borrowing
Base Undertaking will be satisfied on the next Test Date falling after the
occurrence of the Review Event (“
Subsequent Test Date
”); and
(ii) if at the end of the Review Period specified in paragraph (i) above (regardless of
whether such meeting or consultation specified in paragraph (i) above occurs or
not), the Lenders (acting reasonably) are not satisfied that the Borrowing Base
Undertaking will be satisfied on the Subsequent Test Date, then the Agent may
by written notice to the Company and the Borrowers (“
Prepayment Notice
”)
require the Company and the Borrowers to prepay outstanding Loans in an
aggregate amount sufficient to cure the failure to comply with the Borrowing
Base Undertaking (the “
Review Event Cure Amount
”) such that when the
Borrowing Base Undertaking is recalculated (by reducing the principal of the
Loans by the Review Event Cure Amount), the Company and the Borrowers are
then in compliance with Borrowing Base Undertaking.
- 62 -
(b) If:
(i) after the Review Period the Lenders are satisfied that the Borrowing Base
Undertaking will be satisfied on the Subsequent Test Date; or
(ii) the condition in paragraph (a)(ii) is satisfied,
the Review Event will be deemed to be waived or remedied (as applicable) and no
longer continuing for the purposes of the Finance Documents.
For the purpose of this clause:
“
Prepayment Period
” means 20 Business Days from the date of the notice referred to in
paragraph (b) above.
7.3 Voluntary cancellation
The Company may, if it gives the Agent not less than five Business Days' (or such shorter period as
the Majority Lenders may agree) prior notice, cancel the whole or any part (being a minimum amount
ofA$775,000) of an Available Facility. Any cancellation under this Clause 7.3 shall reduce the
Commitments of the Lenders rateably under that Facility.
7.4 Voluntary prepayment of Loans
A Borrower to which a Loan has been made may, if it gives the Agent not less than five Business
Days' (or such shorter period as the Majority Lenders may agree) prior notice, prepay the whole or
any part of any Loan (but, if in part, being an amount that reduces the amount of the Loan by a
minimum amount of A$775,000).
7.5 Mandatory prepayment – Change of Control Prepayment Event
(a) If a Change of Control Prepayment Event occurs, the Borrowers shall promptly notify
the Agent upon becoming aware of such event.
(b) If a Change of Control Prepayment Event occurs, each Lender shall be entitled to
require, by written notice to the Borrowers, that on or before the date that is 10 Business
Days from the date such notice is given by the Lender, that:
(i) all amounts arising under the Finance Documents that are owed or outstanding or
otherwise payable by the Obligors to that Lender will become immediately due
and payable, and the Borrowers will immediately prepay or procure the
prepayment of all such amounts (including all accrued interest, fees, expenses and
other amounts due and/or payable under the Finance Documents), including all
Loans provided by that Lender; and
(ii) the undrawn Available Facility of that Lender will be cancelled and such Lender
shall have no obligation to participate in further Loans requested under this
Agreement.
(c) For the avoidance of doubt, the Collateral Agent (including in its capacity as Australian
Security Trustee) shall not be required to release any Collateral in connection with a
- 63 -
Change of Control Prepayment Event until such all amounts that are required to be
prepaid pursuant to this paragraph (a) above have been received by the Agent.
8. RESTRICTIONS
8.1 Notices of cancellation or prepayment
Any notice of cancellation, prepayment, authorisation or other election given by any Party under
Clause 7 (
Prepayment and Cancellation
) shall be irrevocable and, unless a contrary indication appears
in this Agreement, shall specify the date or dates upon which the relevant cancellation or prepayment
is to be made and the amount of that cancellation or prepayment.
8.2 Interest and other amounts
Any prepayment under this Agreement shall be made together with accrued interest on the amount
prepaid and without premium or penalty.
8.3 Reborrowing
Unless a contrary indication appears in this Agreement, any part of the Facility which is prepaid or
repaid may be reborrowed.
8.4 Prepayments in accordance with Agreement
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.
8.5 No reinstatement of Commitments
No amount of the Total Commitments cancelled under this Agreement may be subsequently
reinstated.
8.6 Agent's receipt of notices
If the Agent receives a notice under Clause 7 (
Prepayment and Cancellation
) it shall promptly
forward a copy of that notice to either the Company or the affected Lender, as appropriate.
8.7 Effect of repayment and prepayment on Commitments
If all or part of any Lender's participation in a Utilisation under the Facility is repaid or prepaid and is
not available for redrawing (other than by operation of Clause 4.2 (
Further conditions precedent
)), an
amount of the Lender's Commitment (equal to the amount of the participation which is repaid or
prepaid) in respect of the Facility will be deemed to be cancelled on the date of repayment or
prepayment.
8.8 Application of prepayments
Any prepayment of a Utilisation pursuant to Clause 7.2 (
Review Event
), Clause 7.4 (
Voluntary
prepayment of Loans
) or Clause 7.5 (
Mandatory prepayment – Change of Control Prepayment Event
)
shall be applied pro rata to each Lender's participation in that Utilisation.
SECTION 5
COSTS OF UTILISATION
- 64 -
9. INTEREST
9.1 Calculation of interest
The rate of interest on each Loan for each Interest Period is the Interest Rate.
9.2 Payment of interest
The Borrower to which a Loan has been made shall pay accrued interest on that Loan on the last day
of each Interest Period.
9.3 Default interest
(a) If an Obligor fails to pay any amount payable by it under a Finance Document on its
due date, interest shall accrue on the overdue amount from the due date up to the date
of actual payment (both before and after judgment) at a rate of 15 per cent per annum.
Any interest accruing under this Clause 9.3 shall be immediately payable by the Obligor
on demand by the Agent.
(b) If any overdue amount consists of all or part of a Loan which became due on a day
which was not the last day of an Interest Period relating to that Loan:
(i) the first Interest Period for that overdue amount shall have a duration equal to the
unexpired portion of the current Interest Period relating to that Loan; and
(ii) the rate of interest applying to the overdue amount during that first Interest Period
shall be 15 per cent per annum.
(c) Default interest (if unpaid) arising on an overdue amount will be compounded with the
overdue amount at the end of each Interest Period applicable to that overdue amount
but will remain immediately due and payable.
9.4 Notification of rates of interest
The Agent shall promptly notify the relevant Lenders and the relevant Borrower of the determination
of a rate of interest under this Agreement.
10. INTEREST PERIODS
10.1 Interest Periods
(a) Each Interest Period will be:
(i) in respect of the first Interest Period for each Loan, the period from the Utilisation
Date of such Loan until the last Business Day of the calendar month which such
Loan was utilized; and
(ii) in all other cases, one Month.
(b) An Interest Period for a Loan shall not extend beyond the Termination Date applicable
to its Facility.
(c) Each Interest Period for a Loan shall start on the Utilisation Date or (if already made)
on the last day of its preceding Interest Period.
- 65 -
10.2 Non-Business Days
If an Interest Period would otherwise end on a day which is not a Business Day, that Interest Period
will instead end on the next Business Day in that calendar month (if there is one) or the preceding
Business Day (if there is not).
11. FEES
11.1 Agency fee
The Company shall pay to the Agent (for its own account) an agency fee in the amount and at the
times agreed in a Fee Letter.
11.2 Collateral Agent fee
The Company shall pay to the Collateral Agent (for its own account) a fee in the amount and at the
times agreed in a Fee Letter.
SECTION 6
ADDITIONAL PAYMENT OBLIGATIONS
12. TAX GROSS-UP AND INDEMNITIES
12.1 Definitions
(a) In this Clause 12:
"
Protected Party
" means a Finance Party which is or will be subject to any liability,
or required to make any payment, for or on account of Tax in relation to a sum received
or receivable (or any sum deemed for the purposes of Tax to be received or receivable)
under a Finance Document.
"
Tax Credit
" means a credit against, relief or remission for, or repayment of any Tax.
"
Tax Payment
" means either the increase in a payment made by an Obligor to a
Finance Party under Clause 12.2 (
Tax gross-up
) or a payment under Clause 12.3 (
Tax
indemnity
).
12.2 Tax gross -up
(a) Each Obligor shall make all payments to be made by it under the Finance Documents
without any Tax Deduction unless such Tax Deduction is required by law.
(b) The Company or a Finance Party shall promptly upon becoming aware that an Obligor
must make a Tax Deduction (or that there is any change in the rate or the basis of a Tax
Deduction) notify the Agent accordingly. If the Agent receives such notification from
a Lender it shall notify the Company and that Obligor.
(c) If a Tax Deduction is required by law to be made by an Obligor except in relation to a
Tax described in Clause 12.3(b)(i) or 12.3(b)(ii) (
Tax indemnity
), the Obligor shall pay
an additional amount together with the payment so that, after making any Tax
Deduction, the Finance Party receives an amount equal to the payment which would
have been due if no Tax Deduction had been required.
- 66 -
(d) If an Obligor is required to make a Tax Deduction, that Obligor shall make that Tax
Deduction and any payment required in connection with that Tax Deduction within the
time allowed and in the minimum amount required by law.
(e) Within thirty days of making either a Tax Deduction or any payment required in
connection with that Tax Deduction, the Obligor making that Tax Deduction shall
deliver to the Agent for the Finance Party entitled to the payment evidence satisfactory
to that Finance Party, acting reasonably, that the Tax Deduction has been made or (as
applicable) any appropriate payment paid to the relevant taxing authority.
12.3 Tax indemnity
(a) The Company shall (within three Business Days of demand by the Agent) pay to a
Protected Party an amount equal to the loss, liability or cost which that Protected Party
determines will be or has been (directly or indirectly) suffered for or on account of Tax
by that Protected Party in respect of a Finance Document or a transaction or payment
under it.
(b) Paragraph (a) shall not apply:
(i) with respect to any Tax assessed on a Finance Party if that Tax is imposed on or
calculated by reference to the net income received or receivable (but not any sum
deemed to be received or receivable) by that Finance Party:
(A) under the law of the jurisdiction in which that Finance Party is incorporated
or, if different, the jurisdiction (or jurisdictions) in which that Finance Party
is treated as resident for tax purposes; or
(B) under the law of the jurisdiction in which that Finance Party's Facility
Office is located in respect of amounts received or receivable in that
jurisdiction; or
(ii) with respect to Australian Withholding Tax; or
(iii) to the extent the relevant loss, liability or cost:
(A) is compensated for by an increased payment under Clause 12.2 (
Tax gross-
up
); or
(B) relates to a FATCA Deduction required to be made by a Party.
(c) A Protected Party making or intending to make a claim pursuant to paragraph (a) above
shall promptly notify the Agent of the event which will give, or has given, rise to the
claim, following which the Agent shall notify the Company.
(d) A Protected Party shall, on receiving a payment from an Obligor under this Clause 12.3,
notify the Agent.
- 67 -
12.4 Tax Credit
If an Obligor makes a Tax Payment and the relevant Finance Party determines in its absolute
discretion that:
(a) a Tax Credit is attributable to that Tax Payment or to a Tax Deduction in consequence
of which that Tax Payment was required; and
(b) that Finance Party has obtained, utilised and retained that Tax Credit,
subject to Clause 26 (
Conduct of Business by the Finance Parties
), the Finance Party shall pay an
amount to the Obligor which that Finance Party determines in its absolute discretion will leave it
(after that payment) in the same after-Tax position as it would have been in had the circumstances not
arisen which caused the Tax Payment to be required to be made by the Obligor.
12.5 Stamp duties and Taxes
The Company shall:
(a) pay; and
(b) within three Business Days of demand, indemnify each Finance Party against any cost,
expense, loss or liability that Finance Party incurs in relation to,
all stamp duty, registration or other similar Tax payable in respect of any Finance Document except
Transfer Certificates.
12.6 Indirect Tax
(a) All payments to be made by an Obligor under or in connection with any Finance
Document have been calculated without regard to Indirect Tax. If all or part of any
such payment is the consideration for a taxable supply or chargeable with Indirect Tax
then, when the Obligor makes the payment:
(i) it must pay to the Finance Party an additional amount equal to that payment (or
part) multiplied by the appropriate rate of Indirect Tax; and
(ii) the Finance Party will promptly provide to the Obligor a tax invoice complying
with the relevant law relating to that Indirect Tax.
(b) Where a Finance Document requires an Obligor to reimburse or indemnify a Finance
Party for any costs or expenses, that Obligor shall also at the same time pay and
indemnify that Finance Party against all Indirect Tax incurred by that Finance Party in
respect of the costs or expenses save to the extent that that Finance Party is entitled to
repayment or credit in respect of the Indirect Tax. The Finance Party will promptly
provide to the Obligor a tax invoice complying with the relevant law relating to that
Indirect Tax.
12.7 FATCA information
(a) Subject to paragraph (c) below, each Party shall, within ten Business Days of a
reasonable request by another Party:
- 68 -
(i) confirm to that other Party whether it is:
(A) a FATCA Exempt Party; or
(B) not a FATCA Exempt Party;
(ii) supply to that other Party such forms, documentation and other information
relating to its status under FATCA as that other Party reasonably requests for the
purposes of that other Party's compliance with FATCA; and
(iii) supply to that other Party such forms, documentation and other information
relating to its status as that other Party reasonably requests for the purposes of
that other Party's compliance with any other law, regulation, or exchange of
information regime.
(b) If a Party confirms to another Party pursuant to paragraph (a)(i) above that it is a
FATCA Exempt Party and it subsequently becomes aware that it is not or has ceased
to be a FATCA Exempt Party, that Party shall notify that other Party reasonably
promptly.
(c) Paragraph (a) above shall not oblige any Finance Party to do anything, and paragraph
(a)(iii) above shall not oblige any other Party to do anything, which would or might in
its reasonable opinion constitute a breach of:
(i) any law or regulation;
(ii) any fiduciary duty; or
(iii) any duty of confidentiality.
(d) If a Party fails to confirm whether or not it is a FATCA Exempt Party or to supply
forms, documentation or other information requested in accordance with paragraph
(a)(i) or (ii) above (including, for the avoidance of doubt, where paragraph (c) above
applies), then such Party shall be treated for the purposes of the Finance Documents
(and payments under them) as if it is not a FATCA Exempt Party until such time as the
Party in question provides the requested confirmation, forms, documentation or other
information.
12.8 FATCA Deduction
(a) Each Party may make any FATCA Deduction it is required to make by FATCA, and
any payment required in connection with that FATCA Deduction, and no Party shall be
required to increase any payment in respect of which it makes such a FATCA
Deduction or otherwise compensate the recipient of the payment for that FATCA
Deduction.
(b) Each Party shall promptly, upon becoming aware that it must make a FATCA
Deduction (or that there is any change in the rate or the basis of such FATCA
Deduction), notify the Party to whom it is making the payment and, in addition, shall
notify the Company and the Agent and the Agent shall notify the other Finance Parties.
- 69 -
13. OTHER INDEMNITIES
13.1 Currency indemnity
(a) If any sum due from an Obligor under the Finance Documents (a "
Sum
"), or any order,
judgment or award given or made in relation to a Sum, has to be converted from the
currency (the "
First Currency
") in which that Sum is payable into another currency
(the "
Second Currency
") for the purpose of:
(i) making or filing a claim or proof against that Obligor;
(ii) obtaining or enforcing an order, judgment or award in relation to any litigation or
arbitration proceedings,
that Obligor shall, as an independent obligation, within three Business Days of demand,
indemnify each Finance Party to whom that Sum is due against any cost, expense, loss
or liability arising out of or as a result of the conversion including any discrepancy
between (A) the rate of exchange used to convert that Sum from the First Currency into
the Second Currency and (B) the rate or rates of exchange available to that person at
the time of its receipt of that Sum.
(b) Each Obligor waives any right it may have in any jurisdiction to pay any amount under
the Finance Documents in a currency or currency unit other than that in which it is
expressed to be payable.
13.2 Other indemnities
The Company shall (or shall procure that an Obligor will), within three Business Days of demand,
indemnify each Finance Party against any cost, expense, loss or liability (excluding legal fees of the
Lenders) incurred by that Finance Party as a result of:
(a) the occurrence of any Event of Default or Review Event;
(b) any information produced or approved by the Company under or in connection with the
Finance Documents or the transactions they contemplate being or being alleged to be
misleading or deceptive in any respect;
(c) any enquiry, investigation, subpoena (or similar order) or litigation with respect to any
Obligor;
(d) a failure by an Obligor to pay any amount due under a Finance Document on its due
date, including without limitation, any cost, expense, loss or liability arising as a result
of Clause 27 (
Sharing among the Finance Parties
);
(e) funding, or making arrangements to fund, its participation in a Utilisation requested by
a Borrower in a Utilisation Request but not made by reason of the operation of any one
or more of the provisions of this Agreement (other than by reason of default or
negligence by that Finance Party alone);
(f) a Utilisation (or part of a Utilisation) not being prepaid in accordance with a notice of
prepayment given by a Borrower or the Company;
- 70 -
(g) an amount being paid or payable by that Finance Party to the Agent or another Finance
Party under Clause 24.10 (
Lenders' indemnity to the Agent
); or
(h) security being provided by that Finance Party to the Agent under Clause 24.6(i) (
Rights
and discretions
) or Clause 24.10(d) (
Lenders' indemnity to the Agent
) including costs
and expenses in providing that security and, if the security is cash, the Company shall
pay interest on the amount provided from the date of provision in the manner provided
in Clause 9.3 (
Default interest
).
13.3 Indemnity to the Agent
The Company shall, within three Business Days of demand, indemnify the Agent against any cost,
expense, loss or liability incurred by the Agent (acting reasonably) as a result of:
(a) investigating any event which it reasonably believes is a Default;
(b) acting or relying on any notice, request or instruction which it reasonably believes to
be genuine, correct and appropriately authorised; or
(c) instructing lawyers, accountants, tax advisers, surveyors or other experts or
professional advisers as permitted under this Agreement.
14. MITIGATION BY THE FINANCE PARTIES
14.1 Mitigation
(a) Each Finance Party shall, in consultation with the Company, take all reasonable steps
to mitigate any circumstances which arise and which would result in any amount
becoming payable under or pursuant to, or its Commitment being cancelled pursuant
to, any of Clause 7.1 (
Illegality
), Clause 12 (
Tax gross -up and indemnities
) (other than
Clause 12.6 (
Indirect Tax
))) including (but not limited to) transferring its rights and
obligations under the Finance Documents to another Affiliate or Facility Office.
(b) Paragraph (a) above does not in any way limit the obligations of any Obligor under the
Finance Documents.
14.2 Indemnity and limitation of obligation to mitigate
(a) The Company shall promptly indemnify each Finance Party for all costs and expenses
reasonably incurred by that Finance Party as a result of steps taken by it under Clause
14.1 (
Mitigation
).
(b) A Finance Party is not obliged to take any steps under Clause 14.1 (
Mitigation
) if, in
the opinion of that Finance Party (acting reasonably), to do so might be prejudicial to
it.
15. COSTS AND EXPENSES
15.1 Transaction expenses
The Company shall within three Business Days of demand pay each Finance Party the amount of all
costs and expenses (excluding legal fees) incurred by any of them in connection with the negotiation,
preparation, printing, execution and registration of:
- 71 -
(a) this Agreement and any other documents referred to in this Agreement and the
Transaction Security; and
(b) any other Finance Documents executed after the date of this Agreement.
15.2 Amendment and other costs
If (a) an Obligor requests an amendment, waiver or consent or (b) an amendment is required pursuant
to Clause 28.9 (
Change of currency
), the Company shall, within three Business Days of demand,
reimburse the Agent and each other Finance Party for the amount of all costs and expenses (excluding
legal fees) reasonably incurred by the Agent or other Finance Party in responding to, evaluating,
negotiating or complying with that request or requirement.
15.3 Legal costs
The Lenders and the Company shall pay their own legal costs incurred by any of them in connection
with the negotiation, preparation, printing, execution and registration of:
(a) this Agreement and any other documents referred to in this Agreement and the
Transaction Security; and
(b) any other Finance Documents executed after the date of this Agreement.
15.4 Enforcement costs
The Company shall, within three Business Days of demand, pay to each Finance Party the amount of
all costs and expenses (including legal fees on a full indemnity basis) incurred by that Finance Party
in connection with:
(a) the enforcement of, or the preservation of any rights under, any Finance Document; and
(b) any proceedings instituted by or against the Collateral Agent (including in its capacity
as Australian Security Trustee ) as a consequence of taking or holding the Transaction
Security.
- 72 -
SECTION 7
GUARANTEE
16. GUARANTEE
16.1 Guarantee
Each Guarantor irrevocably and unconditionally jointly and severally:
(a) guarantees to each Finance Party punctual performance by each Obligor of all that
Obligor's obligations under the Finance Documents;
(b) undertakes with each Finance Party that:
(i) whenever an Obligor does not pay any amount when due under or in connection
with any Finance Document (or anything which would have been due if the
Finance Document or the amount was enforceable, valid and not illegal),
immediately on demand by the Finance Party that Guarantor shall pay that
amount as if it was the principal obligor; and
(ii) if an Ipso Facto Event is continuing, then immediately on demand by the Agent
that Guarantor shall pay all Loans, accrued interest and other amounts referred to
in Clause 21.13(b) (
Acceleration
) as if it was the principal obligor;
(c) agrees with each Finance Party that if any obligation guaranteed by it is or becomes
unenforceable, invalid or illegal, it will, as an independent and primary obligation,
indemnify that Finance Party immediately on demand against any cost, expense, loss
or liability it incurs as a result of an Obligor not paying any amount which would, but
for such unenforceability, invalidity or illegality, have been payable by it under any
Finance Document on the date when it would have been due. The amount of the cost,
expense, loss or liability shall be equal to the amount which that Finance Party would
otherwise have been entitled to recover.
Each of paragraphs (a), (b)(i), (b)(ii) and (c) is a separate obligation. None is limited by reference to
the other.
"
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
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.
16.2 Continuing guarantee
This Guarantee is a continuing obligation and will extend to the ultimate balance of sums payable by
any Obligor under the Finance Documents, regardless of any intermediate payment or discharge in
whole or in part.
- 73 -
16.3 Reinstatement
If any payment to or any discharge, release or arrangement given or entered into by a Finance Party
(whether in respect of the obligations of any Obligor or any security for those obligations or
otherwise) is avoided or reduced for any reason (including as a result of insolvency, breach of
fiduciary or statutory duties or any similar event) in whole or in part, then the liability of each
Guarantor under this Clause 16 will continue or be reinstated as if the discharge, release or
arrangement had not occurred and any relevant security shall be reinstated.
16.4 Waiver of defences
The obligations of each Guarantor under this Clause 16 will not be affected by an act, omission,
matter or thing (other than payment or performance) which, but for this Clause 16, would reduce,
release or prejudice any of its obligations under this Clause 16 (without limitation and whether or not
known to it or any Finance Party) including:
(a) any time, waiver or other concession or consent granted to, or composition with, any
Obligor or other person;
(b) the release or resignation of any other Obligor or any other person;
(c) any composition or arrangement with any creditor of any Obligor or other person;
(d) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect
to perfect, execute, take up or enforce, any rights against, or security over assets of, any
Obligor or other person or any non-presentation or non-observance of any formality or
other requirement in respect of any instrument or any failure to realise the full value of
any security;
(e) any incapacity or lack of power, authority or legal personality of or dissolution or
change in the members or status of an Obligor or any other person;
(f) any amendment, novation, supplement, extension, restatement (however fundamental
and whether or not more onerous) or replacement of any Finance Document or any
other document or security including any change in the purpose of, any extension of or
any increase in any Facility or the addition of any new facility under any Finance
Document or other document or security;
(g) any unenforceability, illegality or invalidity of any obligation of any person under any
Finance Document or any other document or security;
(h) any set off, combination of accounts or counterclaim;
(i) any insolvency or similar proceedings; or
(j) this Agreement or any other Finance Document not being executed by or binding
against any other Obligor or any other party.
References in Clause 16.1 (
Guarantee
) to obligations of an Obligor or amounts due will include what
would have been obligations or amounts due but for any of the above, as well as obligations and
amounts due which result from any of the above.
- 74 -
16.5 Immediate recourse
Each Guarantor waives any right it may have of first requiring any Finance Party (or any trustee or
agent on its behalf) to proceed against or enforce any other rights or security or claim payment from
any person before claiming from that Guarantor under this Clause 16. This waiver applies
irrespective of any law or any provision of a Finance Document to the contrary.
16.6 Appropriations
Until all amounts which may be or become payable by the Obligors under or in connection with the
Finance Documents have been irrevocably paid in full, each Finance Party (or any trustee or agent on
its behalf) may in accordance with any applicable Law:
(a) refrain from applying or enforcing any other moneys, security or rights held or received
or recovered (by set off or otherwise) by that Finance Party (or any trustee or agent on
its behalf) in respect of those amounts, or apply and enforce the same in such manner
and order as it sees fit (whether against those amounts or otherwise) and no Guarantor
shall be entitled to the benefit of the same; and
(b) without limiting paragraph (a), refrain from applying any moneys received or recovered
(by set off or otherwise) from any Guarantor or on account of any Guarantor's liability
under this Clause 16 in discharge of that liability or any other liability of an Obligor
and claim or prove against anyone in respect of the full amount owing by the Obligors.
16.7 Deferral of Guarantors' rights
Until all amounts which may be or become payable by the Obligors under or in connection with the
Finance Documents have been irrevocably paid in full and unless the Agent otherwise directs, no
Guarantor will exercise any rights which it may have by reason of performance by it of its obligations
under the Finance Documents or by reason of any amount being payable, or liability arising, under
this Clause 16:
(a) to be indemnified by an Obligor;
(b) to claim any contribution from any other guarantor of or provider of security for any
Obligor's obligations under the Finance Documents;
(c) to take the benefit (in whole or in part and whether by way of subrogation or otherwise)
of any rights of the Finance Parties under the Finance Documents or of any other
guarantee or security taken pursuant to, or in connection with, the Finance Documents
by any Finance Party;
(d) to bring legal or other proceedings for an order requiring any Obligor to make any
payment, or perform any obligation, in respect of which any Guarantor has given a
Guarantee under Clause 16.1 (
Guarantee
);
(e) to exercise any right of set-off against any Obligor;
(f) to claim or prove as a creditor of any Obligor in competition with any Finance Party;
and/or
- 75 -
(g) in any form of administration of an Obligor (including liquidation, winding up,
bankruptcy, voluntary administration, dissolution or receivership or any analogous
process) prove for or claim, or exercise any vote or other rights in respect of, any
indebtedness of any nature owed to it by the Obligor.
If a Guarantor receives any benefit, payment or distribution in relation to such rights it shall hold that
benefit, payment or distribution to the extent necessary to enable all amounts which may be or
become payable to the Finance Parties by the Obligors under or in connection with the Finance
Documents to be repaid in full on trust for the Finance Parties and shall promptly pay or transfer the
same to the Agent or as the Agent may direct for application in accordance with Clause 28 (
Payment
Mechanics
).
16.8 Release of Guarantors' right of contribution
If any Guarantor (a "
Retiring Guarantor
") ceases to be a Subsidiary or is no longer required to
provide a guarantee under the Finance Documents for the purpose of any sale or other disposal of that
Retiring Guarantor, then on the date such Retiring Guarantor ceases to be a Guarantor:
(a) that Retiring Guarantor is released by each other Guarantor from any liability (whether
past, present or future and whether actual or contingent) to make a contribution to any
other Guarantor arising by reason of the performance by any other Guarantor of its
obligations under the Finance Documents; and
(b) each other Guarantor waives any rights it may have by reason of the performance of its
obligations under the Finance Documents to take the benefit (in whole or in part and
whether by way of subrogation or otherwise) of any rights of the Finance Parties under
any Finance Document or of any other security taken pursuant to, or in connection with,
any Finance Document where such rights or security are granted by or in relation to the
assets of the Retiring Guarantor.
16.9 Additional security
This Guarantee is in addition to and is not in any way prejudiced by any other guarantee or security
now or subsequently held by any Finance Party.
16.10 Release
(a) At such time as the Obligations shall have been confirmed by the 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 any instrument or performance of any act by any party. At the request and
sole expense of any Guarantor following any such termination, the 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
- 76 -
Subsidiary (or becomes an Excluded Subsidiary); provided, that a Guarantor shall
not be released until the Company delivers an updated Borrowing Base
Certificate in form and substance satisfactory to the Agent demonstrating, after
giving effect to such release (including any prepayment or repayment of the
Loans), that there will be no breach of the Borrowing Base Undertaking; 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 Agent, and the termination of the Commitments.
(c) In connection with any such release, the 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
such documents pursuant to this clause shall be without recourse to or warranty by the
Agent (other than as to the Agent’s authority to execute and deliver such documents).
16.11 Keepwell.
Each Qualified ECP Guarantor hereby jointly 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 Obligor 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 clause for the
maximum amount of such liability that can be hereby incurred without rendering its obligations under
this clause, 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 clause 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 clause constitutes, and this clause shall be deemed to constitute, a “keepwell, support, or other
agreement” for the benefit of each Obligor for all purposes of Section 1a(18)(A)(v)(II) of the U.S.
Commodity Exchange Act.
- 77 -
SECTION 8
REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT
17. REPRESENTATIONS
Each Obligor makes the representations and warranties set out in this Clause 17 to each Finance Party
on the date of the Third Amending Deed.
17.1 Status
(a) It is a duly incorporated, organised or formed and validly existing under the laws of its
jurisdiction of incorporation or organisation.
(b) It and each of its Subsidiaries has the power to own its assets and carry on its business
as it is being conducted.
(c) Each U.S. Obligor is in good standing under (i) the laws of the jurisdiction of its
incorporation or organization and (ii) each other jurisdiction in which such U.S. Obligor
is qualified to engage in business where its ownership, lease or operation of properties
or the conduct of its business requires such qualification, except, in the case of this
paragraph (c)(ii), to the extent that failure to do so could not reasonably be expected to
have a Material Adverse Effect.
17.2 Binding obligations
(a) The obligations expressed to be assumed by it in each Finance Document to which it is
a party are, subject to any necessary stamping and Authorisations, equitable principles
and laws generally affecting creditors' rights, legal, valid, binding and enforceable
obligations.
(b) Without limiting the generality of paragraph (a) above, each Collateral Document to
which it is a party creates the Security which that Collateral Document purports to
create and that Security is, subject to any necessary stamping, Authorisations and
registration requirements, equitable principles and laws generally affecting creditors'
rights, valid and effective.
17.3 Non-conflict with other obligations
The entry into and performance by it of, and the transactions contemplated by, the Finance
Documents including the granting of the Transaction Security do not and will not conflict with:
(a) any law or regulation applicable to it;
(b) its or any of its Subsidiaries' constitutional documents; or
(c) any agreement or instrument binding upon it or any of its Subsidiaries or any of its or
any of its Subsidiaries' assets.
where, except in the case of paragraph (b) above, to do so would have, or is reasonably
likely to have, a Material Adverse Effect.
- 78 -
17.4 Power and authority
It has the power to enter into, perform and deliver, and has taken all necessary action to authorise its
entry into, performance and delivery of, the Finance Documents to which it is a party and the
transactions contemplated by those Finance Documents.
17.5 Validity and admissibility in evidence
All Authorisations required or desirable:
(a) to enable it lawfully to enter into, exercise its rights under and comply with its
obligations in the Finance Documents to which it is a party;
(b) to make the Finance Documents to which it is a party, its legal, valid, binding and
enforceable obligations, admissible in evidence in its jurisdiction of incorporation;
(c) to perfect the Transaction Security; and
(d) for it to carry on its business, where failure to obtain that Authorisation would have or
is reasonably likely to have a Material Adverse Effect,
have been obtained or effected and are in full force and effect.
17.6 Governing law and enforcement
(a) The choice of law referred to in Clause 42 (
Governing Law
) as the governing law of
the Finance Documents will be recognised and enforced in its jurisdiction of
incorporation.
(b) Any judgment obtained against it in any jurisdiction referred to in Clause 43
(
Enforcement
) in relation to a Finance Document will be recognised and enforced in its
jurisdiction of incorporation.
17.7 Solvency
(a) As of the Amendment and Restatement Effective Date:
(i) the sum of the debt (including contingent liabilities) of the Company and its
Subsidiaries, on a consolidated basis, does not exceed the fair value of the present
assets of the Company and its Subsidiaries, on a consolidated basis;
(ii) the present fair saleable value of the assets of the Company 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 the Company and its
Subsidiaries, on a consolidated basis, as they become absolute and matured;
(iii) the capital of the Company and its Subsidiaries, on a consolidated basis, is not
unreasonably small in relation to the business of the Company or its Subsidiaries,
on a consolidated basis, contemplated as of the Amendment and Restatement
Effective Date;
(iv) the Company and its Subsidiaries, on a consolidated basis, do not intend to incur,
or believe that they will incur, debts (including current obligations and contingent
- 79 -
liabilities) beyond their ability to pay such debt as they mature in the ordinary
course of business; and
(v) the Company and its Subsidiaries are not otherwise unable to pay its or their
respective debts as and when they become due and payable.
For the purposes of this paragraph, 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.
(b) No corporate action, legal proceeding or other procedure or step described in Clause
21.7 (
Insolvency Proceedings
) has been taken in relation to a member of the Group,
and none of the circumstances described in Clause 21.8 (
Insolvency
) applies to a
member of the Group, other than as disclosed to the Lenders in writing prior to the
Amendment and Restatement Effective Date.
17.8 No default
(a) No Event of Default or Review Event is continuing or might reasonably be expected to
result from the making of any Utilisation or the entry into, the performance of, or any
transaction contemplated by, any Finance Document.
(b) No other event or circumstance is outstanding which constitutes a default under any
other agreement or instrument which is binding on it or to which its assets are subject
which might have a Material Adverse Effect.
17.9 Disclosure
It has disclosed in writing to the Original Lender all information known to it which it believes could
reasonably be expected to be material to the ability of the Group (taken as a whole) to perform their
obligations under the Finance Documents or to an Original Lender's assessment of the nature and
degree of risk undertaken by it in granting financial accommodation to the Group in entering into the
Finance Documents.
17.10 No misleading information
(a) Any factual information provided by or on behalf of such Obligor or any other member
of the Group in writing in connection with the Finance Documents and the transactions
they contemplate was true and accurate in all material respects and not misleading as
at the date it was provided or as at the date (if any) at which it is stated.
(b) Any financial projections provided by or on behalf of such Obligor or any other member
of the Group have been prepared on the basis of recent historical information and on
the basis of reasonable assumptions.
(c) Nothing has occurred or been omitted from the information provided in writing in
connection with the Finance Documents and no information has been given or withheld
that results in the information provided by or on behalf of such Obligor or any other
member of the Group being untrue or misleading in any material respect.
- 80 -
17.11 Financial statements
(a) The Original Financial Statements were prepared in accordance with GAAP
consistently applied unless as otherwise expressly noted therein or in the notes thereto.
(b) The Original Financial Statements fairly present in all material respects the
consolidated financial condition of the Company and its Subsidiaries, on a consolidated
basis, as at such date and the consolidated results of operations of the Company and its
Subsidiaries for the period ended on such date, all prepared in accordance with GAAP,
except as otherwise noted therein.
(c) The most recent financial statements delivered pursuant to Clause 18.1 (
Financial
statements
):
(i) have been prepared in accordance with Clause 18.2 (
Requirements as to financial
statements
); and
(ii) give a true and fair view of (if audited) or fairly present (if unaudited) the
Company’s and its Subsidiaries’ consolidated financial condition as at the end of,
and consolidated results of operations for, the period to which they relate.
(d) Since the date of the Original Financial Statements, 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 that has not been disclosed to and
accepted by the Lender.
17.12 Pari passu ranking
Its payment obligations under the Finance Documents rank at least pari passu with the claims of all its
other unsecured and unsubordinated creditors, except for obligations mandatorily preferred by law
applying to companies generally.
17.13 No proceedings pending
(a) No litigation, arbitration or administrative proceedings of or before any court, arbitral
body or agency which, if adversely determined, might reasonably be expected to have
a Material Adverse Effect has or have (to the best of its knowledge and belief) been
started or threatened in writing against it.
(b) No judgment or order of a court, arbitral tribunal or other tribunal or any order or
sanction of any government or other regulatory body which is reasonably likely to have
a Material Adverse Effect has (to the best of its knowledge and belief) been made
against it.
17.14 Trustee
It does not enter into any Finance Document or hold any property as trustee.
- 81 -
17.15 Authorised signatories
Any person specified as its authorised signatory under Schedule 2 (
Conditions Precedent
) or Clause
18.5 (
Information: miscellaneous
) is authorised to sign Utilisation Requests and other notices on its
behalf except where it has previously notified the Agent that the authority has been revoked.
17.16 Taxes
(a) Such Obligor has filed all material federal, state and other Tax returns and reports
required to be filed, and has paid all material federal, state and other Taxes, assessments,
fees and other governmental charges levied or imposed upon it or its 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 is not tax resident in any
jurisdiction other than the jurisdiction of its incorporation or organisation;
(b) So far as such Obligor is aware, there is no proposed material Tax assessment against
it.
(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.
(e) The only entities that are a party to the Australian Tax Agreement are the Australian
Obligors.
(f) No Borrower has been a member of any GST Group, other than the GST Group of
which CCPL is the representative member.
17.17 Ranking and Collateral Documents
(a) The provisions of the Collateral Documents, together with such filings and other actions
required to be taken hereby or by the applicable 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 a legal, valid and enforceable Security on all right, title and interest of the
Collateral owned by such Obligor and described therein.
(b) The Transaction Security has or will have the ranking in priority which it is expressed
to have in the Collateral Documents (if any) and it is not subject to any prior ranking
or pari passu ranking Security other than Permitted Liens.
(c) All of its Material Fixed Assets are subject to a Real Property Mortgage.
17.18 Existing Financial Indebtedness
Such Obligor has not incurred any other Financial Indebtedness other than Permitted Financial
Indebtedness.
- 82 -
17.19 Good title to assets
It has a good, valid and marketable title to, or valid leases or licences of, and all appropriate
Authorisations to use, the assets necessary to carry on its business as presently conducted.
17.20 Shares
The shares, membership or other interests, or other securities in or issued by any member of the
Group which are subject to the Transaction Security are fully paid and not subject to any option to
purchase or similar rights. The constitutional or other documents of entities whose shares,
membership or other interests, or other securities are subject to the Transaction Security do not and
could not restrict or inhibit any transfer or creation or enforcement of the Transaction Security.
17.21 Group structure chart
(a) The group structure chart delivered to the Agent as a condition precedent to the
Amendment and Restatement Effective Date is true, complete and accurate in all
material respects on the first Utilisation Date.
(b) The most recent group structure chart delivered to the Agent under this Agreement is
true, complete and accurate in all material respects.
17.22 Environmental compliance
Except as disclosed to, and accepted by, the Agent in writing, or as otherwise could not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect:
(a) such Obligor has not 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 the Company or its Subsidiaries, or the business
operated by the Company 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 such Obligor 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 such Obligor under, any applicable Environmental Law;
(c) no judicial proceeding or governmental or administrative action is pending or, to the
knowledge of such Obligor, threatened under any Environmental Law to which such
Obligor is or, to the knowledge of such Obligor, 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 such
Obligor, the Properties or the Business;
- 83 -
(d) the Properties and all operations at the Properties and of the Business are and have been
in compliance with all applicable Environmental Laws;
(e) such Obligor:
(i) holds and has held all Environmental Permits required for any of its 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 such Obligor 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 such Obligor by appropriate proceedings diligently conducted;
(ii) is, or has 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 such Obligor 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; and
(f) to the knowledge of such Obligor, none of the Properties has 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.
17.23 Mining
(a) Such Obligor 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 such Obligor (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 disclosed to, and accepted by, the Agent in writing, 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.
(d) All Surface Facilities are located on the surface of Real Property that is owned (and not
leased) by an Obligor and is subject to a perfected Security under a Collateral Document,
with the following exceptions:
- 84 -
(i) all of the Surface Facilities servicing the Logan Mine are on leased land;
(ii) a small part of the Surface Facilities servicing the Buchanan Mine are on leased
land; and
(iii) a small part of the Surface Facilities servicing the Greenbrier Mine are on leased
land;
but in the case of sub-paragraphs (i), (ii) and (iii) above the Obligors own the structures,
infrastructure and equipment comprising the Surface Facilities.
17.24 Insurance
The properties of such Obligor 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 such Obligor operates.
17.25 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 Obligors), 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 such Obligor, 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
such Obligor, there has been no nonexempt “prohibited transaction” (as defined in
Section 406 of 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) neither such Obligor 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);
- 85 -
(iv) neither such Obligor 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) neither such Obligor nor any ERISA Affiliate has engaged in a transaction that
could be subject to Section 4069 or 4212(c) of ERISA.
17.26 Margin regulations; Investment Company Act
(a) The Borrowers are not engaged and will not engage, principally or as one of their
important activities, in the business of purchasing or carrying margin stock (within the
meaning of Regulation U issued by the U.S. Federal Reserve Board), or extending
credit for the purpose of purchasing or carrying margin stock.
(b) None of the Borrowers, any Person controlling the Borrowers (as determined under the
Investment Company Act of 1940), or such Obligor is, or is required to register as, an
“investment company” under the Investment Company Act of 1940.
17.27 Compliance with laws
Such Obligor is 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.
17.28 Intellectual Property, licences
(a) Such Obligor exclusively owns, or possesses the valid and continuing right to use, all
of the Intellectual Property necessary to the conduct of its business as presently
conducted free and clear of all Security (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.
(b) To the knowledge of such Obligor, the use of such Intellectual Property by such Obligor
does not infringe upon any rights held by any other Person.
(c) 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.
17.29 Casualty
Neither the businesses nor the properties of such Obligor have been affected by any fire, explosion,
accident, strike, lockout or other labor dispute, drought, storm, hail, earthquake, embargo, act of God
- 86 -
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.
17.30 Labor matters
(a) Except as disclosed to, and accepted by, the Agent in writing, there are no collective
bargaining agreements or Multiemployer Plans covering the employees of the Obligors
as of the Amendment and Restatement Effective Date.
(b) Such Obligor has not suffered any strikes, walkouts, work stoppages or other material
labor difficulty within the last five (5) years.
(c) Such Obligor has not suffered any strikes, walkouts, work stoppages or other material
labor difficulty that could reasonably be expected to result in a Material Adverse Effect.
17.31 Use of Proceeds
The Borrowers will use the proceeds of the Loans solely as provided for in Clause 3.1 (
Purpose
).
17.32 Coal Act; Black Lung Act
(a) Such Obligor and each of its 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.
(b) Neither such Obligor nor any of its “related persons” (as defined in the Coal Act) has
any liability under the Coal Act, except, in the case of this paragraph (b), as disclosed
in the Company’s 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 Agent in form and substance reasonably satisfactory to the
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.
(c) Such Obligor is, and has been, in compliance in all material respects with the Black
Lung Act.
(d) Such Obligor has not 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
paragraph (d), as disclosed in the Company’s 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 Agent in form and substance
reasonably satisfactory to the Agent), or which could not reasonably be expected to
have a Material Adverse Effect.
17.33 Anti-Terrorism Laws, Anti-Corruption Laws and Sanctions
(a) Neither such Obligor, nor any of its respective directors, officers, or employees or, to
the knowledge of the Obligor, any of its respective agents, Affiliates or representatives
- 87 -
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.
(b) Each such Obligor and its 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, or Anti-Terrorism Laws or Sanctions, and such Obligor has
conducted its business in compliance with those laws and has instituted and maintains
policies and procedures designed to ensure, and which are reasonably expected to
continue to ensure, continued compliance with those laws and Sanctions.
17.34 Beneficiaries
The only Beneficiaries are the Agent, the Collateral Agent (including in its capacity as Australian
Security Trustee) and the Lenders.
17.35 Repetition
The Repeating Representations are deemed to be made by each Obligor by reference to the facts and
circumstances then existing on:
(a) the date of each Utilisation Request and the first day of each Interest Period; and
(b) in the case of an Additional Obligor, the day on which the company becomes (or it is
proposed that the company becomes) an Additional Obligor.
18. INFORMATION UNDERTAKINGS
The undertakings in this Clause 18 remain in force from the date of this Agreement for so long as any
amount is outstanding under the Finance Documents or any Commitment is in force.
18.1 Financial statements
The Company shall supply to the 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;
(b) as soon as the same become available, but in any event within 60 days after the end of
each half of each of its financial years, its consolidated financial statements for that
financial half year;
(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.
- 88 -
18.2 Provision and contents of certificates
(a) The Company shall supply to the Agent, with each set of financial statements delivered
pursuant to Clause 18.1 (
Financial statements
), a Compliance Certificate setting out (in
reasonable detail) computations as to compliance with the Financial Covenants as at
the date as at which those financial statements were drawn up.
(b) The Company shall supply to the Agent, no later than the date each set of financial
statements is delivered pursuant to Clause 18.1 (
Financial statements
), a Borrowing
Base Certificate setting out (in reasonable detail) computations as to compliance with
the Borrowing Base Undertaking.
(c) The Company shall, with each set of financial statements delivered pursuant to Clause
18.1 (
Financial statements
), confirm as part of the relevant Compliance Certificate that:
(i) there has either been no change in the information with respect to the Collateral
owned by any Obligor 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 receive certificate delivered pursuant to this paragraph or if
any such change has occurred, attaching a Perfection Certificate Supplement
signed by the Obligors, identifying such changes; and
(ii) if a Distribution has been made since the previous Compliance Certificate that
such Distribution is a Permitted Distribution.
(d) Each Compliance Certificate shall be signed by a Responsible Officer of the Company
and each Borrowing Base Certificate shall be signed by the chief financial officer, chief
executive officer or group financial controller of the Company.
18.3 Requirements as to financial statements
(a) The Company shall procure that each set of annual financial statements delivered by
the Company pursuant to Clause 18.1(a) (
Financial statements
) shall be audited by the
Auditors.
(b) Each set of financial statements delivered by the Company pursuant to Clause 18.1
(
Financial statements
) shall be certified by a Responsible Officer of the Company 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) The Company shall procure that each set of financial statements delivered pursuant to
Clause 18.1 (
Financial statements
) is prepared using GAAP, accounting practices and
financial reference periods consistent with those applied in the preparation of the
Original Financial Statements unless, in relation to any set of financial statements, it
notifies the Agent that there has been a change in GAAP, the accounting practices or
reference periods and its auditors deliver to the Agent:
(i) a description of any change necessary for those financial statements to reflect the
GAAP, accounting practices and reference periods upon which the Original
Financial Statements were prepared; and
- 89 -
(ii) sufficient information, in form and substance as may be reasonably required by
the Agent, to enable the Lenders to determine whether the requirements of Clause
19.1 (
Financial covenants
) have been complied with and make an accurate
comparison between the financial position indicated in those financial statements
and the Original Financial Statements.
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.
18.4 Year -end
The Company shall not change its financial year-end.
18.5 Information: miscellaneous
The Company shall supply to the Agent (in sufficient copies for all the Lenders, if the Agent so
requests):
(a) all documents dispatched by the Company 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 Finance Party (through the Agent) may
reasonably request;
(f) promptly, such information as the Agent may reasonably require about the Collateral
and compliance of the Obligors with the terms of any Collateral Documents;
(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 paragraph (a) of Clause 18.8 ("
Know your customer
" checks)
below;
- 90 -
(h) unless otherwise required to be delivered to the Lenders, promptly after the furnishing
thereof, copies of any statement or report furnished to any holder of debt securities of
any Obligor pursuant to the terms of any indenture or similar agreement and not
otherwise required to be furnished to the Agent pursuant to Clause 18.1 (
Financial
statements
) or any other clause of this Clause 18; and
(i) not later than 90 days after the end of each fiscal year of the Company, a copy of
summary projections by the Company of the operating budget and cash flow budget of
the Company 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.
18.6 Notification of Default and Review Event
(a) Each Obligor shall notify the Agent of any Default (and the steps, if any, being taken
to remedy it) or Review Event promptly upon becoming aware of its occurrence (unless
that Obligor is aware that a notification has already been provided by another Obligor).
(b) Promptly upon a request by the Agent, the Company shall supply to the Agent a
certificate signed by two of its directors or senior officers on its behalf certifying that
no Default or Review Event is continuing (or if a Default or Review Event is continuing,
specifying the Default or Review Event and the steps, if any, being taken to remedy it).
18.7 Borrowing Base Certificate
The Company shall deliver to the Agent, in form and substance reasonably satisfactory to the Agent
(acting on the instructions of the Majority Lenders), at any time when the Lenders reasonably believe
that the then existing Borrowing Base Certificate is materially inaccurate or when the Lenders
reasonably believe that there is a diminution in value of 10% or more in respect of the Borrowing
Base, in each case, as soon as reasonably available after such request, in each case with supporting
documentation as the Lenders may reasonably request, such other reports, statements and
reconciliations with respect to the Borrowing Base or Collateral of any or all Obligors as the Lenders
shall from time to time reasonably request.
18.8 "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 this Agreement;
(ii) any change in the status of an Obligor (or of a Holding Company of an Obligor)
after the date of this Agreement;
(iii) any change in the authorised signatories of an Obligor after the date of the Third
Amending 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,
- 91 -
obliges the Agent or any Lender (or, in the case of paragraph (iv) above, any prospective
new Lender) to comply with "know your customer" or similar identification procedures
in circumstances where the necessary information is not already available to it, each
Obligor shall promptly upon the request of the Agent or any Lender supply, or procure
the supply of, such documentation and other evidence as is reasonably requested by the
Agent (for itself or on behalf of any Lender) or any Lender (for itself or, in the case of
the event described in paragraph (iv) above, on behalf of any prospective new Lender)
in order for the Agent, such Lender or, in the case of the event described in paragraph
(iv) above, any prospective new Lender to carry out and be satisfied it has complied
with all necessary "know your customer" or other similar checks under all applicable
laws and regulations pursuant to the transactions contemplated in the Finance
Documents.
(b) The Company shall by not less than 10 Business Days' prior written notice to the Agent,
notify the Agent (which shall promptly notify the Lenders) of its intention to request
that one of its Subsidiaries becomes an Additional Obligor pursuant to Clause 23
(
Changes to the Obligors
).
(c) Following the giving of any notice pursuant to paragraph (b) above, if the accession of
such Additional Obligor obliges the Agent or any Lender to comply with "know your
customer" or similar identification procedures in circumstances where the necessary
information is not already available to it, the Company shall promptly upon the request
of the Agent or any Lender supply, or procure the supply of, such documentation and
other evidence as is reasonably requested by the Agent (for itself or on behalf of any
Lender) or any Lender (for itself or on behalf of any prospective new Lender) in order
for the Agent or such Lender or any prospective new Lender to carry out and be satisfied
it has complied with all necessary "know your customer" or other similar checks under
all applicable laws and regulations pursuant to the accession of such Subsidiary to this
Agreement as an Additional Obligor.
(d) The Company shall promptly supply, or procure the supply of, such documentation and
other evidence reasonably requested by the Agent (for itself or on behalf of any Finance
Party) from time to time in relation to an Obligor or an Additional Obligor to enable
the Finance Party to comply with "know your customer" or similar identification
procedures in circumstances where the necessary information is not already available
to the Finance Party.
18.9 Inspection
(a) Each Obligor shall, and the Company shall ensure that each Obligor will, permit the
Agent, the Collateral Agent, the Australian Security Trustee and/or delegates and/or
accountants or other professional advisers and contractors of the Agent, Collateral
Agent or Australian Security Trustee access at all reasonable times and on reasonable
notice, and subject to compliance with all occupational health and safety requirements
of the Obligors, at the risk of the Obligor or Company to:
(i) the premises, assets, books, accounts and records of each Obligor; and
- 92 -
(ii) following an Event of Default, to meet and discuss matters with senior
management.
(b) The costs of any inspection pursuant to paragraph (a) above will be borne by:
(i) unless an Event of Default is continuing:
(A) the Obligors in relation to the first inspection every 6 Months; and
(B) the Lenders in relation to each inspection thereafter in the 6 Months
following an inspection referred to in paragraph (A) above; and
(ii) if an Event of Default is continuing, the Obligors.
18.10 Delivery of documents
Documents required to be delivered pursuant to Clause 18.1 (
Financial statements
) and Clause
18.5(a) (
Information: miscellaneous
) (to the 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:
(a) on which the Borrowers post such documents, or provide a link thereto on the
Borrowers’ website on the internet at the website address listed in Schedule 1 (or as the
Borrowers may otherwise notify the Agent);
(b) on which such documents are posted on the Borrowers’ behalf on an internet or intranet
website, if any, to which each Lender and the Agent have access (whether a commercial,
third-party website or whether sponsored by the Agent); or
(c) 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 Agent of the posting of any such documents.
19. FINANCIAL COVENANTS
19.1 Financial covenants
The Company and each Borrower shall not, during the term of this Agreement:
(a) permit the Borrowing Base Ratio on each Test Date to be less than 80%;
(b) permit the Gearing Ratio on each Test Date on or after 31 December 2027 to be more
than 50%; and
(c) permit the Interest Coverage Ratio for each Test Period ending on or after 31 December
2027 to be less than 2.00 times.
19.2 Accounting policy
(a) If in the reasonable opinion of the Company or the Majority Lenders any changes to
GAAP materially alter the effect of the undertakings in this Clause 19 or the related
definitions, the Company and the Agent (acting on the instructions of the Majority
- 93 -
Lenders) will negotiate in good faith to amend the relevant undertakings and definitions
so that they have an effect comparable to that at the date of this Agreement.
(b) If the amendments are not agreed within 30 days (or any longer period agreed between
the Company and the Agent (acting on the instructions of the Majority Lenders)) then
the Company will provide with its Financial Statements any reconciliation statements
(audited, where applicable) necessary to enable calculations based on GAAP as they
were before those changes, and the changes will be ignored for the purposes of this
Clause 19.
19.3 Equity cure
(a) Notwithstanding anything in this Agreement, for the avoidance of doubt this clause
does not apply to a breach of the Borrowing Base Undertaking and any breach of a
Borrowing Base Undertaking will be subject to the provisions of Clause 7.2 (
Review
Event
).
(b) The Company and the Borrowers may prevent and/or cure any breach of a Financial
Covenant if each of the following conditions are satisfied (“
Cure Right
”):
(i) within 20 Business Days of the date of delivery of the relevant Compliance
Certificate which demonstrates a breach of a Financial Covenant, the Company
and the Borrowers have prepaid any part or all of the outstanding Loans in an
aggregate net amount equal to, but not greater than, the amount necessary to cure
the relevant Financial Covenants (the “
Cure Amount
”); and
(ii) upon the prepayment of the relevant principal amount of the Loans, the relevant
Financial Covenants shall then be recalculated and if, after giving effect to such
recalculations, the Company and the Borrowers are then in compliance with the
Financial Covenants.
(c) If the conditions in paragraph (b) above are satisfied, the Company and the Borrowers
shall be deemed to have been in compliance with the relevant Financial Covenant as of
the relevant date of determination with the same effect as though there had been no
failure to comply 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 Finance Documents.
(d) No Cure Right may be exercised:
(i) more than three times during the term of this Agreement; and
(ii) more than two times in any four consecutive financial quarters.
20. GENERAL UNDERTAKINGS
So long as any amount is outstanding under the Finance Documents or any Commitment is in force,
each Obligor shall comply at all times with the following undertakings in this Clause 20:
- 94 -
20.1 Authorisations
Each Obligor shall promptly:
(a) obtain, comply with and do all that is necessary to maintain in full force and effect; and
(b) after written request by the Agent, supply certified copies to the Agent of,
any Authorisation required to perform its obligations under the Finance Documents and to ensure the
legality, validity, enforceability or admissibility in evidence in its jurisdiction of incorporation or
organization of any Finance Document to the extent that failure by it to obtain or maintain such
Authorisation is reasonably likely to have a Material Adverse Effect.
20.2 Compliance with laws
Each Obligor shall (and the Company shall ensure that each member of the Group will) comply in all
respects with all laws to which it may be subject, except in such instances in which:
(a) such requirement of law or order, writ, injunction or decree is being contested in good
faith by such Obligor by appropriate proceedings diligently conducted; or
(b) the failure so to comply has not had, and could not be reasonably be expected to have,
a Material Adverse Effect.
20.3 Payment of obligations
Each Obligor shall 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 Security upon any material
portion of the Collateral,
unless, in each of paragraph (a) or (b) above, such liabilities, assessments, 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
the Obligors.
20.4 Composition of Obligors
(a) The Company must ensure that, at all times, the Obligors shall be comprised of all
Subsidiaries of the Company (other than Excluded Subsidiaries and Dormant
Subsidiaries).
(b) For so long as the Senior Secured Notes remain outstanding, the Guarantors under this
Agreement will be the same as those entities which are “guarantors” and security
providers (howsoever described) under the Senior Secured Notes Security Documents;
provided that:
- 95 -
(i) this clause of itself does not require a Secured Party to release an existing Obligor;
and
(ii) upon all of the Senior Secured Notes being redeemed, the test provided for in
paragraph (a) above shall be the sole test to determine the composition of the
Guarantors.
(c) Notwithstanding anything to the contrary in this Clause or in any other Finance
Document:
(i) no Obligor will be required to perfect security interests:
(A) in motor vehicles or other assets covered by a certificate of title, other than
by the filing of UCC financing statements and PPSA financing statements,
(B) in letter of credit rights or other supporting obligations with a value less
than US$250,000 (or its equivalent) individually or in the aggregate, and
(C) in assets requiring perfection solely through control agreements, other than:
(1) control of Collateral to the extent required under this Agreement or
under any other Finance Document; 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.
(d) The Company 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 Finance Documents as at the
Amendment and Restatement Effective Date; and
(ii) any Subsidiary (other than Excluded Subsidiaries and Dormant Subsidiaries) after
the date of this Agreement will become party to this Agreement (and the
Australian Security Trust Deed and relevant Finance Documents) as a Borrower,
a Guarantor or a Borrower and a Guarantor in accordance with Clause 23
(
Changes to the Obligors
) within five Business Days of the relevant entity
becoming a Subsidiary.
20.5 New Material Fixed Assets
Upon the acquisition of any Material Fixed Asset by any Obligor (including, without limitation, any
acquisition pursuant to a Delaware LLC Division), the Borrowers shall, at the Borrowers' expense:
(a) within 30 days (or such longer period as the Agent may agree) after such acquisition,
furnish to the Agent a description of the Material Fixed Assets (including if applicable
any serial numbers) so acquired in detail reasonably satisfactory to the Agent;
- 96 -
(b) cause the applicable Obligor to duly execute and deliver to the Agent within 45 days
after such acquisition (or such longer period as the Agent may agree), deeds of trust,
trust deeds, security documentation, deeds to secure debt and/or mortgages, in each
case, in form and substance reasonably satisfactory to the Agent, securing payment of
all the Obligations;
(c) upon the request of the Agent in its reasonable discretion, deliver to the Agent any legal
opinions addressed to the Agent and the other Secured Parties, reasonably acceptable
to the Agent as to such matters as the Agent may reasonably request; and
(d) within 30 days (or such longer period as the Agent may agree) after such request, cause
the applicable Obligor to provide the 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:
(i) in the possession of such Obligor 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 Obligor; and
(ii) prepared and utilised by such Obligor in its ordinary course of business.
20.6 Preservation of assets
(a) Each Obligor shall 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.
(b) The Obligors 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.
20.7 Pari passu ranking
Each Obligor shall ensure that, at all times, any unsecured and unsubordinated claims of a Finance
Party and the Collateral Agent (including in its capacity as Australian Security Trustee) against it
under the Finance Documents rank at least pari passu with the claims of all its other unsecured and
unsubordinated creditors except those creditors whose claims are mandatorily preferred by laws of
general application to companies.
20.8 Negative pledge
(a) Except as permitted under paragraph (b) below, no Obligor shall create or permit to
subsist any Security over any of its assets.
(b) Paragraph (a) above does not apply to any Security or arrangement which is a Permitted
Lien.
- 97 -
20.9 Dispositions
No Obligor shall (and the Company shall ensure that no other member of the Group will), make any
Disposition or enter into any agreement to make Disposition other than any Permitted Disposition.
20.10 Merger
No Obligor shall (and the Company shall ensure that no other member of the Group will) enter into
any amalgamation, demerger, merger or corporate reconstruction other than any Permitted
Disposition.
20.11 Change of business
The Company and each Borrower shall not, and shall not permit any of their respective Subsidiaries
to, engage in any business other than a Similar Business.
20.12 Insurance
(a) Each Obligor shall 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 the Obligors
operate. Without limiting the generality of the foregoing, each Obligor will maintain or
cause to be maintained:
(i) liability insurance;
(ii) business interruption insurance; and
(iii) replacement value casualty insurance or, if replacement value casualty insurance
is not obtainable on reasonable commercial terms, market value casualty
insurance, on the Collateral and Inventory consisting of Coal 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.
(b) Each such policy of insurance shall:
(i) name the Collateral Agent or Australian Security Trustee (as applicable), on
behalf of the Secured Parties, as an additional insured thereunder as its interests
may appear; and
(ii) in the case of each casualty insurance policy, contain a lenders' loss payable
clause or endorsement, reasonably satisfactory in form and substance to the Agent,
that names the Collateral Agent or Australian Security Trustee (as applicable), on
behalf of the Secured Parties, as the loss payee thereunder.
- 98 -
20.13 Arm's length basis
(a) Except as permitted by paragraph (b) below, no Obligor shall (and the Company shall
ensure no member of the Group will) enter into any transaction with any person except
on arm's length terms.
(b) The following transactions shall not be a breach of this Clause 20.13:
(i) intra-Group loans permitted under Clause 20.14 (
Loans or credit
);
(ii) fees, costs and expenses payable under the Finance Documents in the amounts set
out in the Finance Documents delivered to the Agent under Clause 4.1 (
Initial
conditions precedent
) or agreed by the Agent; and
(iii) any transaction permitted under Clause 20.30 (
Affiliate transactions
)
20.14 Loans or credit
No Obligor shall (and the Company shall ensure that no member of the Group will) be a creditor in
respect of any Financial Indebtedness other than a Permitted Loan.
20.15 Dividends
(a) Except as permitted under paragraph (b) below, the Company shall not (and will ensure
that no other member of the Group will) declare, make or pay a Distribution.
(b) Paragraph (a) above does not apply to a Permitted Distribution.
20.16 Financial Indebtedness
(a) Each Obligor may incur or allow to remain outstanding any Financial Indebtedness;
provided that:
(i) there is no Default, Event of Default or Review Event subsisting at the time such
Financial Indebtedness is incurred (and no such Default, Event of Default or
Review Event would result therefrom);
(ii) no Financial Covenant will be breached as a result of such Financial Indebtedness
assuming that, irrespective of the requirements of Clause 19.1 (
Financial
covenants
), the Test Date or the end of the Test Period for the Financial Covenant
(as applicable) is the date such Financial Indebtedness is incurred;
(iii) such Financial Indebtedness is not in connection with any factoring arrangement
other than a Permitted Factoring Arrangement;
(iv) for Financial Indebtedness incurred with respect to the Notes Obligations, the
aggregate principal amount of such Financial Indebtedness does not exceed that
existing as at the Amendment and Restatement Effective Date; and
(v) the aggregate principal amount (or if incurred with the original issue discount, the
aggregate accreted value) of:
(A) the Notes Obligations; and
- 99 -
(B) any other Indebtedness (other than the Obligations) which is secured by a
Security on any asset or property of any member of the Group that is senior
to or pari passu to the Transaction Security,
(in each case, plus fees and expenses, including any premium, accrued interest (other
than any unpaid interest or coupon on the 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 US$500,000,000 (or its equivalent).
(b) Notwithstanding any other provision of any Finance Document:
(i) the Lenders and the Company agree that CCPL is permitted to enter into the
Stanwell Arrangements and any other transactions contemplated by, and incur the
Stanwell Obligations under the Stanwell Arrangements as at the Amendment and
Restatement Effective Date (or as subsequently amended);
(ii) no agreement (other than this Agreement) shall be a “Facility Agreement” or
“Secured Hedge Agreement” and no other party shall be a “Beneficiary” (other
than the Agent, Australian Security Trustee and Lenders), in each case, for the
purposes of the Australian Security Trust Deed without the prior written consent
from the Agent (acting on the instructions of all Lenders); and
(iii) no Financial Indebtedness shall be "ABL Debt" (other than Financial
Indebtedness incurred under this Agreement), and no entity shall be an "ABL
Claimholder" (other than a Secured Party), in each case, for the purposes of the
ABL Intercreditor Agreement without the prior written consent from the Agent
(acting on the instructions of all Lenders).
20.17 Permitted factoring arrangements
No Obligor may draw down or utilize in any way any factoring arrangement without prior written
consent from the Agent (acting on the instructions of all Lenders), other than a Permitted Factoring
Arrangement.
20.18 Preservation of existence
(a) Each Obligor shall 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 Clause 20.11 (
Change of business
) or pursuant to a Permitted
Disposition.
(b) Each Obligor shall 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 Clause 20.11
(
Change of business
) or pursuant to a Permitted Disposition.
- 100 -
(c) Each Obligor shall 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.
20.19 Books and records
(a) Each Obligor shall 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 such Obligor, as the case may be.
(b) Each Obligor shall maintain such books of record and account in material conformity
with all applicable requirements of any Governmental Authority having regulatory
jurisdiction over such Obligor, as the case may be.
(c) Each Obligor shall keep accurate and complete records of its Inventory, including costs
and daily withdrawals and additions.
20.20 Use of proceeds
(a) Each Borrower may only use the proceeds of the Loans in accordance with Clause 3.1
(
Purpose
).
(b) None of the Borrowers shall, directly or indirectly:
(i) use the proceeds of any Loan; or
(ii) lend, contribute, or otherwise make available such proceeds to any Subsidiary,
joint venture partner, or other Person,
(A) 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
(B) in any other manner that would result in the violation of Sanctions, Anti-
Corruption Laws, Anti-Money Laundering Laws and Anti-Terrorism Laws;
or
(C) to purchase or carry margin stock (within the meaning of Regulation U of
the Federal Reserve Board) or to refund Financial Indebtedness originally
incurred for such purpose, in each case, applicable to any party to this
Agreement, whether as underwriter, advisor, investor or otherwise.
20.21 Compliance with Environmental Laws
(a) Each Obligor shall 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
such Obligor by appropriate proceedings diligently conducted, or
- 101 -
(ii) the failure to so comply, obtain or renew, in addition to the risk thereof, has been
disclosed to, and accepted by, the Agent in writing or is unlikely to result in a
material liability.
(b) Each Obligor shall 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 such
Obligor by appropriate proceedings diligently conducted, or
(ii) the failure to so undertake or perform has been, in addition to the risk thereof,
disclosed to, and accepted by, the Agent in writing or is unlikely to result in a
material liability.
20.22 Further assurances
Each Obligor shall promptly upon request by the Agent, or any Lender through the Agent:
(a) correct any material defect or error that may be discovered in any Finance 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 Agent, the Collateral Agent (including, in its capacity as
Australian Security Trustee) or any Lender through the Agent, may reasonably require
from time to time in order to:
(i) carry out more effectively the purposes of the Finance Documents to the fullest
extent permitted by applicable law, and subject each of the Obligors’ properties,
assets, rights or interests (other than, in respect of any US Obligor, any Excluded
Assets and, in respect of any Obligor that is a Foreign Subsidiary, Foreign
Excluded Assets) to the Transaction Security now or hereafter intended to be
covered by any of the Collateral Documents;
(ii) perfect and maintain the validity, effectiveness and priority of any of the
Collateral Documents and any of the Transaction Security intended to be created
thereunder; and
(c) give all assistance reasonably required by the Agent in order for the Agent to investigate
or verify whether any of the Collateral Documents or any of the Transaction Security
are perfected, valid, effective and have the contemplated priority.
- 102 -
20.23 Certain long term liabilities and environmental reserves
To the extent required by GAAP, each Obligor shall maintain adequate reserves or other 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;
(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 liabilities relating to Environmental Laws.
20.24 Mining Financial Assurances
Each Obligor shall maintain all material Mining Financial Assurances to the extent required pursuant
to any Environmental Law.
20.25 Trustee
No Australian Obligor shall become a trustee of any trust or settlement without the prior written
consent of the Agent (acting reasonably) other than any trust which arises in the ordinary course of its
ordinary trading activities.
20.26 Tax consolidation
Each Australian Obligor will:
(a) 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;
(b) 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;
(c) not amend or vary the Australian Tax Agreement or the Australian TFA without the
Agent’s consent where the amendment or variation would materially adversely affect
an Australian Obligor’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;
(d) not cease to be a party to, or replace or terminate the Australian Tax Agreement or the
Australian TFA without the Agent’s consent (acting on the instruction of the Lenders);
(e) provide (if not already provided) 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;
- 103 -
(f) procure that any member that subsequently joins the Australian Tax Consolidated
Group accede to the Australian Tax Agreement and the Australian TFA; and
(g) 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.
20.27 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.
20.28 Port and rent business
The Obligors must ensure that, 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.
20.29 Payroll Taxes
The Obligors must ensure that, at all times, all amounts payable by a member of the Group in
connection with U.S. payroll Taxes are provisioned for in segregated bank accounts.
20.30 Affiliate transactions
The Obligors shall not (and 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 Permitted Distribution; or
(b) any shareholder of any Subsidiary of the Company (other than a Dormant Subsidiary),
other than any shareholder that is also a Obligor,
unless (i) expressly permitted under the Finance Documents and/or (ii) the transaction is
permitted under Clause 20.15 (
Dividends
).
20.31 Administration of Accounts
(a) If an Account of any Obligor includes a charge for any Taxes, the Agent is authorised,
in its discretion, to pay the amount thereof to the proper taxing authority for the account
of such Obligor if such Obligor does not do so and to charge such Obligor therefor;
provided, however, that neither the Agent nor the Lenders shall be liable for any Taxes
that may be due from the Obligors or with respect to any Collateral.
(b) Whether or not any Default or Event of Default exists, the Agent shall have the right at
any time, in the name of the Agent, any designee of the Agent or any Obligor, to verify
the validity, amount or any other matter relating to any Accounts of any Obligor by
- 104 -
mail, telephone or otherwise. The Obligors shall cooperate fully with the Agent in an
effort to facilitate and promptly conclude any such verification process.
20.32 Cash Management System
(a) On and from the Amendment and Restatement Effective Date, and at all times thereafter,
each of the Obligors 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 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 Agent, if a Default
or Event of Default has occurred, upon written notice thereof from the Agent to the
Company, to instruct the applicable depository to transfer (whether by electronic funds
transfer, wire transfer or otherwise as the 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 Agent. No Obligor 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 Obligor 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 Obligor shall instruct each Person that is obligated to make
any payment to it, to make such payment or to continue to make payment, to the
appropriate Control Account as required by this Clause 20.32.
(c) Each Obligor 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 Clause 20.32, a Obligor receives or otherwise
has dominion and control of any such proceeds or collections, such proceeds and
collections shall be held in trust by such Obligor for the Agent, shall not be commingled
with any of such Obligor's other funds or deposited in any account of such Obligor and
shall promptly be deposited into the appropriate Control Account or dealt with in such
other fashion as such Obligor may be instructed by the Agent.
(d) Without limiting the foregoing, funds on deposit in any Deposit Account or Securities
Account under the sole dominion and control of the Agent may be invested (but the
Agent shall be under no obligation to make any such investment) in Cash Equivalents
at the direction of the Agent and, except if a Default or Event of Default has occurred
and is continuing, the 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 Agent shall not have any responsibility for, or bear any risk
of loss of, any such investment or income thereon.
- 105 -
(e) Subject to paragraph (a) above, any amounts received in the Collateral Account and
each other Control Account shall be applied,
(i)
first
(ii)
then
provided that, if an Event of Default has occurred and is continuing, all amounts in
Control Accounts shall be applied pursuant to Clause 28.5.
20.33 Change of Control
If Stanwell's consent to any Change of Control is required to be obtained under any Stanwell
Agreement, the Obligors must ensure that the consent of the Agent under this Agreement to such
Change of Control is also obtained, provided that if Stanwell has provided its consent to such
Change of Control pursuant to any Stanwell Agreement, the Agent will be deemed to have
provided its consent under this Agreement.
21. EVENTS OF DEFAULT
Each of the events or circumstances set out in this Clause 21 is an Event of Default (save for Clause
21.13 (
Acceleration
)).
21.1 Non-payment
An Obligor does not pay on the due date any amount payable pursuant to a Finance Document at the
place and in the currency in which it is expressed to be payable unless its failure to pay is caused by:
(a) administrative or technical error; or
(b) a Disruption Event,
and payment is made within three Business Days of its due date.
21.2 Financial covenants
(a) Subject to Clause 19.3 (
Equity cure
), any Financial Covenant is not satisfied.
(b) Any Obligor fails to comply with any of its obligations under Clause 19.3 (
Equity Cure
).
21.3 Review Event
A Review Event occurs and an Obligor fails to comply with any of its obligations under Clause 7.2
(
Review Event
).
21.4 Other obligations
(a) An Obligor does not comply with any provision of the Finance Documents (other than
those referred to in Clause 21.1 (
Non-payment
), Clause 21.2 (
Financial Covenants
) and
Clause 21.3 (
Review Event
)) or with any condition of any waiver or consent by a
Finance Party under or in connection with any Finance Document which the Obligors
have accepted as a condition.
(b) No Event of Default under paragraph (a) above will occur if the failure to comply is
capable of remedy and is remedied within 10 Business Days of the earlier of (A) the
- 106 -
Agent giving notice to the Company and (B) the Company becoming aware of the
failure to comply.
21.5 Misrepresentation
(a) Any representation or statement made or deemed to be made by an Obligor in the
Finance Documents or any other document delivered by or on behalf of any Obligor
under or in connection with any Finance Document is or proves to have been incorrect
or misleading in any material respect when made or deemed to be made.
(b) No Event of Default under paragraph (a) will occur if the facts and circumstances which
caused the representation or statement to be incorrect or misleading are capable of
remedy and are remedied within 10 Business Days of the earlier of (A) the Agent giving
notice to the Company and (B) the Company becoming aware of the incorrect or
misleading representation or statement.
21.6 Cross default
(a) An Obligor fails to make any payment when due (whether by scheduled maturity,
required prepayment, acceleration, demand, or otherwise) in respect of any Financial
Indebtedness or guarantee (other than Financial Indebtedness hereunder, Financial
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 Financial Indebtedness or guarantee was created.
(b) An Obligor fails to observe or perform any other agreement or condition relating to any
such Financial 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 Financial
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 Financial Indebtedness to become due prior to its
stated maturity, or such guarantee to become due or payable.
21.7 Insolvency Proceedings
(a) An Obligor:
(i) institutes or consents to the institution of any proceeding under any Debtor Relief
Law or any Insolvency Proceeding;
(ii) makes an assignment for the benefit of creditors; or
(iii) 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.
(b) Any receiver, trustee, custodian, conservator, liquidator, rehabilitator, controller or
similar officer is appointed over an Obligor, other than any such appointment that is
- 107 -
frivolous or vexatious and has been discharged or stayed within 10 Business Days of
commencement.
(c) Any proceeding under any Debtor Relief Law or any Insolvency Proceeding relating to
an Obligor or to all or any substantial part of its property is instituted, other than any
such proceeding that is frivolous or vexatious and has been discharged or stayed within
20 Business Days of commencement, or an order for relief has been entered in such
proceeding within 10 Business Days of commencement.
21.8 Insolvency
(a) An Obligor becomes unable or admits in writing its inability to pay its debts as they
become due.
(b) 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 an Obligor, 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.
21.9 Judgment
There is entered against an Obligor 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).
21.10 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:
(a) 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
(b) any Obligor 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.
21.11 Invalidity of Finance Documents
(a) Any Finance 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.
(b) An Obligor or any other Person contests in any manner the validity or enforceability of
any Finance Document.
(c) An Obligor denies that it has any or further liability or obligation under any Finance
Document, or purports to revoke, terminate or rescind any Finance Document.
- 108 -
21.12 Collateral Documents
Any Collateral Document shall for any reason (other than pursuant to the terms hereof or thereof,
including as a result of a transaction permitted by Clause 20.10 (
Merger
)) cease to create a valid and
perfected Security, with the priority required hereby or thereby (subject to Permitted Liens), on the
Collateral purported to be covered thereby.
21.13 Acceleration
On and at any time after the occurrence of an Event of Default which is continuing, the Agent may,
and shall if so directed by the Majority Lenders:
(a) by notice to the Company:
(i) cancel each Available Commitment of each Lender whereupon each such
Available Commitment shall immediately be cancelled and each Facility shall
immediately cease to be available for further utilisation;
(ii) declare that all or part of the Utilisations, together with accrued interest, and all
other amounts accrued or outstanding under the Finance Documents be
immediately due and payable, whereupon they shall become immediately due and
payable; and / or
(iii) declare that all or part of the Utilisations be payable on demand, whereupon they
shall immediately become payable on demand by the Agent on the instructions
of the Majority Lenders; and / or
(b) exercise or direct the Collateral Agent (including in its capacity as Australian Security
Trustee) to exercise any or all of its rights, remedies, powers or discretions under the
Finance Documents.
- 109 -
SECTION 9
CHANGES TO PARTIES
22. CHANGES TO THE LENDERS
22.1 Assignments and novations by the Lenders
Subject to this Clause 22, a Lender (the "
Existing Lender
") may:
(a) assign any of its rights; or
(b) novate any of its rights and obligations,
under the Finance Documents to any entity without the consent of the Company or any other Obligor
(the "
New Lender
").
22.2 Conditions of assignment or novation
(a) Other than an assignment where the Lender remains lender of record, an assignment
will only be effective:
(i) if the procedure set out in Clause 22.6 (
Procedure for assignment
) is complied
with;
(ii) on receipt by the Agent (whether in the Assignment Agreement or otherwise) of
written confirmation from the New Lender (in form and substance satisfactory to
the Agent) that the New Lender will assume the same obligations to the other
Finance Parties and the other Secured Parties as it would have been under if it
was an Original Lender;
(iii) on performance by the Agent of all necessary "know your customer" or other
similar checks under all applicable laws and regulations in relation to such
assignment to a New Lender, the completion of which the Agent shall promptly
notify to the Existing Lender and the New Lender; and
(iv) on receipt by the Agent of confirmation from the Collateral Agent that the
Collateral Agent has performed all necessary "know your customer" or other
similar checks under all applicable laws and regulations in relation to such
assignment to a New Lender (the receipt of which the Agent shall promptly notify
to the Existing Lender and the New Lender) and the New Lender has become
bound by a relevant Recognition Certificate.
(b) A novation will only be effective:
(i) if the procedure set out in Clause 22.5 (
Procedure for novation
) is complied with;
(ii) on performance by the Agent of all necessary "know your customer" or other
similar checks under all applicable laws and regulations in relation to such
novation to a New Lender, the completion of which the Agent shall promptly
notify to the Existing Lender and the New Lender; and
- 110 -
(iii) on receipt by the Agent of confirmation from the Collateral Agent that the
Collateral Agent has performed all necessary "know your customer" or other
similar checks under all applicable laws and regulations in relation to such
novation to a New Lender (the receipt of which the Agent shall promptly notify
to the Existing Lender and the New Lender) and the New Lender has become
bound by a relevant Recognition Certificate.
(c) If:
(i) a Lender assigns or novates any of its rights or obligations under the Finance
Documents or changes its Facility Office; and
(ii) as a result of circumstances existing at the date the assignment, novation or
change occurs, an Obligor would be obliged to make a payment to the New
Lender or Lender acting through its new Facility Office under Clause 12 (
Tax
Gross-Up and Indemnities
),
then the New Lender or Lender acting through its new Facility Office is only entitled to receive
payment under those Clauses to the same extent as the Existing Lender or Lender acting
through its previous Facility Office would have been if the assignment, novation or
change had not occurred. Each New Lender, by executing the relevant Transfer
Certificate or Assignment Agreement, confirms, for the avoidance of doubt, that the
Agent has authority to execute on its behalf any amendment or waiver that has been
approved by or on behalf of the requisite Lender or Lenders in accordance with this
Agreement on or prior to the date on which the novation or assignment becomes
effective in accordance with this Agreement and that it is bound by that decision to the
same extent as the Existing Lender would have been had it remained a Lender.
(d) A Lender may not assign or novate any of its rights or obligations under the Finance
Documents or change its Facility Office, if the New Lender or the Lender acting
through its new Facility Office would be entitled to exercise any rights under Clause
7.1 (
Illegality
) as a result of circumstances existing as at the date the assignment,
novation or change is proposed to occur.
22.3 Assignment or novation fee
The New Lender shall, on the date upon which an assignment or novation takes effect, pay to the
Agent (for its own account) a fee of US$3,500. However the Agent may, in its sole discretion, elect to
waive such fee in the case of any assignment or novation.
22.4 Limitation of responsibility of Existing Lenders
(a) Unless expressly agreed to the contrary, an Existing Lender makes no representation or
warranty and assumes no responsibility to a New Lender for:
(i) the legality, validity, effectiveness, adequacy or enforceability of the Finance
Documents or any other documents;
(ii) the financial condition of any Obligor or any other person;
- 111 -
(iii) the performance and observance by any Obligor or any other person of its
obligations under the Finance Documents or any other documents; or
(iv) the accuracy of any statements (whether written or oral) made in or in connection
with any Finance Document or any other document,
and any representations or warranties implied by law are excluded.
(b) Each New Lender confirms to the Existing Lender, the other Finance Parties and the
Secured Parties that it:
(i) has made (and shall continue to make) its own independent investigation and
assessment of the financial condition and affairs of each Obligor and its related
entities and any other person in connection with its participation in this
Agreement and has not relied exclusively on any information provided to it by
the Existing Lender in connection with any Finance Document; and
(ii) will continue to make its own independent appraisal of the creditworthiness of
each Obligor and its related entities and any other person whilst any amount is or
may be outstanding under the Finance Documents or any Commitment is in force.
(c) Nothing in any Finance Document obliges an Existing Lender to:
(i) accept a novation or re-assignment from a New Lender of any of the rights and
obligations assigned or novated under this Clause 22; or
(ii) support any losses directly or indirectly incurred by the New Lender by reason of
the non-performance by any Obligor or any other person of its obligations under
the Finance Documents or otherwise.
22.5 Procedure for novation
(a) Subject to the conditions set out in Clause 22.2 (
Conditions of assignment or novation
)
a novation is effected in accordance with paragraph (e) below when the Agent executes
an otherwise duly completed Transfer Certificate delivered to it by the Existing Lender
and the New Lender. The Agent shall, subject to paragraphs (b) and (c) below, as soon
as reasonably practicable after receipt by it of a duly completed Transfer Certificate
appearing on its face to comply with the terms of this Agreement and delivered in
accordance with the terms of this Agreement, execute that Transfer Certificate.
(b) The Agent shall only be obliged to execute a Transfer Certificate delivered to it by the
Existing Lender and the New Lender once it is satisfied it has complied with all
necessary "know your customer" or other similar checks under all applicable laws and
regulations in relation to the transfer to such New Lender.
(c) The Agent may refrain from executing a Transfer Certificate pending satisfaction of
Clause 22.2(a)(iii) and, acting reasonably, may delay executing a Transfer Certificate
pending a payment, distribution or Utilisation under or in respect of the Finance
Documents.
- 112 -
(d) Each Party other than the Existing Lender irrevocably authorises the Agent to execute
any Transfer Certificate and a Recognition Certificate on its behalf.
(e) Subject to Clause 22.9 (
Pro rata interest settlement
), on the Transfer Date:
(i) to the extent that in the Transfer Certificate the Existing Lender seeks to novate
its rights and obligations under the Finance Documents, each of the Obligors and
the Existing Lender shall be released from further obligations towards one
another under the Finance Documents and their respective rights against one
another under the Finance Documents shall be cancelled (being the "
Discharged
Rights and Obligations
");
(ii) each of the Obligors and the New Lender shall assume obligations towards one
another and/or acquire rights against one another which differ from the
Discharged Rights and Obligations only insofar as that Obligor and the New
Lender have assumed and/or acquired the same in place of that Obligor and the
Existing Lender;
(iii) the Agent, the New Lender and other Lenders shall acquire the same rights and
assume the same obligations between themselves as they would have acquired
and assumed had the New Lender been an Original Lender with the rights and/or
obligations acquired or assumed by it as a result of the novation and to that extent
the Agent and the Existing Lender shall each be released from further obligations
to each other under the Finance Documents;
(iv) the New Lender shall become a Party as a "
Lender
" and entitled to the benefits
of any other document entered into by the Agent as agent for the Lenders and will
be bound by obligations equivalent to the obligations from which the Existing
Lender is released under subparagraphs (i), (ii) and (iii) above; and
(v) for the purposes of this Agreement, Commitments, participations in Loans and
rights and obligations will be taken to have been transferred under a Transfer
Certificate even though it operates as a novation and Commitments, participations
in Loans and rights and obligations are replaced rather than transferred.
22.6 Procedure for assignment
(a) Subject to the conditions set out in Clause 22.2 (
Conditions of assignment or novation
)
an assignment may be effected in accordance with paragraph (c) below when the Agent
executes an otherwise duly completed Assignment Agreement delivered to it by the
Existing Lender and the New Lender. The Agent shall, subject to paragraph (b) below,
as soon as reasonably practicable after receipt by it of a duly completed Assignment
Agreement appearing on its face to comply with the terms of this Agreement and
delivered in accordance with the terms of this Agreement, execute that Assignment
Agreement.
(b) The Agent shall only be obliged to execute an Assignment Agreement delivered to it
by the Existing Lender and the New Lender once it is satisfied it has complied with all
- 113 -
necessary "know your customer" or other similar checks under all applicable laws and
regulations in relation to the assignment to such New Lender.
(c) Subject to Clause 22.9 (
Pro rata interest settlement
), on the Transfer Date:
(i) the Existing Lender will assign absolutely to the New Lender the rights under the
Finance Documents expressed to be the subject of the assignment in the
Assignment Agreement;
(ii) the Existing Lender will be released by each Obligor and the other Finance Parties
from the obligations owed by it and expressed to be the subject of the release in
the Assignment Agreement (the "
Relevant Obligations
"); and
(iii) the New Lender shall become a Party as a "
Lender
" and entitled to the benefits
of any other document entered into by the Agent as agent for the Lenders and will
be bound by obligations equivalent to the Relevant Obligations.
(d) Lenders may utilise procedures other than those set out in this Clause 22.6 to assign
(including by equitable assignment) their rights under the Finance Documents (but not,
without the consent of the relevant Obligor or otherwise in accordance with Clause 22.5
(
Procedure for novation
), to obtain a release by that Obligor from the obligations owed
to that Obligor by the Lenders nor the assumption of equivalent obligations by a New
Lender); provided that they comply with the conditions set out in Clause 22.2
(
Conditions of assignment or novation
).
(e) Each Party who is party to an Assignment Agreement authorises the Agent to execute
a Recognition Certificate on its behalf.
22.7 Copy of Transfer Certificate or Assignment Agreement to Company
The Agent shall, as soon as reasonably practicable after it has executed a Transfer Certificate or an
Assignment Agreement, send to the Company a copy of that Transfer Certificate or Assignment
Agreement.
22.8 Security over Lenders' rights
In addition to the other rights provided to Lenders under this Clause 22, each Lender may without
consulting with or obtaining consent from any Obligor, at any time charge, assign or otherwise create
Security in or over (whether by way of collateral or otherwise) all or any of its rights under any
Finance Document to secure obligations of that Lender including:
(a) any charge, assignment or other Security to secure obligations to a federal reserve or
central bank; and
(b) any charge, assignment or other Security granted to any holders (or trustee or
representatives of holders) of obligations owed, or securities issued, by that Lender as
security for those obligations or securities,
- 114 -
except that no such charge, assignment or Security shall:
(i) release a Lender from any of its obligations under the Finance Documents or
substitute the beneficiary of the relevant charge, assignment or Security for the
Lender as a party to any of the Finance Documents; or
(ii) require any payments to be made by an Obligor other than or in excess of, or grant
to any person any more extensive rights than, those required to be made or granted
to the relevant Lender under the Finance Documents.
22.9 Pro rata interest settlement
(a) If the Agent has notified the Lenders that it is able to distribute interest payments on a
"pro rata basis" to Existing Lenders and New Lenders then (in respect of any novation
pursuant to Clause 22.5 (
Procedure for novation
) or any assignment pursuant to Clause
22.6 (
Procedure for assignment
) the Transfer Date of which, in each case, is after the
date of such notification and is not on the last day of an Interest Period):
(i) any interest or fees in respect of the relevant participation which are expressed to
accrue by reference to the lapse of time shall continue to accrue in favour of the
Existing Lender up to but excluding the Transfer Date ("
Accrued Amounts
") and
shall become due and payable to the Existing Lender (without further interest
accruing on them) on the last day of the current Interest Period (or, if the Interest
Period is longer than six Months, on the next of the dates which falls at six
Monthly intervals after the first day of that Interest Period); and
(ii) the rights assigned or novated by the Existing Lender will not include the right to
the Accrued Amounts, so that, for the avoidance of doubt:
(A) when the Accrued Amounts become payable, those Accrued Amounts will be
payable to the Existing Lender; and
(B) the amount payable to the New Lender on that date will be the amount which
would, but for the application of this Clause 22.9, have been payable to it on
that date, but after deduction of the Accrued Amounts.
(b) In this Clause 22.9 references to "Interest Period" shall be construed to include a
reference to any other period for accrual of fees.
(c) An Existing Lender which retains the right to the Accrued Amounts pursuant to this
Clause 22.9 but which does not have a Commitment shall be deemed not to be a Lender
for the purposes of ascertaining whether the agreement of any specified group of
Lenders has been obtained to approve any request for a consent, waiver, amendment or
other vote of Lenders under the Finance Documents.
23. CHANGES TO THE OBLIGORS
23.1 Assignments and novation by Obligors
No Obligor may assign any of its rights or novate any of its rights or obligations under the Finance
Documents.
- 115 -
23.2 Additional Borrowers
(a) Subject to compliance with the provisions of paragraphs (c) and (d) of Clause 18.8
(
"Know your customer" checks
), the Company may request that any of its wholly owned
Subsidiaries becomes an Additional Borrower. That Subsidiary shall become an
Additional Borrower if:
(i) all the Lenders approve the addition of that Subsidiary;
(ii) the Company delivers to the Agent a duly completed and executed Accession
Letter;
(iii) unless that Subsidiary is, at that time, an "
Obligor
" under the Australian Security
Trust Deed, it accedes to the Australian Security Trust Deed as an "
Additional
Obligor
" by signing and delivering to the Australian Security Trustee an
Accession Deed and any other documents or information required under the
Australian Security Trust Deed;
(iv) unless that Subsidiary is, at that time, a "Grantor" under the Security Agreement,
it accedes to the Security Agreement in accordance with Section 7.10 of the
Security Agreement and executes and delivers all required documents or
information and takes all required action thereunder;
(v) the Company confirms that no Default is continuing or would occur as a result of
that Subsidiary becoming an Additional Borrower; and
(vi) the Agent has received all of the documents and other evidence listed in Part II of
Schedule 2 (
Conditions Precedent
) in relation to that Additional Borrower, each
in form and substance satisfactory to the Agent acting on the instructions of all
Lenders.
(b) The Agent shall notify the Company and the Lenders promptly upon being satisfied
that it has received (in form and substance satisfactory to it acting on the instructions
of all Lenders) all the documents and other evidence listed in Part II of Schedule 2
(
Conditions Precedent
).
(c) The Agent shall not be liable for any damages, costs or losses to any person, any
diminution in value or any liability whatsoever as a result of giving any such
notification.
23.3 Resignation of a Borrower
(a) The Company may request that a Borrower (other than the Company) ceases to be a
Borrower by delivering to the Agent a Resignation Letter.
(b) The Agent shall accept a Resignation Letter and notify the Company and the Lenders
of its acceptance if:
(i) no Default is continuing or would result from the acceptance of the Resignation
Letter (and the Company has confirmed this is the case); and
- 116 -
(ii) the Borrower is under no actual or contingent obligations as a Borrower under
any Finance Documents,
whereupon that company shall cease to be a Borrower and shall have no further rights
or obligations under the Finance Documents as a Borrower (and without prejudice
to any obligations it may have as a Guarantor).
23.4 Additional Guarantors
(a) Subject to compliance with the provisions of paragraphs (c) and (d) of Clause 18.8
(
"Know your customer" checks
), the Company may request that any of its wholly owned
Subsidiaries become an Additional Guarantor. That Subsidiary shall become an
Additional Guarantor if:
(i) the Company delivers to the Agent a duly completed and executed Accession
Letter executed as a deed;
(ii) the Agent has received all of the documents and other evidence listed in Part II of
Schedule 2 (
Conditions Precedent
) in relation to that Additional Guarantor, each
in form and substance satisfactory to the Agent acting on the instructions of all
Lenders;
(iii) the relevant member of the Group accedes to the Australian Security Trust Deed
as an "
Additional Obligor
" by signing and delivering to the Australian Security
Trustee an Accession Deed and any other documents or information required
under the Australian Security Trust Deed; and
(iv) the relevant member of the Group accedes to the Security Agreement in
accordance with Section 7.10 of the Security Agreement and executes and
delivers all required documents or information and takes all required action
thereunder.
(b) The Agent shall notify the Company and the Lenders promptly upon being satisfied
that it has received (in form and substance satisfactory to it acting on the instructions
of all Lenders) all the documents and other evidence listed in Part II of Schedule 2
(
Conditions Precedent
).
(c) The Agent shall not be liable for any damages, costs or losses to any person, any
diminution in value or any liability whatsoever as a result of giving any such
notification.
23.5 Repetition of Representations
Delivery of an Accession Letter constitutes confirmation by the relevant Subsidiary that the Repeating
Representations are true and correct in relation to it as at the date of delivery as if made by reference
to the facts and circumstances then existing.
23.6 Resignation of a Guarantor
(a) The Company may request that a Guarantor (other than the Company) ceases to be a
Guarantor by delivering to the Agent a Resignation Letter.
- 117 -
(b) The Agent shall accept a Resignation Letter and notify the Company and the Lenders
of its acceptance if:
(i) no Default is continuing or would result from the acceptance of the Resignation
Letter (and the Company has confirmed this is the case);
(ii) all the Lenders have consented to the Company's request,
whereupon that company shall cease to be a Guarantor and shall have no further rights
or obligations under the Finance Documents as a Guarantor.
- 118 -
SECTION 10
THE FINANCE PARTIES
24. ROLE OF THE AGENT
24.1 Appointment of the Agent
(a) Each of the Lenders appoints the Agent to act as its agent under and in connection with
the Finance Documents. The Agent will be agent for the Lenders except as described
in paragraph (c) below.
(b) Each of the Lenders authorises the Agent to perform the duties, obligations and
responsibilities and to exercise the rights, powers, authorities and discretions
specifically given to the Agent under or in connection with the Finance Documents
together with any other incidental rights, powers, authorities and discretions.
(c) Where the Agent provides services in connection with the administration of the
Utilisations, that is when it calculates rates and amounts, keeps records, receives and
distributes payments and information received under Clauses 18.1 (
Financial
statements
) and 18.5 (
Information: miscellaneous
), and receives and deals with
Utilisation Requests, it does not provide those services as agent for the Lenders, but as
principal, but the remainder of this Clause 24 still applies.
24.2 Instructions
(a) The Agent shall:
(i) unless a contrary indication appears in a Finance Document, exercise or refrain
from exercising any right, power, authority or discretion vested in it as Agent in
accordance with any instructions given to it by:
(A) all Lenders if the relevant Finance Document stipulates the matter is an all
Lender decision; and
(B) in all other cases, the Majority Lenders if the relevant Finance Document
stipulates the matter is a Majority Lender decision; and
(ii) not be liable for any act (or omission) if it acts (or refrains from acting) in
accordance with paragraph (i) above.
(b) The Agent shall be entitled to request instructions, or clarification of any instruction,
from the Majority Lenders (or, if the relevant Finance Document stipulates the matter
is a decision for any other Lender or group of Lenders, from that Lender or group of
Lenders) as to whether, and in what manner, it should exercise or refrain from
exercising any right, power, authority or discretion. The Agent may refrain from acting
unless and until it receives any such instructions or clarification that it has requested.
(c) Save in the case of decisions stipulated to be a matter for any other Lender or group of
Lenders under the relevant Finance Document and unless a contrary indication appears
in a Finance Document, any instructions given to the Agent by the Majority Lenders
shall override any conflicting instructions given by any other Parties and will be binding
on all Finance Parties.
- 119 -
(d) The Agent may refrain from acting in accordance with any instructions of any Lender
or group of Lenders until it has received any indemnification and/or security that it may
in its discretion require (which may be greater in extent than that contained in the
Finance Documents and which may include payment in advance) for any cost, loss or
liability which it may incur in complying with those instructions. The Agent may
specify that the security be cash, in which case the Company must provide it on request,
failing which each Lender must on request pay its proportion of the cash according to
its Commitment. Any amount recovered by the Agent under any security will be taken
to be an amount paid by the party which provided that security.
(e) In the absence of instructions, the Agent may act (or refrain from acting) as it considers
to be in the best interest of the Lenders.
(f) The Agent is not authorised to act on behalf of a Lender (without first obtaining that
Lender's consent) in any legal or arbitration proceedings relating to any Finance
Document.
24.3 Duties of the Agent
(a) The Agent's duties under the Finance Documents are solely mechanical and
administrative in nature.
(b) Subject to paragraph (c) below, the Agent shall promptly forward to a Party the original
or a copy of any document which is delivered to the Agent for that Party by any other
Party.
(c) Without prejudice to Clause 22.7 (
Copy of Transfer Certificate or Assignment
Agreement to Company
), paragraph (b) above shall not apply to any Transfer Certificate
or to any Assignment Agreement.
(d) Except where a Finance Document specifically provides otherwise, the Agent is not
obliged to review or check the adequacy, accuracy or completeness of any document it
forwards to another Party.
(e) If the Agent receives notice from a Party referring to this Agreement, describing a
Default or a Review Event and stating that the circumstance described is a Default or a
Review Event, it shall promptly notify the other Finance Parties.
(f) If the Agent is aware of the non-payment of any principal, interest, commitment fee or
other fee payable to a Finance Party (other than the Agent) under this Agreement it
shall promptly notify the other Finance Parties.
(g) The Agent shall have only those duties, obligations and responsibilities expressly
specified in the Finance Documents to which it is expressed to be a party (and no others
shall be implied).
(h) If the Agent receives a request by a Lender, the Agent will provide a privacy notice (in
the form recommended by the Asia Pacific Loan Market Association (Australian
Branch) or as otherwise directed by a Finance Party) to a representative of the officers
of an Obligor whose personal information has been collected on behalf of the Finance
- 120 -
Parties, which details the manner in which personal information collected in connection
with this Agreement may be used and disclosed by the Finance Parties.
24.4 No fiduciary duties
(a) Nothing in any Finance Document constitutes the Agent as a trustee or fiduciary of any
other person.
(b) The Agent shall not be bound to account to any Lender for any sum or the profit element
of any sum received by it for its own account.
24.5 Business with the Group
The Agent may accept deposits from, lend money to and generally engage in any kind of banking or
other business with any member of the Group.
24.6 Rights and discretions
(a) The Agent may:
(i) rely on any representation, communication, notice or document believed by it to
be genuine, correct and appropriately authorised;
(ii) assume that:
(A) any instructions received by it from the Majority Lenders, any Lenders or
any group of Lenders are duly given in accordance with the terms of the
Finance Documents; and
(B) unless it has received notice of revocation, that those instructions have not
been revoked; and
(iii) rely on a written statement from any person:
(A) as to any matter of fact or circumstance which might reasonably be expected
to be within the knowledge of that person; or
(B) to the effect that such person approves of any particular dealing, transaction,
step, action or thing,
as sufficient evidence that that is the case and, in the case of paragraph (A) above,
may assume the truth and accuracy of that written statement.
(b) The Agent may assume (unless it has received notice to the contrary in its capacity as
agent for the Lenders) that:
(i) no Default or Review Event has occurred (unless it has actual knowledge of a
Default arising under Clause 21.1 (
Non-payment
));
(ii) any right, power, authority or discretion vested in any Party or any group of
Lenders has not been exercised; and
(iii) any notice or request made by the Company (other than a Utilisation Request) is
made on behalf of and with the consent and knowledge of all the Obligors.
- 121 -
(c) The Agent may engage and pay for the advice or services of any lawyers, accountants,
surveyors or other experts or professional advisers.
(d) Without prejudice to the generality of paragraph (c) above or paragraph (e) below, the
Agent may at any time engage and pay for the services of any lawyers to act as
independent counsel to the Agent (and so separate from any lawyers instructed by the
Lenders) if the Agent in its reasonable opinion deems this to be necessary.
(e) The Agent may rely on the advice or services of any lawyers, accountants, tax advisers,
surveyors or other professional advisers or experts (whether obtained by the Agent or
by any other Party) and shall not be liable for any damages, costs or losses to any person,
any diminution in value or any liability whatsoever arising as a result of its so relying.
(f) The Agent may act in relation to the Finance Documents through its officers, employees,
secondees and agents.
(g) Unless a Finance Document expressly provides otherwise the Agent may disclose to
any other Party any information it reasonably believes it has received as Agent under
this Agreement.
(h) Notwithstanding any other provision of any Finance Document to the contrary, the
Agent is not obliged to do or omit to do anything if it would or might in its reasonable
opinion constitute a breach of any law or regulation or a breach of a fiduciary duty or
duty of confidentiality.
(i) Notwithstanding any provision of any Finance Document to the contrary, the Agent is
not obliged to expend or risk its own funds or otherwise incur any financial liability in
the performance of its duties, obligations or responsibilities or the exercise of any right,
power, authority or discretion if it has grounds for believing the repayment of such
funds or adequate indemnity against, or security for, such risk or liability is not
reasonably assured to it.
(j) The Parties need not enquire whether any instructions from all or a percentage of
Lenders or the Majority Lenders have been given to the Agent or as to the terms of
those instructions. As between the other Parties on the one hand and the Agent and
Lenders on the other, everything done by the Agent under or in relation to the Finance
Documents will be taken to be authorised.
24.7 Responsibility for documentation
The Agent is not responsible or liable for:
(a) the adequacy, accuracy or completeness of any information (whether oral or written)
supplied by the Agent, an Obligor or any other person given in or in connection with
any Finance Document or the transactions contemplated in the Finance Documents or
any other agreement, arrangement or document;
(b) the legality, validity, effectiveness, adequacy or enforceability of any Finance
Document or any other agreement, arrangement or document; or
- 122 -
(c) any determination as to whether any information provided or to be provided to any
Finance Party is non-public information the use of which may be regulated or
prohibited by applicable law or regulation relating to insider dealing or otherwise.
24.8 No duty to monitor
The Agent shall not be bound to enquire:
(a) whether or not any Default or Review Event has occurred;
(b) as to the performance, default or any breach by any Party of its obligations under any
Finance Document or any other agreement, arrangement or document; or
(c) whether any other event specified in any Finance Document has occurred.
24.9 Exclusion of liability
(a) Without limiting paragraph (b) below (and without prejudice to any other provision of
any Finance Document excluding or limiting the liability of the Agent) the Agent will
not be liable for:
(i) any damages, costs or losses to any person, any diminution in value, or any
liability whatsoever arising as a result of taking or not taking any action under or
in connection with any Finance Document, unless directly caused by its gross
negligence or wilful misconduct;
(ii) exercising, or not exercising, any right, power, authority or discretion given to it
by, or in connection with, any Finance Document or any other agreement,
arrangement or document entered into, made or executed in anticipation of, under
or in connection with, any Finance Document, other than by reason of its gross
negligence or wilful misconduct; or
(iii) without prejudice to the generality of paragraphs (i) and (ii) above, any damages,
costs or losses to any person, any diminution in value or any liability whatsoever
(including, without limitation, for negligence or any other category of liability
whatsoever but not including any claim based on the fraud of the Agent) arising
as a result of:
(A) any act, event or circumstance not reasonably within its control; or
(B) the general risks of investment in, or the holding of assets in, any
jurisdiction,
including (in each case and without limitation) such damages, costs, losses to any
person, any diminution in value or any liability arising as a result of:
nationalisation, expropriation or other governmental actions; any regulation,
currency restriction, devaluation or fluctuation; market conditions affecting the
execution or settlement of transactions or the value of assets (including any
Disruption Event); breakdown, failure or malfunction of any third party transport,
telecommunications, computer services or systems; natural disasters or acts of
God; war, terrorism, insurrection or revolution; or strikes or industrial action.
- 123 -
(b) No Party (other than the Agent) may take any proceedings against any officer,
employee, secondee or agent of the Agent in respect of any claim it might have against
the Agent or in respect of any act or omission of any kind by that officer, employee,
secondee or agent in relation to any Finance Document, and any officer, employee,
secondee or agent of the Agent may rely on this Clause 24.9.
(c) The Agent will not be liable for any delay (or any related consequences) in crediting an
account with an amount required under the Finance Documents to be paid by the Agent
if the Agent 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 Agent for that purpose.
(d) Nothing in this Agreement shall oblige the Agent to carry out:
(i) any "know your customer" or other checks in relation to any person; or
(ii) any check on the extent to which any transaction contemplated by this Agreement
might be unlawful for any Lender or for any Affiliate of any Lender,
on behalf of any Lender, and each Lender confirms to the 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 Agent.
(e) Without prejudice to any provision of any Finance Document excluding or limiting the
Agent's liability, any liability of the Agent arising under or in connection with any
Finance Document shall be limited to the amount of actual loss which has been suffered
(as determined by reference to the date of default of the Agent or, if later, the date on
which the loss arises as a result of such default) but without reference to any special
conditions or circumstances known to the Agent at any time which increase the amount
of that loss. In no event shall the Agent be liable for any loss of profits, goodwill,
reputation, business opportunity or anticipated saving, or for special, punitive, indirect
or consequential damages, whether or not the Agent has been advised of the possibility
of such loss or damages.
24.10 Lenders' indemnity to the Agent
(a) Each Lender shall (in proportion to its share of the Total Commitments or, if the Total
Commitments are then zero, to its share of the Total Commitments immediately prior
to their reduction to zero) indemnify the Agent, within three Business Days of demand,
against any cost, expense, loss or liability (including, without limitation, for negligence
or any other category of liability whatsoever) incurred by the Agent (otherwise than by
reason of the Agent's gross negligence or wilful misconduct) (or, in the case of any cost,
expense, loss or liability pursuant to Clause 28.10 (
Disruption to payment systems etc.
)
notwithstanding the Agent's negligence, gross negligence or any other category of
liability whatsoever but not including any claim based on the fraud of the Agent) in
acting as Agent under the Finance Documents (unless the Agent has been reimbursed
by an Obligor pursuant to a Finance Document).
- 124 -
(b) A Lender's share will be the proportion of its share of the Total Commitments or, if the
Total Commitments are then zero, its share of the Total Commitments immediately
prior to their reduction to zero. Where a Lender's Commitment has been reduced to
zero, but it has a participation in any outstanding Utilisations, then for this purpose its
Commitment will be taken to be the aggregate amount of its participation (and the Total
Commitments calculated accordingly).
(c) If any Lender fails to pay its share of any amount due under paragraph (a) one or more
other Lenders may pay all or part of that share to the Agent. In that case, the defaulting
Lender must immediately pay each such paying Lender the amount paid by that paying
Lender together with interest equal to the rate from time to time certified by the paying
Lender to be its cost of funds plus a margin of 2 per cent per annum, compounding
monthly.
(d) If any Lender fails to provide its share of security to the Agent when requested under
Clause 24.6 (
Rights and discretions
) one or more other Lenders may provide all or part
of that share on its behalf. Where that security is cash, the non-providing Lender must
immediately pay each Lender that provided cash the amount provided by it together
with interest equal to its cost of funds plus a margin of 2 per cent per annum,
compounding monthly.
24.11 Resignation of the Agent
(a) The Agent may resign and appoint one of its Affiliates acting through an office in
Australia as successor by giving notice to the Lenders and the Company.
(b) Alternatively the Agent may resign by giving 30 days' notice to the Lenders and the
Company, in which case the Majority Lenders (after consultation with the Company)
may appoint a successor Agent.
(c) If the Majority Lenders have not appointed a successor Agent in accordance with
paragraph (b) above within 20 days after notice of resignation was given, the retiring
Agent (after consultation with the Company) may appoint a successor Agent (acting
through an office in the same time zone as Australia).
(d) If the Agent wishes to resign because (acting reasonably) it has concluded that it is no
longer appropriate for it to remain as agent and the Agent is entitled to appoint a
successor Agent under paragraph (c) above, the Agent may (if it concludes (acting
reasonably) that it is necessary to do so in order to persuade the proposed successor
Agent to become a party to this Agreement as Agent) agree with the proposed successor
Agent amendments to this Clause 24 and any other term of this Agreement dealing with
the rights or obligations of the Agent consistent with then current market practice for
the appointment and protection of agents of syndicated financing transactions together
with any reasonable amendments to the agency fee payable under this Agreement which
are consistent with the successor Agent's normal fee rates and those amendments will
bind the Parties.
(e) The retiring Agent shall, at its own cost (other than where the retiring Agent is resigning
pursuant to paragraph (h) below), make available to the successor Agent such
- 125 -
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
Finance Documents. If the retiring Agent is resigning pursuant to paragraph (h) below,
the Company shall, within three Business Days of demand, reimburse the retiring 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.
(f) The Agent's resignation notice shall only take effect upon the appointment of a
successor.
(g) Upon the appointment of a successor, the retiring Agent shall be discharged from any
further obligation in respect of the Finance Documents (other than its obligations under
paragraph (e) above) but shall remain entitled to the benefit of Clause 13.3 (
Indemnity
to the Agent
) and this Clause 24 (and any agency fees for the account of the retiring
Agent shall cease to accrue from (and shall be payable on) that date). Any successor
and each of the other Parties shall have the same rights and obligations amongst
themselves as they would have had if such successor had been an original Party.
(h) After consultation with the Company, the Majority Lenders may, by notice to the Agent,
require it to resign in accordance with paragraph (b) above. In this event, the Agent
shall resign in accordance with paragraph (b) above.
(i) The Agent shall resign in accordance with paragraph (b) above (and, to the extent
applicable, shall use reasonable endeavours to appoint a successor Agent pursuant to
paragraph (c) above) if on or after the date which is three months before the earliest
FATCA Application Date relating to any payment to the Agent under the Finance
Documents, either:
(i) the Agent fails to respond to a request under Clause 12.7 (
FATCA Information
)
and the Company or a Lender reasonably believes that the Agent will not be (or
will have ceased to be) a FATCA Exempt Party on or after that FATCA
Application Date;
(ii) the information supplied by the Agent pursuant to Clause 12.7 (
FATCA
Information
) indicates that the Agent will not be (or will have ceased to be) a
FATCA Exempt Party on or after that FATCA Application Date; or
(iii) the Agent notifies the Company and the Lenders that the Agent will not be (or
will have ceased to be) a FATCA Exempt Party on or after that FATCA
Application Date;
and (in each case) the Company or a Lender reasonably believes that a Party will be
required to make a FATCA Deduction that would not be required if the Agent were a
FATCA Exempt Party, and the Company or that Lender, by notice to the Agent,
requires it to resign.
- 126 -
24.12 Confidentiality
(a) In acting as agent for the Finance Parties, the 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.
(b) If information is received by another division or department of the Agent, it may be
treated as confidential to that division or department and the Agent shall not be deemed
to have notice of it.
24.13 Relationship with the Lenders
(a) Subject to Clause 22.9 (
Pro rata interest settlement
), the Agent may treat the person
shown in its records as Lender at the opening of business (in the place of the Agent's
principal office as notified to the Finance Parties from time to time) as the Lender acting
through its Facility Office:
(i) entitled to or liable for any payment due under any Finance Document on that
day; and
(ii) entitled to receive and act upon any notice, request, document or communication
or make any decision or determination under any Finance Document made or
delivered on that day,
unless it has received not less than five Business Days' prior notice from that Lender to
the contrary in accordance with the terms of this Agreement.
(b) Any Lender may by notice to the Agent appoint a person to receive on its behalf all
notices, communications, information and documents to be made or despatched to that
Lender under the Finance Documents. Such notice shall contain the address, fax
number and electronic mail address and/or any other information required to enable the
sending and receipt of information by that means (and, in each case, the department or
officer, if any, for whose attention communication is to be made) and be treated as a
notification of a substitute address, fax number, electronic mail address, department
and officer by that Lender for the purposes of Clause 30.2 (
Addresses
) and the Agent
shall be entitled to treat such person as the person entitled to receive all such notices,
communications, information and documents as though that person were that Lender.
(c) The Agent may rely on or receive instructions from any attorney acting on behalf of a
Lender, or any person acting on behalf of a Lender whose title or acting title includes
the word Manager, Head, Executive, Director or President or cognate expressions, or
any secretary or director of a Lender.
24.14 Credit appraisal by the Lenders
Without affecting the responsibility of any Obligor for information supplied by it or on its behalf in
connection with any Finance Document, each Lender confirms to the Agent that it has been, and will
continue to be, solely responsible for making its own independent appraisal and investigation of all
risks arising under or in connection with any Finance Document, including but not limited to:
(a) the financial condition, status and nature of each member of the Group;
- 127 -
(b) the legality, validity, priority, effectiveness, adequacy or enforceability of any Finance
Document and any other agreement, arrangement or document;
(c) whether that Lender has recourse, and the nature and extent of that recourse, against
any Party or any of its respective assets under or in connection with any Finance
Document, the transactions contemplated by the Finance Documents or any other
agreement, arrangement or document; and
(d) the adequacy, accuracy or completeness of the information provided by the Agent, any
Party or by any other person under or in connection with any Finance Document, the
transactions contemplated by any Finance Documents or any other agreement,
arrangement or document.
24.15 Agent's management time
Any amount payable to the Agent under Clause 13.3 (
Indemnity to the Agent
), Clause 15 (
Costs and
expenses
) and Clause 24.10 (
Lenders' indemnity to the Agent
) shall include the cost of utilising the
Agent's management time or other resources and will be calculated on the basis of such reasonable
daily or hourly rates as the Agent may notify to the Company and the Lenders, and is in addition to
any fee paid or payable to the Agent under Clause 11 (
Fees
).
24.16 Deduction from amounts payable by the Agent
If any Party owes an amount to the Agent under the Finance Documents the Agent may, after giving
notice to that Party, deduct an amount not exceeding that amount from any payment to that Party
which the Agent would otherwise be obliged to make under the Finance Documents and apply the
amount deducted in or towards satisfaction of the amount owed. For the purposes of the Finance
Documents that Party shall be regarded as having received any amount so deducted.
25. ROLE AND APPOINTMENT OF THE COLLATERAL AGENT
Each of the Lenders appoints the Collateral Agent to act as its agent under and in connection with the
Finance Documents in accordance with the terms set out in Schedule 11 (
Collateral Agent
).
26. CONDUCT OF BUSINESS BY THE FINANCE PARTIES
No provision of this Agreement will:
(a) interfere with the right of any Finance Party to arrange its affairs (tax or otherwise) in
whatever manner it thinks fit;
(b) oblige any Finance Party to investigate or claim any credit, relief, remission or
repayment available to it or the extent, order and manner of any claim; or
(c) oblige any Finance Party to disclose any information relating to its affairs (tax or
otherwise) or any computations in respect of Tax.
- 128 -
27. SHARING AMONG THE FINANCE PARTIES
27.1 Payments to Finance Parties
If a Finance Party (a "
Recovering Finance Party
") receives or recovers (including by combination of
accounts or set off) any amount from an Obligor other than in accordance with Clause 28 (
Payment
Mechanics
) and applies that amount to a payment due under the Finance Documents then:
(a) the Recovering Finance Party shall, within three Business Days, notify details of the
receipt or recovery to the Agent;
(b) the Agent shall determine whether the receipt or recovery is in excess of the amount
the Recovering Finance Party would have been paid had the receipt or recovery been
received or made by the Agent and distributed in accordance with Clause 28 (
Payment
Mechanics
), without taking account of any Tax which would be imposed on the Agent
in relation to the receipt, recovery or distribution; and
(c) the Recovering Finance Party shall, within three Business Days of demand by the Agent,
pay to the Agent an amount (the "
Sharing Payment
") equal to such receipt or recovery
less any amount which the Agent determines may be retained by the Recovering
Finance Party as its share of any payment to be made, in accordance with Clause 28.5
(
Partial payments
).
27.2 Redistribution of payments
The Agent shall treat the Sharing Payment as if it had been paid by the relevant Obligor and distribute
it between the Finance Parties (other than the Recovering Finance Party) (the "
Sharing Finance
Parties
") in accordance with Clause 28.5 (
Partial payments
) towards the obligations of that Obligor
to the Sharing Finance Parties.
27.3 Recovering Finance Party's rights
(a) Unless paragraph (b) applies:
(i) the receipt or recovery referred to in Clause 27.1 (
Payments to Finance Parties
)
will be taken to have been a payment for the account of the Agent and not to the
Recovering Finance Party for its own account, and the liability of the relevant
Obligor to the Recovering Finance Party will only be reduced to the extent of any
distribution retained by the Recovering Finance Party under Clause 27.1(c)
(
Payments to Finance Parties
); and
(ii) without limiting sub-paragraph (i), the relevant Obligor shall indemnify the
Recovering Finance Party against a payment under Clause 27.1(c) (
Payments to
Finance Parties
) to the extent that (despite sub-paragraph (i)) its liability has been
discharged by the recovery or payment.
(b) Where:
(i) the amount referred to in Clause 27.1 (
Payments to Finance Parties
) above was
received or recovered otherwise than by payment (for example, set off); and
- 129 -
(ii) the relevant Obligor, or the person from whom the receipt or recovery is made, is
insolvent at the time of the receipt or recovery, or at the time of the payment to
the Agent, or becomes insolvent as a result of the receipt or recovery,
then the following will apply so that the Finance Parties have the same rights and
obligations as if the money had been paid by the relevant Obligor to the Agent for the
account of the Finance Parties and distributed accordingly:
(iii) each other Finance Party will assign to the Recovering Finance Party an amount
of the debt owed by the relevant Obligor to that Finance Party under the Finance
Documents equal to the amount received by that Finance Party under Clause 27.2
(
Redistribution of payments
);
(iv) the Recovering Finance Party will be entitled to all rights (including interest and
voting rights) under the Finance Documents in respect of the debt so assigned;
and
(v) that assignment will take effect automatically on payment of the Sharing Payment
by the Agent to the other Finance Party.
27.4 Reversal of redistribution
If any part of the Sharing Payment received or recovered by a Recovering Finance Party becomes
repayable and is repaid by that Recovering Finance Party, then:
(a) each Sharing Finance Party shall, upon request of the Agent, pay to the Agent for the
account of that Recovering Finance Party an amount equal to the appropriate part of its
share of the Sharing Payment (together with an amount as is necessary to reimburse
that Recovering Finance Party for its proportion of any interest on the Sharing Payment
which that Recovering Finance Party is required to pay) (the "
Redistributed Amount
");
(b) as between the relevant Obligor and each relevant Sharing Finance Party, an amount
equal to the relevant Redistributed Amount will be treated as not having been paid by
that Obligor and the relevant Obligor shall indemnify the Sharing Finance Party against
a payment under sub-paragraph (a) to the extent that the relevant Obligor's liability has
been discharged by the recovery or payment; and
(c) to the extent necessary, any debt assigned under paragraph (b) of Clause 27.3
(
Recovering Finance Party's rights
) will be reassigned.
27.5 Exceptions
(a) This Clause 27 shall not apply to the extent that the Recovering Finance Party would
not, after making any payment pursuant to this Clause, have a valid and enforceable
claim (or right of proof in an administration) against the relevant Obligor.
(b) A Recovering Finance Party is not obliged to share with any other Finance Party any
amount which the Recovering Finance Party has received or recovered as a result of
taking legal or arbitration proceedings, if:
(i) it notified that other Finance Party of the legal or arbitration proceedings; and
- 130 -
(ii) that other Finance Party had an opportunity to participate in those legal or
arbitration proceedings but did not do so as soon as reasonably practicable having
received notice and did not take separate legal or arbitration proceedings.
- 131 -
SECTION 11
ADMINISTRATION
28. PAYMENT MECHANICS
28.1 Payments to the Agent
(a) On each date on which an Obligor or a Lender is required to make a payment under a
Finance Document, that Obligor or Lender shall make the same available to the Agent
(unless a contrary indication appears in a Finance Document) for value on the due date
at the time in immediately available funds or if agreed by the Agent in such funds
specified by the Agent as being customary at the time for settlement of transactions in
the relevant currency in the place of payment.
(b) Payment shall be made to such account:
(i) in the case of Australian dollars, in the city of the Agent; or
(ii) in the case of any other currency, in the principal financial centre of the country
of that currency,
with such bank as the Agent, in each case, specifies.
(c) Payment by an Obligor to the Agent for the account of a Finance Party satisfies the
Obligor's obligations to make that payment.
28.2 Distributions by the Agent
Each payment received by the Agent under the Finance Documents for another Party shall, subject to
Clause 28.3 (
Distributions to an Obligor
) and Clause 28.4 (
Clawback and pre-funding
) be made
available by the Agent as soon as practicable after receipt to the Party entitled to receive payment in
accordance with this Agreement (in the case of a Lender, for the account of its Facility Office), to
such account as that Party may notify to the Agent by not less than five Business Days' notice with a
bank specified by that Party in Australia, in the case of Australian dollars, and, in the case of any
other currency, in the principal financial centre of the country of that currency.
28.3 Distributions to an Obligor
The Agent may (with the consent of the Obligor or in accordance with Clause 29 (
Set-off
)) apply any
amount received by it for that Obligor in or towards payment (on the date and in the currency and
funds of receipt) of any amount due from that Obligor under the Finance Documents or in or towards
purchase of any amount of any currency to be so applied.
28.4 Clawback and pre-funding
(a) Where a sum is to be paid by a Party (the "
Payer
") to the Agent under the Finance
Documents for another Party, the 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.
(b) If the Agent pays an amount to another Party:
(i) which it is to receive from another Party and it proves to be the case that the Agent
had not actually received that amount and paragraph (c) below does not apply; or
- 132 -
(ii) otherwise erroneously or mistakenly (in the reasonable opinion of the Agent),
then the Party to whom that amount (or the proceeds of any related exchange contract) was paid
by the Agent shall on demand refund the same to the Agent together with interest on
that amount from the date of payment to the date of receipt by the Agent, calculated by
the Agent to reflect its cost of funds.
(c) If the Agent has notified the Lenders that it is willing to make available amounts for
the account of a Borrower before receiving funds from the Lenders, then if and to the
extent that the Agent does so but it proves to be the case that it does not then receive
funds from a Lender in respect of a sum which it paid to a Borrower:
(i) the Agent shall notify the Company of that Lender's identity and the Borrower to
whom that sum was made available shall on demand refund it to the Agent; and
(ii) the Lender by whom those funds should have been made available or, if that
Lender fails to do so, the Borrower to whom that sum was made available, shall
on demand pay to the Agent the amount (as certified by the Agent) which will
indemnify the Agent against any funding cost incurred by it as a result of paying
out that sum before receiving those funds from that Lender.
(d) If the Agent makes a payment under paragraph (b) or (c), the Payer will still remain
liable to make the assumed payment, but until the other Party does repay the Agent
under paragraph (b), the Payer's liability will be to the Agent in the Agent's own right.
(e) If the Agent makes a payment under sub-paragraph (b)(ii) to a Party (the “
Recipient
”)
which is, or is taken to be, in respect of the liability of any other Party under the Finance
Documents, that other Party will still remain liable as if that payment had not been
made, but until the Recipient does repay the Agent under paragraph (b), the other Party's
liability will be to the Agent in the Agent's own right.
(f) Payment by the Agent of an amount to a Party is not a representation that the amount
is then payable to that Party.
28.5 Partial payments
(a) Subject to the provisions of the ABL Intercreditor Agreement, any amounts received
on account of the Obligations:
(i) that are insufficient to discharge all the amounts then due and payable by an
Obligor under the Finance Documents; or
(ii) on the Termination Date and after the exercise of remedies provided for in Clause
21.13 (
Acceleration
) (or after the Loans have automatically become immediately
due and payable)
shall be applied in the following order:
(iii)
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 Agent and Collateral Agent and amounts payable under Clause 12
- 133 -
(
Tax Gross-up and Indemnities
) and Clause 13 (
Other Indemnities
)) payable to
the Agent and the Collateral Agent in their respective capacity;
(iv)
Second
, to payment of that portion of the Obligations constituting accrued and
unpaid interest on the Loans and other Obligations, ratably among the Lenders in
proportion to the respective amounts described in this clause payable to them;
(v)
Third
, to payment of that portion of the Obligations constituting unpaid principal
of the Loans, ratably among the Lenders in proportion to the respective amounts
described in this clause held by them;
(vi)
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 Clause 12
(
Tax Gross-up and Indemnities
) and Clause 13 (
Other Indemnities
)), ratably
among them in proportion to the respective amounts described in this clause
payable to them;
(vii)
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 held by them; and
(viii)
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.
(b) The Agent shall, if so directed by all Lenders, vary the order set out in paragraphs (a)(iii)
to (a)(viii) above inclusive.
(c) Paragraphs (a) and (b) above will override any appropriation made by an Obligor.
28.6 No set-off by Obligors
All payments to be made by an Obligor under the Finance Documents shall be calculated and be made
without (and free and clear of any deduction for) set-off or counterclaim.
28.7 Business Days
(a) Any payment under the Finance Documents which is due to be made on a day that is
not a Business Day shall be made on the next Business Day in the same calendar month
(if there is one) or the preceding Business Day (if there is not).
(b) During any extension of the due date for payment of any principal or Unpaid Sum under
this Agreement interest is payable on the principal or Unpaid Sum at the rate payable
on the original due date.
28.8 Currency of account
(a) Subject to paragraphs (b) to (e) below, the Australian dollar is the currency of account
and payment for any sum due from an Obligor under any Finance Document.
- 134 -
(b) A repayment of a Utilisation or Unpaid Sum or a part of a Utilisation or Unpaid Sum
shall be made in the currency in which that Utilisation or Unpaid Sum is denominated,
pursuant to this Agreement, on its due date.
(c) Each payment of interest shall be made in the currency in which the sum in respect of
which the interest is payable was denominated, pursuant to this Agreement, when that
interest accrued.
(d) Each payment in respect of costs, expenses or Taxes shall be made in the currency in
which the costs, expenses or Taxes are incurred.
(e) Any amount expressed to be payable in a currency other than Australian dollars shall
be paid in that other currency.
(f) If for any reason a Finance Party receives or recovers any amount under or in relation
to a Finance Document in a currency other than Australian dollars ("
Foreign Currency
Amount
"), the amount which the Finance Party will be taken to have received or
recovered for the purposes of the Finance Documents will be the amount to which the
Finance Party could have converted the Foreign Currency Amount (using the market
based spot rate of exchange in the Sydney foreign exchange market as reasonably
determined by the Finance Party) at the time of the receipt or recovery, less the costs of
the conversion.
28.9 Change of currency
(a) Unless otherwise prohibited by law, if more than one currency or currency unit are at
the same time recognised by the central bank of any country as the lawful currency of
that country, then:
(i) any reference in the Finance Documents to, and any obligations arising under the
Finance Documents in, the currency of that country shall be translated into, or
paid in, the currency or currency unit of that country designated by the Agent
(after consultation with the Company); and
(ii) any translation from one currency or currency unit to another shall be at the
official rate of exchange recognised by the central bank for the conversion of that
currency or currency unit into the other, rounded up or down by the Agent (acting
reasonably).
(b) If a change in any currency of a country occurs, this Agreement will, to the extent the
Agent (acting reasonably and after consultation with the Company) specifies to be
necessary, be amended to comply with any generally accepted conventions and market
practice in the Relevant Market and otherwise to reflect the change in currency.
- 135 -
28.10 Disruption to payment systems etc.
If either the Agent determines (in its discretion) that a Disruption Event has occurred or the Agent is
notified by the Company that a Disruption Event has occurred:
(a) the Agent may, and shall if requested to do so by the Company, consult with the
Company with a view to agreeing with the Company such changes to the operation or
administration of the Facilities as the Agent may deem necessary in the circumstances;
(b) the Agent shall not be obliged to consult with the Company in relation to any changes
mentioned in paragraph (a) above if, in its opinion, it is not practicable to do so in the
circumstances and, in any event, shall have no obligation to agree to such changes;
(c) the Agent may consult with the Finance Parties in relation to any changes mentioned in
paragraph (a) above but shall not be obliged to do so if, in its opinion, it is not
practicable to do so in the circumstances;
(d) any such changes agreed upon by the Agent and the Company shall (whether or not it
is finally determined that a Disruption Event has occurred) be binding upon the Parties
as an amendment to (or, as the case may be, waiver of) the terms of the Finance
Documents notwithstanding the provisions of Clause 34 (
Amendments and Waivers
);
(e) the Agent shall not be liable for any damages, costs or losses to any person, any
diminution in value or any liability whatsoever (including, without limitation for
negligence, gross negligence or any other category of liability whatsoever but not
including any claim based on the fraud of the Agent) arising as a result of its taking, or
failing to take, any actions pursuant to or in connection with this Clause 28.10; and
(f) the Agent shall notify the Finance Parties of all changes agreed pursuant to paragraph
(d) above.
28.11 Anti-money laundering
(a) A Finance Party may delay, block or refuse to process any payment or other transaction
without incurring any liability if the Finance Party knows or reasonably suspects that
the transaction or the application of its proceeds will:
(i) breach, or cause a Finance Party to breach, any applicable laws or regulations of
any jurisdiction (including any sanctions); or
(ii) allow the imposition of any penalty on the Finance 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 subject to any applicable sanctions of any jurisdiction binding on the Finance
Party or its Affiliate, or the direct or indirect proceeds of unlawful activity.
(b) As soon as practicable after a Finance Party becomes aware that it will delay, block or
refuse to process a transaction under paragraph (a), it will notify the Company and the
Agent and consult in good faith but in each case only to the extent the Finance Party
- 136 -
determines it is legally permitted to do so. In making that determination the Finance
Party shall act reasonably.
(c) The Company shall promptly advise the Agent if any Obligor enters into any Finance
Document in the capacity as agent and promptly supply, or procure the supply of, such
information as may be reasonably requested by the Agent (for itself or on behalf of any
Finance Party) from time to time in relation to any principal for which an Obligor may
be acting.
(d) Each Obligor undertakes to exercise its rights and perform its obligations under the
Finance Documents in accordance with all applicable laws or regulations relating to
anti-money laundering, counter-terrorism financing or sanctions.
28.12 "Know your customer"
Each Party shall promptly upon the request of the Agent supply, or procure the supply of, such
documentation and other evidence as is reasonably requested by the Agent (for itself) in order for the
Agent to carry out and be satisfied it has complied with all necessary "know your customer" or other
similar checks under all applicable laws and regulations pursuant to the transactions contemplated in
the Finance Documents.
29. SET-OFF
If an Event of Default is continuing a Finance Party may, but need not, set off any matured obligation
due from an Obligor under the Finance Documents (to the extent beneficially owned by that Finance
Party) against any matured obligation owed by that Finance Party to that Obligor, regardless of the
place of payment, booking branch or currency of either obligation. If the obligations are in different
currencies, the Finance Party may convert either obligation at a market rate of exchange in its usual
course of business for the purpose of the set-off.
30. NOTICES
30.1 Communications in writing
Any communication or document to be made or delivered under or in connection with the Finance
Documents:
(a) must be in writing;
(b) in the case of:
(i) a notice by an Obligor; or
(ii) a specification of a bank or account by the Agent under paragraph (b) of Clause
28.1 (
Payments to the Agent
) or a Lender under Clause 28.2 (
Distributions by the
Agent
),
must be signed by an authorised signatory of the sender (directly or with a facsimile
signature), subject to Clause 30.5 (
Email communication
) and Clause 30.6 (
Reliance
),
and
(c) unless otherwise stated, may be made or delivered by fax, by letter, by email.
- 137 -
30.2 Addresses
The address, email address and fax number (and the department or officer, if any, for whose attention
the communication is to be made) of each Party for any communication or document to be made or
delivered under or in connection with the Finance Documents is:
(a) in the case of the Company, that specified in Schedule 1 (
The Original Parties
);
(b) in the case of each Lender or any other Original Obligor, that specified in Schedule 1
(
The Original Parties
) or notified in writing to the Agent on or prior to the date on
which it becomes a Party; and
(c) in the case of the Agent, that specified in Schedule 1 (
The Original Parties
),
or any substitute address, fax number, email address or department or officer as the Party may notify
to the Agent (or the Agent may notify to the other Parties, if a change is made by the Agent) by not
less than five Business Days' notice.
30.3 Delivery
(a) Any communication or document to be made or delivered by one Party to another under
or in connection with the Finance Documents will be taken to be effective or delivered:
(i) if by way of fax, when the sender receives a successful transmission report unless
the recipient informs the sender that it has not been received in legible form by
any means within two hours after:
(A) receipt, if in business hours in the city of the recipient; or
(B) if not, the next opening of business in the city of the recipient; or
(ii) if by way of letter or any physical communication, when it has been left at the
relevant address or five Business Days after being deposited in the post postage
prepaid in an envelope addressed to it at that address; or
(iii) if by way of email, as specified in Clause 30.5 (
Email communication
),
and, in the case of a communication, if a particular department or officer is specified as
part of its address details provided under Clause 30.2 (
Addresses
), if addressed to that
department or officer.
(b) All communication to or from an Obligor must be sent through the Agent.
(c) Any communication or document made or delivered to the Company in accordance
with this Clause 30 will be deemed to have been made or delivered to each of the
Obligors.
(d) A communication by fax or email after business hours in the city of the recipient will
be taken not to have been received until the next opening of business in the city of the
recipient.
- 138 -
30.4 Notification of address, fax number and email address
Promptly upon receipt of notification of an address, fax number and email address or change of
address, fax number or email address of an Obligor under Clause 30.2 (
Addresses
) or upon changing
its own address, fax number or email address, the Agent shall notify the other Parties.
30.5 Email communication
(a) Any communication or document under or in connection with the Finance Documents
may be made or delivered by or attached to an email and will be effective or delivered
only:
(i) on the first to occur of the following:
(A) when it is dispatched by the sender to each of the email addresses specified
by the recipient, unless for each of the addresses, the sender receives an
automatic notification that the email has not been received (other than an
out of office greeting for the named addressee) and it receives the
notification before 2 hours after the last to occur (for all addresses) of:
(1) dispatch, if in business hours in the city of the address; or
(2) if not, the next opening of business in such city;
(B) the sender receiving a message from the intended recipient's information
system confirming delivery of the email; and
(C) the email being available to be read at one of the email addresses specified
by the sender; and
(ii) if the email is in an appropriate and commonly used format, and any attached file
is a pdf, jpeg, tiff or other appropriate and commonly used format.
(b) In relation to an email with attached files:
(i) if the attached files are more than 3 MB in total, then:
(A) at the time of dispatch the giver of the email must send a separate email
without attachments notifying the recipient of the dispatch of the email; and
(B) if the recipient notifies the sender that it did not receive the email with
attached files, and the maximum size that is able to receive under its
firewalls, then the sender shall promptly send to the recipient the attached
files in a manner that can be received by the recipient; and
(ii) if the recipient of the email notifies the sender that it is unable to read the format
of an attached file or that an attached file is corrupted, specifying appropriate and
commonly used formats that it is able to read, the sender must promptly send to
the recipient the file in one of those formats or send the attachment in some other
manner; and
(iii) if within two hours of:
- 139 -
(A) dispatch of the email if in business hours in the city of the recipient; or
(B) if not, the next opening of business in the city of the recipient,
the recipient notifies the sender as provided in subparagraph (i)(B) or (i), then the
relevant attached files will be taken not to have been received until the sender
complies with that subparagraph.
(c) An email which is a covering email for a notice signed by the Obligor's authorised
signatory does not itself need to be signed by an authorised signatory.
(d) Email and other electronic notices from the Agent generated by Loan IQ or other system
software do not need to be signed.
30.6 Reliance
(a) Any communication or document sent under this Clause 30 can be relied on by the
recipient if the recipient reasonably believes it to be genuine and (if such a signature is
required under Clause 30.1(b) (
Communications in writing
)) it bears what appears to
be the signature (original or facsimile or email) of an authorised signatory of the sender
(without the need for further enquiry or confirmation).
(b) Each Party must take reasonable care to ensure that no forged, false or unauthorised
notices are sent to another Party.
30.7 English language
(a) Any notice or other communication given under or in connection with any Finance
Document must be in English.
(b) All other documents provided under or in connection with any Finance Document must
be:
(i) in English; or
(ii) if not in English, and if so required by the Agent, accompanied by a certified
English translation and, in this case, the English translation will prevail unless the
document is a constitutional, statutory or other official document.
31. CALCULATIONS AND CERTIFICATES
31.1 Accounts
In any litigation or arbitration proceedings arising out of or in connection with a Finance Document,
the entries made in the accounts maintained by a Finance Party are prima facie evidence of the matters
to which they relate.
31.2 Certificates and determinations
Any certification or determination by a Finance Party of a rate or amount under any Finance
Document is, in the absence of manifest error, conclusive evidence of the matters to which it relates.
- 140 -
31.3 Day count convention
Any interest, commission or fee accruing under a Finance Document will accrue from day to day and
is calculated on the basis of the actual number of days elapsed and a year of 365 days or, in any case
where the practice in the Relevant Market differs, in accordance with that market practice.
31.4 Settlement conditional
If:
(a) any Finance Party has at any time released or discharged:
(i) an Obligor from its obligations under any Finance Document; or
(ii) any assets of an Obligor from a Security,
in either case in reliance on a payment, receipt or other transaction to or in favour of
any Finance Party; or
(b) any payment, receipt or other transaction to or in favour of any Finance Party has the
effect of releasing or discharging:
(i) an Obligor from its obligations under any Finance Document; or
(ii) any assets of an Obligor from a Security; and
(c) that payment, receipt or other transaction is subsequently claimed by any person to be
void, voidable or capable of being set aside for any reason (including under any law
relating to insolvency, sequestration, liquidation, winding up or bankruptcy and any
provision of any agreement, arrangement or scheme, formal or informal, relating to the
administration of any of the assets of any person); and
(d) that claim is upheld or is conceded or compromised by a Finance Party,
then:
(i) each Finance Party will immediately become entitled against that Obligor to all
rights (including under any Finance Document) as it had immediately before that
release or discharge; and
(ii) that Obligor must, to the extent permitted by law:
(A) immediately do all things and execute all documents as any Finance Party
may, acting reasonably, require to restore to each Finance Party all those
rights; and
(B) indemnify each Finance Party against all costs and losses suffered or
incurred by it in or in connection with any negotiations or proceedings
relating to the claim or as a result of the upholding, concession or
compromise of the claim.
- 141 -
32. PARTIAL INVALIDITY
If, at any time, any provision of a Finance Document is or becomes illegal, invalid or unenforceable in
any respect under any law of any jurisdiction, neither the legality, validity or enforceability of the
remaining provisions nor the legality, validity or enforceability of such provision under the law of any
other jurisdiction will in any way be affected or impaired.
33. REMEDIES AND WAIVERS
No failure to exercise, nor any delay in exercising, on the part of any Finance Party, any right or
remedy under a Finance Document shall operate as a waiver of any such right or remedy or constitute
an election to affirm any of the Finance Documents. No election to affirm any Finance Document on
the part of any Finance Party shall be effective unless it is in writing. No single or partial exercise of
any right or remedy shall prevent any further or other exercise or the exercise of any other right or
remedy. The rights and remedies provided in each Finance Document are cumulative and not
exclusive of any rights or remedies provided by law.
34. AMENDMENTS AND WAIVERS
34.1 Required consents
(a) Subject to Clause 34.2 (
All Lender matters
) and Clause 34.3 (
Other exceptions
), any
term of the Finance Documents may be amended or waived only with the consent of
the Majority Lenders and the Obligors and any such amendment or waiver will be
binding on all Parties.
(b) The Agent may effect, on behalf of any Finance Party, any amendment or waiver
permitted by this Clause 34.
(c) Paragraph (c) of Clause 22.9 (
Pro rata interest settlement
) shall apply to this Clause 34.
34.2 All Lender matters
(a) An amendment or waiver of any term of any Finance Document that has the effect of
changing or which relates to:
(i) the definition of "Majority Lenders" in Clause 1.1 (
Definitions
);
(ii) a waiver of any of the conditions precedent under Clause 4.1 (
Initial conditions
precedent
);
(iii) an extension to the date of payment of any amount under the Finance Documents;
(iv) a reduction in the Interest Rate or a reduction in the amount, or a change in the
currency, of any payment of principal, interest, fees or commission payable or
any other payment obligation;
(v) an increase in any Commitment, an extension of any Availability Period or any
requirement that a cancellation of Commitments reduces the Commitments of the
Lenders rateably under the relevant Facility;
(vi) a change to the Borrowers or Guarantors other than in accordance with Clause 23
(
Changes to the Obligors
);
- 142 -
(vii) the definition of ‘Borrowing Base’ and ‘Borrowing Base Undertaking’;
(viii) any provision which expressly requires the consent of all the Lenders;
(ix) Clause 2.2 (Finance Parties' rights and obligations), Clause 5.1 (Delivery of a
Utilisation Request for a Loan), Clause 7.1 (Illegality), Clause 7.2 (Review
Event), Clause 8.8 (Application of prepayments), Clause 22 (Changes to the
Lenders), Clause 23 (Changes to the Obligors), Clause 27 (Sharing among the
Finance Parties), Clause 28.5 (Partial payments), this Clause 34, Clause 42
(Governing Law) or Clause 43.1 (Jurisdiction);
(x) (other than as expressly permitted by the provisions of this Agreement or the
Australian Security Trust Deed):
(A) the nature or scope of the Transaction Security or the nature or scope of the
guarantee and indemnity granted under Clause 16 (
Guarantee
); or
(B) the Collateral; or
(C) the manner in which the proceeds of enforcement of the Transaction
Security are distributed;
(xi) the release of any guarantee and indemnity granted under Clause 16 (
Guarantee
)
or of any Transaction Security unless permitted under this Agreement or the
Australian Security Trust Deed or relating to a disposal of an asset which is the
subject of the Transaction Security, or of the grantor of the guarantee and
indemnity or Transaction Security or of the grantor's Holding Company, where
such disposal is permitted under this Agreement or the Australian Security Trust
Deed,
shall not be made without the prior consent of all the Lenders.
34.3 Other exceptions
(a) An amendment or waiver which relates to the rights or obligations of the Agent or the
Collateral Agent (each in their capacity as such) may not be effected without the
consent of the Agent or, as the case may be, the Collateral Agent.
(b) Any Fee Letter may be amended, or rights or privileges thereunder waived, in a writing
executed only by the parties thereto
(c) 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 Financial
Indebtedness and Security expressly permitted under this Agreement to be secured by
a Security 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
- 143 -
changes to the applicable intercreditor agreement as, in the good faith determination of
the Agent, are required to effectuate the foregoing).
35. INSTRUCTIONS AND DECISIONS
35.1 Abstentions
In determining whether the Majority Lenders have given instructions or a consent, approval, waiver,
amendment or other decision, a Lender will be deemed to have Commitments or a participation of
zero if it has so elected by notice to the Agent.
35.2 Transferees bound
A consent, approval, waiver, amendment or other decision by a Lender or any instruction to the Agent
by a Lender binds that Lender's assigns and successors unless revoked under Clause 35.3 (
Limitations
on revocation
).
35.3 Limitations on revocation
Any instructions, consent, approval, waiver, amendment or other decision by the Majority Lenders
may be revoked only by the Majority Lenders, and may not be revoked if the decision has been acted
upon.
35.4 Failure to respond
If any Lender fails to respond to a request for instructions, consent, approval, waiver, amendment or
other decision in relation to any Finance Document within 10 Business Days of that request (or any
longer period agreed by the Company and the Agent), that Lender, its Commitment and its
participation shall not be included for the purpose of calculating the Total Commitments or
participations under the Facility when ascertaining whether Lenders with any relevant percentage of
Total Commitments and/or participations have responded to that request. This Clause does not apply
to a request for instructions, consent, approval, waiver, amendment or other decision or vote in
relation to the matters referred to in Clauses 34.2(a)(iv) and 34.2(a)(v) (
All Lender matters
).
36. CONFIDENTIALITY
36.1 Confidential Information
Each Finance Party agrees to keep all Confidential Information confidential and not to disclose it to
anyone, save to the extent permitted by Clause 36.2 (
Disclosure of Confidential Information
), and to
ensure that all Confidential Information is protected with security measures and a degree of care that
would apply to its own confidential information. To the extent that Confidential Information
comprises personal information of any officer, director or employee of an Obligor, each Finance Party
agrees to hold that personal information in accordance with the Australian Privacy Principles set out
in the Privacy Act 1988 (Cth).
36.2 Disclosure of Confidential Information
Any Finance Party may disclose:
(a) to any of its Affiliates and Related Funds and any of its or their officers, directors,
employees, professional advisers, auditors, partners and Representatives such
Confidential Information as that Finance Party shall consider appropriate if any person
to whom the Confidential Information is to be given pursuant to this paragraph (a) is
- 144 -
informed in writing of its confidential nature and that some or all of such Confidential
Information may be price-sensitive information except that there shall be no such
requirement to so inform if the recipient is subject to professional obligations to
maintain the confidentiality of the information or is otherwise bound by requirements
of confidentiality in relation to the Confidential Information;
(b) to any person:
(i) to (or through) whom it assigns or transfers (or may potentially assign or transfer)
all or any of its rights and/or obligations under one or more Finance Documents
or which succeeds (or which may potentially succeed) it as Agent and, in each
case, to any of that person's Affiliates, Related Funds, Representatives and
professional advisers;
(ii) with (or through) whom it enters into (or may potentially enter into), whether
directly or indirectly, any sub-participation in relation to, or any other transaction
under which payments are to be made or may be made by reference to, one or
more Finance Documents and/or one or more Obligors and to any of that person's
Affiliates, Related Funds, Representatives and professional advisers;
(iii) appointed by any Finance Party or by a person to whom paragraph (b)(i) or (ii)
above applies to receive communications, notices, information or documents
delivered pursuant to the Finance Documents on its behalf (including, without
limitation, any person appointed under paragraph (c) of Clause 24.13
(
Relationship with the Lenders
));
(iv) who invests in or otherwise finances (or may potentially invest in or otherwise
finance), directly or indirectly, any transaction referred to in paragraph (b)(i) or
(ii) above;
(v) to whom information is required or requested to be disclosed by any court or
tribunal of competent jurisdiction or any governmental, banking, taxation or other
regulatory authority or similar body, the rules of any relevant stock exchange or
pursuant to any applicable law or regulation (except this paragraph does not
permit the disclosure of any information under section 275(4) of the PPSA unless
section 275(7) of the PPSA applies);
(vi) to whom information is required to be disclosed in connection with, and for the
purposes of, any litigation, arbitration, administrative or other investigations,
proceedings or disputes (except this paragraph does not permit the disclosure of
any information under section 275(4) of the PPSA unless section 275(7) of the
PPSA applies);
(vii) to whom or for whose benefit that Finance Party charges, assigns or otherwise
creates Security (or may do so) pursuant to Clause 22.8 (
Security over Lenders'
rights
);
(viii) who is a Party; or
- 145 -
(ix) with the consent of the Company;
in each case, such Confidential Information as that Finance Party shall consider
appropriate if:
(A) in relation to paragraphs (b)(i) or (b)(ii) and (b)(iii) above, the person to
whom the Confidential Information is to be given has entered into a
Confidentiality Undertaking except that there shall be no requirement for a
Confidentiality Undertaking if the recipient is a professional adviser and is
subject to professional obligations to maintain the confidentiality of the
Confidential Information;
(B) in relation to paragraph (b)(iv) above, the person to whom the Confidential
Information is to be given has entered into a Confidentiality Undertaking or
is otherwise bound by requirements of confidentiality in relation to the
Confidential Information they receive and is informed that some or all of
such Confidential Information may be price-sensitive information;
(C) in relation to paragraphs (b)(v), (b)(vi) and (b)(vii) above, the person to
whom the Confidential Information is to be given is informed of its
confidential nature and that some or all of such Confidential Information
may be price-sensitive information except that there shall be no requirement
to so inform if, in the opinion of that Finance Party, it is not practicable so
to do in the circumstances;
(c) to any person appointed by that Finance Party or by a person to whom paragraph (b)(i)
or (b)(ii) above applies to provide administration or settlement services in respect of
one or more of the Finance Documents including without limitation, in relation to the
trading of participations in respect of the Finance Documents, such Confidential
Information as may be required to be disclosed to enable such service provider to
provide any of the services referred to in this paragraph (c) if the service provider to
whom the Confidential Information is to be given has entered into a confidentiality
agreement substantially in the form of the LMA Master Confidentiality Undertaking
for Use With Administration/Settlement Service Providers or such other form of
confidentiality undertaking agreed between the Company and the relevant Finance
Party; and
(d) to any rating agency (including its professional advisers) such Confidential Information
as may be required to be disclosed to enable such rating agency to carry out its normal
rating activities in relation to the Finance Documents and/or the Obligors if the rating
agency to whom the Confidential Information is to be given is informed of its
confidential nature and that some or all of such Confidential Information may be price-
sensitive information.
36.3 Entire agreement
This Clause 36 constitutes the entire agreement between the Parties in relation to the obligations of
the Finance Parties under the Finance Documents regarding Confidential Information and supersedes
- 146 -
any previous agreement, whether express or implied, regarding Confidential Information (other than
any agreement regarding Confidential Information under the Stanwell Arrangements).
36.4 Inside information
Each of the Finance Parties acknowledges that some or all of the Confidential Information is or may
be price-sensitive information and that the use of such information may be regulated or prohibited by
applicable legislation including securities law relating to insider dealing and market abuse and each of
the Finance Parties undertakes not to use any Confidential Information for any unlawful purpose.
36.5 Notification of disclosure
Each of the Finance Parties agrees (to the extent permitted by law and regulation) to inform the
Company:
(a) of the circumstances of any disclosure of Confidential Information made pursuant to
paragraphs (b)(v) and (b)(vi) of Clause 36.2 (
Disclosure of Confidential Information
)
except where such disclosure is made to any of the persons referred to in that paragraph
during the ordinary course of its supervisory or regulatory function; and
(b) upon becoming aware that Confidential Information has been disclosed in breach of
this Clause 36.
36.6 Continuing obligations
The obligations in this Clause 36 are continuing and, in particular, shall survive and remain binding
on each Finance Party for a period of twelve months from the earlier of:
(a) the date on which all amounts payable by the Obligors under or in connection with this
Agreement have been paid in full and all Commitments have been cancelled or
otherwise cease to be available; and
(b) the date on which such Finance Party otherwise ceases to be a Finance Party.
37. PPSA PROVISIONS
37.1 Exclusion of certain provisions
Where any Finance Party has a security interest (as defined in the PPSA) under any Finance
Document, to the extent the law permits:
(a) for the purposes of sections 115(1) and 115(7) of the PPSA:
(i) each Finance Party 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 PPSA; and
(ii) sections 142 and 143 of the PPSA are excluded;
(b) for the purposes of section 115(7) of the PPSA, each Finance Party with the benefit of
the security interest need not comply with sections 132 and 137(3);
(c) each Party waives its right to receive from any Finance Party any notice required under
the PPSA (including a notice of a verification statement);
- 147 -
(d) if a Finance Party 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 PPSA unless the Finance Party states otherwise at the time
of exercise. However, this Clause 37 does not apply to a right, power or remedy which
can only be exercised under the PPSA; and
(e) if the PPSA is amended to permit the Parties to agree not to comply with or to exclude
other provisions of the PPSA, the Agent may notify the Company and the Finance
Parties that any of these provisions is excluded, or that the Finance Parties need not
comply with any of these provisions.
This does not affect any rights a person has or would have other than by reason of the PPSA and
applies despite any other Clause in any Finance Document.
38. COUNTERPARTS
Each Finance Document may be executed in any number of counterparts, and this has the same effect
as if the signatures on the counterparts were on a single copy of the Finance Document.
39. INDEMNITIES AND REIMBURSEMENT
All indemnities and reimbursement obligations (and any other payment obligations of any Obligor) in
each Finance Document are continuing and survive termination of the Finance Document, repayment
of the Utilisations and cancellation or expiry of the Commitments.
40. ACKNOWLEDGEMENT
Except as expressly set out in the Finance Documents, none of the Asia Pacific Loan Market
Association, the Finance Parties or any of their advisers have given any representation or warranty or
other assurance to any Obligor in relation to the Finance Documents and the transactions they
contemplate, including as to tax or other effects. The Obligors have not relied on any of them or on
any conduct (including any recommendation) by any of them. The Obligors have obtained their own
tax and legal advice.
41. DESIGNATION OF SECURED HEDGE AGREEMENTS
(a) No person providing hedging arrangements to any Obligor shall be entitled to the
benefits of Clause 16 (
Guarantee
), Clause 28.5 (
Partial payments)
virtue of the provisions hereof or of any guarantee or any Collateral Document, unless:
(i) the Borrowers have provided a written notice to the Agent (in form reasonably
acceptable to the Agent), designating the person providing hedging arrangements
as a Hedge Bank and designating a Swap Contracts(to which that person is a
counterparty) as a Secured Hedge Agreement (a “
Designation Notice
”);
(ii) the Designation Notice includes a description of such Hedge Bank and Secured
Hedge Agreement; and
(iii) the hedging arrangements and Designation Notice have been accepted and
consented to in writing by the Agent (in its absolute discretion).
- 148 -
(b) The Borrowers and any Hedge Bank may increase, decrease or terminate any amount
of obligations under the Secured Hedge Agreement upon written consent by the Agent
(in its absolute discretion).
(c) No Hedge Bank that obtains the benefits of Clause 16 (
Guarantee
), Clause 28.5 (
Partial
payments)
, or any Collateral by virtue of the provisions hereof or of any guarantee or
any 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 Finance 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 Finance Documents. The 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 Agent has received
written notice of such Obligations, together with such supporting documentation as the
Agent may request, from the applicable Hedge Bank.
- 149 -
SECTION 12
GOVERNING LAW AND ENFORCEMENT
42. GOVERNING LAW
This Agreement is governed by Queensland law.
43. ENFORCEMENT
43.1 Jurisdiction
(a) The courts having jurisdiction in Queensland have exclusive jurisdiction to settle any
dispute arising out of or in connection with this Agreement (including a dispute relating
to the existence, validity or termination of this Agreement) (a "
Dispute
").
(b) The Parties agree that those courts are the most appropriate and convenient courts to
settle Disputes and accordingly no Party will argue to the contrary.
(c) Notwithstanding paragraph (a) above, no Finance Party or Secured Party shall be
prevented from taking proceedings relating to a Dispute in any other courts with
jurisdiction. To the extent allowed by law, the Finance Parties and the Secured Parties
may take concurrent proceedings in any number of jurisdictions.
43.2 Service of process
(a) Without prejudice to any other mode of service allowed under any relevant law:
(i) each Obligor (other than an Obligor incorporated in Australia) irrevocably
appoints Coronado Finance Pty Ltd (ACN 628 668 235) as its agent for service
of process in Australia relation to any proceedings in connection with any Finance
Document; and
(ii) each Obligor (other than an Obligor incorporated in the United States of America)
irrevocably appoints the Company as its agent for service of process in the United
States of America relation to any proceedings in connection with any Finance
Document,
relevant Obligor of the process will not invalidate the proceedings concerned.
(b) Each of the Company and Coronado Finance Pty Ltd (ACN 628 668 235) accepts its
appointment as agent for service under paragraph (a) above.
44. WAIVER OF JURY TRIAL
(a) Each Party 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).
(b) Each Party:
- 150 -
(i) 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
(ii) acknowledges that it and the other parties hereto have been induced to enter into
this Agreement and the other Finance Documents by, among other things, the
mutual waivers and certifications in this clause.
This Agreement has been entered into on the date stated at the beginning of this Agreement.
- 151 -
Schedule 1
THE ORIGINAL PARTIES
Part I
The Original Obligors
Name of Company
ACN
Address for Service of Notice
CORONADO GLOBAL
RESOURCES INC.
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:
Name of Original Borrower
ACN
Address for Service of Notice
CORONADO FINANCE PTY
LTD
628 668 235
Level 33, Central Plaza One
345 Queen Street
Brisbane QLD 4000
AUSTRALIA
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:
CORONADO CURRAGH
PTY LTD
009 362 565
As above.
Name of Original Guarantor
ACN (if applicable)
Address for Service of Notice
CORONADO FINANCE PTY
LTD
628 668 235
As above.
CORONADO CURRAGH
PTY LTD
009 362 565
As above.
- 152 -
CURRAGH COAL SALES
CO. PTY. LTD.
010 459 220
As above.
CURRAGH QUEENSLAND
MINING PTY LTD
095 450 418
As above.
CORONADO AUSTRALIA
HOLDINGS PTY LTD
623 524 989
As above.
CORONADO GLOBAL
RESOURCES INC.
As above.
CORONADO COAL
CORPORATION
As above.
CORONADO II LLC
As above.
CORONADO COAL II LLC
As above.
CORONADO COAL LLC
As above.
MON VALLEY MINERALS
LLC
As above.
GREENBRIER MINERALS,
LLC
As above.
POWHATAN MID-VOL
COAL SALES, L.L.C.
As above.
CORONADO IV LLC
As above.
BUCHANAN MINERALS,
LLC
As above.
BUCHANAN MINING
COMPANY LLC
As above.
CORONADO VA, LLC
As above.
CORONADO CURRAGH
LLC
As above.
- 153 -
Part II
The Original Lender
Name of Original
Lender
Commitment
Address for Service of Notice and
Facility Office
Stanwell Corporation
Limited ACN 078 848
674
The Australian dollar
equivalent of
US$265,000,000 as
calculated by the Original
Lender using the market
based spot rate of
exchange in the Sydney
foreign exchange market
as reasonably determined
by the Original Lender two
Business Days prior to the
"Designated Date" (as
defined in the Refinancing
Coordination Deed), and as
notified by the Original
Lender to the Company.
Level 2, 180 Ann Street
Brisbane QLD 4000
Attention: General Manager
Email:
Copy to: General Counsel
Email:
Facility Office:
Level 2, 180 Ann Street
Brisbane QLD 4000
- 154 -
Schedule 2
CONDITIONS PRECEDENT
Part I
Conditions Precedent To Initial Utilisation
[Conditions precedent to initial Utilisation contained in Refinancing Coordination Deed]
Part II
CONDITIONS PRECEDENT REQUIRED TO BE DELIVERED BY AN ADDITIONAL
OBLIGOR
1. An Accession Letter, duly executed by the Additional Obligor and the Company.
2. Unless the Additional Obligor is:
(a) an "Obligor" under the Australian Security Trust Deed, an Accession Deed, duly
executed by the Additional Obligor and the Company;
(b) a “Grantor” under the Security Agreement, a joinder agreement (in the form specified
in the Security Agreement), duly executed by the Additional Obligor; and
(c) an “Obligor” under each Intercreditor Agreement, a joinder agreement (in the form
specified in such Intercreditor Agreement), duly executed by the Additional Obligor
and the Company.
3. A verification certificate given by a director of the Additional Obligor in the form as accepted
by the Agent as a condition precedent to the Amendment and Restatement Effective Date
occurring, with the attachments referred to in that form, and dated no earlier than the date of
the Accession Letter.
4. A copy of any other Authorisation or other document, opinion or assurance which the Agent
reasonably considers to be necessary or desirable in connection with the entry into and
performance of the transactions contemplated by the Accession Letter or for the validity and
enforceability of any Finance Document.
5. If available, the latest audited financial statements of the Additional Obligor.
6. A legal opinion of MinterEllison, legal advisers to the Lenders in Australia.
7. If the Additional Obligor is incorporated in a jurisdiction outside Australia, a legal opinion of
the legal advisers to the Lenders in the jurisdiction in which the Additional Obligor is
incorporated.
8. If the proposed Additional Obligor is incorporated in a jurisdiction outside Australia or the
United States of America, evidence that the process agent specified in Clause 43.2 (
Service of
- 155 -
process
), if not an Obligor, has accepted its appointment in relation to the proposed Additional
Obligor.
9. If the proposed Additional Obligor is incorporated in the United States of America:
(a) a good standing (or equivalent) certificate as of a recent date:
(i) from its jurisdiction of organisation; and
(ii) in each jurisdiction in which it is qualified to engage in business where its
ownership, lease or operation of properties or the conduct of its business
requires such qualification, except, in the case of this paragraph (ii), to the
extent that failure to do so could not reasonably be expected to have a Material
Adverse Effect; and
(b) a completed perfection certificate signed by a Responsible Officer of the Company on
behalf of the Additional Obligor, together with all attachments contemplated thereby.
10. Any supplements to the Collateral Document, and any other security and pledge agreements
(including any applicable new Collateral Document), in all such cases, as specified by and in
form and substance reasonably satisfactory to the Agent.
11. Any notices or documents required to be given or executed under the terms of those security
documents or by the Agent or Collateral Agent in respect of those security documents or
Security.
12. Evidence that any other step then required to be taken under the terms of those security
documents or by the Agent or Collateral Agent in respect of those security documents or
Security.
13. Evidence (if applicable) that the provisions of Part 2J.3 of the Corporations Act (or the
equivalent provisions in any other relevant jurisdiction) have been complied with in relation to
the Accession Letter (if required) and the transactions contemplated under it.
- 156 -
Schedule 3
FORM OF UTILISATION REQUEST
From: [Borrower]
To: [Agent]
Dated:
Dear Sirs
[Company] – [ ] Syndicated Facility Agreement
dated [ ] (the "
Agreement
")
1. We refer to the Agreement. This is a Utilisation Request. Terms defined in the Agreement
have the same meaning in this Utilisation Request unless given a different meaning in this
Utilisation Request.
2. We wish to borrow a Loan on the following terms:
Proposed Utilisation Date: [ ] (or, if that is not a Business Day, the next Business
Day)
Amount: [ ]
3. We confirm that each condition specified in Clause 4.2 (
Further conditions precedent
) of the
Agreement is satisfied on the date of this Utilisation Request [except as described in the notice
dated [*] given to you, a copy of which is attached].
4. We confirm that, following the proposed Utilisation, the aggregate of all amounts outstanding
under the Agreement will not exceed the ABL Debt Cap.
5. The proceeds of this Loan should be credited to [account].
6. This Utilisation Request is irrevocable.
Yours faithfully
authorised signatory for
[name of relevant Borrower]
- 157 -
Schedule 4
FORM OF TRANSFER CERTIFICATE
Part I
FORM OF SINGLE LENDER TRANSFER CERTIFICATE
To: [ ] as Agent
From: [The Existing Lender] (the "
Existing Lender
") and [The New Lender] (the "
New Lender
")
Dated:
[Company] – [ ] Syndicated Facility Agreement
dated [ ] (the "
Agreement
")
1. We refer to the Agreement. This is a Transfer Certificate. Terms defined in the Agreement
have the same meaning in this Transfer Certificate unless given a different meaning in this
Transfer Certificate.
2. We refer to Clause 22.5 (
Procedure for novation
) of the Agreement:
(a) The Existing Lender and the New Lender agree to the Existing Lender and the New
Lender with effect from and including the Transfer Date novating in accordance with
Clause 22.5 (
Procedure for novation
) of the Agreement that portion of the Existing
Lender's Commitment and participations in Utilisations under the Agreement specified
in the Schedule, and all of the Existing Lender's rights and obligations under the
Agreement, the other Finance Documents and in respect of the Transaction Security
which related to that portion.
(b) The proposed Transfer Date is [ ].
(c) To the extent permitted by law, the Existing Lender assigns to the New Lender all rights
of action that it may have to the extent they relate to its novated Commitment and its
corresponding rights and obligations and all sums provided under or in connection with
the novated Commitment.
(d) The Facility Office and address, fax number and attention details for notices of the New
Lender for the purposes of Clause 30.2 (
Addresses
) of the Agreement are set out in the
Schedule.
3. The New Lender expressly acknowledges the limitations on the Existing Lender's obligations
set out in paragraphs (a) and (c) of Clause 22.4 (
Limitation of responsibility of Existing Lenders
)
of the Agreement.
4 In this paragraph, terms defined in the Australian Security Trust Deed have the same meaning.
If the New Lender is not already a Beneficiary under the Australian Security Trust Deed, the
Australian Security Trustee agrees on behalf of itself and all other Beneficiaries as set out in
the Recognition Certificate issued under the Australian Security Trust Deed in favour of the
Agent. In consideration for that agreement, the New Lender agrees that upon becoming a
Lender it is bound by (i) the Recognition Certificate, and therefore by the terms set out in the
Australian Security Trust Deed as set out in the Recognition Certificate and (ii) the terms of the
- 158 -
Security Agreement (as defined in the Agreement) and all other Finance Documents. This
Transfer Certificate does not impose any other obligation nor constitute any other conduct by
the Australian Security Trustee, the Collateral Agent or other Beneficiaries. Each Obligor
agrees with the New Lender as set out in the Recognition Certificate.
5 This Transfer Certificate may be executed in any number of counterparts and this has the same
effect as if the signatures on the counterparts were on a single copy of this Transfer Certificate.
6 This Transfer Certificate is governed by [name of State law].
7 This Transfer Certificate has been entered into on the date stated at the beginning of this
Transfer Certificate.
8 [Where the transferee is a trustee under Australian law of a fund, this certificate may if the
Agent and the Australian Security Trustee agree contain a provision limiting its liability under
the Finance Documents to fund assets except to the extent its right to apply the fund assets
towards satisfaction of that liability is impaired because of a breach of trust or other impropriety,
such provision to be in the following form or as otherwise agreed by the Agent and the
Australian Security Trustee. Each of the Agent's and the Australian Security Trustee's decision
is its own. It need not consult or obtain instructions and is not bound by instructions.
(a) [Trustee] enters into and performs this Transfer Certificate and the Agreement and the
transactions they contemplate only as trustee of the Trust, except where expressly
stated otherwise. This applies also in respect of any past and future conduct (including
omissions) relating to this Transfer Certificate and the Agreement or those transactions.
(b) Under and in connection with this Transfer Certificate and the Agreement and those
transactions and conduct:
(i) [Trustee]'s liability (including for negligence) is limited to the extent it can be
satisfied out of the assets of the Trust. [Trustee] need not pay any such liability
out of other assets;
(ii) another party may only do the following (but any resulting liability remains
subject to this Clause):
(A) prove and participate in, and otherwise benefit from, any form of
insolvency administration of [Trustee] but only with respect to Trust
assets;
(B) exercise rights and remedies with respect to Trust assets, including set-
off;
(C) enforce its security (if any) and exercise contractual rights; and
(D) bring any other proceedings against [Trustee], seeking relief or orders
that are not inconsistent with the limitations in this Clause,
- 159 -
and may not otherwise:
(E) bring proceedings against [Trustee];
(F) take any steps to have [Trustee] placed into any form of insolvency
administration (but this does not prevent the appointment of a receiver,
or a receiver and manager, in respect of Trust assets); or
(G) seek by any means (including set-off) to have a liability of [Trustee]
to that party (including for negligence) satisfied out of any assets of
[Trustee] other than Trust assets.
(c) Paragraphs (a) and (b) apply despite any other provision in this Transfer Certificate or
the Agreement but do not apply with respect to any liability of [Trustee] to another
party (including for negligence) to the extent that [Trustee] has no right or power to
have Trust assets applied towards satisfaction of that liability, or its right or power to
do so is subject to a deduction, reduction, limit or requirement to make good, in any
case because [Trustee] has acted beyond power or improperly in relation to the Trust.
(d) The limitation in paragraph (b)(i) is to be disregarded for the purposes (but only for the
purposes) of the rights and remedies described in paragraph (b)(ii), and interpreting this
Transfer Certificate and the Agreement and any security for them, including
determining the following:
(i) whether amounts are to be regarded as payable (and for this purpose damages
or other amounts will be regarded as a payable if they would have been owed
had a suit or action barred under paragraph (b)(ii) been brought);
(ii) the calculation of amounts owing; or
(iii) whether a breach or default has occurred,
but any resulting liability will be subject to the limitations in this Clause.]
- 160 -
THE SCHEDULE
Commitment/rights and obligations to be transferred
[insert relevant details]
[Facility Office address, fax number and attention details for notices and account details for
payments,]
[Existing Lender] [New Lender]
By: By:
This Transfer Certificate is [executed as a deed and] accepted by the Agent, [and for the purposes of
paragraph 4 and 8 only, executed by it on behalf of the] Australian Security Trustee. The Transfer
Date is confirmed as [ ].
[Agent]
By: .....................................................................
- 161 -
Schedule 5
FORM OF ACCESSION LETTER
To: [ ] as Agent
From: [Subsidiary] and [Company]
Dated:
Dear Sirs
[Company] – [ ] Syndicated Facility Agreement
dated [ ] (the "
Agreement
")
1. We refer to the Agreement. This is an Accession Letter. Terms defined in the Agreement have
the same meaning in this Accession Letter unless given a different meaning in this Accession
Letter.
2. [Subsidiary] agrees to become an Additional [Borrower]/[Guarantor] and to be bound by the
terms of the Agreement as an Additional [Borrower]/[Guarantor] pursuant to Clause [23.2
(
Additional Borrowers
)]/[Clause 23.4 (
Additional Guarantors
)] of the Agreement. [Subsidiary]
is a company duly incorporated under the laws of [name of relevant jurisdiction].
3. [The Company confirms that no Default is continuing or would occur as a result of [Subsidiary]
becoming an Additional Borrower.]
4. [Subsidiary's] administrative details are as follows:
Address:
Fax No:
Attention:
5. This Accession Letter is governed by [name of State law].
[This Accession Letter is entered into by deed.]
[Company] [Subsidiary]
1
- 162 -
Schedule 6
FORM OF RESIGNATION LETTER
To: [ ] as Agent
From: [resigning Obligor] and [Company]
Dated:
Dear Sirs
[Company] – [ ] Syndicated Facility Agreement
dated [ ] (the "
Agreement
")
1. We refer to the Agreement. This is a Resignation Letter. Terms defined in the Agreement have
the same meaning in this Resignation Letter unless given a different meaning in this
Resignation Letter.
2. Pursuant to [Clause 23.3 (
Resignation of a Borrower
)]/[Clause 23.6 (
Resignation of a
Guarantor
)] of the Agreement, we request that [resigning Obligor] be released from its
obligations as a [Borrower]/[Guarantor] under the Agreement.
3. We confirm that:
(a) no Default is continuing or would result from the acceptance of this request; and
(b) [ ]
4. This Resignation Letter is governed by [name of state law].
[Company]
[Subsidiary]
By: .....................................................................
By: ....................................................................
*
- 163 -
Schedule 7
FORM OF COMPLIANCE CERTIFICATE
To: [ ] as Agent
From: [Borrower] and [Company]
Dated:
Dear Sirs
[Company] – [ ] Syndicated Facility Agreement
dated [ ] (the "
Agreement
")
1. We refer to the Agreement. This is a Compliance Certificate. Terms defined in the Agreement
have the same meaning when used in this Compliance Certificate unless given a different
meaning in this Compliance Certificate.
2. We confirm that: [Insert details of covenants to be certified]
3. [We confirm that no Default or Review Event is continuing.]
4. [[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 Obligor 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 an Annexure is a Perfection Certificate Supplement, signed by the Obligors,
identifying such changes to the Collateral since the Amendment and Restatement Effective
Date or the date of the most recent Compliance Certificate, as applicable].]
5. [Distribution has been made during [insert time period] covered by such [audited / unaudited]
financial statements, and such Distribution is a Permitted Distribution.]
Signed:
[Responsible Officer]
of
[Company]
- 164 -
Schedule 8
FORM OF BORROWING BASE CERTIFICATE
To:
GLOBAL LOAN AGENCY SERVICES AUSTRALIA PTY LTD
as Agent
From:
CORONADO GLOBAL RESOURCES INC., as the Company,
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 quarter
]
(“
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
100%
Eligible Accounts
US
face value
(exclusive of
GST, VAT
and other
Taxes)
100%
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
100%
Inventory (other than
Coal Inventory)
US
Book value
50%
- 165 -
Eligible Inventory
AU
Lower of
Inventory
Value or
Market Value
100%
Eligible Accounts
(excluding Australian
Provisional Invoices)
AU
face value
(exclusive of
GST, VAT
and other
Taxes)
100%
Eligible Accounts
(comprised of Accounts
from Australian
Provisional Invoices
only)
AU
face value
(exclusive of
GST, VAT
and other
Taxes)
100%
Inventory (other than
Coal Inventory)
AU
Book value
50%
Reserves (see paragraph
(d) below)
Total
Attached are copies of the following:
1 Eligible Inventory Storage Summary detailing the locations, aging, grade and commodities
stored by the Obligors 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 Australian 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, Eligible
Unbilled US Account and Inventory (other than Coal Inventory) (as applicable);
(b) all assets listed in the Borrowing Base Certificate are:
- 166 -
(i) secured by a Collateral Document in favour of the Collateral Agent or the
Australian Security Trustee; and
(ii) legally and beneficially owned by an Obligor; and
(iii) free from any Security (other than those created under the Collateral
Documents); and
(iv) are insured to the limits required by the Agreement and otherwise to the
Agent's satisfaction (acting on the instructions of all Lenders); and
(c) all insurance policies required to be maintained under Clause 20.12 (
Insurance
) of the
Agreement are in effect and current;
(d) in accordance with paragraph (e) of the definition of “Borrowing Base”, the Borrowing
Base is reduced by 100% of Reserves.; and
(e) 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.
Dated [•]
Signed:
[
Chief Financial Officer/Chief Executive Officer/Group Financial Controller
]
of the Company (for itself and on behalf of each other Obligor)
- 167 -
Schedule 10
ACCEPTABLE STORAGE LOCATIONS
Storage
Location
Owned by
Coronado- Specify
name of entity
Operated by
Coronado-
Specify name of entity
Right of Entry
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
Schedule 11
COLLATERAL AGENT
1.1 Appointment of Collateral Agent
(a) Each Lender hereby irrevocably appoints, designates and authorizes the Collateral
Agent to take such actions on its behalf under the provisions of this Agreement and
each other Finance Document and to exercise such powers and perform such duties as
are delegated to the Collateral Agent by the terms and provisions hereof and of the other
Finance Documents, together with such power as are reasonably incidental thereto.
(b) Notwithstanding any provision to the contrary contained elsewhere herein or in any
other Finance Document, the Collateral Agent shall have no duties or responsibilities,
except those expressly set forth herein, nor shall 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 Finance Document or otherwise exist against the Collateral
Agent. Without limiting the generality of the foregoing sentence, the Collateral Agent’s
duties under the Finance Documents are solely mechanical and administrative in nature,
and the Collateral Agent is not required to account to any other Secured Party for any
- 168 -
sum or profit received by it for its own account, and the use of the term “agent” herein
and in the other Finance Documents with reference to 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 Schedule 11
(other
than paragraphs 1.9 and 1.10) are solely for the benefit of the Collateral Agent and the
Lenders, and neither the Borrowers nor any other Obligor shall have rights as a third
party beneficiary of any such provisions.
(c) The Collateral Agent shall also act as the “collateral agent” under the Finance
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
Security on Collateral granted by any of the Obligors 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 paragraph 1.1(c)
for purposes of holding or enforcing any Security on the Collateral (or any portion
thereof) granted under the Collateral Documents (including the Australian Security
Documents), or for exercising any rights and remedies thereunder at the direction of the
Collateral Agent (or Majority Lenders)), shall be entitled to the benefits of all
provisions of this Schedule 11 (including paragraph 1.8, as though such co-agents, sub-
agents and attorneys-in-fact were the “collateral agent” under the Finance Documents)
as if set forth in full herein with respect thereto.
(d) 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 Security Documents) and acknowledge
and agree that any such action by the Collateral Agent shall bind the Lenders.
1.2 Delegation of Duties
(a) The Collateral Agent may execute any of its duties under this Agreement or any other
Finance Document (including for purposes of holding or enforcing any Security on the
Collateral (or any portion thereof) granted under the Collateral Documents (including
the Australian Security 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 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.
(b) Without limiting the generality of the foregoing sentence, the Collateral Agent may at
any time engage and pay for the services of any lawyers to act as its independent
- 169 -
counsel (and so separate from any lawyers instructed by the Lenders) if in its reasonable
opinion it deems this to be necessary. Each such sub-agent and the Affiliates of the
Collateral Agent and each such sub-agent shall be entitled to the benefits of all
provisions of this Schedule 11, clause 15 (
Costs and Expenses
) and clause 24.10
(
Lenders’ indemnity to the Agent
) (as though such sub-agents were the “Agent” or the
“Collateral Agent” under the Finance Documents) as if set forth in full herein with
respect thereto.
(c) 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).
1.3 Liability of Collateral Agent
(a) Neither the Collateral Agent (including in its capacity as the Australian Security Trustee)
nor any of its respective Affiliates or any of their respective officers, directors,
employees, agents, advisors, attorneys or representatives (“
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 Finance Document or the
transactions contemplated hereby (except for its own gross negligence or willful
misconduct, as 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 Obligor or any officer thereof,
contained herein or in any other Finance Document, or in any certificate, report,
statement or other document referred to or provided for in, or received by the
Collateral Agent under or in connection with, this Agreement or any other
Finance Document, or the execution, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Finance Document,
or the perfection or priority of any Security or security interest created or
purported to be created under the Collateral Documents (including, the Australian
Security Documents), or for any failure of any Obligor or any other party to any
Finance 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 Finance 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,
- 170 -
(iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any
other Finance Document or any other agreement, instrument or document or the
perfection or priority of any Security or security interest created or purported to
be created by the Collateral Documents (including the Australian Security
Documents),
(v) the satisfaction of any condition set forth in Clause 4 (
Conditions of Utilisation
)
or elsewhere herein, other than to confirm receipt of documentary items expressly
required to be delivered to the Collateral Agent, or
(vi) to inspect the properties, books or records of any Obligor 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 Finance 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;
(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 Finance Documents that such Person is
required to exercise as directed in writing by the Majority Lenders (or such other
number or percentage of the Lenders as shall be expressly provided for herein or
in the other Finance Documents), provided that such Person shall not be required
to take any action that, in its opinion or the opinion of its counsel, may expose it
to liability or that is contrary to any Finance 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
Collateral 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 Collateral 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 Finance Document or action taken or not taken by it with the consent or at
the request of the Majority 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) 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
- 171 -
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
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 Finance 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 Security granted under this Agreement, any other Finance 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 Finance Documents to be paid
by the Collateral 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 Collateral Agent for that purpose.
- 172 -
(j) No party to this Agreement (other than the Collateral Agent) may take any proceedings
against any Collateral Agent’s officer, employee, agent, director, advisor, attorney or
representative (“
Collateral Agent Representative
”
) in respect of any claim it might
have against that Collateral Agent Representative or in respect of any act or omission
of any kind by that Collateral Agent Representative in relation to any Finance
Document and any Collateral Agent Representative may rely on this paragraph 1.3.
1.4 Reliance by Collateral Agent
(a) The Collateral Agent 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 or
Collateral Agent.
(b) The Collateral Agent shall be fully justified in failing or refusing to take any action
under any Finance Document unless it shall first receive such advice or concurrence of
the Majority 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.
(c) The Collateral Agent shall in all cases be fully protected in acting, or in refraining from
acting, under this Agreement or any other Finance Document in accordance with a
request, consent of or ratification by the Majority 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 that the Collateral Agent shall not be required to take any action that, in its
opinion or in the opinion of its counsel, may expose the Collateral Agent to liability or
that is contrary to any Finance Document or applicable Law.
(d) Any notice, consent, request, direction, instruction or ratification by the Majority
Lenders shall be executed by the Lenders of record providing such consent, request,
direction, instruction or ratification.
(e) The Collateral Agent may assume that any instructions received by it from the Majority
Lenders, any Lender or any group of Lenders are duly given in accordance with the
terms of the Finance Documents and unless it has received notice of revocation, it may
assume that those instructions have not been revoked.
(f) The Collateral Agent may assume (unless it has received notice to the contrary in its
capacity as Collateral Agent) 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
- 173 -
(ii) any notice or request made by any Borrower (other than a Utilisation Request is
made on behalf of and with the consent and knowledge of all the Obligors.
1.5 Notice of Default
(a) The Collateral Agent shall not be deemed to have knowledge or notice of the occurrence
of any Default or Event of Default, unless the Collateral Agent shall have received
written notice from Majority Lenders 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.
(b) The Collateral Agent will notify the Lenders of its receipt of any such notice.
(c) The Collateral Agent shall take such action with respect to any Event of Default as may
be directed by the Majority Lenders in accordance with clause 21 (
Events of Default
);
provided
that and until the Collateral Agent has received any such direction, the
Collateral 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.
1.6 Credit Decision; Disclosure of Information by Collateral Agent
(a) Each Lender:
(i) acknowledges that no Agent Affiliate has made any representation or warranty to
it, and that no act by the Collateral Agent hereafter taken, including any consent
to and acceptance of any assignment or review of the affairs of any Obligor 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 possession;
(ii) represents to the Collateral 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 Obligors 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 Obligors hereunder; and
(iii) 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
Finance 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 Obligors.
(b) Except for notices, reports and other documents expressly required to be furnished to
the Lenders by the Administrative Agent herein, the Collateral Agent shall not have
- 174 -
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 Obligors or any of their respective Affiliates which
may come into the possession of any Agent Affiliate.
1.7 Indemnification of Collateral Agent
(a) Whether or not the transactions contemplated under this Agreement are consummated,
the Lenders shall indemnify upon demand the Collateral Agent and each other Agent
Affiliate, pro rata, and hold harmless the Collateral Agent 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):
(i) 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; and
(ii) provided that no action taken in accordance with the directions of the Majority
Lenders (or such other number or percentage of the Lenders as shall be required
by the Finance Documents) shall be deemed to constitute gross negligence,
willful misconduct or fraud for purposes of this paragraph 1.7. In the case of any
investigation, litigation or proceeding giving rise to any Indemnified Liabilities,
this paragraph 1.7 applies whether any such investigation, litigation or proceeding
is brought by or against any Lender or any other Person (or whether the Collateral
Agent or an Agent Affiliate is a party to any such Proceeding).
(b) Without limitation of the foregoing, each Lender shall reimburse the Collateral 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 Collateral 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 Finance Document, or any
document contemplated by or referred to herein, to the extent that the Collateral Agent
is not reimbursed for such expenses by or on behalf of the Borrowers, provided that
such reimbursement by the Lenders shall not affect the Borrowers’ continuing
reimbursement obligations with respect thereto.
(c) Each Lender hereby authorizes the 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 Finance Document or otherwise payable or distributable by
the Collateral Agent (including in its capacity as Australian Security Trustee) to such
Lender from any source against any amount due to the Collateral Agent under clause
28 (
Payment Mechanics
) and this paragraph 1.7.
- 175 -
(d) The undertaking in this paragraph 1.7 shall survive termination of the Commitments
of all Lenders, the payment of all other Obligations and the resignation of the Collateral
Agent.
1.8 Collateral Agent in its Individual Capacity
(a) Any Person serving as the Collateral 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 the Collateral Agent and the term “Lender” or “Lenders” shall, unless
otherwise expressly indicated or unless the context otherwise requires, include each
Person serving as the Collateral Agent hereunder in its individual capacity.
(b) The Collateral 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 Obligors and their respective Affiliates as though the
Collateral Agent were not the a Collateral Agent hereunder and without notice to or
consent of the Lenders. The Lenders acknowledge that, pursuant to such activities, the
Collateral Agent or their Affiliates may receive information regarding any Obligor or
any of its Affiliates (including information that may be subject to confidentiality
obligations in favor of such Obligor or such Affiliate) and acknowledge that the
Collateral Agent shall not be under any obligation to provide such information to them.
With respect to its Loans, the Collateral 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 a Collateral Agent, and the terms “Lender” and “Lenders” includes
the Collateral Agent, in its individual capacity.
(c) Each Lender understands that each Person serving as the Collateral Agent, acting in its
individual capacity, and its Affiliates (collectively, the “
Collateral
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 paragraph 1.8
as “
Activities
”) and may engage in the Activities with or on behalf of one or more of
the Obligors or their respective Affiliates. Furthermore, the Collateral 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
Obligors and their Affiliates and including holding, for its own account or on behalf of
others, equity, debt and similar positions in the Company, another Obligor 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 Obligors or their
Affiliates. Each Lender understands and agrees that in engaging in the Activities, the
Collateral Agent’s Group may receive or otherwise obtain information concerning the
Obligors or their Affiliates (including information concerning the ability of the
Obligors to perform their respective Obligations hereunder and under the other Finance
Documents) which information may not be available to any of the Lenders that are not
members of the Collateral Agent’s Group. The Collateral Agent nor any member of
the Collateral 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
- 176 -
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 Obligor or any Affiliate of any Obligor) or
to account for any revenue or profits obtained in connection with the Activities, except
that the Collateral Agent shall deliver or otherwise make available to each Lender such
documents as are expressly required by any Finance Document to be transmitted by the
Collateral Agent to the Lenders.
(d) Each Lender further understands that there may be situations where members of the
Collateral Agent’s Group or their respective customers (including the Obligors 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 Finance Documents). Each Lender agrees
that no member of the Collateral Agent’s Group is or shall be required to restrict its
activities as a result of the Person serving as the Collateral 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.
(e) None of:
(i) this Agreement nor any other Finance Document;
(ii) the receipt by the Collateral Agent’s Group of information (including Information)
concerning the Obligors or their Affiliates (including information concerning the
ability of the Obligors to perform their respective Obligations hereunder and
under the other Finance 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 the Collateral Agent or any
member of the Collateral Agent’s Group to any Lender including any such duty
that would prevent or restrict the Collateral Agent’s Group from acting on behalf
of customers (including the Obligors or their Affiliates) or for its own account.
1.9 Resignation by the Collateral Agent
(a) The Collateral Agent may resign as Collateral Agent upon 30 days’ prior notice to the
Lenders and the Borrowers.
(b) If the Collateral Agent resigns under this Agreement, the Majority Lenders shall
appoint from among the Lenders a successor agent for the Lenders (or such other Person
reasonably acceptable to the Company), which successor agent shall be consented to
by the Company at all times other than during the existence of an Event of Default
under Clause 21.7 (
Insolvency Proceedings
) (which consent of the Company shall not
be unreasonably withheld or delayed).
(c) The resigning Collateral Agent shall make available to the successor Collateral Agent
such documents and records and provide such assistance as the successor agent may
reasonably request for the purposes of performing its functions as Collateral Agent
- 177 -
under the Finance Documents. The Borrowers shall within 3 Business Days of demand,
reimburse the resigning Collateral 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.
(d) If no successor agent is appointed prior to the effective date of the resignation of the
Collateral Agent, the Collateral Agent may appoint, after consulting with the Lenders
and the Company, 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 Collateral Agent, and the term
“Collateral Agent” shall mean such successor agent and/or supplemental agent, as the
case may be, and the retiring Collateral Agent’s appointment, powers and duties as the
Collateral Agent shall be terminated. After the retiring Collateral Agent’s resignation
hereunder as Collateral Agent, the provisions of this Schedule 11, clause 15 (
Costs and
Expenses
) and clause 24.10 (
Lenders’ indemnity to the Agent
) shall inure to its benefit
as to any actions taken or omitted to be taken by it while it was Collateral Agent under
this Agreement.
(e) If no successor agent has accepted appointment as the Collateral Agent by the date
which is 30 days following the retiring Collateral Agent’s notice of resignation, the
retiring Collateral Agent’s resignation shall nevertheless thereupon become effective
and the Lenders shall perform all of the duties of the Collateral Agent hereunder until
such time, if any, as the Majority Lenders appoint a successor agent as provided for
above.
(f) Upon the acceptance of any appointment as 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 Majority Lenders may request, in order to:
(i) continue the perfection of the Security granted or purported to be granted by the
Collateral Documents; or
(ii) otherwise ensure that the requirements of clause 20.4 are (or continue to be)
satisfied,
the successor Collateral Agent shall thereupon succeed to and become vested with all
the rights, powers, discretion, privileges, and duties of the retiring Collateral
Agent, and the retiring Collateral Agent shall be discharged from its duties and
obligations under the Finance Documents (if not already discharged therefrom as
provided above in this paragraph 1.9).
(g) After the retiring Collateral Agent’s resignation hereunder as the Collateral Agent, the
provisions of this Schedule 11, clause 15 (
Costs and Expenses
) and clause 24.10
(
Lenders’ indemnity to the Agent
) shall continue in effect for its benefit in respect of
any actions taken or omitted to be taken by it while it was acting as the Collateral Agent.
- 178 -
1.10 Collateral and Guarantee Matters
(a) The Lenders irrevocably agree:
(i) that any Security on any property granted to or held by the Collateral Agent
(including, in its capacity as Australian Security Trustee) under any Finance
Document shall be automatically released;
(A) 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);
(B) at the time the property subject to such Security is transferred or to be
transferred as part of or in connection with any transfer permitted hereunder
or under any other Finance Document, other than any transfer to a Obligor;
and
(C) subject to clause 34 (
Amendments and waivers
), if the release of such
Security is approved, authorized or ratified in writing by the Majority
Lenders;
(ii) to release or subordinate any Security on any property granted to or held by the
Collateral Agent under any Finance Document to the holder of any Security on
such property that is permitted pursuant to paragraph (f) of the definition of
Permitted Lien; and
(b) Notwithstanding the foregoing, a release of Collateral that is ABL Priority Collateral
outside of the ordinary course of business, a subordination of the Security securing the
Obligations and a release of any Guarantor, in each case, shall be subject to the
Company delivering updated Borrowing Base Certificate demonstrating, after giving
effect to such release (including any prepayment or repayment of the Loans), the
Borrowing Base Undertaking is complied with.
(c) Upon request by the Collateral Agent at any time, the Majority 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 paragraph 1.10.
(d) In each case as specified in this paragraph 1.10, the Collateral Agent will promptly (and
each Lender irrevocably authorizes the Collateral Agent to), at the Company’s expense,
execute and deliver to the applicable Obligor such documents as such Obligor 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 Security Documents), or to evidence the release of such
Obligor from its obligations under any of the Finance Documents, in each case in
accordance with the terms of the Finance Documents and this paragraph 1.10.
1.11 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 Majority Lenders have been given to the Collateral Agent or as to the terms of
- 179 -
those instructions. As between an Obligor on the one hand and the Collateral Agent and
Lenders on the other, everything done by the Collateral Agent under or in relation to the
Finance Documents will be taken to be authorised.
1.12 Appointment of Supplemental Collateral Agents
(a) It is the purpose of this Agreement and the other Finance 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 recognized that in case of litigation under this Agreement or any of the other
Finance Documents, and in particular in case of the enforcement of any of the Finance
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 Finance 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 Collateral
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 Finance 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 Finance 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 Schedule 11, clause 15 (
Costs and Expenses
) and clause
24.10 (
Lenders’ indemnity to the Agent
) that refer to the Collateral Agent shall
inure to the benefit of such Supplemental 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 Obligor 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 Obligor
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
- 180 -
extent permitted by Law, shall vest in and be exercised by the Collateral Agent until
the appointment of a new Supplemental Collateral Agent.