Exhibit 10.1


 


CERTAIN INFORMATION HAS BEEN EXCLUDED FROM THIS EXHIBIT BECAUSE IT
IS BOTH NOT MATERIAL AND WOULD LIKELY CAUSE COMPETITIVE HARM TO THE REGISTRANT
IF PUBLICLY DISCLOSED. THE OMITTED PORTIONS OF THIS DOCUMENT ARE INDICATED BY
[***].





	
  Dated:           11 September 2019

  Amendment Agreement

  Syndicated Facility Agreement

  Parties

  Each entity listed in Schedule 1

  (Obligors) 

  Westpac Banking Corporation (ABN 33 007
  457 141) 

  (Agent) 

   

  Westpac Administration Pty Limited (ACN 008 617 203)

  (Security
  Trustee) 

  
	
  Norton Rose Fulbright
  Australia

  Level 18,
  Grosvenor Place

  225 George
  Street

  Sydney, NSW
  2000

  Tel:  +61 02 9330
  8000

  nortonrosefulbright.com

  Our ref:  4008970

   

  









 






      










      





	
  Contents

  
	 	 	 
	
  1

  	
  Definitions
  and interpretation

  	
  1

  
	
  2

  	
  Capacity

  	
  2

  
	
  3

  	
  Amendments

  	
  3

  
	
  4

  	
  Fees

  	
  3

  
	
  5

  	
  Representations

  	
  3

  
	
  6

  	
  Confirmations
  and acknowledgements

  	
  4

  
	
  7

  	
  Conditions
  subsequent

  	
  5

  
	
  8

  	
  General

  	
  7

  
	
  9

  	
  Counterparts

  	
  7

  
	
  10

  	
  Attorney

  	
  7

  
	
  11

  	
  Governing
  law

  	
  7

  
	
  12

  	
  Consideration

  	
  8

  
	
  Schedule 1
  Obligors

  	
  9

  
	
  Schedule 2
  Conditions precedent

  	
  11

  
	
  Schedule 3
  Effective Date Certificate

  	
  13

  
	
  Signature
  pages

  	
  14

  
	
  Annexure A
  Amended Facility Agreement

  	
  19

  









 






	
   Coronado
   - 2019 Amendment

   Agreement
   – EXECUTION VERSION -11 September(3)_

   	
    

   	
   © Norton Rose Fulbright
   Australia

   




  










      




Agreement made on                          2019


 


Parties


Each entity
listed in Schedule 1 (Obligors)  


Westpac
Banking Corporation (ABN 33 007 457 141) for
itself and as agent for the Lenders (Agent)  


Westpac
Administration Pty Limited (ACN 008 617 203) for itself and the Beneficiaries (Security
Trustee) 


 


Introduction


A    The Obligors and the Agent are party to the Facility Agreement.


B    The Obligors and the Security Trustee are party to the Security Trust
Deed.


C    Other financial institutions acceded to the Facility Agreement as Lenders
under a Syndication Transfer Certificate dated 7 December 2018.


D    The Parties have agreed to amend the terms of the Facility Agreement in
accordance with the terms of this document.


E    It is the Parties’ intention that the amendments to the terms of the
Facility Agreement under this document do not rescind or replace the Facility
Agreement and that, save for the amendments in this document, the Parties’
rights and obligations under the Facility Agreement remain in full force and
effect.


F    The Agent has been authorised under clause 39 (Amendments and Waivers)
of the Facility Agreement to effect the amendments to the Facility Agreement
set out in this document, for itself and as agent for all the Lenders.


It is agreed


1    Definitions
and interpretation


1.1    Specific
Definitions


In this document:


(1)    Amended Facility Agreement means: 


(a)    before the Effective Date, the
document attached as an Annexure to this document; and


(b)    after the Effective Date, the
Facility Agreement as amended by this document.


(2)    Conditions Precedent
means every item listed in Schedule 2 (Conditions Precedent) in
form and substance satisfactory to the Agent acting on the instructions of all
Lenders.


(3)    Effective Date means the
date described as such in an Effective Date Certificate.



 

 


 



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(4)    Effective Date Certificate
means a certificate substantially in the form of Schedule 3 (Effective
Date Certificate), signed by the Agent. 


(5)    Facility Agreement means
the Syndicated Facility Agreement dated 15 September 2018 between the
Obligors, the Agent, and Westpac Banking Corporation (ABN 33 007 457 141) as
“Arranger” and “Original Lender”.


(6)    Party means a party to
this document (including each Lender, who is a party through the Agent, and
each Beneficiary, who is a party through the Security Trustee) and includes its
successors in title, permitted assigns and permitted transferees.


(7)    Security Trust Deed means
the deed entitled "Security Trust Deed" dated 23 October 2018 and made between,
among others, the Borrower and the Security Trustee as amended from time to
time.


1.2    Other definitions


Terms defined in the Amended Facility Agreement
have the same meaning in this document (including by reference to another
document), unless the context requires otherwise.


1.3    Interpretation


Clause 1.2 (Construction) of the Amended
Facility Agreement applies as if incorporated into this document or in any
notice given under or connection with this document as if all references in
that clause to the Facility Agreement are a reference to this document or the
notice.


1.4    Designation as Finance Document


This Parties acknowledge and agree that this
document is a “Finance Document” for the purpose of the Facility Agreement and
the Amended Facility Agreement.


2    Capacity


2.1    Representative capacity


Pursuant to:


(1)    clause 39.1 (Required consents)
of the Facility Agreement, the Agent enters into this document in its own
capacity and on behalf of each Finance Party (other than the Security Trustee);
and


(2)    clause 8.1 (Required Consents)
of the Security Trust Deed, the Security Trustee enters into this document in
its own capacity and on behalf of each Beneficiary,


to effect the amendments contemplated in this document.


2.2    Security Trustee limitation of liability


Clauses 1.5 (Security Trustee
limitation of liability) and 1.6 (Liability must be limited and must
be indemnified) of the Amended Facility Agreement apply as if set out in
full in this document, with this document as a ‘Finance Document’.



 

 






 2 










      




3    Amendments


3.1    Amendment of the Facility Agreement


On and from the Effective Date:


(1)    the Facility Agreement is
amended so as to be in the form of the document comprising Annexure A to
this document; and


(2)    each Party is bound by the
Facility Agreement as amended by this document.


3.2    References in Finance
Documents


The Parties agree that references in the
Finance Documents to the Facility Agreement (however defined) are references to
the Facility Agreement as amended by this document.


3.3    Effective Date
Certificate


The Agent agrees to give the Borrower a duly completed Effective Date Certificate as soon
as practicable after receipt of the last Condition Precedent in form and
substance satisfactory to it.


4    Fees


4.1    Consent
Fee


The Borrower must pay to the Agent: 


(1)    on account of the Facility A
Lenders (proportionate to their participation in Facility A as at the Effective
Date) a consent fee in the amount of US$[***], being [***]% of the Total
Facility A Commitments of US$350,000,000; and


(2)    on account of the Facility B
Lenders (proportionate to their participation in Facility B as at the Effective
Date) a consent fee in the amount of A$[***], being [***]% of the Total
Facility B Commitments of A$370,000,000.


4.2    Participation
Fee


The Borrower must pay to the Agent on account
of the Facility C Lenders (proportionate to their participation in Facility C
as at the Effective Date) a participation fee in the amount of US$[***], being
[***]% of the Total Facility C Commitments of US$200,000,000.


4.3    When
payable  


The fees described in clauses 4.1 and 4.2 are
payable in full on or before the Effective Date, against a tax invoice rendered
by the Agent.  These fees are non-refundable.


5    Representations


Each Obligor represents and warrants, on the
date of this document and again on the Effective Date, in relation to itself
that:


(1)    each of its representations and
warranties in the Finance Documents is true and correct (with this document
being a “Finance Document” on both those dates); and



 

 


 



 3 










      




 


(2)    no Default or Review Event is
continuing, with respect to the facts and circumstances existing as at those
dates.


6    Confirmations
and acknowledgements


6.1    Confirmation


The Parties confirm and agree that:


(1)    subject to clause 3.1 (Amendment
of the Facility Agreement), the Finance Documents remain in full
force and effect; 


(2)    the amendment of the Facility
Agreement does not affect the enforceability or validity of the Finance
Documents; 


(3)    the guarantee in clause 20 (Guarantee)
of the Facility Agreement and clause 21 (Guarantee) of the Security
Trust Deed extends to the obligations of the Obligors under this document and
under the Amended Facility Agreement;


(4)    the “Secured
Money” under the Transaction
Security includes the obligations of the
Obligors under this document and under the Amended Facility Agreement; 


(5)    each of this document and the
Amended Facility Agreement is a “Finance Document” for the purposes of the
Facility Agreement and the other Finance Documents; 


(6)    except as expressly stated,
nothing in this document:


(a)    constitutes or effects a
termination or a repayment and readvance of any Loan or Bank Guarantee
outstanding on the date of this document or the Effective Date and all of those
Loans and Bank Guarantees
continue under the Facility Agreement as amended by this document;


(b)    prejudices or adversely affects
any right, power, discretion or remedy arising under any Finance Document
before the Effective Date; or


(c)    discharges, releases or
otherwise affects any liability or obligation arising under any Finance
Document before the Effective Date; and 


(7)    nothing in this document
restates the Facility Agreement.


6.2    Inconsistencies


Subject to the terms of this document, if there is a
conflict or inconsistency between the Finance Documents and this document, the
terms of this document prevail to the extent of the conflict or inconsistency. 



 

 






 4 










      




7    Conditions subsequent


7.1    Without limitation to the rights
of the Finance Parties under the Finance Documents (including clauses 4.5 (Conditions
subsequent – other) and clause 24.21 (Real Property Mortgages) of
the Facility Agreement), the Obligors undertake to:


(1)    provide to the Agent an updated
‘Real Property – USA’ Mortgage table, prepared by the Obligors (the “Mortgage
Table”), within 20 Business Days after the Effective Date in a form
approved by the Agent that includes the following columns: 


(a)    Real Property – USA owned or
leased by an Obligor;


(b)    Entity of Record;


(c)    Leasehold or Freehold;


(d)    Lessor (if applicable);


(e)    Consent to mortgage or amend
mortgage required (yes / no), including, if yes, references to applicable
section(s) requiring consent and, if the Agent requests it, attaching the lease
or consent document to which the applicable section(s) relate or, if acceptable
to the Agent, either extracts of such documents or such other information
substantiating the requirement for consent;


(f)    Consent obtained (yes / no / not
applicable), including if yes, a copy of the consent obtained (but a copy of a
consent need only be provided once);


(g)    Mortgage recorded (yes / no);
and


(h)    Comments, including detailed
particulars of efforts made to obtain any consents and, where a necessary
consent has not been obtained, the Obligors’ assessment of the prospects of
obtaining that consent with further reasonable commercial endeavours;


(2)    except in relation to a Relevant
Asset in respect of which the Agent has agreed a request under clause 7.3, prepare
and issue within 20 Business Days after the Effective Date, communications to
parties from whom consent is required as identified in the Mortgage Table and
provide a copy of that communication to the Agent within 5 Business Days after
issuing that communication;


(3)    provide to the Agent an updated
Mortgage Table, including an updated “Comments” column, within 5 Business Days
after the end of each calendar quarter, commencing the quarter ending 31
December 2019, until otherwise agreed between the Obligors and the Agent;


(4)    except in relation to a Relevant
Asset in respect of which the Agent has agreed a request under clause 7.3,
prepare follow up communications (including communications to responses that
may have been received from the communications referred to in clause 7.1(2)) to
parties from whom consent is required as identified in the Mortgage Table, no
less frequently than quarterly after the Effective Date until further notice
from the Agent;


(5)    upon written request from the
Agent, ensure that any communications issued pursuant to clause 7.1(2) and
clause 7.1(4) are in a form and substance reasonably satisfactory to the Agent;



 

 


 



 5 










      




(6)    where a consent is required from
a party that has a consent right (as identified in the Mortgage Table), use
reasonable commercial endeavours, to pursue a consent that extends to future
increased liabilities under the Finance Documents or that otherwise avoids the
need to obtain subsequent consents for such increases; 


(7)    not register any mortgage or
deed of trust with a liability cap that is less than the aggregate Commitments
under the Facility Agreement without approval by the Agent of the amount of the
liability cap.  If the Agent does not approve any proposed liability cap and
consent required for a mortgage or deed or trust is conditional on that
liability cap, for the avoidance of doubt, it will not be an Event of Default
but the obligation of the Obligors to use reasonable commercial endeavours to
have that cap removed or increased to no less than the aggregate Commitments
under the Facility Agreement is, subject to clause 7.3, ongoing;


(8)    for all (A) Real Property - USA owned
(or leased without a consent requirement) by an Obligor (“Non-Consent
Property”) or (B) leasehold Real Property - USA for which consent to
mortgage has been obtained, within 20 Business Days after the Effective Date:


(a)    grant a mortgage or deed of
trust (if one has not already been granted);


(b)    have that mortgage or deed of
trust recorded on any applicable registers; and


(c)    have the mortgages or deeds of
trust up-stamped and tax paid as required by law.


(9)    for all Real Property - USA
other than Non-Consent Property in respect of which mortgages or deeds of trust
are currently granted to a Finance Party, use reasonable commercial endeavours
after the Effective Date to:


(a)    amend those mortgages or deeds
of trust to reflect the increased facility limits and the extension of the
termination date (and other material changes) in the amendments described in
clause 3 (Amendments) and, subject to approval by the Agent, with headroom as
may be agreed between the parties for any future increased liabilities under the
Finance Documents or in a manner (including liability caps) to avoid the need
to obtain subsequent consents;


(b)    obtain any necessary consents
for such amendments;


(c)    have those amendments recorded
on any applicable registers; and


(d)    have the mortgages or deeds of
trust up-stamped and tax paid as required by law.  


(10)    for all Non-Consent Property,
within 40 Business Days after the Effective Date:


(a)    amend all mortgages or deeds of
trust currently granted to a Finance Party, in each case to reflect the
increased facility limits and the extension of the termination date (and other
material changes)  in the amendments described in clause 3 (Amendments) and,
subject to approval by the Agent, with headroom as may be agreed between the
parties for any future increased liabilities under the Finance Documents;


(b)    have those amendments recorded
on any applicable registers; and 



 

 


 



 6 










      




(c)    have the mortgages or deeds of
trust up-stamped and tax paid as required by law.


7.2    A
failure to comply with an undertaking in clause 7.1 within 10 Business Days
after the due date will be a Review Event for the purposes of the Facility
Agreement and clause 9.8 (Review Event) of the Facility Agreement will
apply.


7.3    The Obligors may at any time
provide a certificate to the Agent in relation to (A) a Relevant Asset and a
Security Consent needed to be able to satisfy a condition subsequent under
clause 4.5 (Conditions subsequent – other) of the Facility Agreement in
relation to specific Security over that Relevant Asset, or (B) an amendment or
consent described in clause 7.1(9), or (C) the removal or amendment of a
liability cap under clause 7.1(7):


(1)    stating that, having regard to
steps taken both before and after the Effective Date, the Obligors have
exhausted reasonable commercial endeavours to obtain the relevant consent or
amendment and genuinely and reasonably believe that consent or amendment will
not be forthcoming, regardless of further efforts or endeavours on the part of
the Obligors (taking into account the last sentence of clause 4.5(d) of the
Facility Agreement); and


(2)    requesting that the Agent
(acting on the instructions of the Majority Lenders) waive until further notice
(and without limitation to clause 4.5(c)(iii) of the Facility Agreement) the
requirement to obtain, or to continue to use reasonable commercial endeavours
to obtain, that consent, and to provide specific Security over the Relevant
Asset, or procure the relevant amendment (as the case may be).


The Agent will agree to that request if it and the Majority
Lenders, acting reasonably, are satisfied that the relevant consent or
amendment will not be forthcoming for the time being regardless of further
efforts or endeavours on the part of the Obligors (taking into account the last
sentence of clause 4.5(d) of the Facility Agreement).  If the Agent and the
Majority Lenders do not agree to that request, the Agent must provide reasons
and describe to the Obligors what further reasonably obtainable information it
and the Majority Lenders require in order to be so satisfied.


8    General


Clauses 19 (Costs and Expenses), 35 (Notices),
37 (Partial invalidity), 38
(Remedies and waivers), 39.1 (Required consents) and 48 (Enforcement)
of the Amended Facility Agreement apply to this document as if they were fully
set out in this document, with necessary changes for context. 


9    Counterparts


This document may consist of a number of copies each signed
by one or more parties to this document. If so the signed copies are treated as
making up the one document. 


10    Attorney


If an attorney executes this document, the attorney
declares that the attorney has no notice of revocation, termination or
suspension of the power of attorney under which the attorney executes this
document.


11    Governing law


This document is governed by Queensland law and each Party irrevocably submits to the
non-exclusive jurisdiction of the courts of that place.



 

 






 7 










      




12    Consideration


The Agent for itself and as agent for the Lenders, and the
Security Trustee for itself and the Beneficiaries, have agreed to enter into
this agreement at the request of the Obligors, and all Parties acknowledge that
they have received good and valuable consideration.


 


Executed as an agreement and delivered on the date shown on the
first page.


 





 8 










      




Schedule 1

Obligors


 


[***]


 


 





 






 9 










      




Schedule 2

Conditions precedent


[***]


 


 


11



 

 





      










      




Schedule 3

Effective
Date Certificate


[***]


 


 


 


13



 

 






      










      




Signature
pages


Obligors


 


	
  Signed for and on behalf of CORONADO FINANCE PTY LTD by
  its attorney Ayten Saridas under power of attorney dated 

  5 June 2019

   in the presence of:

  	
   

  	
  /s/ Ayten Saridas

  
	
  /s/ Ben Pentelow

  	
   

  	
   

  
	
  Signature of witness

  	
   

  	
   

  
	
  Ben Pentelow

  General Counsel - Australia

  	
   

  	
   

  
	
  Name of witness (BLOCK LETTERS)

  	
   

  	
   

  
	
  [***]

  	
   

  	
   

  
	
  Address of
  witness

  	
   

  	
   

  






 


	
   

  	
   

  	
  CORONADO GLOBAL RESOURCES, INC

  
	
   

  	
   

  	
  By: /s/ Ayten Saridas

  
	
   

   

   

   

   

   

  	
   

  	
  Name: Ayten Saridas

  Title: Authorized Signatory

  






 


 


	
   

  	
   

  	
  CORONADO COAL CORPORATION

  
	
   

  	
   

  	
  By: /s/ Ayten Saridas

  
	
   

   

   

   

   

   

  	
   

  	
  Name: Ayten Saridas

  Title: Authorized Signatory

  






 


 


14



 

 





      










      





	
  Signed for and on behalf of CORONADO AUSTRALIA
  HOLDINGS PTY LTD by its attorney Ayten Saridas under power of attorney
  dated 5 June 2019

  in the presence of:

  	
   

  	
  /s/ Ayten Saridas

  
	
  /s/ Ben Pentelow

  	
   

  	
   

  
	
  Signature of witness

  	
   

  	
   

  
	
  Ben Pentelow

  General Counsel - Australia

  	
   

  	
   

  
	
  Name of witness (BLOCK LETTERS)

  	
   

  	
   

  
	
  [***]

  	
   

  	
   

  
	
  Address of
  witness

  	
   

  	
   

  






 


 


	
  Signed for and on behalf of CORONADO CURRAGH PTY LTD by
  its attorney Ayten Saridas under power of attorney dated 

  5 June 2019

  in the presence of:

  	
   

  	
  /s/ Ayten Saridas

  
	
  /s/ Ben Pentelow

  	
   

  	
   

  
	
  Signature of witness

  	
   

  	
   

  
	
  Ben Pentelow

  General Counsel - Australia

  	
   

  	
   

  
	
  Name of witness (BLOCK LETTERS)

  	
   

  	
   

  
	
  [***]

  	
   

  	
   

  
	
  Address of
  witness

  	
   

  	
   

  






 


	
   

  	
   

  	
  CORONADO COAL LLC

  
	
   

  	
   

  	
  By: /s/ Ayten Saridas

  
	
   

  	
   

  	
  Name: Ayten Saridas

  Title: Authorized Signatory

  






 


	
   

  	
   

  	
  CORONADO II LLC

  
	
   

  	
   

  	
  By: /s/ Ayten Saridas

  
	
   

  	
   

  	
  Name: Ayten Saridas

  Title: Authorized Signatory

  






 


	
   

  	
   

  	
  CORONADO IV LLC

  
	
   

  	
   

  	
  By: /s/ Ayten Saridas

  
	
   

  	
   

  	
  Name: Ayten Saridas

  Title: Authorized Signatory

  






 


15



 

 





      










      





	
  Signed for and on behalf of CURRAGH QUEENSLAND MINING
  PTY LTD by its attorney Ayten Saridas under power of attorney dated 5
  June 2019

  in the presence of:

  	
   

  	
  /s/ Ayten Saridas

  
	
  /s/ Ben Pentelow

  	
   

  	
   

  
	
  Signature of witness

  	
   

  	
   

  
	
  Ben Pentelow

  General Counsel - Australia

  	
   

  	
   

  
	
  Name of witness (BLOCK LETTERS)

  	
   

  	
   

  
	
  [***]

  	
   

  	
   

  
	
  Address of
  witness

   

  	
   

  	
   

  






 


	
  Signed for and on behalf of CURRAGH COAL SALES CO.
  PTY. LTD. by its attorney Ayten Saridas under power of attorney dated 

  5 June 2019

  in the presence of:

  	
   

  	
  /s/ Ayten Saridas

  
	
  /s/ Ben Pentelow

  	
   

  	
   

  
	
  Signature of witness

  	
   

  	
   

  
	
  Ben Pentelow

  General Counsel - Australia

  	
   

  	
   

  
	
  Name of witness (BLOCK LETTERS)

  	
   

  	
   

  
	
  [***]

  	
   

  	
   

  
	
  Address of
  witness

  	
   

  	
   

  






 


	
   

  	
   

  	
  POWHATAN MID-VOL COAL SALES, L.L.C.

  
	
   

  	
   

  	
  By: /s/ Ayten Saridas

  
	
   

  	
   

  	
  Name: Ayten Saridas

  Title: Authorized Signatory

  






 


	
   

  	
   

  	
  MATOAKA LAND COMPANY, LLC

  
	
   

  	
   

  	
  By: /s/ Ayten Saridas

  
	
   

  	
   

  	
  Name: Ayten Saridas

  Title: Authorized Signatory

  






 


	
   

  	
   

  	
  GREENBRIER SMOKELESS COAL MINING, L.L.C.

  
	
   

  	
   

  	
  By: /s/ Ayten Saridas

  
	
   

  	
   

  	
  Name: Ayten Saridas

  Title: Authorized Signatory

  






 


 


16



 

 





      










      





	
   

  	
   

  	
  CORONADO COAL II LLC

  
	
   

  	
   

  	
  By: /s/ Ayten Saridas

  
	
   

  	
   

  	
  Name: Ayten Saridas

  Title: Authorized Signatory

  






 


	
   

  	
   

  	
  CORONADO CURRAGH LLC

  
	
   

  	
   

  	
  By: /s/ Ayten Saridas

  
	
   

  	
   

  	
  Name: Ayten Saridas

  Title: Authorized Signatory

  






 


	
   

  	
   

  	
  BUCHANAN MINING COMPANY LLC

  
	
   

  	
   

  	
  By: /s/ Ayten Saridas

  
	
   

  	
   

  	
  Name: Ayten Saridas

  Title: Authorized Signatory

  






 


	
   

  	
   

  	
  CORONADO VA, LLC

  
	
   

  	
   

  	
  By: /s/ Ayten Saridas

  
	
   

  	
   

  	
  Name: Ayten Saridas

  Title: Authorized Signatory

  






 


	
   

  	
   

  	
  GREENBRIER MINERALS, LLC

  
	
   

  	
   

  	
  By: /s/ Ayten Saridas

  
	
   

  	
   

  	
  Name: Ayten Saridas

  Title: Authorized Signatory

  






 


	
   

  	
   

  	
  MIDLAND TRAIL RESOURCES LLC

  
	
   

  	
   

  	
  By: /s/ Ayten Saridas

  
	
   

  	
   

  	
  Name: Ayten Saridas

  Title: Authorized Signatory

  






 


	
   

  	
   

  	
   
  BUCHANAN MINERALS, LLC

  
	
   

  	
   

  	
  By: /s/ Ayten Saridas

  
	
   

  	
   

  	
  Name: Ayten Saridas

  Title: Authorized Signatory

  






 


 


 


17



 

 





      










      




Agent


 


	
  Signed for and on behalf of Westpac
  Banking Corporation ABN 33 007 457 141 by its
  Attorney under a Power of Attorney dated 17 January 2001, and the Attorney
  declares that the Attorney has not received any notice of the revocation of
  such Power of Attorney, in the presence of: 

   

   

  	
   

  	
   

  	
  /s/ Ruby Gacosta

  
	
  Signature of Attorney

  
	
  /s/ Rohan Morton

  	
   

  	
   

  	
  Ruby Gacosta

  Tier Three Attorney

  
	
  Signature of Witness

  

  Rohan Morton

  Tier Three Attorney

  	
   

  	
   

  	
  Name of Attorney in full

  
	
  Name of Witness
  in full

  	
   

  	
   

  	
   

  






 


 


Security
Trustee


 


	
  Signed for and on behalf of Westpac
  Administration Pty Limited (ACN 008 617 203) by its Attorney under a Power of Attorney dated 3 August
  2016, and the Attorney declares that the Attorney has not received any notice
  of the revocation of such Power of Attorney, in the presence of: 

   

   

  	
   

  	
   

  	
  /s/ Ruby Gacosta

  
	
  Signature of Attorney

  
	
  /s/ Rohan Morton

  	
   

  	
   

  	
  Ruby Gacosta

  
	
  Signature of Witness

  

  Rohan Morton

  Tier Three Attorney

  	
   

  	
   

  	
  Name of Attorney in full

  
	
  Name of Witness
  in full

  	
   

  	
   

  	
   

  






 


 


18



 

 





      










      




Annexure A

Amended Facility Agreement


 


 


 


19





 







      










       




ANNEXURE


 


SECURED MULTICURRENCY
REVOLVING SYNDICATED FACILITY AGREEMENT INCORPORATING MULTICURRENCY BANK
GUARANTEE FACILITY 





(Australian Branch)


 


 


 


SYNDICATED FACILITY AGREEMENT


for


CORONADO FINANCE PTY LTD (ACN
628 668 235)


arranged and underwritten by


WESTPAC
BANKING CORPORATION (ABN 33 007
457 141)


with


WESTPAC
BANKING CORPORATION (ABN 33 007
457 141) 


acting as Agent


 


 


 


NORTON ROSE FULBRIGHT AUSTRALIA

Level 18, Grosvenor Place


225 George Street


Sydney, NSW 2000


Tel:  +61 02 9330
8000


nortonrosefulbright.com

Our ref:  4008970





 






       










       





	
  CONTENTS

  
	
  Clause

  	
  Page

  
	
  1

  	
  Definitions and Interpretation

  	
  1

  
	
  2

  	
  The Facilities

  	
  61

  
	
  3

  	
  Purpose

  	
  61

  
	
  4

  	
  Conditions of Utilisation

  	
  62

  
	
  5

  	
  Utilisation - Loans

  	
  66

  
	
  6

  	
  Utilisation - Bank Guarantees

  	
  67

  
	
  7

  	
  Bank Guarantees

  	
  69

  
	
  8

  	
  Repayment

  	
  73

  
	
  9

  	
  Prepayment and Cancellation

  	
  76

  
	
  10

  	
  Interest

  	
  81

  
	
  11

  	
  Interest Periods

  	
  82

  
	
  12

  	
  Changes to the Calculation of Interest

  	
  83

  
	
  13

  	
  Fees

  	
  85

  
	
  14

  	
  Tax Gross Up and Indemnities

  	
  87

  
	
  15

  	
  US TAX MATTERS

  	
  91

  
	
  16

  	
  Increased Costs

  	
  94

  
	
  17

  	
  Other Indemnities

  	
  95

  
	
  18

  	
  Mitigation by the Finance Parties

  	
  97

  
	
  19

  	
  Costs and Expenses

  	
  97

  
	
  20

  	
  Guarantee

  	
  99

  
	
  21

  	
  Representations

  	
  103

  
	
  22

  	
  Information Undertakings

  	
  114

  
	
  23

  	
  Financial Covenants

  	
  118

  
	
  24

  	
  General Undertakings

  	
  120

  
	
  25

  	
  Events of Default

  	
  130

  
	
  26

  	
  Changes to the Lenders

  	
  137

  
	
  27

  	
  Changes to the Obligors

  	
  143

  






 





 i  










       





	
  28

  	
  Restriction on Debt Purchase Transactions

  	
  145

  
	
  29

  	
  Role of the Agent, the Arranger, the Reference Banks

  	
  147

  
	
  30

  	
  Conduct of Business by the Finance Parties

  	
  157

  
	
  31

  	
  Sharing among the Finance Parties

  	
  157

  
	
  32

  	
  Public Offer

  	
  160

  
	
  33

  	
  Payment Mechanics

  	
  162

  
	
  34

  	
  Set-Off

  	
  166

  
	
  35

  	
  Notices

  	
  166

  
	
  36

  	
  Calculations and Certificates

  	
  171

  
	
  37

  	
  Partial Invalidity

  	
  173

  
	
  38

  	
  Remedies and Waivers

  	
  173

  
	
  39

  	
  Amendments and Waivers

  	
  173

  
	
  40

  	
  Instructions and Decisions

  	
  176

  
	
  41

  	
  Confidentiality

  	
  178

  
	
  42

  	
  PPSA Provisions

  	
  182

  
	
  43

  	
  Confidentiality of Funding Rates and Reference Bank Quotations

  	
  182

  
	
  44

  	
  Counterparts

  	
  184

  
	
  45

  	
  Indemnities and Reimbursement

  	
  184

  
	
  46

  	
  Acknowledgement

  	
  184

  
	
  47

  	
  Governing Law

  	
  185

  
	
  48

  	
  Enforcement

  	
  185

  
	
  Schedule 1 The Original Parties

  	
  187

  
	
  Part I The Original Obligors

  	
  187

  
	
  Part II The Original Lenders

  	
  189

  
	
  Schedule 2 Conditions Precedent

  	
  191

  
	
  Part I Conditions Precedent To Initial Utilisation

  	
  191

  
	
  Part II Conditions precedent required to be delivered by an
  Additional Obligor

  	
  195

  
	
  Part III Form of Verification Certificate

  	
  198

  
	
  Part IV Authorised Officer Certificate

  	
  200

  
	
  Schedule 3 Requests

  	
  202

  






 





 ii  










       





	
  Part I
  Utilisation Request (Facility A or Facility C)

  	
  202

  
	
  Part II Utilisation Request (Facility B)

  	
  203

  
	
  Part III Selection Notice

  	
  205

  
	
  Schedule 4 Form of Transfer Certificate

  	
  206

  
	
  Part I Form of Single Lender Transfer Certificate

  	
  206

  
	
  Part II Form of Syndication Transfer Certificate

  	
  210

  
	
  Schedule 5 Form of Accession Letter

  	
  214

  
	
  Schedule 6 Form of Resignation Letter

  	
  215

  
	
  Schedule 7 Form of Compliance Certificate

  	
  216

  
	
  Schedule 8 Form of Confidentiality Undertaking

  	
  217

  
	
  1

  	
  Confidentiality Undertaking

  	
  217

  
	
  2

  	
  Permitted Disclosure

  	
  217

  
	
  3

  	
  Notification of Disclosure

  	
  218

  
	
  4

  	
  Return of Copies

  	
  218

  
	
  5

  	
  Continuing Obligations

  	
  218

  
	
  6

  	
  No Representation; Consequences of Breach, etc

  	
  219

  
	
  7

  	
  Entire Agreement: No Waiver; Amendments, etc

  	
  219

  
	
  8

  	
  Inside Information

  	
  219

  
	
  9

  	
  Nature of Undertakings

  	
  219

  
	
  10

  	
  Governing Law and Jurisdiction

  	
  219

  
	
  11

  	
  Definitions

  	
  220

  
	
  Schedule 9 Timetables

  	
  222

  
	
  Schedule 9A Screen Rate Contingency Periods

  	
  223

  
	
  Schedule 10 Real Property

  	
  224

  
	
  Schedule 11 Restructure - Steps Paper

  	
  236

  






 





 






 iii  










       




THIS AGREEMENT is between:


(1)    CORONADO FINANCE PTY
LTD (ACN 628 668 235) (Original Borrower)   


(2)    THE ENTITIES listed in
Part I of Schedule 1 as original guarantors
(the Original Guarantors) 


(3)    CORONADO GLOBAL RESOURCES, INC (the Parent)  


(4)    WESTPAC BANKING CORPORATION (ABN
 33 007 457 141) as mandated lead arranger,
underwriter and bookrunner (the Arranger) 


(5)    THE ENTITIES listed in
Part II of Schedule 1 as lenders (the Original
Lenders) 


(6)    WESTPAC BANKING CORPORATION (ABN
 33 007 457 141) (the Agent) 


IT IS AGREED as follows:


SECTION 1


INTERPRETATION


1.    Definitions and Interpretation


1.1    Definitions


In this Agreement:


ABL Facility  means the facility provided under the
Asset-Based Revolving Credit Agreement, dated as of June 6, 2017, as amended as
of the effective date of 29 March 2018, among Coronado Group LLC and related
entities, Bank of America, N.A., and certain lenders and issuing banks.


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


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


Additional Borrower means a company which becomes an Additional
Borrower in accordance with Clause 27 (Changes to the Obligors).


Additional Guarantor means a company which becomes an Additional
Guarantor in accordance with Clause 27 (Changes to the Obligors).



 

 






 1  










       




Additional
Obligor means an Additional Borrower or an
Additional Guarantor.


Affiliate means, in relation to any person, a Subsidiary of that
person or a Holding Company of that person or any other Subsidiary of that Holding
Company.


Agent's Spot Rate
of Exchange means:


(a)    in relation to
Australian dollars at any time, the rate of exchange to buy US dollars with
Australian dollars as determined by reference to Bloomberg's page 'WMFXAU10
Index' average rate being the "Australian Hedge Settlement Rate" at
that time.  If for any reason the rate is not displayed, the rate will be the
Agent’s spot rate of exchange for the purchase of US dollars with Australian
dollars at or around 11:00am on the relevant day; and


(b)    in relation to United
States dollars and Facility B, at any time the spot rate of exchange to buy Australian
dollars with US dollars as determined by reference to Bloomberg’s page ‘BGN
USDAUD CURNCY’ close rate for value on the relevant date.   If for any reason
the rate is not displayed, the rate will be the Agent’s spot rate of exchange
for the purchase of Australian dollars with US dollars at or around 11:00am on
the relevant day.


A-IFRS means the Australian equivalents of the
international financial reporting standards issued by the International
Accounting Standards Board, as in effect from time to time.


Amendment Effective Date means the “Effective Date” under an amending
agreement executed between the parties in September 2019.


Anti-Corruption Laws means all applicable laws, rules and regulations relating
to bribery or corruption, including the US Foreign Corrupt Practices Act of
1977 (US), as amended (FCPA), the UK Bribery Act 2010 (UK) and any other
applicable anti-corruption or anti-bribery laws.


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.


ASX means the Australian Securities Exchange
Limited and the equity securities exchange is manages.


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


Australian Mining
Tenement means Mining Lease Numbers 1878, 1990, 80010, 80011, 80012,
80086, 80110, 80112, 80123, 80171, 700006, 700007, 700008 and 700009 and
Mineral Development Licence Numbers 162, 328 and 329 and any renewals,
extensions and amendments thereof and any tenements issued to Coronado Curragh
Pty Limited in place thereof or over any part of the area covered by the
foregoing tenements any other
mining tenement issued to an Obligor that is not a Project Asset and any other
mining tenement as



 

 





 2  










       




agreed for the
purposes of this definition between the Parent and Agent or otherwise the
subject of a Mining Tenement Security, from time to time.


Australian Mortgage means
each real property mortgage granted by an Obligor over leasehold and freehold real property
interests in Australia.


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).


Authorised Officer means:


(a)    in
respect of an Obligor, any director or secretary, or the chief executive
officer or group chief financial officer, of such Obligor, or any person from
time to time nominated as an Authorised Officer by it by an Authorised Officer
Certificate or notice to the Finance Parties accompanied by certified copies of
signatures of all new persons so appointed (and in respect of which the
identity of that person has been verified to each Finance Party's satisfaction
in order to manage its anti-money laundering, counter-terrorism financing or
“know your customer” laws or economic and trade sanctions risk or to comply
with any laws or regulations in Australia or any other country and the Agent
has not received notice of revocation of the appointment); and


(b)    in
respect of each Finance Party, any person whose title or acting title includes
the word, Head, Director, Manager or President  or a
person performing the functions of any of them, any attorney appointed by that
Finance Party and any other person appointed by that Finance Party to act as
its authorised officer for the purpose of this Agreement.


Authorised Officer  Certificate  means a
properly executed certificate in the form in Part IV of Schedule 2 (Authorised
Officer Certificate). 


Authorisation  means:


(a)    an
authorisation, consent, approval, resolution, licence, 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.


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


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



 

 






 3  










       




(b)    in
relation to any proposed Utilisation, the Base Currency 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 A or Facility C only, that Lender's participation in any Facility A Utilisations or
Facility C Utilisations (as the case may be) that are due to be repaid or
prepaid on or before the proposed Utilisation Date.


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


Availability Period
means the period from and including the
Facility Initiation Date to and including the date falling one Month
before the Termination Date. 


Bank Guarantee means a
letter of credit, bank guarantee, performance bond or other instrument in the
form requested by the Borrower and agreed by an Issuing Bank.


Bankruptcy Law means Title 11 of the United States Code (11 USC. § 101 et
seq.) and all other liquidation, conservatorship, bankruptcy, general
assignment for the benefit of creditors, moratorium, rearrangement, receivership,
insolvency, reorganization or similar debtor relief laws of the
United States from time to time in effect and affecting the rights of creditors
generally.


Base Currency Amount
means, in relation to a Utilisation, the amount specified in the Utilisation
Request delivered by a Borrower for that Utilisation or:


(a)    if, in relation to Facility A,
the amount requested is not denominated in the Facility A Base Currency, that
amount converted into the Facility A Base Currency at the Agent’s Spot Rate of
Exchange:


(i)    for a proposed Facility A
Utilisation, on the date which is three Business Days before the Utilisation
Date (or if later, on the date the Agent receives the Utilisation Request) of
that proposed Facility A Utilisation; and


(ii)    in relation to an outstanding
Facility A Utilisation, on the date the Agent receives a Utilisation Request in
respect of any proposed new Facility A Utilisation,


adjusted to reflect any repayment, prepayment,
consolidation or division of a Facility A Utilisation; and


(b)    if, in relation to Facility B,
the Bank Guarantee requested is not denominated in the Facility B Base
Currency, the amount of that Bank Guarantee converted into the Facility B Base
Currency at the Agent’s Spot Rate of Exchange:


(i)    for a proposed Bank Guarantee,
on the date which is three Business Days before the Utilisation Date (or if
later, on the date the Agent receives the Utilisation Request) of that proposed
Bank Guarantee; and



 

 





 4  










       




(ii)    in
relation to an outstanding Bank Guarantee, on the date the Agent receives a
Utilisation Request in respect of any proposed new Bank Guarantee;


(c)    if, in relation to Facility C,
the amount requested is not denominated in the Facility C Base Currency, that
amount converted into the Facility C Base Currency at the Agent’s Spot Rate of
Exchange:


(i)    for a proposed Facility C
Utilisation, on the date which is three Business Days before the Utilisation
Date (or if later, on the date the Agent receives the Utilisation Request) of
that proposed Facility C Utilisation; and


(ii)    in relation to an outstanding
Facility C Utilisation, on the date the Agent receives a Utilisation Request in
respect of any proposed new Facility C Utilisation,


adjusted to reflect any repayment, prepayment,
consolidation or division of a Facility C Utilisation.


BBSY Bid means in relation to any Loan in Australian dollars:


(a)    the
applicable Screen Rate as of the Specified Time for Australian dollars and,
subject to Clause 11.1(e) (Selection of Interest Periods), for a period
equal in length to the Interest Period of that Loan; or


(b)    as
otherwise determined pursuant to Clause 12.1 (Unavailability of Screen Rate), 


and if, in
either case, that rate is less than zero, BBSY Bid shall be deemed to be zero.


Beneficial
Ownership Certification means a certification regarding beneficial ownership as required by
the Beneficial Ownership Regulation.


Beneficial Ownership Regulation means 31 C.F.R. § 1010.230.


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


Benefit Arrangement 
means an "employee benefit plan," within the meaning of
Section 3(3) of ERISA, which is neither a Plan nor a Multiemployer Plan and which is
maintained, sponsored or contributed to by any member of the ERISA Group.


Benefit Plan means any of (a) an “employee benefit plan” (as defined in
ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of
the Code or (c) any Person whose assets include (for purposes of ERISA Section
3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the
Code) the assets of any such “employee benefit plan” or “plan”.


Black Lung Act means
collectively, the Black Lung Benefits Revenue Act of 1977, as amended and the
Black Lung Benefits Reform Act of 1977, as amended.


Borrower means an
Original Borrower or an Additional Borrower unless it has ceased to be a
Borrower in accordance with Clause 27 (Changes to the Obligors).



 

 






 5  










       




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.


Break Costs means the amount (if any) by which:


(a)    the interest (excluding the Margin) which a Lender should have received for the period from the
date of receipt of all or any part of its participation in a Loan or Unpaid Sum
to the last day of the current Interest Period in respect of that Loan or
Unpaid Sum, had the principal amount or Unpaid Sum received been paid on the
last day of that Interest Period;


exceeds:


(b)    the
amount which that Lender would be able to obtain by placing an amount equal to
the principal amount or Unpaid Sum received by it on deposit with a leading
bank in the Relevant Market or acquiring a bill of exchange accepted by a
leading bank for a period starting on the Business Day following receipt or
recovery and ending on the last day of the current Interest Period.


It is an
amount payable in lieu of interest which would otherwise have been paid and is payable in the same currency as the
relevant Loan or Unpaid Sum.


Buchanan Mine means the Obligors’ underground mine located near the town
of Oakwood in Buchanan County, in the State of Virginia, in the United States
of America. 


Business Day means a
day (other than a Saturday or Sunday) on which banks are open for general
business in Sydney and Brisbane and, for transactions to be effected or amounts owing in US dollars, London, New York, Brisbane and Sydney.  


CAH Loan Agreement means the loan agreement dated 29 March 2018
between Coronado Curragh Pty Limited, Curragh Queensland Mining Pty Ltd, Curragh Coal Sales
Co. Pty. Ltd. and Coronado Australia Holdings Pty Limited.


Change of Control means, after the Listing Date, the occurrence of any of
the following: 


(a)    any “person” or “group” (as such terms are used in Sections
13(d) and 14(d) of the Exchange Act), including any group acting for the
purpose of acquiring, holding or disposing of Securities (within the meaning of
Rule 13d under the Exchange Act) (in each case other than the Energy &
Minerals Group and its Affiliates) shall be the “beneficial owner” (as defined
in Rules 13d-3 and 13d-5 under the Exchange Act) of Capital Stock having more,
directly or indirectly, than 50% of the total voting power of all outstanding
Capital Stock of Parent; or


(b)    any person alone or together with its associates (as
defined in section 12 of the Corporations Act) other than the Energy &
Minerals Group and its Affiliates has voting power (as defined in s610 of the
Corporations Act) in the Parent of more than



 

 





 6  










       




50%, or otherwise controls the
Parent (where, in this paragraph (ii), “control” has the meaning given in s50AA
of the Corporations Act). 


For the purposes of this definition: 


Affiliate as to any
Person shall mean any other Person which directly or indirectly controls, is
controlled by, or is under common control with such Person. Control, as used in
this definition, shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
Person, whether through the ownership of voting securities, by contract or
otherwise, including the power to elect a majority of the directors or trustees
of a corporation or trust, as the case may be.


Capital Stock shall
mean with respect to any Person, any and all shares, interests, rights to
purchase, warrants, options, participations or other equivalents of or
interests in (however designated) equity of such Person, including any
preferred stock, any limited or general partnership interest and any limited
liability company membership interest.


Coal Act means the
Coal Industry Retiree Health Benefits Act of 1992, as amended.


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


Commodity Exchange Act means the Commodity Exchange Act (7 U.S.C. § 1 et seq.),
as amended from time to time, and any successor statute.


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


Compulsory Acquisition 
means an actual or proposed compulsory acquisition, resumption, appropriation
or confiscation of, or freezing, restraining or forfeiture order in connection with, assets
under legislation or otherwise, including a restriction or order under which
compensation is payable in connection with assets.


Confidential Information means all information relating to a Borrower, 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
Group Member or any of its advisers; or


(b)    another
Finance Party, if the information was obtained by that Finance Party directly
or indirectly from any Group Member 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:



 

 






 7  










       




(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 41 (Confidentiality);
or


(B)    is
identified in writing at the time of delivery as non-confidential by any Group
Member 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; and


(ii)    any
Funding Rate or Reference Bank Quotation.


Confidentiality Undertaking means a confidentiality undertaking substantially in a
form as set out in Schedule 8 (Form of Confidentiality 
Undertaking) or in any other form agreed between a Borrower and the Agent.


Consol
Arrangements means the arrangements
and transactions embodied in the Royalty arrangement documented in the
“Membership Interest and Asset Purchase Agreement” between, among others, 
Coronado IV LLC  and Consol Energy Inc in relation to the Buchanan mine. 


Consolidated Net  Income  mean consolidated net income (or
loss) of the Group, excluding (without duplication):


(a)    the
effect of non-cash compensation expenses related to common stock and other
equity securities issued to employees;


(b)    the
effect of any extraordinary or non-recurring gains, losses or expenses
(including fees) (including IPO Costs and costs and expenses, including fees,
incurred in connection with the consummation of the transactions contemplated
under the Finance Documents);


(c)    the
gains or losses on discontinued operations or disposal of discontinued
operations or costs and expenses associated with the closure of any
mines (including any reclamation or disposal obligations);


(d)    equity earnings
or losses of Affiliates (other than earnings or losses of a Group Member); 


(e)    non-cash
charges due to cumulative effects of changes in accounting principles;


(f)    non-cash unwind of the below market contract in the Stanwell
Arrangements;



 

 





 8  










       




(g)    non-cash
impact of the unwind of the Stanwell Reserve Area/Stanwell Rebate (as those
terms are contemplated by the Stanwell Arrangements); and


(h)    non-cash gains/losses related to hedge book or interest rate swap
revaluation.


Contamination shall mean the presence or Release or threat of Release of
Regulated Substances in, at, on, under or emanating to or from any property,
whether owned or leased, of any Obligor or any Subsidiary of an Obligor, which pursuant
to Environmental Health and Safety Laws requires notification or reporting to a
Governmental Agency, or which pursuant to Environmental Health and Safety Laws
requires performance of a Remedial Action or which otherwise constitutes a
violation of Environmental Health and Safety Laws.


Contested Tax means a Tax payable by an Obligor where that Obligor is
diligently contesting its liability to pay that Tax in good faith.


Corporations Act  means the Corporations Act 2001 (Cth).


Cross Charge means any Security given by an Obligor who is party to a
joint venture over any of its interest in that joint venture to
another party (or parties) to that joint venture to secure the due payment of
amounts payable or obligations incurred and/or the performance of any other
obligations, under or in respect of that joint venture.


Curragh Intercompany Loans means any of the following, if and for so long as they are subordinated in accordance with the
terms of the Curragh Intercompany Subordination Deed:


(a)    the loan made by Coronado
Australia Holdings Pty Limited to Coronado Curragh Pty Ltd pursuant to the CAH
Loan Agreement; 


(b)    the loan made by the Parent to
Coronado Curragh Pty Limited pursuant to the Parent Loan Agreement; and


(c)    any loan made by an Obligor to another Obligor.


Curragh Intercompany Subordination Deed means a subordination deed in the form of the
subordination deed delivered to the Agent as a condition precedent under Part I of Schedule 2 (Conditions
precedent)  or any other form of
subordination deed agreed between the Agent (acting on the instructions
of the Majority Lenders) and the Parent.  


Curragh Mine means the
Obligors’ open-pit mines located in Queensland’s Bowen Basin, in Australia and
the subject of the Australian Mining Tenements.


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,



 

 





 9  










       




any Commitment or amount outstanding under this Agreement.


Default means:


(a)    an Event of Default; or 


(b)    any event or circumstance
specified in Clause 25 (Events of Default) which would (with the expiry of a
grace period or the giving of notice, the making of any determination under the Finance Documents, or any combination
of any of the foregoing) be an Event of
Default.


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, except where:


(i)    its failure to pay
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


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


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


(c)    which
is a Lender which has failed to issue a Bank Guarantee (or has notified the
Agent or a Borrower (which has notified the Agent) that it will not issue a
Bank Guarantee) in accordance with Clause 6.5 
(Issue of Bank Guarantees) or which has failed to pay a claim (or has
notified the Agent or a 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 Bank Guarantee); or


(d)    which:


(i)    is or
is adjudicated to be insolvent;


(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 Bank Guarantee, is caused by:



 

 






 10  










       




(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;


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 terms of the Finance
Documents,


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


Distribution
means any of the following paid by a
person to a shareholder or Affiliate of that person: 


(a)    a distribution (whether of cash or other assets) by way
of dividend, charge, interest, fee,
payment or other distribution on, or buy back,
return of capital, redemption, repurchase, retirement or repayment on or in
respect of, any Marketable Security or loan; and 


(b)    any management or similar fees.


EBITDA means for any period of determination with respect to the Group for
such period of determination:


(a)    Consolidated Net Income; plus


(b)    the
sum of the following, without
duplication and to the extent deducted in determining Consolidated Net Income:


(i)    Interest Expense (net of interest income),


(ii)    income
tax expense,



 

 






 11  










       




(iii)    depreciation,
depletion and amortization of property, plant, equipment and intangibles,


(iv)    non-cash
debt extinguishment costs,


(v)    non-cash impairment charges or asset write-offs and
non-cash charges due to cumulative effects of changes in accounting principles, plus


(c)    cash
dividends or distributions received from Affiliates (other than
received from Group Members to the extent not included in determining
Consolidated Net Income).


All items included in the definition of EBITDA
shall be determined in each case for the applicable Person for the period of
determination on a consolidated basis in accordance with US GAAP.


Environment means components of the earth, including:


(a)    land,
surface and subsurface, strata, sediment,
indoor and outdoor air, and water, including surface water, groundwater and
drinking water; and


(b)    any layer of the atmosphere; 


and includes
interacting natural ecosystems that include components referred to in the foregoing.  Environmental  has
the like meaning.


Environmental Approval  means
any permits, licenses, franchises, certificates, approvals and other similar
authorisations (or waivers in lieu thereof) required under any applicable
Law pertaining to the Environment.


Environmental Health and Safety Claim means any administrative, regulatory or judicial action,
suit, claim, written notice of noncompliance or violation, written notice of
liability or potential liability, written request for information, demand
letter or proceeding relating to any Environmental Health and Safety Laws, any
Environmental Health and Safety Permit, any Regulated Substances, any
Contamination, the performance of any Remedial Action.


Environmental Health and Safety Complaint means any written notice or complaint by any Person or
Governmental Agency setting forth allegations relating to or a cause of action
arising under any Environmental Health and Safety Laws for personal injury or
property damage, natural resource damage, contribution or indemnity for the costs associated with the performance of a
Remedial Action, civil or administrative penalties, criminal fines or
penalties, or declaratory or equitable relief arising under any Environmental
Health and Safety Laws or any order, notice of violation, citation, subpoena,
request for information or other written notice or demand of any type issued by
a Governmental Agency pursuant to any Environmental Health and Safety Laws.


Environmental Health and Safety Laws mean, collectively, any applicable federal, state, local
or foreign statute, Law (including, but not limited to the Comprehensive
Environmental Response, Compensation and Liability Act, 42 USC § 9601 et seq,
the Resource Conservation and Recovery Act, 42 USC § 6901 et seq, the Hazardous
Materials Transportation Act, 49 USC § 1801 et seq, the Toxic Substances
Control Act, 15 USC § 2601 et seq, the Federal






 12  










       




Water Pollution Control Act, 33 USC § 1251 et seq, the
Federal Safe Drinking Water Act, 42 USC § § 300f-300j, the Federal Air
Pollution Control Act, 42 USC § 7401 et seq, the Oil Pollution Act, 33 USC §
2701 et seq, the Federal Insecticide, Fungicide and Rodenticide Act, 7 USC §§
136 to 136y, the Occupational Safety and Health Act, 29 USC § § 651 et seq
related to Regulated Substances, the Mine Safety and Health Act, 30 USC § § 801
et seq, related to Regulated Substances, the Surface Mining Control and
Reclamation Act 30 USC §§ 1201 et seq, the Atomic Energy Act, 42 USC § 2011 et
seq, the National Historic Preservation Act, 16 USC § 470 et seq, the
Endangered Species Act, 16 USC § 1531 et seq, the Wild and Scenic Rivers Act,
16 USC §§ 1271-1278, the Environmental Protection (Impact of Proposals) Act
1974 (rep, to the extent applicable) of Australia, the Environment Protection
and Biodiversity Conservation Act 1999 of Australia, the Work Health and Safety
Act 2011 of Australia, the Environmental Protection Act 1994 of Queensland,
Australia, the Work Health and Safety Act 2011 of Queensland, Australia, the
Coal Mining Safety and Health Act 1999 of Queensland, Australia, each as
amended, or any equivalent state or local statute, and any amendments thereto),
code, consent decree, settlement agreement, directive or any binding judicial
or agency interpretation, policy or guidance, in each case regulating: (i)
pollution or pollution control; (ii) protection of human health from exposure
to Regulated Substances; (iii) protection of the Environment (including mining
reclamation obligations and related financial assurance requirements); (iv)
employee health and safety in the workplace related to Regulated Substances
(but excluding workers compensation and wage and hour laws); and (v) the
presence, use, management, generation, manufacture, processing, extraction,
mining, treatment, recycling, refining, reclamation, labelling, transport,
storage, collection, distribution, Release or threat of Release of Regulated
Substances.


Environmental
Health and Safety Orders shall
mean all decrees, orders, directives, judgments, opinions, rulings writs,
injunctions, settlement agreements or consent orders issued by or entered into
with a Governmental Agent relating or pertaining to Contamination,
Environmental Health and Safety Laws, Environmental Health and Safety Permits,
Regulated Substances or Remedial Actions.


Environmental Health and Safety Permit shall mean any applicable Permit required under
any of the Environmental Health and Safety Laws.


Environmental Liability means any claim, action, damage, loss,
liability, obligation, cost, charge, expense, outgoing or payment relating to any actual or
alleged Environmental Health and Safety Laws, Environmental Approval or
exposure to or release of any Regulated Substance, including but not limited to


(a)    any investigation or
remediation required by any Environmental Health and Safety Laws;


(b)    any claim by any third party
pursuant to any Environmental Health and Safety Laws;


(c)    any action, order, declaration
or notice by a Governmental Agency under an Environmental Health and Safety
Laws; or


(d)    any agreement between any
Group Member and any:  



 

 





 13  










       




(i)    owner
or occupier of land; or


(ii)    Governmental Agency,


to which liability is assumed or imposed with respect to
any of the foregoing.


ERISA shall mean the Employee Retirement Income
Security Act of 1974 (US), as the same may be amended or supplemented
from time to time, and any successor statute of similar import, and the rules
and regulations thereunder, as from time to time in effect.


ERISA Group shall mean, at any time, the
Parent and all members of a controlled group of corporations and all trades or
businesses (whether or not incorporated) under common control or treated as a
single employer under Section 414(b) or (c) of the US Tax Code.


Event of Default means
any event or circumstance specified as such in Clause 25 (Events of Default). 


Exchange Act means the United States Securities Exchange Act of 1934,
as amended.


Excluded Interest Expense  means:


(a)    any interest and amounts
in the nature of interest or of similar effect to interest:


(i)    paid or payable by in respect of
any Limited Recourse Financial Indebtedness; or


(ii)    accruing, but not paid by the
Group (determined on a consolidated basis) on Financial Indebtedness which is Subordinated Debt;


(b)    any capitalised interest of a Group Member (if and for so
long as that capitalised interest is subordinated in accordance with the terms
of the Curragh Intercompany Subordination Deed); and 


(c)    any non-cash unwinding of the
effects of discounting on provisions or any other non-cash interest expense that is not associated with interest
bearing liabilities which is shown as an interest expense in the Financial
Statements of the Group for the relevant period.


Excluded Subsidiary means a Subsidiary of the Parent:


(a)    which is not a wholly-owned Subsidiary; or


(b)    which is a Project Company.



 

 





 14  










       




Excluded Swap Obligation means, with respect to any Guarantor, any Swap Obligation
if, and to the extent that, all or a portion of the Guarantee of such Guarantor
of, or the grant by such Guarantor of a Security to secure, such Swap
Obligation (or any Guarantee thereof) is or becomes illegal under the Commodity
Exchange Act or any rule, regulation or order of the Commodity Futures Trading
Commission (or the application or official interpretation of any thereof) by
virtue of such Guarantor's failure for any reason to constitute an “eligible
contract participant” as defined in the Commodity Exchange Act and the
regulations thereunder at the time the Guarantee of such Guarantor or the grant
of such Security becomes effective with respect to such Swap Obligation. If a
Swap Obligation arises under a master agreement governing more than one swap,
such exclusion shall apply only to the portion of such Swap Obligation that is
attributable to swaps for which such Guarantee or Security is or becomes
illegal.


Existing Arrangements Intercreditor Deed means an intercreditor deed of that name dated 25 October
2018 between the Security Trustee, Stanwell Corporation Limited, Wesfarmers
Limited, Coronado Australia Holdings Pty Ltd, the Parent, Coronado Curragh Pty
Limited, Curragh Queensland Mining Pty Ltd and Curragh Coal Sales Co. Pty.
Ltd.  To avoid doubt, and without limitation, this document must contain
undertakings from the Security Trustee in favour of Stanwell Corporation
Limited in terms substantially the same as those given to it by Wilmington
Trust, National Association, in Clause 2 of the Deed Poll dated 29 March 2018.


Expiry
Date means, for a Bank Guarantee, the last
day of its Term.


Facility means
Facility A, Facility B or Facility C.


Facility A means the multicurrency revolving credit facility made
available under this Agreement as described in Clause 2.1(a) (The Facilities).


Facility A Base Currency means US dollars. 


Facility A Base Currency Amount means, in
relation to a Facility A Loan, the amount of the Loan if denominated in Facility A Base Currency or, if the amount requested is denominated in Australian
dollars, that amount converted into Facility A
Base Currency at the Agent's Spot
Rate of Exchange. 


Facility A Commitment means:


(a)    in
relation to an Original Lender, the amount in the Facility A Base Currency 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 in the Facility A Base Currency of
any Facility A Commitment transferred to it under this Agreement,


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


Facility A Lender means:



 

 





 15  










       




(a)    each
Original Lender who is shown in Part II of Schedule 1 as having a Facility A Commitment; and


(b)    any bank, financial institution,
trust, fund or other entity which has become a Party in accordance with Clause
26 (Changes to the Lenders) with a Facility
A Commitment,


which in
each case has not ceased to be a Party in accordance with the terms of 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 B means the multicurrency revolving bank guarantee facility
made available under this Agreement as described in Clause 2.1(b) (The
Facilities). 


Facility B Base Currency means Australian dollars. 


Facility B Base Currency Amount means, in
relation to a Bank Guarantee, the face value of the Bank Guarantee if
denominated in Facility B Base Currency or, if the amount is denominated in US dollars,
that amount converted into Facility B Base
Currency at the Agent's Spot Rate
of Exchange. 


Facility B Commitment
means:


(a)    in relation to an Original
Lender, the amount in Facility B Base Currency
 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 in Facility B Base Currency  of any Facility B Commitment transferred to it under this
Agreement,


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


Facility B Lender means:


(a)    each Original Lender who is
shown in Part II of Schedule 1 as having a Facility B Commitment; and


(b)    any bank, financial institution,
trust, fund or other entity which has become a Party in accordance with Clause
26 (Changes to the Lenders) with a Facility
B Commitment,


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


Facility B Utilisation
means a Bank Guarantee requested and issued under Facility B.


Facility C means the multicurrency revolving credit facility made
available under this Agreement as described in Clause 2.1(c) (The Facilities).


Facility
C Base Currency means US dollars. 



 

 





 16  










       




Facility C Base Currency
Amount means, in relation to a Facility C Loan, the amount of the Loan if
denominated in Facility C Base Currency or, if the amount requested is denominated in
Australian dollars, that amount converted into Facility
C Base Currency at the Agent's Spot
Rate of Exchange. 


Facility C Commitment means:


(a)    in relation to an Original
Lender, the amount in the Facility C Base
Currency 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 in the Facility C Base
Currency 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 C Lender
means:


(a)    each Original Lender who is
shown in Part II of Schedule 1 as having a Facility C Commitment; and


(b)    any bank, financial institution,
trust, fund or other entity which has become a Party in accordance with Clause
26 (Changes to the Lenders) with a Facility
C Commitment,


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


Facility C Loan means
a loan made or to be made under Facility C or the principal amount outstanding
for the time being of that loan.


Facility Initiation Date means 15 September 2018.


Facility Office  means each office of each Lender shown as such
in Part II of Schedule
1 (or in any relevant
Transfer Certificate, as the case may be), or such other addresses in Australia
or the United States of America, as applicable, as the Agent (on behalf of a
Lender) or a Lender otherwise specifies in consultation with the Parent, being
the offices in Australia and the United States of America through which a
Lender will perform its obligations under this Agreement.


FATCA means:


(a)    sections
1471 to 1474 of the US Tax 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



 

 






 17  










       




(c)    any
agreement pursuant to 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 US Tax 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 US Tax 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.


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


Fee Letter means any letter or letters dated on or after the Facility
Initiation Date setting out any of the fees referred to in Clause 13 (Fees), and
any letter that amends or replaces any of them.


Finance Document means: 


(a)    this Agreement;


(b)    any Fee Letter;


(c)    any Compliance Certificate;


(d)    the Security Trust Deed;


(e)    any Recognition Certificate;


(f)    any Transaction Security
Document;


(g)    the Existing Arrangements
Intercreditor Deed;


(h)    the Curragh Intercompany
Subordination Deed;


(i)    the Deed of Undertaking from the Security Trustee in favour of
Winged Horse Pty Ltd as trustee for the Pegasus Royalty Unit Trust;


(j)    any Accession Letter;


(k)    any Accession Deed;


(l)    any Resignation Letter;


(m)    any Hedging Agreement; 



 

 





 18  










       




(n)    any
document designated by the Agent or Security Trustee in connection with the
appointment and performance of a US Security Agent; 


(o)    any document amending or
amending and restating any of the above; and 


(p)    any other document designated as
such by the Agent and the Borrowers.


Finance Lease means any lease:


(a)    which effectively
transfers from the lessor to the lessee substantially all the risks and
benefits incident to ownership of the leased
property without transferring the legal ownership; or


(b)    the liabilities under which are
required to be capitalised on the lessee’s balance sheet according to US GAAP as in effect on the Facility
Initiation Date.


Finance Party means
the Agent, the Arranger, the Security Trustee, any US Security Agent appointed
under a Finance Document or a Lender.


Financial Covenant means each  financial covenant in Clause 23.1 (Financial covenants). 


Financial Indebtedness
means any indebtedness for or in respect of:


(a)    moneys borrowed;


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


(c)    any
amount raised pursuant to any note purchase facility or the issue of bonds,
notes, debentures, loan stock or any similar instrument;


(d)    the
amount of any liability under a Finance Lease;


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


(f)    any
amount raised under any other transaction (including any forward sale or
purchase agreement) of a type not referred to in any other paragraph of this
definition having the commercial effect of a borrowing of money, which would,
in accordance with US GAAP, be treated as a liability in the audited
consolidated Financial Statements of the Group;


(g)    any
deferred purchase price agreement in relation to any asset or service,
excluding: 


(i)    any such deferred purchase price
agreement which provides for a deferred purchase price of no more than 180
days; and 


(ii)    any other deferred purchase
price agreement in respect of any asset or service entered into in the ordinary
course of business;



 

 






 19  










       




(h)    (for the purposes of Clause 25.5 (Cross-default)
only) any close out amount, early termination amount or any other amount
payable in respect of any Treasury Transaction which has been closed out or
terminated;


(i)    any
counter-indemnity obligation in respect of a guarantee, indemnity, bond,
standby or documentary bank guarantee or any other instrument issued by a bank
or financial institution; and


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


Despite the above, Financial Indebtedness shall not include any
liabilities of any person under any lease that
is not a Finance Lease.


Financial Statements
means:


(a)    a statement of comprehensive income (otherwise known as a
statement of financial performance or profit and loss statement);


(b)    a statement of financial position;


(c)    a statement of cash flow; and


(d)    a statement of changes in equity,


together
with any notes to those documents and any accompanying reports, statements,
declarations and other documents or information.


Flood Laws means, collectively, (i) the
National Flood Insurance Act of 1968 as now or hereafter in effect or any
successor statute thereto, (ii) the Flood Disaster Protection Act of 1973 as
now or hereafter in effect or any successor statue thereto, (iii) the National
Flood Insurance Reform Act of 1994 as now or hereafter in effect or any
successor statute thereto, (iv) the Flood Insurance Reform Act of 2004 as now
or hereafter in effect or any successor statute thereto and (iv) Biggert-Waters
Flood Insurance Reform Act of 2012 as now or hereafter in effect or  any successor statute thereto.


Funding Rate means any
individual rate notified by a Lender to the Agent pursuant to Clause 12.4(a)(ii)  (Cost of funds). 


General Security
Deed means the General
Security Deed entered into by each Australian Obligor with the Security Trustee
after the Facility Initiation Date by which the Australian Obligors grant
security over all their present and after acquired property.


Good Operating Practice means the exercise of skill, prudence and
operating practice which would reasonably and ordinarily be expected from a
reputable, skilled and experienced owner and operator engaged in the same
business as the Obligors under similar circumstances in compliance with all
applicable legislation, industry codes of practice, Authorisations and all
relevant documents relating to the Obligors’ business.



 

 





 20  










       




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


Greenbrier Mine means the underground bord and pillar mine and
the surface contour and highwall mining operations located in the
Greenbrier and Nicholas Counties of West Virginia, in the United States of
America.


Group means the Parent
and its Subsidiaries for the time being.


Group Member means an entity that is a member of the Group.


Group Structure Diagram means the diagram showing the structure of the
Group, provided to the Agent with the Parent’s  verification certificate as a condition precedent under Part
I of Schedule 2, as replaced from time to time under Clause 22.4(i) (Information:
miscellaneous). 


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 27 (Changes to the Obligors).


Head Company means the head company (as defined in the Tax Act) of a
Tax Consolidated Group.


Hedge Counterparty
means a Lender or an Affiliate of a Lender that is, or has become, a party to
the Security Trust Deed as a Hedge Counterparty in accordance with the
provisions of the Security Trust Deed.


Hedging Agreement means any master agreement, confirmation, schedule or
other agreement or trade entered into or to be entered into by a Borrower or
other Obligor and a Hedge Counterparty for the purpose of Treasury Transactions
required or permitted to be entered into by this Agreement.  


Hedging Policy means any board approved policy describing the hedging
arrangements to be entered into for the purpose of entering into Treasury
Transactions in connection with carrying on the Group’s business in a prudent
and responsible manner.


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


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


Interest Expense means all interest and amounts in the nature of interest or of
similar effect to interest (including amounts other than principal payable
under the Finance Documents) paid or payable by the Group (determined on a
consolidated basis) including:


(a)    any dividend or
distribution payable on any Marketable Security which is Financial Indebtedness;



 

 





 21  










       




(b)    the
interest component of rentals in respect of Finance Lease obligations;


(c)    the face amount of
bills of exchange or other financial instruments drawn, issued, endorsed or
accepted by any Group Member less their net proceeds after discount or issue
and payment of any acceptance, endorsement, underwriting or similar fee; and


(d)    all line, facility,
letter of credit, guarantee and similar fees and all fees and other amounts of
a regular or recurring nature payable in relation to Financial Indebtedness but
not establishment, arrangement and other fees
payable once only on the initial provision of financial accommodation,


plus or
minus the amount of any net payments by or to a Group Member under any interest
rate Treasury Transaction. 


It excludes
any Excluded Interest Expense.


Interest Period means,
in relation to a Loan, each period determined in accordance with Clause 11 (Interest Periods) and, in relation to an Unpaid Sum, each period determined
in accordance with Clause 10.3  (Default
interest). 


Interpolated Screen Rate means, in relation to any Loan, the rate (rounded to the
same number of decimal places as the two relevant Screen Rates) which results
from interpolating on a linear basis between:


(a)    the applicable Screen Rate for the longest period
(for which that Screen Rate is available) which is less than the Interest
Period of that Loan; and


(b)    the
applicable Screen Rate for the shortest
period (for which that Screen Rate is available) which exceeds the Interest
Period of that Loan,


each as of
the Specified Time for the currency of that Loan.


IPO means the proposed initial public offering and listing on
the ASX of securities in the Parent. 


IPO Costs means third
party costs and expenses (including all value added taxes) (including adviser,
joint lead manager and other syndicate fees) incurred by the Parent or any
Subsidiary of the Parent (or recharged to the Parent by Coronado Group LLC)
relating to the IPO.


Ipso Facto Event means a Borrower 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.


Issuing Bank means, in
relation to a Bank Guarantee, a Facility B Lender that has issued or is to
issue that Bank Guarantee under Facility B. 



 

 






 22  










       




JORC
Code means the Australasian Code for
Reporting of Exploration Results, Mineral Resources and Ore Reserves from time
to time.


Labor Contracts 
mean all employment agreements, employment contracts, collective bargaining
agreements and other agreements among any Obligor or Subsidiary of an Obligor
and its employees.


Law means any law(s)
(including common law), constitution, statute, treaty, regulation, rule,
ordinance, opinion, issued guidance, release, ruling, order, executive order,
injunction, writ, decree, bond, judgment, authorization or approval, lien or
award of or any settlement arrangement, by agreement, consent or otherwise,
with any Governmental Agency, foreign or domestic.  


Lender means:


(a)    any Original Lender; and


(b)    any
bank, financial institution, trust, fund
or other entity which has become a Party in accordance with Clause 26 (Changes to the Lenders),


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


LIBOR means, in relation to any Loan:


(a)    the applicable Screen
Rate as of the Specified Time for the currency of that Loan and, subject to
Clause 11.1(e) (Selection of Interest Periods), for a period equal in length to
the Interest Period of that Loan; or


(b)    as otherwise
determined pursuant to Clause 12.1 (Unavailability
of Screen Rate),


and
if, in either case, that rate is less than zero, LIBOR shall be deemed to be
zero.


Limited Recourse Financial Indebtedness means any Financial Indebtedness incurred in connection with
a Project where the provider of the indebtedness only has recourse, in respect
of the Parent and its Subsidiaries, to all or any of the following:


(a)    the Project Assets; 


(b)    shares in a Project
Company; 


(c)    the Project Company
or Project Companies, provided that (other than in the case of fraud, wilful
misconduct or negligence of the Project Company), if the Project Assets do not
comprise all or substantially all of a Project Company’s business or interests
the recourse is limited to recoveries in respect of the Project Assets and the
provider of the Financial Indebtedness or any agent appointed by the provider
of the Financial Indebtedness has no right to take any step towards its winding
up or dissolution or the appointment of a liquidator, administrator,
administrative receiver or similar officer in respect of it or its assets; and



 

 





 23  










       




(d)    the
giver of any Surety that is Permitted Financial Accommodation under paragraph
(e) of that definition. 


Listing Date means the
first day that the securities in the Parent are able to be traded on the ASX.


Loan means a Facility
A Loan or a Facility C Loan, as the context requires.


Logan Mine means the underground and surface mining
operations located in the Counties of Boone, Logan and Wyoming in West
Virginia, in the United States of America.


Majority Lenders means
at any time:


(a)    if there are only two
Lenders, then all Lenders; or


(b)    where a Lender or Lenders whose
Commitments aggregate at least 66 2/3% of the Total Commitments (or, if the Total Commitments have been reduced
to zero, aggregated at least 66 2/3% of the Total Commitments immediately prior
to 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.


For the
purposes of this definition, “Commitments” and “Total Commitments” are to be
calculated by converting any Commitments and Utilisations denominated in
Australian dollars into US dollars at the Agent’s Spot Rate of Exchange.


Margin means, in respect of Facility A and Facility C: 


 




	
  Net Debt to EBITDA in
  most recent Compliance Certificate

  	
  Margin 

  
	
  > 2.00 times

  	
  3.25% per annum

  
	
  > 1.50 times and ≤ 2.00 times

  	
  3.00% per annum

  
	
  ≤ 1.50 times

  	
  2. 85% per annum

  








 


Any change in Margin arising by reason of the delivery of a
Compliance Certificate will take effect on the first day of the next applicable
Interest Period occurring after the date of receipt by the Agent of the
applicable Compliance Certificate. If a Compliance Certificate is not delivered
when due, for the purposes of determining the applicable Margin, Net Debt to
EBITDA will be assumed to be greater than 2.00 times until a Compliance
Certificate is delivered.


Marketable
Security has the meaning given to
securities in section 92(3) of the Corporations Act, but also includes:


(a)    an undertaking referred to in the exceptions in
paragraphs (a) and (b) of the definition of debenture in the Corporations Act;



 

 





 24  










       




(b)    a
unit or other interest in a trust or partnership;


(c)    a negotiable
instrument; and


(d)    a right or an option
in respect of a Marketable Security, whether issued or unissued, including any
of the above.


Material Adverse Effect
means a material adverse effect on:


(a)    the financial condition of the Group 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 the whole or any material part of any Finance
Document or the ranking of any Security granted or purported to be granted
pursuant to the Finance
Documents or any material rights or remedies of a Finance Party under the
Finance Documents.


Material Contract means each of the following: 


(a)    Stanwell Amended Coal
Supply Agreement  dated 6 November 2009
between Stanwell Corporation Limited and Coronado Curragh Pty Ltd, as amended
by the ACSA Deed of Amendment
entered into on or about 21 November 2016;


(b)    Curragh Mine New Coal
Supply Deed between Stanwell Corporation Limited and Coronado Curragh Pty Ltd dated
14 August 2018 including any agreement arising from the binding term sheet
attached thereto;


(c)    Take or pay agreement
dated 27 September 2011 between Coronado Curragh Pty Ltd and WICET Pty Ltd;


(d)    Coal Handling
Agreement dated 1 June 2004 between Coronado Curragh Pty Ltd and Gladstone
Ports Corporation; 


(e)    Wiggins Island Rail
Project Deed (2011) between Coronado Curragh and Aurizon Network Pty Ltd dated
5 September 2011, as amended from time to time;


(f)    Rail Transportation
Agreement between Aurizon Operations Limited and Coronado Curragh Pty Ltd dated
11 November 2011, as amended from time to time;


(g)    QR Coal Transport
Agreement between Aurizon Operations Limited and Coronado Curragh Pty Ltd dated
31 May 2004, as amended from time to time;


(h)    each Australian
Mining Tenement;


(i)    each lease and the
other contractual rights comprising or affecting the property described in
Schedule 10 (Real Property) and other real property on which
infrastructure and equipment necessary for the business as usual operations of
an Obligor’s mine site is located; 



 

 





 25  










       




(j)    Membership
Interest and Asset Purchase Agreement between Consol Energy, Inc, Consol Mining Holding Company LLC,
Consol Buchanan Mining Company LLC, Consol Amonate Mining Company LLC, Consol
Mining Company LLC, CXN Land LLC, CXN Marine Terminals Inc, CXN RCPC LLC,
Consol Pennsylvania Coal Company LLC, Consol Amonate Facility LLC and Coronado
IV LLC, dated 26 February 2018; 


(k)    CONSOL Energy Amendment
and Restatement of Master Cooperation and Safety Agreement between Consol
Buchanan Mining Company LLC, Coronado IV LLC, CNX Gas Company LLC, Consol
Energy Inc. and various CEI Subsidiaries, dated 31 March 2016;


(l)    Command Center
Services Agreement between Consol Buchanan Mining Company LLC and CNX Gas
Company LLC dated 31 March 2016; 


(m)    Drilling and Related
Services Agreement between Consol Buchanan Mining Company LLC and CNX Gas
Company LLC, dated 31 March 2016; 


(n)    Subsidence and Relocation Agreement between Cardinal States Gathering Company, Coronado IV LLC and
Coronado Buchanan Mining Company LLC, dated 31
March 2016; and 


(o)    any other contract or agreement to which an Obligor is a
party (other than the Finance Documents) for which breach, non-performance,
cancellation or failure to renew would have or would be reasonably likely to
have a Material Adverse Effect (which, for the avoidance of doubt, unless
otherwise agreed, includes any contract or agreement that replaces any of the
above).


Material Subsidiary means any Subsidiary of Parent which at any time (i) has
gross revenues equal to or in excess of five percent (5%) of the gross revenues
of Parent and its Subsidiaries on a consolidated basis, or (ii) has total
assets equal to or in excess of five percent (5%) of the total assets of Parent
and its Subsidiaries, in either case, as determined and consolidated in
accordance with US GAAP.


Mining Laws means any and all applicable federal, state, local and
foreign statutes, laws, regulations, guidance, ordinances, rules, judgments,
orders, decrees, permits, concessions, grants, franchises, licenses, agreements
or other governmental restrictions or common law causes of action relating to Mining
Operations and activities, or oil, natural gas, minerals, and other
hydrocarbons and their constituents production operations and activities. Mining
Laws shall include but not be limited to, (i) the Mineral Lands Leasing Act of
1920, the Federal Coal Leasing Amendments Act, the Surface Mining Control and
Reclamation Act, all other land reclamation and use statutes and regulations
relating to coal mining, the Federal Coal Mine Health and Safety Act, the Black
Lung Act and the Coal Act, the Mine Safety and Health Act and the Occupational
Safety and Health Act, each as amended, and their state and local counterparts
or equivalents; and (ii) Laws of Queensland and the Commonwealth of Australia
relating to mining, coal and the environment, each as amended. 



 

 





 26  










       




Mining Operations shall mean (i) the removal of coal, gas and
other minerals or similar resources from the natural deposits or from waste or
stock piles by any surface or underground mining methods; (ii) operations or
activities conducted underground or on the surface associated with or incident
to the preparation, development, operation, maintenance, opening and reopening
of an underground or surface mine storage or stockpiling of mined materials,
backfilling, sealing and other closure procedures related to a mine or the
movement, assembly, disassembly or staging of any mining equipment; (iii)
milling; (iv) coal preparation, coal processing or testing; (v) coal refuse
disposal, coal fines disposal or the operation and maintenance of impoundments;
(vi) the operation of any mine drainage system; (vii) reclamation
activities and operations; or (viii) the operation of coal terminals, river or
rail load-outs or any other transportation facilities.


Mining Tenement Security means each of: 


(a)    the Mortgages required to be on
mining tenements pursuant to the terms of this Agreement;


(b)    the Australian
Mortgages;


(c)    the General Security
Deed; 


(d)    each other
Transaction Security Document entered into from time to time to comply with Clause 24.20
(Mining tenements; Further assurances
regarding Secured Property). 


Month means a period
starting on one day in a calendar month and ending on the numerically
corresponding day in the next calendar month, except that:


(a)    if
the numerically corresponding day
is not a Business Day, that period shall end on the next Business Day in that
calendar month in which that period is to end if there is one, or if there is
not, on the immediately preceding Business Day;


(b)    if
there is no numerically corresponding day in the calendar month in which that
period is to end, that period shall end on
the last Business Day in that calendar month.


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


Mortgage means each of the fee and
leasehold mortgages, deeds of trust, assignments of leases and rents and other
security documents, in each case substantially in the form of (other than as to
US Excluded Property definitions) the “Mortgages” (as defined
in the Term Loan Facility Agreement) and otherwise in such form reasonably
satisfactory to the Security Trustee and the Agent, delivered on or after the
Facility Initiation Date with respect to Real Property to be encumbered
pursuant to this Agreement or the applicable US Security Document, as each may
be amended, supplemented or otherwise modified from  time to time. 


Multiemployer Plan means any employee benefit plan which is a
"multiemployer plan" within the meaning of Section 4001(a)(3) of
ERISA and to which the Borrower or any other member of the ERISA Group is then
making or accruing an obligation to make contributions 



 

 





 27  










       




or, within the preceding five plan years, has
made or had an obligation to make such contributions.


Multiple Employer
Plan means a Plan which has two
or more contributing sponsors (including the Borrower or any other member of
the ERISA Group) at least two of whom are not under common control, as such a
plan is described in Sections 4063 and 4064 of ERISA.


Net Debt means:


(a)    the total amount of current and non-current interest
bearing loans and borrowings of the Group but excluding leases that are not
Finance Leases, Subordinated Debt and Limited Recourse Financial Indebtedness;
and 


(b)    in accordance with US
GAAP, the total amount shown as a liability in those Financial Statements for
any guarantee or indemnity, or a counter-indemnity obligation in respect of a guarantee,
indemnity, bond, standby or documentary letter of credit or any other similar
instrument, but only up to that amount shown as a liability (except in relation
to Bank Guarantees issued and outstanding under Facility B, of which only 50%
of the aggregate face value of all such Bank Guarantees is to be included for
the purposes of this paragraph (b)); less 


(c)    the total amount
shown in those Financial Statements as “cash and cash equivalents” but only to the extent such are not subject to any
Security (other than a Transaction Security). 


To
avoid doubt, Net Debt does not include any amount attributable to open Treasury
Transactions.


Net Interest Expense
means, for a period, Interest
Expense for that period, less interest income received by the Group during that
period (determined on a consolidated basis).


New Lender has the
meaning given to that term in Clause 26 (Changes to the Lenders).


Non-Consenting
Lender means a Lender that does
not agree to consent to a waiver, amendment of, or a consent under, any
provision of a Finance Document which has been requested by the Borrower or the
Agent where the requested waiver, amendment or consent is one which
requires the consent of all Lenders and Lenders whose Commitments aggregate at
least 75% of the Total Commitments have voted in favour of the relevant waiver,
amendment and consent.


Obligor means a Borrower or a
Guarantor.


Obligor Group means the Borrower and
the Guarantors.  


OFAC means the US Treasury Department’s Office of Foreign Assets Control.


Offshore Associate
means an Associate:



 

 






 28  










       




(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


(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.


Original Financial Statements  means:


(a)    the consolidated Financial Statements for Coronado Curragh Pty
Ltd as at 30 June 2018; and


(b)    the consolidated Financial Statements for Coronado Group LLC as at 31
December 2017.


Original Obligor means an Original Borrower or an Original Guarantor.


Parent Loan
Agreement means the loan
agreement dated 25 January 2017 between Coronado Curragh Pty Limited, Curragh Queensland  Mining Pty
Ltd, Curragh Coal Sales Co. Pty. Ltd. and Wesfarmers Limited, as amended and
restated on 22 December 2017, as assigned by Wesfarmers Limited to Coronado Group LLC pursuant to a
deed of assignment dated 29 March 2018 and as assigned by Coronado Group LLC to
the Parent pursuant to a deed of assignment dated 13 August 2018 and as further
amended by deed of amendment dated 31 August 2018. 


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.


PBGC shall
mean the Pension Benefit Guaranty Corporation established pursuant to Subtitle
A of Title IV of ERISA or any successor.


Permit shall mean any and all permits, approvals, licenses,
registrations, consents, notifications, identification numbers, bonds, waivers
or exemptions and any other regulatory authorization, in each case, from a
Governmental Agency having jurisdiction over the applicable activity.


Permitted Disposal  means each of the following:  


(a)    a disposal of trading stock or inventory in the ordinary course of the
Group’s business on ordinary commercial terms;


(b)    the disposal of any agreement, mining licence, mining or
mineral lease or fee property, permit or other asset in the ordinary course of
the Group’s business on 



 

 





 29  










       




commercial terms so long as the aggregate book value of the
assets to be disposed of and the assets already disposed of in any 12 month
period under this paragraph and paragraphs (c) and (j) below does not
exceed 10% of Total Tangible Assets;


(c)    the disposal of an
interest in a joint venture or joint venture vehicle, agreement, licence,
permit or other asset in the ordinary course of the Group’s business on
commercial terms so long as the aggregate book value of the assets to be
disposed of and the assets already disposed of in any 12 month period
under this paragraph and paragraph (b) above and paragraph (j) below does
not exceed 10% of Total Tangible Assets;


(d)    a disposal of assets
in contemporaneous exchange for other assets comparable or superior as to type,
value and quality or for cash which is applied in or towards the purchase of
assets comparable or superior as to type, value and quality; 


(e)    a disposal of
obsolete, damaged, used or worn out assets or assets (excluding assets of the
kind described in paragraphs (b) and (c) above) no longer required for the
purpose of the relevant Obligor’s business or operations;


(f)    the payment of cash
for any asset acquired in the ordinary course of business;


(g)    the investment of
funds which are not immediately required in the relevant Obligor’s business in
accordance with the Group’s established money market treasury policies or the
realisation of such investments;


(h)    the application of
the proceeds of an issue of securities (whether debt or equity) for the purpose
stated in the prospectus or other offering document relating to that issue;


(i)    any disposal by a
non-Obligor Group Member to an Obligor (including any inter-company debt forgiveness, from time to time), provided the
disposal is on arm’s length terms and for fair market value or on terms and for
value more favourable to the Obligor,
or any disposal by a non-Obligor Group Member to another non-Obligor Group
Member;


(j)    a disposal comprised
in or which occurs as part of any sale and lease-back, forward sale, stock loan
or repurchase transaction so long as the aggregate book value of the assets to
be disposed of and the assets already disposed of in any 12 month
period under this paragraph and paragraphs (b) and (c) above does not
exceed 10% of Total Tangible Assets; and


(k)    a disposal which also constitutes or arises as a result of any Permitted Security, 


in the case of each of the above (other than paragraph (k) insofar
as it relates to any disposal by a non-Obligor Group Member to another
non-Obligor Group Member), where the relevant transaction was entered into in
good faith, for fair market value and on an arm’s length basis; and


(l)    the payment of cash
for any payment permitted under Clause 24.12 (Distributions);



 

 





 30  










       




(m)    transfers
of condemned property as a result of the exercise of "eminent domain"
or other similar policies to the respective Governmental Agency or agency that
has condemned the same (whether by deed in lieu of condemnation or otherwise),
and transfers of properties that have been subject to a casualty to the
respective insurer of such property as part of an insurance settlement, and
transfers of properties that have been the subject of a Compulsory Acquisition;


(n)    any disposal by way
of cash constituted by or comprised in the Consol Arrangements;


(o)    any disposal
constituted by or comprised in the Stanwell Arrangements; 


(p)    any disposal by way
of cash constituted by or comprised in the Wesfarmers Arrangements;


(q)    any disposal by way
of cash constituted by or comprised in the Winged Horse Arrangements; and


(r)    a disposal not
falling within any of the above to which the Agent (acting on the instructions of the Majority Lenders) has consented in writing.


Permitted Financial Accommodation means: 


(a)    except where such is prohibited under the laws
of incorporation or formation of the relevant Group Members, a loan or other accommodation made available
by a Group Member to or for the benefit of employees or directors or officers
of a Group Member to acquire shares in a Group Member in an amount in aggregate
for all employees and directors not exceeding US$5,000,000;


(b)    any deposit funds of
an Obligor with a bank in the ordinary course of its business; 


(c)    any trade credit not
exceeding 180 days provided, or otherwise accommodated by an Obligor to acquire
goods and services on extended terms in the ordinary course of trading;


(d)    the Curragh
Intercompany Loans and any other accommodation made by an Obligor to another
Obligor; 


(e)    accommodation
including a Surety made by an Obligor to a Project Company (or (in the case of
a Surety in connection with a Project Company) so long as the giving of that
accommodation does not result in a breach of Clause 22.7 (Financial covenants)
and the aggregate accommodation made available by Obligors under this paragraph
and paragraph (f) together does not exceed 5% of Total Tangible Assets at any
time; 


(f)    accommodation provided to a
partnership, joint venture, non-wholly owned subsidiary or other entity
contemplated by Clause 24.18 (Partnerships and joint ventures)  so long as that
accommodation is provided by an Obligor and does not result in a breach of Clause 22.7 (Financial covenants)
and the aggregate accommodation made available by Obligors under this paragraph
and paragraph (e) together does not exceed 5% of Total Tangible Assets at any
time;  and



 

 





 31  










       




(g)    accommodation
(not being accommodation which is permitted under paragraph (e) or which is
prohibited under the laws of incorporation of the relevant Group Members) made
by an Obligor to a Group Member which is not an Obligor provided that such
accommodation does not exceed  A$5,000,000 in aggregate for
all financial accommodation provided under this paragraph (f).


Permitted Financial Indebtedness  means each of the following: 


(a)    any Financial Indebtedness created under a
Finance Document;


(b)    any Financial Indebtedness owing by a Group Member
to another Group Member which is Permitted Financial Accommodation provided
Financial Indebtedness owing by an Obligor (including without limitation any
member of the Obligor Group) to any Group Member other than a member of the
Obligor Group must be subordinated pursuant to an Curragh Intercompany
Subordination Deed;  


(c)    any Financial
Indebtedness raised via the issuance of bonds, notes, debentures or other instruments of that type in the domestic, United
States of America, European or other debt capital markets;


(d)    any Financial
Indebtedness in respect of Finance Leases and hire purchase agreements entered
into in the ordinary course of business;


(e)    any Financial
Indebtedness which is guaranteed or otherwise supported by an export credit
agency; 


(f)    any Financial
Indebtedness raised under transactional banking facilities;


(g)    any Financial
Indebtedness which is Subordinated Debt;


(h)    any Financial
Indebtedness (including, without limitation, reimbursement obligations in
respect of letters of credit and bank guarantees) on account of any demand,
request or requirement of any Governmental Agency for any surety bond, letter
of credit or other financial assurance pursuant to any Environmental Health and
Safety Laws, or any related permit, in each case, in the ordinary course of
business or pursuant to self-insurance obligations and not in connection with
the borrowing of money or the obtaining of advances;


(i)    any Financial Indebtedness owing by a non-Obligor Group Member to
another non-Obligor Group Member;


(j)    any Financial
Indebtedness in respect of letters of credit, bank guarantees, warehouse
receipts or similar instruments issued to support performance obligations and
trade letters of credit (other than obligations in respect of other Financial
Indebtedness) in the ordinary course of business and to the extent it is
secured by cash or cash equivalents;


(k)    any Financial
Indebtedness under any Treasury Transaction;



 

 





 32  










       




(l)    any
Financial Indebtedness constituted by or comprised in the Wesfarmers
Arrangements;


(m)    in addition to the
above, unsecured Financial Indebtedness in aggregate for all Obligors not
exceeding 5% of Total Tangible Assets; and 


(n)    in addition to the
above, any Financial Indebtedness to which the Agent (acting on the
instructions of the Majority Lenders) has consented in writing.


For the avoidance of doubt, Permitted Financial
Indebtedness also includes any Financial
Indebtedness incurred as Limited
Recourse Financial Indebtedness. 


Permitted Security  means each of
the following: 


(a)    any
Security  which secures
the Obligations of an Obligor under
a Finance Document;  


(b)    any Security expressly permitted under a provision of a
Finance Document (including, any Security
provided by a Security Provider in favour of the Security Trustee);


(c)    any Security under a
Cross Charge;


(d)    any
Security under present commercial or present or future statutory royalty
agreements in connection with a Project so long as, at any time, the aggregate
amount secured by a Security described in this paragraph (d) when aggregated
with the amounts referred to in paragraph (f) and paragraph (q) does not exceed
5% of Total Tangible Assets;


(e)    a
lien arising by operation of law (other than under the PPSA) in the ordinary
course of day to day trading and not securing Financial Indebtedness where it
duly pays the indebtedness secured by that lien other than indebtedness
contested in good faith;


(f)    any
Security granted to a Governmental Agency over funds deposited as security in
support of an Obligor’s obligations in respect of the abandonment of a Project
so long as, at any time, the aggregate amount so deposited and subject to a
Security described in this paragraph (f) when aggregated with the amounts
referred to in paragraph (d) and paragraph (q) does not exceed 5% of Total
Tangible Assets;


(g)    any
Security  over the assets of a company which becomes a
Group Member after the Facility Initiation Date and which:


(i)    is in existence at
the date the company becomes a Group Member and has not been created in anticipation of that company becoming a Group Member,
provided that the Security is discharged within 180 days after the date the
company becomes a Group Member; or 


(ii)    that the company is contractually bound to enter into at the
time it becomes a Group Member and has not become so bound in anticipation of
the company becoming a Group Member, provided that the Security is discharged
within 180 days after its creation,



 

 





 33  










       




and, in each case,
the principal amount secured has not increased in contemplation of, or since
the acquisition of, that company;


(h)    a Security  which
is over any asset acquired by a Group Member after the Facility Initiation Date
and is in existence at the date of such acquisition and has not been created in
anticipation of such acquisition, but only to the extent of the indebtedness
secured by any such Security at the date of such acquisition, and provided that
the Security is discharged within 180 days after the asset is acquired; 


(i)    a Security which is a
netting or set-off arrangement entered into by any Group Member:


(i)    in the ordinary
course of its or the Group’s transactional banking arrangements on a bank’s standard terms and conditions (or on terms more
favourable to Group Members) for the purpose of netting debit and credit
balances; or


(ii)    under any Treasury Transaction on market standard terms
and conditions (or terms and conditions more favourable to Group Members);


(j)    a Security  provided
for by one of the following transactions so long as the transaction does not
secure payment or performance of an obligation:


(i)    a transfer of an account or chattel paper in respect of which
a Group Member is the transferor; or 


(ii)    a commercial consignment in
respect of which a Group Member is the consignee; or


(iii)    a PPS lease in respect of which a Group Member is the
lessee; or


(k)    all
Security securing any part of the Curragh Intercompany Loans if and for so long
as the priority of such Security is regulated by the Curragh Intercompany Subordination
Deed; 


(l)    any Security for
Contested Taxes granted to a Governmental Agency and as to which appropriate
reserves have been established in accordance with US GAAP or other appropriate
accounting principles;


(m)    any Security given in
the ordinary course of business to secure payment of reclamation liabilities,
worker's compensation, or to participate in any fund in connection with
worker's compensation, unemployment insurance, or other social security
programs (including Security to secure letters of credit or bank guarantees
issued to assure payment of such obligations);


(n)    any Security over
cash or cash equivalents in  respect of letters of credit, bank guarantees,
warehouse receipts or similar instruments issued to support performance
obligations and trade letters of credit (other than obligations in respect of
other Financial Indebtedness) in the ordinary course of business;



 

 





 34  










       




(o)    good-faith
pledges or deposits made in the ordinary course of business to secure
performance of bids (including bonus bids), tenders, contracts (other than for
the repayment of borrowed money) or leases, not in excess of the aggregate
amount due thereunder or other amounts as may be customary, or to secure
statutory obligations, or surety, appeal, indemnity, performance or other
similar bonds required in the ordinary course of business (including liens on
such good-faith pledges or deposits to secure letters of credit issued to
assure payment of such obligations);


(p)    encumbrances
consisting of zoning restrictions, easements or other restrictions on the use
of real property, none of which materially impairs the use of such property or
the value thereof, and none of which is violated in any material respect by
existing or proposed structures or land use;


(q)    all other Security  so
long as the aggregate principal amount of indebtedness secured by all such
other Security when aggregated with the amounts referred to in
paragraph (d) and paragraph (f) does not exceed at any time, 5% of Total
Tangible Assets;


(r)    a Security comprised in
or constituted by a Finance Lease that is limited to the asset being leased;


(s)    a Security securing
Financial Indebtedness and obligations incurred in connection with the
financing by the Parent or a Subsidiary of the Parent (either alone or together
with a co-venturer or group of co-venturers, either directly or through a
special purpose finance vehicle) of all or part of the purchase price of new assets:


(i)    of the Parent or a Subsidiary of the Parent; and/or


(ii)    in which the Parent, a
Subsidiary of the Parent or a co-venturer or co‐venturers of the Parent or a Subsidiary of the Parent has or have or
will have an interest, either directly or indirectly, 


provided that:


(iii)    any such Security  shall
be confined solely to the assets acquired and/or the shares, units or other
interests held by any Group Member in any Subsidiary of the Parent which holds
the relevant acquired assets or interest in the relevant assets (including the
proceeds of any dividends, distributions, return on capital or similar rights,
the proceeds of or rights to payments in respect of intercompany loans or any
other compensation, proceeds, amounts or assets received or receivable by the
Parent or any subsidiary of the Parent in connection with such shareholding,
unitholding or other interest); and


(iv)    any such Security will
cease to be Permitted Security as and from the date which is 120 days after the
date of the relevant acquisition; 


(t)    any Security  securing
Limited Recourse Financial Indebtedness over any assets referred to in
paragraphs (a) or (b) of the definition of Limited Recourse Financial
Indebtedness; and



 

 





 35  










       




(u)    any
Security  constituted by or comprised in the Stanwell Arrangements if
and for so long as the priority of such Security is regulated by the Existing
Arrangements Intercreditor Deed;


(v)    any Security constituted
by or comprised in the Wesfarmers Arrangements if and for so long as the
priority of such Security is regulated by the Existing Arrangements
Intercreditor Deed; 


(w)    any Security by way
of caveat constituted by or comprised in the Winged Horse Arrangements; 


(x)    a Security securing
indemnity obligations to an export credit agency in respect of a guarantee or other
support provided by that agency;


(y)    any Security securing
Subordinated Debt for so long as the priority arrangements are satisfactory to
the Agent; 


(z)    any Security existing
as at the Listing Date to the extent it affects US Excluded Property; and


(aa)    a Security  not
falling within paragraphs (a) to (z) above which is created with the consent in
writing of the Agent (acting on the instructions of Majority Lenders).


Person means any
individual, corporation, partnership, limited liability company, association,
joint-stock company, trust, unincorporated organization, joint venture,
government or political subdivision or agency thereof, or any other entity.


Personal Information means
information or an opinion about an identified individual or an
individual who is reasonably identifiable.


Plan means any employee pension benefit plan (including a
Multiple Employer Plan, but excluding a Multiemployer Plan) that is covered by
Title IV of ERISA or is subject to the minimum funding standards under Section
412 of the US Tax Code and either (i) is maintained by any member of the ERISA
Group for any employees of any member of the ERISA Group, or (ii) has at any
time within the preceding five years been maintained by any entity which was at
such time a member of the ERISA Group for employees of any entity which was at
such time a member of the ERISA Group.  


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


Premises means any property owned, leased or occupied by
any Group Member or which is used by any Group Member to carry on any
activities.


Prime Bank means a
bank determined by ASX Benchmarks Pty Limited (or any other person which takes
over the administration of the Screen Rate for Australian dollars) as being a Prime Bank or an
acceptor or issuer of bills of exchange or negotiable certificates of deposit
for the purposes of calculating that Screen Rate.  If ASX Benchmarks Pty
Limited or such other person ceases to make such determination, the Prime Banks
shall be the Prime Banks last so appointed.



 

 






 36  










       




Privacy Statement means the current version of each Lender's privacy
statement as required under the Australian Privacy Principles set out in the
Privacy Act 1998 (Cth), as provided to the Borrower from time to time.


Prohibited Transaction means any prohibited transaction as defined in
Section 4975 of the US Tax Code or Section 406 of ERISA.


Producing Unincorporated Joint Venture means any unincorporated joint venture of a
member of the Group that is generating income.


Production means, in relation to a period, the volume of coal
produced and available for sale from a mine during that period.


Project means any particular project of the Parent or any
Subsidiary of the Parent relating to the ownership, creation, development,
operation, exploration, investigation or exploitation of any assets in the coal sector acquired by the Parent or any Subsidiary of the Parent
after the Facility Initiation Date.


Project Assets means any assets used exclusively for and in connection
with a Project. 


Project Company means any entity which is
a Subsidiary of the Parent (other than one which is a Subsidiary of
the Parent as at the Facility Initiation Date) and is established or maintained following the Facility Initiation Date solely for the purpose of the acquisition, development
or operation of a Project, either alone or in conjunction with other parties
that are non-Group Members and which owes Limited Recourse Financial
Indebtedness.  


However, upon a
Project Company ceasing to have any Limited Recourse Financial Indebtedness it
will cease to be a Project Company and will be taken into account for the
purposes of compliance with Clause
24.16 (Composition of Obligor Group).  


Prospectus means the
prospectus to be issued by Coronado Group LLC and the Parent, dated 22 October
2018 and lodged with the Australian Securities and Investments Commission on or
about that date.


PTE means a prohibited
transaction class exemption issued by the US Department of Labor, as any such
exemption may be amended from time to time.


Qualified ECP Guarantor means, in respect of any Swap Obligation, each Guarantor that has total
assets exceeding US$10,000,000 at the time the relevant Guarantee or grant of
the relevant security interest becomes effective with respect to such Swap
Obligation or such other person as constitutes an “eligible contract
participant” under the Commodity Exchange Act or any regulations promulgated
thereunder and can cause another person to qualify as an “eligible contract
participant” at such time by entering into a keepwell under
Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.


Quarter means the period of 3 calendar months ending on each of 31
March, 30 June, 30 September and 31 December each year.


Quotation Day means,
in relation to any period for which an interest rate is to be determined: 



 

 





 37  










       




(a)    if the currency is Australian dollars, the first
day of that period; and


(b)    if the currency is US
dollars,  2 Business Days before the
first day of that period.


Real Property means, individually as the context requires, the real
property (other than as set forth  in the proviso below) that is owned, leased or
licensed by an Obligor, including, but not limited to surface, coal and other
mineral rights, interests, mining leases, exploration permits, mineral
development licenses, and other related mining tenements and coal leases
associated with the properties described in Schedule 10 (Real Property),
and “Real Property” shall mean, collectively, as the context requires, all of
the foregoing; provided, however, “Real Property” shall not include (i) US
Excluded Property, (ii) any asset that shall have been released from the
Transaction Security pursuant to the express provisions of the Finance
Documents or (iii) any “building” or “mobile home” (each as defined in
Regulation H as promulgated by the Federal Reserve Board under the Flood Laws).


Reclamation Laws means
all applicable federal, state, local and foreign statutes, laws, regulations,
guidance, ordinances, rules, judgments, orders, decrees, permits, concessions,
grants, franchises, licenses, agreements or other governmental restrictions or
common law causes of action relating to mining reclamation or reclamation
liabilities.


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


Reference Bank Quotation means any quotation supplied to the Agent by a Reference Bank.


Reference Bank Rate  means: 


(a)    in relation to BBSY Bid, the
sum of:


(i)    the following rates:


(A)    the arithmetic mean of the rates (rounded
upwards to 4 decimal places) as supplied to the Agent at its request by the
Reference Banks as the mid discount rate (expressed as a yield percent to maturity)
observed by the relevant Reference Bank for marketable parcels of Australian
dollar denominated bank accepted bills and negotiable certificates of deposit
accepted or issued by Prime Banks, and which mature on the last day of the
relevant period; or


(B)    (if there is no observable market rate for
marketable parcels of Prime Bank Australian dollar securities referred to in
paragraph (A)above), the arithmetic mean of the rates (rounded upwards to 4
decimal places) as supplied to the Agent at its request by the Reference Banks
as the rate at which the relevant Reference Bank could borrow funds in
Australian dollars in the Australian interbank market for the relevant period
were it to do so by asking for and then accepting interbank offers for deposits
in reasonable market sizes and for that period; and


(ii)    0.05% per annum;



 

 





 38  










       




(b)    the arithmetic mean of the rates (rounded
upwards to 4 decimal places) as supplied to the Agent at its request by the
Reference Banks in relation to LIBOR as either:


(i)    if:


(A)    the Reference Bank is a contributor to the applicable Screen
Rate; and


(B)    it consists of a single figure,


the rate (if any and applied to the relevant
Reference Bank and the relevant currency and period) which contributors to the
applicable Screen Rate are asked to submit to the relevant administrator; or


(ii)    in any other case, the rate at which the relevant Reference
Bank could fund itself in the relevant currency for the relevant period with
reference to the unsecured wholesale funding market.


Reference Banks means:


(a)    in relation to BBSY Bid, the
principal office in Sydney of any three of the following:


(i)    Australia and New
Zealand Banking Group Limited;


(ii)    Commonwealth Bank of
Australia;


(iii)    National Australia
Bank Limited; and


(iv)    Westpac Banking
Corporation; and


(b)    in relation to LIBOR, the principal Sydney offices of:


(i)    Australia and New Zealand
Banking Group Limited;


(ii)    Commonwealth Bank of
Australia;


(iii)    National Australia
Bank Limited; and


(iv)    Westpac Banking
Corporation.


Regulated Substances means, without limitation, any substance, material or
waste, regardless of its form or nature, defined under Environmental Health and
Safety Law as a "hazardous substance," "pollutant,"
"pollution," "contaminant," "hazardous or toxic
substance," "extremely  hazardous substance," "toxic chemical,"
"toxic substance," "toxic waste," "hazardous
waste," "special handling waste," "industrial waste,"
"residual waste," "solid waste," "municipal
waste," "mixed waste," "infectious waste,"
"chemotherapeutic waste," "medical waste," "regulated
substance" or words of similar import, or any other material, substance or
waste, regardless of its form or nature, which is regulated by Environmental
Health and Safety Law due to its radioactive, ignitable, corrosive, reactive,
explosive, toxic, carcinogenic or infectious properties or nature, or which
otherwise is regulated by any Environmental Health and Safety Law including,
without limitation, 



 

 





 39  










       




petroleum and petroleum products (including
crude oil and any fractions thereof), natural gas, coalbed methane gas,
synthetic gas and any mixtures thereof, asbestos and asbestos containing
materials, urea formaldehyde, polychlorinated biphenyls, mercury and
radioactive substances.


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.


Release means any
release, spill, emission, leaking, dumping, injection, pouring, deposit, disposal,
discharge, dispersal, leaching or migration into or through the Environment or
within, from or into any building, structure, facility or fixture, including all mines and other
subsurface structures.


Relevant Group means the Parent and its Subsidiaries, excluding any Project Company.


Relevant Market  means: 


(a)    in relation to Australian dollars, the Australian interbank
market for bank accepted bills and negotiable certificates of deposits; and


(b)    in relation to US
dollars, the London interbank market.


Relevant
Nominating Body means any
applicable central bank, regulator or other supervisory authority or a group of
them, or any working group or committee sponsored or chaired by, or
constituted at the request of, any of them or the Financial Stability Board.


Remedial Action means any investigation, identification, preliminary
assessment, characterization, delineation, feasibility study, cleanup,
corrective action, removal, remediation, risk assessment, fate and transport analysis,
in-situ treatment, the treatment of discharges or seeps, containment, operation
and maintenance or management in-place, control, abatement or other response
actions to Regulated Substances and any closure or postclosure measures, or
reclamation activities associated therewith.


Repeating Representations means each of the representations set out in Clauses 21.1 (Status)
to 21.8 (No default), 21.10 (No misleading information), 21.12 (Financial
Statements) to 21.34 (Projects) and paragraphs (b) and (c) of Clause 21.36 (Group
Structure Diagram). 


Replacement Benchmark means a benchmark rate which is:


(a)    formally designated,
nominated or recommended as the replacement for a Screen Rate by:


(i)    the administrator of that Screen
Rate (provided that the market or economic reality that such benchmark rate measures is the same as that
measured by that Screen Rate); or


(ii)    any Relevant Nominating Body,



 

 





 40  










       




and if replacements have, at
the relevant time, been formally designated, nominated or recommended under
both paragraphs, the “Replacement Benchmark” will be the replacement under
paragraph (ii) above;


(b)    in the opinion of the Majority
Lenders and the Original Borrower, generally accepted in the international or any relevant domestic
syndicated loan markets as the appropriate successor to a Screen Rate; or


(c)    in the opinion of the Majority lenders and the Original Borrower,
an appropriate successor to a Screen Rate.


Reportable Event means
a reportable event described in Section 4043 of ERISA or regulations thereunder
with respect to a Plan or a Multiemployer Plan (other than any such event as to
which the thirty-day notice period is waived); provided that, in the case of
any such reportable event with respect to a Multiemployer Plan, such
event shall only be deemed a Reportable Event for purposes of this Agreement if
the Borrowers have knowledge of such event.


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


Reserves  means the Mineral
Resources and Ore Reserves (as those terms are defined in the JORC Code) of
coal within the Mining Tenements. 


Reserves Statement means  a statement
given in accordance with the JORC Code showing, amongst other things, the
Mineral Resources and Ore Reserves (as those terms are defined in the JORC
Code) of coal within the Mining Tenements as
at a given date.


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


Review Event means any of the following events: 


(a)    a Change
of Control occurs without the prior consent of the Agent (acting on the
instructions of all Lenders); or


(b)    the Parent is
delisted from the ASX or an application is made by a competent person to delist
the Parent from the ASX; or 


(c)    trading in the Parent’s shares on the ASX is suspended
for 7 consecutive trading days, unless due to a pending market announcement not
related to financial difficulties of the Parent;
or


(d)    the Reserves as at the Termination Date as forecast in the
most recent 5 year forecast provided pursuant to Clause 22.2 (Compliance Certificate and other information)
are less than 60% of the Reserves as disclosed in the Prospectus; or 


(e)    any Environmental
Liability of or relating to any Group Member occurs, is subsisting or is
otherwise identified or determined
to exist, in each case that will have or is reasonably likely to have a
Material Adverse Effect.



 

 





 41  










       




Rollover Loan means one or more Loans under the same Facility:


(a)    made or to be made on the same day that a maturing Loan is due to be repaid;


(b)    the
aggregate amount of which is equal to or less than the amount of the maturing
Loan;


(c)    made
or to be made to the same Borrower for the purpose of refinancing that maturing
Loan; and


(d)    made in the same currency as the maturing Loan.


Sanctioned Country means, at any time, a country or territory
which is itself the subject or target of any Sanctions (currently, Cuba, Iran,
North Korea, Syria, and the Crimea region of Ukraine).


Sanctioned Person means, at any time, (a) any Person listed in any
Sanctions-related list of designated Persons maintained by OFAC or the US
Department of State, the United Nations Security Council, the European Union,
any Member State of the European Union, any Governmental Authority of
Australia, or the Hong Kong Special Administrative Region, or the United
Kingdom (irrespective of its status vis-à-vis the European Union), (b) any
Person operating, organized or resident in a Sanctioned Country or (c) any
Person owned or controlled by any such Person or Persons.


Sanctions means economic or financial sanctions, trade embargoes or
similar measures enacted, administrated or enforced by the United States of
America, Australia, the United Nations Security Council, Hong Kong Special
Administrative Region and/or the European Union or any present or future state
thereof and/or the French Republic, and/or Her Majesty’s Treasury or any other
relevant sanctions authority or by any agency of the above.


Screen Rate  means:


(a)    in relation to BBSY Bid:


(i)    the
Australian Bank Bill Swap Reference Rate (Bid) administered by ASX Benchmarks
Pty Limited (or any other person which takes over the administration of that
rate) for the relevant period displayed on page BBSY of the Thomson Reuters
Screen (or any replacement Thomson Reuters page which displays that rate) or on
the appropriate page of such other information service which publishes that
rate from time to time in the place of Thomson Reuters.  If such page or
service ceases to be available, the Agent may specify another page or service
displaying the relevant rate after consultation with a Borrower; and


(ii)    if
the rate described in sub-paragraph (i) above is not available, the sum of:


(A)    the
Australian Bank Bill Swap Reference Rate administered by ASX Benchmarks Pty
Limited (or any other person which takes over the administration of that rate)
for the relevant period displayed on page BBSW of the Thomson Reuters Screen
(or any replacement 



 

 





 42  










       




Thomson Reuters page which
displays that rate) or on the appropriate page of such other information
service which publishes that rate from time to time in the place of Thomson
Reuters.  If such page or service ceases to be available, the Agent may specify
another page or service displaying the relevant rate after consultation with a
Borrower; and


(B)    0.05%
per annum,


and for the purposes of determining the rate as at a time,
any subsequent correction, recalculation or republication by the administrator
after that time shall be included; and


(b)    in relation to LIBOR, the London interbank offered rate
administered by ICE Benchmark Administration Limited (or any other person which
takes over the administration of that rate) for the relevant currency and
period displayed on pages LIBOR01 or LIBOR02 of the Thomson Reuters screen (or
any replacement Thomson Reuters page which displays that rate) or on the
appropriate page of such other information service which publishes that rate
from time to time in place of Thomson Reuters.  If such page or service ceases
to be available, the Agent may specify another page or service displaying the
relevant rate after consultation with the Borrowers.


Screen Rate Replacement Event means, in relation to a Screen Rate:


(a)    the methodology, formula or
other means of determining that Screen Rate has, in the opinion of the Majority
Lenders and the Original Borrower materially changed; or


(b)    


(i)    


(A)    the administrator of that Screen
Rate or its supervisor publicly announces that such administrator is insolvent;
or


(B)    information is published in any
order, decree, notice, petition or filing, however described, of or filed with
a court, tribunal, exchange, regulatory authority or similar administrative,
regulatory or judicial body which reasonably confirms that the administrator of
that Screen Rate is insolvent,


provided that, in each case, at that time, there is no
successor administrator to continue to provide that Screen Rate;


(ii)    the administrator of that
Screen Rate publicly announces that it has ceased or will cease, to provide
that Screen Rate permanently or indefinitely and, at that time, there is no
successor administrator to continue to provide that Screen Rate;



 

 





 43  










       




(iii)    the
supervisor of the administrator of
that Screen Rate publicly announces that such Screen Rate has been or will be
permanently or indefinitely discontinued; or


(iv)    the administrator of that Screen Rate or its supervisor announces that that
Screen Rate may no longer be used; or


(c)    the administrator of that
Screen Rate determines that that Screen Rate should be calculated in accordance
with its reduced submissions or other contingency or fallback policies or
arrangements and either:


(i)    the circumstance(s) or event(s) leading to such determination
are not (in the opinion of the Majority Lenders and the Original Borrower)
temporary; or


(ii)    that Screen Rate is
calculated in accordance with any such policy or arrangement for a period of no
less that the period opposite that Screen Rate in Schedule 9A (Screen Rate contingency periods); or


(iii)    in the opinion of the Majority
Lenders and the Original Borrower, that Screen Rate is otherwise no longer
appropriate for the purposes of calculating interest under this Agreement.


Secured Money has the
meaning given to that  term in the
Security Trust Deed.


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, license, 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 the PPSA or the US Uniform Commercial Code.


Security Provider means an Obligor that is a party to a Transaction
Security.


Security Trust means
the trust established by the Security Trust Deed.


Security Trust Deed
means the deed entitled "Security Trust Deed" dated 23 October 2018 and made between,
among others, the Borrower, and Westpac Administration Pty Limited (ACN 008 617
203) (as Security Trustee).


Security Trustee means Westpac Administration Pty Limited (ACN 008 617 203) or such other person
appointed from time to time as the trustee of the Security Trust.


Selection Notice means
a notice substantially in the form set out in Part III of Schedule 3
(Requests) given in accordance with Clause 11 (Interest Periods) in relation to Facility A or Facility C.


Specified Time means a time determined in accordance with Schedule 9 (Timetables). 



 

 






 44  










       




Stanwell
Arrangements means the arrangements
and transactions embodied in:


(a)    the Stanwell Amended Coal
Supply Agreement dated 6 November 2009 between Stanwell Corporation Limited and
Coronado Curragh Pty Ltd, as amended by the ACSA Deed of Amendment entered into
on or about 21 November 2016; and


(b)    the Curragh Mine New
Coal Supply Deed between Stanwell Corporation Limited and Coronado Curragh Pty Ltd dated 14 August 2018 including any agreement arising from and consistent
with the binding term sheet attached thereto.


Subordinated Debt means all debt
of a Group Member under which: 


(a)    the Agent  is
satisfied that the creditor’s rights are subordinated to the rights of the
Finance Parties under the Finance Documents in a form and substance
satisfactory to the Agent; and 


(b)    (without limiting
paragraph (a) above), such debt
must meet the following criteria (as a minimum):


(i)    as at the time it is originally incurred it has a maturity date
that falls at least 180 days after
the maturity date for the Financial Indebtedness owed pursuant to the Finance
Documents;


(ii)    it is not subject to
prepayment events, other than events of default (however defined, but only for
the purpose of capitalising interest) (or such events have been approved by the
Finance Parties in writing); and


(iii)    it is on terms
which do not impose more onerous obligations (including in relation to
Financial Covenants) on the Obligors than those under the Finance
Documents unless the Finance Parties also agree to make corresponding changes
to the Finance Documents (or advise the Parent that they do not require such changes).


Subsidiary has the
meaning given in the Corporations Act 2001, but as if body corporate includes
any entity. It also includes (a) 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 and (b) with respect to any
entity (herein referred to as the “parent”), any corporation,
partnership, association or other business entity (i) of which securities or
other ownership interests representing more than 50% of the equity or more than
50% of the ordinary voting power or more than 50% of the general partnership
interests are, at the time any determination is being made, directly or
indirectly, owned, Controlled (as defined in the definition of Change of
Control) or held by the parent or one or more subsidiaries of the parent or
(ii) whose accounts are consolidated with the accounts of the parent or one or
more subsidiaries of the parent in such parent’s or subsidiary’s US Securities
and Exchange Commission filings (or the filings of any Governmental Agency
succeeding to any or all of its functions). Unless the context otherwise
requires, Subsidiary shall mean a Subsidiary of Parent.



 

 






 45  










       




Surety
means an obligation or offer to provide funds (including by subscription or
purchase) or otherwise be responsible in respect of an obligation or
indebtedness, or the financial condition or insolvency, of another person.  It
includes a guarantee, indemnity, letter of credit or legally binding letter of
comfort, or an obligation or offer to purchase an obligation or indebtedness of
another person.


Swap Obligation means, with respect to any Guarantor, any
obligation to pay or perform under any agreement, contract or transaction that
constitutes a “swap” within the meaning of section la(47) of the Commodity
Exchange Act.


Tangible Net Worth means total shareholders’ equity in the Group, less
intangible assets, non-current deferred tax assets and non-current prepayments
(each determined in accordance with US GAAP and as shown in the most recent
consolidated Financial Statements for the Group delivered to the Agent under
Clause 22.1 (Financial Statements), and after adding back:


(a)    liabilities related
to below-market contract obligations;


(b)    any difference
between the actual amount of interest bearing loans and borrowings of the Group
and their fair market value as shown in the Financial Statements; and


(c)    any asset or
liability related to the Stanwell Reserve Area (as that term is contemplated by
the Stanwell Arrangements).


Tax means any tax,
levy, impost, duty or other charge or withholding of a similar nature
(including any penalty, interest or addition to tax payable in connection with
any failure to pay or any delay in paying any of the same).  


Tax Act means the Income
Tax Assessment Act 1936 (Cth) or the Income Tax Assessment Act 1997
(Cth), as the context requires.


Tax Agreements means the Tax Funding Agreement and the Tax
Sharing Agreement.


Tax Consolidated Group
means a Consolidated Group or an MEC Group as defined in the Tax Act.


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


Tax Funding Agreement mans a tax funding agreement between each
member of the Tax Consolidated Group which includes:


(a)    reasonably appropriate
arrangements for the funding of tax payments by the Head Company, 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



 

 





 46  










       




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


Tax Sharing Agreement
means, for any jurisdiction, any tax sharing agreement in relation to the
sharing of tax liabilities in that jurisdiction between one or more Group Members in that jurisdiction,
including an agreement between each member of the Tax Consolidated Group which
takes effect as a tax sharing agreement under section 721-25 of the Tax Act and
which complies with the Tax Act and any law, official directive, request,
guideline or policy (whether or not having the force or law issued in
connection with the Tax Act).


Term means each period
determined under this Agreement for which the Issuing Bank is under a
liability under a Bank Guarantee.


Term Loan B Facility  means the
US$550,000,000 “Term Loan B Facility” under and as defined in the Term Loan
Facility Agreement. 


Term Loan C Facility  means the US$150,000,000 “Term Loan C Facility”
under and as defined in the Term Loan Facility Agreement.


Term Loan Facility Agreement means the Term Loan Syndicated Facilities
Agreement dated as March 29, 2018 (as amended by Amendment No. 1 dated as of
May 5, 2018) between Coronado Group LLC, a Delaware limited liability company, Coronado Australia Holdings Pty Limited, an Australian company,
Coronado Curragh LLC, a Delaware limited liability company, the lenders party
thereto from time to time, Deutsche Bank AG New York Branch, in its capacity as
administrative agent and Wilmington Trust, National Association, in its
capacity as collateral trustee.


Termination Date means
15 February 2023.


Total Tangible
Assets means the total assets
shown as such in the most recent consolidated Financial Statements of the Group
delivered to the Agent under Clause 22.1 (Financial Statements) after
deducting intangible assets and deferred tax assets. 


Total Commitments
means the aggregate of the Total Facility A Commitments, the Total Facility B
Commitments and the Total Facility C Commitments.  For the purposes of this definition, the Total Facility B Commitments
are to be calculated by converting all Facility B Commitments into US dollars
at the Agent’s Spot Rate of Exchange.


Total Facility A Commitments means the aggregate of the Facility A Commitments, being
US$350,000,000 at the Amendment Effective Date.


Total Facility B Commitments means the aggregate of the Facility B Commitments, being
A$370,000,000 at the Amendment Effective Date. 


Total Facility C Commitments means the aggregate of the Facility C Commitments, being
US$200,000,000 at the Amendment Effective Date. 



 

 





 47  










       




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


Transaction Security Documents means each of: 


(a)    the General Security Deed; 


(b)    each Australian Mortgage;


(c)    each Mining Tenement
Security;


(d)    each US Security Document; and


(e)    any other
Finance Document under which a Security is created or expressed to be created
in favour of the Security Trustee. 


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 a Borrower.


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.


Treasury Transaction means any interest
rate swap, foreign exchange transaction, equity or equity index option, bond
option, commodity swap, commodity option, cap transaction, currency swap
transaction, cross-currency swap rate transaction or any other hedge or derivative transaction or product entered into in connection with protection
against, or benefit from, fluctuation in any rate, currency, commodity or price.


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


US or United States means, in each case, the United States of
America.


US Borrower means a Borrower which is incorporated,
organised or formed under the laws of the United States or any state or commonwealth thereof (including the
District of Columbia).


US Excluded Property  means, solely with respect to the assets of US Security Providers: 


(a)    assets subject to certificates of title (other than
mining tenements) not in excess of $100,000;


(b)    the assets of any
Group Member who is not an Obligor (but only if and for so long as it is not an
Obligor); 



 

 





 48  










       




(c)    voting
equity interests in excess of 65% of the voting equity interests of any
Subsidiary of the Parent that
is a first-tier CFC or first-tier CFC Holdco (excluding any Subsidiary
(including a successor entity) that is a Guarantor), where:


(i)    “CFC” means “controlled foreign corporation” within
the meaning of Section 957(a) of the Internal Revenue Code (provided, however,
that for purposes of the Finance Documents, neither the Borrower, nor any
Subsidiary of the Borrower, including their successors, will be deemed to be a
CFC); and


(ii)    CFC Holdco means a
Subsidiary (and any successor entity of such Subsidiary) that has no material assets other than the capital
stock (or capital stock and indebtedness) of one or more foreign subsidiaries
that are CFCs


provided that no such Subsidiary is an Obligor
incorporated in Australia; 


(d)    the assets with respect to which any pledge or security interests thereof
would be: 


(i)    prohibited by law or would require consent of any Governmental
Authority, or 


(ii)    in the case of
equity interests of non-wholly owned Subsidiaries or joint ventures permitted by Clause 24.18 (Partnerships
and joint ventures), prohibited by the organizational documents of such
non-wholly owned Subsidiary or joint venture, except to the extent such
prohibition is ineffective or rendered unenforceable under applicable law
(including the US Uniform Commercial Code) or principles of equity (provided,
however, that the proceeds of any such equity interests shall not be US
Excluded Property);


(e)    real property
existing on the Listing Date, whether owned or leased or licensed by any Group
Member, including but not limited to surface, coal and other mineral rights,
interests and coal leases, mining leases, exploration permits, mineral
development licences, and other related mining tenements, other
than the real property listed in Schedule 10 (Real Property) or required
to ensure the representation in Clause 21.43 (Surface Facilities) is
correct;


(f)    real property that does not contain proven reserves
or material operations;


(g)    any:


(i)    owned real
property acquired after the Listing Date with a fair market value not exceeding $500,000; and 


(ii)    buildings or other structures situated on any
real property described in the foregoing paragraph (i); 


(h)    any real property lease:


(i)    where the terms
of the lease do not permit the grant of a security interest, provided that (x)
with respect to any such real property lease as of the Listing Date, the
Obligors comply with Clause 4.5 (Conditions subsequent – other)  



 

 





 49  










       




in relation to
obtaining consent and (y) with respect to any such real property lease entered
into after the Listing Date, the Obligors comply with Clause 24.20 (Mining
tenements; After-Acquired Property; Further assurances regarding Secured
Property) (it being understood that, in each case, no Obligor will be required to pay any fee or pay any other
consideration or agree to any commercial change that would be detrimental to
any Obligor to obtain any such consent); (z) the representation in Clause 21.43
(Surface Facilities) remains correct at all times; or 


(ii)    entered into after the Listing Date with a Obligor as
lessee, and with the lessor being a Person that is not a Obligor or Affiliate
thereof, with annual minimum royalties, rents or any similar payment
obligations, not exceeding $500,000;


(i)    any contract or lease agreement (other than a real property lease agreement)
if the grant of a security interest in such contract or lease agreement is
prohibited by the terms of such contract or lease agreement or would give
another party thereto any rights of termination or acceleration, except to the
extent that:


(i)    the term in
such contract or lease providing for such prohibition or right of termination
or acceleration is ineffective or rendered unenforceable under applicable law
(including the US Uniform Commercial Code) or principles of equity; or 


(ii)    any consent or
waiver has been obtained that would permit a Transaction Security to attach notwithstanding the prohibition or restriction on the pledge of
or security interest in such contract or lease agreement;


(j)    any property
which is subject to a Permitted Security pursuant to documents which prohibit
the applicable Obligor from granting any other Security in such property or to
the extent the grant of a security interest therein would violate or invalidate
such documents or would create a termination right in favour of any other party
thereto (other than to the extent that any such prohibition would be rendered
ineffective pursuant to the US Uniform Commercial Code or any other applicable
law or principles of equity and other than to the extent all necessary consents
to the creation, attachment and perfection of Transaction Security thereon have
been obtained), and, in any event, immediately
upon the ineffectiveness, lapse or termination of such terms that prohibit such
Obligor from granting any other Security in such property or the obtainment of
such consents to the creation, attachment and perfection of Transaction
Security thereon, such property shall cease to constitute an Excluded Property;


(k)    any intent-to-use
trademark applications prior to the filing, and acceptance by the United States
Patent and Trademark Office, of a “Statement of Use” or “Amendment to Allege
Use” with respect thereto, if any, to the extent that, and solely during the
period in which, the grant of a security interest therein prior to such filing
and acceptance would impair the validity or enforceability of such
intent-to-use trademark applications or the resulting trademark registrations
under applicable federal law;



 

 





 50  










       




(l)    letter
of credit rights, except to the extent a security interest therein can be perfected
by a US Uniform Commercial Code filing;


(m)    commercial tort
claims below $500,000 in the aggregate for all of the Group in aggregate;


(n)    margin stock;


(o)    equity interests in
JEP Mining LLC;


(p)    any of the following accounts, 


(i)    any deposit account
that is used solely for payment of payroll, bonuses, other compensation and
related expenses, in each case, for employees or former employees;


(ii)    escrow accounts to
the extent the use of such escrowed funds is permitted under the Finance
Documents and the amount on deposit therein in connection with any letter of
intent in respect of a purchase that would reasonably be expected to result in
an acquisition or other investment that would not cause or result in an Event
of Default;


(iii)    fiduciary or trust
accounts for the benefit of third parties (other than Obligors);


(iv)    zero-balance
accounts, so long as the balance in such account is zero at the end of each
Business Day; and 


(v)    any other deposit
accounts with an aggregate daily balance as at the end of each Business Day of
less than $1,000,000 in the aggregate for all such deposit accounts;


(q)    assets or property (other than the real property listed in Schedule 10 (Real
Property) or real property
necessary to ensure the representation in Clause 21.43 (Surface Facilities) is
correct) as to which creating or perfecting a security interest therein would
be expected to result in material adverse tax consequences to any Group Member;
and 


(r)    assets or property as
to which in the reasonable determination of the Agent the cost of creating or
perfecting a security
interest therein is excessive in relation to the benefit to the Finance Parties
to be afforded thereby; 


provided, however that no assets or
other property that would be required to constitute “Collateral” securing the
obligations of the obligors under the Term Loan Facility Agreement as of the
Facility Initiation Date shall constitute “US Excluded Property” under any
Finance Document.


US GAAP means the generally accepted
accounting principles in the United States as are in effect from time to time
and applied on a consistent basis as to classification of items and amounts.



 

 





 51  










       




US Guarantee
Agreement means the Guarantee
Agreement substantially in the form of the “Guaranty Agreement” (as defined in
the Term Loan Agreement) and otherwise in form and substance reasonably
satisfactory to the Agent executed and delivered by the US Guarantors party
thereto for the benefit of the Finance Parties pursuant to Clause 4 (Conditions
of Utilisation), as the same may be supplemented, amended, restated,
replaced, or modified from time to time, in accordance with the terms hereof
and thereof.


US Guarantor means a Guarantor which is incorporated, organised or formed in the United States or any state or commonwealth thereof (including the
District of Columbia). 


US Person means an entity which is incorporated, organised or formed
under the laws of the United States of America or any state or commonwealth thereof (including the District of Columbia).


US Security Agent means any Person appointed from time to time by or behalf
of the Agent or the Security Trustee as a co-agent, co-security trustee,
sub-agent, sub-security trustee or attorney-in-fact under the US Security
Documents to act as agent, collateral agent, trustee, security trustee,
collateral trustee or similar capacity with respect to the Security Trust in favour of, or held for the benefit of, the Beneficiaries
under the US Security Documents.  


US Security Agreement means the Security Agreement substantially in
the form (other than as to US Excluded Property definitions) of the “U.S.
Security Agreement” (as defined in the Term Loan Facility Agreement) and
otherwise in form and substance reasonably satisfactory to the Security Trustee
executed and delivered by the US Security Providers party thereto for the
benefit of the Security Trustee and the Beneficiaries, as the same may be
supplemented, amended, restated, replaced, or modified from time to time, in
accordance with the terms hereof and thereof. 


US Security Documents means:


(a)    the US Security Agreement; 


(b)    the US Guarantee;


(c)    each Mortgage; 


(d)    each Intellectual
Property Security Agreement (as defined in the US Security Documents); 


(e)    any supplement to any
of the foregoing delivered to the Security Trustee pursuant to the terms hereof
or of any other Transaction Security Document; 


(f)    the Perfection
Certificate (as defined in the US Security Agreement); and 


(g)    each of the other
instruments and documents with respect to the Transaction Security that is
governed by the laws of the United States or any state or commonwealth thereof
(including the District of Columbia). 


US Security Provider means
a Security Provider which is a US Person. 



 

 





 52  










       




US Tax Code means the United States Internal Revenue Code
of 1986, as amended from time to time, and the rules and regulations
promulgated thereunder.


US Uniform Commercial Code means the Uniform Commercial Code as in effect from time to
time in the State of New York or any other state of the US the laws of which
are required to be applied to the Secured Property.


USA PATRIOT Act means the US Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of
2001, Pub. No. 107-56, 115 Stat. 272 (2001).


Utilisation means a
utilisation of a Facility.


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


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


Wesfarmers Arrangements
means the arrangements and transactions embodied in the Value Share Mechanism
Deed entered into between Coronado Curragh Pty Ltd and Wesfarmers Limited on 29
March 2018, pursuant to which Wesfarmers Limited has lodged a caveat in respect of each Mining
Tenement held by Coronado Curragh, securing its rights under the Value Share
Mechanism Deed.


Winged Horse Arrangements  means the arrangements and transactions embodied in the
Royalty Deed dated 31 August 2010 (as amended, novated or assigned), pursuant
to which Winged Horse Pty Limited as trustee for the Pegasus Royalty Unit Trust
and B. McDonald (No. 2) Pty Limited are entitled to a royalty with respect to
any coal produced from any mine covering some or all of MDL 162.  


1.2    Construction


(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 Bank", 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 Finance Documents;


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


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


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



 

 






 53  










       




(v)    "guarantee"
means (other than in Clause 20 (Guarantee)) (A) any guarantee, bank guarantee, 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;


(vi)    "indebtedness"
 includes any obligation (whether incurred as principal or as
surety) for the payment or repayment of money, whether present or future,
actual or contingent;


(vii)    the
"Interest Period" of a Bank Guarantee shall be construed as a
reference to the Term of that Bank Guarantee;


(viii)    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;


(ix)    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;


(x)    a
Utilisation made or to be made to a Borrower includes a Bank Guarantee issued on its
behalf;


(xi)    a
provision of Law or a regulation is a reference to that provision as amended or
re-enacted and all statutory and regulatory provisions consolidating, amending,
replacing, supplementing, superseding or interpreting that provision;


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


(xiii)    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 pursuant to the terms of this
Agreement.


(c)    Section,
Clause and Schedule headings are for ease of reference only.



 

 






 54  










       




(d)    Unless a contrary indication
appears, a term used in any other Finance Document or in any notice given under
or in connection with any Finance Document has the same meaning in that Finance
Document or notice as in this Agreement.


(e)    A
Borrower providing "cash cover" for a Bank Guarantee means a Borrower
paying an amount in the currency of the Bank Guarantee to the Issuing Bank of
such Bank Guarantee who must apply the amount in accordance with
Clause 25.1 (Cash cover).


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


(g)    A Borrower "repaying" or "prepaying"
a Bank Guarantee means:


(i)    that
Borrower providing cash cover for
that Bank Guarantee;


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


(iii)    the
maximum amount payable under the Bank Guarantee being reduced or cancelled in
accordance with its terms;


(iv)    the
Issuing Bank being satisfied that it has no further liability under that Bank
Guarantee; or


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


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


(A)    provide
cash cover for the outstanding amount of the Bank Guarantee (less the total
amount paid by the Issuing Bank under the Bank Guarantee); and


(B)    pay
under Clause 7.1  (Claims under a Bank
Guarantee) or Clause 7.2  (Indemnities)
an amount equal to the total amount paid by the Issuing Bank under the Bank
Guarantee,


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



 

 






 55  










       




(h)    An
amount borrowed includes any amount
utilised by way of Bank Guarantee.


(i)    Amounts
outstanding under this Agreement include amounts actually or contingently
outstanding under or in respect of any Bank Guarantee.


(j)    An
outstanding amount of a Bank Guarantee at any time is the maximum amount that
is or may be payable by the relevant Borrower in respect of that Bank Guarantee
at that time.


(k)    A
Borrower's obligation on Utilisations becoming "due and payable"
includes the Borrower repaying any Bank Guarantee in accordance with paragraph
(g) above.


(l)    With respect to any
US limited liability company, any reference herein to a merger, transfer,
consolidation, amalgamation, consolidation, assignment, sale, disposition or
transfer, or similar term, shall be deemed to apply to a division of or by any
such limited liability company, or an allocation of assets to a series of any
such limited liability company (or the unwinding of such a division or allocation),
as if it were a merger, transfer, consolidation, amalgamation, consolidation,
assignment, sale or transfer, or similar term, as applicable, to, of or with a
separate Person. Any division of any US limited liability company shall
constitute a separate Person hereunder (and each division of any such limited
liability company that is a Subsidiary, joint venture or any other like term
shall also constitute such a Person or entity).


(m)    Notwithstanding
anything to the contrary in this Agreement or any other Finance Document, any
references contained herein or therein to the Security Trustee shall be deemed
to be a reference to the Security Trustee party hereto and any co-agents or
co-security trustee (including any US Security Agent), sub-agents or
sub-security trustee (including any US Security Agent) and attorneys-in-fact
appointed by such Security Trustee or Agent pursuant to the terms of this
Agreement or any other Transaction Security Document (including, without
limitation, the US Security Agreement), as applicable. 


1.3    Currency symbols and definitions


(a)    “A$”, “AUD”  and
“Australian dollars” denote the lawful currency of Australia.


(b)    “US$”, 
“USD” and “US dollars” denote the lawful currency of the United
States of America.


1.4    Obligors’ agent


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


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


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



 

 






 56  










       




(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 Original
Borrower under this Clause 1.4 (Obligors’ agent) 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 Original Borrower on behalf of an Obligor and
any other Obligor, those of the Original Borrower shall prevail.


1.5    Security Trustee limitation of liability


(a)    The Security Trustee enters into and performs the Finance
Documents to which it is a party and the transactions they contemplates only in
its capacity as the trustee of the Security Trust (and not in its personal
capacity, or in its capacity as trustee of any other trust other than the
Security Trust), except where expressly stated otherwise.  This applies also in
respect of any past and future conduct (including omissions) relating to this
agreement or those transactions.  


(b)    Under and in connection with the Finance Documents and those
transactions and conduct:


(i)    the Security Trustee’s liability
(including for negligence) is
strictly limited, and can only be enforced against the Security Trustee, to the
extent to which it can be satisfied out of the Security Trust assets or the
Security Trustee is actually indemnified for the liability. This limitation
will not apply to any obligation or liability of the Security Trustee only to
the extent it is not so satisfied because there is a reduction in the extent of
the Security Trustee's indemnification out of the Security Trust assets caused
by the Security Trustee's fraud, gross negligence or wilful misconduct.  The
Security Trustee need not pay any such liability out of other assets; 


(ii)    another party may
only do the following with respect to the
Security Trustee (but any resulting liability remains subject to the limitations
in this Clause):


(A)    prove and participate in, and
otherwise benefit from, any form of insolvency administration of the Security
Trustee but only with respect to Security Trust assets;


(B)    exercise rights and remedies
with respect to Security Trust assets, including set-off; 


(C)    enforce its security (if any)
and exercise contractual rights; and



 

 





 57  










       




(D)    bring
any proceedings against the Security Trustee seeking relief or orders that are
not inconsistent with the limitations in this Clause, 


and may not:


(E)    bring other proceedings against
the Security Trustee;


(F)    take any steps to have the
Security Trustee placed in any form of insolvency administration or to have a
receiver or receiver and manager appointed or see to have the Security Trustee
wound up, or prove in any winding up of the Security Trustee; or


(G)    seek by any means (including
set-off) to have a liability of the Security Trustee to that party (including
for negligence) satisfied out of any assets of the Security Trustee other than
Security Trust assets; 


(H)    have an administrator appointed
to the Security Trustee;


(I)    obtain a judgment against the
Security Trustee for the payment of money;


(J)    carry out any distress or
execution on any property of the Security Trustee; or


(K)    exercise any:


(1)    right of set-off; 


(2)    right to combine or consolidate accounts; or


(3)    banker’s lien,


against the Security Trustee, other than in respect of the
Security Trust, in connection with the Security Trustee’s
obligations under the Finance Documents.


(c)    Paragraphs (a) and (b) apply despite any other provision in
any Finance Document but do not apply with respect to any liability of the
Security Trustee to another party (including for negligence) to the extent that
the Security Trustee has no right or power to have Security Trust assets
applied towards satisfaction of that liability, or its right or power to do so is subject to a deduction, reduction, limit
or requirement to make good, in either case because of the Security Trustee’s
fraud, gross negligence or wilful misconduct.


(d)    The limitation in paragraph
(b)(i) is to be disregarded for the purposes (but only for the purposes) of the
rights and remedies described in paragraph
(b)(ii), and interpreting this agreement and any security for it, including
determining the following:


(i)    whether amounts are to be
regarded as payable (and for this purpose damages or other amounts will be regarded as a payable if they would have
been owed had a suit or action barred under paragraph (b)(ii) been brought);



 

 





 58  










       




(ii)    the
calculation of amounts owing; or 


(iii)    whether a breach or default has occurred,


        but any resulting liability will be subject to the limitations in
this Clause.


(e)    Nothing in paragraph (c) above shall make the Security
Trustee liable to any claim for an amount greater than the amount which the
other parties would have been able to claim and recover from the Security Trust
assets in relation to the relevant liability if the Security Trustee's right of indemnification out of the
assets of the Security Trust had not been prejudiced by the Security Trustee's
fraud, gross negligence or wilful misconduct.


(f)    This Clause applies despite any other provision of any Finance Document or any
principle of equity or law to the contrary.


1.6    Liability must be limited and must be indemnified


The Security Trustee is not obliged to do or not do anything in
connection with the Finance Document (including enter into any transaction or
incur any liability) unless:  


(a)    the Security
Trustee’s liability is limited in a manner
which is consistent with Clause 1.5(Security Trustee limitation of liability);
 


(b)    the Security Trustee is indemnified (or otherwise put in
funds) to its reasonable satisfaction against any liability or loss arising from, and any costs,
charges and expenses ( including those incurred in connection with advisers)
properly incurred in connection with, doing or not doing that thing; and 


(c)    it has received the relevant instructions from the relevant
Beneficiaries.


1.7    Administration in connection with Facility B


Despite any other provision of this Agreement and while no
Default subsists, any notice, request, correspondence, payment or
administration mechanics (including in relation to fees, principal, interest and exchange rates) in connection with Facility B or Bank Guarantees issued under Facility
B may be given, made or operated directly between the relevant Borrower and the
Facility B Lender or Issuing Bank without reference to the Agent, unless the
Borrower and the Issuing Bank or Facility B Lender agree otherwise and, where
applicable, any references to the Agent in this Agreement will be read as
references to that Issuing Bank or Facility B Lender.


1.8    Contractual recognition of bail-in


Notwithstanding any other term of any Finance Document or
any other agreement, arrangement or understanding between the parties to this
Agreement, each party acknowledges and accepts that any liability of
any party to any other party under or in connection with the Finance Documents
may be subject to Bail-In Action by the relevant Resolution Authority and
acknowledges and accepts to be bound by the effect of: 


(a)     any Bail-In Action in relation to any such liability, including
(without limitation): 



 

 





 59  










       




(i)    a
reduction, in full or in part, in the principal amount, or outstanding amount
due (including any accrued but
unpaid interest) in respect of any such liability; 


(ii)    a conversion of all,
or part of, any such liability into shares or other instruments of ownership
that may be issued to, or conferred on, it; and 


(iii)    a cancellation of any such liability; and 


(b)    a variation of any term of any Finance Document to the
extent necessary to give effect to any Bail-In Action in relation
to any such liability.


In this
clause: 


"Bail-In Action" means the exercise of any Write-down
and Conversion Powers. 


"Bail-In Legislation" means in relation to an EEA Member Country which has implemented,
or which at any time implements, Article 55 of Directive 2014/59/EU
establishing a framework for the recovery and resolution of credit institutions
and investment firms, the relevant implementing law or regulation as described
in the EU Bail-In Legislation Schedule from time to time.


"EEA Member Country" means any member state of the European Union, Iceland, Liechtenstein
and Norway. 


"EU Bail-In Legislation Schedule" means
the document described as such and published by the Loan Market Association (or
any successor
person) from time to time. 


"Resolution
Authority" means any body which has authority to exercise any
Write-down and Conversion Powers. 


"Write-down and Conversion Powers" means
in relation to any Bail-In Legislation described in the EU Bail-In Legislation
Schedule from time to time, the powers described as such in relation to that
Bail-In Legislation in the EU Bail-In Legislation Schedule.


 



 

 





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SECTION 2


THE FACILITIES


2.    The Facilities


2.1    The Facilities


Subject to the terms of this Agreement:


(a)    Facility
A: the Facility A Lenders make available to the Borrowers a US
dollar based revolving credit facility for Loans drawable in US dollars and
Australian dollars, in an aggregate amount equal to the Total Facility A
Commitments; and


(b)    Facility B: the Facility B Lenders
make available to the Borrowers an Australian dollar based revolving bank
guarantees facility drawable in US dollars and Australian dollars in an
aggregate amount equal to the Total Facility B Commitments.


(c)    Facility
C: the Facility C Lenders make available to the Borrowers a US
dollar based revolving credit facility for Loans drawable in US dollars and
Australian dollars, in an aggregate amount equal to the Total Facility C
Commitments.


2.2    Finance Parties' rights and obligations


(a)    The obligations of each Finance Party under the Finance Documents
are several.  Failure by a Finance Party to perform its obligations under the
Finance Documents does not affect the obligations of any other Party under the
Finance Documents.  No Finance Party is responsible for the obligations of any
other Finance Party under the Finance Documents.


(b)    The rights of each Finance Party under or in connection with the
Finance Documents are separate and independent rights and any debt arising
under the Finance Documents to a Finance Party from an Obligor 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 for the avoidance of doubt, 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


3.1    Purpose


(a)    Facility A: Utilisations under
Facility A may only be used:


(i)    to refinance
the Term Loan B Facility, the Term Loan C Facility and the ABL Facility; and 



 

 


 



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(ii)    for working capital requirements and for general corporate
purposes of the Group.


(b)    Facility B: Bank Guarantees drawn under Facility B may only be issued in
favour of beneficiaries (which may include the issuers of existing instruments)
in support of the business operations of the Group. 


(c)    Facility C: Utilisations under Facility C may only be used for working
capital requirements and for general corporate purposes of the Group. 


3.2    Monitoring


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


4.    Conditions of Utilisation


4.1    Initial conditions precedent


Subject
to Clause 4.5 (Conditions subsequent – other), 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 a Borrower and the Lenders promptly upon being so satisfied.


The Parties acknowledge and agree that the obligations
under this clause 4.1 were satisfied prior to the Borrower delivering the first
Utilisation Request.


4.2    Further conditions precedent


The Lenders will only be obliged to comply with Clause 5.4  (Lenders' participation) if on the date
of the Utilisation Request and on the proposed Utilisation Date:


(a)    in the case of: 


(i)    a Rollover
Loan, no Event of Default is continuing or would result from the proposed Loan;
and


(ii)    in the case
of any other Utilisation, no Default or Review Event is continuing or would
result from the proposed Utilisation; 


(b)    the Repeating Representations to be made by each Obligor are true
in all material respects and not misleading; and


(c)    despite
Clause 8.2 (Repayments for currency equalisation), the relevant Facility
Commitment is not and will not be exceeded based on a currency conversion at
the Agent’s Spot Rate of Exchange
(where applicable). 


4.3    Maximum number of Utilisations


A Borrower may not deliver a Utilisation Request if as a
result of the proposed Utilisation 10 or more Loans would be outstanding. 
There is no limit to the number of Bank Guarantees that may be outstanding at
any time.



 

 






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4.4    Condition subsequent  – Tax Consolidation


 If not done before the first Utilisation
of a Facility, the Parent must deliver to the Agent in form and substance
satisfactory to the Agent (acting on the instructions of all Lenders) within 40
Business Days after the Listing Date, a certified copy of the Tax Sharing
Agreement and the Tax Funding Agreement to which Coronado Australia Holdings
Pty Limited and all of its Australian incorporated wholly-owned Subsidiaries
are party.


The Parties acknowledge and agree that the obligations
under this clause 4.4 have been satisfied.


4.5    Conditions subsequent – other


(a)    If any of the conditions precedent described in Part I of Schedule 2 (Conditions precedent), other than
those identified in paragraph (b) below, have not been received by the Agent in
form and substance satisfactory to the Agent acting on the instructions of all
Lenders by the proposed Listing Date, then they shall cease to be conditions
precedent to the first Utilisation Request and, subject to Clause 4.5(c), they
must instead be received by the Agent in form and substance satisfactory to the
Agent acting on the instructions of all Lenders (each acting reasonably) by no
later than the 45th day after the Listing Date together with such
other documents referred to in item 1 of Part I of Schedule
2 (Conditions precedent) to enable the delivery of such opinions
referred to in item 3 of Part I of Schedule 2
(Conditions precedent) as the Finance Parties may require with respect
to the items being delivered as conditions subsequent.  To that extent a
condition subsequent arising pursuant to this paragraph (a) is the execution of a
Finance Document, then subject to Clause 4.5(c), the opinions described in item 3 of Part I of Schedule 2 (Conditions
Precedent) must also be delivered in connection with those Finance
Documents no later than the 45th day after the Listing Date.


(b)    Paragraph (a)
does not apply to the matters described in the following items in Part I of Schedule 2 (Conditions precedent) and those
items shall always remain conditions precedent, unless the Agent (acting on the
instructions of all the Lenders) agrees otherwise in writing: 


(i)    item 1(a),
(b) and (c) (insofar as (c) relates to property of Obligors incorporated in
Australia);


(ii)    item 2(a), (b), (c), (e) (insofar as (e) relates to Security to be
granted by Obligors incorporated in Australia but except if and to the extent
the reason why any part of (e) cannot be satisfied over a Relevant Asset is the
absence of a Security Consent), (f), (g), (h), (i) and (j) (insofar as (i) and
(j) relate to Security to be granted by Obligors incorporated in Australia),
(k) and (l);


(iii)    item 3; 


(iv)    item 4 (except if and to the extent the reason why any part of
this item cannot be satisfied over a Relevant Asset is the absence of Security
Consent); and



 

 


 



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(v)    item 5(a),
(b), (c), (d), (e), (f), (g) (insofar as (g) relates to the Winged Horse
Arrangements and Wesfarmers Arrangements) , (h), (i) (except in relation to
reliance letters), (j) and (k).


(c)    If by the 120th day after the Listing Date (or any
later date stipulated by the Agent) any Security Consent has not been obtained
and as a consequence Security over the Relevant Asset as contemplated by a
Transaction Security Document has not been perfected to the satisfaction of the
Agent acting on the instructions of the Majority Lenders (each acting
reasonably), then:


(i)    that failure,
of itself, will not constitute an Event of Default or Review Event; 


(ii)    the Obligors
must promptly (and, in any case, no later than 5 Business Days after the 120th
day after the Listing Date (or any later date stipulated by the Agent)) provide
to the Agent sufficient information in reasonable detail about each missing
Security Consent together with details of the reasonable commercial endeavours
undertaken to obtain the Security Consents; and


(iii)    the Obligors must, on request from the Agent from time to time
(acting on the instructions of the Majority Lenders), again use reasonable
commercial endeavours to obtain that Security Consent and perfect the Security
over that Relevant Asset, and must respond promptly to requests by the Agent
for information concerning progress in that regard together with details of the
reasonable endeavours undertaken to obtain the Security Consents.


(d)    In this Clause, Clause 24.20 (Mining tenements; After-Acquired
Property; Further assurances regarding Secured Property) and Part II of Schedule 2 (Conditions precedent),  “Security Consent” means a consent or permission from a
Governmental Agency, a landlord, a lessor or another person (not being a Group
Member), without which an Obligor may not give or perfect the Security over an
asset that is contemplated by a Transaction Security Document without
contravening a law or breaching a contract, or without which any such Security
would be ineffective or invalid.   “Relevant Asset” means the asset contemplated by a
Transaction Security Document in respect of which a Security Consent is
required.  To avoid doubt, it is acknowledged that,
in using reasonable commercial endeavours to obtain a Security Consent, no Obligor will be required to pay
any fee or pay any other consideration or agree to any commercial change that
would be detrimental to any Obligor.


4.6    US Excluded Property


(a)    Despite anything to the contrary in the Finance Documents, nothing
in the Finance Documents obliges the Obligors to provide to the Security Trustee or any other Finance
Party any Security over any US Excluded Property, or makes the giving of any such
Security a condition to the provision of financial accommodation under the
Finance Documents.  


(b)    If any US Excluded Property is affected by any Transaction
Security, the Security Trustee must do all things reasonably requested by the
Parent to release that property from that Transaction Security. 



 

 


 



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4.7    Group Restructure


The Finance Parties consent to the restructure
of the Group described in the document set out in Schedule 11 (Restructure -
Steps Paper)  by 31 October
2018.  



 

 





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SECTION 3


UTILISATION


5.    Utilisation - Loans


5.1    Utilising Facility A and Facility
C


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


(b)    This Clause 5 does not apply to Utilisations by way of Bank Guarantees, in
respect of which, Clause 6 (Utilisation  – Bank
Guarantees) applies.


5.2    Completion of a Utilisation Request for Loans


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


(i)    it identifies whether the Loan is requested under Facility A or
Facility C;


(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);  


(iv)    the proposed Interest Period complies with Clause 11 (Interest Periods); 


(v)    it is signed by an Authorised Officer of a Borrower.


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


5.3    Currency and amount


(a)    The currency specified in a Utilisation Request under Facility A
or Facility C must be US dollars or Australian dollars.


(b)    The amount of the proposed Loan must be an amount whose Base Currency Amount is not more than Available Facility for Facility
A or Facility C (as the case may be) and must be:


(i)    if in US dollars, a minimum of US$1,000,0000 and a whole multiple
of US$500,000  or, if less, the Available Facility for Facility A or Facility C
(as the case may be); and


(ii)    if in
Australian dollars, a minimum of A$1,000,0000 and a whole multiple of
A$500,000  or, if less, the Available Facility for Facility A or Facility C (as
the case may be).


5.4    Lenders' participation


(a)    If the conditions set out in this Agreement have been met, and
subject to Clause 8.1  (Repayment of
Facility A and Facility C Loans): 



 

 


 



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(i)    if the requested Utilisation is from Facility A, each Facility A
Lender shall make its participation in each Loan available by the Utilisation
Date through its Facility Office; and


(ii)    if the
requested Utilisation is from Facility C, each Facility C 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: 


(i)    for each
Facility A Loan, the proportion borne by its Facility A Available Commitment to
the Available Facility for Facility A immediately prior to making the Loan; and


(ii)    for each
Facility C Loan, the proportion borne by its Facility C Available Commitment to
the Available Facility for Facility C immediately prior to making the Loan.


5.5    Cancellation of Facility A and Facility C Commitments


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


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


6.    Utilisation - Bank Guarantees


6.1    Utilising Facility B 


(a)    Facility B may only be utilised by way of Bank Guarantees.


(b)    Clause 5 (Utilisation - Loans) does not apply to Utilisations by
way of Bank Guarantees.


(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 bank guarantee or other
instrument provided for outstanding Bank Guarantees.


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


6.2    Delivery of a Utilisation Request for Bank Guarantees


A Borrower may request a Bank Guarantee to be issued by
delivery to the Issuing Bank (with a copy to the
Agent) of a duly completed Utilisation Request not later than 11:00am
(Sydney time) on the third Business Days before proposed Utilisation Date. A
Borrower must use its reasonable commercial endeavours to ensure, that each
Issuing Bank has, to the extent practicable, an amount of Bank Guarantees
issued by it outstanding that is proportionate to its Facility B Commitment.



 

 






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6.3    Completion of a Utilisation Request for Bank Guarantees


Each Utilisation Request for a Bank Guarantee is
irrevocable and will not be regarded as having been duly completed unless:


(a)    it specifies that it is for a Bank Guarantee;


(b)    the proposed Utilisation Date is a Business Day within the
Availability Period for Facility B;


(c)    the currency and amount of the Bank Guarantee comply with Clause
6.4 (Currency and amount); 


(d)    the form of Bank Guarantee is attached and is in the form that has
been agreed in writing by the Issuing Bank;


(e)    if the Bank Guarantee is to have an Expiry Date (which it need
not), it specifies that fact and the Expiry Date of the Bank Guarantee must
fall on or before the Termination Date;


(f)      the delivery
instructions for the Bank Guarantee are specified;


(g)    the identity of the beneficiary of the Bank Guarantee is approved
by the Issuing Bank; 


(h)    the underlying contract or agreement or obligation in respect of which the
Bank Guarantee is issued is specified; and


(i)    it is signed  by an Authorised Officer of
a Borrower.


6.4    Currency and amount


(a)    The currency specified in a Utilisation Request, and the denomination of a Bank Guarantee, to be issued
under Facility B may be either Australian dollars
or US dollars.  A Bank Guarantee may only
be issued in one currency.


(b)    The amount of the proposed Bank Guarantee must not be more than the Issuer’s Available Commitment for
Facility B.


6.5    Issue of Bank Guarantees


(a)    If the conditions set out in this Agreement have been met, the
Issuing Bank shall issue the Bank Guarantee on the Utilisation Date.


(b)      


(i)    The Issuing
Bank will only be obliged to comply with paragraph (a) above if on the date of
the Utilisation Request and on the proposed Utilisation Date, no Default or Review Event 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.



 

 






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(c)    The Issuing
Bank 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 Bank may assume that
those conditions have been met unless it is expressly notified to the contrary
by the Agent.  The Issuing Bank will have no liability to any person for
issuing a Bank Guarantee based on such assumption.


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


(e)    Subject to paragraph (j) of Clause 29.7 
(Rights and discretions), each of the Issuing Bank and the Agent shall
provide the other with any information reasonably requested by the other that
relates to a Bank Guarantee and its issue.


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


6.6    Notification of the Agent


The Issuing Bank shall, upon request, provide to the Agent
details of all Bank Guarantees issued under this Agreement including details of
the initial face value of each Bank Guarantee, the tenor, the Expiry Date, the
relevant Borrower and the beneficiary under that Bank Guarantee.


6.7    Reduction or expiry of Bank Guarantee


If the amount of any Bank Guarantee is wholly or partially
reduced or it is repaid or prepaid or it expires prior to its Expiry Date, the
relevant Issuing Bank and the Borrower that requested the issue of that Bank
Guarantee shall promptly notify the Agent of the details upon becoming aware of
them.


6.8    Bank Guarantee which does not expire before Termination Date


A Bank Guarantee may be issued with or without an Expiry
Date. If a Bank Guarantee does not have an
Expiry Date, or the Expiry Date of the Bank Guarantee is after the Termination
Date, the Borrower that requested the issue of that Bank Guarantee shall repay
or prepay the Bank Guarantee on the Termination Date.


7.    Bank Guarantees


7.1    Claims under a Bank Guarantee


(a)    Each Borrower irrevocably and unconditionally authorises the
Issuing Bank to pay any claim made or purported to be made under a Bank
Guarantee requested by it and which appears on its face to be in order and to
make any payment under Clause 7.4 (Restrictions on voluntary pay-out of Bank
Guarantees), each of a claim or payment under Clause 7.4 (Restrictions
on voluntary pay-out of Bank Guarantees) is a "claim"). 


(b)    The relevant Borrower shall pay to the Issuing Bank an amount
equal to the amount of any claim on the day on which the Issuing Bank pays that
claim.  If the Borrower does not pay this amount to the Issuing Bank on the
date on which the Issuing Bank pays the claim then, subject to clauses 7.1(c)
and 7.1(d), interest shall accrue on the 



 

 


 



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amount from that date up to
the actual date of payment in accordance with Clause 10.3 
(Default interest). 


(c)    If under this Agreement, a Borrower is obliged to pay or indemnify
the Issuing Bank for amounts
paid or payable under a claim under a Bank
Guarantee, and the Borrower does not
discharge that obligation on or before the day on
which the Issuing Bank pays that claim, the Borrower shall (unless the Borrower notifies the Issuing Bank otherwise) be
deemed to have requested:


(i)    if that Bank Guarantee is denominated
in Australian dollars, a Loan under
Facility A or Facility C in Australian dollars; or


(ii)    if that Bank Guarantee is denominated
in US dollars, a Loan under Facility A or
Facility C in US dollars,


in accordance with paragraph (d) below.


(d)    On the date the Issuing Bank pays a claim made under a Bank
Guarantee, the Borrower shall be deemed
to have delivered to the Agent a duly completed Utilisation Request requesting
a Loan under Facility A (or, if there is insufficient Available Facility under Facility A, then under Facility C) in Australian dollars (if that Bank Guarantee is denominated in Australian dollars) or US dollars
(if that Bank
Guarantee is denominated in US dollars):


(i)    for an amount equal to the amount of the claim (if applicable, less any cash
cover); 


(ii)    for an Interest Period of 3 Months or such other period of up to 6
Months as notified by the relevant Borrower to the Agent prior to the Utilisation
Date; and


(iii)    with a Utilisation Date on the third Business Day after the Issuing Bank pays the
relevant claim.


The proceeds of the Loan shall be used to reimburse the Issuing
Bank for the amount paid in response to the relevant claim.  Interest accrues
on the amount paid by the Issuing Bank from (and including) the date of payment
to (but excluding) the date it receives the Loan proceeds, in accordance with
clause 7.1(b).


(e)    Each Borrower
acknowledges that the Issuing Bank:


(i)    may make payments under a Bank Guarantee by any means that it
determines;


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


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



 

 






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


(f)    The obligations of a Borrower under this Clause 7.1  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 Bank
Guarantee; or


(iv)    any failure by any person to obtain any Authorisation required or
desirable in connection with any Bank Guarantee.


7.2    Indemnities


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


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


(c)    The obligations of any Borrower under this Clause 7.2 (Indemnities)
will not be affected by any act, omission, matter or thing which, but for this
Clause 7.2 (Indemnities), would reduce, release or prejudice any of its
obligations under this Clause 7.2 (Indemnities) (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 Bank Guarantee 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 Group Member;


(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 



 

 


 



 71  










       




of, any Obligor, any
beneficiary under a Bank Guarantee 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 Bank Guarantee or any other person;


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


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


(vii)    any insolvency or similar proceedings.  


7.3    Rights 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.


7.4    Restrictions on voluntary pay-out of
Bank Guarantees


Despite the terms of any
issued Bank Guarantee, an Issuing
Bank may cancel a Bank Guarantee, by paying to the beneficiary of the relevant Bank
Guarantee the outstanding amount of the Bank Guarantee or any lesser amount
specified by the beneficiary, but only if: 


(a)    an Event of Default is continuing; or


(b)    the Issuing Bank would be entitled to exercise its rights under Clause 9.2 (Illegality in relation to Bank Guarantee) or Clause 33.11 (Anti-Money Laundering). 



 

 





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SECTION 4


REPAYMENT, PREPAYMENT AND
CANCELLATION


8.    Repayment


8.1    Repayment of Facility A and Facility C Loans


(a)    Each Borrower which has drawn a Loan shall repay that Loan on the
last day of its Interest Period.


(b)    Without prejudice to each Borrower's obligation under paragraph
(a) above, if:


(i)    one or more Loans are to be made available to a Borrower under the
same Facility (whether Facility A or Facility C):


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


(B)    in the same currency as the maturing Loan; and


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


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


the aggregate amount of the new 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 Loan so that:


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


(1)    the relevant
Borrower will only be required to make a payment under Clause 33.1  (Payments to the Agent) in an amount in
the relevant currency equal to that excess; and


(2)    each Lender's
participation in the new 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 Loan and that Lender will not be required to make
a payment under Clause 33.1  (Payments to
the Agent) in respect of its participation in the new Loans; and


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


(1)    the relevant
Borrower will not be required to make a payment under Clause 33.1  (Payments to the Agent); and



 

 






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(2)    each Lender will be required to make a payment under Clause 33.1  (Payments to the Agent) in respect of
its participation in the new Loans only to the extent that its participation in
the new Loans exceeds that Lender's participation in the maturing Loan and the
remainder of that Lender's participation in the new 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 Loan.


8.2    Repayments for currency equalisation:
Facility A


(a)    On the last day of each Quarter, on receipt of a Utilisation
Request in respect of Facility A and on each Utilisation Date in respect of
Facility A the Agent may recalculate the Facility A Base Currency Amount of
each Loan denominated in Australian dollars by notionally converting the
outstanding amount of that Loan into Facility A Base Currency using the Agent's
Spot Rate of Exchange on the date of calculation. 


(b)    If at any time the aggregate Facility A Base Currency Amount of
all Loans outstanding under Facility A (after converting Loans denominated in
Australian dollars in accordance with paragraph (a)) (the Aggregate Base
Currency Amount) exceeds 110% of the Facility A Commitment then a Borrower shall:


(i)     (subject to paragraph (ii) below), within 5 Business Days of
written notice from the Agent, ensure that Loans are prepaid in an amount equal
at least to the difference between the Aggregate Base Currency Amount and the Facility A
Commitment; or 


(ii)    if prepaying Loans in the time specified in paragraph (i) above
would cause the Borrower to incur Break Costs, the Borrower may instead pay an amount equal at least to the difference between the Aggregate
Base Currency Amount and the Facility A Commitment to a blocked suspense
account of the Agent to be applied in prepayment of Loans on the last day of
the current Interest Period for such Loans. 


8.3    Cash cover for currency equalisation: Facility B


(a)    On the last day of each Quarter, on receipt of a Utilisation
Request in respect of Facility B and on each Utilisation Date in respect of
Facility B the Agent may recalculate the Facility B Base Currency Amount of
each outstanding Bank Guarantee issued by a Facility B Lender that is denominated in US dollars by notionally
converting the outstanding amount of each such Bank Guarantee into Facility B
Base Currency using the Agent's Spot Rate of Exchange on the date of
calculation. 


(b)    If at any time the aggregate Facility B Base Currency Amount of
all outstanding Bank Guarantees issued by a Facility B Lender under Facility B (after converting
Bank Guarantees denominated in US dollars in accordance with paragraph (a))
(the Aggregate Base Currency Amount) exceeds 110% of that Lender’s Facility B Commitment then
the Borrower shall within 5 Business Days of written notice from the Agent, pay
cash cover in Australian dollars to that Lender in an amount equal at 



 

 


 



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least to the difference
between the Aggregate Base Currency Amount and its Facility B Commitment, to be held on the terms of Clause 25.21 (Cash
cover).  If the Facility B Lender (exercising its rights under clause 1.7 (Administration in connection with Facility B)) issues a notice under this clause rather than the Agent, that
Lender must give a copy of that notice to the Agent at the same time.  


8.4    Repayments for currency equalisation: Facility C


(a)    On the last day of each Quarter, on receipt of a Utilisation
Request in respect of Facility C and on each Utilisation Date in respect of Facility C the Agent may
recalculate the Facility C Base Currency Amount of each Loan denominated in Australian dollars by
notionally converting the outstanding amount of that Loan into Facility C Base
Currency using the Agent's Spot Rate of Exchange on the date of calculation. 


(b)    If at any time the aggregate Facility C Base Currency Amount of
all Loans outstanding under Facility C (after converting Loans denominated in
Australian dollars in accordance with paragraph (a)) (the Aggregate Base Currency Amount)
exceeds 110% of the Facility C Commitment then a Borrower shall:


(i)    (subject to paragraph (ii) below), within 5 Business Days of
written notice from the Agent, ensure that Loans are prepaid in an amount equal
at least to the difference between the Aggregate Base Currency Amount and the
Facility C Commitment; or 


(ii)    if prepaying
Loans in the time specified in paragraph (i) above would cause the Borrower to
incur Break Costs, the Borrower may instead pay an amount equal at least to the difference between the Aggregate
Base Currency Amount and the Facility C Commitment to a blocked suspense
account of the Agent to be applied in prepayment of Loans on the last day of
the current Interest Period for such Loans. 


8.5    Bank Guarantees outstanding on the Termination Date


In respect of each Bank Guarantee issued under Facility B that
remains outstanding on the Termination Date, the Borrower must place cash cover
with the Issuing Bank, to the value of that bank’s potential liability under
that Bank Guarantee and in the same currency as that liability, to be held on
the terms of Clause 25.21 (Cash cover) or otherwise repay or prepay that
Bank Guarantee.


8.6    Term out of Defaulting Finance Party's Facility A Utilisations or Facility C Utilisations


(a)    When a Facility A Lender or a Facility C Lender becomes a
Defaulting Finance Party, the participation of that Lender in the Loans then
outstanding denominated in any currency will be treated as a separate Facility
A Utilisation or Facility C Utilisation (as the case may be) denominated in
that currency (the "Separate Loans") and the maturity date of
that Utilisation will be automatically extended to the Termination Date.


(b)    A Borrower may prepay any such Utilisation if it gives at least 5
Business Days' prior notice to the Agent, who shall promptly notify the
relevant Defaulting Finance Party.



 

 






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(c)    If the
Borrower makes a prepayment of a Facility A Utilisation or Facility C
Utilisation (as the case may be), a Borrower to whom a Separate Loan is
outstanding may prepay that Separate Loan by giving not less than 5 Business
Days' prior notice to the Agent.  The proportion borne by the amount of the
prepayment of the Separate Loan to the amount of the Separate Loans shall not exceed
the proportion borne by the amount of the prepayment of the Facility A
Utilisation to the Facility A Utilisations or the Facility C Utilisation to the
Facility C Utilisations (as the case may be). The Agent will forward a copy of
a prepayment notice received in accordance with this paragraph (c) to the
Defaulting Finance Party concerned as soon as practicable on receipt.


(d)    Interest in respect of any such Utilisation will accrue for
successive Interest Periods selected by the Borrower by the time and date
specified by the Agent (acting reasonably) and will be payable by that Borrower
to the Agent (for the account of that Defaulting Finance Party) on the last day
of each such Interest Period.


9.    Prepayment and Cancellation


9.1    Illegality


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


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


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


(c)    to the extent that the Lender's participation has not been
transferred pursuant to Clause 9.4 (b) (Restrictions), each
Borrower shall repay that Lender's participation in the Utilisations made to
that Borrower on the last day of the Interest Period for each Utilisation
occurring after the Agent has notified the Borrowers 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 cancelled in the amount of the
participations repaid.


9.2    Illegality in relation to Bank Guarantee


If, in any applicable jurisdiction, it becomes unlawful (or
impossible as a result of a change in law or regulation) for the Issuing Bank
to issue or leave outstanding any Bank Guarantee:


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


(b)    upon the Agent notifying the Borrowers, the Issuing Bank shall not
be obliged to issue any Bank Guarantee;


(c)    the Borrowers shall use their best endeavours to procure the
release of each Bank Guarantee issued by the Issuing Bank and outstanding at
such time on or before the 



 

 


 



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date specified by the Issuing
Bank in the notice delivered to the Agent (being no earlier than the last day
of any applicable grace period permitted by law); and


(d)    if that results in there being no Facility B Commitments, Facility
B shall cease to be available for the issue of Bank Guarantees. 


9.3    Voluntary cancellation


The Borrowers may, if they gives the Agent not less than 3
Business Days' (or such shorter period as the Majority Lenders may agree) prior
notice, cancel the whole or any part of an Available Facility, subject, in the
case of part cancellations, to:


(a)    Facility A: it being in
a minimum amount of US$1,000,000
and an integral multiple of US$500,000; and


(b)    Facility B: it being in
a minimum amount of A$1,000,000 and an integral multiple of A$500,000.  


(c)    Facility C: it being in
a minimum amount of US$1,000,000 and an integral multiple of US$500,000.  


Any cancellation under this Clause 9.3 
shall reduce the Commitments of the Lenders rateably under that Facility.


9.4    Voluntary prepayment of Loans


(a)    A Borrower to which a Facility A Loan has been made may, if it
gives the Agent not less than 3 Business Days' (or such shorter period as the
Majority Lenders 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 Facility A Base Currency Amount of the Loan by a minimum amount of US$100,000).


(b)    A Borrower to
which a Facility C Loan has been made may, if it gives the Agent not less than 3
Business Days' (or such shorter period as the Majority Lenders may agree) prior
notice, prepay the whole or any part of any Facility C Loan (but, if in part,
being an amount that reduces the Facility C
Base Currency Amount of the Loan by a minimum amount
of US$100,000).


9.5    Restrictions


(a)    Any notice of
cancellation or prepayment given under this Clause 9 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 relevant currency amount of that cancellation or prepayment.


(b)    Any
prepayment under this Agreement shall be made together with accrued interest on
the amount prepaid in the relevant currency and, subject to any Break Costs,
without premium or penalty.


(c)    Unless a
contrary indication appears in this Agreement, any part of Facility A or
Facility C which is prepaid or repaid may be reborrowed in accordance with the
terms of this Agreement.



 

 


 



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9.6    Right of replacement or repayment and cancellation in relation to
a single Lender or Issuing Bank


(a)    If:


(i)    a
Lender is a Non-Consenting Lender;


(ii)    an Obligor becomes obliged to pay any amount in accordance with Clause 9.1 (Illegality)
to any Lender;


(iii)    a Lender becomes an Affected Lender (as defined in Clause 12.3 (Market
disruption)) and no substitute basis for determining the rate of interest
payable to the Lender is agreed at the end of the period provided for by Clause
12.4(b) (Cost of funds);  


(iv)    any sum payable to any Lender by an Obligor is required to be
increased under Clause 14.2(c) (Tax  gross-up); 


(v)    any Lender claims any sum from the Borrower under Clause 14.3  (Tax indemnity)
or Clause 16.1  (Increased costs) ; or


(vi)    a Facility B Lender is not or ceases to be an “approved security provider” as defined in section 36 of the Financial
and Performance Management Standard 2009 (Qld),


the Borrower may:


(vii)    in the case of sub-paragraph (a)(i), within 120 days after the
relevant Lender becoming a Non-Consenting Lender; or 


(viii)    in all other cases, whilst the circumstance giving rise to the
requirement for that increase or claim continues,


give the Agent and the relevant Lender:


(ix)    notice of cancellation of the Commitment of that Lender and its intention to procure the
repayment of that Lender's participation in the Loans; or


(x)    notice of its intention to replace that Lender in accordance with paragraph (d) below.


(b)    On receipt of a notice of cancellation referred to in paragraph
(a) above in relation to a Lender, the Commitment of that Lender shall
immediately be 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 each Loan and all accrued interest, Break Costs
and other amounts payable in relation thereto under the Finance Documents.


(d)    If any of the circumstances set out in paragraph (a) above apply
to a Lender, the Borrower may, on 10 Business Days' prior notice to the Agent
and that Lender, 



 

 


 



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replace that Lender by requiring
that Lender to (and, to the extent permitted by law, that Lender shall)
transfer pursuant to Clause 26 (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
26 (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 Loans and all accrued interest,
Break Costs and other amounts payable in relation thereto under the Finance
Documents.


(e)    The replacement of a Lender pursuant to paragraph (d) above shall be subject to
the following conditions:


(i)    the Borrower shall have no right to replace the Agent;


(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 pursuant to the Finance
Documents; and


(iv)    the Lender shall only be obliged to transfer its rights and
obligations pursuant to 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; and


(v)    in the case of any replacement of a Lender resulting from payments
required to be made pursuant to paragraph (a)(iv) above or a claim for
compensation under paragraph (a)(v) above, such transfer of rights and
obligations pursuant to paragraph (d) above will result in a reduction in such
payments or compensation thereafter.


(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.


9.7    Right of cancellation in relation to a Defaulting Finance Party


(a)    The Borrowers may give the Agent 5 Business 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.



 

 






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(c)    The Agent
shall notify all the Lenders as soon as practicable after receiving the notice.


9.8    Review Event


If a Review Event occurs:


(a)    The Borrowers shall promptly notify the Agent upon becoming aware
of that event.  If the Agent becomes aware of a Review
Event that has not been notified, it may give the Borrowers a notice of that
Review Event.


(b)    Once a notice is given under paragraph (a), a Lender shall not be
obliged to fund a Utilisation (except for a Rollover Loan) for so long as the Review Event continues.


(c)    The Obligors and the Lenders must enter into negotiations for a
period of up to 30 days
after a notice is given under paragraph (a), with a view to agreeing terms on
which:


(i)    if the Review
Event is a Change of Control, all Lenders; or


(ii)    in any other
case, the Majority Lenders, 


would be prepared to offer to provide, fund or maintain all or any
of the Facilities.


(d)    If agreement
is reached, the Obligors must promptly do all acts and execute all documents as
the Majority Lenders reasonably require to document, or to protect, preserve or
secure the Finance Parties’
rights and interests under, such agreement.


(e)    If agreement is not reached within 30 days after a notice is given
under paragraph (a), or if (in the opinion of the Majority Lenders) any of the
Obligors do not do all acts and execute all documents as the Majority Lenders
reasonably require to document, or to protect, preserve or secure for the
Finance Parties’ rights and
interests under, any agreement, the Agent, acting on the instruction of: 


(i)    any Lender if
the Review Event is a Change of Control; or


(ii)    the Majority
Lenders in any other case,


may by giving written notice to the
Borrower:


(iii)    cancel the
whole or any part of a Facility whereupon it will be immediately cancelled; and


(iv)    declare that
all or any part of the outstanding Utilisations, together with accrued
interest, and all other amounts accrued under the Finance Documents is due and
payable whereupon it will be due and payable within 60 days.


(f)    If the
Borrower fails to prepay all amounts payable under Clause (e) within 60 days,
that failure will constitute an Event of Default.


(g)    To avoid
doubt, neither the failure to reach
agreement nor the giving of a notice under this Clause 9.8 constitutes an Event of Default.



 

 





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SECTION 5


COSTS OF UTILISATION


10.    Interest


10.1    Calculation of interest


The rate of interest on each Loan for each Interest Period
is the percentage rate per annum which is the aggregate of the applicable:


(a)    Margin; and


(b)    in relation to any Loan in:


(i)    Australian
dollars, BBSY Bid; and


(ii)    US dollars,
LIBOR.


10.2    Payment of interest


The Borrower to which a Loan has been made shall pay
accrued interest in the relevant currency on that Loan on the last day of each
Interest Period (and, if the Interest Period is longer than six Months, on the
dates falling at six-monthly intervals after the first day of the Interest
Period).


10.3    Default interest


(a)    If an Obligor fails to pay any amount payable by it under a
Finance Document on its due date, interest shall accrue on the overdue amount
from the due date up to the date of actual payment (both before and after
judgment) at a rate which, subject to paragraph (b) below, is the sum of 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 10.3  (Default interest) 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)    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.



 

 






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10.4    Notification of rates of interest


(a)    The Agent shall promptly notify the relevant Lenders and the
relevant Borrower of the determination of a rate of interest under this
Agreement.


(b)    The Agent shall promptly notify the relevant Borrower of each
Funding Rate relating to a Loan.


11.    Interest Periods


11.1    Selection of Interest Periods


(a)    A Borrower may select an Interest Period for a Loan in the
Utilisation Request for that Loan or (if the Loan has already been borrowed) in
a Selection Notice.


(b)    Each Selection Notice for a Loan is irrevocable and must be
delivered to the Agent by the Borrower to which that Loan was made not later
than the Specified Time.


(c)    If a Borrower fails to deliver a Selection Notice to the Agent in
accordance with paragraph (b) above, the relevant Interest Period will, be the
same duration as the Interest Period just ended.


(d)    Subject to this Clause 11 (Interest Periods), a Borrower
may only select Interest Periods of:


(i)    1, 2, 3 or 6
Months for Loans denominated in US dollars; and


(ii)    1, 2, 3 or 6
Months for Loans denominated in Australian dollars,


or another period agreed by the Majority Lenders.


(e)    For any
Interest Period of less than 3 months, BBSY Bid or LIBOR (as applicable) will be the 3 Month BBSY Bid or 3 Month LIBOR (as applicable)
and any reference to the length of an Interest Period in Clause 12 (Changes to the Calculation of Interest) will be construed on this basis.


(f)    An Interest
Period for a Loan shall not extend beyond the Termination Date.


(g)    Each Interest Period for a Loan shall start on the Utilisation Date
or (if already made) on the last day of its preceding Interest Period.


11.2    Non-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).


11.3    Consolidation and division of Loans


(a)    Subject to paragraph (b) below, if two or more Interest Periods:


(i)    relate to Loans made to the same Borrower under the same Facility;



(ii)    in the same
currency; and


(iii)    end on the same date,



 

 





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those Loans will, unless that
Borrower (or a Borrower on its behalf) specifies to the contrary in the
Selection Notice for the next Interest Period, be consolidated into, and
treated as, a single Loan on the last day of the Interest Period.


(b)    Subject to Clause 4.3  (Maximum
number of Utilisations) and Clause 5.3  (Currency
and amount), if a Borrower (or a Borrower on its behalf) requests in a
Selection Notice that a Loan be divided into two or more Loans, that Loan will,
on the last day of its Interest Period, be so divided with amounts specified in
that Selection Notice, being an aggregate amount equal to the amount of the
Loan immediately before its division.


12.    Changes to the Calculation of Interest


12.1    Unavailability of Screen Rate


(a)    Interpolated Screen Rate: If no
Screen Rate is available for BBSY Bid or LIBOR (as the case may be) for the
Interest Period of a Loan, the applicable BBSY Bid or LIBOR (as the case may
be) shall be the Interpolated Screen Rate for a period equal in length, subject
to Clause 11.1(e) (Selection of Interest Periods), to the Interest
Period of that Loan.


(b)    Reference Bank Rate:  If no
Screen Rate is available for BBSY Bid or LIBOR (as the case may be) for:


(i)    the currency of a Loan; or


(ii)    the Interest Period of a Loan and it is not possible to calculate
the Interpolated Screen Rate,


the applicable BBSY Bid or LIBOR (as the case may be) shall be the
Reference Bank Rate as of the Specified Time for the currency of that Loan and
for a period equal in length, subject to Clause 11.1(e) (Selection of
Interest Periods),  to the Interest Period of that Loan.


(c)    Cost of Funds: If paragraph (b) above
applies but no Reference Bank Rate is available for the relevant currency and
Interest Period there shall be no BBSY Bid or LIBOR (as the case may be) for
that Loan and Clause 12.4  (Cost of funds)
shall apply to that Loan for that Interest Period.


12.2    Calculation of Reference Bank Rate


(a)    Subject to paragraph (b) below, if BBSY Bid or LIBOR (as the case
may be) is to be determined on the basis of a Reference Bank Rate but a
Reference Bank does not supply a quotation by the Specified Time, the Reference
Bank Rate shall be calculated on the basis of the quotations of the remaining
Reference Banks.



 

 






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(b)    If at or
about noon (Sydney time) on the Quotation Day none or only one of the Reference
Banks supplies a quotation, there shall be no Reference Bank Rate for that
Interest Period.


12.3    Market disruption


If before 5pm (Sydney time) on the Business Day after the
Quotation Day for the relevant Interest Period the Agent receives notifications
from Lender or
Lenders (whose participations in a Loan exceed 35 per cent of that Loan) that as a result of market circumstances not limited to it
(whether or not those circumstances, or their effect on the Lender’s cost of funds,
subsist on the date it becomes a Lender), the cost to it of funding its
participation in that Loan (from whatever source it may reasonably select)
would be in excess of BBSY Bid or LIBOR (as the case may be) (in which case an
"Affected Lender" will be a Lender which gives such a
notification), then Clause 12.4  (Cost of
funds) shall apply to the participation in the Loan of each Affected Lender
for the relevant Interest Period.


12.4    Cost of funds


(a)    If this Clause 12.4  (Cost of
funds) applies, 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)    


(A)    in the circumstances described in Clause 12.3 
(Market disruption), the rate notified to the Agent by the relevant
Affected Lender; and


(B)    in the circumstances described in Clause 12.1 
(Unavailability of Screen Rate), the rate of interest notified to the
Agent by the Lender,


to be that which expresses as a percentage
rate per annum, the cost to the Lender of funding its participation in that
Loan from whatever source it may reasonably select.  That rate is to be
notified as soon as practicable and in any event before interest is due to be
paid in respect of that Interest Period.


(b)    If this Clause 12.4  (Cost of
funds) applies and the Agent or a Borrower so requires, the Agent and a
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 pursuant to paragraph (a) above
shall, with the prior consent of all the Lenders and a Borrower, be binding on
all Parties.


12.5    Agent's role 


The Agent shall promptly notify the
Borrowers if there is a market disruption event under Clause 12.3  (Market disruption) and of the identity
of any Lender or Lenders giving a notice under that Clause.



 

 






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12.6    Break Costs


(a)    Each Borrower shall, within three Business Days of demand by a
Finance Party, pay to that Finance Party its Break Costs attributable to all or
any part of a Loan or Unpaid Sum being paid by that Borrower on a day other
than the last day of an Interest Period for that Loan or Unpaid Sum.


(b)    Each Lender shall, as soon as reasonably practicable after a
demand by the Agent or the Borrower, provide a certificate confirming the
amount of its Break Costs for any Interest Period in which they accrue.


13.    Fees


13.1    Commitment fee


(a)    The Borrowers shall pay: 


(i)    to the Agent
for the account of each Facility A Lender, a fee (in US dollars) computed at
the rate of 50 per cent of
the applicable Margin per annum on that Lender's Available Commitment under
Facility A for the Availability Period applicable to Facility A; and


(ii)    subject to
Clause 1.7 (Administration in
connection with Facility B) to a Facility B Lender, a fee (in Australian
dollars) computed at the rate of 50 per cent of the applicable Margin per annum
on that Lender's Available Commitment under Facility B for the Availability
Period applicable to Facility B.


(iii)    to the Agent for the account of each Facility C Lender, a fee (in
US dollars) computed at the rate of 50 per cent of the applicable Margin per
annum on that Lender's Available Commitment under Facility C for the
Availability Period applicable to Facility C.


(b)    The accrued
commitment fee is payable in arrears on the last day of each Quarter 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.


13.2    Arrangement and underwriting fee


The Borrowers shall pay to the Arranger an arrangement fee
in the amount and at the times agreed in a Fee Letter.


13.3      Establishment Fee


The Borrowers shall pay to the Agent an establishment fee
in the amount and at the times agreed in a Fee Letter.


13.4    Agency and Security Trustee fee and US
Security Agent fee


(a)    The Borrowers
shall pay to the Agent and the Security Trustee (for their own respective
account) an agency fee and security trustee fee in the amount and at the times
agreed in a Fee Letter.



 

 


 



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(b)    The Borrowers shall pay to any US Security Agent appointed from
time to time an agency fee (for the US Security Agent’s own account) in the amount and at the
times agreed in a Fee Letter. 


13.5    Fees payable in respect of Bank Guarantees


(a)    Each Borrower
shall pay to the Issuing Bank a Bank Guarantee fee, computed at:


(i)    for a Bank
Guarantee that is a performance guarantee, a rate equal to 70 per cent of the
Margin applicable to a Loan (where “performance guarantee” means an instrument under
which the obligation to pay is triggered by the relevant Obligor’s failure to perform an
obligation in favour of a third party other than a payment obligation); and


(ii)    for a Bank
Guarantee that is a financial guarantee, a rate equal to the Margin applicable
to a Loan (where “financial
guarantee” means an instrument under which the obligation to pay is triggered by the relevant
Obligor’s failure to perform a payment obligation in favour of a third
party.  A Bank Guarantee lodged in lieu of cash or other liquid financial
instruments is to be categorised as a “financial guarantee” for these purposes)


on the outstanding amount of each requested Bank Guarantee and in
the currency of that Bank Guarantee, for the period from the issue of that Bank
Guarantee until its Expiry Date or if the Bank Guarantee does not have an
Expiry Date, until the Bank Guarantee is repaid in one of the ways set out
Clauses 1.2(g)(ii)  to 1.2(g)(iv).  


(b)    The accrued
Bank Guarantee fee on a Bank Guarantee shall be payable on the last day of each
Quarter.  


(c)    If a Borrower provides cash cover in respect of any Bank
Guarantee:


(i)    the Bank Guarantee fee shall continue to be payable until the
expiry of the Bank Guarantee; and


(ii)    each Borrower shall be entitled to apply interest accrued on the
cash cover to pay the fees described in paragraph (i) above provided that no Event of Default is
continuing.



 

 





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SECTION 6


ADDITIONAL PAYMENT
OBLIGATIONS


14.      Tax Gross Up and Indemnities


14.1    Definitions


(a)       In this Clause 14 (Tax
Gross Up and Indemnities):


"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 14.2  (Tax Gross-up) or a payment under Clause
14.3  (Tax indemnity). 


14.2    Tax 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 Borrowers 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 Finance Party it shall notify a
Borrower and that Obligor.


(c)       If a Tax Deduction is required by law to be made by an Obligor or
an applicable withholding agent except in relation to a Tax described in Clause
14.4 (Exclusions), the Obligor shall pay
an additional amount together with the payment so that, after making any Tax
Deduction (including Tax Deduction applicable to the additional amount payable
under this Clause), the Finance Party receives an amount equal to the sum 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 to the relevant taxing authority 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 and/or (as applicable) any appropriate payment
paid to the relevant taxing authority.


14.3    Tax indemnity


(a)       Subject to Clause 14.4 (Exclusions)  and except if they are compensated for by the payment of an additional amount under
Clause 14.2 (Tax
gross-up),  the Borrowers 



 

 


 



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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. A certificate as to the amount of such
loss, liability or cost suffered for or on account of Tax delivered to a
Borrower by a Protected Party, or by the Agent on its own behalf or on behalf
of a Protected Party, shall be conclusive absent manifest error. 


(b)       A Protected
Party making or intending to make a claim pursuant to Clause 14.3(a) 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.


(c)        A Protected Party shall,
on receiving a payment from an Obligor under this Clause 14.3, notify the Agent. 


14.4    Exclusions


(a)       Clauses 14.2 (Tax gross-up) and 14.3 (Tax indemnity)  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 on interest or amounts in the nature of
interest paid or payable in respect of Utilisations under Facility A or
Facility B; or


(iii)   (where the relevant Finance Party is an Australian resident, or a non-resident carrying on
business in Australia or through a permanent establishment of the non-resident
in Australia) if the Tax is imposed because that Finance Party has not supplied an
appropriate tax file number, an Australian business number or other exemption
details; or  


(iv)   with respect to a Tax
which would not be required to be deducted by the Obligor if, the Commissioner
of Taxation of the Commonwealth of Australia had not given a notice under
section 260-5 of Schedule 1 of the Australian Taxation  Administration Act 1953 (Cth) or section 255 of the Tax Act requiring the relevant
Obligor to deduct that Tax from any payment to be made by the Obligor to the Finance Party; or



 

 


 



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(v)    with respect to a Tax Deduction required to be made for a US
federal withholding tax, to the extent any such Tax Deductions imposed on
amounts payable to or for the account of a Lender with respect to an applicable
interest in a Loan pursuant to a law in effect on the date on which (x) the
Lender acquires such interest in the Loan or (y) such Lender changes its
Facility Office, except in each case of (x) and (y) to the extent that,
pursuant to Clause 14, amounts with
respect to such Taxes were payable either to such Lender's assignor immediately
before such Lender became a party hereto or to such Lender immediately before
it changed its Facility Office; or


(vi)   if the Tax Deduction is required
to be made as a result of a breach by the Finance Party of any of its
obligations under Clause 15 (US Tax Matters); 


(vii)  if the Tax Deduction is required to
be made as a result of any representation or warranty given by the Finance
Party (and not its predecessors) under Clause 15.3 (US Tax Matters)
being untrue; or


(viii) to the  extent the relevant loss,
liability or cost relates to a FATCA Deduction required to be made by a Party.


14.5    Tax 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 30 (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. If an Obligor at any time requests that a
Finance Party make a determination under this Clause the Finance Party
must do so in good faith and provide the Borrower with the results of that
determination in writing, within reasonable time of the request (it being
understood that the determination shall be made in the Finance Party’s absolute
discretion).


14.6    Stamp duties
and Taxes


The Borrowers 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, documentary or other similar Tax payable in respect of any
Finance Document except Transfer Certificates (other than Transfer Certificates
executed 



 

 





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pursuant to Clause 9.6 (Right of replacement or
repayment and cancellation in relation to a single Lender or Issuing Bank). 


14.7    Indirect 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 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.


14.8    FATCA
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;


(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 pursuant to 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.



 

 






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(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, for the avoidance of
doubt, 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.


14.9    FATCA
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.


(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 a Borrower and the Agent and the Agent shall notify the
other Finance Parties.


15.      US TAX MATTERS  


15.1    Finance  Party’s Obligations


(a)       Without limiting the generality
of Clause 14.4 (Exclusions): 


(i)     each Lender (other than where a Lender is a “United States Person” within the meaning of Section
7701(a)(30) of the US Tax Code) shall, subject to Clause 15.1(a)(iii), deliver
to the Borrower (and/or such other Obligors as the Borrower designates) and the
Agent two duly executed copies (or such other number as may be specified by the
Borrower in order to comply with then applicable requirements of US law) of
whichever of the following US Internal Revenue Service Forms is applicable,
namely W-8BEN, W-8BEN-E, W-8-ECI, W-8-IMY or any successor to any such form
including (if applicable) certification by each relevant Lender under the
applicable income tax treaty to which the United States is a party (and, where
that Lender is (through its relevant Facility Office) claiming exemption from
US federal income and withholding tax under Section 871(h) or 881(c) of the US
Tax Code a statement that it is not a person described in Section 881(c)(3) of
the US Tax Code) and/ or such other forms, certificates and documentation as
may be necessary or appropriate to establish, 



 

 


 



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in each case, whether it
is entitled to receive payments under the Facilities without a Tax Deduction
for US federal income or withholding tax or with a Tax Deduction at a reduced
rate;


(ii)    each Lender, where it is a “United States Person” within the meaning of Section
7701(a)(30) of the US Tax Code, shall, subject to Clause 15.1(a)(iii), deliver
to the Borrower (and/or such other Obligors as the Borrower designates) and the
Agent the appropriate number of copies of duly executed US Internal Revenue Service Form W-9 or any
successor to that form;


(iii)   each Lender is not obliged to deliver any form(s) under Clause
15.1(a)(i) or (ii) above if, and to the extent that, as a result of the
introduction of, or change in, or change in the interpretation or application
by any relevant authority of, any law, treaty or regulation or any practice or
concession of the US Internal Revenue Service after the Facility Initiation
Date, such Lender is not legally
entitled to complete the form(s) in a manner which will enable the Borrower to make
payments to, or for, such Lender (through its relevant Facility Office) without deduction
or withholding in respect of Taxes in the United States of America or with a
Tax Deduction at a reduced rate; and


(iv)   each Lender  (copying in the Agent at all times) shall deliver the forms, certificates and documentation
described in this Clause 15.1(a) to the Borrower at the following times:


(A)      on or prior to becoming a party to this Agreement;


(B)      upon a change in circumstances (other than the mere
passage of time) requiring a new or additional form, certificate or
documentation; and


(C)      when reasonably
requested by the Borrower.


(b)       If any form,
document or request for information referred to in Clause 15.1(a) or 15.1(c)
requires the disclosure of information, other than information necessary to
compute the Tax payable and such information as is required to be provided on
the withholding forms, certificates and documents (including all attachments,
revisions, updates and replacements currently required) that the relevant Lender is required to provide at
the time it becomes a party to, or acquires an interest in, this Agreement
which information each Lender reasonably considers to be confidential, that
Lender shall not be obligated to include in such form or document such
confidential information provided, however that the identity of any person
shall not be considered confidential if such information is required to avoid
or reduce withholding taxes.  


(c)       Each Lender
shall promptly provide, upon reasonable request from the Borrower any additional information
that the Borrower needs in order for the Borrower to determine the amount of any applicable
withholding taxes, if applicable.


15.2    Register of Loans


(a)       The Agent
shall maintain a register (the US Register) for the registration and transfer
of the Loans, and shall enter the names and addresses
of the registered holders of the 



 

 


 



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Loans, the transfers of the
Loans and the names and addresses of the transferees of the Loans. Each Lender,
to the extent such Lender sells participations to any Person in all or a
portion of such Lender’s rights
and/or obligations under this Agreement but remains solely responsible to the
other Parties hereto for the performance of such Lender’s obligations, shall maintain a register
(the Participant Register) on which it enters the name and address of each
participant and the principal amounts (and stated interest) of each participant’s interest in the Loans or other
obligations under the Finance Documents. The entries in the US Register and the
Participant Register shall be conclusive absent manifest error. 


(b)       A Borrower and any Lender (as
to its own Loans) shall be provided reasonable opportunities to inspect the US
Register from time to time upon reasonable prior notice. No Lender shall have
any obligation to disclose all or any portion of the Participant Register
(including the identity of any participant or any information relating to a
participant’s interest in any
commitments, loans, letters of credit or its other obligations under any
Finance Document) to any Person except to the extent that such disclosure is
necessary to establish that such commitment, loan, letter of credit or other
obligation is in registered form under Section 5f.103-1(c) of the US Treasury
Regulations (or any successor regulations).


(c)       A Borrower shall treat any
registered holder as the absolute owner of any Loans held by such holder, as
indicated in the US Register, for the purpose of receiving payment of all
amounts payable with respect to such Loans and for all other purposes.  Each
Lender shall treat each Person whose name is recorded in the Participant
Register as the owner of such participation for all purposes of this Agreement
notwithstanding any notice to the contrary.


(d)       Solely for the purposes of this Clause 15.2 and for US federal income tax
purposes, the Agent and each Lender shall be the Borrower’s non-fiduciary agent for
purposes of maintaining the US Register and the Participant Register.


(e)       This Clause
15.2 shall be construed so that the Loans are at all times maintained in “registered form” meaning:


(i)     the Loans are
registered obligations and the right, title and interest of each Lender and its
assignees or participants in and to such Loans, shall be
transferable only upon notation of such transfer in the US Register or the
Participant Register; and


(ii)    the right to principal
and interest is transferable only through an entry on the books of the
obligation’s Lender or Agent.


15.3    US Representations


(a)       If a Lender
is a US Person, that Lender warrants, represents and undertakes to a Borrower
that at all times it is, and (except solely as a result of a change in law of
the type described in Clause 16 (Increased costs)) shall be, a “United States person” for US federal withholding tax purposes.



 

 


 



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(b)       The warranties,
representations and undertakings in this Clause 15.3 survive execution of this Agreement and apply at
all times during the currency of this Agreement.


16.      Increased Costs


16.1    Increased
costs


(a)       Subject to Clause 16.3  (Exceptions)
a 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;


(ii)    compliance with any law or
regulation,


made after the Facility Initiation Date. 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 Tax on capital or
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.


(c)       In this Agreement "Basel III" means:


(i)     the
agreements on capital requirements, a leverage ratio and liquidity standards
contained in "Basel III: A global regulatory framework for more resilient
banks and banking systems", "Basel III: International framework for
liquidity risk measurement, standards and
monitoring" and "Guidance for national authorities operating the
countercyclical capital buffer" published by the Basel Committee on
Banking Supervision in December 2010, each as amended, supplemented or restated;


(ii)    the rules for global systemically important banks
contained in "Global systemically important banks: assessment methodology
and the additional loss absorbency requirement – Rules text" published by the Basel Committee on Banking
Supervision in November 2011, as amended, supplemented or restated; and



 

 


 



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(iii)   any further guidance or standards published by the Basel Committee on Banking
Supervision relating to "Basel III".


16.2    Increased
cost claims


(a)       A Finance Party intending to make a claim pursuant to Clause 16.1  (Increased costs) shall notify the Agent
of the event giving rise to the claim, following which the Agent shall promptly
notify a 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.


16.3    Exceptions


Clause 16.1  (Increased
costs) does not apply to the extent any Increased Cost is:


(a)       attributable to a Tax Deduction required by law to be made by an
Obligor;


(b)       attributable to a FATCA
Deduction required to be made by a Party;


(c)       compensated for by Clause 14.3 (Tax
indemnity) (or would have been compensated for under Clause 14.3 (Tax indemnity)
but was not so compensated solely because any of the exclusions in Clause 14.4
(Exclusions) applied); or


(d)       attributable to the wilful
breach by the relevant Finance Party or its Affiliates of any law or
regulation; or


(e)       attributable
to the implementation or application of or compliance with the
"International Convergence of Capital Measurement and Capital Standards, a
Revised Framework" published by the Basel Committee on Banking Supervision
in June 2004 in the form existing on the Facility Initiation Date (but excluding
any amendment arising out of Basel III) ("Basel II") or any other law or
regulation which implements Basel II (whether such implementation, application
or compliance is by a government, regulator, Finance Party or any of its
Affiliates).


17.      Other Indemnities


17.1    Currency
indemnity


(a)         If any sum due from an Obligor under the Finance Documents (a
"Sum"), or any order, judgment or award given or made in
relation to a Sum, has to be converted from the currency (the "First
Currency") in which that Sum is payable into another currency (the
"Second Currency") for the purpose of:


(i)     making
or filing a claim or proof against that Obligor;


(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 



 

 





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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.


17.2    Other
indemnities


The Borrowers 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;


(b)       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;


(c)       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
31 (Sharing among the Finance Parties);


(d)       funding, or making arrangements
to fund, its participation in a Utilisation requested by a Borrower in a
Utilisation Request but not made by reason of the operation of any one or more
of the provisions of this Agreement (other than by reason of default or
negligence by that Finance Party alone);


(e)       issuing or making arrangements to issue a Bank Guarantee requested
by a Borrower in a Utilisation Request but not issued by reason of the
operation of any one or more of the provisions of this Agreement (other than by
reason of default or negligence by that Finance Party alone); or


(f)        a Utilisation (or part of a Utilisation) not being prepaid in
accordance with a notice of prepayment given by a Borrower or a Borrower; or


(g)       an amount being paid or payable by that Finance Party to the Agent
or another Finance Party under Clause 29.11  (Lenders'
indemnity to the Agent); or


(h)       security being provided by that Finance Party to the Agent under
Clause 29.7(j)  (Rights and discretions)
or Clause 29.11(d)  (Lenders' indemnity to
the Agent) including costs and expenses in providing that security and, if
the security is cash, a Borrower shall pay interest on the amount provided from
the date of provision in the manner provided in Clause 10.3 (Default interest);
or


(i)        any Environmental Liability of or relating to any Group
Member, including any failure by any Group Member to comply with any
Environmental Health and Safety Law or any Environmental Approval,



 

 






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in each case only to the extent that the cost, loss or liability
does not arise as a result of any gross negligence, wilful misconduct or fraud
on the part of the relevant Finance Party, its Affiliates or any of its employees. 


17.3    Indemnity to the Agent


The Borrowers 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


18.1    Mitigation


(a)       Each Finance Party shall,  in consultation with a Borrower, take
all reasonable steps to mitigate any circumstances which arise and which would
result in any amount becoming payable under or pursuant to, or its Commitment
being cancelled pursuant to, any of Clause 9.1 
(Illegality) or, in respect of the Issuing Bank, Clause 9.2  (Illegality in relation to  Bank
Guarantee), Clause 14 (Tax Gross Up
and Indemnities) (other than Clause 14.7  (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.


(b)       Paragraph (a) above does not in any way limit the obligations of
any Obligor under the Finance Documents.


18.2    Limitation of
liability


(a)       The Borrowers 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


19.1    Transaction
expenses


The Borrowers 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 and registration of:


(a)       this Agreement and any other documents referred to in this
Agreement and the Transaction Security; and


(b)       any other Finance Documents executed after the Facility Initiation
Date.



 

 





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This Clause overrides any provision to the contrary
contained in a Priority Deed.


19.2    Amendment
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 pursuant to Clause 33.10  (Change
of currency), a 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.


19.3    Enforcement
costs


The Borrowers 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 (including the cost in
carrying out the audit in accordance with Clause 24.17(c) (Environmental
matters) ); and  


(b)       any proceedings instituted by or against the Security Trustee as a
consequence of taking or holding the Transaction Security.


19.4    Restrictions


The
Borrower is not obliged to make a payment under Clause 19.1 (Transaction
expenses) or 19.2 (Amendment costs),  while any one or more of the
following subsists in respect of that payment:


(a)       the Borrower (acting reasonably) does not
receive documentary evidence which substantiates the costs or expenses claimed by a Finance Party; or


(b)       the costs or
expenses claimed by that Finance Party are attributable to the internal management time of the
Finance Party (unless such costs or
expenses attributable to internal
management time are contemplated in any
Fee Letter to which that Finance Party is a party).  



 

 





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SECTION 7


GUARANTEE


20.      Guarantee


20.1    Guarantee


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 is continuing, then immediately on demand
by the Agent that Guarantor shall: (A) pay all Loans, accrued interest and all
other amounts referred to in Clause 25.20 (Consequences of Event of Default) as if it was the
principal obligor; and (B) provide
full cash cover for all Bank Guarantees except to the extent they have been
paid or prepaid;


(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.


Excluded Swap Obligations are
excluded from the obligations in this Clause 20.1 (Guarantee). 


Each Qualified ECP Guarantor hereby jointly and severally
absolutely, unconditionally and irrevocably undertakes to provide such funds or
other support as may be needed from time to time by each other Guarantor to
honour all of its obligations under this Guarantee in respect of Swap
Obligations such that they are not Excluded Swap Obligations (provided, however,
that each Qualified ECP Guarantor shall only be liable under this
Clause 20 (Guarantee) for the maximum amount of such liability that can be
hereby incurred without rendering its obligations under this Clause 20 (Guarantee),
or otherwise under this Guarantee, voidable under applicable law relating to
fraudulent conveyance or fraudulent transfer, and not for any greater amount). 
Each Qualified ECP Guarantor intends that this Clause 20 (Guarantee)
constitute, and this Clause 20 (Guarantee) shall be
deemed to constitute, a “keepwell, support, 



 

 





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or other agreement” for the benefit of each other Guarantor
for all purposes of Section 1a(18)(A)(v)(II) of the Commodity Exchange
Act.


20.2    Continuing
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.


20.3    Reinstatement


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 (Guarantee)
will continue or be reinstated as if the discharge, release or arrangement had
not occurred and any relevant security shall be reinstated.


20.4    Waiver of
defences


The obligations of each Guarantor under this Clause 20 (Guarantee)
will not be affected by an act, omission,
matter or thing which, but for this Clause, would reduce, release or prejudice
any of its obligations under this Clause 20 (Guarantee) (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;



 

 






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(i)        any
insolvency or similar proceedings; or


(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.


20.5    Immediate
recourse


Each Guarantor waives any right it may have of first
requiring any Finance Party (or any trustee or agent on its behalf) to proceed
against or enforce any other rights or security or claim payment from any
person before claiming from that Guarantor under this Clause 20 (Guarantee).  This waiver applies irrespective of any law or any
provision of a Finance Document to the contrary.


20.6    Appropriations


Until all amounts which may be or become payable by the
Obligors under or in connection with the Finance Documents have been
irrevocably paid in full, each Finance Party (or any trustee or agent on its
behalf) may:


(a)       refrain from applying or enforcing any other moneys, security or
rights held or received 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 (Guarantee) 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.


20.7    Deferral of
Guarantors' rights


Until all amounts which may be or become payable by the
Obligors under or in connection with the Finance Documents have been
irrevocably paid in full and unless the 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 (Guarantee):


(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 pursuant to, 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 33 (Payment Mechanics).


20.8    Release of
Guarantors' right of contribution


If any Guarantor (a "Retiring Guarantor")
ceases to be a Guarantor in accordance with the terms of 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 pursuant to,
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.


20.9    Additional
security


This Guarantee is in addition to and is not in any way
prejudiced by any other guarantee or security now or subsequently held by any
Finance Party.



 

 





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SECTION 8


REPRESENTATIONS,
UNDERTAKINGS AND EVENTS OF DEFAULT


21.    Representations  


Each Obligor (except where expressly noted otherwise) makes the
representations and warranties set out in this Clause 21 (Representations)
to, and for the benefit of, each Finance Party on the Facility Initiation Date
and the Amendment Effective Date and
makes the Repeating Representations on the other dates set out in Clause 21.37
(Repetition).  


21.1    Status


(a)    It is a corporation, partnership or limited liability company duly
organised, validly existing and (where applicable) in good standing and duly
incorporated and validly existing under the laws of its jurisdiction of
incorporation or organisation (as applicable). It and each of its Subsidiaries
is duly licensed or qualified and (where applicable) in good standing in each
jurisdiction where the property owned or leased or licensed by it or the nature
of the business transacted by it or both makes such licensing or qualification
necessary and where the failure to so qualify would reasonably be expected to
result in a Material Adverse Effect.


(b)    It and each of its wholly owned Subsidiaries has the power to own
its assets and carry on its business as it is being conducted.


21.2    Binding
obligations


(a)    This Agreement has been duly and validly executed and delivered by
it, and each other Finance Document which it is required to execute and deliver
on or after the date hereof will have been duly executed and delivered by it on
the required date of delivery of such Finance Document.  The obligations
expressed to be assumed by it in each Finance Document to which it is a party
are, subject to any necessary stamping, registrations and Authorisations,
equitable principles, bankruptcy, insolvency, reorganization, moratorium or
other equitable principles and similar laws generally affecting creditors'
rights, legal, valid, binding and enforceable obligations.


(b)    Without limiting the generality of paragraph (a) above, each
Transaction Security Document to which it is a party creates the Security which
that Transaction Security Document purports to create and that Security is,
subject to any necessary stamping, Authorisations and registration
requirements, equitable principles and laws generally affecting creditors'
rights, valid and effective.


21.3    Non-conflict with other obligations


The entry into and performance by it of, and the transactions
contemplated by, the Finance Documents including the granting of the
Transaction Security do not and will not conflict with: 


(a)    any law or regulation applicable to it which is material; 


(b)    its or any of its wholly owned Subsidiaries constitutional
documents; or


(c)    any agreement or instrument binding upon it or any of its assets
where a breach would have or would be reasonably likely to have a Material
Adverse Effect.



 

 






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21.4    Power and authority


It has the power to enter into, perform and deliver, and has taken
all necessary action to authorise its entry into, performance and delivery of,
the Finance Documents to which it is a party and the transactions contemplated
by those Finance Documents.


21.5    Authorisations  


All Authorisations required or desirable:


(a)    to enable it lawfully to enter into, exercise its rights and
comply with its obligations in the Finance Documents to which it is a party;


(b)    to make the Finance 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, where
failure to obtain that Authorisation would have or would be reasonably likely
to have a Material Adverse Effect,


have been obtained or effected and are in full force and effect.


21.6    Governing law and enforcement


(a)    The choice of law referred to in a Finance Document as the
governing law of that Finance Document will be recognised and enforced in its
jurisdiction of incorporation.


(b)    Any judgment obtained against it in Queensland in relation to a
Finance Document will be recognised and enforced in its jurisdiction of
incorporation.


21.7    No filings or stamp Taxes


Under the law of its jurisdiction of incorporation it is not
necessary in order to ensure that the
Finance Documents are and remain legal, valid, binding and enforceable and that
the Transaction Security has the ranking and priority which it is expressed to
have in the Transaction Security Documents,  that the Finance Documents be filed, recorded or enrolled with
any court or other authority in that jurisdiction or that any stamp,
registration or similar tax be paid on or in relation to the Finance Documents
or the transactions contemplated by the Finance Documents, except registration
of security interests arising under the Finance Documents which are governed by
the PPSA or the US Uniform Commercial Code on the personal property securities register established pursuant
to the PPSA or with the applicable state
governmental authority under the US Uniform Commercial Code, as applicable and
except registration of Mining Tenement Security. 


21.8    No default


(a)    No Event of Default is continuing or may reasonably be expected to
result from the making of any Utilisation.


(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 wholly owned 



 

 


 



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Subsidiaries to which its
assets (or the assets of its wholly owned Subsidiaries) are subject which would
or would be reasonably likely to have a Material Adverse Effect.


21.9    Disclosure


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 Obligors (taken as a whole) to perform their obligations
under the Finance Documents or to an Original Lender's assessment of the nature
and degree of risk undertaken by it in granting financial accommodation to the
Obligors in entering into the Finance Documents. As of the Utilisation Date,
the information included in the Beneficial Ownership Certification is true and
correct in all respects.


21.10    No misleading information


(a)    Any factual information provided by or with the authority of an
Obligor or any other member of the Group in writing in connection with the
Finance Documents and the transactions they contemplate (excluding financial
projections) was true and accurate in all material respects as at the date it
was provided or as at the date (if any) at which it is stated, and there are no
undisclosed agreements or other information material to the transactions
contemplated by the Finance Documents.


(b)    Any financial projections provided by or with the authority of an
Obligor or any other Group Member have been prepared on the basis of recent
historical information and on the basis of reasonable assumptions.


(c)    Nothing has occurred and no information has been given or withheld
or omitted that results in the information described in this Clause being
untrue or misleading in any material respect.


21.11    Original Financial Statements  


(a)    Its Original Financial Statements were prepared: 


(i)    in the case
of the consolidated Financial Statements for Coronado Curragh Pty Ltd as at 30
June 2018, in accordance with A-IFRS
consistently applied unless expressly disclosed to the Finance Parties in
writing to the contrary before the Facility Initiation Date; and


(ii)    in the case
of the consolidated Financial Statements for Coronado Group LLC as at 31
December 2017 in accordance with US GAAP
consistently applied unless expressly disclosed to the Finance Parties in
writing to the contrary before the Facility Initiation Date.


(b)    Its Original Financial Statements give a true and fair view and
fairly represent its financial position and performance (consolidated in the
case of the Parent) during the financial year ending, in the case of the consolidated Financial Statements for Coronado
Curragh Pty Ltd, 30 June 2018 and, in the case of the consolidated Financial
Statements for Coronado Group LLC, 31 December 2017, except as expressly disclosed in those Financial Statements.



 

 






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21.12    Financial Statements


(a)    Excluding the Original Financial Statements, its most recent
Financial Statements were prepared in accordance with US GAAP consistently
applied and as US GAAP applied as at the Facility Initiation Date unless
expressly disclosed to the contrary in those Financial Statements.


(b)    Excluding the Original Financial Statements, its most recent
Financial Statements give a true and fair view and represent its financial
position and performance (consolidated in the case of the Parent) during the
relevant financial year unless expressly disclosed to the contrary in those
Financial Statements.


21.13    Pari
passu ranking


Its payment obligations under the Finance Documents rank at least
pari passu with the claims of all its other unsecured and unsubordinated
creditors, except for obligations mandatorily preferred by law applying to
companies generally.


21.14    Ranking


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 any Permitted Security which takes priority under the PPSA or US Uniform Commercial Code (as the context permits) or which is mandatorily required by any other applicable law to
have priority (and which has not been subordinated to the Transaction Security
under the terms of a Finance Document.  Upon the filing of financing statements
relating to said Transaction Security in each office and in each jurisdiction
where required in order to perfect the Transaction Security described above, the
Security created by the US Security Agreement in favor of the Security Trustee
for the benefit of the Beneficiaries will constitute fully perfected first
priority Security (subject to Permitted Security) on all right, title and
interest of the Security Providers in the Secured Property, in each case to the
extent perfection can be obtained by filing financing statements. All filing
fees and other expenses in connection with each such action have been or will
be paid by the Borrowers.


21.15    No proceedings pending


(a)    No litigation, arbitration, Tax claim, dispute or administrative
or other proceeding is current or pending or, to the best of its knowledge and
belief, threatened against it or its wholly owned Subsidiaries, which, to the
best of its knowledge and belief, would have or is reasonably likely to have a
Material Adverse Effect except:


(i)    for which it has set aside sufficient reserves in accordance with
US GAAP or other appropriate accounting principles and which are being
contested in good faith, unless failure to pay would have or is reasonably
likely to have a Material Adverse Effect; and


(ii)    as notified in writing by it to the Agent.


(b)    Other than as
notified to the Agent, 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 would have or would
be reasonably likely to have a Material Adverse Effect has 



 

 


 



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(to the best of its knowledge
and belief) been made against it or any of its wholly owned Subsidiaries.


21.16    Trustee


It does not enter into any Finance Document or hold any property
as trustee. 


21.17    Authorised signatories


Any person specified as its authorised signatory under Part I of Schedule 2 (Conditions precedent) or Clause 22.4 (Information:
miscellaneous) is authorised to sign Utilisation Requests and other notices
on its behalf except where it has previously notified the Agent that the
authority has been revoked.


21.18    Tax Matters  


(a)    After the Parent has complied with Clause 4.4 (Condition
subsequent – Tax Consolidation), each Obligor which is incorporated in Australia is a member of a Tax
Consolidated Group for which the Head Company is Coronado
Australia Holdings Pty Limited in accordance with the Tax Agreements.


(b)    Except where failure to do so would not reasonably be expected to
result in a Material Adverse Effect, all federal, state,
local and other Tax returns required to have been filed with respect to each
Obligor and each Subsidiary of each Obligor have been filed, and payment or
adequate provision has been made for the payment of all Taxes that have or may become due pursuant to said returns or to assessments received, except
to the extent that such Taxes are Contested Taxes and for which such reserves
or other appropriate provisions, if any, as shall be required by US GAAP or
other appropriate accounting principles shall have been made. There are no
agreements or waivers extending the statutory period of limitations applicable
to any income Tax return of any Obligor or Subsidiary of any Obligor for any
period.


21.19    Solvency


There are no reasonable grounds to suspect that it is unable to
pay its debts as and when they become due and payable. 


21.20    Compliance
with laws


Each Obligor and its wholly owned Subsidiaries has complied in all
respects with all laws to which it or they may be subject, if failure so to
comply would have or would be reasonably likely to have a Material Adverse
Effect. 


21.21    No benefit to related party


It has not contravened nor will contravene section 208 or 209 of
the Corporations Act by entering into any Finance Document to which it is a
party or participating in any transaction connected with them. 


21.22    Ownership
of property


It is the beneficial owner of, and has good title to, or valid leases or licences of, and all appropriate Authorisations
to use, all property held by it or on
its behalf and all undertakings carried on by it free from any Security except
as permitted under Clause 24.5 (Negative pledge) and except for minor
defects in title that do not interfere with its ability to conduct its 



 

 


 



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business as conducted or
to utilize such property for its intended purpose or represent a material
diminution in value of that property upon its sale or transfer. 


21.23    Shares


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 Security
do not and could not restrict or inhibit any transfer or creation or
enforcement of the Security.  


21.24    No
immunity


Neither it nor its assets is immune from the jurisdiction of a
court or from legal process in relation to its obligations under the Finance
Documents to which it is a party. 


21.25    Benefit


It benefits by entering into the Finance Documents to which it is
a party. 


21.26    Insurance


It, and each member of the Group, has obtained and maintained
insurance cover for its assets that is consistent with Good Operating Practice
with, in the case of an Obligor, the Security Trustee’s interest noted where it is
customary to do so.


21.27    Sanctions


It and its Subsidiaries, and its and their
respective directors and officers, and to its knowledge, its and their respective employees,
agents, affiliates and representatives, are in compliance with Sanctions in all
material respects. None of it or any of its Subsidiaries, nor any of its or
their respective directors or officers, or to its knowledge, any of its or
their respective employees, agents, affiliates or representatives, is a
Sanctioned Person. It and its Subsidiaries maintain in effect policies and procedures designed to ensure
compliance by the Obligors, each of their Subsidiaries and the respective directors, officers, employees
and agents of the Obligors and their
Subsidiaries with applicable Sanctions.


21.28    Anti-money
laundering, anti-corruption laws


(a)    Neither it nor any of its Subsidiaries, nor any of its or their
respective directors or officers, or, to its best knowledge, any of its or
their respective affiliates, agents or employees, have engaged in any activity
or conduct which would violate any Anti-Corruption Laws. It and its
Subsidiaries maintain in effect policies and procedures designed to ensure
compliance by the Obligors, each of their Subsidiaries and the respective
directors, officers, employees and agents of the Obligors and their
Subsidiaries with Anti-Corruption Laws.


(b)    The
operations of the Obligors are, have
been and will be conducted at all times in compliance in all material respects
with all applicable money laundering statutes of Australia, the United States,
and any other applicable jurisdictions, the rules and regulations thereunder
and any related or similar rules, regulations or guidelines, issued,
administered or enforced by any Governmental Agency (collectively, the “Money Laundering Laws”) and no action, suit or
proceeding by or before any court or Governmental Agency or body or any
arbitrator involving the Obligors with 



 

 


 



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respect to the Money
Laundering Laws is pending or, to the knowledge of the Obligors, threatened.


(c)    Notwithstanding any other provisions of
a Finance Document to the contrary, a Finance Party is not obliged to do or
omit to do anything if it would, or might in its reasonable opinion, constitute a breach
of any law or regulation, including any Money Laundering Laws or Sanctions.


(d)    Each Obligor  undertakes to the Agent that if requested by the
Agent, it (the Discloser) will provide any information or assistance to
the Agent that is required by the Agent to satisfy  its obligations in relation to any law or regulation including any Money Laundering
Laws.  


21.29    Environmental


(a)    No Group
Member has incurred any Environmental Liability, and no act or omission has
occurred or is occurring and there is no circumstance relating to any Group
Member’s assets, operations or business which has
given rise or is reasonably likely to give rise to an Environmental Liability affecting any Group Member’s assets, operations or
business which in each case above has or is reasonably
likely to have a Material Adverse Effect.


(b)    It and each
of its Subsidiaries and Affiliates is in compliance, and has at all times
complied, with all Environmental Health
and Safety Laws (which compliance includes obtaining, maintaining and complying
where failure to do so would have or is reasonably likely to have a Material
Adverse Effect.


21.30    No violation of US margin regulations


The borrowings made under any Finance Document, and the use of
proceeds thereof, will not violate, or give rise to a violation of, the US
Margin Regulations (being regulations T, U and X of the Board of Governors of
the Federal Reserve System of the United States from time to time in force, 12
CFR, Parts 220,
221 and 224, respectively).


21.31    US Investment
Company Act


None of the Obligors nor
any of their Affiliates is, and each Obligor shall ensure that neither it nor
any of its Affiliates shall
become, an “investment company” or a company “controlled” by an “investment company”, as defined in, or subject to rules and regulations promulgated
under, the US Investment Company Act of 1940.


21.32    Fraudulent
transfers


In respect of any Obligor that is a US Person, and after taking
account support from the Parent or any other member of the Group which the
directors or officers  of that Obligor reasonably believe is assured, the aggregate amount of its debts (including its
obligations under the Finance Documents) is less than the aggregate value of
its assets; its capital is not unreasonably small to carry on its business as
it is being conducted; it has not incurred and does not intend to incur debts
beyond its ability to pay as they mature; and it has not made a transfer or
incurred any obligation under any Finance Document with the intent to hinder,
delay or defraud any of its present or future creditors.



 

 






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21.33    ERISA


Except as could not reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect:


(a)    the Parent and each other member of the ERISA Group are in
compliance with any applicable provisions of ERISA and the Internal Revenue
Code with respect to all Benefit Arrangements, Plans, and Multiemployer Plans.
There has been no non-exempt Prohibited Transaction with respect to any Benefit
Arrangement or any Plan or, to the knowledge of the Parent, with respect to any
Multiemployer Plan or Multiple Employer Plan, which could result in any
liability of the Parent or any other member of the ERISA Group. The Parent and
all other members of the ERISA Group have made when due any and all payments
required to be made under any agreement relating to a Multiemployer Plan or a
Multiple Employer Plan or any law pertaining thereto. With respect to each Plan
and Multiemployer Plan, the Parent and each other member of the ERISA Group (i) have fulfilled
their obligations under the minimum funding standards of ERISA and the Internal
Revenue Code, (ii) have not incurred nor reasonably expect to incur any
liability to the PBGC, and (iii) have not had nor reasonably expect to have
asserted against them any penalty for failure to fulfill the minimum funding
requirements of ERISA or the Internal Revenue Code. All Plans, Benefit
Arrangements and, to the knowledge of the Parent, Multiemployer Plans have been
administered in accordance with their terms and applicable law;


(b)    neither the Parent nor any other member of the ERISA Group nor the
PBGC has instituted or is reasonably expected to institute proceedings to
terminate any Plan.


(c)    no event requiring notice to the PBGC under Section 303(k)(4) of
ERISA has occurred or is reasonably expected to occur with respect to any Plan;


(d)    to the extent that any Benefit Arrangement is insured, the Parent
and all other members of the ERISA Group have paid when due all premiums
required to be paid. To the extent that any Benefit Arrangement is funded other
than with insurance, the Parent and all other members of the ERISA Group have
made when due all contributions required to be paid; 


(e)    neither the Parent nor any other member of the ERISA Group has
withdrawn or reasonably expects to withdraw from a Plan subject to Section 4063
of ERISA during a plan year in which it was a substantial employer, as defined
in Section 4001(a)(2) of ERISA or has incurred or reasonably expects to incur
any liability under Section 4062(e) of ERISA. To the knowledge of the Parent,
no Multiemployer Plan or Multiple Employer Plan has been terminated within the
meaning of Title IV of ERISA. No Plan is, or is expected to be, in "at-risk"
status (within the meaning of Section 430(i)(4) of the Internal Revenue Code or
Section 303(i)(4) of ERISA). Neither the Parent nor any other member of the
ERISA Group has received any notice concerning the imposition of withdrawal
liability or a determination that a Multiemployer Plan is, or is expected to
be, insolvent (within the meaning of Title IV of ERISA) or in
"endangered" or "critical" status (within the meaning of
Section 432 of the Internal Revenue Code or Section 305 of ERISA); and



 

 






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(f)    neither the Parent nor any other member of the ERISA Group has engaged in a
transaction that could be subject to Section 4069 or 4212(c) of ERISA.


21.34    Projects


Except where non-compliance is
subject to a dispute in good faith, each Group Member has complied
with all obligations in connection with Projects, if failure so to comply has or is reasonably likely to have a
Material Adverse Effect.


21.35    Producing Unincorporated Joint Ventures


As at the Facility Initiation Date, each member of the Obligor
Group who owns shares in an Obligor that is a participant in a Producing
Unincorporated Joint Venture is permitted under the terms of that Producing Unincorporated Joint Venture
to create a Security in that shareholding in favour of the Security Trustee. 


21.36    Group Structure Diagram  


(a)    The Group Structure Diagram delivered to the Agent as a condition precedent
under Part I of Schedule 2 (Conditions precedent), complete and accurate in all
material respects on the first Utilisation Date.


(b)    The most recent Group Structure Diagram delivered to the Agent under
Clause 22.4(i) (Information: miscellaneous) 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 Diagram and have been or will be taken in compliance with all
relevant laws and regulations and all requirements of relevant regulatory
authorities.


21.37    Intellectual Property


Each Obligor and each Subsidiary of each Obligor owns or possesses
all the patents, trademarks, service marks, trade names, copyrights, licenses,
registrations, franchises, permits and rights, without conflict with the rights
of others, necessary for the Obligors to own and operate their properties and
to carry on their businesses as presently conducted and planned to be conducted
by such Obligors and Subsidiaries, except where the failure to so own or possess
with or without such conflict would reasonably be expected to result in a
Material Adverse Effect.


21.38    Employment Matters


(a)    Each of the Obligors and each of their
Subsidiaries is, and has been, in compliance with the Labor Contracts and all
applicable federal, state and local labor and employment Laws including those
related to equal employment opportunity and affirmative action, labor
relations, minimum wage, overtime, child labor, medical insurance continuation,
worker adjustment and relocation notices, immigration controls and worker and
unemployment compensation, except where the failure to comply could not
reasonably be expected to result in a Material Adverse Effect. There are no
outstanding grievances, arbitration awards or appeals therefrom arising out of
the Labor Contracts (as defined in the Term Loan Facility Agreement) or current
or threatened strikes, picketing, handbilling or other work stoppages or
slowdowns at 



 

 


 



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facilities of any of the
Obligors or any of their Subsidiaries which in any case could reasonably be
expected to result in a Material Adverse Effect.


(b)    Except as
could not reasonably be expected to result in a Material Adverse Effect: (i)
each of the Obligors, each of their Subsidiaries and each of the “related
persons” (as defined in the Coal Act) of each Obligor and each Subsidiary of
each Obligor are in compliance with the Coal Act, to the extent that the Coal Act
applies to it; and (ii) none of the Obligors, any Subsidiary of any Obligor nor
any related person of any Obligor or its Subsidiaries has any liability under
the Coal Act except with respect to premiums or other payments required
thereunder which have been paid when due. The Obligors and their Subsidiaries
are in compliance in all material respects with the Black Lung Act, to the
extent that the Black Lung Act applies to it. None of the Obligors nor any of
their Subsidiaries has any liability under the Black Lung Act except with
respect to premiums, contributions or other payments required thereunder which
have been paid when due.


21.39    Environmental Health and Safety
Matters.


(a)    The Obligors and their Subsidiaries and
their respective operations and facilities are and have been in compliance with
all Environmental Health and Safety Laws, including holding and operating in compliance
with Environmental Health and Safety Permits, and have submitted timely
applications for the issuance or renewal of all such Permits to the extent
required to support ongoing or planned operations, except in any such case which
could not reasonably be expected to result in a Material Adverse Effect.


(b)    There are no actions, suits, proceedings or investigations pending
or, to the knowledge of any Obligor, threatened against any Obligor or any
Subsidiary of any Obligor at Law or equity before or by any Official Body relating to Environmental Health
and Safety Laws or Environmental Health and Safety Permits, and no prior
action, suit, proceeding or investigation has resulted in a consent decree,
order, settlement or other agreement, except, in each case, which could not
reasonably be expected to result in a Material Adverse Effect.


(c)    There are no pending or, to the knowledge of any Obligor,
threatened Environmental Health and Safety Claims which could reasonably be
expected to result Environmental Liability to any Obligor or any Subsidiary,
except for any such Environmental Health and Safety Claims which could not
reasonably be expected to result in a Material Adverse Effect.


(d)    To the knowledge of any Obligor, there are no facts,
circumstances, conditions or occurrences (including any Contamination or
Release of Regulated Substances) that would be reasonably expected to cause any
Obligor or any Subsidiary to incur or be subject to any Environmental Liabilities, (other than ordinary course
compliance with Environmental Health and Safety Laws and reclamation, closure
and decommissioning obligations) except in each case that could not reasonably
be expected to result in a Material Adverse Effect.



 

 


 



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(e)    No current or anticipated Security on the ownership, occupancy,
use or transferability of real property or facilities, whether owned or leased or licensed (other than
Permitted Security), authorized by Environmental Health and Safety Laws exist
against any real property, whether owned or leased or licensed, of any Obligor
or any Subsidiary which could reasonably be expected to result in a Material
Adverse Effect.


21.40    Title to Real Property.


Each Obligor and each Subsidiary of each Obligor (i) owns or
leases or licenses all Real Property interests that are necessary or
appropriate for Parent and its Subsidiaries to conduct their respective operations
in all material respects, (ii) and, except where the failure to do so would not
reasonably be expected to result in a Material Adverse Effect, has good and
valid title to all of their other respective assets, in the case of both the
foregoing items (i) and (ii) of this sentence, free and clear of all Security
and encumbrances except Permitted Security, and subject to the terms and
conditions of the applicable leases and subject to the terms of the Stanwell
Arrangements; provided, however, an Obligor or a Subsidiary of an
Obligor shall not be in breach of the foregoing in the event that (x) it fails
to own a valid leasehold interest which, either considered alone or together
with all other such valid leaseholds which it fails to own, is not material to
the continued operations of such Obligor or Subsidiary of such Obligor or (y)
such Obligor’s or such Subsidiary’s interest in a leasehold is less than fully
marketable because the consent of the lessor to future assignments has not been
obtained.


21.41    Surety
Bonds


All surety, reclamation and similar bonds required to be
maintained by Parent or any of its Subsidiaries under any Environmental Health
and Safety Laws, Reclamation Laws, Mining Laws or any provisions of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound (i) are in full force and effect except for any failure which
individually or when taken together with all failures under all such bonds
would not reasonably be expected to result in a Material Adverse Effect, and
(ii) were not and will not be terminated, suspended, revoked or otherwise
adversely affected by virtue of the consummation of the financing (including
all Loans made after the Facility Initiation Date) contemplated by this Agreement,
provided that certain of such bonds may be terminated, suspended or revoked so
long as, taken together, such events could not reasonably be expected to result
in a Material Adverse Effect. All required guaranties of, and letters of credit
with respect to, such surety, reclamation and similar bonds are in full force
and effect except where such failure to be in full force and effect could not
reasonably be expected to result in a Material Adverse Effect.


21.42    Mine
sites


Except as listed in
Schedule 10 (Real Property),  no mining
tenement or interest in Real Property is necessary to enable the mining of the
Buchanan Mine, the Greenbrier Mine, the
Logan Mine or the Curragh Mine and, subject to Clause 4.5 (Conditions
precedent – other), each such
tenement or interest is subject to a Mining Tenement Security.



 

 






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21.43    Surface Facilities


All Surface Facilities are located on the surface of Real Property
that is owned (and not leased) by an Obligor and is subject to a perfected Mining Tenement Security, with the
following exceptions:


(a)    all of the Surface Facilities servicing the Logan Mine are on
leased land; and


(b)    some small part of the Surface Facilities servicing the Buchanan
Mine are on leased land


but in the case of both (a) and (b) the Obligors own the
structures, infrastructure and
equipment comprising the Surface
Facilities.  For the purpose of this Clause 21.43, “Surface Facilities”
means the coal washing and preparation facilities, together with related
structures and equipment, which provide coal washing, preparation, storage and
loadout services at the Logan Mine, the Buchanan Mine and the Greenbrier Mine.


21.44    Repetition


The Repeating Representations are deemed to be
made by each Obligor:


(a)    the date of each Utilisation Request and the first day of each
Interest Period; and


(b)    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


with reference to the facts and circumstances then existing; except that
the representations and warranties set out in Clauses 21.10(a) (No misleading information)  and 21.10(b) (No
misleading information)  will be
repeated with reference to the facts and circumstances subsisting at the time
the relevant information was provided or stated (in the case of
Clause 21.10(a)) or at the time the relevant financial projections were
prepared (in the case of Clause 21.10(b)).


21.45    Reliance
by Finance Parties


Each Obligor acknowledges that the Finance Parties have
entered into each Finance Document in reliance on the representations and
warranties given by it under this agreement.


22.    Information Undertakings


The undertakings in this Clause 22 (Information Undertakings) remain in force from the Facility Initiation Date for so
long as any amount is outstanding under the Finance Documents or any Commitment
is in force.


22.1    Financial Statements  


The Parent  shall supply to the Agent:


(a)    as
soon as the same become available, but in any event within 120 days after the
end of each of its financial years its audited consolidated Financial
Statements for that financial year; and  



 

 






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(b)    as soon as the same become
available, but in any event within 90 days after the end of each half of each
of its financial years its unaudited consolidated Financial Statements for that
financial half year.


22.2    Compliance Certificate and
other information


The Parent shall supply to the Agent, with each set of Financial
Statements delivered pursuant to Clause 22.1(a) and Clause 22.1(b)(Financial
statements): 


(a)    a
Compliance Certificate setting out (in reasonable detail) computations as to
compliance with Clause 22.7 (Financial covenants) as at the date as
at which those Financial Statements were drawn up.  Each Compliance Certificate
shall be signed by 2 officers or an officer plus any of the chief executive
officer or group chief financial officer of the Parent; and


(b)    updated 5 year financial forecasts outlining:


(i)    Production;


(ii)    Reserves;


(iii)    operating expenses; 


(iv)    capital expenditure; 


(v)    cashflows; and


(vi)    EBITDA.


22.3    Requirements as to Financial Statements


(a)    The Parent shall
procure that each set of annual Financial Statements delivered by the Parent
pursuant to Clause 22.1 (Financial statements) shall be audited by
the Auditors.


(b)    Each set of Financial
Statements delivered pursuant to Clause 22.1 (Financial statements)
shall be certified by a director or chief financial officer or chief executive
officer 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 Parent shall
procure that each set of Financial Statements of an Obligor delivered pursuant
to Clause 22.1 (Financial statements) is prepared using US GAAP,
accounting practices and financial reference periods consistent with those
applied in the preparation of the previous Financial Statements supplied under
this agreement (except if they are the Original Financial Statements)  unless,
in relation to any set of Financial Statements, it notifies the Agent that
there has been a change in US GAAP, the accounting practices or reference
periods and its Auditors (or, if appropriate, the Auditors of the Obligor)
deliver to the Agent:



 

 


 



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(i)    a description of any change necessary for those Financial
Statements to reflect the US GAAP, 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 Agent to determine whether Clause 23 (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.


(d)    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. 


22.4    Information: miscellaneous


The
Parent shall supply to the Agent:


(a)    Reserves Statements,
contemporaneously with them being provided to the ASX;


(b)    with the first Compliance Certificate delivered to the
Agent under Clause 22.2(a) (Compliance
Certificate and other matters) , a copy of
the Hedging Policy;  


(c)    promptly, a copy of the amended Hedging Policy promptly
after it is changed in a material way from time to time; 


(d)    all documents
dispatched by the Parent 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;


(e)    promptly upon
becoming aware of them, the details of any litigation, arbitration or
administrative proceedings which are current, threatened or pending against any
member of the Group, and which would, if adversely determined amount to a
judgement, order or penalty in excess of A$20,000,000 or would have or would be
reasonably likely to have a Material Adverse Effect;


(f)    promptly upon becoming aware of them, the details of any
judgment or order of a court, arbitral tribunal or other tribunal or any order
or sanction of any governmental or other regulatory body which is made
against any member of the Group and which would have or would be reasonably
likely to have a Material Adverse Effect;


(g)    promptly, such
information as the Agent may reasonably require about the Secured Property and
compliance of the Obligors with the terms of any Transaction Security
Documents; and


(h)    promptly, notice of
any change in authorised signatories of any Borrower signed by a director or
secretary of the Borrower accompanied by specimen signatures of any new
signatories;


(i)    an updated Group Structure
Diagram promptly after there is a change in the structure of the Group that
would render the last Group Structure Diagram given to the Agent incorrect;



 

 





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(j)    promptly,
notice of any Environmental Liability of or relating to any Group Member,
including without limitation any alleged breach of any Environmental Health and
Safety Law or Environmental Approval by any Group Member that has given rise or
is likely to give rise to expenditure by any Group Member or a claim against
any Group Member, in each case that may exceed A$10,000,000 or a requirement
that a Group Member ceases or substantially alters a material activity; 


(k)    promptly upon request
by the Agent, evidence of insurance being maintained as required by this
Agreement; 


(l)    promptly, upon request
by the Agent, evidence that no royalty payment required to be paid by an
Obligor is in arrears; and


(m)    promptly, any other information relating to the
financial performance (including for the purposes of testing covenants under
Clause 23.1 (Financial
covenants) or business and
operations of the Group reasonably requested by the Agent on behalf of a Lender
(including  information in relation to Production and Reserves and any
other technical information reasonably requested by the Agent which a Group
Member has in its possession).


22.5    Notification of Defaults and
Review Events


(a)    Each Borrower shall notify the
Agent of any Default or Review Event (and the steps, if any, being taken to
remedy it) promptly upon becoming aware of its occurrence (unless that Borrower
is aware that a notification has already been provided by another Obligor).  


(b)    Promptly upon a
request by the Agent, the Parent shall supply to the Agent a certificate signed
by a director or chief financial officer or chief executive officer on its
behalf certifying that no Default or Review Event is continuing (or if a
Default or Review Event is continuing, specifying the Default or Review Event,
as applicable, and the steps, if any, being taken to remedy it).


22.6    "Know
your customer" checks


The Obligors shall
supply promptly all documents and other evidence reasonably requested by the
Agent or a Lender in order for the Agent, the Lender or a proposed New Lender
under Clause 26 (Changes to the Lenders) to carry
out all necessary “know your customer” or other similar checks in relation to
an Obligor or proposed Additional Obligor under all applicable laws and regulations where
such information is not already available to the recipient.


22.7    Producing Unincorporated Joint Ventures


The Obligors shall supply to the Agent promptly upon
becoming aware of them, the details of any alleged breach of or dispute under
the terms of a Producing Unincorporated Joint Venture which could reasonably be
expected to adversely affect the relevant member of the Group's interest in or revenues
from that Producing Unincorporated Joint Venture (including without limitation,
a dilution or forfeiture of the relevant member of the Group's interest in that
Producing Unincorporated Joint Venture).



 

 


 



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22.8    Environmental Health and Safety Matters


Each of Parent and the Borrowers shall, and shall cause
each of its Subsidiaries to (i) comply with applicable Environmental Health and
Safety Laws and Environmental Health and Safety Orders, (ii) obtain, maintain
in full force and effect and comply with the terms and conditions of all
Environmental Health and Safety Permits; (iii) take commercially reasonable
precautions to prevent Contamination on the real property, whether owned or
leased, of any Obligor or any Subsidiary of a Obligor; (iv) take commercially
reasonable precautions against the imposition, attachment, filing or recording
of any Security (other than Permitted Security) or other encumbrance authorized
by Environmental Health and Safety Laws (other than Permitted Security) to be
imposed, attached or be filed or recorded against the Real Property or any
other real property owned or leased by any of them; and (v) perform or pay for
performance of any Remedial Actions necessary to (A) respond to any
Environmental Health and Safety Orders or Environmental Health and Safety
Complaints related to the real property, whether owned or leased, of any
Obligor or any Subsidiary of a Obligor, or (B) to manage Contamination at, in,
on, under, emanating to or from or otherwise affecting the real property,
whether owned or leased, of any Obligor or any Subsidiary of a Obligor; except,
in the case of each of clauses (i)-(v) above, as could not reasonably be
expected to result in a Material Adverse Effect; provided, in each case,
that a failure to take such actions described above shall not be a Default if
Parent, the Borrowers or the applicable Subsidiary is in good faith reasonably
contesting such matter in the applicable jurisdiction in accordance with
applicable Environmental Health and Safety Laws.


23.    Financial Covenants


23.1    Financial covenants


The Parent must ensure that at all times:  


(a)    the ratio of Net Debt to EBITDA for the preceding 12 month period
does not exceed  2.50  times;  


(b)    the ratio of EBITDA to Net Interest Expense for the preceding 12 month period is at
least 3.00 times; and


(c)    the ratio of Net Debt to Net Debt plus Tangible Net Worth,
expressed as a percentage, does not exceed 40%.


When calculating EBITDA for the purposes of the Financial
Covenants the following amounts are to be excluded: 


(i)    cash flows generated from assets subject to a Security  securing Limited Recourse
Financial Indebtedness, except to the extent that
they have been received by an Obligor as
Distributions that have been accounted for as cash in the relevant accounting
period; and


(ii)    amounts otherwise included in EBITDA which are attributable to
Group Members which are not wholly-owned Subsidiaries of the Parent, except if
and to the extent that they have been received by an Obligor as Distributions that have been accounted for as cash in the relevant accounting period.



 

 





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Further, if a Group Member acquires either an asset, or an
entity that becomes a Group Member, and when next tested in accordance with
Clause 23.2 (Testing of covenants) the Net Debt to EBITDA Financial
Covenant or the EBITDA to Net Interest Expense Financial Covenant would otherwise be brpeached solely
because EBITDA does not include the contribution of that asset or entity for
all of the 12 month period
preceding the date as at which the Financial
Covenants are tested, then EBITDA is to be calculated to include the
contribution of that asset or entity for all of the 12 month period preceding the date as at which the Financial Covenants are tested
(including EBITDA for the period during which that asset or entity was not
owned by the Group).  Promptly upon
request by the Agent, the Parent must provide such documents, certifications,
audit reports, projections and other supporting information and evidence as the
Agent may require to substantiate the adjustments to EBITDA the subject of this
paragraph.


23.2    Testing of covenants


Without limiting the requirement to maintain compliance
with the Financial Covenants at all times, the Borprowers shall be required to
demonstrate compliance with the Financial Covenants at the following times and on the basis of the
following evidence:


(a)    as at 31 December each year, on the basis of:


(i)    the audited consolidated Financial Statements of the Group as at,
and for the financial year ending on, that date; and


(ii)    the Compliance Certificate, 


given to the Agent under this Agreement; and


(b)    as at 30 June each year, on the basis of:


(i)    the unaudited consolidated
Financial Statements of the Group as at, and for the financial half-year ending
on, that date; and


(ii)    the Compliance Certificate, 


given to the Agent under this Agreement; and


(iii)    the consolidated Financial Statements of the Group as at, and for
the financial half-year ending on, the immediately preceding 31 December (for
the purpose of calculating, in conjunction with the Financial Statements
referred to in Clause 23.2(a)(i), EBITDA and Net Interest Expense for the 12
months ending on the half-year reporting date referred to in Clause 23.2(b)(i)).


(c)    If, at any time changes to US GAAP relevant to the Group and/or
changes to the Group’s accounting treatment (provided such changes in such accounting
treatment are certified by the Auditors of the Parent without qualification as
resulting in the Financial Statements of the Group presenting a true and fair
view of the state of affairs and results of the Group) shall cause either:


(i)    the mathematical results of any Financial Covenant; or



 

 


 



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(ii)    the
determination of any definition or element used in the calculation of any
Financial Covenant,


to be different to the results which would have been derived prior
to such changes in accounting in such a manner so as to prejudice the ability
of the Obligors to comply with the terms of the Financial Covenants or any
definition or element used in the calculation opf any Financial Covenant, then
the Parent must notify the Agent
(or if the changes are identified by the Agent, the Agent must notify the
Parent) of the occurrence of such changes in US GAAP and accounting treatments
(as soon as the relevant party becomes aware of any such changes, such notification being the
Notification Date) and then the Parent and the Agent (acting on the instructions of the Majority Lenders)
will enter into discussions to agree appropriate variations to the terms of the
Financial Covenants or any definition or element used in the calculation of any
Financial Covenant (being the Relevant Covenants and Definitions) so
that their original effect and intent may be maintained. 


(d)    If the parties fail to agree on the appropriate variations to the
Relevant Covenants and Definitions within 30 days (or such longer period as the
Parent and the Agent (acting on the instructions of the Majority Lenders) may
agree) of the Notification Date, then from that time, the Parent will provide
the Financial Reports, each Compliance Certificate and all other financial information
required to be provided under this Agreement together with reconciliation
statements necessary to enable the Parent to demonstrate compliance with the
Relevant Covenants and Definitions based on the US GAAP prior to the relevant
change occurring and there shall be no Default or Event of Default under this
Agreement in respect of the Relevant Covenants and Definitions so long as the
Parent demonstrates compliance with the Relevant Covenants and Definitions
based on the US GAAP prior to the change occurring, notwithstanding that the
Parent may not be able to demonstrate such compliance based on the changed US
GAAP.


24.    General Undertakings


The undertakings in this Clause 24 (General Undertakings) remain in force from the Facility Initiation Date for so
long as any amount is outstanding under the Finance Documents or any Commitment
is in force.


24.1    Authorisations


Eacph Obligor shall promptly:


(a)    obtain, comply with and do all that is necessary to maintain in
full force and effect:


(i)    any Authorisation required to enable it to perform its obligations
under the Finance Documents to which it is a party and to ensure the legality,
validity, enforceability or admissibility in evidence in its jurisdiction of
incorporation of any Finance Document to which it is a party; and


(ii)    any Authorisation required for it to carry on its business; and



 

 


 



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(b)    on request by the Agent, supply certified copies to the Agent of
any Authorisation referred to in sub paragraph (a)(i).


24.2    Compliance with laws and payment of
Taxes


(a)    Each Group Member shall comply in all respects with all laws
(including Environmental Health and Safety Laws and Environmental Approvals) to
which it is subject, and ensure that each of its Subsidiaries also complies, if
failure so to comply would have or would be reasonably likely to have a
Material Adverse Effect, except for
Anti-Corruption Laws and Sanctions, where compliance is required in all
material respects. The Obligors shall, and shall cause each of their Subsidiaries to,
maintain in effect policies and procedures designed to ensure compliance by the Obligors, each of their Subsidiaries and the
respective directors, officers, employees and agents of the Obligors and their Subsidiaries with Anti-Corruption Laws and applicable Sanctions.


(b)    Each Obligor must pay all Taxes (including any Indirect Taxes)
when due, other than Contested Taxes as to which appropriate reserves have been
established in accordance with US GAAP or other appropriate accounting
principles and ensure that each of its wholly owned Subsidiaries does the same.


24.3    Corporate Existence


Each Obligor will do everything necessary to maintain its
existence in good standing, and not transfer its jurisdiction of incorporation
or enter into any merger or consolidation, other than a solvent liquidation,
merger, consolidation or reorganisation.  


24.4    Change of business


Each Obligor will ensure that the general nature of the
business of the Group is and remains the exploration for and mining of, and
marketing and sale of, coal.


24.5    Negative pledge


(a)    The Obligors must not create a Security or allow one to exist on
the whole or any part of their present or future assets, other than a Permitted
Security.


(b)    Without limiting paragraph (a), no Obligor shall (unless it is a
Permitted Security or otherwise expressly permitted by this Agreement):


(i)    sell, transfer or otherwise dispose of any of its assets on terms
whereby they are or may be lease to or re-acquired by an Obligor;


(ii)    sell, transfer or otherwise dispose of any of its receivables on
recourse terms;


(iii)    enter into any title retention arrangement in circumstances where
the arrangement or transaction is entered into primarily as a method of raising
Financial Indebtedness or of financing the acquisition of an asset;


(iv)    enter into any arrangement under which money or the benefit of a
bank or other account may be applied, set off or made subject to a combination
of accounts, unless in the ordinary course of its banking arrangements or
Treasury Transactions; or



 

 


 



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(v)    enter
into any other preferential arrangement having similar effect.


(c)    The Obligors must ensure that no Recognition Certificate is
delivered to the Security Trustee other than pursuant to Section 9 (Changes
to parties) of this Agreement or with the consent of the Agent (acting on
the instructions of the Majority Lenders). 


24.6    Preservation of assets


Each Obligor shall (and the Parent shall ensure that each
member of the Group will) maintain in good working order and condition
(ordinary wear and tear excepted) all of its assets necessary in the conduct of
its business. 


24.7    Material Contracts


(a)    The Parent shall not (and
shall ensure that each other member of the Group does not):


(i)    amend in any way, or waive any requirement of, a Material Contract
which would be materially adverse to the interests of the Finance Parties; 


(ii)    assign or permit any assignment of, or terminate or do anything or
fail to do anything which would give rise to another party having the right to
terminate, any Material Contract where such assignment or termination would
have or would be reasonably likely to have a Material Adverse Effect; or 


(iii)    fail to procure the extension or renewal on materially comparable
terms (or more favourable to the Group) each Material Contract where such
failure would have or would be reasonably
likely to have a Material Adverse Effect,


in each case, without the prior consent of the Agent acting
on the instructions of the Majority Lenders.


(b)    The Parent shall ensure that any royalty payments in connection with
a mining tenement do not fall into arrears.


24.8    Pari passu  ranking


Each Obligor shall ensure that at all times any unsecured
and unsubordinated claims of a Finance Party and the Security Trustee against
it under the Transaction Security Documents rank at least pari passu with the
claims of all its other unsecured and unsubordinated creditors except those
creditors whose claims are mandatorily preferred by laws of general application
to companies.  


24.9    Financial accommodation


No
Obligor may:


(a)    advance money or make available
financial accommodation to or for the benefit of; or


(b)    give a Surety in connection with an obligation or liability of,


any person who is not also an Obligor unless it is Permitted
Financial Accommodation.



 

 






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24.10    Financial Indebtedness


Each Obligor undertakes not to incur, or to permit any
other Group Member to incur any Financial Indebtedness other than Permitted
Financial Indebtedness.


24.11    Disposals


(a)    No Obligor may enter into a single transaction or a series of
transactions (whether related or not) and
whether voluntary or involuntary, to sell, lease, transfer, create an interest
in or otherwise dispose of any asset, other than, subject to paragraph (b), a
Permitted Disposal.


(b)    No
Obligor may enter into a single transaction or a series of transactions
(whether related or not) to sell, lease, transfer or otherwise dispose of its
right to mine the Curragh Mine or the Buchanan Mine (including but not limited
to any sale, lease, transfer or disposal of the Australian Mining Tenement and
the Real Property or freehold or leasehold interests in those mines).


(c)    The Finance Parties must
procure, promptly and in any event no later than 15 Business Days after an
Obligor requests it, a full and unconditional release by the Security Trustee
of any Security over Secured Property the subject of a Permitted Disposal such
release to become effective on occurrence of the relevant disposal, provided
that the request is accompanied by a certificate signed by the Parent
confirming that:


(i)    no Default is continuing or would result from the disposal; and 


(ii)    there will be no breach of a Financial Covenant at the next
testing date under Clause 23.2 (Testing of covenants) based on projected financials for the
Group prepared and provided by the Parent
(after excluding the assets the subject of the disposal), together with
calculations evidencing compliance with Clause 23.2 (Testing of covenants).


The Security Trustee need not comply with this Clause if all “Beneficiaries” (as defined in the Security Trust Deed)
instruct the Security Trustee that they believe that the statements in the
certificate are incorrect in a material respect.


24.12    Distributions


The Parent will not make a
Distribution except in accordance
with the law and only if an Event of Default is not continuing and will not
occur as a result of the Distribution.


24.13    Personal Property Securities Act 2009


(a)    If a Finance Document (or a transaction in connection with it)
operates as, or gives rise to, a security interest in favour of a Finance Party
for the purposes of the PPSA, each Borrower will, at its cost and expense, do
anything (including, but not limited to, obtaining consents, signing and
producing documents, getting documents completed and signed and supplying
information, and procuring any related party to do any of those things) which
the Agent (acting in the instructions of the Majority Lenders) reasonably
requests and is reasonably necessary for the purposes of:



 

 


 



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(i)    ensuring that the Finance Document and security interest is fully
effective, enforceable and perfected with the contemplated priority; or


(ii)    enabling that Finance Party to apply for any registration, or give
any notification, in connection with the security interest so that the security
interest has the priority intended by the parties at the Facility Initiation
Date; or


(iii)    enabling that Finance Party to exercise rights in connection with
its security interest.


(b)    Where any Finance Party has a security interest (as defined in the
PPSA) under any Finance Document, to the extent the law permits:


(i)    for the purposes of sections 115(1) and 115(7) of the PPSA:


(A)    each Finance Party with the benefit of the security interest need
not comply with sections 95, 118, 121(4), 125, 130, 132(3)(d) or 132(4) of the
PPSA; and 


(B)    sections 142 and 143 of the PPSA are excluded; 


(ii)    for the purposes of section 115(7) of the PPSA, each Finance Party
with the benefit of the security interest need not comply with sections 132 and
137(3);


(iii)    each Party waives its right to receive from any Finance Party any
notice required under the PPSA (including a notice of a verification statement;
and


(iv)    if a Finance Party with the benefit of a security interest
exercises a right, power or remedy in connection with it, that exercise is
taken not to be an exercise of a right, power or remedy under the PPSA unless
the Finance Party states otherwise at the time of exercise.  However, this Clause does not apply to a
right, power or remedy which can only be exercised under the PPSA.


(c)    This does not affect any rights a person has or would have other than by
reason of the PPSA and applies despite any other Clause in any Finance Document.


24.14    Anti-money laundering


(a)    Each Obligor agrees that a Finance Party may delay, block or refuse to
process any transaction without incurring any liability if that Finance Party suspects
that:


(i)    the transaction may breach any laws or regulations in Australia or
any other country;


(ii)    the transaction involves any Sanctioned Person; or


(iii)    the transaction may directly involve the proceeds of, or be
applied for the purposes of, conduct which is unlawful in Australia or any
other country.


If a Finance Party decides to delay, block or refuse to process
any transaction on the basis of this Clause it must first give the Parent written notice of that fact and the
reasons for it doing so (to the extent giving that information is not
prohibited by law).



 



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(b)    Each Obligor must provide all information to the Agent which the
Agent or a Lender reasonably requires in order to manage its money-laundering,
terrorism financing or Sanctions
risk or to comply with any laws or regulations in Australia or any other
country.


(c)    Unless an Obligor has disclosed that it is acting in a trustee
capacity or on behalf of another party, each Obligor warrants that it is acting
on its own behalf in entering into any Finance Document.


(d)    Each Obligor declares and undertakes that the processing of any
transaction by a Finance Party in accordance with the Obligor’s instructions will not breach
any laws or regulations in Australia or any other country in which the Group
conducts business.


(e)    Each Obligor agrees that:


(i)    no person that is a Sanctioned Person will have any legal or
beneficial  interest in any funds repaid or remitted by the Borrowers to any
Finance Party in connection with the Facilities; and 


(ii)    they shall not use any revenue or benefit derived from any
activity or dealing with a Sanctioned Person for the purpose of discharging
amounts owing to any Finance Party in respect of the Facilities.


24.15    Sanctions; Anti-Corruption


No Obligor shall (and each Obligor shall ensure that no other
member of the Group will) directly or
indirectly, use the proceeds of any Facility (or lend, contribute or otherwise make available such proceeds to any person): (i) to fund any activities of or
business with any Sanctioned Person, or in any Sanctioned Country, or in any
other manner that would result in a violation of Sanctions by any Finance Party
or (ii) in violation of any
Anti-Corruption Laws.


24.16    Composition of Obligor Group  


(a)    The Parent must ensure that, subject to paragraph (d), at all times during
the term of the Facilities, the Obligor Group together accounts for:  


(i)    at least 90% of Total Tangible Assets (on a consolidated basis) of
the Relevant Group; and


(ii)    at least 90% of EBITDA (on a consolidated basis) of the Relevant
Group.


(b)    For the purposes of these tests, in calculating:


(i)    Total Tangible Assets of the Relevant Group, Total
Tangible Assets will be adjusted to
eliminate the direct contributions of Excluded Subsidiaries; and


(ii)    EBITDA of the Relevant Group, EBITDA will
be adjusted to eliminate:


(A)    amounts otherwise included in EBITDA which are attributable to
Group Members which are Excluded Subsidiaries, except if and to the extent that they have been
received by an Obligor as Distributions that have
been 



 

 


 



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accounted for as cash or cash
equivalents in the relevant accounting period; and


(B)    cash flows generated from assets subject to a Security  securing Limited Recourse F@_*inancial
Indebtedness, except if and to the extent that they have been received by an
Obligor as Distributions that have been accounted for
as cash or cash
equivalents in the relevant accounting
period.


(c)    Without
limiting the Parent's obligations under Clause 24.16(a), upon a Project Company
ceasing to have any Limited Recourse Financial Indebtedness it will cease to be a Project Company and
will be taken into account for the purposes of calculating compliance with
Clause 24.16(a). If the relevant entity is required to be a Guarantor to comply
with Clause
24.16(a), the Parent must procure that it becomes a Guarantor (and where it is
incorporated in Australia or the United States of America (or any state or
commonwealth thereof, including the District of Columbia), a member of the
Obligor Group) within 3 Months of it ceasing to be a Project Company. 


(d)    If required in order to ensure compliance with Clause 24.16(a) the Parent
must ensure that a Subsidiary (other than an Excluded Subsidiary) becomes party
to this Agreement (and the Security Trust
Deed and relevant Transaction Security Documents) as a Guarantor by complying with Clause 27 (Changes to Obligors) within 30 days of delivery of a
Compliance Certificate or otherwise becoming aware that the tests in paragraph (a) may not be met.  


24.17    Environmental
matters


(a)    Each Group Member shall:


(i)    obtain,
maintain and ensure material compliance with all Environmental Approvals; and


(ii)    implement and maintain procedures and management systems which are
adequate to ensure and monitor its compliance with Environmental Health and Safety Laws and to prevent any
Environmental Liability.


(b)    Without limiting any other reporting obligations in this
Agreement, each Group Member shall, promptly upon becoming aware, notify the
Agent of:


(i)    each written request, notification,
demand or other communication received from a Governmental
Agency in connection with a breach or potential breach of any Environmental
Health and Safety Law or Environmental Approval;


(ii)    any proceedings that would reasonably be likely to give rise to an
Environmental Liability that are ongoing or commenced or, to its knowledge,
threatened in writing; or


(iii)    any circumstances reasonably likely to
result in an Environmental Liability,



 

 


 



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in each case (a) and (b) above
which has, had or is reasonably likely to have a Material Adverse Effect or
would otherwise result in any liability (including any Environmental Liability)
of a Finance Party.


(c)    Where
a Finance Party reasonably suspects that a
Group Member is not complying in a material respect
with an Environmental Health and
Safety Law or Environmental Approval and, after consultation with the
Group Member, the Finance Party reasonably continues to suspect
non-compliance, a Finance Party may (but shall have no
obligation to), at the cost of the Borrower, appoint an
Environmental expert (in consultation with the Borrower) to conduct
an audit of the relevant Group Member’s Premises, procedures and management
systems (limited in scope to those matters directly relating to the alleged
non-compliance), and compliance with such procedures and systems relating to
that area and/or request copies of any risk registers or internal or external
audits of such procedures and compliance conducted by the relevant Group Member.  Each Group
Member will do everything reasonably necessary to facilitate any such audit. 
For the avoidance of doubt, nothing in this clause requires any Finance Party
to monitor or take any action to monitor compliance by the Group Members with their obligations under an Environmental
Health and Safety Law or Environmental Approval. This audit
is not to be a general audit of all of the Group Member’s system and processes.


(d)    Without limitation to any other rights of a Finance Party, where the procedures or the audit referred to in clause (c) above
reveal any Environmental Liability or non-compliance with Environmental Health and Safety Law or Environmental
Approval, the Borrower will promptly implement a plan to remedy such Environmental
Liability or non-compliance and provide the Agent with an update on the
implementation of such plan.


(e)    Each Group Member will ensure that at
all times it has made adequate provision to comply with its reclamation,
rehabilitation and restoration obligations under Environmental Health and Safety Law in respect of land
upon which its activities are or have been conducted, including but not limited
to the provision and maintenance of adequate financial assurances under
Environmental Health and Safety Law.


(f)    Where a Utilisation is used to fund a project to which the Equator
Principles would apply, the Borrower will ensure that the development of that project complies with
the Equator Principles or comparable standards that
meet or exceed the objectives of the Equator Principles. 


24.18    Partnerships and joint ventures


Other than investments in existence as at the Facility
Initiation Date and disclosed in the materials delivered to the Agent as a condition precedent under Part I of Schedule 2 (Conditions
precedent), no Group Member shall make any new or additional investment by
way of partnership, joint venture (whether incorporated or unincorporated) or
non-wholly owned Subsidiary or acquire any further equity in or provide
financial accommodation (subject always to Clause 24.9 (Financial accommodation))
to such partnership, joint venture or non-wholly owned subsidiary unless the
entity that is party to or holds the investment in (as the 



 

 





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case may be) the partnership or joint venture, or who holds
the equity in the incorporated joint venture or non-wholly owned Subsidiary, or
provides the financial accommodation is an Obligor.


24.19    Treasury Transactions


(a)    No Obligor shall enter into any Treasury Transaction except Treasury
Transactions consistent with and compliant with the Hedging Policy.  


(b)    No Obligor shall enter into any Treasury Transaction for the purpose of
speculation.


24.20    Mining tenements; After-Acquired Property; Further assurances
regarding Secured Property


(a)    Each Obligor
will ensure that at all times, (1) each mining tenement issued to it or in its
favour (other than a Project Asset) is and remains at all times the subject of
a Mining Tenement Security and (2) if any such Obligor acquires, leases,
licenses or otherwise obtains any rights to any additional property or asset
after the Listing Date (other than US Excluded Property), such Obligor shall execute and deliver to the Security Trustee for the
benefit of the Beneficiaries, the Transaction Security Documents reasonably
necessary, or as the Agent may reasonably deem necessary, to grant first
priority perfected Security and security interests (subject only to Permitted
Security) in and to such property or asset of such Obligor, in each case in
accordance with the terms of the Finance Documents.


(b)    Whenever the
Agent or the Security Trustee requests an Obligor to do anything: (i) to ensure
any Finance Document (or any security interest (as defined in the PPSA) or
other Security under any Finance Document) is fully effective, enforceable and
perfected with the contemplated priority; (ii) for more satisfactorily assuring or securing to
the Finance Parties the property the subject of any such security interest or
other Security in a manner consistent with the Finance Documents; or (iii) for
aiding the exercise of any power in any Finance Document, the Obligor shall do
it promptly at its own cost. This may include obtaining consents, signing
documents, getting documents completed and signed and supplying information,
delivering documents and evidence of title and executed blank transfers, or
otherwise giving possession or control with respect to any property the subject
of any security interest or Security, and/or executing, endorsing,
acknowledging, filing or delivering to the Security Trustee, promptly, upon the
reasonable request of the Agent or the Security Trustee, any document or
instrument supplemental to or confirmatory of the Transaction Security
Documents, including opinions of counsel, or otherwise deemed by the Agent or
the Security Trustee reasonably necessary for the continued validity,
perfection (or the equivalent under applicable Australian law) and priority of
the Transaction Security covered thereby subject to no other Security except
for Permitted Security or as otherwise permitted by the applicable Transaction
Security Document.


(c)    Without limitation of clause (a) or
(b) above, with respect to Real Property;


(i)    if any
Obligor acquires, leases or licenses any Real Property after the Listing Date, such Obligor shall promptly provide to the Security Trustee and
Agent 



 

 


 



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notice thereof with details as to such Real Property, and within one
hundred twenty (120) days thereafter (or
such longer period as may be extended by the Agent in its sole discretion), shall work
diligently with the Security Trustee and Agent to confirm that all
documentation has been prepared, executed and delivered (including third party
consents) which is necessary to grant a first-priority perfected Transaction
Security on all such Real Property, including as extracted minerals and
fixtures of the Obligors in connection with such Real Property (other than US
Excluded Property) in favor of the Security Trustee, including opinions of
local counsel in each applicable jurisdiction as to the enforceability of the
applicable Mortgages and the authority of the Obligors to grant such Mortgage
(including third party consents), with such opinions to be reasonably
satisfactory to the Security Trustee and the Agent; provided  that, if
after such period any Security Consent has not been
obtained and Security over the Relevant Asset as contemplated by a Transaction
Security Document has not been perfected to the satisfaction of the Agent, then
(x) that shall not be an Event of Default or Review Event but the Obligors must
continue to use reasonable commercial endeavours to obtain that Security
Consent and perfect the Security over that Relevant Asset, and must respond
promptly to requests by the Agent for information concerning progress in that
regard together with details of the reasonable endeavours undertaken and (y)
the Obligors must promptly (and, in any case, no later than 5 Business Days
after such period) provide to the Agent sufficient information in reasonable
detail about each missing Security Consent to enable the Agent to ascertain the
materiality or otherwise of the absence of that or those Security Consents (and
it is acknowledged that, in using reasonable commercial endeavours to obtain a Security Consent, no Obligor will be required to pay
any fee or pay any other consideration or agree to any commercial change that
would be detrimental to any Obligor);


(ii)    each Obligor shall, and shall cause each Subsidiary, from time to
time, at its expense, to preserve and protect the Security Trustee’s Security on the Real
Property as a continuing first priority perfected Transaction Security, subject
only to Permitted Security,
and shall do such other acts and things as may be necessary or as the Agent may
reasonably deem necessary from time to time in order to preserve, perfect and
protect the Security granted under the Transaction Security Documents and to
exercise and enforce its rights and remedies thereunder with respect to the
Real Property, except to the extent otherwise permitted hereunder; and


(iii)    if any portion of any real
property that is subject to a Mortgage as required hereunder is at any time
located in an area identified by the Federal Emergency Management Agency (or
any successor agency) as a special flood hazard area with respect to which
flood insurance has been made available under the National Flood Insurance Act
of 1968 (as now or hereafter in effect or successor act thereto), then the
Borrowers shall, or shall cause each Subsidiary to (i) maintain, or cause to be
maintained, with a financially sound and reputable 



 

 


 



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insurer, flood insurance
in an amount and otherwise sufficient to comply with all applicable rules and
regulations promulgated pursuant to the Flood Laws and (ii) deliver to the
Agent and Security Trustee evidence of such compliance in form and substance reasonably acceptable
to the Agent and Security Trustee.   Each Obligor or Subsidiary shall
take all actions required under the Flood Laws and/or reasonably requested by
the Security Trustee or Agent, to assist in ensuring that each Lender is in
compliance with the Flood Laws applicable to the Transaction Security,
including, to the extent applicable, providing the Security Trustee and Agent
with the address and/or GPS coordinates of each structure on any real property
that will be subject to a Mortgage hereunder, and, to the extent required,
obtaining flood insurance for such property, structures and contents prior to
such property, structures and contents becoming Transaction Security, and
thereafter maintaining such flood insurance in full force and effect for so
long as required by the Flood Laws. Parent shall provide the Security Trustee
and Agent with at least twenty-five (25) days’ prior written notice (which such
notice shall promptly be furnished to the Lenders) of any Mortgage and that,
upon confirmation from the Lenders that flood insurance due diligence has been
completed and compliance with the flood insurance requirements set forth in
this Agreement, such real property will be pledged as Transaction Security
under the Transaction Security Documents.


24.21    Real Property Mortgages


Without limiting Clause 4.5 (Conditions Subsequent – other) the Obligors shall, and shall cause each of the
Subsidiaries, to work diligently with the Security Trustee and Agent to confirm
that all documentation has been prepared, executed and delivered (including
third party consents) which is necessary to grant a first-priority perfected
Transaction Security on all Real Property, as extracted minerals and fixtures
of the Borrowers or applicable Subsidiary (other than US Excluded Property) in
favor of the Security Trustee, including opinions of local counsel in each
applicable jurisdiction as to the enforceability of the applicable Mortgages
and the authority of the Borrowers or the applicable Subsidiary to grant such
Mortgage (including third party consents), with such opinions to be reasonably
satisfactory to the Security Trustee and the Agent within 120 days after the
Listing Date, which date may be extended by the Agent in its reasonable
discretion.


25.    Events of Default


Each of the events or circumstances (whether or not it is
within the control of any Obligor) set out in this Clause 25 (Events of
Default) is an Event of Default save for Clause 25.20 (Consequences of
Event of Default) and Clause 25.21 (Cash cover).  


25.1    Non-payment


An Obligor does not pay any
amount payable pursuant to a Finance Document on its due date at the place and
in the currency in which it is expressed to be payable (except where the
failure to pay within that time is solely due to technical difficulties or an
administrative error in the banking system and the Obligor pays within 3
Business Days of the due date).



 

 






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25.2    Financial covenants


Any requirement
of Clause 23.1 (Financial covenants) is not satisfied when tested in
accordance with Clause 23.2 (Testing of covenants). 


25.3    Other obligations


(a)    An Obligor does not comply with any provision of the Finance
Documents (other than those referred to in Clause 25.1 (Non-payment) and
Clause 25.2 (Financial covenants)) or with any condition of any waiver
or consent by a Finance Party under or in connection
with any Finance Document.


(b)    No Event of Default under paragraph (a) above will occur if the failure to
comply is capable of remedy and is remedied within 10 Business Days of the
Agent giving notice to the Parent, or the Obligors becoming aware of it, whichever is first.


25.4    Misrepresentation


(a)    Any representation or statement made or deemed to be made by an
Obligor in the Finance Documents or any other document delivered by or with the
authority of any Obligor under or in connection with any Finance Document is or
proves to have been incorrect or misleading in any material respect when made
or deemed to be made.


(b)    No Event of Default under paragraph (a) above will occur in
relation to a representation deemed to be made under the Finance Documents
after the first Utilisation Date being incorrect or misleading if the facts or
circumstances which caused the representation to be incorrect or misleading are
capable of remedy and are remedied within 10 Business Days of the Agent giving
notice to the Parent, or the Obligors becoming aware of it, whichever is first.


25.5    Cross default


(a)    Any Financial Indebtedness of an Obligor is not paid when due nor
within any originally applicable grace period and the obligation to pay is not
being diligently defended and disputed in good faith.


(b)    Any Financial Indebtedness of an Obligor is declared to be or
otherwise becomes due and payable or becomes capable of being declared due and
payable prior to its specified maturity as a result of an event of default or
review event (however described).


(c)    Any commitment for any Financial Indebtedness of an Obligor is
cancelled or suspended by a creditor of any of them as a result of an event of
default or review event (however described).


(d)    No Event of Default will occur under this Clause 25.5 if the aggregate
amount of Financial Indebtedness or commitment for Financial Indebtedness
falling within paragraphs (a) to (c) above is less than A$20,000,000 (or its equivalent in any other
currency or currencies). 


25.6    Insolvency


(a)    An Obligor is or is presumed or deemed under a law having that
effect to be unable or admits inability to pay its debts as they fall due,
suspends making payments on any of 



 

 


 



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its debts or, by reason
of actual or anticipated financial difficulties, commences negotiations with
one or more of its creditors with a view to rescheduling any of its
indebtedness.


(b)    A moratorium is declared in respect of any indebtedness of any
Obligor.


25.7    Insolvency proceedings


Any corporate action is taken or any legal proceedings are
commenced or other procedure or step is taken in relation to:


(a)    the suspension of payments, a moratorium of any indebtedness,
winding-up, dissolution, judicial management, administration or reorganisation (by way of voluntary arrangement,
scheme of arrangement or otherwise) of any Obligor (other than an Obligor
formed and incorporated in the United States of America) other than:


(i)    a solvent liquidation or reorganisation of an Obligor in respect
of which the Agent (acting on the instructions of the Majority Lenders) has provided its
prior written consent; or


(ii)    an application made to a court for the purposes of winding up such
a person which is disputed by the Obligor acting diligently and in good faith
and dismissed within 10 Business Days;


(b)    any composition, assignment or arrangement with the creditors of
any Obligor (excluding a US Obligor);


(c)    the appointment of a liquidator, receiver, administrator, judicial manager, administrative
receiver, compulsory manager, statutory manager or other similar officer in respect of any Obligor
(excluding an Obligor formed and incorporated in the United States of America)
or any of its assets other than:


(i)    in respect of a solvent
liquidation of the Obligor in respect of which the Agent (acting on the
instructions of the Majority Lenders) has provided its prior written consent;


(ii)    an application made to a court for the purposes of appointing such
a person which is disputed by the
Obligor acting diligently and in good faith and dismissed within 10 Business Days;



(d)    enforcement of any Security over any assets of any Obligor
(excluding an Obligor formed and incorporated in the United States of America) with a value of
over A$20,000,000 (or its equivalent in any other currency or currencies); or


(e)    any analogous event occurs in any jurisdiction.


25.8    US Bankruptcy Procedures


With respect to any Obligor that is a US Person or Material
Subsidiary, (1) an involuntary proceeding is commenced or an involuntary
petition shall be filed in a court of competent jurisdiction seeking (i) relief
in respect of such person, or of a substantial part of the property or assets
of such person, under the Bankruptcy Law, (ii) the appointment of a receiver,
trustee, 



 

 





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custodian, sequestrator, conservator or similar
official for such person or for a substantial part of its property or assets or
(iii) the winding-up or liquidation of such person; and such proceeding or
petition is not dismissed or stayed within 60 days or an order or decree
approving or ordering any of the foregoing shall be entered; (2) it has (i)
voluntarily commenced any proceeding or filed any petition seeking relief under
the Bankruptcy Law, (ii) consented to the institution of, or failed to contest
in a timely and appropriate manner, any proceeding or the filing of any
petition described in clause (1), (iii) applied for or consented to the
appointment of a receiver, trustee, custodian, sequestrator, conservator or
similar official for it or for a substantial part of its property or assets,
(iv) filed an answer admitting the material allegations of a petition filed
against it in any such proceeding; or (3) it admits in writing its inability to
pay its debts as and when they become due. 


25.9    Creditors’ process


Any expropriation, attachment, sequestration, distress or
execution affects any asset or assets of any Obligor having an aggregate value
of A$20,000,000 (or its equivalent in any other currency or currencies) and is
not discharged within 10 Business Days.


25.10    Cessation of business


The Group ceases to carry on its business or a material
part of it or threatens to do the same. 


25.11    Ownership of the Borrowers


A Borrower is not or ceases to be a wholly-owned Subsidiary
of the Parent while it is a Borrower under this Agreement.


25.12    Unlawfulness


It is or becomes unlawful for an Obligor to perform any of
its payment or other material obligations under the Finance Documents or any Security created or evidenced by the Transaction
Security Documents ceases to be effective.


25.13    Authorisation


An Authorisation which is material to the performance by an
Obligor of its payment or other material obligations under the Finance
Documents, or to the validity and enforceability of the Finance Documents as a
whole, or to the rights of the Finance Parties to require payment under this
Agreement is repealed, revoked or terminated or expires without renewal. 


25.14    Repudiation


An Obligor repudiates a Finance Document or any Security created or evidenced by the Transaction
Security Documents or evidences in
writing an intention to repudiate a Finance Document or any Security created or evidenced by the Transaction
Security Documents.


25.15    Vitiation of Finance Documents; Transaction; Security Documents


A provision of a Finance Document is or becomes or is
claimed in writing by a party other than a Finance Party to be
wholly or partly invalid, void, voidable or unenforceable in any material
respect and that is not rectified by replacement documentation reasonably
satisfactory to the Finance Parties within 15 Business Days.  Any Transaction
Security on a material portion of the Secured Property purported to be created
by any Transaction Security Document shall cease to be in full force and
effect, or shall cease to give the Security Trustee, for the benefit of the
Beneficiaries, the Security, rights, powers and privileges purported to be
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and granted under such Transaction Security
Document (including a perfected security interest in and Security on all of the
Secured Property thereunder (except as otherwise expressly provided in such
Transaction Security Document)) in favor of the Security Trustee, or shall be
asserted by Parent or any other Obligor not to be a valid, perfected, first
priority (except as otherwise expressly provided in this Agreement or such
Transaction Security Document) security interest in or Security on the Secured
Property covered thereby.


25.16    Litigation


A litigation, arbitration, proceeding or dispute affecting
an Obligor or any of its assets has been formally commenced by initiating
process before a court, Governmental Agency, commission or arbitrator, but only where the litigation,
arbitration, administrative proceeding or dispute is likely, based on an
opinion from a Queen’s Counsel or Senior Counsel selected by the Agent and 
jointly instructed by the Agent (on behalf of the Lenders) and the Borrower at
the cost of the Borrower, to be determined adversely to the Obligor and if so
determined, might have a Material Adverse Effect. 


25.17    Material Adverse Effect


An event occurs which has or will have (or a series of
events occurs which, together, has or will have) a Material Adverse Effect.


25.18    Tax Consolidation   


After the Parent has complied with Clause 4.4 (Condition
subsequent – Tax
Consolidation) and without the prior written consent of all Lenders, an Obligor
ceases to be a member of the Tax Consolidated Group formed under the Tax Agreements.


25.19    Events
Relating to Plans and Benefit Arrangements


Any of the following occurs, in each case, which individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect: (i)
any Reportable Event, which could reasonably be expected to constitute grounds
for the termination of any Plan by the PBGC or the appointment of a trustee to
administer or liquidate any Plan, shall have occurred and be continuing; (ii)
proceedings shall have been instituted or other action taken to terminate any
Plan, or a termination notice shall have been filed with respect to any Plan;
(iii) a trustee shall be appointed to administer or liquidate any Plan; (iv)
Parent or any other member of the ERISA Group shall fail to make any
contributions when due to a Plan or a Multiemployer Plan, whether or not
waived, or fail to pay when due, after the expiration of any applicable grace
period, any installment payment with respect to its withdrawal liability under
Section 4201 of ERISA; (v) Parent or any other member of the ERISA Group shall
withdraw completely or partially from a Multiemployer Plan or a Multiemployer
Plan shall be determined to be insolvent (within the meaning of Title IV of
ERISA) or in “endangered” or “critical” status (within the meaning of Section
432 of the Internal Revenue Code or Section 305 of ERISA); or (vi) Parent or
any other member of the ERISA Group shall withdraw (or shall be deemed under
Section 4062(e) of ERISA to withdraw) from a Plan.


 


25.20    Consequences of an Event
of Default


(a)    Subject to paragraphs (b) and (c)
below, on and at any time after the
occurrence of an Event of Default which is continuing the Agent may (and shall if so directed by the Majority
Lenders), by notice to the Parent and the Borrowers:



 

 


 



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(i)    cancel the Total Commitments
whereupon they shall immediately be cancelled;


(ii)    declare that all or part of the Utilisations, together with
accrued interest, and all other amounts accrued or outstanding under the
Finance Documents be immediately due and payable, whereupon they shall become
immediately due and payable; 


(iii)    declare that all or part of the Utilisations be payable on demand,
whereupon they shall immediately become payable on demand by the Agent acting
on the instructions of the Majority Lenders; 


(iv)    declare that full cash cover in respect of each Bank Guarantee is
immediately due and payable whereupon it shall become immediately due and
payable; and/or


(v)    exercise or direct the Security
Trustee under the Security Trust Deed to exercise any or all of its rights,
remedies, powers or discretions under the Finance Documents.


(b)    In the event of an Event of Default set out under Clause 25.8 (US Bankruptcy Procedures) , the Commitments that are available to the
Borrower shall, if not already cancelled under this Agreement, be immediately
and automatically cancelled, and all Utilisations owing by the Borrower,
together with accrued interest, and all other amounts accrued under the Finance
Documents with respect thereto shall be immediately due and payable, without any declaration, notice or other act
by a Finance Party.  


(c)    In respect of any Hedging Agreement, any action or notice will not
be taken or given by the Agent but will only be taken or given by the relevant Finance Party which
is a party to such Hedging Agreement.


25.21    Cash cover


The Issuing Bank shall place any cash it
receives from a Borrower by way of cash cover into an account in the name of
the Borrower (Cash Cover Account) and in respect of which the following
conditions must be met:


(a)    the account is with the Issuing Bank for which that cash cover is
to be provided;


(b)    until no amount is or may be outstanding under that Bank
Guarantee, the Issuing Bank may apply (including by combination of accounts or
set-off) amounts due and payable to it under this Agreement in respect of that
Bank Guarantee; and


(c)    if the Issuing Bank requests it, the Borrower has executed a
security document, in form and substance satisfactory to the Issuing Bank with
which that account is held, creating a first ranking security interest over
that account.



 

 






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25.22    Interest on cash cover


(a)    Each Issuing Bank must pay interest on the credit balance of each
Cash Cover Account held with it at the rate it pays on credit balances held for
its good corporate customers for balances equal to the then current balance of
the Cash Cover Account.


(b)    Interest under this Clause 25.22 accrues daily and is calculated
on actual days elapsed and a 365 day year.


(c)    Interest under this Clause 25.22 must be credited to each Cash
Cover Account on the last day of each calendar month.


(d)    Accrued interest under this Clause 25.22 may be applied by the
relevant Issuing Bank in accordance with Clause 25.21(b) (Cash cover) or
otherwise must be paid to the relevant Borrower in accordance with Clause 25.23
(Termination of cash cover)


25.23    Termination of cash cover


(a)    If an Issuing Bank is satisfied that it has no further lability
under a Bank Guarantee for which a Borrower has provided cash cover to the
Issuing Bank, the relevant Issuing Bank must within 3 Business Days of request
by the relevant Borrower permit the relevant Borrower to withdraw an amount
equal to the face value of that Bank Guarantee plus any accrued interest in
respect of that cash cover from the Cash Cover Account held with that Issuing
Bank.


(b)    If an Issuing Bank is satisfied that every Bank Guarantee that has
been issued by it has been paid in full or discharged, then that Issuing Bank
must, if it receives written notice from the relevant Borrower to do so, permit
that Borrower to withdraw from the Cash Cover Account held with that Issuing
Bank any amount paid to the Issuing Bank by it which has not been, or is not
required to be, applied in accordance with Clause 25.21(b) (Cash cover). 



 

 





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SECTION 9


CHANGES TO PARTIES


26.    Changes to the Lenders


26.1    Assignments and novations by the Lenders


Subject to this Clause 26 (Changes to the Lenders),
a Lender (the "Existing Lender") may:


(a)    assign any of its rights; or


(b)    novate any of its rights and obligations,


under the Finance Documents to another bank or financial
institution or to a trust, fund or other entity which is regularly engaged in
or established for the purpose of making, purchasing or investing in loans,
securities or other financial assets (including credit derivatives) (the "New
Lender"). 


26.2    Conditions of assignment or novation


(a)    The consent
of a Borrower is required for an assignment or novation by an Existing Lender,
unless the assignment or novation is:


(i)    to another Lender or an Affiliate of a Lender; or


(ii)    made at a time when an Event of Default or Review Event is
continuing; or


(iii)    to a securitisation or funding vehicle.


(b)    The consent
of a Borrower to an assignment or novation must not be unreasonably withheld or
delayed or subject to unreasonable conditions.  The Borrowers will be deemed to
have given its consent five Business Days after the Existing Lender has
requested it unless consent is expressly refused by a Borrower within that
time.


(c)    An assignment
will only be effective:


(i)    if the procedure set out in Clause 26.6 
(Procedure for assignment) is complied with;


(ii)    on receipt by the Agent (whether in the Assignment Agreement or
otherwise) of written confirmation from the New Lender (in form and substance
satisfactory to the Agent) that the New Lender will assume the same obligations
to the other Finance Parties and the other Beneficiaries as it would have been under
if it was an Original Lender;


(iii)    on performance by the Agent of all necessary "know your
customer" or other similar checks under all applicable laws and
regulations in relation to such assignment to a New Lender, the completion of
which the Agent shall promptly notify to the Existing Lender and the New
Lender; and


(iv)    on receipt by the Agent of confirmation from the Security Trustee
that the Security Trustee has performed all necessary "know your
customer" or other similar checks under all applicable laws and
regulations in relation to such 



 

 


 



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assignment to a New Lender
(the receipt of which the Agent shall promptly notify to the Existing Lender
and the New Lender) and the New Lender has become bound by a relevant
Recognition Certificate.


(d)    A novation will only be effective:


(i)    if the procedure set out in Clause 26.5 
(Procedure for novation) is complied with;


(ii)    on performance by the Agent of all necessary "know your
customer" or other similar checks under all applicable laws and
regulations in relation to such novation to a New Lender, the completion of
which the Agent shall promptly notify to the Existing Lender and the New
Lender; and


(iii)    on receipt by the Agent of confirmation from the Security Trustee
that the Security Trustee has performed all necessary "know your
customer" or other similar checks under all applicable laws and
regulations in relation to such novation to a New Lender (the receipt of which
the Agent shall promptly notify to the Existing Lender and the New Lender) and
the New Lender has become bound by a relevant Recognition Certificate.


(e)    If:


(i)    a Lender assigns or novates any of its rights or obligations under
the Finance Documents or changes its Facility Office; and


(ii)    as a result of circumstances existing at the date the assignment,
novation or change occurs, an Obligor would be obliged to make a payment to the
New Lender or Lender acting through its new Facility Office under Clause 14 (Tax Gross Up and Indemnities) or
Clause 16 (Increased Costs),


then the New Lender or Lender acting through its new Facility
Office is only entitled to receive payment under those Clauses to the same
extent as the Existing Lender or Lender acting through its previous Facility
Office would have been if the assignment, novation or change had not occurred except
to the extent such entitlement to receive a greater payment results from a
change in law or regulation that occurs after the assignment or novation.  This
paragraph (e) shall not apply:


(iii)    in respect of an assignment or novation made in the ordinary
course of the primary syndication of the Facilities; or


(iv)    where the payment is in relation to Australian Withholding Tax and
there are at least two Lenders after the assignment, novation or change, and
the New Lender, or Lender acting through its new Facility Office, is not an
Offshore Associate of the Borrower.  In such instances, the New Lender, or
Lender acting through its new Facility Office will be entitled to full payment
under Clause 14 (Tax Gross Up and
Indemnities), subject to Clause 14.4 (Exclusions)
..



 

 






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(f)    Each New
Lender, by executing the relevant Transfer Certificate or Assignment Agreement,
confirms, for the avoidance of doubt, that the Agent has authority to execute
on its behalf any amendment or waiver that has been approved by or on behalf of
the requisite Lender or Lenders in accordance with this Agreement on or prior
to the date on which the novation or assignment becomes effective in accordance
with this Agreement and that it is bound by that decision to the same extent as
the Existing Lender would have been had it remained a Lender.


(g)    A Lender may not assign or novate any of its rights or obligations
under the Finance Documents or change its Facility Office, if the New Lender or
the Lender acting through its new Facility Office would be entitled to exercise
any rights under Clause 9.1  (Illegality)
as a result of circumstances existing as at the date the assignment, novation
or change is proposed to occur.


26.3    Assignment or novation fee


The New Lender shall, on the date upon which an assignment
or novation takes effect, pay to the Agent (for its own account) a fee as
notified by the Agent from time to time.


26.4    Limitation of responsibility of Existing Lenders


(a)    Unless expressly agreed to the contrary, an Existing Lender makes
no representation or warranty and assumes no responsibility to a New Lender
for:


(i)    the legality, validity, effectiveness, adequacy or enforceability
of the Finance Documents or any other documents;


(ii)    the financial condition of any Obligor or any other person;


(iii)    the performance and observance by any Obligor or any other person
of its obligations under the Finance Documents or any other documents; or


(iv)    the accuracy of any statements (whether written or oral) made in
or in connection with any Finance Document or any other document,


and any representations or warranties implied by law are excluded.


(b)    Each New Lender confirms to the Existing Lender, the other Finance
Parties and the Beneficiaries that it:


(i)    has made (and shall continue to make) its own independent
investigation and assessment of the financial condition and affairs of each
Obligor and its related entities and any other person in connection with its
participation in this Agreement and has not relied exclusively on any
information provided to it by the Existing Lender in connection with any
Finance Document; and


(ii)    will continue to make its own independent appraisal of the
creditworthiness of each Obligor and its related entities and any other person
whilst any amount is or may be outstanding under the Finance Documents or any
Commitment is in force.



 

 






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(c)    Nothing in
any Finance Document obliges an Existing Lender to:


(i)    accept a novation or re-assignment from a New Lender of any of the
rights and obligations assigned or novated under this Clause 26 (Changes to the Lenders); or


(ii)    support any losses directly or indirectly incurred by the New Lender
by reason of the non-performance by any Obligor or any other person of its
obligations under the Finance Documents or otherwise.


26.5    Procedure for novation


(a)    Subject to the conditions set out in Clause 26.2  (Conditions of assignment or novation) a
novation is effected in accordance with paragraph (e) below when the Agent
executes an otherwise duly completed Transfer Certificate delivered to it by
the Existing Lender and the New Lender.  The Agent shall, subject to paragraphs
(b) and (c) below, as soon as reasonably practicable after receipt by it of a
duly completed Transfer Certificate appearing on its face to comply with the
terms of this Agreement and delivered in accordance with the terms of this
Agreement, execute that Transfer Certificate.


(b)    The Agent shall only be obliged to execute a Transfer Certificate
delivered to it by the Existing Lender and the New Lender once it is satisfied
it has complied with all necessary "know your customer" or other
similar checks under all applicable laws and regulations in relation to the
transfer to such New Lender.


(c)    The Agent may refrain from executing a Transfer Certificate
pending satisfaction of Clause 26.2(c)(iii)  (Conditions
of assignment or novation) and acting reasonably, may delay executing a
Transfer Certificate pending a payment, distribution or Utilisation under or in
respect of the Finance Documents.


(d)    Each Party other than the Existing Lender irrevocably authorises
the Agent to execute any Transfer Certificate on its behalf.


(e)    Subject to Clause 26.9  (Pro
rata interest settlement), on the Transfer Date:


(i)    to the extent that in the Transfer Certificate the Existing Lender
seeks to novate its rights and obligations under the Finance Documents each of
the Obligors and the Existing Lender shall be released from further obligations
towards one another under the Finance Documents and their respective rights
against one another under the Finance Documents shall be cancelled (being the
"Discharged Rights and Obligations"); 


(ii)    each of the Obligors and the New Lender shall assume obligations
towards one another and/or acquire rights against one another which differ from
the Discharged Rights and Obligations only insofar as that Obligor and the New
Lender have assumed and/or acquired the same in place of that Obligor and the
Existing Lender;



 

 






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(iii)    the Agent, the Arranger, the New Lender and other Lenders shall
acquire the same rights and assume the same obligations between themselves as
they would have acquired and assumed had the New Lender been an Original Lender
with the rights and/or obligations acquired or assumed by it as a result of the
novation and to that extent the Agent, the Arranger and the Existing Lender
shall each be released from further obligations to each other under the Finance
Documents;


(iv)    the New Lender shall become a Party as a "Lender"
and entitled to the benefits of any other document entered into by the Agent as
agent for the Lenders and will be bound by obligations equivalent to the
Relevant Obligations (as defined in Clause 26.6(c)(ii) 
(Procedure for assignment) below); and


(v)    for the purposes of this Agreement, Commitments, participations in
Loans and rights and obligations will be taken to have been transferred under a
Transfer Certificate even though it operates as a novation and Commitments,
participations in Loans and rights and obligations are replaced rather than
transferred.


26.6    Procedure for assignment


(a)    Subject to the conditions set out in Clause 26.2  (Conditions of assignment or novation)
an assignment may be effected in accordance with paragraph (c) below when the
Agent executes an otherwise duly completed Assignment Agreement delivered to it
by the Existing Lender and the New Lender.  The Agent shall, subject to
paragraph (b) below, as soon as reasonably practicable after receipt by it of a
duly completed Assignment Agreement appearing on its face to comply with the
terms of this Agreement and delivered in accordance with the terms of this
Agreement, execute that Assignment Agreement.


(b)    The Agent shall only be obliged to execute an Assignment Agreement
delivered to it by the Existing Lender and the New Lender once it is satisfied
it has complied with all necessary "know your customer" or other
similar checks under all applicable laws and regulations in relation to the
assignment to such New Lender.


(c)    Subject to Clause 26.9  (Pro
rata interest settlement), on the Transfer Date:


(i)    the Existing Lender will assign absolutely to the New Lender the
rights under the Finance Documents expressed to be the subject of the
assignment in the Assignment Agreement;


(ii)    the Existing Lender will be released by each Obligor and the other
Finance Parties from the obligations owed by it (the "Relevant
Obligations") and expressed to be the subject of the release in the
Assignment Agreement; and


(iii)    the New Lender shall become a Party as a "Lender"
and entitled to the benefits of any other document entered into by the Agent as
agent for the Lenders and will be bound by obligations equivalent to the
Relevant Obligations.



 

 






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(d)    Lenders may
utilise procedures other than those set out in this Clause 26.6  (Procedure for assignment) to assign
(including by equitable assignment) their rights under the Finance Documents
(but not, without the consent of the relevant Obligor or unless in accordance
with Clause 26.5  (Procedure for novation),
to obtain a release by that Obligor from the obligations owed to that Obligor
by the Lenders nor the assumption of equivalent obligations by a New Lender)
provided that they comply with the conditions set out in Clause 26.2  (Conditions of assignment or novation). 


26.7    Copy of Transfer Certificate or Assignment Agreement to Company


The Agent shall, as soon as reasonably practicable after it
has executed a Transfer Certificate or an Assignment Agreement, send to a
Borrower a copy of that Transfer Certificate or Assignment Agreement.


26.8    Security over Lenders' rights


In addition to the other rights provided to Lenders under
this Clause 26 (Changes to the
Lenders), each Lender may without
consulting with or obtaining consent from any Obligor, at any time charge,
assign or otherwise create Security in or over (whether by way of collateral or
otherwise) all or any of its rights under any Finance Document to secure
obligations of that Lender including:


(a)    any charge, assignment or other Security to secure obligations to
a federal reserve or central bank; and


(b)    any charge, assignment or other Security granted to any holders
(or trustee or representatives of holders) of obligations owed, or securities
issued, by that Lender as security for those obligations or securities,


except that no such charge, assignment or
Security shall:


(i)    release a Lender from any of its obligations under the Finance
Documents or substitute the beneficiary of the relevant charge, assignment or
Security for the Lender as a party to any of the Finance Documents; or


(ii)    require any payments to be made by an Obligor other than or in
excess of, or grant to any person any more extensive rights than, those
required to be made or granted to the relevant Lender under the Finance
Documents.


26.9    Pro rata interest settlement


(a)    If the Agent has notified the Lenders that it is able to
distribute interest payments on a "pro rata basis" to Existing
Lenders and New Lenders then (in respect of any novation pursuant to Clause 26.5  (Procedure for novation) or any
assignment pursuant to Clause 26.6  (Procedure
for assignment) the Transfer Date of which, in each case, is after the date
of such notification and is not on the last day of an Interest Period):


(i)    any interest or fees in respect of the relevant participation
which are expressed to accrue by reference to the lapse of time shall continue
to accrue in favour of the Existing Lender up to but excluding the Transfer
Date ("Accrued Amounts") and shall become due and payable to
the Existing Lender (without further interest accruing on them) on the last day
of the current Interest Period 



 

 


 



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(or, if the Interest Period is
longer than six Months, on the next of the dates which falls at six Monthly
intervals after the first day of that Interest Period); and


(ii)    the rights assigned or novated by the Existing Lender will not
include the right to the Accrued Amounts, so that, for the avoidance of doubt:


(A)    when the Accrued Amounts become
payable, those Accrued Amounts will be payable to the Existing Lender; and


(B)    the amount payable to the New Lender on
that date will be the amount which would, but for the application of this
Clause 26.9  ( Pro rata interest settlement), have been payable to it on that date,
but after deduction of the Accrued Amounts.


(b)    In this Clause 26.9   (Pro rata interest settlement) references to "Interest
Period" shall be construed to include a reference to any other period for
accrual of fees.


(c)    An Existing Lender which retains the right to the Accrued Amounts
pursuant to this Clause 26.9 (Pro rata interest settlement) but which does not have a
Commitment shall be deemed not to be a Lender for the purposes of ascertaining
whether the agreement of any specified group of Lenders has been obtained to
approve any request for a consent, waiver, amendment or other vote of Lenders
under the Finance Documents.


27.    Changes to the Obligors


27.1    Assignments and novation by Obligors


No Obligor may assign any of its rights or novate any of
its rights or obligations under the Finance Documents.


27.2    Additional Borrowers


(a)    Subject to compliance with the provisions of Clause 22.3  (Know your client) the Parent may
request that any of its wholly-owned Subsidiaries incorporated in Australia
becomes an Additional Borrower.  That Subsidiary shall become an Additional
Borrower if:


(i)    all the Lenders approve the addition of that Subsidiary;


(ii)    the Parent delivers to the Agent a duly completed and executed Accession
Letter;


(iii)    unless that Subsidiary is, at that time, an "Obligor"
under the Security Trust Deed, it accedes to the Security Trust Deed as an
"Additional Obligor" by signing and delivering to the Security
Trustee an Accession Deed and any other documents or information required under
the Security Trust Deed;


(iv)    the Parent confirms that no Default is continuing or would occur
as a result of that Subsidiary becoming an Additional Borrower; and



 

 






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(v)    the Agent has received all of the documents and other evidence
listed in Part II of Schedule 2 (Conditions
precedent) in relation to that Additional Borrower, each in form and
substance satisfactory to the Agent acting on the instructions of all Lenders.


(b)    The Agent shall notify the Parent and the Lenders promptly upon
being satisfied that it has received (in form and substance satisfactory to it
acting on the instructions of all Lenders) all the documents and other evidence
listed in Part II of Schedule 2 (Conditions
precedent). 


(c)    The Agent shall not be liable for any damages, costs or losses to
any person, any diminution in value or any liability whatsoever as a result of
giving any such notification.


27.3    Resignation of a Borrower


(a)    The Parent may request that a Borrower ceases to be a Borrower by
delivering to the Agent a Resignation Letter.


(b)    The Agent shall accept a Resignation Letter and notify the Parent
and the Lenders of its acceptance if:


(i)    no Default is continuing or would result from the acceptance of
the Resignation Letter (and the Parent has confirmed this is the case); and


(ii)    the Borrower is under no actual or contingent obligations as a
Borrower under any Finance Documents,


whereupon that company shall cease to be a Borrower and shall have
no further rights or obligations under the Finance Documents as a Borrower (and
without prejudice to any obligations it may have as a Guarantor).


27.4    Additional Guarantors


(a)    Subject to compliance with the provisions of Clause 22.3 (Know
your client), the Parent may request that any of its wholly-owned]
Subsidiaries become an Additional Guarantor.  That Subsidiary shall become an
Additional Guarantor if:


(i)    the Parent delivers to the Agent a duly completed and executed Accession
Letter executed as a deed;


(ii)    the Agent has received all of the documents and other evidence
listed in Part II of Schedule 2 (Conditions
precedent) in relation to that Additional Guarantor, each in form and
substance satisfactory to the Agent acting on the instructions of all Lenders;
and


(iii)    the relevant Group Member accedes to the Security Trust Deed as an
"Additional Obligor" by signing and delivering to the Security
Trustee an Accession Deed and any other documents or information required under
the Security Trust Deed.



 

 






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(b)    The Agent
shall notify the Parent and the Lenders promptly upon being satisfied that it
has received (in form and substance satisfactory to it acting on the
instructions of all Lenders) all the documents and other evidence listed in
Part II of Schedule 2 (Conditions precedent). 


(c)    The Agent shall not be liable for any damages, costs or losses to
any person, any diminution in value or any liability whatsoever as a result of
giving any such notification.


27.5    Repetition of Representations


Delivery of an Accession Letter constitutes confirmation by
the relevant Subsidiary that the Repeating Representations are true and correct
in relation to it as at the date of delivery as if made by reference to the
facts and circumstances then existing.


27.6    Resignation of a Guarantor


(a)    The Parent may request that a Guarantor (other than a Borrower)
ceases to be a Guarantor by delivering to the Agent a Resignation Letter.


(b)    The Agent shall accept a Resignation Letter and notify the Parent
and the Lenders of its acceptance if:


(i)    no Default is continuing or would result from the acceptance of
the Resignation Letter (and a Borrower has confirmed this is the case);


(ii)    all the Lenders have consented to a Borrower's request,


whereupon that company shall cease to be a Guarantor and shall
have no further rights or obligations under the Finance Documents as a
Guarantor.


28.    Restriction on Debt Purchase Transactions


28.1    Prohibition on Debt Purchase Transactions by Borrower Affiliates


Without limiting Clause 26.2 
(Conditions of assignment or novation), a Borrower shall not, and shall
procure that each Borrower Affiliate shall not, be a Lender or enter into any
Debt Purchase Transactions or beneficially own or control all or a material
part of the equity of an entity that is a Lender or a party to a Debt Purchase
Transaction.


28.2    Disenfranchisement on Debt Purchase Transactions entered into by
Borrower Affiliates


(a)    Subject to Clause 26.2  (Conditions
of assignment or novation), for so long as a Borrower Affiliate (i) beneficially
owns any participation in a Utilisation drawn utilising a Commitment or (ii)
has entered into a Debt Purchase Transaction relating to such a participation
or Commitment and such agreement or arrangement has not been terminated:


(i)    in ascertaining whether the Majority Lenders, all Lenders or
Lenders representing any given percentage of the Total Commitments give a
consent, approval, waiver, amendment, instructions or other decision under the
Finance Documents such participation and Commitment shall be deemed to be zero;
and



 

 






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(ii)    for the purposes of Clause 39.2  (All
Lender matters), such Borrower Affiliate or the person with whom it has
entered into such sub-participation, other agreement or arrangement shall be
deemed not to be a Lender (unless it is a Lender with another Commitment and is
not a Borrower Affiliate).


(b)    Each Lender shall promptly notify the Agent in writing if:


(i)    it knowingly enters into a Debt Purchase Transaction with a
Borrower Affiliate; or


(ii)    such transaction is terminated or ceases to be with a Borrower
Affiliate.


(c)    Each Borrower Affiliate that is a Lender agrees that:


(i)    unless the Agent otherwise agrees, it shall not attend or
participate any meeting or conference call of Lenders or be entitled to receive
the agenda or any minutes; and


(ii)    in its capacity as Lender, unless the Agent otherwise agrees, it
shall not be entitled to receive any report or other document prepared at the
behest of, or on the instructions of, the Agent or one or more of the Lenders.



 

 





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SECTION 10


THE FINANCE PARTIES


29.    Role of the Agent, the Arranger, the
Reference Banks
 


29.1    Appointment of the Agent  


(a)    Each of the Arranger and the Lenders appoints the Agent to act as
its agent under and in connection with the Finance Documents.  The Agent will
be agent for the Arranger and the Lenders except as described in paragraph (d)
below.


(b)    Each of the Arranger and the Lenders irrevocably appoints the
Agent to act as its agent to execute a relevant Recognition Certificate on its
behalf, ratifies that execution, and agrees it is therefore bound as set out
the Recognition Certificate by the terms set out in the Security Trust Deed.


(c)    Each of the Arranger and the Lenders authorises the Agent to
perform the duties, obligations and responsibilities and to exercise the
rights, powers, authorities and discretions specifically given to the Agent
under or in connection with the Finance Documents together with any other
incidental rights, powers, authorities and discretions.


(d)    Where the Agent provides services in connection with the
administration of the Utilisations, that is when it calculates rates and
amounts, keeps records, receives and distributes payments and information
received under Clause 22 (Information Undertakings) and Clause 22.4 (Information:
miscellaneous) , and receives and deals with
Utilisation Requests and Selection Notices, it does not provide those services
as agent for the Arranger or the Lenders, but as principal, but the remainder
of this Clause 29 (Role of the
Agent, the Arranger, the Reference Banks) still
applies.


29.2    Instructions


(a)    The Agent shall:


(i)    unless a
contrary indication appears in a Finance Document, exercise or refrain from
exercising any right, power, authority or discretion vested in it as Agent in
accordance with any instructions given to it by:


(A)    all Lenders if the relevant Finance Document stipulates the matter
is an all Lender decision; and


(B)    in all other cases, the Majority Lenders if the relevant Finance
Document stipulates the matter is a Majority Lender decision; and


(ii)    not be liable for any act (or omission) if it acts (or refrains
from acting) in accordance with paragraph (i) above.


(b)    The Agent shall be entitled to request instructions, or
clarification of any instruction, from the Majority Lenders (or, if the
relevant Finance Document stipulates the matter is a decision for any other
Lender or group of Lenders, from that Lender or group of Lenders) as to
whether, and in what manner, it should exercise or refrain from exercising any
right, power, authority or discretion.  The Agent may refrain from 



 

 


 



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acting unless and until it
receives any such instructions or clarification that it has requested.


(c)    Save in the case of decisions stipulated to be a matter for any
other Lender or group of Lenders under the relevant Finance Document and unless
a contrary indication appears in a Finance Document, any instructions given to
the Agent by the Majority Lenders shall override any conflicting instructions
given by any other Parties and will be binding on all Finance Parties.


(d)    The Agent may refrain from acting in accordance with any
instructions of any Lender or group of Lenders until it has received any
indemnification and/or security that it may in its discretion require (which
may be greater in extent than that contained in the Finance Documents and which
may include payment in advance) for any cost, loss or liability which it may
incur in complying with those instructions.  The Agent may specify that the
security be cash, in which case a Borrower must provide it on request, failing
which each Lender must on request pay its proportion of the cash according to
its Commitment.  Any amount recovered by the Agent under any security will be
taken to be an amount paid by the party which provided that security.


(e)    In the absence of instructions, the Agent may act (or refrain from
acting) as it considers to be in the best interest of the Lenders.


(f)    The Agent is not authorised to act on behalf of a Lender (without
first obtaining that Lender's consent) in any legal or arbitration proceedings
relating to any Finance Document.


29.3    Duties of the Agent


(a)    The Agent's duties under the Finance Documents are solely
mechanical and administrative in nature.


(b)    Subject to paragraph (c) below, the Agent shall promptly forward
to a Party the original or a copy of any document which is delivered to the
Agent for that Party by any other Party.


(c)    Without prejudice to Clause 26.7 
(Copy of Transfer Certificate or Assignment Agreement to Company)
paragraph (b) above shall not apply to any Transfer Certificate or to any
Assignment Agreement.


(d)    Except where a Finance Document specifically provides otherwise,
the Agent is not obliged to review or check the adequacy, accuracy or
completeness of any document it forwards to another Party.


(e)    If the Agent receives notice from a Party referring to this
Agreement, describing a Default or Review Event and stating that the
circumstance described is a Default or Review Event, it shall promptly notify
the other Finance Parties.


(f)    If the Agent is aware of the non-payment of any principal,
interest, commitment fee or other fee payable to a Finance Party (other than
the Agent or the Arranger) under this Agreement it shall promptly notify the
other Finance Parties.



 

 






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(g)    The Agent
shall have only those duties, obligations and responsibilities expressly
specified in the Finance Documents to which it is expressed to be a party (and
no others shall be implied).


(h)    If the Agent receives a request by a Lender, the Agent will
provide a privacy notice (in the form recommended by the Asia Pacific Loan
Market Association (Australian Branch) or as otherwise directed by a Finance
Party) to a representative of the officers of an Obligor whose personal
information has been collected on behalf of the Finance Parties, which details
the manner in which personal information collected in connection with this
Agreement may be used and disclosed by the Finance Parties.


29.4    Role of the Arranger


Except as specifically provided in the Finance Documents,
the Arranger has no obligations of any kind to any other Party under or in
connection with any Finance Document.


29.5    No fiduciary duties


(a)    Nothing in any Finance Document constitutes the Agent or the
Arranger as a trustee or fiduciary of any other person.


(b)    None of the Agent, the Security Trustee or the Arranger shall be
bound to account to any Lender for any sum or the profit element of any sum
received by it for its own account.


29.6    Business with the Group


The Agent and the Arranger may accept deposits from, lend
money to and generally engage in any kind of banking or other business with any
Group Member.


29.7    Rights and discretions; Delegation
of Duties


(a)    The Agent may:


(i)    rely on any representation, communication, notice or document
believed by it to be genuine, correct and appropriately authorised;


(ii)    assume that:


(A)    any instructions received by it from the Majority Lenders, any
Lenders or any group of Lenders are duly given in accordance with the terms of
the Finance Documents; and


(B)    unless it has received notice of revocation, that those
instructions have not been revoked; and


(iii)    rely on a written statement from any person:


(A)    as to any matter of fact or circumstance which might reasonably be
expected to be within the knowledge of that person; or


(B)    to the effect that such person approves of any particular dealing,
transaction, step, action or thing,



 

 





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as sufficient evidence that
that is the case and, in the case of paragraph (A) above, may assume the truth
and accuracy of that statement.


(b)    The Agent may assume (unless it has received notice to the
contrary in its capacity as agent for the Lenders) that:


(i)    no Default or Review Event has occurred (unless it has actual
knowledge of a Default);


(ii)    any right, power, authority or discretion vested in any Party or
any group of Lenders has not been exercised; and


(iii)    any notice or
request made by a Borrower (other than a Utilisation Request or Selection
Notice) is made on behalf of and with the consent and knowledge of all the
Obligors.


(c)    The Agent may engage and pay for the advice or services of any
lawyers, accountants, surveyors or other experts or professional advisers.


(d)    Without prejudice to the generality of paragraph (c) above or paragraph
(e) below, the Agent may at any time engage and pay for the services of any
lawyers to act as independent counsel to the Agent (and so separate from any
lawyers instructed by the Lenders) if the Agent in its reasonable opinion deems
this to be necessary.


(e)    The Agent may rely on the advice or services of any lawyers,
accountants, tax advisers, surveyors or other professional advisers or experts
(whether obtained by the Agent or by any other Party) and shall not be liable
for any damages, costs or losses to any person, any diminution in value or any
liability whatsoever arising as a result of its so relying.


(f)    The Agent may act in relation to the Finance Documents through its
officers, employees, secondees and agents.


(g)    Unless a Finance Document expressly provides otherwise the Agent
may disclose to any other Party any information it reasonably believes it has
received as Agent under this Agreement.


(h)    Without limiting paragraph (g) above, the Agent may disclose the
identity of a Defaulting Finance Party to the other Finance Parties and a
Borrower and shall disclose it on the written request of a Borrower or the
Majority Lenders.


(i)    Notwithstanding any other provision of any Finance Document to the
contrary, neither the Agent nor the Arranger is obliged to do or omit to do
anything if it would or might in its reasonable opinion constitute a breach of
any law or regulation or a breach of a fiduciary duty or duty of
confidentiality.


(j)    Notwithstanding any provision of any Finance Document to the
contrary, the Agent is not obliged to expend or risk its own funds or otherwise
incur any financial liability in the performance of its duties, obligations or
responsibilities or the exercise of any right, power, authority or discretion
if it has grounds for believing the repayment of 



 

 


 



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such funds or adequate
indemnity against, or security for, such risk or liability is not reasonably
assured to it.


(k)    The Parties need not enquire whether any instructions from all or
a percentage of Lenders or the Majority Lenders have been given to the Agent or
as to the terms of those instructions.  As between the other Parties on the one
hand and the Agent and Lenders on the other, everything done by the Agent under
or in relation to the Finance Documents will be taken to be authorised.


29.8    Responsibility for documentation


Neither the Agent nor the Arranger is responsible or liable
for:


(a)    the adequacy, accuracy or completeness of any information (whether
oral or written) supplied by the Agent, the Arranger, an Obligor or any other
person given in or in connection with any Finance Document or the transactions
contemplated in the Finance Documents or any other agreement, arrangement or
document; or


(b)    the legality, validity, effectiveness, adequacy or enforceability
of any Finance Document or any other agreement, arrangement or document; or


(c)    any determination as to whether any information provided or to be
provided to any Finance Party is non-public information the use of which may be
regulated or prohibited by applicable law or regulation relating to insider
dealing or otherwise.


29.9    No duty to monitor


The Agpent shall not be bound to enquire:


(a)    whether or not any Default or Review Event has occurred;


(b)    as to the performance, default or any breach by any Party of its
obligations under any Finance Document or any other agreement, arrangement or
document; or


(c)    whether any other event specified in any Finance Document has
occurred.


29.10    Exclusion of liability


(a)    Without limiting paragraph (b) below (and without prejudice to any
other provision of any Finance Document excluding or limiting the liability of
the Agent), the Agent will not be liable for:


(i)    any damages, costs or losses to any person, any diminution in
value, or any liability whatsoever arising as a result of taking or not taking
any action under or in connection with any Finance Document, unless directly
caused by its gross negligence or wilful misconduct;


(ii)    exercising, or not exercising, any right, power, authority or
discretion given to it by, or in connection with, any Finance Document or any
other agreement, arrangement or document entered into, made or executed in
anticipation of, under or in connection with, any Finance Document, other than
by reason of its gross negligence or wilful misconduct; or



 

 






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(iii)    without prejudice to the generality of paragraphs
(i) and (ii) above, any damages, costs
or losses to any person, any diminution in value or any liability whatsoever
(but not including any claim based on the fraud of the Agent) arising as a
result of:


(A)    any act, event or circumstance not reasonably within its control;
or


(B)    the general risks of investment in, or the holding of assets in,
any jurisdiction,


including (in each case and without limitation) such damages,
costs, losses to any person, any diminution in value or any liability arising
as a result of: nationalisation, expropriation or other governmental actions;
any regulation, currency restriction, devaluation or fluctuation; market
conditions affecting the execution or settlement of transactions or the value
of assets (including any Disruption Event); breakdown, failure or malfunction
of any third party transport, telecommunications, computer services or systems;
natural disasters or acts of God; war, terrorism, insurrection or revolution;
or strikes or industrial action.


(b)    No Party (other than the Agent) may take any proceedings against
any officer, employee or agent of the Agent in respect of any claim it might
have against the Agent or in respect of any act or omission of any kind by that
officer, employee or agent in relation to any Finance Document and any officer,
employee or agent of the Agent may rely on this Clause 29.10 (Exclusion of
liability).


(c)    The Agent will not be liable for any delay (or any related
consequences) in crediting an account with an amount required under the Finance
Documents to be paid by the Agent if the Agent has taken all necessary steps as
soon as reasonably practicable to comply with the regulations or operating
procedures of any recognised clearing or settlement system used by the Agent
for that purpose.


(d)    Nothing in this Agreement shall oblige the Agent or the Arranger
to carry out:


(i)    any "know your customer" or other checks in relation to
any person; or


(ii)    any check on
the extent to which any transaction contemplated by this Agreement might be
unlawful for any Lender or for any Affiliate of any Lender,


on behalf of any Lender and each Lender confirms to the Agent and
the Arranger that it is solely responsible for any such checks it is required
to carry out and that it may not rely on any statement in relation to such
checks made by the Agent or the Arranger.


(e)    Without prejudice to any provision of any Finance Document
excluding or limiting the Agent's liability, any liability of the Agent arising
under or in connection with any Finance Document shall be limited to the amount
of actual loss which has been suffered (as determined by reference to the date
of default of the Agent or, if later, the date on which the loss arises as a
result of such default) but without reference to any



 



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special conditions or
circumstances known to the Agent at any time which increase the amount of that
loss.  In no event shall the Agent be liable for any loss of profits, goodwill,
reputation, business opportunity or anticipated saving, or for special,
punitive, indirect or consequential damages, whether or not the Agent has been
advised of the possibility of such loss or damages.


29.11    Lenders' indemnity to the Agent


(a)    Each Lender shall (in proportion to its share of the Total
Commitments or, if the Total Commitments are then zero, to its share of the
Total Commitments immediately prior to their reduction to zero) indemnify the
Agent, within three Business Days of demand, against any cost, expense, loss or
liability incurred by the Agent (otherwise than by reason of the Agent's gross
negligence or wilful misconduct) in acting as Agent under the Finance Documents
(unless the Agent has been reimbursed by an Obligor pursuant to a Finance
Document).


(b)    A Lender's share will be the proportion of its share of the Total
Commitments or, if the Total Commitments are then zero, its share of the Total
Commitments immediately prior to their reduction to zero.  Where a Lender's
Commitment has been reduced to zero, but it has a participation in any
outstanding Utilisations, then for this purpose its Commitment will be taken to
be the aggregate amount of its participation (and the Total Commitments
calculated accordingly).


(c)    If any Lender fails to pay its share of any amount due under
paragraph (a) one or more other Lenders may pay all or part of that share to
the Agent.  In that case, the defaulting Lender must immediately pay each such
paying Lender the amount paid by that paying Lender together with interest
equal to the rate from time to time certified by the paying Lender to be its
cost of funds plus a margin of 2% per annum, compounding monthly.


(d)    If any Lender fails to provide its share of security to the Agent
when requested under Clause 29.7  (Rights
and discretions) one or more other Lenders may provide all or part of that
share on its behalf.  Where that security is cash the non providing Lender must
immediately pay each Lender that provided cash the amount provided by it
together with interest equal to its cost of funds plus a margin of 2% per
annum, compounding monthly.


29.12    Resignation of the Agent


(a)    The Agent may resign and appoint one of its Affiliates acting
through an office in Australia as successor by giving notice to the Lenders and
a Borrower.


(b)    Alternatively the Agent may resign by giving 30 days' notice to
the Lenders and a Borrower, in which case the Majority Lenders (after consultation
with a Borrower) may appoint a successor Agent.


(c)    If the Majority Lenders have not appointed a successor Agent in
accordance with paragraph (b) above within 20 days after notice of resignation
was given, the retiring Agent (after consultation with a Borrower) may appoint
a successor Agent (acting through an office in the same time zone as
Australia).



 

 






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(d)    If the Agent
wishes to resign because (acting reasonably) it has concluded that it is no
longer appropriate for it to remain as agent and the Agent is entitled to
appoint a successor Agent under paragraph (c) above, the Agent may (if it
concludes (acting reasonably) that it is necessary to do so in order to
persuade the proposed successor Agent to become a party to this Agreement as
Agent) agree with the proposed successor Agent amendments to this Clause 29 (Role of the Agent, the Arranger, the Reference Banks)and any other term of this Agreement dealing with the rights or
obligations of the Agent consistent with then current market practice for the
appointment and protection of agents of syndicated financing transactions
together with any reasonable amendments to the agency fee payable under this
Agreement which are consistent with the successor Agent's normal fee rates and
those amendments will bind the Parties.


(e)    The retiring Agent shall make available to the successor Agent
such documents and records and provide such assistance as the successor Agent
may reasonably request for the purposes of performing its functions as Agent
under the Finance Documents. The Borrowers shall, within three Business Days of
demand, reimburse the retiring Agent for the amount of all costs and expenses
(including legal fees) properly incurred by it in making available such
documents and records and providing such assistance save for where the Agent is
a Defaulting Finance Party.


(f)    The Agent's resignation notice shall only take effect upon the
appointment of a successor.


(g)    Upon the appointment of a successor, the retiring Agent shall be
discharged from any further obligation in respect of the Finance Documents
(other than its obligations under paragraph (e) above) but shall remain
entitled to the benefit of this Clause 30 (Conduct of Business by the Finance
Parties) (and any agency fees for the account of the retiring Agent shall cease
to accrue from (and shall be payable on) that date).  Any successor and each of
the other Parties shall have the same rights and obligations amongst themselves
as they would have had if such successor had been an original Party.


(h)    After consultation with a Borrower, the Majority Lenders may, by
notice to the Agent, require it to resign in accordance with paragraph (b)
above.  In this event, the Agent shall resign in accordance with paragraph (b)
above (or, at any time the Agent is a Defaulting Finance Party, by giving any
shorter notice determined by the Majority Lenders).


(i)    The Agent shall resign in accordance with paragraph (b) above
(and, to the extent applicable, shall use reasonable endeavours to appoint a
successor Agent pursuant to paragraph (c) above) if on or after the date which
is three months before the earliest FATCA Application Date relating to any
payment to the Agent under the Finance Documents, either:


(i)    the Agent fails to respond to a request under Clause 14.8  (FATCA Information) and a Lender
reasonably believes that the Agent will not be (or will have ceased to be) a
FATCA Exempt Party on or after that FATCA Application Date;



 

 






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(ii)    the information supplied by the Agent pursuant to Clause 14.8 (FATCA
Information) indicates that the Agent will not be (or will have ceased to be) a
FATCA Exempt Party on or after that FATCA Application Date; or


(iii)    the Agent
notifies a Borrower and the Lenders that the Agent will not be (or will have
ceased to be) a FATCA Exempt Party on or after that FATCA Application Date;


and (in each case) a Lender reasonably believes that a Party will
be required to make a FATCA Deduction that would not be required if the Agent
were a FATCA Exempt Party, and a Borrower or that Lender, by notice to the
Agent, requires it to resign.


29.13    Confidentiality


(a)    In acting as agent for the Finance Parties, the Agent shall be
regarded as acting through its agency division which shall be treated as a
separate entity from any other of its divisions or departments.


(b)    If information is received by another division or department of
the Agent, it may be treated as confidential to that division or department and
the Agent shall not be deemed to have notice of it.


29.14    Relationship with the Lenders


(a)    Subject to Clause 26.9  (Pro
rata interest settlement), the Agent may treat the person shown in its
records as Lender at the opening of business (in the place of the Agent's
principal office as notified to the Finance Parties from time to time) as the
Lender acting through its Facility Office:


(i)    entitled to or liable for any payment due under any Finance
Document on that day; and


(ii)    entitled to receive and act upon any notice, request, document or
communication or make any decision or determination under any Finance Document
made or delivered on that day,


unless it has received not less than five Business Days' prior
notice from that Lender to the contrary in accordance with the terms of this
Agreement.


(b)    Any Lender may by notice to the Agent appoint a person to receive
on its behalf all notices, communications, information and documents to be made
or despatched to that Lender under the Finance Documents.  Such notice shall
contain the address, fax number and electronic mail address and/or any other
information required to enable the sending and receipt of information by that
means (and, in each case, the department or officer, if any, for whose
attention communication is to be made) and be treated as a notification of a
substitute address, fax number, electronic mail address, department and officer
by that Lender for the purposes of Clause 35.2 (Addresses) and the Agent shall
be entitled to treat such person as the person entitled to receive all such
notices, communications, information and documents as though that person were
that Lender.



 

 






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(c)    The Agent may
rely on or receive instructions from any attorney acting on behalf of a Lender,
or any person acting on behalf of a Lender whose title or acting title includes
the word Manager, Head, Executive, Director or President or cognate
expressions, or any secretary or director of a Lender.


29.15    Credit appraisal by the Lenders 


Without
affecting the responsibility of any Obligor for information supplied by it or
on its behalf in connection with any Finance Document, each Lender confirms to
the Agent and the Arranger that it has been, and will continue to be, solely
responsible for making its own independent appraisal and investigation of all
risks arising under or in connection with any Finance Document including but
not limited to:


(a)    the financial condition, status and nature of each Group Member;


(b)    the legality, validity, priority, effectiveness, adequacy or
enforceability of any Finance Document and any other agreement, arrangement or
document;


(c)    whether that Lender has recourse, and the nature and extent of
that recourse, against any Party or any of its respective assets under or in
connection with any Finance Document, the transactions contemplated by the
Finance Documents or any other agreement, arrangement or document; and


(d)    the adequacy, accuracy or completeness of any information provided
by the Agent, any Party or by any other person under or in connection with any
Finance Document, the transactions contemplated by any Finance Documents or any
other agreement, arrangement or document.


29.16    Role of Reference Banks


(a)    No Reference Bank is under any obligation to provide a quotation
or any other information to the Agent.


(b)    No Reference Bank will be liable for any action taken by it under
or in connection with any Finance Document, or for any Reference Bank
Quotation, unless directly caused by its gross negligence or wilful misconduct.


(c)    No Party (other than the relevant Reference Bank) may take any
proceedings against any officer, employee or agent of any Reference Bank in
respect of any claim it may have against that Reference Bank or in respect of
any act or omission of any kind by that officer, employee or agent in relation
to any Finance Document, or to any Reference Bank Quotation.


(d)    Any officer, employee or agent of each Reference Bank may rely on
this Clause 29.16 (Role of Reference Banks).  The Reference Bank holds
the benefit of this Clause on trust for any such officer, employee or agent.


29.17    Third party Reference Banks


This Agreement constitutes an irrevocable offer by each
Party to each Reference Bank, which accepts the offer by consenting to be a
Reference Bank and providing a Reference Bank 



 

 





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Quotation.  It may rely on Clause 29.16 
(Role of Reference Banks) and Clause 43 (Confidentiality of Funding Rates and Reference Bank
Quotations).


29.18    Agent's management time


Any amount payable to the Agent under 


Clause 19 (Costs
and Expenses) and Clause 29.11  (Lenders' indemnity to the Agent) shall
include the cost of utilising the Agent's management time or other resources
and will be calculated on the basis of such reasonable daily or hourly rates as
the Agent may notify to a Borrower and the Lenders, and is in addition to any
fee paid or payable to the Agent under Clause 13 (Fees).


29.19    Deduction from amounts payable by the Agent


If any Party owes an amount to the Agent under the Finance
Documents the Agent may, after giving notice to that Party, deduct an amount
not exceeding that amount from any payment to that Party which the Agent would
otherwise be obliged to make under the Finance Documents and apply the amount
deducted in or towards satisfaction of the amount owed.  For the purposes of
the Finance Documents that Party shall be regarded as having received any
amount so deducted.


30.    Conduct of Business by the Finance
Parties


No provision of this Agreement will:


(a)    interfere with the right of any Finance Party to arrange its
affairs (tax or otherwise) in whatever manner it thinks fit;


(b)    oblige any Finance Party to investigate or claim any credit,
relief, remission or repayment available to it or the extent, order and manner
of any claim; or


(c)    oblige any Finance Party to disclose any information relating to its
affairs (tax or otherwise) or any computations in respect of Tax.


31.    Sharing among the Finance Parties


31.1    Payments to Finance Parties


(a)    If a Finance Party (a "Recovering Finance Party")
receives or recovers (including by combination of accounts or set off) any
amount from an Obligor other than in accordance with Clause 33 (Payment Mechanics) and applies
that amount to a payment due under the Finance Documents then:


(i)    the Recovering Finance Party shall, within three Business Days,
notify details of the receipt or recovery to the Agent;


(ii)    the Agent
shall determine whether the receipt or recovery is in excess of the amount the
Recovering Finance Party would have been paid had the receipt or recovery been
received or made by the Agent and distributed in accordance with Clause 33 (Payment
Mechanics), without taking account of any Tax which would be imposed on the
Agent in relation to the receipt, recovery or distribution; and



 

 






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(iii)    the Recovering Finance Party shall, within three Business Days of
demand by the Agent, pay to the Agent an amount (the "Sharing Payment")
equal to such receipt or recovery less any amount which the Agent determines
may be retained by the Recovering Finance Party as its share of any payment to
be made, in accordance with Clause 33.6  (Partial
payments). 


(b)    Paragraph (a) above:


(i)    shall not apply to any amount received or recovered by the Issuing
Bank and applied by it towards any amount then payable to it by way of the
provision of cash cover (which has been provided to the Issuing Bank in
accordance with the Finance Documents) or otherwise in respect of a Bank
Guarantee at any time when receipts and recoveries by the Finance Parties are
sufficient to discharge all amounts then due and payable under the Finance
Documents; and


(ii)    shall apply
to any amount received or recovered by the Issuing Bank and applied by it
towards any amount then payable to it by way of the provision of cash cover or
otherwise in respect of a Bank Guarantee at any time when receipts and
recoveries by the Finance Parties are not sufficient to discharge all amounts
then due and payable under the Finance Documents; and


(iii)    shall not
apply to any application by the Issuing Bank under Clause 25.1 (Cash cover) of
cash cover which has been provided to the Issuing Bank in accordance with the
Finance Documents.


31.2    Redistribution of payments


The Agent shall treat the Sharing Payment as if it had been
paid by the relevant Obligor and distribute it between the Finance Parties
(other than the Recovering Finance Party) (the "Sharing Finance Parties")
in accordance with Clause 33.6  (Partial
payments) towards the obligations of that Obligor to the Sharing Finance
Parties.


31.3    Recovering Finance Party's rights


(a)    Unless paragraph (b) applies:


(i)    the receipt or recovery referred to in Clause 31.1  (Payments to Finance Parties) will be
taken to have been a payment for the account of the Agent and not to the
Recovering Finance Party for its own account, and the liability of the relevant
Obligor to the Recovering Finance Party will only be reduced to the extent of
any distribution retained by the Recovering Finance Party under Clause 31.1(a)(iii)  (Payments to Finance Parties);
and


(ii)    (without limiting sub-paragraph (i)) the relevant Obligor shall indemnify the
Recovering Finance Party against a payment under Clause 31.1(a)(iii)  (Payments to Finance Parties) to the extent
that (despite sub-paragraph (i)) its liability has been discharged by the
recovery or payment.



 

 






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(b)    Where:


(i)    the amount referred to in Clause 31.1 
(Payments to Finance Parties) above was received or recovered otherwise
than by payment (for example, set off); and


(ii)    the relevant
Obligor, or the person from whom the receipt or recovery is made, is insolvent
at the time of the receipt or recovery, or at the time of the payment to the
Agent, or becomes insolvent as a result of the receipt or recovery,


then the following will apply so that the
Finance Parties have the same rights and obligations as if the money had been
paid by the relevant Obligor to the Agent for the account of the Finance
Parties and distributed accordingly:


(iii)    each other Finance Party will assign to the Recovering Finance
Party an amount of the debt owed by the relevant Obligor to that Finance Party
under the Finance Documents equal to the amount received by that Finance Party
under Clause 31.2  (Redistribution of
payments); 


(iv)    the Recovering Finance Party will be entitled to all rights
(including interest and voting rights) under the Finance Documents in respect
of the debt so assigned; and


(v)    that
assignment will take effect automatically on payment of the Sharing Payment by
the Agent to the other Finance Party.


31.4    Reversal of redistribution


If any part of the Sharing Payment received or recovered by
a Recovering Finance Party becomes repayable and is repaid by that Recovering
Finance Party, then:


(a)    each Sharing Finance Party shall, upon request of the Agent, pay
to the Agent for the account of that Recovering Finance Party an amount equal
to the appropriate part of its share of the Sharing Payment (together with an
amount as is necessary to reimburse that Recovering Finance Party for its
proportion of any interest on the Sharing Payment which that Recovering Finance
Party is required to pay) (the "Redistributed Amount"); 


(b)    as between the relevant Obligor and each relevant Sharing Finance
Party, an amount equal to the relevant Redistributed Amount will be treated as
not having been paid by that Obligor and the relevant Obligor shall indemnify
the Sharing Finance Party against a payment under sub-paragraph
(a) to the extent that the relevant
Obligor's liability has been discharged by the recovery or payment; and


(c)    to the extent necessary, any debt assigned under paragraph (b) of
Clause 31.3  (Recovering Finance Party's
rights) will be reassigned.


31.5    Exceptions


(a)    This Clause 31 (Sharing among
the Finance Parties) shall not apply to the
extent that the Recovering Finance Party would not, after making any payment
pursuant to this 



 

 


 



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Clause 31 (Sharing among the Finance Parties), have a valid and enforceable claim (or right of proof in an
administration) against the relevant Obligor.


(b)    A Recovering Finance Party is not obliged to share with any other
Finance Party any amount which the Recovering Finance Party has received or
recovered as a result of taking legal or arbitration proceedings, if:


(i)    it notified that other Finance Party of the legal or arbitration
proceedings; and


(ii)    that other
Finance Party had an opportunity to participate in those legal or arbitration
proceedings but did not do so as soon as reasonably practicable having received
notice and did not take separate legal or arbitration proceedings.


32.    Public Offer


32.1    Arranger's representations, warranties and undertakings


The Arranger undertakes, represents and warrants to the Borrower
as follows:


(a)    on behalf of the Borrowers it will make before the 30th
day after the Facility Initiation Date invitations to become a Lender under this Agreement:


(i)    in the form agreed with the Borrowers to at least ten parties,
each of whom, as at the date the relevant invitation is made, the Arranger's
relevant officers involved in the transaction on a day to day basis believe
carries on the business of providing finance or investing
or dealing in securities in the course of operating in financial markets, for
the purposes of Section 128F(3A)(a)(i) of the Tax Act, and each of whom has
been disclosed to the Borrowers; or


(ii)    in an electronic form that
is used by financial markets for dealing in debentures (as defined in Section
128F(9) of the Tax Act) or debt interests (as defined in Sections 974-15 and
974-20 of the Tax Act) such as Reuters or Bloomberg.


(b)    At least 10 of the parties to whom the Arranger will make
invitations referred to in paragraph (a)(i) are not, as at the date the invitations are made, to the
knowledge of the relevant officers of the Arranger involved in the transaction,
Associates of any of the others of those 10 offerees/the Arranger.


(c)    It has not made and will not make offers or invitations referred
to in paragraph (a)(i) to parties whom its relevant officers involved in the
transaction on a day to day basis are aware are Offshore Associates of the
relevant Borrower.


32.2    Borrower's confirmation


(a)    Each Borrower confirms that none of the potential offerees whose
names were disclosed to it by the Arranger before the Facility Initiation Date
were known or suspected by it to be an Offshore Associate of that Borrower or
an Associate of any other such offeree.



 

 


 



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(b)    It will immediately advise the Arranger or the Agent if the
potential offerees disclosed to it by the Arranger or the Agent are known or
suspected by it to be an Offshore Associate of that Borrower or an Associate of any other offeree.


32.3    Lenders' representations and warranties


Each Lender represents and warrants to each Borrower that if it
received an invitation under Clause 32.1(a)(i) at the time it received the
invitation it was carrying on the business of providing finance, or investing
or dealing in securities, in the course of operating in financial markets.


32.4    Information


Each of the Arranger and each Lender will provide to the Company
when reasonably requested by the Company any factual information in its
possession or which it is reasonably able to provide to assist the Company to
demonstrate (based upon tax advice received by the Company) that Section 128F
of the Tax Act has been satisfied where to do so will not in the Arranger's or
Lender's reasonable opinion breach any law or regulation or any duty of
confidence.


32.5    Co-operation if Section 128F requirements not satisfied


If, for any reason, the requirements of Section 128F of the Tax
Act have not been satisfied in relation to interest payable on Loans (except to
an Offshore Associate of a Borrower), then on request by the Agent, the
Arranger or a Borrower, each Party shall co-operate and take steps reasonably
requested with a view to satisfying those requirements:


(a)    where a Finance Party breached Clause 32.1 (Arranger's
representations, warranties and undertakings) or Clause 32.3 (Lenders'
representations and warranties), at the cost of that Finance Party; or


(b)    in all other cases, at the cost of the Borrowers.



 

 





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SECTION 11


ADMINISTRATION


33.    Payment Mechanics


33.1    Payments to the Agent


(a)    On each date on which an Obligor or a Lender is required to make a
payment under a Finance Document, that Obligor or Lender shall make the same
available to the Agent (unless a contrary indication appears in a Finance
Document) for value on the due date at the time in immediately available funds
or if agreed by the Agent in such funds specified by the Agent as being
customary at the time for settlement of transactions in the relevant currency
in the place of payment.


(b)    Payment shall be made to such account:


(i)    in the case of Australian dollars, at the city of the Agent; or


(ii)    in the case of any other currency, in the principal financial
centre of the country of that currency,


with such bank as the Agent, in each case, specifies.


(c)    Payment by an Obligor to the Agent for the account of a Finance
Party satisfies the Obligor's obligations to make that payment.


33.2    Distributions by the Agent


Each payment received by the Agent under the Finance Documents
for another Party shall, subject to Clause 33.3 
(Distributions to an Obligor) and Clause 33.4 
(Clawback and pre-funding) be made available by the Agent as soon as
practicable after receipt to the Party entitled to receive payment in
accordance with this Agreement (in the case of a Lender, for the account of its
Facility Office), to such account as that Party may notify to the Agent by not
less than five Business Days' notice with a bank specified by that Party in
Australia, in the case of Australian dollars, and, in the case of any other
currency in the principal financial centre of the country of that currency.


33.3    Distributions to an Obligor


The Agent may (with the consent of the Obligor or in
accordance with Clause 34 (Set-Off)) apply any amount received by it for that Obligor in or
towards payment (on the date and in the currency and funds of receipt) of any
amount due from that Obligor under the Finance Documents or in or towards
purchase of any amount of any currency to be so applied.


33.4    Clawback and pre-funding


(a)    Where a sum is to be paid by a Party (the Payer) to the Agent
under the Finance Documents for another Party, the Agent is not obliged to pay
that sum to that other Party (or to enter into or perform any related exchange
contract) until it has been able to establish to its satisfaction that it has
actually received that sum.


(b)    Unless paragraph (c) below applies, if the Agent pays an amount to
another Party and it proves to be the case that the Agent had not actually
received that amount, then the Party to whom that amount (or the proceeds of
any related exchange contract) was 



 

 


 



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paid by the Agent shall on demand
refund the same to the Agent together with interest on that amount from the
date of payment to the date of receipt by the Agent, calculated by the Agent to
reflect its cost of funds.


(c)    If the Agent has notified the Lenders that it] is willing to make
available amounts for the account of a Borrower before receiving funds from the
Lenders then if and to the extent that the Agent does so but it proves to be
the case that it does not then receive funds from a Lender in respect of a sum
which it paid to a Borrower:


(i)    the Agent shall notify a Borrower of that Lender's identity and
the Borrower to whom that sum was made available shall on demand refund it to
the Agent; and


(ii)    the Lender by whom those funds should have been made available or,
if that Lender fails to do so, the Borrower to whom that sum was made
available, shall on demand pay to the Agent the amount (as certified by the
Agent) which will indemnify the Agent against any funding cost incurred by it
as a result of paying out that sum before receiving those funds from that
Lender.


(d)    The Payer will still remain liable to make the assumed payment,
but until the other Party does repay the Agent under paragraph (b), the Payer's
liability will be to the Agent in the Agent's own right.


33.5    Agent a Defaulting Finance Party


(a)    If, at any time, the Agent becomes Defaulting Finance Party, a
Party which is required to make a payment under the Finance Documents to the
Agent for the account of other Parties under Clause 33.1 
(Payments to the Agent) may instead on the due date for payment either
pay that amount direct to the required payee or pay that amount to an
interest-bearing account held in the name of the payer and designated as a
trust account for the benefit of the payee or payees with an Acceptable Bank.


(b)    All interest accrued on the trust account will be for the benefit
of the beneficiaries of that trust account pro rata to their respective
entitlements.


(c)    A Party which has made a payment under paragraph (a) shall be
discharged of the relevant payment obligation under the Finance Documents and
shall not take any credit risk with respect to the amounts in the trust
account.


(d)    Promptly upon the appointment of a successor Agent under Clause  29.12  (Resignation of the Agent), each Party
which has made a payment to a trust account under paragraph (a) shall give all
requisite instructions to the bank to transfer the amount (together with any
accrued interest) to the successor Agent for distribution under Clause 33.2  (Distributions by the Agent). 


33.6    Partial payments


(a)    If the Agent receives a payment that is insufficient to discharge
all the amounts then due and payable by an Obligor under the Finance Documents,
the Agent shall apply that payment towards the obligations of that Obligor
under the Finance Documents in the following order:



 

 






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(i)    first, in or towards payment pro rata of any amounts payable but
unpaid in respect of fees, costs, expenses, losses or liabilities of the Agent
under the Finance Documents or the Security Trustee under the Finance
Documents;


(ii)    secondly, in or towards payment pro rata of all amounts (including
interest) payable by the Obligor to Lenders in respect of amounts or security
paid or provided by the Lenders to the Agent in place of another Lender under
Clause 29.11(c)  or 29.11(d) 
(Lenders' indemnity to the Agent); 


(iii)    thirdly, in or towards payment pro rata of all amounts payable by
the Obligor to Lenders in respect of amounts or security paid by the Lenders to
the Agent under Clause 29.11(a) (Lenders' indemnity to the Agent) or Clause 29.2
(Instructions) plus interest on such amounts;


(iv)    fourthly, in or towards payment pro rata of any accrued interest,
fees or commission due but unpaid under the Finance Documents;


(v)    fifthly, in or towards payment pro rata of any principal due but
unpaid under those Finance Documents; and


(vi)    sixthly, in or towards payment pro rata of any other sum due but
unpaid under the Finance Documents.


(b)    The Agent shall, if so directed by all Lenders, vary the order set
out in paragraphs (a)(ii)
to (a)(vi) above inclusive.


(c)    Paragraphs (a) and (b) above will override any
appropriation made by an Obligor.


33.7    No set-off by Obligors


All payments to be made by an Obligor under the Finance
Documents shall be calculated and be made without (and free and clear of any
deduction for) set-off or counterclaim.


33.8    Business Days


(a)    Any payment under the Finance Documents which is due to be made on
a day that is not a Business Day shall be made on the next Business Day in the
same calendar month (if there is one) or the preceding Business Day (if there
is not).


(b)    During any extension of the due date for payment of any principal
or Unpaid Sum under this Agreement interest is payable on the principal or Unpaid
Sum at the rate payable on the original due date.


33.9    Currency of account


(a)    Subject to paragraphs (b) to (f) below, Australian dollars is the
currency of account and payment for any sum due from or payable by an Obligor
under any Finance Document.


(b)    A repayment or prepayment of a Utilisation or Unpaid Sum or a part
of a Utilisation or Unpaid Sum shall be made in the currency in which that
Utilisation or Unpaid Sum is denominated, pursuant to this Agreement, on its
due date.



 

 






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(c)    Each payment
of interest or fees shall be made in the currency in which the sum in respect
of which the interest is payable was denominated, pursuant to this Agreement,
when that interest accrued.


(d)    Each payment in respect of costs, expenses or Taxes shall be made
in the currency in which the costs, expenses or Taxes are incurred.


(e)    Any amount expressed to be payable in a currency other than
Australian dollars shall be paid in that other currency.


(f)    Except where clause 8.3(b) (Cash cover for currency
equalisation: Facility B) applies, cash cover paid in relation to a Bank
Guarantee shall be in the same currency as the relevant Bank Guarantee.


33.10    Change of currency


(a)    Unless otherwise prohibited by law, if more than one currency or
currency unit are at the same time recognised by the central bank of any
country as the lawful currency of that country, then:


(i)    any reference in the Finance Documents to, and any obligations
arising under the Finance Documents in, the currency of that country shall be
translated into, or paid in, the currency or currency unit of that country
designated by the Agent (after consultation with a Borrower); and


(ii)    any translation from one currency or currency unit to another
shall be at the official rate of exchange recognised by the central bank for
the conversion of that currency or currency unit into the other, rounded up or
down by the Agent (acting reasonably).


(b)    If a change in any currency of a country occurs, this Agreement
will, to the extent the Agent (acting reasonably and after consultation with a
Borrower) specifies to be necessary, be amended to comply with any generally
accepted conventions and market practice in the Relevant Market and otherwise
to reflect the change in currency.


33.11    Anti-money laundering


(a)    A Finance Party may delay, block or refuse to process any payment
or other transaction without incurring any liability if the Finance Party knows
or reasonably suspects that the transaction or the application of its proceeds
will:


(i)    breach, or cause a Finance Party to breach, any applicable laws or
regulations of any jurisdiction (including any Sanctions); or


(ii)    allow the imposition of any penalty on the Finance Party or its
Affiliates under any such law or regulation,


including where the transaction or the
application of its proceeds involves any Sanctioned Person or Sanctioned
Country, or the direct or indirect proceeds of unlawful activity.



 

 


 



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(b)    As soon as practicable after a Finance Party becomes aware that it
will delay, block or refuse to process a transaction under paragraph (a), it
will notify a Borrower and the Agent and consult in good faith but in each case
only to the extent the Finance Party determines it is legally permitted to do
so.  In making that determination the Finance Party shall act reasonably.


(c)    The Borrowers shall promptly advise the Agent if any Obligor
enters into any Finance Document in the capacity as agent and promptly supply,
or procure the supply of, such information as may be reasonably requested by
the Agent (for itself or on behalf of any Finance Party) from time to time in
relation to any principal for which an Obligor may be acting.


(d)    Each Obligor
undertakes to exercise its rights and perform its obligations under the Finance
Documents in accordance with all Money Laundering Laws and applicable
Sanctions.


33.12    "Know your customer"


Each Lender shall promptly upon the request of the Agent
supply, or procure the supply of, such documentation and other evidence as is
reasonably requested by the Agent (for itself) in order for the Agent to carry
out and be satisfied it has complied with all necessary "know your
customer" or other similar checks under all applicable laws and
regulations pursuant to the transactions contemplated in the Finance Documents.


Each Finance Party that is subject to the
requirements of the USA PATRIOT Act hereby notifies the Borrowers that pursuant
to the requirements of the Act, it is required to obtain, verify and record
information that identifies the Borrowers, which information includes the name
and address of the Borrowers and other information that will allow such Finance
Party to identify the Borrowers in accordance with the USA PATRIOT Act.


34.    Set-Off


A Finance Party may, but need not, set off any matured
obligation due from an Obligor under the Finance Documents (to the extent
beneficially owned by that Finance Party) against any obligation owed by that
Finance Party to that Obligor (whether or not matured), regardless of the place
of payment, booking branch or currency of either obligation.  If the
obligations are in different currencies, the Finance Party may convert either
obligation at a market rate of exchange in its usual course of business for the
purpose of the set-off.


35.    Notices


35.1    Communications in writing


Any communication or document to be made or delivered under
or in connection with the Finance Documents:


(a)    must be in writing;


(b)    in the case of:


(i)    a notice by an Obligor; or



 

 






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(ii)    a
specification of a bank or account by the Agent under paragraph (b) of Clause 33.1
(Payments to the Agent) or a Lender under Clause 33.2  (Distributions by the Agent), 


must be signed by an authorised signatory of the sender (directly
or with a facsimile signature), subject to Clause 35.6 
(Email communication), Clause 35.7  (Communication
through secure website) and Clause 35.8  (Reliance),
and


(c)    unless otherwise stated, may be made or delivered by fax, by
letter, by email or as specified in Clause 35.7 
(Communication through secure website). 


35.2    Addresses


The address, email address and fax number (and the
department or officer, if any, for whose attention the communication is to be
made) of each Party for any communication or document to be made or delivered
under or in connection with the Finance Documents is:


(a)    in the case of a Borrower, that identified with its name below;


(b)    in the case of each Lender or any other Original Obligor, that
specified in Schedule 1 (The Original
Parties) or notified in writing to the Agent on or prior to the date on
which it becomes a Party; and


(c)    in the case of the Agent, that identified with its name below,


or any substitute address, fax number, email address or
department or officer as the Party may notify to the Agent (or the Agent may
notify to the other Parties, if a change is made by the Agent) by not less than
five Business Days' notice.


Address for service of communications:


Agent:    


Level
3, 275 Kent Street


SYDNEY  
NSW   2000


Australia


 


[***]


Attn:
Ruby Gacosta


[***]


 


Administrative
Contact:


Level
9, 55 Market Street


SYDNEY  
NSW   2000


Australia


 


[***]


Attn:
Lending Management Operations


[***]


 


Company:    



 

 





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‘Central Plaza 1’, Level 31


345 Queen
Street, Brisbane, Queensland, 4000


 


Attention:
Ayten Saridas, Group Chief Financial Officer


[***]


 


35.3    Delivery


(a)    Any communication or document to be made or delivered by one Party
to another under or in connection with the Finance Documents will be taken to
be effective or delivered:


(i)    if by way of fax, when the sender receives a successful
transmission report unless the recipient informs the sender that it has not
been received in legible form by any means within two hours after:


(A)    receipt, if in business hours in the city of the recipient; or


(B)    if not, the next opening of business in the city of the recipient;
or


(ii)    if by way of letter or any physical communication, when it has
been left at the relevant address or five Business Days after being deposited
in the post postage prepaid in an envelope addressed to it at that address; or


(iii)    if by way of email, as specified in Clause 35.6 (Email
communication); or


(iv)    if it complies with Clause 35.7  (Communication
through secure website)], 


and, in the case of a communication, if a particular department or
officer is specified as part of its address details provided under Clause 35.2  (Addresses), if addressed to that
department or officer.


(b)    All communication to or from an Obligor must be sent through the
Agent.


(c)    Any communication or document made or delivered to a Borrower in
accordance with this Clause 35 (Notices) will be deemed to have been made or
delivered to each of the Obligors.


(d)    A communication by fax, email or under Clause 35.7  (Communication through secure website)
after business hours in the city of the recipient will be taken not to have
been received until the next opening of business in the city of the recipient.


35.4    Notification of address, fax number and email address


Promptly upon receipt of notification of an address, fax
number and email address or change of address, fax number or email address of
an Obligor under Clause 35.2  (Addresses)
or upon changing its own address, fax number or email address, the Agent shall
notify the other Parties.


35.5    Communication when Agent is a Defaulting Finance Party


If and so long as the Agent is a Defaulting Finance Party,
the Parties may, instead of communicating with each other through the Agent,
communicate with each other directly and all the provisions of the Finance
Documents which require communications to be made or 



 

 





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notices to be given to or by the Agent are varied so that
communications may be made and notices given to or by the relevant Parties
directly. 


35.6    Email communication


(a)    Any communication or document under or in connection with the
Finance Documents may be made by or attached to an email and will be effective
or delivered only:


(i)    in the case of a notice to the Agent of a Default, Review Event or
Event of Default or a notice to the Agent under or referred to in Clause 9.8 (Review
Event) or Clause 24.17 (Event of Default), when actually opened in
legible format by the recipient Party;


(ii)    in all other cases, on the first to occur of the following:


(A)    when it is dispatched by the sender to each of the email addresses
specified by the recipient, unless for each of the addresses, the sender
receives an automatic notification that the e-mail has not been received (other
than an out of office greeting for the named addressee) and it receives the
notification before 2 hours after the last to occur (for all addresses) of:


(1)    dispatch, if
in business hours in the city of the address; or


(2)    if not, the
next opening of business in such city;


(B)    the sender receiving a message from the intended recipient's
information system confirming delivery of the email; and


(C)    the email being available to be read at one of the email addresses
specified by the sender; and


(iii)    the email is in an appropriate and commonly used format, and any
attached file is a pdf, jpeg, tiff or other appropriate and commonly used
format.


(b)    In relation to an email with attached files:


(i)    if the attached files are more than 3 MB in total, then:


(A)    at the time of dispatch the giver of the e-mail must send a
separate email without attachments notifying the recipient of the dispatch of
the email; and


(B)    if the recipient notifies the sender that it did not receive the
email with attached files, and the maximum size that is able to receive under
its firewalls, then the sender shall promptly send to the recipient the
attached files in a manner that can be received by the recipient; and


(ii)    if the recipient of the email notifies the sender that it is
unable to read the format of an attached file or that an attached file is
corrupted, specifying appropriate and commonly used formats that it is able to
read, the sender must promptly 



 

 


 



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send to the recipient the file
in one of those formats or send the attachment in some other manner; and


(iii)    if within two hours of:


(A)    dispatch of the email if in business hours in the city of the
recipient; or


(B)    if not, the next opening of business in the city of the recipient,


the recipient notifies the sender as provided in subparagraph (i)(B)
or (ii), then the relevant attached files will be taken not to have been
received until the sender complies with that subparagraph.


(c)    An email which is a covering email for a notice signed by the
Obligor's authorised signatory does not itself need to be signed by an
authorised signatory.


(d)    Email and other electronic notices from the Agent generated by
Loan IQ or other system software do not need to be signed.


35.7    Communication through secure website


(a)    The Agent may establish a secure website to which access is
restricted to the Agent and the Lenders or the Obligors or both (and, where
applicable, their respective financial and legal advisers).


(b)    After the Agent notifies the Lenders or a Borrower on behalf of
the Obligors or both (as the case may be) of the establishment of the secure
website, then any communication or document given or delivered by or to the
Agent to or by Lenders or Obligors (as the case may be) any specified by the
Agent],


(i)    may be given by means of the secure website in the manner
specified by the Agent (or in the absence of such specification, as specified
by the operator of the website); and


(ii)    unless otherwise agreed will be taken to be made or delivered upon
satisfaction of the following:


(A)    a communication or document being posted on that secure website;


(B)    either:


(1)    receipt by
the Agent of an email from the relevant website confirming that the website has
sent an email to the relevant Party's email addresses nominated under paragraph
(d) notifying that a communication or document has been uploaded on the
website; or


(2)    the website
containing or providing confirmation that the communication or document has
been opened by the intended recipient; and


(C)    compliance with any other requirements specified by the Agent
under paragraph (c).



 

 






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(c)    By notice to
the Lenders or a Borrower on behalf of the Obligors or both (as the case may
be) the Agent acting reasonably may from time to time specify and amend rules
concerning the operation of the secure website in the manner in which
communications or documents may be posted, and will be taken to have been made
or delivered.  Those rules or moments will bind the recipients of the notice
and the Agent.


(d)    When it establishes the secure website, the Agent shall nominate
to the website for each Party the email address given to it by the Party under
this Clause 35 (Notices). Subsequently, the nominated email address for each Party for
that website will be the address nominated by that Party to the secure website
or by the Agent (who will notify the Party accordingly).  The Agent shall
notify the website of changes in email addresses notified to it.


(e)    The Borrowers consents to the inclusion in the secure website of
its company logo.


(f)    Each of the other Parties agrees that the Agent is not liable for
any liability, loss, damage, costs or expenses incurred or suffered by them as
a result of their access or use of the secure website or inability to access or
use the secure website except to the extent caused by its gross negligence or wilful
misconduct.


35.8    Reliance


(a)    Any communication or document sent under this Clause 35 (Notices) can be relied on by the
recipient if the recipient reasonably believes it to be genuine and (if such a
signature is required under Clause 35.1(b)  (Communications in writing) it bears what appears to be the signature (original or facsimile
or email) of an authorised signatory of the sender (without the need for
further enquiry or confirmation).


(b)    Each Party must take reasonable care to ensure that no forged,
false or unauthorised notices are sent to another Party.


35.9    English language


(a)    Any notice or other communication given under or in connection
with any Finance Document must be in English.


(b)    All other documents provided under or in connection with any
Finance Document must be:


(i)    in English; or


(ii)    if not in English, and if so required by the Agent, accompanied by
a certified English translation and, in this case, the English translation will
prevail unless the document is a constitutional, statutory or other official
document.


36.    Calculations and Certificates


36.1    Accounts


In any litigation or arbitration proceedings arising out of
or in connection with a Finance Document, the entries made in the accounts
maintained by a Finance Party are prima facie evidence of the matters to which
they relate.



 

 






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36.2    Certificates and Determinations


Any certification or determination by a Finance Party of a
rate or amount under any Finance Document is, in the absence of manifest error,
conclusive evidence of the matters to which it relates.


36.3    Day count convention


Any interest, commission or fee accruing under a Finance
Document will accrue from day to day and is calculated on the basis of the
actual number of days elapsed and a year of 365 days or, in any case where the
practice in the Relevant Market differs, in accordance with that market
practice.


36.4    Settlement conditional


If:


(a)    any Finance Party has at any time released or discharged:


(i)    an Obligor from its obligations under any Finance Document; or


(ii)    any assets of an Obligor from a Security,


in either case in reliance on a payment, receipt or other
transaction to or in favour of any Finance Party; or


(b)    any payment, receipt or other transaction to or in favour of any
Finance Party has the effect of releasing or discharging:


(i)    an Obligor from its obligations under any Finance Document; or


(ii)    any assets of an Obligor from a Security; and


(c)    that payment, receipt or other transaction is subsequently claimed
by any person to be void, voidable or capable of being set aside for any reason
(including under any law relating to insolvency, sequestration, liquidation,
winding up or bankruptcy and any provision of any agreement, arrangement or
scheme, formal or informal, relating to the administration of any of the assets
of any person); and


(d)    that claim is upheld or is conceded or compromised by a Finance
Party,


then:


(i)    each Finance Party will immediately become entitled against that
Obligor to all rights (including under any Finance Document) as it had
immediately before that release or discharge;


(ii)    that Obligor must, to the extent permitted by law:


(A)    immediately do all things and execute all documents as any Finance
Party may, acting reasonably, require to restore to each Finance Party all
those rights; and



 

 






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(B)    indemnify each Finance Party against all costs and losses suffered
or incurred by it in or in connection with any negotiations or proceedings
relating to the claim or as a result of the upholding, concession or compromise
of the claim.


37.    Partial Invalidity


If, at any time, any provision of a Finance Document is or
becomes illegal, invalid or unenforceable in any respect under any law of any
jurisdiction, neither the legality, validity or enforceability of the remaining
provisions nor the legality, validity or enforceability of such provision under
the law of any other jurisdiction will in any way be affected or impaired.


38.    Remedies and Waivers


No failure to exercise, nor any delay in exercising, on the
part of any Finance Party, any right or remedy under a Finance Document shall
operate as a waiver of any such right or remedy or constitute an election to
affirm any of the Finance Documents.  No election to affirm any Finance
Document on the part of any Finance Party shall be effective unless it is in
writing.  No single or partial exercise of any right or remedy shall prevent
any further or other exercise or the exercise of any other right or remedy. 
The rights and remedies provided in each Finance Document are cumulative and
not exclusive of any rights or remedies provided by law.


39.    Amendments and Waivers


39.1    Required consents


(a)    Subject to Clause 39.2  (All
Lender matters) and Clause 39.3  (Other
exceptions) any term of the Finance Documents may be amended or waived only
with the consent of the Majority Lenders and the Obligors and any such
amendment or waiver will be binding on all Parties.


(b)    The Agent may effect, on behalf of any Finance Party, any
amendment or waiver permitted by this Clause 39 (Amendments and Waivers).


(c)    Paragraph (c)
of Clause 26.9 (Pro rata interest settlement) shall apply to this Clause
39.


39.2    All Lender matters


(a)    Subject to Clause 39.4  (Change
in respect of Screen Rate) and Clause 39.5 (Change in respect of
Specified Time) an amendment or waiver of any term of any Finance Document
that has the effect of changing or which relates to:


(i)    the definition of "Majority Lenders" in Clause 1.1 (Definitions);


(ii)    a waiver of any of the conditions precedent under Clause 4.1 (Initial
conditions precedent);


(iii)    an extension to the date of payment of any amount under the
Finance Documents;


(iv)    a reduction in the Margin or a reduction in the amount of any
payment of principal, interest, fees or commission payable or any other payment
obligation;



 

 






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(v)    an increase
in any Commitment, an extension of any Availability Period or any requirement
that a cancellation of Commitments reduces the Commitments of the Lenders
rateably under the relevant Facility;


(vi)    a change to the Borrowers or Guarantors other than in accordance
with Clause 27 (Changes to the Obligors);


(vii)    any provision which expressly requires the consent of all the
Lenders;


(viii)    Clause 2.2 (Finance
Parties’ rights and
obligations), Clause 5.1 (Utilising
Facility A), Clause 9.1 (Illegality), Clause 9.8 (Review Event),
Clause 26 (Changes to the Lenders), Clause 27 (Changes to the
Obligors), Clause 31 (Sharing among the Finance Parties), Clause 33.6  (Partial
payments), this Clause 39 (Amendments
and Waivers),  Clause 47 (Governing Law) or Clause 48.1  (Jurisdiction); 


(ix)    (other than as expressly permitted by the provisions of this
Agreement or the Security Trust Deed):


(A)    the nature or scope of the Transaction Security or the nature or
scope of the guarantee and indemnity granted under Clause 20 (Guarantee); or


(B)    the Secured Property; or


(C)    the manner in which the proceeds of enforcement of the Transaction
Security are distributed; or 


(x)    the release of any guarantee and indemnity granted under Clause 20
(Guarantee) or of any Transaction Security unless permitted under this
Agreement or the Security Trust Deed or relating to a disposal of an asset
which is the subject of the Transaction Security, or of the grantor of the
guarantee and indemnity or Transaction Security or of the grantor's Holding
Company, where such disposal is permitted under this Agreement,


shall not be made without the prior consent of all the Lenders.


(b)    Where one or more Defaulting Finance Parties have been
disenfranchised under Clause 40.4  (Failure to respond) , no
amendment of the kind referred to in paragraph (a) which applies to Defaulting
Finance Parties in a manner different from other Finance Parties may be made
without the consent of the Defaulting Finance Parties.


39.3    Other exceptions


An amendment or waiver which relates to the rights or
obligations of the Agent or the Arranger or the Security Trustee (each in their
capacity as such) may not be effected without the consent of the Agent or, as
the case may be, the Arranger, or the Security Trustee.


39.4    Replacement of Screen Rate


(a)    Subject to Clause 39.3 (Other exceptions), if a Screen Rate Replacement Event
has occurred in relation to any Screen Rate for a currency which can be
selected for a Loan, any amendment or waiver which relates to:



 

 


 



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(i)    providing for the use of a Replacement Benchmark in relation to
that currency in place of that Screen Rate; and


(ii)    


(A)    aligning any
provision of any Finance Document to the use of that Replacement Benchmark;


(B)    enabling that
Replacement Benchmark to be used for the calculation of interest under this
Agreement (including, without limitation, any consequential changes required to
enable that Replacement Benchmark to be used for the purposes of this
Agreement);


(C)    implementing market conventions applicable to that Replacement
Benchmark;


(D)    providing for appropriate fallback (and market disruption)
provisions for that Replacement Benchmark; or


(E)    adjusting the pricing to reduce or eliminate, to the extent
reasonably practicable, any transfer of economic value from one Party to
another as a result of the application of that Replacement Benchmark (and if
any adjustment or method for calculating any adjustment has been formally
designated, nominated or recommended by the Relevant Nominating Body, the
adjustment shall be determined on the basis of that designation, nomination or
recommendation),


may be made with the consent of the Agent (acting on the
instructions of the Majority Lenders) and the Original Borrower.


(b)    If any Lender
fails to respond to a request for an amendment or waiver described in paragraph (a) within 15 Business Days
(or such longer time period in relation to any request which the Original
Borrower and the Agent may agree) of that request being made:


(i)    its
Commitment(s) shall not be included for the purpose of calculating the Total
Commitments under the relevant Facility when ascertaining whether any relevant
percentage of Total Commitments has been obtained to approve that request; and


(ii)    its status as a Lender shall be disregarded for the purpose of
ascertaining whether the agreement of any specified group of Lenders has been
obtained to approve that request.


39.5    Change in respect of Specified Time


Subject to Clause 39.3 (Other exceptions), if
the administrator of a Screen Rate for a currency changes the time at which the
rate is published or by which any correction, recalculation or republication of
published rate is made, any change in the relevant Specified Time or the time
by which Reference Banks supply rates or any change in whether such a
correction, 



 

 





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recalculation or republication is taken into account may be
made with the consent of the Majority Lenders and the Original Borrower. 


40.    Instructions and Decisions


40.1    Abstentions


In determining whether the Majority Lenders, have given
instructions or a consent, approval, waiver, amendment or other decision, a
Lender will be deemed to have Commitments or a participation of zero if it has
so elected by notice to the Agent.


40.2    Transferees bound


A consent, approval, waiver, amendment or other decision by
a Lender or any instruction to the Agent by a Lender binds that Lender's
assigns and successors unless revoked under Clause 40.3 
(Limitations on revocation). 


40.3    Limitations on revocation


Any instructions, consent, approval, waiver, amendment or
other decision by the Majority Lenders may be revoked only by the Majority
Lenders, and may not be revoked if the decision has been acted upon.


40.4    Failure to respond


If any Lender fails to respond to a request for
instructions, consent, approval, waiver, amendment or other decision in relation to any
Finance Document  within 15 Business Days of that request (or any longer period
agreed by the Borrower and the Agent), that Lender, its Commitment and its
participation shall not be included for the purpose of calculating the Total
Commitments or participations under the relevant Facility when ascertaining
whether the Majority Lenders  have responded to that request.   


40.5    Disenfranchisement of Defaulting Finance Parties


For so long as a Defaulting Finance Party has any Available
Commitment, in ascertaining the Majority Lenders or whether any given
percentage (including, for the avoidance of doubt, unanimity) of the Total
Commitments or the Commitments of any specified group of Lenders or the
agreement of all Lenders or all of any specified group of Lenders has been
obtained in respect of any request for instructions, consent, approval, waiver,
amendment or other decision under the Finance Documents, that Defaulting
Finance Party's Commitments will be reduced by the amount of its Available
Commitments.


For the purposes of this Clause, the Agent may assume that
the following Lenders are Defaulting Finance Parties:


(a)    any Lender which has notified the Agent that it has become a
Defaulting Finance Party;


(b)    any Lender in relation to which the relevant officers of the Agent
having day to day conduct of its role are aware that any of the events or
circumstances referred to in the definition of "Defaulting Finance
Party" has occurred,



 

 





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unless it has received notice to the contrary from the
Lender concerned (together with any supporting evidence reasonably requested by
the Agent) or the Agent is otherwise aware that the Lender has ceased to be a
Defaulting Finance Party.


40.6    Replacement of a Defaulting Finance Party


(a)    The Borrower may, at any time a Lender  has become and continues
to be a Defaulting Finance Party, by giving 5 Business Days' prior written
notice to the Agent and such Lender require that Defaulting Finance Party to do
one of the following under Clause 26 (Changes to the Lenders) and the
Defaulting Finance Party shall comply with the notice:


(i)    transfer all of its rights and obligations under this Agreement;


(ii)    transfer all of the undrawn Facility A Commitment and Facility B
Commitment and Facility C Commitment (if any) of the Lender; or


(iii)    transfer all of its rights and obligations in respect of Facility
A and Facility B and Facility C (if any),


to a Lender or another bank, 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) (a "Replacement Lender")
selected by a Borrower, and which (unless the Agent is an Defaulting Finance
Party) is acceptable to the Agent (acting reasonably) or in case of any
transfer of a Facility B Commitment is acceptable to the Issuing Bank, which
confirms its willingness to assume and does assume all the obligations or all
the relevant obligations of the transferring Lender (including the assumption
of the transferring Lender's participations or unfunded participations (as the
case may be) on the same basis as the transferring Lender) for a purchase price
in cash payable at the time of transfer equal to the outstanding principal
amount of such Lender's participation in the outstanding Utilisations and all
accrued interest and/or Break Costs and other amounts payable in relation to
them under the Finance Documents.


(b)    Any transfer of rights and obligations of a Defaulting Finance
Party pursuant to this Clause 40 (Instructions
and Decisions) shall be subject to the
following conditions:


(i)    a Borrower shall have no right to replace the Agent or Security
Trustee;


(ii)    neither the Agent nor the Defaulting Finance Party shall have any
obligation to a Borrower to find a Replacement Lender;


(iii)    the transfer must take place no later than 10 Business Days after
the notice referred to in paragraph (a) above; and


(iv)    in no event shall the Defaulting Finance Party be required to pay
or surrender to the Replacement Lender any of the fees received by the
Defaulting Finance Party pursuant to the Finance Documents.



 

 






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41.    Confidentiality


41.1    Confidential Information


Each Finance Party agrees to keep all Confidential
Information confidential and not to disclose it to anyone, save to the extent
permitted by Clause 41.2  (Disclosure of
Confidential Information) and Clause 41.3 
(Disclosure to numbering service providers), and to ensure that all
Confidential Information is protected with security measures and a degree of
care that would apply to its own confidential information. To the extent that
Confidential Information comprises personal information of any officer,
director or employee of an Obligor, each Finance Party agrees to hold that
personal information in accordance with the Australian Privacy Principles.


41.2    Disclosure of Confidential Information


Any Finance Party may disclose:


(a)    to any of its Affiliates and Related Funds and any of its or their
officers, directors, employees, professional advisers, auditors, partners and
Representatives such Confidential Information as that Finance Party shall
consider appropriate if any person to whom the Confidential Information is to
be given pursuant to this paragraph (a) is informed in writing of its
confidential nature and that some or all of such Confidential Information may
be price-sensitive information except that there shall be no such requirement
to so inform if the recipient is subject to professional obligations to
maintain the confidentiality of the information or is otherwise bound by
requirements of confidentiality in relation to the Confidential Information;


(b)    to any person:


(i)    to (or through) whom it assigns or transfers (or may potentially
assign or transfer) all or any of its rights and/or obligations under one or
more Finance Documents or which succeeds (or which may potentially succeed) it
as Agent and, in each case, to any of that person's Affiliates, Related Funds,
Representatives and professional advisers;


(ii)    with (or through) whom it enters into (or may potentially enter
into), whether directly or indirectly, any sub-participation in relation to, or
any other transaction under which payments are to be made or may be made by
reference to, one or more Finance Documents and/or one or more Obligors and to
any of that person's Affiliates, Related Funds, Representatives and professional
advisers;


(iii)    appointed by any Finance Party or by a person to whom paragraph
(b)(i) or (ii) above applies to receive communications, notices, information or
documents delivered pursuant to the Finance Documents on its behalf (including,
without limitation, any person appointed under paragraph (c) of Clause 29.14  (Relationship with the Lenders)); 


(iv)    who invests in or otherwise finances (or may potentially invest in
or otherwise finance), directly or indirectly, any transaction referred to in
paragraph (b)(i) or (ii) above;



 

 






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(v)    to whom information is required or requested to be disclosed by
any court of competent jurisdiction or any governmental, banking, taxation or
other regulatory authority or similar body, the rules of any relevant stock
exchange or pursuant to any applicable law or regulation (except this paragraph
does not permit the disclosure of any information under section 275(4) of the
PPSA unless section 275(7) of the PPSA applies);


(vi)    to whom information is required to be disclosed in connection
with, and for the purposes of, any litigation, arbitration, administrative or
other investigations, proceedings or disputes (except this paragraph does not
permit the disclosure of any information under section 275(4) of the PPSA
unless section 275(7) of the PPSA applies);


(vii)    to whom or for whose benefit that Finance Party charges, assigns
or otherwise creates Security (or may do so) pursuant to Clause 26.8  (Security over Lenders' rights); 


(viii)    who is a Party; or


(ix)    with the consent of a Borrower;


in each case, such Confidential
Information as that Finance Party shall consider appropriate if:


(A)    in relation to paragraphs (b)(i), (b)(ii) and (b)(iii) above, the
person to whom the Confidential Information is to be given has entered into a
Confidentiality Undertaking except that there shall be no requirement for a
Confidentiality Undertaking if the recipient is a professional adviser and is
subject to professional obligations to maintain the confidentiality of the
Confidential Information;


(B)    in relation to paragraph (b)(iv) above, the person to whom the
Confidential Information is to be given has entered into a Confidentiality Undertaking
or is otherwise bound by requirements of confidentiality in relation to the
Confidential Information they receive and is informed that some or all of such
Confidential Information may be price-sensitive information;


(C)    in relation to paragraphs (b)(v),  (b)(vi) and (b)(vii) above, the
person to whom the Confidential Information is to be given is informed of its
confidential nature and that some or all of such Confidential Information may
be price-sensitive information except that there shall be no requirement to so
inform if, in the opinion of that Finance Party, it is not practicable so to do
in the circumstances; and


(c)    to any person appointed by that Finance Party or by a person to
whom paragraph (b)(i) or (b)(ii) above applies to provide administration or
settlement services in respect of one or more of the Finance Documents
including without limitation, in relation to the trading of participations in
respect of the Finance Documents, such



 

 


 



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Confidential Information as
may be required to be disclosed to enable such service provider to provide any
of the services referred to in this paragraph (c) if the service provider to
whom the Confidential Information is to be given has entered into a
confidentiality agreement substantially in the form of the LMA Master
Confidentiality Undertaking for Use With Administration/Settlement Service
Providers or such other form of confidentiality undertaking agreed between a
Borrower and the relevant Finance Party; and


(d)    to any rating agency (including its professional advisers) such
Confidential Information as may be required to be disclosed to enable such
rating agency to carry out its normal rating activities in relation to the
Finance Documents and/or the Obligors if the rating agency to whom the
Confidential Information is to be given is informed of its confidential nature
and that some or all of such Confidential Information may be price-sensitive
information.


41.3    Disclosure to numbering service providers


(a)    Any Finance Party may disclose to any national or international
numbering service provider appointed by that Finance Party to provide
identification numbering services in respect of this Agreement, the Facilities
and/or one or more Obligors the following information:


(i)    names of Obligors;


(ii)    country of domicile of Obligors;


(iii)    place of incorporation of Obligors;


(iv)    Facility Initiation Date;


(v)    Clause 47 (Governing Law);


(vi)    the names of the Agent and the Arranger;


(vii)    date of each amendment and restatement of this Agreement;


(viii)    amounts of, and names of, the Facilities (and any tranches);


(ix)    amount of Total Commitments;


(x)    currencies of the Facilities;


(xi)    type of Facilities;


(xii)    ranking of Facilities;


(xiii)    Termination Date;


(xiv)    changes to any of the information previously supplied pursuant to paragraphs (i) to
(xiii) above; and


(xv)    such other information agreed between such Finance Party and a
Borrower,



 

 





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to enable such numbering
service provider to provide its usual syndicated loan numbering identification
services. 


(b)    The Parties acknowledge and agree that each identification number
assigned to this Agreement, the Facilities and/or one or more Obligors by a
numbering service provider and the information associated with each such number
may be disclosed to users of its services in accordance with the standard terms
and conditions of that numbering service provider.


(c)    Each Obligor represents that none of the information set out in
paragraphs (a)(i) to (a)(xv) above is, nor will at any time be, unpublished
price-sensitive information.


(d)    The Agent shall notify a Borrower and the other Finance Parties
of:


(i)    the name of any numbering service provider appointed by the Agent
in respect of this Agreement, the Facilities and/or one or more Obligors; and


(ii)    the number or, as the case may be, numbers assigned to this
Agreement, the Facilities and/or one or more Obligors by such numbering service
provider.


41.4    Entire agreement


This Clause 41 (Confidentiality)
constitutes the entire agreement between the Parties in relation to the
obligations of the Finance Parties under the Finance Documents regarding
Confidential Information and supersedes any previous agreement, whether express
or implied, regarding Confidential Information.


41.5    Inside information


Each of the Finance Parties acknowledges that some or all
of the Confidential Information is or may be price-sensitive information and
that the use of such information may be regulated or prohibited by applicable
legislation including securities law relating to insider dealing and market
abuse and each of the Finance Parties undertakes not to use any Confidential
Information for any unlawful purpose.


41.6    Notification of disclosure


Each of the Finance Parties agrees (to the extent permitted
by law and regulation) to inform a Borrower:


(a)    of the circumstances of any disclosure of Confidential Information
made pursuant to paragraphs (b)(v) and (b)(vi) of Clause 41.2  (Disclosure of Confidential Information)
except where such disclosure is made to any of the persons referred to in that
paragraph during the ordinary course of its supervisory or regulatory function;
and


(b)    upon becoming aware that Confidential Information has been
disclosed in breach of this Clause 41 (Confidentiality).


41.7    Continuing obligations


The obligations in this Clause 41 (Confidentiality) are continuing and, in particular, shall survive and
remain binding on each Finance Party for a period of twelve months from the
earlier of:



 

 






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(a)    the date on
which all amounts payable by the Obligors under or in connection with this
Agreement have been paid in full and all Commitments have been cancelled or
otherwise cease to be available; and


(b)    the date on which such Finance Party otherwise ceases to be a
Finance Party.


42.    PPSA Provisions


Where any Finance Party has a security interest (as defined
in the PPSA) under any Finance Document, to the extent the law permits:


(a)    for the purposes of sections 115(1) and 115(7) of the PPSA:


(i)    each Finance Party with the benefit of the security interest need
not comply with sections 95, 118, 121(4), 125,130, 132(3)(d) or 132(4)
of the PPSA; and


(ii)    sections 142 and 143 of the PPSA are excluded;


(b)    for the purposes of section 115(7) of the PPSA, each Finance Party
with the benefit of the security interest need not comply with sections 132 and
137(3);


(c)    each Party waives its right to receive from any Finance Party any
notice required under the PPSA (including a notice of a verification
statement);


(d)    if a Finance Party with the benefit of a security interest
exercises a right, power or remedy in connection with it, that exercise is
taken not to be an exercise of a right, power or remedy under the PPSA unless
the Finance Party states otherwise at the time of exercise.  However, this
Clause 42 does not apply to a right, power or remedy which can only be
exercised under the PPSA; and


(e)    if the PPSA is amended to permit the Parties to agree not to
comply with or to exclude other provisions of the PPSA, the Agent may notify a
Borrower and the Finance Parties that any of these provisions is excluded, or
that the Finance Parties need not comply with any of these provisions.


This does
not affect any rights a person has or would have other than by reason of the
PPSA and applies despite any other Clause in any Finance Document.


43.    Confidentiality of Funding Rates and
Reference Bank Quotations


43.1    Confidentiality and disclosure


(a)    The Agent and each Obligor agree to keep each Funding Rate (and,
in the case of the Agent, each Reference Bank Quotation) confidential and not
to disclose it to anyone, save to the extent permitted by paragraphs (b), (c)
and (d) below.


(b)    The Agent may disclose:


(i)    any Funding Rate (but not, for the avoidance of doubt, any
Reference Bank Quotation) to the relevant Borrower pursuant to Clause 10.4  (Notification of rates of interest); and



 

 






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(ii)    any Funding Rate or any Reference Bank Quotation to any person
appointed by it to provide administration services in respect of one or more of
the Finance Documents to the extent necessary to enable such service provider
to provide those services if the service provider to whom that information is
to be given has entered into a confidentiality agreement substantially in the
form of the LMA Master Confidentiality Undertaking for Use With
Administration/Settlement Service Providers or such other form of
confidentiality undertaking agreed between the Agent and the relevant Lender or
Reference Bank, as the case may be.


(c)    The Agent may disclose any Funding Rate or any Reference Bank
Quotation, and each Obligor may disclose any Funding Rate, to:


(i)    any of its Affiliates and any of its or their officers, directors,
employees, professional advisers, auditors, partners and Representatives if any
person to whom that Funding Rate or Reference Bank Quotation is to be given
pursuant to this paragraph (i) is informed in writing of its confidential
nature and that it may be price-sensitive information except that there shall
be no such requirement to so inform if the recipient is subject to professional
obligations to maintain the confidentiality of that Funding Rate or Reference
Bank Quotation or is otherwise bound by requirements of confidentiality in
relation to it;


(ii)    any person to whom information is required or requested to be
disclosed by any court of competent jurisdiction or any governmental, banking,
taxation or other regulatory authority or similar body, the rules of any
relevant stock exchange or pursuant to any applicable law or regulation if the
person to whom that Funding Rate or Reference Bank Quotation is to be given is
informed in writing of its confidential nature and that it may be
price-sensitive information except that there shall be no requirement to so
inform if, in the opinion of the Agent or the relevant Obligor, as the case may
be, it is not practicable to do so in the circumstances;


(iii)    any person to whom information is required to be disclosed in
connection with, and for the purposes of, any litigation, arbitration,
administrative or other investigations, proceedings or disputes if the person
to whom that Funding Rate or Reference Bank Quotation is to be given is informed
in writing of its confidential nature and that it may be price-sensitive
information except that there shall be no requirement to so inform if, in the
opinion of the Agent or the relevant Obligor, as the case may be, it is not
practicable to do so in the circumstances; and


(iv)    any person with the consent of the relevant Lender or Reference
Bank, as the case may be.


(d)    The Agent's obligations in this Clause 43 (Confidentiality of Funding Rates and Reference Bank Quotations) relating to Reference Bank Quotations are without prejudice to
its obligations to make notifications under Clause 10.4 
(Notification of rates of interest) provided that (other than pursuant
to paragraph (b)(i) above) the 



 

 


 



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Agent shall not include the
details of any individual Reference Bank Quotation as part of any such
notification.


43.2    Related obligations


(a)    The Agent and each Obligor acknowledge that each Funding Rate
(and, in the case of the Agent, each Reference Bank Quotation) is or may be
price-sensitive information and that its use may be regulated or prohibited by
applicable legislation including securities law relating to insider dealing and
market abuse and the Agent and each Obligor undertake not to use any Funding
Rate or, in the case of the Agent, any Reference Bank Quotation for any
unlawful purpose.


(b)    The Agent and each Obligor agree (to the extent permitted by law
and regulation) to inform the relevant Lender or Reference Bank, as the case
may be:


(i)    of the circumstances of any disclosure made pursuant to Clause 43.1(c)(ii)  (Confidentiality and disclosure)
above except where such disclosure is made to any of the persons referred to in
that paragraph during the ordinary course of its supervisory or regulatory function;
and


(ii)    upon becoming aware that any information has been disclosed in
breach of this Clause 43 (Confidentiality
of Funding Rates and Reference Bank Quotations).


43.3    No Event of Default


No Event of Default will occur under Clause 24.17 (Events
of Default) by reason only of an Obligor's failure to comply with this Clause
43 (Confidentiality of Funding
Rates and Reference Bank Quotations).


44.    Counterparts


Each Finance Document may be executed in any number of
counterparts, and this has the same effect as if the signatures on the
counterparts were on a single copy of the Finance Document.


45.    Indemnities and Reimbursement


All indemnities and reimbursement obligations (and any
other payment obligations of any Obligor) in each Finance Document are
continuing and survive termination of the Finance Document, repayment of the
Utilisations and cancellation or expiry of the Commitments.


46.    Acknowledgement


Except as expressly set out in the Finance Documents none
of the Asia Pacific Loan Market Association, the Finance Parties or any of
their advisers have given any representation or warranty or other assurance to
any Obligor in relation to the Finance Documents and the transactions they
contemplate, including as to tax or other effects.  The Obligors have not
relied on any of them or on any conduct (including any recommendation) by any
of them.  The Obligors have obtained their own tax and legal advice.


The Code of Banking Practice does not apply to the Finance
Documents and the transactions under them.



 

 





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SECTION 12


GOVERNING LAW AND
ENFORCEMENT


47.    Governing Law


This Agreement is governed by Queensland law.


48.    Enforcement


48.1    Jurisdiction


(a)    The courts having jurisdiction in Queensland have exclusive
jurisdiction to settle any dispute arising out of or in connection with this
Agreement (including a dispute relating to the existence, validity or
termination of this Agreement (a "Dispute"). 


(b)    The Parties agree that those courts are the most appropriate and
convenient courts to settle Disputes and accordingly no Party will argue to the
contrary.


(c)    Notwithstanding paragraph (a) above, no Finance Party or
Beneficiary shall be prevented from taking proceedings relating to a Dispute in
any other courts with jurisdiction.  To the extent allowed by law, the Finance
Parties and the Beneficiaries may take concurrent proceedings in any number of
jurisdictions.


48.2    Service of process


Without prejudice to any other mode of service allowed
under any relevant law, each Obligor (other than an Obligor incorporated in
Australia):


(a)    irrevocably appoints the Original Borrower as its agent for
service of process in relation to any proceedings in connection with any
Finance Document; and


(b)    agrees that failure by a process agent to notify the relevant
Obligor of the process will not invalidate the proceedings concerned.


48.3    Certain ERISA Matters


(a)    Each Lender (x) represents and warrants, as of the date such
Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender
party hereto to the date such Person ceases being a Lender party hereto, for
the benefit of the Agent and not, for the avoidance of doubt, to or for the
benefit of the Borrower or any other Obligor, that at least one of the
following is and will be true:


(i)    such Lender
is not using “plan assets” (within the meaning of Section 3(42) of
ERISA or otherwise) of one or more Benefit Plans with respect to such Lender’s entrance into, participation in,
administration of and performance of the Loans, the  letters of credit, the
Commitments or this Agreement,


(ii)    the
transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class
exemption for certain transactions determined by independent qualified
professional asset managers), PTE 95-60 (a class exemption for certain
transactions involving insurance company general accounts), PTE 90-1 (a class
exemption for certain transactions involving insurance company pooled separate
accounts), PTE 91-38 (a class exemption for certain transactions involving bank




 



 185  










       




collective investment funds)
or PTE 96-23 (a class exemption for certain transactions determined by in-house
asset managers), is applicable with respect to such Lender’s entrance into, participation in,
administration of and performance of the Loans, the letters of credit, the
Commitments and this Agreement,


(iii)    (A) such
Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified
Professional Asset Manager made the investment decision on behalf of such
Lender to enter into, participate in, administer and perform the Loans, the
letters of credit, the Commitments and this Agreement, (C) the entrance into,
participation in, administration of and performance of the Loans, the letters
of credit, the Commitments and this Agreement satisfies the requirements of
sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best
knowledge of such Lender, the requirements of subsection (a) of Part I of PTE
84-14 are satisfied with respect to such Lender’s entrance into, participation in, administration of and
performance of the Loans, the letters of credit, the Commitments and this
Agreement, or


(iv)    such other
representation, warranty and covenant as may be agreed in writing between the
Agent, in its sole discretion, and such Lender.


(b)    In addition,
unless either (1) sub-clause (i) in the immediately preceding clause (a) is
true with respect to a Lender or (2) a Lender has provided another
representation, warranty and covenant in accordance with sub-clause (iv) in the
immediately preceding clause (a), such Lender further (x) represents and
warrants, as of the date such Person became a Lender party hereto, to, and (y)
covenants, from the date such Person became a Lender party hereto to the date
such Person ceases being a Lender party hereto, for the benefit of, the Agent
and not, for the avoidance of doubt, to or for the benefit of the Borrower or
any other Obligor, that the Agent is not a fiduciary with respect to the assets
of such Lender involved in such Lender’s entrance into, participation in, administration of and
performance of the Loans, the letters of credit, the Commitments and this
Agreement (including in connection with the reservation or exercise of any rights
by the Agent under this Agreement, any Finance Document or any documents
related hereto or thereto).


This Agreement has been entered into on the date stated at
the beginning of this Agreement.



 

 





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Schedule 1



The Original Parties


[***]


 


 







 






 187  










       




Schedule 2



Conditions
PrecedenT


[***]


 


 


191




       










       




Schedule 3



Requests


[***]


 


 


202
 



       










       




Schedule 4



Form
of Transfer Certificate


[***]


 


 


206
 



       










       




Schedule 5



Form
of Accession Letter


[***]


 


 


 


214
 



       










       




Schedule 6



Form
of Resignation Letter


[***]


 


 


 


215
 



       










       




Schedule 7



Form
of Compliance Certificate


[***]


 


 


 


216
 



       










       




Schedule 8



Form
of Confidentiality Undertaking


[***]


 


 


 


217
 



       










       




Schedule 9



Timetables 


 


[***]


 


 


 


 


 


 


 


222




       










       




Schedule 9A

Screen Rate Contingency Periods


[***]


 


 


 


223






       










       




 


Schedule 10

Real Property


 


[***]


 


 


 


224




       










       




Schedule 11



Restructure - Steps Paper


 


[***]


 


 


 


 


 



 

 





       










       




EXECUTION
PAGES


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