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Common use of Called Sums Clause in Contracts

Called Sums. (a) The Manager may at any time send a notice (a Call Notice) to the Owners requiring them to contribute funds in accordance with item 2 of the Funding and Distribution Policy in proportion to their respective Participating Shares to meet XX Xxxx Costs that the Manager estimates are to be paid during the period to which the Call Notice relates (each a Called Sum). (b) A Call Notice must specify: (i) the amount (and currency of the amount if in a currency other than Australian dollars) of the Called Sums in respect of each Owner; (ii) a reconciliation of the amount of the Called Sums to the then current Business Plan and Budget (including a reconciliation to any undrawn Called Sums in the previous months); (iii) a reconciliation of the amount of the Called Sums to the current cash on hand balance; (iv) that part of the Called Sums for an Owner that relates to working capital requirements and that part of the Called Sums for an Owner that relates to capital expenditure requirements; (v) the amount of the Called Sums for an Owner to be paid to each Issuer and/or the Manager; (vi) which entity or entities the funds are to be lent or contributed to; (vii) relevant banking details for the transfer of funds; and (viii) an estimate of the Called Sums that are likely to be called by the Manager in the subsequent month. (c) The Manager must issue a monthly notice (Monthly Cash Requirements Notice) on or before the 10th day of each month specifying: (i) an indicative estimate of the total amount of funds that the Manager will require for the following month; (ii) the dates during that month on which Called Sums will be payable (Called Sum Payment Dates), which dates must be at intervals of no less than one week; and (iii) an indicative estimate of the amount of funds the Manager will require on each of the Called Sum Payment Dates. (d) The Manager must issue Call Notices at least 1 Business Day prior to each Called Sum Payment Date specifying the actual amount of funds that the Manager requires to be paid on that date. (e) The Manager may also issue Call Notices at any other time with respect to any additional funds required during the period to which a Call Notice issued under paragraph (d) relates. (f) The Owners’ Council may from time to time resolve to make such alterations to the arrangements described in paragraphs (b), (c), (d) and (e) as the Owners’ Council considers appropriate. (g) Subject to paragraph (i) and paragraph (o), each Owner must pay the Called Sums by way of loans or equity contributions to the Issuers or the Manager in the proportions specified in the Call Notice to an account or accounts nominated by the Manager: (i) in the case of a Call Notice referred to in paragraph (d), on the relevant Called Sum Payment Dates and in the amounts specified in the Call Notice; and (ii) in the case of a Call Notice referred to in paragraph (e), within 10 days of the date of the Call Notice. Such loans or equity contributions will be transferred to bank accounts established in the name of an Issuer, accounts established in the name of the Manager acting as the agent of an Issuer, or accounts established in the name of the Manager as appropriate (JV Bank Accounts). The amount of any Called Sum will be payable by way of loan or equity contribution in Australian dollars unless any XX Xxxx Costs are incurred in another currency and the Call Notice requires the relevant part of the Called Sum to be paid in that other currency. (h) The Manager must ensure that the funds transferred to the JV Bank Accounts pursuant to paragraph (g) are on the same day placed on deposit in equal shares with the Owners or their Designated Finance Companies, by transferring the funds to bank accounts nominated by the Owners (Owners Bank Accounts). As funds are required by the Manager, the Manager must provide a request for the funds on 24 hours notice to the Owners and the Owners must transfer, or procure that their Designated Finance Companies transfer, the funds to the JV Bank Accounts nominated by the Manager. (i) If a JV Entity or the Manager has incurred a Substantial Liability as a result of a third party claim, other than a liability to which clauses 13 or 15 of the Implementation Agreement applies, then the Owners’ Council may determine whether or not to cease funding that JV Entity or the Manager. If at an Owners’ Council meeting the Owners cannot reach an agreement on whether or not to cease funding such JV Entity or the Manager, then the Owners’ Council will be deemed to have determined not to fund that JV Entity or the Manager. (j) Unless the Funding and Distribution Policy requires that all or part of any funding be by way of equity, or paragraph (o) applies, Called Sums paid by an Owner by way of loan to an Issuer or the Manager will be treated as Participant Loans on the terms set out in the Funding and Distribution Policy. Where equity funding is required, it will be on the terms agreed by the Owners pursuant to the Funding and Distribution Policy. (k) Where payment of a Called Sum is made by way of loan or equity contribution to an account in the name of the Manager, the funds in that account must be held by the Manager for or on behalf of that Issuer for the purpose of being expended in accordance with this Agreement. (l) The Owners acknowledge that the WA Iron Ore JV is intended to operate on a minimum cash balance. Unless otherwise approved by the Owners’ Council, or paragraph (o) applies the WA Iron Ore JV will be funded entirely by way of loans or equity contributions from the Owners as contemplated by this clause 3.11 and not by way of third party debt. For these purposes third party debt: (i) includes any project financing of a JV Entity, trade debt, working capital facility and long term lease of heavy mobile equipment * * *; (ii) does not include: (A) ordinary course debt such as purchases on credit terms and capital leases for activities that are incidental to JV Operations such as leases of office equipment and motor vehicles and short term leases of heavy mobile equipment; or (B) indebtedness in respect of an indemnity, guarantee or similar undertaking issued by a bank or other provider of financial accommodation, which relates to JV Operations. For the avoidance of doubt, this paragraph (i) does not preclude project financing by an Owner in compliance with clause 11. (m) The amount of any Called Sum properly called by the Manager in accordance with this Agreement constitutes a funding obligation due and payable to the Issuers or the Manager (as applicable) by the Owners (in proportion to their Participating Shares) and will be enforceable by the Manager, or by the Issuers directly if the Manager does not take action, in accordance with this Agreement. (n) Any amounts payable under a contract for the supply of goods or services between a JV Entity and an Affiliate of an Owner (other than under a Transaction Document) will be excluded in determining XX Xxxx Costs and JV Accounting Costs and any such amounts must be borne by the Owner concerned unless the contract has been approved by the Owners’ Council (whether or not the contract was entered into prior to the JV Commencement Date). (o) The Owners acknowledge that funds may also be contributed by way of indemnity pursuant to item 2.19 of the Funding and Distribution Policy, and references in this Agreement to Called Sums include amounts called under the indemnity arrangements in item 2.19. * * * Pursuant to a request for confidential treatment filed with the Securities and Exchange Commission, confidential portions of this exhibit have been omitted and filed separately with the Securities and Exchange Commission

Appears in 2 contracts

Samples: Implementation Agreement (BHP Billiton PLC), Implementation Agreement (BHP Billiton PLC)

Called Sums. (a) The Manager may at any time send a notice (a Call Notice) to the Owners requiring them to contribute funds in accordance with item 2 of the Funding and Distribution Policy in proportion to their respective Participating Shares to meet XX Xxxx Costs that the Manager estimates are to be paid during the period to which the Call Notice relates (each a Called Sum). (b) A Call Notice must specify: (i) the amount (and currency of the amount if in a currency other than Australian dollars) of the Called Sums in respect of each Owner; (ii) a reconciliation of the amount of the Called Sums to the then current Business Plan and Budget (including a reconciliation to any undrawn Called Sums in the previous months); (iii) a reconciliation of the amount of the Called Sums to the current cash on hand balance;; West Australian Iron Ore Production Joint Venture Agreement (iv) that part of the Called Sums for an Owner that relates to working capital requirements and that part of the Called Sums for an Owner that relates to capital expenditure requirements; (v) the amount of the Called Sums for an Owner to be paid to each Issuer and/or the Manager; (vi) which entity or entities the funds are to be lent or contributed to; (vii) relevant banking details for the transfer of funds; and (viii) an estimate of the Called Sums that are likely to be called by the Manager in the subsequent month. (c) The Manager must issue a monthly notice (Monthly Cash Requirements Notice) on or before the 10th day of each month specifying: (i) an indicative estimate of the total amount of funds that the Manager will require for the following month; (ii) the dates during that month on which Called Sums will be payable (Called Sum Payment Dates), which dates must be at intervals of no less than one week; and (iii) an indicative estimate of the amount of funds the Manager will require on each of the Called Sum Payment Dates. (d) The Manager must issue Call Notices at least 1 Business Day prior to each Called Sum Payment Date specifying the actual amount of funds that the Manager requires to be paid on that date. (e) The Manager may also issue Call Notices at any other time with respect to any additional funds required during the period to which a Call Notice issued under paragraph (d) relates. (f) The Owners’ Council may from time to time resolve to make such alterations to the arrangements described in paragraphs (b), (c), (d) and (e) as the Owners’ Council considers appropriate. (g) Subject to paragraph (i) and paragraph (o), each Owner must pay the Called Sums by way of loans or equity contributions to the Issuers or the Manager in the proportions specified in the Call Notice to an account or accounts nominated by the Manager: (i) in the case of a Call Notice referred to in paragraph (d), on the relevant Called Sum Payment Dates and in the amounts specified in the Call Notice; and (ii) in the case of a Call Notice referred to in paragraph (e), within 10 days of the date of the Call Notice. Such loans or equity contributions will be transferred to bank accounts established in the name of an Issuer, accounts established in the name of the Manager acting as the agent of an Issuer, or accounts established in the name of the Manager as appropriate (JV Bank Accounts). The amount of any Called Sum will be payable by way of loan or equity contribution in Australian dollars unless any XX Xxxx Costs are incurred in another currency and the Call Notice requires the relevant part of the Called Sum to be paid in that other currency.. West Australian Iron Ore Production Joint Venture Agreement * * * Pursuant to a request for confidential treatment filed with the Securities and Exchange Commission, confidential portions of this exhibit have been omitted and filed separately with the Securities and Exchange Commission (h) The Manager must ensure that the funds transferred to the JV Bank Accounts pursuant to paragraph (g) are on the same day placed on deposit in equal shares with the Owners or their Designated Finance Companies, by transferring the funds to bank accounts nominated by the Owners (Owners Bank Accounts). As funds are required by the Manager, the Manager must provide a request for the funds on 24 hours notice to the Owners and the Owners must transfer, or procure that their Designated Finance Companies transfer, the funds to the JV Bank Accounts nominated by the Manager. (i) If a JV Entity or the Manager has incurred a Substantial Liability as a result of a third party claim, other than a liability to which clauses 13 or 15 of the Implementation Agreement applies, then the Owners’ Council may determine whether or not to cease funding that JV Entity or the Manager. If at an Owners’ Council meeting the Owners cannot reach an agreement on whether or not to cease funding such JV Entity or the Manager, then the Owners’ Council will be deemed to have determined not to fund that JV Entity or the Manager. (j) Unless the Funding and Distribution Policy requires that all or part of any funding be by way of equity, or paragraph (o) applies, Called Sums paid by an Owner by way of loan to an Issuer or the Manager will be treated as Participant Loans on the terms set out in the Funding and Distribution Policy. Where equity funding is required, it will be on the terms agreed by the Owners pursuant to the Funding and Distribution Policy. (k) Where payment of a Called Sum is made by way of loan or equity contribution to an account in the name of the Manager, the funds in that account must be held by the Manager for or on behalf of that Issuer for the purpose of being expended in accordance with this Agreement. (l) The Owners acknowledge that the WA Iron Ore JV is intended to operate on a minimum cash balance. Unless otherwise approved by the Owners’ Council, or paragraph (o) applies the WA Iron Ore JV will be funded entirely by way of loans or equity contributions from the Owners as contemplated by this clause 3.11 and not by way of third party debt. For these purposes third party debt: (i) includes any project financing of a JV Entity, trade debt, working capital facility and long term lease of heavy mobile equipment * * *; (ii) does not include: (A) ordinary course debt such as purchases on credit terms and capital leases for activities that are incidental to JV Operations such as leases of office equipment and motor vehicles and short term leases of heavy mobile equipment; or (B) indebtedness in respect of an indemnity, guarantee or similar undertaking issued by a bank or other provider of financial accommodation, which relates to JV Operations. For the avoidance of doubt, this paragraph (i) does not preclude project financing by an Owner in compliance with clause 11.. West Australian Iron Ore Production Joint Venture Agreement (m) The amount of any Called Sum properly called by the Manager in accordance with this Agreement constitutes a funding obligation due and payable to the Issuers or the Manager (as applicable) by the Owners (in proportion to their Participating Shares) and will be enforceable by the Manager, or by the Issuers directly if the Manager does not take action, in accordance with this Agreement. (n) Any amounts payable under a contract for the supply of goods or services between a JV Entity and an Affiliate of an Owner (other than under a Transaction Document) will be excluded in determining XX Xxxx Costs and JV Accounting Costs and any such amounts must be borne by the Owner concerned unless the contract has been approved by the Owners’ Council (whether or not the contract was entered into prior to the JV Commencement Date). (o) The Owners acknowledge that funds may also be contributed by way of indemnity pursuant to item 2.19 of the Funding and Distribution Policy, and references in this Agreement to Called Sums include amounts called under the indemnity arrangements in item 2.19. * * * Pursuant to a request for confidential treatment filed with the Securities and Exchange Commission, confidential portions of this exhibit have been omitted and filed separately with the Securities and Exchange Commission.

Appears in 2 contracts

Samples: Implementation Agreement (Rio Tinto LTD), Implementation Agreement (Rio Tinto LTD)