EXHIBIT 9
CONFORMED COPY
MULTICURRENCY LOAN FACILITY AND SUBSCRIPTION AGREEMENT
$1,400,000,000
FACILITY AND SUBSCRIPTION AGREEMENT
dated 28 May 2004
for
XSTRATA (SCHWEIZ) AG
arranged by
BARCLAYS CAPITAL
BNP PARIBAS SA
DEUTSCHE BANK AG LONDON
DRESDNER KLEINWORT XXXXXXXXXXX
HSBC BANK PLC
X.X. XXXXXX PLC
THE ROYAL BANK OF SCOTLAND PLC
with
BARCLAYS CAPITAL
acting as Bookrunner
and
BARCLAYS BANK PLC
acting as Facility Agent
LINKLATERS
CONTENTS
CLAUSE PAGE
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SECTION 1
INTERPRETATION
1. Definitions and interpretation.................................. 1
SECTION 2
THE FACILITIES
2. The Facilities.................................................. 18
3. Purpose......................................................... 19
4. Conditions of Utilisation....................................... 19
SECTION 3
UTILISATION
5. Utilisation..................................................... 22
6. Notes........................................................... 23
7. Optional Currencies............................................. 25
SECTION 4
REDUCTION, REPAYMENT, PREPAYMENT AND CANCELLATION
8. Repayment and reduction of Loans................................ 27
9. Prepayment and cancellation..................................... 27
SECTION 5
COSTS OF UTILISATION
10. Interest........................................................ 32
11. Interest Periods................................................ 33
12. Changes to the calculation of interest.......................... 34
13. Fees............................................................ 35
SECTION 6
ADDITIONAL PAYMENT OBLIGATIONS
14. Tax gross up and indemnities.................................... 37
15. Increased costs................................................. 39
16. Other indemnities............................................... 40
17. Mitigation by the lenders....................................... 42
18. Costs and expenses.............................................. 42
SECTION 7
GUARANTEE
19. Guarantee and Indemnity......................................... 43
SECTION 8
REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT
20. Representations................................................. 46
21. Information Undertakings........................................ 50
22. Financial Covenants............................................. 52
23. General Undertakings............................................ 53
24. Events of Default............................................... 60
SECTION 9
CHANGES TO PARTIES
25. Changes to the Lenders.......................................... 64
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26. Changes to the Obligors......................................... 67
SECTION 10
THE FINANCE PARTIES
27. Role of the Facility Agent, Bookrunner and the Mandated Lead
Arrangers.................................................... 70
28. Conduct of Business by the Finance Parties...................... 75
29. Sharing among the Finance Parties............................... 75
SECTION 11
ADMINISTRATION
30. Payment Mechanics............................................... 78
31. Set-Off......................................................... 80
32. Notices......................................................... 80
33. Calculations and Certificates................................... 82
34. Partial Invalidity.............................................. 82
35. Remedies and Waivers............................................ 82
36. Amendments and Waivers.......................................... 83
37. Counterparts.................................................... 83
SECTION 12
GOVERNING LAW AND ENFORCEMENT
38. Governing Law................................................... 84
39. Enforcement..................................................... 84
40. Executive Proceedings........................................... 84
THE SCHEDULES
SCHEDULE PAGE
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SCHEDULE 1 The Original Parties.......................................... 86
SCHEDULE 2 Requests...................................................... 92
SCHEDULE 3 Mandatory Cost formulae....................................... 95
SCHEDULE 4 Form of Transfer Certificate.................................. 98
SCHEDULE 5 Form of Accession Letter...................................... 100
SCHEDULE 6 Form of Compliance Certificate................................ 101
SCHEDULE 7 Timetables.................................................... 103
SCHEDULE 8 Form of Note Deed Poll........................................ 104
SCHEDULE 9 Form of Resignation Letter.................................... 108
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THIS AGREEMENT (the "AGREEMENT") is dated 28 May 2004 and made between:
(1) XSTRATA (SCHWEIZ) AG (the "COMPANY");
(2) XSTRATA PLC (the "PARENT");
(3) THE SUBSIDIARIES of the Company listed in Part I of Schedule 1 as original
borrowers (together with the Company, the "ORIGINAL BORROWERS");
(4) THE SUBSIDIARIES of the Company listed in Part I of Schedule 1 as original
guarantors (together with the Company and the Parent, the "ORIGINAL
GUARANTORS");
(5) BARCLAYS CAPITAL acting as bookrunner (the "BOOKRUNNER");
(6) BARCLAYS CAPITAL, BNP PARIBAS SA, DEUTSCHE BANK AG LONDON, DRESDNER
KLEINWORT XXXXXXXXXXX, HSBC BANK PLC, X.X. XXXXXX PLC AND THE ROYAL BANK OF
SCOTLAND PLC (whether acting individually or together the "MANDATED LEAD
ARRANGERS");
(7) THE FINANCIAL INSTITUTIONS listed in Part II of Schedule 1 as lenders (the
"ORIGINAL LENDERS"); and
(8) BARCLAYS BANK PLC as agent of the other Finance Parties (the "FACILITY
AGENT").
IT IS AGREED as follows:
SECTION 1
INTERPRETATION
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Agreement:
"ACCELERATION DATE" means the date (if any) on which the Facility Agent
gives a notice under Clause 24.16 (Acceleration).
"ACCESSION LETTER" means a document substantially in the form set out in
Schedule 5 (Form of Accession Letter).
"ACCOUNTING HALF-YEAR" means each period of approximately 26 weeks ending
on 30 June and 31 December in any financial year of the Company.
"ADDITIONAL BORROWER" means a company which becomes an Additional Borrower
in accordance with Clause 26 (Changes to the Obligors).
"ADDITIONAL COST RATE" has the meaning given to it in Schedule 3 (Mandatory
Cost Formulae).
"ADDITIONAL GUARANTOR" means a company which becomes an Additional
Guarantor in accordance with Clause 26 (Changes to the Obligors).
"ADDITIONAL OBLIGOR" means an Additional Borrower or an Additional
Guarantor.
"AFFILIATE" means, in relation to any person, a Subsidiary of that person
or a Holding Company of that person or any other Subsidiary of that Holding
Company.
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"APPLICABLE ACCOUNTING PRINCIPLES" means:
(a) in relation to the Original Financial Statements, UK GAAP;
(b) in relation to the Parent, UK GAAP; and
(c) in relation to any other member of the Group, GAAP.
"ASSOCIATE" has the meaning given to it in Section 128F (9) of the
Australian Tax Act.
"AUSTRALIAN BORROWER" means Xstrata Coal Australia Pty Limited and any
other Additional Borrower which is incorporated in Australia.
"AUSTRALIAN DOLLARS" or "AUS$" means the lawful currency for the time being
of Australia.
"AUSTRALIAN LOAN" means a loan by way of issuance of Notes under Facility A
to an Australian Borrower.
"AUSTRALIAN TAX ACT" means as the context requires, the Income Tax
Assessment Xxx 0000 and/or the Income Tax Assessment Xxx 0000 and, to the
extent applicable, the Taxation Administration Xxx 0000, each of the
Commonwealth of Australia.
"AUTHORISATION" means:
(a) an authorisation, consent, approval, resolution, licence, exemption,
filing, notarisation or registration; or
(b) in relation to anything which will be fully or partly prohibited or
restricted by law if a governmental authority or entity intervenes or
acts in any way within a specified period after lodgement, filing,
registration or notification, the expiry of that period without
intervention or action.
"AVAILABILITY PERIOD" means:
(a) in relation to Facility A, the period from and including the date of
this Agreement to and including the date which is 30 days prior to the
Termination Date applicable to Facility A; and
(b) in relation to Facility B, the period from and including the date of
this Agreement to and including the earlier of:
(i) the date which is 30 days prior to the original Termination Date
of Facility B; or
(ii) the Term Out Date.
"AVAILABLE COMMITMENT" means, in relation to a Facility, a Lender's
Commitment under that Facility minus:
(a) the Base Currency Amount of its participation in any outstanding Loans
under that Facility; and
(b) in relation to any proposed Loan, the Base Currency Amount of its
participation in any Loans that are due to be made under that Facility
on or before the proposed Utilisation Date,
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other than that Lender's participation in any Loans (other than Term Loans)
that are due to be repaid or prepaid on or before the proposed Utilisation
Date.
"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.
"BANK" means a person which in accordance with the explanatory Note No.
S-02.128(1.2000), in conjunction with Note No. S-02.123 dated 22 September
1986, of the Swiss Federal Tax Administration is in the place at and from
which it performs or will perform its obligations and exercises its rights
hereunder and in the place of the office in which it books the relevant
Loan:
(a) qualified as a bank pursuant to the laws of the relevant jurisdiction;
and
(b) carries on a genuine banking activity.
"BASE CURRENCY" or "$" means United States dollars.
"BASE CURRENCY AMOUNT" means, in relation to a Loan, the amount specified
in the Utilisation Request delivered by a Borrower 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.
"BORROWER" means an Original Borrower or an Additional Borrower.
"BREAK COSTS" means the amount (if any) by which:
(a) the interest 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;
exceeds:
(b) 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.
"BUSINESS DAY" means a day (other than a Saturday or Sunday) on which banks
are open for general business in London and:
(a) (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;
(b) (in relation to any date for payment or purchase of euro) any TARGET
Day; or
(c) (in relation to the Utilisation Date for any Australian Loan) Sydney.
"COMMITMENT" means a Facility A Commitment or a Facility B Commitment.
"COMPLIANCE CERTIFICATE" means a certificate substantially in the form set
out in Schedule 6 (Form of Compliance Certificate).
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"CONFIDENTIALITY UNDERTAKING" means a confidentiality undertaking
substantially in the current recommended form of the Loan Market
Association or in any other form agreed between the Company and the
Facility Agent.
"CONSOLIDATED BORROWINGS" means, as at any particular time, the aggregate
outstanding principal, capital or nominal amount (and any fixed or minimum
premium payable on prepayment or redemption) of the Indebtedness for
Borrowed Money of members of the Group (other than in respect of Non
Recourse Project Finance Debt).
For this purpose, any amount outstanding or repayable in a currency other
than US dollars shall on that day be taken into account in its US dollar
equivalent at the rate of exchange used for the purpose of preparing the
relevant balance sheet.
"CONSOLIDATED NET WORTH" means, at any time, the aggregate of the amounts
paid up or credited as paid up on the issued share capital of the Parent
(other than any redeemable shares) and the aggregate amount of the reserves
of the Group including:
(a) share capital;
(b) capital reserves; and
(c) retained earnings,
less (but without double counting) any amount included in the above which
is attributable to:
(i) goodwill or other intangible assets acquired after the date of
the Original Financial Statements;
(ii) Non Recourse Project Companies; and
(iii) (to the extent included) any amounts arising from an upward
revaluation of assets made at any time after the date to which
the Original Financial Statements are made up unless such
revaluation is performed by independent professional valuers or
in accordance with UK GAAP,
but ignoring any variation in the credit or debit balances on the Group
consolidated profit and loss account since the date of the then latest
audited consolidated balance sheet of the Group except to the extent
reflected in any later Group consolidated profit and loss statement
delivered to the Facility Agent under Clause 21 (Information Undertakings).
"DEFAULT" means an Event of Default or any event or circumstance specified
in Clause 24 (Events of Default), which would (with the lapse of time, the
giving of notice, the making of any determination under the Finance
Documents or any combination of any of the foregoing) be an Event of
Default.
"EBITDA" means, in relation to any Relevant Period, the total consolidated
operating profit of the Group (other than Non Recourse Project Companies)
for that Relevant Period:
(a) before taking into account:
(i) goodwill amortisation;
(ii) Interest Expense;
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(iii) Tax;
(iv) all extraordinary and exceptional items;
(b) after adding back all amounts provided for depreciation and
amortisation;
(c) before any adjustment for amounts (negative or positive) included in
the above which are attributable to minority interests in any member
of the Group.
"ENVIRONMENT" means living organisms including the ecological systems of
which they form part and the following media:
(a) air (including air within natural or man-made structures, whether
above or below ground);
(b) water (including territorial, coastal and inland waters, water under
or within land and water in drains and sewers); and
(c) land (including land under water).
"ENVIRONMENTAL LAW" means all laws and regulations of any relevant
jurisdiction which:
(a) have as a purpose or effect the protection of, and/or prevention of
harm or damage to, the Environment;
(b) provide remedies or compensation for harm or damage to the
Environment; or
(c) relate to Hazardous Substances or health and safety matters.
"ENVIRONMENTAL LICENCE" means any Authorisation required at any time under
Environmental Law.
"ENVIRONMENTAL POLICY" means the environmental policy of the Group in the
Agreed Form.
"EURIBOR" means, in relation to any Loan in euro:
(a) the applicable Screen Rate; or
(b) (if no Screen Rate is available for the Interest Period of that Loan)
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,
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.
"EVENT OF DEFAULT" means any event or circumstance specified as such in
Clause 24 (Events of Default).
"EXISTING FACILITY AGREEMENT" means the $2,270,000,000 facility and
subscription agreement dated 6 June 2003 between the Company, the Parent,
and the Borrowers and Guarantors named in it and the Facility Agent, the
Mandated Lead Arrangers and the Lenders named in it.
"FACILITY" means Facility A or Facility B.
"FACILITY A" means the revolving credit facility made available under this
Agreement as described in paragraph (a) of Clause 2.1 (The Facilities).
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"FACILITY A COMMITMENT" means:
(a) in relation to an Original Lender, the amount in the Base Currency set
opposite its name under the heading "Facility A Commitment" in Part II
of Schedule 1 (The Original Lenders) and the amount of any other
Facility A Commitment transferred to it under this Agreement; and
(b) in relation to any other Lender, the amount in the Base Currency of
any Facility A Commitment transferred to it under this Agreement,
to the extent not cancelled, reduced or transferred by it under this
Agreement.
"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 A LOAN" means a loan made or to be made under Facility A
(including an Australian Loan) or the principal amount outstanding for the
time being of that loan.
"FACILITY B" means the revolving 364 day loan facility made available under
this Agreement as described in paragraph (b) of Clause 2.1 (The
Facilities).
"FACILITY B COMMITMENT" means:
(a) in relation to an Original Lender, the amount in the Base Currency set
opposite its name under the heading "Facility B Commitment" in Part II
of Schedule 1 (The Original Lenders) and the amount of any other
Facility B Commitment transferred to it under this Agreement; and
(b) in relation to any other Lender, the amount in the Base Currency of
any Facility B Commitment transferred to it under this Agreement,
to the extent not cancelled, reduced or transferred by it under this
Agreement.
"FACILITY B LOAN" means a loan made or to be made under Facility B or the
principal amount outstanding for the time being of that loan including
after the Term Out Date, any Term Loans.
"FACILITY B REPAYMENT DATE" means the Termination Date applicable to
Facility B.
"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.
"FEE LETTER" means any letters dated prior to or on or about the date of
this Agreement between, as the case may be, the Mandated Lead Arrangers,
the Facility Agent and the Company setting out any of the fees referred to
in Clause 13 (Fees).
"FINANCE DOCUMENT" means this Agreement, any Fee Letter, any Accession
Letter, any Confidentiality Undertaking, any Note Deed Poll, any Note and
any other document designated as such by the Facility Agent and the
Company.
"FINANCE PARTY" means the Facility Agent, the Mandated Lead Arrangers or a
Lender.
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"FINANCIAL INDEBTEDNESS" means any indebtedness for or in respect of:
(a) moneys borrowed;
(b) any amount raised by acceptance under any acceptance credit facility
or any amount raised under any xxxx facility;
(c) any amount raised pursuant to any note purchase facility or the issue
of bonds, notes, debentures, loan stock or any similar instrument;
(d) the amount of any liability in respect of any lease or hire purchase
contract which would, in accordance with GAAP (in the jurisdiction in
which such liability is incurred), be treated as a finance or capital
lease;
(e) receivables sold or discounted (other than any receivables to the
extent they are sold on a non-recourse basis);
(f) any amount raised under any other transaction (including any forward
sale or purchase agreement) having the commercial effect of a
borrowing;
(g) any derivative transaction entered into in connection with protection
against or benefit from fluctuation in any rate or price (and, when
calculating the value of any derivative transaction, only the marked
to market value shall be taken into account);
(h) shares which are expressed to be redeemable on or prior to the
Facility A Termination Date;
(i) any counter-indemnity obligation in respect of a guarantee, indemnity,
bond, standby or documentary letter of credit or any other instrument
issued by a bank or financial institution; and
(j) the amount of any liability in respect of any guarantee or indemnity
for any of the items referred to in paragraphs (a) to (i) above.
"GAAP" means, in relation to any member of the Group, generally accepted
accounting principles, standards and practices in the jurisdiction of
incorporation of that member of the Group.
"GOVERNMENT AGENCY" means any government, or any governmental,
semi-governmental or judicial entity or authority, including any
self-regulating authority established under any statute.
"GROUP" means the Parent and its Subsidiaries for the time being.
"GROUP STRUCTURE CHART" means the corporate structure chart for the Group.
"GUARANTOR" means an Original Guarantor or an Additional Guarantor.
"HAZARDOUS SUBSTANCE" means any waste, pollutant, contaminant or other
substance (including any liquid, solid, gas, ion, living organism or noise)
that may be harmful to human health or other life or the Environment or a
nuisance to any person or that may make the use or ownership of any
affected land or property more costly.
"HOLDING COMPANY" means, in relation to a company or corporation, any other
company or corporation in respect of which it is a Subsidiary.
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"INDEBTEDNESS FOR BORROWED MONEY" means Financial Indebtedness save for any
indebtedness referred to in paragraphs (g) and (i) and (to the extent it
relates to indebtedness of a member of the Group referred to in paragraph
(g) or (i)) (j) of the definition of "Financial Indebtedness".
"INFORMATION MEMORANDUM" means the document (including any supplement
thereto) in the form approved by the Company concerning the Group, which at
the Company's request and on its behalf, was prepared in relation to the
Finance Documents and distributed by the Mandated Lead Arrangers to
selected financial institutions.
"INTEREST EXPENSE" means, in relation to any Relevant Period, the aggregate
amount of interest and amounts in the nature of interest, or having a
similar purpose or effect to interest, which in accordance with UK GAAP
would be included in the consolidated profit and loss statement as having
been paid or incurred (but excluding amounts incurred in respect of Non
Recourse Project Finance Debt), and calculated on a gross basis without
taking into account any interest income of any member of the Group and
includes, but is not limited to:
(a) any dividend payable on any share the obligations in respect of which
constitute Financial Indebtedness;
(b) any discount on any bills of exchange or bonds, note or other
instruments drawn, accepted or endorsed by any member of the Group;
(c) any line, facility, commitment, acceptance, discount, guarantee or
other fees and amounts incurred on a regular or recurring basis
payable in relation to Financial Indebtedness but not including
establishment or arrangement fees payable once only; and
(d) finance lease charges (but excluding finance lease charges relating to
principal and excluding amounts incurred in respect of Non Recourse
Project Finance Debt).
"INTEREST PERIOD" means, in relation to a Loan, each period determined in
accordance with Clause 11 (Interest Periods) and, in relation to an Unpaid
Sum, each period determined in accordance with Clause 10.3 (Default
interest).
"JOINT VENTURE" means any joint venture entity, whether a company,
unincorporated firm, undertaking, joint venture, association, partnership
or any other entity, the ownership of or other interest in which does not
require the holder to consolidate the results of the Joint Venture with its
own as a Subsidiary.
"LENDER" means:
(a) any Original Lender; and
(b) any bank or financial institution which has become a Lender in
accordance with Clause 25 (Changes to the Lenders),
which in each case has not ceased to be a Lender in accordance with this
Agreement.
"LIBOR" means, in relation to any Loan:
(a) the applicable Screen Rate; or
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(b) (if no Screen Rate is available for the currency or Interest Period of
that Loan) 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 and for a period comparable to the Interest
Period for that Loan.
"LOAN" means a Facility A Loan or a Facility B Loan.
"MAJORITY LENDERS" means a Lender or Lenders whose Available Commitments
and participations in the Loans then outstanding aggregate more than 66 2/3
per cent. of the Available Facility and all the Loans then outstanding.
"MANDATORY COST" means the percentage rate per annum calculated by the
Facility Agent in accordance with Schedule 3 (Mandatory Cost Formulae).
"MARGIN" means:
(a) in relation to Facility A, 0.50 per cent. per annum; and
(b) in relation to Facility B, 0.40 per cent. per annum.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on:
(a) the consolidated financial condition, prospects or business of the
Group;
(b) the ability of any Obligor to perform or comply with any of its
obligations under any Finance Document; or
(c) the validity, legality or enforceability of any Finance Document.
"MATERIAL SUBSIDIARY" means at any time a Subsidiary of the Parent whose
total assets or total revenue as at the date at which its latest audited
financial statements were prepared or, as the case may be, for the
financial period to which those financial statements relate, account for 5
per cent. or more of the Total Assets or Total Revenue of the Group
(calculated by reference to the then latest audited consolidated financial
statements of the Group).
For this purpose:
(a) the total assets of a Subsidiary of the Parent will be determined from
its latest financial statements;
(b) the Total Assets will be determined from the latest audited
consolidated accounts of the Parent adjusted (where appropriate) to
reflect the total assets of any company or business subsequently
acquired or disposed of;
(c) if a Material Subsidiary disposes of all or substantially all of its
assets to another Subsidiary of the Parent it will immediately cease
to be a Material Subsidiary and the other Subsidiary (if it is not
already) will immediately become a Material Subsidiary.
If there is a dispute as to whether or not a company is a Material
Subsidiary, a certificate of the auditors of the Parent will be, in the
absence of manifest error, conclusive.
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"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.
"MTN SECURITIES" means the AUS$83,000,000 floating rate notes due February
2005 issued by Xstrata Queensland Limited (formerly M.I.M. Holdings
Limited) and governed by a deed of terms and conditions dated 21 January
2002 and the related term sheet issued in connection with that deed.
"NON-BANK" means a person which is not a Bank.
"NON RECOURSE PROJECT COMPANY" means a Project Company all of whose
Financial Indebtedness is Non Recourse Project Finance Debt.
"NON RECOURSE PROJECT FINANCE DEBT" means Financial Indebtedness of a
Project Company falling within subparagraph (a) of the definition of
Project Finance Debt.
"NOTE" means the rights of a Lender under the Note Deed Poll, title to
which is recorded in and evidenced by an inscription in the Register.
"NOTE DEED POLL" means each deed poll executed by an Australian Borrower
substantially in the form of Schedule 8 (Form of Note Deed Poll).
"OBLIGOR" means a Borrower or a Guarantor.
"OPTIONAL CURRENCY" means a currency (other than the Base 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 the Group for the financial year ended 31 December 2003.
"ORIGINAL OBLIGOR" means an Original Borrower or an Original Guarantor.
"PARTICIPATING MEMBER STATE" means any member state of the European
Communities that adopts or has adopted the euro as its lawful currency in
accordance with legislation of the European Community relating to Economic
and Monetary Union.
"PARTY" means a party to this Agreement.
"PERMITTED INDEMNITIES" means counter-indemnities in relation to
guarantees, letters of credit and performance bonds in the ordinary course
of business up to in aggregate 5 per cent. of Total Assets.
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"PRIVATE PLACEMENTS" means:
(a) the $64,000,000 6.79% Series B Guaranteed Senior Unsecured Notes due 3
December 2005 issued by Mount ISA Finance N.V. and guaranteed by
Xstrata Queensland Limited (formerly M.I.M. Holdings Limited);
(b) the $80,000,000 7.33% Senior Unsecured Notes due 3 December 2006
issued by Xstrata Queensland Limited (formerly M.I.M. Holdings
Limited);
(c) the $150,000,000 8.50% Series A Senior Notes due 25 June 2008 issued
by Xstrata Queensland Limited (formerly M.I.M. Holdings Limited);
(d) the $50,000,000 8.63% Series B Senior Notes due 25 June 2011 issued by
Xstrata Queensland Limited (formerly M.I.M. Holdings Limited); and
(e) the $50,000,000 8.72% Series C Senior Notes due 25 June 2011 issued by
Xstrata Queensland Limited (formerly M.I.M. Holdings Limited).
"PROJECT COMPANY" means each of the following:
(a) any member of the Group (which is not an Obligor) designated by the
Company in writing to the Facility Agent (specifying whether or not
such company is a Non Recourse Project Company) for the purpose of
this paragraph (a) (a "DESIGNATED COMPANY") and whose sole activity is
or will be the ownership and development and/or operation of a project
including without limitation:
(i) the discovery, mining, extraction, transportation or development
(in each case whether directly or indirectly) of metals or
minerals; or
(ii) 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
(b) any member of the Group otherwise accepted by the Majority Lenders as
a Project Company,
provided that the Company may give written notice to the Facility Agent at
any time that any Project Company is no longer a Project Company whereupon
it shall cease to be a Project Company.
"PROJECT FINANCE DEBT" means Financial Indebtedness of Project Companies
either:
(a) none of which retains the benefit of any guarantee, bond, security
(other than third party security over shares in or debts or other
obligations of a Project Company solely to secure that Financial
Indebtedness), indemnity or other commitment from another member of
the Group to assure the repayment of, or indemnify against loss in
respect of non-payment of, that Financial Indebtedness; or
(b) some or all of which does so benefit but where the relevant 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.
"QUOTATION DAY" means, in relation to any period for which an interest rate
is to be determined:
(a) (if the currency is euro) two TARGET Days before the first day of that
period; or
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(b) (for any other currency) two 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).
"REFERENCE BANKS" means, in relation to EURIBOR, LIBOR and Mandatory Cost,
the principal offices of Barclays Bank PLC, Deutsche Bank AG London,
Dresdner Bank Luxembourg S.A. and X.X. Xxxxxx Xxxxx Bank or such other
banks as may be appointed by the Facility Agent in consultation with the
Company.
"REGISTER" means a register of Notes to be maintained by the Facility Agent
for each Australian Borrower in accordance with Clause 6.3 (Register).
"RELEVANT INTERBANK MARKET" means, in relation to euro, the European
interbank market and, in relation to any other currency, the London
interbank market.
"RELEVANT PERIOD" means
(a) each financial year of the Company; and
(b) each period beginning on the first day of the second half of a
financial year of the Company and ending on the last day of the first
half of its next financial year.
"REPEATING REPRESENTATIONS" means each of the representations set out in
Clause 20 (Representations) other than Clause 20.5 (Validity and
admissibility in evidence), Clause 20.6 (Governing law and enforcement),
Clause 20.7 (No capital duty, filing or stamp taxes), Clause 20.8 (No
default), Clause 20.9 (Information Memorandum), Clause 20.12 (No
proceedings pending or threatened), Clause 20.14 (Environmental Laws and
Licences) and Clause 20.15 (Environmental releases).
"RESERVATIONS" means the principle that equitable remedies are remedies
which may be granted or refused at the discretion of the court and that
certain rights may be subject to equitable defences or relief or the
general supervisory powers and discretions of the court, the limitation of
enforcement by laws relating to bankruptcy, insolvency, liquidation,
reorganisation, court schemes, moratoria, administration and other laws
generally affecting the rights of creditors, or by the requirement for any
third party consent, authorisation or approval, the time barring of claims,
the possibility that an undertaking to assume liability for or to indemnify
against non-payment of certain stamp, registration or other Taxes or
liability for an award or order for costs or the cost of unsuccessful
litigation may be void or unenforceable, defences of set-off or
counterclaim and similar principles, rights and defences under the laws of
any foreign jurisdictions in which relevant obligations may have to be
performed and the possibility that in certain jurisdictions a contractual
provision held to contravene public policy in those jurisdictions may be
unenforceable in those jurisdictions.
"RESIGNATION LETTER" means the letter substantially in the form set out in
Schedule 9 (Form of Resignation Letter).
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"ROLLOVER LOAN" means one or more Loans (other than Term Loans):
(a) made or to be made on the same day that one or more maturing Loans
under the same Facility is or are due to be repaid;
(b) the aggregate amount of which is equal to or less than the maturing
Loan(s) (unless it is more than the maturing Loan(s) solely because it
arose as a result of the operation of Clause 7.2 (Unavailability of a
currency));
(c) in the same currency as the maturing Loan(s) (unless it arose as a
result of the operation of Clause 7.2 (Unavailability of a currency));
and
(d) made or to be made to the same Borrower for the purpose of refinancing
the maturing Loan(s).
"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 Telerate 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 Company and the Lenders.
"SECURITY" means a mortgage, charge, pledge, lien or other security
interest securing any obligation of any person or any other agreement or
arrangement having a similar effect.
"SELECTION NOTICE" means a notice substantially in the form set out in Part
II of Schedule 2 (Requests) given in accordance with Clause 11 (Interest
Periods) in relation to Term Loans under Facility B.
"SPANISH BORROWER" means a Borrower incorporated in Spain.
"SPANISH GUARANTOR" means a Guarantor incorporated in Spain.
"SPANISH PUBLIC DOCUMENT" means escritura publica or a poliza or efecto
intervenido por fedatario publico.
"SPECIFIED TIME" means a time determined in accordance with Schedule 7
(Timetables).
"SUBSIDIARY" means in relation to any company or corporation (a "HOLDING
COMPANY"), a company or corporation:
(a) which is controlled, directly or indirectly, by the holding company;
(b) more than half the issued share capital of which is beneficially
owned, directly or indirectly, by the holding company; or
(c) which is a Subsidiary of another Subsidiary of the holding company,
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and, for this purpose, a company or corporation shall be treated as being
controlled by another if that other company or corporation is able to
determine the composition of the majority of its board of directors or
equivalent body.
"SWISS ANTICIPATORY TAX" means any withholding tax on the payment of
interest and dividends (including constructive dividends) in accordance
with the Swiss Federal Statute on Anticipatory Tax of 13 October 1965 (as
amended from time to time).
"SWISS BORROWER" means a Borrower incorporated, or for tax purposes
resident, in Switzerland.
"SWISS GUARANTOR" means a Guarantor incorporated, or for tax purposes
resident, in Switzerland.
"SWISS OBLIGOR" means a Swiss Borrower or a Swiss Guarantor.
"TARGET" means Trans-European Automated Real-time Gross Settlement Express
Transfer payment system.
"TARGET DAY" means any day on which TARGET is open for the settlement of
payments in euro.
"TAX" means any tax, levy, impost, duty (including but not limited to,
stamp duty) or other charge or withholding of a similar nature (including
any penalty or interest payable in connection with any failure to pay or
any delay in paying any of the same).
"TAXES ACT" means the Income and Corporation Taxes Xxx 0000.
"TERMINATION DATE" means:
(a) in relation to Facility A, the date which is 60 months after the date
of this Agreement; and
(b) in relation to Facility B, subject to Clause 8.2 (Term Out Option),
the date which is 364 days from the date of this Agreement,
(except that, if the Termination Date applicable to a facility would
otherwise fall on a day which is not a Business Day, it will instead be the
immediately preceding Business Day).
"TERM LOANS" means the Facility B Loans converted to a term loan pursuant
to the Term Out Option or the principal amount outstanding for the time
being of that Loan.
"TERM OUT DATE" means the date which is 3 Business Days after the date on
which the Borrower gives a notice exercising the Term Out Option.
"TERM OUT NOTICE" means a notice substantially in the form set out in Part
III of Schedule 2 (Form of Term Out Notice).
"TERM OUT OPTION" means the term out option in Clause 8.2 (Term Out
Option).
"TOTAL ASSETS" means, at any time, consolidated total assets of the Group.
"TOTAL CAPITALISATION" means at any time, the aggregate of Consolidated
Borrowings and Consolidated Net Worth.
"TOTAL COMMITMENTS" means the aggregate of the Total Facility A Commitments
and the Total Facility B Commitments being $1,400,000,000 at the date of
this Agreement.
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"TOTAL FACILITY A COMMITMENTS" means the aggregate of Facility A
Commitments, being $1,000,000,000 at the date of this Agreement.
"TOTAL FACILITY B COMMITMENTS" means the aggregate of Facility B
Commitments, being $400,000,000 at the date of this Agreement.
"TOTAL REVENUE" means, for any period, consolidated total revenue of the
Group as disclosed in the financial statements of the Group for that
period.
"TRANSFER CERTIFICATE" means a certificate substantially in the form set
out in Schedule 4 (Form of Transfer Certificate) or any other form agreed
between the Facility Agent and the Company.
"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.
"UNPAID SUM" means any sum due and payable but unpaid by an Obligor under
the Finance Documents.
"UTILISATION" means a Loan.
"UTILISATION DATE" means the date on which a Utilisation is, or is to be,
made.
"UTILISATION REQUEST" means a notice substantially in the form set out in
Part I of Schedule 2 (Requests).
"VAT" means value added tax as provided for in the Value Added Tax Xxx 0000
and any other tax of a similar nature (including, but not limited to, goods
and service tax).
1.2 CONSTRUCTION
(a) Unless a contrary indication appears, any reference in this Agreement to:
(i) the "FACILITY AGENT", any "MANDATED LEAD ARRANGER", the "BOOKRUNNER",
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) "ASSETS" includes present and future properties, revenues and rights
of every description;
(iii) the "EQUIVALENT" in any currency (the "FIRST CURRENCY") of any amount
in another currency (the "SECOND CURRENCY") shall be construed as a
reference to the amount in the first currency which could be purchased
with that amount in the second currency at the Facility Agent's spot
rate of exchange for the purchase of the first currency with the
second currency in the London foreign exchange market at or about
11.00 a.m. on a particular day (or at or about such time and on such
date as the Facility Agent may from time to time reasonably determine
to be appropriate in the circumstances);
(iv) the "EUROPEAN INTERBANK MARKET" means the interbank market for euro
operating in Participating Member States;
(v) a "FINANCE DOCUMENT" or any other agreement or instrument is a
reference to that Finance Document or other agreement or instrument as
amended or novated;
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(vi) "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;
(vii) 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) or two
or more of the foregoing;
(viii) 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;
(ix) a provision of law is a reference to that provision as amended or
re-enacted;
(x) a time of day is a reference to London time;
(xi) "BARCLAYS CAPITAL" is a reference to Barclays Capital, the investment
banking division of the Barclays Bank PLC;
(xii) "DRESDNER KLEINWORT XXXXXXXXXXX" is a reference to Dresdner Kleinwort
Xxxxxxxxxxx, the investment banking division of Dresdner Bank AG; and
(xiii) a "SHARE" includes, in respect of an Obligor incorporated in Spain,
both shares ("acciones") and, if applicable, participations
("participaciones").
(b) A document is in the "AGREED FORM":
(i) if it is in a form initialled by or on behalf of the Company and the
Mandated Lead Arrangers on or before the signing of this Agreement for
the purposes of identification; or
(ii) if not falling within sub-paragraph (i) above, if it is in form and
substance satisfactory to the Facility Agent and initialled by or on
behalf of the Facility Agent for the purposes of identification.
(c) Section, Clause and Schedule headings are for ease of reference only.
(d) Unless a contrary indication appears, a term used in any other Finance
Document or in any notice given under or in connection with any Finance
Document has the same meaning in that Finance Document or notice as in this
Agreement.
(e) A Default or an Event of Default is "CONTINUING" if it has not been
remedied or waived.
1.3 THIRD PARTY RIGHTS
A person who is not a Party has no right under the Contracts (Rights of
Third Parties) Xxx 0000 to enforce or to enjoy the benefit of any term of
this Agreement.
1.4 CALCULATIONS
(a) EBITDA, Interest Expense, Consolidated Borrowings, Consolidated Net Worth,
Total Assets, Total Revenue and Total Capitalisation shall be calculated
and interpreted on a consolidated basis in accordance with UK GAAP and
shall be expressed in US dollars.
(b) EBITDA, Interest Expense, Consolidated Borrowings, Consolidated Net Worth,
Total Assets, Total Revenue and Total Capitalisation shall be determined
(except as needed to reflect the
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terms of this Agreement) from the financial statements of the Group and
Compliance Certificates delivered under Clause 21.1 (Annual financial
statements), Clause 21.2 (Half-yearly financial statements) and Clause 21.4
(Compliance Certificate). For the purposes of calculating the financial
covenant in Clause 22(b), where any acquisition or disposal occurs during a
Relevant Period, EBITDA shall be determined on a pro forma basis as if the
acquisition or disposal occurred at the beginning of that Relevant Period
(c) For the purpose of this Clause 1.4 and the defined terms referred to in it,
no item shall be included or excluded more than once in any calculation.
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SECTION 2
THE FACILITIES
2. THE FACILITIES
2.1 THE FACILITIES
Subject to the terms of this Agreement, the Lenders make available to the
Borrowers:
(a) a multicurrency revolving credit facility in an aggregate amount equal
to the Total Facility A Commitments; and
(b) a United States dollar 364 day revolving credit facility with a term
out option in an aggregate amount equal to the Total Facility B
Commitments.
2.2 FINANCE PARTIES' RIGHTS AND OBLIGATIONS
(a) The obligations of each Finance Party under the Finance Documents are
several. Failure by a Finance Party to perform its obligations under the
Finance Documents does not affect the obligations of any other Party under
the Finance Documents. No Finance Party is responsible for the obligations
of any other Finance Party under the Finance Documents.
(b) The rights of each Finance Party under or in connection with the Finance
Documents are separate and independent rights and any debt arising under
the Finance Documents to a Finance Party from an Obligor 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.
2.3 COMPANY AS OBLIGORS' AGENT
Each Obligor (other than the Company):
(a) irrevocably authorises the Company to act on its behalf as its agent
in relation to the Finance Documents, including:
(i) to give and receive as agent on its behalf all notices and
instructions (including Utilisation Requests);
(ii) to sign on its behalf all documents in connection with the
Finance Documents (including amendments and variations of any
Finance Documents, the granting of Spanish Public Documents
(including its ratification and incorporation of this Agreement
into a Spanish Public Document), and to execute any new Finance
Documents); and
(iii) to take such other action as may be necessary or desirable under
or in connection with the Finance Documents; and
(b) confirms that it will be bound by any action taken by the Company
under or in connection with the Finance Documents.
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2.4 ACTS OF COMPANY
(a) The respective liabilities of each of the Obligors under the Finance
Documents shall not be in any way affected by:
(i) any actual or purported irregularity in any act done or failure to act
by the Company;
(ii) the Company acting (or purporting to act) in any respect outside any
authority conferred upon it by any Obligor; or
(iii) any actual or purported failure by or inability of the Company to
inform any Obligor of receipt by it of any notification under the
Finance Documents.
(b) In the event of any conflict between any notices or other communications of
the Company and any other Obligor, those of the Company shall prevail.
3. PURPOSE
3.1 PURPOSE
(a) Each Borrower shall apply all amounts borrowed by it under Facility A
towards financing or refinancing:
(i) the amounts payable under the Existing Facility Agreement; and
(ii) the general corporate purposes of the Group.
(b) Each Borrower shall apply all amounts borrowed by it under Facility B
towards financing or refinancing the working capital requirements of the
Group.
(c) The maximum aggregate amount that may be borrowed by the Spanish Borrowers
is $150,000,000.
(d) No amount borrowed under the Facilities shall be applied in any manner that
may be illegal or contravene any applicable local laws or regulations in
any relevant jurisdiction concerning financial assistance by a company for
the acquisition of or subscription for its own shares or concerning the
protection of shareholders' capital.
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 Borrower may deliver a Utilisation Request unless the Facility Agent has
received all of the documents and other evidence listed in Part III of
Schedule 1 (Conditions precedent to initial Utilisation Request) in form
and substance satisfactory to the Facility Agent. The Facility Agent shall
notify the Company and the Lenders promptly upon being so satisfied.
4.2 FURTHER CONDITIONS PRECEDENT
The Lenders will only be obliged to comply with Clause 5.4 (Lenders'
participation) if on the date of the Utilisation Request and on the
proposed Utilisation Date:
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(i) in the case of a Rollover Loan, no Event of Default is continuing or
might reasonably be expected to result from the proposed Loan and, in
the case of any other Loan, no Default is continuing or would result
from the proposed Loan;
(ii) the Repeating Representations to be made by each Obligor are true;
(iii) in the case of a Utilisation Request by an Australian Borrower, the
Facility Agent has received, in form and substance satisfactory to it,
a Note Deed Poll signed by that Australian Borrower; and
(iv) in the case of a Utilisation Request by a Spanish Borrower, this
Agreement (including all amendments up to the proposed Utilisation
Date) has been raised to the status of a Spanish Public Document and a
copy of Standard Form PE1 duly stamped by Banco de Espana has been
delivered to the Facility Agent, each in form and substance
satisfactory to the Facility Agent.
4.3 CONDITIONS RELATING TO OPTIONAL CURRENCIES
(a) A currency will constitute an Optional Currency in relation to a Facility A
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 Utilisation; and
(ii) it is euro or (in relation to Australian Loans only) Australian
dollars or has been approved by the Facility Agent (acting on the
instructions of all the Lenders) on or prior to receipt by the
Facility Agent of the relevant Utilisation Request for that
Utilisation.
(b) If by the Specified Time the Facility Agent has received a written request
from the Company for a currency to be approved under paragraph (a)(ii)
above, the Facility Agent will confirm to the Company by the Specified
Time:
(i) whether or not the 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 UTILISATIONS
(a) A Borrower may not deliver a Utilisation Request if as a result of the
proposed Utilisation more than ten Facility A Loans and four Facility B
Loans would be outstanding.
(b) A Borrower may not deliver more than one Utilisation Request under a
Facility on any one day.
(c) A Borrower may not request that a Term Loan be divided if, as a result of
the proposed division, more than four Term Loans would be outstanding.
(d) Any Loan made by a single Lender under Clause 7.2 (Unavailability of a
currency) shall not be taken into account in this Clause 4.4.
4.5 DRAWINGS BY SPANISH BORROWERS
At any time on or before 1 September 2004, each Spanish Borrower shall,
within 3 Business Days of a Loan (including any Rollover Loan) having been
advanced to it, provide the Facility
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Agent with a notarised receipt of such Loan. Any such receipt shall be made
in favour of the Facility Agent on behalf of all the Lenders and shall
expressly refer to any new Lenders which have acceded to this Agreement
since the date of the last receipt.
4.6 AUSTRALIAN BORROWERS
An Australian Borrower may only deliver a Utilisation Request in respect of
an Australian Loan.
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SECTION 3
UTILISATION
5. UTILISATION
5.1 DELIVERY OF A UTILISATION REQUEST
A Borrower may utilise a Facility by delivery to the Facility Agent of a
duly completed Utilisation Request in the form of Part I of Schedule 2
(Requests) not later than the Specified Time.
5.2 COMPLETION OF A UTILISATION REQUEST
(a) Each Utilisation Request is irrevocable and will not be regarded as having
been duly completed unless:
(i) it identifies the Facility to be used;
(ii) in relation to a Facility A Loan, it identifies whether the Loan is to
be an Australian Loan;
(iii) the proposed Utilisation Date is a Business Day within the
Availability Period applicable to that Facility;
(iv) the currency and amount of the Utilisation comply with Clause 5.3
(Currency and amount);
(v) the proposed Interest Period complies with Clause 11 (Interest
Periods); and
(vi) it specifies the account and bank (which must be in the principal
financial centre of the country of the currency of the Utilisation or,
in the case of euro, the principal financial centre of a Participating
Member State in which banks are open for general business on that day
or London) to which the proceeds of the Utilisation are to be
credited.
(b) Only one Loan may be requested in each Utilisation Request.
5.3 CURRENCY AND AMOUNT
(a) The currency specified in a Utilisation Request must be, in relation to a
Facility B Loan, the Base Currency or, in relation to a Facility A Loan,
the Base Currency or an Optional Currency.
(b) The amount of the proposed Loan must be:
(i) if the currency selected is the Base Currency, a minimum of
$25,000,000 and an integral multiple of $5,000,000 or, if less, the
Available Facility; or
(ii) if the currency selected is euro, a minimum of E25,000,000 and an
integral multiple of E5,000,000 or, if less, the Available Facility;
or
(iii) if the currency selected is Australian dollars, a minimum of
AUS$50,000,000 and an integral multiple of AUS$10,000,000 or, if less,
the Available Facility; or
(iv) if the currency selected is an Optional Currency other than euro or
Australian dollars, the minimum amount (and, if required, integral
multiple) specified by the Facility Agent pursuant to paragraph
(b)(ii) of Clause 4.3 (Conditions relating to Optional Currencies) or,
if less, the Available Facility; and
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(v) in any event such that its Base Currency Amount is less than or equal
to the Available Facility.
(c) The aggregate Base Currency Amount of all outstanding Australian Loans
shall not exceed $200,000,000.
5.4 LENDERS' PARTICIPATION
(a) If the conditions set out in this Agreement have been met, each Lender
participating in the relevant Facility shall make its participation in each
Loan available by the Utilisation Date through its Facility Office.
(b) The amount of each Lender's participation in each Loan will be equal to the
proportion borne by its Available Commitment to the Available Facility
immediately prior to making the Loan.
(c) The Facility Agent shall determine the Base Currency Amount of each Loan
which is to be made in an Optional Currency and shall by the Specified Time
notify each Lender of the amount, currency and the Base Currency Amount of
each Loan and the amount of its participation in that Loan.
6. NOTES
6.1 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 Note Deed Poll.
Each Lender and the Facility Agent agrees to be bound by the Note Deed
Poll.
6.2 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 Facility A, that Australian Borrower shall issue Notes in relation to
Facility A 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 Facility A 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 Facility A plus AUS$1.
6.3 REGISTER
On receipt of any payment from a Lender under this Clause 6, the Facility
Agent will:
(a) pay that amount to the relevant Australian Borrower in accordance with
Clause 30 (Payment Mechanics) to the account and bank specified by
that Australian Borrower in the Utilisation Request; and
(b) on the first Utilisation Date for an Australian Loan issue the Notes
referred to in Clause 6.1 above by entering them in the Register.
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6.4 AMENDMENT OF REGISTER
In the case of each Utilisation Date other than the first, and each
reduction, repayment or prepayment under Facility A, the Facility Agent
must amend the Register to reflect the revised principal amount outstanding
on the Notes under Facility A.
6.5 ISSUE TO NOMINATED OFFEREES
Each Mandated Lead Arranger warrants that the invitations issued on behalf
of each Australian Borrower for the subscription of Notes and corresponding
participations in Facility A have been forwarded to at least 10 financial
institutions on a list given to the Company by the Bookrunner before the
date of this Agreement.
6.6 REPRESENTATIONS AND WARRANTIES OF ORIGINAL LENDERS
Each Original Lender represents and warrants that:
(a) an offer to participate in Facility A and to subscribe for the Notes
in accordance with this Agreement was made to it by the Mandated Lead
Arrangers on behalf of the Australian Borrowers and the other
Obligors; and
(b) it was at the time of the offer, and will be at the time of issue to
it of a Note, carrying on a business of providing finance, or
investing or dealing in securities, in the course of operating in
financial markets.
6.7 SELLING RESTRICTIONS
Each Lender undertakes 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:
(a) within the United States of America; or
(b) in any jurisdiction except under circumstances that would result in
compliance with the laws and regulations of that jurisdiction.
6.8 OBLIGORS CONFIRMATION
The Obligors confirm that no financial institution in the list referred to
in Clause 6.5 (Issue to Nominated Offerees) was known or suspected by it
before the date of this Agreement to be an Associate of any Obligor or of
any other financial institution specified in that list.
6.9 OBLIGATIONS OF NOTEHOLDERS
A Lender must:
(a) promptly notify the Facility Agent in writing of any change of name or
address of the Lender; and
(b) provide to the Company such factual information in the Lender's
possession or which it is reasonably able to provide as the Company
reasonably requests (which will not in the Lender's reasonable opinion
breach any law, regulation or duty of confidence) so as to assist each
Australian Borrower to demonstrate that it has satisfied the "public
offer" test as described in section 128F(3) of the Australian Tax Act.
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6.10 ESTABLISHMENT OF REGISTER FOR EACH AUSTRALIAN BORROWER
The Facility Agent must establish and maintain a register for each
Australian Borrower in London.
6.11 THE REGISTER
(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) its issue date, maximum principal amount and the outstanding principal
amount from time to time under the Notes held by a Lender;
(ii) the name and address, at its Facility Office, of each Original Lender
and each subsequent Lender;
(iii) the account of each Lender to which payments are to be made; and
(iv) details of all transfers or assignments, advances and repayments made
in respect of the Notes and redemption of all or part of the Notes.
(b) The Facility Agent must update each Register to record changes as at the
date of any such change.
6.12 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.
6.13 INSPECTION OF REGISTER
(a) Subject to paragraph (b) below, any Australian Borrower, the Company or a
Lender may inspect any Register between 9.30 a.m. and 4.30 p.m. (local time
where the relevant Register is held) on any Business Day.
(b) The Facility Agent is not required to make any Register or a copy of any
Register available for inspection to any Lender except:
(i) where the Lender has given the Facility Agent not less than one
Business Day's prior written notice of its desire to inspect the
Register and it wishes to inspect only 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.
7. OPTIONAL CURRENCIES
7.1 SELECTION OF CURRENCY
A Borrower (or the Company on behalf of a Borrower) shall select the
currency of a Utilisation to be made under Facility A in the Utilisation
Request relating to that Utilisation.
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7.2 UNAVAILABILITY OF A CURRENCY
If before the Specified Time on any Quotation Day:
(a) a Lender notifies the Facility Agent that the Optional Currency
requested is not readily available to it in the amount required; or
(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 relevant Borrower to that effect
by the Specified Time on that day. In this event, any Lender that gives
notice pursuant to this Clause 7.2 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.
7.3 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).
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SECTION 4
REDUCTION, REPAYMENT, PREPAYMENT AND CANCELLATION
8. REPAYMENT AND REDUCTION OF LOANS
8.1 REPAYMENT OF LOANS
(a) Subject to clause 8.2, each Borrower which has drawn a Loan (other than a
Term Loan) shall repay that Loan on the last day of its Interest Period.
(b) Any Loan remaining outstanding on the Termination Date shall be repaid on
that date.
8.2 TERM OUT OPTION
(a) The Company may exercise the term out option by delivering a Term Out
Notice to the Facility Agent not more than 60 days and not less than 30
days before the then Termination Date of Facility B. Only one such notice
may be given.
(b) That notice shall:
(i) specify the Facility B Loan(s) in relation to which the Term Out
Option is being exercised; and
(ii) specify the date to which the then Termination Date of Facility B is
to be extended, which shall be not later than 364 days from the
original Termination Date of Facility B.
(c) The Facility Agent shall promptly notify each Lender of the Loans specified
in that notice and the new Termination Date of Facility B.
(d) If the Term Out Option is so exercised then:
(i) on the date on which it gives a Term Out Notice, the Company shall pay
to the Facility Agent (for the account of each Lender) a fee of 0.05
per cent. flat on that Lender's participation in the Facility B
Loan(s) in relation to which the Term Out Option has been exercised;
(ii) on the Term Out Date, any Available Commitment under Facility B shall
be automatically cancelled and any Facility B Loans converted into
Term Loans; and
(iii) on the Term Out Date, the Termination Date of Facility B shall be
extended to the date specified in the Term Out Notice.
(e) Clauses 10 (Interest) and 11 (Interest Periods) shall apply to any Facility
B Loan in relation to which the Term Out Option has been exercised.
9. PREPAYMENT AND CANCELLATION
9.1 ILLEGALITY
If it becomes unlawful in any jurisdiction for a Lender to perform any of
its obligations as contemplated by this Agreement or to fund its
participation in any Loan:
(a) that Lender shall promptly notify the Facility Agent upon becoming
aware of that event;
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(b) upon the Facility Agent notifying the Company, 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 Company 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).
9.2 CHANGE OF CONTROL
(a) If any person or group of persons acting in concert acquire control of the
Parent:
(i) the Company shall promptly notify the Facility Agent upon becoming
aware of that event;
(ii) the Facility Agent shall promptly notify the Lenders of receipt of
such notice from the Company;
(iii) no Borrower may make a Utilisation (except for a Rollover Loan)
unless otherwise agreed by the Majority Lenders; and
(iv)
(A) if the Majority Lenders so require and the Facility Agent has
given notice of such requirement to the Company within 30 days of
receipt of the Company's notice, the Facilities shall immediately
be cancelled and all outstanding Loans, together with accrued
interest, and all other amounts accrued under the Finance
Documents shall become immediately due and payable; or
(B) if the Majority Lenders do not so require, any Lender who voted
to require cancellation of the Facilities may notify the Company
and the Facility Agent within 45 days of receipt of the Company's
notice if it objects to the event notified by the Company on the
basis of a generally applicable internal policy (provided that
notification by that Lender will amount to conclusive evidence of
a violation of such policy and nothing in this Clause will oblige
that Lender to disclose any information relating to such
objection or internal policy) and, on receipt by the Company of
notice to that effect, that Lender's Commitment shall then be
immediately cancelled and that Lender's participation in all
outstanding Loans, accrued interest and all other amounts accrued
under the Finance Documents shall become immediately due and
payable.
(b) For the purpose of paragraph (a) above "CONTROL" has the meaning given to
it in section 416(2) of the Taxes Act and "ACTING IN CONCERT" has the
meaning given to it in the City Code on Takeovers and Mergers.
9.3 VOLUNTARY CANCELLATION
The Company may, if it gives the Facility Agent not less than 10 days' (or
such shorter period as the Majority Lenders may agree) prior notice, cancel
the whole or any part (being a minimum amount of $25,000,000 (or its
equivalent in any other currency or currencies) or the outstanding
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balance under the relevant Facility, if less) of an Available Facility at
any time during the Availability Period in respect of the relevant
Facility.
9.4 VOLUNTARY PREPAYMENT
The Borrower to which a Loan has been made may, if it gives the Facility
Agent not less than 10 days (or such shorter period as the Majority Lenders
may agree) prior notice, prepay the whole or any part of any Loan (being a
minimum of $25,000,000 (or its equivalent in any other currency or
currencies) or the outstanding amount under that Facility, if less).
9.5 RIGHT OF REPLACEMENT OF A SINGLE LENDER
If:
(a) any sum payable to any Lender by an Obligor is required to be
increased under paragraph (c) of Clause 14.2 (Tax gross-up); or
(b) any Lender claims indemnification from the Company under Clause 14.3
(Tax indemnity) or Clause 15 (Increased costs),
the Company may:
(i) (whilst the circumstance giving rise to the requirement or
indemnification continues) arrange for the transfer of the whole (but
not part only) of that Lender's Commitment and participations in the
Loans to a new or existing Lender willing to accept that transfer and
acceptable to the Company and the remaining Lenders; or
(ii) 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 Utilisations, whereupon the Commitment
of that Lender shall immediately be reduced to zero. On the last day
of each Interest Period which ends after the Company has given notice
under this paragraph (ii) (or, if earlier, the date specified by the
Company in that notice), each Borrower to which a Loan is outstanding
shall repay that Lender's participation in that Loan.
9.6 REPLACEMENT OF A NON-CONSENTING OR NON-FUNDING LENDER
(a) In this Clause 9.6:
(i) "NON-CONSENTING LENDER" means a Lender which does not agree to a
waiver or amendment if:
(A) the Company or the Facility Agent has requested the Lenders to
consent to a waiver or amendment of any provision of any Finance
Document;
(B) the relevant waiver or amendment requires the consent of all the
Lenders; and
(C) the Majority Lenders have consented to that waiver or amendment.
(ii) "NON-FUNDING LENDER" means:
(A) any Lender which has failed to make or participate in any Loan as
required by this Agreement; or
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(B) any Lender which has given notice to a Borrower or the Facility
Agent that it does not intend to make or participate in any Loan
in accordance with the requirements of this Agreement or has
repudiated its obligations to do so.
(b) If:
(i) any Lender becomes a Non-Consenting Lender; or
(ii) any Lender becomes a Non-Funding Lender,
the Company may, if it gives the Facility Agent and that Lender not less
than 10 Business Days' prior notice, arrange for the transfer of the whole
(but not part only) of that Lender's Commitment and participations in the
Loans to a new or existing Lender willing to accept that transfer and
acceptable to the Company and the remaining Lenders of the relevant
Facility.
(c) The replacement of a Lender pursuant to this Clause 9.6 shall be subject to
the following conditions:
(i) the Company shall have no right to replace the Facility Agent;
(ii) neither the Facility Agent nor any Lender shall have any obligation to
the Company to find a replacement Lender;
(iii) in the event of a replacement of a Non-Consenting Lender such
replacement must take place no later than 180 days after the date the
Non-Consenting Lender notified the Company and the Facility Agent of
its failure to agree to any requested consent, waiver or amendment to
the Finance Documents;
(iv) any Lender replaced pursuant to this Clause 9.6 shall not be required
to pay or surrender to any other Lender any of the fees received by
that Lender pursuant to this Agreement; and
(v) payment of any applicable Break Costs.
9.7 RESTRICTIONS
(a) Any notice of cancellation or prepayment given by any Party under this
Clause 9 shall be irrevocable and, unless a contrary indication appears in
this Agreement, 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) The Borrowers shall not repay or prepay all or any part of the Utilisations
or cancel all or any part of the Commitments except at the times and in the
manner expressly provided for in this Agreement.
(d) No Borrower may reborrow any part of a Term Loan which is prepaid.
(e) Unless a contrary indication appears in this Agreement, any amount which is
repaid or prepaid may be reborrowed in accordance with the terms of this
Agreement.
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(f) Unless a contrary indication appears in this Agreement, no amount of the
Total Commitments cancelled or reduced under this Agreement may be
subsequently reinstated.
(g) If the Facility Agent receives a notice under this Clause 9 it shall
promptly forward a copy of that notice to either the Company or the
affected Lender, as appropriate.
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SECTION 5
COSTS OF UTILISATION
10. INTEREST
10.1 CALCULATION OF INTEREST
The rate of interest on each Loan for each Interest Period is the
percentage rate per annum which is the aggregate of the applicable:
(a) the relevant Margin;
(b) LIBOR or, in relation to any Loan in euro, EURIBOR; and
(c) Mandatory Cost, if any.
10.2 PAYMENT OF INTEREST
The 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 dates falling at six monthly intervals after the first day of the
Interest Period).
10.3 DEFAULT INTEREST
(a) If an Obligor fails to pay any amount payable by it under a Finance
Document on its due date (other than an Australian Borrower in respect of a
Note), 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
which, subject to paragraph (b) below, is the sum of 1 per cent. and 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, each of a duration selected by the
Facility Agent (acting reasonably). Any interest accruing under this Clause
10.3 shall be immediately payable by the Obligor on demand by the Facility
Agent.
(b) If any overdue amount consists of all or part of a Loan which became due on
a day which was not the last day of an Interest Period relating to that
Loan:
(i) the first Interest Period for that overdue amount shall have a
duration equal to the unexpired portion of the current Interest Period
relating to that Loan; and
(ii) the rate of interest applying to the overdue amount during that first
Interest Period shall be the sum of 1 per cent. and the rate which
would have applied if the overdue amount had not become due.
(c) Default interest (if unpaid) arising on an overdue amount will be
compounded with the overdue amount at the end of each Interest Period
applicable to that overdue amount but will remain immediately due and
payable.
10.4 NOTIFICATION OF RATES OF INTEREST
The Facility Agent shall promptly notify the relevant Lenders and the
relevant Borrower of the determination of a rate of interest under this
Agreement.
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10.5 MINIMUM INTEREST
By entering into this Agreement, the Parties have assumed that the interest
payable at the rates set out in Clause 10 (Interest) is not and will not
become subject to Swiss Anticipatory Tax. Therefore, each Borrower
acknowledges and agrees that the interest rates set out in and which are
calculated in accordance with Clause 10 (Interest) shall constitute minimum
interest rates, which, if Swiss Anticipatory Tax should apply, shall be
adjusted as follows:
(a) Any payment of interest due by a Swiss Borrower shall be increased to
an amount which (after making any deduction of the Non-refundable
Portion (as defined below) of Swiss Anticipatory Tax) results in a
payment to each Lender entitled to such payment of an amount equal to
the payment which would have been due had no deduction of Swiss
Anticipatory Tax been required. For this purpose, the Swiss
Anticipatory Tax shall be calculated on the full grossed-up interest
amount and "NON-REFUNDABLE PORTION" shall mean Swiss Anticipatory Tax
at the standard rate from time to time (35 per cent. at the date of
this Agreement) unless a tax ruling by the Swiss Federal Tax
Administration confirms that the Non-refundable Portion is, pursuant
to any double taxation treaties, a specified lower rate in relation to
specified Finance Parties in which case such lower rate shall be
applied in relation to such Finance Parties.
(b) Each Swiss Borrower shall provide to the Facility Agent the documents
required by law and applicable double taxation treaties for the
Lenders to prepare claims for the refund of any Swiss Anticipatory Tax
so deducted.
(c) If any amount has been paid to a Lender in respect of which Swiss
Anticipatory Tax has been paid by a Swiss Borrower and such Lender
determines that such amount has been refunded to it by the Swiss tax
authorities, it shall promptly reimburse that Swiss Borrower such
amount as will leave the Lender in the same position as if there had
been no Swiss Anticipatory Tax.
(d) A Swiss Borrower shall not be required to make an increased payment to
a Lender pursuant to this Clause 10.5 if the requirement to make a
deduction of Swiss Anticipatory Tax arises as a result of a breach of
Clause 27.18 (Bank representation by Original Lenders) or Clause 25.2
(Conditions of assignment or transfer) by that Lender or by the
Existing Lender (as defined in Clause 25.1 (Assignments and transfers
by the Lenders)) which assigned or transferred any of its rights and
obligations under the Finance Documents to such Lender.
11. INTEREST PERIODS
11.1 SELECTION OF INTEREST PERIODS
(a) The Company on behalf of a Borrower 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) Subject to this Clause 11, a Borrower may select an Interest Period of one,
two, three or six Months or any other period agreed between the Company and
the Facility Agent (acting on the instructions of all the Lenders
participating in the relevant Loan).
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(c) A Loan (other than a Term Loan) has one Interest Period only.
(d) Each Selection Notice for a Term Loan is irrevocable and must be delivered
to the Facility Agent by the Company on behalf of the Borrower to which
that Term Loan was made not later than the Specified Time.
(e) If the Company fails to deliver a Selection Notice to the Agent in
accordance with paragraph (d) above the relevant Interest Period will be
one Month.
(f) Each Interest Period for a Term Loan shall start on the Term Out Date or
(if already made) on the last day of its preceding Interest Period.
(g) An Interest Period for a Loan shall not extend beyond the Termination Date
applicable to its Facility.
11.2 NON-BUSINESS DAYS
If an Interest Period would otherwise end on a day which is not a Business
Day, that Interest Period will instead end on the next Business Day in that
calendar month (if there is one) or the preceding Business Day (if there is
not).
11.3 CONSOLIDATION AND DIVISION OF TERM LOANS
(a) Subject to paragraph (b) below, if two or more Interest Periods:
(i) relate to Term Loans; and
(ii) end on the same date,
those Term Loans will, unless the Company on behalf of a Borrower specifies
to the contrary in the Selection Notice for the next Interest 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 Utilisations) and Clause 5.3
(Currency and amount), if the Company on behalf of a Borrower 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
with Base Currency Amounts specified in that Selection Notice, being an
aggregate Base Currency Amount equal to the Base Currency Amount of the
Term Loan immediately before its division.
12. CHANGES TO THE CALCULATION OF INTEREST
12.1 ABSENCE OF QUOTATIONS
Subject to Clause 12.2 (Market disruption), if LIBOR or, if applicable,
EURIBOR is to be determined by reference to the Reference Banks but a
Reference Bank does 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.
12.2 MARKET DISRUPTION
(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:
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(i) the Margin;
(ii) the rate notified to the Facility Agent by that Lender as soon as
practicable and in any event before 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
(iii) the Mandatory Cost, if any, applicable to that Lender's participation
in the Loan.
(b) In this Agreement "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
(i) 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 of obtaining matching deposits
in the Relevant Interbank Market would be in excess of LIBOR or, if
applicable, EURIBOR.
12.3 ALTERNATIVE BASIS OF INTEREST OR FUNDING
(a) If a Market Disruption Event occurs and the Facility Agent or the Company
so requires, the Facility Agent and the Company 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 Company, be binding on all
Parties.
12.4 BREAK COSTS
(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.
13. FEES
13.1 COMMITMENT FEE
(a) The Company shall pay to the Facility Agent (for the account of each
Lender) a fee in the Base Currency computed at a percentage rate per annum
on a day to day basis equal to:
(i) 0.20 per cent. per annum on that Lender's Available Commitment under
Facility A for the Availability Period applicable to Facility A; and
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(ii) 0.10 per cent. per annum on that Lender's Available Commitment under
Facility B for the Availability Period for Facility B.
(b) The accrued commitment fee is payable on the last day of each successive
period of three Months which ends 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.
13.2 UTILISATION FEE
(a) The Company shall pay to the Facility Agent (for the account of each
Lender) a fee in the Base Currency computed on a day to day basis at any
time when the aggregate Base Currency Amount of all Loans exceeds 66 2/3
per cent. of the Total Commitments as at the date of this Agreement, at a
rate equal to 0.05 per cent. per annum on the aggregate Base Currency
Amount of all Loans.
(b) The accrued utilisation fee is payable on the last day of each successive
period of three Months beginning on the date three Months after the date of
this Agreement and, if cancelled in full, at the time the cancellation is
effective.
13.3 ARRANGEMENT AND PARTICIPATION FEES
The Company shall pay to the Mandated Lead Arrangers arrangement and
participation fees in the amounts and at the times agreed in a Fee Letter.
13.4 AGENCY FEE
The Company shall pay to the Facility Agent (for its own account) an agency
fee in the amount and at the times agreed in a Fee Letter.
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SECTION 6
ADDITIONAL PAYMENT OBLIGATIONS
14. TAX GROSS UP AND INDEMNITIES
14.1 DEFINITIONS
In this Agreement:
"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 an increased payment made by an Obligor to a Finance
Party under Clause 14.2 (Tax gross-up) or a payment under Clause 14.3 (Tax
indemnity).
Unless a contrary indication appears, in this Clause 14 a reference to
"determines" or "determined" means a determination made in the absolute
discretion of the person making the determination.
14.2 TAX GROSS-UP
(a) Each Obligor shall make all payments to be made by it without any Tax
Deduction, unless a Tax Deduction is required by law.
(b) The Company 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. Similarly, a Lender
shall notify the Facility Agent on becoming so aware in respect of a
payment payable to that Lender. If the Facility Agent receives such
notification from a Lender, it shall notify the Company and that Obligor.
(c) Subject to paragraph (d), (e) and (h) below, if a Tax Deduction is required
by law to be made by an Obligor, the amount of the payment due from that
Obligor shall be increased to an amount which (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 payment to a Lender under
paragraph (c) above for a Tax Deduction from a payment of interest on a
Loan if, on the date on which the payment falls due, the deduction is in
respect of any Australian Tax required to be withheld or deducted under
part III, division 11A of the Australian Tax Act in relation to payment of
interest on a Note and is as a result of the Lender being an Associate of
an Australian Borrower.
(e) A Swiss Obligor is not required to make an increased payment to a Lender
under paragraph (c) above for a Tax Deduction in respect of Swiss
Anticipatory Tax if and to the extent it is prohibited from doing so by
Swiss law.
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(f) 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.
(g) 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.
(h) A Swiss Borrower shall not be required to make an increased payment to a
Lender under paragraph (c) above if the requirement to make a Tax Deduction
in respect of Swiss Anticipatory Tax arises as a result of a breach of
Clause 27.18 (Bank representation by Original Lenders) or Clause 25.2
(Conditions of assignment or transfer) by that Lender or by the Existing
Lender (as defined in Clause 25.1 (Assignments and transfers by Lenders))
which assigned or transferred any of its rights and obligations under the
Finance Documents to such Lender.
14.3 TAX INDEMNITY
(a) Each Obligor 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; or
(B) under the law of the jurisdiction in which that Finance Party's
Facility Office is located in respect of amounts received or
receivable in that jurisdiction,
if that Tax is imposed on or calculated by reference to the net income
received or receivable (but not any sum deemed to be received or
receivable) by that Finance Party; or
(ii) to the extent a loss, liability or cost:
(A) is compensated for by an increased payment under Clause 14.2 (Tax
gross-up); or
(B) would have been compensated for by an increased payment under
Clause 14.2 (Tax gross-up) but was not so compensated solely
because one of the exclusions in paragraph (d) or (h) of Clause
14.2 (Tax gross-up) applied; or
(C) arises as a result of a breach of Clause 6.6 (Representations and
Warranties of Original Lenders), Clause 27.18 (Bank
representation by Original Lenders) or of Clause 25.2 (Conditions
of assignment or transfer) by a Lender or by the Existing
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Lender (as defined in Clause 25.1 (Assignments and transfers by
the Lenders)) which assigned or transferred any of its rights and
obligations under the Finance Documents; or
(iii) to a Swiss Obligor in respect of Swiss Anticipatory Tax if it is
prohibited from doing so by Swiss law.
(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 Company.
(d) A Protected Party shall, on receiving a payment from an Obligor under this
Clause 14.3, notify the Facility Agent.
14.4 TAX CREDIT
If an Obligor makes a Tax Payment and the relevant Finance Party determines
that:
(a) a Tax Credit is attributable 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.
14.5 STAMP TAXES
The Company shall pay and, within three Business Days of demand, indemnify
each Finance Party against any cost, loss or liability that Finance Party
incurs in relation to all stamp duty, registration, capital duty and other
similar Taxes payable in respect of any Finance Document.
14.6 VALUE ADDED TAX
(a) All consideration expressed to be payable under a Finance Document by any
Party to a Finance Party shall be deemed to be exclusive of any VAT. If VAT
is chargeable on any supply made by any Finance Party to any Party in
connection with a Finance Document, that Party 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 any Party to reimburse a Finance Party
for any costs or expenses, that Party 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.
15. INCREASED COSTS
15.1 INCREASED COSTS
(a) Subject to Clause 15.3 (Exceptions) the Company 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, administration or application of)
any law or regulation or (ii) compliance with any law or regulation made
after the date of this Agreement.
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(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.
15.2 INCREASED COST CLAIMS
(a) A Finance Party intending to make a claim pursuant to Clause 15.1
(Increased costs) shall notify the Facility Agent of the event giving rise
to the claim, following which the Facility Agent shall promptly notify the
Company.
(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.
15.3 EXCEPTIONS
(a) Clause 15.1 (Increased costs) does not apply to the extent any Increased
Cost is:
(i) attributable to a Tax Deduction required by law to be made by an
Obligor;
(ii) compensated for by Clause 14.3 (Tax indemnity) (or would have been
compensated for under Clause 14.3 (Tax indemnity) but was not so
compensated solely because one of the exclusions in paragraph (b) of
Clause 14.3 (Tax indemnity) applied);
(iii) compensated for by the payment of the Mandatory Cost; or
(iv) attributable to the failure by the relevant Finance Party or its
Affiliates to comply with any law or regulation.
(b) In this Clause 15.3, a reference to a "TAX DEDUCTION" has the same meaning
given to the term in Clause 14.1 (Definitions).
16. OTHER INDEMNITIES
16.1 CURRENCY INDEMNITY
(a) If any sum due from an Obligor under the Finance Documents (a "SUM"), or
any order, judgment or award given or made in relation to a Sum, has to be
converted from the currency (the "FIRST CURRENCY") in which that Sum is
payable into another currency (the "SECOND CURRENCY") for the purpose of:
(i) making or filing a claim or proof against that Obligor; 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
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out of or as a result of the conversion including any discrepancy between
(A) the rate of exchange used to convert that Sum from the First Currency
into the Second Currency and (B) the rate or rates of exchange available to
that person at the time of its receipt of that Sum.
(b) Each Obligor waives any right it may have in any jurisdiction to pay any
amount under the Finance Documents in a currency or currency unit other
than that in which it is expressed to be payable.
16.2 OTHER INDEMNITIES
The Company shall (or shall procure that an Obligor will), within three
Business Days of demand, indemnify each Finance Party against any cost,
loss or liability incurred by that Finance Party as a result of:
(a) the occurrence of any Event of Default;
(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 29 (Sharing among the Finance
Parties);
(c) funding, or making arrangements to fund, its participation in a
Utilisation requested by a Borrower in a Utilisation Request but not
made by reason of the operation of any one or more of the provisions
of this Agreement (other than by reason of default or negligence by
that Finance Party alone); or
(d) a Utilisation (or part of a Utilisation) not being prepaid in
accordance with a notice of prepayment given by a Borrower or the
Company or as required by this Agreement.
16.3 INDEMNITY TO THE FACILITY AGENT
The Company shall promptly indemnify the Facility Agent against any cost,
loss or liability incurred by the Facility Agent (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.
16.4 ENVIRONMENTAL INDEMNITY
Each Obligor shall, within three Business Days of demand, indemnify each
Finance Party against any cost, loss or liability:
(a) incurred by that Finance Party as a result of any actual or alleged
breach of any Environmental Law by any member of the Group;
(b) which would not have arisen if a Finance Document had not been entered
into by that Finance Party; and
(c) which is not caused by that Finance Party's negligence or wilful
misconduct.
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17. MITIGATION BY THE LENDERS
17.1 MITIGATION
(a) Each Finance Party shall, in consultation with the Company, take all
reasonable steps to mitigate any circumstances which arise and which would
result in any amount becoming payable under or pursuant to, or cancelled
pursuant to, any of Clause 9.1 (Illegality), Clause 14 (Tax gross-up and
indemnities) or Clause 15 (Increased costs), including (but not limited to)
transferring its rights and obligations under the Finance Documents to
another Affiliate or Facility Office.
(b) Paragraph (a) above does not in any way limit the obligations of any
Obligor under the Finance Documents.
17.2 LIMITATION OF LIABILITY
(a) The Company 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 17.1 (Mitigation).
(b) A Finance Party is not obliged to take any steps under Clause 17.1
(Mitigation) if, in the opinion of that Finance Party (acting reasonably),
to do so might be prejudicial to it.
18. COSTS AND EXPENSES
18.1 TRANSACTION EXPENSES
The Company shall promptly on demand pay the Facility Agent, the Bookrunner
and the Mandated Lead Arrangers the amount of all costs and expenses
(including legal fees) incurred by any of them in connection with the
negotiation, preparation, printing, execution, notarisation and syndication
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.
18.2 AMENDMENT COSTS
If (a) an Obligor requests an amendment, waiver or consent or (b) an
amendment is required pursuant to Clause 30.9 (Change of currency), the
Company shall, within three Business Days of demand, reimburse the Facility
Agent for the amount of all reasonable costs and expenses (including legal
fees) incurred by the Facility Agent in responding to, evaluating,
negotiating or complying with that request or in connection with that
required amendment.
18.3 ENFORCEMENT COSTS
The Company shall, within three Business Days of demand, pay to each
Finance Party the amount of all costs and expenses (including legal fees)
incurred by that Finance Party in connection with the enforcement of, or
the preservation of any rights under, any Finance Document.
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SECTION 7
GUARANTEE
19. GUARANTEE AND INDEMNITY
19.1 GUARANTEE AND INDEMNITY
Subject to Clauses 19.9 (Swiss Limitations), each Guarantor irrevocably and
unconditionally jointly and severally:
(a) guarantees to each Finance Party punctual performance by each other
Obligor of all that Obligor's obligations under the Finance Documents;
(b) undertakes with each Finance Party that, whenever an Obligor does not
pay any amount when due under or in connection with any Finance
Document, that Guarantor shall immediately on demand pay that amount
as if it was the principal Obligor; and
(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 (or which would have been an obligation guaranteed by
it if it had not been unenforceable, invalid or illegal) 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.
19.2 CONTINUING GUARANTEE
This guarantee and indemnity is a continuing guarantee and indemnity and
will extend to the ultimate balance of sums payable by any Obligor under
the Finance Documents, regardless of any intermediate payment or discharge
in whole or in part.
19.3 REINSTATEMENT
If any payment by an Obligor 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 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 Obligor, as if the payment,
discharge, avoidance or reduction had not occurred.
19.4 WAIVER OF DEFENCES
The obligations of each Guarantor under this Clause 19 will not be affected
by an act, omission, matter or thing which, but for this Clause 19, would
reduce, release or prejudice any of its obligations under this Clause 19
(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;
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(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) 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.
19.5 IMMEDIATE RECOURSE
Each Guarantor waives any right it may have of first requiring any Finance
Party (or any trustee or agent on its behalf) to proceed against or enforce
any other rights or security or claim payment from any person before
claiming from that Guarantor under this Clause 19. This waiver applies
irrespective of any law or any provision of a Finance Document to the
contrary.
19.6 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 Guarantor shall be entitled to the
benefit of the same; and
(b) hold in an interest-bearing suspense account any moneys received from
any Guarantor or on account of any Guarantor's liability under this
Clause 19.
19.7 DEFERRAL OF GUARANTORS' RIGHTS
Until all amounts which may be or become payable by the Obligors under or
in connection with the Finance Documents have been irrevocably paid in full
and unless the Facility Agent otherwise directs, no Guarantor will exercise
any rights which it may have by reason of performance by it of its
obligations under the Finance Documents:
(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
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(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.
19.8 ADDITIONAL SECURITY
This guarantee and indemnity 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.
19.9 SWISS LIMITATIONS
(a) If and to the extent that a Swiss Guarantor is liable pursuant to this
Clause 19 for obligations other than the obligations of its
Subsidiaries (a "NON-GROUP LIABILITY") such Swiss Guarantor shall (to
the extent that such is a requirement of the applicable law in force
at the relevant time) only be liable to the Finance Parties for a sum
equal to the maximum amount of its profits available for distribution
as dividend at any given time (being the balance sheet profits and any
reserves made for this purpose, in each case in accordance with art.
675 (2) and art. 671 (1) and (2) no. 3, of the Swiss Code of
Obligations).
(b) Subject to the extent required by applicable law in force at the
relevant time and any applicable double taxation treaty, any Swiss
Guarantor which has a Non-group Liability:
(i) may deduct Swiss Anticipatory Tax at the rate of 35 percent, or
such rate as is in force from time to time from any payment in
respect of a Non-group Liability;
(ii) may pay any such deduction mentioned in paragraph (i) above, to
the Swiss Federal Tax Administration; and
(iii) shall notify (or procure that the Company notifies) the Facility
Agent that such a deduction has been made and provide, in
accordance with Clause 14.2 (g) (Tax gross-up) the Facility Agent
with evidence that such deduction has been paid to the Swiss
Federal Tax Administration; and
to the extent such a deduction is made (in accordance with paragraph
(b)(i) of this Clause), shall not be obliged to either gross-up in
accordance with Clause 14.2 (Tax gross-up) or indemnify (or otherwise
hold harmless) the Finance Parties in relation to any such deduction
and payment to the Swiss Federal Tax Administration.
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SECTION 8
REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT
20. REPRESENTATIONS
Each Obligor makes the representations and warranties set out in this
Clause 20 to each Finance Party on the date of this Agreement (in each case
in relation to itself and, to the extent expressed to be applicable to
them, its Subsidiaries (if any)).
20.1 STATUS
(a) It is a limited liability company or corporation, or if the Obligor is
organised in Aruba, it is an Aruban exempt company (Aruba Vrijgestelde
Vennootschap) duly incorporated and validly existing under the law of
its jurisdiction of incorporation.
(b) It and each of its Subsidiaries has the power to own its assets and
carry on its business as it is being, and is proposed to be,
conducted.
20.2 BINDING OBLIGATIONS
The obligations expressed to be assumed by it in each Finance Document to
which it is or will be a party are legal, valid, binding and enforceable,
subject to any general principles of law limiting its obligations which are
specifically referred to in any legal opinion delivered pursuant to Clause
4 (Conditions of Utilisation) or Clause 26 (Changes to the Obligors).
20.3 NON-CONFLICT WITH OTHER OBLIGATIONS
The entry into and performance by it of, and the transactions contemplated
by, the Finance Documents do not and will not:
(a) conflict with:
(i) any law or regulation applicable to it or any of its
Subsidiaries;
(ii) its and each of its Subsidiaries' constitutional documents; or
(iii) any agreement or instrument binding upon it or any of its
Subsidiaries or any of its or any of its Subsidiaries' assets; or
(b) result in the existence of, or oblige it or any of its Subsidiaries to
create, any Security over any of its or any of its Subsidiaries'
assets.
20.4 POWER AND AUTHORITY
It has the power to enter into, perform and deliver, and has taken all
necessary action to authorise its entry into, performance and delivery of,
the Finance Documents to which it is a party and the transactions
contemplated by those Finance Documents.
20.5 VALIDITY AND ADMISSIBILITY IN EVIDENCE
All Authorisations required or desirable:
(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 the transactions contemplated by those Finance Documents; and
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(b) to make the Finance Documents to which it is a party admissible in
evidence in its jurisdiction of incorporation,
have been obtained or effected and are in full force and effect.
20.6 GOVERNING LAW AND ENFORCEMENT
(a) The choice of law specified in each Finance Document to which it is a party
as the governing law of that Finance Document will be recognised and
enforced in its jurisdiction of incorporation.
(b) Subject to the Reservations, any judgment obtained in relation to a Finance
Document to which it is a party in the jurisdiction of the governing law of
that Finance Document will be recognised and enforced in that Obligor's
jurisdiction of incorporation.
20.7 NO CAPITAL DUTY, FILING OR STAMP TAXES
Under the law of its jurisdiction of incorporation or residence for tax
purposes it is not necessary that the Finance Documents to which it is a
party be filed, recorded or enrolled with any court or other authority in
that jurisdiction or that any capital duty, stamp, registration or similar
tax be paid on or in relation to the Finance Documents to which it is a
party or the transactions contemplated by the Finance Documents to which it
is a party (save in each case for the payment of Swiss stamp duty or Swiss
Anticipatory Tax that may arise out of a breach of Clause 27.18 (Bank
representation by Original Lenders) or Clause 25.2 (Conditions of
assignment or transfer)).
20.8 NO DEFAULT
(a) No Event of Default is continuing or can reasonably be expected to result
from the making of any Utilisation.
(b) No other event or circumstance is outstanding which constitutes (or which
would, with the expiry of a grace period, the giving of notice or the
making of any determination under the relevant document or any combination
of the foregoing, constitute) 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 which could reasonably be
expected to have a Material Adverse Effect.
20.9 INFORMATION MEMORANDUM
(a) The factual information in the Information Memorandum, was true, complete
and accurate in all material respects as at the date it was provided or as
at the date (if any) at which it is stated.
(b) The financial projections in the Information Memorandum, have been prepared
on the basis of recent historical information and on the basis of
reasonable assumptions.
(c) Any expressions of opinion or intention in the Information Memorandum, were
made after due and careful consideration and were believed to be
reasonable.
(d) Nothing has occurred since the date of the Information Memorandum or been
omitted from the Information Memorandum and no information has been given
or withheld by any member of the Group to any Finance Party that results in
any of the information contained in the Information Memorandum being untrue
or misleading in any material respect.
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20.10 FINANCIAL STATEMENTS
(a) Its Original Financial Statements were prepared in accordance with the
Applicable Accounting Principles consistently applied.
(b) Its Original Financial Statements fairly represent its financial condition
and operations as at the end of and for the relevant financial year.
(c) There has been no material adverse change in its business or financial
condition since the date to which the Original Financial Statements were
drawn up.
20.11 PARI PASSU RANKING
Its payment obligations under the Finance Documents rank at least pari
passu with the claims of all its other unsecured and unsubordinated
creditors, except for obligations mandatorily preferred by law applying to
companies generally. For the avoidance of doubt, this exception does not
include, in the case of an Obligor incorporated in Spain, any obligation
which has been raised to the status of a Spanish Public Document.
20.12 NO PROCEEDINGS PENDING OR THREATENED
(a) No litigation, arbitration or administrative proceedings of or before any
court, arbitral body or agency (including any arising from or relating to
Environmental Law or any Environmental Licence) which are reasonably likely
to be adversely determined and which, if adversely determined, can
reasonably be expected to have a Material Adverse Effect have been started
or (to the best of its knowledge) threatened against it or any of its
Subsidiaries, nor are there any circumstances likely to give rise to any
such litigation, arbitration or administrative proceedings.
(b) No labour disputes which can reasonably be expected to have a Material
Adverse Effect are current or (to the best of its knowledge) threatened,
nor are there any circumstances likely to give rise to any such disputes.
20.13 ASSETS
It and each of its Subsidiaries has good title to, or valid leases or
licences of or is otherwise entitled to use, all material assets required
by it to carry on its business as it is being, or is proposed to be,
conducted.
20.14 ENVIRONMENTAL LAWS AND LICENCES
It and each of its Subsidiaries has:
(a) complied with all Environmental Laws to which it is subject;
(b) all Environmental Licences required in connection with its business;
(c) complied with the terms of those Environmental Licences; and
(d) complied with the terms of the Environmental Policy,
in each case where failure to do so would be reasonably likely to have a
Material Adverse Effect.
20.15 ENVIRONMENTAL RELEASES
No:
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(a) property currently or previously owned, leased, occupied or controlled
by it or any of its Subsidiaries (including any offsite waste
management or disposal location utilised by it or any of its
Subsidiaries) is contaminated with any Hazardous Substance; and
(b) discharge, release, leaching, migration or escape of any Hazardous
Substance into the Environment has occurred or is occurring on, under
or from that property,
in each case in circumstances where this would be reasonably likely to have
a Material Adverse Effect.
20.16 NO FINANCIAL INDEBTEDNESS OR SECURITY
(a) Neither it nor any of its Subsidiaries has any Financial Indebtedness other
than as permitted by Clause 23.6 (Restrictions on Financial Indebtedness).
(b) No Security exists over all or any of its (or any of its Subsidiaries')
assets other than as permitted by paragraph (d) of Clause 23.4 (Negative
pledge).
20.17 SOLVENCY
(a) No Obligor is insolvent or unable to pay its debts (including subordinated
and contingent debts), nor could it be deemed to be unable to pay its debts
within the meaning of:
(i) (in the case of a company incorporated in England or Wales) Section
123(1)(e) or 123(2) of the Insolvency Xxx 0000; or
(ii) (in the case of any other company) the laws of the jurisdiction in
which it is incorporated,
nor, in any such case, will it become so in consequence of entering into
any Finance Document and/or performing any transaction contemplated by any
Finance Document.
(b) No Obligor has taken any corporate action nor have any other steps been
taken or legal proceedings been started or threatened for its winding-up,
dissolution, liquidation, administration, bankruptcy, suspension of
payments or for the appointment of a receiver, administrator,
administrative receiver, trustee or similar officer of it or of any or all
of its assets or revenues.
20.18 TAXES
(a) Each member of the Group has paid all Taxes required to be paid by it when
due (or, if later, before any interest, fines or penalties are imposed or
any Security could be imposed ranking in priority to the claims of any
Finance Party).
(b) Paragraph (a) above does not apply to any Taxes:
(i) being contested by it in good faith and in accordance with the
relevant procedures;
(ii) for which adequate reserves are being maintained in accordance with
Applicable Accounting Principles; and
(iii) where payment can be lawfully withheld and will not result in the
imposition of any interest, fines or penalty or any Security, as
described in paragraph (a) above.
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20.19 REPETITION
(a) The Repeating Representations (and, in the case of sub-paragraph (ii)
below, the representations and warranties set out in Clause 20.5 (Validity
and admissibility in evidence) and Clause 20.7 (No capital duty, filing or
stamp taxes)) are deemed to be made by each Obligor (in relation to itself
and, to the extent expressed to be applicable to them, its Subsidiaries (if
any)) by reference to the facts and circumstances then existing on
(i) the date of each Utilisation Request, the first day of each Interest
Period and the Term Out Date; and
(ii) in the case of an Additional Obligor, the day on which the company
becomes (or it is proposed that the company becomes) an Additional
Obligor.
(b) The representations and warranties set out in Clause 20.9 (Information
Memorandum) are deemed to be made by the Company and the Parent by
reference to the facts and circumstances then existing on the date of issue
of the Information Memorandum.
21. INFORMATION UNDERTAKINGS
The undertakings in this Clause 21 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.
21.1 ANNUAL FINANCIAL STATEMENTS
The Company shall supply to the Facility Agent in sufficient copies for all
the Lenders as soon as the same become available, but in any event within
120 days after the end of each of its financial years:
(a) the Parent's audited consolidated financial statements for that
financial year; and
(b) the audited (and, in the case of Xstrata Coal Investments Australia
Pty Limited, consolidated) financial statements of each Obligor (other
than Xstrata Coal Australia Pty Limited or any Obligor incorporated in
Australia, for so long as it is excluded from providing financial
statements in Australia through compliance with Section 341 of the
Corporations Xxx 0000 of Australia) for that financial year.
21.2 HALF-YEARLY FINANCIAL STATEMENTS
The Company shall supply to the Facility Agent in sufficient copies for all
the Lenders as soon as the same become available, but in any event within
90 days after the end of each Accounting Half-year ending on 30 June of the
financial year of the Company, the Parent's consolidated financial
statements for that Accounting Half-year.
21.3 CONTENT OF HALF-YEARLY FINANCIAL STATEMENTS
Each set of half-yearly financial statements delivered pursuant to Clause
21.2 (Half-yearly financial statements) above shall include:
(i) a consolidated cash flow statement and profit and loss account for the
relevant Accounting Half-year and for the financial year to date; and
(ii) a consolidated balance sheet as at the end of the relevant Accounting
Half-year.
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21.4 COMPLIANCE CERTIFICATE
(a) The Company shall supply to the Facility Agent, with each set of financial
statements delivered pursuant to paragraph (a) of Clause 21.1 (Annual
financial statements) or Clause 21.2 (Half-yearly financial statements), a
Compliance Certificate which shall:
(i) set out (in reasonable detail) computations as to compliance with
Clause 22 (Financial covenants) as at the date at which or, as the
case may be, in respect of the period for which those financial
statements were drawn up;
(ii) confirm that no Default is continuing (or if a Default is continuing,
specify the Default and the steps being taken to remedy it); and
(iii) in the case of a Compliance Certificate provided with financial
statements delivered pursuant to paragraph (a) of Clause 21.1 (Annual
financial statements) only, set out the Material Subsidiaries of the
Group.
(b) Each Compliance Certificate shall be signed on behalf of the Company by two
officers of the Company.
21.5 REQUIREMENTS AS TO FINANCIAL STATEMENTS
(a) Each set of financial statements delivered by the Company pursuant to
Clause 21.1 (Annual financial statements) or Clause 21.2 (Half-yearly
financial statements) shall be certified by an officer of the relevant
company as fairly representing its (or, as the case may be, its
consolidated) financial condition and operations as at the end of and for
the period in relation to which those financial statements were drawn up.
(b) The Company shall procure that each set of financial statements of the
Parent delivered pursuant to Clause 21.1 (Annual financial statements) or
Clause 21.2 (Half-yearly financial statements) is prepared using GAAP,
accounting practices and financial reference periods in each case
consistent with the Applicable Accounting Principles unless, in relation to
any set of financial statements, it notifies the Facility Agent that there
has been a change in GAAP, the accounting practices or reference periods
and the auditors of the Parent deliver to the Facility Agent:
(i) a description of any change necessary for the relevant financial
statements to reflect the Applicable Accounting Principles; and
(ii) sufficient information, in form and substance as may be reasonably
required by the Facility Agent, to enable the Lenders to determine
whether Clause 22 (Financial covenants) has been complied with, to
determine any other relevant matter and/or to make an accurate
comparison between the financial position indicated in those financial
statements and the Original Financial Statements.
Any reference in this Agreement to those financial statements shall be
construed as a reference to those financial statements as adjusted to
reflect the Applicable Accounting Principles.
(c) The Parent and the Facility Agent must, each upon the request of the other,
enter into discussions for a period of not more than 90 days with a view to
agreeing any amendments required to be made to this Agreement to place the
Lenders in the same position as they would
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have been in if the change notified under paragraph (b) above had not
happened. Any agreement between the Parent and the Facility Agent, with the
prior consent of the Majority Lenders, will be binding on all the Parties.
21.6 INFORMATION: MISCELLANEOUS
The Company shall supply to the Facility Agent (in sufficient copies for
all the Lenders, if the Facility Agent so requests):
(a) all documents dispatched by the Parent to its shareholders (or any
class of them) or its creditors generally at the same time as they are
dispatched;
(b) promptly upon becoming aware of them, the details of any litigation,
arbitration or administrative proceedings which are current,
threatened or pending against any member of the Group, and which are
reasonably likely to be adversely determined and can reasonably be
expected, if adversely determined, to have a Material Adverse Effect;
(c) promptly upon becoming aware of them, the details of any claim, notice
or other communication received by it in respect of any actual or
alleged breach of or liability under Environmental Law which, if
substantiated, would be reasonably likely to have a Material Adverse
Effect;
(d) promptly, notice if:
(i) the Parent is not or ceases to be tax resident in Switzerland;
(ii) Xstrata Coal AG is not or ceases to be tax resident in Australia;
or
(iii) any other Obligor is not or ceases to be tax resident in the
jurisdiction in which it is incorporated; and
(e) promptly, such further information regarding the financial condition,
business and operations of any member of the Group as any Finance
Party (through the Facility Agent) may reasonably request.
21.7 NOTIFICATION OF DEFAULT
(a) Each Obligor shall notify the Facility Agent of any Default (and the steps,
if any, being taken to remedy it) promptly upon becoming aware of its
occurrence (unless that Obligor is aware that a notification has already
been provided to the Facility Agent by another Obligor).
(b) Promptly upon a request by the Facility Agent, the Company shall supply to
the Facility Agent a certificate signed by two of its directors or senior
officers on its behalf 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).
22. FINANCIAL COVENANTS
The Parent shall ensure that:
(a) Consolidated Borrowings will not at any time exceed 50 per cent. of
Total Capitalisation;
(b) the ratio of Consolidated Borrowings to EBITDA for any Relevant Period
will not exceed 3.00:1.00; and
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(c) the ratio of EBITDA to Interest Expense in respect of any Relevant
Period will not be less than 5.00:1.00.
23. GENERAL UNDERTAKINGS
The undertakings in this Clause 23 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.
23.1 AUTHORISATIONS
Each Obligor shall (and the Company shall ensure that each other member of
the Group will) promptly obtain, comply with and do all that is necessary
to maintain in full force and effect (and supply certified copies to the
Facility Agent of) any Authorisation required under any applicable law or
regulation:
(a) to enable it to perform its obligations under the Finance Documents to
which it is a party;
(b) to ensure the legality, validity, enforceability or admissibility in
evidence in its jurisdiction of incorporation of any Finance Document
to which it is a party; and
(c) to enable it to carry on its business as it is being conducted from
time to time if failure to obtain, comply with or maintain any such
Authorisation could reasonably be expected to have a Material Adverse
Effect.
23.2 COMPLIANCE WITH LAWS
Each Obligor shall (and the Company shall ensure that each other member of
the Group will) comply in all respects with all laws to which it is
subject, if failure so to comply would be reasonably likely to have a
Material Adverse Effect.
23.3 PARI PASSU
(a) Each Obligor shall ensure that its obligations, (whether actual or
contingent), under the Finance Documents rank at all times at least pari
passu in right of priority and payment with the claims of all its other
unsecured and unsubordinated creditors, except for obligations mandatorily
preferred by laws applying to companies generally.
(b) The Company and each Obligor incorporated in Spain shall ensure that no
other obligation of an Obligor shall be raised to or retained with the
status of a Spanish Public Document.
23.4 NEGATIVE PLEDGE
(a) No Obligor shall (and the Company shall ensure that no other member of the
Group will) create or permit to subsist any Security over any of its
assets.
(b) No Obligor shall (and the Company shall ensure that no other member of the
Group will):
(i) sell, transfer or otherwise dispose of any of its assets on terms
whereby they are or may be leased to or re-acquired by an Obligor or
any other member of the Group;
(ii) enter into or allow to subsist any arrangement under which money or
the benefit of a bank or other account may be applied, set-off or made
subject to a combination of accounts; or
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(iii) enter into any other preferential arrangement having a similar
effect,
in circumstances where the arrangement or transaction is entered into
primarily as a method of raising Financial Indebtedness or of financing the
acquisition of an asset.
(c) No Obligor shall (and the Company shall ensure that no other member of the
Group will) sell, transfer or otherwise dispose of any of its receivables
on recourse terms.
(d) Paragraphs (a) and (b) above do not apply to:
(i) any Security comprising a netting or set-off arrangement entered into
by any member of the Group in the ordinary course of its banking
arrangements for the purpose of netting debit and credit balances;
(ii) any Security over goods and documents of title arising in the ordinary
course of trading or retention of title arrangements and rights of
set-off arising in the ordinary course of trading with suppliers of
goods to any member of the Group;
(iii) any Security existing and disclosed in writing to the Facility Agent
prior to the date of this Agreement provided that the amount thereby
secured, as so disclosed, is not thereafter increased or its maturity
extended;
(iv) any Security over or affecting any asset acquired by a member of the
Group after the date of this Agreement, provided that:
(A) the Security was not created in contemplation of that
acquisition;
(B) the amount thereby secured has not been increased in
contemplation of, or since the date of, that acquisition; and
(C) unless the Security is in favour of a government or utility
supplier and was required to be given as a condition of the
person who created the Security being permitted to carry on
business or being provided with utility supplies, it is removed
or discharged within six months of the date of acquisition;
(v) 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, provided that:
(A) the Security was not created in contemplation of the acquisition
of that company;
(B) the amount thereby secured has not been increased in
contemplation of, or since the date of, that acquisition; and
(C) unless the Security is in favour of a government or utility
supplier and was required to be given as a condition of the
person who created the Security being permitted to carry on
business or being provided with utility supplies, it is removed
or discharged within six months of that company becoming a member
of the Group;
(vi) any Security created over any assets of, shares in, or debts or other
obligations of a Project Company securing Project Finance Debt of that
Project Company;
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(vii) any Security in the form of cross charges over joint venture related
assets granted to other joint venturers and/or the manager of the
joint venture to secure obligations owed to any one or more of the
other joint venturers and/or the manager under the joint venture or
related agreement;
(viii) any Security securing indebtedness the principal amount of which
(when aggregated with (A) the principal amount of any other
indebtedness which has the benefit of Security given by any member of
the Group, other than any permitted under paragraphs (i) to (vii)
above and (B) any other Financial Indebtedness permitted under Clause
23.6(b)(vii)), does not exceed 5 per cent. of Total Assets at that
time (or its equivalent in any other currency or currencies); or
(ix) any Security approved by the Majority Lenders.
23.5 DISPOSALS
(a) No Obligor shall (and the Company shall ensure that no other member of the
Group will) enter into a single transaction or a series of transactions
(whether related or not and whether voluntary or involuntary) to sell,
lease, transfer or otherwise dispose of (each a "DISPOSAL") any asset.
(b) Paragraph (a) above does not apply to any disposal:
(i) of stock made in the ordinary course of trading of the disposing
entity;
(ii) of cash:
(A) for the acquisition on arm's length terms of assets permitted or
required under this Agreement; or
(B) for any other purpose not prohibited under this Agreement;
(iii) constituting the creation of any Security permitted under paragraph
(d) of Clause 23.4 (Negative pledge);
(iv) of an obsolete or redundant asset which is no longer required for the
purposes of the business;
(v) of assets in exchange for other assets comparable or superior as to
type, value and quality and location;
(vi) by a member of the Group to another member of the Group which is a
wholly owned Subsidiary of the Parent;
(vii) by a member of the Group to a member of the Group which is not a
wholly owned Subsidiary of the Parent;
(viii) where the market value (when aggregated with the market value of any
other sale, lease, transfer or other disposal, other than any
permitted under paragraphs (i) to (vii) above) does not exceed 10 per
cent. of Total Assets in any financial year of the Company; or
(ix) approved by the Majority Lenders,
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provided that each disposal is (except in any case referred to in paragraph
(vi)) made on arm's length terms for full market value and would not (in
each case) have a Material Adverse Effect.
Provided further that if a Subsidiary becomes a member of the Group after
the date of this Agreement, assets owned by that Subsidiary at the time of
its acquisition may be disposed without the market value of such assets
being included for the purposes of paragraph (viii) above as long as such
disposals are made on arm's length terms for full market value and during
the 12 Month period following the acquisition of that Subsidiary.
(c) Nothing in paragraphs (b)(i) to (v), (vii), (viii) or (ix) permits the
disposal by any member of the Group of any shares in a Guarantor.
(d) For the purposes of Clause 23.5(b)(vi), Asturiana de Zinc, S.A. will be
considered a wholly owned Subsidiary of the Parent provided the Parent
directly or indirectly owns not less than 99.98 per cent. of the shares of
Asturiana de Zinc, S.A.
23.6 RESTRICTIONS ON FINANCIAL INDEBTEDNESS
(a) The Company shall ensure that no other member of the Group (other than an
Obligor) will incur (or agree to incur) or have outstanding any Financial
Indebtedness.
(b) Paragraph (a) above does not apply to:
(i) Financial Indebtedness permitted by Clause 23.7(b);
(ii) Non Recourse Project Finance Debt;
(iii) Project Finance Debt (other than Non Recourse Project Finance Debt)
the aggregate outstanding principal amount of which does not exceed
$400,000,000 (or its equivalent in any other currency or currencies);
(iv) Financial Indebtedness in respect of bonds issued by any financing
vehicle which is a direct Subsidiary of the Parent or the Company but
not a Subsidiary of any other member of the Group provided such
financing vehicle does not have any Subsidiaries;
(v) Financial Indebtedness under the Private Placements and the MTN
Securities;
(vi) Financial Indebtedness under Permitted Indemnities; or
(vii) Financial Indebtedness not falling within sub-paragraphs (i) to (vi)
above, the aggregate outstanding principal amount of which (when taken
together with any other Financial Indebtedness secured under Clause
23.4(d)(viii)) does not exceed 5 per cent. of Total Assets (or its
equivalent in any other currency or currencies),
provided that if a Subsidiary becomes a member of the Group after the date
of this Agreement, Financial Indebtedness of that Subsidiary at the time of
its acquisition shall not be included for the purposes of Clause
23.6(b)(vii) above for a period of 6 Months following its acquisition other
than any such Financial Indebtedness which the Company does not (in good
faith) intend to repay within such 6 Month period.
(c) The Company and each Swiss Obligor shall ensure that no Swiss Borrower has
interest bearing Indebtedness for Borrowed Money payable to:
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(i) more than 10 Non-Banks in respect of this Facility Agreement; or
(ii) more than 20 Non-Banks (including, for the avoidance of doubt, any
lenders which are members of the Group) in aggregate for each Swiss
Borrower.
23.7 LOANS AND GUARANTEES
(a) No Obligor (except for the Parent) shall (and the Company shall ensure that
no other member of the Group will):
(i) make or allow to remain outstanding any loan, or provide any form of
credit or financial accommodation, to any other person; or
(ii) give or issue or allow to remain outstanding any guarantee, indemnity,
bond or letter of credit to or for the benefit of or in respect of the
liabilities or obligations of, any other person or voluntarily assume
or retain any liability (whether actual or contingent) of any other
person.
(b) Paragraph (a) above does not apply to:
(i) Permitted Indemnities;
(ii) loans or other forms of credit or financial accommodation by:
(A) any member of the Group to another member of a Group which is a
wholly-owned Subsidiary of the Parent or (on arm's length terms)
to any other member of the Group; or
(B) a member of the Group to any other person on arm's length terms
in the ordinary course of business, the aggregate principal
amount of which (when taken together with the amount of any
liability in respect of any guarantee or indemnity permitted
under subparagraph (b)(iii)(B)) does not exceed $5,000,000 (or
its equivalent in any other currency or currencies);
(iii) guarantees, indemnities, bonds or letters of credit given or issued
in respect of:
(A) the liabilities or obligations of a member of the Group which is
a wholly owned Subsidiary of the Parent or (on arm's length
terms) the liabilities or obligations of a member of the Group
which is not a wholly owned Subsidiary of the Parent provided
that:
(1) a member of the Group which is not an Obligor may not give
or issue or allow to remain outstanding any guarantee,
indemnity, bond or letter of credit to or for the benefit of
or in respect of the Financial Indebtedness of a member of
the Group which is an Obligor other than:
(a) Financial Indebtedness incurred in accordance with
clause 23.6(b)(vii); or
(b) to the extent required to take advantage of the class
order for wholly owned entities under Section 341 of
the
-57-
Corporations Act 2001 of Australia, guarantees of
Xstrata Coal Investments Australia Pty Limited, Xstrata
Coal Australia Pty Limited and of any of their wholly
owned Subsidiaries, each of which is expressed to be in
favour of each other; and
(2) a member of the Group which is not an Obligor may not give
or issue or allow to remain outstanding any guarantee,
indemnity, bond or letter of credit to or for the benefit of
or in respect of Financial Indebtedness permitted under
clause 23.6(b)(iv);
(B) any other liabilities or obligations, the aggregate principal
amount of which (when taken together with the principal amount of
any loans permitted under subparagraph (b)(ii)(B)) does not
exceed $5,000,000 (or its equivalent in any other currency or
currencies); and
(C) Project Finance Debt permitted by Clause 23.6(b)(iii).
(iv) loans (or other forms of credit or financial accommodation) to or
guarantees, indemnities, bonds or letters of credit given ("JV
Loans/Guarantees") on arm's length terms in respect of the liabilities
or obligations of a Joint Venture provided that:
(A) the proportion that the relevant JV Loan/Guarantee bears to the
total loan (or other form of credit or financial accommodation)
to or guarantee, indemnity, bond or letter of credit given in
respect of the relevant Joint Venture by all the joint venture
partners, will not exceed the proportion of the relevant member
of the Group's investment in that Joint Venture to the total
investment of all the joint venture partners in that Joint
Venture; and
(B) the Joint Venture is in the mining and minerals business.
(c) For the purposes of this Clause 23.7, Asturiana de Zinc, S.A. will be
considered a wholly owned Subsidiary of the Parent provided the Parent
directly or indirectly owns not less than 99.98 per cent. of the shares of
Asturiana de Zinc, S.A.
23.8 UPSTREAMING OF EXCESS CASH
Each Obligor shall (and the Company shall procure that each other member of
the Group will), subject to applicable laws and regulations, use reasonable
endeavours to ensure that any cash or cash equivalent investments which the
Company determines (acting reasonably) are held by any member of the Group
in excess of its reasonable projected cash requirements for the following
60 days and which are available, are reasonably promptly transferred (by
way of payment of interest or principal on intra-Group loans, dividends or
otherwise) to an Obligor, provided that no member of the Group should be
obliged to transfer or procure such transfer from any member of the Group
when as a result of doing so, any member of the Group would be likely to
incur any material net cost or liability in respect of such transfer.
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23.9 CHANGE OF BUSINESS
The Company shall procure that no substantial part of the business of the
Group is a business other than the mining and minerals business.
23.10 MERGER
No Obligor shall enter into any amalgamation, demerger, merger or corporate
reconstruction without the prior written consent of the Facility Agent.
23.11 INSURANCE
Each Obligor shall (and the Company shall ensure that each other member of
the Group will) maintain insurances on and in relation to its business and
assets with reputable underwriters or insurance companies:
(i) against those risks, and to the extent, usually insured against by
prudent companies located in the same or a similar location and
carrying on a similar business; and
(ii) against those risks, and to the extent, required by applicable law or
by contract.
23.12 ENVIRONMENTAL UNDERTAKINGS
Each Obligor shall (and the Company shall ensure that each other member of
the Group will):
(a) comply with all Environmental Laws to which it is subject;
(b) comply with the Environmental Policy;
(c) obtain all Environmental Licences required in connection with its
business; and
(d) comply with the terms of all those Environmental Licences,
in each case where failure to do so would be reasonably likely to have a
Material Adverse Effect.
23.13 TAXES
(a) Each Obligor shall (and the Company shall ensure that each other
member of the Group will) pay all Taxes required to be paid by it when
due (or, if later, before any interest, fines or penalties are imposed
or any Security could be imposed ranking in priority to the claims of
any Finance Party).
(b) Paragraph (a) above does not apply to any Taxes:
(i) being contested by the relevant member of the Group in good faith
and in accordance with the relevant procedures;
(ii) for which adequate reserves are being maintained in accordance
with Applicable Accounting Principles; and
(iii) where payment can be lawfully withheld and will not result in
the imposition of any interest, fines or penalties or Security as
described in paragraph (a) above.
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23.14 RAISING TO SPANISH PUBLIC DOCUMENT STATUS
The Company shall ensure that it shall, as soon as possible and in any
event within 10 Business Days of the date of this Agreement, raise this
Agreement to the status of Spanish Public Document.
24. EVENTS OF DEFAULT
Each of the events or circumstances set out in Clause 24 is an Event of
Default.
24.1 NON-PAYMENT
An Obligor does not pay on the due date any amount payable pursuant to a
Finance Document at the place and in the currency in which it is expressed
to be payable unless
(a) its failure to pay is caused by administrative or technical error; and
(b) payment is made within two Business Days of its due date.
24.2 FINANCIAL COVENANTS
Any requirement of Clause 22 (Financial covenants) is not satisfied.
24.3 OTHER OBLIGATIONS
(a) An Obligor does not comply with any provision of the Finance Documents
(other than those referred to in Clause 24.1 (Non-payment) or Clause 24.2
(Financial covenants)).
(b) No Event of Default under paragraph (a) above in relation to Clause 23.1
(Authorisations) will occur if the failure to comply is capable of remedy
and is remedied within 15 days of the Facility Agent giving notice to the
Company or the Company becoming aware of the failure to comply.
24.4 MISREPRESENTATION
Any representation or statement made or deemed to be made by any person
other than a Finance Party in the Finance Documents or any other document
delivered by or on behalf of any Obligor under or in connection with any
Finance Document is or proves to have been incorrect or misleading in any
material respect when made or deemed to be made.
24.5 CROSS DEFAULT
(a) Any Financial Indebtedness of any member of the Group (other than Non
Recourse Project Finance Debt) is not paid when due nor within any
originally applicable grace period.
(b) Any Financial Indebtedness of any member of the Group (other than Non
Recourse Project Finance Debt) is declared to be or otherwise becomes due
and payable prior to its specified maturity as a result of an event of
default (however described) under the document relating to that Financial
Indebtedness.
(c) Any commitment for any Financial Indebtedness of any member of the Group
(other than Non Recourse Project Finance Debt) is cancelled or suspended by
a creditor of any member of the Group as a result of an event of default
(however described) under the document relating to that Financial
Indebtedness.
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(d) Any creditor of any member of the Group becomes entitled to declare any
Financial Indebtedness of any member of the Group (other than Non Recourse
Project Finance Debt) due and payable prior to its specified maturity as a
result of an event of default (however described) under the document
relating to that Financial Indebtedness.
(e) No Event of Default will occur under this Clause 24.5 if the aggregate
amount of Financial Indebtedness or commitment for Financial Indebtedness
falling within paragraphs (a) to (d) above is less than $25,000,000 (or its
equivalent in any other currency or currencies).
24.6 INSOLVENCY
(a) An Obligor or a Material Subsidiary (other than a Non Recourse Project
Company) is or is deemed by law unable or admits inability to pay its debts
as they fall due, suspends, or threatens to suspend, making payments on any
of its debts or, by reason of actual or anticipated financial difficulties,
commences negotiations with one or more of its creditors with a view to
rescheduling any of its indebtedness.
(b) The value of the assets of an Obligor or a Material Subsidiary (other than
a Non Recourse Project Company) is less than its liabilities (taking into
account contingent and prospective liabilities).
(c) A moratorium is declared in respect of any indebtedness of an Obligor or a
Material Subsidiary (other than a Non Recourse Project Company).
(d) The net equity of a Swiss Obligor is less than one half of its share
capital and legal reserves and such shortfall is not cured in a lasting
manner within sixty (60) days of (i) such Swiss Obligor's board of
directors becoming aware or (ii) the date on which they should have become
aware, of such deficiency.
(e) In the case of any Material Subsidiary incorporated in South Africa:
(i) that Material Subsidiary commits an act of insolvency as described in
section 8 of the South African Insolvency Act, 1936; or
(ii) that Material Subsidiary is placed under judicial management.
24.7 INSOLVENCY PROCEEDINGS
Any corporate action, legal proceedings or other procedure or step is taken
in relation to:
(a) the suspension of payments, a moratorium of any indebtedness,
winding-up, dissolution, administration or reorganisation (by way of
voluntary arrangement, scheme of arrangement or otherwise) of any
Obligor or Material Subsidiary (other than a solvent liquidation or
reorganisation of any Material Subsidiary which is not an Obligor);
(b) a composition ("convenio extra judicial o judicial con sus acreedores"
in relation to any company incorporated in Spain), assignment,
compromise or arrangement with any creditor of any Obligor or Material
Subsidiary;
(c) the appointment of a liquidator, receiver, administrator,
administrative receiver, compulsory manager or other similar officer
in respect of any Obligor or Material Subsidiary or any of its assets;
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(d) the enforcement of any Security over any assets of any Obligor or
Material Subsidiary; or
(e) the postponement of the declaration of bankruptcy in accordance with
the art.725a of the Swiss Code of Obligations in relation to a Swiss
Obligor,
or any analogous procedure or step is taken in any jurisdiction including
in relation to any company incorporated in Spain (i) the initiation by any
Obligor or Material Subsidiary of cessation of payments or bankruptcy
judicial proceedings (solicitud de inicio de procedimiento judicial de
concurso, suspension de pagos o quiebra) and (ii) the initiation by any
person of proceedings requesting a judicial resolution declaring the
insolvency (auto de declaracion de concurso o quiebra) any Obligor or
Material Subsidiary.
24.8 CREDITORS' PROCESS
Any expropriation, attachment, sequestration, distress or execution affects
any asset or assets of any Obligor or Material Subsidiary and is not
discharged within 28 days.
24.9 OWNERSHIP
(a) Any Obligor (other than the Parent, the Company, Asturiana de Zinc, S.A.
and any direct or indirect Subsidiary of Asturiana de Zinc, S.A.) is not or
ceases to be a wholly-owned Subsidiary of the Company.
(b) Less than 99.98 per cent. of the shares of Asturiana de Zinc, S.A. are
owned directly or indirectly by the Parent.
(c) The Company is not or ceases to be a wholly-owned Subsidiary of the Parent.
24.10 UNLAWFULNESS
It is or becomes unlawful for any person other than a Finance Party to
perform any of its obligations under the Finance Documents.
24.11 REPUDIATION
Any person other than a Finance Party repudiates a Finance Document or
evidences an intention to repudiate a Finance Document.
24.12 GUARANTEES
Any guarantee or indemnity in or any subordination effected under any
Finance Document is not in full force and effect.
24.13 NATIONALISATION/POLITICAL RISK
(a) Any step is taken by any person with a view to:
(i) the seizure, compulsory acquisition, expropriation or nationalisation
of any or all of the assets, shares or revenues of any member of the
Group which would be reasonably likely to have a Material Adverse
Effect; or
(ii) wholly or partially displacing the management of any Obligor or of any
other member of the Group or wholly or partially curtailing the
authority of an Obligor or any other member
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of the Group in the conduct of its business which, in the case of a
member of the Group which is not an Obligor, would be reasonably
likely to have a Material Adverse Effect.
(b) Any act of armed conflict, rebellion, riot, civil commotion, strikes of a
political nature, act or campaign of terrorism, or sabotage of a political
nature occurs which the Majority Lenders determine has or would be
reasonably likely to have a Material Adverse Effect.
24.14 LITIGATION
Any litigation, arbitration or administrative proceedings are commenced or
threatened by or against any member of the Group or its respective assets
in each case which are reasonably likely to be adversely determined against
that member of the Group and, if so determined, can reasonably be expected
to have a Material Adverse Effect.
24.15 MATERIAL ADVERSE CHANGE
Any event or circumstance occurs which the Majority Lenders determine has
or could reasonably be expected to have a Material Adverse Effect.
24.16 ACCELERATION
On and at any time after the occurrence of an Event of Default which is
continuing the Facility Agent may, and shall if so directed by the Majority
Lenders, by notice to the Company:
(a) cancel the Total Commitments whereupon they shall immediately be
cancelled;
(b) declare that all or part of the Utilisations, together with accrued
interest, and all other amounts accrued or outstanding under the
Finance Documents be immediately due and payable, whereupon they shall
become immediately due and payable; and/or
(c) declare that all or part of the Utilisations be payable on demand,
whereupon they shall immediately become payable on demand by the
Facility Agent on the instructions of the Majority Lenders.
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SECTION 9
CHANGES TO PARTIES
25. CHANGES TO THE LENDERS
25.1 ASSIGNMENTS AND TRANSFERS BY THE LENDERS
Subject to this Clause 25, a Lender (the "EXISTING LENDER") may:
(a) assign any of its rights (legal, beneficial or economic); or
(b) transfer by novation any of its rights and obligations (in each case
legal, beneficial or economic),
to another bank or financial institution or to a trust, fund 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") other than an Associate of an Australian
Borrower.
25.2 CONDITIONS OF ASSIGNMENT OR TRANSFER
(a) The consent of the Company is required for an assignment or a transfer by a
Lender unless:
(i) the assignment or transfer is to another Lender or to an Affiliate of
a Lender, in each case, other than a Non-Bank; or
(ii) if to a Bank, an Event of Default is continuing and, if to a Non-Bank,
a notice has been given by the Facility Agent under Clause 24.16
(Acceleration) and the Majority Lenders consent to the assignment or
transfer.
(b) The consent of the Company to an assignment or transfer must not be
unreasonably withheld or delayed. Except in the case of an assignment or
transfer to a Non-Bank, the Company will be deemed to have given its
consent five Business Days after receipt of a request from the Lender
unless consent is expressly refused by the Company within that time.
(c) The consent of the Company to an assignment or transfer must not be
withheld solely because the assignment or transfer may result in an
increase to the Mandatory Cost.
(d) An assignment will only be effective on 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 assume the
same obligations to the other Finance Parties as it would have been under
if it was an Original Lender and shall not be effective if the purported
New Lender is a Non-Bank which the Company has not consented to in
accordance with this Clause 25.2.
(e) A transfer will only be effective if the procedure set out in Clause 25.6
(Procedure for transfer) or, in relation to a Note, paragraph (d) of Clause
25.3 (Transfer and Transmission of Notes) is complied with.
(f) Subject to paragraph (g) below, if:
(i) a Lender assigns or transfers any of its rights or obligations under
the Finance Documents or changes its Facility Office; and
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(ii) as a result of circumstances existing at the date the assignment,
transfer or change occurs, an Obligor would be obliged to make a
payment to the New Lender or Lender acting through its new Facility
Office under Clause 14 (Tax gross-up and indemnities) or Clause 15
(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.
(g) Paragraph (f) above and Clause 25.4 (Assignment or transfer fee) shall not
apply:
(i) to any assignment or transfer referred to in paragraph (a) (ii) above;
or
(ii) in relation to payments under Clause 14 (Tax gross-up and indemnities)
in relation to Australian interest withholding tax if the Existing
Lender was acting through a Facility Office in Australia or the
previous Facility Office was in Australia, and the New Lender or the
Lender in the new Facility Office is not an Associate of the
Australian Borrower.
25.3 TRANSFER AND TRANSMISSION OF NOTES
(a) Subject to this Agreement, a Lender may transfer Notes held by it by
executing a Transfer Certificate.
(b) 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.
(c) 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.
(d) 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.
25.4 ASSIGNMENT OR TRANSFER FEE
The New Lender shall, on the date upon which an assignment or transfer
takes effect otherwise than as a result of the syndication of the
Facilities, pay to the Facility Agent (for its own account) a fee of
$1,500.
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25.5 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:
(i) the legality, validity, effectiveness, adequacy or enforceability of
the Finance Documents or any other documents;
(ii) the financial condition of any Obligor;
(iii) the performance and observance by any Obligor of its obligations
under the Finance Documents or any other documents; or
(iv) the accuracy of any statements (whether written or oral) made in or in
connection with any Finance Document or any other document,
and any representations or warranties implied by law are excluded.
(b) Each New Lender confirms to the Existing Lender and the other Finance
Parties that it:
(i) is solely responsible for making 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;
and
(ii) will continue to be solely responsible for making 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 25; 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 or otherwise.
25.6 PROCEDURE FOR TRANSFER
(a) Subject to the conditions set out in this Clause 25 a transfer is effected
in accordance with paragraph (b) 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, 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) On the Transfer Date:
(i) the Notes and the Loans they represent are transferred to the extent
specified in the Transfer Certificate;
(ii) to the extent that in the Transfer Certificate the Existing Lender
seeks to transfer its rights and obligations under the Finance
Documents by novation, each of the Obligors
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and the Existing Lender shall be released from further obligations
towards one another under the Finance Documents and their respective
rights against one another (other than under the Notes and the Loans
they represent) shall be cancelled (being the "DISCHARGED RIGHTS AND
OBLIGATIONS");
(iii) 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;
(iv) the Facility Agent, the Mandated Lead Arrangers, the Bookrunner, the
New Lender and other Lenders shall acquire the same rights and assume
the same obligations between themselves as they would have acquired
and assumed had the New Lender been an Original Lender with the rights
and/or obligations acquired or assumed by it as a result of the
transfer and to that extent the Facility Agent, the Mandated Lead
Arrangers, the Bookrunner and the Existing Lender shall each be
released from further obligations to each other under this Agreement;
and
(v) the New Lender shall become a Party as a "Lender".
25.7 DISCLOSURE OF INFORMATION
Any Lender may disclose to any of its Affiliates and any other person:
(a) to (or through) whom that Lender assigns or transfers (or may
potentially assign or transfer) all or any of its rights and
obligations under this Agreement;
(b) with (or through) whom that Lender 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; or
(c) to whom, and to the extent that, information is required to be
disclosed by any applicable law or regulation,
any information about any Obligor, the Group and the Finance Documents as
that Lender shall consider appropriate if, in relation to paragraphs (a)
and (b) above, the person to whom the information is to be given has
entered into a Confidentiality Undertaking. This Clause supersedes any
previous agreement relating to the confidentiality of this information.
25.8 SUB-PARTICIPATION ARRANGEMENTS
No Lender shall enter into sub-participation arrangements in relation to
its rights or obligations under the Finance Documents with a Non-Bank.
26. CHANGES TO THE OBLIGORS
26.1 ASSIGNMENTS AND TRANSFER BY OBLIGORS
No Obligor may assign any of its rights or transfer any of its rights or
obligations under the Finance Documents.
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26.2 ADDITIONAL BORROWERS
(a) The Company may request that any of the Company's wholly owned Subsidiaries
(other than Subsidiaries incorporated in South Africa) becomes an
Additional Borrower. That Subsidiary shall become an Additional Borrower
if:
(i) all the Lenders approve the addition of that Subsidiary;
(ii) the Company delivers to the Facility Agent a duly completed and
executed Accession Letter;
(iii) the Company confirms that no Default is continuing or would occur as
a result of that Subsidiary becoming an Additional Borrower;
(iv) the Facility Agent has received all of the documents and other
evidence listed in Part IV of Schedule 1 (Conditions precedent
required to be delivered by an Additional Obligor) in relation to that
Additional Borrower, each in form and substance satisfactory to the
Facility Agent; and
(v) in the case of any Additional Borrower incorporated in Australia, the
"public offer" test as described in Section 128F(3) of the Australian
Tax Act is satisfied in relation to that Additional Borrower's
proposed accession and any issue of Notes by that Additional Borrower.
(b) The Facility Agent shall notify the Company and the Lenders promptly upon
being satisfied that it has received (in form and substance satisfactory to
it) all the documents and other evidence listed in Part IV of Schedule 1.
26.3 RESIGNATION OF A BORROWER
(a) The Company may request that a Borrower (other than the Company) ceases to
be a Borrower by delivering to the Facility Agent a Resignation Letter.
(b) The Facility Agent shall accept a Resignation Letter and notify the Company
and the Lenders of its acceptance if:
(i) no Default is continuing or would result from the acceptance of the
Resignation Letter (and the Company has confirmed this is the case);
and
(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.
26.4 ADDITIONAL GUARANTORS
(a) The Company may request that any of its wholly owned Subsidiaries become an
Additional Guarantor. That Subsidiary and/or any Subsidiary which is
required by this Agreement to become an Additional Guarantor shall become
an Additional Guarantor if:
(i) the Company delivers to the Facility Agent a duly completed and
executed Accession Letter; and
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(ii) the Facility Agent has received all of the documents and other
evidence listed in Part IV of Schedule 1 (Conditions precedent
required to be delivered by an Additional Obligor) in relation to that
Additional Guarantor, each in form and substance satisfactory to the
Facility Agent.
(b) The Facility Agent shall notify the Company and the Lenders promptly upon
being satisfied that it has received (in form and substance satisfactory to
it) all the documents and other evidence listed in Part IV of Schedule 1.
26.5 RESIGNATION OF A GUARANTOR
(a) The Company may request that a Guarantor (other than an Original Obligor)
ceases to be a Guarantor by delivering to the Facility Agent a Resignation
Letter.
(b) The Facility Agent shall accept a Resignation Letter and notify the Company
and the Lenders of its acceptance if no Default is continuing or would
result from the acceptance of the Resignation Letter (and the Company has
confirmed this is the case) whereupon that company shall cease to be a
Guarantor and shall have no further obligations as a Guarantor under the
Finance Documents.
26.6 REPETITION OF REPRESENTATIONS
Delivery of an Accession Letter constitutes confirmation by the relevant
Subsidiary that the Repeating Representations and each of the
representations set out in Clause 20.5 (Validity and admissibility in
evidence) and Clause 20.7 (No capital duty, filing or stamp taxes) 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.
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SECTION 10
THE FINANCE PARTIES
27. ROLE OF THE FACILITY AGENT, BOOKRUNNER AND THE MANDATED LEAD ARRANGERS
27.1 APPOINTMENT OF THE FACILITY AGENT
(a) Each other Finance Party appoints the Facility Agent to act as its agent
under and in connection with the Finance Documents.
(b) Each other Finance Party authorises the Facility 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 including to
execute, ratify and raise any Finance Document and Transfer Certificate to
the status of a Spanish Public Document.
27.2 DUTIES OF THE FACILITY AGENT
(a) The Facility Agent shall promptly forward to a Party the original or a copy
of any document which is delivered to the Facility Agent for that Party by
any other Party.
(b) Except where a Finance Document specifically provides otherwise, the
Facility Agent is not obliged to review or check the adequacy, accuracy or
completeness of any document it forwards to another Party.
(c) If the Facility 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.
(d) If the Facility Agent is aware of the non-payment of any principal,
interest, commitment fee or other fee payable to a Finance Party (other
than the Facility Agent or any Mandated Lead Arranger) under this Agreement
it shall promptly notify the other Finance Parties.
(e) The duties of the Facility Agent under the Finance Documents are solely
mechanical and administrative in nature.
(f) In connection with any guarantee provided by a Spanish Guarantor under
Clause 19 (Guarantee and Indemnity) and the ratification and incorporation
of any Finance Document into a Spanish Public Document, the Facility Agent
shall act as the agent of each Finance Party and is hereby authorised on
behalf of each Finance Party to enter into, enforce the rights of each
Finance Party under and generally represent each Finance Party in respect
of such guarantee and the granting of a Spanish Public Document.
27.3 ROLE OF THE MANDATED LEAD ARRANGERS AND BOOKRUNNER
Except as specifically provided in the Finance Documents, none of the
Mandated Lead Arrangers nor the Bookrunner have any obligations of any kind
to any other Party under or in connection with any Finance Document.
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27.4 NO FIDUCIARY DUTIES
(a) Nothing in this Agreement constitutes the Facility Agent, any Mandated Lead
Arranger or the Bookrunner as a trustee or fiduciary of any other person.
(b) Neither the Facility Agent, any Mandated Lead Arranger or the Bookrunner
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.
27.5 BUSINESS WITH THE GROUP
The Facility Agent, Mandated Lead Arrangers and the Bookrunner may accept
deposits from, lend money to and generally engage in any kind of banking or
other business with any member of the Group.
27.6 RIGHTS AND DISCRETIONS OF THE FACILITY AGENT
(a) The Facility 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) The Facility Agent may assume, unless it has received notice to the
contrary in its capacity as agent for the Lenders for the Finance Parties,
that:
(i) no Default has occurred (unless it has actual knowledge of a Default
arising under Clause 24.1 (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 Company (other than a Utilisation
Request or Selection Notice) is made on behalf of and with the consent
and knowledge of all the Obligors.
(c) The Facility Agent may engage, pay for and rely on the advice or services
of any lawyers, accountants, surveyors or other experts.
(d) The Facility Agent may act in relation to the Finance Documents through its
personnel and agents.
(e) The Facility Agent may disclose to any other Party any information it
reasonably believes it has received as agent under this Agreement.
(f) Notwithstanding any other provision of any Finance Document to the
contrary, neither the Facility Agent, any Mandated Lead Arranger nor the
Bookrunner 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 a breach of a
fiduciary duty or duty of confidentiality.
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27.7 MAJORITY LENDERS' INSTRUCTIONS
(a) Unless a contrary indication appears in a Finance Document, the Facility
Agent shall (i) exercise any right, power, authority or discretion vested
in it as Facility 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
Facility 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) The Facility 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), the Facility Agent may act (or refrain from
taking action) as it considers to be in the best interest of the Lenders.
(e) The Facility Agent is not authorised to act on behalf of a Lender (without
first obtaining that Lender's consent) in any legal or arbitration
proceedings relating to any Finance Document.
27.8 RESPONSIBILITY FOR DOCUMENTATION
Neither the Facility Agent, any Mandated Lead Arranger nor the Bookrunner:
(a) is responsible for the adequacy, accuracy and/or completeness of any
information (whether oral or written) supplied by the Facility Agent,
any Mandated Lead Arranger, the Bookrunner, an Obligor or any other
person given in or in connection with any Finance Document or any of
the Information Memorandum; or
(b) is responsible for the legality, validity, effectiveness, value,
adequacy or enforceability of any Finance Document or any other
agreement, arrangement or document entered into, made or executed in
anticipation of or in connection with any Finance Document.
27.9 EXCLUSION OF LIABILITY
(a) Without limiting paragraph (b) below, the Facility Agent will not be liable
for any action taken by it under or in connection with any Finance
Document, unless directly caused by its gross negligence or wilful
misconduct.
(b) No Party (other than the Facility Agent) may take any proceedings against
any officer, employee or agent of the Facility Agent in respect of any
claim it might have against the Facility 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 the Facility Agent
may rely on this Clause.
(c) The Facility Agent will not be liable for any delay (or any related
consequences) in crediting an account with an amount required under the
Finance Documents to be paid by it if it has taken all
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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.
27.10 LENDERS' INDEMNITY TO THE FACILITY AGENT
(a) Subject to paragraph (b) below, each Lender shall (in proportion to its
Available Commitments and participations in the Loans then outstanding to
the Available Facilities and all the Loans then outstanding) indemnify the
Facility Agent, within three Business Days of demand, against any cost,
loss or liability incurred by the Facility Agent (otherwise than by reason
of its gross negligence or wilful misconduct) in acting as Facility Agent
under the Finance Documents (unless it has been reimbursed by an Obligor
pursuant to a Finance Document).
(b) If the Available Facilities are then zero each Lender's indemnity under
paragraph (a) above shall be in proportion to its Available Commitments to
the Available Facilities immediately prior to their reduction to zero,
unless there are then any Loans outstanding in which case it shall be in
proportion to its participations in the Loans then outstanding to all the
Loans then outstanding.
27.11 RESIGNATION OF THE FACILITY AGENT
(a) The Facility Agent may resign and appoint one of its Affiliates acting
through an office in the United Kingdom as successor by giving notice to
the other Finance Parties and the Company.
(b) Alternatively the Facility Agent may resign by giving notice to the other
Finance Parties and the Company, in which case the Majority Lenders (after
consultation with the Company) may appoint a successor Facility Agent.
(c) If the Majority Lenders have not appointed a successor Facility Agent in
accordance with paragraph (b) above within 30 days after notice of
resignation was given, the Facility Agent (after consultation with the
Company) may appoint a successor Facility Agent (acting through an office
in the United Kingdom).
(d) The retiring Facility Agent shall, at its own cost, make available to its
successor such documents and records and provide such assistance as its
successor may reasonably request for the purposes of performing its
functions as Facility Agent under the Finance Documents.
(e) The resignation notice of the Facility Agent shall only take effect upon
the appointment of a successor.
(f) Upon the appointment of a successor, the retiring Facility Agent shall be
discharged from any further obligation in respect of the Finance Documents
but shall remain entitled to the benefit of this Clause 27. 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.
(g) After consultation with the Company, the Majority Lenders may, by notice to
the Facility Agent require it to resign in accordance with paragraph (b)
above. In this event, the Facility Agent shall resign in accordance with
paragraph (b) above.
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27.12 CONFIDENTIALITY
(a) The Facility Agent (in acting as agent for the Finance Parties) shall be
regarded as acting through its agency division which shall be treated as a
separate entity from any other of its divisions or departments.
(b) If information is received by another division or department of the
Facility Agent it may be treated as confidential to that division or
department and the Facility Agent shall not be deemed to have notice of it.
27.13 RELATIONSHIP WITH THE LENDERS
(a) The Facility Agent may treat each Lender as a Lender, entitled to payments
under this Agreement and acting through its Facility Office 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 3 (Mandatory Cost Formulae).
27.14 CREDIT APPRAISAL BY THE LENDERS
Without affecting the responsibility of any Obligor for information
supplied by it or on its behalf in connection with any Finance Document,
each Lender confirms to the Facility Agent, the Mandated Lead Arrangers and
the Bookrunner that it has been, and will continue to be, solely
responsible for making its own independent appraisal and investigation of
all risks arising under or in connection with any Finance Document
including but not limited to:
(a) the financial condition, status and nature of each member of the
Group;
(b) the legality, validity, effectiveness, adequacy, value or
enforceability of any Finance Document and any other agreement,
arrangement or document entered into, made or executed in anticipation
of, under or in connection with any Finance Document;
(c) whether that Lender has recourse, and the nature and extent of that
recourse, against any Party or any of its respective assets under or
in connection with any Finance Document, the transactions contemplated
by the Finance Documents or any other agreement, arrangement or
document entered into, made or executed in anticipation of, under or
in connection with any Finance Document; and
(d) the adequacy, accuracy and/or completeness of the Information
Memorandum and any other information provided by the Facility Agent,
any Mandated Lead Arranger, the Bookrunner, any Party or by any other
person under or in connection with any Finance Document, the
transactions contemplated by the Finance Documents or any other
agreement, arrangement or document entered into, made or executed in
anticipation of, under or in connection with any Finance Document.
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27.15 REFERENCE BANKS
If a Reference Bank (or, if a 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 Company) appoint another Lender or an Affiliate
of a Lender to replace that Reference Bank.
27.16 MANAGEMENT TIME OF THE FACILITY AGENT
Any amount payable to the Facility Agent under Clause 16.3 (Indemnity to
the Facility Agent), Clause 18 (Costs and expenses) and Clause 27.10
(Lenders' indemnity to the Facility Agent) shall include the cost of
utilising its management time or other resources and will be calculated on
the basis of such reasonable daily or hourly rates as it may notify to the
Company and is in addition to any fee paid or payable to it under Clause 13
(Fees).
27.17 DEDUCTION FROM AMOUNTS PAYABLE BY THE FACILITY AGENT
If any Party owes an amount to the Facility Agent under the Finance
Documents the Facility Agent may, after giving notice to that Party, deduct
an amount not exceeding that amount from any payment to that 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 Party shall be
regarded as having received any amount so deducted.
27.18 BANK REPRESENTATION BY ORIGINAL LENDERS
The Original Lenders (other than ANZEF Limited) confirm on the date of this
Agreement that they are each Banks.
28. 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.
29. SHARING AMONG THE FINANCE PARTIES
29.1 PAYMENTS TO FINANCE PARTIES
If a Finance Party (a "RECOVERING FINANCE PARTY") receives or recovers any
amount from an Obligor other than in accordance with Clause 30 (Payment
mechanics) and applies that amount to a payment due under the Finance
Documents (including by way of set-off) then:
(a) the Recovering Finance Party shall, within three Business Days, notify
details of the receipt or recovery to the Facility Agent;
(b) the Facility Agent shall determine whether the receipt or recovery is
in excess of the amount the Recovering Finance Party would have been
paid had the receipt or recovery
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been received or made by the Facility Agent and distributed in
accordance with Clause 30 (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 Finance Party 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
Finance Party as its share of any payment to be made, in accordance
with Clause 30.5 (Partial payments).
29.2 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 Finance Party) in accordance with Clause 30.5
(Partial payments).
29.3 RECOVERING FINANCE PARTY'S RIGHTS
(a) On a distribution by the Facility Agent under Clause 29.2 (Redistribution
of payments), the Recovering Finance Party 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 Finance Party is not able to rely
on its rights under paragraph (a) above, the relevant Obligor shall be
liable to the Recovering Finance Party for a debt equal to the Sharing
Payment which is immediately due and payable.
29.4 REVERSAL OF REDISTRIBUTION
If any part of the Sharing Payment received or recovered by a Recovering
Finance Party becomes repayable and is repaid by that Recovering Finance
Party, then:
(a) each Finance Party which has received a share of the relevant Sharing
Payment pursuant to Clause 29.2 (Redistribution of payments) shall,
upon request of the Facility Agent, pay to the Facility Agent for
account of that Recovering Finance Party an amount equal to the
appropriate part of its share of the Sharing Payment (together with an
amount as is necessary to reimburse that Recovering Finance Party for
its proportion of any interest on the Sharing Payment which that
Recovering Finance Party is required to pay); and
(b) that Recovering Finance Party's rights of subrogation in respect of
any reimbursement shall be cancelled and the relevant Obligor will be
liable to the reimbursing Finance Party for the amount so reimbursed.
29.5 EXCEPTIONS
(a) This Clause 29 shall not apply to the extent that the Recovering Finance
Party would not, after making any payment pursuant to this Clause, have a
valid and enforceable claim against the relevant Obligor.
(b) A Recovering Finance Party is not obliged to share with any other Finance
Party any amount which the Recovering Finance Party has received or
recovered as a result of taking legal or arbitration proceedings, if:
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(i) it notified that other Finance Party of the legal or arbitration
proceedings; and
(ii) that other Finance Party had an opportunity to participate in those
legal or arbitration proceedings but did not do so as soon as
reasonably practicable having received notice and did not take
separate legal or arbitration proceedings.
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SECTION 11
ADMINISTRATION
30. PAYMENT MECHANICS
30.1 PAYMENTS TO THE FACILITY AGENT
(a) On each date on which an Obligor or a Lender is required to make a payment
under a Finance Document, that Obligor or Lender shall make the same
available to the Facility Agent (unless a contrary indication appears in a
Finance Document) for value on the due date at the time and in such funds
specified by the Facility Agent as being customary at the time for
settlement of transactions in the relevant currency in the place of
payment.
(b) Payment shall be made to such account 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 specifies.
30.2 DISTRIBUTIONS BY THE FACILITY AGENT
Each payment received by the Facility Agent under the Finance Documents for
another Party shall, subject to Clause 30.3 (Distributions to an Obligor)
and Clause 30.4 (Clawback), be made available by the Facility Agent as soon
as practicable after receipt to the Party entitled to receive payment in
accordance with this Agreement (in the case of a Lender, for the account of
its Facility Office), to such account as that Party may notify to the
Facility Agent 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).
30.3 DISTRIBUTIONS TO AN OBLIGOR
The Facility Agent may (with the consent of the Obligor or in accordance
with Clause 31 (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.
30.4 CLAWBACK
(a) Where a sum is to be paid to the Facility Agent under the Finance Documents
for another Party, the Facility Agent is not obliged to pay that sum to
that other Party (or to enter into or perform any related exchange
contract) until it has been able to establish to its satisfaction that it
has actually received that sum.
(b) If the Facility Agent pays an amount to another Party and it proves to be
the case that it had not actually received that amount, then the Party to
whom that amount (or the proceeds of any related exchange contract) was
paid shall on demand refund the same to the Facility Agent together with
interest on that amount from the date of payment to the date of receipt by
the Facility Agent calculated by it to reflect its cost of funds.
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30.5 PARTIAL PAYMENTS
(a) If the Facility Agent receives a payment that is insufficient to discharge
all the amounts then due and payable by an Obligor under the Finance
Documents, the Facility 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 Facility Agent, the Bookrunner or the Mandated Lead
Arrangers 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.
30.6 NO SET-OFF BY OBLIGORS
All payments to be made by an Obligor under the Finance Documents shall be
calculated and be made without (and free and clear of any deduction for)
set-off or counterclaim.
30.7 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.
30.8 CURRENCY OF ACCOUNT
(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 Utilisation or Unpaid Sum or a part of a Utilisation or
Unpaid Sum shall be made in the currency in which that Utilisation or
Unpaid Sum is denominated 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.
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(e) Any amount expressed to be payable in a currency other than the Base
Currency shall be paid in that other currency.
30.9 CHANGE OF CURRENCY
(a) Unless otherwise prohibited by law, if more than one currency or currency
unit are at the same time recognised by the central bank of any country as
the lawful currency of that country, then:
(i) any reference in the Finance Documents to, and any obligations arising
under the Finance Documents in, the currency of that country shall be
translated into, or paid in, the currency or currency unit of that
country designated by the Facility Agent (after consultation with the
Company); and
(ii) any translation from one currency or currency unit to another shall be
at the official rate of exchange recognised by the central bank for
the conversion of that currency or currency unit into the other,
rounded up or down by the 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 Company) 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.
31. SET-OFF
A Finance Party may set off any matured obligation due from an Obligor
under the Finance Documents (to the extent beneficially owned by that
Finance Party) against any matured obligation owed by that Finance Party to
that Obligor, regardless of the place of payment, booking branch or
currency of either obligation. If the obligations are in different
currencies, the Finance Party may convert either obligation at a market
rate of exchange in its usual course of business for the purpose of the
set-off.
32. NOTICES
32.1 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.
32.2 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 Company, that identified with its name below;
(b) in the case of each Lender or any other Obligor, that notified in
writing to the Facility Agent on or prior to the date on which it
becomes a Party; and
(c) in the case of the Facility Agent, that identified with its name
below,
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or any substitute address, 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.
32.3 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
received by post addressed to it at that address,
and, if a particular department or officer is specified as part of its
address details provided under Clause 32.2 (Addresses), if addressed to
that department or officer.
(b) Any communication or document to be made or delivered to the Facility Agent
will be effective only when actually received by it and then only if it is
expressly marked for the attention of the department or officer identified
with its signature below (or any substitute department or officer as it
shall specify for this purpose).
(c) All notices from or to an Obligor shall be sent through the Facility Agent.
(d) Any communication or document made or delivered to the Company in
accordance with this Clause will be deemed to have been made or delivered
to each of the Obligors.
32.4 NOTIFICATION OF ADDRESS AND FAX NUMBER
Promptly upon receipt of notification of an address and fax number or
change of address or fax number pursuant to Clause 32.2 (Addresses) or
changing its own address or fax number, the Facility Agent shall notify the
other Parties.
32.5 ELECTRONIC COMMUNICATION
(a) Any communication to be made between the Facility Agent and a Lender under
or in connection with the Finance Documents may be made by electronic mail
or other electronic means, if the Facility 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 the Facility 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 the Facility Agent
only if it is addressed in such a manner as the Facility Agent shall
specify for this purpose.
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32.6 ENGLISH LANGUAGE
(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 translation will prevail unless the document is a
constitutional, statutory or other official document.
33. CALCULATIONS AND CERTIFICATES
33.1 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.
33.2 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.
33.3 DAY COUNT CONVENTION
Any interest, commission or fee accruing under a Finance Document will
accrue from day to day and is calculated on the basis of the actual number
of days elapsed and a year of 360 days or, in any case where the practice
in the Relevant Interbank Market differs, in accordance with that market
practice.
34. PARTIAL INVALIDITY
If, at any time, any provision of the Finance Documents 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.
35. 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 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 rights and remedies provided in this Agreement
are cumulative and not exclusive of any rights or remedies provided by law.
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36. AMENDMENTS AND WAIVERS
36.1 REQUIRED CONSENTS
(a) Subject to Clause 36.2 (Exceptions) any term of the Finance Documents may
be amended or waived only with the consent of the Majority Lenders and the
Obligors and any such amendment or waiver will be binding on all Parties.
(b) The Facility Agent may effect, on behalf of any Finance Party, any
amendment or waiver permitted by this Clause.
36.2 EXCEPTIONS
(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;
(iii) a reduction in the Margin or a reduction in the amount of any payment
of principal, interest, fees or commission payable;
(iv) an increase in or an extension of any Commitment;
(v) a change to the Borrowers or Guarantors other than in accordance with
Clause 26 (Changes to the Obligors);
(vi) any provision which expressly requires the consent of all the Lenders;
or
(vii) Clause 2.2 (Finance Parties' rights and obligations), Clause 25
(Changes to the Lenders), Clause 29 (Sharing among the Finance
Parties) or this Clause 36,
shall not be made without the prior consent of all the Lenders.
(b) An amendment or waiver which relates to the rights or obligations of the
Facility Agent, any Mandated Lead Arranger or the Bookrunner may not be
effected without the consent of the Facility Agent or that Mandated Lead
Arranger, as the case may be, the Bookrunner.
37. 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.
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SECTION 12
GOVERNING LAW AND ENFORCEMENT
38. GOVERNING LAW
This Agreement is governed by English law.
39. ENFORCEMENT
39.1 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 (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 39.1 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.
39.2 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 Xstrata Services (UK) Ltd, Level 4 Xxxxxx Xxxxx,
00 Xxxxxxxxx, Xxxxxx XX0X 0XX 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 the relevant Obligor
of the process will not invalidate the proceedings concerned.
40. EXECUTIVE PROCEEDINGS
40.1 This Agreement and any other Finance Document at the discretion of the
Facility Agent, as well as any amendments hereto or thereto, shall be
formalised in a Spanish Public Document, so that it may have the status of
a notarial document of loan for all purposes contemplated in Article 517,
number 4 of the Spanish Civil Procedural Law (Law 1/2000 of 7th January)
("Ley de Enjuiciamiento Civil") (the "CIVIL PROCEDURAL LAW"), and Articles
913-4 and 914-2 in relation to Article 916-2 of the Spanish Commercial Code
and other related provisions.
40.2 Upon enforcement, the sum payable by the Spanish Borrower shall be the
total aggregate amount of the balance of the control account(s) ("cuentas
de credito") maintained by the Facility Agent (or the relevant Lender, as
the case may be). For the purposes of Articles 571 et seq. of the Civil
Procedural Law, the parties expressly agree that such balances shall be
considered as due, liquid and payable and may be claimed pursuant to the
same provisions of such law.
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40.3 For the purpose of the provisions of Art. 571 et seq. of the Civil
Procedural Law, it is expressly agreed by the Parties that the
determination of the debt to be claimed through the executive proceedings
shall be effected by the Facility Agent (or the relevant Lender, as the
case may be) by means of the appropriate certificate evidencing the
balances shown in the relevant account(s) referred to in Clause 40.2. By
virtue of the foregoing, to exercise executive action by the Facility Agent
or any of the Lenders it will be sufficient to present (i) an original
notarial first or authentic copy of this Agreement, (ii) a notarial
certificate, if necessary, for the purposes described in Clause 40.6 below,
(iii) the notarial document ("acta notarial") which incorporates the
certificate issued by the Facility Agent (or the relevant Lender, as the
case may be) of the amount due by the Spanish Borrower including an excerpt
of the credits and debits, including the interest applied, which appear in
the relevant account(s) referred to in Clause 40.2, evidencing that the
determination of the amounts due and payable by the Spanish Borrower have
been calculated as agreed in this Agreement and that such amounts coincide
with the balance of such accounts, and (iv) a notarial document ("acta
notarial") evidencing that the Spanish Borrower has been served notice of
the amount that is due and payable.
40.4 Clause 40.3 above is also applicable to any Lender with regard to its
Commitment. Such Lender may issue the appropriate certification of the
balances of the relevant account(s) referred to in Clause 40.2 and the
certification of the balances of the such accounts may be legalised by a
notary.
40.5 The amount of the balances so established shall be notified to the Spanish
Borrower in an attestable manner at least three (3) days in advance of
exercising the executive action set out in Clause 40.3 above.
40.6 The Spanish Borrower hereby expressly authorises the Facility Agent (and
each Lender, as appropriate) to request and obtain certificates and
documents issued by the notary who has formalised this Agreement in order
to evidence its compliance with the entries of his registry-book and the
relevant entry date for the purpose of number 4 of Article 517, of the
Civil Procedural Law. The cost of such certificate and documents will be
for the account of the Spanish Borrower in the manner provided under this
Agreement.
THIS AGREEMENT HAS BEEN ENTERED INTO ON THE DATE STATED AT THE BEGINNING OF THIS
AGREEMENT.
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SCHEDULE 1
THE ORIGINAL PARTIES
PART I
THE ORIGINAL OBLIGORS
REGISTRATION NUMBER
NAME OF ORIGINAL BORROWER JURISDICTION OF INCORPORATION (OR EQUIVALENT, IF ANY)
------------------------- ----------------------------- -----------------------
The Company Switzerland CH-170.3.025.302-8
Asturiana de Zinc, S.A. Spain C.I.F. A82689753
Xstrata Coal Australia Pty Limited Australia ABN 18 000 000 000
Duiker Marketing AG Switzerland CH-170.3.024.285-1
REGISTRATION NUMBER
NAME OF ORIGINAL GUARANTOR JURISDICTION OF INCORPORATION (OR EQUIVALENT, IF ANY)
-------------------------- ----------------------------- -----------------------
The Parent UK 4345939
The Company Switzerland CH-170.3.025.302.8
Xstrata Capital Corporation A.V.V. Aruba 13174.0
Asturiana de Zinc, S.A. Spain C.I.F. A82689753
Xstrata Coal Australia Pty Limited Australia ABN 18 000 000 000
Duiker Marketing AG Switzerland CH-170.3.024.285-1
Xstrata Coal Investments Australia Pty Limited Australia ABN 14 082 271 912
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PART II
THE ORIGINAL LENDERS
FACILITY A FACILITY B
NAME OF ORIGINAL LENDER COMMITMENT COMMITMENT
----------------------- ---------- ----------
BARCLAYS BANK PLC 59,285,713 23,714,287
BNP PARIBAS SA, LONDON BRANCH 59,285,714 23,714,286
DEUTSCHE BANK AG LONDON 59,285,714 23,714,286
DRESDNER BANK LUXEMBOURG S.A. 59,285,714 23,714,286
HSBC BANK PLC 59,285,714 23,714,286
X.X.XXXXXX EUROPE LIMITED 59,285,714 23,714,286
THE ROYAL BANK OF SCOTLAND PLC 59,285,714 23,714,286
ABN AMRO BANK N.V. 42,857,143 17,142,857
ANZEF LIMITED 42,857,143 17,142,857
CITIBANK INTERNATIONAL PLC, LONDON 42,857,143 17,142,857
FORTIS PROJECT FINANCE LIMITED 42,857,143 17,142,857
ING BANK N.V. 42,857,143 17,142,857
LLOYDS TSB BANK PLC 42,857,143 17,142,857
NATIONAL AUSTRALIA BANK LIMITED 42,857,143 17,142,857
SCOTIABANK EUROPE PLC 42,857,143 17,142,857
SOCIETE GENERALE 42,857,143 17,142,857
SUMITOMO MITSUI BANKING CORPORATION 42,857,143 17,142,857
THE BANK OF TOKYO-MITSUBISHI, LTD 42,857,143 17,142,857
WESTLB AG, LONDON BRANCH 42,857,143 17,142,857
COMMONWEALTH BANK OF AUSTRALIA 23,571,429 9,428,571
TD BANK EUROPE LIMITED 23,571,429 9,428,571
WESTPAC BANKING CORPORATION 23,571,429 9,428,571
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PART III
CONDITIONS PRECEDENT TO INITIAL UTILISATION REQUEST
1. ORIGINAL OBLIGORS
(a) A copy of the constitutional documents of each Original Obligor.
(b) A copy of a resolution of the board of directors or equivalent body of each
Original Obligor:
(i) 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;
(ii) authorising a specified person or persons to execute the Finance
Documents to which it is a party on its behalf; and
(iii) 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.
(c) A specimen of the signature of each person authorised by the resolution
referred to in paragraph (b) above.
(d) A copy of a resolution signed by all the holders of the issued shares in
each Original Obligor (other than the Parent and Asturiana de Zinc, S.A.),
approving the terms of, and the transactions contemplated by, the Finance
Documents to which that Original Obligor is a party.
(e) A certificate from each Original Obligor (signed by a director) confirming
that borrowing or guaranteeing, as appropriate, the Total Commitments would
not cause any borrowing, guaranteeing or similar limit binding on any Group
company to be exceeded.
(f) A certificate of an authorised signatory of the relevant Original Obligor
certifying that each copy document relating to it specified in this Part
III of Schedule 1 is correct, complete and in full force and effect as at a
date no earlier than the date of this Agreement.
2. LEGAL OPINIONS
(a) A legal opinion, satisfactory to the Facility Agent, of Linklaters, legal
advisers to the Mandated Lead Arrangers, the Bookrunner and the Facility
Agent in England, substantially in the form distributed to the Original
Lenders prior to the date of this Agreement.
(b) In the case of an Original Obligor incorporated in a jurisdiction other
than England and Wales, a legal opinion, satisfactory to the Facility
Agent, of the legal advisers to the Mandated Lead Arrangers, the Bookrunner
and the Facility Agent in the relevant jurisdiction, substantially in the
form distributed to the Original Lenders prior to the date of this
Agreement (including in relation to tax).
(c) In the case of an Original Obligor incorporated in Australia, Switzerland
or Spain a legal opinion, satisfactory to the Facility Agent, of the legal
advisers to the Original Obligors in the relevant
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jurisdiction, substantially in the form distributed to the Original Lenders
prior to the date of this Agreement.
3. OTHER DOCUMENTS
(a) Executed Note Deed Poll.
(b) Copy of a notice of prepayment and cancellation of the Existing Facility
Agreement and evidence that the first loan under the Agreement shall be
applied to prepay the Existing Facility Agreement in full.
(c) A copy of the Original Financial Statements.
(d) A certified copy of the Environmental Policy.
(e) Due execution of all Fee Letters by the parties to them respectively.
(f) Evidence that the fees, costs and expenses then due from the Company
pursuant to Clause 13 (Fees) and Clause 18 (Costs and expenses) have been
paid.
(g) A list of all Material Subsidiaries.
(h) A copy of the Group Structure Chart.
(i) If an Obligor is incorporated in a jurisdiction other than England and
Wales, evidence that the process agent specified in Clause 39.2 (Service of
process) has accepted its appointment in relation to that Obligor.
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PART IV
CONDITIONS PRECEDENT REQUIRED TO BE DELIVERED BY AN ADDITIONAL OBLIGOR
1. An Accession Letter, duly executed by the Additional Obligor and the
Company.
2. A copy of the constitutional documents of the Additional Obligor.
3. A copy of a resolution of the board of directors of the Additional Obligor:
(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 and each Finance Document;
(b) authorising a specified person or persons to execute the Accession
Letter and each Finance Document 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.
4. A specimen of the signature of each person authorised by the resolution
referred to in paragraph 4 above.
5. A copy of a resolution signed by all the holders of the issued shares of
the Additional Guarantor, approving the terms of, and the transactions
contemplated by, the Finance Documents to which the Additional Guarantor is
a party.
6. A certificate of the Additional Obligor (signed by a director) confirming
that borrowing or guaranteeing, as appropriate, the Total Commitments would
not cause any borrowing, guaranteeing or similar limit binding on it to be
exceeded.
7. A certificate of an authorised signatory of the Additional Obligor
certifying that each copy document listed in this Part VI of Schedule 1 is
correct, complete and in full force and effect as at a date no earlier than
the date of the Accession Letter.
8. A copy of any other Authorisation or other document, opinion or assurance
which the Facility Agent considers to be necessary or desirable in
connection with the entry into and performance of the transactions
contemplated by the Accession Letter or for the validity and enforceability
of any Finance Document (including, without limitation, raising any
relevant document to a Spanish Public Document).
9. If available, the latest audited financial statements of the Additional
Obligor.
10. A legal opinion, satisfactory to the Facility Agent, of Linklaters, legal
advisers to the Facility Agent in England.
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11. If the Additional Obligor is incorporated in a jurisdiction other than
England and Wales, a legal opinion, satisfactory to the Facility Agent, of
the legal advisers to the Facility Agent in the jurisdiction in which the
Additional Obligor is incorporated.
12. If the Additional Obligor is incorporated in a jurisdiction other than
England and Wales, and the Facility Agent so requires, a legal opinion,
satisfactory to the Facility Agent, of the legal adviser to the Additional
Obligor in the jurisdiction in which the Additional Obligor is
incorporated.
13. If the proposed Additional Obligor is incorporated in a jurisdiction other
than England and Wales, evidence that the process agent specified in Clause
39.2 (Service of process), if not an Obligor, has accepted its appointment
in relation to the proposed Additional Obligor.
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SCHEDULE 2
REQUESTS
PART I
UTILISATION REQUEST
From: [Borrower]
To: [Facility Agent]
Dated: _____________________
Dear Sirs
XSTRATA (SCHWEIZ) AG - $1,400,000,000
MULTICURRENCY LOAN FACILITY AND SUBSCRIPTION AGREEMENT
DATED [_______] 2004
(THE "AGREEMENT")
1. We refer to the Agreement. This is a Utilisation Request. Terms defined in
the Agreement have the same meaning in this Utilisation Request unless
given a different meaning in this Utilisation Request.
2. We wish to borrow a Loan on the following terms:
Proposed Utilisation Date: [___________________] (or, if that is not a
Business Day, the next Business Day)
Facility to be utilised: [Facility A] [Facility B]*
[Currency of Loan: [___________________]]**
Amount: [___________________] or, if less, the Available
Facility
Interest Period: [___________________]
3. We confirm that each condition specified in Clause 4.2 (Further conditions
precedent) is satisfied on the date of this Utilisation Request.
4. The proceeds of this Loan should be credited to [account].
5. This Utilisation Request is irrevocable.
Yours faithfully
----------------------------------------
* Delete as apropriate
** Facility A only
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PART II
SELECTION NOTICE
APPLICABLE TO A TERM LOAN
From: [Borrower]
To: [Facility Agent]
Dated: _____________________
Dear Sirs
XSTRATA (SCHWEIZ) AG - $1,400,000,000
MULTICURRENCY LOAN FACILITY AND SUBSCRIPTION AGREEMENT
DATED [__] 2004 (THE "AGREEMENT")
1. We refer to the Agreement. This is a Selection Notice. Terms defined in the
Agreement have the same meaning in this Selection Notice unless given a
different meaning in this Selection Notice.
2. We refer to the following Term Loan[s] with an Interest Period ending on
[___________________].*
3. [We request that the above Facility B Loan[s] be divided into
[__________________] Facility B Loans with the following Base Currency
Amounts and Interest Periods:]**
or
[We request that the next Interest Period for the above Term Loan[s] is
[__________________]].***
4. This Selection Notice is irrevocable.
Yours faithfully
----------------------------------------
authorised signatory for
[the Company on behalf of]
[name of relevant Borrower]
* Insert details of all Term Loans which have an Interest Period ending on
the same date.
** Use this option if division of Loans is requested.
*** Use this option if sub-division is not required.
-93-
PART III
FORM OF TERM OUT NOTICE
From: [Borrower]
To: [Facility Agent]
Dated: _____________________
Dear Sirs
XSTRATA (SCHWEIZ) AG - $1,400,000,000
MULTICURRENCY LOAN FACILITY AND SUBSCRIPTION AGREEMENT
DATED [__] 2004 (THE "AGREEMENT")
1. We refer to the Agreement. This is a Term Out Notice. Terms defined in the
Agreement have the same meaning in this Term Out Notice unless given a
different meaning in this Term Out Notice.
2. We elect to exercise the Term Out Option pursuant to Clause 8.2 (Term Out
Option) of the Agreement in relation to all Facility B Loans/the following
Facility B Loans:
Amount: [___________________]
Currency: [___________________]
Interest Period: [___________________]
Termination Date: [___________________]
3. This Term Out Notice is irrevocable.
Yours faithfully
----------------------------------------
authorised signatory for
[name of relevant Borrower]
-94-
SCHEDULE 3
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:
AB + C(B - D) + E x 0.01
------------------------ per cent. per annum;
100 - (A + C)
(b) in relation to a Loan in any currency other than sterling:
E x 0.01
-------- per cent. per annum.
300
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 10.3 (Default
interest)) payable for the relevant Interest Period on the Loan.
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.
-95-
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 Agent as being the average of the rates
of charge supplied by the Reference Banks (or those of the Reference
Banks as supply a rate to the Agent) to the Agent pursuant to
paragraph 7 below and expressed in pounds per L1,000,000.
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 supervision fees contained in the FSA
Supervision 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 Fee Rules under the
activity group A.1. Deposit acceptors (but ignoring any minimum fee or zero
rated fee required pursuant to the Fees Rules); 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 in writing, 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) and expressed
in pounds per L1,000,000 of the Tariff Base of that Reference Bank as
being the average of the Fee Tariffs applicable to that Reference Bank for
that financial year.
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 in
writing on or prior to the date on which it becomes a Lender:
(a) the jurisdiction of its Facility Office; and
(b) any other information that the Facility Agent may reasonably require
for such purpose.
Each Lender shall promptly notify the Facility Agent in writing of any
change to the information provided by it pursuant to this paragraph.
9. The percentages or rates of charge of each Lender and each Reference Bank
for the purpose of A and C above shall be determined by the Facility Agent
based upon the information supplied to
-96-
it pursuant to paragraph 7 and 8 above and on the assumption that, unless a
Lender or Reference Bank 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
Company 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.
-97-
SCHEDULE 4
FORM OF TRANSFER CERTIFICATE
To: [___________________] as Facility Agent
From: [The Existing Lender] (the "EXISTING LENDER") and [The New Lender] (the
"NEW LENDER")
Dated: __________
XSTRATA (SCHWEIZ) AG - $1,400,000,000
MULTICURRENCY LOAN FACILITY AND SUBSCRIPTION AGREEMENT
DATED [__________] 2004 (THE "AGREEMENT")
1. We refer to the Agreement. This is a Transfer Certificate. Terms defined in
the Agreement have the same meaning in this Transfer Certificate unless
given a different meaning in this Transfer Certificate.
2. We refer to Clause 25.6 (Procedure for transfer):
(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.](1)
(b) The Existing Lender and the New Lender agree to the Existing Lender
transferring to the New Lender by novation all or part of the Existing
Lender's Commitment, [other](1) rights and obligations referred to in
the Schedule (together with any associated Notes) in accordance with
Clause 25.6 (Procedure for transfer).
(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 32.2 (Addresses)
are set out in the Schedule.
3. The New Lender expressly acknowledges the limitations on the Existing
Lender's obligations set out in paragraph (c) of Clause 25.5 (Limitation of
responsibility of Existing Lenders).
4. THE NEW LENDER CONFIRMS THAT IT IS A [BANK (AS DEFINED IN CLAUSE 1.1 OF THE
AGREEMENT) IN ACCORDANCE WITH THE RELEVANT EXPLANATORY NOTE OF THE SWISS
FEDERAL TAX ADMINISTRATION/NON-BANK (AS DEFINED IN CLAUSE 1.1 OF THE
AGREEMENT) AND THE CONSENT OF THE COMPANY HAS BEEN OBTAINED IF SUCH CONSENT
IS REQUIRED PURSUANT TO THE PROVISIONS OF THE FINANCE DOCUMENTS.](2)
5. This Transfer Certificate may be executed in any number of counterparts and
this has the same effect as if the signatures on the counterparts were on a
single copy of this Transfer Certificate.
This Transfer Certificate is governed by English law.
(1) Include if there are or have been outstanding Australian Loans.
(2) Delete as applicable.
-98-
SCHEDULE
COMMITMENT/RIGHTS AND OBLIGATIONS TO BE TRANSFERRED
[insert relevant details including details of any associated Notes]
[Facility Office address, fax number and attention details for notices and
account details for payments.]
[Existing Lender]
By:
---------------------------------
This Transfer Certificate is accepted by the Facility Agent and the Transfer
Date is confirmed as [___________________].
Facility Agent
By:
---------------------------------
-99-
SCHEDULE 5
FORM OF ACCESSION LETTER
To: [___________________] as Facility Agent
From: [Subsidiary] and Xstrata (Schweiz) AG
Dated: __________
Dear Sirs
XSTRATA (SCHWEIZ) AG - $1,400,000,000
MULTICURRENCY LOAN FACILITY AND SUBSCRIPTION AGREEMENT
DATED [__________] 2004 (THE "AGREEMENT")
1. We refer to the Agreement. This is an Accession Letter. Terms defined in
the Agreement have the same meaning in this Accession Letter unless given a
different meaning in this Accession Letter.
2. [Subsidiary] agrees to become an Additional [Borrower]/[Guarantor] and to
be bound by the terms of the Agreement as an Additional
[Borrower]/[Guarantor] pursuant to [Clause 26.2 (Additional
Borrowers)]/[Clause 26.4 (Additional Guarantors)] of the Agreement.
3. [Subsidiary] is a company duly incorporated under the laws of [name of
relevant jurisdiction].
4. [Subsidiary's] administrative details are as follows:
Address: _________________
Fax No: __________________
Attention: _______________
5. This Accession Letter is governed by English law.
[This Guarantor Accession Letter is entered into by deed.]
[Company] [Subsidiary]
-100-
SCHEDULE 6
FORM OF COMPLIANCE CERTIFICATE
To: [___________________] as [Facility Agent]
From: Xstrata (Schweiz) AG
Dated: __________
Dear Sirs
XSTRATA (SCHWEIZ) AG - $1,400,000,000
MULTICURRENCY LOAN FACILITY AND SUBSCRIPTION AGREEMENT
DATED [__________] 2004 (THE "AGREEMENT")
1. We refer to the Agreement. This is a Compliance Certificate. Terms defined
in the Agreement have the same meaning when used in this Compliance
Certificate unless given a different meaning in this Compliance
Certificate.
2. We confirm that:
(a) the ratio of Consolidated Borrowings to Total Capitalisation on the
last day of the Relevant Period ended on [___________________] (the
Test Date) was [___________________] to 1;
(b) the ratio of Consolidated Borrowings on the Test Date to EBITDA for
that Relevant Period was [___________________] to 1;
(c) the ratio of EBITDA to Interest Expense for that Relevant Period was
[___________________] to 1.
3. We set out below calculations establishing the figures in paragraph 2
above:
4. [We confirm that the Material Subsidiaries are [___________________].](3)
5. [We confirm that no Default is continuing.](4)
Signed:
----------------------------- ----------------------------------------
Director of Xstrata (Schweiz) Director of Xstrata (Schweiz) AG
AG
[[insert applicable certification language]
(3) To be provided with annual financial statements.
(4) 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.
-101-
----------------------------------------
for and on behalf of
[name of auditors of Xstrata plc]]
-102-
SCHEDULE 7
TIMETABLES
"D-" refers to the number of Business Days before the relevant Utilisation
Date/the first day of the relevant Interest Period.
LOANS IN
AUSTRALIAN LOANS IN OTHER
LOANS IN EURO DOLLARS CURRENCIES
------------- ------------- --------------
Request for approval as an Optional Currency, if required (Clause 4.3 D - 5
(Conditions relating to Optional Currencies)) 10:00 a.m.
Facility Agent notifies the Lenders of the request (Clause 4.3 D - 5
(Conditions relating to Optional Currencies)) 3:00 p.m.
Responses by Lenders to the request (Clause 4.3 (Conditions relating D - 4
to Optional Currencies)) 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 D - 4
to Optional Currencies) 5:00 p.m.
Delivery of a duly completed Utilisation Request (Clause 5.1 (Delivery
of a Utilisation Request)) or a Selection Notice (Clause 11.1 D - 3 D - 4 D - 3
(Selection of Interest Periods)) 10:00 a.m. 10:00 a.m. 10:00 a.m.
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 D - 3 D - 3 D - 3
Clause 5.4 (Lenders' participation) 1:00 p.m. 1:00 p.m. 1:00 p.m.
Quotation
Day as of
LIBOR or EURIBOR is fixed 11:00 a.m. Quotation Day Quotation Day
(Brussels as of as of
time) 11:00 a.m. 11:00 a.m.
Facility Agent receives a notification from a Lender under Clause 7.2 Quotation Day Quotation Day Quotation Day
(Unavailability of a currency) 3:00 p.m. 3:00 p.m. 3:00 p.m.
Facility Agent gives notice in accordance with Clause 7.2 Quotation Quotation Quotation Day
(Unavailability of a currency) 5:00 p.m. 5:00 p.m. 5:00 p.m.
-103-
SCHEDULE 8
FORM OF NOTE DEED POLL
Date: _________________
THIS NOTE DEED POLL is made by [___________] ("AUSTRALIAN BORROWER") IN FAVOUR
OF each Person who from time to time is a Lender and [___________] as agent
("FACILITY AGENT")
RECITAL
The Australian Borrower has offered to issue Notes pursuant to the terms of a
facility and subscription agreement ("FACILITIES AGREEMENT") expressed to be
amongst Xstrata (Schweiz) AG and others and dated [__] 2004 (as may be amended
and restated from time to time).
OPERATIVE PROVISIONS:
1 THE NOTES
1.1 CREATION OF NOTES: The Australian Borrower creates Notes in favour of each
Lender by inscription in the Register. The Notes have an aggregate
principal amount outstanding from time to time equal to the principal
amount subscribed by the relevant Lender under the Facilities Agreement as
recorded in the Register and a maximum aggregate principal amount equal to
the sum of the relevant Lender's Commitment 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;
(b) agrees to pay principal and interest in respect of the Notes 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 acknowledgments of
debt) above are discharged to the extent interest is paid on the Notes and
to the extent that the aggregate principal amount outstanding in respect of
the Notes is repaid in accordance with the Facilities Agreement.
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 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 and each Lender may enforce its
rights under this deed independently from each other Lender, subject to the
Facilities Agreement.
2.3 FACILITY AGENT AND LENDERS BOUND: Each Lender together with the Facility
Agent (and any person claiming through or under a Lender) is bound by this
deed.
-104-
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 Lender.
2.5 FACILITIES AGREEMENT: The Notes are issued on the condition that each
Lender is bound by the provisions of the Facilities Agreement. In the event
of inconsistency between the provisions of this deed and the Facilities
Agreement, this deed will prevail.
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: Notes take the form of an entry in the Register. No
certificate will be issued in respect of them, unless required by law.
3.2 ISSUE OF NOTES BY ENTRY IN REGISTER: Notes are:
(a) issued when details of the Notes are first entered in the Register; and
(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
Notes constitutes:
(a) an acknowledgment to the Lenders by the Australian Borrower of the
indebtedness of the Australian Borrower to that Lender on the terms of this
deed;
(b) an undertaking by the Australian Borrower to the Lenders to make all
payments of principal and interest in respect of the Note in accordance
with the terms of the Note and this deed; and
(c) an entitlement to the other benefits given to the Lenders and the Facility
Agent under the Facilities Agreement in respect of the relevant Notes.
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 a 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 Notes by
virtue of becoming registered as the owner of the Notes, all rights and
entitlements arising by virtue of this deed in respect of the Notes vest
absolutely in the registered owner of the Notes free of all equities. Any
person who has previously been registered as the owner of the Notes does
not have, and is not entitled to assert against the Australian Borrower or
the Facility Agent or the registered owner of the Notes for the time being
and from time to time, any rights, benefits or entitlements in respect of
the Notes.
3.7 STATUS OF NOTES: The Notes are direct, unsubordinated and unsecured
obligations of the Australian Borrower and rank at least equally among
themselves with all other unsecured and
-105-
unsubordinated obligations of the Australian Borrower except for
liabilities mandatorily preferred by law.
4 TRANSFERS
4.1 LIMIT ON TRANSFER: Notes may only be transferred in accordance with Clauses
25.3 (Transfer and Transmission of Notes) and 25 (Changes to the Lenders)
of the Facilities Agreement.
4.2 REGISTRATION OF TRANSFER: The transferor of Notes is taken to remain the
holder of those Notes until the name of the transferee is entered in the
Register in respect of those Notes.
5 REPAYMENT
The Australian Borrower agrees to repay each Australian Loan as provided in
the Facilities Agreement.
6 INTEREST AND DEFAULT INTEREST
6.1 The Australian Borrower agrees to pay interest and default interest on the
Notes issued under the Facilities as calculated under the Facilities
Agreement as though Clauses 10.2 (Payment of interest) and 10.3 (Default
interest) applied to it.
6.2 The Australian Borrower shall pay accrued interest on the Notes on the last
day of each Interest Period (the "INTEREST PAYMENT DATE") (and, if the
Interest Period is longer than six months, on the dates falling at six
monthly intervals after the first day of the Interest Period).
6.3
(a) 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 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 Facilities. Any interest accruing under this
Clause 6.3 shall be immediately payable by the Australian Borrower on
demand by the Facility Agent.
(b) Default interest (if unpaid) arising under this Clause 6.3 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.
7 PAYMENTS
The Australian Borrower agrees to make all payments under the Notes in
accordance with Clause 30 (Payment Mechanics) of the Facilities Agreement.
8 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 xxx
xxxxxx xx Xxx Xxxxx Xxxxx.
-106-
9 INTERPRETATION
Clauses 1.1 and 1.2 of the Facilities Agreement described above apply to
this deed poll as if each clause was fully set out herein.
EXECUTED as a deed poll.
[Insert execution clause]
-107-
SCHEDULE 9
FORM OF RESIGNATION LETTER
To: [___________] as Facility Agent
From: [resigning Obligor] and Xstrata (Schweiz) AG
Dated: _____________________
Dear Sirs
XSTRATA (SCHWEIZ) AG - $1,400,000,000
MULTICURRENCY LOAN FACILITY AND SUBSCRIPTION AGREEMENT
DATED [________] 2004 (THE "AGREEMENT")
1. We refer to the Agreement. This is a Resignation Letter. Terms defined in
the Agreement have the same meaning in this Resignation Letter unless given
a different meaning in this Resignation Letter.
2. Pursuant to [Clause 25.3 (Resignation of a Borrower)]/[Clause 25.6
(Resignation of a Guarantor)], we request that [resigning Obligor] be
released from its obligations as a [Borrower]/[Guarantor] under the
Agreement.
3. We confirm that:
(a) no Default is continuing or would result from the acceptance of this
request; and
(b) [_________________]
4. This Resignation Letter is governed by English law.
Xstrata (Schweiz) AG [Subsidiary]
By: By:
--------------------------------- ------------------------------------
-108-
THE COMPANY
XSTRATA (SCHWEIZ) AG
Address: Xxxxxxxxxxxxxx 0
XX-0000 Xxx
Xxxxxxxxxxx
Fax No: x0000 000 0000
Attention: Chief Legal Counsel
By: XXXXXX XXXXXXX XXXXX X. XXXXXX
--------------------------------- ----------------------------------------
THE PARENT
XSTRATA PLC
By: XXXXXXX X. XXXXX
---------------------------------
THE ORIGINAL BORROWERS
XSTRATA (SCHWEIZ) AG
By: XXXXXX XXXXXXX XXXXX X. XXXXXX
--------------------------------- ----------------------------------------
ASTURIANA DE ZINC, S.A.
By: XXXXX X. XXXXXX XXXXX XXXXXXXXX
--------------------------------- ----------------------------------------
XSTRATA COAL AUSTRALIA PTY LIMITED
By: XXXXX X. XXXXXX XXXXX XXXXXXXXX
--------------------------------- ----------------------------------------
DUIKER MARKETING AG
By: XXXXXX XXXXXXX XXXXX X. XXXXXX
--------------------------------- ----------------------------------------
THE ORIGINAL GUARANTORS
XSTRATA PLC
By: XXXXXXX X. XXXXX
---------------------------------
XSTRATA (SCHWEIZ) AG
By: XXXXXX XXXXXXX XXXXX X. XXXXXX
--------------------------------- ----------------------------------------
-109-
ASTURIANA DE ZINC, S.A.
By: XXXXX X. XXXXXX XXXXX XXXXXXXXX
--------------------------------- ----------------------------------------
XSTRATA CAPITAL CORPORATION A.V.V.
By: MARC XXXXXXXXX XXXXXX PALM XXXXX XXXXXX
-------------------- ------------------------ --------------------------
XSTRATA COAL AUSTRALIA PTY LIMITED
By: XXXXX X. XXXXXX XXXXX XXXXXXXXX
--------------------------------- ----------------------------------------
DUIKER MARKETING AG
By: XXXXXX XXXXXXX XXXXX X. XXXXXX
--------------------------------- ----------------------------------------
XSTRATA COAL INVESTMENTS AUSTRALIA PTY LIMITED
By: XXXXX X. XXXXXX XXXXX XXXXXXXXX
--------------------------------- ----------------------------------------
THE MANDATED LEAD ARRANGERS
BARCLAYS CAPITAL
(the Investment Banking Division of BARCLAYS BANK PLC)
By: XXXXXXX XXXXXXX-XXXXXX
---------------------------------
BNP PARIBAS SA
By: A. DENIS DU PEAGE H. CASSAIGNE
--------------------------------- ----------------------------------------
DEUTSCHE BANK AG LONDON
By: XXXX XXXXXXXXXXXX XXXXX X. XXXXX
--------------------------------- ----------------------------------------
DRESDNER KLEINWORT XXXXXXXXXXX
(the Investment Banking Division of DRESDNER BANK AG)
By: XXXXXX XXXXX XXXXXXX XXXXXX
--------------------------------- ----------------------------------------
HSBC BANK PLC
By: XXXX XXXXX
---------------------------------
X.X. XXXXXX PLC
By: XXX XXXXX
---------------------------------
-110-
THE ROYAL BANK OF SCOTLAND PLC
By: XXXX XXXXXXXX
---------------------------------
THE ORIGINAL LENDERS
BARCLAYS BANK PLC
By: XXXXXXX XXXXXXX-XXXXXX
---------------------------------
BNP PARIBAS SA LONDON BRANCH
By: A. DENIS DU PEAGE H. CASSAIGNE
--------------------------------- ----------------------------------------
DEUTSCHE BANK AG LONDON
By: XXXX XXXXXXXXXXXX XXXXX X. XXXXX
--------------------------------- ----------------------------------------
DRESDNER BANK LUXEMBOURG S.A.
By: XXXXXX XXXXX XXXXXXX XXXXXX
--------------------------------- ----------------------------------------
HSBC BANK PLC
By: XXXX XXXXX
---------------------------------
X.X. XXXXXX EUROPE LIMITED
By: XXX XXXXX
---------------------------------
THE ROYAL BANK OF SCOTLAND PLC
By: XXXX XXXXXXXX
---------------------------------
ABN AMRO BANK N.V.
By: B.P.M. KOELEMAN X.X. XXXXX
--------------------------------- ----------------------------------------
ANZEF LIMITED
By: XXXXXXX XXXXXX
---------------------------------
-111-
CITIBANK INTERNATIONAL PLC, LONDON
By: XXXXX XXXXXX
---------------------------------
FORTIS PROJECT FINANCE LIMITED
By: XXXXX XXXXXXXXX XXXX XXXXXX
--------------------------------- ----------------------------------------
ING BANK N.V.
By: XXXX XXXXXX XXXX XXXXXX
--------------------------------- ----------------------------------------
LLOYDS TSB BANK PLC
By: XXXXXX XXXXXX
---------------------------------
NATIONAL AUSTRALIA BANK LIMITED
ABN 12 004 044 937
By: XXXXXXX X. XXXXXX
---------------------------------
SCOTIABANK EUROPE PLC
By: XXX XXXXXX
---------------------------------
SOCIETE GENERALE
By: XXXXXX XXXXXXXX
---------------------------------
SUMITOMO MITSUI BANKING CORPORATION
By: XXXXXX XXXX XXXXX XXXXXX
--------------------------------- ----------------------------------------
THE BANK OF TOKYO-MITSUBISHI, LTD
By: XXXXXX XXXXXXXX
---------------------------------
XXXXXX XX, XXXXXX BRANCH
By: XXXXX XXXXXX XXX XXX-XXXXX
--------------------------------- ----------------------------------------
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COMMONWEALTH BANK OF AUSTRALIA
By: XXXX XXXXXXX XXXXXXXX
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TD BANK EUROPE LIMITED
By: XXXX XXXXXX
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WESTPAC BANKING CORPORATION
By: XXXX XXXXXXX
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THE FACILITY AGENT
BARCLAYS BANK PLC
Address: 5 Xxx Xxxxx Xxxxxxxxx
Xxxxxx Xxxxx
Xxxxxx X00 0XX
Fax No: + 00 (0)00 0000 0000
Attention: Xxxxxx Xxxx
By: XXXXXXX XXXXXXX-XXXXXX
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THE BOOKRUNNER
BARCLAYS CAPITAL
(the Investment Banking Division of BARCLAYS BANK PLC)
By: XXXXXXX XXXXXXX-XXXXXX
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