EX-10.1 2 tm238103d1_ex10-1.htm EXHIBIT 10.1

 

Exhibit 10.1

 

 

(Australian Branch)

 

US$205,000,000 Term Loan Facility

 

US$25,000,000 Revolving Loan Facility

 

A$40,000,000 Letter of Credit Facility

 

SYNDICATED FACILITY AGREEMENT

 

dated 28 February 2023

 

for

 

METALS ACQUISITION CORP. (AUSTRALIA) PTY LTD

 

arranged by

CITIBANK N.A., SYDNEY BRANCH and BANK OF MONTREAL

acting as Mandated Lead Arrangers and Bookrunners

 

with

CITISECURITIES LIMITED

 

acting as Agent

 

 

page 1

 

 

CONTENTS

 

  Clause Page

 

1. Definitions and Interpretation 1
2. The Facilities 52
3. Purpose 53
4. Conditions of Utilisation 54
5. Utilisation – Loans 59
6. Utilisation – Letters of Credit 60
7. Letters of Credit 63
8. Repayment 66
9. Prepayment and Cancellation 67
10. Restrictions 72
11. Interest 73
12. Interest Periods 75
13. Changes to the Calculation of Interest 76
14. Fees 78
15. Tax Gross-Up and Indemnities 79
16. Increased Costs 83
17. Other Indemnities 84
18. Mitigation by the Finance Parties 85
19. Costs and Expenses 86
20. Guarantee 87
21. Corporate Representations 92
22. Project Representations 100
23. Information Undertakings 102
24. Financial Covenants 110
25. General Undertakings 112
26. Project Undertakings 118
27. Accounts 126
28. Events of Default 132
29. Changes to the Lenders 140
30. Changes to the Obligors 147
31. Restriction on Debt Purchase Transactions 148

 

page i

 

 

32. Role of the Agent and the Arranger 150
33. Conduct of Business by the Finance Parties 160
34. Sharing among the Finance Parties 160
35. Public Offer 163
36. Payment Mechanics 165
37. Set-Off 170
38. Notices 170
39. Calculations and Certificates 176
40. Partial Invalidity 177
41. Remedies and Waivers 177
42. Amendments and Waivers 178
43. Instructions and Decisions 183
44. Confidentiality 184
45. PPSA Provisions 189
46. Anti-money Laundering and Sanctions 189
47. Confidentiality of Funding Rates 190
48. Counterparts 191
49. Indemnities and Reimbursement 192
50. Acknowledgement 192
51. Contractual recognition of bail-in 192
52. Governing Law 195
53. Enforcement 195

Schedule 1 The Original Parties      196
Part I The Original Obligors      196
Part II The Original Lenders      197
Schedule 2 Conditions Precedent      198
Part I Conditions Precedent To Initial Utilisation      198
Part II Conditions Precedent required to be Delivered by an Additional Obligor      205
Part III Form of Verification Certificate      209
Schedule 3 Requests      211
Part I Utilisation Request      211
Part II Utilisation Request      212
Part III Selection Notice      214

 

page ii

 

 

Schedule 4 Form of Transfer Certificate      215
Part I Form of Single Lender Transfer Certificate      215
Part II Form of Syndication Transfer Certificate      219
Schedule 5 Form of Accession Letter      223
Schedule 6 Form of Resignation Letter      224
Schedule 7 Form of Compliance Certificate      225
Schedule 8 Existing Security      227
Schedule 9 Form of Confidentiality Undertaking      241
Schedule 10 Timetables      248
Part I Loans      248
Part I I  Letters of Credit      249
Schedule 11 Form of Letter of Credit      250
Schedule 12 [NOT USED]      253
Schedule 13 Compounded Rate Terms      254
Schedule 14 Daily Non-Cumulative Compounded RFR Rate      259
Schedule 15 Cumulative Compounded RFR Rate      261
Schedule 16 Tenements      262
Schedule 17 Real Property      263
Part I Freehold Property      263
Part II Project Leases      266
Part III Water Licences      266

 

page iii

 

 

THIS AGREEMENT is dated 28 February 2023 and made between:

 

(1)METALS ACQUISITION CORP, an exempted company incorporated in the Cayman Islands, company number 372802, of Suite 400, 425 Houston Street, Fort Worth, Texas 76102, United States of America and METALS ACQUISITION LIMITED incorporated in Jersey with registration number 144625, of 3rd Floor, 44 Esplanade, St Helier, JE4 9WG, Jersey (each the "Company");

 

(2)THE ENTITY listed in Part I of Schedule 1 as borrower ("Borrower");

 

(3)THE ENTITIES listed in Part I of Schedule 1 as original guarantors (together with the Company the "Original Guarantors");

 

(4)CITIBANK N.A., SYDNEY BRANCH (ABN 34 072 814 058) and BANK OF MONTREAL as mandated lead arrangers and bookrunners (whether acting individually or together the "Arranger");

 

(5)CITIBANK N.A., SYDNEY BRANCH (ABN 34 072 814 058) (the "Initial Account Bank");THE ENTITIES listed in Part II of Schedule 1 as lenders ("Original Lenders"); and

 

(6)CITISECURITIES LIMITED (ABN 51 008 489 610) (the "Agent").

 

IT IS AGREED as follows:

 

SECTION 1
INTERPRETATION

 

1.DEFINITIONS AND INTERPRETATION

 

1.1Definitions

 

In this Agreement:

 

"Aboriginal Heritage Law" means any State or Commonwealth legislation that provides for the recognition and protection of sites of significance to Aboriginal people.

 

"Acceptable Bank" means:

 

(a)a bank or financial institution which has a rating for its long-term unsecured and non credit-enhanced debt obligations of A- or higher by Standard & Poor's Rating Services or Fitch Ratings Ltd or A3 or higher by Moody's Investors Service Limited or a comparable rating from an internationally recognised credit rating agency; or

 

(b)any other bank or financial institution approved by the Agent.

 

"Accession Letter" means a document substantially in the form set out in Schedule 5 (Form of Accession Letter).

 

"Account Bank" means the Initial Account Bank or a replacement account bank which is an Acceptable Bank and acceptable to the Agent (acting on the instructions of the Majority Lenders) appointed in accordance with this Agreement.

 

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"Account Bank Agreement" means any account bank agreement and associated documents entered into by the Borrower and an Account Bank which is required under clause 27.1(d).

 

"Acquisition" means the acquisition of 100% of the issued share capital in the Target by the Borrower under the Sale and Purchase Agreement.

 

"Additional Business Day" means any day specified as such in the Compounded Rate Terms.

 

"Additional Guarantor" means a company which becomes an Additional Guarantor in accordance with Clause 30 (Changes to the Obligors).

 

"Additional Obligor" means an Additional Guarantor.

 

"Adjusted EBITDA" means for any period, EBITDA for that period adjusted by deducting (to the extent that the following items are not already deducted in determining EBITDA):

 

(a)any payments of any income (or similar) taxes paid by a member of the Borrower Group and adding back any tax rebates, refunds or credit in respect of any such taxes received by the member of the Borrower Group, in each case during that period (or, for the purposes of calculating the Forecast Cash Flow Coverage Ratio, the projected payments, rebates, rebates or credit in respect of such taxes, as set out in the Base Case Financial Model for such period);

 

(b)any Capital Expenditure actually paid in cash by a member of the Borrower Group during that period (or, for the purposes of calculating the Forecast Cash Flow Coverage Ratio, the projected Capital Expenditure of the members of the Borrower Group for that period, as set out in the Base Case Financial Model).

 

"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.

 

"Annual Operating Budget" means the cash flow budget for the Borrower Group approved by the board of the Borrower, to be provided to the Agent under clause 4.1 (Initial conditions precedent), as updated and amended from time to time as required under and in accordance with clause 23.6 (Annual Reporting).

 

"Approved Hedge Counterparty" means each Arranger and each Original Lender and each of their Affiliates.

 

"Approved Hedging Programme" means the document entitled "Approved Hedging Programme – Project Chariot 2023" provided to the Agent under clause 4.1 (Initial conditions precedent) as amended in accordance with this Agreement.

 

"Assignment Agreement" means an agreement in the form agreed between the Agent and the relevant assignor and assignee.

 

"Associate" has the meaning given to it in Section 128F(9) of the Tax Act.

 

"Auditors" means Ernst & Young, or any other firm approved in advance by the Majority Lenders (such approval not to be unreasonably withheld or delayed).

 

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"Australian Withholding Tax" means any Australian Tax required to be withheld or deducted from any interest or other payment under Division 11A of Part III of the Tax Act or Subdivision 12-F of Schedule 1 to the Taxation Administration Act 1953 (Cth).

 

"Authorisation" means:

 

(a)an authorisation, consent, approval, resolution, licence (including each Water Licence), permit, order, concession, franchise, exemption, filing or registration; or

 

(b)in relation to anything which will be fully or partly prohibited or restricted by law if a Governmental Agency 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.

 

"Authorised Signatory" means:

 

(a)in respect of an Obligor, any director or secretary, or any person from time to time nominated as an Authorised Signatory by the Obligor by a notice to the Agent accompanied by certified copies of signatures of all new persons so appointed in accordance with clause 23.8(g) (Information: miscellaneous); and

 

(b)in respect of the Agent, Security Trustee or a Lender, any person whose title or acting title includes the word Chief, Counsel, Head, Director or President or cognate expressions, or any secretary or director.

 

"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 one calendar month after the date of Financial Close;

 

(b)in relation to Facility B, the period from and including the date of this Agreement to and including the date falling one calendar month before the Termination Date; and

 

(c)in relation to Facility C, the period from and including the date of this Agreement to and including the date falling one calendar month before the Termination Date.

 

"Available Cash" means any amounts classified according to applicable IFRS as 'Cash' (which is held with an Acceptable Bank).

 

"Available Commitment" means, in relation to a Facility, a Lender's Commitment under that Facility minus:

 

(a)the amount of its participation in any outstanding Utilisations under that Facility; and

 

(b)in relation to any proposed Utilisation, the amount of its participation in any Utilisations that are due to be made under that Facility on or before the proposed Utilisation Date,

 

other than, in relation to any proposed Utilisation under Facility B or Facility C only, that Lender's participation in any Utilisations under that Facility that are due to be repaid or prepaid on or before the proposed Utilisation Date.

 

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"Available Facility" means, in relation to a Facility, the aggregate for the time being of each Lender's Available Commitment in respect of that Facility.

 

"Base Case Financial Model" means the excel document in a form and substance equivalent to that provided at Financial Close comprising the reserves position, business plan, production, operating and financial forecasts (including forecast Capital Expenditure and forecast Revenues) of the Borrower Group from the date of Financial Close until the end of the currently forecast life of mine, or in relevant cases, such longer term as necessary to demonstrate compliance with any forward-looking financial covenants required under this Agreement, provided to the Agent under clause 4.1 (Initial conditions precedent), as updated annually and from time to time in accordance with clause 23.5 (Updates to Base Case Financial Model) and for the purposes of evidencing that the Borrower is permitted to increase the amount of hedging permitted under the Approved Hedging Programme or to make Permitted Acquisitions.

 

"Base Copper and Silver Forward Price" means the US dollar unhedged copper and silver price forecast being the lower of:

 

(a)the forward curve provided by AME Research (as applicable);

 

(b)the LME Forward Curve for Copper and CME Forward Curve for Silver (as applicable); or

 

(c)as otherwise agreed between the Borrower and the Agent (acting on the instructions of the Majority Lenders).

 

"Base FX Assumption" means on any date, the AUD-USD rate of exchange on Bloomberg screen FRD at or about 11 a.m. on the relevant date or as otherwise agreed between the Borrower and the Agent (acting on the instructions of the Majority Lenders).

 

"Beneficiaries" has the meaning given to it in the Security Trust Deed.

 

"Borrower Affiliate" means the Borrower, any Affiliates of the Borrower, any trust of which it or any of its Affiliates is a trustee, any partnership of which it or any of its Affiliates is a partner and any trust, fund or other entity which is managed by, or is under the control of, it or any of its Affiliates.

 

"Borrower and Company General Security Deed" means the general security deed to be dated before Financial Close between the Borrower and the Company and the Security Trustee.

 

"Borrower Group" means the Borrower and each of its Subsidiaries.

 

"Break Costs" means any amount specified as such in the Compounded Rate Terms.

 

"Business Day" means a day (other than a Saturday or Sunday) on which banks are open for general business in Sydney, Jersey, New York, Hong Kong, Singapore and any Additional Business Day.

 

"Capital Expenditure" means any expenditure or monetary obligation of the Borrower Group of a capital nature in connection with the Project (including Sustaining Capital Expenditure and repairs and maintenance, to the extent they are capital in nature).

 

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"Cash Equivalent Investments" means at any time:

 

(a)certificates of deposit maturing within six months after the relevant date of calculation and issued by an Acceptable Bank;

 

(b)bonds, debentures, stock, treasury bills, notes or any other security issued or guaranteed by the government of the United States of America, the Commonwealth of Australia or any government of any State or Territory of the Commonwealth of Australia, the United Kingdom, any member state of the European Economic Area or any Participating Member State (other than Portugal, Ireland, Greece or Spain) or by an instrumentality or agency of any of them having an equivalent credit rating, maturing within one year after the relevant date of calculation and not convertible or exchangeable to any other security;

 

(c)commercial paper not convertible or exchangeable to any other security:

 

(i)for which a recognised trading market exists;

 

(ii)issued by an issuer incorporated in the United States of America, Australia, the United Kingdom, any member state of the European Economic Area or any Participating Member State;

 

(iii)which matures within six months after the relevant date of calculation; and

 

(iv)which has a credit rating of either A-1 or higher by Standard & Poor's Rating Services or F1 or higher by Fitch Ratings Ltd or P-1 or higher by Moody's Investors Service Limited, or, if no rating is available in respect of the commercial paper, the issuer of which has, in respect of its long-term unsecured and non-credit enhanced debt obligations, an equivalent rating;

 

(d)any investment in money market funds (i) which have a credit rating of either A-1 or higher by Standard & Poor's Rating Services or F1 or higher by Fitch Ratings Ltd or P-1 or higher by Moody's Investors Service Limited, (ii) which invest substantially all their assets in securities of the types described in paragraphs (a) to (c) above and (iii) to the extent that investment can be turned into cash on not more than 30 days' notice;

 

(e)overnight deposits held with an Acceptable Bank; or

 

(f)any other debt security approved by the Majority Lenders,

 

in each case, to which the Borrower is alone (or together with other members of the Borrower Group) beneficially entitled at that time and which is not issued or guaranteed by any member of the Group or subject to any Security (other than Security arising under the Transaction Security Documents).

 

"Cash Sweep" means the amounts repaid by the Borrower in respect of Facility A in accordance with clause 8.2(a)(i) (Cash Sweep).

 

"Cayman Companies Act" means the Companies Act (as revised) of the Cayman Islands.

 

page 5

 

 

"Cement Supply Agreement" means the document titled "Forward Purchase Agreement – Supply of Cement" with a commencement date of 1 January 2022 between the Target and East Coast Cement Pty Ltd ACN 603 062 497.

 

"Central Bank Rate" has the meaning given to that term in the Compounded Rate Terms.

 

"Central Bank Rate Adjustment" has the meaning given to that term in the Compounded Rate Terms.

 

"Certain Funds Period" means the period from the date of this Agreement to and including the earlier of:

 

(a)Financial Close; and

 

(b)1 June 2023.

 

"Clean Up Period" means the period on and from Completion to and including the date which is 90 days after Completion.

 

"Cobar Terminal Services Agreement" means the document titled "Cobar Terminal Services Agreement" dated 31 August 2021 between the Target and Aurizon Port Services NSW Pty Ltd ACN 103 570 181.

 

"Code" means the US Internal Revenue Code of 1986.

 

"Commitment" means a Facility A Commitment or Facility B Commitment or Facility C Commitment.

 

"Company Offshore Security Document" means the security documents to be given by the Company governed by Jersey law and Cayman Islands law over all of the Company's assets and undertaking and the Jersey Company SIA.

 

"Completion" has the meaning given in the Sale and Purchase Agreement.

 

"Compliance Certificate" means a certificate substantially in the form set out in Schedule 7 (Form of Compliance Certificate).

 

"Compounded Rate Supplement" means a document which:

 

(a)is agreed in writing by the Borrower and the Agent (acting on the instructions of all Lenders);

 

(b)specifies the relevant terms which are expressed in this Agreement to be determined by reference to Compounded Rate Terms; and

 

(c)has been made available to the Borrower and each Finance Party.

 

"Compounded Rate Terms" means the terms set out in Schedule 13 (Compounded Rate Terms) or in any Compounded Rate Supplement.

 

"Compounded Reference Rate" means, in relation to any RFR Banking Day during the Interest Period of a Loan, the percentage rate per annum which is the aggregate of:

 

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(a)the Daily Non-Cumulative Compounded RFR Rate for that RFR Banking Day; and

 

(b)the applicable Credit Adjustment Spread.

 

"Compounding Methodology Supplement" means, in relation to the Daily Non-Cumulative Compounded RFR Rate or the Cumulative Compounded RFR Rate, a document which:

 

(a)is agreed in writing by the Borrower, the Agent (in its own capacity) and the Agent (acting on the instructions of all Lenders);

 

(b)specifies a calculation methodology for that rate; and

 

(c)has been made available to the Borrower and each Finance Party.

 

"Confidential Information" means all information relating to any Obligor, the Group, the Finance Documents or a Facility of which a Finance Party becomes aware in its capacity as, or for the purpose of becoming, a Finance Party or which is received by a Finance Party in relation to, or for the purpose of becoming a Finance Party under, the Finance Documents or a Facility from either:

 

(a)any member of the Group or any of its advisers; or

 

(b)another Finance Party, if the information was obtained by that Finance Party directly or indirectly from any member of the Group or any of its advisers,

 

in whatever form, and includes information given orally and any document, electronic file or any other way of representing or recording information which contains or is derived or copied from such information but excludes:

 

(i)information that:

 

(A)is or becomes public information other than as a direct or indirect result of any breach by that Finance Party of Clause 44 (Confidentiality); or

 

(B)is identified in writing at the time of delivery as non-confidential by any member of the Group or any of its advisers; or

 

(C)is known by that Finance Party before the date the information is disclosed to it in accordance with paragraphs (a) or (b) above or is lawfully obtained by that Finance Party after that date, from a source which is, as far as that Finance Party is aware, unconnected with the Group and which, in either case, as far as that Finance Party is aware, has not been obtained in breach of, and is not otherwise subject to, any obligation of confidentiality; or

 

(D)is included in a Jersey Consent letter provided in connection with the registration of a Company Offshore Security Document governed by Jersey law; and

 

(ii)any Funding Rate.

 

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"Confidentiality Undertaking" means a confidentiality undertaking substantially in a form as set out in Schedule 9 (Form of Confidentiality Undertaking) or in any other form agreed between the Company and the Agent.

 

"Consent Deed" means a consent deed in a form acceptable to the Agent (acting reasonably) in relation to the attachment of the Transaction Security to the following:

 

(a)the Diesel Supply Agreement;

 

(b)the Cement Supply Agreement; and

 

(c)any other Material Contract which the Agent determines (acting reasonably) requires consent to the Transaction Security attaching to it or any property in connection with it.

 

"Consultancy Services Umbrella Agreement" means the document titled "Umbrella Agreement - Consultancy Services" dated 8 February 2021 between the Target and Golder Associates Pty Ltd ACN 006 107 857.

 

"Contamination" means the presence of any substance at a level exceeding that naturally occurring:

 

(a)in relation to land, in, on or under that land;

 

(b)in relation to groundwater percolating through land, in that groundwater;

 

(c)in relation to a river or stream, in its waters, in, on or under its bed or riparian land or in or on animal or plant life growing in its waters or on its bed; or

 

(d)in relation to sea or oceanic waters, in those waters, on or under its bed or in or on animal or plant life growing in its waters or on its bed.

 

"Cooling Plant Agreement" means the document titled "Wet Equipment Hire Contract" dated 6 September 2019 between the Target and Aggreko Generator Rentals Pty Ltd ACN 001 991 457.

 

"Copper Purchase Agreement" means the agreement to be dated before Financial Close entitled " copper purchase agreement" between the Company as seller, the Borrower, the Stream Purchaser as purchaser and which will, following completion of a section 260B whitewash procedure under the Corporations Act, be acceded to by the Target in Agreed Form.

 

"Copper Streaming Facility" means the financial accommodation made available to the Company under the Copper Purchase Agreement.

 

Copper Streaming Facility Security Documents” means the “Copper Security Documents” as defined in the Copper Purchase Agreement in Agreed Form.

 

"Copper Stream Obligations" means all indebtedness, liabilities and other obligations, present or future, direct or indirect, absolute or contingent, matured or unmatured, at any time or from time to time due or accruing due and owing by or otherwise payable or to be performed by any

 

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Obligor to the Stream Purchaser under, in connection with or pursuant to the Copper Purchase Agreement and Copper Streaming Facility Security Documents, each in Agreed Form.

 

"Copper Stream Security Trust Deed" means the deed entitled "Security Trust Deed (Copper Stream)" to be dated before Financial Close and made between, among others, the Company and the security trustee named in that deed in Agreed Form.

 

"Copper Streaming Intercompany Loan Agreement" means the intercompany loan between the Company and the Borrower to be dated before Financial Close under which the proceeds of the upfront deposit to be paid by the Stream Purchaser under the Copper Purchase Agreement are on-lent to the Borrower in Agreed Form.

 

"Corporations Act" means the Corporations Act 2001 (Cth).

 

"Credit Adjustment Spread" means, in respect of any Loan, any rate which is either:

 

(a)specified as such in the Compounded Rate Terms; or

 

(b)determined by the Agent (or by any other Finance Party which agrees to determine that rate in place of the Agent) in accordance with the methodology specified in the Compounded Rate Terms,

 

except that if the Credit Adjustment Spread is less than zero, it will be deemed to be zero.

 

"Cumulative Compounded RFR Rate" means, in relation to an Interest Period for a Loan, the percentage rate per annum determined by the Agent (or by any other Finance Party which agrees to determine that rate in place of the Agent) in accordance with the methodology set out in Schedule 15 (Cumulative Compounded RFR Rate) or in any relevant Compounding Methodology Supplement.

 

"Daily Non-Cumulative Compounded RFR Rate" means, in relation to any RFR Banking Day during an Interest Period for a Loan, the percentage rate per annum determined by the Agent (or by any other Finance Party which agrees to determine that rate in place of the Agent) in accordance with the methodology set out in Schedule 14 (Daily Non-Cumulative Compounded RFR Rate) or in any relevant Compounding Methodology Supplement.

 

"Daily Rate" means the rate specified as such in the Compounded Rate Terms.

 

"Debt Purchase Transaction" means, in relation to a person, a transaction where such person:

 

(a)acquires by way of assignment, novation or transfer;

 

(b)enters into any sub-participation in respect of; or

 

(c)enters into any other agreement or arrangement having an economic effect substantially similar to a sub-participation in respect of, or allowing it to control the exercise of rights relating to,

 

any Commitment or amount outstanding under this Agreement.

 

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"Debt Service" means for any Relevant Period, the aggregate amount of interest and amounts in the nature of interest paid or incurred during that period (as stated on the Borrower's financial statements) in relation to Financial Indebtedness of the Borrower Group, including:

 

(a)commitment fees, ongoing fees and all similar fees of a periodic nature (other than interest), but excluding any upfront fees; and

 

(b)scheduled payments of principal of Facility A, but excluding:

 

(i)the final bullet repayment of Facility A on the termination date of that Facility;

 

(ii)any voluntary or mandatory prepayments or repayments; and

 

(iii)any Cash Sweep,

 

plus or minus the net amount of any difference payments under the Hedging Agreements (but excluding the net close out amounts payable to the Borrower under a Hedging Agreement which has been closed out or terminated),

 

paid during that Relevant Period in respect of the Financial Indebtedness of the Borrower Group.

 

"Debt Service Cover Ratio" means, for any Relevant Period, the ratio of:

 

(a)Adjusted EBITDA; to

 

(b)Debt Service.

 

"Default" means an Event of Default or any event or circumstance specified in Clause 28 (Events of Default) which would (with the expiry of a grace period, the giving of notice, the making of any determination under the Finance Documents or any combination of any of them) be an Event of Default.

 

"Defaulting Finance Party" means any Finance Party (other than a Lender which is a Borrower Affiliate):

 

(a)which (in any capacity) has failed to make a payment when due under this Agreement or has notified a Party that it will not make such a payment;

 

(b)which (in any capacity) has otherwise rescinded or repudiated a Finance Document;

 

(c)which is an Issuing Person which has failed to issue a Letter of Credit (or has notified the Agent or the Borrower (which has notified the Agent) that it will not issue a Letter of Credit) in accordance with Clause 6.5(b) (Issue of Letters of Credit) or which has failed to pay a claim (or has notified the Agent or the Borrower (which has notified the Agent) that it will not pay a claim) in accordance with (and as defined in) Clause 7.1 (Claims under a Letter of Credit); or

 

(d)which:

 

(i)is or is adjudicated to be insolvent;

 

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(ii)applies or resolves to be wound up, given protection against creditors or placed in bankruptcy or any analogous process; or

 

(iii)is subject to the appointment of a liquidator, administrator, manager, trustee in bankruptcy or any analogous process,

 

unless, in the case of paragraphs (a) and (c) above:

 

(iv)its failure to pay or to issue a Letter of Credit, is caused by:

 

(A)administrative or technical error; or

 

(B)a Disruption Event; and

 

payment is made within 3 Business Days of its due date; or

 

(v)the Finance Party is disputing in good faith whether it is contractually obliged to make the payment in question.

 

"Derivative Transaction" means any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price.

 

"Diesel Supply Agreement" means the document titled "Diesel Supply Agreement" dated 7 September 2012 between the Target and Glencore Singapore Pte Ltd ABN 42 883 745 924.

 

"Disruption Event" means either or both of:

 

(a)a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with the Facilities (or otherwise in order for the transactions contemplated by the Finance Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the Parties; or

 

(b)the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payments operations of a Party preventing that, or any other Party:

 

(i)from performing its payment obligations under the Finance Documents; or

 

(ii)from communicating with other Parties in accordance with the Finance Documents,

 

and which (in either such case) is not caused by, and is beyond the control of, the Party whose operations are disrupted.

 

"Distributions" means:

 

(a)any payment by the Company, or a member of the Borrower Group to the Company or any of its or their wholly-owned Subsidiaries that are not themselves member of the Borrower Group in relation to share capital (including by way of redemption, reduction or repayment of share capital), payments of dividends, payments of principal or interest in relation to shareholder loans;

 

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(b)any Sponsor Affiliate Payment;

 

(c)$75,000,000 deferred consideration payable to Glencore Operations Australia Pty Limited under the Sale and Purchase Agreement;

 

(d)the First Contingent Copper Payment; and

 

(e)the Second Contingent Copper Payment.

 

"EBITDA" means for any period, the total consolidated operating income of the Borrower Group for that period as stated in the Borrower's financial statements (or, for the purposes of calculating the Forecast Cash Flow Coverage Ratio, the projected total consolidated operating income of the Borrower Group, as set out in the Base Case Financial Model) before interest and taxation and:

 

(a)after adding back any amount attributable to the amortisation, depreciation or impairment charges and any unrealised gains or losses in respect of any Derivative Transactions other than any Derivative Transaction entered into in accordance with the Approved Hedging Programme;

 

(b)excluding any exceptional, one off, non-recurring or extraordinary items which represent gains or losses including those arising on:

 

(i)the restructuring of the activities of an entity and reversals of any provisions for the cost of restructuring;

 

(ii)disposals, revaluations or impairment of non-current assets; and

 

(iii)disposals of assets associated with discontinued operations,

 

on the basis that the closing out of any Derivative Transactions is not an item of an unusual or non-recurring nature for these purposes;

 

(c)excluding any upward or downward adjustment of any non-cash provision during that period; and

 

(d)excluding unrealised mark-to-market gains and losses under any Derivative Transaction entered into in accordance with the Approved Hedging Programme.

 

"Economic Assumptions" means, in relation to the Base Case Financial Model, assumptions relating to escalation factors, Base Copper and Silver Forward Price, Base FX Assumption, hedging volumes and prices, discount rates, interest rates, inflation rates and Taxes, and any other assumption which in the reasonable opinion of the Agent (acting on the instructions of the Majority Lenders) is necessary to run the Base Case Financial Model.

 

"Environment" means all aspects of the surroundings of human beings including:

 

(a)the physical factors of those surroundings, such as land, the waters and the atmosphere;

 

page 12

 

 

(b)the biological factors of those surroundings, such as animals, plants and other forms of life; and

 

(c)the aesthetic factors of those surroundings such as appearance, sounds, smells, tastes and textures.

 

"Environment and Social Expert" means:

 

(a)SRK Consulting;

 

(b)any replacement environmental and social expert or adviser appointed by agreement between the Agent (acting on the instructions of the Majority Lenders) and the Borrower.

 

"Environmental Claim" means any claim, proceeding or investigation by any person in respect of any Environmental Law.

 

"Environmental Law" means any applicable law in any jurisdiction in which any member of the Group conducts business which relates to the pollution or protection of the environment or harm to or the protection of human health or the health of animals or plants.

 

"Environmental Permits" means any Authorisation and the filing of any notification, report or assessment required under any Environmental Law for the operation of the business of any member of the Group conducted on or from the properties owned or used by the relevant member of the Group.

 

"Equity Contribution" means the contribution (in form and substance satisfactory to the Agent acting on the instructions of all Lenders) to the funds required for completion of the Acquisition not funded by Utilisations under Facility A and drawings under the Junior Debt Documents.

 

"ERISA" means the US Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated and rulings issued thereunder.

 

"ERISA Affiliate" means any trade or business (whether or not incorporated) that for purposes of Title I or Title IV of ERISA or section 412 of the Code would be deemed at any relevant time to be a single employer or otherwise aggregated with any Obligor or a Subsidiary of an Obligor under section 414 of the Code.

 

"ERISA Event" means any one or more of the following:

 

(a)any reportable event, as defined in section 4043 of ERISA, with respect to a Plan, other than those events as to which the notice period referred to in section 4043(a) of ERISA has been waived as of the date hereof;

 

(b)the filing of a notice of intent to terminate any Plan (including any such notice with respect to a plan amendment referred to in Section 4041(e) of ERISA);

 

(c)the institution of proceedings, or the occurrence of an event or condition which would reasonably be expected to constitute grounds for the institution of proceedings by the Pension Benefit Guaranty Corporation under section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Plan;

 

page 13

 

 

(d)the failure to make a required contribution to any Plan that would result in the imposition of a lien or other encumbrance or the provision of security under section 430 of the Code or section 303 or 4068 of ERISA, or the arising of such a lien or encumbrance;

 

(e)the application for waiver of, or any failure to satisfy, the minimum funding standard under section 412 of the Code or section 302 of ERISA, whether or not waived;

 

(f)a determination that any Plan is, or is expected to be, considered an at-risk plan within the meaning of section 430 of the Code or section 303 of ERISA;

 

(g)receipt by an Obligor or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from an Obligor or any ERISA Affiliate of any notice, concerning the imposition of liability with respect to the withdrawal or partial withdrawal from a Multiemployer Plan or a determination that a Multiemployer Plan is, or is expected to be, "insolvent" (within the meaning of Section 4245 of ERISA), in "endangered" or "critical" status (within the meaning of Section 432 of the Code or Section 305 of ERISA), or terminated (within the meaning of Section 4041A or Section 4042 of ERISA);

 

(h)the failure of an Obligor or any ERISA Affiliate to pay when due (after expiration of any applicable grace period) any instalment payment with respect to withdrawal liability under Section 4201 of ERISA;

 

(i)the cessation of operations at a facility of an Obligor or any ERISA Affiliate in the circumstances described in Section 4062(e) of ERISA, or the withdrawal by an Obligor or any ERISA Affiliate from a Plan during a plan year for which it was a "substantial employer", as defined in Section 4001(a)(2) of ERISA;

 

(j)an Obligor, a Subsidiary of an Obligor or an ERISA Affiliate incurring any liability under Title IV of ERISA with respect to any Plan (other than premiums due and not delinquent under section 4007 of ERISA); or

 

(k)the occurrence of an act or omission which could give rise to the imposition on an Obligor, a Subsidiary of an Obligor or an ERISA Affiliate of fines, penalties, taxes or related charges under the Code or ERISA in respect of any Plan.

 

"Event of Default" means any event or circumstance specified as such in Clause 28 (Events of Default).

 

"Excess Cash" means, on any date, the cash balance of the Borrower Group during the relevant Interest Period that is available for Distributions (excluding any cash balance already in the Distribution Account before that date) after making all other required payments in accordance with items 27.4(a) to (i) of clause 27.4 (Cashflow Waterfall – Proceeds Account), after allowance for the required minimum cash and Cash Equivalent Investments (net of any redemption costs) balance of US$30,000,000. Excess Cash does not include (i) the proceeds from the Company issuing equity in connection with listing on ASX (or undertaking an alternative equity raise), (ii) the proceeds from any sale and lease back (hire purchase) of assets up to US$30,000,000 in aggregate as long as the assets continue to be used for the Project.

 

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"Expiry Date" means, for a Letter of Credit, the last day of its Term. "Facility" means Facility A or Facility B or Facility C.

 

"Facility A" means the term loan facility made available under this Agreement as described in Clause 2 (The Facilities).

 

"Facility A Commitment" means:

 

(a)in relation to an Original Lender, the amount set opposite its name under the heading "Facility A Commitment" in Part II of Schedule 1 (The Original Parties) 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 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 A Loan" means a loan made or to be made under Facility A or the principal amount outstanding for the time being of that loan.

 

"Facility A Repayment Date" means 31 March, 30 June, 30 September and 31 December in each year commencing on the first such date which is at least 3 months after Financial Close, which is expected to be 30 September 2023, or if any such date is not a Business Day, the preceding Business Day.

 

"Facility A Repayment Instalment" means, in respect of each Facility A Repayment Date, the amount set out in the Facility A Repayment Schedule corresponding to that date.

 

"Facility A Repayment Schedule" means the amortisation schedule prepared by the Agent on behalf of the Lenders, sculpted to a Debt Service Cover Ratio of 1.50x, so that the Facility A Loan is fully amortising over a notional 5 year loan life based on the Base Case Financial Model as at Financial Close or as amended from time to time in accordance with clause 23.5(g).

 

"Facility B" means the revolving credit facility made available under this Agreement as described in Clause 2 (The Facilities).

 

"Facility B Commitment" means:

 

(a)in relation to an Original Lender, the amount set opposite its name under the heading "Facility B Commitment" in Part II of Schedule 1 (The Original Parties) 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 of any Facility B Commitment transferred to it under this Agreement,

 

page 15

 

 

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.

 

"Facility C" means the Letter of Credit facility made available under this Agreement as described in Clause 2 (The Facilities).

 

"Facility C Commitment" means:

 

(a)in relation to an Original Lender, the amount set opposite its name under the heading "Facility C Commitment" in Part II of Schedule 1 (The Original Parties) and the amount of any other Facility C Commitment transferred to it under this Agreement; and

 

(b)in relation to any other Lender, the amount of any Facility C Commitment transferred to it under this Agreement,

 

to the extent not cancelled, reduced or transferred by it under this Agreement.

 

"Facility Office" means the office or offices notified by a Lender to the 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.

 

"FATCA" means:

 

(a)sections 1471 to 1474 of the Code or any associated regulations;

 

(b)any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of any law or regulation referred to in paragraph (a) above; or

 

(c)any agreement under the implementation of any treaty, law or regulation referred to in paragraphs (a) or (b) above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction.

 

"FATCA Application Date" means:

 

(a)in relation to a "withholdable payment" described in section 1473(1)(A)(i) of the Code (which relates to payments of interest and certain other payments from sources within the US), 1 July 2014; or

 

(b)in relation to a "passthru payment" described in section 1471(d)(7) of the Code not falling within paragraph (a) above, the first date from which such payment may become subject to a deduction or withholding required by FATCA.

 

"FATCA Deduction" means a deduction or withholding from a payment under a Finance Document required by FATCA.

 

page 16

 

 

"FATCA Exempt Party" means a Party that is entitled to receive payments free from any FATCA Deduction.

 

"Fee Letter" means any letter or letters between the Arrangers or an Original Lender and the Company (or the Agent and the Company or the Security Trustee and the Company) setting out any of the fees referred to in Clause 14 (Fees) or any other fees in connection with the Facilities, including the letters listed below:

 

(a)the invitation letter from the Company to each Original Lender dated 8 November 2022;

 

(b)the fee letter from Citibank, N.A., Sydney Branch to the Company dated 9 November 2022;

 

(c)the fee letter from Bank of Montreal to the Company dated 10 November 2022;

 

(d)the fee letter from National Bank of Canada to the Company dated 10 November 2022;

 

(e)the commitment letter from Bank of Nova Scotia to the Company dated 10 November 2022; and

 

(f)the commitment variation letter between the Company and Bank of Montreal and each Original Lender (other than BMO Harris Bank N.A.) dated 9 January 2023.

 

"Final Adjustment Amount" has the meaning given in the Sale and Purchase Agreement.

 

"Final Adjustment Interest Amount" has the meaning given in the Sale and Purchase Agreement.

 

"Finance Document" means:

 

(a)this Agreement;

 

(b)any Compliance Certificate;

 

(c)any Mandate and Commitment Letter;

 

(d)any Fee Letter;

 

(e)any Accession Letter;

 

(f)any Resignation Letter;

 

(g)the Security Trust Deed;

 

(h)the Intercreditor Deed;

 

(i)any Hedging Agreement;

 

(j)any Recognition Certificate;

 

(k)any Transaction Security Document;

 

(l)any Account Bank Agreement;

 

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(m)any Tripartite Deed;

 

(n)any Utilisation Request;

 

(o)any Compounded Rate Supplement;

 

(p)any Compounding Methodology Supplement;

 

(q)any agreement under Clause 29.1(b); and

 

(r)any other document designated as such by the Agent and the Borrower.

 

"Finance Party" means the Agent, the Arranger, the Security Trustee, a Hedge Counterparty or a Lender.

 

"Financial Close" means the date on which the Agent, acting on behalf of the Lenders, confirms that the initial conditions precedent to this Agreement are satisfied or waived.

 

"Financial Covenant" means each of the covenants set out in clause 24.1 (Financial covenants).

 

"Financial Indebtedness" means any indebtedness for or in respect of:

 

(a)moneys borrowed and any debit balance at any financial institution;

 

(b)any amount raised by acceptance under any acceptance credit, bill acceptance or bill endorsement facility or dematerialised equivalent;

 

(c)any amount raised under 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 IFRS, be treated as a balance sheet liability (other than any liability in respect of a lease or hire purchase contract which would, in accordance with IFRS in force before 1 January 2019, have been treated as an operating lease);

 

(e)receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse basis);

 

(f)any redeemable shares where the holder has the right, or the right in certain conditions, to require redemption;

 

(g)any amount raised under any other transaction (including any forward sale or purchase agreement) of a type not referred to in any other paragraph of this definition having the commercial effect of a borrowing (including amounts payable under the Silver Streaming Facility and the Copper Streaming Facility);

 

(h)consideration for the acquisition of assets or services payable more than 90 days after acquisition;

 

(i)any Derivative Transaction (and, when calculating the value of any Derivative Transaction, only the marked to market value (or, if any actual amount is due as a result of the termination or close-out of that Derivative Transaction, that amount) shall be taken into account);

 

page 18

 

 

(j)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

 

(k)the amount of any liability in respect of any guarantee or indemnity for any of the items referred to in paragraphs (a) to (j) above.

 

"First Contingent Copper Payment" means the unsecured, subordinated payment of up to $75,000,000 deferred consideration payable by the Company to Glencore Operations Australia Pty Limited under the Sale and Purchase Agreement payable if, over the life of the Project, the average daily LME closing price of copper is greater than US$9,370 per metric tonne for any rolling 18-month period (starting at Completion).

 

"Forecast Cash Flow Coverage Ratio" means the ratio of:

 

(a)the net present value of Adjusted EBITDA over a five year forecast from Reserves, as outlined in the Base Case Financial Model; to

 

(b)the aggregate amount outstanding under the Facilities.

 

"Freehold Property" means each freehold property held by the Target listed in Part I of Schedule 17 (Real Property).

 

"Freehold Property Mortgages" means each mortgage to be granted by the Target in favour of the Security Trustee in respect of the Freehold Property.

 

"Funding Rate" means any individual rate notified by a Lender to the Agent under Clause 13.3(a)(ii) (Cost of funds).

 

"Funds Flow Statement" means the statement of sources and uses of funds prepared by the Borrower in relation to the completion of the Acquisition.

 

"Glencore NSR Royalty Agreement" means the Cobar Royalty Deed to be entered into on or around Completion between Target, the Company and Glencore Operations Australia Pty Limited in Agreed Form.

 

"Golder Umbrella Agreement" means the document titled "Umbrella Contract – Consultancy Services" dated 26 February 2021 between the Target and Golder Associates Pty Ltd ACN 006 107 857.

 

"Good Mining Practice" means the exercise of that degree of skill, care, prudence, operational and financial foresight and operating practice which would reasonably and ordinarily be expected from a skilled and experienced person engaged in the same type of undertaking as the Obligors under the same or similar circumstances, with the exercise of skill, care, prudence, operational and financial foresight and operating practices to be substantially in accordance with recognised best practices in the mining industry in Australia.

 

page 19

 

 

"Governmental Agency" means any government or any governmental, semi-governmental or judicial entity or authority. It also includes any self regulatory organisation established under statute or any stock exchange.

 

"Group" means the Company, the Borrower and each Subsidiary of the Company or the Borrower.

 

"Guarantee" means the guarantee, undertaking and indemnity given under Clause 20 (Guarantee).

 

"Guarantor" means an Original Guarantor or an Additional Guarantor, unless it has ceased to be a Guarantor in accordance with Clause 30 (Changes to the Obligors).

 

"GST Law" means the same as "GST law" means in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

 

"Haulage Agreement" means the document titled "Rail Haulage Services Agreement" dated on or around 1 December 2009 and as varied on 1 December 2015 and 8 September 2020 between the Target and Qube Logistics (Rail) Pty Ltd ACN 082 313 415 (formerly South Spur Rail Services Pty Ltd).

 

"Hedge Counterparty" means any person which is, or has become, a party to the Security Trust Deed as a Hedge Counterparty in accordance with the Security Trust Deed and to the Intercreditor Deed as a Hedge Counterparty in accordance with the Intercreditor Deed.

 

"Hedge Protocol" means the document entitled 'Hedge Protocol' and provided to the Agent under clause 4.1 (Initial conditions precedent) as amended in accordance with this Agreement detailing, among other things, the minimum and maximum volumes, the initial and on-going hedging, approved counterparties to any Derivative Transaction and requirements for close out provisions.

 

"Hedging Agreement" means any master agreement, confirmation, schedule or other agreement entered into or to be entered into by the Borrower and a Hedge Counterparty for the purpose of hedging only the types of liabilities and/or risks in relation to the Facilities which is required or permitted to be entered into by this Agreement.

 

"Holding Company" means, in relation to a person, any other person in respect of which it is a Subsidiary.

 

"IFRS" means the International Financial Reporting Standards applied in accordance with generally accepted accounting principles, standards and practices in Australia.

 

"Independent Technical Expert" means:

 

(a)SRK Consulting; or

 

(b)any replacement technical expert or adviser appointed by agreement between the Agent (acting on the instructions of the Majority Lenders) and the Borrower.

 

page 20

 

 

"Indirect Tax" means any goods and services tax, consumption tax, value added tax or any tax of a similar nature.

 

"Insurances" means the insurances required to be taken out or maintained by the Obligors to comply with this Agreement and the Transaction Security Documents.

 

"Intercreditor Deed" means the deed entitled "Intercreditor Deed" to be dated before Financial Close and made between, among others, the Borrower, the Lenders, the Agent and the Security Trustee.

 

"Intercreditor Deed Accession Deed" has the meaning given to the term "Accession Deed" in the Intercreditor Deed.

 

"Interest Payment" means the aggregate amount of interest that:

 

(a)is, or is scheduled to become, payable under any Finance Document; and

 

(b)relates to a Loan.

 

"Interest Period" means, in relation to a Loan, each period determined in accordance with Clause 12 (Interest Periods) and, in relation to an Unpaid Sum, each period determined in accordance with Clause 11.3 (Default interest).

 

"Ipso Facto Event" has the meaning given to it in Clause 20.1 (Guarantee).

 

"Issuing Person" means the Lender under Facility C so long as, in respect of a Letter of Credit issued or to be issued under this Agreement, the "Issuing Person" shall be the Issuing Person which has issued or has been requested to issue that Letter of Credit.

 

"ITSA" means an indirect tax sharing agreement which:

 

(a)satisfies the requirements of section 444-90 of the Taxation Administration Act 1953

 

(Cth); and

 

(b)            covers all group liabilities of the GST Group to which an Obligor is a member.

 

"Jersey Companies Law" means the Companies (Jersey) Law 1991.

 

"Jersey Company SIA" means the Jersey law security interest agreement to be granted by the Company which is incorporated in Jersey in favour of the Security Trustee in respect of all intangible Jersey situs assets held by that Company.

 

"Jersey Consent Letter" means a consent letter (in the form acceptable to the Security Trustee) executed by any party granting a Company Offshore Security Document governed by the laws of Jersey, consenting to the registration of a financing statement on the SIR, in respect of the security interest to be created pursuant to such Company Offshore Security Document.

 

"Joint Venture" means any form of joint venture, whether a company, unincorporated entity, undertaking, association, partnership or other similar entity or arrangement.

 

page 21

 

 

"JORC Code" means the Australasian Code for Reporting of Exploration Results, Mineral Resources and Ore Reserves published by the Joint Ore Reserves Committee of the Australasian Institute of Mining and Metallurgy, the Australian Institute of Geoscientists and the Minerals Council of Australia, effective as at December 2012, as updated from time to time.

 

"Junior Debt" means the Permitted Financial Indebtedness incurred under or in respect of the Mezzanine Debt Facility, the Silver Streaming Facility, the Copper Streaming Facility and the NSR Royalty.

 

"Junior Debt Documents" means each of the following:

 

(a)in respect of the Mezzanine Debt Facility the:

 

(i)Mezzanine Debt Facility Agreement;

 

(ii)Mezzanine Debt Facility Security Documents; and

 

(iii)Mezzanine Security Trust Deed.

 

(b)in respect of the Silver Streaming Facility the:

 

(i)Silver Purchase Agreement;

 

(ii)Silver Streaming Facility Security Documents;

 

(iii)Silver Stream Security Trust Deed; and

 

(iv)Silver Streaming Intercompany Loan Agreement;

 

(c)in respect of the Copper Streaming Facility the:

 

(i)Copper Purchase Agreement;

 

(ii)Copper Streaming Facility Security Documents;

 

(iii)Copper Stream Security Trust Deed; and

 

(iv)Copper Streaming Intercompany Loan Agreement;

 

(d)in respect of the NSR Royalty the:

 

(i)Glencore NSR Royalty Agreement;

 

(ii)all "NSR Documents" as defined in the defined in the Intercreditor Deed,

 

and any other document, agreement or understanding (in writing or not) between any Obligors or between an Obligor and any shareholder of any of them which evidences Financial Indebtedness of an Obligor to another Obligor or shareholder of any of them.

 

"Key Material Contract" means each of the following Material Contracts:

 

(a)the Offtake Agreement;

 

page 22

 

 

(b)the Transitional Services Agreement;

 

(c)the Sale and Purchase Agreement;

 

(d)the PPX Supply Contract;

 

(e)the ME Supply Contract;

 

(f)the Shiploader Agreement;

 

(g)the Haulage Agreement;

 

(h)the Cobar Terminal Services Agreement;

 

(i)the Cooling Plant Agreement;

 

(j)the Ventilation Construction Agreement;

 

(k)the Project Leases;

 

(l)any Material Contract which in the opinion of the Agent (acting on the instructions of the Majority Lenders, each acting reasonably) is a Key Material Contract for the purposes of this definition; and

 

(m)any document entered into for the purpose of varying, novating, supplementing, extending, replacing or restating any of the above.

 

"Key Tenement" means each Tenement other than Exploration Licence 6223 (1992) and Exploration Licence 6907 (1992) or any other Tenement the Agent (acting on the instructions of all the Lenders) agrees is not a Key Tenement.

 

"Leasehold Property Mortgages" means each mortgage to be granted by the Target in favour of the Security Trustee in respect of the Project Leases.

 

"Legal Opinions" means each of the legal opinions given under Schedule 2. "Legal Reservations" means:

 

(a)the principle that equitable remedies may be granted or refused at the discretion of a court and the limitation of enforcement by laws relating to insolvency, liquidation, reorganisation, moratoria, administration and other laws generally affecting the rights of creditors;

 

(b)the time barring of claims under applicable limitations laws, the possibility that an undertaking to assume liability for or indemnity of a person against non-payment of stamp duty may be void and defences of set-off or counterclaim; and

 

(c)any other matters which are set out as qualifications or reservations as to matters of law in the Legal Opinions.

 

page 23

 

 

"Lender" means:

 

(a)any Original Lender; and

 

(b)any bank, financial institution, trust, fund or other entity which has become a Party as a "Lender" in accordance with Clause 29 (Changes to the Lenders),

 

which in each case has not ceased to be a Party in accordance with this Agreement.

 

"Lender Presentation" means the document 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 this transaction and distributed by the Arranger to selected financial institutions before the date of this Agreement.

 

"Less Key Material Contract" means each of the following Material Contracts:

 

(a)the Diesel Supply Agreement;

 

(b)the Cement Supply Agreement;

 

(c)the Consultancy Services Umbrella Agreement;

 

(d)any Material Contract which in the opinion of the Agent (acting on the instructions of the Majority Lenders, each acting reasonably) is a Less Key Material Contract for the purposes of this definition; and

 

(e)any document entered into for the purpose of varying, novating, supplementing, extending, replacing or restating any of the above.

 

"Letter of Credit" means:

 

(a)a letter of credit or bank guarantee, substantially in the form required by the New South Wales Department of Mines as set out in Schedule 11 (Form of Letter of Credit) or in any other form provided by the Issuing Person; or

 

(b)any guarantee, indemnity or other instrument in a form requested by the Borrower and agreed by the Issuing Person.

 

"Life of Mine Plan" means, at any time, the independent technical report summary dated 13 May 2022 prepared by Behre Dolbear Australia Pty Ltd in accordance with the SEC Regulation S-K technical Report Summary requirements in respect of CSA Copper Mine – New South Wales – Australia, provided to the Agent under clause 4.1 (Initial conditions precedent) as such mine plan may be amended or updated at such time in accordance with the in accordance with this Agreement.

 

"Loan" means a Facility A Loan or a Facility B Loan.

 

"Lookback Period" means the number of days specified as such in the Compounded Rate Terms.

 

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"Majority Lenders" means a Lender or Lenders whose Commitments aggregate at least 66⅔ per cent of the Total Commitments (or, if the Total Commitments have been reduced to zero, aggregated at least 66⅔ per cent of the Total Commitments immediately before the reduction). Where a Lender's Commitment has been reduced to zero, but it has an outstanding participation in any outstanding Utilisations, then for this purpose its Commitment will be taken to be the aggregate amount of its participation.

 

"Mandate and Commitment Letter" means any mandate and commitment letter or letters dated on or before the date of this Agreement between the Company and an Arranger or the Company and an Original Lender.

 

"Margin" means 3.00 per cent. per annum for Facility A and Facility B.

 

"Market Disruption Rate" means the rate (if any) specified as such in the Compounded Rate Terms.

 

"Material Adverse Effect" means a material adverse effect on:

 

(a)the business, operation, property, condition (financial or otherwise) or prospects of the Obligors taken as a whole; or

 

(b)the ability of the Obligors (taken as a whole) to perform their obligations under the Finance Documents; or

 

(c)the validity or enforceability of, or the effectiveness or ranking of any Security granted or purporting to be granted under any of, the Finance Documents or the rights or remedies of any Finance Party or the Security Trustee under any of the Finance Documents.

 

"Material Contracts" means:

 

(a)each Key Material Contract;

 

(b)each Less Key Material Contract;

 

(c)any other contract entered into by a member of the Borrower Group which is material to the operation of the Project and which the Agent determines (acting on the instructions of the Majority Lenders, each acting reasonably) is a Material Contract;

 

(d)any other document designated as such by the Agent and the Company; and

 

(e)any document entered into for the purpose of varying, novating, supplementing, extending, replacing or restating any of the above.

 

"ME Supply Contract" means the document titled "Mobile Equipment Supply Contract (Supply of Capital Equipment and Associated Services)" dated 30 June 2020 between Mount Isa Mines Limited ACN 009 661 447 (acting in its personal capacity and as agent for the Target and Ernest Henry Mining Pty Ltd ACN 008 495 574) and Sandvik Mining and Construction Australia Pty Ltd ACN 003 771 382.

 

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"Mezzanine Debt Facility" means the financial accommodation made available to the Borrower under the Mezzanine Debt Facility Agreement.

 

"Mezzanine Debt Facility Agreement" means the agreement to be dated before Financial Close entitled "US$135,000,000 mezzanine debt facility" between the Borrower as borrower, the Company as guarantor, Sprott Private Resource Lending II (Collector), LP as lender and others in Agreed Form.

 

"Mezzanine Debt Facility Security Documents" means the “Transaction Security Documents” as defined in the Mezzanine Debt Facility Agreement in each case in Agreed Form.

 

"Mezzanine Security Trust Deed" means the deed entitled "Security Trust Deed (Mezzanine)" to be dated before Financial Close and made between, among others, the Borrower, the Company and the security trustee named in that deed in Agreed Form.

 

"Mining Act" means the Mining Act 1992 (NSW). "Mining Mortgages" means:

 

(a)each mortgage to be granted by the Target in favour of the Security Trustee in respect of the Tenements under the Target General Security Deed;

 

(b)any mining mortgage over a tenement that becomes a Tenement after Financial Close; and

 

(c)any mining mortgage granted by a Guarantor in favour of the Security Trustee.

 

"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 in relation to an Interest Period for any Loan (or any other period for the accrual of commission or fees) for which there are rules specified as "Business Day Conventions" in the Compounded Rate Terms, those rules shall apply, or for all other purposes:

 

(a)(subject to paragraph (c) below) 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;

 

(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; and

 

(c)if an Interest Period begins on the last Business Day of a calendar month, that Interest Period shall end on the last Business Day in the calendar month in which that Interest Period is to end.

 

The above rules will only apply to the last Month of any period.

 

"Multiemployer Plan" means any multiemployer plan as defined in section 4001(a)(3) of ERISA, which is or was contributed to by an Obligor, a Subsidiary of an Obligor or an ERISA Affiliate (or to which any of the foregoing had any obligation to contribute or any liability, contingent or otherwise).

 

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"Native Title Claim" means any application, claim, right or entitlement, (whether arising by statute or otherwise) of any indigenous person or traditional owner to any estate or interest in land by which that person or owner is applying for or claiming or has that estate or interest in land because that person is indigenous, is a traditional owner or otherwise has a relationship with the land including any application, claim, right or entitlement under the Native Title Act 1993 (Cth) or any analogous legislation.

 

"Net Debt" means, in relation to the Borrower Group, at the end of any Relevant Period, the sum of the following items (as stated on the Borrower's financial statements):

 

(a)the consolidated Financial Indebtedness of the Borrower Group, excluding any liabilities related to:

 

(i)unrealised Derivative Transactions;

 

(ii)the Mezzanine Debt Facility;

 

(iii)the Silver Streaming Facility;

 

(iv)the Copper Streaming Facility;

 

(v)the NSR Royalty; and

 

(vi)any other subordinated loans referred to or permitted under this agreement;

 

(b)less the Available Cash and Cash Equivalent Investments. "Net Debt to EBITDA" means, for any Relevant Period, the ratio of:

 

(a)Net Debt; to

 

(b)EBITDA.

 

"New Lender" has the meaning given in Clause 29 (Changes to the Lenders).

 

"NSR Royalty" means the 1.5% copper only net smelter return royalty granted by Target to Glencore Operations Australia Pty Limited under the Glencore NSR Royalty Agreement.

 

"Obligor" means the Borrower or a Guarantor.

 

"Obligor Shares" means any shares, membership or other equity interests, or other equity securities in or issued by any Obligor or Target but excluding the Company.

 

"Offshore Associate" means an Associate:

 

(a)which is a non-resident of Australia and does not become a Lender or receive a payment in carrying on a business in Australia at or through a permanent establishment of the Associate in Australia; or

 

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(b)which is a resident of Australia and which becomes a Lender or receives a payment in carrying on a business in a country outside Australia at or through a permanent establishment of the Associate in that country; and

 

which does not become a Lender and receive payment in the capacity of a clearing house, custodian, funds manager or responsible entity of a registered scheme.

 

"Offtake Agreement" means:

 

(a)the offtake agreement to be entered into between the Target as seller and Glencore International AG as the buyer on or before Completion; and

 

(b)any additional or replacement offtake agreement, on market-based commercial terms consistent with the Base Case Financial Model and approved by the Agent (acting on the instructions of the Majority Lenders).

 

"Offtaker" means Glencore International AG and any other offtaker under an Offtake Agreement approved by the Agent.

 

"Operating Costs" means all costs and expenses incurred and paid or payable by the Borrower Group in the ordinary course of business in connection with the day-to-day activities of the Project, including (without double-counting):

 

(a)cash expenses incurred in connection with the operation and maintenance of the Project that are not of a capital nature;

 

(b)administrative, management and employee costs;

 

(c)payments under any equipment leases;

 

(d)payments of an operating nature under the Material Contracts (including water, land leases, rail and port usage);

 

(e)insurance premia and deductibles; and

 

(f)any other operating or recurring costs and expenses of the Borrower in connection with the operation and/or maintenance of the Project (excluding Debt Service) that the Borrower and the Agent agree are Operating Costs.

 

"Original Financial Statements" means:

 

(a)in relation to the Borrower, the audited consolidated financial statements of the Borrower Group for the financial years or half year, ended 2022, 2021 and 2020;

 

(b)in relation to each Original Guarantor (other than Metals Acquisition Limited), its audited financial statements for its financial years ended 31 December 2020, 31 December 2021 and 31 December 2022; and

 

(c)in relation to any other Obligor, its audited financial statements delivered to the Agent as required by Clause 30 (Changes to the Obligors).

 

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"Original Guarantor" means each entity listed as such in Part I of Schedule 1. "Original Obligor" means the Borrower or an Original Guarantor.

 

"Participating Member State" means any member state of the European Union that has the euro as its lawful currency in accordance with legislation of the European Union relating to Economic and Monetary Union.

 

"Party" means a party to this Agreement.

 

"Payable Copper" means 96.2% of any and all copper in whatever form or state that is mined, produced, extracted or otherwise recovered from the Tenements, including

 

(a)any copper derived from any processing or reprocessing of any tailings, waste rock or other waste products originally derived from the Tenements; and

 

(b)copper contained in any ore or other products resulting from further milling, processing or other beneficiation of minerals mined, produced, extracted or otherwise recovered (including concentrates and dore bars) or derived from the Tenements.

 

"Payable Silver" means 90% of any and all silver in whatever form or state that is mined, produced, extracted or otherwise recovered from the Tenements, including

 

(a)any silver derived from any processing or reprocessing of any tailings, waste rock or other waste products originally derived from the Tenements; and

 

(b)silver contained in any ore or other products resulting from further milling, processing or other beneficiation of minerals mined, produced, extracted or otherwise recovered (including concentrates and dore bars) or derived from the Tenements.

 

"Perfection Requirements" means the making or procuring of the appropriate perfection, stamping, endorsements, notarisations, notifications, Authorisations and registration requirements of the Transaction Security Documents and/or the Security created under them.

 

"Permitted Acquisition" means:

 

(a)the Acquisition of the Target;

 

(b)any acquisition under the definition of Permitted Disposal;

 

(c)any acquisition of Cash Equivalent Investments so long as those Cash Equivalent Investments become subject to the Transaction Security as soon as is reasonably practicable following such acquisition (other than in the case of Cash Equivalent Investments maturing within 30 days);

 

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(d)any acquisition of, subscription for or investment in any business or undertaking, or shares or securities (or equivalent ownership interests) of, any company or corporation (a "Complementary Acquisition"), unless the Complementary Acquisition would have a Material Adverse Effect, and so long as:

 

(i)the aggregate consideration during the term of the Facilities for the Complementary Acquisitions (together with the aggregate investment in Permitted Joint Ventures) does not exceed US$50,000,000;

 

(ii)no Event of Default is continuing on the closing date for the Complementary Acquisition or would occur as a result of the Complementary Acquisition;

 

(iii)the acquired company, corporation, business or undertaking is primarily engaged in, or the acquired company, corporation business assets and undertaking will be used primarily in connection with, a base or precious metals business the same as, substantially similar to or directly related to or directly complementary to that carried on by the Target immediately before the Complementary Acquisition and so long as such company, corporation, business or undertaking does not produce or deal in coal or uranium; and

 

(iv)where the consideration during the term of the Facilities for the Complementary Acquisition exceeds US$25,000,000, an updated Base Case Financial Model has been delivered by the Borrower to the Agent and approved by the Agent (acting on the instructions of the Majority Lenders), updated in accordance with clause 23.5 (Updates to Base Case Financial Model), showing a projected Debt Service Cover Ratio of at least 1.5:1.00 on a pro-forma basis following completion of such acquisition; and

 

(e)any other acquisition with the prior consent of the Agent (acting on the instructions of the Majority Lenders).

 

"Permitted Disposal" means any sale, lease, licence, bailment, transfer or other disposal (a "Disposal") which, except in the case of paragraph (b), is on arm's length terms:

 

(a)of trading stock or cash made by any member of the Group in the ordinary course of trading of the disposing entity;

 

(b)of Product under the Offtake Agreement;

 

(c)of any asset by a member of the Group (the "Disposing Company") to another member of the Group (the "Acquiring Company"), but if:

 

(i)the Disposing Company is an Obligor, the Acquiring Company must also be an Obligor;

 

(ii)the Disposing Company is the Borrower, the Acquiring Company must be an Obligor in the Borrower Group;

 

(iii)the Disposing Company had given Security over the asset, the Acquiring Company must have given equivalent Security over that asset;

 

(iv)the Disposing Company is a Guarantor, the Acquiring Company must be a Guarantor guaranteeing at all times an amount no less than that guaranteed by the Disposing Company; and

 

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(v)the Disposing Company is a Guarantor in the Borrower Group, the Acquiring Company must be a Guarantor in the Borrower Group guaranteeing at all times an amount no less than that guaranteed by the Disposing Company;

 

(d)of assets (other than shares, businesses, real property/intellectual property) in exchange for other assets comparable or superior as to type, value and quality (other than an exchange of a non-cash asset for cash);

 

(e)of obsolete or redundant vehicles, plant and equipment for cash;

 

(f)of Cash Equivalent Investments for cash or in exchange for other Cash Equivalent Investments;

 

(g)arising as a result of any Permitted Security;

 

(h)of assets to, in connection with or for the purpose of the creation of, a Permitted Joint Venture, so long as, if any such disposal shall include real property of the Target or a Tenement, the net book value (when aggregated with the net book value of all such Disposals in respect of the Target) does not exceed US$10,000,000 (or its equivalent) in total during any 12 month period;

 

(i)of assets (other than shares or businesses) for cash (that is not otherwise permitted by the preceding paragraphs) so long as the net book value (when aggregated with the net book value of all such Disposals) does not exceed US$10,000,000 (or its equivalent) in total during any 12 month period;

 

(j)of assets (other than shares or businesses), in connection with, or for the purpose of, such assets then continuing to be used by the Borrower or Target under a lease back or hire purchase contract, so long as the net book value (when aggregated with the net book value of all such Disposals) does not exceed US$30,000,000 (or its equivalent) in total;

 

(k)pursuant to the grant of leasehold interests in, or licences of, residential property to employees of the Borrower or Target in the ordinary course of business; and

 

(l)with the prior written consent of the Agent, acting on the instructions of all Lenders,

 

so long as, in each case, no Event of Default is subsisting on the date of such Disposal or would occur as a result of such Disposal, and such Disposal would not have, or could not reasonably be expected to have, a Material Adverse Effect.

 

"Permitted Distribution" means the payment of any Distribution so long as:

 

(a)no Event of Default is continuing or would occur as a result of making the Distribution;

 

(b)no Offtake Agreement has been terminated, unless it has been replaced with an offtake agreement which the Agent has confirmed in writing is acceptable to it (acting on the instructions of the Majority Lenders);

 

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(c)the amount of cash or Cash Equivalent Investments (net of any redemption costs) freely available to the Borrower immediately following the Distribution is not less than US$30,000,000;

 

(d)the Reserve Tail Ratio for the most recently ended Relevant Period is not less than 25%;

 

(e)the Debt Service Cover Ratio set out in the Compliance Certificate for the most recently ended Relevant Period is not less than 1.2:1.00; and

 

(f)the Borrower has not exercised its right to remedy a breach of the Financial Covenant under clause 24.3 (Financial Covenant Cure) in the six months immediately preceding the Distribution;

 

(g)except in the case of a Distribution described under paragraph (h) below, the Distribution is paid within 10 Business Days of the most recent Interest Payment Date on which all amounts then due and payable under this Agreement were paid; and

 

(h)in the case of a Distribution under paragraph (c), (d) or (e) of the definition of "Distribution", such Distribution is paid solely out of (i) the net proceeds of the issuance of equity by the Company or (ii) monies held in the Distribution Account.

 

"Permitted Financial Indebtedness" means Financial Indebtedness:

 

(a)in respect of the Obligors, incurred under the Mezzanine Debt Facility so long as the total outstanding liabilities of the Company and the Borrower under or in connection with the Mezzanine Debt Facility do not exceed US$135,000,000 plus any interest (including capitalised interest) accruing thereon;

 

(b)in respect of the Obligors, incurred under the Silver Purchase Agreement;

 

(c)in respect of the Borrower, incurred under the Silver Streaming Intercompany Loan Agreement;

 

(d)in respect of the Obligors, incurred under the Copper Purchase Agreement, but only to the extent that it is actually utilised as required in order to achieve Financial Close;

 

(e)in respect of the Borrower, incurred under the Copper Streaming Intercompany Loan Agreement, but only to the extent that it is actually utilised as at Financial Close;

 

(f)in respect of the Borrower and the Target, incurred under the NSR Royalty;

 

(g)incurred under the other Transaction Documents, including in respect of the Sale and Purchase Agreement, any future or contingent consideration payable under it;

 

(h)so long as it is in accordance with the Approved Hedging Programme, arising under a foreign exchange transaction for spot or forward delivery entered into in connection with protection against fluctuation in currency rates where that foreign exchange exposure arises in the ordinary course of trade, but not a foreign exchange transaction for investment or speculative purposes;

 

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(i)arising under a Permitted Loan or as permitted by Clause 25.17 (Derivative Transactions);

 

(j)under leases and hire purchase contracts constituting Financial Indebtedness under paragraph (d) of that definition of vehicles, plant, equipment or computers, so long as the aggregate capital value of all such items so leased under outstanding leases by members of the Group does not exceed US$30,000,000 (or its equivalent in any other currency or currencies) at any time;

 

(k)not permitted by the preceding paragraphs and the outstanding principal amount of which does not exceed US$10,000,000 (or its equivalent in any other currency or currencies) in aggregate for the Group at any time and which is on an unsecured basis;

 

(l)under leases and hire purchase contracts constituting Financial Indebtedness undertaken in connection with a Permitted Disposal and not otherwise exceeding $15,000,000 (or its equivalent in any other currency or currencies) at any time; and

 

(m)with the prior written consent of the Agent, acting on the instructions of the Majority Lenders,

 

so long as, in each case, no Event of Default is subsisting on the date such Financial Indebtedness is incurred or would occur as a result of the incurrence of such Financial Indebtedness.

 

"Permitted Joint Venture" means any investment in any Joint Venture, unless such investment would have a Material Adverse Effect and so long as:

 

(a)the aggregate investment amount during the term of the Facilities (together with the aggregate consideration for all Complementary Acquisitions):

 

(i)does not exceed US$10,000,000; or

 

(ii)exceeds US$10,000,000 and an updated Base Case Financial Model has been delivered by the Borrower to the Agent and approved by the Agent (acting on the instructions of the Majority Lenders), updated in accordance with clause 23.5 (Updates to Base Case Financial Model), showing a projected Debt Service Cover Ratio of at least 1.5:1.0 on a pro-forma basis following completion of the investment;

 

(b)no Event of Default is continuing on the closing date for such investment or would occur as a result of such investment (unless such investment is being entered into under a purchase obligation binding on the Borrower and, at the time such purchase obligation was assumed, no Event of Default was continuing or occurred as a result of the assumption of the purchase obligation);

 

(c)the Joint Venture is or will be primarily engaged in, or the Joint Venture will be used primarily in connection with, a base or precious metals business the same as, substantially similar to or directly related to or directly complementary to that carried on by the Target immediately before the investment in such Joint Venture, and so long as that Joint Venture (or the venture partner) does not produce or deal in coal or uranium;

 

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(d)no Obligor may invest real property of the Obligor or a Tenement in a Joint Venture (except where the disposal would be a Permitted Disposal).

 

"Permitted Loan" means:

 

(a)any loans, refundable deposits, advance payments or trade credit extended by any member of the Group to its customers on normal commercial terms and in the ordinary course of its trading activities;

 

(b)Financial Indebtedness which is referred to in the definition of, or otherwise constitutes, Permitted Financial Indebtedness (except under paragraph (i) of that definition);

 

(c)a loan made by:

 

(i)an Obligor within the Borrower Group to another Obligor within the Borrower Group; and

 

(ii)made by a member of the Group which is not an Obligor within the Borrower Group to another member of the Group so long as it is subordinated to the Facilities to the satisfaction of the Agent, acting on the instructions of the Majority Lenders;

 

(d)any loan made by the Borrower which is funded solely by cash otherwise available for Distributions in accordance with this Agreement;

 

(e)any loan made by the Borrower to an employee or director of the Borrower if the amount of that loan when aggregated with the amount of all such loans does not exceed US$2,500,000 (or its equivalent) at any time;

 

(f)any loan made with the prior written consent of the Agent, acting on the instructions of the Majority Lenders; and

 

(g)any loan made by the Borrower not otherwise permitted by the preceding paragraphs if the amount of that loan when aggregated with the amount of all such loans permitted under this paragraph (g) does not exceed US$5,000,000 (or its equivalent) in aggregate for the Borrower at any time, so long as no Event of Default is continuing on the date such loan is made or would occur as a result of the making of the loan; and

 

(h)any loan made with the prior written consent of the Agent, acting on the instructions of the Majority Lenders.

 

"Permitted Security" means:

 

(a)any lien arising by operation of law and in the ordinary course of trading so long as the debt it secures is paid when due or contested in good faith and appropriately provisioned;

 

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(b)any 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:

 

(i)across accounts of that Group member; or

 

(ii)across accounts of members of the Borrower Group that are Obligors; or

 

(iii)across accounts of members of the Group that are not part of the Borrower Group; or

 

(iv)across accounts of members of the Group that are not Obligors;

 

(c)any payment or close out netting or set-off arrangement under any transactional banking facilities or any Derivative Transaction or foreign exchange transaction entered into by a member of the Group which constitutes Permitted Financial Indebtedness, excluding any Security under a credit support arrangement;

 

(d)any contractual right of set-off, other than in respect of Financial Indebtedness, pursuant to a contract entered into in the ordinary course of business;

 

(e)any Security arising under any retention of title, hire purchase or conditional sale arrangement or arrangements having similar effect in respect of goods supplied to a member of the Group in the ordinary course of trading and on the supplier's standard or usual terms (or on terms more favourable to the members of the Group) so long as the debt it secures is paid when due or contested in good faith and sufficient reserves of liquid assets have been set aside to pay the debt if the contest is unsuccessful;

 

(f)any Security arising as a result of a disposal which is a Permitted Disposal;

 

(g)any Security in respect of real property which is or arises by any order, memorial, notification, easement benefit or burden, or lease existing at the date of this Agreement and which is evident from the certificate of title to such real property or a purchaser's caveat;

 

(h)any Security granted in relation to any Permitted Joint Venture, so long as such Security is limited to cross-security solely over the assets of the Permitted Joint Venture solely to secure amounts payable between the joint venturers in connection with the Permitted Joint Venture and arising in the ordinary course of business and on arm's length terms;

 

(i)any Security arising as a consequence of any leases or hire purchase contracts (constituting Financial Indebtedness under paragraph (d) of that definition) of vehicles, plant, equipment or computers permitted under paragraph (j) of the definition of Permitted Financial Indebtedness and only over the asset being financed, or otherwise any PPS Lease (as defined in the PPSA) provided for by a transaction which does not secure payment or performance of an obligation;

 

(j)any Security already subsisting but not legally possible or reasonably feasible to be discharged and listed in Schedule 8 (Existing Security) except to the extent the principal amount secured by it exceeds the amount stated in that Schedule;

 

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(k)any Security listed Schedule 8 (Existing Security), including any replacement Security upon any successive refinancing thereof, so long as the Financial Indebtedness secured thereby is Permitted Financial Indebtedness;

 

(l)any Security in respect of the Financial Indebtedness in respect of the Junior Debt, so long as it subsists in accordance with the Intercreditor Deed; or

 

(m)any Security not otherwise permitted by the preceding paragraphs securing obligations which do not exceed US$5,000,000 (or equivalent) in aggregate for the Borrower at any time from the date of Financial Close, so long as, if the assets subject to this Security are real property of an Obligor or a Tenement, such Security would not have, or could not reasonably be expected to have, a Material Adverse Effect, and so long as no Event of Default is continuing on the date of creation of such Security or would occur as a result of the creation of such Security and provided that no Project Assets or Obligor Shares are subject to any such Security.

 

"Permitted Transaction" means:

 

(a)any disposal required, Financial Indebtedness incurred, guarantee, indemnity or Security given, or other transaction arising, either under the Finance Documents or as otherwise approved by the Agent on the instructions of the Majority Lenders provided that no such disposal, Security or other transaction involves any Disposal or Security being granted over any Project Assets or any Obligor Shares; or

 

(b)a dual listing by the Company on the Australian Securities Exchange and the issue of any securities by the Company in connection with that listing or any other equity raise; or

 

(c)the raising of any equity in connection with the Acquisition and any restructure, redemption or other matters undertaken in connection with the Acquisition associated with the Company's listing on the New York Stock Exchange (NYSE) subject to any such restructure and redemptions having been completed before Financial Close.

 

"Plan" means an "employee benefit plan" as defined in section 3(3) of ERISA that is subject to Title IV of ERISA and that is sponsored, maintained or contributed to by an Obligor, a Subsidiary of an Obligor or any ERISA Affiliate or in respect of which an Obligor, a Subsidiary of an Obligor or an ERISA Affiliate has or has had an obligation to contribute or any liability (contingent or otherwise).

 

"PPSA" means the Personal Property Securities Act 2009 (Cth).

 

"PPX Supply Contract" means the document titled "Supply Contract (Supply of PPX Parts, GET, Drilling Consumables, Services and other items)" dated on or around 1 October 2020 between Mount Isa Mines Limited ACN 009 661 447 (in its personal capacity and acting as agent for the Target and Ernest Henry Mining Pty Ltd ACN 008 495 574) and Sandvik Mining and Construction Australia Pty Ltd ACN 003 771 382.

 

"Product" means the present and future right, title and interest of an Obligor in and to all copper and silver and other metals and minerals mined, extracted or derived from the Project.

 

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"Project" means:

 

(a)the management, operation, maintenance, repair and expansion of the mines owned by the Target as at the date of this Agreement; and

 

(b)the extraction, production, recovery, sale, transportation, storage, processing and delivery of copper, silver and by product metals in concentrate in respect of those mines.

 

"Project Account" means each of the following accounts in the name of the Borrower and/or Target and held with the Account Bank:

 

(a)USD Proceeds Account ("Proceeds Account");

 

(b)AUD Proceeds Account ("Proceeds Account"); and

 

(c)Distribution Account ("Distribution Account"),

 

and any replacement bank account with an Account Bank with the approval of the Agent and agreed between the Borrower and the Agent to be the USD Proceeds Account, the AUD Proceeds Account or the Distribution Account.

 

"Project Area" means the area the subject of the Tenements, the Freehold Properties and the Project Leases.

 

"Project Assets" means all the right, title and interest both present and future of the Obligors which is attributable to the Project and includes all the right, title and interest both present and future of the Obligors in, to, under or derived from:

 

(a)the Tenements, the Freehold Properties, the Project Leases and all other documentation and agreements under which an Obligor derives the right to conduct mining or exploration for Product at the Project;

 

(b)the Product;

 

(c)the Project Area, including any title to or interest in land in a Project Area now or at a later time held by an Obligor;

 

(d)each Offtake Agreement;

 

(e)the Insurances;

 

(f)every contract for the use by any third party of any of the assets and property included in the Project;

 

(g)all Authorisations in relation to the Project;

 

(h)the Material Contracts and any other contract, agreement, permit, lease, licence, consent, easement, right of way and other rights or interests in land, which relate to the development, operation or maintenance of the Project, or to the mining production, transportation, storage, treatment, processing or marketing of a Product;

 

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(i)all exploration and mining information, documents, maps, reports, records, studies and other written data, including all data stored on magnetic tapes, disks or diskettes or any other computer storage media, relating to geological, geochemical and geophysical work, feasibility studies and other operations conducted with respect to the Project; and

 

(j)all buildings, improvements, structures, systems, fixtures, plant, machinery, tools and other personal property at any time used or intended for use in connection with or incidental to the exploration, mining, storage, transporting and processing of Product, and all facilities and infrastructure (including any treatment or processing plant) associated with the Project.

 

"Project Leases" means each perpetual land lease held by the Target listed in Part II of Schedule 17 (Real Property) and any additional or replacement lease used or to be used in connection with the Project.

 

"Real Property Mortgages" means:

 

(a)the Freehold Property Mortgages;

 

(b)the Leasehold Property Mortgages; and

 

(c)the Water Licence Mortgages.

 

"Recognition Certificate" has the meaning given in the Security Trust Deed.

 

"Related Fund" in relation to a fund (the "first fund"), means a fund which is managed or advised by the same investment manager or investment adviser as the first fund or, if it is managed by a different investment manager or investment adviser, a fund whose investment manager or investment adviser is an Affiliate of the investment manager or investment adviser of the first fund.

 

"Relevant Market" means in relation to Australian dollars, the Australian interbank market for bank accepted bills and negotiable certificates of deposits and, in relation to US Dollars, the market specified as such in the Compounded Rate Terms.

 

"Relevant Period" means:

 

(a)each rolling period of 12 consecutive months ending on the last day of a financial year and the date falling three, six and nine months after the last day of a financial year, being as at the date of Financial Close, 31 March, 30 June, 30 September and 31 December, except that the first Relevant Period will end on the first such date which falls at least 3 months after Financial Close; and

 

(b)for the purposes of testing the Financial Covenants, each rolling period of 12 consecutive months ending on 31 March, 30 June, 30 September and 31 December.

 

"Renewal Request" means a written notice delivered to the Issuing Person in accordance with Clause 6.6 (Renewal of a Letter of Credit).

 

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"Repeating Representations" means each of the representations set out in Clauses 21.1 (Status) to 21.5 (Validity and admissibility in evidence), 21.11 (No misleading information), 21.12(c) (Financial Statements), 21.13 (Ranking), 21.15 (Trustee), 21.19 (Ranking), 21.21 (Good title to assets), 21.23 (Group structure chart), 21.26 (Sanctions), 21.28 (Jersey Representations) and Clause 22 (Project Representations).

 

"Reporting Day" means the day specified as such in the Compounded Rate Terms.

 

"Reporting Time" means the relevant time (if any) specified as such in the Compounded Rate Terms.

 

"Representative" means any delegate, agent, manager, administrator, nominee, attorney, trustee or custodian.

 

"Reserve Tail Ratio" means the ratio expressed as a percentage of:

 

(a)the projected remaining proven and probable Reserves as from the Termination Date to the forecast end of the mine life for the Project; and

 

(b)the projected remaining proven and probable Reserves as from the date of Financial Close to the forecast end of the mine life for the Project,

 

as included in the relevant updated Reserves Statement (taking into account the projected future production set out in the most recently delivered updated Base Case Financial Model).

 

"Reserves" means reserves of copper as determined in accordance with the JORC Code.

 

"Reserves Statement" means a statement of proven and probable Reserves in relation to the Project which is prepared in accordance with the JORC Code.

 

"Resignation Letter" means a letter substantially in the form set out in Schedule 6 (Form of Resignation Letter).

 

"Revenue" means, for any period, the aggregate of the following amounts actually received (or, where not received at any date of the calculation, projected to be actually received as contemplated in the Base Case Financial Model) by the Obligors that are members of the Borrower Group during that period:

 

(a)Sales Proceeds;

 

(b)net amounts received under or in relation to any Hedging Agreement;

 

(c)any interest on the Project Accounts; and

 

(d)any other recurring moneys received by the Obligors (including proceeds of Disposals of assets, insurance proceeds and amounts received by way of damages) and for any purpose whatsoever,

 

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but excluding:

 

(e)the proceeds of a Utilisation and any other financial accommodation (other than under a Hedging Agreement) made available by a Lender;

 

(f)the proceeds of any financial accommodation made available under the Junior Debt Documents; and

 

(g)the proceeds of any Insurance in respect of liabilities to third parties.

 

"Review Event" means the occurrence of any of the following events (whether or not it is in the control of any Obligor):

 

(a)suspension of trading of shares of the Company, or any other relevant subsidiary if applicable, from the New York Stock Exchange or, to the extent its shares are listed on the Australian Securities Exchange, Australian Securities Exchange, for 10 consecutive Business Days, other than in connection with the de-SPAC process before Financial Close;

 

(b)the Company ceases to hold directly or indirectly at least 50% of the voting shares of, or otherwise ceases to control, the Borrower and, after its acquisition by the Borrower, the Target. For this purpose "control" has the meaning given in section 50AA of the Corporations Act;

 

(c)the Target ceases to own the Key Tenements relating to the Project;

 

(d)unplanned cessation of mining or processing at the Project for more than 14 Business Days; or

 

(e)the occurrence of a Tax Event.

 

"RFR" means the rate specified as such in the Compounded Rate Terms.

 

"RFR Banking Day" means any day specified as such in the Compounded Rate Terms.

 

"Rollover Loan" means one or more Facility B Loans or Letters of Credit:

 

(a)made or to be made on the same day that:

 

(i)a maturing Facility B Loan is due to be repaid; or

 

(ii)a demand by the Issuing Person under a drawing in respect of a Letter of Credit is due to be met;

 

(b)the aggregate amount of which is equal to or less than the amount of the maturing Facility B Loan or the relevant claim in respect of that Letter of Credit;

 

(c)made or to be made to the Borrower for the purpose of:

 

(i)refinancing that maturing Facility B Loan; or

 

(ii)satisfying the relevant claim in respect of that Letter of Credit.

 

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"Sale and Purchase Agreement" means the document titled "CMPL share sale agreement" dated 17 March 2022 between the Borrower, the Company and Glencore Operations Australia Pty Limited in respect of the acquisition of 100% of the issued share capital in the Target by the Borrower as amended or varied before the date of this Agreement.

 

"Sales Proceeds" means moneys received from the sale of Product, including moneys received under any Offtake Agreement.

 

"Sanctions" means any trade, economic or financial sanctions administered or enforced by the U.S. Department of Treasury's Office of Foreign Assets Control, the United Nations Security Council, the European Union, His Majesty's Treasury, the Australian Department of Foreign Affairs and Trade, the New Zealand Ministry of Foreign Affairs and Trade, the Hong Kong Commerce, Industry and Tourism Branch of the Commerce and Economic Development Bureau, the Monetary Authority of Singapore or the Ministry of Finance Japan.

 

"Second Contingent Copper Payment" means the unsecured, subordinated payment of up to $75,000,000 deferred consideration payable by the Company to Glencore Operations Australia Pty Limited under the Sale and Purchase Agreement payable if, over the life of the mine, the average daily LME closing price of copper is greater than US$9,920 per metric tonne for any rolling 24-month period (commencing at Completion).

 

"Secured Property" means all of the assets of the Obligors which from time to time are the subject of the Transaction Security.

 

"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, including any "security interest" as defined in sections 12(1) or (2) of the PPSA.

 

"Security Trust Deed" means the deed entitled "Security Trust Deed" dated on or about the date of this Agreement and made between, among others, the Company and the Security Trustee.

 

"Security Trust Deed Accession Deed" has the meaning given to the term "Accession Deed" in the Security Trust Deed.

 

"Security Trustee" has the meaning given to it in the Security Trust Deed.

 

"Selection Notice" means a notice substantially in the form set out in Part III of Schedule 3 (Requests) given in accordance with Clause 12 (Interest Periods) in relation to Facility A.

 

"Shiploader Agreement" means the document titled "Newcastle Shiploader Services Agreement" dated on or about January 2014 as varied on 30 August 2021 between the Target and Aurizon Port Services Pty Ltd ACN 103 570 181 (formerly Conports Pty Ltd).

 

"SIJL" means the Security Interests (Jersey) Law 2012.

 

"SIR" means the security interest register maintained under Part 8 of the SIJL.

 

"Silver Purchase Agreement" means the agreement to be dated before Financial Close entitled "silver purchase agreement" between the Company as seller, the Borrower, the Stream Purchaser as purchaser and which will, following completion of a section 260B whitewash procedure under the Corporations Act, be acceded to by the Target in Agreed Form.

 

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"Silver Streaming Facility" means the financial accommodation made available to the Company under the Silver Purchase Agreement.

 

"Silver Streaming Facility Security Documents" means the “Stream Security Documents” as defined in the Silver Purchase Agreement in each case in Agreed Form.

 

"Silver Stream Obligations" means all indebtedness, liabilities and other obligations, present or future, direct or indirect, absolute or contingent, matured or unmatured, at any time or from time to time due or accruing due and owing by or otherwise payable or to be performed by any Obligor to the Stream Purchaser under, in connection with or pursuant to the Silver Stream Documents.

 

"Silver Stream Security Trust Deed" means the deed entitled "Security Trust Deed (Silver Stream)" to be dated before Financial Close and made between, among others, the Company and the security trustee named in that deed in Agreed Form.

 

"Silver Streaming Intercompany Loan Agreement" means the intercompany loan between the Company and the Borrower to be dated before Financial Close under which the proceeds of the upfront deposit to be paid by the Stream Purchaser under the Silver Purchase Agreement are on-lent to the Borrower in Agreed Form.

 

"Social Laws" means any applicable law or regulation which relates to:

 

(a)employment and labour, including occupational health and safety and collective bargaining;

 

(b)respect of human rights, including fair treatment, non-discrimination and equal opportunity;

 

(c)land acquisition and restrictions on land use;

 

(d)community consultation on matters that directly affect them;

 

(e)native title and protection of cultural property and heritage; or

 

(f)protection of community health, safety and security.

 

"Specified Time" means a day or time determined in accordance with Schedule 10 (Timetables).

 

"Sponsor Affiliate" means the Company and each of its affiliates and related funds, trusts, partnerships and controlled entities.

 

"Sponsor Affiliate Payment" means any payment to a Sponsor Affiliate in respect of any management or other fees.

 

"Stream Purchaser" means Osisko Bermuda Limited, an exempted company existing under the laws of Bermuda, and its permitted successors and assigns.

 

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"Subsidiary" has the meaning given in the Corporations Act, but as if body corporate includes any entity, and, in respect of any entity incorporated or established in Jersey, a subsidiary within the meaning of articles 2 and 2A of the Companies (Jersey) Law 1991. It also includes an entity required by current accounting practice to be included in the consolidated annual financial statements of that entity or would be required if that entity were a corporation.

 

"Sustaining Capital Expenditure" means Capital Expenditure contemplated in the Annual Operating Budget which is incurred by the Borrower Group in order to maintain or sustain the production capacity of the Project.

 

"Target" means Cobar Management Pty. Limited (ACN 083 171 546), a company existing under the laws of New South Wales, and its successors and permitted assigns in accordance with the Finance Documents.

 

"Target General Security Deed" means the general security deed (including mining mortgage) to be entered into between the Target and the Security Trustee.

 

"Tax" means any tax, levy, impost, 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 them).

 

"Tax Act" means the Income Tax Assessment Act 1936.

 

"Tax Consolidated Group" means a Consolidated Group or an MEC Group as defined in the Income Tax Assessment Act 1997.

 

"Tax Deduction" means a deduction or withholding for or on account of Tax from a payment under a Finance Document.

 

"Tax Event" means the introduction of or any change in (or in the interpretation, administration or application of) any tax law or regulation made after the date of this Agreement with respect to the Obligors which results in an adverse tax consequence to an assumption for tax under the Base Case Financial Model, and the Base Case Financial Model, when updated for such assumption in accordance with clause 23.5 (Updates to Base Case Financial Model) does not show satisfaction of the Financial Covenants.

 

"Tax Funding Agreement" means a tax funding agreement between the members of a Tax Consolidated Group which includes:

 

(a)reasonably appropriate arrangements for the funding of Tax payments by the "Head Company" (as defined in the Tax Act) having regard to the position of each member of the Tax Consolidated Group;

 

(b)an undertaking from each member of the Tax Consolidated Group to compensate each other member adequately for loss of Tax attributes (including Tax losses and Tax offsets) as a result of being a member of the Tax Consolidated Group; and

 

(c)an undertaking from the "Head Company" (as defined in the Tax Act) to pay all group liabilities (as described in section 721-10 of the Tax Act) of the Consolidated Group before the members of the Tax Consolidated Group make any payments to the "Head Company" (as defined in the Tax Act) under the agreement.

 

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"Tax Sharing Agreement" means any agreement that satisfies the requirements of section 721- 25 of the Tax Act for being a valid tax sharing agreement.

 

"Technical Assumptions" means, in relation to the Base Case Financial Model, forecast and actual Revenue, Operating Costs and technical operating assumptions relating to each Project and any other assumption that in the Agent's reasonable opinion is necessary to run the Base Case Financial Model (other than Economic Assumptions).

 

"Tenements" means:

 

(a)each tenement listed in Schedule 16 (Tenements) held by the Target or another Obligor under the Mining Act;

 

(b)each tenement acquired by an Obligor or any Affiliate thereof after the date of this Agreement which is related to the Project, or is in respect of an area adjacent to an existing Tenement;

 

(c)each other tenement held by an Obligor or any Affiliate thereof which is required for the Project in accordance with the then current Life of Mine Plan;

 

(d)each present or future interest from time to time held by or on behalf of an Obligor or any Affiliate thereof in any present or future right, lease, licence, claim, permit or other authority which confers or may confer a right to prospect or explore for or mine any metals or minerals in any part of the area covered by the tenements referred to in paragraphs (a) to (c) of this definition;

 

(e)each present or future renewal, replacement, extension, modification, amendment, substitution, conversion, amalgamation, relocation, adjustment, resurvey, additional location, consolidation, derived right or variation of any of the mineral rights described above (whether extending over the same or a greater or lesser area);

 

(f)each present or future application for or an interest in any of the above which confers or which, when granted, will confer the same or similar rights in relation to the Project; and

 

(g)each other tenement the Agent (acting on the instructions of the Majority Lenders) and the Borrower agree in writing to be a Tenement.

 

"Term" means each period determined under this Agreement for which the Issuing Person is under a liability under a Letter of Credit.

 

"Termination Date" means, in relation to each Facility, the date falling three years after Financial Close.

 

"Total Commitments" means the aggregate of the Total Facility A Commitments and the Total Facility B Commitments and the Total Facility C Commitments.

 

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"Total Facility A Commitments" means the aggregate of the Facility A Commitments, being US$205,000,000 at the date of this Agreement.

 

"Total Facility B Commitments" means the aggregate of the Facility B Commitments, being US$25,000,000 at the date of this Agreement.

 

"Total Facility C Commitments" means the aggregate of the Facility C Commitments, being A$40,000,000 at the date of this Agreement.

 

"Total Net Debt" means, in relation to the Borrower Group, at the end of any Relevant Period, the sum of the following items (as stated on the Borrower's financial statements):

 

(a)the consolidated Financial Indebtedness of the Borrower Group:

 

(i)including any liabilities related to:

 

(A)the Mezzanine Debt Facility; and

 

(B)the Copper Streaming Facility (if any);

 

(ii)excluding any liabilities related to:

 

(A)unrealised Derivative Transactions;

 

(B)the Silver Streaming Facility;

 

(C)the NSR Royalty; and

 

(D)any other subordinated loans referred to or permitted under this Agreement;

 

(b)less the Available Cash and Cash Equivalent Investments.

 

"Total Net Debt to EBITDA" means, for any Relevant Period, the ratio of:

 

(a)Total Net Debt; to

 

(b)EBITDA.

 

"Transaction Documents" means the Finance Documents, the Junior Debt Documents and the Material Contracts.

 

"Transaction Security" means the Security created or expressed to be created in favour of, or held for the benefit of, the Security Trustee under the Transaction Security Documents.

 

"Transaction Security Documents" means any documents:

 

(a)listed as a Transaction Security Document in paragraph 2(g) of Part I of Schedule 2 (Conditions Precedent);

 

(b)required to be delivered to the Agent under paragraph 3 of Part II of Schedule 2 (Conditions Precedent); or

 

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(c)entered into by any Obligor and which create a Security over any of its assets in favour of, or for the benefit of, the Security Trustee in respect of all or any part of the obligations of the Obligors (with or without securing the obligations of other Obligors) under the Transaction Documents.

 

"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 Agent and the Company.

 

"Transfer Date" means, in relation to an assignment or a transfer, the later of:

 

(a)the proposed Transfer Date specified in the relevant Assignment Agreement or Transfer Certificate; and

 

(b)the date on which the Agent executes the relevant Assignment Agreement or Transfer Certificate.

 

"Transitional Services Agreement" means the document contemplated in the Sale and Purchase Agreement to be titled "Transitional Services Agreement" to be dated on or before Completion and to be entered into between the Company, the Target and an entity within the Glencore Group.

 

"Tripartite Deed" means each tripartite deed to be granted in respect of the following Key Material Contracts:

 

(a)the Offtake Agreement;

 

(b)the Transitional Services Agreement;

 

(c)the Sale and Purchase Agreement;

 

(d)the Shiploader Agreement;

 

(e)the Haulage Agreement;

 

(f)the Cobar Terminal Services Agreement;

 

(g)the Cooling Plant Agreement;

 

(h)the Ventilation Construction Agreement;

 

(i)each Consent Deed; and

 

(j)any consent letter or side agreement made or to be made between an Obligor, the Agent and a counterparty to a Material Contract in relation to that Material Contract in accordance with clause 26.8 (New Tripartite Deed).

 

"Unpaid Sum" means any sum due and payable but unpaid by an Obligor under the Finance Documents.

 

"US" means the United States of America.

 

"Utilisation" means a utilisation of a Facility.

 

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"Utilisation Date" means the date of a Utilisation, being the date on which the relevant Loan is to be made or the relevant Letter of Credit is to be issued.

 

"Utilisation Request" means a notice substantially in the form set out in Part I or Part II (as applicable) of Schedule 3 (Requests).

 

"Ventilation Construction Agreement" means the document titled "Construction Agreement (Cooling Turnkey Solution)" dated 1 September 2021 between the Target and Gordon Brothers Industries (Pty) Ltd ACN 160 126 456.

 

"Water Licence Mortgages" means each mortgage granted or to be granted by the Target or another Obligor in favour of the Security Trustee in respect of the Target's interest in the Water Licences.

 

"Water Licences" means each water access licence listed in Part III of Schedule 17 (Real Property) and any additional or replacement licence, permit or authorisation in respect of water used or to be used in connection with the Project.

 

1.2Construction

 

(a)Unless a contrary indication appears, any reference in this Agreement to:

 

(i)the "Agent", the "Arranger", any "Finance Party", any "Hedge Counterparty", any "Lender", any "Issuing Person", any "Obligor", any "Party" or the "Security Trustee" shall be construed so as to include its executors, administrators, successors, substitutes (including by novation) and assigns to, or of, its rights and/or obligations under the Finance Documents or Transaction Documents;

 

(ii)an agreement, document or instrument being in "Agreed Form" is a reference to that agreement, document or instrument in the form as at Financial Close or as amended in accordance with this Agreement and the Intercreditor Deed;

 

(iii)"assets" includes present and future properties, revenues and rights of every description;

 

(iv)a "Finance Document" or "Transaction Document" or any other agreement or instrument is a reference to that Finance Document or Transaction Document or other agreement or instrument as amended, novated, supplemented, extended or restated;

 

(v)a "group of Lenders" includes all the Lenders;

 

(vi)"guarantee" means (other than in Clause 20 (Guarantee)) (A) any guarantee, letter of credit, bond, indemnity or similar assurance against loss, or (B) any obligation, direct or indirect, actual or contingent, to purchase or assume any indebtedness of any person or to make an investment in or loan to any person or to purchase assets of any person where, in each case, such obligation is assumed in order to maintain or assist the ability of such person to meet its indebtedness;

 

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(vii)"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;

 

(viii)the "Interest Period" of a Letter of Credit shall be construed as a reference to the Term of that Letter of Credit;

 

(ix)a "person" or "entity" includes any individual, firm, company, corporation, government, state or agency of a state or any association, trust, joint venture, consortium or partnership or other entity (whether or not having separate legal personality) or two or more of them and any reference to a particular person or entity (as so defined) includes a reference to that person's or entity's executors, administrators, successors, substitutes (including by novation) and assigns;

 

(x)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 of any regulatory, self-regulatory or other authority or organisation and if not having the force of law, with which responsible entities in the position of the relevant Party would normally comply;

 

(xi)a Utilisation made or to be made to the Borrower includes a Letter of Credit issued on its behalf;

 

(xii)a provision of law or a regulation is a reference to that provision as amended or re-enacted from time to time;

 

(xiii)a time of day is a reference to Sydney time; and

 

(xiv)the words "including", "for example" or "such as" when introducing an example do not limit the meaning of the words to which the example relates to that example or examples of a similar kind.

 

(b)The determination of the extent to which a rate is "for a period equal in length" to an Interest Period shall disregard any inconsistency arising from the last day of that Interest Period being determined under this Agreement.

 

(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)An Obligor providing "cash cover" for a Letter of Credit means that Obligor paying an amount in the currency of the Letter of Credit to the Issuing Person of the Letter of Credit who must apply the amount in accordance with Clause 28.27 (Cash cover).

 

(f)A Default (other than an Event of Default) or Review Event is "continuing" if it has not been remedied to the satisfaction of the Majority Lenders or waived and an Event of Default is "continuing" if it has not been remedied to the satisfaction of the Majority Lenders or waived.

 

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(g)The Borrower "repaying" or "prepaying" a Letter of Credit means:

 

(i)the Borrower providing cash cover for that Letter of Credit;

 

(ii)the Borrower making a payment under Clause 7.1 (Claims under a Letter of Credit) in respect of the Letter of Credit or the Borrower reimbursing an amount paid by the Issuing Person under the Letter of Credit under Clause 7.2 (Indemnities);

 

(iii)the maximum amount payable under the Letter of Credit being reduced or cancelled in accordance with its terms;

 

(iv)the Letter of Credit being returned to the Issuing Person;

 

(v)the Issuing Person being satisfied that it has no further liability under that Letter of Credit; or

 

(vi)if the Issuing Person has given its prior consent, providing a back-to-back letter of credit, bank guarantee or similar from a bank which, along with the terms (including fees and identity of the issuer) of such letter of credit, bank guarantee or similar instrument, must be acceptable to the Issuing Person in its absolute discretion,

 

and the amount by which a Letter of Credit is repaid or prepaid under paragraphs (i), (ii), (iii) and (vi) above is the amount of the relevant cash cover, payment, reimbursement, reduction or cancellation. When the Borrower is obliged to repay or prepay a Letter of Credit under this Agreement, it must:

 

(A)provide cash cover for the outstanding amount of the Letter of Credit (less the total amount paid by the Issuing Person under the Letter of Credit); and

 

(B)pay under Clause 7.1 (Claims under a Letter of Credit) or Clause 7.2 (Indemnities) an amount equal to the total amount paid by the Issuing Person under the Letter of Credit,

 

except to the extent that the amount of the Letter of Credit has been repaid or prepaid by another means.

 

(h)An amount borrowed includes any amount utilised by way of Letter of Credit.

 

(i)A Lender funding its participation in a Utilisation includes a Lender participating in a Letter of Credit.

 

(j)Amounts outstanding under this Agreement include amounts actually or contingently outstanding under or in respect of any Letter of Credit.

 

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(k)An outstanding amount of a Letter of Credit at any time is the maximum amount that is or may be payable by the Borrower in respect of that Letter of Credit at that time.

 

(l)The Borrower's obligation on Utilisations becoming "due and payable" includes the Borrower repaying any Letter of Credit in accordance with paragraph (g) above.

 

(m)Where this Agreement specifies an amount in a given currency (the "specified currency") "or its equivalent", the "equivalent" is a reference to the amount of any other currency which, when converted into the specified currency utilising the Agent's spot rate of exchange (or, if the Agent does not have an available spot rate of exchange, any publicly available spot rate of exchange selected by the Agent (acting reasonably)) for the purchase of the specified currency with that other currency at or about 11 a.m. on the relevant date, is equal to the relevant amount in the specified currency.

 

(n)A reference in this Agreement to a page or screen of an information service displaying a rate shall include:

 

(i)any replacement page of that information service which displays that rate; and

 

(ii)the appropriate page of such other information service which displays that rate from time to time in place of that information service, and, if such page or service ceases to be available, shall include any other page or service displaying that rate specified by the Agent after consultation with the Borrower.

 

(o)A reference in this Agreement to a Central Bank Rate shall include any successor rate to, or replacement rate for, that rate.

 

(p)Any Compounded Rate Supplement overrides anything in:

 

(i)Schedule 13 (Compounded Rate Terms); or

 

(ii)any earlier Compounded Rate Supplement.

 

(q)A Compounding Methodology Supplement relating to the Daily Non-Cumulative Compounded RFR Rate or the Cumulative Compounded RFR Rate overrides anything relating to that rate in:

 

(i)Schedule 14 (Daily Non-Cumulative Compounded RFR Rate) or Schedule 15 (Cumulative Compounded RFR Rate), as the case may be; or

 

(ii)any earlier Compounding Methodology Supplement.

 

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(r)In each Finance Document, where it relates to a person (i) incorporated, (ii) established, (iii) constituted, (iv) formed, (v) which carries on, or has carried on, business, or (vi) that owns immovable property, in each case, in Jersey, a reference to:

 

(i)a "composition, compromise, assignment or arrangement with any creditor", "winding-up", "administration", "insolvency", "insolvent", "bankruptcy "liquidation" or "dissolution" includes, without limitation, "bankruptcy" (as that term is interpreted pursuant to Article 8 of the Interpretation (Jersey) Law 1954), a compromise or arrangement of the type referred to in Article 125 of the Companies (Jersey) Law 1991, any procedure or process referred to in Part 21 of the Companies (Jersey) Law 1991, and any other similar proceedings affecting the rights of creditors generally under Jersey law, and shall be construed so as to include any equivalent or analogous proceedings;

 

(ii)a "liquidator", "receiver", "administrative receiver", "administrator" or the like includes, without limitation, the Viscount of the Royal Court of Jersey, Autorisés, any provisional liquidator or liquidator appointed pursuant to Part 21 of the Companies (Jersey) Law 1991, or any other person performing the same function of each of the foregoing;

 

(iii)a "Transaction Security Interest", "security interest", "security", "encumbrance" or the like includes, without limitation, any hypothèque, whether conventional, judicial or arising by operation of law and any security interest created pursuant to the Security Interests (Jersey) Law 1983 or Security Interests (Jersey) Law 2012 and any related legislation; and

 

(iv)any equivalent or analogous procedure or step being taken in connection with insolvency includes any corporate action, legal proceedings or other formal procedure or step being taken in connection with an application for a declaration of en désastre being made in respect of any such entity or any of its assets (or the making of such declaration) or the service of a statutory demand pursuant to Part 21 of the Companies (Jersey) Law 1991 in respect of such entity.

 

1.3Currency symbols and definitions

 

"US$", "USD" and "US dollars" denote the lawful currency of the United States of America, "A$", "AUD" and "Australian dollars" denote the lawful currency of Australia.

 

1.4Limitation on liability of trustee Lenders

 

Any limitation of liability conforming to the requirements of Schedule 4 (Form of Transfer Certificate) contained in a Transfer Certificate or in an Assignment Agreement signed by a Lender which is a trustee of a fund will apply in respect of that Lender as if incorporated in this Agreement.

 

1.5Obligors' agent

 

(a)All communications and notices under the Finance Documents to and from the Obligors may be given to or by the Borrower and each Obligor irrevocably authorises each Finance Party to give those communications to the Borrower.

 

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(b)Each Obligor (other than the Borrower) irrevocably appoints the Borrower to act on its behalf as its agent in connection with the Finance Documents and irrevocably authorises the Borrower on its behalf to:

 

(i)supply all information relating to itself as contemplated by any Finance Document to any Finance Party;

 

(ii)give and receive all communications and notices (including any Utilisation Request or Selection Notice) and instructions under the Finance Documents; and

 

(iii)agree and sign all documents under or in connection with the Finance Documents (including any amendment, novation, supplement, extension or restatement of or to any Finance Document) without further reference to, or the consent of, that Obligor.

 

(c)An Obligor shall be bound by any act of the Borrower under this Clause 1.5 irrespective of whether the Obligor knew about it or whether it occurred before the Obligor became an Obligor under any Finance Document.

 

(d)To the extent that there is any conflict between any communication or notice by the Borrower on behalf of an Obligor and any other Obligor, those of the Borrower shall prevail.

 

(e)An Obligor which is a shareholder of another Obligor consents to the Obligor of which it is a shareholder entering into and performing its obligations under each Transaction Document.

 

1.6Target pre-accession

 

Where a provision of a Finance Document imposes, or purports to impose, an obligation on, or otherwise relates to, the Target before it becomes a party to the Finance Document, the provision will be read as imposing an obligation on the Borrower to procure that the Target complies with that obligation, or (to the extent possible) as relating to the Target as if it were a party to the Finance Document as an Obligor.

 

1.7Joint Activities

 

The Lenders carry on jointly the activity of supplying services to the Borrower. Those services consist of making available the Facilities in accordance with the terms of the Finance Documents (the "Services"). The Borrower acknowledges that:

 

(a)it has, in its sole discretion, requested that the Lenders supply the Services on a joint basis; and

 

(b)the Lenders are not in competition for the provision of those Services to the Borrower.

 

SECTION 2
THE FACILITIES

 

2.THE FACILITIES

 

2.1The Facilities

 

Subject to this Agreement, the Lenders make available to the Borrower:

 

(a)a US dollar term loan facility in an aggregate amount equal to the Total Facility A Commitments;

 

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(b)a US dollar revolving credit facility in an aggregate amount equal to the Total Facility B Commitments; and

 

(c)an Australian dollar Letter of Credit facility in an aggregate amount equal to the Total Facility C Commitments.

 

2.2Finance 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 is a separate and independent debt in respect of which a Finance Party shall be entitled to enforce its rights in accordance with paragraph (c) below. The rights of each Finance Party include any debt owing to that Finance Party under the Finance Documents and any part of a Utilisation or any other amount owed by an Obligor which relates to a Finance Party's participation in a Facility or its role under a Finance Document (including any such amount payable to the Agent on its behalf) is a debt owing to that Finance Party by that Obligor.

 

(c)A Finance Party may, except as specifically provided in the Finance Documents, separately enforce its rights under or in connection with the Finance Documents.

 

3.PURPOSE

 

3.1Purpose

 

(a)The Borrower shall apply all amounts borrowed by it under Facility A towards:

 

(i)part of the purchase consideration for the Acquisition under the Sale and Purchase Agreement in accordance with the Funds Flow Statement; and

 

(ii)transaction costs associated with the Acquisition and any fees, costs and expenses in connection with the Facilities.

 

(b)The Borrower shall apply all amounts borrowed by it under Facility B towards the general corporate purposes, including the working capital needs, of the Project. The Proceeds of Facility B may not be applied towards:

 

(i)the purchase consideration or fees relating to the Acquisition; or

 

(ii)making payments or distributions in respect of the Junior Debt or to Sponsor Affiliates.

 

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(c)The Borrower shall utilise Facility C for the issuance of Letters of Credit as necessary including the provision of:

 

(i)the following performance guarantees in favour of the government of New South Wales in relation to the environmental rehabilitation obligations in relation to the Project:

 

Purpose  Amount 
EL5693  A$37,500 
EL5983  A$10,000 
EL6223  A$10,000 
EL6907  A$10,000 
CML5, MPL1093, MPL1094  A$24,553,000 
CML5, MPL1093, MPL1094  A$12,250,000 

 

(ii)financial guarantees as required up to the balance of Facility C not required for performance guarantees.

 

3.2Monitoring

 

No Finance Party is bound to monitor or verify the application of any amount borrowed under this Agreement.

 

4.CONDITIONS OF UTILISATION

 

4.1Initial conditions precedent

 

(a)The Borrower may not deliver a Utilisation Request unless the Agent has received all of the documents and other evidence listed in Part I of Schedule 2 (Conditions Precedent) in form and substance satisfactory to the Agent acting on the instructions of all Lenders. The Agent shall notify the Borrower and the Lenders promptly upon being so satisfied.

 

(b)The Obligors agree that, as part of the Agent and the Lenders reviewing the matters referred to in Clause 4.1(a), they may identify matters that in their opinion require amendments to a Finance Document which must be entered into before the Borrower may deliver a Utilisation Request. If they do, then the Agent will notify the Borrower of the amendments and propose a draft amending agreement (acting on the instructions of all Lenders). The Obligors must then promptly enter into the amendment agreement and provide all other documents and evidence in connection with the entry into of it reasonably requested by the Agent acting on the instructions of all Lenders. The Obligors agree that the Borrower may not deliver a Utilisation Request until the Agent notifies the Borrower that the amendment agreement has been entered into and all other documents and evidence in connection with the entry into of it reasonably requested by the Agent acting on the instructions of all Lenders have been provided to the satisfaction of the Agent acting on the instructions of all Lenders. The Agent agrees to notify the Borrower and the Lenders promptly upon being so satisfied.

 

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4.2Further 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:

 

(a)in the case of a Rollover Loan:

 

(i)subject to clause 4.5 (Certain Funds), no Event of Default is continuing or would result from the proposed Loan;

 

(ii)the Borrower is in compliance with the Financial Covenants (disregarding clause 24.3 (Financial covenant cure)); and

 

(iii)Facility B has been fully repaid for a period of at least 3 Business Days in each preceding 6 month period;

 

(b)in the case of any Utilisation other than in respect of a Rollover Loan, subject to clause 4.5 (Certain Funds), no Default is continuing or would result from the proposed Utilisation; and

 

(c)subject to clause 4.5 (Certain Funds), the Repeating Representations to be made by each Obligor are true in all material respects and not misleading.

 

4.3Maximum number of Utilisations

 

(a)The Borrower may not deliver a Utilisation Request if as a result of the proposed Utilisation:

 

(i)6 or more Facility A Loans would be outstanding; or

 

(ii)6 or more Facility B Loans would be outstanding.

 

(b)The Borrower may not request that a Facility A Loan be divided if, as a result of the proposed division, 6 or more Facility A Loans would be outstanding.

 

(c)The Borrower may not request that a Letter of Credit be issued under Facility C if, as a result of the proposed Utilisation, 6 or more Letters of Credit from any Issuing Person would be outstanding.

 

4.4Conditions Subsequent

 

The continuing obligation of the Lenders to make available or maintain any accommodation under the Facilities is subject to the following:

 

(a)within 30 days of Financial Close (and as soon as reasonably practicable following completion of a section 260B whitewash procedure), the accession of Target as an Additional Guarantor to the Finance Documents as required to satisfy clause 25.5 (Guarantor coverage);

 

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(b)within 30 Business Days of Financial Close, provision to the Agent of a copy of each certificate of currency in respect of the material insurances of Target noting the interests of the Security Trustee where it is customary and practicable to do so;

 

(c)within 10 Business Days of Financial Close (or such longer period as the Agent may agree in its reasonable discretion), the Borrower shall procure that the following is delivered to the Security Trustee:

 

(i)a certified copy of the register of members of the Target;

 

(ii)signed but undated blank transfer forms in relation to all issued shares in the Target; and

 

(iii)the original share certificate(s) for all issued shares in the Target;

 

(iv)evidence satisfactory to the Security Trustee that the constitution of the Target has been amended to remove any directors’ or other officers’ discretion to refuse transfers of shares in the Target and do not otherwise restrict or inhibit any transfer or creation or enforcement of the Transaction Security;

 

(d)within 30 Business Days of Financial Close, provision to the Agent of a copy of each contract to which the Target is a party with a total cost of at least $10 million over the life of the contract or which is otherwise material to the operations of the Target and which was not disclosed to the Target before Financial Close;

 

(e)within 30 days of Financial Close, evidence that the Target has withdrawn from the deed of cross guarantee dated 4 December 2018 and is released with effect on and from the date of Completion from any obligations that have previously arisen and may be due under that deed; and

 

(f)within 5 Business Days of Financial Close, in respect of any Transaction Security Document to be entered by the Company (which is incorporated under the laws of the Cayman Islands), evidence of the completion of each registration to be made under Cayman Islands law pursuant to each such Transaction Security Document.

 

4.5Certain Funds

 

During the Certain Funds Period each Lender agrees that it will:

 

(a)comply with any duly completed Utilisation Request for a Utilisation under the Facilities for the purposes of financing the Acquisition or making other payments in respect of the Acquisition in an amount up to the Commitment for the Facilities available for the Acquisition (a "Certain Funds Utilisation"); and

 

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(b)not exercise any rights which exist in favour of the Lenders to:

 

(i)cancel its Commitment to the extent to do so would prevent or limit the making of a Certain Funds Utilisation;

 

(ii)rescind, terminate or cancel the Facilities or exercise any similar right or remedy or make or enforce any claim it may have to the extent to do so would prevent or limit the making of a Certain Funds Utilisation;

 

(iii)refuse to make available or participate in a Utilisation under the Facilities in relation to a Certain Funds Utilisation;

 

(iv)exercise any right of set-off or counterclaim in respect of any Utilisation to the extent to do so would prevent or limit the making of a Certain Funds Utilisation; or

 

(v)cancel, accelerate or cause repayment or prepayment of any amounts owing under the Facilities to the extent to do so would prevent or limit the making of a Certain Funds Utilisation,

 

unless at the time of the Utilisation Request or on the proposed Utilisation Date for the utilisation:

 

(A)clause 4.1 (Initial Conditions Precedent) has not been satisfied;

 

(B)a Major Representation in respect of an Obligor or the Target is untrue or misleading in any material respect (whether by omission or otherwise) or unable to be made for any reason;

 

(C)a Major Default in respect of an Obligor or the Target is subsisting or would result from the Utilisation being made;

 

(D)an event has occurred under the Sale and Purchase Agreement which permits the Company or the Borrower to issue a notice of termination in respect of the Sale and Purchase Agreement or terminate the Sale and Purchase Agreement;

 

(E)a mandatory prepayment event has occurred under clause 9.4 (Other mandatory prepayment events) of this Agreement;

 

(F)the Borrower has not provided evidence to the Agent that it holds (or will hold, immediately before completion) sufficient cleared funds in the Borrower's bank accounts (together with cleared funds in the Company bank accounts available for such purpose or a Glencore Operations Australia Pty Limited account nominated by the Borrower) to pay in full the purchase price under the Sale and Purchase Agreement in order to complete the Acquisition; or

 

(G)it is unlawful for any of the Lenders to perform any of its obligations under the Finance Documents for any reason.

 

(c)In this paragraph 4.5 (Certain Funds):

 

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(i)"Major Representations" means a representation (a) in respect of each Obligor, under clauses 21.1 (Status), 21.2 (Binding obligations), 21.3 (Non- conflict with other obligations), 21.4 (Power and authority), 21.5 (Validity and admissibility in evidence), 21.7 (Insolvency), 21.16 (Borrower as SPV), 21.21 (Good title to assets) and 21.26 (Sanctions) and (b) in respect of Target, under clauses 21.1 (Status), 21.2 (Binding obligations), 21.3 (Non-conflict with other obligations), 21.4 (Power and authority), 21.5 (Validity and admissibility in evidence), 21.13 (Ranking), 21.7 (Insolvency) and 21.26 (Sanctions).

 

(ii)"Major Undertaking" means an undertaking under clause 26.5 (Special Purpose Vehicle), and a negative undertaking under clauses 25.9 (Negative pledge), 25.12 (Disposal), 25.13 (Mergers/Acquisitions), 25.14 (Change of business), 25.10 (Loans or credit), 25.9 (Financial Indebtedness), 26.7 (Offtake Agreements) or 21.26 (Sanctions).

 

(iii)"Major Default" means with respect to the Obligors, an Event of Default under clauses 28.1 (Non-payment), 28.3 (Other obligations) (insofar as it relates to a breach of any Major Undertaking), 28.4 (Misrepresentation) (insofar as it relates to a breach of any Major Representation), 28.5 (Cross default), 28.6 (Insolvency), 28.7 (Insolvency proceedings), 28.8 (Creditors' process), 28.10 (Unlawfulness), 28.11 (Repudiation); 28.13 (Vitiation of Finance Documents) or 28.14 (Cessation of business).

 

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SECTION 3
UTILISATION

 

5.UTILISATION – LOANS

 

5.1Delivery of a Utilisation Request for a Loan

 

The Borrower may utilise Facility A or B by delivery to the Agent of a duly completed Utilisation Request not later than the Specified Time.

 

5.2Completion of a Utilisation Request for Loans

 

(a)Each Utilisation Request for a Loan under Facility A or B is irrevocable and will not be regarded as having been duly completed unless:

 

(i)it identifies the Facility to be utilised;

 

(ii)the proposed Utilisation Date is a Business Day within the Availability Period applicable to that Facility;

 

(iii)the currency and amount of the Utilisation comply with Clause 5.3 (Currency and amount); and

 

(iv)the proposed Interest Period complies with Clause 12 (Interest Periods).

 

(b)Only one Loan may be requested in each Utilisation Request.

 

5.3Currency and amount

 

(a)The currency specified in a Utilisation Request must be US dollars.

 

(b)The amount of the proposed Loan for a Loan under Facility A or B must be an amount not more than the Available Facility and must be a minimum of:

 

(i)US$1,000,000 for Facility A; or

 

(ii)           US$1,000,000 for Facility B or, if less, the Available Facility.

 

5.4Lenders' participation

 

(a)If the conditions set out in this Agreement have been met, and subject to Clause 8.3 (Repayment of Facility B Loans), each Lender 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 before making the Loan.

 

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5.5Cancellation of Commitment: Sunset

 

(a)If Financial Close and the first utilisations of each Facility have not occurred before 1 June 2023, then all Commitments are immediately cancelled on that date.

 

(b)The Facility A Commitments which, at that time, are unutilised shall be immediately cancelled at the end of the Availability Period for Facility A.

 

(c)The Facility B Commitments which, at that time, are unutilised shall be immediately cancelled at the end of the Availability Period for Facility B.

 

6.UTILISATION – LETTERS OF CREDIT

 

6.1Facility C

 

(a)Facility C may only be utilised by way of Letters of Credit.

 

(b)Clause 5 (Utilisation – Loans) does not apply to Utilisations by way of Letters of Credit.

 

(c)In determining the amount of the Available Facility for the purposes of this Agreement, the Available Commitment of a Lender will be calculated ignoring any cash cover or any back-to-back letter of credit provided for outstanding Letters of Credit.

 

(d)The Borrower must use its best endeavours to manage its utilisation of Facility C such that:

 

(i)to the maximum extent practicable, Letters of Credit in respect of any relevant underlying obligation are issued by all Issuing Persons pro rata according to their Commitment under Facility C; and

 

(ii)if it is not possible to comply with paragraph (i), then so that the overall participations in Utilisations under Facility C are distributed among the Lenders according to their Commitment under Facility C.

 

6.2Delivery of a Utilisation Request for Letters of Credit

 

The Borrower may request a Letter of Credit to be issued by delivery to the Issuing Person of a duly completed Utilisation Request not later than the Specified Time.

 

6.3Completion of a Utilisation Request for Letters of Credit

 

Each Utilisation Request for a Letter of Credit is irrevocable and will not be regarded as having been duly completed unless:

 

(a)it specifies that it is for a Letter of Credit;

 

(b)it identifies the Issuing Person which is to issue the Letter of Credit;

 

(c)the proposed Utilisation Date is a Business Day within the Availability Period applicable to Facility C;

 

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(d)the currency and amount of the Letter of Credit comply with Clause 6.4 (Currency and amount);

 

(e)the form of Letter of Credit is attached and is substantially in the form set out in Schedule 11 (Form of Letter of Credit) or another form that has been agreed in writing by the Issuing Person;

 

(f)the delivery instructions for the Letter of Credit are specified;

 

(g)the identity of the beneficiary of the Letter of Credit is the government of New South Wales or any other beneficiary approved by the Issuing Person and the Majority Lenders; and

 

(h)in the case of bank guarantees, the underlying contract or agreement in respect of which the Letter of Credit is issued is specified.

 

6.4Currency and amount

 

(a)The currency specified in a Utilisation Request must be Australian dollars.

 

(b)The amount of the proposed Letter of Credit must be an amount which is not more than the Available Commitment.

 

6.5Issue of Letters of Credit

 

(a)If the conditions set out in this Agreement have been met, the Issuing Person shall issue the Letter of Credit on the Utilisation Date.

 

(b)The Issuing Person will only be obliged to comply with paragraph (a) if on the date of the Utilisation Request or Renewal Request and on the proposed Utilisation Date:

 

(i)in the case of a Letter of Credit to be renewed in accordance with Clause 6.6 (Renewal of a Letter of Credit), no Event of Default is continuing or would result from the proposed Utilisation and, in the case of any other Utilisation, no Default is continuing or would result from the proposed Utilisation; and

 

(ii)the Repeating Representations to be made by each Obligor are true in all material respects.

 

(c)The Issuing Person has no duty to enquire of any person whether or not any of the conditions set out in paragraph (b) above have been met. The Issuing Person may assume that those conditions have been met unless it is expressly notified to the contrary by the Agent. The Issuing Person will have no liability to any person for issuing a Letter of Credit based on such assumption.

 

(d)The Issuing Person is solely responsible for the form of the Letter of Credit that it issues. The Agent has no duty to monitor the form of that document.

 

(e)Subject to paragraph (j) of Clause 32.7 (Rights and discretions), each of the Issuing Person and the Agent shall provide the other with any information reasonably requested by the other that relates to a Letter of Credit and its issue.

 

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(f)The Issuing Person may issue a Letter of Credit in the form of a SWIFT message or other form of communication customary in the relevant market but has no obligation to issue that Letter of Credit in any particular form of communication.

 

6.6Renewal of a Letter of Credit

 

(a)The Borrower may request that any Letter of Credit issued on behalf of the Borrower be renewed by delivery to the Issuing Person of a Renewal Request in substantially similar form to a Utilisation Request for a Letter of Credit by the Specified Time.

 

(b)The Issuing Person shall treat any Renewal Request in the same way as a Utilisation Request for a Letter of Credit except that the condition set out in paragraph (e) of Clause 6.3 (Completion of a Utilisation Request for Letters of Credit) shall not apply.

 

(c)The terms of each renewed Letter of Credit shall be the same as those of the relevant Letter of Credit immediately before its renewal, except that:

 

(i)its amount may be less than the amount of the Letter of Credit immediately before its renewal; and

 

(ii)its Term shall start on the date which was the Expiry Date of the Letter of Credit immediately before its renewal, and shall end on the proposed Expiry Date specified in the Renewal Request.

 

(d)Subject to paragraph (c) above and paragraph (e) below, if the conditions set out in this Agreement have been met, the Issuing Person shall amend or re-issue any Letter of Credit under a Renewal Request.

 

(e)Where a new Letter of Credit is to be issued to replace by way of renewal an existing Letter of Credit, the Issuing Person is not required to issue that new Letter of Credit until the Letter of Credit being replaced has been returned to the Issuing Person or the Issuing Person is satisfied either that it will be returned to it or otherwise that no liability can arise under it.

 

6.7Notification of the Agent

 

The Issuing Person shall, upon request, provide to the Agent details of all Letters of Credit issued under this Agreement including details of the initial face value of each Letter of Credit, the Term, the Expiry Date and the beneficiary under that Letter of Credit.

 

6.8Reduction or expiry of Letter of Credit

 

If the amount of any Letter of Credit is wholly or partially reduced or it is repaid or prepaid or it expires before its Expiry Date, the Issuing Person and the Borrower shall promptly notify the Agent of the details upon becoming aware of them.

 

6.9Letter of Credit which does not expire before Termination Date

 

A Letter of Credit may be issued with or without an Expiry Date. If a Letter of Credit does not have an Expiry Date, or the Expiry Date of the Letter of Credit is after the Termination Date applicable to Facility C, the Borrower shall repay or prepay the Letter of Credit on the Termination Date applicable to Facility C.

 

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6.10Administration for Letters of Credit

 

(a)Despite anything in this Agreement, any notices, requests, correspondence or payment of administration mechanics (including in relation to fees, principal and interest) in relation to Facility C (the "Administrative Duties"), must be given, made or operated (as applicable) directly between the Borrower and the Issuing Person under the applicable Letter of Credit without reference to the Agent, except that the Borrower must provide a copy of each Utilisation Request in respect of Facility C to the Agent.

 

(b)The Agent shall have no responsibility to any party to:

 

(i)perform any Administrative Duties in respect of Facility C;

 

(ii)monitor the utilisation of Facility C; or

 

(iii)ensure that Facility C is not utilised by the Borrower in a manner which exceeds the Lender's Facility C Commitment.

 

(c)Any reference in this Agreement to the Agent performing any Administrative Duty (otherwise than in this Clause 6.10) will be read as references to the Issuing Person performing that Administrative Duty.

 

7.LETTERS OF CREDIT

 

7.1Claims under a Letter of Credit

 

(a)The Borrower irrevocably and unconditionally authorises the Issuing Person to pay any claim made or purported to be made under a Letter of Credit requested by it and which appears on its face to be in order and to make any payment under Clause 7.4 (Voluntary pay-out) (in this Clause 7, each of a claim or payment under Clause 7.4 (Voluntary pay- out) is a "claim").

 

(b)The Borrower shall pay to the Issuing Person an amount equal to the amount of any claim on the day on which the Issuing Person pays that claim. If the Borrower does not pay this amount to the Issuing Person on the date on which the Issuing Person pays the claim, interest shall accrue on the amount from that date up to the actual date of payment in accordance with Clause 11.3 (Default interest).

 

(c)The Borrower acknowledges that the Issuing Person:

 

(i)may make payments under a Letter of Credit by any means that it determines;

 

(ii)may make any payments under a Letter of Credit despite any direction by the Borrower to the Issuing Person not to pay, any dispute between the Borrower and the Issuing Person as to the Issuing Person's obligation to pay, any dispute between the Borrower and the beneficiary of the Letter of Credit or any claim by the Borrower that a claim under the Letter of Credit is not valid;

 

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(iii)is not obliged to carry out any investigation or seek any confirmation from any other person before paying a claim;

 

(iv)may refuse to make a payment under a Letter of Credit (in its absolute discretion) where it considers that a claim under, or any other document presented under the Letter of Credit, does not comply with the terms of the Letter of Credit; and

 

(v)deals in documents only and will not be concerned with the legality of a claim or any underlying transaction or any available set-off, counterclaim or other defence of any person.

 

(d)The obligations of the Borrower under this Clause 7 will not be affected by:

 

(i)the sufficiency, accuracy or genuineness of any claim or any other document;

 

(ii)any incapacity of, or limitation on the powers of, any person signing a claim or other document;

 

(iii)any act of any Governmental Agency, court, arbitral body, agency or authority or the application of any law or regulation affecting any Letter of Credit; or

 

(iv)any failure by any person to obtain any Authorisation required or desirable in connection with any Letter of Credit.

 

7.2Indemnities

 

(a)Without prejudice to the Borrower's obligation under Clause 7.1 (Claims under a Letter of Credit), the Borrower shall immediately on demand indemnify the Issuing Person against any cost, loss or liability incurred by the Issuing Person (otherwise than by reason of the Issuing Person's gross negligence or wilful misconduct) in acting as the Issuing Person under any Letter of Credit requested by the Borrower (including as a result of the Issuing Person making a payment under Clause 7.4 (Voluntary pay-out)).

 

(b)The obligations of the Borrower under this Clause 7.2 are continuing obligations and will extend to the ultimate balance of sums payable by the Borrower in respect of any Letter of Credit, regardless of any intermediate payment or discharge in whole or in part.

 

(c)The obligations of any the Borrower under this Clause 7.2 will not be affected by any act, omission, matter or thing which, but for this Clause 7.2, would reduce, release or prejudice any of its obligations under this Clause 7.2 (without limitation and whether or not known to it or any other person) including:

 

(i)any time, waiver or consent granted to, or composition with, any Obligor, any beneficiary under a Letter of Credit or any other person;

 

(ii)the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor or any member of the Group;

 

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(iii)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, any beneficiary under a Letter of Credit 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;

 

(iv)any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor, any beneficiary under a Letter of Credit or any other person;

 

(v)any amendment (however fundamental) or replacement of a Finance Document, any Letter of Credit or any other document or security;

 

(vi)any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any Letter of Credit or any other document or security; or

 

(vii)any insolvency or similar proceedings.

 

7.3Rights of contribution

 

No Obligor will be entitled to any right of contribution or indemnity from any Finance Party in respect of any payment it may make under this Clause 7.

 

7.4Voluntary pay-out

 

The Issuing Person may cancel a Letter of Credit at any time by paying to the beneficiary of the relevant Letter of Credit the outstanding amount of the Letter of Credit or any lesser amount specified by the beneficiary.

 

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SECTION 4

REPAYMENT, PREPAYMENT AND CANCELLATION

 

8.REPAYMENT

 

8.1Repayment of Facility A Loans

 

(a)If the Borrower has drawn a Facility A Loan, the Borrower shall repay the principal amount outstanding under Facility A:

 

(i)on each Facility A Repayment Date, in an amount equal to the Facility A Repayment Instalment for the corresponding Facility A Repayment Date; and

 

(ii)in full on the Termination Date.

 

(b)The Borrower may not reborrow any part of Facility A which is repaid.

 

8.2Cash Sweep

 

(a)Subject to clause 27.5, on each Facility A Repayment Date, the Borrower must:

 

(i)notify the Agent of the amount of Excess Cash no later than 5 Business Days before the Facility A Repayment Date; and

 

(ii)prepay the Facility A Loan in the amount of 30% of that Excess Cash on the Facility A Repayment Date.

 

(b)Any prepayment under this clause 8.2 shall be applied in prepayment of Facility A against the remaining Facility A Repayment Instalments in inverse chronological order.

 

8.3Repayment of Facility B Loans

 

(a)If the Borrower has drawn a Facility B Loan, the Borrower shall repay that Loan on the last day of its Interest Period. The Borrower shall repay the principal amount outstanding under Facility B in full on the Termination Date.

 

(b)Without prejudice to the Borrower's obligation under paragraph (a) above and so long as each condition precedent in clause 4.2(a) (Further conditions precedent) is satisfied or otherwise waived by the Agent, if:

 

(i)one or more Facility B Loans are to be made available to the Borrower:

 

(A)on the same day that a maturing Facility B Loan is due to be repaid by the Borrower; and

 

(B)in whole or in part for the purpose of refinancing the maturing Facility B Loan; and

 

(ii)the proportion borne by each Lender's participation in the maturing Facility B Loan to the amount of that maturing Facility B Loan is the same as the proportion borne by that Lender's participation in the new Facility B Loans to the aggregate amount of those new Facility B Loans,

 

the aggregate amount of the new Facility B Loans shall, unless the Borrower notifies the Agent to the contrary in the relevant Utilisation Request, be treated as if applied in or towards repayment of the maturing Facility B Loan so that:

 

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(A)if the amount of the maturing Facility B Loan exceeds the aggregate amount of the new Facility B Loans:

 

(1)the Borrower will only be required to make a payment under Clause 36.1 (Payments to the Agent) in an amount equal to that excess; and

 

(2)each Lender's participation in the new Facility B Loans shall be treated as having been made available and applied by the Borrower in or towards repayment of that Lender's participation in the maturing Facility B Loan and that Lender will not be required to make a payment under Clause 36.1 (Payments to the Agent) in respect of its participation in the new Facility B Loans; and

 

(B)if the amount of the maturing Facility B Loan is equal to or less than the aggregate amount of the new Facility B Loans:

 

(1)the Borrower will not be required to make a payment under Clause 36.1 (Payments to the Agent); and

 

(2)each Lender will be required to make a payment under Clause 36.1 (Payments to the Agent) in respect of its participation in the new Facility B Loans only to the extent that its participation in the new Facility B Loans exceeds that Lender's participation in the maturing Facility B Loan and the remainder of that Lender's participation in the new Facility B Loans shall be treated as having been made available and applied by the Borrower in or towards repayment of that Lender's participation in the maturing Facility B Loan.

 

8.4Repayment of Facility C

 

Without limitation to Clause 6.9, the Borrower must repay all Letters of Credit then outstanding on the Termination Date in accordance with clause 1.2(g).

 

9.PREPAYMENT AND CANCELLATION

 

9.1Illegality

 

If, in any applicable jurisdiction, it becomes unlawful (or impossible as a result of a change in law or regulation) for any Lender to perform any of its obligations as contemplated by this Agreement or to fund or maintain its participation in any Utilisation or it becomes unlawful or impossible as a result of a change in law or regulation for any Affiliate of a Lender to do so:

 

(a)that Lender shall promptly notify the Agent upon becoming aware of that event;

 

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(b)upon the Agent notifying the Borrower, each Available Commitment of that Lender will be immediately cancelled; and

 

(c)to the extent that the Lender's participation has not been transferred under paragraph (d) of Clause 9.8 (Right of replacement or repayment and cancellation in relation to a single Lender), the Borrower shall repay that Lender's participation in the Utilisations made to the Borrower on the last day of the Interest Period for each Utilisation occurring after the Agent has notified the Borrower or, if earlier, the date specified by the Lender in the notice delivered to the Agent (being no earlier than the last day of any applicable grace period permitted by law) and that Lender's corresponding Commitment(s) shall be immediately cancelled in the amount of the participations repaid.

 

9.2Illegality in relation to Letter of Credit

 

If, in any applicable jurisdiction, it becomes unlawful (or impossible as a result of a change in law or regulation) for the Issuing Person to issue or leave outstanding any Letter of Credit or it becomes unlawful or impossible as a result of a change in law or regulation for any Affiliate of the Issuing Person to do so, then:

 

(a)the Issuing Person shall promptly notify the Agent upon becoming aware of that event;

 

(b)upon the Agent notifying the Borrower, the Issuing Person shall not be obliged to issue any Letter of Credit;

 

(c)the Borrower shall procure that each Obligor shall procure the release and return of each Letter of Credit issued by the Issuing Person and outstanding at such time on or before the date specified by the Issuing Person in the notice delivered to the Agent (being no earlier than the last day of any applicable grace period permitted by law); and

 

(d)unless any other Lender is or has become an Issuing Person under this Agreement, Facility C shall cease to be available for the issue of Letters of Credit.

 

9.3Review Event

 

If a Review Event occurs:

 

(a)the Borrower shall promptly notify the Agent upon becoming aware of that event;

 

(b)a Lender shall not be obliged to fund a Utilisation (except for a Rollover Loan);

 

(c)during the 45 day period starting on the earlier of the date on which the Agent receives notice of the Review Event and the date on which the Agent becomes aware of the Review Event ("Negotiation Period") the Borrower and each other Obligor will seek to negotiate amendments to the Finance Documents to reflect the altered commercial parameters of the transaction as a consequence of the occurrence of the Review Event; and

 

(d)if the Obligors and the Lenders are unable to agree amendments to the Finance Documents by the end of the Negotiation Period, and despite anything else in any Finance Document at the conclusion of the Negotiation Period, the Agent, acting on the instructions of the Majority Lenders, may at any time within 20 days following the end of the Negotiation Period, by giving not less than 60 days' notice to the Borrower, cancel each Available Commitment of each Lender and declare all Utilisations, together with accrued interest, and all other amounts accrued or outstanding under the Finance Documents immediately due and payable, whereupon each such Available Commitment will be immediately cancelled, each Facility shall immediately cease to be available for further utilisation and all such Utilisations, accrued interest and other amounts shall become immediately due and payable.

 

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9.4Other mandatory prepayment events

 

(a)If:

 

(i)there is a breach of any of the representations in clause 21.26 (Sanctions) or undertakings in clause 26.25 (Sanctions);

 

(ii)           an Obligor sells, transfers, disposes all of substantially all of its assets,

 

then,

 

(iii)the Borrower shall promptly notify the Agent upon becoming aware of that event; and

 

(iv)the Agent, acting on the instructions of the Majority Lenders, shall cancel each Available Commitment of each Lender and declare all Utilisations, together with accrued interest, and all other amounts accrued or outstanding under the Finance Documents immediately due and payable, whereupon each such Available Commitment will be immediately cancelled, each Facility shall immediately cease to be available for further utilisation and all such Utilisations, accrued interest and other amounts shall become immediately due and payable.

 

(b)If an Obligor receives cash proceeds from Insurance claims exceeding US$5,000,000 in aggregate in any financial year, excluding:

 

(i)proceeds received in respect of third party liabilities, loss of revenue, public liability, personal injury or directors' and officers' liability; and

 

(ii)proceeds that are committed to be applied to reinstate or replace assets within 90 days following the relevant Obligor's receipt of such proceeds or to meet the liability in respect of which relevant claim was made,

 

then the Borrower must promptly after receipt, apply an amount equal to such cash proceeds in reduction of Facility A Loans, to be applied against the obligations under Clause 8.1 (Repayment of Facility A Loans) against the remaining Facility A Repayment Instalments in inverse chronological order.

 

(c)The Agent shall cancel the Available Commitment of each Lender in an aggregate amount equal to the amount prepaid under clause 9.4(b).

 

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9.5Voluntary cancellation

 

The Borrower may, if it gives the Agent not less than 5 RFR Banking Days' (or such shorter period as the Majority Lenders may agree) prior notice, cancel the whole or any part (being a minimum amount of US$500,000 (or its equivalent in A$) and integral multiples thereof or, if less, the balance of a Facility) of an Available Facility before the end of its Availability Period. Any cancellation under this Clause 9.5 shall reduce the Commitments of the Lenders rateably under that Facility.

 

9.6Voluntary prepayment of Facility A Loans

 

(a)The Borrower may, if it gives the Agent not less than 5 RFR Banking Days' (or such shorter period as the Majority Lenders and the Agent may agree) prior notice, prepay the whole or any part of any Facility A Loan (but, if in part, being an amount that reduces the amount of the Facility A Loan by a minimum amount of US$500,000 and integral multiples thereof).

 

(b)A Facility A Loan may only be prepaid after the last day of the Availability Period for Facility A (or, if earlier, the day on which the applicable Available Facility is zero).

 

(c)The Borrower may select (by notifying the Agent at the same time as its gives notice of prepayment under this Clause 9.6) to apply that prepayment either:

 

(i)to satisfy the obligations under Clause 8.1 (Repayment of Facility A Loans) against the remaining Facility A Repayment Instalments in inverse chronological order; or

 

(ii)to satisfy the obligations under Clause 8.1 (Repayment of Facility A Loans) against the remaining Facility A Repayment Instalments pro-rata by the amount of the Facility A Loan prepaid.

 

9.7Voluntary prepayment of Facility B Loan

 

The Borrower may, if it gives the Agent not less than 5 RFR Banking Days' (or such shorter period as the Majority Lenders and the Agent may agree) prior notice, prepay the whole or any part of a Facility B Loan (but if in part, being an amount that reduces the amount of the Facility B Loan by a minimum amount of US$2,000,000).

 

9.8Right of replacement or repayment and cancellation in relation to a single Lender

 

(a)If:

 

(i)any sum payable to any Lender by an Obligor is required to be increased under paragraph (c) of Clause 15.2 (Tax gross-up); or

 

(ii)any Lender claims any sum from the Borrower under Clause 15.3 (Tax indemnity) or Clause 16.1 (Increased Costs),

 

the Borrower may, whilst the circumstance giving rise to the requirement for that increase or claim continues, give the 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 or give the Agent notice of its intention to replace that Lender in accordance with paragraph (d) below.

 

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(b)On receipt of a notice of cancellation referred to in paragraph (a) above in relation to a Lender, the Available Commitment(s) of that Lender shall be immediately reduced to zero.

 

(c)On the last day of each Interest Period which ends after the Borrower has given notice of cancellation under paragraph (a) above (or, if earlier, the date specified by the Borrower in that notice), the Borrower shall repay that Lender's participation in that Utilisation and that Lender's corresponding Commitment(s) shall be immediately cancelled in the amount of the participations repaid.

 

(d)If:

 

(i)any of the circumstances set out in paragraph (a) above apply to a Lender; or

 

(ii)an Obligor becomes obliged to pay any amount in accordance with Clause 9.1 (Illegality) or 9.2 (Illegality in relation to Letter of Credit) to any Lender,

 

the Borrower may, on 21 Business Days' prior notice to the Agent and that Lender, replace that Lender by requiring that Lender to (and, to the extent permitted by law, that Lender shall) transfer under Clause 29 (Changes to the Lenders) all (and not part only) of its rights and obligations under this Agreement to a Lender or 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 (including credit derivatives) in any such case selected by the Borrower which confirms its willingness to assume and does assume all the obligations of the transferring Lender in accordance with Clause 29 (Changes to the Lenders) for a purchase price in cash payable at the time of the transfer in an amount equal to the outstanding principal amount of such Lender's participation in the outstanding Utilisations and all accrued interest and/or issuance fees (to the extent that the Agent has not given a notification under Clause 29.9 (Pro rata interest settlement)), Break Costs and other amounts payable in relation thereto under the Finance Documents.

 

(e)The replacement of a Lender under paragraph (d) above shall be subject to the following conditions:

 

(i)the Borrower shall have no right to replace the Agent or the Security Trustee;

 

(ii)neither the Agent nor any Lender shall have any obligation to find a replacement Lender;

 

(iii)in no event shall the Lender replaced under paragraph (d) above be required to pay or surrender any of the fees received by such Lender under the Finance Documents; and

 

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(iv)the Lender shall only be obliged to transfer its rights and obligations under paragraph (d) above once it is satisfied that it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to that transfer.

 

(f)A Lender shall perform the checks described in paragraph (e)(iv) above as soon as reasonably practicable following delivery of a notice referred to in paragraph (d) above and shall notify the Agent and the Borrower when it is satisfied that it has complied with those checks.

 

9.9Right of cancellation in relation to a Defaulting Finance Party

 

(a)The Borrower may give the Agent 5 RFR Banking Days' notice of cancellation of each Available Commitment of a Lender that is, and continues to be, a Defaulting Finance Party.

 

(b)On the notice becoming effective, each Available Commitment of the Defaulting Finance Party will reduce to zero.

 

(c)The Agent shall notify all the Lenders as soon as practicable after receiving the notice.

 

10.RESTRICTIONS

 

10.1Notices of Cancellation or Prepayment

 

Any notice of cancellation, prepayment, authorisation or other election given by any Party under Clause 8.4 (Prepayment and Cancellation) shall be irrevocable and, unless a contrary indication appears in this Agreement, shall specify the date or dates upon which the relevant cancellation or prepayment is to be made and the amount of that cancellation or prepayment.

 

10.2Interest and other amounts

 

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.

 

10.3No reborrowing of Facility A

 

The Borrower may not reborrow any part of Facility A which is prepaid.

 

10.4Reborrowing of Facility B or Facility C

 

Unless a contrary indication appears in this Agreement, any part of Facility B or Facility C which is prepaid or repaid may be reborrowed in accordance with this Agreement.

 

10.5Prepayments in accordance with Agreement

 

The Borrower 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.

 

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10.6No reinstatement of Commitments

 

No amount of the Total Commitments cancelled under this Agreement may be subsequently reinstated.

 

10.7Agent's receipt of Notices

 

If the Agent receives a notice under Clause 8.4 (Prepayment and Cancellation) it shall promptly forward a copy of that notice to either the Borrower or the affected Lender, as appropriate.

 

10.8Effect of repayment and prepayment on Commitments

 

If all or part of any Lender's participation in a Utilisation under a Facility is repaid or prepaid and is not available for redrawing (other than by operation of Clause 4.2 (Further conditions precedent)), an amount of the Lender's Commitment (equal to the amount of the participation which is repaid or prepaid) in respect of that Facility will be deemed to be cancelled on the date of repayment or prepayment.

 

10.9Application of prepayments

 

Any prepayment of a Utilisation under Clause 9.3 (Review Event), Clause 9.4 (Other mandatory prepayment events), Clause 9.6 (Voluntary prepayment of Facility A Loans), Clause 9.7 (Voluntary prepayment of Facility B Loans) or Clause 24.3 (Financial Covenant Cure) shall be applied pro rata to each Lender's participation in that Utilisation.

 

SECTION 5
COSTS OF UTILISATION

 

11.INTEREST

 

11.1Calculation of interest

 

(a)The rate of interest on each Loan for any day during an Interest Period is the percentage rate per annum which is the aggregate of the applicable:

 

(i)Margin; and

 

(ii)Compounded Reference Rate for that day, except that if that rate is less than zero, the Compounded Reference Rate shall be deemed to be zero.

 

(b)If any day during an Interest Period for a Loan is not an RFR Banking Day, the rate of interest on that Loan for that day will be the rate applicable to the immediately preceding RFR Banking Day.

 

11.2Payment of interest

 

The Borrower shall pay accrued interest on that Loan on the last day of each Interest Period (and, if the Interest Period is longer than three Months, on the dates falling at three-monthly intervals after the first day of the Interest Period).

 

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11.3Default interest

 

(a)If an Obligor fails to pay any amount payable by it under a Finance Document on its due date, interest shall accrue on the overdue amount from the due date up to the date of actual payment (both before and after judgment) at a rate which, subject to paragraph (b) and (c) below, is the sum of 2 per cent per annum 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 Agent (acting reasonably). Any interest accruing under this Clause 11.3 shall be immediately payable by the Obligor on demand by the 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 2 per cent per annum and the rate which would have applied if the overdue amount had not become due.

 

(c)If any overdue amount relates in any way to a Letter of Credit, 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, in respect of each Lender, is the sum of:

 

(i)the cost of funds of each Lender's participation if the overdue amount had, during the period of non-payment, constituted a loan denominated in the currency of the relevant Letter of Credit; plus

 

(ii)3 per cent per annum; plus

 

(iii)2 per cent per annum.

 

(d)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.

 

11.4Notification of rates of interest

 

(a)The Agent shall promptly upon an Interest Payment being determinable notify:

 

(i)the Borrower of the Interest Payment;

 

(ii)each relevant Lender of the proportion of that Interest Payment which relates to that Lender's participation in the relevant Loan; and

 

(iii)the relevant Lenders and the Borrower of:

 

(A)each applicable rate of interest relating to the determination of that Interest Payment; and

 

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(B)to the extent it is then determinable, the Market Disruption Rate (if any) relating to the relevant Loan.

 

This paragraph (a) shall not apply to any Interest Payment determined under Clause 13.3 (Cost of funds).

 

(b)The Agent shall promptly notify the Borrower of each Funding Rate relating to a Loan.

 

(c)The Agent shall promptly notify the relevant Lenders and the Borrower of the determination of a rate of interest under this Agreement relating to a Loan to which Clause 13.3 (Cost of funds) applies.

 

(d)This Clause 11.4 shall not require the Agent to make any notification to any Party on a day which is not a Business Day.

 

12.INTEREST PERIODS

 

12.1Selection of Interest Periods

 

(a)The 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 12, the Borrower may select an Interest Period of 3 Months or of any other shorter period agreed between the Borrower and the Agent (acting on the instructions of the Majority Lenders).

 

(c)Each Selection Notice for a Facility A Loan is irrevocable and must be delivered to the Agent by the Borrower not later than the Specified Time.

 

(d)If the Borrower fails to deliver a Selection Notice to the Agent in accordance with paragraph (b) above, the relevant Interest Period will be 3 Months.

 

(e)An Interest Period for a Loan shall not extend beyond the Termination Date applicable to its Facility.

 

(f)Each Interest Period for a Loan shall start on the Utilisation Date or (if a the Loan has already been made) on the last day of the preceding Interest Period of the Loan.

 

(g)A Facility B Loan has one Interest Period only and shall start on the Utilisation Date.

 

12.2Non-Business Days

 

(a)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).

 

(b)If there are rules specified as 'Business Day Conventions' in the Compounded Rate Terms, those rules shall apply to each Interest Period for that Loan.

 

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12.3Consolidation of Facility A Loans

 

(a)If two or more Interest Periods:

 

(i)relate to Facility A Loans made to the same Borrower; and

 

(ii)end on the same date,

 

those Facility A Loans will be consolidated into, and treated as, a single Facility A Loan on the last day of the Interest Period.

 

13.CHANGES TO THE CALCULATION OF INTEREST

 

13.1Interest calculation if no RFR or Central Bank Rate

 

If:

 

(a)there is no applicable RFR or Central Bank Rate for the purposes of calculating the Daily Non-Cumulative Compounded RFR Rate for an RFR Banking Day during an Interest Period for a Loan; and

 

(b)          "Cost of funds will apply as a fallback" is specified in the Compounded Rate Terms,

 

then Clause 13.3 (Cost of funds) shall apply to that Loan for that Interest Period.

 

13.2Market disruption

 

If:

 

(a)a Market Disruption Rate is specified in the Compounded Rate Terms; and

 

(b)before the Reporting Time, the Agent receives notifications from a Lender or Lenders (whose participations in a Loan exceed 40 per cent. of that Loan) that the cost to it of funding its participation in that Loan from whatever source it may reasonably select would be in excess of that Market Disruption Rate,

 

then Clause 13.3 (Cost of funds) shall apply to that Loan for the relevant Interest Period.

 

13.3Cost of funds

 

(a)If this Clause 13.3 applies to a Loan for an Interest Period, the rate of interest on each relevant Lender's share of the relevant Loan for the relevant Interest Period shall be the percentage rate per annum which is the sum of:

 

(i)the Margin; and

 

(ii)the weighted average of the rates notified to the Agent by each relevant Lender as soon as practicable and in any event by the Reporting Time, to be that which expresses as a percentage rate per annum the cost to the relevant Lender of funding its participation in that Loan from whatever source it may reasonably select.

 

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(b)If this Clause 13.3 applies and the Agent or the Borrower so requires, the Agent and the Borrower shall enter into negotiations (for a period of not more than 30 days) with a view to agreeing a substitute basis for determining the rate of interest.

 

(c)Any alternative basis agreed under paragraph (b) above shall, with the prior consent of all the Lenders and the Borrower, be binding on all Parties.

 

(d)If this Clause 13.3 applies under Clause 13.2 (Market disruption) and in relation to a Loan:

 

(i)a Lender's Funding Rate is less than the relevant Market Disruption Rate; or

 

(ii)a Lender does not supply a quotation by the Reporting Time,

 

the cost to that Lender of funding its participation in that Loan for that Interest Period shall be deemed, for the purposes of paragraph (a) above, to be the Market Disruption Rate for that Loan.

 

(e)Subject to paragraph (d) above if this Clause 13.3 applies but any Lender does not supply a quotation by the Reporting Time the rate of interest shall be calculated on the basis of the quotations of the remaining Lenders.

 

(f)If this Clause 13.3 applies the Agent shall, as soon as is practicable, notify the Borrower.

 

13.4Agent's role and confidentiality

 

(a)The Agent shall promptly notify the Borrower if there is a market disruption event under Clause 13.2 (Market disruption) and of the identity of any Lender or Lenders giving a notice under that Clause.

 

(b)A Lender who gives a notification under Clause 13.2 (Market disruption) at any time before 5.00pm (Sydney time) on the RFR Banking Day after the relevant Reporting Time may in that notification request the Agent to notify each other Lender that it has received a notification under Clause 13.2 (Market disruption) (without giving details) and the Agent shall promptly comply with the request.

 

13.5Break Costs

 

(a)If an amount is specified as Break Costs in the Compounded Rate Terms, the Borrower shall, within three Business Days of demand by a Finance Party, pay to that Finance Party its Break Costs (if any) attributable to all or any part of a Loan or Unpaid Sum being paid by the Borrower on a day before 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 Agent, provide a certificate confirming the amount of its Break Costs for any Interest Period in which they become, or may become, payable.

 

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14.FEES

 

14.1Commitment fee

 

(a)The Borrower shall pay to the Agent (for the account of each Lender) a fee in US dollars computed at the rate of:

 

(i)50 per cent. per annum of the applicable Margin per annum on that Lender's Available Commitment under Facility A for the period starting on Financial Close and ending on the last day of the Availability Period applicable to Facility A; and

 

(ii)50 per cent. per annum of the applicable Margin per annum on that Lender's Available Commitment under Facility B for the period starting on Financial Close and ending on the last day of the Availability Period applicable to Facility B.

 

(b)The Borrower shall pay to the Agent (for the account of each Lender) a fee in Australian dollars computed at the rate of 50 per cent. per annum of the Letter of Credit fee for a Letter of Credit which is a financial guarantee on that Lender's Available Commitment under Facility C for the Availability Period applicable to Facility C.

 

(c)The accrued commitment fees are 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 Availability Period, and on the cancelled amount of the relevant Lender's Commitment at the time the cancellation is effective.

 

14.2Underwriting fee

 

The Borrower shall pay to the Arranger an underwriting fee in the amount and at the times agreed in a Fee Letter.

 

14.3Agency fee

 

The Borrower shall pay to the Agent (for its own account) an agency fee in the amount and at the times agreed in a Fee Letter. The Agent's Fee Letter may be amended by agreement between the Company, the Agent without consent of any other Lender.

 

14.4Fees payable in respect of Letters of Credit

 

(a)The Borrower shall pay to the Issuing Person a Letter of Credit fee computed at the rate equal to:

 

(i)2.00 per cent. per annum on the outstanding amount of each Letter of Credit which is a performance guarantee; and

 

(ii)3.00 per cent. per annum on the outstanding amount of each Letter of Credit which is a financial guarantee,

 

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in each case for the period from the issue of that Letter of Credit until its Expiry Date or if the Letter of Credit does not have an Expiry Date, until the Letter of Credit is repaid in one of the ways set out in Clauses 1.2(g)(ii) to 1.2(g)(v) (Construction).

 

(b)The accrued Letter of Credit fee on a Letter of Credit shall be payable on the last day of each successive period of three Months (or such shorter period as shall end on the Expiry Date for that Letter of Credit) starting on the date of issue of that Letter of Credit. If the outstanding amount of a Letter of Credit is reduced, any Letter of Credit fee accrued in respect of the amount of that reduction shall be payable on the day that that reduction becomes effective.

 

(c)If an Obligor provides cash cover in respect of any Letter of Credit:

 

(i)the Letter of Credit fee shall continue to be payable until the expiry of the Letter of Credit; and

 

(ii)the Borrower shall be entitled to apply interest accrued on the cash cover provided by it to pay the fees described in paragraph (i) above so long as no Event of Default is continuing.

 

SECTION 6

ADDITIONAL PAYMENT OBLIGATIONS

 

15.TAX GROSS-UP AND INDEMNITIES

 

15.1Definitions

 

(a)In this Clause 15:

 

"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 Payment" means either the increase in a payment made by an Obligor to a Finance Party under Clause 15.2 (Tax gross-up) or a payment under Clause 15.3 (Tax indemnity).

 

15.2Tax gross-up

 

(a)Each Obligor shall make all payments to be made by it under the Finance Documents without any Tax Deduction unless such Tax Deduction is required by law.

 

(b)The Borrower or a Finance Party 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 Agent accordingly. If the Agent receives such notification from a Lender or Issuing Person it shall notify the Borrower and that Obligor.

 

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(c)If a Tax Deduction is required by law to be made by an Obligor except in relation to a Tax described in Clause 15.3(b)(i) or 15.3(b)(ii) (Tax indemnity), the Obligor shall pay an additional amount together with the payment so that, after making any Tax Deduction, the Finance Party receives an amount equal to the payment which would have been due if no Tax Deduction had been required.

 

(d)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.

 

(e)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 Agent for the Finance Party entitled to the payment evidence satisfactory to that Finance Party, acting reasonably, that the Tax Deduction has been made or (as applicable) any appropriate payment paid to the relevant taxing authority.

 

15.3Tax indemnity

 

(a)The Borrower shall (within three Business Days of demand by the 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 or a transaction or payment under it.

 

(b)Paragraph (a) shall not apply:

 

(i)with respect to any Tax assessed on a Finance Party 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:

 

(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; or

 

(ii)with respect to Australian Withholding Tax in respect of any interest paid to an Offshore Associate of the relevant Obligor; or

 

(iii)to the extent the relevant loss, liability or cost:

 

(A)is compensated for by an additional amount under Clause 15.2 (Tax gross-up); or

 

(B)relates to a FATCA Deduction required to be made by a Party.

 

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(c)A Protected Party making or intending to make a claim under paragraph (a) above shall promptly notify the Agent of the event which will give, or has given, rise to the claim, following which the Agent shall notify the Borrower.

 

(d)A Protected Party shall, on receiving a payment from an Obligor under this Clause 15.3, notify the Agent.

 

15.4Tax Credit

 

If an Obligor makes a Tax Payment and the relevant Finance Party determines in its absolute discretion that:

 

(a)a Tax Credit is attributable to that Tax Payment or to a Tax Deduction in consequence of which that Tax Payment was required; and

 

(b)that Finance Party has obtained, utilised and retained that Tax Credit,

 

subject to Clause 33 (Conduct of Business by the Finance Parties), the Finance Party shall pay an amount to the Obligor which that Finance Party determines in its absolute discretion will leave it (after that payment) in the same after-Tax position as it would have been in had the circumstances not arisen which caused the Tax Payment to be required to be made by the Obligor.

 

15.5Stamp duties and Taxes

 

The Borrower shall:

 

(a)pay; and

 

(b)within three Business Days of demand, indemnify each Finance Party against any cost, expense, loss or liability that Finance Party incurs in relation to,

 

all stamp duty, registration or other similar Tax payable in respect of any Finance Document except Transfer Certificates.

 

15.6Indirect Tax

 

(a)All payments to be made by an Obligor under or in connection with any Finance Document have been calculated without regard to Indirect Tax. If all or part of any such payment is the consideration for a taxable supply or chargeable with Indirect Tax then, when the Obligor makes the payment:

 

(i)it must pay to the Finance Party an additional amount equal to that payment (or part) multiplied by the appropriate rate of the Indirect Tax; and

 

(ii)the Finance Party will promptly provide to the Obligor a tax invoice complying with the relevant law relating to that Indirect Tax.

 

(b)Where a Finance Document requires an Obligor to reimburse or indemnify a Finance Party for any costs or expenses, that Obligor shall also at the same time pay and indemnify that Finance Party against all Indirect Tax incurred by that Finance Party in respect of the costs or expenses save to the extent that that Finance Party is entitled to repayment or credit in respect of the Indirect Tax. The Finance Party will promptly provide to the Obligor a tax invoice complying with the relevant law relating to that Indirect Tax.

 

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15.7FATCA Information

 

(a)Subject to paragraph (c) below, each Party shall, within ten Business Days of a reasonable request by another Party:

 

(i)confirm to that other Party whether it is:

 

(A)a FATCA Exempt Party; or

 

(B)not a FATCA Exempt Party;

 

(ii)supply to that other Party such forms, documentation and other information relating to its status under FATCA as that other Party reasonably requests for the purposes of that other Party's compliance with FATCA; and

 

(iii)supply to that other Party such forms, documentation and other information relating to its status as that other Party reasonably requests for the purposes of that other Party's compliance with any other law, regulation, or exchange of information regime.

 

(b)If a Party confirms to another Party under paragraph (a)(i) above that it is a FATCA Exempt Party and it subsequently becomes aware that it is not or has ceased to be a FATCA Exempt Party, that Party shall notify that other Party reasonably promptly.

 

(c)Paragraph (a) above shall not oblige any Finance Party to do anything, and paragraph (a)(iii) above shall not oblige any other Party to do anything, which would or might in its reasonable opinion constitute a breach of:

 

(i)any law or regulation;

 

(ii)any fiduciary duty; or

 

(iii)any duty of confidentiality.

 

(d)If a Party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation or other information requested in accordance with paragraph (a)(i) or (ii) above (including where paragraph (c) above applies), then such Party shall be treated for the purposes of the Finance Documents (and payments under them) as if it is not a FATCA Exempt Party until such time as the Party in question provides the requested confirmation, forms, documentation or other information.

 

15.8FATCA Deduction

 

(a)Each Party may make any FATCA Deduction it is required to make by FATCA, and any payment required in connection with that FATCA Deduction, and no Party shall be required to increase any payment in respect of which it makes such a FATCA Deduction or otherwise compensate the recipient of the payment for that FATCA Deduction.

 

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(b)Each Party shall promptly, upon becoming aware that it must make a FATCA Deduction (or that there is any change in the rate or the basis of such FATCA Deduction), notify the Party to whom it is making the payment and, in addition, shall notify the Company and the Agent and the Agent shall notify the other Finance Parties.

 

16.INCREASED COSTS

 

16.1Increased Costs

 

(a)Subject to Clause 16.3 (Exceptions) the Borrower shall, within three Business Days of a demand by the 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. This includes any law or regulation with regard to capital adequacy, prudential limits, liquidity, reserve assets or Tax.

 

(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 (including as a result of any reduction in the rate of return on capital as more capital is required to be allocated);

 

(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.

 

16.2Increased cost claims

 

(a)A Finance Party intending to make a claim under Clause 16.1 (Increased Costs) shall notify the Agent of the event giving rise to the claim, following which the Agent shall promptly notify the Borrower.

 

(b)Each Finance Party shall, as soon as practicable after a demand by the Agent, provide a certificate confirming the amount of its Increased Costs.

 

16.3Exceptions

 

(a)Clause 16.1 (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;

 

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(ii)attributable to a FATCA Deduction required to be made by a Party;

 

(iii)compensated for by Clause 15.3 (Tax indemnity) (or would have been compensated for under Clause 15.3 (Tax indemnity) but was not so compensated solely because any of the exclusions in paragraph (b) of Clause 15.3 (Tax indemnity) applied); or

 

(iv)attributable to the wilful breach by the relevant Finance Party or its Affiliates of any law or regulation.

 

17.OTHER INDEMNITIES

 

17.1Currency 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;

 

(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, expense, loss or liability arising out of or as a result of the conversion including any discrepancy between (A) the rate of exchange used to convert that Sum from the First Currency into the Second Currency and (B) the rate or rates of exchange available to that person at the time of its receipt of that Sum.

 

(b)Each Obligor waives any right it may have in any jurisdiction to pay any amount under the Finance Documents in a currency or currency unit other than that in which it is expressed to be payable.

 

17.2Other indemnities

 

The Borrower shall (or shall procure that an Obligor will), within three Business Days of demand, indemnify each Finance Party against any cost, expense, loss or liability (including legal fees) incurred by that Finance Party as a result of:

 

(a)the occurrence of any Default or Review Event;

 

(b)the Lender Presentation or any other information produced or approved by an Obligor under or in connection with the Finance Documents or the transactions they contemplate being or being alleged to be misleading or deceptive in any respect;

 

(c)any enquiry, investigation, subpoena (or similar order) or litigation with respect to any Obligor or with respect to the transactions contemplated or financed under this Agreement;

 

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(d)a failure by an Obligor to pay any amount due under a Finance Document on its due date, including without limitation, any cost, expense, loss or liability arising as a result of Clause 34 (Sharing among the Finance Parties);

 

(e)funding, or making arrangements to fund, its participation in a Utilisation requested by the Borrower in a Utilisation Request but not made by reason of the operation of any one or more of this Agreement (other than by reason of default or negligence by that Finance Party alone);

 

(f)issuing or making arrangements to issue a Letter of Credit requested by the Borrower in a Utilisation Request but not issued by reason of the operation of this Agreement (other than by reason of default or negligence by that Finance Party alone);

 

(g)a Utilisation (or part of a Utilisation) not being prepaid in accordance with a notice of prepayment given by the Borrower;

 

(h)an amount being paid or payable by that Finance Party to the Agent or another Finance Party under Clause 32.11 (Lenders' indemnity to the Agent); or

 

(i)security being provided by that Finance Party to the Agent under Clause 32.7(j) (Rights and discretions) or Clause 32.11(d) (Lenders' indemnity to the Agent) including costs and expenses in providing that security and, if the security is cash, the Borrower shall pay interest on the amount provided from the date of provision in the manner provided in Clause 11.3 (Default interest).

 

17.3Indemnity to the Agent

 

The Borrower shall promptly indemnify the Agent against any cost, expense, loss or liability incurred by the Agent (acting reasonably) as a result of:

 

(a)investigating any event which it reasonably believes is a Default;

 

(b)acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised; or

 

(c)instructing lawyers, accountants, tax advisers, surveyors or other experts or professional advisers as permitted under this Agreement.

 

18.MITIGATION BY THE FINANCE PARTIES

 

18.1Mitigation

 

(a)Each Finance Party shall, in consultation with the Borrower, use reasonable endeavours to mitigate any circumstances which arise and which would result in any amount becoming payable under or under, or its Commitment being cancelled under, any of Clause 9.1 (Illegality) or, in respect of the Issuing Person, Clause 9.2 (Illegality in relation to Letter of Credit), Clause 15 (Tax gross-up and indemnities) (other than Clause 15.6 (Indirect Tax)) or Clause 16 (Increased Costs) including (but not limited to) transferring its rights and obligations under the Finance Documents to another Affiliate or Facility Office.

 

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(b)Paragraph (a) above does not in any way limit the obligations of any Obligor under the Finance Documents.

 

18.2Limitation of liability

 

(a)The Borrower shall promptly 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 18.1 (Mitigation).

 

(b)A Finance Party is not obliged to take any steps under Clause 18.1 (Mitigation) if, in the opinion of that Finance Party (acting reasonably), to do so might be prejudicial to it.

 

19.COSTS AND EXPENSES

 

19.1Transaction expenses

 

The Borrower shall promptly on demand pay the Agent and the Arranger the amount of all costs and expenses (including legal fees) reasonably incurred by any of them in connection with the negotiation, preparation, printing, execution, registration and syndication of:

 

(a)this Agreement and any other documents referred to in this Agreement and the Transaction Security (including the attachment and perfection of the Transaction Security); and

 

(b)any other Finance Documents executed after the date of this Agreement,

 

and any costs and expenses reasonably incurred in connection with the annual site visit by the Lenders in accordance with Clause 23.12 (Site Visit).

 

19.2Amendment and other costs

 

If (a) an Obligor requests an amendment, waiver or consent or makes or initiates a request or demand under the PPSA or (b) an amendment is required under Clause 36.10 (Change of currency) or (c) an amendment is required under Clause 42.4 (Replacement of Relevant Rate), the Borrower shall, within three Business Days of demand, reimburse the Agent and each other Finance Party for the amount of all costs and expenses (including legal fees) reasonably incurred by the Agent or other Finance Party in responding to, evaluating, negotiating or complying with that request or requirement.

 

19.3Enforcement costs

 

The Borrower 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:

 

(a)the enforcement of, or the preservation of any rights under, any Finance Document; and

 

(b)any proceedings instituted by or against the Security Trustee as a consequence of taking or holding the Transaction Security.

 

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SECTION 7
GUARANTEE

 

20.GUARANTEE

 

20.1Guarantee

 

 Each Guarantor irrevocably and unconditionally jointly and severally:

 

(a)guarantees to each Finance Party punctual performance by each Obligor of all that Obligor's obligations under the Finance Documents;

 

(b)undertakes with each Finance Party that:

 

(i)whenever an Obligor does not pay any amount when due under or in connection with any Finance Document (or anything which would have been due if the Finance Document or the amount was enforceable, valid and not illegal), immediately on demand by the Finance Party that Guarantor shall pay that amount as if it was the principal obligor; and

 

(ii)if an Ipso Facto Event has occurred, then immediately on demand by the Agent that Guarantor shall:

 

(A)pay all Loans, accrued interest and other amounts referred to in Clause 28.25(b) (Acceleration) as if it was the principal obligor; and/or

 

(B)provide cash cover for all Letters of Credit except to the extent they have been repaid or prepaid; and

 

(c)agrees with each Finance Party that if any obligation guaranteed by it is or becomes unenforceable, invalid or illegal, it will, as an independent and primary obligation, indemnify that Finance Party immediately on demand against any cost, expense, loss or liability it incurs as a result of an Obligor not paying any amount which would, but for such unenforceability, invalidity or illegality, have been payable by it under any Finance Document on the date when it would have been due. The amount of the cost, expense, loss or liability shall be equal to the amount which that Finance Party would otherwise have been entitled to recover.

 

Each of paragraphs (a), (b)(i), (b)(ii) and (c) is a separate obligation. None is limited by reference to the other.

 

"Ipso Facto Event" means an Obligor is the subject of:

 

(a)an announcement, application, compromise, arrangement, managing controller, or administration as described in section 415D(1), 434J(1) or 451E(1) of the Corporations Act; or

 

(b)any process which under any law with a similar purpose may give rise to a stay on, or prevention of, the exercise of contractual rights.

 

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20.2Continuing guarantee

 

This Guarantee is a continuing obligation 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.

 

20.3Reinstatement

 

If any payment to or any discharge, release or arrangement given or entered into 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 for any reason (including as a result of insolvency, breach of fiduciary or statutory duties or any similar event) in whole or in part, then the liability of each Guarantor under this Clause 20 will continue or be reinstated as if the discharge, release or arrangement had not occurred and any relevant security shall be reinstated.

 

20.4Waiver of defences

 

The obligations of each Guarantor under this Clause 20 will not be affected by an act, omission, matter or thing which, but for this Clause 20, would reduce, release or prejudice any of its obligations under this Clause 20 (without limitation and whether or not known to it or any Finance Party) including:

 

(a)any time, waiver or other concession or consent granted to, or composition with, any Obligor or other person;

 

(b)the release or resignation of any other Obligor or any other person;

 

(c)any composition or arrangement with any creditor of any Obligor or other person;

 

(d)the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, execute, 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;

 

(e)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;

 

(f)any amendment, novation, supplement, extension, restatement (however fundamental and whether or not more onerous) or replacement of any Finance Document or any other document or security including any change in the purpose of, any extension of or any increase in any Facility or the addition of any new facility under any Finance Document or other document or security;

 

(g)any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document or any other document or security;

 

(h)any set off, combination of accounts or counterclaim;

 

(i)any insolvency or similar proceedings; or

 

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(j)this Agreement or any other Finance Document not being executed by or binding against any other Obligor or any other party.

 

References in Clause 20.1 (Guarantee) to obligations of an Obligor or amounts due will include what would have been obligations or amounts due but for any of the above, as well as obligations and amounts due which result from any of the above.

 

20.5Immediate 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 20. This waiver applies irrespective of any law or any provision of a Finance Document to the contrary.

 

20.6Appropriations

 

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 or recovered (by set off or otherwise) 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)without limiting paragraph (a), refrain from applying any moneys received or recovered (by set off or otherwise) from any Guarantor or on account of any Guarantor's liability under this Clause 20 in discharge of that liability or any other liability of an Obligor and claim or prove against anyone in respect of the full amount owing by the Obligors.

 

20.7Deferral 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 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 or by reason of any amount being payable, or liability arising, under this Clause 20:

 

(a)to be indemnified by an Obligor;

 

(b)to claim any contribution from any other guarantor of or provider of security for any Obligor's obligations under the Finance Documents;

 

(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 under, or in connection with, the Finance Documents by any Finance Party;

 

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(d)to bring legal or other proceedings for an order requiring any Obligor to make any payment, or perform any obligation, in respect of which any Guarantor has given a Guarantee under Clause 20.1 (Guarantee);

 

(e)to exercise any right of set-off against any Obligor;

 

(f)to claim or prove as a creditor of any Obligor in competition with any Finance Party; and/or

 

(g)in any form of administration of an Obligor (including liquidation, winding up, bankruptcy, voluntary administration, dissolution or receivership or any analogous process) prove for or claim, or exercise any vote or other rights in respect of, any indebtedness of any nature owed to it by the Obligor.

 

If a Guarantor receives any benefit, payment or distribution in relation to such rights it shall hold that benefit, payment or distribution to the extent necessary to enable all amounts which may be or become payable to the Finance Parties by the Obligors under or in connection with the Finance Documents to be repaid in full on trust for the Finance Parties and shall promptly pay or transfer the same to the Agent or as the Agent may direct for application in accordance with Clause 36 (Payment Mechanics).

 

20.8Release of Guarantors' right of contribution

 

If any Guarantor (a "Retiring Guarantor") ceases to be a Guarantor in accordance with the Finance Documents for the purpose of any sale or other disposal of that Retiring Guarantor then on the date such Retiring Guarantor ceases to be a Guarantor:

 

(a)that Retiring Guarantor is released by each other Guarantor from any liability (whether past, present or future and whether actual or contingent) to make a contribution to any other Guarantor arising by reason of the performance by any other Guarantor of its obligations under the Finance Documents; and

 

(b)each other Guarantor waives any rights it may have by reason of the performance of its obligations under the Finance Documents 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 any Finance Document or of any other security taken under, or in connection with, any Finance Document where such rights or security are granted by or in relation to the assets of the Retiring Guarantor.

 

20.9Additional security

 

This Guarantee is in addition to and is not in any way prejudiced by any other guarantee or security now or subsequently held by any Finance Party.

 

20.10Specific waiver of customary law rights

 

Without limitation to the preceding and without prejudice to the generality of any waiver granted in the Finance Documents, each Obligor irrevocably and unconditionally abandons and waives any right which it may have at any time under the existing or future laws of Jersey:

 

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(a)whether by virtue of the droit de discussion or otherwise to require that recourse be had to the assets of any other person before any claim is enforced against the Obligor in respect of the obligations or liabilities assumed by the Obligor under any document, including without limitation under any Finance Document; and

 

(b)whether by virtue of the droit de division or otherwise to require that any liability under any document, including without limitation any Finance Document, be divided or apportioned with any other person or reduced in any manner whatsoever.

 

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SECTION 8

REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT

 

21.CORPORATE REPRESENTATIONS

 

Each Obligor makes the representations and warranties set out in this Clause 21 to each Finance Party on the date of this Agreement.

 

21.1Status

 

(a)It is a company or corporation, duly incorporated. validly existing and (where applicable) in good standing under the laws 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 conducted.

 

21.2Binding obligations

 

Subject to the Legal Reservations and Perfection Requirements:

 

(a)the obligations expressed to be assumed by it in each Transaction Document to which it is a party are legal, valid, binding and enforceable obligations; and

 

(b)without limiting the generality of paragraph (a) above, each Transaction Security Document to which it is a party creates (or when executed will create) the Security which that Transaction Security Document purports to create and that Security is valid and effective.

 

21.3Non-conflict with other obligations

 

The entry into and performance by it of, and the transactions contemplated by, the Transaction Documents including the granting of the Transaction Security do not and will not conflict with:

 

(a)any law or regulation applicable to it;

 

(b)its or any of its Subsidiaries' constitutional documents; or

 

(c)any agreement or instrument binding upon it or any of its Subsidiaries or any of its or any of its Subsidiaries' assets or constitute a default or termination event under any such agreement or instrument.

 

21.4Power 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 Transaction Documents to which it is a party and the transactions contemplated by the Transaction Documents.

 

21.5Validity and admissibility in evidence

 

All Authorisations required or desirable:

 

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(a)to enable it lawfully to enter into, exercise its rights and comply with its obligations in the Transaction Documents to which it is a party;

 

(b)to make the Transaction Documents to which it is a party, its legal, valid, binding and enforceable obligations, admissible in evidence in its jurisdiction of incorporation;

 

(c)to perfect the Transaction Security; and

 

(d)for it and its Subsidiaries to carry on their business,

 

have been obtained or effected and are in full force and effect other than:

 

(e)the registration of any security interest against any party which is not an Obligor created under a Finance Document on the register held under the PPSA; or

 

(f)any Authorisation which will be obtained or effected in satisfaction of the conditions precedent in Part I or Part II (as applicable) of Schedule 2 (Conditions Precedent) or by the Agent or Security Trustee.

 

21.6Governing law and enforcement

 

(a)The choice of law referred to in Clause 52 (Governing Law) as the governing law of the Transaction Documents will be recognised and enforced in its jurisdiction of incorporation.

 

(b)Any judgment obtained against it in any jurisdiction referred to in Clause 53 (Enforcement) in relation to a Transaction Document will be recognised and enforced in its jurisdiction of incorporation.

 

21.7Insolvency

 

No:

 

(a)corporate action, legal proceeding or other procedure or step described in Clause 28.7(a) (Insolvency proceedings); or

 

(b)creditors' process described in Clause 28.8 (Creditors' process),

 

has been taken in relation to a member of the Group, and none of the circumstances described in Clause 28.6 (Insolvency) applies to a member of the Group.

 

21.8No stamp Taxes

 

Under the law of its jurisdiction of incorporation it is not necessary that any stamp, registration or similar Tax be paid on or in relation to the Transaction Documents or the transactions contemplated by the Transaction Documents, save for:

 

(a)any payment referred to in any legal opinion delivered to the Agent under this Agreement or disclosed by or behalf of an Obligor to the Agent;

 

(b)which has been paid or will be paid in satisfaction of the conditions precedent in Part I or Part II (as applicable) of Schedule 2 (Conditions Precedent) or by the Agent; or

 

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(c)payment of the registration fees required to register a financing statement in respect of each Company Offshore Security Document governed by Jersey law on the SIR (the "Jersey Registrations"),

 

which stamp duty, Taxes and fees will be paid promptly after the date of the relevant Transaction Security Document (or, in the case of the Jersey Registrations, at the date and time agreed in the relevant Jersey Consent Letter) or at such later date as the Agent may approve.

 

21.9No default, Review Event or MAE

 

(a)No Event of Default or Review Event is continuing or might reasonably be expected to result from the making of any Utilisation or the entry into, the performance of, or any transaction contemplated by, any Transaction Document.

 

(b)No other event or circumstance is outstanding which constitutes a default under any other agreement or instrument which is binding on it or any of its Subsidiaries or to which its (or any of its Subsidiaries') assets are subject which might have a Material Adverse Effect.

 

21.10Disclosure

 

It has disclosed in writing to the Original Lenders all information known to it which could reasonably be expected to be material to the ability of the Group (taken as a whole) to perform their obligations under the Transaction Documents or to an Original Lender's assessment of the nature and degree of risk undertaken by it in granting financial accommodation to the Group in entering into the Transaction Documents.

 

21.11No misleading information

 

(a)Any factual information provided by or on behalf of an Obligor or any other member of the Group in or for the purposes of the Lender Presentation (excluding projections) or provided in writing in connection with the Finance Documents and the transactions they contemplate was true and accurate in all material respects and not misleading as at the date it was provided or as at the date (if any) at which it is stated.

 

(b)The Base Case Financial Model and any financial projections provided by or on behalf of an Obligor or any other member of the Group have been prepared on the basis of recent historical information and on the basis of reasonable assumptions.

 

(c)Nothing has occurred or been omitted from the information provided in writing in connection with the Finance Documents and no information has been given or withheld that results in the information provided by or on behalf of an Obligor or any other member of the Group being untrue or misleading in any material respect.

 

21.12Financial statements

 

(a)Its Original Financial Statements were prepared in accordance with IFRS consistently applied.

 

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(b)Its Original Financial Statements give a true and fair view and fairly represent its financial condition as at the end of the relevant financial year and operations during the relevant financial year (consolidated in the case of the Borrower).

 

(c)Its most recent financial statements delivered under Clause 23.1 (Financial statements):

 

(i)have been prepared in accordance with Clause 23.3 (Requirements as to financial statements); and

 

(ii)give a true and fair view of (if audited) or fairly present (if unaudited) its consolidated financial condition as at the end of, and consolidated results of operations for, the period to which they relate.

 

(d)There has been no material adverse change in its business or financial condition (or the business or consolidated financial condition of the Group, in the case of the Borrower) since the most recent financial statements delivered under Clause 23.1 (Financial statements).

 

21.13Ranking

 

Its obligations under the Finance Documents to which it is a party constitute direct, unconditional obligations and (in all respects and at all times) rank in right and priority of payment and in point of security ahead of all its other obligations (actual or contingent, present or future) except:

 

(a)obligations mandatorily preferred by law; or

 

(b)a Permitted Security.

 

21.14No proceedings pending

 

(a)No litigation, arbitration or administrative proceedings of or before any court, arbitral body or agency has or have (to the best of its knowledge and belief) been started or threatened against it or any of its Subsidiaries.

 

(b)No judgment or order of a court, arbitral tribunal or other tribunal or any order or sanction of any government or other regulatory body which is reasonably likely to have a Material Adverse Effect has (to the best of its knowledge and belief) been made against it or any of its Subsidiaries.

 

21.15Trustee

 

It does not enter into any Finance Document or hold any property as trustee.

 

21.16Borrower as SPV

 

As at the date of this Agreement, the Borrower has not engaged in any transaction or engaged in any business other than the Acquisition and matters immediately preparatory to it.

 

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21.17Authorised Signatories

 

Any person specified as its Authorised Signatory under Schedule 2 (Conditions Precedent) or Clause 23.8 (Information: miscellaneous) is authorised to sign Utilisation Requests and Selection Notices and other notices on its behalf except where it has previously notified the Agent that the authority has been revoked.

 

21.18Tax Consolidation

 

(a)If any Obligor is a member of a Tax Consolidated Group at any time, it is a member of a Tax Consolidated Group for which the Head Company (as defined in the Tax Act) is the Company, and each member of that Tax Consolidated Group is party to a valid Tax Sharing Agreement and a Tax Funding Agreement.

 

(b)If any Obligor is a member of a GST Group at any time, it is a member of a GST Group for which the Representative Member (as defined in the GST Law) is the Borrower, and each member of that GST Group is party to a valid ITSA.

 

(c)It is not (and none of its Subsidiaries is) materially overdue in the filing of any Tax returns and it is not (and none of its Subsidiaries is) overdue in the payment of any amount in respect of Tax of US$100,000 (or its equivalent in any other currency or currencies) or more.

 

(d)No claims are being, or are reasonably likely to be, made against it (or any of its Subsidiaries) with respect to Taxes such that a liability of, or claim against, any member of the Group of US$100,000 (or its equivalent in any other currency or currencies) or more is reasonably likely to arise.

 

21.19Ranking

 

The Transaction Security has or will have the ranking in priority which it is expressed to have in the Transaction Security Documents (if any) and it is not subject to any prior ranking or pari passu ranking Security other than Permitted Security.

 

21.20No immunity

 

Neither it nor its assets has immunity from the jurisdiction of a court or from legal process.

 

21.21Good title to assets

 

It and each of its Subsidiaries has a good, valid and marketable title to, or valid leases or licences of, and all appropriate Authorisations to use, the assets necessary to carry on its business as presently conducted.

 

21.22Shares

 

The shares, membership or other interests, or other securities in or issued by any member of the Group which are subject to the Transaction Security are fully paid and not subject to any option to purchase or similar rights. The constitutional or other documents of entities whose shares, membership or other interests, or other securities are subject to the Transaction Security do not and could not restrict or inhibit any transfer or creation or enforcement of the Transaction Security.

 

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21.23Group Structure Chart

 

(a)The group structure chart delivered to the Agent as a condition precedent to the first Utilisation is true, complete and accurate in all material respects on the first Utilisation Date.

 

(b)The most recent group structure chart delivered to the Agent under this Agreement is true, complete and accurate in all material respects.

 

(c)All necessary intra-Group loans, transfers, share exchanges and other steps resulting in the final Group structure are set out in the group structure chart and have been or will be taken in compliance with all relevant laws and regulations and all requirements of relevant regulatory authorities.

 

21.24Company representations

 

(a)To the best of its honest understanding and belief, neither the Company, nor any of its Subsidiaries, is likely to be, and after the making of any Utilisation, the application of the proceeds and the repayment thereof by any Obligor, and the consummation of the other transactions contemplated hereby would likely to be, an "investment company", or is likely to be, and after making of any Utilisation, the application of the proceeds and the repayment thereof by any Obligor, and the consummation of the other transactions contemplated hereby would likely to be "controlled" by an "investment company", within the meaning of the US Investment Company Act of 1940, as amended. Neither the making of any Utilisation nor the application of the proceeds or repayment thereof by any Obligor, nor the consummation of the other transactions contemplated hereby, will violate any provision of such Act or any rule, regulation or order of the US Securities and Exchange Commission thereunder.

 

(b)No proceeds of any Utilisation will be used to purchase or carry any Margin Stock (as defined in US Regulation U of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor to all or a portion thereof) or to extend credit for the purpose of purchasing or carrying any Margin Stock. Neither the making of any Utilisation nor the use of the proceeds of it will violate or be inconsistent with US Regulation T, U or X of the Board of Governors of the Federal Reserve System from time to time in effect or any successor to all or a portion thereof. Following the application of the proceeds of each Utilisation not more than 25% of the value of the assets (either of the Company only or of the Group on a consolidated basis) will be Margin Stock.

 

(c)No ERISA Event has occurred or is reasonably likely to occur other than as would not, individually or in the aggregate, have a Material Adverse Effect.

 

(d)Except as would not reasonably be expected to have a Material Adverse Effect, no Obligor nor any ERISA Affiliate currently or will at any time sponsor, maintain, contribute to, or has or will have any liability in respect of, or has ever sponsored, maintained, contributed to, or had any liability in respect of, a Plan.

 

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(e)As of the date hereof and throughout the term of the Agreement, the Borrower is not and will not be using "plan assets" (within the meaning of 29 CFR § 2510.3-101, as modified by Section 3(42) of ERISA) of one or more Plans in connection with any Facility.

 

21.25Financial Indebtedness

 

It has not entered into any agreement to incur, and has not incurred before the date of this Agreement, any Financial Indebtedness other than Permitted Financial Indebtedness.

 

21.26Sanctions

 

(a)No Obligor nor any of their respective shareholders, Subsidiaries, directors, officers, employees, agents or representatives or other person acting on behalf of the Obligor or any of its Subsidiaries is an individual or entity (each a "Person") that:

 

(i)is, or is owned or controlled, either directly or indirectly, by, or is otherwise acting on behalf of, a Person that is the subject of any Sanctions; or

 

(ii)part of, controlled by, or owned by the government, or any agency or instrumentality of the government, of a Comprehensively Sanctioned Country or Territory,

 

(a "Sanctioned Person").

 

(b)No Obligor nor any of their respective shareholders, Subsidiaries, or directors, is located, organised or resident in a country or territory that is, or whose government is, the subject of Sanctions, including the Crimea Region of Ukraine, the Democratic Republic of North Korea, the Donetsk People's Republic, the Luhansk People's Republic, Cuba, Iran, Sevastopol, Sudan and Syria (a "Comprehensively Sanctioned Country or Territory").

 

(c)No Obligor is part of, controlled by, or owned by the government, or any agency or instrumentality of the government, of a Comprehensively Sanctioned Country or Territory.

 

(d)To its knowledge, no Obligor is in violation of any applicable Sanctions.

 

(e)Neither it nor any of its Subsidiaries or any director, officer, agent, employee, affiliate or other person acting on behalf of the Obligor or any of its Subsidiaries is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of any applicable anti-bribery law, including but not limited to, the United Kingdom Bribery Act 2010 (the "UK Bribery Act") and the U.S. Foreign Corrupt Practices Act of 1977 (the "FCPA");

 

(f)Each Obligor and, to the knowledge of the Obligor, its affiliates have conducted their businesses in compliance with the UK Bribery Act, the FCPA and similar laws, rules or regulations and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.

 

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21.27Interests in property

 

It has disclosed in writing to the Agent any interest it has in:

 

(a)any aircraft, aircraft engine, airframe or helicopter;

 

(b)any motor vehicle, watercraft or intellectual property that has a value of more than US$250,000;

 

(c)any deposit account with a financial institution other than the Finance Parties where the total credit balance of the deposit account is or may become more than US$50,000 (and, if there is more than one, the total credit balance of all those deposit accounts is or may become more than US$50,000); and

 

(d)any shares, stock, stock units, interests in a managed investment scheme or other securities, or negotiable instruments where the total value of all of them is more than US$500,000.

 

21.28Jersey Representations

 

In relation to each Obligor incorporated in Jersey:

 

(a)all returns, resolutions and documents required by any legislation to be filed with the Jersey Registrar of Companies or the Jersey Financial Services Commission in respect of the Obligor have been duly prepared, kept and filed (within all applicable time limits) and are correct;

 

(b)it is exempt from any requirement to hold a business licence under the Control of Housing and Work (Jersey) Law 2012;

 

(c)it does not conduct any unauthorised "financial service business" (as defined in the Financial Services (Jersey) Law 1998);

 

(d)it is not in breach of any approvals, authorisations, consents, licences, permits or registrations issued to it by any regulatory or governmental authority in Jersey and will not be in breach of the same as a result of entering into any of the Finance Documents;

 

(e)it is and will remain an "international services entity" (within the meaning of the Goods and Services Tax (Jersey) Law 2007);

 

(f)it is charged to income tax in Jersey at a rate of zero per cent. under the Income Tax (Jersey) Law 1961;

 

(g)it has not owned and does not own land in Jersey; and

 

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(h)it is and will remain a company that is complying in full with its obligations to disclose beneficial owner information to the Jersey Financial Services Commission under the Financial Services (Disclosure and Provision of Information)(Jersey) Law 2020.

 

22.PROJECT REPRESENTATIONS

 

22.1Mining activity Authorisations

 

All mining tenements and Authorisations necessary and which it is possible and practical to obtain at the date of the making or repetition (as the case may be) of this representation and warranty for the carrying on of mining operations on the Tenements, the conduct of the Project, the sale of Product and for the entering into and performance by each Obligor of its obligations under the Material Contracts, have been obtained, are in full force and effect by the date of the making or repetition (as the case may be) of this representation and warranty and it has no reason to believe that those to be obtained in the future will not be granted.

 

22.2Tenements and Water Licences

 

(a)Each Tenement and Water Licence:

 

(i)is legal, valid and subsisting and all terms and conditions of the Tenements and Water Licences have been complied with, and no event has occurred or condition exists which would permit the cancellation, forfeiture, termination or revocation of a Tenement or Water Licence; and

 

(ii)that is a mining lease gives the holder thereof the exclusive right to mine within the boundaries of that mining lease.

 

(b)The Tenements and Water Licences confer on the Target all material rights required to enable it to develop, operate, manage and maintain the Project in accordance with the then applicable Base Case Financial Model and Life of Mine Plan in all material respects.

 

(c)Subject to the Transaction Security, the Target is the legal and beneficial holder of the Tenements and Water Licences as being held by it and no person other than the Target has any legal or beneficial interest in any of the Tenements and Water Licences.

 

(d)Entitlements under the Water Licences (taken as a whole) are adequate for the Target to meet the water requirements of operating the Project in accordance with Good Mining Practice at the date of this Agreement.

 

22.3Compliance with Tenements and Water Licences

 

All of the terms and conditions of the Tenements and Water Licences have been complied with and no event has occurred and no condition exists (or it may reasonably be anticipated by the Obligor, would exist by virtue of impending notice, lapse of time or the satisfaction of some other condition) in each case which would permit the cancellation, termination, forfeiture or suspension of any of the Tenements and Water Licences.

 

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22.4No orders

 

It has not received from any Governmental Agency any notice or order requiring it or any other person to perform or cease to perform any act in relation to the Project or so as to restrict the performance of the terms of any of the Material Contracts which have been executed or the construction, development and operation of the Project in accordance with the Base Case Financial Model and the Material Contracts.

 

22.5No revocation

 

It has not received notice of and is not aware of any intention of any Governmental Agency to revoke or resume any of the Tenements, the Water Licences, the Project Leases, the Freehold Property or Authorisations required in connection with the Project.

 

22.6Compliance with Environmental Laws

 

(a)Each Obligor is in compliance with all Environmental Laws in all material respects and no circumstances have occurred which would prevent such compliance in a manner or to an extent which has or could reasonably be expected to have a Material Adverse Effect.

 

(b)No act or omission has occurred and there is no circumstance relating to its assets or its business or the assets or business of any of its Subsidiaries which has given rise to:

 

(i)a claim against it or any of its Subsidiaries;

 

(ii)a requirement of substantial expenditure by it or any of its Subsidiaries; or

 

(iii)a requirement that it or any of its Subsidiaries ceases or substantially alters an activity,

 

under Environmental Law which has or could reasonably be expected to have a Material Adverse Effect.

 

(c)None of its assets is subject to contamination:

 

(i)that is material in circumstances where the relevant entity is not taking all reasonable steps to remedy such contamination; or

 

(ii)to an extent which has or could reasonably be expected to have a Material Adverse Effect.

 

(d)None of its assets breach applicable environmental standards and no emissions or discharges breach standards or limits imposed by all relevant laws and Authorisations which gives rise to:

 

(i)a material non-compliance in circumstances where the relevant entity is not taking all reasonable steps to remedy such non-compliance; or

 

(ii)non-compliance which has or could reasonably be expected to have a Material Adverse Effect.

 

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22.7Material Contracts

 

In relation to the Material Contracts:

 

(a)it has given the Agent copies of all material agreements including amendments and updates which relate to the Project and all such copies are true and complete;

 

(b)the copies of the Material Contracts which have been provided to the Agent contain the entire agreement of the parties to them and supersede all previous agreements and understandings between them in relation to the Project;

 

(c)its material obligations under the Material Contracts are valid and binding and enforceable in accordance with their terms and conditions subject to laws generally affecting creditors' rights and to principles of equity;

 

(d)none of the Material Contracts nor any of the terms or conditions of the Material Contracts have been varied or supplemented in a material respect, or replaced without being approved in writing by the Agent; and

 

(e)it has not breached any of its material obligations in any material respect under the Material Contracts and is not aware of any act, omission or circumstance having occurred which would give any other party legal grounds to terminate, rescind or vary any Material Contract.

 

22.8No Native Title Claims

 

There is no Native Title Claim or site of significance to Aboriginal people under any Aboriginal Heritage Law affecting the Project which has or is reasonably likely to have a Material Adverse Effect.

 

22.9Intellectual property

 

Each applicable Obligor is entitled to use, or will be entitled to use at the relevant time, all intellectual and commercial property rights necessary for, or intended to be used by it in conjunction with the operation of the Project.

 

22.10Repetition

 

The Repeating Representations are deemed to be made by each Obligor by reference to the facts and circumstances then existing on:

 

(a)the date of each Utilisation Request and the first day of each Interest Period;

 

(b)the date of each Compliance Certificate; and

 

(c)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.

 

23.INFORMATION 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.

 

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23.1Financial statements

 

The Borrower shall supply to the Agent in sufficient copies for all the Lenders:

 

(a)as soon as they become available, but in any event within 120 days after the end of each of its financial years:

 

(i)its audited consolidated financial statements for that financial year; and

 

(ii)the audited financial statements of each Obligor for that financial year; and

 

(b)as soon as they become available, but in any event within 90 days after the end of each half of each of its financial years:

 

(i)its unaudited consolidated financial statements for that financial half year; and

 

(ii)the unaudited financial statements of each Obligor for that financial half year; and

 

(c)as soon as they become available, but in any event within 30 days after the end of each quarter of its financial years:

 

(i)its unaudited consolidated financial statements for that quarter; and

 

(ii)the unaudited financial statements of each Obligor for that quarter.

 

23.2Provision and contents of Compliance Certificate

 

(a)The Borrower shall supply to the Agent, with each set of financial statements delivered under paragraphs (a)(i), (b)(i) or (c)(i) of Clause 23.1 (Financial statements), a Compliance Certificate setting out (in reasonable detail) computations as to compliance with Clause 24 (Financial covenants) as at the date as at which those financial statements were drawn up.

 

(b)Each Compliance Certificate shall be signed by two directors or a director and the company secretary of the Borrower.

 

23.3Requirements as to financial statements

 

(a)The Borrower shall procure that each set of annual financial statements delivered by the Borrower under Clause 23.1(a) (Financial statements) shall be audited by the Auditors.

 

(b)Each set of financial statements delivered by the Borrower under Clause 23.1 (Financial statements) shall be certified by a director of the relevant company as giving a true and fair view of (in the case of annual financial statements for any financial year), or (in other cases) fairly representing its financial condition as at the date as at which those financial statements were drawn up.

 

(c)The Borrower shall procure that each set of financial statements delivered under Clause 23.1 (Financial statements) is prepared using IFRS.

 

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(d)The Borrower shall procure that each set of financial statements of an Obligor delivered under Clause 23.1 (Financial statements) is prepared using IFRS, accounting practices and financial reference periods consistent with those applied in the preparation of the Original Financial Statements for that Obligor unless, in relation to any set of financial statements, it notifies the Agent that there has been a change in IFRS, the accounting practices or reference periods and its auditors (or, if appropriate, the auditors of the Obligor) deliver to the Agent:

 

(i)a description of any change necessary for those financial statements to reflect the IFRS, accounting practices and reference periods upon which that Obligor's Original Financial Statements were prepared; and

 

(ii)sufficient information, in form and substance as may be reasonably required by the Agent, to enable the Lenders to determine whether Clause 24 (Financial covenants) has been complied with and make an accurate comparison between the financial position indicated in those financial statements and that Obligor's 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 basis upon which the Original Financial Statements were prepared.

 

23.4Year-end

 

No Obligor shall change its financial year-end.

 

23.5Updates to Base Case Financial Model

 

(a)The Borrower must provide to the Agent an updated draft Base Case Financial Model in respect of the Project which includes:

 

(i)a Reserves Statement;

 

(ii)forecast Revenue;

 

(iii)forecast Capital Expenditure;

 

(iv)Economic Assumptions; and

 

(v)Technical Assumptions,

 

at the following times:

 

(i)on each anniversary following the date of initial Utilisation of Facility A;

 

(ii)at any time to the extent necessary to reflect any material change to the Economic Assumptions or Technical Assumptions or any other change for which approval is sought, such as when the Life of Mine Plan or Reserves are updated;

 

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(iii)for the purposes of evidencing that the Borrower is permitted to increase the amount of hedging permitted under the Approved Hedging Programme or to make Permitted Acquisitions or enter Permitted Joint Ventures;

 

(iv)if, after consultation with the Borrower, the Agent (acting on the instructions of the Majority Lenders) considers a review is required because of any circumstance or matter which may have affected the accuracy or efficacy of the Base Case Financial Model; and

 

(v)if there is an estimated material change to the then existing Base Case Financial Model for example upon the occurrence of a mandatory prepayment event under clause 9.3 (Review Event) or 9.4 (Other mandator prepayment events) or an Event of Default under clause 28 (Events of default).

 

(b)The Borrower will promptly provide the Agent with all information relevant to or reasonably requested by the Agent in order to enable the Lenders to conduct the review of the draft Base Case Financial Model.

 

(c)If there is any disagreement between the Borrower and the Agent about the economic or technical assumptions in the Base Case Financial Model the Agent agrees to consult with the Borrower in good faith as to any disagreement regarding the relevant assumptions and projections and to seek the advice of an Independent Technical Expert.

 

(d)If, after the consultation under sub-Clause (c), the Agent and the Borrower, with reference to the advice of an Independent Technical Expert, are unable to reach an agreement, the Agent will make a determination with respect to the relevant assumption and projection and such determination shall, in the absence of manifest error, be final and binding upon the parties.

 

(e)On receipt of that determination the Borrower must promptly revise the draft Base Case Financial Model and provide the Agent with an updated draft Base Case Financial Model. That revision must:

 

(i)if the change relates to assumptions, be consistent with the basis for determining these under the previous draft Base Case Financial Model and reflect any determination of assumptions and projections under sub-Clause (d); and

 

(ii)be limited to changes that are required:

 

(A)where the Base Case Financial Model shows that the ratios set out in Clause 24.1 (Financial covenants) will not be complied with; or

 

(B)as necessary to address concerns raised by the Agent that the changes proposed to the Base Case Financial Model are not reasonable in terms of the assumptions in the Base Case Financial Model;

 

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(iii)be based on the principles and methodology used in preparing the initial Base Case Financial Model; and

 

(iv)subject to paragraph (ii), be agreed by the Agent.

 

(f)The Borrower will provide the Agent with an electronic copy of the revised Base Case Financial Model promptly after any revision is agreed.

 

(g)If, on any date on which a revised Base Case Financial Model is delivered to the Agent under this clause 23.5, the Facility A Loan would not be fully amortising over a notional 5 year loan life (commencing on Financial Close) sculpted to a Debt Service Cover Ratio of 1.50x, the Facility A Repayment Schedule will be amended (by the Agent acting on the instructions of the Majority Lenders) from such date so that the Facility A Loan is fully amortising over a notional 5 year loan life (commencing on Financial Close) sculpted to a Debt Service Cover Ratio of 1.50x.

 

23.6Annual reporting

 

(a)Annual Independent Environmental and Social Report

 

On each anniversary following the date of initial Utilisation of Facility A, the Borrower must provide to the Agent a report from the Environment and Social Expert outlining compliance with Environmental Laws and Social Laws, environmental and social impact assessment and related programs and plans, tailing storage facility reviews, issues, breaches, plans, Scope 1 and 2 emissions together with emissions reduction plans.

 

(b)Annual Operating Budget and Life of Mine Plan

 

(i)No less than 30 days before the start of each financial year of the Borrower, the Borrower must provide to the Agent, its Annual Operating Budget and Life of Mine Plan.

 

(ii)Any Life of Mine Plan provided under this clause 23.6 will be reviewed by the Agent and must meet with the Agent's approval (acting on the instructions of the Majority Lenders). If the Agent does not approve of the Life of Mine Plan, the Obligors must continue to comply with the previous Life of Mine Plan and references in the Finance Documents to the Life of Mine Plan will be to the previous Life of Mine Plan.

 

(c)Annual Reserves Statement

 

On each anniversary following the date of initial Utilisation of Facility A, the Borrower must provide to the Agent an updated Reserves Statement.

 

23.7Quarterly operating report

 

At the same time as delivery of any Compliance Certificate under clause 23.2 (Provision and contents of Compliance Certificate), the Borrower must provide to the Agent its quarterly operating report (in substantially the form approved by the Agent before Financial Close).

 

 

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23.8Information: miscellaneous

 

The Borrower shall supply to the Agent (in sufficient copies for all the Lenders):

 

(a)all documents dispatched by an Obligor to its shareholders (or any class of them) or its creditors generally (or any class of them) at the same time as they are dispatched;

 

(b)promptly upon becoming aware of them, the details of any litigation, arbitration or administrative proceedings or Environmental Claims which are current, threatened or pending against any member of the Group, and which, if adversely determined, could reasonably be expected to have a Material Adverse Effect;

 

(c)promptly upon becoming aware of them, the details of:

 

(i)any judgment or order of a court, arbitral tribunal or other tribunal;

 

(ii)any order or sanction of any governmental or other regulatory body which is made against any member of the Group;

 

(iii)any claims with respect to Sanctions;

 

(iv)any revised Reserves Statements;

 

(v)any material changes to the Life of Mine Plan or Annual Operating Budget;

 

(vi)any material damage to any asset;

 

(vii)any material Environmental Permit change;

 

(viii)any changes to Material Contracts;

 

(ix)any unscheduled stoppages to mining or processing for more than 14 days;

 

(x)any Native Title Claims;