Exhibit (b)(1)
CONFORMED
COPY
Dated
18 August 2011
US$7,500,000,000
MULTICURRENCY TERM AND REVOLVING FACILITIES
AND SUBSCRIPTION AGREEMENT
for
BHP BILLITON PLC AND BHP BILLITON LIMITED
as the Companies
with
THE FINANCIAL INSTITUTIONS
listed in Part 2 and Part 3 of Schedule 1
as Original Lenders
BARCLAYS BANK PLC
acting as Facility Agent
BARCLAYS BANK PLC
acting as Dollar Swingline Agent
BARCLAYS BANK PLC
acting as Euro Swingline Agent
and
THE FINANCIAL INSTITUTIONS
listed in Part 4 of Schedule 1
as Mandated Lead Arrangers
509056645
CONTENTS
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Clause |
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1. DEFINITIONS AND INTERPRETATION |
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1 |
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2. THE FACILITIES |
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27 |
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3. PURPOSE |
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29 |
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4. CONDITIONS OF UTILISATION |
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30 |
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5. UTILISATION — LOANS |
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31 |
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6. UTILISATION — SWINGLINE LOANS |
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33 |
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7. SWINGLINE LOANS |
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38 |
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8. SUBSCRIPTION AND ISSUE OF NOTES |
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41 |
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9. PUBLIC OFFERS |
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42 |
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10. REGISTER OF NOTES |
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43 |
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11. OPTIONAL CURRENCIES |
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45 |
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12. REPAYMENT |
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46 |
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13. PREPAYMENT AND CANCELLATION |
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48 |
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14. INTEREST |
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57 |
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15. INTEREST PERIODS |
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59 |
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16. CHANGES TO THE CALCULATION OF INTEREST |
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60 |
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17. FEES |
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62 |
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18. TAX GROSS UP AND INDEMNITIES |
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63 |
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19. INCREASED COSTS |
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67 |
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20. OTHER INDEMNITIES |
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69 |
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21. MITIGATION BY THE LENDERS |
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70 |
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22. COSTS AND EXPENSES |
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71 |
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23. GUARANTEE AND INDEMNITY BY THE COMPANIES |
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71 |
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Clause |
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Page |
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24. REPRESENTATIONS |
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74 |
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25. INFORMATION UNDERTAKINGS |
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77 |
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26. FINANCIAL COVENANT |
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80 |
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27. GENERAL UNDERTAKINGS |
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83 |
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28. ACQUISITION UNDERTAKINGS |
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89 |
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29. EVENTS OF XXXXXXX |
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00 |
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00. CHANGES TO THE LENDERS |
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95 |
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31. CONFIDENTIALITY AND DISCLOSURE OF INFORMATION |
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100 |
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32. CHANGES TO THE OBLIGORS |
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102 |
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33. ROLE OF THE AGENTS AND THE MANDATED LEAD ARRANGERS |
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103 |
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34. CONDUCT OF BUSINESS BY THE FINANCE PARTIES |
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111 |
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35. SHARING AMONG THE LENDERS |
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111 |
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36. PAYMENT MECHANICS |
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113 |
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37. SET—OFF |
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117 |
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38. NOTICES |
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117 |
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39. USA PATRIOT ACT |
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120 |
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40. CALCULATIONS AND CERTIFICATES |
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120 |
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41. PARTIAL INVALIDITY |
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120 |
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42. REMEDIES AND WAIVERS |
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120 |
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43. AMENDMENTS AND WAIVERS |
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121 |
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44. COUNTERPARTS |
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126 |
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45. GOVERNING LAW |
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127 |
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46. ENFORCEMENT |
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127 |
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Page |
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Schedule |
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Schedule 1 The Original Parties |
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128 |
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Schedule 2 Conditions Precedent |
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135 |
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Schedule 3 Form of Requests |
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142 |
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Schedule 4 Mandatory Cost Formulae |
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145 |
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Schedule 5 Form of Transfer Certificate |
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148 |
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Schedule 6 Form of Accession Letter |
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150 |
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Schedule 7 Form of Resignation Letter |
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152 |
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Schedule 8 Form of Compliance Certificate |
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153 |
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Schedule 9 Timetables |
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154 |
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Schedule 10 Form of Note Deed Poll |
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157 |
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Schedule 11 Alternative Reference Banks |
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162 |
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Schedule 12 Contact Details |
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163 |
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Schedule 13 Form of Confidentiality Undertaking |
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165 |
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Schedule 14 Form of Increase Confirmation |
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171 |
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THIS AGREEMENT is dated 18 August 2011 and made:
BETWEEN:
(1) |
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BHP BILLITON PLC (registered number 03196209) and BHP BILLITON LIMITED (ABN 49 004 028 077)
as the parent companies (the Companies and each a Company); |
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(2) |
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THE COMPANIES listed in Part 1 of Schedule 1 (The Original Parties) as original borrowers
(the Original Borrowers); |
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(3) |
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THE FINANCIAL INSTITUTIONS listed in Part 2 and Part 3 of Schedule 1 (The Original Parties)
as lenders (the Original Lenders); |
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(4) |
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BARCLAYS BANK PLC as facility agent for the other Finance Parties (the Facility Agent); |
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(5) |
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BARCLAYS BANK PLC as US Dollar swingline agent for the other Finance Parties (the Dollar
Swingline Agent); |
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(6) |
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BARCLAYS BANK PLC as euro swingline agent for the other Finance Parties (the Euro Swingline
Agent); and |
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(7) |
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THE FINANCIAL INSTITUTIONS listed in Part 4 of Schedule 1 (The Original Parties) as mandated
lead arrangers and bookrunners (the Mandated Lead Arrangers). |
IT IS AGREED as follows:
1. |
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DEFINITIONS AND INTERPRETATION |
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1.1 |
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Definitions |
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In this Agreement: |
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Accession Letter means a document substantially in the form set out in Schedule 6 (Form Of
Accession Letter). |
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Acquisition means the acquisition by the Companies (or either of them or a wholly-owned
Subsidiary of either of them (including Bidco)) of more than 50 per cent. of the Target
Shares by way of (a) a tender offer and second-step merger, and/or (b) one-step merger,
and/or (c) any other structure that the Companies may elect in their sole discretion to
employ, or any combination of any of the foregoing, in each case whether recommended or not
by the board of directors of the Target. |
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Acquisition Costs means all fees, costs and expenses, stamp, registration and other Taxes
incurred by the Companies or any other member of the Group in connection with the
Acquisition and/or the Finance Documents. |
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Acquisition Documents means all agreements, documents and/or filings setting out the
material terms applicable to the Acquisition pursuant to which the Acquisition is |
2
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effected (or proposed to be effected), including (as applicable) the Merger Agreement, any
proxy statement, any tender offer statement on schedule TO (together with all exhibits
thereto) filed pursuant to Rule 14d-3 under the US Securities Exchange Act of 1934 (as
amended) and any other solicitation materials used in connection with the Acquisition. |
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Acquisition Loan means a Loan made for the purpose referred to in Clause 3.1(a)(i)
(Purpose). |
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Additional Borrower means a company which becomes an Additional Borrower in accordance with
Clause 32.2 (Additional Borrowers). |
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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. Notwithstanding the
foregoing, in relation to The Royal Bank of Scotland plc, the term “Affiliate” shall not
include (i) the UK government or any member or instrumentality thereof, including Her
Majesty’s Treasury and UK Financial Investments Limited (or any directors, officers,
employees or entities thereof) or (ii) any persons or entities controlled by or under
common control with the UK government or any member or instrumentality thereof (including
Her Majesty’s Treasury and UK Financial Investments Limited) and which are not part of The
Royal Bank of Scotland plc and its subsidiaries or subsidiary undertakings. |
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Agent means the Facility Agent, the Dollar Swingline Agent or the Euro Swingline Agent. |
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Alternative Market Disruption Event has the meaning given to it in Clause 16.2 (Market
disruption). |
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Alternative Reference Bank Rate has the meaning given to that term in Clause 16.3
(Alternative Reference Bank Rate). |
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Alternative Reference Banks means, in relation to a Loan in a currency other than euro, the
principal London offices of the banks listed in Part I of Schedule 11 (Alternative
Reference Banks) and, in relation to a Loan in euro, the principal office in London of the
banks listed in Part II of Schedule 11 (Alternative Reference Banks), or such other banks
as may be appointed by the Facility Agent in consultation with the Obligors’ Agent. |
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Associate has the meaning given to it in section 128F(9) of the Australian Tax Act. |
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Australian Borrower means each of Limited and BHP Billiton Finance Limited and any
Additional Borrower that is a resident of Australia under the Australian Tax Act or that
carries on a business in Australia through a permanent establishment with which its
obligations under this Agreement would be connected. |
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Australian Loan means a Loan to an Australian Borrower made in accordance with Clause 8
(Subscription And Issue Of Notes). |
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Australian Obligor means an Obligor that is a resident of Australia under the Australian
Tax Act or that carries on a business in Australia through a permanent establishment with
which its obligations under this Agreement would be connected. |
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Australian Tax Act means the Income Tax Assessment Acts of 1936 and 1997 of the
Commonwealth of Australia, jointly, as applicable. |
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Authorisation means an authorisation, consent, approval, resolution, licence, exemption,
filing or registration. |
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Authorised Signatory means: |
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(a) |
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in respect of a Company, any of its group treasurer, company secretary, chief
financial officer, group financial controller or directors (or, in each case, any
position which replaces any of the foregoing); and |
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(b) |
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in respect of any other member of the Group, any of its company secretary or
directors. |
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Availability Period means: |
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(a) |
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in relation to the Term Facility, the period from and including the date of
this Agreement to and including the date falling six Months after the date of this
Agreement; and |
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(b) |
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in relation to the Revolving Facility (including the Swingline Facilities),
the period from and including the date of this Agreement to but excluding the Final
Maturity Date. |
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Available Commitment means, in relation to a Facility, a Lender’s Commitment under that
Facility minus: |
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(a) |
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the Base Currency Amount of its participation in any outstanding Loans under
that Facility; and |
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(b) |
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in relation to calculating the Available Commitment for the purpose of a
proposed Loan, the Base Currency Amount of its participation in any other Loans that
are due to be made under that Facility on or before the proposed Utilisation Date, |
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other than, in relation to calculating the Available Commitment for the purpose of a
proposed Loan under the Revolving Facility only, that Lender’s participation in any
Revolving Facility Loans that are due to be repaid or prepaid on or before the proposed
Utilisation Date. |
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Available Facility means, in relation to a Facility, the aggregate for the time being of
each Lender’s Available Commitment in respect of that Facility. |
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Bank Levies has the meaning given to it in Clause 18.4(b)(i)(C) (Tax indemnity) and Bank
Levy shall mean any one of such Bank Levies. |
4
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Base Currency means US Dollars. |
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Base Currency Amount means, in relation to a Loan, the amount specified in the Utilisation
Request delivered by a Borrower (or the Obligors’ Agent on its behalf) for that Loan (or,
if the amount requested is not denominated in the Base Currency, that amount converted into
the Base Currency at the Facility Agent’s Spot Rate of Exchange on the date which is three
Business Days before the Utilisation Date or, if later, on the date the Facility Agent
receives the Utilisation Request) adjusted to reflect any repayment, prepayment,
consolidation or division of the Loan. |
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BHP Billiton Group means the Group other than any member of the Target Group. |
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Bidco means North America Holdings II Inc., a wholly-owned Subsidiary of Limited
incorporated in the state of Delaware, the United States of America. |
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Borrower means an Original Borrower or an Additional Borrower, unless it has ceased to be a
Borrower in accordance with Clause 32 (Changes To The Obligors). |
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Break Costs means the amount (if any) by which: |
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(a) |
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the interest (excluding the Margin) which a Lender should have received for
the period from the date of receipt of all or any part of its participation in a Loan
or Unpaid Sum to the last day of the current Interest Period in respect of that Loan
or Unpaid Sum, had the principal amount or Unpaid Sum received been paid on the last
day of that Interest Period; |
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exceeds: |
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(b) |
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the amount which that Lender would be able to obtain by placing an amount
equal to the principal amount or Unpaid Sum received by it on deposit with a leading
bank in the Relevant Interbank Market for a period starting on the Business Day
following receipt or recovery and ending on the last day of the current Interest
Period in respect of that Loan or Unpaid Sum. |
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Business Day means a day (other than a Saturday or Sunday) on which banks are open for
general business in Melbourne, Sydney and London and: |
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(a) |
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(in relation to any date for payment or purchase of a currency other than
euro) the principal financial centre of the country of that currency; or |
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(b) |
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(in relation to any date for payment or purchase of euro) which is a TARGET
Day. |
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Closing Date means the first date (if any) on which the Companies (or either of them or a
wholly-owned Subsidiary of either of them (including Bidco)) own(s) or are/is first
unconditionally entitled to receive more than 50 per cent. of the Target Shares. |
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Code means the United States Internal Revenue Code of 1986. |
5
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Commitment means a Term Facility Commitment, a Revolving Facility Commitment or a Swingline
Commitment. |
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Committed Currencies means: |
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(a) |
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in respect of the Term Facility, US Dollars; and |
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(b) |
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in respect of the Revolving Facility, US Dollars, Sterling, euro and
Australian Dollars. |
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Company Parent Guarantees means the deed poll guarantees of the Companies, each dated 29
June 2001, and any deed poll guarantee entered into by the New Holding Company or Limited
as contemplated by Clause 43.7 (New Holding Company). |
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Compliance Certificate means a certificate substantially in the form set out in Schedule 8
(Form Of Compliance Certificate). |
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Confidential Information means any information relating to an Obligor, the Companies, the
Group, the Acquisition, the Finance Documents or the Facilities (including, without
limitation, the Information Pack) provided to a Finance Party by (i) any member of the
Group or any of their advisers, or (ii) another Finance Party or any of its Affiliates or
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: |
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(a) |
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is or becomes public knowledge other than as a direct or indirect result of
any breach by that Finance Party of Clause 31 (Confidentiality And Disclosure Of
Information); or |
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(b) |
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either: |
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(i) |
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is known by that Finance Party before the date the
information is disclosed to it by any member of the Group or any of their
advisers or by another Finance Party or any of its Affiliates or advisers; or |
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(ii) |
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is lawfully obtained by that Finance Party after that date,
other than from (A) any member of the Group or any of its advisers, or (B)
another Finance Party or any of its Affiliates or advisers, |
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and which, in either case, as far as that Finance Party is aware, has not been
obtained in violation of, and is not otherwise subject to, any obligation of
confidentiality. |
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Confidentiality Undertaking means a confidentiality undertaking substantially in the form
set out in Schedule 13 (Form Of Confidentiality Undertaking) or in any other form agreed
between the Obligors’ Agent and the Facility Agent. |
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Corporations Act means the Corporations Xxx 0000 (Cth) of Australia. |
6
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Credit Rating means the corporate long term credit rating of the unsecured and
unsubordinated debt obligations of the Companies given by S&P or Xxxxx’x. |
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Dangerous Substance means any radioactive emissions and any natural or artificial substance
(whether in the form of a solid, liquid, gas or vapour, capable of being recycled or
recovered or of any value or not), the generation, transportation, storage, treatment, use
or disposal of which (whether alone or in combination with any other substance) gives rise
to a risk of causing harm to man or other living organism or causing damage to the
Environment or public health or welfare, including (without limitation) any controlled,
special, hazardous, toxic, radioactive or dangerous waste. |
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Default means an Event of Default or any event or circumstance specified in Clause 29
(Events Of Default) which would (with the passage of time or the giving of notice or any
combination of any of the foregoing) be an Event of Default. |
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Defaulting Lender means any Lender: |
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(a) |
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which has failed to make its participation in a Loan available or has
notified the Facility Agent or any member of the Group, or has publicly announced,
that it will not make its participation in a Loan available by the Utilisation Date of
that Loan in accordance with Clause 5.4 (Lenders’ participation); |
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(b) |
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which has otherwise rescinded or repudiated a Finance Document; or |
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(c) |
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with respect to which an Insolvency Event has occurred and is continuing, |
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unless, in the case of paragraph (a) above: |
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(i) |
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its failure to pay is caused by: |
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(A) |
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administrative or technical error; or |
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(B) |
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a Disruption Event, |
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and payment is made within three Business Days of its due date;
or |
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(ii) |
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the Lender is disputing in good faith whether it is contractually obliged to
make the payment in question. |
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Disruption Event means either or both of: |
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(a) |
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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 |
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(b) |
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the occurrence of any other event which results in a disruption (including,
without limitation, disruption of a technical or systems-related nature) to the |
7
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treasury or payments operations of a Party preventing or seriously inhibiting that,
or any other Party: |
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(i) |
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from performing its payment obligations under the Finance
Documents; or |
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(ii) |
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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. |
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Dollar Swingline Facility means the US Dollar swingline loan facility made available under
this Agreement as described in Clause 7 (Swingline Loans). |
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Dollar Swingline Lender means: |
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(a) |
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an Original Lender or an Affiliate of an Original Lender listed in Part 3 of
Schedule 1 (The Original Parties) as a Dollar Swingline Lender; or |
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(b) |
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any other person that becomes a Dollar Swingline Lender after the date of
this Agreement in accordance with Clause 30 (Changes To The Lenders). |
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Dollar Swingline Loan means a loan made or to be made under the Dollar Swingline Facility
or the principal amount outstanding for the time being of that loan. |
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Environment means the media of land, air and water and includes human beings and other
living organisms and natural systems supported by those media. |
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Environmental Law means any law or regulation in force for the time being in any
jurisdiction in which a member of the Group carries on business and which is binding and
enforceable against that member of the Group concerning the generation, transportation,
storage, treatment, use, processing or disposal of Dangerous Substances or otherwise
concerning the protection of the Environment. |
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ERISA means the United States Employee Retirement Income Security Act of 1974. |
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ERISA Affiliate means, with respect to any person, any person that is a member of a
“controlled group of corporations” with, or is under “common control” with, or is a member
of an “affiliated service group” with, such person, as defined in section 414 of the Code,
or is otherwise required to be aggregated with such person under section 414(o) of the
Code. |
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EURIBOR means, in relation to any Loan or Unpaid Sum in euro: |
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(a) |
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the applicable Screen Rate; or |
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(b) |
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(if no Screen Rate is available for the Interest Period of that Loan or
Unpaid Sum) the arithmetic mean of the rates (rounded upwards to four decimal places)
as supplied to the Facility Agent at its request quoted by the Reference Banks to
leading banks in the European interbank market, |
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as of the Specified Time on the Quotation Day for the offering of deposits in euro for a
period comparable to the Interest Period of the relevant Loan or Unpaid Sum. |
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Euro Swingline Facility means the euro swingline loan facility made available under this
Agreement as described in Clause 7 (Swingline Loans). |
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Euro Swingline Lender means: |
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(a) |
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an Original Lender or an Affiliate of an Original Lender listed in Part 3 of
Schedule 1 (The Original Parties) as a Euro Swingline Lender; or |
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(b) |
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any other person that becomes a Euro Swingline Lender after the date of this
Agreement in accordance with Clause 30 (Changes To The Lenders). |
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Euro Swingline Loan means a loan made or to be made under the Euro Swingline Facility or
the principal amount outstanding for the time being of that loan. |
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Event of Default means any event or circumstance specified as such in Clause 29 (Events Of
Default). |
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Excluded Subsidiary means: |
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(a) |
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any Non-Recourse Project Company; and |
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(b) |
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for so long as such entities’ Financial Indebtedness does not retain the
benefit in any material manner from any guarantee, bond, security (other than any
security over the shares or other ownership interests in, or debts or other
obligations of, any such entity or any other Excluded Subsidiary which has rights or
liabilities in relation to the same project, partnership or other similar
arrangement), indemnity or other commitment from another member of the Group (other
than a Joint Venture or Non-Recourse Project Company) to assure the repayment of, or
indemnify against loss in respect of non-payment of, that Financial Indebtedness: |
|
(i) |
|
Xxxxxxxx Bay Minerals (comprising Tisand (Pty) Limited and
Xxxxxxxx Bay Iron and Titanium (Pty) Limited); and |
|
(ii) |
|
the partnership named Newcastle Coal Infrastructure Group. |
|
|
Facility means the Term Facility or the Revolving Facility (including the Dollar Swingline
Facility and the Euro Swingline Facility). |
|
|
|
Facility Agent’s Spot Rate of Exchange means the Facility Agent’s spot rate of exchange for
the purchase of the relevant currency with the Base Currency in the London foreign
exchange market at or about 11.00 a.m. on a particular day. |
|
|
|
Facility Office means the office or offices notified by a Lender to the Facility Agent in
writing on or before the date it becomes a Lender (or, following that date, by not
less than five Business Days’ written notice) as the office or offices through which
it will perform its obligations under this Agreement. |
9
|
|
Fee Letter means (a) each letter dated on or about the date of this Agreement
between (i) the Facility Agent and the Original Borrowers, or (ii) the Mandated Lead
Arrangers and the Original Borrowers, setting out any of the fees referred to in
Clause 17 (Fees); and (b) any letter dated on or about the date of any increase in
Commitments which takes place in accordance with Clause 2.2 (Increase) between an
Increase Lender and the Original Borrowers setting out the fees (if any) referred to
in Clause 2.2(e) (Increase). |
|
|
|
Final Maturity Date means the date in the UK falling 364 days from the date in the UK on
which the first Loan is made under this Agreement (which, for the avoidance of doubt, shall
not fall later than six Months and 364 days after the date of this Agreement in the UK). |
|
|
|
Finance Company means: |
|
(a) |
|
BHP Billiton Finance Plc, BHP Billiton Finance Limited, BHP Billiton Finance
USA Limited, BHP Billiton Finance B.V. and BHP Billiton Finance USA B.V., provided
that no such company incorporates or acquires any Subsidiaries (other than a Finance
Company satisfying the conditions set out in paragraph (b) below) or operating
businesses or assets (other than assets referred to in paragraph (b)(iii) below) after
the date of this Agreement; and |
|
(b) |
|
any other member of the Group the creditors of whose Financial Indebtedness
do not benefit from a guarantee from any other member of the Group (other than the
Companies): |
|
(i) |
|
the only material activity of which is raising finance and
associated activities (including, without limitation, derivative and hedging
transactions, hedging interest rate and foreign exchange exposures of the
Group (including arising from commodity trading)) for use in the Group; |
|
|
(ii) |
|
which is not an operating company; and |
|
|
(iii) |
|
which does not have any assets other than: |
|
(A) |
|
receivables from loans made by it to any member of the Group; |
|
|
(B) |
|
shares in other Finance Companies; |
|
|
(C) |
|
receivables from any derivative and hedging
transactions entered into by it; |
|
|
(D) |
|
cash and bank deposits; or |
|
|
(E) |
|
any other immaterial assets (excluding
shares) associated with acting as a finance raising company for the
Group. |
10
|
|
Finance Document means this Agreement, any Fee Letter, any Accession Letter, any
Resignation Letter, any Note Deed Poll, any Note and any other document designated as
such by the Facility Agent and the Obligors’ Agent in writing. |
|
|
|
Finance Party means a Mandated Lead Arranger, the Facility Agent, the Dollar Swingline
Agent, the Euro Swingline Agent or a Lender. |
|
|
|
Financial Indebtedness of any person means (without double-counting): |
|
(a) |
|
all indebtedness of that person for borrowed money; |
|
|
(b) |
|
all indebtedness under any acceptance credit opened on behalf of that person; |
|
|
(c) |
|
all indebtedness of that person under any debenture, note, bond or other debt
security; |
|
|
(d) |
|
all indebtedness of that person for money owing in respect of any interest
rate or currency swap or forward currency sale or purchase or contract for differences
or other form of interest or currency hedging transaction or option as to any of these
(including without limit caps, collars and floors); |
|
|
(e) |
|
all payment obligations of that person under any finance lease which would,
in accordance with UK GAAP as applicable to the Original Financial Statements, be
treated as a finance lease; |
|
|
(f) |
|
any indebtedness of that person for or in respect of receivables sold or
discounted on a recourse basis; |
|
|
(g) |
|
any payment obligations under any other transaction having the commercial
effect of a borrowing and effected primarily as a method of raising finance; and |
|
|
(h) |
|
all liabilities of that person (actual or contingent) under any guarantee,
bond, security, indemnity or other commitment to assure payment of or indemnify
against loss in respect of non-payment of any of the items referred to in paragraphs
(a) to (g) above. |
|
|
Government Agency means any government, or any governmental, semi-governmental or judicial
entity or authority, including any self-regulatory authority established under
statute. |
|
|
|
Gross Assets means, at any time, the sum of total fixed assets and total current
assets of the Group as shown in the then most recent financial statements of PLC which
are the consolidated accounts of the Group provided that, during the period from the
Closing Date until the date of the next financial statements of PLC which are
consolidated accounts of the Group (including the Target Group), (i) the sum of total
fixed assets and total current assets shall include the total fixed assets and total
current assets of the Target Group as shown in the most recent financial statements of
the Target which are the consolidated accounts of the Target Group, adjusted to
exclude any such assets which shall cease to exist on the consolidation of the Target
Group into the Group, and (ii) the sum of total fixed assets and total current assets
of the Group |
11
|
|
(including as adjusted in accordance with (i) above) shall be further adjusted (after
discussions with the auditors of PLC in respect of such matters, in a manner which is
consistent with the outcome of those discussions) to reflect the revaluation of the assets
of the Group which will be made in the consolidated accounts of the Group (including the
Target Group) as a result of the Acquisition. |
|
|
|
Group means each of the Companies and each of their respective Subsidiaries for
the time being. |
|
|
|
Holding Company means, in relation to a company or corporation, any other company or
corporation in respect of which it is a Subsidiary. |
|
|
|
IFRS means international financial reporting standards within the meaning of IAS
Regulation 1606/2002 to the extent applicable to the relevant financial statements. |
|
|
|
Impaired Agent means the Facility Agent, Dollar Swingline Agent or Euro Swingline Agent (as
the case may be) at any time when: |
|
(a) |
|
it has failed to make (or has notified a Party or publicly announced that it
will not make) a payment required to be made by it under the Finance Documents by the
due date for payment; |
|
|
(b) |
|
that Agent otherwise rescinds or repudiates a Finance Document; |
|
|
(c) |
|
(if that Agent is also a Lender) it is a Defaulting Lender under paragraph
(a) or (b) of the definition of “Defaulting Lender”; or |
|
|
(d) |
|
an Insolvency Event has occurred and is continuing with respect to that
Agent; |
|
|
unless, in the case of paragraph (a) above: |
|
(i) |
|
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; or |
|
|
(ii) |
|
that Agent is disputing in good faith whether it is contractually obliged to
make the payment in question. |
|
|
Increase Confirmation means a confirmation substantially in the form set out in Schedule 14
(Form of Increase Confirmation). |
|
|
|
Increase Date has the meaning given to that term in Schedule 14 (Form of Increase
Confirmation). |
|
|
|
Increase Lender has the meaning given to that term in Clause 2.2 (Increase). |
12
|
|
Information Pack means the document in the form approved by the Companies concerning the
Group and the Acquisition and distributed to the Lenders by or on behalf of the
Companies in connection with the Facilities, as updated and/or supplemented from time
to time, and which will comprise the Companies’ rationale for the Acquisition, an
investor presentation in respect of the Acquisition prepared by the BHP Billiton
petroleum division and details of the expected financial impact of the Acquisition on
the Group for the financial year ending 2011 based on market consensus data. |
|
|
|
Insolvency Event in relation to a Finance Party or other person means that the Finance
Party or other person: |
|
(a) |
|
is dissolved (other than pursuant to a consolidation, amalgamation or merger); |
|
|
(b) |
|
becomes insolvent or is unable to pay its debts or fails or admits in writing
its inability generally to pay its debts as they become due; |
|
|
(c) |
|
makes a general assignment, arrangement or composition with or for the
benefit of its creditors; |
|
|
(d) |
|
institutes or has instituted against it, by a regulator, supervisor or any
similar official with primary insolvency, rehabilitative or regulatory jurisdiction
over it in the jurisdiction of its incorporation or organisation or the jurisdiction
of its head or home office, a proceeding seeking a judgment of insolvency or
bankruptcy or any other relief under any bankruptcy or insolvency law or other similar
law affecting creditors’ rights, or a petition is presented for its winding-up or
liquidation by it or such regulator, supervisor or similar official; |
|
|
(e) |
|
has instituted against it a proceeding seeking a judgment of insolvency or
bankruptcy or any other relief under any bankruptcy or insolvency law or other similar
law affecting creditors’ rights, or a petition is presented for its winding-up or
liquidation, and, in the case of any such proceeding or petition instituted or
presented against it, such proceeding or petition is instituted or presented by a
person or entity not described in paragraph (d) above and: |
|
(i) |
|
results in a judgment of insolvency or bankruptcy or the
entry of an order for relief or the making of an order for its winding-up or
liquidation; or |
|
(ii) |
|
is not dismissed, discharged, stayed or restrained in each
case within 30 days of the institution or presentation thereof; |
|
(f) |
|
has exercised in respect of it one or more of the stabilisation powers
pursuant to Part 1 of the Banking Xxx 0000 and/or has instituted against it a bank
insolvency proceeding pursuant to Part 2 of the Banking Act 2009 or a bank
administration proceeding pursuant to Part 3 of the Banking Xxx 0000; |
|
|
(g) |
|
has a resolution passed for its winding-up, official management or
liquidation (other than pursuant to a consolidation, amalgamation or merger); |
13
|
(h) |
|
seeks or becomes subject to the appointment of an administrator, provisional
liquidator, conservator, receiver, trustee, custodian or other similar official for it
or for all or substantially all its assets; |
|
|
(i) |
|
has a secured party take possession of all or substantially all its assets or
has a distress, execution, attachment, sequestration or other legal process levied,
enforced or sued on or against all or substantially all its assets and such secured
party maintains possession, or any such process is not dismissed, discharged, stayed
or restrained, in each case within 30 days thereafter; |
|
|
(j) |
|
causes or is subject to any event with respect to it which, under the
applicable laws of any jurisdiction, has an analogous effect to any of the events
specified in paragraphs (a) to (i) above; or |
|
|
(k) |
|
takes any action in furtherance of, or indicating its consent to, approval
of, or acquiescence in, any of the foregoing acts. |
|
|
Interest Period means, in relation to a Loan, each period determined in accordance with
Clause 15 (Interest Periods) and, in relation to an Unpaid Sum, each period determined
in accordance with Clause 14.4 (Default interest). |
|
|
|
Investment Company has the meaning given to it in the United States Investment Company Act
of 1940. |
|
|
|
Joint Venture means: |
|
(a) |
|
Xxxxxxxx Bay Minerals (comprising Tisand (Pty) Limited and Xxxxxxxx Bay Iron
and Titanium (Pty) Limited); |
|
|
(b) |
|
the partnership named Newcastle Coal Infrastructure Group; and |
|
|
(c) |
|
any partnership, corporation, joint venture or unincorporated organisation or
association (other than a Project Company) which is a non-wholly owned Subsidiary of a
Company whose business or activities substantially consist of or are related to the
exploration, development, mining and/or exploitation (including processing and
marketing) of base and precious metals, other minerals, petroleum or any other
materials whatsoever, |
|
|
if, in each case, none of its creditors benefit in any material manner from any
guarantee, bond, security (other than any security over the shares or other ownership
interests in, or debts or other obligations of, such entity or any other Joint Venture
or Non-Recourse Project Company which has rights or liabilities in relation to the
same project, joint venture or other similar arrangement), indemnity or other
commitment from another member of the Group (other than another Joint Venture or
Non-Recourse Project Company) to assure the repayment of, or indemnify against loss in
respect of non-payment of, its Financial Indebtedness. |
|
|
|
Lender means: |
|
(a) |
|
any Original Lender; and |
14
|
(b) |
|
any bank, financial institution or other entity which is regularly engaged in
or established for the purpose of making, purchasing or investing in loans, securities
or other financial assets which has become a Party in accordance with Clause 2.2
(Increase) or Clause 30 (Changes To The Lenders) and, if that person has made a Loan
to an Australian Borrower, which is specified for the time being in an entry in a
Register as the holder of the Notes representing that Loan, |
|
|
which in each case has not ceased to be a Party in accordance with the terms of
this Agreement. |
|
|
|
LIBOR means, in relation to any Loan or Unpaid Sum: |
|
(a) |
|
the applicable Screen Rate; or |
|
|
(b) |
|
(if no Screen Rate is available for the currency or Interest Period of that
Loan or Unpaid Sum) the arithmetic mean of the rates (rounded upwards to four decimal
places) as supplied to the Facility Agent at its request quoted by the Reference Banks
to leading banks in the London interbank market, |
|
|
as of the Specified Time on the Quotation Day for the offering of deposits in
the currency of that Loan or Unpaid Sum and for a period comparable to the Interest
Period for that Loan or Unpaid Sum. |
|
|
|
Limited means BHP Billiton Limited, a company incorporated in Australia with registered
number ABN 49 004 028 077. |
|
|
|
Loan means a Term Loan, a Revolving Facility Loan or a Swingline Loan. |
|
|
|
LMA means the Loan Market Association. |
|
|
|
London Business Day means a day (other than a Saturday or Sunday) on which banks are open
for general business in London. |
|
|
|
Majority Lenders means (subject to Clause 43.4 (Disenfranchisement of Defaulting Lenders)
and Clause 43.5 (Excluded Commitments)), at any time, a Lender or Lenders whose
Commitments then aggregate 662/3 per cent. or more of the Total Commitments (or, if the
Total Commitments have been reduced to zero, whose Commitments aggregated 662/3 per
cent. or more of the Total Commitments immediately prior to that reduction). For this
purpose, where a reference to a Commitment includes a Revolving Facility Commitment,
it shall be a reference to that Revolving Facility Commitment but without double
counting in respect of any Swingline Commitments. |
|
|
|
Mandatory Cost means the percentage rate per annum calculated by the Facility Agent in
accordance with Schedule 4 (Mandatory Cost Formulae). |
|
|
|
Margin means, subject to Clause 14.3 (Margin step-up), 0.50 per cent. per annum. |
|
|
|
Margin Regulations means Regulations U and X issued by the Board of Governors of the United
States Federal Reserve System. |
15
|
|
Market Disruption Event has the meaning given to it in Clause 16.2 (Market disruption). |
|
|
|
Material Adverse Effect means a material adverse effect on: |
|
(a) |
|
the ability of the Obligors, taken as a whole, to comply with their payment
obligations under any Finance Document as and when they fall due for performance; or |
|
|
(b) |
|
the ability of the Companies to comply with their obligations under Clause
26.2 (Leverage ratio). |
|
|
Material Company means a member of the Group (other than a Non-Recourse Project Company)
which as at the date of the most recent audited consolidated financial statements of
PLC had fixed assets and current assets (calculated on the same basis as Gross Assets
on a consolidated basis but excluding any intra-Group items) which represent 2.5 per
cent. or more of the Gross Assets of the Group, provided that, after the Closing Date
and until such time as the audited consolidated financial statements of PLC (including
the Target Group) are published, a Material Company shall mean a member of the Target
Group or member of the BHP Billiton Group (in each case other than a Non-Recourse
Project Company) which, as at the date of the most recent audited financial statements
of the Target (in the case of a member of the Target Group) or the date of the most
recent audited consolidated financial statements of PLC (in the case of a member of
the BHP Billiton Group), had fixed assets and current assets (calculated on the same
basis as Gross Assets on a consolidated basis but excluding any intra-Group items)
which represent 2.5 per cent. or more of the Gross Assets of the Group (including the
Target Group). |
|
|
|
Merger Agreement means the Agreement and Plan of Merger dated as of 14 July 2011 and made
between Limited, BHP Billiton Petroleum (North America) Inc., Bidco and the Target, as
amended, supplemented, varied, waived or otherwise modified from time to time in the
sole discretion of the Companies. |
|
|
|
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 |
|
|
(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. |
|
|
|
Xxxxx’x means Xxxxx’x Investors Service Limited or any successor to its ratings business. |
16
|
|
New Holding Company has the meaning given in Clause 43.7 (New Holding Company). |
|
|
|
Non-Base Currency means any Optional Currency or Committed Currency which is not the Base
Currency. |
|
|
|
Non-Recourse Project Company means any Project Company other than: |
|
(a) |
|
for as long as it satisfies the provisions of Clause 27.10(a)(ii)(B) (Project
Companies), Cerro Xxxxxx XX; or |
|
|
(b) |
|
any other Project Company which satisfies the provisions of Clause
27.10(a)(ii)(B) (Project Companies). |
|
|
Note means the rights of a Lender under a Note Deed Poll, title to which is
recorded in and evidenced by an inscription in a Register. |
|
|
|
Note Deed Poll means a deed poll executed by an Australian Borrower substantially
in the form of Schedule 10 (Form Of Note Deed Poll). |
|
|
|
Obligor means either Company or a Borrower. |
|
|
|
Obligors’ Agent means BHP Billiton Finance Plc or any other member of the Group nominated
by the Companies and approved by the Facility Agent (such approval not to be
unreasonably withheld or delayed). |
|
|
|
OECD means the Organisation for Economic Co-operation and Development. |
|
|
|
Offshore Associate means an Associate: |
|
(a) |
|
which is a non-resident of Australia and does not acquire, or would not
acquire, the relevant Notes and corresponding participations in carrying on a business
in Australia at or through a permanent establishment of the Associate in Australia; or |
|
|
(b) |
|
which is a resident of Australia and which acquires, or would acquire, the
relevant Notes and corresponding participations in carrying on a business in a country
outside Australia at or through a permanent establishment of the Associate in that
country, |
|
|
and which, in either case, is not acquiring the Notes or receiving payment in the
capacity of a clearing house, custodian, funds manager or responsible entity of a
registered scheme. |
|
|
|
For the purpose of this definition, “clearing house” has the meaning given to it
in section 128F(9) of the Australian Tax Act and “responsible entity” and “registered
scheme” each has the meaning given to it in section 9 of the Corporations Act. |
17
|
|
Optional Currency means a currency (other than a Committed Currency) which complies with
the conditions set out in Clause 4.3 (Conditions relating to Optional Currencies). |
|
|
|
Original Financial Statements means the audited consolidated financial statements of PLC
for its financial year ended 30 June 2010 (which are the consolidated accounts of the
Group). |
|
|
|
Original Obligor means either Company or an Original Borrower. |
|
|
|
Participating Member State means any member state of the European Union that adopts or has
adopted the euro as its lawful currency in accordance with legislation of the European
Union relating to European Monetary Union. |
|
|
|
Party means a party to this Agreement. |
|
|
|
Permitted Security Interests means: |
|
(a) |
|
any Security created with the prior written consent of the Majority Lenders; |
|
|
(b) |
|
any lien arising by operation of law (including where evidenced by an
agreement) or imposed by a court or tribunal; |
|
|
(c) |
|
any Security over or affecting any asset acquired after the date of this
Agreement (other than the Target Shares) if: |
|
(i) |
|
the Security was not created in contemplation of the
acquisition of that asset; and |
|
|
(ii) |
|
the principal amount secured has not been increased in
contemplation of or since the acquisition of that asset; |
|
(d) |
|
any Security over or affecting any asset of any company which becomes a
member of the Group after the date of this Agreement, where the Security is created
prior to the date on which that company becomes a member of the Group, if: |
|
(i) |
|
the Security was not created in contemplation of the
acquisition of that company; and |
|
(ii) |
|
the principal amount secured has not increased in
contemplation of or since the acquisition of that company; |
|
(e) |
|
any Security over or affecting any asset or project (or any shares or other
ownership interests in, or debts or other obligations of, any entity owning or
operating any such asset or project) established, acquired, developed or expanded
after the date of this Agreement where the Security was created to secure the purchase
price, or the financing of the establishment, acquisition, development, expansion or
operation of that asset or project and the principal amount secured by that Security
does not exceed the purchase price or |
18
|
|
|
financing (and any costs of establishment, acquisition, development, expansion or
operation), other than any such Security created to secure any Financial
Indebtedness incurred to finance the Acquisition; |
|
|
(f) |
|
any Security granted in substitution for any Security permitted under
paragraphs (c), (d) or (e) above where the Financial Indebtedness secured is
refinancing the Financial Indebtedness secured by the Security being substituted and
the principal amount of the Financial Indebtedness secured is not increased as a
result of such refinancing; |
|
|
(g) |
|
any Security to secure loans provided, supported or subsidised by a
governmental agency, export credit agency or a lending organisation established by the
United Nations, the European Union, the International Monetary Fund or any other
international treaty organisation or created to secure pre-export financing or future
flow finance arrangements provided that the financing is entered into to mitigate
against political risk (including, without limitation, remittance risk); |
|
|
(h) |
|
any Security created in connection with convertible or exchangeable bonds or
notes where the Security is created over the assets into which the convertible or
exchangeable bonds or notes may be converted or exchanged and secures only the
obligation of the issuer to effect the conversion or exchange of the bonds or notes
into such assets; |
|
|
(i) |
|
any Security over or affecting any goods or documents of title to goods
arising in the ordinary course of trade finance incurred in the ordinary course of
business; |
|
|
(j) |
|
any Security of the following description or arising in the following
transactions: |
|
(i) |
|
collateral posted against obligations under exchange-traded
forward sale contracts entered into in the ordinary course of business; |
|
|
(ii) |
|
the discounting of receivables to the extent that the value
of the assets over which Security exists does not exceed US$500,000,000 (or
its equivalent in any other currency) in total; |
|
|
(iii) |
|
netting or credit support arrangements arising for the
purposes of any International Swaps and Derivatives Association Master
Agreement or International Foreign Exchange Master Agreement where the
relevant transaction or transactions are entered into in connection with the
ordinary business activities or financing arrangements of any member of the
Group; |
|
|
(iv) |
|
cash management arrangements and any netting or set-off
arrangement entered into in the ordinary course of banking arrangements; and |
|
|
(v) |
|
Security in the form of cross charges over joint venture
related assets granted to other participants in a joint venture and/or the
manager of the |
19
|
|
|
joint venture to secure obligations owed to any one or more of the other
participants in such joint venture and/or the manager under the joint
venture or related agreement; |
|
(k) |
|
any Security created by an Obligor in favour of another Obligor; |
|
|
(l) |
|
any Security constituted by arrangements for the retention by a vendor,
lessor or consignor of title to goods in accordance with its standard terms of
business pending payment in full of the purchase price or rent therefor, provided
that, in relation to sales, such purchase price is paid and title passes within six
months of the date of supply by the vendor of such goods; |
|
|
(m) |
|
any Security created by a Project Company or over any shares or other
ownership interests in, or debts or other obligations of, that Project Company to
secure Financial Indebtedness of that Project Company or any other Project Company
with rights or liabilities in relation to the same project; |
|
|
(n) |
|
any Security created by a member of the Group (other than an Obligor) in
favour of another member of the Group; and |
|
|
(o) |
|
any Security not permitted under paragraphs (a) to (n) above securing
Financial Indebtedness, provided that the lower of: |
|
(i) |
|
the value of all assets subject to such Security; and |
|
|
(ii) |
|
the aggregate of all Financial Indebtedness secured by such Security,
does not: |
|
(A) |
|
exceed 10 per cent. of the Gross Assets of the Group; or |
|
|
(B) |
|
when aggregated with the aggregate amount of
all Project Investments in all designated companies (as defined in
Clause 27.10 (Project Companies)) exceed 20 per cent. of the Gross
Assets of the Group. |
|
|
Plan means an employee benefit plan as defined in section 3(3) of ERISA: |
|
(i) |
|
maintained by any Obligor or any ERISA Affiliate; or |
|
|
(ii) |
|
to which any Obligor or any ERISA Affiliate is required to make any payment
or contribution. |
|
|
PLC means BHP Billiton Plc, a company incorporated in England and Wales with
registered number 3196209. |
|
|
|
Project Company means each of the following: |
|
(a) |
|
for as long as they meet the requirements of either sub-paragraph (a)(ii)(A)
or sub-paragraph (a)(ii)(B) of Clause 27.10 (Project Companies), each member of |
20
|
|
|
the Group which has any rights or liabilities in respect of any of the following
projects: |
|
(i) |
|
the Escondida Project; |
|
|
(ii) |
|
the Cerro Matoso Project; |
|
|
(iii) |
|
the Maruwai Coal Project; |
|
|
(iv) |
|
the Guinea Alumina Project; |
|
|
(v) |
|
the Guinea/Liberia Iron Ore Project; and |
|
|
(vi) |
|
the Newcastle Infrastructure Project; |
|
(b) |
|
any member of the Group (which is not an Obligor) designated as a Project
Company in accordance with Clause 27.10 (Project Companies); or |
|
|
(c) |
|
any other member of the Group otherwise accepted by the Majority Lenders as a
Project Company. |
|
|
Project Investment means, with respect to a Project Company, the aggregate amount of: |
|
(a) |
|
any debt (whether subordinated or otherwise) owing by that Project Company to
another member of the Group (not being a Project Company); and |
|
|
(b) |
|
any equity investment valued at cost by any other member of the Group (not
being a Project Company) in that Project Company. |
|
|
Publicly-held Shares means, at any time, in relation to a Company, any ordinary shares of
that Company which are not held by any member of the Group at that time. |
|
|
|
Quotation Day means, in relation to any period for which an interest rate is to be
determined: |
|
(a) |
|
(if the currency is Sterling) the first day of that period; |
|
|
(b) |
|
(if the currency is euro) two TARGET Days before the first day of that
period; or |
|
|
(c) |
|
(for any other currency) two London Business Days before the first day of
that period, |
|
|
unless market practice differs in the Relevant Interbank Market for a currency, in which
case the Quotation Day for that currency will be determined by the Facility Agent in
accordance with market practice in the Relevant Interbank Market (and, if quotations
for that currency and period would normally be given by leading banks in the Relevant
Interbank Market on more than one day, the Quotation Day will be the last of those
days). |
21
|
|
Reference Banks means the principal London offices of Barclays Bank PLC, BNP Paribas and
JPMorgan Chase Bank, N.A., or such other banks as may be appointed by the Facility
Agent in consultation with the Obligors’ Agent. |
|
|
|
Register means a register of Notes to be maintained by the Facility Agent for each
Australian Borrower in accordance with Clause 10 (Register Of Notes). |
|
|
|
Relevant Interbank Market means, in relation to euro, the European interbank market and, in
relation to any other currency, the London interbank market. |
|
|
|
Repeating Representations means each of the representations set out in Clauses 24.1
(Status) to 24.6(a) (No default), 24.9 (Pari passu ranking), 24.12 (Investment Company
Act) and 24.13 (ERISA). |
|
|
|
Resignation Letter means a letter substantially in the form set out in Schedule 7 (Form Of
Resignation Letter). |
|
|
|
Revolving Facility means the revolving loan facility made available under this Agreement as
described in Clause 2.1(b) (The Facilities). |
|
|
|
Revolving Facility Commitment means: |
|
(a) |
|
in relation to an Original Lender, the amount in the Base Currency set
opposite its name under the heading Revolving Facility Commitment in Part 2 of
Schedule 1 (The Original Parties) and the amount of any other Revolving Facility
Commitment transferred to it under this Agreement or assumed by it in accordance with
Clause 2.2 (Increase); and |
|
|
(b) |
|
in relation to any other Lender, the amount in the Base Currency of any
Revolving Facility Commitment transferred to it under this Agreement or assumed by it
in accordance with Clause 2.2 (Increase), |
|
|
to the extent not cancelled, reduced or transferred by it under this Agreement. |
|
|
|
Revolving Facility Loan means a loan made or to be made under the Revolving Facility or the
principal amount outstanding for the time being of that loan. |
|
|
|
Rollover Loan means one or more Revolving Facility Loans: |
|
(a) |
|
made or to be made on the same date that one or more maturing Revolving
Facility Loans is or are due to be repaid; |
|
|
(b) |
|
the aggregate amount of which is equal to or less than those maturing
Revolving Facility Loans; |
|
|
(c) |
|
in the same currency as the maturing Revolving Facility Loans (unless it is
in a different currency as a result of the operation of Clause 11.2 (Unavailability of
a currency)); and |
22
|
(d) |
|
made or to be made to the same Borrower for the purpose of refinancing those
maturing Revolving Facility Loans. |
|
|
S&P means Standard & Poor’s Rating Services, a division of The XxXxxx-Xxxx
Companies, Inc. or any successor to its rating business. |
|
|
|
Screen Rate means: |
|
(a) |
|
in relation to LIBOR, the British Bankers Association Interest Settlement
Rate for the relevant currency and period; and |
|
|
(b) |
|
in relation to EURIBOR, the percentage rate per annum determined by the
Banking Federation of the European Union for the relevant period, |
|
|
displayed on the appropriate page of the Reuters screen. If the agreed page is replaced or
service ceases to be available, the Facility Agent may specify another page or service
displaying the appropriate rate after consultation with the Obligors’ Agent and the
Lenders. |
|
|
|
Security means a mortgage, charge, pledge, lien or other security interest. |
|
|
|
Selection Notice means a notice substantially in the form set out in Part 2 of Schedule 3
(Form of Requests) given in accordance with Clause 15 (Interest Periods). |
|
|
|
Separate Loan has the meaning given to that term in Clause 12.2 (Repayment of Revolving
Facility Loans). |
|
|
|
Specified Time means a time determined in accordance with Schedule 9 (Timetables). |
|
|
|
Subsidiary means: |
|
(a) |
|
a subsidiary within the meaning of section 1159 of the Companies Xxx 0000; |
|
|
(b) |
|
a subsidiary within the meaning of section 9 of the Corporations Act; |
|
|
(c) |
|
any other entity of which a person has direct or indirect control or owns
directly or indirectly more than 50 per cent. of the voting capital or similar right
of ownership; or |
|
|
(d) |
|
for the purpose of determining whether a person is a Subsidiary of a Company
or the Target (as the case may be): |
|
(i) |
|
any other entity of which PLC and Limited together have
direct or indirect control or together own directly or indirectly more than 50
per cent. of the voting capital or similar right of ownership; or |
|
|
(ii) |
|
any other entity which is treated in the audited consolidated
financial statements of the Group or the Target Group as being a subsidiary of
PLC and/or Limited or the Target (as the case may be). |
23
|
|
Super-Majority Lenders has the same meaning as Majority Lenders except that, for the
purposes of calculating the relevant percentage, each reference in the definition of
Majority Lenders to 662/3 per cent. shall be construed as a reference to 85 per cent. |
|
|
|
Swingline Commitment means: |
|
(a) |
|
in relation to a Dollar Swingline Lender on the date of this Agreement, the
amount in US Dollars set opposite its name under the heading Dollar Swingline
Commitment in Part 3 of Schedule 1 (The Original Parties) and the amount of any other
Dollar Swingline Commitment transferred to it under this Agreement; |
|
|
(b) |
|
in relation to a Euro Swingline Lender on the date of this Agreement, the
amount in euro equivalent to the amount in US Dollars (the Euro Equivalent) set
opposite its name under the heading Euro Swingline Commitment in Part 3 of Schedule 1
(The Original Parties) and the amount of any other Euro Swingline Commitment
transferred to it under this Agreement. For the purposes of calculating the amount of
the Euro Equivalent, the amount in US Dollars specified in Part 3 of Schedule 1 (The
Original Parties) shall be converted into euro at the Facility Agent’s Spot Rate of
Exchange on the date the Facility Agent receives the Utilisation Request; and |
|
|
(c) |
|
in relation to any other Swingline Lender, the amount of any Swingline
Commitment transferred to it under this Agreement, |
|
|
to the extent not cancelled, reduced or transferred by it under this Agreement. |
|
|
|
Swingline Facilities means the Dollar Swingline Facility and the Euro Swingline Facility. |
|
|
|
Swingline Lender means a Dollar Swingline Lender or a Euro Swingline Lender. |
|
|
|
Swingline Loan means a Dollar Swingline Loan or a Euro Swingline Loan. |
|
|
|
TARGET means the Trans-European Automated Real-time Gross Settlement Express Transfer
payment system which utilises a single shared platform and which was launched on 19
November 2007. |
|
|
|
TARGET Day means any day on which TARGET is open for the settlement of payments in euro. |
|
|
|
Target means Petrohawk Energy Corporation, a Delaware corporation having its principal
executive offices at 0000 Xxxxxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000. |
|
|
|
Target Group means the Target and its Subsidiaries for the time being. |
|
|
|
Target Shares means all of the issued and outstanding common stock of the Target other than
any such common stock which is held by a member of the Target Group (on its own behalf
and not on behalf of third parties) at that time. |
24
|
|
Tax means any tax, levy, impost, deduction, duty or other charge or withholding
of a similar nature and including any related penalty or interest arising out of an
Obligor’s failure to pay or any delay on the part of an Obligor in paying any of the
same. |
|
|
|
Term Facility means the term loan facility made available under this Agreement as
described in Clause 2.1(a) (The Facilities). |
|
|
|
Term Facility Commitment means: |
|
(a) |
|
in relation to an Original Lender, the amount in the Base Currency set
opposite its name under the heading Term Facility Commitment in Part 2 of Schedule 1
(The Original Parties) and the amount of any other Term Facility Commitment
transferred to it under this Agreement or assumed by it in accordance with Clause 2.2
(Increase); and |
|
|
(b) |
|
in relation to any other Lender, the amount in the Base Currency of any Term
Facility Commitment transferred to it under this Agreement or assumed by it in
accordance with Clause 2.2 (Increase), |
|
|
to the extent not cancelled, reduced or transferred by it under this Agreement. |
|
|
|
Term Loan means a loan made or to be made under the Term Facility or the principal
amount outstanding for the time being of that loan. |
|
|
|
Total Commitments means the aggregate of the Total Term Facility Commitments and
the Total Revolving Facility Commitments, being US$7,500,000,000 at the date of this
Agreement. |
|
|
|
Total Revolving Facility Commitments means the aggregate of the Revolving Facility
Commitments, being US$2,500,000,000 at the date of this Agreement. |
|
|
|
Total Term Facility Commitments means the aggregate of the Term Facility
Commitments, being US$5,000,000,000 at the date of this Agreement. |
|
|
|
Transfer Certificate means a certificate substantially in the form set out in Schedule 5
(Form Of Transfer Certificate) or (other than in respect of a Loan to an Australian
Borrower) in a form recommended by the LMA or in any other form agreed between the
Facility Agent and the Obligors’ Agent. |
|
|
|
Transfer Date means, in relation to a transfer, the later of: |
|
(a) |
|
the proposed Transfer Date specified in the Transfer Certificate; and |
|
|
(b) |
|
the date on which the Facility Agent executes the Transfer Certificate. |
|
|
UK GAAP means generally accepted accounting principles, standards and practices
in the UK, including IFRS. |
|
|
|
Unpaid Sum means any sum due and payable but unpaid by an Obligor under the Finance
Documents. |
25
|
|
Utilisation means a utilisation of a 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 Part 1 of Schedule
3 (Form of Requests). |
|
|
|
VAT means value added tax as provided for in the United Kingdom Value Added Tax
Xxx 0000 and any other tax of a similar nature in any relevant jurisdiction. |
|
|
|
Wholly-owned Date means the date (if any) on which the Target becomes (directly or
indirectly) a wholly-owned Subsidiary of a Company. |
|
1.2 |
|
Construction |
|
(a) |
|
Unless a contrary indication appears, any reference in this Agreement to: |
|
(i) |
|
the Facility Agent, the Dollar Swingline Agent, the Euro
Swingline Agent, any Mandated Lead Arranger, any Finance Party, any Lender,
any Obligor or any Party shall be construed so as to include its successors in
title, permitted assigns and permitted transferees; |
|
|
(ii) |
|
a group of persons acting in concert means a group of persons
who, pursuant to an agreement or understanding (whether formal or informal),
actively co-operate, through the acquisition (directly or indirectly) of
shares in either of the Companies by any of them, either directly or
indirectly, in order to obtain or consolidate control of either of the
Companies; |
|
|
(iii) |
|
assets includes present and future properties, revenues and
rights of every description; |
|
|
(iv) |
|
Barclays Capital is to the investment banking division of
Barclays Bank PLC; |
|
|
(v) |
|
control means the power to direct the management and the
policies of an entity whether through the ownership of voting capital, by
contract or otherwise; |
|
|
(vi) |
|
the European interbank market means the interbank market for
euro operating in Participating Member States; |
|
|
(vii) |
|
a Finance Document or any other agreement or instrument is a
reference to that Finance Document or other agreement or instrument as
amended, supplemented, extended, restated or novated; |
|
|
(viii) |
|
a guarantee means (other than in Clause 23 (Guarantee And Indemnity By The
Companies)) any guarantee, letter of credit, bond, indemnity or |
26
|
|
|
other commitment to assure the repayment of, or indemnify against loss, in
respect of non-payment of indebtedness; |
|
|
(ix) |
|
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; |
|
|
(x) |
|
a person includes any person, firm, company, corporation,
government, state or agency of a state or any association, trust or
partnership (whether or not having separate legal personality); |
|
|
(xi) |
|
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, department
or regulatory, self-regulatory or other authority or organisation; |
|
|
(xii) |
|
a provision of law is a reference to that provision as it
may be amended or re-enacted from time to time; |
|
|
(xiii) |
|
the singular includes the plural (and vice versa); |
|
|
(xiv) |
|
a time of day is a reference to London time; and |
|
|
(xv) |
|
Australian Dollars, AUD or AUS$ is to the lawful currency for
the time being of Australia, US Dollars, USD and US$ is to the lawful currency
for the time being of the United States, Sterling, GBP and £ is to the lawful
currency for the time being of the United Kingdom and euro, EUR and € is to
the single currency introduced at the start of the third stage of European
economic and monetary union pursuant to the Treaty establishing the European
Communities, as amended. |
|
(b) |
|
In this Agreement, Section, Clause and Schedule headings are for ease of
reference only. |
|
|
(c) |
|
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. |
|
|
(d) |
|
A Default is continuing if it has not been remedied or waived. |
|
(a) |
|
Unless expressly stated to the contrary in this Agreement or a Note Deed
Poll, a person who is not a party to a Finance Document has no right under the
Contracts (Rights of Third Parties) Xxx 0000 to enforce or to enjoy the benefit of any
term of that Finance Document. |
|
|
(b) |
|
Notwithstanding any term of any Finance Document, the consent of any person
who is not a Party is not required to rescind or vary this Agreement at any time. |
27
2. |
|
THE FACILITIES |
|
2.1 |
|
The Facilities |
|
|
|
Subject to the terms of this Agreement, the Lenders make available to the Borrowers: |
|
(a) |
|
a 364 day term loan facility in an aggregate amount equal to the Total Term
Facility Commitments; and |
|
|
(b) |
|
a 364 day multicurrency revolving loan facility, incorporating a US Dollar
swingline facility and a euro swingline facility, in an aggregate amount equal to the
Total Revolving Facility Commitments. |
|
(a) |
|
The Obligors’ Agent may by giving prior notice to the Facility Agent by no
later than the date falling 30 Business Days after the effective date of a
cancellation of: |
|
(i) |
|
the Available Commitments of a Defaulting Lender in
accordance with Clause 13.11 (Right of cancellation and prepayment in relation
to a Defaulting Lender); or |
|
|
(ii) |
|
the Commitments of a Lender in accordance with Clause 13.1
(Illegality) or paragraph (a) of Clause 13.9 (Right of repayment and
cancellation in relation to a single Lender), |
|
|
request that the Total Commitments be increased (and the Total Commitments shall be
so increased) in an aggregate amount in the Base Currency of up to the amount
of the Available Commitments or Commitments so cancelled as follows: |
|
|
(iii) |
|
the increased Commitments will be assumed by one or more
Lenders or other banks, financial institutions, trusts, funds or other
entities (each an Increase Lender) selected by the Companies (each of which
confirms its willingness to assume and does assume all the obligations of a
Lender corresponding to that part of the increased Commitments which it is to
assume, as if it had been an Original Lender); |
|
|
(iv) |
|
each of the Obligors and any Increase Lender shall assume
obligations towards one another and/or acquire rights against one another as
the Obligors and the Increase Lender would have assumed and/or acquired had
the Increase Lender been an Original Lender; |
|
|
(v) |
|
each Increase Lender shall become a Party as a “Lender” and
any Increase Lender and each of the other Finance Parties shall assume
obligations towards one another and acquire rights against one another as that
Increase Lender and those Finance Parties would have assumed and/or acquired
had the Increase Lender been an Original Lender; |
28
|
(vi) |
|
the Commitments of the other Lenders shall continue in full
force and effect; and |
|
|
(vii) |
|
any increase in the Total Commitments shall take effect on
the date specified by the Obligors’ Agent in the notice referred to above or
any later date on which the conditions set out in paragraph (b) below are
satisfied. |
|
(b) |
|
An increase in the Total Commitments will only be effective on: |
|
(i) |
|
the execution by the Facility Agent of an Increase
Confirmation from the relevant Increase Lender; and |
|
(ii) |
|
in relation to an Increase Lender which is not a Lender
immediately prior to the relevant increase, the performance by the Facility
Agent of all necessary “know your customer” or other similar checks under all
applicable laws and regulations in relation to the assumption of the increased
Commitments by that Increase Lender, the completion of which the Facility
Agent shall promptly notify to the Obligors’ Agent and the Increase Lender. |
|
(c) |
|
Each Increase Lender, by executing the Increase Confirmation, confirms (for
the avoidance of doubt) that the Facility 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
increase becomes effective. |
|
|
(d) |
|
The Original Borrowers shall, on the date upon which the increase takes
effect, pay to the Facility Agent (for its own account) a fee of US$2,500 and the
Original Borrowers shall promptly on demand pay the Facility Agent the amount of all
costs and expenses (including legal fees) reasonably incurred by it in connection with
any increase in Commitments under this Clause 2.2. |
|
|
(e) |
|
The Original Borrowers may pay to the Increase Lender a fee in the amount and
at the times agreed between the Companies and the Increase Lender in a Fee Letter. |
|
|
(f) |
|
Clause 30.5 (Limitation of responsibility of Existing Lenders) shall apply
mutatis mutandis in this Clause 2.2 in relation to an Increase Lender as if references
in that Clause to: |
|
(i) |
|
an “Existing Lender” were references to all the Lenders
immediately prior to the relevant increase; |
|
|
(ii) |
|
the “New Lender” were references to that Increase Lender; and |
|
|
(iii) |
|
a “re-transfer” and “re-assignment” were references to
respectively a “transfer” and “assignment”. |
29
|
(g) |
|
Nothing in this Clause 2.2 obliges (i) any Party to find an Increase Lender
or (ii) any Lender to become an Increase Lender. |
2.3 |
|
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 shall be a separate and independent debt. |
|
|
(c) |
|
A Finance Party may, except as otherwise stated in the Finance Documents,
separately enforce its rights under the Finance Documents. |
|
|
(d) |
|
Each Lender confirms to the Facility Agent and the Obligors’ Agent on the
date of this Agreement or on any later date on which it becomes a Lender in accordance
with Clause 2.2 (Increase) or Clause 30 (Changes to the Lenders) that it is not a
Defaulting Lender, and undertakes to notify the Facility Agent and the Obligors’ Agent
that it has become a Defaulting Lender as soon as practicable upon becoming aware of
the same. |
2.4 |
|
Appointment of Obligors’ Agent |
|
|
|
Each Obligor by its execution of this Agreement hereby irrevocably authorises the
Obligors’ Agent to give all notices (including, without limitation, Utilisation
Requests, Selection Notices and notices of prepayment and cancellation) and
instructions and make such agreements (including, without limitation, in relation to
an alternative basis (as described in Clause 16.4 (Alternative basis of interest or
funding)) and in relation to Clause 43 (Amendments And Waivers)) expressed to be
capable of being given or made by the Obligors’ Agent, notwithstanding that they may
affect that Obligor, without further reference to or the consent of that Obligor and
that Obligor shall, as regards the Agents and each Lender, be bound thereby as though
that Obligor had agreed that change, given that notice or made that agreement. |
|
3. |
|
PURPOSE |
|
3.1 |
|
Purpose |
|
(a) |
|
Subject to the terms of this Agreement, amounts borrowed under the Facilities
may only be applied towards: |
|
(i) |
|
financing, directly or indirectly, cash payments due to
holders of Target Shares in respect of the Acquisition; |
30
|
(ii) |
|
direct or indirect payments to holders of options, warrants
or other rights to receive Target Shares; |
|
|
(iii) |
|
refinancing the indebtedness of the Target Group (including,
without limitation, by way of the purchase of such Target Group indebtedness
and/or the provision of cash collateral for such Target Group indebtedness
(subject to the other terms of this Agreement) by a member of the Group); and |
|
|
(iv) |
|
the payment of Acquisition Costs. |
|
(b) |
|
Amounts borrowed under the Revolving Facility may also be applied towards the
general corporate purposes of the Group including, without limitation, as a backstop
to commercial paper issued by members of the Group. |
3.2 |
|
Monitoring |
|
|
|
No Finance Party is bound to monitor or verify the application of any amount
borrowed pursuant to this Agreement. |
|
4. |
|
CONDITIONS OF UTILISATION |
|
4.1 |
|
Initial conditions precedent |
|
|
|
No Utilisation Request may be delivered unless the Facility Agent has received all of the
documents and other evidence listed in Parts 1 and 2 of Schedule 2 (Conditions Precedent)
(unless waived, on the instructions of the Majority Lenders) which, except for the
documents listed in paragraph 15 of Part 1 and paragraph 1 of Part 2 of that Schedule (which are not subject to the
requirement that they be in form and substance reasonably satisfactory to the Facility
Agent), must be in form and substance reasonably satisfactory to the Facility Agent. The
Facility Agent shall notify the Obligors’ Agent and the Lenders promptly upon being so
satisfied in relation to the documents and other evidence listed in each of Parts 1 and 2
of Schedule 2 (Conditions Precedent) respectively. |
|
4.2 |
|
Further conditions precedent |
|
|
|
The Lenders will only be obliged to comply with Clause 5.4 (Lenders’
participation), and Clause 12.2(b) (Repayment of Revolving Facility Loans) will only
operate, if on the date of the Utilisation Request and on the proposed Utilisation
Date: |
|
(a) |
|
in the case of a Rollover Loan or a Loan pursuant to Clause 12.2(b)
(Repayment of Revolving Facility Loans), no Event of Default is continuing or would
result from the proposed Loan and, in the case of any other Loan, no Default is
continuing or would result from the proposed Loan; and |
|
|
(b) |
|
the Repeating Representations to be made by each Obligor are true in all
material respects. |
31
4.3 |
|
Conditions relating to Optional Currencies |
|
(a) |
|
A currency (other than a Committed Currency) will constitute an Optional
Currency in relation to a Revolving Facility Loan if: |
|
(i) |
|
it is readily available in the amount required and freely
convertible into the Base Currency in the Relevant Interbank Market on the
Quotation Day and the Utilisation Date for that Loan; and |
|
|
(ii) |
|
it is approved by the Facility Agent (acting on the
instructions of all the Lenders with a Revolving Facility Commitment) on or
prior to receipt by the Facility Agent of the relevant Utilisation Request for
that Loan. |
|
(b) |
|
If, by the Specified Time, the Facility Agent has received a written request
from the Obligors’ Agent for a currency to be approved under paragraph (a)(ii) above,
the Facility Agent will notify the relevant Lenders of that request by the Specified
Time. Based on any responses received by the Facility Agent by the Specified Time, the
Facility Agent will confirm to the Obligors’ Agent by the Specified Time: |
|
(i) |
|
whether or not the relevant Lenders have granted their
approval; and |
|
(ii) |
|
if approval has been granted, the minimum amount (and, if
required, integral multiples) for any subsequent Utilisation in that currency. |
4.4 |
|
Maximum number of Loans |
|
(a) |
|
Unless the Facility Agent agrees otherwise, a Utilisation Request may not be
delivered if as a result of the proposed Utilisation more than 15 Term Loans and 15
Revolving Facility Loans (including Swingline Loans) would be outstanding. |
|
|
(b) |
|
Any Loan made by a single Lender under Clause 11.2 (Unavailability of a
currency) and any Separate Loan shall not be taken into account in this Clause 4.4. |
5. |
|
UTILISATION — LOANS |
|
5.1 |
|
Delivery of a Utilisation Request |
|
|
|
A Borrower may utilise a Facility provided that it (or the Obligors’ Agent on
its behalf) delivers to the Facility Agent a duly completed Utilisation Request not
later than the Specified Time. |
|
5.2 |
|
Completion of a Utilisation Request |
|
|
|
Each Utilisation Request is irrevocable and will not be regarded as having been
duly completed unless: |
|
(a) |
|
it identifies the Borrower; |
32
|
(b) |
|
it identifies the purpose of the Utilisation; |
|
|
(c) |
|
the proposed Utilisation Date is a Business Day within the Availability
Period applicable to that Facility and, in the case of a Revolving Facility Loan,
falls on or after the first Utilisation Date under the Term Facility; |
|
|
(d) |
|
the currency and amount of the Utilisation comply with Clause 5.3 (Currency
and amount); |
|
|
(e) |
|
the proposed Interest Period complies with Clause 15 (Interest Periods); and |
|
|
(f) |
|
it specifies the account and bank to which the proceeds of the Utilisation
are to be credited. |
|
(a) |
|
The currency specified in a Utilisation Request must be: |
|
(i) |
|
in relation to a Term Loan, the Base Currency; or |
|
(ii) |
|
in relation to a Revolving Facility Loan, a Committed
Currency or an Optional Currency. |
|
(b) |
|
The amount of the proposed Loan must be: |
|
(i) |
|
if it is a Term Loan, a minimum aggregate amount of
US$50,000,000 or, if less, the amount of the Available Facility; |
|
(ii) |
|
if it is a Revolving Facility Loan and: |
|
(A) |
|
the currency selected is a Committed
Currency, a minimum amount of, as appropriate, US$10,000,000,
£10,000,000, €10,000,000 or AUS$10,000,000 (and, in each case, an
integral multiple of such amount) or, if less, the amount of the
Available Facility (or, if the currency selected is not US Dollars,
its equivalent in such other currency); or |
|
|
(B) |
|
the currency selected is an Optional
Currency, the minimum amount (and, if required, integral multiple)
specified by the Facility Agent pursuant to Clause 4.3(b)(ii)
(Conditions relating to Optional Currencies) or, if less, the
equivalent amount of the Available Facility in that currency; and |
|
(iii) |
|
in any event, such that its Base Currency Amount is less
than or equal to the Available Facility. |
5.4 |
|
Lenders’ participation |
|
(a) |
|
If the conditions set out in this Agreement have been met, and subject to
Clause 12.2 (Repayment of Revolving Facility Loans), each Lender shall make its |
33
|
|
|
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. |
|
|
(c) |
|
The Facility Agent shall determine the Base Currency Amount of each Loan
which is to be made in a Non-Base Currency and shall notify each Lender of the amount,
currency and the Base Currency Amount of each Loan and the amount of its participation
in that Loan and, in the case of a Revolving Facility Loan and if different, the
amount of that participation to be made available in accordance with Clause 36.1
(Payments to an Agent), in each case by the Specified Time. |
|
|
(d) |
|
In the case of any Acquisition Loan to be advanced on the first Utilisation
Date, provided the Facility Agent notifies each Lender under the relevant Facility by
the Specified Time of the participation of that Lender in that Loan, each such Lender
shall take reasonable steps to ensure that the funds in respect of its participation
in that Loan are made available to the Facility Agent no later than 10.00 a.m. (New
York time) on the first Utilisation Date. |
6. |
|
UTILISATION — SWINGLINE LOANS |
|
6.1 |
|
General |
|
(a) |
|
In this Clause 6 (Utilisation — Swingline Loans) and Clause 7 (Swingline
Loans): |
|
|
|
|
a reference to the Available Facility or Available Commitments
is to the relevant Swingline Facility and the Available Commitments
thereunder, but without prejudice to Clause 6.8 (Relationship with the
Revolving Facility ). |
|
|
|
|
Euro Swingline Rate means, in relation to any Euro Swingline Loan,
the arithmetic mean of the rates (rounded upwards to four decimal places), as
supplied to the Euro Swingline Agent at its request, quoted by the Reference
Banks to leading banks in the European interbank market as of the Specified
Time on the Utilisation Date for that Euro Swingline Loan for the offering of
deposits in euro for a period comparable to the Interest Period of the
relevant Euro Swingline Loan. |
|
|
|
|
Federal Funds Rate means, in relation to any day, the rate per annum equal to: |
|
(a) |
|
the weighted average of the rates on overnight Federal funds
transactions with members of the US Federal Reserve System arranged by Federal
funds brokers, as published for that day (or, if that day is not a New York
Business Day, for the immediately preceding New York Business Day) by the
Federal Reserve Bank of New York; or |
|
|
(b) |
|
if a rate is not so published for any day which is a New York
Business Day, the average of the quotations for that day on such transactions |
34
|
|
|
received by the Dollar Swingline Agent from three Federal funds brokers of
recognised standing selected by the Dollar Swingline Agent. |
|
|
|
New York Business Day means a day (other than a Saturday or
Sunday) on which banks are open for general business in New York City. |
|
|
|
|
Overall Commitment of a Lender under the Revolving Facility means: |
|
(a) |
|
its Revolving Facility Commitment; or |
|
|
(b) |
|
in the case of a Swingline Lender which does not have a
Revolving Facility Commitment, the Revolving Facility Commitment of a Lender
which is its Affiliate. |
|
|
|
Prime Rate means the prime commercial lending rate for US Dollars
from time to time announced by the Dollar Swingline Agent. |
|
|
|
|
Total Swingline Commitments means the aggregate of the Dollar
Swingline Commitments and the Euro Swingline Commitments, being an amount
equal to US$1,000,000,000 at the date of this Agreement. For the purposes of
calculating the amount of the Total Swingline Commitments, the amount of the
Euro Swingline Commitments shall be converted into the Base Currency at the
Facility Agent’s Spot Rate of Exchange on the date the Facility Agent receives
the Utilisation Request. |
|
|
(b) |
|
Any reference in this Agreement to: |
|
(i) |
|
an Interest Period includes each period determined under this
Agreement by reference to which interest on a Swingline Loan is calculated;
and |
|
|
(ii) |
|
a Lender includes a Swingline Lender unless the context
otherwise requires. |
|
(c) |
|
The following Clauses do not apply to Swingline Loans: |
|
(i) |
|
Clause 5 (Utilisation — Loans); |
|
|
(ii) |
|
Clause 11 (Optional Currencies); |
|
|
(iii) |
|
Clause 13.6 (Voluntary prepayment); |
|
|
(iv) |
|
Clause 14 (Interest) as it applies to the calculation of
interest on a Loan but not default interest on an overdue amount; |
|
|
(v) |
|
Clause 15 (Interest Periods); and |
|
|
(vi) |
|
Clause 16 (Changes To The Calculation Of Interest). |
35
6.2 |
|
Delivery of a Utilisation Request for Dollar Swingline Loans |
|
(a) |
|
A Borrower may utilise the Dollar Swingline Facility provided that it (or the
Obligors’ Agent on its behalf) delivers to the Dollar Swingline Agent (copied to the
Facility Agent) a duly completed Utilisation Request not later than the Specified
Time. |
|
|
(b) |
|
Each Utilisation Request for a Dollar Swingline Loan must be sent to the
Dollar Swingline Agent at the address in the United States of America notified by the
Dollar Swingline Agent for this purpose with a copy to its address referred to in
Clause 38 (Notices). |
6.3 |
|
Completion of a Utilisation Request for Dollar Swingline Loans |
|
(a) |
|
Each Utilisation Request for a Dollar Swingline Loan is irrevocable and will
not be regarded as having been duly completed unless: |
|
(i) |
|
it identifies the Borrower; |
|
|
(ii) |
|
it specifies that it is for a Dollar Swingline Loan; |
|
|
(iii) |
|
the proposed Utilisation Date is a New York Business Day
within the Availability Period and falls on or after the first Utilisation
Date under the Term Facility; |
|
|
(iv) |
|
the Dollar Swingline Loan is denominated in the Base
Currency; |
|
|
(v) |
|
the amount of the proposed Dollar Swingline Loan is a minimum
of US$5,000,000 or, if less, the Available Facility; and |
|
|
(vi) |
|
the proposed Interest Period: |
|
(A) |
|
does not overrun the Final Maturity Date; |
|
|
(B) |
|
is a period of not more than seven days; and |
|
|
(C) |
|
ends on a New York Business Day. |
|
(b) |
|
Only one Dollar Swingline Loan may be requested in each Utilisation Request. |
6.4 |
|
Dollar Swingline Lenders’ participation |
|
(a) |
|
If the conditions set out in this Agreement have been met, each Dollar
Swingline Lender shall make its participation in each Dollar Swingline Loan available
through its Facility Office in the United States of America or through an alternative
Facility Office that is (i) able to comply with the timetable for Dollar Swingline
Loans as set out in Schedule 9 (Timetables) and (ii) acceptable to the Obligors’
Agent, acting reasonably. |
36
|
(b) |
|
The Dollar Swingline Lenders will only be obliged to comply with paragraph
(a) above if, on the date of the Utilisation Request and on the proposed Utilisation
Date: |
|
(i) |
|
no Default is continuing or would result from the proposed
Utilisation; and |
|
(ii) |
|
the Repeating Representations to be made by each Obligor are
true in all material respects. |
|
(c) |
|
The amount of each Dollar Swingline Lender’s participation in each Dollar
Swingline Loan will be equal to the proportion borne by its Available Commitment to
the Available Facility immediately prior to making the Dollar Swingline Loan, adjusted
to take account of any limit applying under Clause 6.8 (Relationship with the
Revolving Facility ). |
|
(d) |
|
The Facility Agent shall notify each Dollar Swingline Lender of the amount of
each Dollar Swingline Loan and its participation in that Dollar Swingline Loan by the
Specified Time. |
6.5 |
|
Delivery of a Utilisation Request for Euro Swingline Loans |
|
(a) |
|
A Borrower may utilise the Euro Swingline Facility provided that it (or the
Obligors’ Agent on its behalf) delivers to the Euro Swingline Agent (copied to the
Facility Agent) a duly completed Utilisation Request not later than the Specified
Time. |
|
(b) |
|
Each Utilisation Request for a Euro Swingline Loan must be sent to the Euro
Swingline Agent at the address referred to in Clause 38 (Notices). |
6.6 |
|
Completion of a Utilisation Request for Euro Swingline Loans |
|
(a) |
|
Each Utilisation Request for a Euro Swingline Loan is irrevocable and will
not be regarded as having been duly completed unless: |
|
(i) |
|
it identifies the Borrower; |
|
|
(ii) |
|
it specifies that it is for a Euro Swingline Loan; |
|
|
(iii) |
|
the proposed Utilisation Date is a Business Day within the
Availability Period and falls on or after the first Utilisation Date under the
Term Facility; |
|
|
(iv) |
|
the Euro Swingline Loan is denominated in euro; |
|
|
(v) |
|
the amount of the proposed Euro Swingline Loan is a minimum
of €5,000,000 or, if less, the Available Facility (converted into euro
applying the Euro Swingline Agent’s spot rate of exchange on the date of
receipt by it of the Utilisation Request); and |
37
|
(vi) |
|
the proposed Interest Period: |
|
(A) |
|
does not overrun the Final Maturity Date; |
|
|
(B) |
|
is a period of not more than seven days; and |
|
|
(C) |
|
ends on a Business Day. |
|
(b) |
|
Only one Euro Swingline Loan may be requested in each Utilisation Request. |
6.7 |
|
Euro Swingline Lenders’ participation |
|
(a) |
|
The Euro Swingline Lenders will only be obliged to make a Loan under the Euro
Swingline Facility if, on the date of the Utilisation Request and on the proposed
Utilisation Date: |
|
(i) |
|
no Default is continuing or would result from the proposed
Utilisation; and |
|
(ii) |
|
the Repeating Representations to be made by each Obligor are
true in all material respects. |
|
(b) |
|
The amount of each Euro Swingline Lender’s participation in each Euro
Swingline Loan will be equal to the proportion borne by its Available Commitment to
the Available Facility immediately prior to making the Euro Swingline Loan, adjusted
to take account of any limit applying under Clause 6.8 (Relationship with the
Revolving Facility ). |
|
|
(c) |
|
The Facility Agent shall notify each Euro Swingline Lender of the amount of
each Euro Swingline Loan and its participation in that Euro Swingline Loan by the
Specified Time. |
6.8 |
|
Relationship with the Revolving Facility |
|
(a) |
|
This Clause 6.8 applies when a Swingline Loan is outstanding or is to be
borrowed. |
|
|
(b) |
|
The Swingline Facilities are not independent of the Revolving Facility. |
|
|
(c) |
|
Notwithstanding any other term of this Agreement, a Lender is only obliged to
participate in a Revolving Facility Loan or a Swingline Loan to the extent that it
would not result in its participation and that of a Lender which is its Affiliate in
the Revolving Facility Loans and Swingline Loans exceeding its Overall Commitment. |
|
|
(d) |
|
Where, but for the operation of paragraph (c) above, the Base Currency Amount
of a Lender’s participation and that of a Lender which is its Affiliate in the
Revolving Facility Loans and Swingline Loans would have exceeded its Overall
Commitment, the excess will be apportioned among the other Lenders participating in
the relevant Loan pro rata according to their (or their Affiliates’) |
38
|
|
|
respective Revolving Facility Commitments. This calculation will be applied as
often as necessary until the Loan is apportioned among the relevant Lenders in a
manner consistent with paragraph (c) above. |
7. |
|
SWINGLINE LOANS |
|
7.1 |
|
Swingline |
|
(a) |
|
Subject to the terms of this Agreement, the Dollar Swingline Lenders make
available to the Borrowers a US Dollar swingline loan facility in an aggregate amount
equal to the Total Swingline Commitments. |
|
|
(b) |
|
Subject to the terms of this Agreement, the Euro Swingline Lenders make
available to the Borrowers a euro swingline loan facility in an aggregate amount equal
to the Total Swingline Commitments. |
|
|
(c) |
|
Notwithstanding any other term of this Agreement, a Lender is only obliged to
participate in a Swingline Loan to the extent that the advance of that Swingline Loan
would not result in the participation of the Lenders in all Swingline Loans then
outstanding exceeding the Total Swingline Commitments. |
7.2 |
|
Purpose |
|
|
|
Each Borrower shall apply all amounts borrowed by it under the Swingline
Facilities towards refinancing a note or other instrument maturing under any
commercial paper programme of a member of the Group. A Swingline Loan may not be
applied in repayment or prepayment of another Swingline Loan. |
|
7.3 |
|
Repayment |
|
|
|
Each Borrower that has drawn a Swingline Loan shall repay that Swingline Loan on
the last day of its Interest Period. |
|
7.4 |
|
Voluntary prepayment of Swingline Loans |
|
(a) |
|
The Borrower to which a Swingline Loan has been made may prepay, at any time,
the whole of that Swingline Loan. |
|
|
(b) |
|
Unless a contrary indication appears in this Agreement, any part of the
Swingline Facilities which is prepaid may be reborrowed in accordance with the terms
of this Agreement. |
7.5 |
|
Dollar Swingline Facility rate of interest |
|
(a) |
|
The rate of interest on each Dollar Swingline Loan for any day during its
Interest Period is the higher of: |
|
(i) |
|
the Prime Rate at the Specified Time and in force on that
day; and |
39
|
(ii) |
|
0.5 per cent. per annum over the rate per annum determined by
the Dollar Swingline Agent to be the Federal Funds Rate for that day. |
|
(b) |
|
The Dollar Swingline Agent shall promptly notify the Dollar Swingline Lenders
and the relevant Borrower of the determination of the rate of interest under paragraph
(a) above. |
|
|
(c) |
|
If any day during an Interest Period is not a New York Business Day, the rate
of interest on a Dollar Swingline Loan on that day will be the rate applicable to the
immediately preceding New York Business Day. |
|
|
(d) |
|
Each Borrower shall pay accrued interest on each Dollar Swingline Loan made
to it on the last day of its Interest Period. |
7.6 |
|
Euro Swingline Facility rate of interest |
|
(a) |
|
The rate of interest for each Euro Swingline Loan for its Interest Period is
the aggregate of the applicable: |
|
(i) |
|
Margin; |
|
|
(ii) |
|
rate per annum determined by the Euro Swingline Agent to be
the Euro Swingline Rate for each day during its Interest Period; and |
|
|
(iii) |
|
Mandatory Cost, if any. |
|
(b) |
|
The Euro Swingline Agent shall promptly notify the Euro Swingline Lenders and
the relevant Borrower of the determination of the rate of interest under paragraph (a)
above. |
|
(c) |
|
Each Borrower shall pay accrued interest on each Euro Swingline Loan made to
it on the last day of its Interest Period. |
|
(a) |
|
Each Swingline Loan has one Interest Period only. |
|
|
(b) |
|
The Interest Period for a Swingline Loan must be selected in the relevant
Utilisation Request. |
|
(a) |
|
The Dollar Swingline Agent may perform its duties in respect of the Dollar
Swingline Facility through an Affiliate acting as its agent. |
|
|
(b) |
|
The Euro Swingline Agent may perform its duties in respect of the Euro
Swingline Facility through an Affiliate acting as its agent. |
40
7.9 |
|
Conditions of assignment or transfer |
|
|
|
Notwithstanding any other term of this Agreement, each Lender shall ensure that at all
times its Overall Commitment is not less than: |
|
(a) |
|
its Swingline Commitment; or |
|
|
(b) |
|
if it does not have a Swingline Commitment, the Swingline Commitment of a
Lender which is its Affiliate. |
|
(a) |
|
In this Clause 7.10: |
|
|
|
|
The Proportion of a Lender means the proportion borne by: |
|
(a) |
|
its Revolving Facility Commitment (or, if the Total Revolving
Facility Commitments are then zero, its Revolving Facility Commitment
immediately prior to their reduction to zero) minus the Base Currency Amount
of its participation (or that of a Lender which is its Affiliate) in any
outstanding Revolving Facility Loans (but ignoring its (or its Affiliate’s)
participation in the unpaid Swingline Loan); |
|
|
|
|
to |
|
|
(b) |
|
the Total Revolving Facility Commitments (or, if the Total
Revolving Facility Commitments are then zero, the Total Revolving Facility
Commitments immediately prior to their reduction to zero) minus the Base
Currency Amount of any outstanding Revolving Facility Loans (but ignoring the
unpaid Swingline Loan). |
|
|
|
The Shortfall of a Swingline Lender is an amount equal to its
Unpaid Swingline Participation minus its (or its Affiliate’s) Proportion of
the Unpaid Amount. |
|
|
|
|
The Unpaid Amount means, in relation to a Swingline Loan, any
principal not repaid and/or any interest accrued but unpaid on that Swingline
Loan, calculated from the Utilisation Date to the Loss Sharing Date. |
|
|
|
|
The Unpaid Swingline Participation of a Lender means that part of
the Unpaid Amount (if any) owed to that Lender (or its Affiliate) (before any
redistribution under this Clause 7.10). |
|
|
(b) |
|
If a Swingline Loan is not repaid in full on its due date, the Facility Agent
shall (if requested to do so in writing by any affected Swingline Lender) set a date
(the Loss Sharing Date) on which payments shall be made between the Lenders under the
Revolving Facility to re-distribute the Unpaid Amount between them. The Facility
Agent shall give at least three Business Days’ notice to each affected Lender of the
Loss Sharing Date and notify it of the amounts to be paid or received by it. |
41
|
(c) |
|
On the Loss Sharing Date, each Lender under the Revolving Facility must pay
to the Facility Agent its Proportion of the Unpaid Amount minus its (or its
Affiliate’s) Unpaid Swingline Participation (if any). If this produces a negative
figure for a Lender no amount need be paid by that Lender. |
|
|
(d) |
|
Out of the funds received by the Facility Agent pursuant to paragraph (c)
above, the Facility Agent shall pay to each Swingline Lender an amount equal to the
Shortfall (if any) of that Swingline Lender. |
|
|
(e) |
|
If the amount actually received by the Facility Agent from the Lenders is
insufficient to pay the full amount of the Shortfall of all Swingline Lenders, then
the amount actually received will be distributed amongst the Swingline Lenders pro
rata to the Shortfall of each Swingline Lender. |
|
(f) |
(i) |
|
On making a payment under this Clause 7.10, the paying Lender will be
subrogated to the rights of the Swingline Lenders which have shared in the payment
received. |
|
(ii) |
|
If and to the extent a paying Lender is not able to rely on
its rights under sub-paragraph (i) above, the relevant Borrower shall be
liable to the paying Lender for a debt equal to the amount the paying Lender
has paid under this Clause 7.10. |
|
(iii) |
|
Any payment under this Clause 7.10 does not increase or
reduce the obligations in aggregate of any Obligor. |
8. |
|
SUBSCRIPTION AND ISSUE OF NOTES |
|
8.1 |
|
Subscription for Notes |
|
|
|
Each Lender agrees to provide its proportion of an Australian Loan requested by an
Australian Borrower under this Agreement by subscribing for Notes to be issued by that
Australian Borrower under the relevant Note Deed Poll. Each Lender and the Facility
Agent agrees to be bound by each Note Deed Poll. |
|
8.2 |
|
Issue of Notes |
|
|
|
Each Lender, each Australian Borrower and the Facility Agent agrees that, on the
first Utilisation Date for an Australian Loan by an Australian Borrower under any
Facility, that Australian Borrower shall issue Notes in relation to that Facility to
each Lender which provides a proportion of the requested Australian Loan with: |
|
(a) |
|
a maximum aggregate principal amount equal to that Lender’s Commitment in
respect of that Facility plus AUS$1; and |
|
|
(b) |
|
an aggregate principal amount outstanding equal to that Lender’s
participation in all Australian Loans outstanding from time to time to that Australian
Borrower under that Facility plus AUS$1. |
9. |
|
PUBLIC OFFERS |
|
9.1 |
|
Satisfaction of public offer test |
|
(a) |
|
The Australian Borrowers: |
|
(i) |
|
confirm that they have made (orally or in writing)
invitations for participations in the Facilities being provided to the
Australian Borrowers and (if then issued) for the transfer or subscription of
the corresponding Notes and participations in the relevant Facility
(collectively Participations): |
|
(A) |
|
to at least ten parties, each of whom are not
Offshore Associates of the Australian Borrowers and are parties who
each carry on a business of providing finance or investing or dealing
in securities in the course of operating in financial markets (for the
purposes of section 128F(3)(a)(i) of the Australian Tax Act); and/or |
|
|
(B) |
|
as a result of negotiations being initiated
publicly, in an electronic form, or in another form, that is used by
financial markets for dealing in debentures or debt interests (for the
purposes of section 128F(3)(d) of the Australian Tax Act), such as
Reuters or Bloomberg; and |
|
(ii) |
|
confirm that, if an invitation referred to in paragraph
(i)(A) above has been made but an invitation referred to in paragraph (i)(B)
above has not been made, at least ten of the parties to whom they have made
the invitation referred to in paragraph (i)(A) above were not, as at the date
invitations were made, to the knowledge or reasonable suspicion of the
relevant officers of the Australian Borrowers involved in the transaction,
Associates of any of the other invitees. |
|
(b) |
|
Each Australian Borrower confirms that it has not and will not offer or sell
Participations to any person who that Australian Borrower knows or has reasonable
grounds to suspect is an Offshore Associate of that Australian Borrower or in
circumstances where any employee or officer of that Australian Borrower directly
involved in the offer or sale knows or has reasonable grounds to suspect that those
Participations (or an interest in or right in respect of them) are being or would be
acquired either directly or indirectly by an Offshore Associate of that Australian
Borrower (other than an Offshore Associate acting in the capacity of a dealer, manager
or underwriter in relation to the placement of those Participations or a clearing
house, custodian, funds manager or responsible entity of a registered scheme within
the meaning of the Corporations Act as permitted by section 128F(5) of the Australian
Tax Act). |
9.2 |
|
Participants’ representations and warranties |
|
|
|
Each Lender as at the date of this Agreement represents and warrants to the
Australian Borrowers as at the date of this Agreement that: |
43
|
(a) |
|
an offer to participate in the Facilities and for the transfer of or
subscription for Notes has been made to it by the Australian Borrowers; |
|
(b) |
|
(i) |
|
it is and, at the time it subscribes for or acquires a Note, it will be
carrying on the business of providing finance, or investing or dealing in securities,
in the course of operating in financial markets; or |
|
(ii) |
|
the issue of a Note will be as a result of negotiations being
initiated publicly in an electronic form, or in another form, that is used by
financial markets for dealing in debentures or debt interests; and |
|
(c) |
|
except as disclosed to the relevant Australian Borrower, it is not, and at
the time it acquires a Participation it will not be, so far as it has actual knowledge
or reasonable grounds to suspect, an Associate of the Facility Agent or the Australian
Borrowers. |
9.3 |
|
Information |
|
|
|
In connection with any Notes held by it or issued to it, each Lender will
provide to the relevant Australian Borrower when reasonably requested by the relevant
Australian Borrower any factual information in its possession or which it is
reasonably able to provide to assist it to demonstrate that: |
|
(a) |
|
the issue of the Notes satisfies the public offer test under section 128F of
the Australian Tax Act; and |
|
|
(b) |
|
payments of interest under the Notes are exempt from withholding tax under
that section of the Australian Tax Act, |
|
|
where to do so will not in the Lender’s reasonable opinion breach any law or
regulation or any duty of confidence. |
|
9.4 |
|
Selling restrictions |
|
|
|
Each Lender undertakes to each other Finance Party and to the Obligors that it
will not directly or indirectly offer or sell Notes or distribute or circulate any
offer document or other material in connection with the Notes in any jurisdiction
except under circumstances that would result in compliance with the laws and
regulations of that jurisdiction. The Notes may only be offered in the United States
to an “accredited investor” as defined in Rule 501(a)(1), (2) or (3) of Regulation D
under the United States Securities Act of 1933. |
|
10. |
|
REGISTER OF NOTES |
|
10.1 |
|
Establishment of Register for each Australian Borrower |
|
|
|
The Facility Agent must establish and maintain a Register for each Australian
Borrower. Each Register shall be maintained in London or any place in Australia
approved by the Obligors’ Agent (taking into account stamp duty considerations). |
44
|
(a) |
|
The Facility Agent must inscribe the following information in the Register of
the relevant Australian Borrower in respect of each Note issued by that Australian
Borrower: |
|
(i) |
|
the Facility in relation to which that Note is issued and its
issue date; |
|
|
(ii) |
|
the outstanding principal amount from time to time under that
Note; |
|
|
(iii) |
|
the name and address, at its Facility Office, of the Lender
which holds that Note; |
|
|
(iv) |
|
the account of the Lender to which payments in respect of
that Note are to be made; and |
|
|
(v) |
|
details of all transfers or assignments, advances and
repayments made in respect of that Australian Borrower’s Loan under the
Facility in relation to which that Note is issued and any redemption of all or
part of that Note. |
|
(b) |
|
The Facility Agent must update each Register to record changes notified to it
as at the date of any such notification. |
10.3 |
|
Register is paramount |
|
(a) |
|
Each Australian Borrower and the Facility Agent shall recognise the Lender
whose name appears in the Register for that Australian Borrower as the absolute owner
of the relevant Notes inscribed in its name on that Register without regard to any
other record or instrument. |
|
|
(b) |
|
No notice of any trust or other interest in any Note will be entered on the
relevant Register. No Australian Borrower nor the Facility Agent need take notice of
any other interest in, or claim to, a Note, except as ordered by a court of competent
jurisdiction or required by law. |
10.4 |
|
Inspection of Register |
|
(a) |
|
Subject to paragraph (b) below, the Facility Agent shall make available a
copy of (or an extract of) a Register to any Australian Borrower, the Obligors’ Agent
or a Lender upon not less than three Business Days’ written notice. |
|
|
(b) |
|
The Facility Agent is not required to make any Register or a copy of any
Register available to any Lender except: |
|
(i) |
|
where the Lender wishes to inspect only the part of the
Register that provides particulars of the Notes held by it; or |
|
|
(ii) |
|
where otherwise required by law or by a Government Agency. |
45
10.5 |
|
Receipt of payments |
|
|
|
On receipt of any payment from a Lender under Clause 8 (Subscription And Issue
Of Notes), the Facility Agent will: |
|
(a) |
|
pay that amount to the relevant Australian Borrower in accordance with Clause
36 (Payment Mechanics) to the account and bank specified by or on behalf of that
Australian Borrower in the Utilisation Request; and |
|
|
(b) |
|
complete the issue of the Notes referred to in Clause 8.1 (Subscription for
Notes) by entering them in the Register. |
10.6 |
|
Amendment of Register |
|
|
|
In the case of each Utilisation by an Australian Borrower (other than the first)
and each repayment or prepayment of any Utilisation which was made by an Australian
Borrower, the Facility Agent must amend the Register to reflect the revised principal
amount outstanding on the relevant Australian Borrower’s Notes under that Facility. |
|
10.7 |
|
Transfer not effective until recorded in Register |
|
(a) |
|
Even if the Facility Agent has received a Transfer Certificate or instrument
of transmission in relation to a Note, the person recorded in the relevant Register as
the holder of that Note remains the owner of that Note for all purposes until the name
of the transferee or transmittee is entered in that Register as the holder of that
Note. |
|
|
(b) |
|
A transferee or transmittee of a Note will be treated as the holder of that
Note from the date and time its name is entered in the relevant Register. Without
limiting this, the transferee or transmittee of a Note will be entitled to receive any
payments then due or to become due to the holder of that Note, and the relevant
Australian Borrower will fully discharge its obligations under this document by making
that payment to the transferee or transmittee whether or not all or any part of that
payment had accrued before the date on which and time at which the transferee or
transmittee is entered on the relevant Register. |
11. |
|
OPTIONAL CURRENCIES |
|
11.1 |
|
Selection of currency |
|
|
|
A Borrower (or the Obligors’ Agent on its behalf) shall select the currency of
a Loan (other than a Swingline Loan) in a Utilisation Request. |
|
11.2 |
|
Unavailability of a currency |
|
|
|
If, before the Specified Time on any Quotation Day in relation to a Loan
denominated in an Optional Currency: |
|
(a) |
|
the Facility Agent has received notice from a Lender that the Optional
Currency requested is not readily available to it in the amount required; or |
46
|
(b) |
|
a Lender notifies the Facility Agent that compliance with its obligation to
participate in a Loan in the proposed Optional Currency would contravene a law or
regulation applicable to it, |
|
|
the Facility Agent will give notice to the Obligors’ Agent to that effect by the
Specified Time on that day. In this event, any Lender that gives notice pursuant to
this Clause 11.2 will be required to participate in the Loan in the Base Currency (in
an amount equal to that Lender’s proportion of the Base Currency Amount or, in respect
of a Rollover Loan, an amount equal to that Lender’s proportion of the Base Currency
Amount of the Rollover Loan that is due to be made) and its participation will be
treated as a separate Loan denominated in the Base Currency during that Interest
Period. |
|
11.3 |
|
Facility Agent’s calculations |
|
|
|
Each Lender’s participation in a Loan will be determined in accordance with
paragraph (b) of Clause 5.4 (Lenders’ participation). |
|
12. |
|
REPAYMENT |
|
12.1 |
|
Repayment of Term Loans |
|
|
|
All Term Loans must be repaid in full by the relevant Borrower of any such Loan
on or before the Final Maturity Date. |
|
12.2 |
|
Repayment of Revolving Facility Loans |
|
(a) |
|
Each Borrower which has drawn a Revolving Facility Loan shall repay that
Revolving Facility Loan on the last day of its Interest Period. |
|
|
(b) |
|
Without prejudice to each Borrower’s obligation under paragraph (a) above, if
one or more Revolving Facility Loans are to be made available to a Borrower: |
|
(i) |
|
on the same day that a maturing Revolving Facility Loan is
due to be repaid by that Borrower; |
|
|
(ii) |
|
in the same currency as the maturing Revolving Facility Loan
(unless it arose as a result of the operation of Clause 11.2 (Unavailability
of a currency)); and |
|
|
(iii) |
|
in whole or in part for the purpose of refinancing the
maturing Revolving Facility Loan; |
|
|
|
the aggregate amount of the new Revolving Facility Loans shall, unless the
Obligors’ Agent notifies the Facility Agent to the contrary in its Utilisation
Request, be treated as if applied in or towards repayment of the maturing Revolving
Facility Loan so that: |
|
(A) |
|
if the amount of the maturing Revolving Facility Loan exceeds
the aggregate amount of the new Revolving Facility Loans: |
47
|
(1) |
|
the relevant Borrower will only be required
to pay an amount in accordance with Clause 36.1 (Payments to an
Agent) in the relevant currency equal to that excess; and |
|
|
(2) |
|
each Lender’s participation (if any) in the
new Revolving Facility Loans shall be treated as having been made
available and applied by the Borrower in or towards repayment of that
Lender’s participation (if any) in the maturing Revolving Facility
Loan and that Lender will not be required to make its participation
in the new Revolving Facility Loans available in accordance with
Clause 36.1 (Payments to an Agent); and |
|
(B) |
|
if the amount of the maturing Revolving Facility Loan is
equal to or less than the aggregate amount of the new Revolving Facility
Loans: |
|
(1) |
|
the relevant Borrower will not be required
to make any payment in accordance with Clause 36.1 (Payments to an
Agent); and |
|
|
(2) |
|
each Lender will be required to make its
participation in the new Revolving Facility Loans available in
accordance with Clause 36.1 (Payments to an Agent) only to the extent
that its participation (if any) in the new Revolving Facility Loans
exceeds that Lender’s participation (if any) in the maturing Revolving
Facility Loan and the remainder of that Lender’s participation in the
new Revolving Facility Loans shall be treated as having been made
available and applied by the Borrower in or towards repayment of that
Lender’s participation in the maturing Revolving Facility Loan. |
|
(c) |
|
All Revolving Facility Loans must be repaid in full on or before the Final
Maturity Date. |
|
|
(d) |
|
At any time when a Lender becomes a Defaulting Lender, the maturity date of
each of the participations of that Lender in any Revolving Facility Loans then
outstanding will be automatically extended to the Final Maturity Date and will be
treated as separate Revolving Facility Loans (the Separate Loans) denominated in the
currency in which the relevant participations are outstanding. |
|
|
(e) |
|
A Borrower to whom a Separate Loan is outstanding may prepay that Loan by
giving three Business Days’ prior notice to the Facility Agent. The Facility Agent
will forward a copy of a prepayment notice received in accordance with this paragraph
(e) to the Defaulting Lender concerned as soon as practicable on receipt. Clause 35
(Sharing Among the Lenders) will not apply to the prepayment of a Separate Loan. |
|
|
(f) |
|
Interest in respect of a Separate Loan will accrue for successive Interest
Periods selected by the relevant Borrower by the time and date specified by the
Facility Agent (acting reasonably) and will be payable by that Borrower to the
Defaulting Lender on the last day of each Interest Period of that Loan. |
48
|
(g) |
|
The terms of this Agreement relating to Revolving Facility Loans generally
shall continue to apply to Separate Loans other than to the extent inconsistent with
paragraphs (c) to (f) above, in which case those paragraphs shall prevail in respect
of any Separate Loan. |
|
(a) |
|
No Borrower may reborrow any part of a Term Loan Facility which is repaid. |
|
|
(b) |
|
Any part of a Revolving Facility Loan which is repaid may be reborrowed in
accordance with the terms of this Agreement. |
13. |
|
PREPAYMENT AND CANCELLATION |
|
13.1 |
|
Illegality |
|
|
|
If it becomes unlawful in any applicable jurisdiction for a Lender to perform
any of its obligations as contemplated by this Agreement or to fund or maintain its
participation in any Loan: |
|
(a) |
|
that Lender shall promptly notify the Facility Agent upon becoming aware of
that event; |
|
|
(b) |
|
upon the Facility Agent notifying the Obligors’ Agent, the Commitment of that
Lender will be immediately cancelled; and |
|
|
(c) |
|
each Borrower shall repay that Lender’s participation in the Loans made to
that Borrower on the last day of the Interest Period for each Loan occurring after the
Facility Agent has notified the Obligors’ Agent or, if earlier, the date specified by
the Lender in the notice delivered to the Facility Agent (being no earlier than the
last day of any applicable grace period permitted by law), |
|
|
provided that each Borrower may replace that Lender in accordance with Clause 13.9 (Right
of repayment and cancellation in relation to a single Lender) on or before the
applicable date under paragraph (c) above in relation to each Loan (in which case, for
the purposes of the operation of this proviso only, the Commitment of that Lender
shall, notwithstanding paragraph (b) above, be reinstated immediately prior to the
effectiveness of such replacement). |
|
13.2 |
|
Change of control |
|
(a) |
|
If a person (or group of persons acting in concert) gains control of either
of the Companies (other than as contemplated in Clause 43.7 (New Holding Company)): |
|
(i) |
|
the Obligors’ Agent shall promptly notify the Facility Agent;
and |
|
|
(ii) |
|
the Facility Agent and the Obligors’ Agent shall on such
notification enter into negotiations (for a period of not more than 30 days)
with a view to agreeing any changes that may be required to be made to this |
49
|
|
|
Agreement as a consequence of that event if the Lenders are to continue
making available the Facilities and to leave the relevant loans outstanding
(the Requested Changes). |
|
(b) |
|
If any Requested Changes have been requested but, at the end of the period
referred to in paragraph (a)(ii) above, the Requested Changes have not been made to
this Agreement, at any time within 30 days after the last day of the period referred
to in paragraph (a)(ii) above, each Borrower must make an offer (a Prepayment Offer)
to each Lender to prepay all outstanding Loans made to it. If a Lender (an Accepting
Lender) wishes to accept the Prepayment Offer, it must do so by giving notice to the
Obligors’ Agent and the Facility Agent within 30 days after receipt by it of the
Prepayment Offer. |
|
|
(c) |
|
Not later than the date falling 45 days after the date of the Prepayment
Offer, each Borrower shall prepay the Loans made to it by each Accepting Lender
(together with accrued interest and all other amounts payable to the Accepting Lenders
under the Finance Documents) and each Accepting Lender’s Commitments will be
irrevocably cancelled in full. |
|
|
(d) |
|
For the purposes of paragraph (a) above, control means: |
|
(i) |
|
the power (whether by way of ownership of shares, proxy,
contract, agency or otherwise) to cast, or control the casting of, more than
50 per cent. of the maximum number of votes attached to the Publicly-held
Shares of each of the Companies that are entitled to be cast on an individual
shareholder resolution of one of the Companies or of both of the Companies
pursuant to a Joint Electorate Action (as defined in the articles of
association of each of the Companies), as the case may be; or |
|
|
(ii) |
|
the holding beneficially (directly or indirectly) of more
than 50 per cent. of the Publicly-held Shares of the Companies. |
13.3 |
|
Automatic cancellation |
|
(a) |
|
The Available Facility in relation to a Facility shall be automatically
cancelled on expiry of the Availability Period relating to that Facility. |
|
|
(b) |
|
The Available Facility in relation to the Revolving Facility shall be
automatically cancelled on expiry of the Availability Period relating to the Term
Facility unless, at any time prior to that time, the Term Facility has been utilised. |
13.4 |
|
Voluntary cancellation |
|
(a) |
|
The Obligors’ Agent may, if it gives the Facility Agent not less than three
Business Days’ (or such shorter period as the Majority Lenders may agree) prior
notice, cancel the whole or any part (being a minimum amount of US$10,000,000) of an
Available Facility, provided that such cancellation does not result in a breach of
Clause 7.9 (Conditions of assignment or transfer). |
50
|
(b) |
|
Any cancellation under paragraph (a) above may be applied to any Facility at
the discretion of the Obligors’ Agent and will reduce the Commitments of the Lenders
under each relevant Facility rateably. |
13.5 |
|
Cancellation on termination of Acquisition |
|
|
|
The Total Commitments shall be automatically cancelled if: |
|
(a) |
|
the Merger Agreement (or any substitute Acquisition Document which replaces
it) is terminated in accordance with its terms (including, without limitation, as a
result of the expiry of a long stop date to which such document is subject) and the
Companies have not (i) within 10 days of such termination, notified the Facility Agent
in writing that the Companies are continuing to consider whether to pursue the
Acquisition and (ii) within 30 days of such termination, notified the Facility Agent
in writing that the board of directors of the Companies (or a duly appointed committee
or delegate thereof) has resolved to continue to pursue the Acquisition; or |
|
|
(b) |
|
the Companies notify the Facility Agent in writing that the board of
directors of the Companies (or a duly appointed committee or delegate thereof) has
resolved no longer to pursue the Acquisition. |
13.6 |
|
Voluntary prepayment |
|
(a) |
|
The Borrower to which a Loan has been made may, if the Obligors’ Agent gives
the Facility Agent not less than three Business Days’ (or such shorter period as the
Majority Lenders may agree) prior written notice (signed by an authorised officer of
the Obligors’ Agent and identifying the Loan which is to be prepaid), prepay the whole
or any part of the Loan (but if in part, being an amount that reduces the Base
Currency Amount of the relevant Loan by a minimum amount of US$10,000,000). |
|
|
(b) |
|
Any voluntary prepayment under paragraph (a) above may be applied to any
Facility at the discretion of the Obligors’ Agent and will be applied to reduce the
outstanding Loans of the Lenders under each such Facility rateably. |
13.7 |
|
Mandatory prepayment from Net Disposal Proceeds |
|
(a) |
|
In this Clause 13.7: |
|
|
|
|
Disposal means the sale, transfer or other disposal (whether by a voluntary or
involuntary single transaction or series of transactions) of: |
|
(a) |
|
any business or undertaking (or any asset or assets which
comprise, or represent the shares or other ownership interest in a business or
undertaking) of any member of the Group; or |
|
|
(b) |
|
any part of a business or undertaking (other than a sale,
transfer or disposal in the ordinary course of business) of any member of the
Group. |
51
|
|
|
Excluded Disposal Proceeds means the proceeds of any Disposal: |
|
(a) |
|
where the Net Disposal Proceeds of such Disposal (when
aggregated with the Net Disposal Proceeds of any related Disposal) are less
than US$1,000,000,000 (or its equivalent in other currencies); |
|
|
(b) |
|
which is by one member of the Group to another member of the
Group; |
|
|
(c) |
|
which is a Disposal in exchange for assets comparable or
superior in value; |
|
|
(d) |
|
which is a Disposal by a Joint Venture, Project Company or
member of the Target Group, to the extent that the proceeds of that Disposal
are required, by an obligation binding on that Joint Venture, Project Company
or member of the Target Group (as the case may be), to be applied in repayment
or prepayment of any indebtedness of that Joint Venture, Project Company or
the Target Group (as the case may be) and either: |
|
(i) |
|
such obligation was in existence prior to the
Closing Date; or |
|
|
(ii) |
|
the relevant Disposal is by a Project Company
of assets forming part of one of the following projects: |
|
(A) |
|
the Escondida Project; |
|
|
(B) |
|
the Cerro Matoso Project; |
|
|
(C) |
|
the Maruwai Coal Project; |
|
|
(D) |
|
the Guinea Alumina Project; |
|
|
(E) |
|
the Guinea/Liberia Iron Ore
Project; or |
|
|
(F) |
|
the Newcastle
Infrastructure Project; or |
|
(e) |
|
which is a Disposal by a Joint Venture and the proceeds of
that Disposal are not received by a wholly-owned Subsidiary of a Company,
provided that the Companies shall use reasonable endeavours to procure that
such proceeds are paid (in whole or in part, such part being no lower a
proportion of the total proceeds than the proportionate applicable economic
entitlement of the Group in the relevant Joint Venture, and directly or
indirectly) to a wholly-owned Subsidiary of a Company as soon as practicable
after the date of receipt of such proceeds (whether by loan, dividend or
otherwise) and, upon receipt by a wholly-owned Subsidiary of a Company, such
proceeds (or the relevant part) shall cease to be Excluded Disposal Proceeds
and shall be applied in prepayment and/or cancellation of Loans and/or
Available Facilities in accordance with paragraphs (b) and (c) below. |
52
|
|
|
Net Disposal Proceeds means the cash or cash equivalent proceeds
(including, when received, the cash or cash equivalent proceeds of any
deferred consideration, whether by way of adjustment to the purchase price or
otherwise) received by a member of the Group in connection with any Disposal,
after deducting: |
|
(a) |
|
all fees and transaction costs and expenses properly incurred
in connection with: |
|
(i) |
|
that Disposal; and |
|
|
(ii) |
|
the transfer of such proceeds to a Borrower
in order to comply with this Clause 13.7; and |
|
(b) |
|
any Taxes paid or reasonably estimated by the Companies to be
payable as a result of that Disposal (or transferring such proceeds to a
Borrower). |
|
(b) |
|
The Obligors’ Agent shall notify the Facility Agent immediately on receipt of
any Net Disposal Proceeds by any member of the Group (other than Excluded Disposal
Proceeds) and shall apply (or shall procure that the Borrowers shall apply) an amount
equal to such Net Disposal Proceeds (other than any Excluded Disposal Proceeds): |
|
(i) |
|
where such Net Disposal Proceeds are received by a member of
the Target Group after the Closing Date but prior to the date falling 30 days
after the Wholly-owned Date, in prepayment and/or cancellation of Loans and/or
Available Facilities in the manner set out in paragraph (c) below, in the case
of any prepayment, on the last day of the applicable Interest Period(s) during
which the day that is 30 days after the Wholly-owned Date falls and, in the
case of any cancellation, immediately on the day of notification of the
receipt of such Net Disposal Proceeds; or |
|
|
(ii) |
|
in all other cases, in prepayment and/or cancellation of
Loans and/or Available Facilities in the manner set out in paragraph (c)
below, in the case of any prepayment, on the last day of the applicable
Interest Period(s) during which the Net Disposal Proceeds are received by a
member of the Group and, in the case of any cancellation, immediately on the
day of notification of the receipt of such Net Disposal Proceeds. |
|
(c) |
|
Any mandatory prepayment and/or cancellation of Loans and/or Available
Facilities made pursuant to this Clause 13.7 shall be applied in the following manner: |
|
(i) |
|
first, in or towards prepayment pro rata of any Term Loans
and, to the extent that the amount of the Net Disposal Proceeds (other than
Excluded Disposal Proceeds) exceeds the outstanding amount of the Term Loans
at that time, in cancellation of the Available Facility under the Term
Facility in an amount equal to that excess on the day of notification of the
receipt of such Net Disposal Proceeds; and |
53
|
(ii) |
|
second, in or towards cancellation of the Available Facility
under the Revolving Facility and, to the extent that the amount of the Net
Disposal Proceeds (other than Excluded Disposal Proceeds) not applied in
accordance with paragraph (c)(i) above exceeds the Available Facility under
the Revolving Facility at that time, in prepayment pro rata of any Revolving
Facility Loans in an amount equal to that excess on the day of notification of
the receipt of such Net Disposal Proceeds. |
13.8 |
|
Mandatory prepayment from Net Capital Markets Proceeds |
|
(a) |
|
In this Clause 13.8: |
|
|
|
|
Capital Markets Issue means: |
|
(a) |
|
the issue of any share or stock (whether or not ordinary or
preference and whether or not redeemable), warrant, depository receipt, option
or other equity or quasi-equity instrument to any person that is not a member
of the Group; |
|
|
(b) |
|
the issue of any bond, note or other debt security with a
maturity of more than one year to any person that is not a member of the
Group; or |
|
|
(c) |
|
any loan with a maturity of more than one year made by any
person that is not a member of the Group under any syndicated or bilateral
loan facility entered into after the date of this Agreement. |
|
|
|
Excluded Capital Markets Issue means any Capital Markets Issue: |
|
(a) |
|
the proceeds of which are used to refinance or replace
(directly or indirectly), (i) in the same or a lower amount, all or any
portion of any loan facility or any issue of securities of any member of the
Group (including, after the Closing Date, the Target Group) existing at the
date of this Agreement (in the case of the BHP Billiton Group) or the Closing
Date (in the case of the Target Group) upon (or in contemplation of) its
maturity or which has become due as a result of the Acquisition or (ii) the
Financial Indebtedness under any Relevant Target Facility under which a
Relevant Event of Default (each as defined in Clause 27.8 (Target Financial
Indebtedness)) has occurred and is continuing; |
|
|
(b) |
|
by a Project Company or Joint Venture (but only to the extent
the Financial Indebtedness incurred in respect of such Capital Markets Issue
meets the requirements contained in sub-paragraph (a)(ii)(A) or sub-paragraph
(a)(ii)(B) of Clause 27.10 (Project Companies) or the definition of Joint
Venture, as the case may be); |
|
|
(c) |
|
where the shares or other instruments or securities are
issued to employees or officers of the Companies or other members of the
Group, or in lieu of dividends; |
54
|
(d) |
|
where the shares or other instruments or securities are
issued by one member of the Group to another member of the Group or in
relation to the insertion of a New Holding Company as contemplated by Clause
43.7 (New Holding Company); or |
|
|
(e) |
|
where the amount of proceeds received by any member of the
Group from that Capital Markets Issue (when aggregated with the proceeds of
any other Capital Markets Issue made after the date of this Agreement which is
not an Excluded Capital Markets Issue under any of paragraphs (a) to (d)
above) are less than US$500,000,000 (or its equivalent in other currencies). |
|
|
|
Net Capital Markets Proceeds means the cash or cash equivalent proceeds of any
Capital Markets Issue (other than an Excluded Capital Markets Issue) received by
any member of the Group, after deducting: |
|
(a) |
|
all fees and transaction costs and expenses properly incurred
in connection with: |
|
(i) |
|
the raising of those proceeds; and |
|
|
(ii) |
|
the transfer of such proceeds to a Borrower
in order to comply with this Clause 13.8; and |
|
(b) |
|
any Taxes paid or reasonably estimated by the Companies to be
payable as a result of the raising of those Capital Markets Proceeds (or
transferring such proceeds to a Borrower). |
|
(b) |
|
The Obligors’ Agent shall notify the Facility Agent immediately on receipt of
any Net Capital Markets Proceeds by any member of the Group and shall apply (or shall
procure that the Borrowers shall apply) an amount equal to such Net Capital Markets
Proceeds in prepayment and/or cancellation of Loans and/or Available Facilities in the
manner set out in paragraph (c) below, in the case of any prepayment, on the last day
of the applicable Interest Period(s) during which the Net Capital Markets Proceeds are
received by a member of the Group and, in the case of any cancellation, immediately on
the day of notification of the receipt of such Net Capital Markets Proceeds. |
|
|
(c) |
|
Any mandatory prepayment and/or cancellation of Loans and/or Available
Facilities made pursuant to this Clause 13.8 shall be applied in the following manner: |
|
(i) |
|
first, in or towards prepayment pro rata of any Term Loans
and, to the extent that the amount of the Net Capital Markets Proceeds exceeds
the outstanding amount of the Term Loans at that time, in cancellation of the
Available Facility under the Term Facility in an amount equal to that excess
on the day of notification of the receipt of the Net Capital Markets Proceeds;
and |
55
|
(ii) |
|
second, in or towards cancellation of the Available Facility
under the Revolving Facility and, to the extent that the amount of the Net
Capital Markets Proceeds not applied in accordance with paragraph (c)(i) above
exceeds the Available Facility under the Revolving Facility at that time, in
prepayment pro rata of any Revolving Facility Loans in an amount equal to that
excess on the day of notification of the receipt of the Net Capital Markets
Proceeds. |
13.9 |
|
Right of repayment and cancellation in relation to a single Lender |
|
(i) |
|
any sum payable to any Lender by an Obligor is required to be
increased under paragraph (c) of Clause 18.3 (Tax gross-up); |
|
|
(ii) |
|
any Lender claims indemnification from the Obligors’ Agent
under Clause 18.4 (Tax indemnity) or Clause 19.1 (Increased Costs); or |
|
|
(iii) |
|
any Lender notifies the Agent of its Additional Cost Rate
under paragraph 3 of Schedule 4 (Mandatory Cost Formulae), |
|
|
|
the Obligors’ Agent may, whilst the circumstance giving rise to the requirement for
that increase or indemnification or the claim for that Additional Cost Rate
continues, either give the Facility Agent notice of cancellation of the Commitment
of that Lender and its intention to procure the repayment of that Lender’s
participation in the Loans or request that Lender to transfer its Commitment and
its participation in the Loans (and, in the case of Loans to an Australian
Borrower, the corresponding Notes) in accordance with paragraph (b) below. |
|
|
(b) |
|
The Obligors’ Agent may, in the circumstances set out in paragraph (a) above
or in the circumstances set out in Clause 13.1 (Illegality), request that the affected
Lender transfer its Commitment and its participation in the Loans (and, in the case of
Loans to an Australian Borrower, the corresponding Notes) pursuant to Clause 30.6
(Procedure for transfer) to a replacement bank or financial institution as the
Obligors’ Agent shall specify (and such transfer shall be made against payment at par
of an amount equal to the outstanding principal of such Loans together with all
interest, any Break Costs (determined as if the relevant Lender had been prepaid on
the date of the transfer) and other amounts accrued under the Finance Documents). |
|
|
(c) |
|
If any Lender is involved in a merger, amalgamation, consolidation or
reorganisation involving another Lender or, as a result of an acquisition, two Lenders
become Affiliates: |
|
(i) |
|
the Obligors’ Agent may (after prior consultation with the
relevant Lenders), request that one of the relevant Lenders (the Merging
Lenders) transfer their participations in the Facilities to a replacement
lender acceptable to the Obligors’ Agent; |
56
|
(ii) |
|
the Merging Lenders shall use all reasonable endeavours to
comply with any request referred to in paragraph (c)(i) above; and |
|
|
(iii) |
|
if the Commitments of the Merging Lenders are not
transferred in accordance with paragraph (c)(i) above, the Obligors’ Agent may
give the Facility Agent notice in writing of cancellation of such part of the
Commitment of the Merging Lenders and its intention to procure the repayment
of each Merging Lender’s participation in the Loans as will result in the
aggregate Commitments of the Merging Lenders immediately after such
cancellation not exceeding the higher of the respective Commitments of each
Merging Lender immediately prior to such cancellation. |
|
(d) |
|
On receipt of a notice of cancellation referred to in paragraph (a) above,
the Commitment of that Lender shall immediately be reduced to zero. If the Obligors’
Agent serves a notice pursuant to paragraph (c)(iii) above, the Commitment of the
relevant Lenders shall be reduced to the level specified in paragraph (c)(iii) above
on such date as is specified by the Obligors’ Agent, being a date no earlier than the
date on which the merger, amalgamation, consolidation, acquisition or reorganisation
referred to in paragraph (c) above takes effect. |
|
|
(e) |
|
On the last day of each Interest Period which ends after the Obligors’ Agent
has given notice of cancellation under paragraph (a) or (c) above (or, if earlier, the
date specified by the Obligors’ Agent in that notice), each Borrower to which a Loan
is outstanding shall repay (in whole or in part, as the case may be) that Lender’s
participation in that Loan. |
13.10 |
|
Unlawfulness for a Borrower |
|
(a) |
|
If it becomes unlawful for a Borrower to perform any of its obligations under
this Agreement, then such affected Borrower will prepay all Loans outstanding to it. |
|
|
(b) |
|
Upon prepayment by such affected Borrower, it will cease to be a Borrower. |
13.11 |
|
Right of cancellation and prepayment in relation to a Defaulting Lender |
|
(a) |
|
If any Lender becomes a Defaulting Lender, the Obligors’ Agent may, at any
time whilst the Lender continues to be a Defaulting Lender, give the Facility Agent 10
Business Days’ notice of (i) the cancellation of each Available Commitment of that
Lender and the date thereof, and, if it so wishes, (ii) its intention to procure the
repayment of that Lender’s participation in the Loans and the date thereof. |
|
|
(b) |
|
On the notice referred to in paragraph (a)(i) above becoming effective, each
Available Commitment of the Defaulting Lender shall immediately be reduced to zero. |
|
|
(c) |
|
The Facility Agent shall, as soon as practicable after receipt of a notice
referred to in paragraph (a) above, notify all the Lenders. |
57
|
(d) |
|
On the last day of each Interest Period which ends after the Obligors’ Agent
has given notice of repayment under paragraph (a) above (or, if earlier, the date
specified by the Obligors’ Agent in that notice), each Borrower to which a Loan is
outstanding shall repay that Lender’s participation in that Loan. |
13.12 |
|
Terms of cancellation and prepayment |
|
(a) |
|
Any notice of cancellation or prepayment given by any Party under this Clause
13 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. |
|
|
(b) |
|
Any prepayment under this Agreement shall be made together with accrued
interest on the amount prepaid and, subject to any Break Costs, without premium or
penalty. |
|
|
(c) |
|
No Borrower may reborrow any part of the Term Facility which is prepaid. |
|
|
(d) |
|
Unless a contrary indication appears in this Agreement, any part of the
Revolving Facility which is prepaid may be reborrowed in accordance with the terms of
this Agreement. |
|
|
(e) |
|
The Borrowers shall not repay or prepay all or any part of the Loans or
cancel all or any part of the Commitments except at the times and in the manner
expressly provided for in this Agreement. |
|
|
(f) |
|
Subject to Clauses 2.2 (Increase) and 13.1 (Illegality), no amount of the
Total Commitments cancelled under this Agreement may be subsequently reinstated. |
|
|
(g) |
|
If the Facility Agent receives a notice under this Clause 13 it shall
promptly forward a copy of that notice to the Companies, the Obligors’ Agent or the
affected Lender(s), as appropriate. |
|
|
(h) |
|
Any term of Clause 13.7 (Mandatory prepayment from Net Disposal Proceeds) and
Clause 13.8 (Mandatory prepayment from Net Capital Markets Proceeds) may be amended or
waived with the consent of the Majority Lenders and the Obligors’ Agent and any such
amendment or waiver shall be binding on all Parties. |
14. |
|
INTEREST |
|
14.1 |
|
Calculation of interest |
|
(a) |
|
Subject to Clause 16 (Changes To The Calculation Of Interest), the rate of
interest on each Loan (other than a Swingline Loan) for each Interest Period is the
percentage rate per annum which is the aggregate of the applicable: |
58
|
(ii) |
|
in relation to any Loan in euro, EURIBOR and, in relation to
any other currency, LIBOR; and |
|
|
(iii) |
|
Mandatory Cost, if any. |
|
(b) |
|
The rate of interest under the Dollar Swingline Facility will be determined
in accordance with Clause 7.5 (Dollar Swingline Facility rate of interest). |
|
|
(c) |
|
The rate of interest under the Euro Swingline Facility will be determined in
accordance with Clause 7.6 (Euro Swingline Facility rate of interest). |
14.2 |
|
Payment of interest |
|
|
|
Each Borrower (other than an Australian Borrower) to which a Loan has been made
shall pay accrued interest on that Loan on the last day of each Interest Period (and,
if the Interest Period is longer than six Months, on the date falling six Months after
the first day of the Interest Period). |
|
14.3 |
|
Margin step-up |
|
|
|
The Margin will be increased to: |
|
(a) |
|
0.70 per cent. per annum on and with effect from the day after the date
falling four Months after the date of this Agreement; and |
|
|
(b) |
|
0.90 per cent. per annum on and with effect from the day after the date
falling eight Months after the date of this Agreement. |
|
(a) |
|
If an Obligor (other than an Australian Borrower) 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 1 per cent. higher than the rate which would have been
payable if the overdue amount had, during the period of non-payment, constituted a
Loan in the currency of the overdue amount for successive Interest Periods under the
relevant Facility (or, if the overdue amount does not relate to a particular Facility,
under the Revolving Facility), each of a duration selected by the Facility Agent
(acting reasonably). Any interest accruing under this Clause 14.4 shall be immediately
payable by the Obligor on demand by the Facility Agent. |
|
|
(b) |
|
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. |
14.5 |
|
Notification of rates of interest |
|
|
|
The Facility Agent shall promptly notify the Lenders and the Obligors’ Agent of
the determination of a rate of interest under this Agreement. |
59
15. |
|
INTEREST PERIODS |
|
15.1 |
|
Selection of Interest Periods |
|
(a) |
|
A Borrower (or the Obligors’ Agent on its behalf) may select an Interest
Period for a Loan in the Utilisation Request for that Loan or (if the Loan has already
been borrowed) in a Selection Notice. |
|
|
(b) |
|
Each Selection Notice for a Loan is irrevocable and must be delivered to the
Facility Agent by the relevant Borrower (or the Obligors’ Agent on its behalf) not
later than the Specified Time. |
|
|
(c) |
|
If the relevant Borrower (or the Obligors’ Agent on its behalf) fails to
deliver a Selection Notice to the Facility Agent in accordance with paragraph (b)
above, the relevant Interest Period will be three Months. |
|
|
(d) |
|
Subject to this Clause 15, a Borrower (or the Obligors’ Agent on its behalf)
may select an Interest Period of one, two, three or six Months or any other period
(not exceeding six Months) agreed between the Obligors’ Agent and the Facility Agent
(acting on the instructions of the Majority Lenders) or any other period (not
exceeding 364 days) agreed between the Obligors’ Agent and the Facility Agent (acting
on the instructions of all the Lenders). |
|
|
(e) |
|
An Interest Period for a Loan shall not extend beyond the Final Maturity
Date. |
|
|
(f) |
|
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. |
|
|
(g) |
|
Any Revolving Facility Loan shall have one Interest Period only. |
15.2 |
|
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 and that Business Day does not fall after the Final Maturity Date) or
the preceding Business Day (if there is not or if that Business Day falls after the
Final Maturity Date). |
|
15.3 |
|
Consolidation and division of Loans |
|
(a) |
|
If two or more Interest Periods: |
|
(i) |
|
relate to Loans in the same currency and under the same
Facility; |
|
|
(ii) |
|
end on the same date; and |
|
|
(iii) |
|
are made to the same Borrower, |
|
|
|
those Loans will, unless the relevant Borrower (or the Obligors’ Agent on its
behalf) specifies to the contrary in the Selection Notice for the next Interest |
60
|
|
|
Period, be consolidated into, and treated as, a single Loan on the last day of the
Interest Period. |
|
|
(b) |
|
Subject to Clause 4.4 (Maximum number of Loans) and Clause 5.3 (Currency and
amount)) if a Borrower (or the Obligors’ Agent on its behalf) requests in a Selection
Notice that a Term Loan be divided into two or more Term Loans, that Term Loan will,
on the last day of its Interest Period, be so divided into Loans in the amounts
specified in that Selection Notice provided that each such Term Loan shall be
denominated in the same currency as the original Term Loan and the aggregate Base
Currency Amount of the divided Term Loans shall be equal to the Base Currency Amount
of the original Term Loan immediately before its division. |
16. |
|
CHANGES TO THE CALCULATION OF INTEREST |
|
16.1 |
|
Absence of quotations |
|
|
|
Subject to Clause 16.2 (Market disruption): |
|
(a) |
|
if LIBOR or, if applicable, EURIBOR is to be determined by reference to the
Reference Banks but one or more Reference Banks do not supply a quotation by the
Specified Time on the Quotation Day, the applicable LIBOR or EURIBOR shall be
determined on the basis of the quotations of the remaining Reference Banks; or |
|
|
(b) |
|
if Clause 16.3 (Alternative Reference Bank Rate) applies but one or more
Alternative Reference Banks do not supply a quotation before close of business in
London on the date falling one Business Day after the Quotation Day for that Loan, the
applicable Alternative Reference Bank Rate shall be determined on the basis of the
quotations of the remaining Alternative Reference Banks. |
|
(a) |
|
If a Market Disruption Event occurs in relation to a Loan for any Interest
Period, then the rate of interest on each Lender’s share of that Loan for the Interest
Period shall be the rate per annum which is the sum of: |
|
(i) |
|
the Margin; |
|
|
(ii) |
|
the Alternative Reference Bank Rate or (if an Alternative
Market Disruption Event has occurred with respect to that Loan for the
relevant Interest Period of that Loan) the rate notified to the Facility Agent
by that Lender as soon as practicable, and in any event by close of business
on the date falling two Business Days after the Quotation Day (or, if earlier,
on the date falling two Business Days prior to the date on which interest is
due to be paid in respect of that Interest Period), to be that which expresses
as a percentage rate per annum the cost to that Lender of funding its
participation in that Loan from whatever source it may reasonably select; and |
61
|
(iii) |
|
the Mandatory Cost, if any, applicable to that Lender’s
participation in the Loan. |
|
(b) |
|
If a Lender has not notified the Facility Agent of a percentage rate per
annum pursuant to paragraph (a)(ii) above, the cost to that Lender of funding its
participation in that Loan for that Interest Period shall be deemed, for the purposes
of paragraph (a) above, to be the Alternative Reference Bank Rate or, if none of the
Alternative Reference Banks has supplied a rate to the Facility Agent to determine the
Alternative Reference Bank Rate for the relevant Interest Period of the Loan, the
arithmetic mean of the rates notified to the Facility Agent in accordance with
paragraph (a)(ii) above (rounded upwards to four decimal places). |
|
|
(c) |
|
In this Agreement: |
|
|
|
|
Alternative Market Disruption Event means: |
|
(i) |
|
before noon in London on the date falling one Business Day
after the Quotation Day for the relevant Interest Period of the Loan, none or
only one of the Alternative Reference Banks supplies a rate to the Facility
Agent to determine the Alternative Reference Bank Rate for the relevant
Interest Period of the Loan; or |
|
|
(ii) |
|
before close of business in London on the date falling two
Business Days after the Quotation Day for the relevant Interest Period of the
Loan, the Facility Agent receives notifications from a Lender or Lenders
(whose participations in that Loan exceed 35 per cent. of that Loan) that the
cost to it or them of obtaining matching deposits in the Relevant Interbank
Market would be in excess of the Alternative Reference Bank Rate. |
|
|
|
Market Disruption Event means: |
|
(i) |
|
at or about noon on the Quotation Day for the relevant
Interest Period the Screen Rate is not available and none or only one of the
Reference Banks supplies a rate to the Facility Agent to determine LIBOR or,
if applicable, EURIBOR for the relevant currency and Interest Period; or |
|
|
(ii) |
|
before close of business in London on the Quotation Day for
the relevant Interest Period, the Facility Agent receives notifications from a
Lender or Lenders (whose participations in a Loan exceed 35 per cent. of that
Loan) that the cost to it or them of obtaining matching deposits in the
Relevant Interbank Market would be in excess of LIBOR or, if applicable,
EURIBOR. |
|
(d) |
|
The Facility Agent will notify the Obligors’ Agent promptly upon the
occurrence of a Market Disruption Event or an Alternative Market Disruption Event. |
62
16.3 |
|
Alternative Reference Bank Rate |
|
(a) |
|
If a Market Disruption Event occurs, the Facility Agent shall as soon as is
practicable request each of the Alternative Reference Banks to supply to it the rate
at which that Alternative Reference Bank could have borrowed funds in the relevant
currency and for the relevant period in the London interbank market or, in relation to
a Loan in euro, the European interbank market, at or about 11:00 a.m. or, in relation
to a Loan in euro, at or about 11:00 a.m. (Brussels time), on the Quotation Day for
the Interest Period of that Loan, were it to have done so by asking for and then
accepting interbank offers for deposits in reasonable market size in the currency of
that Loan and for a period comparable to the Interest Period of that Loan. |
|
|
(b) |
|
As soon as is practicable after receipt of the rates supplied by the
Alternative Reference Banks, the Facility Agent will notify the Obligors’ Agent and
the Lenders of the arithmetic mean of the rates supplied to it in accordance with
paragraph (a) above (rounded upwards to four decimal places) (the Alternative
Reference Bank Rate). |
16.4 |
|
Alternative basis of interest or funding |
|
(a) |
|
If a Market Disruption Event or an Alternative Market Disruption Event occurs
and the Facility Agent or the Obligors’ Agent so requires, the Facility Agent and the
Obligors’ Agent shall enter into negotiations (for a period of not more than thirty
days) with a view to agreeing a substitute basis for determining the rate of interest. |
|
|
(b) |
|
Any alternative basis agreed pursuant to paragraph (a) above shall, with the
prior consent of all the Lenders and the Obligors’ Agent, be binding on all Parties. |
|
(a) |
|
Each Borrower shall, within three Business Days of demand by a Finance Party,
pay to that Finance Party its Break Costs attributable to all or any part of a Loan or
Unpaid Sum being paid by that Borrower on a day other than the last day of an Interest
Period for that Loan or Unpaid Sum. |
|
|
(b) |
|
Each Lender shall, as soon as reasonably practicable after a demand by the
Facility Agent, provide a certificate confirming the amount of its Break Costs for any
Interest Period in which they accrue. |
17. |
|
FEES |
|
17.1 |
|
Commitment fee |
|
(a) |
|
The Original Borrowers shall pay to the Facility Agent (for the account of
each Lender) a commitment fee in the Base Currency computed at the rate of: |
63
|
(i) |
|
0.15 per cent. per annum on each Lender’s Available
Commitment under the Term Facility for the Availability Period applicable to
that Facility; and |
|
|
(ii) |
|
0.15 per cent. per annum on each Lender’s Available
Commitment under the Revolving Facility for the Availability Period applicable
to that Facility. |
|
(b) |
|
The commitment fee accrues on a daily basis and is payable in arrear on each
31 March, 30 June, 30 September and 31 December during the relevant Availability
Period, on the last day of the relevant Availability Period and, if cancelled in full,
on the cancelled amount of the relevant Lender’s Commitment at the time the
cancellation is effective. |
|
|
(c) |
|
No commitment fee is payable to the Facility Agent (for the account of a
Lender) on any Available Commitment of that Lender for any day on which that Lender is
a Defaulting Lender. |
17.2 |
|
Upfront fees |
|
|
|
The Original Borrowers shall pay to the Facility Agent (for the account of the
relevant Finance Parties) structuring and participation fees in the amount and at the
times agreed in a Fee Letter. |
|
17.3 |
|
Agency fee |
|
|
|
The Original Borrowers shall pay to each of the Facility Agent, the Dollar
Swingline Agent and the Euro Swingline Agent (each for its own account) an agency fee
in the amount and at the times agreed in a Fee Letter. |
|
18. |
|
TAX GROSS UP AND INDEMNITIES |
|
18.1 |
|
Definitions |
|
(a) |
|
In this Clause 18: |
|
|
|
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 Deduction means a deduction or withholding for or on account of Tax from a
payment under a Finance Document. |
|
|
|
Tax Payment means either an increased or additional payment made by an Obligor to
a Finance Party under Clause 18.3 (Tax gross-up) or a payment under Clause 18.4 (Tax
indemnity). |
64
(b) |
|
In this Clause 18, a reference to determines or determined means a determination made in the
absolute discretion of the person making the determination. |
|
18.2 |
|
Finance Parties’ tax forms |
|
|
|
Each Finance Party will (to the extent it is required to do so in order to receive payments
under the Finance Documents without a Tax Deduction), promptly following the date of this
Agreement, or promptly after becoming a Lender pursuant to a transfer, assignment or
increase, deliver to its local revenue authority and/or to the Obligors’ Agent (and/or such
persons as it may designate), as required, such local revenue authority forms as may be
required to enable an Obligor to obtain authority to pay interest to that Finance Party
without withholding or deduction for or on account of Taxes. |
|
18.3 |
|
Tax gross-up |
|
(a) |
|
Each Obligor shall make all payments to be made by it under any Finance
Document without any Tax Deduction, unless a Tax Deduction is required by law. |
|
|
(b) |
|
The Obligors’ Agent 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 Facility Agent accordingly. |
|
|
(c) |
|
If a Tax Deduction is required by law to be made by: |
|
(i) |
|
an Obligor (other than an Australian Obligor), the amount of
the payment due from that Obligor shall be increased by an amount which; or |
|
|
(ii) |
|
an Australian Obligor, it shall pay an additional amount
which, |
|
|
|
when added to the amount of the payment (in each case after making
any Tax Deduction) leaves an amount equal to the payment which would have been
due if no Tax Deduction had been required. |
|
|
(d) |
|
An Obligor is not required to make an increased or additional payment to a
Lender under paragraph (c) above for a Tax Deduction from a payment of interest on a
Loan or a Note if, on the date on which the payment falls due: |
|
(i) |
|
the Tax Deduction is in respect of any Australian Tax
required to be withheld or deducted under part III, division 11A of the
Australian Tax Act and is as a result of the Lender being an Offshore
Associate of an Australian Borrower; |
|
|
(ii) |
|
the Tax Deduction is in respect of any Australian Tax and is
required as a result of a breach by that particular Lender (and not its
predecessor) of any of its obligations under Clause 9 (Public Offers); or |
|
|
(iii) |
|
the Tax Deduction is in respect of any Australian Tax and is
required as a result of any representation or warranty given by that
particular |
65
|
|
|
Lender (and not its predecessor) under Clause 9 (Public Offers) being
untrue in respect of a Note. |
|
(e) |
|
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. |
|
|
(f) |
|
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 Facility Agent for the Finance Party entitled to the payment evidence
reasonably satisfactory to that Finance Party that the Tax Deduction has been made or
(as applicable) any appropriate payment paid to the relevant taxing authority. |
|
(a) |
|
The Obligors’ Agent shall (within three Business Days of demand by the
Facility 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. |
|
|
(b) |
|
Paragraph (a) above shall not apply: |
|
(i) |
|
with respect to any Tax assessed on a 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; |
|
|
(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 |
|
|
(C) |
|
which is attributable to the implementation
or application of, or compliance with, (i) any of the bank levies
announced by the Governments of France, the United Kingdom and Germany
in a joint statement dated 22 June 2010 or the financial crisis
responsibility fee announced by the Government of the United States on
14 January 2010 (together, the Bank Levies), or (ii) provisions of the
US Wall Street Reform and Consumer Protection Act of 2010 (the
Xxxx-Xxxxx Act) pertaining to assessments made by the Federal Deposit
Insurance Corporation or any law or regulation which implements the
Bank Levies or any such provision of the Xxxx-Xxxxx Act (whether such
implementation, application or compliance is by a government,
regulator, Finance Party or any Affiliate of a Finance Party), this
exclusion being without prejudice as to whether paragraph (a) above
would otherwise have applied to, or would apply to require the
Obligors’ Agent to
make a |
66
|
|
|
payment with respect to, the implementation or application of, or
compliance with, any other levy or Tax of a similar nature to the
Bank Levies imposed in any jurisdiction by reference to the assets
or liabilities of a financial institution or any law or regulation
which implements any such other levy or Tax (whether such
implementation, application or compliance is by a government,
regulator, Finance Party or any Affiliate of a Finance Party), |
|
|
|
if, in any such case, 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
or the Facility Office; or |
|
|
(ii) |
|
to the extent a loss, liability or cost: |
|
(A) |
|
is compensated for by an increased payment
under Clause 18.3 (Tax gross-up); or |
|
|
(B) |
|
would have been compensated for by an
increased payment under Clause 18.3 (Tax gross-up) but was not so
compensated solely because one of the exclusions in sub-paragraphs
(d)(i) to (iii) of Clause 18.3 (Tax gross-up) applied. |
|
(c) |
|
A Protected Party making, or intending to make, a claim under paragraph (a)
above shall promptly notify the Facility Agent of the event which will give, or has
given, rise to the claim, following which the Facility Agent shall notify the
Obligors’ Agent (but shall not be obliged to disclose any confidential information
relating to the organisation of its affairs including, for the avoidance of doubt, any
confidential information relating to its Tax affairs). |
|
|
(d) |
|
A Protected Party shall, on receiving a payment from an Obligor under this
Clause 18.4, notify the Facility Agent. |
18.5 |
|
Tax Credit |
|
|
|
If an Obligor makes a Tax Payment and the relevant Finance Party determines that: |
|
(a) |
|
a Tax Credit is attributable either to an increased payment of which that Tax
Payment forms part, or to that Tax Payment; and |
|
|
(b) |
|
that Finance Party has obtained, utilised and retained that Tax Credit, |
|
|
the Finance Party shall pay an amount to the Obligor which that Finance Party
determines will leave it (after that payment) in the same after-Tax position as it
would have been in had the Tax Payment not been made by the Obligor. |
|
18.6 |
|
Stamp taxes |
|
|
|
The Obligors’ Agent shall pay and, if it fails to do so, shall (without prejudice
to any other rights or remedies of any Finance Party), indemnify each Finance Party
within three |
67
|
|
Business Days of demand against any cost, loss or liability that Finance Party incurs in
relation to all stamp duty, registration and other similar Taxes payable in respect of any
Finance Document, except for any such stamp duty, registration or other similar Taxes
payable in connection with the entry into a Transfer Certificate or any equivalent document
entered into in respect of an assignment or transfer of rights (unless the relevant
assignment or transfer has been made at the request of an Obligor). |
|
18.7 |
|
Value added tax |
|
(a) |
|
All consideration expressed to be payable under a Finance Document by an
Obligor to a Finance Party shall be deemed to be exclusive of any amount in respect of
VAT. If VAT is chargeable, that Obligor shall pay to the Finance Party (in addition to
and at the same time as paying the consideration) an amount equal to the amount of the
VAT. |
|
|
(b) |
|
Where a Finance Document requires an Obligor to reimburse a Finance Party for
any costs or expenses, that Obligor shall also at the same time pay and indemnify the
Finance Party against all VAT incurred by the Finance Party in respect of the costs or
expenses. |
19. |
|
INCREASED COSTS |
|
19.1 |
|
Increased Costs |
|
(a) |
|
Subject to Clause 19.3 (Exceptions) the Obligors’ Agent shall, within three
Business Days of a demand by the Facility Agent, pay for the account of a Finance
Party the amount of any Increased Costs incurred by that Finance Party or any of its
Affiliates as a result of (i) the introduction of or any change in (or in the
interpretation or application of) any law or regulation or (ii) compliance with any
law or regulation made after the date of this Agreement. |
|
|
(b) |
|
In this Agreement, Increased Costs means: |
|
(i) |
|
a reduction in the rate of return from a Facility or on a
Finance Party’s (or its Affiliate’s) overall capital; |
|
|
(ii) |
|
an additional or increased cost; or |
|
|
(iii) |
|
a reduction of any amount due and payable under any Finance
Document, |
|
which is incurred or suffered by a Finance Party or any of its
Affiliates to the extent that it is attributable to that Finance Party having
entered into its Commitment or funding or performing its obligations under any
Finance Document. |
68
19.2 |
|
Increased Cost claims |
|
(a) |
|
A Finance Party intending to make a claim pursuant to Clause 19.1 (Increased
Costs) shall notify the Facility Agent of the event giving rise to the claim,
following which the Facility Agent shall promptly notify the Obligors’ Agent. |
|
|
(b) |
|
Each Finance Party shall, as soon as practicable after a demand by the
Facility Agent, provide a certificate confirming the amount of its Increased Costs. |
|
(a) |
|
Clause 19.1 (Increased Costs) does not apply to the extent any Increased
Cost: |
|
(i) |
|
is incurred more than 90 days before the demand for payment
save, if incurred as a result of any change in, or the introduction of, or any
change in the interpretation, or application of, any law or regulation having
retrospective effect, unless the Finance Party concerned shall not have
claimed by the end of the period of 90 days commencing on the date that
Finance Party determined that such cost had been incurred; |
|
|
(ii) |
|
is attributable to a Tax Deduction required by law to be made
by an Obligor; |
|
|
(iii) |
|
is compensated for by Clause 18.4 (Tax indemnity) (or would
have been compensated for under Clause 18.4 (Tax indemnity) but was not so
compensated solely because the exclusion in paragraph (b) of Clause 18.4 (Tax
indemnity) applied); |
|
|
(iv) |
|
is compensated for by the payment of any Mandatory Cost; |
|
|
(v) |
|
is attributable to the wilful breach by the relevant Finance
Party or its Affiliates of any law or regulation; |
|
|
(vi) |
|
is attributable to the implementation or application of or
compliance with the “International Convergence of Capital Measurement and
Capital Standards, a Revised Framework” published by the Basel Committee on
Banking Supervision in June 2004 in the form existing on the date of this
Agreement (Basel II) or any other law or regulation which implements Basel II
(excluding, for the avoidance of doubt, any Increased Cost attributable to the
implementation or application of or compliance with ‘Basel III’ (as defined
and described in the Basel Committee’s paper “The Basel Committee’s response
to the financial crisis: report to the G20” dated October 2010)) (whether such
implementation, application or compliance is by a government, regulator,
Finance Party or any of its Affiliates); or |
|
|
(vii) |
|
is attributable to the implementation or application of, or
compliance with, (i) any of the Bank Levies, or (ii) provisions of the
Xxxx-Xxxxx Act pertaining to assessments made by the Federal Deposit Insurance |
69
|
|
|
Corporation or any law or regulation which implements the Bank Levies or
any such provision of the Xxxx-Xxxxx Act (whether such implementation,
application or compliance is by a government, regulator, Finance Party or
any Affiliate of a Finance Party), this exclusion being without prejudice
as to whether Clause 19.1 (Increased Costs) would otherwise have applied
to, or would apply to require the Obligors’ Agent to make a payment with
respect to, the implementation or application of, or compliance with, any
other levy or Tax of a similar nature to the Bank Levies imposed in any
jurisdiction by reference to the assets or liabilities of a financial
institution or any law or regulation which implements any such other levy
or Tax (whether such implementation, application or compliance is by a
government, regulator, Finance Party or any Affiliate of a Finance Party). |
|
(b) |
|
In this Clause 19.3, a reference to a Tax Deduction has the same meaning
given to the term in Clause 18.1 (Definitions). |
20. |
|
OTHER INDEMNITIES |
|
20.1 |
|
Currency indemnity |
|
(a) |
|
If any sum due from an Obligor under the Finance Documents or a Company
Parent Guarantee (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; or |
|
|
(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, 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 or Company Parent Guarantees in a currency or
currency unit other than that in which it is expressed to be payable. |
20.2 |
|
Other indemnities |
|
|
|
Each Obligor will, within three Business Days of demand, indemnify each Finance
Party against any cost, loss, expense or liability (including, without limitation,
legal expenses but excluding loss of Margin) incurred by that Finance Party as a
result of: |
|
(a) |
|
the occurrence of any Event of Default; |
70
|
(b) |
|
a failure by an Obligor to pay any amount due under a Finance Document on its
due date, including without limitation, any cost, loss or liability arising as a
result of Clause 35 (Sharing Among The Lenders); |
|
|
(c) |
|
funding, or making arrangements to fund, its participation in a Loan
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; or |
|
|
(d) |
|
a Loan (or part of a Loan) not being prepaid in accordance with a notice of
prepayment given by the Obligors’ Agent, |
|
|
unless any event in paragraphs (a) to (d) above arises as a result of the negligence or
wilful misconduct of that Finance Party. |
|
20.3 |
|
Indemnity to the Agents |
|
|
|
Each Obligor shall promptly indemnify the Facility Agent (and, in the case of
paragraph (b) below, the Dollar Swingline Agent and the Euro Swingline Agent) against
any cost, loss or liability incurred by the Facility Agent, the Dollar Swingline Agent
or the Euro Swingline Agent, as the case may be (in each case acting reasonably), as a
result of: |
|
(a) |
|
investigating any event which it reasonably believes is a Default; or |
|
|
(b) |
|
acting or relying on any notice, request or instruction which it reasonably
believes to be genuine, correct and appropriately authorised. |
21. |
|
MITIGATION BY THE LENDERS |
|
21.1 |
|
Mitigation |
|
(a) |
|
Each Finance Party shall, in consultation with the Obligors’ Agent, take all
reasonable steps to mitigate any circumstances which arise and which would result in
any amount becoming payable under, or cancelled pursuant to, any of Clause 13.1
(Illegality), Clause 18 (Tax Gross Up And Indemnities) or Clause 19 (Increased Costs)
or paragraph 3 of Schedule 4 (Mandatory Cost Formulae) including (but not limited to)
transferring its rights and obligations under the Finance Documents to another
Affiliate or Facility Office or to another bank or financial institution provided that
such Finance Party shall be under no obligation to make such transfer or assignment to
another bank or financial institution if in its reasonable opinion to do so would be
prejudicial to it. |
|
|
(b) |
|
Paragraph (a) above does not in any way limit the obligations of any Obligor
under the Finance Documents. |
21.2 |
|
Limitation of liability |
|
(a) |
|
The Companies shall 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 21.1 (Mitigation). |
71
|
(b) |
|
A Finance Party is not obliged to take any steps under Clause 21.1
(Mitigation) if, in the opinion of that Finance Party (acting reasonably), to do so
might be prejudicial to it. |
22. |
|
COSTS AND EXPENSES |
|
22.1 |
|
Transaction expenses |
|
|
|
The Original Borrowers shall pay the Facility Agent the amount of all costs and
expenses (including legal fees as agreed by the Obligors and the Facility Agent)
reasonably incurred by it in connection with the negotiation, preparation, printing
and execution of: |
|
(a) |
|
this Agreement and any other documents referred to in this Agreement; and |
|
|
(b) |
|
any other Finance Documents executed after the date of this Agreement. |
22.2 |
|
Amendment costs |
|
|
|
If in relation to a Finance Document (a) an Obligor requests an amendment,
waiver or consent or (b) an amendment is required pursuant to Clause 36.10 (Change of
currency), the Obligors’ Agent shall, within three Business Days of demand, reimburse
the Facility Agent for the amount of all costs and expenses (including legal fees)
reasonably incurred by the Facility Agent in responding to, evaluating, negotiating or
complying with that request or requirement. |
|
22.3 |
|
Enforcement costs |
|
|
|
The Obligors’ Agent shall, within three Business Days of demand, pay to each
Finance Party the amount of all costs and expenses (including legal fees) incurred by
that Finance Party in connection with the enforcement of, or the preservation of any
rights under, any Finance Document or Company Parent Guarantee. |
|
23. |
|
GUARANTEE AND INDEMNITY BY THE COMPANIES |
|
23.1 |
|
Guarantee and indemnity |
|
|
|
Each Company irrevocably and unconditionally severally: |
|
(a) |
|
guarantees to each Finance Party (i) punctual performance by each Borrower
which is a Subsidiary of that Company of such Borrower’s obligations under the Finance
Documents, and (ii) if the Obligors’ Agent is a Subsidiary of that Company, punctual
performance by the Obligors’ Agent of the Obligors’ Agent’s obligations under the
Finance Documents; |
|
|
(b) |
|
undertakes with each Finance Party that whenever (i) a Borrower which is a
Subsidiary of that Company, or (ii) if the Obligors’ Agent is a Subsidiary of that
Company, the Obligors’ Agent, does not pay any amount when due under or in connection
with any Finance Document, that Company shall immediately on demand pay that amount as
if it were the principal obligor; and |
72
|
(c) |
|
indemnifies each Finance Party immediately on demand against any cost, loss
or liability suffered by that Finance Party if any obligation guaranteed by it is or
becomes unenforceable, invalid or illegal. The amount of the cost, loss or liability
shall be equal to the amount which that Finance Party would otherwise have been
entitled to recover. |
23.2 |
|
Continuing guarantee |
|
|
|
This guarantee is a continuing guarantee and will extend to the ultimate balance
of sums payable by any Borrower and the Obligors’ Agent under the Finance Documents,
regardless of any intermediate payment or discharge in whole or in part. |
|
23.3 |
|
Reinstatement |
|
|
|
If any payment by a Borrower or the Obligors’ Agent or any discharge given 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 as a result of insolvency or
any similar event: |
|
(a) |
|
the liability of each relevant Obligor shall continue as if the payment,
discharge, avoidance or reduction had not occurred; and |
|
|
(b) |
|
each Finance Party shall be entitled to recover the value or amount of that
security or payment from each relevant Obligor, as if the payment, discharge,
avoidance or reduction had not occurred. |
23.4 |
|
Waiver of defences |
|
|
|
The obligations of each Company under this Clause 23 will not be affected by an
act, omission, matter or thing which, but for this Clause 23.4, would reduce, release
or prejudice any of its obligations under this Clause 23 (without limitation and
whether or not known to it or any Finance Party) including: |
|
(a) |
|
any time, waiver or consent granted to, or composition with, any Obligor or
other person; |
|
|
(b) |
|
the release of any other Obligor or any other person under the terms of any
composition or arrangement with any creditor of any member of the Group; |
|
|
(c) |
|
the taking, variation, compromise, exchange, renewal or release of, or
refusal or neglect to perfect, 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; |
|
|
(d) |
|
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; |
|
|
(e) |
|
any amendment (however fundamental including, without limitation, any
increase in, or changes to the determination of, the interest payable by the |
73
|
|
|
Obligors or any increase in or change to the amount of principal advanced to, or
fees, charges or other amounts payable by, an Obligor) or replacement of a Finance
Document or any other document or security; |
|
|
(f) |
|
any unenforceability, illegality or invalidity of any obligation of any
person under any Finance Document or any other document or security; or |
|
|
(g) |
|
any insolvency or similar proceedings. |
23.5 |
|
Immediate recourse |
|
|
|
Each Company 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 Company under this
Clause 23. This waiver applies irrespective of any law or any provision of a Finance
Document to the contrary. |
|
23.6 |
|
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: |
|
(a) |
|
refrain from applying or enforcing any other moneys, security or rights held
or received 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 Company shall be entitled to
the benefit of the same; and |
|
|
(b) |
|
hold in an interest-bearing suspense account any moneys received from any
Company or on account of that Company’s liability under this Clause 23. |
23.7 |
|
Deferral of Companies’ 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 or unless the
Facility Agent otherwise directs, neither Company will exercise any rights which it
may have by reason of performance by it of its obligations under this Clause 23 or
(notwithstanding any agreement to the contrary) under any Company Parent Guarantee: |
|
(a) |
|
to be indemnified by an Obligor; |
|
|
(b) |
|
to claim any contribution from any other guarantor of any Obligor’s
obligations under the Finance Documents; and/or |
|
|
(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. |
74
23.8 |
|
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. |
|
24. |
|
REPRESENTATIONS |
|
|
|
Unless otherwise specified, each Obligor makes the representations and warranties set out
in this Clause 24 to each Finance Party at the times specified in Clause 24.15 (Times
when representations are made) in each case in respect of itself or, in the case of
PLC and Limited only, where specified, in respect of itself and its respective
Subsidiaries. |
|
24.1 |
|
Status |
|
(a) |
|
It is a corporation, duly incorporated and validly existing under the law of
its jurisdiction of incorporation. |
|
|
(b) |
|
It has the power to own its assets and carry on its business as it is being
conducted. |
24.2 |
|
Binding obligations |
|
|
|
The obligations expressed to be assumed by it in each Finance Document to which
it is a party and, in the case of the Companies, the Company Parent Guarantees to
which they are a party are, subject to any general principles of law limiting its
obligations which are specifically referred to in any legal opinion delivered pursuant
to this Agreement, legal, valid, binding and enforceable obligations. |
|
24.3 |
|
Non-conflict with other obligations |
|
|
|
The entry into and performance by it of, and the transactions contemplated by,
the Finance Documents and, in the case of the Companies, the Company Parent Guarantee
to which it is a party do not and will not (subject to any matters referred to in any
legal opinion delivered pursuant to this Agreement) conflict with: |
|
(a) |
|
any law or regulation applicable to it; |
|
|
(b) |
|
its constitutional documents; or |
|
|
(c) |
|
any agreement or instrument binding upon it or any of its assets in a manner
or to an extent which has had or is reasonably likely to have a Material Adverse
Effect. |
24.4 |
|
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, in the case of the Companies, the Company Parent Guarantee
to which it |
75
|
|
is a party, and the transactions contemplated by those Finance Documents and, in the case
of the Companies, the Company Parent Guarantee to which it is a party. |
|
24.5 |
|
Validity and admissibility in evidence |
|
|
|
All Authorisations required: |
|
(a) |
|
to enable it lawfully to enter into, exercise its rights and comply with its
obligations in the Finance Documents to which it is a party and, in the case of the
Companies, the Company Parent Guarantee to which it is a party; and |
|
|
(b) |
|
to make the Finance Documents to which it is a party and, in the case of the
Companies, the Company Parent Guarantee to which it is a party, admissible in evidence
in its jurisdiction of incorporation, |
|
|
have been obtained or effected (as appropriate) and are in full force and effect
(subject to any matters referred to in any legal opinion delivered pursuant to this
Agreement). |
|
24.6 |
|
No default |
|
(a) |
|
No Event of Default is continuing or would result from the making of any Loan
(other than any which have been waived). |
|
|
(b) |
|
No other event or circumstance is outstanding which constitutes a default
under any other agreement or instrument which is binding on it or any of its
Subsidiaries or to which its (or its Subsidiaries’) assets are subject to an extent or
in a manner which is reasonably likely to have a Material Adverse Effect. |
24.7 |
|
No misleading information |
|
|
|
Each of the Companies represents and warrants that: |
|
(a) |
|
the factual information relating to the BHP Billiton Group contained in the
Information Pack was true and accurate in all material respects as at the date of the
Information Pack or as at the date (if any) at which it is stated in the Information
Pack; |
|
|
(b) |
|
all other factual information contained in the Information Pack has been
prepared in good faith from publicly available information in accordance with the
basis of preparation described in the Information Pack; and |
|
|
(c) |
|
the financial information and projections contained in the Information Pack
have been prepared in good faith and either on the basis of assumptions considered to
be reasonable by it as at the date of the Information Pack or from publicly available
broker/analyst forecasts relating to the markets in which the BHP Billiton Group and
the Target Group operate, in accordance with the basis of preparation described in the
Information Pack. |
76
24.8 |
|
Financial statements |
|
|
|
Each of the Companies represents and warrants that: |
|
(a) |
|
the Original Financial Statements were prepared in accordance with UK GAAP; |
|
|
(b) |
|
the Original Financial Statements (together with the notes thereto) give a
true and fair view of the consolidated financial condition and operations of the Group
at the end of and for the relevant financial year; |
|
|
(c) |
|
its most recent financial statements delivered pursuant to Clause 25.1
(Financial statements): |
|
(i) |
|
have been prepared in accordance with UK GAAP; and |
|
|
(ii) |
|
(together with the notes thereto) give a true and fair view
of the consolidated financial condition and operations of the Group at the end
of and for the relevant financial year; and |
|
(d) |
|
there has been no adverse change in the consolidated business or financial
condition of the Group since the date of the Original Financial Statements which has
had or is reasonably likely to have a Material Adverse Effect. |
24.9 |
|
Pari passu ranking |
|
|
|
Its payment obligations under the Finance Documents, and, in the case of the
Companies, the Company Parent Guarantee to which it is a party, 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. |
|
24.10 |
|
No proceedings pending or threatened |
|
|
|
No litigation, arbitration or administrative proceedings of or before any court,
arbitral body or agency which are reasonably likely to be adversely determined, and,
if so adversely determined, are reasonably likely to have a Material Adverse Effect,
have (to the best of its knowledge and belief) been started or threatened against it
or any of its Subsidiaries. |
|
24.11 |
|
Environmental matters |
|
|
|
Each member of the Group is complying in all material respects with all
Environmental Laws, non-compliance with which would be reasonably likely to have a
Material Adverse Effect. |
|
24.12 |
|
Investment Company Act |
|
|
|
No Borrower is required to be registered as an Investment Company under the
United States Investment Company Act of 1940. |
77
24.13 |
|
ERISA |
|
|
|
Each material Plan is in compliance in form and operation with ERISA, the Code and
all other applicable laws and regulations, except for any instances of non-compliance
which would not, either individually or in the aggregate, reasonably be expected to
result in a Material Adverse Effect. |
|
24.14 |
|
Tax residence |
|
|
|
Each of PLC and BHP Billiton Finance Plc represents that it is tax resident only in the
United Kingdom. |
|
24.15 |
|
Times when representations are made |
|
(a) |
|
All the representations and warranties in this Clause 24 are made by each
Original Obligor on the date of this Agreement except for the representations and
warranties set out in Clauses 24.7 (No misleading information) and 24.8(c) (Financial
statements). |
|
|
(b) |
|
The Repeating Representations are deemed to be made, unless otherwise
specified, by each Obligor by reference to the facts and circumstances then existing
on the date of each Utilisation Request, on each Utilisation Date and the first day of
each Interest Period. |
|
|
(c) |
|
The representations and warranties in Clause 24.7 (No misleading information)
are deemed to be made by the Companies on the date of this Agreement. |
|
|
(d) |
|
The representations and warranties in Clause 24.8(c) (Financial statements)
are deemed to be made by the Companies on the date on which the applicable set of
financial statements is delivered pursuant to Clause 25.1 (Financial statements). |
25. |
|
INFORMATION UNDERTAKINGS |
|
|
|
The undertakings in this Clause 25 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. |
|
25.1 |
|
Financial statements |
|
|
|
The Obligors’ Agent shall supply to the Facility Agent in sufficient copies for
all the Lenders: |
|
(a) |
|
within 120 days after the end of each of its financial years ending after the
date of this Agreement, the annual audited financial statements of PLC (which are the
consolidated accounts of the Group) for that financial year; and |
|
|
(b) |
|
within 90 days after the end of the first six months of each of its financial
years ending after the date of this Agreement, the unaudited financial statements of |
78
|
|
|
PLC (which are the consolidated accounts of the Group) for that six month period. |
25.2 |
|
Compliance Certificate |
|
(a) |
|
The Obligors’ Agent shall supply to the Facility Agent, with each set of
financial statements delivered pursuant to Clause 25.1 (Financial statements), a
Compliance Certificate setting out (in reasonable detail) computations as to
compliance with Clause 26 (Financial Covenant) as at the date as at which those
financial statements were drawn up. |
|
|
(b) |
|
Each Compliance Certificate shall be signed by two Authorised Signatories of
the Companies. |
25.3 |
|
Requirements as to financial statements |
|
|
|
The Companies shall procure that each set of financial statements delivered
pursuant to Clause 25.1 (Financial statements) is prepared using UK GAAP. |
|
25.4 |
|
Information: miscellaneous |
|
|
|
The Obligors’ Agent shall supply to the Facility Agent (in sufficient copies for
all the Lenders, if the Facility Agent so requests): |
|
(a) |
|
any documents relating to financial difficulties dispatched by an Obligor to
its creditors (or any class of them) or its shareholders generally at the same time as
they are dispatched; |
|
|
(b) |
|
promptly upon becoming aware of them, reasonable details of any litigation,
arbitration or administrative proceedings which are current, threatened or pending
against any member of the Group, and which are reasonably likely to be adversely
determined and, if so adversely determined, would be reasonably likely to have a
Material Adverse Effect; and |
|
|
(c) |
|
promptly (subject to any confidentiality obligation with a third party
outside the Group), such further information in the possession or control of any
member of the Group regarding the financial condition and operations of any member of
the Group as any Lender (through the Facility Agent) may reasonably request. |
25.5 |
|
Notification of Default |
|
(a) |
|
The Obligors’ Agent shall notify the Facility Agent of any Default (and the
steps, if any, being taken to remedy it) promptly upon an Obligor becoming aware of
its occurrence (unless the Obligors’ Agent is aware that a notification has already
been provided by another Obligor). |
|
|
(b) |
|
Promptly upon a request by the Facility Agent made on reasonable grounds, the
Obligors’ Agent shall supply to the Facility Agent a certificate signed by the
secretary, a director or any authorised officer of the Obligors’ Agent on its behalf |
79
|
|
|
certifying that no Default is continuing (or, if a Default is continuing,
specifying the Default and the steps, if any, being taken to remedy it). |
|
(a) |
|
The Obligors’ Agent may satisfy an obligation under this Agreement to deliver
any information by posting this information onto an electronic website designated by
the Obligors’ Agent and the Facility Agent (the Designated Website) if: |
|
(i) |
|
both the Obligors’ Agent and the Facility Agent are aware of
the address of and any relevant password specifications for the Designated
Website; and |
|
|
(ii) |
|
the information is in a format previously agreed between the
Obligors’ Agent and the Facility Agent. |
|
(b) |
|
The Facility Agent shall supply each Lender with the address of and any
relevant password specifications for the Designated Website following designation of
that website by the Obligors’ Agent and the Facility Agent. |
|
|
(c) |
|
The Obligors’ Agent shall promptly upon becoming aware of its occurrence
notify the Facility Agent if: |
|
(i) |
|
the Designated Website cannot be accessed due to technical
failure; |
|
|
(ii) |
|
the relevant password specifications for the Designated
Website change; |
|
|
(iii) |
|
any new information which is required to be provided under
this Agreement is posted onto the Designated Website; |
|
|
(iv) |
|
any existing information which has been provided under this
Agreement and posted onto the Designated Website is amended; or |
|
|
(v) |
|
the Obligors’ Agent becomes aware that the Designated Website
or any information posted onto the Designated Website is or has been infected
by any electronic virus or similar software. |
|
(d) |
|
If the Obligors’ Agent notifies the Facility Agent under paragraph (c)(i) or
paragraph (c)(v) above, all information to be provided by the Obligors’ Agent under
this Agreement after the date of that notice shall be supplied in paper form unless
and until the Facility Agent and the Lenders are satisfied that the circumstances
giving rise to the notification are no longer continuing. |
25.7 |
|
Know your customer requirements |
80
|
(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 after the date of this
Agreement; |
|
|
(iii) |
|
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; or |
|
|
(iv) |
|
the accession of an Additional Borrower, |
|
|
|
obliges the Facility Agent or any Lender (or, in the case of paragraph (iii) above,
any prospective new Lender) to comply with “know your customer” procedures in
circumstances where the necessary information is not already available to it,
each Obligor shall as soon as reasonably practicable after request by the
Facility Agent supply, or procure the supply of, such documentation and other
evidence as is reasonably requested by the Facility Agent (for itself or on
behalf of any Lender (for itself or, in the case of the event described in
paragraph (iii) above, on behalf of any prospective new Lender)) in order for
the Facility Agent, such Lender or, in the case of the event described in
paragraph (iii) above, any prospective new Lender to comply with all necessary
“know your customer” requirements under all applicable laws and regulations
pursuant to the transactions contemplated in the Finance Documents. |
|
|
(b) |
|
Each Lender shall promptly upon the request of the Facility Agent supply, or
procure the supply of, such documentation and other evidence as is reasonably
requested by the Facility Agent (for itself) in order for the Facility Agent to carry
out and be satisfied it has complied with all necessary “know your customer”
requirements under all applicable laws and regulations pursuant to the transactions
contemplated in the Finance Documents. |
|
|
(c) |
|
Without prejudice to the provisions of Clauses 13 (Prepayment And
Cancellation) and 19 (Increased Costs), an Obligor shall not be in breach of this
Clause 25.7 if, having used all reasonable endeavours to obtain the same, it is not
able to obtain any documentation or other evidence requested pursuant to this Clause
25.7. |
25.8 |
|
Authorised Signatories |
|
|
|
If, at any time, any person (that is not one of the Authorised Signatories for
which a specimen signature has been provided as a condition precedent under this
Agreement) becomes an Authorised Signatory, the Obligors’ Agent shall deliver to the
Facility Agent a specimen of the signature of that person as soon as reasonably
practicable. |
|
26. |
|
FINANCIAL COVENANT |
|
26.1 |
|
Financial definitions |
|
|
|
In this Agreement: |
81
|
|
Cash means cash in hand or credit balances or amounts on deposit which are freely
accessible by a member of the Group and not subject to any Security. |
|
|
|
Cash Equivalent Investments means any of the following which are held by a member
of the Group and not subject to any Security (other than any Security arising in the
normal course of the Group’s treasury or custody arrangements): |
|
(a) |
|
securities with a maturity of less than 12 months from the date of
acquisition issued or fully guaranteed or fully insured by the government of the
United States, Canada, any member state of the European Union or any other country
that is a member of the OECD; |
|
|
(b) |
|
commercial paper or other debt securities issued by an issuer rated at least
A-1 by S&P or P-1 by Moody’s and with a maturity of less than 12 months; |
|
|
(c) |
|
certificates of deposit or time deposits of any commercial bank (which has
outstanding debt securities rated as referred to in paragraph (b) above) with a
maturity of less than three months; |
|
|
(d) |
|
investments accessible within 30 days in money market funds which have a
credit rating, or are sponsored by an institution which has a credit rating, of A-1 by
S&P or P-1 by Moody’s; and |
|
|
(e) |
|
any other securities approved by the Facility Agent. |
|
|
Consolidated EBITDA means, in relation to any Testing Period, the total consolidated profit
on ordinary activities before finance costs and tax of the Group for that Testing
Period: |
|
(a) |
|
before taking into account: |
|
(i) |
|
Acquisition Costs; and |
|
|
(ii) |
|
all items excluded from underlying earnings to the extent
included in profit on ordinary activities before financing costs and tax; |
|
(b) |
|
after excluding (to the extent included) any gains or losses on the disposal
or revaluation of interests in businesses (other than in the ordinary course of
trading); |
|
|
(c) |
|
after adding back any business interruption loss incurred which is covered by
insurance and which is not added back to the total profit on ordinary activities
before finance costs and tax of the Group in accordance with UK GAAP; |
|
|
(d) |
|
after adding back all amounts provided for depreciation and amortisation
(including acquisition goodwill) and impairment charges less reversals; and |
|
|
(e) |
|
after adding back all amounts provided for in depreciation and amortisation,
tax and finance costs in equity accounted units of the Group in computing the
consolidated profit. |
82
|
|
Net Borrowings means, as at any particular time, Total Borrowings less
Cash and Cash Equivalent Investments at that time. |
|
|
|
Total Borrowings means, as at any particular time, the aggregate outstanding
principal, capital or nominal amount of the Financial Indebtedness of members of the
Group, other than: |
|
(a) |
|
any indebtedness referred to in paragraph (d) of the definition of Financial
Indebtedness or any guarantee in respect of that indebtedness; or |
|
|
(b) |
|
any Financial Indebtedness owed to another member of the Group. |
|
(a) |
|
each financial year of the Group; and |
|
|
(b) |
|
each period beginning on the first day of the second half of a financial year
of the Group and ending on the last day of the first half of the next financial year
of the Group, |
|
|
with the first Testing Period being the twelve month period ending on 31 December 2011. |
|
26.2 |
|
Leverage ratio |
|
|
|
The Companies shall ensure that, in respect of each Testing Period, the ratio of
Net Borrowings on the last day of that Testing Period to Consolidated EBITDA in
respect of that Testing Period shall not exceed 3.75:1. |
|
26.3 |
|
Financial testing |
|
(a) |
|
The financial covenant set out in Clause 26.2 (Leverage ratio) shall be
calculated in accordance with UK GAAP and tested by reference to each of the financial
statements delivered pursuant to Clause 25.1 (Financial statements) and/or each
Compliance Certificate delivered pursuant to Clause 25.2 (Compliance Certificate). |
|
|
(b) |
|
For the purpose of calculating Total Borrowings, any amount outstanding or
repayable in a currency other than US Dollars shall be taken into account in its US
Dollar equivalent at the rate of exchange that would have been used had an audited
consolidated balance sheet of the Group been prepared as at the day on which that
calculation is made in accordance with UK GAAP. |
|
|
(c) |
|
For the purpose of the calculations to be made in respect of each Testing
Period which ends during the first 12 months after the Closing Date, the definition of
Consolidated EBITDA shall include the results of the Target Group for the full
duration of the relevant Testing Period (including any part of the Testing Period
falling prior to the Closing Date). |
83
27. |
|
GENERAL UNDERTAKINGS |
|
|
|
The undertakings in this Clause 27 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. |
|
27.1 |
|
Authorisations |
|
|
|
Each Obligor shall promptly: |
|
(a) |
|
obtain, comply with and do all that is necessary to maintain in full force
and effect; and |
|
|
(b) |
|
supply certified copies to the Facility Agent of, |
|
|
any Authorisation required under any law or regulation of its jurisdiction of
incorporation to enable it to perform its obligations under this Agreement and to
ensure the legality, validity, enforceability or admissibility in evidence in its
jurisdiction of incorporation of this Agreement. |
|
27.2 |
|
Negative pledge |
|
(a) |
|
Neither Company shall (and each Company shall procure that none of its
Subsidiaries shall) create or have outstanding any Security over any of its property
or assets securing Financial Indebtedness. |
|
|
(b) |
|
Paragraph (a) above does not apply to any Permitted Security Interest. |
|
(a) |
|
At any time that the Credit Ratings assigned to the Companies by S&P and
Moody’s are A-/A3 or better, neither Company shall (and each Company shall procure
that none of its Subsidiaries shall) enter into a single transaction or a series of
transactions (whether related or not, whether at the time or over a period of time and
whether voluntary or involuntary) to sell, lease, transfer or otherwise dispose of the
whole of its assets or of any material part of its assets. |
|
|
(b) |
|
Paragraph (a) above does not apply to any sale, lease, transfer or other
disposal: |
|
(i) |
|
made with the prior consent of the Majority Lenders; |
|
|
(ii) |
|
by one member of the Group to another member of the Group
(other than a Project Company); |
|
|
(iii) |
|
made on arm’s length terms for fair consideration; or |
|
|
(iv) |
|
which is not reasonably likely to have a Material Adverse
Effect. |
84
|
(c) |
|
At any time when either of the Credit Ratings assigned to the Companies by
S&P or Xxxxx’x is below A-/A3, neither Company shall (and each Company shall procure
that none of its Subsidiaries shall) enter into a single transaction or a series of
transactions (whether related or not, whether at the time or over a period of time and
whether voluntary or involuntary) to sell, lease, transfer or otherwise dispose of the
whole of its assets or of any part of its assets. |
|
|
(d) |
|
Paragraph (c) above does not apply to any sale, lease, transfer or other
disposal: |
|
(i) |
|
made with the prior consent of the Majority Lenders; |
|
|
(ii) |
|
by one member of the Group to another member of the Group
(other than a Project Company or Joint Venture); |
|
|
(iii) |
|
in respect of which any member of the Target Group has
entered into binding contractual arrangements prior to the Closing Date; |
|
|
(iv) |
|
of assets in exchange for other assets which are comparable
or superior as to value; |
|
|
(v) |
|
made in the ordinary course of business of the disposing
entity (which, for the avoidance of doubt, does not include the sale of shares
or other equity-related instruments, businesses, all or substantially all of
the assets of a business, mineral rights associated with a mining business or
operation, oil rigs, ports, railroads or mines); |
|
|
(vi) |
|
where: |
|
(A) |
|
the Net Disposal Proceeds (as defined in
Clause 13.7 (Mandatory prepayment from Net Disposal Proceeds)) of such
sale, lease, transfer or other disposal are applied, or are to be
applied, in prepayment of the Loans and/or cancellation of the
Available Commitments in accordance with Clause 13.7 (Mandatory
prepayment from Net Disposal Proceeds); or |
|
|
(B) |
|
the net disposal proceeds of such sale,
lease, transfer or other disposal are, or are to be, applied in
voluntary prepayment of the Loans and/or cancellation of the
Commitments under the Facilities (and, for this purpose, the Obligors’
Agent may select which Loans and/or Commitments to prepay and/or
cancel) on or before the end of the then current Interest Periods for
those Loans (provided that any such prepayment of Revolving Facility
Loans is accompanied by a corresponding cancellation of Revolving
Facility Commitments in the same amount and on the same day); or |
|
(vii) |
|
made on arm’s length terms for fair consideration where the
higher of the market value and the net consideration receivable (when
aggregated with the higher of the market value and the net |
85
|
consideration receivable for any other sale, lease, transfer or other
disposal not allowed under sub-paragraphs (i) to (vi) above) does not
exceed an amount equal to the Disposals Basket Amount (or its equivalent in
other currencies) in any financial year of the Companies. |
|
|
For this purpose, Disposals Basket Amount means: |
|
(a) |
|
in respect of the period between the date on which paragraph
(c) above first applies and the end of the then current financial year of the
Group: |
|
(i) |
|
an amount equal to 10 per cent. of the Gross
Assets of the Group multiplied by the number of days remaining between
the date on which the relevant ratings downgrade by S&P or Moody’s
occurred (the downgrade date) and the end of the then current
financial year of the Companies and divided by 365; or |
|
|
(ii) |
|
such higher amount than that determined under
sub-paragraph (i) above (not exceeding an amount equal to 10 per cent.
of the Gross Assets of the Group) (the difference between the amount
under this sub-paragraph (ii) and the amount determined under
sub-paragraph (i) above being the excess), but only to the extent that
the Companies can demonstrate to the Facility Agent that, had the
provisions of paragraph (c) above applied from the beginning of the
then current financial year, the Companies would not have already
utilised the excess as a result of any sale, lease, transfer or other
disposal made between the start of that financial year and the
downgrade date; or |
|
(b) |
|
in respect of each subsequent financial year of the Group, an
amount equal to 10 per cent. of the Gross Assets of the Group. |
27.4 |
|
Compliance with laws |
|
|
|
Each Obligor shall comply in all material respects with all laws to which it may
be subject and shall maintain all necessary licences, if failure so to comply or
maintain would be reasonably likely to have a Material Adverse Effect. |
|
27.5 |
|
Change of business |
|
|
|
The Companies shall procure that no substantial change is made to the general
nature of the business of the Group from that carried on at the date of this
Agreement, unless such change is not reasonably likely to have a Material Adverse
Effect. |
|
27.6 |
|
Environmental compliance |
|
|
|
Each Obligor shall, and shall procure that each of its Subsidiaries will, comply
in all material respects with all applicable Environmental Laws, where failure to
comply would be reasonably likely to have a Material Adverse Effect. |
86
27.7 |
|
Subsidiary indebtedness |
|
(a) |
|
Except as permitted under paragraph (b) below, each Company shall ensure that
none of its Subsidiaries will incur or allow to remain outstanding any Financial
Indebtedness. |
|
|
(b) |
|
Paragraph (a) above does not apply to: |
|
(i) |
|
any Financial Indebtedness arising under any of the Finance
Documents; |
|
|
(ii) |
|
any Financial Indebtedness owed by a member of the Group to
any other member of the Group; |
|
|
(iii) |
|
any Financial Indebtedness of any Project Company or Joint
Venture (but only to the extent such Financial Indebtedness meets the
requirements set out in sub-paragraph (a)(ii)(A) or (a)(ii)(B) of Clause 27.10
(Project Companies) or the definition of Joint Venture in Clause 1.1
(Definitions), as the case may be); |
|
|
(iv) |
|
any Financial Indebtedness arising under any derivative
transaction entered into in connection with protection against or benefit from
fluctuation in any rate or price; |
|
|
(v) |
|
any Financial Indebtedness of any Finance Company; |
|
|
(vi) |
|
any Financial Indebtedness of a member of the Target Group
existing on the Closing Date (and any replacement or refinancing of that
indebtedness in the same or any lower amount); |
|
|
(vii) |
|
any Financial Indebtedness of any person (other than any
member of the Target Group) acquired by a member of the Group which is
incurred under arrangements in existence at the date of acquisition, but not
incurred or increased or its maturity date extended in contemplation of, or
since, that acquisition, and outstanding only for a period of six months
following the date of acquisition; |
|
|
(viii) |
|
any Financial Indebtedness under finance or capital leases of vehicles,
plant, equipment or computers which would, in accordance with UK GAAP as
applicable to the Original Financial Statements, be treated as finance or
capital leases; |
|
|
(ix) |
|
if a New Holding Company is put in place in the manner
contemplated in Clause 43.7 (New Holding Company), until the date on which the
guarantee of PLC under Clause 23 (Guarantee And Indemnity By The Companies)
ceases in accordance with Clause 43.7(b)(iv) (New Holding Company), any
Financial Indebtedness of PLC existing on the date on which the New Holding
Company is put in place (and in a maximum aggregate principal amount not
exceeding the principal amount of that Financial Indebtedness on such date) or
any guarantee given by PLC in |
87
|
|
|
respect of any Financial Indebtedness of the New Holding Company incurred
after the date on which the New Holding Company is put in place and
provided that, in each case, such Financial Indebtedness ranks no more
senior than pari passu with the Financial Indebtedness of PLC under this
Agreement; and |
|
|
(x) |
|
any Financial Indebtedness not falling within sub-paragraphs
(i) to (ix) above, the outstanding principal amount of which does not exceed
an amount equal to 10 per cent. of the Gross Assets of the Group at that time. |
27.8 |
|
Target Financial Indebtedness |
|
(a) |
|
From the Closing Date until the Wholly-owned Date, the Companies will use
commercially reasonable endeavours either: |
|
(i) |
|
to remedy or obtain a waiver of any defaults or events of
default which arise under any Financial Indebtedness of any member of the
Target Group which, in respect of any single debt instrument, is in excess of
US$100,000,000 (the Relevant Target Facilities) where, if such Financial
Indebtedness or any commitment for such Financial Indebtedness were to be
accelerated, cancelled, suspended or not paid, an Event of Default would, but
for the proviso contained in Clause 29.5 (Cross acceleration), occur under
such Clause (the Relevant Events of Default); or |
|
|
(ii) |
|
to refinance, terminate or procure that a member of the Group
purchases the outstanding Financial Indebtedness under the Relevant Target
Facility under which a Relevant Event of Default has occurred and is
continuing, |
|
|
|
such that any such Relevant Events of Default are remedied or
waived and/or such Relevant Target Facilities are refinanced and/or terminated
and/or the subject of a purchase of Financial Indebtedness. |
|
|
(b) |
|
Following the Wholly-owned Date, the Companies will, as soon as reasonably
practicable and in any event within 90 days after such date, either: |
|
(i) |
|
remedy or obtain a waiver of the Relevant Events of Default;
or |
|
|
(ii) |
|
refinance, terminate or procure that a member of the Group
purchases the outstanding Financial Indebtedness under the Relevant Target
Facility under which a Relevant Event of Default has occurred and is
continuing, |
|
|
|
such that any such Relevant Events of Default are remedied or
waived and/or such Relevant Target Facilities are refinanced and/or terminated
and/or the subject of a purchase of Financial Indebtedness. |
88
27.9 |
|
US Margin Regulations |
|
|
|
No Obligor may use any Loan, directly or indirectly, for any purpose in
violation of the Margin Regulations. |
|
27.10 |
|
Project Companies |
|
(a) |
|
The Obligors’ Agent may at any time by written notice to the Facility Agent
(and specifying whether sub-paragraph (ii)(A) or (ii)(B) applies) designate a member
of the Group as a Project Company (a designated company) if: |
|
(i) |
|
its principal activity is or will be the ownership and
development and/or operation of a project including without limitation: |
|
(A) |
|
the discovery, mining, extraction,
transportation or development (in each case whether directly or
indirectly) of natural resources; or |
|
|
(B) |
|
the development or operation of processing
facilities (in each case whether directly or indirectly) related to
natural resources including, without limitation, metals smelting,
processing and refining and oil and gas processing and refining and
energy generation facilities; and |
|
(ii) |
|
(A) |
|
none of that designated company’s Financial Indebtedness
retains the benefit in any material manner from any guarantee, bond, security
(other than in a manner permitted by paragraph (m) of the definition of
“Permitted Security Interests” in Clause 1.1 (Definitions)), indemnity or
other commitment from another member of the Group (other than a Project
Company) to assure the repayment of, or indemnify against loss in respect of
non-payment of, that Financial Indebtedness; or |
|
(B) |
|
some or all of that designated company’s
Financial Indebtedness does so benefit but the relevant guarantee,
bond, security, indemnity or other commitment is designed to be
withdrawn or cease to apply, in accordance with the terms of that
Financial Indebtedness, prior to the repayment of that Financial
Indebtedness. |
|
(b) |
|
The Obligors’ Agent may give written notice to the Facility Agent at any time
that (i) any Project Company is no longer a Project Company, whereupon it shall cease
to be a Project Company or (ii) that a Project Company previously falling within
paragraph (a)(ii)(B) above now falls within paragraph (a)(ii)(A) above. |
|
|
(c) |
|
The Companies shall procure that the aggregate amount of: |
|
(i) |
|
all Project Investments in all Project Companies; and |
|
|
(ii) |
|
the lower of: |
89
|
(A) |
|
the value of all assets subject to any
Security solely permitted by reason of paragraph (o) of the definition
of “Permitted Security Interests” in Clause 1.1 (Definitions); and |
|
|
(B) |
|
any Financial Indebtedness which benefits
from any such Security, |
|
|
does not at any time exceed 20 per cent. of the Gross Assets of the Group. |
|
28. |
|
ACQUISITION UNDERTAKINGS |
|
(a) |
|
Subject to paragraph (b) below, any publicity or information released to the
press and any announcements made in connection with the Facilities shall be managed
exclusively by the Companies and, other than to the extent required by any applicable
law or regulation, no announcements or public disclosure regarding the Facilities
(including any public disclosure to be made in connection with the Acquisition) or any
roles as arranger, bookrunner, lender or agent shall be made by the Finance Parties
without the prior written consent of the Companies. |
|
|
(b) |
|
The Companies must not (and shall procure that Bidco will not) issue any
press release or make any statement or announcement which makes reference to the
Facilities or to some or all of the Finance Parties or to the Finance Documents,
unless required by applicable law or regulation or any court or regulatory body (in
which case the Companies must notify the Facility Agent as soon as practicable upon
becoming aware of the requirement) without the written approval of the Facility Agent
(not to be unreasonably withheld or delayed). |
|
|
(c) |
|
The Companies must (and shall procure that Bidco will) comply in all material
respects with all applicable laws and regulations relevant in the context of the
Acquisition. |
|
|
(d) |
|
The Companies must (or shall procure that Bidco will): |
|
(i) |
|
supply to the Facility Agent a copy of each principal
document setting out the material terms applicable to the Acquisition,
promptly after its release after the date of this Agreement; and |
|
|
(ii) |
|
subject to any confidentiality, regulatory or other
restrictions relating to the supply of such information (provided that the
Companies shall use reasonable endeavours to overcome any confidentiality
limitations), promptly supply to the Facility Agent: |
|
(A) |
|
copies of each other document, certificate,
notice and announcement received or issued by it or on its behalf in
relation to the Acquisition which is material in the context of the
Facilities; |
|
|
(B) |
|
such information regarding the Acquisition as
the Facility Agent may reasonably request; and |
90
|
(C) |
|
details of any amendment, variation or waiver
of any of the material terms applicable to the Acquisition and a copy
of any related document. |
|
(e) |
|
The Companies must promptly notify (or shall procure that Bidco will promptly
notify) the Facility Agent if the Merger Agreement (or any substitute Acquisition
Document which replaces it) is terminated in accordance with its terms (including,
without limitation, as a result of the expiry of a long stop date to which such
document is subject). |
|
|
(f) |
|
The Companies must notify the Facility Agent in writing within 10 days of the
board of directors of the Companies (or a duly appointed committee or delegate
thereof) resolving no longer to pursue the Acquisition. |
29. |
|
EVENTS OF DEFAULT |
|
|
|
Each of the events or circumstances set out in this Clause 29 (Events Of Default)
(other than Clause 29.11 (Acceleration) and Clause 29.12 (Clean-Up Period)) is an
Event of Default. |
|
29.1 |
|
Non-payment |
|
|
|
An Obligor or the Obligors’ Agent does not pay on the due date any amount
payable pursuant to a Finance Document at the place at and in the currency in which it
is expressed to be payable unless payment is made within three Business Days of the
Facility Agent notifying the Obligors’ Agent that such amount has not been paid on its
due date. |
|
29.2 |
|
Breach of financial covenant |
|
|
|
Any requirement of Clause 26 (Financial Covenant) is not satisfied.
|
|
29.3 |
|
Breach of other obligations |
|
(a) |
|
An Obligor does not comply with: |
|
(i) |
|
Clause 25.5(a) (Notification of Default), Clause 27.2
(Negative pledge), Clause 27.3 (Disposals) or Clause 27.7 (Subsidiary
indebtedness); or |
|
|
(ii) |
|
any other provision of the Finance Documents (other than
those referred to in Clause 29.1 (Non-payment) and 29.2 (Breach of financial
covenant)). |
|
(b) |
|
No Event of Default will occur under paragraph (a)(ii) above if the failure
to comply is capable of remedy and is remedied within 30 Business Days of the earlier
of the Facility Agent giving notice to the Obligors’ Agent specifying the
non-compliance and requiring it to be remedied and the Companies becoming aware of the
failure to comply. |
91
|
(a) |
|
Any representation or statement made or deemed to be made by an Obligor in
this Agreement or any other document delivered by or on behalf of any Obligor under or
in connection with this Agreement 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 will occur under paragraph (a) above if the event or
circumstance giving rise to the representation or statement being incorrect or
misleading is capable of remedy and is remedied within 30 days of the earlier of the
Facility Agent notifying the Obligors’ Agent of the misrepresentation and the
Companies becoming aware of the misrepresentation. |
|
(i) |
|
Financial Indebtedness of a member of the Group (other than
Financial Indebtedness of an Excluded Subsidiary or Financial Indebtedness
owed to another member of the Group) is duly accelerated by or on behalf of
the person to whom such Financial Indebtedness is owed as a result of an event
of default (however described) under the documentation relating to that
Financial Indebtedness (unless being contested in good faith where the member
of the Group concerned has access to sufficient liquidity to cover the amount
claimed); or |
|
|
(ii) |
|
Financial Indebtedness of a member of the Group (other than
Financial Indebtedness of an Excluded Subsidiary or Financial Indebtedness
owed to another member of the Group) is not paid within five Business Days of
the due date or, if later, at the expiry of any applicable grace period; or |
|
|
(iii) |
|
commitment for any Financial Indebtedness of a member of the
Group (other than Financial Indebtedness of an Excluded Subsidiary or
Financial Indebtedness owed to another member of the Group) is cancelled or
suspended as a result of an event of default (howsoever described) under the
documentation relating to that Financial Indebtedness (unless the member of
the Group concerned has access to sufficient liquidity for its business
notwithstanding that cancellation or suspension), |
|
|
|
provided that no Event of Default will occur under: |
|
(A) |
|
paragraphs (i), (ii) or (iii) above to the extent that they
relate to Financial Indebtedness or a commitment for Financial Indebtedness of
any member of the Target Group which is accelerated, cancelled, suspended or
not paid (x) as a result of the change of control of the Target caused by the
Acquisition, or any action taken by a creditor pursuant to a right arising, or
becoming exercisable, as a result of such change of control or (y) at any time
prior to the end of the period of 180 |
92
|
|
|
days after the Closing Date, as a result of any event or circumstance
arising on or prior to the Closing Date or (provided that such event or
circumstance (other than, for the avoidance of doubt, the Acquisition
itself) was not procured or approved by a member of the BHP Billiton
Group) within that period of 180 days, where such event or circumstance
occurs or exists solely with respect to members of the Target Group (or
their assets or liabilities), provided that (I) the creditor(s) of such
Financial Indebtedness or providers of such commitment do not have the
benefit of any guarantee, security, indemnity or other assurance against
loss from any member of the BHP Billiton Group and (II) such acceleration,
cancellation, suspension or non-payment does not result in the
acceleration of Financial Indebtedness of one or more member(s) of the BHP
Billiton Group which is, in aggregate, in excess of US$100,000,000 (or its
equivalent in other currencies); and/or |
|
|
(B) |
|
paragraphs (i), (ii) or (iii) above unless at any particular
point in time the amount of such Financial Indebtedness and commitment for
Financial Indebtedness specified in any of paragraphs (i) to (iii) above is in
aggregate in excess of US$100,000,000 (or its equivalent in other currencies). |
|
(b) |
|
If an Event of Default has occurred under paragraphs (a)(i), (ii) or (iii)
above, the Obligors’ Agent shall, upon request by the Facility Agent, provide the
Facility Agent with details of all events falling within paragraphs (i), (ii) and
(iii) above. |
29.6 |
|
Insolvency |
|
|
|
Any of the following events occurs in respect of a Material Company and is continuing: |
|
(a) |
|
that person is unable or admits its inability to pay its debts as they fall
due or suspends making payments on any of its debts by reason of actual or anticipated
financial difficulties; |
|
|
(b) |
|
a moratorium is declared in respect of any indebtedness of that person; |
|
|
(c) |
|
any corporate action, legal proceedings or other procedure or step is taken
(other than frivolous or vexatious legal proceedings or other procedures or steps
which are being contested by appropriate means and in good faith) in relation to: |
|
(i) |
|
the suspension of payments, a moratorium of any indebtedness,
the winding-up, dissolution, deregistration or administration of that person,
other than as part of a solvent merger, amalgamation, winding-up or
administration; or |
|
|
(ii) |
|
a composition, assignment or arrangement with any creditor of
that person, |
93
|
|
|
and, in the case of any such legal proceedings, those proceedings
are not stayed or discharged within 30 days; |
|
|
(d) |
|
the appointment of, in respect of any Borrower, a liquidator (other than in
respect of a solvent liquidation), receiver, receiver and manager, administrator,
administrative receiver, compulsory manager or trustee, or other similar officer in
respect of that person or all or a substantial part of its assets; or |
|
|
(e) |
|
any analogous step or proceeding corresponding to those in paragraphs (c) or
(d) above is taken in any jurisdiction. |
29.7 |
|
Creditors’ process |
|
|
|
Any attachment, sequestration, distress or execution affects any asset of a
Material Company unless (i) it is discharged within 30 days (ii) it is being contested
in good faith by appropriate means or (iii) it has not had, or is not reasonably
likely to have, a Material Adverse Effect. |
|
29.8 |
|
Ownership of the Borrowers |
|
|
|
Any member of the BHP Billiton Group which is a Borrower (other than the
Companies) to which there are Loans outstanding is not or ceases to be a wholly-owned
Subsidiary of one of the Companies or, in the case of a member of the Target Group
which is a Borrower, any such Borrower to which there are Loans outstanding is not or
ceases to be a Subsidiary of one of the Companies. |
|
29.9 |
|
Security enforceable |
|
|
|
Any Security is enforced against any assets of any Material Company having a
value of, or, during any financial year of the Group, a value which is, when
aggregated with the value of all other assets of the Group over which security has
been enforced in that financial year, at least US$100,000,000 (or its equivalent in
other currencies) (unless such enforcement is being disputed in good faith by
appropriate means) and that enforcement is reasonably likely to have a Material
Adverse Effect. |
|
29.10 |
|
Guarantees |
|
(a) |
|
Subject to any general principles of law limiting its obligations which are
specifically referred to in any legal opinion delivered pursuant to this Agreement,
the guarantee of a Company under this Agreement or under the Company Parent Guarantee
to which it is a party (insofar as it applies to this Agreement) is not effective or
is alleged by an Obligor to be ineffective for any reason. |
|
|
(b) |
|
A Company repudiates its guarantee under this Agreement or under the Company
Parent Guarantee to which it is a party or threatens to do so. |
94
29.11 |
|
Acceleration |
|
|
|
Subject to Clause 29.12 (Clean-Up Period), if an Event of Default occurs and is continuing,
the Facility Agent may, and shall if so directed by the Majority Lenders, by notice to
the Obligors’ Agent: |
|
(a) |
|
declare all or part of the Loans, together with accrued interest and all
other amounts accrued under this Agreement, to be immediately due and payable,
whereupon they shall be immediately due and payable; and/or |
|
|
(b) |
|
cancel the Total Commitments, whereupon they shall immediately be cancelled;
and/or |
|
|
(c) |
|
declare all or part of the Loans to be payable on demand, whereupon they
shall immediately become payable on demand by the Facility Agent on the instructions
of the Majority Lenders. |
|
(a) |
|
In this Clause 29.12, Clean-Up Period means the period from the Closing Date
to the date falling 180 days after the Closing Date. |
|
|
(b) |
|
If, during the Clean-Up Period, any event or circumstance occurs or exists
solely with respect to a member of the Target Group (or solely with respect to any of
their assets or liabilities) which constitutes a Default (other than to the extent the
relevant event or circumstance constitutes a Default under Clause 29.3 (Breach of
other obligations) for failure to comply with Clause 27.7 (Subsidiary indebtedness)): |
|
(i) |
|
the Companies must promptly notify the Facility Agent of that
fact, giving a reasonable description of the relevant event or circumstance
and the steps, if any, the relevant member of the Group proposes to take to
remedy it; and |
|
|
(ii) |
|
except as set out in paragraph (c) below, during the Clean-Up
Period, no Finance Party shall be entitled to take any of the actions or to
give any notice referred to in Clause 29.11 (Acceleration), or to take any
other action (or prevent any Utilisation), with respect to that Default. |
|
(c) |
|
Paragraph (b)(ii) shall not apply if: |
|
(i) |
|
the event or circumstance giving rise to the Default was
procured or approved by a member of the Group (other than a member of the
Target Group) after the Closing Date; |
|
|
(ii) |
|
the Default is not capable of remedy; |
|
|
(iii) |
|
it would otherwise permit any Utilisation to be made by a
member of the Group in respect of which any of the events or circumstances
referred to in Clauses 29.5 (Cross acceleration) (other than to the extent the |
95
|
|
|
relevant event or circumstance has arisen as a result of the Acquisition),
29.6 (Insolvency), 29.7 (Creditors’ process) or 29.9 (Security enforceable)
have occurred; |
|
|
(iv) |
|
the Default is capable of remedy but reasonable steps are not
being taken to remedy it or the event or circumstance giving rise to the Event
of Default; or |
|
|
(v) |
|
the Default would reasonably be expected to have a Material
Adverse Effect. |
|
(d) |
|
If the relevant event or circumstances giving rise to the Event of Default
are continuing on or after the end of the Clean-Up Period, nothing in this Clause
29.12 shall prevent any Finance Party from taking any of the actions or from giving
any notice referred to in Clause 29.11 (Acceleration), or from taking any other action
which it is entitled to take under the Finance Documents, with respect to that Event
of Default. |
30. |
|
CHANGES TO THE LENDERS |
|
30.1 |
|
Assignments, transfers and sub-participations by the Lenders |
|
|
|
Subject to this Clause 30, a Lender (the Existing Lender) may by written notice to the
Obligors’ Agent: |
|
(a) |
|
assign any of its rights under the Finance Documents (including the Lender’s
rights in relation to any Note held by it); or |
|
|
(b) |
|
transfer any of its Notes or transfer by novation any of its other rights and
obligations under the Finance Documents, |
|
|
to another bank or financial institution or other entity which is regularly
engaged in or established for the purpose of making, purchasing or investing in loans,
securities or other financial assets (the New Lender) that is not an Offshore
Associate of an Australian Borrower. A Lender may sub-participate all or any part of
any of its rights or obligations under this Agreement to another bank or financial
institution provided that prior to entering into any such sub-participation that
Lender notifies the Obligors’ Agent of the identity of the proposed sub-participant
and provides any other information that the Obligors’ Agent may reasonably require. |
|
30.2 |
|
Conditions of assignment or transfer |
|
(a) |
|
The prior written consent of the Obligors’ Agent is required for an
assignment or transfer by a Lender unless the assignment or transfer is to another
Lender or an Affiliate of a Lender, or an Event of Default is continuing. The
Facility Agent shall not be obliged to determine whether or not the prior written
consent of the Obligors’ Agent is required or has been obtained in relation to any
assignment or transfer. |
96
|
(b) |
|
If an assignment or transfer requires the consent of the Obligors’ Agent
under paragraph (a) above, that consent must not be unreasonably withheld or delayed
and the Obligors’ Agent will be deemed to have given its consent ten Business Days
after the Existing Lender has requested it unless consent is expressly refused by the
Obligors’ Agent within that time. |
|
|
(c) |
|
An assignment will only be effective on: |
|
(i) |
|
receipt by the Facility Agent of written confirmation from
the New Lender (in form and substance satisfactory to the Facility Agent) that
the New Lender will: |
|
(A) |
|
assume the same Commitment as the Existing
Lender; and |
|
|
(B) |
|
assume the same obligations to the other
Finance Parties as it would have been under if it were an Original
Lender; and |
|
(ii) |
|
satisfaction by the Facility Agent of all necessary “know
your customer” requirements under all applicable laws and regulations in
relation to such assignment to a New Lender. The Facility Agent shall promptly
notify the Existing Lender and the New Lender upon completion of such
requirements. |
|
(d) |
|
A transfer will only be effective if the procedure set out in Clause 30.6
(Procedure for transfer) is complied with. |
|
|
(e) |
|
If: |
|
(i) |
|
a Lender assigns or transfers 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, transfer or change occurs, or of which the New Lender or Existing
Lender (in the case of any assignment or transfer) or the Lender (in the case
of a change of Facility Office) is aware at that date, an Obligor would, but
for this paragraph (e), be obliged to make a payment to the New Lender or
Lender acting through its new Facility Office under Clause 18 (Tax Gross Up
And Indemnities) or Clause 19 (Increased Costs), |
|
|
|
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, transfer or change had not occurred. |
|
|
(f) |
|
Following receipt of a written notice from the Facility Agent pursuant to
Clause 30.1 (Assignments, transfers and sub-participations by the Lenders), the
Obligors’ Agent may, in circumstances where its consent to such assignment or transfer
is required pursuant to Clause 30.2 (Conditions of assignment or transfer), require
the Existing Lender to assign or transfer its rights and |
97
|
|
|
obligations under this Agreement to such bank or financial institution as the
Obligors’ Agent shall specify (an Alternative Lender). The Existing Lender shall
use all reasonable endeavours to comply with such request, provided that the
Existing Lender shall not be obliged to comply with such request unless the
Alternative Lender is prepared to have the relevant rights and/or obligations
assigned or transferred to it on exactly the same (or better) terms (including
price) as the original New Lender was willing to agree to. |
|
|
(g) |
|
Any assignment or transfer of part of an Existing Lender’s rights and/or
obligations under this Agreement must be in a minimum amount of US$5,000,000 (or its
equivalent in any other currency). |
|
|
(h) |
|
An assignment or transfer by a Lender in respect of a Facility during the
Availability Period of that Facility must be of a rateable proportion of that Lender’s
drawn and undrawn Commitment under that Facility. |
|
|
(i) |
|
A Lender may only vote in favour of, or not in favour of, any amendment,
waiver or other matter relating to the Facilities (and may not split its vote to
reflect any sub-participation or other arrangements). |
30.3 |
|
Transfer and transmission of Notes |
|
(a) |
|
Subject to this Agreement, a Lender may transfer Notes held by it by
executing a Transfer Certificate. A transfer of a Note will only be effective if the
procedure set out in Clause 10.7 (Transfer not effective until recorded in Register)
is complied with. |
|
|
(b) |
|
It is a condition of such transfer that the transfer of a Note is not to a
person whom the transferring Lender knows, after having requested confirmation from
such proposed transferee, is an Offshore Associate of the relevant Australian
Borrower. |
|
|
(c) |
|
Subject to this Agreement, a person who is responsible under applicable law
for the administration of assets of a Lender or is entitled to Notes as a result of
the liquidation of a Lender may, upon production of such evidence of the foregoing as
is required by the Facility Agent: |
|
(i) |
|
be registered as the holder of Notes held by that Lender; or |
|
|
(ii) |
|
transfer some or all of those Notes. |
30.4 |
|
Assignment or transfer fee |
|
|
|
The New Lender shall, on the date upon which an assignment or transfer takes
effect, pay to the Facility Agent (for its own account) a fee of US$2,500. |
|
30.5 |
|
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: |
98
|
(i) |
|
the legality, validity, effectiveness, adequacy or
enforceability of the Finance Documents or any other documents; |
|
|
(ii) |
|
the financial condition of any Obligor; |
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(iii) |
|
the performance and observance by any Obligor of its
obligations under the Finance Documents or any other documents; or |
|
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(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 and the other Finance 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 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 or Company Parent
Guarantee; and |
|
|
(ii) |
|
will continue to make its own independent appraisal of the
creditworthiness of each Obligor and its related entities 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 re-transfer from a New Lender of any of the rights
and obligations assigned or transferred under this Clause 30; or |
|
|
(ii) |
|
support any losses directly or indirectly incurred by the New
Lender by reason of the non-performance by any Obligor of its obligations
under the Finance Documents, Company Parent Guarantees or otherwise. |
30.6 |
|
Procedure for transfer |
|
(a) |
|
Subject to the conditions set out in Clause 30.2 (Conditions of assignment or
transfer), a transfer is effected in accordance with paragraph (c) below when the
Facility Agent executes an otherwise duly completed Transfer Certificate delivered to
it by the Existing Lender and the New Lender. The Facility Agent shall, subject to
paragraph (b) 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 Facility Agent shall only be obliged to execute a Transfer Certificate
delivered to it by the Existing Lender and the New Lender upon its completion of |
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all “know your customer” or other checks relating to any person that it is required
to carry out in relation to the transfer to such New Lender. |
|
|
(c) |
|
On the Transfer Date: |
|
(i) |
|
to the extent that in the Transfer Certificate the Existing
Lender seeks to transfer its Notes and the Loans they represent and transfer
by novation its other 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 (other than
under the Notes) shall be cancelled (being the Discharged Rights and
Obligations); |
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(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 Agents, the Mandated Lead Arrangers, the New Lender and
the 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 transfer and to that extent the Agents,
the Mandated Lead Arrangers, the other Lenders and the Existing Lender shall
each be released from further obligations to each other under this Agreement;
and |
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(iv) |
|
the New Lender shall become a Party as a Lender. |
30.7 |
|
Security over Lenders’ rights |
|
|
|
In addition to the other rights provided to Lenders under this Clause 30, 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, without limitation: |
|
(a) |
|
any charge, assignment or other Security to secure obligations to a federal
reserve or central bank; and |
|
|
(b) |
|
in the case of any Lender which is a fund, 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, |
|
|
except that no such charge, assignment or other Security shall: |
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(i) |
|
release a Lender from any of its obligations under the Finance Documents or
substitute the beneficiary of the relevant charge, assignment or other Security for
the Lender as a party to any of the Finance Documents; or |
|
|
(ii) |
|
require any payments to be made by an Obligor 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. |
30.8 |
|
Pro rata interest settlement |
|
|
|
If the Facility 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 transfer pursuant to Clause 30.6 (Procedure for transfer) 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): |
|
(a) |
|
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 |
|
|
(b) |
|
the rights assigned or transferred by the Existing Lender will not include
the right to the Accrued Amounts so that, for the avoidance of doubt: |
|
(i) |
|
when the Accrued Amounts become payable, those Accrued
Amounts will be payable for the account of the Existing Lender; and |
|
|
(ii) |
|
the amount payable to the New Lender on that date will be the
amount which would, but for the application of this Clause, have been payable
to it on that date, but after deduction of the Accrued Amounts. |
30.9 |
|
Copy of Transfer Certificate, assignment agreement or Increase Confirmation to Obligors’
Agent |
|
|
|
The Facility Agent shall, as soon as reasonably practicable after it has executed a
Transfer Certificate or Increase Confirmation, send to the Obligors’ Agent a copy of that
Transfer Certificate or Increase Confirmation. Any Lender which assigns any of its rights
under this Clause 30 shall, as soon as reasonably practicable, send a copy of any agreement
documenting such assignment to the Facility Agent (which promptly on receipt shall forward
a copy to the Obligors’ Agent). |
|
31. |
|
CONFIDENTIALITY AND DISCLOSURE OF INFORMATION |
|
31.1 |
|
Confidentiality undertaking |
|
|
|
Each Finance Party undertakes to keep all Confidential Information confidential
and not to disclose it to anyone, save to the extent permitted by Clause 31.2
(Permitted |
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disclosure), 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. |
|
31.2 |
|
Permitted disclosure |
|
|
|
A Finance Party may disclose any Confidential Information as that Finance Party
shall consider appropriate: |
|
(a) |
|
to any of its Affiliates and any of its or their officers, directors,
employees and professional advisers and to any auditors of that Finance Party or its
Affiliates; |
|
|
(b) |
|
to any other person: |
|
(i) |
|
to (or through) whom it assigns or transfers (or may
potentially assign or transfer) all or any of its rights and obligations under
this Agreement; |
|
|
(ii) |
|
with (or through) whom it enters into (or may potentially
enter into) any sub-participation in relation to, or any other transaction
under which payments are to be made by reference to, this Agreement or any
Obligor; |
|
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(iii) |
|
to whom, and to the extent that, information is required
(including, without limitation, as a result of a request by a court or
regulatory body) to be disclosed by any applicable law or regulation; or |
|
|
(iv) |
|
to whom or for whose benefit that Finance Party charges,
assigns or otherwise creates Security (or may do so) pursuant to Clause 30.7
(Security over Lenders’ rights); |
|
(c) |
|
to a rating agency or its professional advisers; or |
|
|
(d) |
|
with the prior written consent of the Obligors’ Agent, to any other person, |
|
|
provided that in relation to paragraphs (b)(i) and (ii) above, the person to whom the
Confidential Information is to be given has entered into a Confidentiality
Undertaking. |
|
31.3 |
|
Notification of required or unauthorised disclosure |
|
|
|
Each Finance Party agrees (to the extent permitted by law and except where
disclosure is to be made to any competent supervisory or regulatory body during the
ordinary course of its supervisory or regulatory function) to inform each of the
Companies prior to any disclosure under Clause 31.2(b)(iii) (Permitted disclosure)) or
upon becoming aware that Confidential Information has been disclosed in breach of this
Agreement. |
|
31.4 |
|
Continuing obligations |
|
|
|
The obligations in this Clause 31 are continuing and, in particular, shall
survive the transfer or assignment by a Finance Party of any of its rights or
obligations under this Agreement in accordance with the provisions of Clause 30
(Changes To The Lenders). Notwithstanding the previous sentence, the obligations in
this Clause 31 shall cease on |
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the date twelve months after the date the Finance Party ceases to be a Finance Party under
this Agreement. |
|
32. |
|
CHANGES TO THE OBLIGORS |
|
32.1 |
|
Assignments and transfer by Obligors |
|
(a) |
|
Except as set out below, no Obligor may assign any of its rights or transfer
any of its rights or obligations under the Finance Documents. |
|
|
(b) |
|
Notwithstanding paragraph (a) above, a Finance Company which is the Borrower
of any Loan may novate its obligations under all such Loans to any other Finance
Company which becomes a Borrower in accordance with Clause 32.2 (Additional Borrowers)
and which is incorporated in the same jurisdiction as the original Finance Company,
provided that the Obligors’ Agent gives the Facility Agent at least five Business
Days’ prior written notice. Such Loans shall be novated to such other Finance Company
in accordance with the relevant Accession Letter on the date on which the Facility
Agent executes that Accession Letter. |
32.2 |
|
Additional Borrowers |
|
(a) |
|
The Obligors’ Agent may request that any Subsidiary of either Company, or a
New Holding Company, becomes an Additional Borrower. That Subsidiary or New Holding
Company shall become an Additional Borrower if: |
|
(i) |
|
in the case of a Subsidiary, that Subsidiary is a
wholly-owned Subsidiary of a Company or (on and from the Closing Date) is the
Target or a wholly-owned Subsidiary of the Target; |
|
|
(ii) |
|
in the case of a Subsidiary, subject to paragraph (c) below,
all the Lenders consent to the addition of that Subsidiary as a Borrower (such
consent not to be unreasonably withheld or delayed); |
|
|
(iii) |
|
the Obligors’ Agent delivers to the Facility Agent a duly
completed and executed Accession Letter; |
|
|
(iv) |
|
the Obligors’ Agent confirms that no Default is continuing or
would occur as a result of that Subsidiary or New Holding Company becoming an
Additional Borrower; and |
|
|
(v) |
|
the Facility Agent has received all of the documents and
other evidence listed in Part 3 of Schedule 2 (The Original Parties) in
relation to that Additional Borrower, if it is a Subsidiary, or Part 4 of
Schedule 2 (Conditions Precedent) in relation to that Additional Borrower, if
it is a New Holding Company, in each case, each in form and substance
satisfactory to the Facility Agent. |
|
(b) |
|
The Facility Agent shall notify the Obligors’ Agent and the Lenders promptly
upon being satisfied that it has received (in form and substance satisfactory to |
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|
|
it) all the documents and other evidence listed in Part 3 of Schedule 2 (Conditions
Precedent) in the case of a Subsidiary, or in Part 4 of Schedule 2 (Conditions
Precedent) in the case of a New Holding Company. |
|
|
(c) |
|
Subject to fulfilment of the conditions in paragraphs (a)(iii), (iv) and (v)
above, no Lender consent will be required for the accession as an Additional Borrower
of: |
|
(i) |
|
a wholly-owned Subsidiary of either Company incorporated in
Australia, England and Wales or the United States of America; or |
|
|
(ii) |
|
if on the date on which the relevant Accession Letter is
delivered to the Facility Agent the Closing Date has occurred, or if such
person is to accede as an Additional Borrower on the Closing Date, the Target
or any of its wholly-owned Subsidiaries incorporated in Australia, England and
Wales or the United States of America. |
32.3 |
|
Resignation of a Borrower |
|
(a) |
|
The Obligors’ Agent may request that a Borrower ceases to be a Borrower by
delivering to the Facility Agent a Resignation Letter at least five Business Days
prior to the proposed date of resignation. |
|
|
(b) |
|
The Facility Agent shall accept a Resignation Letter and notify the Obligors’
Agent and the Lenders of its acceptance if: |
|
(i) |
|
no Default is continuing or would result from the acceptance
of the Resignation Letter (and the Obligors’ Agent has confirmed this is the
case); and |
|
|
(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 as a Borrower under the Finance Documents. |
32.4 |
|
Repetition of representations |
|
|
|
Delivery of an Accession Letter constitutes confirmation by the relevant Subsidiary or New
Holding Company 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. |
|
33. |
|
ROLE OF THE AGENTS AND THE MANDATED LEAD ARRANGERS |
|
33.1 |
|
Appointment of the Agents |
|
(a) |
|
Each other Finance Party appoints each Agent to act as its agent under and in
connection with the Finance Documents. |
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(b) |
|
Each other Finance Party authorises each Agent to exercise the rights,
powers, authorities and discretions specifically given to it under or in connection
with the Finance Documents together with any other incidental rights, powers,
authorities and discretions. |
33.2 |
|
Duties of the Agents |
|
(a) |
|
Each Agent shall promptly forward to a Party the original or a copy of any
document which is delivered to it for that Party by any other Party (excluding,
without prejudice to Clause 30.9 (Copy of Transfer Certificate, assignment agreement
or Increase Confirmation to Obligors’ Agent), any Transfer Certificate or Increase
Confirmation). |
|
|
(b) |
|
If an Agent receives notice from a Party referring to this Agreement,
describing a Default and stating that the circumstance described is a Default, it
shall promptly notify the Finance Parties and, if so instructed by the Majority
Lenders, the Obligors’ Agent. |
|
|
(c) |
|
If an Agent is aware of the non-payment of any principal, interest,
commitment fee or other fee payable to a Finance Party under this Agreement it shall
promptly notify the other Finance Parties and the Obligors’ Agent. |
|
|
(d) |
|
Each Agent’s duties under the Finance Documents are solely mechanical and
administrative in nature. |
|
|
(e) |
|
The Facility Agent shall provide to the Obligors’ Agent within two Business
Days of a request by the Obligors’ Agent (but no more frequently than once a calendar
month) a list (which may be in electronic form) setting out: |
|
(i) |
|
the Commitments of the Lenders; |
|
|
(ii) |
|
the address and fax number (and the department or officer, if
any, for whose attention any communication is to be made) of each Lender for
any communication to be made or document to be delivered under or in
connection with the Finance Documents; |
|
|
(iii) |
|
the electronic mail address and/or any other information
required to enable the sending and receipt of information by electronic mail
or other electronic means to and by each Lender to whom any communication
under or in connection with the Finance Documents may be made by that means;
and |
|
|
(iv) |
|
the account details of each Lender for any payment to be
distributed by an Agent to that Lender under the Finance Documents. |
|
(a) |
|
Nothing in this Agreement constitutes an Agent or any Mandated Lead Arranger
as a trustee or fiduciary of any other person. |
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|
(b) |
|
No Agent nor any Mandated Lead Arranger shall be bound to account to any
Lender for any sum or the profit element of any sum received by it for its own
account. |
33.4 |
|
Business with the Group |
|
|
|
Each Agent and each Mandated Lead Arranger may accept deposits from, lend money to
and generally engage in any kind of banking or other business with any member of the
Group. |
|
33.5 |
|
Rights and discretions of the Agents |
|
(a) |
|
Each Agent may rely on: |
|
(i) |
|
any representation, notice or document believed by it to be
genuine, correct and appropriately authorised; and |
|
|
(ii) |
|
any statement made by a director, Authorised Signatory or
employee of any person regarding any matters which may reasonably be assumed
to be within his knowledge or within his power to verify. |
|
(b) |
|
Each Agent may assume (unless it has received notice to the contrary in its
capacity as agent for the Lenders) that: |
|
(i) |
|
no Default has occurred (unless it has actual knowledge of a
Default arising under Clause 29.1 (Non-payment)); |
|
|
(ii) |
|
any right, power, authority or discretion vested in any Party
or the Majority Lenders has not been exercised; and |
|
|
(iii) |
|
any notice or request made by the Companies or Obligors’
Agent (other than a Utilisation Request or Selection Notice) is made on behalf
of and with the consent and knowledge of all the Obligors. |
|
(c) |
|
Each Agent may engage, pay for and rely on the advice or services of any
lawyers, accountants, surveyors or other experts. |
|
|
(d) |
|
Each Agent may act in relation to the Finance Documents through its personnel
and agents. |
|
|
(e) |
|
Notwithstanding any other provision of any Finance Document to the contrary,
no Agent nor any Mandated Lead Arranger is 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. |
|
|
(f) |
|
Each Agent may disclose to any other Party any information it reasonably
believes it has received as agent under this Agreement. |
|
|
(g) |
|
Without prejudice to the generality of paragraph (f) above, the Facility
Agent may disclose the identity of a Defaulting Lender to the other Finance Parties |
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|
|
and the Obligors’ Agent, and shall promptly disclose the same upon the written
request of the Obligors’ Agent or the Majority Lenders. |
|
|
(h) |
|
No Agent is obliged to disclose to any Finance Party any details of the rate
notified to it by a Lender or Alternative Reference Bank or the identity of any such
Lender or Alternative Reference Bank for the purpose of paragraph (a)(ii) of Clause
16.2 (Market disruption) |
33.6 |
|
Majority Lenders’ instructions |
|
(a) |
|
Unless a contrary indication appears in a Finance Document, each Agent shall
(i) exercise any right, power, authority or discretion vested in it as Agent in
accordance with any instructions given to it by the Majority Lenders (or, if so
instructed by the Majority Lenders, refrain from exercising any right, power,
authority or discretion vested in it as such Agent) and (ii) not be liable for any act
(or omission) if it acts (or refrains from taking any action) in accordance with an
instruction of the Majority Lenders. |
|
|
(b) |
|
Unless a contrary indication appears in a Finance Document, any instructions
given by the Majority Lenders will be binding on all the Finance Parties. |
|
|
(c) |
|
Each Agent may refrain from acting in accordance with the instructions of the
Majority Lenders (or, if appropriate, the Lenders) until it has received such security
as it may require for any cost, loss or liability (together with any associated VAT)
which it may incur in complying with the instructions. |
|
|
(d) |
|
In the absence of instructions from the Majority Lenders (or, if appropriate,
the Lenders), each Agent may act (or refrain from taking action) as it considers to be
in the best interest of the Lenders. |
|
|
(e) |
|
No Agent is 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 or Company Parent Guarantee. |
33.7 |
|
Responsibility for documentation |
|
|
|
No Agent or Mandated Lead Arranger: |
|
(a) |
|
is responsible for the adequacy, accuracy and/or completeness of any
information (whether oral or written) supplied by it to an Obligor or any other person
given in or in connection with any Finance Document, Company Parent Guarantee or the
Information Pack; |
|
|
(b) |
|
is responsible for the legality, validity, effectiveness, adequacy or
enforceability of any Finance Document or Company Parent Guarantee or any other
agreement, arrangement or document entered into, made or executed in anticipation of
or in connection with any Finance Document or Company Parent Guarantee; or |
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(c) |
|
is responsible for 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. |
33.8 |
|
Exclusion of liability |
|
(a) |
|
Without limiting paragraph (b) below (and without prejudice to the provisions
of paragraph (e) of Clause 36.11 (Disruption to Payment Systems etc.)), no Agent will
be liable for any action taken by it under or in connection with any Finance Document
or Company Parent Guarantee, unless directly caused by its gross negligence or wilful
misconduct. |
|
|
(b) |
|
No Party (other than an Agent) may take any proceedings against any officer,
employee or agent of that Agent in respect of any claim it might have against that
Agent or in respect of any act or omission of any kind by that officer, employee or
agent in relation to any Finance Document and any officer, employee or agent of an
Agent may rely on this Clause. |
|
|
(c) |
|
No Agent will be liable for any delay (or any related consequences): |
|
(i) |
|
in crediting an account with an amount required under the
Finance Documents to be paid by it if such 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 it for that
purpose; or |
|
|
(ii) |
|
in informing the Obligors’ Agent or any Finance Party of any
failure of an Obligor to make a payment on a due date, unless that Agent has
actual knowledge of the non-payment, and its failure to inform another party
is due to its gross negligence or wilful misconduct. No Agent will be deemed
to have knowledge of any payment which is due to be made to any other Agent
but which is not in fact made on the due date. |
|
(d) |
|
(i) |
|
Nothing in this Agreement will oblige any Agent or Mandated Lead Arranger
to satisfy any know your customer requirement in relation to the identity of any
person on behalf of any Finance Party. |
|
(ii) |
|
Each Finance Party confirms to each Agent and Mandated Lead
Arranger that it is solely responsible for any know your customer requirements
or other checks it is required to carry out and that it may not rely on any
statement in relation to those requirements made by any other Finance Party. |
33.9 |
|
Lenders’ indemnity to the Agents |
|
|
|
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 each Agent, within three Business Days of
demand, against any cost, loss or liability incurred by such Agent (otherwise than by
reason of |
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that Agent’s gross negligence or wilful misconduct) (or, in the case of any cost, loss or
liability pursuant to Clause 36.11 (Disruption to Payment Systems etc.) notwithstanding an
Agent’s negligence, gross negligence or any other category of liability whatsoever but not
including any claim based on the fraud of an Agent) in acting as Agent under the Finance
Documents (unless that Agent has been reimbursed by an Obligor pursuant to a Finance
Document). |
|
33.10 |
|
Resignation of an Agent |
|
(a) |
|
After consultation with the Obligors’ Agent, an Agent may resign and appoint
one of its Affiliates acting, in the case of the Facility Agent, through an office in
the United Kingdom or, in the case of the Dollar Swingline Agent, New York or, in the
case of the Euro Swingline Agent, London as successor by giving notice to the Lenders
and the Obligors’ Agent. |
|
|
(b) |
|
Alternatively an Agent may (after consultation with the Obligors’ Agent)
resign by giving notice to the other Finance Parties and the Obligors’ Agent, in which
case the Majority Lenders (after consultation with the Obligors’ Agent) may appoint a
reputable and experienced bank or financial institution as successor Agent. |
|
|
(c) |
|
If the Majority Lenders have not appointed a successor Agent in accordance
with paragraph (b) above within 30 days after notice of resignation was given, the
retiring Agent (after consultation with the Obligors’ Agent) may appoint a reputable
and experienced bank or financial institution as successor Agent (acting, in the case
of the Facility Agent, through an office in the United Kingdom or, in the case of the
Dollar Swingline Agent, the United States of America or, in the case of the Euro
Swingline Agent, the United Kingdom). |
|
|
(d) |
|
The retiring Agent shall, at its own cost, make available to the successor
Agent such documents and records and provide such assistance as the successor Agent
may reasonably request for the purposes of performing its functions as Facility Agent,
Dollar Swingline Agent or Euro Swingline Agent under the Finance Documents. |
|
|
(e) |
|
An Agent’s resignation notice shall only take effect upon the appointment of
a successor. |
|
|
(f) |
|
Upon the appointment of a successor, the retiring Agent shall be discharged
from any further obligation in respect of the Finance Documents but shall remain
entitled to the benefit of this Clause 33. Its 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. |
33.11 |
|
Replacement of an Agent |
|
(a) |
|
After consultation with the Obligors’ Agent, the Majority Lenders may, by
giving 30 days’ notice to the Facility Agent, Dollar Swingline Agent or Euro Swingline
Agent (as the case may be) (or, at any time the relevant Agent is an Impaired Agent,
by giving any shorter notice determined by the Majority Lenders) replace |
109
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the Facility Agent, Dollar Swingline Agent or Euro Swingline Agent (as the case may
be) by appointing a successor Facility Agent, Dollar Swingline Agent or Euro
Swingline Agent (as the case may be). |
|
|
(b) |
|
The retiring Facility Agent, Dollar Swingline Agent or Euro Swingline Agent
(as the case may be) shall (at its own cost if it is an Impaired Agent and otherwise
at the expense of the Lenders) make available to the successor Facility Agent, Dollar
Swingline Agent or Euro Swingline Agent (as the case may be) such documents and
records and provide such assistance as that successor Agent may reasonably request for
the purposes of performing its functions as Facility Agent, Dollar Swingline Agent or
Euro Swingline Agent (as the case may be) under the Finance Documents. |
|
|
(c) |
|
The appointment of the successor Facility Agent, Dollar Swingline Agent or
Euro Swingline Agent (as the case may be) shall take effect on the date specified in
the notice from the Majority Lenders to that retiring Agent. As from this date, the
retiring Facility Agent, Dollar Swingline Agent or Euro Swingline Agent (as the case
may be) shall be discharged from any further obligation in respect of the Finance
Documents but shall remain entitled to the benefit of this Clause 33.11 (and any
agency fees for the account of that retiring Agent shall cease to accrue from (and
shall be payable on) that date). |
|
|
(d) |
|
Any successor Facility Agent, Dollar Swingline Agent or Euro Swingline Agent
(as the case may be) 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. |
|
(a) |
|
In acting as agent for the Finance Parties, each 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 an Agent, it
may be treated as confidential to that division or department and that Agent shall not
be deemed to have notice of it. |
|
|
(c) |
|
Notwithstanding any other provision of any Finance Document to the contrary,
no Agent and no Mandated Lead Arranger is obliged to disclose to any other person: |
|
(i) |
|
any confidential information; or |
|
|
(ii) |
|
any other information if the disclosure would or might in its
reasonable opinion constitute a breach of any law or a breach of a fiduciary
duty. |
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33.13 |
|
Relationship with the Lenders |
|
(a) |
|
Each Agent may treat the person shown in its records as Lender at the opening
of business (in the place of that 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) |
|
Each Lender shall supply the Facility Agent with any information required by
the Facility Agent in order to calculate the Mandatory Cost in accordance with
Schedule 4 (Mandatory Cost Formulae). |
33.14 |
|
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 each Agent
and each Mandated Lead Arranger 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 or Company Parent Guarantee
including but not limited to: |
|
(a) |
|
the financial condition, status and nature of each member of the Group; |
|
|
(b) |
|
the legality, validity, effectiveness, adequacy or enforceability of any
Finance Document or Company Parent Guarantee and any other agreement, arrangement or
document entered into, made or executed in anticipation of, under or in connection
with any Finance Document or Company Parent Guarantee; |
|
|
(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 or Company Parent Guarantee, the transactions contemplated by the
Finance Documents or Company Parent Guarantees or any other agreement, arrangement or
document entered into, made or executed in anticipation of, under or in connection
with any Finance Document or Company Parent Guarantee; and |
|
|
(d) |
|
the adequacy, accuracy and/or completeness of any information provided by an
Agent, any other Party or by any other person under or in connection with any Finance
Document or Company Parent Guarantee, the transactions contemplated by the Finance
Documents or Company Parent Guarantees or any other agreement, arrangement or document
entered into, made or executed |
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in anticipation of, under or in connection with any Finance Document or Company
Parent Guarantee. |
33.15 |
|
Reference Banks and Alternative Reference Banks |
|
|
|
If a Reference Bank or Alternative Reference Bank (or, if a Reference Bank or an
Alternative Reference Bank is not a Lender, the Lender of which it is an Affiliate)
ceases to be a Lender, the Facility Agent shall (in consultation with the Obligors’
Agent) appoint another Lender or an Affiliate of a Lender to replace that Reference
Bank or Alternative Reference Bank. |
|
33.16 |
|
Mandated Lead Arrangers |
|
|
|
Except as specifically provided in the Finance Documents, none of the Mandated Lead
Arrangers have any obligations of any kind to any other party under or in connection
with any Finance Document. |
|
33.17 |
|
Deduction from amounts payable by the Facility Agent |
|
|
|
If any Finance Party owes an amount to the Facility Agent under the Finance
Documents, the Facility Agent may, after giving notice to that Finance Party, deduct
an amount not exceeding that amount from any payment to that Finance Party which the
Facility 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 Finance Party shall be regarded as having
received any amount so deducted. |
|
34. |
|
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. |
35. |
|
SHARING AMONG THE LENDERS |
|
35.1 |
|
Payments to Lenders |
|
|
|
If a Lender (a Recovering Lender) receives or recovers any amount from an
Obligor other than in accordance with Clause 36 (Payment Mechanics) and applies that
amount to a payment due under the Finance Documents then: |
|
(a) |
|
the Recovering Lender shall, within three Business Days, notify details of
the receipt or recovery to the Facility Agent; |
112
|
(b) |
|
the Facility Agent shall determine whether the receipt or recovery is in
excess of the amount the Recovering Lender would have been paid had the receipt or
recovery been received or made by the Facility Agent and distributed in accordance
with Clause 36 (Payment Mechanics), without taking account of any Tax which would be
imposed on the Facility Agent in relation to the receipt, recovery or distribution;
and |
|
|
(c) |
|
the Recovering Lender shall, within three Business Days of demand by the
Facility Agent, pay to the Facility Agent an amount (the Sharing Payment) equal to
such receipt or recovery less any amount which the Facility Agent determines may be
retained by the Recovering Lender as its share of any payment to be made, in
accordance with Clause 36.6 (Partial payments). |
35.2 |
|
Redistribution of payments |
|
|
|
The Facility 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 Lender) in accordance with Clause 36.6 (Partial payments). |
|
35.3 |
|
Recovering Lender’s rights |
|
(a) |
|
On a distribution by the Facility Agent under Clause 35.2 (Redistribution of
payments), the Recovering Lender will be subrogated to the rights of the Finance
Parties which have shared in the redistribution. |
|
|
(b) |
|
If and to the extent that the Recovering Lender is not able to rely on its
rights under paragraph (a) above, the relevant Obligor shall be liable to the
Recovering Lender for a debt equal to the Sharing Payment which is immediately due and
payable. |
35.4 |
|
Reversal of redistribution |
|
|
|
If any part of the Sharing Payment received or recovered by a Recovering Lender
becomes repayable and is repaid by that Recovering Lender, then: |
|
(a) |
|
each Finance Party which has received a share of the relevant Sharing Payment
pursuant to Clause 35.2 (Redistribution of payments) shall, upon request of the
Facility Agent, pay to the Facility Agent for the account of that Recovering Lender 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 Lender for its proportion
of any interest on the Sharing Payment which that Recovering Lender is required to
pay); and |
|
|
(b) |
|
that Recovering Lender’s rights of subrogation in respect of any
reimbursement shall be cancelled and the relevant Obligor will be liable to the
reimbursing Lender for the amount so reimbursed. |
113
|
(a) |
|
This Clause 35 shall not apply to the extent that the Recovering Lender would
not, after making any payment pursuant to this Clause, have a valid and enforceable
claim against the relevant Obligor. |
|
|
(b) |
|
A Recovering Lender is not obliged to share with any other Lender any amount
which the Recovering Lender has received or recovered as a result of taking legal or
arbitration proceedings, if: |
|
(i) |
|
it notified the other Lender of the legal or arbitration
proceedings; and |
|
|
(ii) |
|
the other Lender 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. |
36. |
|
PAYMENT MECHANICS |
|
36.1 |
|
Payments to an Agent |
|
(a) |
|
On each date on which an Obligor or a Lender is required to make a payment
under a Finance Document or Company Parent Guarantee, that Obligor or Lender shall
make the same available to the Facility Agent, the Dollar Swingline Agent or the Euro
Swingline Agent (as the case may be) (unless a contrary indication appears in a
Finance Document or Company Parent Guarantee) for value on the due date at the time,
in immediately available funds specified by the Facility Agent, the Dollar Swingline
Agent or the Euro Swingline Agent (as the case may be) 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 in the principal financial centre of
the country of that currency (or, in relation to euro, in the principal financial
centre in a Participating Member State or London) with such bank as the Facility
Agent, the Dollar Swingline Agent or the Euro Swingline Agent (as the case may be)
specifies. |
36.2 |
|
Distributions by an Agent |
|
|
|
Each payment received by the Facility Agent, the Dollar Swingline Agent or the
Euro Swingline Agent under the Finance Documents for another Party shall, subject to
Clause 36.3 (Distributions to an Obligor) and Clause 36.4 (Clawback), be made
available by the Facility Agent, the Dollar Swingline Agent, or the Euro Swingline
Agent (as the case may be) 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
Facility Agent, the Dollar Swingline Agent or the Euro Swingline Agent (as the case
may be) by not less than five Business Days’ notice with a bank in the principal
financial centre of the country of that currency (or, in relation to euro, in the
principal financial centre of a Participating Member State or London). |
114
36.3 |
|
Distributions to an Obligor |
|
|
|
Each Agent may (with the consent of the Obligor or in accordance with Clause 37
(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. |
|
36.4 |
|
Clawback |
|
(a) |
|
Where a sum is to be paid to an Agent under the Finance Documents for another
Party, that 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 an Agent pays an amount to another Party and it proves to be the case that
such Agent had not actually received that amount, then the Party to whom that amount
(or the proceeds of any related exchange contract) was paid by such Agent shall on
demand refund the same to such Agent together with interest on that amount from the
date of payment to the date of receipt by such Agent, calculated by such Agent to
reflect its cost of funds. |
|
(a) |
|
If, at any time, the Facility Agent, the Dollar Swingline Agent or the Euro
Swingline Agent becomes an Impaired Agent, an Obligor or a Lender which is required to
make a payment under the Finance Documents or a Company Parent Guarantee to that Agent
in accordance with Clause 36.1 (Payments to an Agent) may instead either pay that
amount direct to the required recipient or pay that amount to an interest-bearing
account held with a bank or financial institution (which has a rating for its
long-term unsecured and non credit-enhanced debt obligations of A or higher by
Standard & Poor’s Rating Services or Fitch Ratings Ltd or A2 or higher by Xxxxx’x
Investor Services Limited or a comparable rating from an internationally recognised
credit rating agency) and in relation to which no Insolvency Event has occurred and is
continuing, in the name of the Obligor or the Lender making the payment and designated
as a trust account for the benefit of the Party or Parties beneficially entitled to
that payment under the Finance Documents. In each case such payments must be made on
the due date for payment under the Finance Documents. |
|
|
(b) |
|
All interest accrued on the amount standing to the credit of the trust
account shall be for the benefit of the beneficiaries of that trust account pro rata
to their respective entitlements. |
|
|
(c) |
|
A Party which has made a payment in accordance with this Clause 36.5 shall be
discharged of the relevant payment obligation under the Finance Documents and shall
not take any credit risk with respect to the amounts standing to the credit of the
trust account. |
115
|
(d) |
|
Promptly upon the appointment of a successor Facility Agent, Dollar Swingline
Agent or Euro Swingline Agent (as the case may be) in accordance with Clause 33.11
(Replacement of an Agent), each Party which has made a payment to a trust account in
accordance with this Clause 36.5 shall give all requisite instructions to the bank
with whom the trust account is held to transfer the amount (together with any accrued
interest) to that successor Agent for distribution in accordance with Clause 36.2
(Distributions by an Agent). |
|
(a) |
|
If an Agent receives a payment that is insufficient to discharge all the
amounts then due and payable by an Obligor under the Finance Documents, that Agent
shall apply that payment towards the obligations of that Obligor under the Finance
Documents in the following order: |
|
(i) |
|
first, in or towards payment pro rata of any unpaid fees,
costs and expenses of the Agents under the Finance Documents; |
|
|
(ii) |
|
secondly, in or towards payment pro rata of any accrued
interest, fee or commission due but unpaid under this Agreement; |
|
|
(iii) |
|
thirdly, in or towards payment pro rata of any principal due
but unpaid under this Agreement; and |
|
|
(iv) |
|
fourthly, in or towards payment pro rata of any other sum due
but unpaid under the Finance Documents. |
|
(b) |
|
The Facility Agent shall, if so directed by the Majority Lenders, vary the
order set out in paragraphs (a)(ii) to (iv) above. |
|
|
(c) |
|
Paragraphs (a) and (b) above will override any appropriation made by an
Obligor. |
36.7 |
|
No set-off by Obligors |
|
|
|
All payments to be made by an Obligor under the Finance Documents or Company
Parent Guarantees shall be calculated and made without (and free and clear of any
deduction for) set-off or counterclaim. |
|
36.8 |
|
Business Days |
|
(a) |
|
Any payment 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 an
Unpaid Sum under this Agreement interest is payable on the principal or Unpaid Sum at
the rate payable on the original due date. |
116
|
(a) |
|
Subject to paragraphs (b) to (e) below, the Base Currency is the currency of
account and payment for any sum due from an Obligor under any Finance Document. |
|
|
(b) |
|
A repayment of a Loan or Unpaid Sum or a part of a Loan or Unpaid Sum shall
be made in the currency in which that Loan or Unpaid Sum is denominated 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 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 the Base Currency
shall be paid in that other 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 Facility Agent (after consultation with the
Obligors’ Agent); 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 Facility Agent (acting reasonably). |
|
(b) |
|
If a change in any currency of a country occurs, this Agreement will, to the
extent the Facility Agent (acting reasonably and after consultation with the Obligors’
Agent) specifies to be necessary, be amended to comply with any generally accepted
conventions and market practice in the Relevant Interbank Market and otherwise to
reflect the change in currency. |
36.11 |
|
Disruption to Payment Systems etc. |
|
|
|
If either an Agent determines (in its discretion) that a Disruption Event has
occurred or an Agent is notified by the Obligors’ Agent that a Disruption Event has
occurred: |
|
(a) |
|
the Agent may, and shall if requested to do so by the Obligors’ Agent,
consult with the Obligors’ Agent with a view to agreeing with the Obligors’ Agent such |
117
|
|
|
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 Obligors’ Agent in
relation to any changes mentioned in paragraph (a) 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) 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 Obligors’ Agent 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 43 (Amendments
And Waivers); |
|
|
(e) |
|
the Agent shall not be liable for any damages, costs or losses 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 36.11; and |
|
|
(f) |
|
the Agent shall notify the Finance Parties of all changes agreed pursuant to
paragraph (d) above. |
37. |
|
SET—OFF |
|
|
|
A Finance Party may set off any matured obligation due from an Obligor under
the Finance Documents or Company Parent Guarantees (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. |
|
38. |
|
NOTICES |
|
38.1 |
|
Communications in writing |
|
|
|
Any communication to be made under or in connection with the Finance Documents
shall be made in writing and, unless otherwise stated, may be made by fax or letter or
by such other means as may be agreed between the Facility Agent and the Obligors’
Agent from time to time. |
118
38.2 |
|
Addresses |
|
|
|
The 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 Companies, that identified with its name in Schedule 12
(Contact Details); |
|
|
(b) |
|
in the case of the Obligors’ Agent or any Original Obligor, that identified
with its name in Schedule 12 (Contact Details); |
|
|
(c) |
|
in the case of each Lender or any Additional Borrower, that notified in
writing to the Facility Agent on or prior to the date on which it becomes a Party; and |
|
|
(d) |
|
in the case of each Agent, that identified with its name in Schedule 12
(Contact Details), |
|
|
or any substitute address or fax number or department or officer as the Party
may notify to the Facility Agent (or the Facility Agent may notify to the other
Parties, if a change is made by the Facility Agent) by not less than five Business
Days’ notice. |
|
38.3 |
|
Delivery |
|
(a) |
|
Any communication or document made or delivered by one person to another
under or in connection with the Finance Documents will only be effective: |
|
(i) |
|
if by way of fax, when received in legible form; or |
|
|
(ii) |
|
if by way of letter, 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, |
|
|
|
and, if a particular department or officer is specified as part of
its address details provided under Clause 38.2 (Addresses), if addressed to
that department or officer. |
|
|
(b) |
|
All notices from or to an Obligor shall be sent through the Facility Agent. |
|
|
(c) |
|
Any communication or document made or delivered to the Obligors’ Agent or an
Obligor in accordance with this Clause will be deemed to have been made or delivered
to each of the Obligors. |
|
|
(d) |
|
Any communication or document to be made or delivered to an Agent will be
effective only when actually received by that Agent and then only if it is expressly
marked for the attention of the department or officer identified with that Agent’s
notice details set out in Schedule 12 (Contact Details) (or any substitute department
or officer as that Agent may specify for this purpose in accordance with Clause 38.2
(Addresses)). |
119
38.4 |
|
Notification of address and fax number |
|
|
|
Promptly upon receipt of notification of an address or fax number or change of address or
fax number pursuant to Clause 38.2 (Addresses) or changing its own address or fax
number, the Facility Agent shall notify the other Parties. |
|
38.5 |
|
Communication when Agent is Impaired Agent |
|
|
|
If any of the Facility Agent, the Dollar Swingline Agent or the Euro Swingline
Agent (as the case may be) is an Impaired Agent the Parties may, instead of
communicating with each other through that Agent, communicate with each other directly
and (while that Agent is an Impaired Agent) all the provisions of the Finance
Documents which require communications to be made or notices to be given to or by that
Agent shall be varied so that communications may be made and notices given to or by
the relevant Parties directly. This provision shall not operate after a replacement
Facility Agent, Dollar Swingline Agent or Euro Swingline Agent (as the case may be)
has been appointed. |
|
38.6 |
|
Electronic communication |
|
(a) |
|
Any communication to be made between an Agent and a Lender under or in
connection with the Finance Documents may be made by electronic mail or other
electronic means, if that Agent and the relevant Lender: |
|
(i) |
|
agree that, unless and until notified to the contrary, this
is to be an accepted form of communication; |
|
|
(ii) |
|
notify each other in writing of their electronic mail address
and/or any other information required to enable the sending and receipt of
information by that means; and |
|
|
(iii) |
|
notify each other of any change to their address or any
other such information supplied by them. |
|
(b) |
|
Any electronic communication made between an Agent and a Lender will be
effective only when actually received in readable form and in the case of any
electronic communication made by a Lender to that Agent only if it is addressed in
such a manner as that Agent shall specify for this purpose. |
|
(a) |
|
Any notice 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 Facility Agent,
accompanied by a certified English translation and, in this case, the English |
120
|
|
|
translation will prevail unless the document is a constitutional, statutory
or other official document. |
39. |
|
USA PATRIOT ACT |
|
|
|
Each Finance Party that is subject to the requirements of the USA Patriot Act
hereby notifies each Obligor that, pursuant to the requirements of the USA Patriot
Act, it is required to obtain, verify and record information that identifies the
Obligors, which information includes the name and address of the Obligors and other
information that will allow such Finance Party to identify the Obligors in accordance
with the USA Patriot Act. Each Obligor agrees that it will provide each such Finance
Party with such information as it may request in order for such Finance Party to
satisfy the requirements of the USA Patriot Act. |
|
40. |
|
CALCULATIONS AND CERTIFICATES |
|
40.1 |
|
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. |
|
40.2 |
|
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. |
|
40.3 |
|
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 in relation to Sterling a year of 365 days and in relation to any other currency a
year of 360 days or, in any case where the practice in the Relevant Interbank Market
differs, in accordance with that market practice. |
|
41. |
|
PARTIAL INVALIDITY |
|
|
|
If, at any time, any provision of the Finance Documents or Company Parent
Guarantees 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. |
|
42. |
|
REMEDIES AND WAIVERS |
|
|
|
No failure to exercise, nor any delay in exercising, on the part of any Finance
Party, any right or remedy under the Finance Documents or Company Parent Guarantees
shall operate as a waiver, nor shall any single or partial exercise of any right or
remedy prevent any further or other exercise or the exercise of any other right or
remedy. The |
121
|
|
rights and remedies provided in this Agreement are cumulative and not exclusive of any
rights or remedies provided by law. |
|
43. |
|
AMENDMENTS AND WAIVERS |
|
43.1 |
|
Required consents |
|
(a) |
|
Subject to Clause 43.2 (Exceptions), any term of the Finance Documents may be
amended or waived only with the consent of the Majority Lenders and the Obligors’
Agent and any such amendment or waiver will be binding on all Parties. |
|
|
(b) |
|
The Facility Agent may effect, on behalf of any Finance Party, any amendment
or waiver permitted by this Clause. |
|
(a) |
|
An amendment or waiver that has the effect of changing or which relates to: |
|
(i) |
|
the definition of Majority Lenders in Clause 1.1
(Definitions); |
|
|
(ii) |
|
an extension to the date of payment of any amount under the
Finance Documents (other than any amendment or waiver made in accordance with
Clause 13.12(h) (Terms of cancellation and prepayment)); |
|
|
(iii) |
|
a reduction in the Margin or a reduction in the amount of
any payment of principal, interest, fees or commission payable (other than any
amendment or waiver made in accordance with Clause 13.12(h) (Terms of
cancellation and prepayment)); |
|
|
(iv) |
|
an increase in or an extension of any Commitment; |
|
|
(v) |
|
a change to the Obligors other than in accordance with Clause
32 (Changes To The Obligors); |
|
|
(vi) |
|
any provision of the Finance Documents which expressly
requires the consent of all the Lenders; or |
|
|
(vii) |
|
Clause 2.3 (Finance Parties’ rights and obligations), Clause
30 (Changes To The Lenders), Clause 35 (Sharing Among The Lenders) or this
Clause 43, |
|
|
|
shall not be made without the prior consent of all the Lenders.
This paragraph (a) is subject to Clauses 43.4 (Disenfranchisement of
Defaulting Lenders) and 43.5 (Excluded Commitments). |
|
|
(b) |
|
An amendment or waiver which relates to the rights or obligations of an Agent
or a Mandated Lead Arranger may not be effected without the consent of that Agent or
that Mandated Lead Arranger. |
122
43.3 |
|
Replacement of Lender |
|
(i) |
|
any Lender becomes a Non-Consenting Lender (as defined in
paragraph (c) below); |
|
|
(ii) |
|
except to the extent it is permitted to do so under this
Agreement, any Lender refuses or fails to fund an advance or repudiates an
obligation to fund an advance; or |
|
|
(iii) |
|
an Obligor becomes obliged to repay any amount in accordance
with Clause 13.1 (Illegality) or to pay additional amounts pursuant to Clause
18.3 (Tax gross-up) or Clause 19.1 (Increased Costs) to any Lender in excess
of amounts payable to the other Lenders generally, or the provisions of Clause
16.2 (Market disruption) apply, |
|
|
|
then the Obligors’ Agent may, at any time up to 30 days after the
date on which the circumstances referred to in sub-paragraphs (i) or (ii)
above occur or at any time that any of the circumstances referred to in
sub-paragraph (iii) above are continuing, give a written notice (a Written
Notification) to the Facility Agent and the relevant Lender that it intends to
replace that Lender by requiring that Lender to (and the Lender shall)
transfer, pursuant to Clause 30 (Changes To The Lenders) all (and not part
only) of its rights and obligations under this Agreement to one or more
Lenders or other banks, financial institutions or other entities which are
regularly engaged in or established for the purpose of making, purchasing or
investing in loans, securities or other financial assets (a Replacement
Lender) selected by the Obligors’ Agent which confirm their willingness to
assume and do assume all the obligations of the transferring Lender (including
the assumption of the transferring Lender’s participations on the same basis
as the transferring Lender) for a purchase price in cash payable at the time
of transfer equal to the outstanding principal amount of such Lender’s
participation in the outstanding Loans and all accrued interest, Break Costs
and other amounts payable in relation thereto under the Finance Documents. |
|
|
(b) |
|
The replacement of a Lender pursuant to this Clause 43.3 shall be subject to
the following conditions: |
|
(i) |
|
neither the Facility Agent nor the Lender shall have any
obligation to the Obligors’ Agent to find a Replacement Lender; |
|
|
(ii) |
|
such replacement must take place no later than 20 days after
the date the Written Notification is delivered to the Facility Agent and the
relevant Lender; and |
|
|
(iii) |
|
in no event shall the Lender replaced under this Clause 43.3
be required to pay or surrender to the Replacement Lender any of the fees
received by that Lender pursuant to the Finance Documents. |
123
|
(i) |
|
the Obligors’ Agent or the Facility Agent (at the request of
the Obligors’ Agent) has requested the Lenders to consent to a waiver or
amendment of any provisions of the Finance Documents; |
|
|
(ii) |
|
the waiver or amendment in question requires the consent of
all the Lenders; and |
|
|
(iii) |
|
the Super-Majority Lenders have consented to such waiver or
amendment, |
|
|
|
then any Lender who does not and continues not to agree to such
waiver or amendment shall be deemed a Non-Consenting Lender. |
43.4 |
|
Disenfranchisement of Defaulting Lenders |
|
(a) |
|
For so long as a Defaulting Lender has any Available Commitment: |
|
(i) |
|
in ascertaining the Majority Lenders, the Super-Majority
Lenders or whether any given percentage (including, without limitation (but
subject to paragraph (c) below), unanimity) of the Total Commitments or Total
Revolving Commitments has been obtained to approve any request for a consent,
waiver, amendment or other vote under the Finance Documents, that Defaulting
Lender’s Commitments will be reduced by the amount of its Available
Commitments; and |
|
|
(ii) |
|
that Defaulting Lender will not be treated as a Lender for
the purposes of Clause 43.2(a) (Exceptions) if it has no participation in any
outstanding Loan. |
|
(b) |
|
For the purposes of this Clause 43.4, the Facility Agent may assume that the
following Lenders are Defaulting Lenders: |
|
(i) |
|
any Lender which has notified the Facility Agent that it has
become a Defaulting Lender; and |
|
|
(ii) |
|
any Lender in relation to which the Facility Agent is aware
that any of the events or circumstances referred to in paragraphs (a), (b) or
(c) of the definition of “Defaulting Lender” has occurred, |
|
|
|
unless it has received notice to the contrary from the Lender concerned (together
with any supporting evidence reasonably requested by the Facility Agent) or
the Facility Agent is otherwise aware that the Lender has ceased to be a
Defaulting Lender. |
|
|
(c) |
|
Notwithstanding paragraph (a) above, but without prejudice to the provisions
of this Agreement which relate to Defaulting Lenders: |
124
|
(i) |
|
the Commitment of a Defaulting Lender may not be increased or
extended (unless, in the latter case, all the Commitments of the other Lenders
under the same Facility are also being extended by the same period); |
|
|
(ii) |
|
unless all similar payments owing to the other Lenders under
the same Facility are being extended by the same period, the date of payment
of any amount owing to a Defaulting Lender may not be extended; |
|
|
(iii) |
|
unless the Margin or the payment of principal, interest,
fees or commission is being reduced by the same amount for all Lenders under
the same Facility, the Margin and the payment of principal, interest, fees or
commission in relation to a Defaulting Lender may not be reduced; and |
|
|
(iv) |
|
unless the changes will affect all other Lenders under the
same Facility in a similar manner, no change will be made to Clause 2.3
(Finance Parties’ rights and obligations), Clause 30 (Changes To The Lenders)
or Clause 35 (Sharing Among The Lenders) which affects a Defaulting Lender, |
|
|
in each case without the consent of that Defaulting Lender. |
|
43.5 |
|
Excluded Commitments |
|
|
|
If any Defaulting Lender fails to respond to a request for a consent, waiver,
amendment of or in relation to any of the terms of any Finance Document or other vote
of Lenders under this Agreement within 10 Business Days (or any longer period
stipulated by the Agent with the agreement of the Obligors’ Agent in relation to that
request) of that request being made: |
|
(a) |
|
its Commitment shall not be included for the purpose of calculating the Total
Commitments when ascertaining whether any relevant percentage of the Total Commitments
has been obtained to approve that request; and |
|
|
(b) |
|
it will not count as a Lender for the purposes of Clause 43.2(a)
(Exceptions). |
43.6 |
|
Replacement of a Defaulting Lender |
|
(a) |
|
The Obligors’ Agent may, at any time a Lender has become and continues to be
a Defaulting Lender, by giving three Business Days’ prior written notice to the
Facility Agent and such Lender: |
|
(i) |
|
replace such Lender by requiring such Lender to (and such
Lender shall) transfer pursuant to Clause 30 (Changes To The Lenders) all (and
not part only) of its rights and obligations under this Agreement; |
|
|
(ii) |
|
require such Lender to (and such Lender shall) transfer
pursuant to Clause 30 (Changes To The Lenders) all (and not part only) of its
undrawn Commitments; or |
125
|
(iii) |
|
require such Lender to (and such Lender shall) transfer
pursuant to Clause 30 (Changes To The Lenders) all (and not part only) of its
rights and obligations in respect of the Facilities, |
|
|
|
to a Lender or other bank, financial institution, trust, fund or
other entity (a Replacement Lender) selected by the Obligors’ Agent, which
confirms its willingness to assume and does assume all the obligations or all
the relevant obligations of the transferring Lender in accordance with Clause
30 (Changes To The Lenders) for a purchase price in cash payable at the time
of transfer equal to the outstanding principal amount of such Lender’s
participation in the outstanding Utilisations and all accrued interest and/or
Break Costs and other amounts payable in relation thereto under the Finance
Documents. |
|
|
(b) |
|
Any transfer of rights and obligations of a Defaulting Lender pursuant to
this Clause 43.5 shall be subject to the following conditions: |
|
(i) |
|
the Obligors’ Agent shall have no right to replace the
Facility Agent; |
|
|
(ii) |
|
none of the Facility Agent, the Defaulting Lender nor any
other party shall have any obligation to the Obligors’ Agent to find a
Replacement Lender; |
|
|
(iii) |
|
the transfer must take place no later than 20 days after the
date the notice referred to in paragraph (a) above is delivered to the
Facility Agent and the relevant Lender; and |
|
|
(iv) |
|
in no event shall the Defaulting Lender be required to pay or
surrender to the Replacement Lender any of the fees received by the Defaulting
Lender pursuant to the Finance Documents. |
|
(a) |
|
On or after the Closing Date, PLC shall be entitled to become a wholly-owned
Subsidiary of a newly incorporated company (the New Holding Company) and the Facility
Agent is irrevocably authorised by each other Finance Party to agree and enter into
amendments to this Agreement with the Obligors’ Agent to reflect the provisions of
paragraph (c) below, provided that the conditions set out in paragraph (b) below are
satisfied. |
|
|
(b) |
|
The conditions referred to in paragraph (a) above are: |
|
(i) |
|
the New Holding Company must be incorporated in England and
Wales and be listed on the London Stock Exchange; |
|
|
(ii) |
|
the New Holding Company must enter into a new deed poll
guarantee on substantially the same terms as the Company Parent Guarantee
given by PLC; |
|
|
(iii) |
|
the Facility Agent must be satisfied (acting reasonably)
that the obligations of the New Holding Company are guaranteed by Limited |
126
|
|
|
under Limited’s existing Company Parent Guarantee or any replacement
Company Parent Guarantee to which Limited is a party; |
|
|
(iv) |
|
PLC and the New Holding Company shall deliver a certificate
signed by two Authorised Signatories of PLC and the New Holding Company
confirming that the new deed poll guarantee of the New Holding Company applies
to the obligations of the Obligors under the Finance Documents and such
obligations will not be excluded obligations for the purposes of that deed
poll guarantee; |
|
|
(v) |
|
if any Loan has been borrowed by PLC which is still
outstanding at that time the Obligors’ Agent shall designate whether (1) PLC
shall continue to be the Borrower in respect of such Loan or (2) such Loan
shall be novated to the New Holding Company (in which case, the New Holding
Company must accede as an Additional Borrower in accordance with Clause 32.2
(Additional Borrowers)); |
|
|
(vi) |
|
the New Holding Company acceding to this Agreement as a
Company and, if relevant, an Additional Borrower in accordance with Clause
32.2 (Additional Borrowers), in respect of which accession the documents to be
provided to the Facility Agent shall be those listed in Part 4 (and not Part
3) of Schedule 2 (Conditions Precedent); and |
|
|
(vii) |
|
PLC shall continue to be a guarantor under this Agreement
until such date as the aggregate amount of Financial Indebtedness of PLC
(excluding for this purpose the Financial Indebtedness under this Agreement
and any other Financial Indebtedness which is expressed to terminate at the
same time as the guarantee of PLC under this Agreement terminates) is less
than US$100,000,000. |
|
(c) |
|
On the satisfaction of the conditions in paragraph (b) above: |
|
(i) |
|
the New Holding Company shall become a Company and, if
relevant, an Additional Borrower; |
|
|
(ii) |
|
except where the context otherwise requires, all references
to PLC in the Finance Documents shall be deemed to be references to the New
Holding Company and all references to the Companies shall be deemed to be
references to Limited and the New Holding Company; and |
|
|
(iii) |
|
any Loan designated by the Obligors’ Agent in accordance
with paragraph (b)(v)(2) above shall be novated to the New Holding Company in
accordance with the terms of the Accession Letter. |
44. |
|
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. |
127
45. |
|
GOVERNING LAW |
|
|
|
This Agreement and any non-contractual obligations arising out of or in connection
with it are governed by English law. |
|
46. |
|
ENFORCEMENT |
|
46.1 |
|
Jurisdiction of English courts |
|
(a) |
|
The courts of England have exclusive jurisdiction to settle any dispute
arising out of or in connection with this Agreement (whether contractual or
non-contractual, including a dispute regarding the existence, validity or termination
of this Agreement) (a Dispute). |
|
|
(b) |
|
The Parties agree that the courts of England are the most appropriate and
convenient courts to settle Disputes and accordingly no Party will argue to the
contrary. |
|
|
(c) |
|
This Clause 46.1 is for the benefit of the Finance Parties only. As a result,
no Finance 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
may take concurrent proceedings in any number of jurisdictions. |
46.2 |
|
Service of process |
|
|
|
Without prejudice to any other mode of service allowed under any relevant law, each Obligor
(other than an Obligor incorporated in England and Wales): |
|
(a) |
|
irrevocably appoints PLC as its agent for service of process in relation to
any proceedings before the English courts in connection with any Finance Document; and |
|
|
(b) |
|
agrees that failure by a process agent to notify it of the process will not
invalidate the proceedings concerned. |
|
|
PLC confirms its acceptance of its appointment under this Clause 46.2 with
respect to each relevant Obligor. |
THIS AGREEMENT has been entered into on the date stated at the beginning of this Agreement.
128
SCHEDULE 1
THE ORIGINAL PARTIES
PART 1
THE ORIGINAL BORROWERS
|
|
|
|
|
|
|
Jurisdiction of |
|
Registration number (or |
Name of Original Borrower |
|
incorporation |
|
equivalent, if any) |
BHP Billiton Finance Limited |
|
Australia |
|
ABN 82 000 000 000 |
|
BHP Billiton Limited |
|
Australia |
|
ABN 49 004 028 077 |
|
BHP Billiton Finance Plc |
|
England and Wales |
|
06683534 |
|
BHP Billiton Plc |
|
England and Wales |
|
03196209 |
129
PART 2
THE ORIGINAL LENDERS
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Term Facility |
|
Revolving Facility |
|
Total |
Name of Original Lender |
|
Commitment (US$) |
|
Commitment (US$) |
|
(US$) |
Australia and New Zealand
|
|
|
208,333,334 |
|
|
|
104,166,666 |
|
|
|
312,500,000 |
|
Banking Group Limited
(ABN 11 005 357 522) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Banco Bilbao Vizcaya |
|
|
208,333,334 |
|
|
|
104,166,666 |
|
|
|
312,500,000 |
|
Argentaria, S.A., London
Branch |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Abbey National Treasury Services Plc (Trading as Santander Global Banking & Markets) |
|
|
208,333,334 |
|
|
|
104,166,666 |
|
|
|
312,500,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The Bank of Tokyo-Mitsubishi UFJ, Ltd. |
|
|
208,333,334 |
|
|
|
104,166,666 |
|
|
|
312,500,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Barclays Bank PLC |
|
|
208,333,334 |
|
|
|
104,166,666 |
|
|
|
312,500,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
BNP Paribas |
|
|
208,333,334 |
|
|
|
104,166,666 |
|
|
|
312,500,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Canadian Imperial Bank of Commerce, London Branch |
|
|
208,333,334 |
|
|
|
104,166,666 |
|
|
|
312,500,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Commonwealth Bank of Australia Sydney — OBU |
|
|
208,333,334 |
|
|
|
104,166,666 |
|
|
|
312,500,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Crédit Agricole Corporate and Investment Bank |
|
|
208,333,333 |
|
|
|
104,166,667 |
|
|
|
312,500,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ING Bank N.V. |
|
|
208,333,333 |
|
|
|
104,166,667 |
|
|
|
312,500,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Intesa Sanpaolo S.p.A., London Branch |
|
|
208,333,333 |
|
|
|
104,166,667 |
|
|
|
312,500,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
JPMorgan Chase Bank, N.A. |
|
|
208,333,333 |
|
|
|
104,166,667 |
|
|
|
312,500,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Lloyds TSB Bank plc |
|
|
208,333,333 |
|
|
|
104,166,667 |
|
|
|
312,500,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Mizuho Corporate Bank, Ltd. |
|
|
208,333,333 |
|
|
|
104,166,667 |
|
|
|
312,500,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
National Australia Bank Limited, ABN 12 004 044 937 |
|
|
208,333,333 |
|
|
|
104,166,667 |
|
|
|
312,500,000 |
|
130
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Term Facility |
|
Revolving Facility |
|
Total |
Name of Original Lender |
|
Commitment (US$) |
|
Commitment (US$) |
|
(US$) |
Scotiabank Europe plc |
|
|
208,333,333 |
|
|
|
104,166,667 |
|
|
|
312,500,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Société Générale |
|
|
208,333,333 |
|
|
|
104,166,667 |
|
|
|
312,500,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Standard Chartered Bank |
|
|
208,333,333 |
|
|
|
104,166,667 |
|
|
|
312,500,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Sumitomo Mitsui Banking Corporation |
|
|
208,333,333 |
|
|
|
104,166,667 |
|
|
|
312,500,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The Royal Bank of Scotland plc |
|
|
208,333,333 |
|
|
|
104,166,667 |
|
|
|
312,500,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The Toronto-Dominion Bank |
|
|
208,333,333 |
|
|
|
104,166,667 |
|
|
|
312,500,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
UBS AG, London Branch |
|
|
208,333,333 |
|
|
|
104,166,667 |
|
|
|
312,500,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
UniCredit Bank AG, London Branch |
|
|
208,333,333 |
|
|
|
104,166,667 |
|
|
|
312,500,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Westpac Banking Corporation acting for itself and through its Offshore Banking Unit |
|
|
208,333,333 |
|
|
|
104,166,667 |
|
|
|
312,500,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
TOTALS |
|
|
5,000,000,000 |
|
|
|
2,500,000,000 |
|
|
|
7,500,000,000 |
|
131
PART 3
THE ORIGINAL SWINGLINE LENDERS
PART A
|
|
|
|
|
Name of Original Dollar Swingline |
|
Dollar Swingline Commitment |
Lender |
|
(US$) |
Australia and New Zealand Banking Group
Limited (ABN 11 005 357 522) |
|
|
41,666,666 |
|
|
|
|
|
|
Banco Bilbao Vizcaya Argentaria, S.A., London Branch |
|
|
41,666,666 |
|
|
|
|
|
|
Abbey National Treasury Services Plc (Trading as Santander Global Banking & Markets) |
|
|
41,666,666 |
|
|
|
|
|
|
The Bank of Tokyo-Mitsubishi UFJ, Ltd. |
|
|
41,666,666 |
|
|
|
|
|
|
Barclays Bank PLC |
|
|
41,666,666 |
|
|
|
|
|
|
BNP Paribas |
|
|
41,666,666 |
|
|
|
|
|
|
CIBC Inc |
|
|
41,666,666 |
|
|
|
|
|
|
Commonwealth Bank of Australia — New York |
|
|
41,666,666 |
|
|
|
|
|
|
Crédit Agricole Corporate and Investment Bank |
|
|
41,666,667 |
|
|
|
|
|
|
ING Bank N.V. |
|
|
41,666,667 |
|
|
|
|
|
|
Intesa Sanpaolo S.p.A., London Branch |
|
|
41,666,667 |
|
|
|
|
|
|
JPMorgan Chase Bank, N.A. |
|
|
41,666,667 |
|
|
|
|
|
|
Lloyds TSB Bank plc |
|
|
41,666,667 |
|
|
|
|
|
|
Mizuho Corporate Bank, Ltd. |
|
|
41,666,667 |
|
|
|
|
|
|
National Australia Bank Limited — New York Branch, ABN 12 004 044 937 |
|
|
41,666,667 |
|
|
|
|
|
|
Scotiabanc Inc. |
|
|
41,666,667 |
|
|
|
|
|
|
Société Générale, New York Branch |
|
|
41,666,667 |
|
|
|
|
|
|
132
|
|
|
|
|
Name of Original Dollar Swingline |
|
Dollar Swingline Commitment |
Lender |
|
(US$) |
Standard Chartered Bank |
|
|
41,666,667 |
|
|
|
|
|
|
Sumitomo Mitsui Banking Corporation |
|
|
41,666,667 |
|
|
|
|
|
|
The Royal Bank of Scotland plc |
|
|
41,666,667 |
|
|
|
|
|
|
Toronto Dominion (New York) LLC |
|
|
41,666,667 |
|
|
|
|
|
|
UBS Loan Finance LLC |
|
|
41,666,667 |
|
|
|
|
|
|
UniCredit Bank AG, New York Branch |
|
|
41,666,667 |
|
|
|
|
|
|
Westpac Banking Corporation acting for itself and through its Offshore Banking Unit |
|
|
41,666,667 |
|
|
|
|
|
|
Total |
|
|
1,000,000,000 |
|
PART B
|
|
|
|
|
|
|
Euro Swingline Commitment (euro |
Name of Original Euro Swingline Lender |
|
equivalent of US$ amount set out below) |
Australia and New Zealand Banking Group Limited (ABN 11 005 357 522) |
|
|
41,666,666 |
|
|
|
|
|
|
Banco Bilbao Vizcaya Argentaria, S.A., London Branch |
|
|
41,666,666 |
|
|
|
|
|
|
Abbey National Treasury Services Plc (Trading as Santander Global Banking & Markets) |
|
|
41,666,666 |
|
|
|
|
|
|
The Bank of Tokyo-Mitsubishi UFJ, Ltd. |
|
|
41,666,666 |
|
|
|
|
|
|
Barclays Bank PLC |
|
|
41,666,666 |
|
|
|
|
|
|
BNP Paribas |
|
|
41,666,666 |
|
|
|
|
|
|
Canadian Imperial Bank of Commerce, London Branch |
|
|
41,666,666 |
|
|
|
|
|
|
Commonwealth Bank of Australia — London |
|
|
41,666,666 |
|
|
|
|
|
|
Crédit Agricole Corporate and Investment Bank |
|
|
41,666,667 |
|
|
|
|
|
|
ING Bank N.V. |
|
|
41,666,667 |
|
133
|
|
|
|
|
|
|
Euro Swingline Commitment (euro |
Name of Original Euro Swingline Lender |
|
equivalent of US$ amount set out below) |
Intesa Sanpaolo S.p.A., London Branch |
|
|
41,666,667 |
|
|
|
|
|
|
JPMorgan Chase Bank, N.A. |
|
|
41,666,667 |
|
|
|
|
|
|
Lloyds TSB Bank plc |
|
|
41,666,667 |
|
|
|
|
|
|
Mizuho Corporate Bank, Ltd. |
|
|
41,666,667 |
|
|
|
|
|
|
National Australia Bank Limited — London Branch, ABN 12 004 044 937 |
|
|
41,666,667 |
|
|
|
|
|
|
Scotiabank Europe plc |
|
|
41,666,667 |
|
|
|
|
|
|
Société Générale |
|
|
41,666,667 |
|
|
|
|
|
|
Standard Chartered Bank |
|
|
41,666,667 |
|
|
|
|
|
|
Sumitomo Mitsui Banking Corporation |
|
|
41,666,667 |
|
|
|
|
|
|
The Royal Bank of Scotland plc |
|
|
41,666,667 |
|
|
|
|
|
|
Toronto Dominion (New York) LLC |
|
|
41,666,667 |
|
|
|
|
|
|
UBS AG, London Branch |
|
|
41,666,667 |
|
|
|
|
|
|
UniCredit Bank AG, London Branch |
|
|
41,666,667 |
|
|
|
|
|
|
Westpac Banking Corporation acting for itself and through its Offshore Banking Unit |
|
|
41,666,667 |
|
|
|
|
|
|
Total |
|
|
1,000,000,000 |
|
134
PART 4
THE MANDATED LEAD ARRANGERS
Australia and New Zealand Banking Group
Limited (ABN 11 005 357 522)
Banco Bilbao Vizcaya Argentaria, X.X.
Xxxxx National Treasury Services Plc
(Trading as Santander Global Banking &
Markets)
The Bank of Tokyo-Mitsubishi UFJ, Ltd.
Barclays Capital
BNP Paribas
Canadian Imperial Bank of Commerce,
London Branch
Commonwealth Bank of Australia Sydney -
OBU
Crédit Agricole Corporate and Investment
Bank
ING Bank N.V.
Intesa Sanpaolo S.p.A., London Branch
X.X. Xxxxxx Limited
Lloyds TSB Bank plc
Mizuho Corporate Bank, Ltd.
National Australia Bank Limited, ABN 12
004 044 937
Scotiabank Europe plc
Société Générale
Standard Chartered Bank
Sumitomo Mitsui Banking Corporation
The Royal Bank of Scotland plc
The Toronto-Dominion Bank
UBS Limited
UniCredit Bank AG, London Branch
Westpac Banking Corporation acting for
itself and through its Offshore Banking Unit
135
SCHEDULE 2
CONDITIONS PRECEDENT
PART 1
CONDITIONS PRECEDENT TO SIGNING
Original Obligors
1. |
|
A copy of the constitutional documents of each Original Obligor and any Authorisation
required by that Original Obligor in connection with this Agreement. |
|
2. |
|
An extract of the resolutions of the board of directors of each of the Companies appointing a
management committee of the board of directors to act in relation to the Finance Documents,
certified by a director or the company secretary of each Company as being a true extract of
the relevant resolutions and confirming, among other things, that the board meeting was
properly convened and the identity of the persons attending the meeting. |
|
3. |
|
A copy of a resolution of the board of directors of each Original Obligor (other than the
Companies) and a copy of a resolution of the management committee of the board of directors of
each of the Companies referred to in paragraph 2 above: |
|
(a) |
|
approving the terms of, and the transactions contemplated by, the Finance
Documents to which it is a party and resolving that it execute the Finance Documents
to which it is a party; |
|
|
(b) |
|
authorising a specified person or persons to execute the Finance Documents to
which it is a party on its behalf; and |
|
|
(c) |
|
authorising a specified person or persons, on its behalf, to sign and/or
despatch all documents and notices (including, if relevant, any Utilisation Request
and Selection Notice) to be signed and/or despatched by it under or in connection with
the Finance Documents to which it is a party. |
4. |
|
A specimen of the signature of each person authorised by each resolution referred to in
paragraphs 3(b) and 3(c) above. |
|
5. |
|
A certificate of an Authorised Signatory of the relevant Original Obligor certifying that
each copy document relating to it specified in this Schedule 2 is correct, complete and in
full force and effect as at a date no earlier than the date of this Agreement and certifying
that borrowing and/or guaranteeing, as appropriate, the Total Commitments would not cause any
borrowing, guaranteeing or similar limit in its constitutional documents to be exceeded. |
|
6. |
|
A copy of each of the Company Parent Guarantees. |
|
7. |
|
A certificate of an Authorised Signatory of each Company confirming that the Company Parent
Guarantee to which it is a party has not been amended or terminated in accordance with its
terms or otherwise, and it has not agreed with the other Company that the Finance Documents
(or any obligations under the Finance Documents) will be |
136
|
|
“Excluded Obligations” for the purposes of, and as defined in, that Company Parent
Guarantee. |
|
8. |
|
A copy of a power of attorney executed by each of the Companies (and Original Obligors if
necessary) appointing the persons specified in each power to execute and deliver on behalf of
the Companies (and/or Original Obligors), as the case may be, any or all of the Finance
Documents, any closing certificate, receipt, side letter or verification certificate in
connection with any Finance Document and any other document which is incidental, ancillary or
related to or contemplated by any of such documents, to which that company is a party, with
power to amend such documents, sign such other documents and do all such other acts, matters
and things as they in their judgment deem necessary or desirable in connection with the
transactions contemplated in such documents. |
|
9. |
|
A Note Deed Poll executed by each Australian Borrower. |
|
10. |
|
Any certificate or other documents required to be entered into in relation to the Finance
Documents by the terms of the board resolutions referred to in paragraph 3 above. |
Legal opinions
11. |
|
(a) A legal opinion of Xxxxx & Xxxxx LLP London, legal advisers to the Facility Agent in
England, addressed to the Finance Parties, regarding this Agreement; and (b) a legal opinion
of Xxxxx & Overy LLP London, legal advisers to the Facility Agent in England, addressed to the
Finance Parties, regarding the due execution of the Australian law Company Parent Guarantee
entered into by PLC and the enforceability of the English law Company Parent Guarantee entered
into by Limited. |
|
12. |
|
A legal opinion of Xxxxx & Xxxxx (Australia), legal advisers to the Facility Agent in
Australia, addressed to the Finance Parties, regarding this Agreement. |
|
13. |
|
A legal opinion of Xxxxxxxx & Xxxxxxxx LLP, legal advisers to the Companies in New York,
addressed to the Finance Parties, regarding no conflicts with US federal and New York state
laws, including as to Regulations T, U and X issued by the Board of Governors of the United
States Federal Reserve System. |
|
14. |
|
A legal opinion of Xxxxx Xxxxxx, legal advisers to the Companies in Australia, addressed to
the Finance Parties, regarding the due execution of the English law Company Parent Guarantee
entered into by Limited and the enforceability of the Australian law Company Parent Guarantee
entered into by PLC. |
Acquisition Documents
15. |
|
Copies of the Acquisition Documents and all supplements, amendments, modifications and
waivers in relation thereto, in each case then existing. |
Other documents and evidence
16. |
|
A copy of any documentation or other evidence which is reasonably requested by the Facility
Agent (for itself or on behalf of any Lender) in order for the Facility Agent or such |
137
|
|
Lender to comply with all necessary “know your customer” requirements under all applicable
laws and regulations pursuant to the transactions contemplated in the Finance Documents
which the Facility Agent or any Lender is obliged to comply with where the necessary
information is not already available to it. |
138
PART 2
CONDITIONS PRECEDENT TO INITIAL UTILISATION
1. |
|
To the extent not already delivered under Part 1 of this Schedule because not in existence at
the date of this Agreement, copies of the Acquisition Documents and all supplements,
amendments, modifications and waivers in relation thereto, in each case then existing. |
|
2. |
|
A certificate from the Companies confirming that: |
|
(a) |
|
the Closing Date will occur substantially concurrently with the first
Utilisation Date; and |
|
|
(b) |
|
the documents supplied to the Facility Agent pursuant to paragraph 15 of Part
1 of this Schedule and, if any, pursuant to paragraph 1 above contain all the material
terms of the Acquisition at that time. |
3. |
|
Evidence that the fees, costs and expenses then due from the Original Borrowers pursuant to
Clause 17 (Fees) and Clause 22 (Costs And Expenses) have been paid or will be paid on or prior
to the first Utilisation Date. |
139
PART 3
CONDITIONS PRECEDENT FOR AN ADDITIONAL BORROWER
1. |
|
An Accession Letter, duly executed by the Additional Borrower and the Obligors’ Agent. |
|
2. |
|
A copy of the constitutional documents of the Additional Borrower and any Authorisation
required by that Additional Borrower in connection with this Agreement. |
|
3. |
|
If applicable, a copy of a resolution signed by all the holders of the issued shares of the
Additional Borrower, approving the terms of, and the transactions contemplated by, the Finance
Documents to which the Additional Borrower is a party. |
|
4. |
|
A copy of a resolution of the board of directors of the Additional Borrower: |
|
(a) |
|
approving the terms of, and the transactions contemplated by, the Accession
Letter and the Finance Documents and resolving that it execute the Accession Letter; |
|
|
(b) |
|
authorising a specified person or persons to execute the Accession Letter on
its behalf; and |
|
|
(c) |
|
authorising a specified person or persons, on its behalf, to sign and/or
despatch all other documents and notices (including, in relation to an Additional
Borrower, any Utilisation Request or Selection Notice) to be signed and/or despatched
by it under or in connection with the Finance Documents. |
5. |
|
A specimen of the signature of each person authorised by the resolution referred to in
paragraph 4 above. |
|
6. |
|
A certificate of an Authorised Signatory of the Additional Borrower certifying that each copy
document listed in this Part 3 of Schedule 2 (Conditions Precedent) is correct, complete and
in full force and effect as at a date no earlier than the date of the Accession Letter and
certifying that the borrowing of the Total Commitments would not cause any borrowing or
similar limit in its constitutional documents to be exceeded. |
|
7. |
|
A legal opinion of the legal advisers to the Facility Agent in England, addressed to the
Finance Parties. |
|
8. |
|
If the Additional Borrower is incorporated in a jurisdiction other than England and Wales, a
legal opinion of the legal advisers to the Facility Agent in the jurisdiction in which the
Additional Borrower is incorporated (or by legal advisers to the Companies if it is standard
market practice in that jurisdiction for the Companies’ legal advisers to provide such
opinions). |
|
9. |
|
A copy of any other Authorisation or other document, opinion or assurance which the Facility
Agent after consulting with the Obligors’ Agent reasonably considers necessary in connection
with the accession of that Additional Borrower to this Agreement and the performance by it of
the transactions contemplated by any Finance Document. |
140
10. |
|
If the Additional Borrower would be an Australian Borrower, a Note Deed Poll executed by that
Additional Borrower.1 |
|
11. |
|
If the Additional Borrower would be an Additional Borrower incorporated in the United States
of America or any State thereof (a US Borrower), amendments to the Finance Documents to be
agreed between the Companies and the Facility Agent shall be made to provisions including (but
not limited to) tax, default, acceleration, increased costs, register and fees and choice of
law provisions as are appropriate and customary in respect of a US Borrower. |
|
12. |
|
Any certificate or other documents required to be entered into in relation to the Finance
Documents by the terms of the board resolutions referred to in paragraph 4 above. |
|
13. |
|
If the Additional Borrower is a member of the Target Group, a certificate of an Authorised
Signatory of each Company confirming that the Company Parent Guarantee to which it is a party
has not been amended or terminated in accordance with its terms or otherwise, and it has not
agreed with the other Company that the Finance Documents (or any obligations under the Finance
Documents) will be “Excluded Obligations” for the purposes of, and as defined in, that Company
Parent Guarantee. |
|
14. |
|
A copy of any documentation or other evidence as is reasonably requested by the Facility
Agent (for itself or on behalf of any Lender) in connection with the accession of that
Additional Borrower to this Agreement in order for the Facility Agent or such Lender to comply
with all necessary “know your customer” requirements under all applicable laws and regulations
pursuant to the transactions contemplated in the Finance Documents which the Facility Agent or
any Lender is obliged to comply with where the necessary information is not already available
to it. |
|
|
|
1 |
|
The Companies and the Facility Agent should seek
Australian tax advice before any member of the Group that is a resident of
Australia under the Australian Tax Act, or that carries on business in
Australia through a permanent establishment with which the borrowing would be
connected, becomes an Additional Borrower, as payments of interest by such an
Additional Borrower could be subject to Australian withholding tax. |
141
PART 4
CONDITIONS PRECEDENT FOR THE NEW HOLDING COMPANY
1. |
|
An Accession Letter, duly executed by the New Holding Company. |
|
2. |
|
A copy of the constitutional documents of the New Holding Company and any Authorisation
required by that New Holding Company in connection with this Agreement. |
|
3. |
|
A copy of a resolution of the board of directors of the New Holding Company: |
|
(a) |
|
approving the terms of, and the transactions contemplated by, the Accession
Letter and the Finance Documents and resolving that it execute the Accession Letter; |
|
|
(b) |
|
authorising a specified person or persons to execute the Accession Letter on
its behalf; and |
|
|
(c) |
|
authorising a specified person or persons, on its behalf, to sign and/or
despatch all other documents and notices (including in relation to a New Holding
Company any Utilisation Request or Selection Notice) to be signed and/or despatched by
it under or in connection with the Finance Documents. |
4. |
|
A specimen of the signature of each person authorised by the resolution referred to in
paragraph 4 above. |
|
5. |
|
A certificate of an Authorised Signatory of the New Holding Company certifying that each copy
document listed in this Part 4 of Schedule 2 (Conditions Precedent) is correct, complete and
in full force and effect as at a date no earlier than the date of the Accession Letter and
certifying that the borrowing of the Total Commitments would not cause any borrowing or
similar limit in its constitutional documents to be exceeded. |
|
6. |
|
A legal opinion of the legal advisers to the Facility Agent in England. |
|
7. |
|
A copy of any other Authorisation or other document, opinion or assurance which the Facility
Agent after consulting with the Obligors’ Agent reasonably considers necessary in connection
with the accession of that New Holding Company to this Agreement and the performance by it of
the transactions contemplated by any Finance Document. |
|
8. |
|
A copy of any documentation or other evidence as is reasonably requested by the Facility
Agent (for itself or on behalf of any Lender) in connection with the accession of that New
Holding Company to this Agreement in order for the Facility Agent or such Lender to comply
with all necessary “know your customer” requirements under all applicable laws and regulations
pursuant to the transactions contemplated in the Finance Documents which the Facility Agent or
any Lender is obliged to comply with where the necessary information is not already available
to it. |
142
SCHEDULE 3
FORM OF REQUESTS
PART 1
FORM OF UTILISATION REQUEST
From: [Borrower/Obligors’ Agent]
To: [•] as [Facility Agent/Dollar Swingline Agent/Euro Swingline Agent]
Dated:
Dear Sirs
BHP Billiton Plc/BHP Billiton Limited — US$7,500,000,000 Multicurrency Term and Revolving
Facilities and Subscription Agreement dated 18 August 2011 (the Agreement)
1. |
|
We refer to the Agreement. This is a Utilisation Request. Terms defined in the Agreement
have the same meanings where used in this Utilisation Request unless given a different meaning
in this Utilisation Request. |
2. |
|
[ ] wishes to borrow a [Term Loan/Revolving Facility Loan/Dollar Swingline Loan/Euro
Swingline Loan] on the following terms: |
|
|
|
|
|
|
|
|
|
Borrower:
|
|
[ ] |
|
|
|
|
|
|
|
|
|
|
|
Proposed Utilisation Date:
|
|
[ ]
|
|
[(or, if that is not a Business Day, the next Business Day)
/ (or, if that is not a New York Business Day, the next New York Business
Day2) |
|
|
|
|
|
|
|
|
|
Currency of Loan:
|
|
[ ] |
|
|
|
|
|
|
|
|
|
|
|
Amount:
|
|
[ ]
|
|
or, if less, the Available Facility3 |
|
|
|
|
|
|
|
|
|
Interest Period:
|
|
[ ] |
|
|
|
|
|
|
|
|
|
|
|
Purpose:4 |
|
|
|
|
|
|
|
2 |
|
For Dollar Swingline Loans only see Clause
6.3(a)(iii) (Completion of a Utilisation Request for Dollar Swingline Loans). |
|
3 |
|
Please specify the amount of each Loan under each
Facility. |
|
4 |
|
Insert “general corporate purposes” if the
Utilisation is made under the Revolving Facility for that purpose. |
143
3. |
|
We confirm that each condition specified in Clause [4.2 (Further conditions precedent)/
6.4(b) (Dollar Swingline Lenders’ participation)/ 6.7(a) (Euro Swingline Lenders’
participation)] of the Agreement is satisfied on the date of this Utilisation Request. |
|
4. |
|
[The proceeds of the [Term Loan/Revolving Facility Loan/Dollar Swingline Loan/Euro Swingline
Loan] should be credited to [account]][This loan is to be made in [whole]/[part] for the
purpose of refinancing [identify maturing Revolving Facility Loan] in accordance with Clause
12.2 (Repayment of Revolving Facility Loans) of the Agreement]. |
|
5. |
|
This Utilisation Request is irrevocable. |
Yours faithfully
|
|
|
|
|
|
[Borrower/Obligors’ Agent] |
|
|
144
PART 2
FORM OF SELECTION NOTICE
From: [Borrower/Obligors’ Agent]
To: [•] as [Facility Agent/Dollar Swingline Agent/Euro Swingline Agent]
Dated:
Dear Sirs
BHP Billiton Plc/BHP Billiton Limited — US$7,500,000,000 Multicurrency Term and Revolving
Facilities and Subscription Agreement dated 18 August 2011 (the Agreement)
1. |
|
We refer to the Agreement. This is a Selection Notice. Terms defined in the Agreement have
the same meanings where used in this Selection Notice unless given a different meaning in this
Selection Notice. |
|
2. |
|
We refer to the following Loan[s] in [identify currency] with an Interest Period ending on
[•] 5: |
|
3. |
|
[We request that the above Loan[s] be divided into [•] Loans with the following Base Currency
Amounts and Interest Periods:]6 |
|
or |
|
|
|
3. |
|
[We request that the next Interest Period for the above Loan[s] is [ ]]. 7 |
|
4. |
|
This Selection Notice is irrevocable. |
Yours faithfully
|
|
|
|
|
|
[Borrower/Obligors’ Agent] |
|
|
|
|
|
5 |
|
Insert details of all Loans in the same currency
which have an Interest Period ending on the same date |
|
6 |
|
Use this option if division of Loans is requested. |
|
7 |
|
Use this option if sub-division is not required. |
145
SCHEDULE 4
MANDATORY COST FORMULAE
1. |
|
The Mandatory Cost is an addition to the interest rate to compensate Lenders for the cost of
compliance with (a) the requirements of the Bank of England and/or the Financial Services
Authority (or, in either case, any other authority which replaces all or any of its functions)
or (b) the requirements of the European Central Bank. |
|
2. |
|
On the first day of each Interest Period (or as soon as possible thereafter) the Facility
Agent shall calculate, as a percentage rate, a rate (the Additional Cost Rate) for each
Lender, in accordance with the paragraphs set out below. The Mandatory Cost will be calculated
by the Facility Agent as a weighted average of the Lenders’ Additional Cost Rates (weighted in
proportion to the percentage participation of each Lender in the relevant Loan) and will be
expressed as a percentage rate per annum. |
|
3. |
|
The Additional Cost Rate for any Lender lending from a Facility Office in a Participating
Member State will be the percentage notified by that Lender to the Facility Agent. This
percentage will be certified by that Lender in its notice to the Facility Agent to be its
reasonable determination of the cost (expressed as a percentage of that Lender’s participation
in all Loans made from that Facility Office) of complying with the minimum reserve
requirements of the European Central Bank in respect of loans made from that Facility Office. |
|
4. |
|
The Additional Cost Rate for any Lender lending from a Facility Office in the United Kingdom
will be calculated by the Facility Agent as follows: |
|
(a) |
|
in relation to a Sterling Loan: |
|
|
|
|
|
% per annum |
|
(b) |
|
in relation to a Loan in any currency other than Sterling: |
|
|
|
|
|
% per annum |
|
|
|
Where: |
|
|
A |
|
is the percentage of Eligible Liabilities (assuming these to be in excess of
any stated minimum) which that Lender is from time to time required to maintain as an
interest free cash ratio deposit with the Bank of England to comply with cash ratio
requirements. |
|
|
B |
|
is the percentage rate of interest (excluding the Margin and the Mandatory
Cost and, if the Loan is an Unpaid Sum, the additional rate of interest specified in
paragraph (a) of Clause 14.4 (Default interest)) payable for the relevant Interest
Period on the Loan. |
146
|
C |
|
is the percentage (if any) of Eligible Liabilities which that Lender is
required from time to time to maintain as interest bearing Special Deposits with the
Bank of England. |
|
|
D |
|
is the percentage rate per annum payable by the Bank of England to the
Facility Agent on interest bearing Special Deposits. |
|
|
E |
|
is designed to compensate Lenders for amounts payable under the Fees Rules
and is calculated by the Facility Agent as being the average of the most recent rates
of charge supplied by the Reference Banks to the Facility Agent pursuant to paragraph
7 below and expressed in pounds per £1,000,000. |
5. |
|
For the purposes of this Schedule: |
|
(a) |
|
Eligible Liabilities and Special Deposits have the meanings given to them
from time to time under or pursuant to the Bank of England Act 1998 or (as may be
appropriate) by the Bank of England; |
|
|
(b) |
|
Fees Rules means the rules on periodic fees contained in the Financial
Services Authority Fees Manual or such other law or regulation as may be in force from
time to time in respect of the payment of fees for the acceptance of deposits; |
|
|
(c) |
|
Fee Tariffs means the fee tariffs specified in the Fees Rules under the
activity group A.1 Deposit acceptors (ignoring any minimum fee or zero rated fee
required pursuant to the Fees Rules but taking into account any applicable discount
rate); and |
|
|
(d) |
|
Tariff Base has the meaning given to it in, and will be calculated in
accordance with, the Fees Rules. |
6. |
|
In application of the above formulae, A, B, C and D will be included in the formulae as
percentages (i.e. 5 per cent. will be included in the formula as 5 and not as 0.05). A
negative result obtained by subtracting D from B shall be taken as zero. The resulting figures
shall be rounded to four decimal places. |
|
7. |
|
If requested by the Facility Agent, each Reference Bank shall, as soon as practicable after
publication by the Financial Services Authority, supply to the Facility Agent, the rate of
charge payable by that Reference Bank to the Financial Services Authority pursuant to the Fees
Rules in respect of the relevant financial year of the Financial Services Authority
(calculated for this purpose by that Reference Bank as being the average of the Fee Tariffs
applicable to that Reference Bank for that financial year) and expressed in pounds per
£1,000,000 of the Tariff Base of that Reference Bank. |
|
8. |
|
Each Lender shall supply any information required by the Facility Agent for the purpose of
calculating its Additional Cost Rate. In particular, but without limitation, each Lender shall
supply the following information on or prior to the date on which it becomes a Lender: |
|
(a) |
|
the jurisdiction of its Facility Office; and |
147
|
(b) |
|
any other information that the Facility Agent may reasonably require for such
purpose. |
|
Each Lender shall promptly notify the Facility Agent of any change to the
information provided by it pursuant to this paragraph. |
9. |
|
The percentages of each Lender for the purpose of A and C above and the rates of charge of
each Reference Bank for the purpose of E above shall be determined by the Facility Agent based
upon the information supplied to it pursuant to paragraphs 7 and 8 above and on the assumption
that, unless a Lender notifies the Facility Agent to the contrary, each Lender’s obligations
in relation to cash ratio deposits and Special Deposits are the same as those of a typical
bank from its jurisdiction of incorporation with a Facility Office in the same jurisdiction as
its Facility Office. |
|
10. |
|
The Facility Agent shall have no liability to any person if such determination results in an
Additional Cost Rate which over or under compensates any Lender and shall be entitled to
assume that the information provided by any Lender or Reference Bank pursuant to paragraphs 3,
7 and 8 above is true and correct in all respects. |
|
11. |
|
The Facility Agent shall distribute the additional amounts received as a result of the
Mandatory Cost to the Lenders on the basis of the Additional Cost Rate for each Lender based
on the information provided by each Lender and each Reference Bank pursuant to paragraphs 3, 7
and 8 above. |
|
12. |
|
Any determination by the Facility Agent pursuant to this Schedule in relation to a formula,
the Mandatory Cost, an Additional Cost Rate or any amount payable to a Lender shall, in the
absence of manifest error, be conclusive and binding on all Parties. |
|
13. |
|
The Facility Agent may from time to time, after consultation with the Obligors’ Agent and the
Lenders, determine and notify to all Parties any amendments which are required to be made to
this Schedule in order to comply with any change in law, regulation or any requirements from
time to time imposed by the Bank of England, the Financial Services Authority or the European
Central Bank (or, in any case, any other authority which replaces all or any of its functions)
and any such determination shall, in the absence of manifest error, be conclusive and binding
on all Parties. |
148
SCHEDULE 5
FORM OF TRANSFER CERTIFICATE
To: [•] as Facility Agent
From: [The Existing Lender] (the Existing Lender) and [The New Lender] (the New Lender)
Dated [•]
BHP Billiton Plc/BHP Billiton Limited — US$7,500,000,000 Multicurrency Term and Revolving
Facilities and Subscription Agreement dated 18 August 2011 (the Agreement)
1. |
|
We refer to the Agreement. This is a Transfer Certificate. Terms defined in the Agreement
have the same meanings where used in this Transfer Certificate unless given a different
meaning in this Transfer Certificate. |
|
2. |
|
We refer to Clause 30.6 (Procedure for transfer) of the Agreement: |
|
(a) |
|
The Existing Lender transfers to the New Lender all or part of its Notes as
described in the Schedule and the Loans they represent. |
|
|
(b) |
|
The Existing Lender and the New Lender agree to the Existing Lender and the
New Lender transferring by novation all or part of the Existing Lender’s Commitment,
rights and obligations referred to in the Schedule (together with any associated
Notes) in accordance with Clause 30.6 (Procedure for transfer) of the Agreement. |
|
|
(c) |
|
The proposed Transfer Date is [ ]. |
|
|
(d) |
|
The Facility Office and address, fax number and attention details for notices
of the New Lender for the purposes of Clause 38.2 (Addresses) of the Agreement are set
out in the Schedule. |
3. |
|
The New Lender expressly acknowledges the confirmation and limitations on the Existing
Lender’s obligations set out in paragraph (b) of Clause 30.5 (Limitation of responsibility of
Existing Lenders) of the Agreement. |
|
4. |
|
The New Lender acknowledges that under Clause 6.4(a) (Dollar Swingline Lenders’
participation) of the Agreement if it intends to make its participation in each Dollar
Swingline Loan available through a Facility Office other than a Facility Office in the United
States of America, the Obligors’ Agent must confirm that this alternative Facility Office is
acceptable. |
|
5. |
|
The New Lender confirms that it is not a Defaulting Lender and that the consent of the
Obligors’ Agent to the transfer pursuant to this Transfer Certificate [has been obtained][is
not required under the Agreement]. |
|
6. |
|
The New Lender confirms that it is resident for Tax purposes in [insert jurisdiction]. |
149
7. |
|
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. |
|
8. |
|
This Transfer Certificate is governed by English law. |
THE SCHEDULE
Commitment/rights and obligations to be transferred
[insert relevant details including details of any associated Notes]
[Note: Any transfers in respect of any Commitment or Utilisation must always be in a minimum amount
of US$5,000,000 (or its equivalent in any other currency).]
[Facility Office address, fax number, e-mail for credit contacts and attention details for notices
and account details for payments,]
|
|
|
|
|
|
|
|
|
For and on behalf of
|
|
For and on behalf of |
|
|
|
[Existing Lender]
|
|
[New Lender] |
|
|
|
Branch: [ ], Branch MEI: [ ]
|
|
By: |
|
|
|
By: |
|
|
This Transfer Certificate is accepted by the Facility Agent and the Transfer Date is confirmed as
[•].
|
|
|
|
|
|
[•] as Facility Agent |
|
|
By: |
|
|
150
SCHEDULE 6
FORM OF ACCESSION LETTER
To: [•] as Facility Agent
From: [Subsidiary/New Finance Company/New Holding Company] and [Obligors’ Agent]
Dated:
Dear Sirs
BHP Billiton Plc/BHP Billiton Limited — US$7,500,000,000 Multicurrency Term and Revolving
Facilities and Subscription Agreement dated 18 August 2011 (the Agreement)
1. |
|
We refer to the Agreement. This is an Accession Letter. Terms defined in the Agreement have
the same meanings where used in this Accession Letter unless given a different meaning in this
Accession Letter. |
|
2. |
|
[[Subsidiary] agrees to become an Additional Borrower and to be bound by the terms of the
Agreement as an Additional Borrower pursuant to Clause 32.2 (Additional Borrowers) of the
Agreement. [Subsidiary] is a company duly incorporated under the laws of [name of relevant
jurisdiction].]8 |
|
3. |
|
[New Finance Company/New Holding Company] agrees to become the Borrower in respect of the
following Loans by way of novation so that[, on satisfaction of the conditions in Clause
43.7(b) (New Holding Company) of the Agreement]: |
|
(a) |
|
[name of relevant original Borrower] is released from its obligations to the
Lenders in respect of such Loans (the Discharged Obligations) (such obligations being
cancelled) and [New Finance Company/New Holding Company] assumes obligations to the
Lenders in respect of such Loans to the Finance Parties which differ from the
Discharged Obligations only insofar as the [New Finance Company/New Holding Company]
has assumed those obligations in place of [the original Borrower]; and |
|
|
(b) |
|
the [New Finance Company/New Holding Company] and the other Parties shall
acquire the same rights and assume the same obligations between themselves as they
would have acquired and assumed had the [New Finance |
|
|
|
8 |
|
Only needed for an Additional Borrower. Note: The
Companies and the Facility Agent should seek Australian tax advice before any
member of the Group that is a resident of Australia under the Australian Tax
Act, or that carries on business in Australia through a permanent establishment
with which the borrowing would be connected becomes an Additional Borrower, as
payments of interest by such an Additional Borrower could be subject to
Australian withholding tax. |
151
|
|
|
|
|
Company/New Holding Company] been the original Borrower in respect of such Loans:
[detail Loans]9 |
4. |
|
[Subsidiary/New Finance Company/New Holding Company]’s administrative details are as
follows: |
|
|
|
Address: |
|
|
|
Fax No: |
|
|
|
Attention: |
|
5. |
|
This letter is governed by English law. |
|
6. |
|
[This Accession Letter is entered into by deed.] |
|
|
|
[Obligors’ Agent]
|
|
[Subsidiary/ New Finance Company/New Holding Company] |
|
|
|
By:
|
|
By: |
[This Accession Letter is accepted by the Facility Agent and the date of the novation referred
to in paragraph 3 above is confirmed as [ ].
|
|
|
|
|
|
[•] as Facility Agent |
|
|
By:]10 |
|
|
|
|
|
9 |
|
Only needed in the circumstances contemplated by
Clauses 34.1 and 44.4(b)(v)(2). |
|
10 |
|
Only needed in the circumstances contemplated by
Clauses 34.1 and 44.4(b)(v)(2). |
152
SCHEDULE 7
FORM OF RESIGNATION LETTER
To: [•] as Facility Agent
From: [Obligors’ Agent]
Dated:
Dear Sirs
BHP Billiton Plc/BHP Billiton Limited — US$7,500,000,000 Multicurrency Term and Revolving
Facilities and Subscription Agreement dated 18 August 2011 (the Agreement)
1. |
|
We refer to the Agreement. This is a Resignation Letter. Terms defined in the Agreement
have the same meanings where used in this Resignation Letter unless given a different meaning
in this Resignation Letter. |
|
2. |
|
Pursuant to Clause 32.3 (Resignation of a Borrower) of the Agreement, we request that
[resigning Borrower] be released from its obligations as a Borrower under the Agreement. |
|
3. |
|
We confirm that no Default is continuing or would result from the acceptance of this request. |
|
4. |
|
This letter is governed by English law. |
[Obligors’ Agent]
By:
153
SCHEDULE 8
FORM OF COMPLIANCE CERTIFICATE
To: [•] as Facility Agent
From: [Obligors’ Agent]
Dated:
Dear Sirs
BHP Billiton Plc/BHP Billiton Limited — US$7,500,000,000 Multicurrency Term and Revolving
Facilities and Subscription Agreement dated 18 August 2011 (the Agreement)
1. |
|
We refer to the Agreement. This is a Compliance Certificate. Terms defined in the Agreement
have the same meanings where used in this Compliance Certificate unless given a different
meaning in this Compliance Certificate. |
|
2. |
|
We confirm that: [Insert details of covenants to be certified] |
|
3. |
|
[We confirm that no Default is continuing.]11 |
|
4. |
|
This letter is governed by English law. |
|
|
|
|
|
Authorised
Signatory |
[Companies]
|
|
[Companies] |
|
|
|
11 |
|
If this statement cannot be made, the certificate
should identify any Default that is continuing and the steps, if any, being
taken to remedy it. |
154
SCHEDULE 9
TIMETABLES
D refers to the Utilisation Date.
D-X refers to the number of Business Days before the relevant Utilisation Date.
All times are London time unless otherwise stated.
|
|
|
|
|
|
|
|
|
|
|
|
|
Loans in other |
Loans in euro |
|
|
|
Loans in Sterling |
|
currencies |
Request for
approval as an
Optional Currency,
if required (Clause
4.3 (Conditions
relating to
Optional
Currencies))
|
|
|
|
|
|
D-5 10.00 a.m. |
|
|
|
|
|
|
|
Facility Agent
notifies the
Lenders of the
request (Clause 4.3
(Conditions
relating to
Optional
Currencies))
|
|
|
|
|
|
D-5 3.00 p.m. |
|
|
|
|
|
|
|
Responses by
Lenders to the
request (Clause 4.3
(Conditions
relating to
Optional
Currencies))
|
|
|
|
|
|
D-4 1.00 p.m. |
|
|
|
|
|
|
|
Facility Agent
notifies the
Company if a
currency is
approved as an
Optional Currency
in accordance with
Clause 4.3
(Conditions
relating to
Optional
Currencies)
|
|
|
|
|
|
D-4 5.00 p.m. |
|
|
|
|
|
|
|
Delivery of a duly
completed
Utilisation Request
(Clause 5.1
(Delivery of a
Utilisation
Request)) or a
Selection Notice
(Clause 15.1
(Selection of
Interest Periods))
|
|
D-3 10.00 a.m.
|
|
D-1 10.00 a.m.
|
|
D-3 10.00 a.m.
(for currencies
other than US$)
D-2 10.00 a.m.
(for US$) |
155
|
|
|
|
|
|
|
|
|
|
|
|
|
Loans in other |
Loans in euro |
|
|
|
Loans in Sterling |
|
currencies |
Facility Agent
determines (in
relation to a
Utilisation) the
Base Currency
Amount of the Loan,
if required under
Clause 5.4
(Lenders’
participation) and
notifies the
Lenders of the Loan
in accordance with
Clause 5.4
(Lenders’
participation)
|
|
D-3 3.00 p.m.
|
|
D-1 3.00 p.m.
|
|
D-3 3.00 p.m.
(for currencies
other than US$)
D-2 10.30 a.m.
(for US$) |
|
|
|
|
|
|
|
LIBOR or EURIBOR is
fixed
|
|
Quotation Day
11.00 a.m.
(Brussels time)
|
|
Quotation Day
11.00 a.m.
|
|
Quotation Day
11.00 a.m. |
|
|
|
|
|
|
|
Facility Agent
receives a
notification from a
Lender under Clause
11.2
(Unavailability of
a currency)
|
|
|
|
|
|
Quotation Day
10 a.m. |
|
|
|
|
|
|
|
Facility Agent
gives notice in
accordance with
Clause 11.2
(Unavailability of
a currency)
|
|
|
|
|
|
Quotation Day
5.00 p.m. |
|
|
|
|
|
|
|
Delivery of a duly
completed
Utilisation Request
(Clause 6.2
(Delivery of a
Utilisation Request
for Dollar
Swingline Loans))
|
|
|
|
|
|
D 10.00 a.m.
(New York time) |
|
Delivery of a duly
completed
Utilisation Request
(Clause 6.5
(Delivery of a
Utilisation Request
for
|
|
D 9.00 a.m. |
|
|
|
|
156
|
|
|
|
|
|
|
|
|
|
|
|
|
Loans in other |
Loans in euro |
|
|
|
Loans in Sterling |
|
currencies |
Euro Swingline
Loans)) |
|
|
|
|
|
|
|
|
|
|
|
|
|
Dollar Swingline
Agent notifies each
Dollar Swingline
Lender of the
amount of its
participation in
the Dollar
Swingline Loan
under Clause 6.4
(Dollar Swingline
Lenders’
participation)
|
|
|
|
|
|
D 12.00 (noon)
(New York time) |
|
|
|
|
|
|
|
Euro Swingline
Agent notifies each
Euro Swingline
Lender of the
amount of its
participation in
the Euro Swingline
Loan under Clause
6.7 (Euro Swingline
Lenders’
participation)
|
|
D 10.00 a.m. |
|
|
|
|
|
|
|
|
|
|
|
Dollar Swingline
Agent determines
Federal Funds Rate
under Clause 7.5
(Dollar Swingline
Facility rate of
interest)
|
|
|
|
|
|
D 1.00 p.m.
(New York time) |
|
|
|
|
|
|
|
Euro Swingline
Agent determines
Euro Swingline Rate
under Clause 7.6
(Euro Swingline
Facility rate of
interest)
|
|
D 11.00 a.m. |
|
|
|
|
157
SCHEDULE 10
FORM OF NOTE DEED POLL
Date:
THIS NOTE DEED POLL is made by [BHP BILLITON LIMITED (ABN 49 004 028 077) / BHP BILLITON FINANCE
LIMITED (ABN 82 000 000 000)] (the Australian Borrower) IN FAVOUR OF each person who from time to
time is a Lender, [•] as facility agent (the Facility Agent), [•] as dollar swingline agent (the
Dollar Swingline Agent) and [•] as euro swingline agent (the Euro Swingline Agent).
RECITAL
The Australian Borrower has offered to issue Notes pursuant to the terms of a multicurrency term
and revolving facilities and subscription agreement (the Facilities Agreement) between BHP Billiton
Plc, BHP Billiton Limited, the Facility Agent, the Dollar Swingline Agent, the Euro Swingline Agent
and others dated 18 August 2011.
Operative provisions:
1. |
|
THE NOTES |
|
1.1 |
|
Creation of Notes |
|
|
The Australian Borrower may create and issue Notes in favour of each Lender under
a Facility by inscription in the Register. The Notes have an aggregate principal
amount outstanding from time to time equal to the aggregate outstanding principal
amount subscribed by the relevant Lender under the Facilities Agreement as recorded in
the Register plus AUS$1 and a maximum aggregate principal amount equal to the sum of
the relevant Lender’s Commitment in respect of the relevant Facility plus AUS$1. |
|
1.2 |
|
Undertakings and acknowledgment of debt |
|
|
|
The Australian Borrower: |
|
(a) |
|
acknowledges that it is indebted to each Lender for an amount equal to the
aggregate outstanding principal amount of the Notes; and |
|
|
(b) |
|
agrees to pay principal and interest in respect of each Note issued to a
Lender in accordance with the Facilities Agreement, the Notes and this deed. |
1.3 |
|
Effect of payment of interest or redemption |
|
|
|
The obligations of the Australian Borrower under Clause 1.2 (Undertakings and
acknowledgment of debt) are discharged to the extent interest is paid on a Note and to
the extent that the aggregate principal amount outstanding in respect of a Note is
repaid in accordance with the Facilities Agreement. |
158
2. |
|
RIGHTS AND OBLIGATIONS OF LENDERS |
|
2.1 |
|
Benefit and entitlement |
|
|
|
This deed is executed as a deed poll. The Notes are issued on the condition that
the Facility Agent, the Dollar Swingline Agent, the Euro Swingline Agent and each
Lender has the benefit of, and is entitled to enforce, this deed subject to the
Facilities Agreement even though it is not a party to or is not in existence at the
time of execution and delivery of this deed. |
|
2.2 |
|
Rights independent |
|
|
|
The Facility Agent, the Dollar Swingline Agent, the Euro Swingline Agent and each
Lender may enforce its rights under this deed independently from each other, subject
to the Facilities Agreement. |
|
2.3 |
|
Agents and Lenders bound |
|
|
|
Each Lender together with the Facility Agent, the Dollar Swingline Agent and the
Euro Swingline Agent (and any person claiming through or under a Lender) is bound by
this deed. |
|
2.4 |
|
Directions to hold Deed Poll |
|
|
|
Each Lender is taken to have irrevocably instructed the Australian Borrower that
this deed is to be held by the Facility Agent on its behalf and on behalf of each
other Lender. |
|
2.5 |
|
Facilities Agreement |
|
|
|
The Notes are issued on the condition that each Lender is bound by the provisions
of the Facilities Agreement. |
|
2.6 |
|
Notes issued as a result of offer |
|
|
|
Each Note is issued as a result of an offer to the Lenders. This is the case
regardless of the time of issue. |
|
3. |
|
FORM, TITLE AND STATUS |
|
3.1 |
|
Registered form |
|
|
|
Each Note takes the form of an entry in the Register. No certificate will be
issued in respect of it, unless required by law. |
|
3.2 |
|
Issue of Notes by entry in Register |
|
|
|
A Note is: |
|
(a) |
|
issued when details of the Note are first entered in the Register; and |
159
|
(b) |
|
transferred when the details of the transfer are entered in the Register. |
3.3 |
|
Effect of entries in Register |
|
|
|
Each entry in the Register in respect of a Note constitutes: |
|
(a) |
|
an acknowledgment to the relevant Lender by the Australian Borrower of the
indebtedness of the Australian Borrower to that Lender in respect of the relevant Note
on the terms of the Note and this deed; |
|
|
(b) |
|
an undertaking by the Australian Borrower to the relevant Lender to make all
payments of principal and interest in respect of the relevant Note in accordance with
the terms of the Note and this deed; and |
|
|
(c) |
|
an entitlement to the other benefits given to the Lenders, the Facility
Agent, the Dollar Swingline Agent and the Euro Swingline Agent under the Facilities
Agreement in respect of the relevant Note. |
3.4 |
|
Independent obligations |
|
|
|
Subject to the terms of the Facilities Agreement, the obligations of the Australian
Borrower in respect of each Note constitute separate and independent obligations which
the Lender to whom those obligations are owed is entitled to enforce without having to
join any other Lender or any predecessor in title of that Lender. |
|
3.5 |
|
Register conclusive as to ownership |
|
|
|
Entries in the Register in relation to a Note constitute conclusive evidence that the
person so entered is the absolute owner of the Note subject to correction for fraud or
error. |
|
3.6 |
|
Holder absolutely entitled |
|
|
|
Upon a person acquiring title to any Note by virtue of becoming registered as the
owner of that Note, all rights and entitlements arising by virtue of this deed in
respect of that Note vest absolutely in the registered owner of the Note free of all
equities. Any person who has previously been registered as the owner of the Note does
not have, and is not entitled to assert against the Australian Borrower, the Facility
Agent, the Dollar Swingline Agent, the Euro Swingline Agent or the registered owner of
the Note for the time being and from time to time, any rights, benefits or
entitlements in respect of the Note. |
|
3.7 |
|
Status of Notes |
|
|
|
The Notes are direct, unsubordinated and unsecured obligations of the Australian
Borrower and rank pari passu among themselves and at least equally with all other
unsecured and unsubordinated obligations of the Australian Borrower except for
liabilities mandatorily preferred by law. |
160
4. |
|
TRANSFERS |
|
4.1 |
|
Limit on transfer |
|
|
|
Each Note may only be transferred in accordance with Clause 30 (Changes To The
Lenders) of the Facilities Agreement (including, without limitation, Clause 30.3
(Transfer and transmission of Notes)). |
|
4.2 |
|
Transfer of all of Note |
|
|
|
Each Note may only be transferred in whole. |
|
4.3 |
|
Registration of transfer |
|
|
|
The transferor of a Note is taken to remain the holder of that Note until the
name of the transferee is entered in the Register in respect of that Note. |
|
5. |
|
INTEREST AND DEFAULT INTEREST |
|
(a) |
|
The Australian Borrower agrees to pay interest and default interest on each
Note issued under a Facility as calculated as though Clause 14 (Interest) of the
Facilities Agreement (other than Clauses 14.2 (Payment of interest) and 14.4 (Default
interest) of the Facilities Agreement) applied to it in the same manner as such Clause
would apply to a Loan under the relevant Facility. |
|
|
(b) |
|
The Australian Borrower shall pay accrued interest on each Note on the last
day of each Interest Period (and, if the Interest Period is longer than six Months, on
the date falling six Months after the first day of the Interest Period). |
|
|
(c) |
|
(i) If the Australian Borrower fails to pay any amount payable by it under a
Note 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 1 per cent.
higher than the rate which would have been payable if the overdue amount had, during
the period of non-payment, constituted an amount payable under a Note in the currency
of the overdue amount for successive Interest Periods under the relevant Facility (or,
if the overdue amount does not relate to a particular Facility, under the Revolving
Facility), each of a duration selected by the Facility Agent (acting reasonably). Any
interest accruing under this Clause 5(c) shall be immediately payable by the
Australian Borrower on demand by the Facility Agent. |
|
|
|
|
(ii) 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. |
161
6. |
|
PAYMENTS |
|
|
|
The Australian Borrower agrees to make all payments under a Note in accordance
with Clause 36 (Payment Mechanics) of the Facilities Agreement. |
|
7. |
|
GOVERNING LAW |
|
|
|
This deed poll and the Notes are governed by the law of New South Wales. The
Australian Borrower submits to the non-exclusive jurisdiction of the courts of New
South Wales. |
|
8. |
|
INTERPRETATION |
|
|
|
Clauses 1.1 (Definitions) and 1.2 (Construction) of the Facilities Agreement apply to this
deed poll as if each such clause was fully set out herein, except that references
therein to “this Agreement” shall be construed as references to this deed poll and any
reference in this deed poll to a Note is a reference only to a Note (as defined in
Clause 1.1 (Definitions) of the Facilities Agreement) that is or is to be issued by
the Australian Borrower. |
EXECUTED as a deed poll.
[Insert execution clause for the relevant Australian Borrower]
162
SCHEDULE 11
ALTERNATIVE REFERENCE BANKS
Part I
Alternative Reference Banks in relation to Loans in currencies other than euro
Canadian Imperial Bank of Commerce
Crédit Agricole Corporate and Investment Bank
The Royal Bank of Scotland plc
Standard Chartered Bank
UBS Limited
UniCredit Bank AG
Part II
Alternative Reference Banks in relation to Loans in euro
Canadian Imperial Bank of Commerce
Crédit Agricole Corporate and Investment Bank
The Royal Bank of Scotland plc
Standard Chartered Bank
UBS Limited
UniCredit Bank AG
163
SCHEDULE 12
CONTACT DETAILS
|
|
|
|
|
Party |
|
Contact Details |
|
|
BHP Billiton Plc
|
|
Address:
|
|
Xxxxxxxxx Xxxxx, Xxxxxx XX0X
0XX, Xxxxxx Xxxxxxx |
|
|
|
|
|
|
|
Fax No:
|
|
+ 00 (0) 000 000 0000 |
|
|
|
|
|
|
|
Attention:
|
|
Treasurer and Vice President,
Treasury and Corporate Finance |
|
|
|
|
|
BHP Billiton Limited
|
|
Address:
|
|
Xxxxx 00, BHP Billiton Centre,
000 Xxxxxxxx Xxxxxx, Xxxxxxxxx
XXX 0000, Xxxxxxxxx |
|
|
|
|
|
|
|
Fax No:
|
|
+ 00 0 0000 0000 |
|
|
|
|
|
|
|
Attention:
|
|
Treasurer and Vice President,
Treasury and Corporate Finance |
|
|
|
|
|
Obligors’ Agent:
|
|
Address:
|
|
Xxxxxxxxx Xxxxx, Xxxxxx XX0X
0XX, Xxxxxx Xxxxxxx |
|
|
|
|
|
BHP Billiton Finance Plc
|
|
Fax No:
|
|
+ 00 (0) 000 000 0000 |
|
|
|
|
|
|
|
Attention:
|
|
Treasurer and Vice President,
Treasury and Corporate Finance |
|
|
|
|
|
Facility Agent
(Amendments and Waivers
etc.):
|
|
Address:
|
|
5 Xxx Xxxxx Xxxxxxxxx, Xxxxxx
Xxxxx, Xxxxxx X00 0XX
Telephone: + 00 (0) 000 000 0000 |
|
|
|
|
|
|
|
Fax No:
|
|
+ 00 (0) 000 000 0000 |
|
|
|
|
|
|
|
Attention:
|
|
Xxxxxx Xxx, European Loans Agency |
|
|
|
|
|
Facility Agent (Loan
Operations):
|
|
Address:
|
|
0 Xxxxxx Xxxxxx, #00-00 Xxxxxxx
Xxx, Xxxxxxxxx 000000 |
|
|
|
|
|
|
|
Telephone:
|
|
+ 00 (0) 000 000 0000 / + 00 (0)
000 000 0000 |
|
|
|
|
|
|
|
Fax No:
|
|
+ 00 (0) 000 000 0000 / + 00 (0)
000 000 0000 |
|
|
|
|
|
|
|
Attention:
|
|
Xxxxxxxx Xxx and Xxxxxx
Xxxxxxxxx, Barclays Loan
Operations Singapore |
|
|
|
|
|
Euro Swingline Agent
(Loan Operations):
|
|
Address:
|
|
0 Xxxxxx Xxxxxx, #00-00 Xxxxxxx
Xxx, Xxxxxxxxx 000000 |
164
|
|
|
|
|
Party |
|
Contact Details |
|
|
|
|
Telephone:
|
|
+ 00 (0) 000 000 0000 / + 00 (0)
000 000 0000 |
|
|
|
|
|
|
|
Fax No:
|
|
+ 00 (0) 000 000 0000 / + 00 (0)
000 000 0000 |
|
|
|
|
|
|
|
Attention:
|
|
Xxxxxxxx Xxx and Xxxxxx
Xxxxxxxxx, Barclays Loan
Operations Singapore |
|
|
|
|
|
Dollar Swingline Agent
(all purposes):
|
|
Address:
|
|
0 Xxxxxx Xxxxxx, #00-00 Xxxxxxx
Xxx, Xxxxxxxxx 000000 |
|
|
|
|
|
|
|
Telephone:
|
|
+ 00 (0) 000 000 0000 / + 00 (0)
000 000 0000 |
|
|
|
|
|
|
|
Fax No:
|
|
+ 00 (0) 000 000 0000 / + 00 (0)
000 000 0000 |
|
|
|
|
|
|
|
Attention:
|
|
Xxxxxxxx Xxx and Xxxxxx
Xxxxxxxxx, Barclays Loan
Operations Singapore |
165
SCHEDULE 13
FORM OF CONFIDENTIALITY UNDERTAKING
[Letterhead of Existing Lender]
|
|
|
To: |
|
[insert name of Potential Lender] |
|
|
|
|
|
The Directors of BHP Billiton Plc and BHP Billiton Limited (the Companies) |
|
|
|
Re: |
|
BHP Billiton Plc/BHP Billiton Limited — US$7,500,000,000 Multicurrency Term and Revolving Facilities and Subscription
Agreement dated 18 August 2011 (the Agreement) |
Companies: BHP Billiton Plc and BHP Billiton Limited
Amount: US$7,500,000,000
Facility Agent: Barclays Bank PLC
Dear Sirs
We understand that you are considering [participating in the Facilities][entering a
sub-participation in relation to the Facilities] and we confirm that the consent of the Companies
has been obtained (or is deemed to have been obtained) or is not required under the Agreement to
your [participation/sub-participation] and that all necessary notifications under the Agreement
have been made. In consideration of us and the Companies agreeing to make available to you certain
information, by your signature of a copy of this letter you agree with us and each of the Companies
as follows:
(a) |
|
Confidentiality Undertaking |
|
|
|
You undertake: |
|
(i) |
|
to keep the Confidential Information confidential and not to
disclose it to anyone except as provided for by paragraph (b) below and to
ensure that the Confidential Information is protected with security measures
and a degree of care that would apply to your own confidential information; |
|
|
(ii) |
|
to keep confidential and not disclose to anyone except as
permitted by paragraph (b) below the fact that the Confidential Information
has been made available or that discussions or negotiations are taking place
or have taken place between us in connection with the Facilities; |
|
|
(iii) |
|
to use the Confidential Information only for the Permitted
Purpose; |
|
|
(iv) |
|
to use all reasonable endeavours to ensure that any person to
whom you pass any Confidential Information (unless disclosed under paragraph
(b)(ii) below) acknowledges and complies with the provisions of this letter as
if that person were also a party to it; and |
166
|
(v) |
|
not to make enquiries of the Target or any of its
Subsidiaries or any member of the Group or any related entity or any of their
officers, directors, employees or professional advisers relating directly or
indirectly to the Facilities, save for such officers, directors, employees or
professional advisers as may be nominated by the Companies for this purpose. |
(b) |
|
Permitted Disclosure |
|
|
|
We agree that you may disclose Confidential Information and those matters referred to
paragraph a(ii) above: |
|
(i) |
|
(A) to members of the Participant Group and their officers,
directors, employees and, with the Companies’ prior written consent, their
professional advisers, in each case to the extent necessary for the Permitted
Purpose, and (B) to any auditors of members of the Participant Group, provided
that you shall keep a register of all individuals to whom such Confidential
Information is disclosed and that the register shall be available for review
by the Companies and any other member of the Group; |
|
|
(ii) |
|
(A) where required by any court of competent jurisdiction or
any competent judicial, governmental, supervisory or regulatory body, (B)
where required by the rules of any stock exchange on which the shares or other
securities of any member of the Participant Group are listed or (C) where
required by the laws or regulations of any country with jurisdiction over the
affairs of any member of the Participant Group; or |
|
|
(iii) |
|
with the prior written consent of us and the Companies.[, |
|
|
provided that until the Closing Date, in relation to sub-paragraph (i) above, you may only
make a disclosure to a member of the Participant Group if (A) such disclosure is to a team,
division or department (a Business Unit) of that member other than any Business Unit of
that member which, for the purposes of the City Code on Takeovers and Mergers, would be
treated as being interested in securities of the Target (an Interested Business Unit) and
(B) any Business Unit to whom Confidential Information is disclosed is separated and
remains separated from any Interested Business Unit by appropriate information
barriers.]12 |
(c) |
|
Notification of Required or Unauthorised Disclosure |
|
|
|
You agree (to the extent permitted by law and except for any disclosure made under
paragraph (b)(ii) above to any competent supervisory or regulatory body during the ordinary
course of its supervisory or regulatory function) to inform us and the |
|
|
|
12 |
|
Not to be included for any Confidential Undertaking
entered into after the Closing Date. |
167
|
|
Companies prior to any disclosure under paragraph (b)(ii) (including full details of the
circumstances of that disclosure and, if applicable, the text of the disclosure) or upon
becoming aware that Confidential Information has been disclosed in breach of this letter
and to co-operate with the Group in taking steps to prevent or minimise that disclosure and
to take into account the Group’s requirements as to the timing, content and manner of
making any such disclosure, including, in any case, using reasonable efforts to obtain
assurances that confidential treatment will be accorded to any such Confidential
Information. |
(d) |
|
Return of Copies |
|
|
|
If we or the Companies so request in writing, you shall return all Confidential Information
supplied to you by us and destroy or permanently erase all copies of Confidential
Information made by you and use all reasonable endeavours to ensure that anyone to whom you
have supplied any Confidential Information destroys or permanently erases such Confidential
Information and any copies made by them, in each case save to the extent that you or the
recipients are required to retain any such Confidential Information by any applicable law
or regulation or by any competent judicial, governmental, supervisory or regulatory body or
in accordance with internal policy (provided that the provisions of paragraph (a) of this
letter shall continue to apply to such retained Confidential Information), or where the
Confidential Information has been disclosed under paragraph (b)(ii) above. |
|
(e) |
|
Continuing Obligations |
|
|
|
The obligations in this letter are continuing and, in particular, shall survive the
termination of any discussions or negotiations between you and us but [(except for the
proviso to paragraph (b) above, which shall terminate on the Closing Date)] shall terminate
if you become a party to the Agreement (and be replaced by the confidentiality provisions
contained in the Agreement). Except as set out in the previous sentence, the obligations
in this letter shall cease 12 months after you have returned all Confidential Information
supplied to you by us or any member of the Group and destroyed or permanently erased (to
the extent technically practicable) all copies of Confidential Information made by you
(other than any such Confidential Information or copies which have been disclosed under
paragraph (b) above (other than sub-paragraph (b)(i)) or which, pursuant to paragraph (d)
above, are not required to be returned or destroyed). |
|
(f) |
|
No Representation; Consequences of Breach, etc. |
|
|
|
You acknowledge and agree that: |
|
(i) |
|
neither we nor any of our officers, employees or advisers (each a Relevant
Person) (A) make any representation or warranty, express or implied, as to, or assume
any responsibility for, the accuracy, reliability or completeness of any of the
Confidential Information or any other information supplied by us or any member of the
Group or the assumptions on which it is based or (B) shall be under any obligation to
update or correct any inaccuracy in the Confidential Information or any other
information supplied by us or any member of the Group |
168
|
|
|
or be otherwise liable to you or any other person in respect to the Confidential
Information or any such information; and |
|
(ii) |
|
we or members of the Group may be irreparably harmed by the breach of the
terms of this letter and damages may not be an adequate remedy; each Relevant Person
or member of the Group may be granted an injunction or specific performance for any
threatened or actual breach of the provisions of this letter by you. |
(g) |
|
No Waiver; Amendments, etc. |
|
|
|
This letter sets out the full extent of your obligations of confidentiality owed to us in
relation to the information the subject of this letter but shall not affect any other duty
of confidentiality owed by you to any member of the Group. No failure or delay in
exercising any right, power or privilege under this letter will operate as a waiver thereof
nor will any single or partial exercise of any right, power or privilege preclude any
further exercise thereof or the exercise of any other right, power or privilege under this
letter. The terms of this letter and your obligations under this letter may only be
amended or modified by written agreement with us and the Companies. |
|
(h) |
|
Inside Information |
|
|
|
You acknowledge 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 relating to insider dealing and you undertake not to
use any Confidential Information for any unlawful purpose. |
|
(i) |
|
Nature of Undertakings |
|
|
|
The undertakings given by you under this letter are given to us and (without implying any
fiduciary obligations on our part) are also given for the benefit of the Companies and each
other member of the Group, and you and we agree that the Companies and each other member of
the Group shall be entitled to enforce such undertakings, which may not be modified or
waived without the prior written consent of the Obligors’ Agent, pursuant to the Contracts
(Rights of Third Parties) Xxx 0000. |
|
(j) |
|
Third Party Rights |
|
|
|
Subject to paragraph (i) above: |
|
(I) |
|
a person who is not a party to this letter has no right under the Contracts
(Rights of Third Parties) Xxx 0000 to enforce or enjoy a benefit of any term of this
letter; and |
|
|
(ii) |
|
this letter may be rescinded or varied without any requirement to obtain the
consent of any person who is not a party to this letter. |
(k) |
|
Governing Law and Jurisdiction |
169
|
|
This letter (including the agreement constituted by your acknowledgement of its terms)
shall be governed by and construed in accordance with the laws of England and the parties
submit to the non-exclusive jurisdiction of the English courts. |
(l) |
|
Definitions |
|
|
|
In this letter (including the acknowledgement set out below), terms defined in the
Agreement which are not otherwise defined in this letter have the same meaning when used
herein and, in addition: |
|
|
|
Acquisition means the acquisition of all or part of the Target Shares; |
|
|
|
Confidential Information means any information relating to the Companies, the Group, the
Acquisition and the Facilities including, without limitation, the Information Pack,
provided to you by us, any of our affiliates or advisers, the Companies or any other member
of the Group 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 (a) is or becomes
public knowledge other than as a direct or indirect result of any breach of this letter or
(b) is known by you before the date the information is disclosed to you by us, any of our
affiliates or advisers, the Companies or any other member of the Group or is lawfully
obtained by you after that date, other than from a source which is connected with the Group
and which, in either case, as far as you are aware, has not been obtained in violation of,
and is not otherwise subject to, any obligation of confidentiality; |
|
|
|
Group means each of the Companies and their respective Subsidiaries; |
|
|
|
Information Pack means the document prepared in relation to the Acquisition and the
Facilities as updated and/or supplemented from time to time; |
|
|
|
Participant Group means you, each of your holding companies and subsidiaries and each
subsidiary of each of your holding companies; |
|
|
|
Permitted Purpose means considering and evaluating whether to enter into the Facilities; |
|
|
|
Subsidiary means: |
|
(a) |
|
a subsidiary within the meaning of section 1159 of the Companies Xxx 0000; |
|
|
(b) |
|
any other entity of which a person has direct or indirect control or owns
directly or indirectly more than 50 per cent. of the voting capital or similar right
of ownership; or |
|
|
(c) |
|
for the purpose of determining whether a person is a Subsidiary of a Company
or the Target (as the case may be): |
170
(i) |
|
any other entity of which PLC and Limited together have
direct or indirect control or together own directly or indirectly more than 50
per cent. of the voting capital or similar right of ownership; or |
|
(ii) |
|
any other entity which is treated in the audited consolidated
financial statements of the Group or the Target group as being a subsidiary of
PLC and/or Limited or the Target (as the case may be); and |
|
|
Target Shares means the common stock of Petrohawk Energy Corporation, other than any such
common stock which is held by a member of the Target Group at that time. |
Please acknowledge your agreement to the above by signing and returning the enclosed copy.
Yours faithfully
For and on behalf of
[Existing Lender]
|
|
|
To: |
|
[Existing Lender]
The Companies and each other member of the Group |
We acknowledge and agree to the above:
For and on behalf of
[Potential Lender]
171
SCHEDULE 14
FORM OF INCREASE CONFIRMATION
|
|
|
To: |
|
[•] as Facility Agent and [•] as Obligors’ Agent, for and on behalf of each Obligor |
|
|
|
From: |
|
[the Increase Lender] (the Increase Lender) |
BHP Billiton Plc/BHP Billiton Limited — US$7,500,000,000 Multicurrency Term and Revolving
Facilities and Subscription Agreement dated 18 August 2011 (the Facilities Agreement)
1. |
|
We refer to the Facilities Agreement. This agreement (the Agreement) shall take effect as an
Increase Confirmation for the purpose of the Facilities Agreement. Terms defined in the
Facilities Agreement have the same meanings where used in this Agreement unless given a
different meaning in this Agreement. |
|
2. |
|
We refer to Clause 2.2 (Increase) of the Facilities Agreement. |
|
3. |
|
The Increase Lender agrees to assume and will assume all of the obligations corresponding to
the Commitment specified in the Schedule (the Relevant Commitment) as if it were an Original
Lender in respect of such Commitments under the Facilities Agreement. |
|
4. |
|
The proposed date on which the increase in relation to the Increase Lender and the Relevant
Commitment is to take effect (the Increase Date) is [date]. |
|
5. |
|
On the Increase Date, the Increase Lender shall (if it is not already) become party to the
relevant Finance Documents as a Lender. |
|
6. |
|
The Facility Office and address, fax number and attention details for notices to the Increase
Lender for the purposes of Clause 38.2 (Addresses) of the Facilities Agreement are set out in
the Schedule. |
|
7. |
|
The Increase Lender expressly acknowledges the limitations on the Lenders’ obligations
referred to in paragraph (f) of Clause 2.2 (Increase) of the Facilities Agreement. |
|
8. |
|
This Agreement 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 Agreement. |
|
9. |
|
This Agreement and any non-contractual obligations arising out of or in connection with it
are governed by English law. |
|
10. |
|
This Agreement has been entered into on the date stated at the beginning of this Agreement. |
172
THE SCHEDULE
Relevant Commitment/rights and obligations to be assumed by the Increase Lender
[insert relevant details]
[Facility office address, fax number and attention details for notices and account details for
payments]
[Increase Lender]
By:
This Agreement is accepted as an Increase Confirmation for the purposes of the Facilities Agreement
by the Facility Agent and the Increase Date is confirmed as [•].
Facility Agent
By:
SIGNATORIES
Original Borrowers
BHP Billiton Limited
|
|
|
|
|
|
|
By: |
|
/s/ Xxxxxx Xxxxxx |
|
By: |
|
/s/ Xxxxxxx Xxxxxxxx |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
BHP Billiton Plc |
|
|
|
|
|
|
|
|
|
|
|
By: |
|
/s/ Xxxxxx Xxxxxx |
|
By: |
|
/s/ Xxxxxxx Xxxxxxxx |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
BHP Billiton Finance Limited |
|
|
|
|
|
|
|
|
|
|
|
By: |
|
/s/ Xxxxxx Xxxxxx |
|
By: |
|
/s/ Xxxxxxx Xxxxxxxx |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
BHP Billiton Finance Plc |
|
|
|
|
|
|
|
|
|
|
|
By: |
|
/s/ Xxxxxx Xxxxxx |
|
By: |
|
/s/ Xxxxxxx Xxxxxxxx |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Obligors’ Agent |
|
|
|
|
|
|
|
|
|
|
|
BHP Billiton Finance Plc |
|
|
|
|
|
|
|
|
|
|
|
By: |
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/s/ Xxxxxx Xxxxxx |
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By: |
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/s/ Xxxxxxx Xxxxxxxx |
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Companies |
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BHP Billiton Limited |
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By: |
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/s/ Xxxxxx Xxxxxx |
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By: |
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/s/ Xxxxxxx Xxxxxxxx |
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BHP Billiton Plc |
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By: |
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/s/ Xxxxxx Xxxxxx |
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By: |
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/s/ Xxxxxxx Xxxxxxxx |
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Original Lenders
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Australia and New Zealand Banking Group Limited |
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By: |
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/s/ Xxxx Xxxxxx |
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Banco Bilbao Vizcaya Argentaria, S.A., London Branch |
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By: |
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/s/ Xxxxxxxx Xxxxxx |
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By: |
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/s/ Xxxxxx Xxxxxxxx |
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Abbey National Treasury Services Plc (Trading as Santander Global Banking & Markets) |
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By: |
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/s/ Grant Sessions |
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By: |
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/s/ Xxxxx Xxxxxx |
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The Bank of Tokyo-Mitsubishi UFJ, Ltd. |
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By: |
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/s/ Xxxxxx Xxxxxxxx |
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Barclays Bank PLC |
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By: |
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/s/ Xxxxxxx Xxxxxx |
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BNP Paribas |
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By: |
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/s/ Xxxxx Xxxxx |
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By: |
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/s/ Xxxxxx Xxxxx |
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Canadian Imperial Bank of Commerce, London Branch |
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By: |
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/s/ Xxxxxxxx Xxxxxx |
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By: |
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/s/ Xxxxxx Xxxxxxx |
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Commonwealth Bank of Australia Sydney — OBU |
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By: |
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/s/ Xxxxxxx Xxxxxxx |
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Crédit Agricole Corporate and Investment Bank |
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By: |
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/s/ Xxxxx Xxxxxxxxxxx |
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By: |
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/s/ Amaud Letrillart |
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ING Bank N.V. |
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By: |
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/s/ X. xxx Xxxxxx |
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By: |
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/s/ X. Xxxxxx |
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Intesa Sanpaolo S.p.A., London Branch |
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By: |
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/s/ Xxxx Xxxxxxx |
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By: |
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/s/ Xxx Xxxxxxx |
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JPMorgan Chase Bank, N.A. |
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By: |
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/s/ Xxxx Xxx |
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Lloyds TSB Bank plc |
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By: |
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/s/ Xxxxxx Xxxxxx |
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Mizuho Corporate Bank, Ltd. |
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By: |
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/s/ Xxxxx Xxxxxxx |
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National Australia Bank Limited, ABN 12 004 044 937 |
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By: |
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/s/ Xxx Xxxxxx |
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Scotiabank Europe plc |
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By: |
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/s/ X.X. Xxxxxx |
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Société Générale |
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By: |
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/s/ Xxxxxxxxx Xxxx |
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Standard Chartered Bank |
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By: |
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/s/ Xxxxxxx Xxxx |
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Sumitomo Mitsui Banking Corporation |
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By: |
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/s/ Xxxx Xxxxxxxx |
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By: |
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/s/ Xxxxxxxxx Xxxxxxx |
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The Royal Bank of Scotland plc |
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By: |
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/s/ Xxxx Xxxxxxxx |
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The Toronto-Dominion Bank |
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By: |
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/s/ Xxxx Xxxxx |
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UBS AG, London Branch |
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By: |
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/s/ Xxxxxx Xxxxx |
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By: |
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/s/ Xxxxxxx Xxxxx |
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UniCredit Bank AG, London Branch |
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By: |
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/s/ X.X. Xxxxxx |
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By: |
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/s/ X.X. Xxxxxxx |
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Westpac Banking Corporation acting for itself and through its Offshore Banking Unit |
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By: |
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/s/ Xxxxxxxx Xxxxxx |
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Original Dollar Swingline Lenders |
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Australia and New Zealand Banking Group Limited |
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By: |
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/s/ Xxxx Xxxxxx |
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Banco Bilbao Vizcaya Argentaria, S.A., London Branch |
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By: |
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/s/ Xxxxxxxx Xxxxxx |
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By: |
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/s/ Xxxxxx Xxxxxxxx |
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Abbey National Treasury Services Plc (Trading as Santander Global Banking & Markets) |
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By: |
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/s/ Grant Sessions |
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By: |
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/s/ Xxxxx Xxxxxx |
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The Bank of Tokyo-Mitsubishi UFJ, Ltd. |
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By: |
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/s/ Xxxxxx Xxxxxxxx |
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Barclays Bank PLC |
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By: |
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/s/ Xxxxxxx Xxxxxx |
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|
BNP Paribas |
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By: |
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/s/ Xxxxx Xxxxx |
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By: |
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/s/ Xxxxxx Xxxxx |
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CIBC Inc |
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By: |
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/s/ Xxxxxxx Xxxxxxx |
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By: |
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/s/ Xxxx Xxxxx |
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|
Commonwealth Bank of Australia — New York |
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By: |
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/s/ Xxxxxxx Xxxxxxx |
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|
Crédit Agricole Corporate and Investment Bank |
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By: |
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/s/ Xxxxx Xxxxxxxxxxx |
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By: |
|
/s/ Amaud Letrillart |
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|
ING Bank N.V. |
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By: |
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/s/ X. xxx Xxxxxx |
|
By: |
|
/s/ X. Xxxxxx |
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|
Intesa Sanpaolo S.p.A., London Branch |
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By: |
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/s/ Xxxx Xxxxxxx |
|
By: |
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/s/ Xxx Xxxxxxx |
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|
JPMorgan Chase Bank, N.A. |
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By: |
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/s/ Xxxx Xxx |
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|
Lloyds TSB Bank plc |
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By: |
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/s/ Xxxxxx Xxxxxx |
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|
Mizuho Corporate Bank, Ltd. |
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By: |
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/s/ Xxxxx Xxxxxxx |
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National Australia Bank Limited — New York Branch, ABN 12 004 044 937 |
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By: |
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/s/ Xxx Xxxxxx |
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|
Scotiabanc Inc. |
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By: |
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/s/ X.X. Xxxx |
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|
Société Générale, New York Branch |
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By: |
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/s/ Xxxxxxxxx Xxxx |
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|
Standard Chartered Bank |
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By: |
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/s/ Xxxxxxx Xxxxx |
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|
Sumitomo Mitsui Banking Corporation |
|
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|
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By: |
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/s/ Xxxx Xxxxxxxx |
|
By: |
|
/s/ Xxxxxxxxx Xxxxxxx |
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|
The Royal Bank of Scotland plc |
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By: |
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/s/ Xxxx Xxxxxxxx |
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|
Toronto Dominion (New York) LLC |
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By: |
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/s/ Xxxx Xxxxx |
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|
UBS Loan Finance LLC |
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By: |
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/s/ Xxxxxx Xxxxx |
|
By: |
|
/s/ Xxxxxxx Xxxxx |
|
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|
UniCredit Bank AG, New York Branch |
|
|
|
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By: |
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/s/ Xxxxxx Xxxxxx |
|
By: |
|
/s/ Xxxxxx Xxxx |
|
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|
Westpac Banking Corporation acting for itself and through its Offshore Banking Unit |
|
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By: |
|
/s/ Xxxxxxxx Xxxxxx |
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|
|
Original Euro Swingline Lenders |
|
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|
|
Australia and New Zealand Banking Group Limited |
|
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|
By: |
|
/s/ Xxxx Xxxxxx |
|
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|
Banco Bilbao Vizcaya Argentaria, S.A., London Branch |
|
|
|
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|
By: |
|
/s/ Xxxxxxxx Xxxxxx |
|
By: |
|
/s/ Xxxxxx Xxxxxxxx |
|
|
|
|
|
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|
|
|
|
|
|
Abbey National Treasury Services Plc (Trading as Santander Global Banking & Markets) |
|
|
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|
|
By: |
|
/s/ Grant Sessions |
|
By: |
|
/s/ Xxxxx Xxxxxx |
|
|
|
|
|
|
|
|
|
|
|
|
The Bank of Tokyo-Mitsubishi UFJ, Ltd. |
|
|
|
|
|
By: |
|
/s/ Xxxxxx Xxxxxxxx |
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|
|
|
|
|
|
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|
|
Barclays Bank PLC |
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|
By: |
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/s/ Xxxxxxx Xxxxxx |
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|
|
BNP Paribas |
|
|
|
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|
By: |
|
/s/ Xxxxx Xxxxx |
|
By: |
|
/s/ Xxxxxx Xxxxx |
|
|
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|
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|
|
Canadian Imperial Bank of Commerce, London Branch |
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|
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|
By: |
|
/s/ Xxxxxxxx Xxxxxx |
|
By: |
|
/s/ Xxxxxx Xxxxxxx |
|
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|
Commonwealth Bank of Australia — London |
|
|
|
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By: |
|
/s/ Xxxxxxx Xxxxxxx |
|
|
|
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|
|
|
|
|
|
|
|
Crédit Agricole Corporate and Investment Bank |
|
|
|
|
|
By: |
|
/s/ Xxxxx Xxxxxxxxxxx |
|
By: |
|
/s/ Amaud Letrillart |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ING Bank N.V.
|
|
|
|
|
|
By: |
|
/s/ X. xxx Xxxxxx |
|
By: |
|
/s/ X. Xxxxxx |
|
|
|
|
|
|
|
|
|
|
|
|
Intesa Sanpaolo S.p.A., London Branch |
|
|
|
|
|
By: |
|
/s/ Xxxx Xxxxxxx |
|
By: |
|
/s/ Xxx Xxxxxxx |
|
|
|
|
|
|
|
|
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|
JPMorgan Chase Bank, N.A. |
|
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|
By: |
|
/s/ Xxxx Xxx |
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|
Lloyds TSB Bank plc |
|
|
|
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|
By: |
|
/s/ Xxxxxx Xxxxxx |
|
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|
|
|
|
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|
Mizuho Corporate Bank, Ltd. |
|
|
|
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|
By: |
|
/s/ Xxxxx Xxxxxxx |
|
|
|
|
|
|
|
|
|
|
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|
National Australia Bank Limited — London Branch, ABN 12 004 044 937 |
|
|
|
|
|
By: |
|
/s/ Xxx Xxxxxx |
|
|
|
|
|
|
|
|
|
|
|
|
Scotiabank Europe plc |
|
|
|
|
|
By: |
|
/s/ X.X. Xxxxxx |
|
|
|
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|
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|
|
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|
|
Société Générale |
|
|
|
|
|
By: |
|
/s/ Xxxxxxxxx Xxxx |
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|
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|
|
Standard Chartered Bank |
|
|
|
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|
By: |
|
/s/ Xxxxxxx Xxxxx |
|
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|
|
|
|
|
|
|
Sumitomo Mitsui Banking Corporation |
|
|
|
|
|
By: |
|
/s/ Xxxx Xxxxxxxx |
|
By: |
|
/s/ Xxxxxxxxx Xxxxxxx |
|
|
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|
|
|
|
|
|
|
|
|
|
|
The Royal Bank of Scotland plc |
|
|
|
|
|
By: |
|
/s/ Xxxx Xxxxxxxx |
|
|
|
|
|
|
|
|
|
|
|
|
Toronto Dominion (New York) LLC |
|
|
|
|
|
By: |
|
/s/ Xxxx Xxxxx |
|
|
|
|
|
|
|
|
|
|
|
|
UBS AG, London Branch |
|
|
|
|
|
By: |
|
/s/ Xxxxxx Xxxxx |
|
By: |
|
/s/ Xxxxxxx Xxxxx |
|
|
|
|
|
|
|
|
|
|
|
|
UniCredit Bank AG, London Branch |
|
|
|
|
|
By: |
|
/s/ X.X. Xxxxxx |
|
By: |
|
/s/ X.X. Xxxxxxx |
|
|
|
|
|
|
|
|
|
|
|
|
Westpac Banking Corporation acting for itself and through its Offshore Banking Unit |
|
|
|
|
|
By: |
|
/s/ Xxxxxxxx Xxxxxx |
|
|
|
|
|
|
|
|
|
|
|
|
Facility Agent, Dollar Swingline Agent and Euro Swingline Agent |
|
|
|
|
|
Barclays Bank PLC |
|
|
|
|
|
By: |
|
/s/ Xxxxxxx Xxxxxx |
|
|
|
|
|
|
|
|
|
|
|
|
Mandated Lead Arrangers and Bookrunners |
|
|
|
|
|
Australia and New Zealand Banking Group Limited |
|
|
|
|
|
By: |
|
/s/ Xxxx Xxxxxx |
|
|
|
|
|
|
|
|
|
|
|
|
Banco Bilbao Vizcaya Argentaria, S.A. |
|
|
|
|
|
By: |
|
/s/ Xxxxxxxx Xxxxxx |
|
By: |
|
/s/ Xxxxxx Xxxxxxxx |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Abbey National Treasury Services Plc (Trading as Santander Global Banking & Markets) |
|
|
|
|
|
By: |
|
/s/ Grant Sessions |
|
By: |
|
/s/ Xxxxx Xxxxxx |
|
|
|
|
|
|
|
|
|
|
|
|
The Bank of Tokyo-Mitsubishi UFJ, Ltd. |
|
|
|
|
|
By: |
|
/s/ Xxxxxx Xxxxxxxx |
|
|
|
|
|
|
|
|
|
|
|
|
Barclays Capital (the investment banking division of Barclays Bank PLC) |
|
|
|
|
|
By: |
|
/s/ Xxxxxxx Xxxxxx |
|
|
|
|
|
|
|
|
|
|
|
|
BNP Paribas |
|
|
|
|
|
By: |
|
/s/ Xxxxx Xxxxx |
|
By: |
|
/s/ Xxxxxx Xxxxx |
|
|
|
|
|
|
|
|
|
|
|
|
Canadian Imperial Bank of Commerce, London Branch |
|
|
|
|
|
By: |
|
/s/ Xxxxxxxx Xxxxxx |
|
By: |
|
/s/ Xxxxxx Xxxxxxx |
|
|
|
|
|
|
|
|
|
|
|
|
Commonwealth Bank of Australia Sydney — OBU |
|
|
|
|
|
By: |
|
/s/ Xxxxxxx Xxxxxxx |
|
|
|
|
|
|
|
|
|
|
|
|
Crédit Agricole Corporate and Investment Bank |
|
|
|
|
|
By: |
|
/s/ Xxxxx Xxxxxxxxxxx |
|
By: |
|
/s/ Amaud Letrillart |
|
|
|
|
|
|
|
|
|
|
|
|
ING Bank N.V. |
|
|
|
|
|
By: |
|
/s/ X. xxx Xxxxxx |
|
By: |
|
/s/ X. Xxxxxx |
|
|
|
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Intesa Sanpaolo S.p.A., London Branch |
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/s/ Xxxx Xxxxxxx |
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By: |
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/s/ Xxx Xxxxxxx |
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X.X. Xxxxxx Limited |
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/s/ Xxxx Xxx |
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Lloyds TSB Bank plc |
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/s/ Xxxxxx Xxxxxx |
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Mizuho Corporate Bank, Ltd. |
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/s/ Xxxxx Xxxxxxx |
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National Australia Bank Limited, ABN 12 004 044 937 |
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/s/ Xxx Xxxxxx |
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Scotiabank Europe plc |
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/s/ X.X. Xxxxxx |
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Société Générale |
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/s/ Xxxxxxxxx Xxxx |
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Standard Chartered Bank |
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/s/ Xxxxxxx Xxxxx |
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Sumitomo Mitsui Banking Corporation |
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By: |
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/s/ Xxxx Xxxxxxxx |
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By: |
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/s/ Xxxxxxxxx Xxxxxxx |
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The Royal Bank of Scotland plc |
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/s/ Xxxxxxxx Xxxxxxxx |
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The Toronto-Dominion Bank |
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By: |
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/s/ Xxxx Xxxxx |
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UBS Limited |
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By: |
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/s/ Xxxxxx Xxxxx |
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By: |
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/s/ Xxxxxxx Xxxxx |
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UniCredit Bank AG, London Branch |
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By: |
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/s/ X.X. Xxxxxx |
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By: |
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/s/ X.X. Xxxxxxx |
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Westpac Banking Corporation acting for itself and through its Offshore Banking Unit |
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By: |
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/s/ Xxxxxxxx Xxxxxx |
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509056645 |