US$205,000,000 Term Loan Facility US$25,000,000 Revolving Loan Facility FIRST AMENDMENT AGREEMENT dated 9 June 2023 for METALS ACQUISITION CORP. (AUSTRALIA) PTY LTD arranged by CITIBANK N.A., SYDNEY BRANCH and BANK OF MONTREAL acting as Mandated Lead...
Exhibit 10.3
US$205,000,000 Term Loan Facility
US$25,000,000 Revolving Loan Facility
FIRST AMENDMENT AGREEMENT dated 9 June 2023
for
METALS ACQUISITION CORP. (AUSTRALIA) PTY LTD
arranged by
CITIBANK N.A., SYDNEY BRANCH and BANK OF MONTREAL
acting as Mandated Lead Arrangers and Bookrunners
with
CITISECURITIES LIMITED
acting as Agent
Execution Version
page 1
| CONTENTS | |
| Clause | Page |
| 1. | Definitions and Interpretation | 2 |
| 2. | Amendment and Restatement | 2 |
| 3. | Remaining Provisions unaffected | 3 |
| 4. | Affirmation | 3 |
| 5. | Finance Document | 3 |
| 6. | Counterparts | 3 |
| 7. | Governing Law and Enforcement | 3 |
| Schedule 1 The Original Parties | 4 |
| Part I The Original Obligors | 4 |
| Part II The Original Lenders | 5 |
| Part III The Initial Account Banks | 6 |
| Schedule 2 Amended and Restated Facility Agreement | 7 |
page i
THIS FIRST AMENDMENT AGREEMENT is dated ________________ 2023 and made between:
| (1) | METALS ACQUISITION CORP, an exempted company incorporated in the Cayman Islands, company number 372802, of Suite ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ and METALS ACQUISITION LIMITED a company incorporated in Jersey with registration number 144625, of 3rd Floor, ▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇, ▇▇▇▇▇▇ (each the "Company"); |
| (2) | THE ENTITY listed in Part I of Schedule 1 as borrower ("Borrower"); |
| (3) | THE ENTITIES listed in Part I of Schedule 1 as original guarantors (together with the Company the "Original Guarantors"); |
| (4) | CITIBANK N.A., SYDNEY BRANCH (ABN 34 072 814 058) and BANK OF MONTREAL as mandated lead arrangers and bookrunners (whether acting individually or together the "Arranger"); |
| (5) | THE ENTITIES listed in Part III of Schedule 1 as initial account banks (the "Initial Account Banks"); |
| (6) | THE ENTITIES listed in Part II of Schedule 1 as lenders ("Original Lenders"); and |
| (7) | CITISECURITIES LIMITED (ABN 51 ▇▇▇ ▇▇▇ ▇▇▇) (the "Agent"). |
IT IS AGREED as follows:
| A | The parties to this Deed (each a Party) are parties to a Facility Agreement dated 28 February 2023 (the Facility Agreement). |
| B | The Parties wish to amend and restate the Facility Agreement in the manner set out in this Deed. |
It is agreed as follows.
| 1. | Definitions and Interpretation |
| 1.1 | Definitions |
Definitions in the Facility Agreement (as amended and restated under this Deed) apply in this Deed unless the context requires otherwise or the relevant term is defined in this Deed.
Amendment Date means the date of this Deed.
| 1.2 | Interpretation |
Clause 1.2 (Construction) of the Facility Agreement applies in this Deed as if set out in full in this Deed and as if references in that clause to "this agreement" were to this Deed.
| 2. | Amendment and Restatement |
The Parties agree that, with effect on and from the Amendment Date, the Facility Agreement is amended and restated as set out in Schedule 2 to this Deed.
page 2
| 3. | Remaining Provisions unaffected |
Except as specifically amended by this Deed:
| (a) | The provisions of the Facility Agreement remain in full force and effect; |
| (b) | The amendment of the Facility Agreement does not affect the enforceability or validity of the Finance Documents; and |
| (c) | nothing in this Deed: |
| (i) | prejudices or adversely affects any right, power, authority, discretion or remedy arising under the Finance Documents before the Amendment Date; or |
| (ii) | discharges, releases or otherwise affects any liability or obligation arising under any Finance Document before the Amendment Date. |
| (d) | Each Party remains entitled to and bound by their respective rights and obligations under the Finance Documents. |
| 4. | Affirmation |
On the Amendment Date, each Obligor makes each Repeating Representation with reference to the facts and circumstances subsisting on the Amendment Date.
| 5. | Finance Document |
This Deed is a Finance Document.
| 6. | Counterparts |
This Deed may be executed in any number of counterparts, each executed by one or more parties. A party may do this by executing and electronically transmitting a copy to one or more others or their representative. All counterparts together will be taken to constitute one instrument.
| 7. | Governing Law and Enforcement |
Clauses 50 (Governing Law) and 51 (Enforcement) of the Facility Agreement are incorporated in this Deed as if set out in full in this Deed and as if references in those clauses to "this agreement" were to this Deed.
page 3
Schedule 1
The Original Parties
Part I
The Original Obligors
| Name of Borrower | ABN/ACN/ARBN | Address for Service of Notice | ||
| Metals Acquisition Corp. (Australia) Pty Ltd | ACN 657 799 758 |
c/o Squire ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Level ▇▇.▇▇▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇
Email: ▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇ | ||
| Name of Original Guarantor | ABN/ACN/ARBN/Registration number | Address for Service of Notice | ||
| Metals Acquisition Corp (an exempted company incorporated in the Cayman Islands) | 372802 (Cayman Islands) |
Suite ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇,
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Email: | ||
| Metals Acquisition Limited, (a company incorporated in Jersey) | 144625 (Jersey) |
3rd Floor, ▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇,
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Email: |
page 4
Part II
The Original Lenders
| Name of Original Lender |
Facility A (US$) |
Facility B (US$) |
Address for Service of Notice |
| Citibank, N.A., Sydney Branch (ABN 34 072 814 058) | 53,500,000 | 6,500,000 | Level 23, ▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇, ▇▇▇▇ |
| BMO ▇▇▇▇▇▇ Bank N.A. | 53,500,000 | 6,500,000 | ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇, ▇▇▇ ▇▇▇ |
| National Bank of Canada | 49,000,000 | 6,000,000 | ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇ |
| The Bank of Nova Scotia, Australia Branch (ABN: 34 133 513 827) | 49,000,000 | 6,000,000 | Suite 2, Level 44, ▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ |
| Total | 205,000,000 | 25,000,000 |
page 5
Part III
The Initial Account Banks
| Name | Address for Service of Notice | |
| Citibank, N.A., Sydney Branch (ABN 34 072 814 058) | Address: | Level ▇▇, ▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ |
| Email: | ▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇.▇▇▇;
▇▇▇▇▇.▇▇▇▇@▇▇▇▇.▇▇▇; ▇▇▇▇▇.▇▇▇@▇▇▇▇.▇▇▇ | |
| Telephone: | ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ / 2066 /1838 | |
| Attention: ▇▇▇▇▇ ▇▇▇▇ / ▇▇▇▇▇ ▇▇▇▇▇ / ▇▇▇▇▇ ▇▇▇ | ||
| Address for Service of Notice | ||
| Citibank, N.A., Jersey Branch | Address: | ▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ |
| Email: | ▇▇.▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇; ▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇ | |
| Telephone: | + ▇▇▇ ▇ ▇▇▇ ▇▇▇▇ / ▇▇▇▇ ▇ ▇▇▇ ▇▇▇▇ | |
| Attention: Specialised Agency Team | ||
page 6
Schedule 2 Amended and Restated Facility Agreement
page 7
Each attorney executing this Deed states that he or she has no notice of the revocation or suspension of his or her power of attorney.
Executed and delivered as a Deed
The Agent
| SIGNED, SEALED AND DELIVERED by | |
| by CITISECURITIES LIMITED as Senior Agent by its duly authorised signatories | /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ |
| Signature | |
| ▇▇▇▇ ▇▇▇▇▇▇▇ | |
| Name |
| /s/ ▇▇▇ ▇▇▇▇ | ||
| Signature | ||
| ▇▇▇ ▇▇▇▇ | /s/ ▇▇▇▇▇ ▇▇▇ | |
| Name | Witness Signature | |
| ▇▇▇▇▇ ▇▇▇ | ||
| Witness Name |
| /s/ ▇▇▇▇▇ ▇▇▇ | |
| Witness Signature | |
| ▇▇▇▇▇ ▇▇▇ | |
| Witness Name |
page 8
The Arrangers
| SIGNED, SEALED AND DELIVERED by | ) | /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ |
| ) | Director | |
| as authorised signatory for Bank of Montreal | ) | |
| in the presence of: | ) | |
| ) | ||
| Signature of witness | ) | |
| ) | /s/ ▇▇▇▇▇ ▇▇▇▇ | |
| Name of witness (block letters) | ) | Vice President Corporate Banking |
| ) | ||
| ) |
page 9
SIGNED, SEALED AND DELIVERED for and on behalf of
CITIBANK, N.A., SYDNEY BRANCH
(ABN 34 072 814 058) by its authorised signatories:
| /s/ ▇▇▇ ▇▇▇▇ | /s/ ▇▇▇▇▇ ▇▇▇▇ | |
| Signature of Authorised Signatory | Signature of Authorised Signatory | |
| ▇▇▇ ▇▇▇▇ | ▇▇▇▇▇ ▇▇▇▇ | |
| Name of Authorised Signatory | Name of Authorised Signatory | |
| /s/ ▇▇▇▇▇ ▇▇▇ | /s/ ▇▇▇▇▇ ▇▇▇ | |
| Witness Signature | Witness Signature | |
| ▇▇▇▇▇ ▇▇▇ | ▇▇▇▇▇ ▇▇▇ | |
| Witness Name | Witness Name |
page 10
The Initial Account Banks
SIGNED, SEALED AND DELIVERED for and on behalf of
CITIBANK, N.A., SYDNEY BRANCH
(ABN 34 072 814 058) by its authorised signatories:
| /s/ ▇▇▇ ▇▇▇▇ | /s/ ▇▇▇▇▇ ▇▇▇▇ | |
| Signature of Authorised Signatory | Signature of Authorised Signatory | |
| ▇▇▇ ▇▇▇▇ | ▇▇▇▇▇ ▇▇▇▇ | |
| Name of Authorised Signatory | Name of Authorised Signatory | |
| /s/ ▇▇▇▇▇ ▇▇▇ | /s/ ▇▇▇▇▇ ▇▇▇ | |
| Witness Signature | Witness Signature | |
| ▇▇▇▇▇ ▇▇▇ | ▇▇▇▇▇ ▇▇▇ | |
| Witness Name | Witness Name |
page 11
SIGNED, SEALED AND DELIVERED for and on behalf of
CITIBANK, N.A., JERSEY BRANCH
by its delegated signatory:
| /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ | /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ | |
| Witness Signature | Signature of delegated signatory | |
| ▇▇▇▇▇ ▇▇▇▇▇▇▇, Vice president | ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Senior Vice President | |
| Witness Name | Name of delegated signatory |
page 12
Original Lenders
| SIGNED, SEALED AND DELIVERED by | ) | |
| ) | /s/ ▇▇▇▇▇ ▇▇▇▇ | |
| ) | ▇▇▇▇▇ ▇▇▇▇, Vice President Corporate Banking | |
| as authorised signatory for BMO ▇▇▇▇▇▇ BANK N.A. | ) | |
| in the presence of: | ) | |
| ) | ||
| Signature of witness | ) | |
| /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ | ||
| ) | ||
| ▇▇▇▇▇▇ ▇▇▇▇▇▇, Director | ||
| Name of witness (block letters) | ) | |
| ) |
page 13
SIGNED, SEALED AND DELIVERED for and on behalf of
CITIBANK, N.A., SYDNEY BRANCH
(ABN 34 072 814 058) by its authorised signatories:
| /s/ ▇▇▇ ▇▇▇▇ | /s/ ▇▇▇▇▇ ▇▇▇▇ | |
| Signature of Authorised Signatory | Signature of Authorised Signatory | |
| ▇▇▇ ▇▇▇▇ | ▇▇▇▇▇ ▇▇▇▇ | |
| Name of Authorised Signatory | Name of Authorised Signatory | |
| /s/ ▇▇▇▇▇ ▇▇▇ | /s/ ▇▇▇▇▇ ▇▇▇ | |
| Witness Signature | Witness Signature | |
| ▇▇▇▇▇ ▇▇▇ | ▇▇▇▇▇ ▇▇▇ | |
| Witness Name | Witness Name |
page 14
SIGNED, SEALED AND DELIVERED for
and
on behalf of
The Bank of Nova Scotia, Australia Branch
| /s/ ▇▇▇▇▇▇ ▇▇▇▇ | /s/ ▇▇▇ ▇▇▇▇▇▇▇▇ | |
| Witness Signature | Attorney / Authorised Signatory | |
| ▇▇▇▇▇▇ ▇▇▇▇ | ▇▇▇ ▇▇▇▇▇▇▇▇ | |
| Witness Name | Name |
page 15
SIGNED, SEALED AND DELIVERED for and on
behalf of National Bank of Canada by its authorised
signatories:
| /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ | /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ | |
| Authorised Signatory | Authorised Signatory | |
| ▇▇▇▇▇ ▇▇▇▇▇▇▇ | ▇▇▇▇▇ ▇▇▇▇▇▇ | |
| Name | Name | |
| /s/ ▇▇▇▇▇▇ ▇▇▇▇ | /s/ ▇▇▇▇▇▇ ▇▇▇▇ | |
| Witness Signature | Witness Signature | |
| ▇▇▇▇▇▇ ▇▇▇▇ | ▇▇▇▇▇▇ ▇▇▇▇ | |
| Witness Name | Witness Name |
page 16
The Borrower
| SIGNED, SEALED AND DELIVERED | ) | |
| by Metals Acquisition Corp. | ) | |
| (Australia) Pty Ltd (ACN 657 799 758) | ) | |
| in accordance with section 127(1) of | ) | |
| the Corporations Act 2001 (Cth) by | ) | |
| authority of its directors: | ) | |
| ) | ||
| /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | ) | /s/ ▇▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇ |
| ) | ||
| Signature of director | ) | Signature of director/company secretary* |
| ) | *delete whichever is not applicable | |
| ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | ) | |
| Name of director (block letters) | ) | ▇▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇ |
| ) | Name of director/company secretary* | |
| ) | (block letters) | |
| ) | *delete whichever is not applicable |
page 17
The Original Guarantors/the Company
| SIGNED, SEALED AND | ) | |
| DELIVERED by Metals | ) | |
| Acquisition Limited in the presence | ) | Seal |
| of: | ) | |
| ) | ||
| ) | ||
| /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | ) | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ |
| Signature of witness | ) | Signature of authorised signatory |
| ) | ||
| ) | ||
| ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | ) | ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ |
| Name of witness (Block Letters) | ) | Name of authorised signatory (Block Letters) |
| SIGNED, SEALED AND | ) | |
| DELIVERED by Metals | ) | |
| Acquisition Corp in the presence of: | ) | Seal |
| ) | ||
| ) | ||
| /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | ) | |
| Signature of witness | ) | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ |
| ) | Signature of authorised signatory | |
| ) | ||
| ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | ) | |
| Name of witness (Block Letters) | ) | ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ |
| ) | Name of authorised signatory (Block Letters) |
page 18