SYNDICATION AGREEMENT DATED 17 SEPTEMBER 2010 US$45,000,000,000 MULTICURRENCY TERM AND REVOLVING FACILITY AND SUBSCRIPTION AGREEMENT DATED (as amended by an amendment letter dated 13 September 2010) for BHP BILLITON PLC and BHP BILLITON LIMITED as the...
Exhibit (b)(iv)
CONFORMED COPY
DATED 17 SEPTEMBER 2010
US$45,000,000,000
MULTICURRENCY TERM AND REVOLVING FACILITY
AND SUBSCRIPTION AGREEMENT
DATED
18 AUGUST 2010
(as amended by an amendment letter dated 13 September 2010)
for
BHP BILLITON PLC and BHP BILLITON LIMITED
as the Companies
with
BARCLAYS BANK PLC
acting as Facility Agent
BARCLAYS BANK PLC
acting as Dollar Swingline Agent
BARCLAYS BANK PLC
acting as Euro Swingline Agent
and
BANCO SANTANDER, S.A.
BARCLAYS CAPITAL
BNP PARIBAS
X.X. XXXXXX PLC
TD SECURITIES
THE ROYAL BANK OF SCOTLAND PLC
as Mandated Lead Arrangers and Bookrunners
Xxxxx & Overy LLP
CONTENTS
| Page | ||||
| Clause | ||||
| 1. |
Interpretation | 1 | ||
| 2. |
Joining in of New Lenders | 1 | ||
| 3. |
Information Package | 3 | ||
| 4. |
Nature of this Agreement | 3 | ||
| 5. |
Syndication Date | 3 | ||
| 6. |
Governing Law | 3 | ||
| Schedule | ||||
| 1. |
Lenders and Commitments | 4 | ||
| 2. |
New Lender Bookrunners and Tax Status | 7 | ||
| Signatories | 10 | |||
THIS AGREEMENT is dated 17 September 2010 and is made between:
| (1) | 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); |
| (2) | BANCO SANTANDER, S.A., BARCLAYS CAPITAL, BNP PARIBAS, X.X. XXXXXX PLC, TD SECURITIES and THE ROYAL BANK OF SCOTLAND PLC as mandated lead arrangers and bookrunners (the Bookrunners); |
| (3) | THE FINANCIAL INSTITUTIONS listed in the signatory pages to this Agreement under the heading “Existing Lenders” (the Existing Lenders); |
| (4) | THE FINANCIAL INSTITUTIONS listed in the signatory pages to this Agreement under the heading “New Lenders” (the New Lenders); |
| (5) | BARCLAYS BANK PLC as facility agent for the other Finance Parties (the Facility Agent); and |
| (6) | BHP BILLITON FINANCE PLC as obligors’ agent (the Obligors’ Agent). |
IT IS AGREED as follows:
| 1. | INTERPRETATION |
| 1.1 | Definitions |
In this Agreement:
Effective Date means the date of this Agreement.
Facilities Agreement means the US$45,000,000,000 multicurrency term and revolving facility and subscription agreement dated 18 August 2010 (as amended by an amendment letter dated 13 September 2010) between, among others, the Companies, the Mandated Lead Arrangers and the Facility Agent.
| 1.2 | Construction |
| (a) | Capitalised terms defined in the Facilities Agreement have, unless expressly defined in this Agreement, the same meaning in this Agreement. |
| (b) | The provisions of clause 1.2 (Construction) of the Facilities Agreement apply to this Agreement as though they were set out in full in this Agreement, except that references in that clause to the Facilities Agreement are to be construed as references to this Agreement. |
| 2. | JOINING IN OF NEW LENDERS |
| 2.1 | Novation |
| (a) | On the Effective Date (regardless of whether a Default is outstanding): |
| (i) | each New Lender will become a Lender under the Facilities Agreement with the Commitments set opposite its name in Schedule 1 (Lenders and Commitments); |
| (ii) | the Commitments of each Existing Lender will be reduced to the amounts set opposite its name in Schedule 1 (Lenders and Commitments); and |
1
| (iii) | each New Lender obtains and undertakes to perform all of the rights and obligations of a Lender in connection with the Finance Documents in respect of the rights and obligations transferred to it under this Clause 2.1. |
| (b) | The transfer of Commitments and rights and obligations contemplated by this Agreement will take effect as a novation and the terms of the Facilities Agreement will apply to the Commitments, rights and obligations transferred as if this Agreement were a Transfer Certificate. |
| 2.2 | Bookrunner status |
Each party to this Agreement agrees that each New Lender listed in Schedule 2 (New Lender Bookrunners and Tax Status) may utilise the title of “bookrunner” in connection with the Facilities for marketing and league table purposes. For the avoidance of doubt such New Lenders will not be Bookrunners under and as defined in the Finance Documents.
| 2.3 | Amounts due on or before the Effective Date |
Any amounts payable to an Existing Lender by any Obligor on or prior to the Effective Date will be for the account of that Existing Lender, and no New Lender will have any interest in, or any rights in respect of, those amounts.
| 2.4 | Limitations |
Each New Lender expressly acknowledges the confirmation and limitations on the Existing Lenders’ obligations set out in paragraph (b) of clause 31.5 (Limitation of responsibility of Existing Lenders) of the Facilities Agreement.
| 2.5 | Target Shareholding Disclosure Certificates |
Each Existing Lender and each New Lender confirms that it has delivered to the Obligors’ Agent, at least one Business Day prior to the Effective Date, a duly completed Target Shareholding Disclosure Certificate dated as of a date no earlier than five Business Days prior to the Effective Date.
| 2.6 | Obligors’ Agent consent |
The Obligors’ Agent hereby:
| (a) | for the purposes of clause 31.2 (Conditions of assignment or transfer) of the Facilities Agreement, provides its prior written consent to the transfers set out in this Agreement; and | |||
| (b) | (i) | waives the requirement under clause 31.8 (Target Shareholding Disclosure Certificate) of the Facilities Agreement for the New Lenders to deliver to it a duly completed Target Shareholding Disclosure Certificate at least five Business Days prior to entering into this Agreement; and | ||
| (ii) | consents to each Existing Lender and each New Lender delivering, and acknowledges receipt from each Existing Lender and each New Lender of, a duly completed Target Shareholding Disclosure Certificate pursuant to Clause 2.5 (Target Shareholding Disclosure Certificates). | |||
| 2.7 | Tax status |
Each New Lender confirms that the tax status and (if relevant) DT Passport Scheme details set out opposite its name in Schedule 2 (New Lender Bookrunners and Tax Status) are correct and, for UK
2
Non-Bank Lenders only, if the word “confirmed” is set out in the fourth column opposite such New Lender’s name, that New Lender also confirms that the person beneficially entitled to interest payable to that New Lender in respect of an advance under a Finance Document is either:
| (a) | a company resident in the United Kingdom for United Kingdom tax purposes; or |
| (b) | a partnership each member of which is: |
| (i) | a company so resident in the United Kingdom; or |
| (ii) | a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the CTA) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the CTA; or |
| (c) | a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the CTA) of that company. |
| 2.8 | Contact details |
Each New Lender confirms that it has delivered to the Facility Agent its initial contact details for the purposes of the Facilities Agreement.
| 2.9 | Transfer fee |
The Facility Agent confirms that no transfer fees are payable to it under the Facilities Agreement in respect of any transaction contemplated by this Agreement.
| 3. | INFORMATION PACKAGE |
On the Syndication Date, each of the Companies makes the representation and warranty set out in clause 25.7 (No misleading information) of the Facilities Agreement.
| 4. | NATURE OF THIS AGREEMENT |
The Facility Agent and the Obligors’ Agent designate this Agreement as a Finance Document.
| 5. | SYNDICATION DATE |
The Bookrunners confirm to the Companies and the Facility Agent the occurrence of the Syndication Date on the Effective Date.
| 6. | GOVERNING LAW |
This Agreement and any non-contractual obligations arising out of or in connection with it are governed by English law.
This Agreement has been entered into on the date stated at the beginning of this Agreement.
3
SCHEDULE 1
LENDERS AND COMMITMENTS
| Name of Lender |
Facility A Commitment (US$) |
Facility B Commitment (US$) |
Revolving Facility B Commitment (US$) |
Revolving Facility C Commitment (US$) |
Dollar Swingline Commitment (US$) |
Euro Swingline Commitment (euro equivalent of US$ amount set out below) | ||||||
| Banco Santander, S.A., London Branch |
1,000,000,000 | 400,000,000 | 200,000,000 | 200,000,000 | 120,000,000 | 120,000,000 | ||||||
| Barclays Bank PLC |
1,000,000,000 | 400,000,000 | 200,000,000 | 200,000,000 | 120,000,000 | 120,000,000 | ||||||
| BNP Paribas |
1,000,000,000 | 400,000,000 | 200,000,000 | 200,000,000 | 120,000,000 | 120,000,000 | ||||||
| JPMorgan Chase Bank, N.A. |
1,000,000,000 | 400,000,000 | 200,000,000 | 200,000,000 | 120,000,000 | 120,000,000 | ||||||
| The Royal Bank of Scotland plc |
1,000,000,000 | 400,000,000 | 200,000,000 | 200,000,000 | 120,000,000 | 120,000,000 | ||||||
| The Toronto-Dominion Bank |
1,000,000,000 | 400,000,000 | 200,000,000 | 200,000,000 | 120,000,000 | |||||||
| Toronto Dominion (New York) LLC |
120,000,000 | |||||||||||
| Australia and New Zealand Banking Group Limited |
1,000,000,000 | 400,000,000 | 200,000,000 | 200,000,000 | 120,000,000 | 120,000,000 | ||||||
| Banco Bilbao Vizcaya Argentaria, S.A., London Branch |
1,000,000,000 | 400,000,000 | 200,000,000 | 200,000,000 | 120,000,000 | 120,000,000 | ||||||
| The Bank of Tokyo-Mitsubishi UFJ, Ltd. |
1,000,000,000 | 400,000,000 | 200,000,000 | 200,000,000 | 120,000,000 | 120,000,000 | ||||||
| Canadian Imperial Bank of Commerce, London Branch |
1,000,000,000 | 400,000,000 | 200,000,000 | 200,000,000 | 120,000,000 | |||||||
| CIBC Inc. |
120,000,000 |
| 4 |
| Name of Lender |
Facility A Commitment (US$) |
Facility B Commitment (US$) |
Revolving Facility B Commitment (US$) |
Revolving Facility C Commitment (US$) |
Dollar Swingline Commitment (US$) |
Euro Swingline Commitment (euro equivalent of US$ amount set out below) | ||||||
| Commonwealth Bank of Australia |
1,000,000,000 | 400,000,000 | 200,000,000 | 200,000,000 | 120,000,000 | |||||||
| Commonwealth Bank of Australia, NY Branch |
120,000,000 | |||||||||||
| Crédit Agricole Corporate and Investment Bank |
1,000,000,000 | 400,000,000 | 200,000,000 | 200,000,000 | 120,000,000 | 120,000,000 | ||||||
| ING Bank N.V. |
1,000,000,000 | 400,000,000 | 200,000,000 | 200,000,000 | 120,000,000 | 120,000,000 | ||||||
| Intesa Sanpaolo S.p.A., London Branch |
1,000,000,000 | 400,000,000 | 200,000,000 | 200,000,000 | 120,000,000 | 120,000,000 | ||||||
| Lloyds TSB Bank plc |
1,000,000,000 | 400,000,000 | 200,000,000 | 200,000,000 | 120,000,000 | 120,000,000 | ||||||
| Mediobanca International (Luxembourg) S.A. |
1,000,000,000 | 400,000,000 | 200,000,000 | 200,000,000 | 120,000,000 | 120,000,000 | ||||||
| Mizuho Corporate Bank, Ltd |
1,000,000,000 | 400,000,000 | 200,000,000 | 200,000,000 | 120,000,000 | 120,000,000 | ||||||
| National Australia Bank Limited |
1,000,000,000 | 400,000,000 | 200,000,000 | 200,000,000 | 120,000,000 | |||||||
| National Australia Bank Limited New York Branch |
120,000,000 | |||||||||||
| Société Générale, acting through its London Branch |
1,000,000,000 | 400,000,000 | 200,000,000 | 200,000,000 | 120,000,000 | |||||||
| Société Générale, NY Branch |
120,000,000 | |||||||||||
| Standard Chartered Bank |
1,000,000,000 | 400,000,000 | 200,000,000 | 200,000,000 | 120,000,000 | 120,000,000 | ||||||
| Sumitomo Mitsui Banking Corporation |
1,000,000,000 | 400,000,000 | 200,000,000 | 200,000,000 | 120,000,000 | 120,000,000 | ||||||
| The Bank of Nova Scotia |
1,000,000,000 | 400,000,000 | 200,000,000 | 200,000,000 | 120,000,000 | 120,000,000 |
| 5 |
| Name of Lender |
Facility A Commitment (US$) |
Facility B Commitment (US$) |
Revolving Facility B Commitment (US$) |
Revolving Facility C Commitment (US$) |
Dollar Swingline Commitment (US$) |
Euro Swingline Commitment (euro equivalent of US$ amount set out below) | ||||||
| UBS AG, London Branch |
1,000,000,000 | 400,000,000 | 200,000,000 | 200,000,000 | 120,000,000 | |||||||
| UBS Loan Finance LLC |
120,000,000 | |||||||||||
| UniCredit Bank AG, London Branch |
1,000,000,000 | 400,000,000 | 200,000,000 | 200,000,000 | 120,000,000 | |||||||
| UniCredit Bank AG, New York Branch |
120,000,000 | |||||||||||
| Westpac Banking Corporation (for itself and acting through its Offshore Banking Unit) |
1,000,000,000 | 400,000,000 | 200,000,000 | 200,000,000 | 120,000,000 | 120,000,000 | ||||||
| TOTALS |
25,000,000,000 | 10,000,000,000 | 5,000,000,000 | 5,000,000,000 | 3,000,000,000 | 3,000,000,000 | ||||||
| 6 |
SCHEDULE 2
NEW LENDER BOOKRUNNERS AND TAX STATUS
| New Lender | Tax status:
• UK Lender (other than a UK Non Bank Lender or a UK Treaty Lender)
• UK Treaty Lender
• UK Non Bank Lender |
DT Passport Scheme reference number and rate of with-holding tax (if applicable) |
Confirmation under Clause 2.7 (Tax Status) of this Agreement | |||
| Australia and New Zealand Banking Group Limited (ABN 11 005 357 522) |
UK Lender (other than a UK Non Bank Lender or a UK Treaty Lender) in relation to Loans (other than Dollar Swingline Loans); and | Not applicable | Not applicable | |||
| UK Treaty Lender in relation to Dollar Swingline Loans |
Not applicable |
Not applicable | ||||
| Banco Bilbao Vizcaya Argentaria, S.A., London Branch |
UK Lender (other than a UK Non Bank Lender or a UK Treaty Lender) | Not applicable | Confirmed | |||
| The Bank of Tokyo-Mitsubishi UFJ, Ltd. |
UK Lender (other than a UK Non Bank Lender or a UK Treaty Lender) | None | Confirmed | |||
| Canadian Imperial Bank of Commerce, London Branch |
UK Lender (other than a UK Non Bank Lender or a UK Treaty Lender) | Not applicable | Confirmed | |||
| CIBC Inc. |
UK Treaty Lender | Not applicable | Not applicable | |||
| Commonwealth Bank of Australia |
UK Treaty Lender (in relation to loans other than Euro Swingline Loans) and UK Lender (other than a UK Non Bank Lender or a UK Treaty Lender) in relation to Euro Swingline Loans | Not applicable
Full exemption from UK with-holding tax |
Not applicable | |||
| Commonwealth Bank of Australia, NY Branch |
UK Treaty Lender | Not applicable
Full exemption from UK with-holding tax |
Not applicable | |||
7
| Crédit Agricole Corporate and Investment Bank |
UK Treaty Lender | None | Confirmed | |||
| ING Bank N.V. |
UK Treaty Lender | None | Not applicable | |||
| Intesa Sanpaolo S.p.A., London Branch |
UK Lender (other than a UK Non Bank Lender or a UK Treaty Lender) | Not applicable | Confirmed | |||
| Lloyds TSB Bank plc |
UK Lender (other than a UK Non Bank Lender or a UK Treaty Lender) | Not applicable | Not applicable | |||
| Mediobanca International (Luxembourg) S.A. |
UK Treaty Lender | Not applicable | Not applicable | |||
| Mizuho Corporate Bank, Ltd |
UK Lender (other than a UK Non Bank Lender or a UK Treaty Lender) | Not applicable | Confirmed | |||
| National Australia Bank Limited |
UK Treaty Lender | 002/N/11208/DTTP
0% with-holding tax |
Not applicable | |||
| National Australia Bank Limited New York Branch |
UK Treaty Lender | Not applicable | Not applicable | |||
| Société Générale, acting through its London Branch |
UK Lender (other than a UK Non Bank Lender or a UK Treaty Lender) | Not applicable | Not applicable | |||
| Société Générale, NY Branch |
UK Treaty Lender | Application in progress. Reference number to be advised
Nil withholding tax |
Not applicable | |||
| Standard Chartered Bank |
UK Lender (other than a UK Non Bank Lender or a UK Treaty Lender) | Not applicable | Confirmed | |||
| Sumitomo Mitsui Banking Corporation |
UK Treaty Lender | Not applicable | Not applicable | |||
| The Bank of Nova Scotia |
UK Treaty Lender | None | Confirmed | |||
8
| Toronto Dominion (New York) LLC |
UK Treaty Lender | Application in progress. Reference number to be advised
Full exemption from UK withholding tax |
Not applicable | |||
| UBS AG, London Branch |
UK Lender (other than a UK Non Bank Lender or a UK Treaty Lender) | Not applicable | Confirmed | |||
| UBS Loan Finance LLC |
UK Treaty Lender | None | Not applicable | |||
| UniCredit Bank AG, London Branch |
UK Lender (other than a UK Non Bank Lender or a UK Treaty Lender) | Not applicable | Confirmed | |||
| UniCredit Bank AG, New York Branch |
UK Treaty Lender | Not applicable | Not applicable | |||
| Westpac Banking Corporation (for itself and acting through its Offshore Banking Unit) |
UK Treaty Lender | Not applicable | Not applicable | |||
9
SIGNATORIES
Companies
By: XXXXXXXX XXXXX XXXXXX XXXXXX
BHP BILLITON LIMITED
By: XXXXXXXX XXXXX XXXXXX XXXXXX
Obligors’ Agent
BHP BILLITON FINANCE PLC
By: XXXXXXXX XXXXX XXXXXX XXXXXX
Facility Agent
BARCLAYS BANK PLC
By: XXXXX XXXXXXXX / DIRECTOR
10
Bookrunners
BANCO SANTANDER, S.A.
By: X. XXXXXX XXXXXX XXXXXX
BARCLAYS CAPITAL
By: XXXXX XXXXXXXX / DIRECTOR
BNP PARIBAS
By: XXXX XXXXXX XXXXXXXX XXXXXXX
X.X. XXXXXX PLC
By: XXXXXXXX XXX/EXECUTIVE DIRECTOR
TD SECURITIES
By: XXXX XXXXXX
THE ROYAL BANK OF SCOTLAND PLC
By: XXXX XXXXXXXX
11
Existing Lenders
BANCO SANTANDER, S.A., LONDON BRANCH
By: X. XXXXXX XXXXXX XXXXXX
BARCLAYS BANK PLC
By: XXXXX XXXXXXXX / DIRECTOR
BNP PARIBAS
By: XXXX XXXXXX XXXXXXXX XXXXXXX
JPMORGAN CHASE BANK, N.A.
By: XXXXXXXX XXX/EXECUTIVE DIRECTOR
THE ROYAL BANK OF SCOTLAND PLC
By: XXXX XXXXXXXX
THE TORONTO-DOMINION BANK
By: XXXX XXXXXX
12
New Lenders
AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED
By: XXXX XXXXX
BANCO BILBAO VIZCAYA ARGENTARIA, S.A., LONDON BRANCH
By: XXXXX XXXX/SYNDICATED LOANS
XXXXXXXX XXXXXX/SYNDICATED LOANS
THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.
By: XXXXXX XXXXXXXX/EXECUTIVE VICE-PRESIDENT
CANADIAN IMPERIAL BANK OF COMMERCE, LONDON BRANCH
By: XXXXXXXX XXXXXX/EXECUTIVE DIRECTOR
CIBC INC.
By: XXXXX XXXXXXXXX
COMMONWEALTH BANK OF AUSTRALIA
By: XXXXX XXXXXX
00
XXXXXXXXXXXX XXXX XX XXXXXXXXX, XX BRANCH
By: XXXXX XXXXXX
CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK
By: XXXXXXX (XXXX) XXXX/MANAGING DIRECTOR CLIENT COVERAGE
XXXX XXXXXX/AUTHORISED SIGNATORY
ING BANK N.V.
By: XXXX XXX XXXXXX/XXXX XXXXXX
INTESA SANPAOLO S.P.A., LONDON BRANCH
By: L F WYBRANTEC/DEPUTY GENERAL MANAGER
XXXXXXXXXXX XXXXX/SENIOR RELATIONSHIP MANAGER
LLOYDS TSB BANK PLC
By: XXXXXX XXXXXX
MEDIOBANCA INTERNATIONAL (LUXEMBOURG) S.A.
By: XXXXXXXX XXXXX/EXECUTIVE DIRECTOR
MIZUHO CORPORATE BANK, LTD
By: XXXXX XXXXXXX
14
NATIONAL AUSTRALIA BANK LIMITED
By: XXXXXXX XXXXXXXX
NATIONAL AUSTRALIA BANK LIMITED NEW YORK BRANCH
By: XXXXXXX XXXXXXXX
THE BANK OF NOVA SCOTIA
By: X X XXXXXX
SOCIÉTÉ GÉNÉRALE, ACTING THROUGH ITS LONDON BRANCH
By: XXXXX XXXXXXXXX DUCHOLET
SOCIÉTÉ GÉNÉRALE, NY BRANCH
By: XXXXX XXXXXXXXX DUCHOLET
STANDARD CHARTERED BANK
By: XXXXXXX XXXXX XXXXXXXX XXXXXXX
SUMITOMO MITSUI BANKING CORPORATION
By: XXXX XXXXXXXX/ASSISTANT GENERAL MANAGER
15
TORONTO DOMINION (NEW YORK) LLC
By: XXXXX X XXXXX
UBS AG, LONDON BRANCH
By: XXXXX XXXXXX/MANAGING DIRECTOR LEVERAGED FINANCE
XXXXXXX XXXXX/EXECUTIVE DIRECTOR
UBS LOAN FINANCE LLC
By: XXXXX XXXXXX/MANAGING DIRECTOR LEVERAGED FINANCE
XXXXXXX XXXXX/EXECUTIVE DIRECTOR
UNICREDIT BANK AG, LONDON BRANCH
By: XXXXX XXXXX XXXXXXX XXXXXXXX
UNICREDIT BANK AG, NEW YORK BRANCH
By: XXXXXX XXXXXX/DIRECTOR
XXXXXX XXXX/DIRECTOR
WESTPAC BANKING CORPORATION
By: XXXXXXXX XXXXXX/DIRECTOR, LARGE CORPORATES WESTPAC INSTITUTIONAL
BANK TIER THREE ATTORNEY
16
