EXHIBIT 10.28
SYNDICATED MULTI-OPTION FACILITY
AGREEMENT
CONSOL ENERGY AUSTRALIA PTY LIMITED
MAITLAND MAIN COLLIERIES PTY LIMITED
(BORROWERS)
GLENNIES CREEK COAL MANAGEMENT PTY LTD
(OPERATOR)
GLENNIES CREEK COAL SALES PTY LIMITED
(MARKETING COMPANY)
CONSOL ENERGY INC.
K-M INVESTMENT CORPORATION
(SPONSORS)
ANZ INVESTMENT BANK
(ARRANGER)
AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED
(AGENT, WORKING CAPITAL FACILITY PROVIDER AND INITIAL
(PARTICIPANT)
ANZ CAPEL COURT LIMITED
(SECURITY TRUSTEE)
GLENNIES CREEK JOINT VENTURE FINANCING
ALLENS ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
The Chifley Tower
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇
Tel ▇▇ ▇ ▇▇▇▇ ▇▇▇▇
Fax ▇▇ ▇ ▇▇▇▇ ▇▇▇▇
(C) Copyright Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 2002
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
TABLE OF CONTENTS
1. DEFINITIONS AND INTERPRETATION 2
1.1 Definitions 2
1.2 Interpretation 23
1.3 Majority Participants 24
1.4 Determination, statement and certificate 24
1.5 Document or agreement 24
1.6 Repayment and prepayment 25
1.7 Listing requirements included as Law 25
1.8 Trust 25
1.9 Current accounting practice 25
1.10 Lock-Up 25
2. COMMITMENTS 26
2.1 Commitments 26
2.2 Allocation among Participants 26
2.3 Obligations of Participants several 26
2.4 Obligations of Borrowers several 26
3. CANCELLATION OF COMMITMENTS 27
3.1 At end of Availability Period 27
3.2 Reduction on repayment or prepayment 27
3.3 Voluntary cancellation of Undrawn Commitments 27
4. PURPOSE 27
4.1 Purpose 27
4.2 Term Facility 27
4.3 Contingency Facility 28
4.4 Mining Unit Facility 28
4.5 Working Capital Facility 28
5. DRAWDOWN NOTICES 28
5.1 When notice to be given 28
5.2 Notification of Participants 29
6. SELECTION NOTICE 29
6.1 When Notice to be given 29
6.2 Failure to give Selection Notice 29
6.3 Notification of Participants 29
6.4 Number of Segments 29
6.5 Splitting and combination 29
7. SELECTION OF FUNDING PERIODS 29
7.1 Duration 29
8. REPAYMENT 30
8.1 Repayment of Term Facility 30
8.2 Repayment of Contingency Facility 30
8.3 Repayment of Mining Unit Facility 30
Page (i)
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
8.4 Repayment of Working Capital Facility 30
8.5 Allocation among Participants 31
8.6 Allocation among Segments 31
9. PREPAYMENTS 31
9.1 Optional prepayment of Term Facility and Mining Unit Facility 31
9.2 Mandatory prepayment of Term Facility and Mining Unit Facility 31
9.3 Mandatory prepayments during Lock-up 31
9.4 Prepayment on expiry of Funding Period 32
9.5 Interest 32
9.6 Limitation on prepayments 32
9.7 Application against repayment instalments 32
9.8 Apportionment 32
10. PROJECT FACILITIES 32
10.1 Grant of Project Facilities 32
10.2 Advance of Segment 32
10.3 Interest rate 33
10.4 Payment of interest 33
10.5 Market disturbance - Suspension Notice 33
10.6 Market disturbance before drawing 33
10.7 Market disturbance relating to subsequent Segments 34
11. WORKING CAPITAL FACILITY 34
11.1 Grant of Working Capital Facility 34
11.2 Advance of Segment 34
11.3 Interest 35
11.4 Preparation of Reliquefication Bills 35
11.5 Requirements of Reliquefication Bills 35
11.6 Dealing with Reliquefication Bills 35
11.7 Indemnity 35
11.8 Stamp duty on Reliquefication Bills 36
11.9 End of authority 36
11.10 Review 36
12. PAYMENTS 36
12.1 Manner 36
12.2 Payment to be made on Business Day 37
12.3 Distribution by Agent 37
12.4 Appropriation where insufficient moneys available 37
12.5 Unanticipated default 37
12.6 Rounding 38
12.7 Blocked payments 38
13. TAXATION 38
13.1 Additional payments 38
13.2 Survival of obligations 38
14. CHANGES IN LAW 39
14.1 Increased costs 39
Page (ii)
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
14.2 Illegality 40
14.3 Minimisation 40
14.4 Survival of obligations 40
15. CONDITIONS PRECEDENT 40
15.1 Conditions precedent to first Drawdown Notice 40
15.2 Conditions precedent to first Segment of Term Facility 43
15.3 Conditions precedent to First Segment of Contingency Facility 43
15.4 Conditions Precedent to First Segment of Mining Unit Facility 43
15.5 Conditions precedent to each Segment 43
16. REPRESENTATIONS AND WARRANTIES 44
16.1 Representations and warranties 44
16.2 Sponsor representations and warranties 47
16.3 Reliance on representations and warranties 47
17. UNDERTAKINGS 48
17.1 General Undertakings 48
17.2 Undertakings Relating to Project and Joint Venture 51
17.3 Term of application of undertakings 58
18. EVENTS OF DEFAULT 58
18.1 Events of Default relating to individual Borrowers 58
18.2 General Events of Default 61
18.3 Technical default in payment 64
18.4 Consequences - individual Event of Default 64
18.5 Consequences - Project Event of Default 65
18.6 Notification by Agent 65
19. GUARANTEE 65
19.1 Interpretation 65
19.2 Guarantee 65
19.3 Payment 65
19.4 Unconditional nature of obligation 66
19.5 Principal and independent obligation 67
19.6 No marshalling 67
19.7 No competition 67
19.8 Suspense account 67
19.9 Rescission of payment 67
19.10 Indemnity 68
19.11 Continuing guarantee and indemnity 68
19.12 Variations 68
19.13 Judgment 69
19.14 Conditions precedent 69
19.15 Termination 69
19.16 No Set-Off 69
20. BANK ACCOUNTS 69
20.1 Proceeds Account 69
20.2 Payments into Proceeds Account 70
Page (iii)
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
20.3 Payments out of Proceeds Accounts 70
20.4 Cash Retention Requirement 72
20.5 Audit of Proceeds Accounts 72
20.6 Proceeds of Insurance Policies 72
20.7 Mining Unit Reserve Accounts 72
20.8 Mine Development Reserve Accounts 74
20.9 Debt Service Reserve Accounts 76
20.10 Interest on Bank Accounts 77
20.11 Responsibility of Agent 77
20.12 Nature of Bank Accounts 77
21. HEDGING ARRANGEMENTS 78
21.1 Limitation 78
21.2 Hedging 78
21.3 Security 78
21.4 Documents 79
21.5 Right of Hedging Counterparty to terminate 79
21.6 Right of Participants to terminate 79
21.7 Rights of Hedging Counterparty following termination of hedge 79
21.8 Rights generally 80
21.9 Term of undertakings 80
22. INTEREST ON OVERDUE AMOUNTS 80
22.1 Accrual and payment 80
22.2 Rate 80
23. FEES 81
23.1 Commitment fees 81
23.2 Front End Fee 81
23.3 Agency Fee 81
23.4 Security Trustee Fee 81
24. INDEMNITIES 81
25. CURRENCY INDEMNITY 82
25.1 General 82
25.2 Liquidation 83
25.3 Reimbursement 83
26. CONTROL ACCOUNTS 83
27. EXPENSES 83
28. STAMP DUTIES, GST AND OTHER TAXES 84
28.1 Stamp Duty and other Taxes 84
28.2 GST 84
29. SET-OFF 85
30. WAIVERS, REMEDIES CUMULATIVE 85
31. SEVERABILITY OF PROVISIONS 85
32. SURVIVAL OF REPRESENTATIONS 85
Page (iv)
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
33. INDEMNITY AND REIMBURSEMENT OBLIGATIONS 86
34. MORATORIUM LEGISLATION 86
35. ASSIGNMENTS 86
35.1 Assignment by Borrowers 86
35.2 Assignment by Participants or the Working Capital Facility Provider 86
35.3 Consent of Borrowers 86
35.4 Substitution certificates 87
35.5 Disclosure 87
35.6 No increased costs 87
35.7 Assignment by Reference Bank 88
36. RELATIONSHIP OF PARTICIPANTS TO AGENT AND SECURITY TRUSTEE 88
36.1 Authority 88
36.2 Instructions; extent of discretion 88
36.3 No obligation to investigate authority 88
36.4 Agent and Security Trustee not fiduciaries 89
36.5 No liability 89
36.6 Delegation 89
36.7 Reliance on documents and experts 89
36.8 Notice of transfer 89
36.9 Notice of default 89
36.10 Agent and Security Trustee as Participant and banker 90
36.11 Indemnity to Agent and Security Trustee 90
36.12 Independent investigation of credit 90
36.13 No monitoring 90
36.14 Information 91
36.15 Replacement of Agent and Security Trustee 91
36.16 Amendment of Transaction Documents 92
36.17 No obligations 92
37. PROPORTIONATE SHARING 92
37.1 Sharing 92
37.2 Refusal to join in action 93
38. AGENT, BORROWER AND OPERATOR DEALINGS 93
39. CONFIDENTIALITY 93
39.1 Confidentiality 93
39.2 Permitted disclosure 94
39.3 Survival of obligation 94
40. NOTICES 94
41. AUTHORISED OFFICERS 95
42. GOVERNING LAW AND JURISDICTION 95
43. COUNTERPARTS 96
44. ACKNOWLEDGEMENT BY BORROWERS AND OPERATOR 96
45. CONSENTS AND OPINIONS 96
Page (v)
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
45.1 Discretion of Indemnified Parties 96
45.2 Limits on discretion 96
SCHEDULE 1 103
Participants 103
Borrowers 103
Sponsors 104
Agent and Operator 104
SCHEDULE 2 105
Facility Securities 105
Project Documents 105
SCHEDULE 3 106
Specified Information 106
ANNEXURE A 116
Drawdown Notice 116
ANNEXURE B 118
Selection Notice 118
ANNEXURE C 120
Verification Certificate 120
ANNEXURE D 122
Substitution Certificate ▇▇▇
▇▇▇▇▇▇▇▇ ▇ 125
Repayment Schedules 125
ANNEXURE F 126
Initial Budget 126
Page (vi)
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
DATE 2002
PARTIES
1. Each Company named in schedule 1 as a borrower (each a Borrower);
2. Glennies Creek Coal Management Pty Limited (ACN 097 768 093)
registered in New South Wales of ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ (the Operator);
3. Glennies Creek Coal Sales Pty Limited (ACN 080 537 033) registered in
New South Wales of ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ (the
Marketing Company);
4. Each Company named in schedule 1 as a sponsor (each a Sponsor);
5. Each Bank or Financial Institution named in schedule 1 as a
participant (each a Participant);
6. Australia and New Zealand Banking Group Limited (ABN 11 005 357 522)
of ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ (▇▇ this
capacity, the Working Capital Facility Provider)
7. Australia and New Zealand Banking Group Limited (ABN 11 005 357 522)
of ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ acting through
its investment banking division (in this capacity ANZ Investment Bank)
as arranger (the Arranger);
8. Australia and New Zealand Banking Group Limited (ABN 11 005 357 522)
of ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ as agent for the
Participants (the Agent); and
9. ANZ Capel Court Limited (ABN 30 004 768 807) of ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ as security trustee for the Participants
(the Security Trustee).
RECITAL
The Obligors have requested the Participants and the Working Capital
Facility Provider to provide the Borrowers with facilities under which
financial accommodation (with maximum amounts as set out in this
Agreement) may be made available to the Borrowers to assist in funding
the construction and development of the Project.
Page 1
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
IT IS AGREED as follows.
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
The following definitions apply unless the context requires otherwise.
Acceptable Letter of Credit means an irrevocable letter of credit on
terms and documentary conditions acceptable to the Participants for
the account of KMIC or Consol (and in respect of which a Borrower has
no liability whether relating to a counter-indemnity or otherwise)
issued in favour of the Security Trustee by a bank acceptable to the
Participants.
Accommodation Date means a Drawdown Date or a Selection Date.
Accounts means, in respect of any period and any Relevant Company, the
audited or unaudited (as applicable):
(a) balance sheet as at the end of that period;
(b) profit and loss statement for that period; and
(c) cash flow statement for that period,
of the Relevant Company provided, or to be provided, to the Agent
under this Agreement together with any statements, reports (including
any director's and auditors' reports) and notes attached to or
intended to be read with any of them.
Agency Fee means the agency fee referred to in the fee letter from the
Agent to the Borrowers dated on or about the date of this Agreement.
Approved Hedging Policy means the interest rate and foreign exchange
hedging policies to be adopted by the Borrowers and approved by the
Participants and the Working Capital Facility Provider before the
first Drawdown Date.
Associate in relation to an entity means:
(a) a Related Entity of that entity;
(b) an entity, or the trustee, manager or responsible entity of a
trust, which has a Controlling Interest in that entity;
(c) a Related Entity of an entity included in paragraph (b) or
(e);
(d) a director of that entity or of an entity included in
paragraph (a), (b) or (c) or of the manager or of the trustee
of any trust included in paragraph (a), (b) or (c) or a
spouse, child, parent or sibling of that director;
(e) a corporation, or the trustee or manager of a trust, in which
one or more entity or person mentioned in paragraph (a), (b),
(c), (d), (e), (f) or (g) alone or together has a Controlling
Interest;
(f) the trustee of a discretionary trust of which an entity or
person included in paragraph (a), (b), (c), (d), (e) or (g) is
a beneficiary (whether or not through one or more other
discretionary trusts); or
Page 2
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(g) an entity of which a director of that entity or a Related
Entity of that entity is also a director.
For the purposes of this definition:
(i) where a person is a beneficiary of a discretionary trust, that
person will be taken to own, and control, all the assets of
that trust;
(ii) director has the meaning given in the Corporations Act; and
(iii) a person has a Controlling Interest in a corporation or trust
if:
(A) the corporation or its directors, or the trustee or
manager of the trust or its directors, are accustomed,
or under an obligation, whether formal or informal, to
act in accordance with the directions, instructions or
wishes of that person or of that person in concert
with others; or
(B) the person has a relevant interest (as defined in the
Corporations Act) in total in more than 20% of the
issued or voting shares, units or other interests in
the corporation or trust (in number, voting power or
value), or would have that relevant interest if any
rights were exercised to subscribe for, or acquire or
convert into, shares, units or other interests which
are issued or unissued. The definition of relevant
interest applies as if units or other interests were
shares.
Australian Withholding Tax means Tax levied or imposed by a Government
Agency of or within the Commonwealth of Australia which is required to
be withheld or deducted from any payment of, or in the nature of,
interest to a Participant where its Lending Office is outside
Australia.
Authorisation includes:
(a) any consent, authorisation, registration, filing, lodgement,
agreement, notarisation, certificate, permission, licence,
approval, authority or exemption from, by or with a Government
Agency; or
(b) in relation to anything which will be fully or partly
prohibited or restricted by law if a Government Agency
intervenes or acts in any way within a specified period after
lodgement, filing, registration or notification, the expiry of
that period without intervention or action.
Authorised Officer means:
(a) in respect of a Borrower or the Operator, any director or
secretary, or any person from time to time nominated as an
Authorised Officer by the Borrower or the Operator by a notice
to the Agent accompanied by certified copies of signatures of
all new persons so appointed;
(b) in respect of the Agent, the Arranger, or a Participant, any
person whose title or acting title includes the word Manager,
Director or President or cognate expressions, or any secretary
or director; and
(c) in respect of the Security Trustee, any attorney or agent from
time to time of the Security Trustee whose terms of
appointment extend (either specifically or generally) to
representing the Security Trustee in connection with this
Agreement.
Availability Period means:
Page 3
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(a) for the Term Facility, the period commencing on the date of
this Agreement and ending on the Conversion Date;
(b) for the Contingency Facility, the period commencing on the
first date on which the Undrawn Commitment for the Term
Facility of each Participant is zero (other than by reason of
the cancellation in part or in whole of that Undrawn
Commitment) and ending on the Conversion Date;
(c) for the Mining Unit Facility, the period commencing on the
Conversion Date and ending on 30 September 2005,
or, if earlier, the date on which all the Commitments for the relevant
Facility are fully utilised or all the Undrawn Commitments for the
relevant Facility are cancelled, and
(d) for the Working Capital Facility, the period commencing on the
date of this Agreement and ending on the Repayment Date for
the Working Capital Facility or, if earlier, the date on which
all the Undrawn Commitments for the Working Capital Facility
are cancelled.
Bank Account means:
(a) a Proceeds Account;
(b) a Mining Unit Reserve Account;
(c) a Mining Development Reserve Account; or
(d) a Debt Service Reserve Account.
Base Case Model means the financial forecast for the Project produced
using the computer model referred to in clause 15.1(r).
BBR means:
(a) the rate (rounded upwards to 4 decimal places) determined by
the Agent as the average bid rate for the relevant Funding
Period quoted on Reuters page BBSY as near as practical to
10:15am (Melbourne time) on the first day of the Funding
Period; or
(b) if:
(i) for any reason that rate is not displayed for a term
equivalent to that Funding Period; or
(ii) the basis on which that rate is displayed is changed
and in the opinion of the Agent it ceases to reflect
the Working Capital Facility Provider's cost of
funding to the same extent as at the date of this
Agreement,
then BBR will be the rate determined by the Agent in good
faith to be the average of the buying rates quoted to the
Agent by the Reference Banks at or about that time on that
date. The buying rates must be for bills of exchange accepted
by an Australian bank selected by the Agent and which have a
term equivalent to the relevant Funding Period. If there are
no buying rates the rate will be the rate determined by the
Agent to be its cost of funds.
Borrower's Available Commitments means, in relation to a Borrower and
a Facility at any time, that Borrower's Portion of the Total
Commitments for that Facility at that time less (1) the Borrower's
Page 4
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Principal Outstanding for that Facility at that time, and (2) the
aggregate amount of those Total Commitments and that Principal
Outstanding which has been permanently cancelled or repaid in respect
of or by that Borrower at that time.
Borrower's Portion or Portion means, in relation to a Borrower, the
part (expressed as a percentage) provided or to be provided for the
account of that Borrower under this Agreement, of each Segment and of
the accommodation to be provided under this Agreement, and its
entitlement to such accommodation, being until reduced or increased by
prepayment, repayment or cancellation under this Agreement:
(a) in respect of MMC: 50%; and
(b) in respect of CEA: 50%.
Borrower's Principal Outstanding means:
(a) in relation to a Borrower and a Facility at any time, that
Borrower's Portion of the aggregate amount of the Segments
advanced under that Facility at that time less the aggregate
amount of those Segments which has been repaid or prepaid by
that Borrower at that time; and
(b) in relation to a Borrower and a Segment of the Working Capital
Facility at any time, that Borrower's Portion of that Segment
less the aggregate amount of that Segment which has been
repaid or prepaid by that Borrower at that time.
Budget means the Initial Budget and any subsequent "Budget" (as
defined in the Joint Venture Agreement) approved by the Operating
Committee of the Joint Venture pursuant to the Project Documents and
approved by the Agent (acting on the instructions of the Majority
Participants).
Business Day means a weekday on which:
(a) the relevant financial markets are open in London, Melbourne
and Sydney;
(b) (except for the purpose of determining LIBOR or an Exchange
Rate) banks are open in Melbourne and Sydney; and
(c) in the case of determining the length of a Funding Period or
where a payment is to be made, banks are open for business in
the principal financial centre of the currency of the relevant
Segment or payment.
Camberwell Coal Handling and Preparation Plant means the coal washing
plant and associated plant and infrastructure used for the washing and
loading onto rail of coal, more particularly identified in the CHPP
Tolling Agreement.
Cash Retention Requirement means an amount equal to the operating
costs (including mandatory capital expenditure) forecast to be
incurred by a Borrower (or the Operator on its behalf):
(a) at any time prior to the Conversion Date, in the succeeding 6
months as set out in the most recent Budget; and
(b) at any time on or after the Conversion Date, in the succeeding
3 months as set out in the most recent Budget.
Page 5
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Casualty Occurrence means:
(a) in the reasonable opinion of the Majority Participants, the
loss or loss of use of any Project Asset or a substantial part
of any Project Asset due to destruction or damage beyond
repair; or
(b) the suspension of normal operations or rendering unfit for
normal use (other than as a result of scheduled maintenance)
of any Project Asset or a substantial part of any Project
Asset for any other reason whatsoever for a period of greater
than 5 consecutive days.
CEA means Consol Energy Australia Pty Limited.
CFADS means, in respect of any Test Period, the notional after tax
cash flow for the Project for that Test Period (on a consolidated
basis assuming the then current Australian corporate tax rate is
applicable for all Borrowers) after all operating costs and capital
expenditure, but before Debt Service for that Test Period.
Charge means, in respect of each Borrower, the Deed of Charge between
that Borrower and the Agent dated on or about the date of this
Agreement under which, among other things, that Borrower charges all
its assets and undertaking to secure the Secured Money.
CHPP Tolling Agreement means the agreement so entitled dated 30
November 2001 between (1) Toyota Tsusho Mining (Australia) Pty
Limited, (2) Dia Coal Mining (Australia) Pty Limited, (3) Navidale Pty
Limited, (4) Camberwell Coal Pty Limited, (5) RHA Pastoral Company Pty
Limited, (6) ▇▇▇▇▇ ▇▇▇▇▇▇ Pty Limited, (7) MMC, (8) the Operator and
(9) CEA.
Collateral Security means any Security Interest, Guarantee or other
document or agreement at any time created or entered into as security
for any Secured Money.
Commitment in relation to a Participant and in relation to a Facility
means the amount against its name in column 3 of schedule 1 as reduced
or cancelled under this Agreement.
Consol means Consol Energy Inc.
Contingency Facility means the facility provided under clause
10.1(a)(ii).
Contractor means the Stage 1 Contractor or the Stage 2 Contractor.
Conversion Date means 31 March 2004.
Cross Charge means a cross charge granted or to be granted by a
Borrower in favour of the other Borrower and the Operator under the
Joint Venture Agreement.
Current Budget means, at any time, the Budget most recently approved
by the Agent at that time.
Debt Service means, in respect of any Test Period, the aggregate of
all interest, fees and expenses (including fees and expenses payable
under interest and foreign currency hedging arrangements), and
scheduled repayments of Principal Outstanding paid or payable in
respect of that Test Period.
Debt Service Reserve Account means a Debt Service Reserve Account
established under Clause 20.9.
Distribution means:
Page 6
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(a) any dividend, return of capital or other payment in respect of
any shares of a Borrower;
(b) any interest, principal, commission, costs, expenses or other
payment in respect of any loan to a Borrower by its Related
Entity; or
(c) any other payment to a Sponsor, a Related Entity of a Sponsor
or a Related Entity of a Borrower, other than any such payment
which is for Project Costs.
Drawdown Date means the date on which any accommodation under this
Agreement is or is to be drawn using any Undrawn Commitments.
Drawdown Notice means a notice under clause 5.
DSCR means, in respect of any Test Date, CFADS for the relevant Test
Period divided by the Debt Service for the relevant Test Period, as
calculated by the Borrowers and confirmed and finally determined by
the Agent (acting on the instructions of the Majority Participants).
Environmental Law means a provision of a law or a law, which relates
to an aspect of planning, the environment or health.
Environmental Licences means the following licences issued to the
Operator:
(a) Environmental Protection Licence No. 7622; and
(b) Water Licences Nos. 20SLO60229, 20SLO60339, 20SLO18779 and
20SLO51622.
Environmental Licence Mortgage means the mortgage of the Environmental
Licences to be granted by the Operator in favour of Security Trustee.
Event of Default means any of the events specified in clause 18.1 or
clause 18.2.
Exchange Rate with respect to Australian dollars on a date means the
Agent's spot rate of exchange as at 10am (Melbourne time) on that date
for the purchase of US dollars against that currency for value on the
second Business Day after that date.
Excluded Tax means a Tax imposed by a jurisdiction on the net income
of an Indemnified Party because the Indemnified Party has a connection
with that jurisdiction but not a Tax:
(a) calculated by reference to the gross amount of a payment under
a Transaction Document (without the allowance of a deduction);
or
(b) imposed because the Indemnified Party is taken to be connected
with that jurisdiction solely because it is party to a
Transaction Document or a transaction contemplated by a
Transaction Document.
Exploration Licence means exploration licence no 5824 granted to CEA
under the Mining Act.
Facility means the Term Facility, the Contingency Facility, the Mining
Unit Facility or the Working Capital Facility.
Facility Securities means the documents set out in Schedule 2.
FDSCR means, in respect of any Test Date, CFADS for the relevant Test
Period divided by Debt Service for the relevant Test Period, as
calculated by the Borrowers and confirmed and finally determined by
the Agent (acting on the instructions of the Majority Participants).
Page 7
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Finance Debt means, in relation to a person, the indebtedness, present
or future, actual or contingent, of that person in respect of moneys
borrowed or raised or any financial accommodation whatever (whether
subordinated or not), including:
(a) any amount payable by such person under a Finance Lease;
(b) indebtedness created, issued or assumed by such person
(i) for or in respect of moneys borrowed or raised;
(ii) evidenced by bonds, debentures, notes (including
convertible notes) or similar instruments; or
(iii) in connection with the taking of deposits;
(c) any Treasury Transaction;
(d) indebtedness created, incurred, issued or assumed by such
person for the deferred purchase price of property or services
(other than any such indebtedness which consists of trade
accounts payable arising in the ordinary course of business
and on terms requiring payment in full within no more than 90
days so long as such indebtedness is discharged in accordance
with such terms);
(e) obligations of such person under or in respect of:
(i) letters of credit, performance bonds, undertakings or
guarantees, avals, bid bonds, banker's undertakings,
insurance bonds or similar instruments issued to or to
the account of such person;
(ii) discounting arrangements or trade facilities (to the
extent that accommodation has been provided or
extended under such arrangements or facilities); or
(iii) drafts, bills, promissory notes, debentures or other
financial instruments (negotiable or otherwise) (other
than reliquification bills drawn by the person where
the person has an indemnity in respect thereof from a
financier endorsing or accepting the same);
(f) par value, premium and dividend (whether or not declared, and
whether or not there are sufficient profits or other moneys
for payment) of or on any redeemable or repurchaseable share
or stock; and
(g) any obligations to deliver property or services which are paid
for in advance by a financier or which are delivered in
advance in connection with any financing transaction.
A person shall be taken to have incurred Finance Debt, if that person
has given a Guarantee of any Finance Debt. The amount of the liability
of the person under any Guarantee shall equal the amount of the
Finance Debt supported or secured by that Guarantee. Rollovers under a
facility (including changes in the kind of Finance Debt where the
facility so permits or provides) will be taken not to be the incurring
by a person of Finance Debt except to the extent that it results in an
increase in the principal amount outstanding of such Finance Debt.
Finance Lease means a lease 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 (as determined in accordance with Approved Accounting
Standard ASRB 1008 (as amended or updated from time to time)).
Page 8
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Force Majeure means:
(a) earthquake, cyclone, storm, act of god, sabotage, act of a
public enemy, terrorism, war (declared or undeclared),
revolution or radioactive contamination;
(b) a strike or other industrial dispute which:
(i) affects generally coal mines in the Hunter Valley; and
(ii) was not caused by events, circumstances or conditions
occurring or obtaining at or in relation to the Mine
(other than events, circumstances or conditions
occurring or obtaining at or in relation to coal mines
in the Hunter Valley generally); or
(c) failure of suppliers to supply transport services, port
services, coal handling services, water, electricity or fuel
resulting from:
(i) a force majeure event of a kind referred to in
paragraphs (a) or (b) above; or
(ii) fire or flood occurring outside any area controlled or
occupied by a Borrower, a Shareholder, the Marketing
Company or the Operator,
in each case where the Operator is unable to procure
alternative suppliers despite using its best
endeavours to do so,
having an effect on the Project which the Operator could not have
prevented by taking those steps which a prudent, experienced and
competent operator would have taken.
Front End Fee means the front end fee referred to in the fee letter
from the Arranger to the Borrowers dated on or about the date of this
Agreement.
Funding Period means in relation to a Segment of:
(a) a Project Facility, a period for the fixing of interest rates
for the Segment which commences on the Drawdown Date of the
Segment or the last day of the preceding Funding Period of the
Segment (as appropriate) and has a duration selected under
clause 7; and
(b) the Working Capital Facility, the period which commences on
the Drawdown Date of the Segment and has a duration selected
under clause 7.
Government Agency means any government or any governmental,
semi-governmental or judicial entity or authority. It also includes
any self-regulatory organisation established under statute or any
stock exchange.
GST means any goods and services or similar tax as imposed by the GST
Law, together with any related interest, penalties, fines or other
charge.
GST Law has the meaning given to that term in A New Tax System (Goods
and Services Tax) ▇▇▇ ▇▇▇▇ as amended from time to time or, if that
Act does not exist for any reason, means any Act imposing or relating
to the imposition or administration of a goods and services or similar
tax in Australia and any regulation made under that Act.
Page 9
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Guarantee means any guarantee, indemnity, letter of credit, legally
binding letter of comfort or suretyship. It includes any other
obligation or irrevocable offer (whatever called and of whatever
nature):
(a) to pay or to purchase;
(b) to provide funds (whether by the advance of money, the
purchase of or subscription for shares or other securities,
the purchase of assets, rights or services, or otherwise) for
the payment or discharge of;
(c) to indemnify against the consequences of default in the
payment of; or
(d) to be responsible otherwise for,
an obligation or debt of another person, a dividend, distribution,
capital or premium on shares or other interests, or the solvency or
financial condition of another person.
Guaranteed Money means, in relation to a Sponsor, any Secured Money
which is or may become payable by its Relevant Borrower.
Hedging Arrangements means interest rate and foreign exchange hedging
arrangements entered into by a Borrower with a Hedging Counterparty
from time to time in accordance with clause 21.
Hedging Counterparty means:
(a) in relation to the Hedging Arrangements, to be entered into by
the Borrowers on or about the date of this Agreement,
Australia and New Zealand Banking Group Limited in the
capacity of hedging counterparty under those arrangements; and
(b) in relation to Hedging Arrangements to be entered into at any
other time after the date of this Agreement, any bank or
financial institution approved by the Agent and the Majority
Participants as hedging counterparty under those arrangements.
Hedging Termination Payment means any amount falling due from a
Borrower under a Hedging Arrangement as a direct result of the
termination of that Hedging Arrangement.
Indemnified Party means the Agent, the Security Trustee, the Arranger,
a Participant, the Working Capital Facility Provider or a Hedging
Counterparty
Initial Budget means the Budget set out in annexure F (which is the
current Budget at the date of this Agreement approved by the Joint
Venturers under the Joint Venture Agreement).
Input Tax Credit has the meaning given to that term by the GST Law.
Insurance Policy means each insurance policy from time to time
maintained in compliance with clause 17.
Intellectual Property means any intellectual or industrial property
including:
(a) a patent, trade ▇▇▇▇ or service ▇▇▇▇, copyright, registered
design, trade secret or confidential information; or
(b) a licence or other right to use or to grant the use of any of
the above or to be the registered proprietor or user of any of
the above.
Page 10
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Interest Expense means, in respect of any period, all interest and
amounts in the nature of interest or of similar effect to interest
payable by the Borrowers shown by the Accounts for that period
including:
(a) interest paid under the Facilities;
(b) any dividend or distribution paid on any share or stock
included as Finance Debt;
(c) the component of payments under any Finance Lease or Operating
Lease charged as expenses;
(d) the face amount of bills of exchange or other financial
instruments, other than Reliquefication Bills, drawn, issued,
endorsed or accepted by a Borrower less their net proceeds
after discount or issue and payment of any acceptance,
endorsement, underwriting or similar fee; and
(e) 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 Finance Debt but not:
(i) unused line or commitment fees; or
(ii) establishment, arrangement and other fees payable once
only on the initial provision of financial
accommodation.
Joint Accounts means the financial statements of the Joint Venture
prepared pursuant to the Joint Venture Agreement.
Joint Venture means the joint venture constituted between the
Borrowers under the Joint Venture Agreement.
Joint Venture Agreement means the Joint Venture Agreement between the
Borrowers dated 7 December 2001.
Joint Venture Assets has the same meaning as in the Joint Venture
Agreement.
Joint Venturer means a participant from time to time in the Joint
Venture.
Key Equipment means a material building, the continuous mining
equipment, the roof bolting equipment, the longwall mining equipment
or any other equipment located at the Mine or used for the Project
which is necessary for the normal operation of the Project and which
is not readily obtainable by purchase or lease in New South Wales.
KMIC means K-M Investment Corporation.
Law includes regulations, rules, court orders and official directives
and requests of Government Agencies (whether or not having the force
of law).
Lease means:
(a) any lease, charter, hire purchase or hiring arrangement of any
property (including a right to use Intellectual Property or a
franchise);
(b) an agreement under which property is or may be used or
operated by a person other than the owner; or
Page 11
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(c) an agreement or arrangement under which property is or may be
managed or operated by a person other than the owner, and the
operator or manager or its Related Entity or Associate
(whether in the same or another agreement or arrangement) is
required to make or assure minimum, fixed or floating rate
payments of a periodic nature,
(other than an agreement under which the manager of a joint venture
uses assets owned by the joint venturers on behalf of the joint
venture). It includes a Finance Lease.
Lending Office of a Participant or the Working Capital Facility
Provider means the office of that Participant or the Working Capital
Facility Provider against its name in column 2 of schedule 1 or
another office designated by it as a Lending Office for the purpose of
this Agreement by notice to the Agent and the Borrower.
LIBOR, in relation to a Funding Period, means:
(a) the rate determined by the Agent in good faith as the rate per
annum (rounded upwards to 4 decimal places) of offered rates
appearing in the column headed "USD" on page LIBOR01 of the
Reuters screen for deposit of US Dollars in the London
Interbank Market at or about 11:00am London time for a term
approximately equivalent to such Funding Period for the value
date which is two Business Days preceding the first day of
that Funding Period; or
(b) if the rate referred to in (a) is not available, the rate
determined by the Agent in good faith as the rate per annum
(rounded upwards to 4 decimal places) of offered rates for
deposits in US dollars in the London Interbank Market which
appears on the Reuters Screen ISDA Page at or about 11:00am
London time for a term approximately equivalent to such
Funding Period for the value date which is two Business Days
preceding the first day of that Funding Period; or
(c) if the rates referred to in (a) and (b) are not available, the
rate determined by the Agent in good faith as the rate per
annum (rounded upwards to 4 decimal places) of the arithmetic
mean of the offered rates for deposits in US dollars in the
London Interbank Market which appears on the Reuters screen
LIBO Page at or about 11:00am London time for a term
approximately equivalent to such Funding Period for the value
date which is two Business Days preceding the first day of
that Funding Period (provided that at least two such rates
appear on the Reuters screen LIBO Page at that time); or
(d) if the rates referred to in (a), (b) and (c) are not
available, there are no rates displayed for a period
approximately equivalent to the Funding Period selected, or a
Participant holding Commitments in respect of a Project
Facility informs the Agent that those rates cease to reflect
its cost of funding, then LIBOR shall be the rate determined
by the Agent in good faith to be the average of the rates
quoted to it by at least two of the Reference Banks at or
about 11:00am at the Agent's place of business two Business
Days before the commencement of that Funding Period for the
making of deposits in US Dollars with the Reference Banks for
a term comparable to that Funding Period. The average will be
rounded upwards, if necessary, to four decimal places. The
rate for that Funding Period will be the arithmetic mean of
the quotations; or
Page 12
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(e) If none of the rates referred to in (a), (b), (c) or (d) are
available, LIBOR shall be the weighted average of the
Participants' cost of funds.
Liquidation includes receivership, compromise, arrangement,
amalgamation, administration, reconstruction, winding up, dissolution,
assignment for the benefit of creditors or bankruptcy.
LLCR means, in respect of any Test Date, the net present value of the
expected notional after tax cash flow for the Joint Venture for the
Test Period (on a consolidated basis assuming the then current
Australian corporate tax rate is applicable to all Borrowers) after
all budgeted operating costs and capital expenditure (but before Debt
Service) divided by the Principal Outstanding under the Term Facility
at that Test Date, as calculated by the Borrowers and confirmed and
finally determined by the Agent (acting on the instructions of the
Majority Participants). In determining net present value for purposes
of this definition, the discount rate to be used will be the interest
rate applicable to the Term Facility at that Test Date determined in
accordance with clause 10.3.
Majority Participants has the meaning given to it in clause 1.3.
Margin means, in relation to:
(a) the Term Facility:
(i) until the Conversion Date, 1.75% p.a.;
(ii) from 1 April 2004 until 30 September 2005, 1.50% p.a.;
and
(iii) from 1 October 2005, 1.75% p.a.;
(b) the Contingency Facility, 1.75% p.a.;
(c) the Mining Unit Facility, 1.75% p.a.; and
(d) the Working Capital Facility, 1.50% p.a.
Marketable Security has the meaning given in the Corporations Act, but
also includes:
(a) anything referred to in the exceptions to the definition of
debenture in the Corporations Act;
(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) when used in relation to a Borrower or, prior to its release
pursuant to clause 19.15, a Sponsor, a material adverse effect
on the ability of the Borrower or Sponsor, as the case may be,
to perform its obligations under a Transaction Document or on
the value, priority or enforceability of any of the Facility
Securities granted as security for the payment by the Borrower
of the Secured Money payable by it or by the Sponsor of its
Guaranteed Money, as the case may be, or on the financial
condition or business of the Borrower or Sponsor, as the case
may be;
Page 13
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(b) when used in relation to a Relevant Company that is not a
Borrower, a material adverse effect on the ability of the
Relevant Company to perform its obligations under a
Transaction Document, on the value, priority or enforceability
of any of the Facility Securities granted by it, or on the
financial condition or business of the Relevant Company; and
(c) when used in relation to the Project, a material adverse
effect on the economic or technical viability of the Project
or the Mine or a material part thereof.
MDR Balance means in respect of a Borrower at any time the aggregate
of:
(a) the balance standing to the credit of that Borrower's Mine
Development Reserve Account at that time; and
(b) the aggregate at that time of the amounts of any MDR Letters
of Credit available to be called by the Security Trustee for
that Borrower.
MDR Letter of Credit means an Acceptable Letter of Credit which is
callable by the Security Trustee in the manner described in clause
20.8(d) and (f) and following an Event of Default.
Mine means the coal mine which utilises the Mining Leases and is known
as the Glennies Creek Coal Mine.
Mine Development Reserve Account means a Mining Development Reserve
Account established under clause 20.8.
Mining Act means the Mining Act, 1992 (NSW).
Mining Leases means coal lease number 382 and mining lease number 1437
granted to the Borrowers under the Mining Act.
Mining Tenement Mortgage means, in respect of each Borrower, the
mortgage of the Mining Leases held by that Borrower and, in the case
only of CEA, the Exploration Licence in each case to be granted by
that Borrower in favour of the Security Trustee.
Mining Unit Facility means the facility provided under clause
10.1(a)(iii).
Mining Unit Reserve Account means a Mining Unit Reserve Account
established under clause 20.7.
MMC means Maitland Main Collieries Pty Limited.
Mortgaged Property means the property mortgaged or charged by the
Charge or any Collateral Security.
MUR Balance means in respect of a Borrower at any time the aggregate
of:
(a) the balance standing to the credit of that Borrower's Mining
Unit Reserve Account at that time; and
(b) the aggregate at that time of the amounts of any MUR Letters
of Credit available to be called by the Security Trustee for
that Borrower.
Page 14
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
MUR Letter of Credit means an Acceptable Letter of Credit which is
callable by the Security Trustee in the manner described in clause
20.7(d) and (f) and following an Event of Default.
Notices of Charge means the notices of charge signed by the Operator
(whether in its own right or on behalf of the Borrowers) and each
Contractor.
Notional Project Taxes means all income and other Taxes which would
notionally be payable by the Joint Venture:
(a) if it were a taxpayer with no deductions other than those
directly referrable to the Project, and
(b) if it did not form part of a corporate group.
Obligor means a Borrower and, at any time prior to the Sponsor Release
Date, a Sponsor.
Operating Committee means the committee established under the Joint
Venture Agreement to exercise overall supervision and control of the
Joint Venture.
Operating Lease means a Lease other than a Finance Lease.
Participant includes, for purposes only of:
(a) calculating "Majority Participants" under clause 1.3; and
(b) clauses 36, 37, 39 and 40,
the Working Capital Facility Provider.
Participating Interest, with respect to a Borrower, has the meaning
given to the term Percentage Share in the Joint Venture Agreement. As
at the date of this Agreement, each Borrower's Participating Interest
is as follows:
(a) CEA, as to 50%;
(b) MMC, as to 50%.
PCDC means the Permitted Chargee's Deed of Covenant between the
Borrowers, the Operator and the Agent dated on or about the date of
this Agreement.
Permitted Debt means:
(a) Finance Debt incurred by a Borrower under the Transaction
Documents; or
(b) money advanced to a Borrower by its Relevant Sponsor or
Ultimate Holding Company that is subordinated to Finance Debt
referred to in paragraph (a) to the satisfaction of the Agent.
Potential Close Out Amount means, in respect of any date and any
Participant who is a Hedging Counterparty, the amount which will be
owed to that Participant under its Hedging Arrangements if those
Hedging Arrangements are closed out on that date.
Potential Event of Default means anything which with notice, time or
both would become an Event of Default.
Page 15
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Principal Outstanding means, in relation to a Facility, the total
principal amount of all outstanding Segments for that Facility.
Proceeds Account means a Proceeds Account established under clause
20.1.
Program means a Program approved by the Operating Committee of the
Joint Venture pursuant to the Project Documents and approved by the
Agent.
Project means the development (including by the completion of the
Stage 1 Works and the Stage 2 Works), operation and exploitation of
the Mine by the Joint Venture pursuant to the Joint Venture Agreement.
Project Asset means any asset used by a Relevant Company in connection
with the Project, whether located at the Mine or elsewhere, and
includes the Joint Venture Assets as defined in the Joint Venture
Agreement.
Project Costs means all costs, expenses and liabilities which are
included in the Initial Budget (or any subsequent Budget) and are
accrued, paid or payable by a Borrower in respect of operating and
maintenance costs for the purposes of the Project, including insurance
premia, royalties, legally imposed cash reserves and other similar
obligations (but excluding Works Costs).
Project Documents means all documents and agreements evidencing or
relating to the Project, its operations, or the arrangements between
the Borrowers, including:
(a) the documents and agreements specified as Project Documents in
schedule 2;
(b) any document material to the Project which the Agent by
written notice to the Operator designates as a Project
Document; and
(c) any other document or agreement entered into or provided under
or in connection with, or for the purpose of amending or
novating, any of the above,
but excluding the Transaction Documents or the Works Document.
Project Document Counterparties means the persons other than the
Relevant Companies who are party to the Project Documents.
Project Facility means the Term Facility, the Contingency Facility or
the Mining Unit Facility .
Project Taxes means all Taxes which are payable by the Operator in
respect of the operation, exploitation or development of the Project.
Real Property means the land comprised in each of the following
titles:
(a) ▇▇▇ ▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇;
(b) ▇▇▇ ▇, ▇, ▇ ▇▇▇ ▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇;
(c) ▇▇▇ ▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇;
(d) ▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇;
(e) ▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇;
Page 16
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(f) ▇▇▇ ▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇;
(g) ▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇;
(h) ▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇;
(i) ▇▇▇ ▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇; and
(j) ▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇.
Real Property Mortgage means, in respect of each Borrower, the
mortgage of the Real Property to be granted by that Borrower in favour
of the Security Trustee.
Reference Banks means:
(a) for the purposes of determining BBR and for the purposes of
clause 35.7: any 3 of Australia and New Zealand Banking Group
Limited, Commonwealth Bank of Australia, National Australia
Bank Limited and Westpac Banking Corporation; and
(b) for the purposes of determining LIBOR: any 3 banks (2 of which
are not Participants or the Agent) chosen by the Agent that,
at the time LIBOR is to be determined under this Agreement,
quote rates for the column headed "USD" on page LIBOR01 of the
Reuters screen for deposits of US Dollars in the London
Interbank Market.
Related Entity means an entity which is related within the meaning of
s50 of the Corporations Act, but as if Subsidiary has the meaning
given in this Agreement and body corporate includes any entity
(including a trust).
Relevant Borrower means, for Consol, CEA, and for KMIC, MMC.
Relevant Company means:
(a) a Borrower;
(b) a Shareholder;
(c) the Marketing Company;
(d) the Operator; or
(e) another person who gives or creates a Collateral Security,
but excluding the Sponsors.
Relevant Document means a Transaction Document, a Project Document or
a Works Document.
Relevant Sponsor means for CEA, Consol, and for MMC, KMIC.
Reliquefication ▇▇▇▇ means a ▇▇▇▇ drawn under clause 11.
Repayment Date means:
(a) in respect of the Term Facility and the Mining Unit Facility,
each Test Date in the period from 31 March 2006 until 31 March
2009 (inclusive);
Page 17
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(b) in respect of the Contingency Facility, any day on which any
amounts are available to be paid under clause 20.3(h), and in
any case 31 March 2009; and
(c) in respect of the Working Capital Facility, the 30th day of
June following the date on which the conditions precedent in
Clause 15.1 are satisfied (or such other date as may be
agreed, from time to time by the Working Capital Facility
Provider under Clause 11.10).
Required DSRA Amount means, in respect of a Borrower:
(a) subject to paragraph (b), on any Test Date from (and
including) the Conversion Date until the Secured Money has
been fully and finally paid and repaid, an amount equal to
half of that Borrower's Portion of Debt Service in respect of
the Term Facility and the Mining Unit Facility projected and
estimated in the then Current Budget to be payable or
repayable by that Borrower for the succeeding period of 12
months from that date; provided that
(b) if on any Test Date after the end of the Availability Period
for the Mining Unit Facility:
(i) the aggregate Principal Outstanding for the Term
Facility and the Mining Unit Facility has been reduced
to 50% or less of the aggregate Principal Outstanding
for those Facilities as at the end of their respective
Availability Periods; and
(iii) that Borrower's MDR Balance is not less than its
Required MDR Amount; and
(iv) no Event of Default or Potential Event of Default is
subsisting,
then that Borrower's Required DSRA Amount on that date will be
an amount equal to half of that Borrower's Portion of Debt
Service in respect of the Term Facility and the Mining Unit
Facility projected and estimated in the then Current Budget to
be payable or repayable by that Borrower for the succeeding
period of 6 months from that date.
Required MDR Amount means, in respect of a Borrower on any Test Date
from (and including) the date which is 364 days prior to the
Conversion Date until the Secured Money has been fully and finally
paid and repaid, an amount equal to half of the capital costs (other
than capital costs in respect of the Stage 2 Works) projected and
estimated in the then Current Budget to be payable for the succeeding
period of 24 months from that Test Date.
Required MUR Amount means, in respect of a Borrower on any Test Date
from (and including) the Conversion Date until (and including) Stage 2
Works Completion, US$2,825,000; less:
(a) the aggregate amount of that Borrower's Available Commitments
for the Mining Unit Facility; and
(b) that Borrower's Portion of the aggregate amount which has been
applied towards the purchase and installation of the Stage 2
Works under the Stage 2 Works Contract at that Test Date.
RLCR means, in respect of any Test Date, the total quantity of
saleable coal (expressed in tonnes) which the Base Case Model
estimates as recoverable from the Mine during its life divided by the
total quantity of saleable coal (expressed in tonnes) which the Base
Case Model projects to be mined
Page 18
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
from the Mine prior to the final Repayment Date, as calculated by the
Borrowers and confirmed and finally determined by the Agent (acting on
the instructions of the Majority Participants).
Rollover Segment means a Segment or part of a Segment of the Working
Capital Facility which is requested to repay an outstanding Segment of
the Working Capital Facility on the last day of its Funding Period.
Sales Agreements means contracts for the sale of coal produced by the
Joint Venture to customers.
Same Day Funds means:
(a) for Australian dollars, immediately available funds;
(b) for US dollars, US dollar funds settled through the New York
Clearing House Interbank Payments System (or another manner of
payment in US dollars specified by the Agent to the Borrowers
and the Participants as being customary at the time for the
settlement of international transactions of the type
contemplated by this Agreement).
Secured Money means all money which a Borrower (whether alone or not)
is or at any time may become actually or contingently liable to pay to
or for the account of an Indemnified Party (whether alone or not) for
any reason whatever under or in connection with a Transaction
Document.
It includes money by way of principal, interest, fees, costs,
indemnities, charges, duties or expenses or payment of liquidated or
unliquidated damages under or in connection with a Transaction
Document, or as a result of a breach of or default under or in
connection with a Transaction Document.
Where a Borrower would have been liable but for its Liquidation, it
will be taken still to be liable.
Security Interest includes any mortgage, pledge, lien or charge, any
security or preferential interest or arrangement of any kind or
anything which gives a creditor priority to other creditors with
respect to any asset. It includes any title retention, sale and
leaseback, Finance Lease, sale and repurchase or deferred purchase
arrangement and the discounting and factoring of receivables on
recourse terms, deposit by way of security or any other preferential
arrangement with a creditor.
Security Trustee Fee means the security trustee fee referred to in the
fee letter from the Security Trustee to the Borrowers dated on or
about the date of this Agreement.
Segment means each portion of the accommodation made available under a
Facility which is denominated in the same currency and has the same
Funding Period and Selection Date.
Selection Date means the last day of a Funding Period.
Selection Notice means a notice under clause 6.
Share of a Participant, in respect of a Segment, means the proportion
of that Participant's participation in that Segment to the amount of
the Segment. That proportion will be determined under clause 2.2.
Shareholder means ▇▇▇▇▇ ▇▇▇▇▇▇ Pty Limited, in respect of the shares
in MMC and CNX Australia Pty Limited, in respect of the shares in CEA.
Page 19
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Share Mortgage means the share mortgages dated on or about the date of
this Agreement between the Security Trustee and:
(a) ▇▇▇▇▇ ▇▇▇▇▇▇ Pty Ltd in respect of the shares in MMC; and
(b) CNX Australia Pty Limited in respect of the shares in CEA.
Specified Information means the information and other documents set
out in schedule 3.
Sponsor Guarantee means the guarantee by the Sponsors of the Secured
Money in clause 19.
Sponsors means Consol and KMIC and Sponsor means either of them.
Sponsor Release Date means the date on which the last to be satisfied
of the following conditions is satisfied:
(a) Stage 1 Works Completion has occurred;
(b) all agreements are in place (and all necessary Authorisations
have been obtained) for the Stage 2 upgrade of the Camberwell
Coal Handling and Preparation Plant, including agreements
between the Borrowers and Camberwell Coal Pty Limited;
(c) Sales Agreements are in place, in terms satisfactory to the
Participants, for the sale of the planned production from the
Mine (as determined by reference to the Base Case Model) for
the ensuing twelve months in accordance with marketing
arrangements which satisfy the requirements of clause 17.2(t);
and
(d) the Conversion Date has occurred.
Stage 1 Contractor means DBT Australia Pty Limited (ACN 001 253 470).
Stage 1 Works means the design, construction, acquisition and
installation of infrastructure upgrades for, and of longwall mining
equipment for the development of, the Mine to enable the extraction of
coal using the longwall mining equipment including:
(a) the development of gate roads;
(b) the development of main road ways;
(c) the sourcing of mobile equipment which would include one
continuous miner with appropriate roof bolting capability
(either on board or as a separate rig) and two load haul dump
machines;
(d) the extension of conveyor system underground to the surface
stockpile;
(e) the installation of additional infrastructure for power and
water supply;
(f) the installation of a ventilation system for air supply; and
(g) the acquisition, installation and commissioning of the
longwall mining equipment.
Stage 1 Works Completion means the date when the Agent is advised by
the Technical Adviser that all of the following has occurred:
(a) all commissioning tests in respect of the Stage 1 Works have
been satisfied;
(b) the Mine is capable of extracting coal at a rate consistent
with the Base Case Model; and
Page 20
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(c) the coal extracted from the Mine conforms to the
specifications set out in the Base Case Model.
Stage 1 Works Contract means the contract to be entered into between
the Borrowers and the Stage 1 Contractor for the supply of the
longwall mining equipment.
Stage 2 Contractor means one or more reputable third party contractors
acceptable to the Agent (acting reasonably).
Stage 2 Works means the design, construction, acquisition and
installation of an extension to the longwall mining unit for the Mine
under the Stage 2 Works Contract and associated infrastructure
upgrades and related works including the extension of infrastructure
and services, conveyor system, power and water supply, ventilation and
air supply and the development of road ways.
Stage 2 Works Completion means the date when the Agent is advised by
the Technical Adviser that all of the following has occurred:
(a) all commissioning tests in respect of the Stage 2 Works have
been satisfied;
(b) the Mine is capable of extracting coal at a rate consistent
with the Base Case Model; and
(c) the coal extracted from the Mine conforms to the
specifications set out in the Base Case Model.
Stage 2 Works Contract means a contract or contracts for some or all
of the Stage 2 Works to be entered into by the Borrowers and the Stage
2 Contractor on terms acceptable to the Agent (acting reasonably) in
accordance with clause 17.2.
Subsidiary has the meaning given in the Corporations Act, but an
entity will also be taken to be a Subsidiary of an entity if it is
controlled by that entity (expressions used in this paragraph have the
meanings given for the purposes of chapter 2M of the Corporations Act)
and, without limitation:
(a) a trust may be a Subsidiary, for the purposes of which a unit
or other beneficial interest will be regarded as a share; and
(b) an entity may be a Subsidiary of a trust if it would have been
a Subsidiary if that trust were a corporation.
Tax includes any tax, levy, impost, deduction, charge, rate, duty,
compulsory loan or withholding which is levied or imposed by a
Government Agency, and any related interest, penalty, charge, fee or
other amount and any amount in respect of GST incurred by any
Indemnified Party directly in connection with this Agreement to
acquire anything for which that Indemnified Party is not entitled to
an Input Tax Credit for GST purposes.
Technical Adviser means International Mining Consultants Pty Limited
or such other person as the Agent and the Borrowers may agree.
Tenements means the Mining Leases and the Exploration Licence.
Term Facility means the facility provided under clause 10.1(a)(i).
Test Date means 31 March and 30 September in each year.
Test Period means, in relation to a Test Date,:
Page 21
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(a) when used in the definition of DSCR, the period of twelve
months ending on that Test Date;
(b) when used in the definition of FDSCR, the period of twelve
months commencing on the day after that Test Date;
(c) when used in the definition of LLCR, the period from the day
after the immediately preceding Test Date until the last
Repayment Date.
Total Commitments means, in relation to a Facility, the aggregate of
the Participants' Commitments for that Facility.
Total Undrawn Commitments means, in relation to a Facility, the
aggregate of the Participants' Undrawn Commitments for that Facility.
Transaction Document means all documents and agreements evidencing or
relating to the financing arrangements provided for in this Agreement
including:
(a) this Agreement;
(b) the Facility Securities;
(c) any Collateral Security;
(d) the PCDC;
(e) any Notice of Charge;
(f) any Hedging Arrangement;
(g) any document material to the financing arrangements provided
for in this Agreement which the Agent by written notice to the
Borrowers designates as a Transaction Document; and
(h) any other document or agreement entered into or provided under
or in connection with, or for the purpose of amending or
novating, any of the above,
but excluding the Project Documents and the Works Documents.
Treasury Transaction means a swap, hedge arrangement, option, forward
sale or purchase or repurchase agreement, cap, collar, floor, forward
rate agreement, arbitrage transaction, futures contract or any other
treasury or analogous transaction (whether or not constituting a
combination or variation of any of the foregoing).
Ultimate Holding Company has the meaning given to it in the
Corporations Act.
Undrawn Commitment means, in relation to a Facility, a Participant's
Commitment for that Facility less its aggregate Shares of all
outstanding Segments for that Facility.
Working Capital Facility means the facility provided under clause
11.1.
Works means the Stage 1 Works and the Stage 2 Works.
Works Completion means the date on which Stage 1 Works Completion or
Stage 2 Works Completion has occurred.
Page 22
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Works Costs means all costs, expenses and liabilities of a capital
nature which are included in the Base Case Model and are accrued, paid
or payable by a Borrower prior to Works Completion in respect of the
Stage 1 Works or the Stage 2 Works as applicable.
Works Documents means all documents and agreements for or otherwise
relating to the Works, including:
(a) the Stage 1 Works Contract;
(b) the Stage 2 Works Contract;
(c) any document material to the Works which the Agent by written
notice to the Borrowers designates as a Works Document; and
(d) any other document or agreement entered into or provided under
or in connection with, or for the purpose of amending or
novating, any of the above, but excluding a Project Document
or a Transaction Document.
1.2 INTERPRETATION
Headings are for convenience only and do not affect interpretation.
The following rules apply unless the context requires otherwise.
(a) The singular includes the plural and the converse.
(b) A gender includes all genders.
(c) Where a word or phrase is defined, its other grammatical forms
have a corresponding meaning.
(d) A reference to a person, corporation, trust, partnership,
unincorporated body or other entity includes any of them.
(e) A reference to a clause, annexure or schedule is a reference
to a clause of, or annexure or schedule to, this Agreement.
(f) A reference to a party to this Agreement or another agreement
or document includes the party's successors and permitted
substitutes or assigns.
(g) A reference to legislation or to a provision of legislation
includes a modification or re-enactment of it, a legislative
provision substituted for it and a regulation or statutory
instrument issued under it.
(h) A reference to writing includes a facsimile transmission and
any means of reproducing words in a tangible and permanently
visible form.
(i) A reference to conduct includes an omission, statement or
undertaking, whether or not in writing.
(j) Mentioning anything after include, includes or including does
not limit what else might be included.
(k) A reference to an asset includes any real or personal, present
or future, tangible or intangible property or asset (including
Intellectual Property) and any right, interest, revenue or
benefit in, under or derived from the property or asset.
Page 23
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(l) An Event of Default subsists until it has been remedied or
waived in writing by the Agent acting on the instructions of
the Majority Participants.
(m) A reference to an amount for which a person is contingently
liable includes an amount which that person may become
actually or contingently liable to pay if a contingency
occurs, whether or not that liability will actually arise.
(n) Unless otherwise set out in this Agreement, all references to
time are to Melbourne time.
1.3 MAJORITY PARTICIPANTS
For the purpose of this Agreement, Majority Participants means:
(a) during an Availability Period, Participants whose:
(i) Commitments (or, if an Event of Default subsists,
share of the Secured Money); and
(ii) Potential Close Out Amounts
(converted, if not denominated into US dollars, into US
dollars at the Exchange Rates on the date on which the
calculation is required to be made) in aggregate exceed 66% of
the sum of all Commitments together with the total Potential
Close Out Amounts of all Participants; or
(b) after all Availability Periods have ended, Participants whose:
(i) Shares of the Principal Outstanding (or, if an Event
of Default subsists, share of the Secured Money); and
(ii) Potential Close Out Amounts,
(converted, if not denominated into US dollars, into US
dollars at the Exchange Rates on the date on which the
calculation is required to be made) in aggregate exceeds 66%
of the Principal Outstanding together with all Potential Close
-Out Amounts.
In determining the Majority Participants the Agent may rely on a
certificate from an Authorised Officer of a Hedging Counterparty as to
the Potential Close Out Amount of that Hedging Counterparty.
1.4 DETERMINATION, STATEMENT AND CERTIFICATE
Except where otherwise provided in this Agreement any determination,
statement or certificate by the Agent or any Participant or an
Authorised Officer of the Agent or any Participant provided for in
this Agreement is conclusive. It binds the parties in the absence of
manifest error.
1.5 DOCUMENT OR AGREEMENT
A reference to:
(a) an agreement includes a Security Interest, Guarantee,
undertaking, deed, agreement or legally enforceable
arrangement whether or not in writing; and
(b) a document includes an agreement (as so defined) in writing or
a certificate, notice, instrument or document.
Page 24
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
A reference to a specific agreement or document includes it as
amended, novated, supplemented or replaced from time to time, except
to the extent prohibited by this Agreement.
1.6 REPAYMENT AND PREPAYMENT
A reference to repayment or prepayment of all or part of a Segment of
a Project Facility, is to payment to the Agent in US dollars of the
relevant amount
1.7 LISTING REQUIREMENTS INCLUDED AS LAW
A listing rule or business rule of a stock exchange (as defined in
s761A of the Corporations Act) will be regarded as a Law.
1.8 TRUST
Unless the context requires otherwise, a reference to a transaction,
asset, act or liability of any nature of a Borrower includes its
transactions, assets, acts or liabilities as trustee. Where a Borrower
which is a trustee incurs an obligation, it incurs that obligation
both in its own right and in its capacity as trustee, unless the
obligation relates only to an asset which it holds in its own right
and not as trustee.
1.9 CURRENT ACCOUNTING PRACTICE
A reference to current accounting practice is to accounting principles
and practices applying by law or otherwise generally accepted in
Australia, consistently applied. A reference to an accounting term is
to be interpreted according to those principles and practices.
1.10 LOCK-UP
At any Test Date (the Relevant Test Date), Lock-Up will be taken to be
in effect if:
(a) either:
(i) DSCR is below 1.50 on the Relevant Test Date; or
(ii) on the immediately preceding Test Date, DSCR was below
1.50 ; or
(b) either:
(i) FDSCR is below 1.50 on the Relevant Test Date; or
(ii) on the immediately preceding Test Date, FDSCR was
below 1.50; or
(c) either:
(i) LLCR is below 1.50 on the Relevant Test Date; or
(ii) on the immediately preceding Test Date, LLCR was below
1.50; or
(d) either:
(i) RLCR is below 1.80 on the Relevant Test Date; or
(ii) on the immediately preceding Test Date, RLCR was below
1.80; or
(e) any amounts are owing under the Contingency Facility on the
Relevant Test Date.
Page 25
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
2. COMMITMENTS
2.1 COMMITMENTS
Subject to this Agreement:
(a) each Participant agrees with the Borrowers to make available
its participation in each Segment of each Project Facility
severally in the respective Portions of each Borrower; and
(b) the Working Capital Facility Provider will make available the
Working Capital Facility severally in the respective Portions
of each Borrower.
2.2 ALLOCATION AMONG PARTICIPANTS
Each Participant shall participate in each Segment of a Project
Facility ratably according to its Commitment for that Facility.
2.3 OBLIGATIONS OF PARTICIPANTS SEVERAL
The obligations and rights of each Participant and the Working Capital
Facility Provider under this Agreement are several and:
(a) failure of a Participant or the Working Capital Facility
Provider to carry out its obligations does not relieve any
other Participant of its obligations;
(b) no Participant or the Working Capital Facility Provider is
responsible for the obligations of any other Participant or
the Working Capital Facility Provider or the Agent; and
(c) subject to the Transaction Documents each Participant and the
Working Capital Facility Provider may separately enforce its
rights under any Transaction Document.
2.4 OBLIGATIONS OF BORROWERS SEVERAL
(a) Notwithstanding any other provision in any of the Transaction
Documents (including any provision expressed to apply
notwithstanding any other provision in any of the Transaction
Documents):
(i) the rights obligations and liabilities of the
Borrowers under or arising out this Agreement are
several in proportion to their respective Portions;
(ii) a Borrower is not obliged to pay any moneys that are
or may become payable to an Indemnified Party by the
other Borrower; and
(iii) a Borrower has no liability to any Indemnified Party
for or in respect of any loss, costs or expense
incurred by any Indemnified Party by reason or in
consequence of the other Borrower failing to pay any
moneys which are or may become payable by that other
Borrower to any Indemnified Party.
(b) All drawings, selections of Funding Periods and other
elections and actions in relation to the Facilities (other
than the making of any payment and other than where this
Agreement contemplates a Borrower making an election alone)
must be, and can only be:
(i) made jointly and uniformly by the Borrowers (in
proportion to their respective Borrower's Portions);
and
(ii) made on their behalf by the Operator.
Page 26
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(c) Each Borrower confirms that the Indemnified Parties can rely
conclusively on any Drawdown Notice, Selection Notice,
cancellation notice or other notice or communication (other
than any notice or communication directly relating to the
making of any payment by the Borrower) purporting to be made
on its behalf by the Operator as being authorised and binding
on each of them.
(d) Except as otherwise provided in this Agreement, all amounts to
be paid by a Borrower under this Agreement (including
repayments and prepayments) shall be paid by the Borrower to
the Agent in accordance with clause 12.
3. CANCELLATION OF COMMITMENTS
3.1 AT END OF AVAILABILITY PERIOD
At 4:00 pm (Melbourne time) on the last day of the Availability Period
for a Facility, the Undrawn Commitments of the Participants and the
Working Capital Facility Provider in respect of that Facility will be
cancelled.
3.2 REDUCTION ON REPAYMENT OR PREPAYMENT
On any repayment under clause 8 (Repayment) or any prepayment of all
or part of the Principal Outstanding for a Project Facility the
Commitments for that Project Facility will be reduced by an amount
equal to the amount so repaid or prepaid.
3.3 VOLUNTARY CANCELLATION OF UNDRAWN COMMITMENTS
The Undrawn Commitments in respect of the Facilities may be
permanently cancelled at the request of the Operator (on behalf of the
Borrowers) if:
(a) the Operator's request is approved by the Majority
Participants and the Working Capital Facility Provider which
approval shall not be unreasonably withheld if the
requirements of paragraph (b) are satisfied; and
(b) the Operator and each Borrower provides the Agent with a
written statement setting out details of sources and
application of funds through to Works Completion and
confirming that there will be sufficient funds for the
completion of the construction and development of the Project.
4. PURPOSE
4.1 PURPOSE
The Borrowers shall use the net proceeds of all accommodation provided
under this Agreement for the purposes set out in this clause and for
no other purpose.
4.2 TERM FACILITY
The Term Facility is to be made available to the Borrowers for the
following purposes:
(a) the financing of Works Costs relating to the Stage 1 Works
prior to Stage 1 Works Completion and other capital
expenditure included in a Budget;
Page 27
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(b) interest on the Term Facility during the Availability Period
for the Term Facility; and
(c) financing fees and expenses incurred under the Transaction
Documents.
4.3 CONTINGENCY FACILITY
The Contingency Facility is to be made available to the Borrowers if
required after utilisation of the Term Facility for the following
purposes:
(a) the financing of Project Costs prior to Stage 1 Works
Completion; and
(b) interest on the Term Facility and the Contingency Facility
during the Availability Period for the Contingency Facility.
4.4 MINING UNIT FACILITY
The Mining Unit Facility is to be made available to the Borrowers for
the purpose of financing Works Costs relating to the Stage 2 Works.
4.5 WORKING CAPITAL FACILITY
The Working Capital Facility is to be made available to the Borrowers
for the purpose of financing the general working capital requirements
of the Joint Venture and, during the Availability Period for the
Working Capital Facility, to repay all or part of a Segment of the
Working Capital Facility on the last day of its Funding Period but
excluding:
(a) repayment of principal under any other Facility,
(b) payment of interest under any other Facility, or
(c) payment of other financing fees or expenses under any
Facility.
5. DRAWDOWN NOTICES
5.1 WHEN NOTICE TO BE GIVEN
Whenever the Borrowers wish to make a drawing using any of the Undrawn
Commitments for a Facility, the Operator, on behalf of the Borrowers,
shall give to the Agent an irrevocable Drawdown Notice substantially
in the form of annexure A. That Drawdown Notice:
(a) must be received by the Agent by 11 am (Melbourne time) 3
Business Days or, in the case of the Working Capital Facility,
1 Business Day before the proposed Drawdown Date (which must
be a Business Day);
(b) must be accompanied by evidence satisfactory to the Agent that
the drawing is required to meet a relevant purpose as set out
in clause 4;
(c) must specify a Drawdown Date which falls within the
Availability Period for the relevant Facility;
(d) must specify an amount which is not more than the Total
Undrawn Commitments for the relevant Facility; and
(e) will, on receipt by the Agent, oblige the Borrowers to borrow
the amount requested on the Drawdown Date specified upon the
terms and subject to the conditions of this Agreement.
Page 28
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
5.2 NOTIFICATION OF PARTICIPANTS
The Agent shall give prompt notice to each Participant or the Working
Capital Facility Provider (as appropriate) of the contents of each
Drawdown Notice and, in the case of the Project Facilities, the amount
of each Participant's Share of each Segment requested.
6. SELECTION NOTICE
6.1 WHEN NOTICE TO BE GIVEN
By 11 am (Melbourne time) 3 Business Days before the last day of each
Funding Period for each Segment of a Project Facility the Operator
shall, on behalf of the Borrowers, give to the Agent an irrevocable
Selection Notice specifying the amount of the relevant Segment as
originally drawn unless the Borrowers are obliged to repay or prepay
the relevant Segment on that last day in accordance with this
Agreement. The Selection Notice must be substantially in the form of
annexure B.
6.2 FAILURE TO GIVE SELECTION NOTICE
If the Operator fails to give a Selection Notice in accordance with
clause 6.1 it will be taken to have served a Selection Notice electing
to continue the Segment with the same Funding Period and making
without qualification the statements set out in paragraph (3)(a) and
(b) of annexure B.
6.3 NOTIFICATION OF PARTICIPANTS
The Agent shall give prompt notice to each Participant or the Working
Capital Facility Provider (as appropriate) of the contents of each
Selection Notice and, in the case of the Project Facilities, the
amount of each Participant's Share of each Segment to be continued.
6.4 NUMBER OF SEGMENTS
The Borrower shall ensure that, prior to 31 December 2002 there are no
more than 5 Segments outstanding and on or after 31 December 2002
there are no more than 2 Segments outstanding at any one time in
respect of any Project Facility and that at any time there are no more
than 4 Segments outstanding in respect of the Working Capital
Facility.
6.5 SPLITTING AND COMBINATION
Subject to clause 6.4 the Borrower may split or combine Segments.
7. SELECTION OF FUNDING PERIODS
7.1 DURATION
(a) Subject to this clause, the Operator, on behalf of the
Borrowers, may only select the following Funding Periods for
the Facilities:
(i) a Project Facility: 3 months; and
(ii) the Working Capital Facility: 1, 2 or 3 weeks or 1, 2,
3 or 6 months.
Page 29
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(b) The Operator may, with the agreement of the Agent, select
another Funding Period including in order to enable
consolidation of Segments.
(c) Should a Funding Period end on a day which is not a Business
Day, that Funding Period will be extended to the next Business
Day in the same nominal month or, if none, the preceding
Business Day.
(d) If a Funding Period of a number of months commences on a date
in a month and there is no corresponding date in the month in
which it is to end, it will end on the last Business Day of
the latter month.
(e) No Funding Period may extend beyond the final Repayment Date
for the relevant Facility or, in the case of the Working
Capital Facility, beyond the end of the Availability Period
for the Working Capital Facility and the Operator shall select
Funding Periods so as to ensure that each Repayment Date
coincides with the last day of Funding Periods of all
outstanding Segments which have an amount not less than the
amount to be repaid on that day.
(f) If the Operator fails to select Funding Periods complying with
this clause the Agent may vary any Drawdown Notice or
Selection Notice to ensure compliance.
8. REPAYMENT
8.1 REPAYMENT OF TERM FACILITY
Each Borrower shall repay its Borrower's Principal Outstanding for the
Term Facility, determined as at the end of its Availability Period
(the Borrower's Total Term Principal Outstanding), by repaying on each
Repayment Date for the Term Facility set out in part 1 of annexure E
an amount equal to the percentage set opposite that Repayment Date of
the Borrower's Total Term Principal Outstanding.
8.2 REPAYMENT OF CONTINGENCY FACILITY
Each Borrower shall, on each date on which an amount standing to the
credit of its Proceeds Account is to be applied for any purpose, apply
the amount standing to the credit of the Proceeds Account (after
making those of the payments referred to in clause 20.3(a) to (g)
(inclusive) which fall to be paid on that date) to reduce its
Borrower's Principal Outstanding under the Contingency Facility. Each
Borrower must in any event fully repay its Borrower's Principal
Outstanding under the Contingency Facility on or before 31 March 2009.
8.3 REPAYMENT OF MINING UNIT FACILITY
Each Borrower shall repay its Borrower's Principal Outstanding for the
Mining Unit Facility as at the end of its Availability Period (the
Borrower's Total MUF Principal Outstanding) by repaying on each
Repayment Date for the Mining Unit Facility set out in part 2 of
annexure E an amount equal to the percentage set opposite that
Repayment Date of the Borrower's Total MUF Principal Outstanding.
8.4 REPAYMENT OF WORKING CAPITAL FACILITY
Each Borrower shall repay its Borrower's Principal Outstanding of each
Segment of the Working Capital Facility on the last day of its Funding
Period. Each Borrower must fully repay its
Page 30
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Borrower's Principal Outstanding under the Working Capital Facility on
or before 30 June 2003 (or such later date as may be from time to time
agreed under Clause 11.10 by the Working Capital Facility Provider).
8.5 ALLOCATION AMONG PARTICIPANTS
Repayments under the Project Facilities will be applied ratably among
the Participants according to their respective participations in the
relevant Principal Outstanding.
8.6 ALLOCATION AMONG SEGMENTS
Repayments will be applied in reduction of those Segments which the
Operator may specify after consultation with the Agent but to the
extent practicable repayments will only be applied against Segments
which have Selection Dates falling on the relevant Repayment Date.
9. PREPAYMENTS
9.1 OPTIONAL PREPAYMENT OF TERM FACILITY AND MINING UNIT FACILITY
(a) Subject to this clause, if a Borrower gives at least 10
Business Days' prior notice to the Agent (who shall promptly
notify the Participants) the Borrower may prepay all or part
of its Borrower's Principal Outstanding for the Term Facility
or the Mining Unit Facility. That notice is irrevocable. The
Borrower shall prepay in accordance with it.
(b) Unless the Agent agrees otherwise, prepayment of part only of
a Borrower's Principal Outstanding of the Term Facility or the
Mining Unit Facility may only be made in a minimum amount of
US$500,000 and in an integral multiple of US$250,000.
9.2 MANDATORY PREPAYMENT OF TERM FACILITY AND MINING UNIT FACILITY
In accordance with clause 20.3, each Borrower shall, on each Repayment
Date, apply 45% of the amount standing to the credit of its Proceeds
Account after making each of the payments referred to in clause
20.3(a) to (n) (inclusive) which fall to be paid on that Repayment
Date and after deducting the Cash Retention Requirement on that date
to reduce pro rata its Borrower's Principal Outstanding under the Term
Facility and the Mining Unit Facility.
9.3 MANDATORY PREPAYMENTS DURING LOCK-UP
If on any Test Date:
(a) Lock-Up is in effect; and
(b) Lock-Up has been in effect for at least 12 months,
then on each occasion on or after that Test Date until Lock-Up ceases
to be in effect on which any amount is debited to the Proceeds Account
each Borrower shall apply all of the amount standing to the credit of
its Proceeds Account after making each of the payments referred to in
clause 20.3(a) to (n) (inclusive) which fall to be paid on that date
and after deducting the Cash Retention Requirement on that date to
reduce pro rata its Borrower's Principal Outstanding under the Term
Facility, the Mining Unit Facility and the Working Capital Facility.
Page 31
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
9.4 PREPAYMENT ON EXPIRY OF FUNDING PERIOD
Prepayments under this Agreement may only be made on the last day of
the Funding Period of the relevant Segment.
9.5 INTEREST
Each Borrower shall pay any interest accrued on any amount prepaid by
it under this Agreement at the time of the prepayment.
9.6 LIMITATION ON PREPAYMENTS
The Borrowers may not prepay all or any part of the Principal
Outstanding except as set out in this Agreement. Prepayments of the
Project Facilities cannot be redrawn.
9.7 APPLICATION AGAINST REPAYMENT INSTALMENTS
Prepayments will be applied against repayment instalments in inverse
order of maturity.
9.8 APPORTIONMENT
Prepayments under clause 9 of Project Facilities will be applied
ratably in reduction of the respective participations of all the
Participants in the Principal Outstanding and ratably amongst their
respective Commitments.
10. PROJECT FACILITIES
10.1 GRANT OF PROJECT FACILITIES
(a) The Participants grant to the Borrowers, on the terms and
subject to the conditions of this Agreement:
(i) a US dollar term loan facility in an aggregate amount
of US$33,000,000;
(ii) a US dollar standby term loan facility in an aggregate
amount of US$6,411,000; and
(iii) subject to (b), a US dollar term loan facility in an
aggregate amount of US$6,411,000.
(b) The amount of the Mining Unit Facility is reduced
automatically by the Principal Outstanding of the Contingency
Facility as at the Conversion Date
10.2 ADVANCE OF SEGMENT
(a) Subject to this Agreement, whenever the Operator, on behalf of
the Borrowers, gives a Drawdown Notice requesting a Segment of
a Project Facility in accordance with clause 5.1, each
Participant through its Lending Office shall make available
its Share of that Segment to the Agent by 11am (Melbourne
time) on the relevant Accommodation Date in Same Day Funds in
US dollars.
(b) On receipt, the Agent shall pay half of each Segment to each
Borrower's US dollar Proceeds Account.
Page 32
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
10.3 INTEREST RATE
Interest will accrue from day to day on each Segment of each Project
Facility advanced for the account of a Borrower for each Funding
Period at the rate per annum determined by the Agent to be the sum of
the Margin for the relevant Project Facility and LIBOR for that
Funding Period. That interest will be calculated on the basis of the
actual number of days elapsed and a year of 360 days.
10.4 PAYMENT OF INTEREST
The Borrower in relation to whom that interest accrued shall pay that
accrued interest in US dollars on the last day of the relevant Funding
Period and on repayment or prepayment of all or the relevant part of
the Segment.
10.5 MARKET DISTURBANCE - SUSPENSION NOTICE
Whenever, before the start of a Funding Period of a Segment of a
Project Facility:
(a) after consultation with the Participants the Agent determines
that:
(i) by reason of circumstances affecting the relevant
interbank market, adequate and fair means do not exist
for ascertaining the rate of interest applicable to
that Segment during that Funding Period under the
preceding provisions and the definition of LIBOR in
clause 1.1; or
(ii) deposits in the relevant interbank market are not
available in the ordinary course of business to all of
the Participants in US dollars for a term equal to
that Funding Period;
(b) the Agent has received notice from Participants whose
Commitments aggregate to more than 50% of the aggregate of the
Commitments that, by reason of circumstances affecting the
relevant interbank market, the cost to them of deposits
obtained in that market to fund their participations in that
Segment exceeds LIBOR in respect of that Funding Period; or
(c) the Agent has received notice from any Participant that by
reason of any change in or in the application of any
applicable law or of any change in national or international
financial, political or economic conditions, exchange rates or
exchange controls, it is impracticable for it to fund or
continue to fund that Segment during that Funding Period by
deposits obtained in the relevant interbank market,
the Agent shall promptly give notice (a Suspension Notice) to the
Borrowers and each Participant (in the case of paragraph (a) or (b))
or the affected Participant (in the case of paragraph (c)).
10.6 MARKET DISTURBANCE BEFORE DRAWING
If a Participant receives a Suspension Notice relating to a Segment of
a Project Facility requested in a Drawdown Notice:
(a) (consultation) that Participant and the Agent shall consult in
good faith with the Borrowers with a view to agreeing an
alternative basis for advancing that Participant's Share of
the Segment;
(b) (suspension of obligation) pending that consultation the
Participant will not be obliged to advance the Segment;
Page 33
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(c) (alternative basis) if an alternative basis is agreed, it will
apply in accordance with its terms; and
(d) (cessation of notice if no agreement) if an alternative basis
is not agreed within 30 days of the Suspension Notice, the
obligation of the Participant to advance that Segment will
cease.
10.7 MARKET DISTURBANCE RELATING TO SUBSEQUENT SEGMENTS
(a) (Substitute basis) If a Participant receives a Suspension
Notice which relates to a Segment of a Project Facility
requested in a Selection Notice, it shall:
(i) maintain its participation in the Segment; and
(ii) in consultation with the Agent and the Borrowers,
certify to the Agent within 30 days an alternative
basis (Substitute Basis) for maintaining its
participation in the Segment.
The Agent shall notify the Borrowers of the Substitute Basis.
The Borrowers shall pay interest and other amounts in
accordance with the Substitute Basis.
(b) (Nature of Substitute Basis) Without limitation, a Substitute
Basis may be retroactive to the beginning of the relevant
Funding Period and may include an alternative method of fixing
the interest rate (which must reflect the cost to the
Participant of funding from other sources plus the Margin) or
alternative Funding Periods for that Segment.
(c) (Prepayment) The Borrowers may prepay the participation of
that Participant in that Segment within 30 days of being
notified of the Substitute Basis. They must give at least 2
Business Days irrevocable notice of the prepayment. At the
time of prepayment the Borrowers shall also pay all accrued
interest and other amounts (in accordance with the Substitute
Basis).
(d) (Continuing consultation) At least monthly during the period
when any Substitute Basis is in force the Agent shall consult
with the Borrowers and the other affected parties and
determine whether any of the circumstances referred to in
clause 10.5 still apply.
(e) (Revocation of Substitute Basis) If it determines those
circumstances do not still apply the Agent shall notify the
Borrowers and the other affected parties revoking the
Substitute Basis with effect from the date specified by the
Agent.
11. WORKING CAPITAL FACILITY
11.1 GRANT OF WORKING CAPITAL FACILITY
The Working Capital Facility Provider grants to the Borrowers, on the
terms and subject to the conditions of this Agreement, an Australian
dollar revolving loan facility in an aggregate amount of A$10,000,000.
11.2 ADVANCE OF SEGMENT
(a) Subject to this Agreement, whenever the Operator, on behalf of
the Borrowers, gives a Drawdown Notice requesting a Segment of
the Working Capital Facility in accordance with clause 5.1,
the Working Capital Facility Provider shall make available
that Segment to the
Page 34
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Agent in immediately available funds by 11am (Melbourne time)
on the relevant Accommodation Date for the account of the
Borrowers.
(b) On receipt the Agent will pay half of each Segment to each
Borrower's Australian dollar Proceeds Account or, if a
Rollover Segment, the Agent will distribute that Segment for
the account of the Working Capital Facility Provider in
repayment of the maturing Segment.
11.3 INTEREST
Interest will accrue from day to day on the outstanding principal
amount of each Segment of the Working Capital Facility advanced for
the account of a Borrower at the rate determined by the Agent to be
the aggregate of the Margin and BBR for the relevant Funding Period.
The Borrower in relation to whom the interest so accrued shall pay the
accrued interest in arrears on the last day of each Funding Period and
on repayment or prepayment of all or the relevant part of the Segment.
That interest will be calculated on the basis of the actual number of
days elapsed and a year of 365 days.
11.4 PREPARATION OF RELIQUEFICATION BILLS
Each Borrower irrevocably and for valuable consideration authorises
the Working Capital Facility Provider (at its option) from time to
time:
(a) to prepare Reliquefication Bills in relation to a Segment of
the Working Capital Facility; and
(b) by its Authorised Officer, to sign them as drawer, endorser or
acceptor in the name of and on behalf of the Borrower.
11.5 REQUIREMENTS OF RELIQUEFICATION BILLS
(a) The total face amount of Reliquefication Bills prepared by the
Working Capital Provider and outstanding in relation to any
Segment must not at any time exceed:
(i) the principal amount of that Segment; plus
(ii) the total interest which has accrued or will accrue on
that Segment during the relevant Funding Period.
(b) Reliquefication Bills must mature on or before the last day of
the relevant Funding Period.
11.6 DEALING WITH RELIQUEFICATION BILLS
The Working Capital Facility Provider may realise or deal with any
Reliquefication ▇▇▇▇ prepared by it as it thinks fit.
11.7 INDEMNITY
(a) The Working Capital Facility Provider shall indemnify each
Borrower on demand against all liabilities, costs and expenses
incurred by that Borrower by reason of it being a party to a
Reliquefication ▇▇▇▇ prepared by the Working Capital Facility
Provider.
(b) Paragraph (a) does not affect any obligation of the Borrowers
under this Agreement. In particular the obligation of the
Borrowers to pay any principal, interest or other moneys under
this Agreement is absolute and unconditional. It is not in any
way affected by any
Page 35
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
liability of the Working Capital Facility Provider, contingent
or otherwise, under this indemnity.
(c) If a Reliquefication ▇▇▇▇ is presented to a Borrower and that
Borrower discharges it by payment, the amount of that payment
will be deemed to have been applied against the moneys
outstanding by that Borrower under this Agreement to the
Working Capital Facility Provider.
11.8 STAMP DUTY ON RELIQUEFICATION BILLS
The Working Capital Facility Provider shall pay any stamp duty on
Reliquefication Bills prepared by it and such stamp duty shall not be
payable or reimburseable under any other provision of this Agreement
or any other Transaction Document.
11.9 END OF AUTHORITY
The authority granted by a Borrower under clause 11.4 will cease and
be revoked without necessity for notice on:
(a) the payment by the Borrower of all Secured Money owing by it
under the Transaction Documents; and
(b) the cancellation of the Commitments for the Working Capital
Facility under clause 3.
11.10 REVIEW
(a) (Request) Subject to (b) and (c), not later than one month
prior to each Repayment Date for the Working Capital Facility
the Operator (on behalf of the Borrowers) may request the
Working Capital Facility Provider to continue the Working
Capital Facility for a further period not exceeding 12 months
from the Repayment Date. If the Working Capital Facility
Provider agrees to do so the Repayment Date for the Working
Capital Facility shall be the last day of that further period
of 12 months.
(b) (No obligation) The Working Capital Facility Provider has no
obligation to agree to any request under paragraph (a). It may
in its discretion impose conditions on any such extension
which it agrees.
(c) (Maximum Extension) The Working Capital Facility may not be
extended to a date later than 31 March 2009.
12. PAYMENTS
12.1 MANNER
The Borrowers shall make all payments under any Transaction Document
in Same Day Funds:
(a) if in US dollars, by 11am (Melbourne time) on the due date to
the following account:
Bank and Branch: ▇▇ ▇▇▇▇▇▇, New York, USA
Fedwire No: ▇▇▇-▇▇▇-▇▇▇
SWIFT Code: CHASU533
Chips U.I.D.: 004966
Page 36
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Account No: 0011-910601
Account Name: ANZ Banking Group Limited - Melbourne
(SWIFT Code ▇▇▇▇▇▇▇▇)
Reference: Glennies Creek Coal Project
or any other account notified by the Agent; and
(b) if in Australian dollars, by 11am (Melbourne time) on the due
date to the account specified by the Agent in respect of that
currency,
without set-off or counterclaim and without deduction, whether on
account of Taxes or otherwise, except any compulsory deduction for
Tax.
12.2 PAYMENT TO BE MADE ON BUSINESS DAY
Whenever any payment becomes due on a day which is not a Business Day,
the due date will be the next Business Day in the same nominal month
or, if none, the preceding Business Day.
12.3 DISTRIBUTION BY AGENT
Unless any Transaction Document expressly provides otherwise, the
Agent shall promptly distribute amounts received under any Transaction
Document:
(a) for the account of the Participants ratably among them; and
(b) for the account of the Working Capital Facility Provider, to
the Working Capital Provider;
and in like funds as they are received by the Agent. To make any
distribution the Agent may buy and sell currencies in accordance with
its normal procedures.
12.4 APPROPRIATION WHERE INSUFFICIENT MONEYS AVAILABLE
The Agent may appropriate amounts it receives among amounts due as it
sees fit. This will override any appropriation made by a Borrower.
Without limitation the Agent may appropriate amounts first in payment
of amounts payable to it by way of indemnity or reimbursement.
12.5 UNANTICIPATED DEFAULT
(a) (Assumption as to payment) The Agent may assume that a party
(the Payer) due to make a payment for the account of another
party (the Recipient) makes that payment when due unless the
Payer notifies the Agent at least one Business Day before the
due date that the Payer will not be making the payment.
(b) (Reliance on assumption) In reliance on that assumption, the
Agent may make available to the Recipient on the due date an
amount equal to the assumed payment.
(c) (Recoupment) If the Payer does not in fact make the assumed
payment, the Recipient shall repay the Agent the amount on
demand. The Payer will still remain liable to make the assumed
payment, but until the Recipient does repay the amount, the
Payer's liability will be to the Agent in the Agent's own
right.
(d) (Interest) If the Payer is a Borrower any interest on the
amount of the assumed payment accruing before recovery will
belong to the Agent. If the Payer is a Participant or a
Page 37
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Working Capital Facility Provider, it shall pay interest on
the amount of the assumed payment at the rate determined by
the Agent, in line with its usual practice, for advances of
similar duration to financial institutions of the standing of
the Participant.
12.6 ROUNDING
In making any allocation or appropriation under any Transaction
Document the Agent may round amounts to the nearest dollar.
12.7 BLOCKED PAYMENTS
(a) (Notification of application) If the Agent becomes aware that
it is unlawful, or believes that it is impracticable, for any
payment to be made for the account of an Indemnified Party as
set out in clause 12.1, the Agent shall notify the relevant
Borrower and that Indemnified Party.
(b) (Alternative manner of payment) Until the notice is revoked
the relevant Borrower shall make the payments to the account
specified in writing by the Indemnified Party or to another
account or in another manner agreed between the Borrower and
that Indemnified Party.
(c) (Reporting to Agent) That Indemnified Party shall keep the
Agent fully informed as to all payments so received by it and
as to all agreements with respect to those payments.
(d) (Revocation) If the Agent becomes aware that it is no longer
unlawful or no longer believes that it is impracticable for
any payment of the type referred to in a notice under
paragraph (a) to be made as set out in clause 12.1 the Agent
shall revoke that notice in relation to payments of that type.
13. TAXATION
13.1 ADDITIONAL PAYMENTS
Whenever a Borrower or a Sponsor is obliged to make a deduction in
respect of Tax from any payment under any Transaction Document:
(a) it shall promptly pay the amount deducted to the appropriate
Government Agency;
(b) within 30 days of the end of the month in which the deduction
is made, it shall deliver to the Agent official receipts or
other evidence of payment reasonably acceptable to the
relevant Indemnified Party; and
(c) unless the Tax is an Excluded Tax or Australian Withholding
Tax, it shall pay the relevant Indemnified Party on the due
date of the payment any additional amounts necessary (as
determined by the relevant Indemnified Party in good faith) to
ensure that the relevant Indemnified Party receives when due a
net amount (after payment of any Taxes in respect of those
additional amounts) in the relevant currency equal to the full
amount which it would have received had a deduction not been
made, and it shall indemnify the relevant Indemnified Party
against the Tax and any amounts recoverable from the relevant
Indemnified Party in respect of the Tax.
Page 38
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Each Borrower and each Sponsor waives any statutory right to recover
from any Indemnified Party any amount paid under this clause.
If a Borrower or a Sponsor fails to pay any additional amount required
under paragraph (c) to the relevant Indemnified Party then, regardless
of whether the obligation to pay that amount is void or unenforceable,
the relevant Indemnified Party may cancel, and demand repayment of its
participation in the relevant Facility.
13.2 SURVIVAL OF OBLIGATIONS
The obligations of the Borrowers and the Sponsors under this clause
survive the repayment of all Segments and the termination of this
Agreement.
14. CHANGES IN LAW
14.1 INCREASED COSTS
(a) Whenever any Indemnified Party determines that a Change in Law
(as defined below) has the effect of:
(i) increasing the Indemnified Party's cost of funding or
maintaining any Segment or Commitment, or reducing the
Indemnified Party's or any of its holding companies'
return or amounts received in respect of any
Transaction Document; or
(ii) reducing the Indemnified Party's or any of its holding
companies' return on capital directly or indirectly
allocated to any Segment or the Commitment (including
because more capital needs to be allocated to any
Segment or Commitment or cannot be used elsewhere),
then it will promptly notify the Operator and each Borrower
must pay the Indemnified Party the amount necessary to
compensate it or the holding company (as the case may be). If
an Indemnified Party gives a notice under this clause 14.1, it
agrees to provide the Operator and the Borrowers with
reasonably detailed calculations showing how the amount
notified has been ascertained. However, nothing in this clause
14.1 obliges an Indemnified Party to provide details of its
business or tax affairs which it considers in good faith to be
confidential.
A Change in Law is the introduction of, or a change in, any
law, official directive, ruling or request or a change in its
interpretation or application after the date of this
Agreement. If it does not have the force of law, it must be
one with which responsible banks or financial institutions
would comply. Without limitation, it includes any of these
circumstances which relates to capital adequacy, special
deposit, liquidity, reserve, prime assets, prudential
requirements, GST (but only to the extent it affects anything
used in relation to the Facilities, including any funding or
hedging of the Facilities), or any other tax (except a tax on
overall net income).
(b) The Borrowers may prepay the participation of an Indemnified
Party in any Segment the subject of a notice in paragraph (a)
within 30 days of such notice. They must give at least 2
Business Days irrevocable notice of the prepayment. At the
time of prepayment the
Page 39
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Borrowers shall also pay all accrued interest and other
amounts (including any amount payable under paragraph (a)).
14.2 ILLEGALITY
If the making of any law or treaty, or a change in the interpretation
or application by any Government Agency of any law or treaty, makes it
unlawful or impracticable for any Participant or the Working Capital
Facility Provider to make, fund or maintain any Facility under this
Agreement:
(a) that Participant or the Working Capital Facility Provider may
terminate its Commitments by notice to the Operator;
(b) if required by the law or treaty, or if necessary to prevent
or remedy a breach of the law or treaty, each Borrower shall
prepay that Participant's participation in its Borrower's
Principal Outstanding or the Working Capital Facility (as
appropriate), together with all interest, fees and other
amounts payable to that Participant or the Working Capital
Facility Provider under this Agreement; and
(c) the Borrowers shall make the prepayment immediately or, if in
the reasonable opinion of the relevant Participant delay in
prepayment is permitted by the law or treaty, or will not
cause a breach of the law or treaty, on the latest permitted
day.
14.3 MINIMISATION
At the request of the Operator, the Borrowers and Indemnified Parties
affected by the events set out in clauses 14.1 and 14.2 will negotiate
in good faith with a view to finding within 30 days a means, at the
Borrowers' cost, of lawfully minimising the cost of those events or
providing the relevant advances or financial accommodation by
alternative means (including an Indemnified Party changing its Lending
Office or making the advances or financial accommodation available
through a Related Entity), but it is not a defence that the effect
could have been avoided or minimised.
14.4 SURVIVAL OF OBLIGATIONS
This clause survives the repayment of any relevant Segment and the
termination of this Agreement.
15. CONDITIONS PRECEDENT
15.1 CONDITIONS PRECEDENT TO FIRST DRAWDOWN NOTICE
The right of the Operator to give the first Drawdown Notice on behalf
of the Borrowers and the obligations of each Participant and the
Working Capital Facility Provider under this Agreement are subject to
the condition precedent that the Agent receives all of the following
in form and substance satisfactory to the Agent.
(a) (Verification certificate) A certificate in relation to each
Relevant Company and each Sponsor signed by 2 directors (or a
director and a secretary or the sole director and secretary)
substantially in the form of annexure C with the attachments
referred to and dated not earlier than 14 days before the
first Drawdown Date. The Operator's certificate must attach
certified copies of the Project Documents.
(b) (Registration of Facility Securities) Evidence that:
Page 40
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(i) the Charges, the Environmental Licence Mortgage and
the Share Mortgages have been provisionally registered
by the Australian Securities and Investments
Commission;
(ii) the Mining Tenements Mortgages have been lodged for
registration in accordance with the Mining Act; and
(iii) the Real Property Mortgages have been lodged for
registration with Land and Property Information New
South Wales.
(c) (Transaction Documents) Duly executed and stamped (if stamp
duty is payable) counterparts of each Transaction Document.
(d) (Mortgaged Property) Results of searches, enquiries and
requisitions in relation to the Mortgaged Property.
(e) (Title documents) All documents and evidence of title to the
Mortgaged Property (including signed blank share transfers).
(f) (Borrowers' lawyers' opinions) Opinions of the Borrowers'
Australian legal advisers addressed to the Participants, the
Working Capital Facility Provider and the Agent in relation to
the Project Documents and the Project Document Counterparties,
in the forms agreed by the Borrowers and the Agent on or
before the date of this Agreement.
(g) (Agent's lawyers' opinion) An opinion of Allens ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, Australian legal advisers to the Agent on behalf of
the Participants and the Working Capital Facility Provider,
addressed to the Agent, Participants and the Working Capital
Facility Provider, in relation to the Transaction Documents.
(h) (US legal opinion) Opinions from the Sponsors' legal advisers
in relation to this Agreement addressed to the Participant,
the Working Capital Facility Provider and the Agent.
(i) (Bank Accounts) Evidence that each Borrower has opened its
respective Proceeds Accounts, Mining Unit Reserve Account,
Mine Development Reserve Account and Debt Service Reserve
Account.
(j) (Project Documents) Evidence of due execution by all parties
of, and satisfaction of any conditions precedent contained
within, the Project Documents and Notices of Charge.
(k) (Tax) A tax review by an independent tax adviser acceptable to
the Agent.
(l) (Fees) Evidence that the Borrowers have made arrangements for
payment of the Agency Fee, Front End Fee and Security Trustee
Fee payable on the date of the first Segment from the proceeds
of the first Segment.
(m) (Budget)
(i) Confirmation that the form of the Initial Budget has
been agreed by all the Participants and the Working
Capital Facility Provider; and
(ii) a copy of the Initial Budget and evidence that it has
been agreed by all the Participants and the Working
Capital Facility Provider and the Participants and the
Working Capital Facility Provider are satisfied that
it is based on the same assumptions as the Base Case
Model.
Page 41
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(n) (Insurance)
(i) An insurance review by an independent insurance
advisor acceptable to the Agent.
(ii) Evidence that the insurance policies required under
clause 17.2(k) in connection with the Project:
(A) have been effected by the Borrowers, and
(B) are in accordance with the recommendations
(if any) contained in that review.
(o) (Authorisations) Certified copies of each Authorisation from a
Government Agency (including the Foreign Investments Review
Board) in relation to the Relevant Documents, the Mine and the
Project and evidence that each is in full force and effect and
in unappealable form.
(p) (Material adverse change) Since the date of this Agreement, in
the opinion of each Participant and the Working Capital
Facility Provider, there has been no material adverse change
(or event which is reasonably likely to result in a material
adverse change) in (i) the business or financial condition of
a Relevant Company or a Sponsor from that represented in their
latest published results or (ii) the economic or technical
viability of the Project or the Mine or any material part
thereof which is likely to have a Material Adverse Effect in
relation to any Relevant Company, Sponsor or the Project.
(q) (Technical Report) A report on the Project from the Technical
Adviser.
(r) (Base Case Model):
(i) a computer disk containing a copy of the Base Case
Model and the Initial Budget on the basis of
assumptions agreed between the Borrowers and the
Participants as at the date of this Agreement; and
(ii) the Base Case Model projects that:
(A) DSCR for the Test Period for each Test Date
falling on or after 30 September 2004 is at
least 2.2; and
(B) LLCR for the first Test Date falling on or after
30 September 2004 is at least 2.2.
(s) (Hedging Arrangements) Duly executed and stamped (if stamp
duty is payable) counterparts of each document required to
effect the Hedging Arrangements.
(t) (Proven reserves) Confirmation by the Technical Adviser that
all projected mine reserves included in the Base Case Model
are categorised as "Proven" under the current Australian Code
for Reporting of Mineral Resources and Ore Reserves, as set
out in Appendix 5A of the ASX Listing Rules.
(u) (Other documents) Other documents or evidence as the Agent may
reasonably require, including satisfactory consent and
tripartite deeds in relation to the taking or enforcement of
security in respect of the Project Documents and copies of
letters from each Borrower, the Operator and the Marketing
Company to each insurer under any property loss or damage
policy confirming their agreement to the matters set out in
clause 17.2(k)(vi)(A) and (B) and acknowledgement by those
insurers of receipt of those letters.
Page 42
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
15.2 CONDITIONS PRECEDENT TO FIRST SEGMENT OF TERM FACILITY
The obligations of each Participant to make available the first
Segment of the Term Facility is subject to the further conditions
precedent that:
(a) (Contribution to Project) the Agent receives, in form and
substance satisfactory to it, evidence that the Borrowers have
contributed a minimum of A$88,000,000 to the Project which has
been spent on development of the Project or is forecast to be
so spent in conjunction with the first drawdown; and
(b) (Hedging) the Agent receives, in form and substance
satisfactory to it, evidence that clause 21 has been complied
with.
15.3 CONDITIONS PRECEDENT TO FIRST SEGMENT OF CONTINGENCY FACILITY
The obligations of each Participant to make available the first
Segment of the Contingency Facility is subject to the further
condition precedent that the Agent receives, in form and substance
satisfactory to it, evidence that:
(a) (Term Facility fully drawn): the Term Facility has been fully
drawn and no amounts have been prepaid or repaid under it; and
(b) (Stage 1 Works): the Segment will be used only to fund the
Stage 1 Works.
15.4 CONDITIONS PRECEDENT TO FIRST SEGMENT OF MINING UNIT FACILITY
The obligations of each Participant to make available the first
segment of the Mining Unit Facility are subject to the further
condition precedent that the Agent receives, in form and substance
satisfactory to it, evidence that the aggregate of:
(a) the aggregate Commitments under the Mining Unit Facility; and
(b) the Borrowers' respective MUR Balances,
at least equal the price payable under the Stage 2 Works Contract (net
of all payments and prepayments made in respect of that price on or
before the proposed Drawdown Date).
15.5 CONDITIONS PRECEDENT TO EACH SEGMENT
The obligations of each Participant and the Working Capital Facility
Provider to make available each Segment are subject to the further
conditions precedent that:
(a) (Representations true) the representations and warranties by
each Relevant Company and, at any time prior to the Sponsor
Release Date, each relevant Sponsor in the Transaction
Documents are true as at the date of the relevant Drawdown
Notice or Selection Notice and the relevant Accommodation Date
as though they had been made at that date in respect of the
facts and circumstances then subsisting;
(b) (No default) no Event of Default or Potential Event of Default
subsists at the date of the relevant Drawdown Notice or
Selection Notice and the relevant Accommodation Date or will
result from the provision of the Segment; and
(c) (Authorisation) all necessary Authorisations for the provision
of that Segment have been obtained.
Page 43
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
16. REPRESENTATIONS AND WARRANTIES
16.1 REPRESENTATIONS AND WARRANTIES
Each Borrower, the Operator and the Marketing Company makes the
following representations and warranties for the benefit of the Agent
and each of the Participants and the Working Capital Facility
Provider:
(a) (Status) It is a corporation validly existing under the laws
of the place of its incorporation specified in this Agreement.
(b) (Power) It has the power to enter into and perform its
obligations under the Relevant Documents to which it is
expressed to be a party, to carry out the transactions
contemplated by those documents and to carry on its business
as now conducted or contemplated.
(c) (Corporate authorisations) It has taken all necessary
corporate action to authorise the entry into and performance
of the Relevant Documents to which it is expressed to be a
party, and to carry out the transactions contemplated by those
documents.
(d) (Documents binding) Each Relevant Document to which it is
expressed to be a party is its valid and binding obligation
enforceable in accordance with its terms, subject to the
application of equitable principles and any necessary stamping
and registration. The Facility Securities granted as security
for the payment by it of the Secured Money payable by it are
effective security over the Mortgaged Property mortgaged or
charged by the relevant Facility Security with the priority
stated. Each material Project Document and each material Works
Document is legal, valid, binding and enforceable against the
parties to it other than the other Borrower, the other
Borrower's Shareholders or the other Borrower's Relevant
Sponsor.
(e) (Relevant Documents) Each Relevant Document has been or will
be duly stamped and, if applicable, registered, filed or
lodged with the appropriate Government Agency.
(f) (Transactions permitted) The execution and performance by it
of the Relevant Documents to which it is expressed to be a
party and each transaction contemplated under those documents
did not and will not violate in any respect a provision of:
(i) a law or treaty or a judgment, ruling, order or decree
of a Government Agency binding on it;
(ii) its constitution or other constituent documents; or
(iii) any other document or agreement which is binding on it
or its assets,
non-compliance with which is likely to have a Material Adverse
Effect, and, except as provided by the Relevant Documents, did
not and will not:
(iv) create or impose a Security Interest on any of its
assets; or
(v) allow a person to accelerate or cancel an obligation
with respect to Finance Debt, or constitute an event
of default, cancellation event, prepayment event or
similar event (whatever called) under an agreement
relating to Finance Debt, whether immediately or after
notice or lapse of time or both.
(g) (Accounts)
Page 44
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(i) Its most recent audited Accounts give a true and fair
view of the matters with which they deal.
(ii) There has been no subsequent change in its state of
affairs which may have a Material Adverse Effect in
relation to it.
(iii) Those Accounts comply with current accounting practice
except to the extent disclosed in them and with all
applicable laws.
(iv) All material Finance Debt and other material
contingent liabilities are disclosed in those
Accounts. In any event, it has disclosed to the Agent
all material details of any Finance Debt existing on
the first Drawdown Date and it has incurred no other
Finance Debt.
(h) (No litigation) No litigation, arbitration, Tax claim, dispute
or administrative or other proceeding involving it or (to the
best of its knowledge, if it is a Borrower) the Operator is
current or pending or, to its knowledge, threatened, which is
likely to have a Material Adverse Effect in relation to it.
(i) (No default)
(i) There is no existing Event of Default or Potential
Event of Default in respect of it or, to its
knowledge, otherwise.
(ii) It is not in default and, to its knowledge, no other
person is in default under any Project Document and no
event has occurred in respect to it or, to its
knowledge, any other person which is likely to result
in the cancellation, termination, forfeiture or
suspension of such document.
(j) (Authorisations) Each Authorisation which is required in
relation to:
(i) the execution, delivery and performance by it of the
Relevant Documents to which it is expressed to be a
party and the transactions contemplated by those
documents;
(ii) the validity and enforceability of those documents;
(iii) the conduct of the Project in accordance with the
Project Documents;
(iv) the performance of the Works in accordance with the
Works Documents; or
(v) its business or the business of the Project as now
conducted or contemplated and which is material
(including under Environmental Law),
the non-granting of which is likely to have a Material Adverse
Effect in relation to it, has been obtained or effected. Each
is in full force and effect. It has complied with each of
them. It has paid all applicable fees for each of them.
(k) (No misrepresentation) All Specified Information provided by
it to the Agent or the Participants is true in all material
respects when provided and, when taken as a whole, at the date
of this Agreement. Neither the Specified Information provided
by it nor its conduct and the conduct of anyone on its behalf
in relation to the transactions contemplated by the Relevant
Documents, was or is misleading, by omission or otherwise.
(l) (Documents disclosed) Each relevant material agreement or
document to which it is a party, Relevant Document and
document or agreement to which it is a party and which is
Page 45
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
material to the Relevant Documents or which has the effect of
varying a Relevant Document has been disclosed to the Agent in
writing.
(m) (Copies of documents) All copies of documents (including its
latest audited accounts and all Authorisations) given by it or
on its behalf to the Agent are true and complete copies. Those
documents are in full force and effect.
(n) (Title) It is the sole beneficial owner of all material assets
included in its latest audited Accounts free of any other
third party right, claim or interest whatever, other than:
(i) Security Interests permitted by clause 17.1(f)
(Negative pledge);
(ii) the Facility Securities ; and
(iii) in the case of a Borrower, the rights of the other
Borrower and the Operator under the Joint Venture
Agreement and the Cross Charges.
This representation extends to each Borrower's ownership of an
interest in the Project and the benefit of rights conferred on
it under the Project Documents.
(o) (Law) It has complied with all Laws (including any law
relating to Tax and any Environmental Law) binding on it where
breach may have a Material Adverse Effect.
(p) (Environmental Law) To its knowledge no act or omission has
occurred and there is no circumstance relating to its assets
or its business, or the assets or business of the Project
which has given rise or may give rise to:
(i) a substantial claim against it or the Operator;
(ii) a requirement of substantial expenditure by it or the
Operator; or
(iii) a requirement that it or the Operator ceases or
substantially alters any activity, under Environmental
Law.
Without limitation, to its knowledge none of its assets is
contaminated (within the meaning of applicable Environmental
Law) beyond the limits imposed by any relevant Authorisations,
all assets are within applicable environmental standards and
all emissions and discharges are within standards or limits
imposed by all relevant laws and Authorisations.
(q) (Trust) It does not hold any assets as the trustee of any
trust, except in the case of the Operator, those assets which
the Operator may from time to time hold as trustee for the
Borrowers in the ordinary course of the conduct of the
Project.
(r) (No Liquidation) It is not in Liquidation and, to the best of
its knowledge, no steps have been taken in relation to its
Liquidation.
(s) (Participating Interest) To the best of its knowledge, the
percentage interests of the Borrowers in the Project are
accurately stated in the definition of Participating Interest.
(t) (Solvency) It is solvent (within the meaning of the
Corporations Act).
(u) (No immunity) Neither it nor any of its assets is immune from
suit or execution.
(v) (No other business) It:
Page 46
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(i) conducts no business other than the business in
respect of the Project contemplated by the Project
Documents and the Works Documents;
(ii) has no assets other than those encumbered by the
Facility Securities; and
(iii) has no Subsidiaries.
(w) (Tax losses) It has not transferred a Tax loss to any of its
Related Entities except where it has complied with clause
17.1(r).
16.2 SPONSOR REPRESENTATIONS AND WARRANTIES
Each Sponsor makes the following representations and warranties for
the benefit of the Agent, each of the Participants and the Working
Capital Facility Provider:
(a) (Status) It is a corporation validly existing under the laws
of the place of its incorporation specified in this Agreement.
(b) (Power) It has the power to enter into and perform its
obligations under the Relevant Documents to which it is
expressed to be a party, to carry out the transactions
contemplated by those documents and to carry on its business
as now conducted or contemplated.
(c) (Corporate authorisations) It has taken all necessary
corporate action to authorise the entry into and performance
of the Relevant Documents to which it is expressed to be a
party, and to carry out the transactions contemplated by those
documents.
(d) (Documents binding) Each Relevant Document to which it is
expressed to be a party is its valid and binding obligation
enforceable in accordance with its terms, subject to the
application of equitable principles and any necessary stamping
and registration.
(e) (Transactions permitted) The execution and performance by it
of the Relevant Documents to which it is expressed to be a
party and each transaction contemplated to be conducted by it
under the Relevant Documents to which it is a party did not
and will not violate in any respect a provision of:
(i) a law or treaty or a judgment, ruling, order or decree
of a Government Agency binding on it;
(ii) its constitution or other constituent documents; or
(iii) any other document or agreement which is binding on it
or its assets, non-compliance with which is likely to
have a Material Adverse Effect.
16.3 RELIANCE ON REPRESENTATIONS AND WARRANTIES
Each Borrower, each Sponsor, the Operator and the Marketing Company
acknowledges that the Participants, the Working Capital Facility
provider and the Agent have entered this Agreement in reliance on the
representations and warranties by it in clause 16.1 or 16.2.
Page 47
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
17. UNDERTAKINGS
17.1 GENERAL UNDERTAKINGS
Each Borrower, the Operator and the Marketing Company undertakes to
the Agent, the Working Capital Facility Provider and each Participant
that, unless all Participants and the Working Capital Facility
Provider otherwise consent.
(a) (Corporate reporting and information) It will provide or cause
to be provided to the Agent in sufficient copies for the
Participants and the Working Capital Facility Provider:
(i) (annual Accounts) as soon as practicable (but within
90 days) after the close of each of its financial
years, copies of its audited Accounts in respect of
that financial year (including a reconciliation with
the semi-annual accounts previously provided in
respect of that financial year);
(ii) (semi-annual Accounts) as soon as practicable (but
within 60 days) after the first half of each of its
financial years, copies of its unaudited Accounts in
respect of that half-year, to be certified by 2
directors (or the sole director and secretary) of the
Borrower;
(iii) (information provided to ASX) to the extent not
already provided under this paragraph (a), within 7
days of issue, copies of all reports and press
releases made by it (if any) to Australian Stock
Exchange Limited;
(iv) (documents issued to shareholders and creditors)
promptly, all documents provided by it to holders of
Marketable Securities issued by it or to its creditors
as required by Law;
(v) (litigation) promptly, written particulars of any
litigation, arbitration, Tax claim, dispute or
administrative or other proceeding in relation to it
which:
(A) is or relates to a claim of A$500,000 or more;
or
(B) if adversely determined, is likely to have a
Material Adverse Effect in relation to it.
(vi) (dealings with Government Agencies) promptly, any
notice, order or material correspondence from or with
a Government Agency which may have a Material Adverse
Effect in relation to it;
(vii) (notices) promptly, material notices (including
notices to make payments under the Project Documents)
received by it from any Relevant Company or Government
Agency; and
(viii) (other information) promptly, any other information in
relation to its financial condition or business which
the Agent may reasonably request.
(b) (Accounting principles) It will ensure that all Accounts
provided to the Agent under paragraph (a):
(i) comply with current accounting practice applied except
to the extent disclosed in them and with all
applicable laws; and
(ii) give a true and fair view of the matters with which
they deal.
Page 48
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(c) (Authorisations) It will ensure that each Authorisation
required for:
(i) the execution, delivery and performance by it of the
Relevant Documents to which it is expressed to be a
party and the transactions contemplated by those
documents; and
(ii) the validity and enforceability of those documents,
the non-maintenance of which is likely to result in Material
Adverse Effect in relation to it, is obtained and promptly
renewed and maintained in full force and effect. It will pay
all applicable fees for them.
(d) (Notice to Agent) It will notify the Agent as soon as it
becomes aware of:
(i) any Event of Default or Potential Event of Default or
any default or potential default under the Relevant
Documents;
(ii) any proposal by a Government Agency to acquire
compulsorily a material part of its assets or
business;
(iii) any dispute with a Government Agency or a Relevant
Company which, if adversely determined against it, is
likely to have a Material Adverse Effect; and
(iv) any change in its Authorised Officers, giving specimen
signatures of any new Authorised Officer appointed,
and, where requested by the Agent, evidence
satisfactory to the Agent of the authority of any
Authorised Officer.
(e) (Disposal of assets) It will not sell or otherwise dispose of,
part with possession of, or create an interest in, all or a
substantial part of its assets over A$500,000 (or its
equivalent) or agree or attempt to do so (whether in one or
more related or unrelated transactions) except for sales of
coal in the ordinary course of business.
(f) (Negative pledge) It will not create or allow to exist a
Security Interest over any of its assets other than:
(i) the Facility Securities;
(ii) the Cross Charges;
(iii) liens securing money owing in respect of services
provided in the ordinary course of business where
there is no default in connection with those moneys,
provided that the liens do not secure any indebtedness
for borrowed money and do not encumber assets with an
aggregate book value of more than A$500,000; and
(iv) liens arising by operation of law which do not secure
Finance Debt and where there is no default in payment
of the moneys secured by the liens.
(g) (Inspections) It will permit each Participant on reasonable
notice to inspect its premises and records in accordance with
applicable health and safety laws and site procedures and
provided such inspection does not cause undue disruption to
normal operations of the Project.
(h) (Single purpose) It will:
(i) ensure that its only business is the Project, and
(ii) not acquire any Subsidiaries.
Page 49
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(i) (Corporate existence) It will do everything necessary to
maintain its corporate existence in good standing. It will not
transfer its jurisdiction of incorporation or enter any merger
or consolidation.
(j) (Compliance with Law) It will comply fully with all laws
(including Environmental Laws) binding on it, in all material
respects.
(k) (Distribution) It will not declare or pay any dividends or
make any Distributions to its shareholders (including payments
of or relating to subordinated debt):
(i) at any time, if any Event of Default under clause 18.1
in relation to it or under clause 18.2 or Potential
Event of Default under clause 18.1 in relation to it
or under clause 18.2 is subsisting; or
(ii) at any time (not being a Test Date), if Lock-Up was in
effect on the immediately preceding Test Date; or
(iii) on any Test Date, if either:
(A) Lock-Up is in effect on that Test Date; or
(B) not all certificates have been delivered in
respect of that Test Date which are required
to be delivered under paragraph 17.2(a)(ix); or
(iv) at any time between a Test Date and the delivery in
respect of that Test Date of all certificates which
are required to be delivered under paragraph
17.2(a)(ix) in respect of that Test Date; or
(v) prior to the Conversion Date, unless the following
conditions are satisfied:
(A) no Event of Default under clause 18.1 in
relation to it or under clause 18.2 or Potential
Event of Default under clause 18.1 in relation
to it or under clause 18.2 is subsisting;
(B) the Distribution is paid in accordance with
clause 20.3; or
(vi) following the Conversion Date, if any Bank Account is
not fully funded.
(l) (Payment of Taxes and outgoings) It will pay all Taxes payable
by it when due, other than Taxes which are being contested in
good faith in accordance with appropriate procedures and which
are not required to be paid before being contested, and all
outgoings and other indebtedness when due.
(m) (Constituent documents) It will not amend its constituent
documents if that amendment is likely to have a Material
Adverse Effect.
(n) (Auditors) It will ensure that its auditors are not replaced
except by another firm of auditors reasonably acceptable to
the Agent.
(o) (Bank Accounts) It will operate its Bank Accounts in
accordance with the provisions of the Transaction Documents.
(p) (Hedging) It will comply with the relevant provisions in the
Transaction Documents in relation to hedging arrangements.
(q) (Finance Debt) Other than Permitted Debt, it will not incur
Finance Debt.
Page 50
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(r) (Tax losses) It will not transfer a Tax loss to any of its
Related Entities unless and until an amount equal to the value
of that loss has been deposited into its Proceeds Account.
(s) (Books of account) It will keep proper books of account in
accordance with applicable law and sound business and
accounting practice.
(t) (Tax consolidation) If the New Business Tax System
(Consolidation) ▇▇▇▇ (No.1) 2002 is passed into law it will,
if it is or becomes a member of a consolidated group for tax
purposes:
(i) promptly enter into a tax sharing agreement which
satisfies the exception to joint and several liability
as contemplated by that ▇▇▇▇ and the enacted
legislation and is otherwise satisfactory to the
Participants and the Working Capital Facility
Provider;
(ii) not amend or vary that tax sharing agreement without
the consent of the Agent; and
(iii) ensure that its relevant Related Entity (as required
by the legislation) submits a copy of that tax sharing
agreement to the Australian Taxation Office within 14
days of execution, or within such other time as is
required by the legislation.
(u) (Thin Capitalisation) It will not enter into any arrangement
which would breach Division 820 of the Income Tax Assessment
Act 1997 or would result in a loss of deductibility for
interest under that Division.
17.2 UNDERTAKINGS RELATING TO PROJECT AND JOINT VENTURE
Each Borrower, the Operator and the Marketing Company undertakes to
the Agent and each Participant and the Working Capital Facility
Provider that, unless all Participants and the Working Capital
Facility Provider otherwise consent:
(a) (Corporate and Joint Venture reporting and information) It
will provide or cause to be provided to the Agent in
sufficient copies for the Participants and the Working
Capital Facility Provider:
(i) (audited Joint Accounts) within 90 days of the end of
the Joint Venture's financial year, a copy of the
audited Joint Accounts (together with a reconciliation
with the semi-annual accounts previously provided in
respect of that financial year prepared by the
Operator but not audited), and the audited Accounts of
the Marketing Company and the Operator;
(ii) (unaudited Joint Accounts) within 60 days of the end
of each financial half year of the Joint Venture, the
unaudited Joint Accounts and the Marketing Company's
Accounts and the Operator's Accounts;
(iii) (budgets and cash flow comparison) no later than the
end of each financial year of the Joint Venture, the
proposed Budget and Program for the following
financial year and within 30 days thereafter a
comparison of actual cash flow against Budget for the
previous year;
(iv) (update of budgets) updates of the Budgets referred
to in sub-paragraph (iii) if there have been material
changes to them;
Page 51
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(v) (Commercial reports) operational reports for the Mine
including progress reports as to the Works and reports
as to customer intent with regard to Sales Agreements:
(A) monthly, until the Sponsor Release Date; and
(B) after the Sponsor Release Date, at least
quarterly;
(vi) (litigation) promptly, written particulars of any
litigation, arbitration, Tax claim, dispute or
administrative or other proceeding in relation to the
Project which:
(A) is or relates to a claim of A$500,000 or more;
or
(B) if adversely determined, is likely to have a
Material Adverse Effect in relation to the
Project.
(vii) (dealings with Government Agencies) promptly, any
notice, order or material correspondence from or with
a Government Agency relating to the Project which may
have a Material Adverse Effect in relation to the
Project;
(viii) (environmental documents) promptly after lodgement,
copies of all material environmental compliance
reports or certificates;
(ix) (DSCR and other calculations) in the case of each
Borrower, within 60 days after each Test Date, a
certificate signed by two of its Authorised Officers
(at least one whom is a director):
(A) containing the Operator's calculation of DSCR,
FDSCR, LLCR and RLCR for that Test Date, and
setting out in each case full details of all
calculations;
(B) stating the balances of all Bank Accounts
established by it as at that Test Date and the
date of issue of the certificate;
(C) confirming its compliance with the Approved
Hedging Policy and the Hedging Arrangements
maintained by it in accordance with clause 21;
and
(D) repeating on its behalf as at the date of issue
of the certificate all its representations and
warranties under this Agreement; and
(x) (other information) promptly, any other information
in relation to the Project which the Agent may
reasonably request.
The information to be provided under paragraphs (iv), (v),
(vi) and (ix) may, at the option of the Operator, be comprised
in one or more individual reports.
(b) (Accounting principles) It will ensure that all Accounts
provided to the Agent under paragraph (a):
(i) comply with current accounting practice applied except
to the extent disclosed in them and with all
applicable laws; and
(ii) give a true and fair view of the matters with which
they deal.
(c) (Maintenance of Project Documents) it will not at any time:
(i) terminate, repudiate, rescind, cancel, avoid, forfeit,
discharge (otherwise than by performance), revoke,
amend or vary any of the provisions of any of the
Project
Page 52
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Documents, Works Documents or Tenements or
grant any material waiver, time or indulgence in
respect of any of the foregoing or enter into any
document or agreement which in any way may have the
effect of derogating from any of the foregoing; or
(ii) by an act or omission give or cause circumstances to
arise which would give (with the giving of notice or
lapse of time or both or otherwise) any other party
legal grounds to terminate, repudiate, forfeit,
cancel, rescind, discharge (otherwise than by
performance), revoke or avoid any provision of any
Project Document, Works Document or Tenement as
against that Borrower,
so as to diminish materially its ability to perform its
financial obligations under any Transaction Document or
materially adversely affect the security of the Participants,
or fail to renew any of the Tenements.
(d) (Compliance with documents) it will:
(i) comply with its obligations, and
(ii) exercise its rights
under the Project Documents, Works Documents and Tenements.
(e) (Project operations) it will vote its interest and otherwise
participate in the Joint Venture and the Project in accordance
with policies which a good and prudent operator would adopt
for maintaining and operating the Mine;
(f) (Continuity of operations) it will vote its interest and
otherwise participate in the Joint Venture and the Project so
as to ensure that at all times prior to repayment in full of
the Secured Money the Mine continues in operation and is not
abandoned;
(g) (Cash calls) it will duly and punctually pay or cause to be
paid all Called Sums (as defined in the Joint Venture
Agreement) which it is obliged to pay under the Joint Venture
Agreement and any debt accrued under clause 9.2 of the Joint
Venture Agreement;
(h) (Title retention) it will not enter into any agreement with
respect to the acquisition of Project Assets on title
retention terms, except in the ordinary course of trading;
(i) (Mine expansion) it will elect not to contribute towards any
expansion of the Mine and it will vote its interest in the
Joint Venture against any such expansion unless that expansion
has been approved by the Agent;
(j) (Partitioning dilution or disposal) it will not undertake, or
agree to, or take any action to facilitate or permit, the
partitioning of the Project Assets or any of them or the sale
or disposal of, or creation of any interest in, any such
Project Assets or its interest in such Project Assets, other
than:
(i) the sale or other disposal of assets which in the good
faith opinion of the Operator are no longer required
for the purposes of the Joint Venture (either because
of the acquisition of a replacement or otherwise);
(ii) the sale or other disposal of land to Government
Agencies solely for the purposes of the establishment
of infrastructure for the Project;
(iii) the sale or other disposal of coal in the ordinary
course of trading;
Page 53
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(iv) the creation of any Security Interest permitted by
this Agreement; or
(v) any sale or other disposal permitted under this
Agreement;
(k) (Insurance)
(i) (general obligations) it will (or will procure that
the Operator) at its own cost and in the name of
itself and the Security Trustee, for their respective
rights and interests:
(A) insure such of its interest in the Project
Assets and the Project as is of an insurable
nature and keep it insured; and
(B) take out public risk insurance with respect to
the Project,
in such manner, to such extent, and on such terms as
agreed between the Opertaor and the Agent (following
consultation with the independent insurance adviser
referred to in clause 15.1(n)(i)) prior to the first
Drawdown Date and will not change or agree to change
the manner, extent or terms of such insurance in any
material respect without the prior consent of the
Agent following consultation with a reputable
independent insurance broker (such consent not to be
unreasonably withheld);
(ii) (additional insurance) it will (or will procure that
the Operator) at its own cost and in the name of
itself and the Security Trustee, for their respective
rights and interests effect such further or additional
insurance in a manner, extent and on terms as may from
time to time be reasonable and customary for a prudent
operator in the Australian coal mining industry for
mines and mining facilities of substantially
comparable type and scale;
(iii) (payment of premiums) it will duly and punctually pay
all premiums, stamp duties and other expenses
necessary for effecting and maintaining in force each
Insurance Policy;
(iv) (no prejudicial action) it will not do, permit, or
omit to do, anything which may prejudice an Insurance
Policy;
(v) (insurers) it will take out each Insurance Policy with
its current insurers or other reputable insurers;
(vi) (terms of policy) it will procure that each Insurance
Policy provides that:
(A) the Security Trustee is named as loss payee in
respect of insurances of property of that
Borrower;
(B) the proceeds of any loss in respect of insurance
of property of that Borrower shall be paid to
the Proceeds Account;
(C) rights of the insurers to set-off or
counterclaim or to make any other deduction or
withholding as against the Indemnified Parties
are waived;
(D) all claims for insurance premiums or commissions
or additional premiums or assessments against
the Security Trustee and all persons claiming
under the Security Trustee are waived;
Page 54
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(E) any loss payable to the Security Trustee shall
be payable notwithstanding any breach of any
warranty, declaration or condition in any policy
or insurance by any other insured or any
misrepresentation or non-disclosure by any other
insured;
(F) the insurer will not terminate the policy
unless the relevant default or breach remains
unremedied for at least 14 days after notice by
the insurer to the Agent specifying the default
or breach;
(G) to the extent that the policy covers the
interest of an Indemnified Party, the insurer
will not refuse or reduce a claim or cancel or
avoid the policy solely on the grounds of any
breach of any warranty, declaration or
condition by any other insured or any
misrepresentation or non-disclosure by any
other insured except where the right to do so
results from the fraud of that Indemnified
Party; and
(H) if the relevant asset is to be replaced or
reinstated then a claim for replacement or
reinstatement value will be paid, otherwise the
amount payable under the policy will not be
less than the indemnity value of the asset at
the time of the event giving rise to the claim.
(vii) (averaging) it will use reasonable endeavours to
ensure that there is no averaging policy in any
Insurance Policy;
(viii) (remedy of default) if default is made by a Borrower
in effecting or keeping up any Insurance Policy, any
Insurance Policy from any cause becomes void or
voidable or the Agent determines that the insurer
under a policy may not be capable of meeting a claim,
the Agent may, but without any obligation so to do,
effect and keep up that Insurance Policy or take out a
new policy at the cost of that Borrower and that
Borrower shall forthwith upon demand repay to the
Agent all premiums and other money from time to time
paid or payable by the Agent in respect of that
Insurance Policy;
(ix) (make claims) if its Facility Security is enforced it
will do all things necessary and provide all
documents, evidence and information necessary to
enable the Security Trustee to collect or recover any
moneys due or to become due in respect of any
Insurance Policy;
(x) (notice of claim) it will as soon as possible in the
circumstances after it becomes aware of such an event
notify the Agent of the occurrence of any event giving
rise to a claim under an Insurance Policy in excess of
A$500,000;
(xi) (settlement of claims) if an Event of Default shall be
subsisting the Security Trustee in conjunction with
that Borrower may make, enforce, settle or compromise
any such claim in respect of such insurance and
demand, ▇▇▇ for, recover, receive and give discharge
for all moneys payable by virtue of any such claim and
shall inform the Agent of any such action;
(xii) (cancellation) it will not cause or take any steps to
bring about the cancellation, material change or
reduction of any Insurance Policy unless it has given
at least 60 days prior written notice to the Agent;
and
Page 55
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(xiii) (annual statements) it will, on renewal of an
Insurance Policy, deliver to the Agent in sufficient
copies for all Participants a report from its brokers
or insurers as to such Insurance Policy setting out
such details as the Agent shall reasonably require
including the following:
(A) the types and amounts of cover;
(B) the insurers;
(C) the claims made or paid during that year or any
circumstances which have arisen allowing a claim
to be made; and
(D) a statement that the Insurance Policy is in full
force and effect and all premiums paid;
(xiv) (Market Capacity) Notwithstanding the provisions of
this clause 17.2(k), each Borrower, the Operator and
the Marketing Company shall not be in breach of its
obligations under this clause 17.2(k), to the extent
that and for so long as:
(A) insurances on the terms as required to be taken
out or maintained under this clause 17.2(k) are
not, in the opinion of the Agent (following
consultation with its independent insurance
adviser), available on reasonable commercial
terms in the insurance market; or
(B) the Agent otherwise agrees to waive the benefit
of such obligation.
(l) (Sales Agreements) it will notify (or ensure that the
Marketing Company notifies) the Agent:
(i) of each new Sales Agreement, specifying the buyer, the
term, and the tonnage and source of the coal to be
sold; and
(ii) each time a Sales Agreement to which it is a party (or
to the benefit of which it is entitled) is renewed or
extended or is amended as to the buyer, the term or
the tonnages of coal to be sold, giving particulars of
the renewal, extension or amendment.
Notification under this paragraph (l) will be made by means of
inclusion in the reports referred to in clause 17.2(a)(v).
(m) (Information) it will ensure that it or the Operator fully
informs the Agent as soon as it or the Operator (as the case
may be) becomes aware of the same of:
(i) (Security Interest enforceable) any Security Interest
over any of its interest in the Project Assets or the
Project becoming enforceable;
(ii) (Joint Venture default) the giving or receipt by any
Borrower of any notice in terms of clause 14.1 of the
Joint Venture Agreement;
(iii) (Project Document or Works Document default) any
material breach or failure to perform or observe any
obligation on the part of any party under any
Tenement, any Project Document or any Works Document;
(iv) (claim) any claim or demand made by any person in
respect of the Project which claim or demand is likely
to have a Material Adverse Effect in relation to it;
Page 56
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(v) (material adverse change) any change in the condition
or operation of the Mine which is likely to have a
Material Adverse Effect in relation to it; and
(vi) (Mine Expansion) any proposal of any expansion of the
Mine which is presented for approval by the Joint
Venturers under the Joint Venture Agreement; and
(vii) (other information) it will give to the Agent such
other information concerning the Project and available
to it which the Agent may reasonably request;
(n) (Leases of Key Equipment) it will not enter into any Lease of
Key Equipment or its interest in any Key Equipment or use Key
Equipment in connection with the Project which is subject to a
Lease other than the equipment which is currently leased under
the hire agreement entitled ARO Series 40 REMLB-AWT Roof
Bolter dated 4 May 2001 between ▇▇▇▇▇ ▇▇▇▇▇▇ Pty Limited and
Hydramatic Engineering Pty Limited or any Lease of Key
Equipment which replaces such leased Key Equipment or as
otherwise approved by the Agent;
(o) (Authorisations, registration) it shall use its best
endeavours to ensure that::
(i) all Authorisations as may be required under applicable
law:
(A) for the operation of the Mine and the rail
transport of coal:
(B) for the sale or other disposal of coal produced
at the Mine for export or otherwise; or
(C) for the enforceability of the Tenements or the
performance and enforceability of the Project
Documents or the Works Documents;
are when necessary duly obtained and maintained in
full force and effect; and
(ii) all material conditions with respect to such
Authorisations are duly and punctually complied with.
(p) (pay Project Taxes) it will duly and punctually pay or cause
to be paid when due all Project Taxes payable by it and, in
the case of Project Taxes payable by the Operator in the
proportion for which it is liable under the Joint Venture
Agreement;
(q) (compliance with laws) it will vote its interest in the Joint
Venture and do all such other things as are within its power
as a Joint Venturer so as to ensure that all laws (including
environmental laws) applicable to it or to the Joint Venturers
(as such) or the Project now or in the future in force and
that all requirements, legally binding on it, the Joint
Venturers (as such) or the Project, of any Governmental Agency
are duly and punctually complied with;
(r) (Project books) it will ensure that:-
(i) separate and complete books, accounts and records are
kept relating to the operations and business of the
Joint Venture and the Project Assets and its interest
in the Project Assets and the Project, including all
costs incurred under the Joint Venture Agreement; and
(ii) such of those books, accounts and records and of all
other documents relating to the Joint Venture or
Project are kept at an address notified to the Agent;
Page 57
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(s) (inspection) it will permit representatives of the Agent or
any of the Participants (or any accountants, engineers or
other experts designated by the Agent or that Participant,
respectively) to visit and inspect all of the Project Assets
and the records maintained under paragraph (r) at such times
and as often as may reasonably be requested provided such
representatives or experts comply with applicable health and
safety laws and site procedures and do not cause undue
disruption to normal operation of the Project;
(t) (marketing) so far as is reasonably open to it will take
action to ensure that coal produced by or for it from the Mine
is marketed in a commercially reasonable manner, including
without limitation the seeking of renewals of existing
contracts where appropriate;
(u) (change of Operator) it will not remove the Operator as an
operator of the Joint Venture or vote for or suffer such
removal except in accordance with the Joint Venture Agreement
as at the date of this Agreement or as amended with the
consent of the Agent acting on the instructions of the
Majority Participants;
(v) (Project Assets) it will vote its interest and otherwise do
everything within its power to ensure that the Project Assets
are kept in good repair and good working order in accordance
with good operating practice;
(w) (Stage 2 Works Contract) it will not enter into (or permit the
Operator to enter into) the Stage 2 Works Contract except with
the prior written approval of the Agent, acting on the
instructions of the Majority Participants, not to be
unreasonably withheld.
(x) (Ventilation approvals) it will ensure that all Authorisations
and other consents, approvals or other arrangements necessary
to construct a ventilation shaft from the land subject to CL
382 to the land subject to MPL 343 are obtained and effected
as and when required in order to maintain production from the
Mine as projected in the Base Case Model.
17.3 TERM OF APPLICATION OF UNDERTAKINGS
Any undertakings by each Borrower in this Clause 17 will bind it from
the date of this Agreement and so long as that Borrower's Portion of
any amount of principal is outstanding or any other amount due by that
Borrower under this Agreement is outstanding or any of that Borrower's
Portion of the Total Commitments for any Facility is in force.
18. EVENTS OF DEFAULT
18.1 EVENTS OF DEFAULT RELATING TO INDIVIDUAL BORROWERS
Each of the following is an Event of Default (whether or not it is in
the control of any Relevant Company).
(a) (Obligations under Transaction Documents) A Relevant Company
or a Sponsor fails:
(i) to pay any amount payable by it under a Transaction
Document when due;
(ii) to comply with any of its other obligations under a
Relevant Document and, if that failure can be remedied
within 10 Business Days (other than an undertaking
which provides for an act to be done within a
specified period), does not remedy the failure within
that period; or
Page 58
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(iii) to satisfy within the time stipulated anything which
the Agent made a condition of its waiving compliance
with a condition precedent or undertaking in a
Transaction Document.
(b) (Misrepresentation) A representation, warranty or statement by
or on behalf of a Relevant Company or a Sponsor in a
Transaction Document, or in a document provided under or in
connection with a Transaction Document, is not true or is
misleading in a material respect when made or repeated.
(c) (Cross default) Any default occurs in respect of the payment
by a Borrower of an amount of A$500,000 (or its equivalent) or
more or such an amount becomes payable before its stated
maturity or expiry, except where the Borrower exercises an
optional right of prepayment or termination or any amount
owing by a Borrower and secured by the Cross Charges in favour
of the other Borrower is not paid when due.
(d) (Administration, winding up, arrangements, insolvency etc)
(i) An administrator of a Relevant Company or, prior to
its release pursuant to clause 19.15, a Sponsor, is
appointed.
(ii) Except for the purpose of a solvent reconstruction or
amalgamation previously approved by the Agent:
(A) an application or an order is made, proceedings
are commenced, a resolution is passed or
proposed in a notice of meeting, an application
to a court or other steps are taken for:
(1) the winding up, dissolution or
administration of a Relevant Company or,
prior to its release pursuant to clause
19.15, a Sponsor; or
(2) a Relevant Company or, prior to its
release pursuant to clause 19.15, a
Sponsor, entering into an arrangement,
compromise or composition with or
assignment for the benefit of its
creditors or a class of them,
(other than frivolous or vexatious applications,
proceedings, notices and steps) and such action
is not discontinued, withdrawn or dismissed
within 14 days of its commencement; or
(B) a Relevant Company or, prior to its release
pursuant to clause 19.15, a Sponsor, ceases,
suspends or threatens to cease or suspend the
conduct of all or a substantial part of its
business or disposes of or threatens to dispose
of a substantial part of its assets.
(iii) A Relevant Company or, prior to its release pursuant
to clause 19.15, a Sponsor:
(A) is, or under legislation is presumed or taken to
be, insolvent; or
(B) stops or suspends or threatens to stop or
suspend payment of all or a class of its debts.
(e) (Enforcement against assets)
Page 59
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(i) A receiver, receiver and manager, trustee or similar
officer is appointed to all or any of the assets and
undertaking of a Relevant Company or, prior to its
release pursuant to clause 19.15, assets comprising
10% or more of the total assets of a Sponsor, unless
such appointment is contested in good faith by
appropriate proceedings and such appointee is removed
within 14 days of the appointment.
(ii) A Security Interest becomes enforceable over:
(A) any assets of a Relevant Company having a value
exceeding A$500,000 or, prior to its release
pursuant to clause 19.15, assets comprising 10%
or more of the total assets of a Sponsor;
(B) a material part of the undivided interest of a
Relevant Company in the Joint Venture's
property; or
(C) any assets of a Relevant Company which have been
mortgaged or charged under a Facility Security.
(iii) Any distress or execution is levied upon or applied
for over:
(A) a Relevant Company's assets for an amount of
A$500,000 (or its equivalent) or more or, prior
to its release pursuant to clause 19.15, assets
comprising 10% or more of the total assets of a
Sponsor;
(B) a material part of the undivided interest of a
Relevant Company in the Joint Venture's
property; or
(C) any Relevant Company's assets which have been
mortgaged or charged under a Facility Security,
unless the levy or application is dismissed,
discontinued, set aside or satisfied within 30 days or
the Majority Participants are satisfied it is
frivolous or vexatious.
(f) (Reduction of capital) Without the prior consent of the Agent,
a Relevant Company:
(i) reduces its capital (including a purchase of its
shares or a redemption of redeemable shares);
(ii) passes a resolution to reduce its capital or to
authorise it to purchase its shares or passes a
resolution under chapter 2J of the Corporations Act or
an equivalent provision, or calls a meeting to
consider any such resolution; or
(iii) applies to a court to call any such meeting or to
sanction any such resolution or reduction.
(g) (Investigation) An investigation into all or part of the
affairs of any Relevant Company or, prior to its release
pursuant to clause 19.15, a Sponsor, commences under Division
1 of Part 3 of the Australian Securities and Investments
Commission ▇▇▇ ▇▇▇▇ which, in the Majority Participants'
reasonable opinion, is materially adverse to any Borrower's
financial condition.
(h) (Analogous process) Anything analogous to anything referred to
in paragraphs (d) to (g) inclusive, or which has substantially
similar effect, occurs.
(i) (Vitiation of documents)
Page 60
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(i) Any material provision of a Transaction Document is
terminated or is or becomes void, illegal, invalid,
unenforceable or of limited force and effect;
(ii) a party becomes entitled to terminate, rescind or
avoid any such material provision; or
(iii) a Relevant Company alleges or claims that an event
described in sub-paragraph (i) has occurred or that it
is entitled as described in sub-paragraph (ii).
(j) (Revocation of Authorisation) An Authorisation, approval or
consent which is material to the Transaction Documents or the
performance by a Relevant Company or, prior to its release
pursuant to clause 19.15, a Sponsor, of its obligations under
them is repealed, revoked or terminated or has expired, or is
modified or amended or conditions are attached to it in a
manner which the Majority Participants reasonably consider to
be likely to have a Material Adverse Effect and is not
replaced by another Authorisation, approval or consent
reasonably acceptable to the Agent within 14 days.
(k) (Material adverse change) Any other event or series of events,
whether related or not, occurs in relation to a Relevant
Company (including any change in the business, assets or
financial condition of a Relevant Company or, prior to its
release pursuant to clause 19.15, a Sponsor) which in the
reasonable opinion of the Majority Participants is likely to
have a Material Adverse Effect in relation to the Relevant
Company or, prior to its release pursuant to clause 19.15, a
Sponsor, and, if in the opinion of the Majority Participants
such event or series of events is capable of remedy, the
Relevant Company or Sponsor fails:
(i) within 30 days of receiving notice from the Agent of
that event or series of events (providing reasonable
details), to provide the Agent with a plan (including
a timetable) to overcome or remedy that effect which
is acceptable to the Majority Participants; or
(ii) to diligently implement that plan or to overcome or
remedy that effect within the timetable specified in
that plan.
(l) (Change in control) There is a change in the control (as
defined in s50AA of the Corporations Act) of a Relevant
Company.
(m) (Compulsory acquisition)
(i) All or any material part of a Relevant Company's or,
prior to its release pursuant to clause 19.15, a
Sponsor's material property is compulsorily acquired
by or by order of a Government Agency or under Law;
(ii) a Government Agency orders the sale, vesting or
divesting of the property referred to in sub-paragraph
(i); or
(iii) a Government Agency takes a step for the purpose of
any of the above or proposes or threatens to do any of
the above.
18.2 General Events of Default
Each of the following is an Event of Default (whether or not it is in
the control of any Relevant Company).
(a) (Financial Ratios) If in respect of any Test Date:
Page 61
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(i) DSCR is less than 1.10;
(ii) FDSCR is less than 1.10;
(iii) LLCR is less than 1.25; or
(iv) RLCR is less than 1.50.
(b) (Revocation of Authorisation) An Authorisation, approval or
consent which is material to the Project, a Project Document
or a Works Document is repealed, revoked or terminated or has
expired, or is modified or amended or conditions are attached
to it in a manner which the Majority Participants reasonably
consider to be likely to have a Material Adverse Effect in
relation to both Borrowers or the Project and is not replaced
by another Authorisation, approval or consent reasonably
acceptable to the Agent within 14 days.
(c) (Material adverse change) Any other event or series of events,
whether related or not, occurs in relation to the Project
which in the reasonable opinion of the Majority Participants
is likely to have a Material Adverse Effect in relation to
both Borrowers or the Project and, if in the opinion of the
Majority Participants such event or series of events is
capable of remedy, the Operator fails:
(i) within 30 days of receiving notice from the Agent of
that event or events (providing reasonable details),
to provide the Agent with a plan (including a
timetable) to overcome or remedy that effect which is
acceptable to the Majority Participants; or
(ii) to diligently implement that plan or to overcome or
remedy that effect within the timetable specified in
that plan.
(d) (Compulsory acquisition)
(i) All or any material part of the Joint Venture's
property is compulsorily acquired by or by order of a
Government Agency or under Law;
(ii) a Government Agency orders the sale, vesting or
divesting of the property referred to in sub-paragraph
(i); or
(iii) a Government Agency takes a step for the purpose of
any of the above or proposes or threatens to do any of
the above.
(e) (Governmental interference) A Law or anything done by a
Government Agency in respect of the Project, the Project
Documents or the Works Documents is likely to have, in the
reasonable opinion of the Majority Participants, a Material
Adverse Effect in relation to both Borrowers or the Project.
(f) (Environmental event)
(i) Any person takes action;
(ii) there is a claim; or
(iii) there is a requirement of expenditure or of cessation
or alteration of activity,
under Environmental Law in respect of the Project or the Works
, which in the reasonable opinion of the Majority Participants
is likely to have a Material Adverse Effect in relation to
both Borrowers or the Project.
Page 62
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(g) (Insurance policy) Notice is given that any insurance policy
effected under clause 17 is to be cancelled or materially
adversely modified and is not replaced by a new policy
reasonably satisfactory to the Agent (having regard to the
provisions of Clause 17) prior to such cancellation or
modification taking effect.
(h) (Removal of Operator)
(i) The Operator of the Project is removed or resigns and
is not replaced by another operator reasonably
acceptable to the Majority Participants within 30 days
of its removal or resignation.
(ii) The Operator becomes a Subsidiary of a person which
the Majority Participants reasonably consider to be
unacceptable.
(i) (Abandonment of Project) The Project is abandoned.
(j) (Project Document default) Any person defaults under any
Project Document or Works Document and, if capable of remedy,
the default is not remedied within 30 days or otherwise in
accordance with a rectification proposal approved by the Agent
which is being diligently pursued by the Borrowers to the
satisfaction of the Agent and that failure, in the reasonable
opinion of the Majority Participants, is likely to have a
Material Adverse Effect in relation to both Borrowers or the
Project.
(k) (Vitiation of documents)
(i) Any material provision of a Project Document or a
Works Document is terminated or is or becomes void,
illegal, invalid, unenforceable or of limited force
and effect;
(ii) a party becomes entitled to terminate, rescind or
avoid any such material provision;
(iii) a Relevant Company or a Sponsor alleges or claims that
an event described in sub-paragraph (i) has occurred
or that it is entitled as described in sub-paragraph
(ii); or
(iv) a party to a Project Document or a Works Document (not
being a Relevant Company or a Sponsor) claims that an
event described in sub-paragraph (i) has occurred or
that it is entitled as described in sub-paragraph
(ii), and the Operator or a Borrower does not with 30
days of such claim being made provide to the Agent an
opinion from senior counsel to the effect that the
claim has negligible chance of success;
(l) (removal of Tenements) Without replacement, any Mining Lease
is forfeited, compulsorily acquired or terminated or
substantially and adversely amended to such an extent as to
remove substantially the benefit of such Mining Lease.
(m) (closure of Mine) Other than by reason of Force Majeure, the
Mine ceases to operate for a period in excess of 30 days.
(n) (delay in the Works) Other than by reason of Force Majeure,
delays equalling or exceeding 6 months in aggregate occur in
completing the Works.
Page 63
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(o) (Completion Date) Other than by reason of Force Majeure:
(i) Stage 1 Works Completion does not occur by 30
September 2003; or
(ii) Stage 2 Works Completion does not occur by 31 December
2005.
(p) (Change in Joint Venturers) Without the prior consent of the
Agent, there is a change in the identity or respective
Participating Interests of the Joint Venturers except:
(i) where each Sponsor continues to guarantee its Relevant
Borrower's Portion of the Secured Money under clause
19 ; or
(ii) a change in the identity or Participating Interest of
a Borrower whose Relevant Sponsor has been released
pursuant to clause 19.15.
18.3 TECHNICAL DEFAULT IN PAYMENT
Failure by a Borrower to pay an amount due will not constitute an
Event of Default under clause 18.1(a)(i) if:
(a) before the exercise of the Agent's powers under clause 18.4 or
18.5 the Borrower demonstrates to the satisfaction of the
Agent that it had sufficient available funds with its bankers
and had given appropriate instructions to those bankers to
make that payment and that the payment would have been made
but for temporary technical or administrative difficulties
outside the control of the Borrower; and
(b) payment is received in the manner required within 3 Business
Days of the due date.
The Agent need not wait for a demonstration under paragraph (a) before
exercising its powers under clause 18.4 or 18.5.
18.4 CONSEQUENCES - INDIVIDUAL EVENT OF DEFAULT
In addition to any other rights provided by Law or any Transaction
Document, at any time after an Event of Default (whether or not it is
continuing) specified in Clause 18.1 occurs in relation to a Borrower
(the Defaulting Borrower), the Agent may and shall, if directed by the
Majority Participants, do all or any of the following:
(a) by notice to the Defaulting Borrower (copied to the Operator)
declare the Secured Money payable by that Defaulting Borrower:
(i) immediately due and payable; or
(ii) on the demand of the Agent,
and the Defaulting Borrower shall pay the Secured Money
payable by it immediately or on the demand of the Agent (as
the case may be);
(b) declare the Commitments and the obligations of the
Participants insofar as they relate to the Defaulting Borrower
to be terminated;
(c) disallow any releases from the Bank Accounts to the Defaulting
Borrower; or
(d) enforce the Facility Securities in relation to the assets of
the Defaulting Borrower.
Page 64
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
18.5 CONSEQUENCES - PROJECT EVENT OF DEFAULT
In addition to any other rights provided by Law or any Transaction
Document, at any time after an Event of Default (whether or not it is
continuing) specified in Clause 18.2 occurs, the Agent may and shall,
if directed by the Majority Participants, do all or any of the
following:
(a) by notice to the Operator declare the Secured Money payable by
each Borrower:
(i) immediately due and payable; or
(ii) on the demand of the Agent,
and each Borrower shall pay the Secured Money payable by it
immediately or on the demand of the Agent (as the case may
be);
(b) declare the Commitments and the obligations of the
Participants to be terminated;
(c) disallow any releases from the Bank Accounts to the Borrowers;
or
(d) enforce the Facility Securities.-
18.6 NOTIFICATION BY AGENT
(a) Where the Agent has received written notice stating (or,
subject to clause 36.9(a), is otherwise actually aware) that
an Event of Default or Potential Event of Default subsists in
respect of one or more (but not all) Relevant Companies or
Sponsors, the Agent shall promptly notify the other Relevant
Companies or Sponsor, as applicable, of that Event of Default
or Potential Event of Default. The Agent shall use reasonable
endeavours to provide that notice before enforcing its rights
in connection with that Event of Default or Potential Event of
Default under any Transaction Document.
(b) A failure by the Agent to comply with paragraph (a) will not
provide any grounds for hindering, preventing or delaying the
exercise of any rights or enforcement of any obligations under
the Transaction Documents.
19. GUARANTEE
19.1 INTERPRETATION
Unless the context requires otherwise, in this clause a reference to:
(a) any person includes a Borrower; and
(b) any document or agreement includes this Agreement and any
other Transaction Document.
19.2 GUARANTEE
Subject to clause 19.15, each Sponsor unconditionally and irrevocably
guarantees the due and punctual payment of its Guaranteed Money. Each
Sponsor enters into this Agreement for valuable consideration which
includes the Indemnified Parties entering into this Agreement at its
request.
19.3 PAYMENT
(a) Subject to clause 19.15, on demand from time to time each
Sponsor shall pay an amount equal to its Guaranteed Money then
due and payable in the same manner and currency
Page 65
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
which its Relevant Borrower is required to pay the Secured
Money payable by its Relevant Borrower under the relevant
Transaction Document (or would have been but for its
Liquidation).
(b) A demand need only specify the amount owing. It need not
specify the basis of calculation of that amount.
19.4 UNCONDITIONAL NATURE OF OBLIGATION
Neither this Agreement nor the obligations of a Sponsor under this
Agreement will be affected by anything which but for this provision
might operate to release, prejudicially affect or discharge them or in
any way relieve a Sponsor from any obligation. This includes the
following:
(a) the grant to any person of any time, waiver or other
indulgence, or the discharge or release of any person;
(b) any transaction or arrangement that may take place between any
Indemnified Party and any person;
(c) the Liquidation of any person;
(d) any Indemnified Party becoming a party to or bound by any
compromise, moratorium, assignment of property, scheme of
arrangement, deed of company arrangement, composition of debts
or scheme of reconstruction by or relating to any person;
(e) any Indemnified Party exercising or delaying or refraining
from exercising or enforcing any document or agreement or any
right, power or remedy conferred on it by law or by any
document or agreement;
(f) all or any part of any document or agreement held by any
Indemnified Party at any time or of any right, obligation,
power or remedy changing, ceasing or being transferred (this
includes amendment, variation, novation, replacement,
rescission, invalidity, extinguishment, repudiation,
avoidance, unenforceability, frustration, failure, expiry,
termination, loss, release, discharge, abandonment or
assignment);
(g) the taking or perfection of any document or agreement or
failure to take or perfect any document or agreement;
(h) the failure by any person or any Indemnified Party to notify a
Sponsor of any default by any person under any document or
agreement or other circumstance;
(i) any Indemnified Party obtaining a judgment against any person
for the payment of any Guaranteed Money;
(j) any legal limitation, disability, incapacity or other
circumstance relating to any person;
(k) any change in any circumstance (including in the members or
constitution of any person);
(l) any document or agreement is not executed by any person, or is
not valid or binding on any person; or
(m) any increase in the Guaranteed Money for any reason (including
as a result of anything referred to above),
whether with or without the consent of the Sponsor. None of the above
paragraphs limits the generality of any other.
Page 66
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
19.5 PRINCIPAL AND INDEPENDENT OBLIGATION
This clause is a principal and independent obligation. Except for
stamp duty purposes, it is not ancillary or collateral to another
document, agreement, right or obligation.
19.6 NO MARSHALLING
No Indemnified Party is obliged to marshal or appropriate in favour of
a Sponsor or to exercise, apply or recover:
(a) any Security Interest, Guarantee, document or agreement
(including any Transaction Document) held by an Indemnified
Party at any time; or
(b) any of the funds or assets that an Indemnified Party may be
entitled to receive or have a claim on.
19.7 NO COMPETITION
Subject to clause 19.15, until its Guaranteed Money has been
irrevocably paid and discharged in full a Sponsor is not entitled to
and shall not:
(a) be subrogated to any Indemnified Party or claim the benefit of
any Security Interest or Guarantee held by any Indemnified
Party at any time;
(b) either directly or indirectly prove in, claim or receive the
benefit of, any distribution, dividend or payment in the
Liquidation of the Borrower, or any person who gives a
Guarantee or Security Interest in respect of any Guaranteed
Money; or
(c) have or claim any right of contribution or indemnity from a
Borrower, or any person who gives a Guarantee or Security
Interest in respect of any Guaranteed Money.
The receipt of any distribution, dividend or other payment by any
Indemnified Party out of or relating to any Liquidation will not
prejudice the right of any Indemnified Party to recover the Secured
Money by enforcement of this Agreement.
19.8 SUSPENSE ACCOUNT
Subject to clause 19.15, in the event of the Liquidation of a
Sponsor's Relevant Borrower or any other person that Sponsor
authorises each Indemnified Party to do the following until each
Indemnified Party has been paid that Sponsor's Guaranteed Money in
full:
(a) prove in respect of all moneys which that Sponsor has paid
that Indemnified Party under this Agreement; and
(b) (i) retain and carry to a suspense account; and
(ii) appropriate at the discretion of the Agent,
any dividend received in the Liquidation of that Sponsor's
Relevant Borrower or any other person and any other money
received in respect of that Sponsor's Guaranteed Money.
19.9 RESCISSION OF PAYMENT
Subject to clause 19.15, whenever any of the following occurs for any
reason (including under any law relating to Liquidation, fiduciary
obligations or the protection of creditors):
Page 67
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(a) all or part of any transaction of any nature (including any
payment or transfer) made during the term of this Agreement
which affects or relates in any way to a Sponsor's Guaranteed
Money is void, set aside or voidable;
(b) any claim that anything contemplated by paragraph (a) is so
upheld, conceded or compromised; or
(c) any Indemnified Party is required to return or repay any money
or asset received by it under any such transaction or the
equivalent in value of that money or asset,
each Indemnified Party will immediately become entitled against that
Sponsor to all rights in respect of that Sponsor's Guaranteed Money
and the Mortgaged Property which it would have had if all or the
relevant part of the transaction or receipt had not taken place. The
relevant Sponsor shall indemnify each Indemnified Party on demand
against any resulting loss, cost or expense. This clause continues
until the obligations of the Sponsor terminate under clause 19.15.
19.10 INDEMNITY
Subject to clause 19.15, if any Sponsor's Guaranteed Money (including
moneys which would have been that Sponsor's Guaranteed Money if they
were recoverable) is not recoverable from that Sponsor's Relevant
Borrower for any reason that Sponsor shall indemnify each Indemnified
Party on demand and shall pay that money to the relevant Indemnified
Party on demand. The reason may include any legal limitation,
disability, incapacity or thing affecting that Sponsor's Relevant
Borrower or any failure to execute properly an agreement or document.
This applies whether or not:
(a) any transaction relating to that Sponsor's Guaranteed Money
was void or illegal or has been subsequently avoided; or
(b) any matter or fact relating to that transaction was or ought
to have been within the knowledge of any Indemnified Party.
19.11 CONTINUING GUARANTEE AND INDEMNITY
The obligations of each Sponsor under this clause:
(a) are a continuing guarantee and indemnity;
(b) will not be taken to be wholly or partially discharged by the
payment at any time of any Guaranteed Money or by any
settlement of account or other matter or thing; and
(c) remains in full force until the Sponsor Release Date or, if
earlier, the Sponsor's Guaranteed Money has been paid in full
and the Sponsor has completely performed its obligations under
this Agreement.
19.12 VARIATIONS
This clause covers the Guaranteed Money of a Sponsor as varied from
time to time including as a result of:
(a) any amendment to, or waiver under, any Transaction Document;
or
(b) the provision of further accommodation to that Sponsor's
Relevant Borrower,
Page 68
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
and whether or not with the consent of or notice to that Sponsor. This
does not limit any other provision.
19.13 JUDGMENT
A judgment obtained against a Sponsor's Relevant Borrower will be
conclusive against the Sponsor.
19.14 CONDITIONS PRECEDENT
Any condition or condition precedent to the provision of financial
accommodation is for the benefit of the Indemnified Parties and not
the Sponsors. Any waiver of or failure to satisfy such a condition or
condition precedent will be disregarded in determining whether an
amount is part of the Guaranteed Money.
19.15 TERMINATION
The obligations of a Sponsor under this clause shall terminate with
effect on and from the Sponsor Release Date and, at the request of the
Sponsor, the Indemnified Parties will provide a release and discharge
of that Sponsor's obligations under this clause in a form acceptable
to that Sponsor (acting reasonably) on the Sponsor Release Date,
provided that on that date:
(a) all representations and warranties by the Sponsor or the
Sponsor's Relevant Borrower under Clause 16 are correct as if
made on that date; and
(b) no Event of Default or Potential Event of Default has occurred
and is subsisting in relation to the Sponsor's Relevant
Borrower.
If the obligations of a Sponsor under this clause do not terminate and
the Indemnified Parties do not provide a release and discharge to a
Sponsor on the Sponsor Release Date because on that date the
circumstances in paragraph (a) or (b) apply, the obligations of that
Sponsor under this clause will terminate and the Indemnified Parties
will provide such a release and discharge at the request of that
Sponsor on the date which is 90 days after the Sponsor Release if,
prior to that latter date, the Agent and the Majority Participants
have not exercised any right under clause 18.4 or clause 18.5.
Any termination, release or discharge will be without prejudice to any
claims under this clause which have accrued prior to termination.
19.16 NO SET-OFF
No Sponsor will exercise or seek to exercise or claim any set-off as
between moneys payable to it by an Indemnified Party and the
Guaranteed Money.
20. BANK ACCOUNTS
20.1 PROCEEDS ACCOUNT
(a) (Establishment) Each Borrower shall establish in its name the
following Australian and US dollar accounts (together, the
Proceeds Account for that Borrower) with the Agent:
(i) an account styled: [Name of Borrower] - AUD Proceeds Account; and
(ii) an account styled: [Name of Borrower] - USD Proceeds Account.
(b) (Terms) Each Proceeds Account established under paragraph (a)
shall be on terms that:
Page 69
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(i) subject to sub-paragraph (ii), an Authorised Officer
of the relevant Borrower may authorise all withdrawals
or transfers from the Proceeds Account which are in
accordance with this Agreement; and
(ii) at any time while an Event of Default or Potential
Event of Default subsists, the Agent may take
exclusive control of the operation of the Proceeds
Account by notice to the Borrower, subject to the
provisions of this Agreement.
20.2 PAYMENTS INTO PROCEEDS ACCOUNT
Each Borrower shall ensure that all money received or receivable by it
from any source (including Segments and withdrawals from any other
Bank Account) are paid directly to, or immediately credited forthwith
on receipt of the same to, its Proceeds Account for the currency in
which such money is denominated.
20.3 PAYMENTS OUT OF PROCEEDS ACCOUNTS
Each Borrower may make withdrawals from its Proceeds Accounts (and may
make transfers between its Proceeds Accounts as necessary for that
purpose) from time to time to pay the following amounts in the
following order of priority.
(a) Project Costs (excluding capital costs) included in the
Initial Budget (or any subsequent Budget) as and when they
fall due and to repay indebtedness to its Shareholder or a
Related Entity which has been used to pay Works Costs relating
to the Stage 1 Works in an amount not exceeding A$8,100,000.
(b) Project Taxes and Notional Project Taxes as and when they fall
due.
(c) Capital costs (other than financing costs) included in the
Initial Budget (or any subsequent Budget) as and when they
fall due.
(d) Any operating or maintenance costs for the purposes of the
Project (other than Project Costs under paragraph (a)) as
approved by the Agent as and when they fall due.
(e) Capital Costs (other than financing costs) not included in the
Initial Budget (or any subsequent Budget) as approved by the
Agent as and when they fall due.
(f) Financing costs including Interest Expense, fees, costs and
expenses payable under this Agreement or pursuant to any
Hedging Arrangements (other than any Hedging Termination
Payments) as and when they fall due.
(g) On any Repayment Date, to pay any amounts falling due under
clause 8.1 and clause 8.3 in respect of the Term Facility and
the Mining Unit Facility.
(h) On any Repayment Date, to pay any amounts falling due under
clause 8.2 in respect of the Contingency Facility.
(i) to pay any amounts falling due under clause 8.4 in respect of
the Working Capital Facility as and when they fall due.
(j) to pay any Hedging Termination Payments in relation to Hedging
Arrangements as and when they fall due in accordance with
clause 21.7.
(k) To pay any other amount in respect of the Secured Money as and
when it falls due (other than any amount falling in paragraph
(p) below).
Page 70
(l) To transfer an amount to its Mining Unit Reserve Account in
accordance with clause 20.7(c).
(m) To transfer an amount to its Mine Development Reserve Account
in accordance with clause 20.8(c).
(n) To transfer an amount to its Debt Service Reserve Account in
accordance with clause 20.9(c).
(o) On any Repayment Date, to repay the Term Facility and the
Mining Unit Facility by an amount equal to 45% of the balance
standing to the credit of its Proceeds Account after making
the payments referred to in paragraphs (a) to (n) above
(inclusive) and after deducting the Cash Retention Requirement
on that date;
(p) Subject to clause 20.4, to pay:
(i) amounts falling due under clause 9.1; or
(ii) any Hedging Termination Payment which arises as a
result of the termination of a Hedging Arrangement due
to an amount in (i) above being paid or due to any
Undrawn Commitment being cancelled pursuant to clause
3.3.
(q) Subject to clause 20.4, to pay a Distribution by a Borrower if
each of the following conditions is satisfied on the date of
such payment:
(i) the payment is within 30 Days after a Repayment Date,
unless the payment is permitted prior to the
Conversion Date under clause 17.1(k)(v) and clause
20.3(a);
(ii) Lock-Up is not in effect;
(iii) there is no Event of Default or Potential Event of
Default and no Event of Default or Potential Event of
Default would occur as a result of such Distribution
(other than one the Agent acting in good faith is
satisfied relates only to the other Borrower); and
(iv) that Borrower's MUR Balance is not less than its
Required MUR Amount, its MDR Balance is not less than
its Required MDR Amount and the amount standing to the
credit of its Debt Service Reserve Account is not less
than its Required DSRA Amount.
Unless otherwise permitted under this Agreement, each Borrower will
make no other withdrawals or transfers from its Proceeds Account.
Each Borrower authorises the Agent to make withdrawals from its
Proceeds Account for the payment of any Secured Money owed by that
Borrower when due.
If the amount standing to the credit of a Proceeds Account on any day
on which an amount falling in any of the above paragraphs is due is
insufficient to pay all the amounts falling within a particular one of
the paragraphs in (a) to (q) (inclusive) that are due and payable (but
unpaid) on that date, then (subject in any event to the above order of
priority) the amount standing to the credit of the Proceeds Account
shall be applied pro rata against all such due amounts falling within
that paragraph (and no amount may be applied against any amount
referred to in any subsequent paragraph).
Where any amount is transferred by a Borrower between any of that
Borrower's Bank Accounts, any currency conversions will be made at the
Exchange Rate 2 Business Days before the transfer.
Page 71
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
20.4 CASH RETENTION REQUIREMENT
A Borrower may only withdraw an amount from its Proceeds Account for
any of the purposes referred to in paragraphs (p) or (q) of clause
20.3 if the balance of its Proceeds Account immediately following such
withdrawal (and the payment of all other amounts then due and payable
in respect of any of the other purposes specified in clause 20.3) will
not be less than its Cash Retention Requirement at that time.
20.5 AUDIT OF PROCEEDS ACCOUNTS
The Agent may require (and shall require if requested by the Majority
Participants) an independent audit of a Borrower's Proceeds Account on
a semi-annual basis.
20.6 PROCEEDS OF INSURANCE POLICIES
(a) Each Borrower will pay the proceeds of all insurance policies
received by it in connection with a Casualty Occurrence into
its Proceeds Account.
(b) Following a Casualty Occurrence, each Borrower will promptly
prepay all the Principal Outstanding and will pay and satisfy
all other Secured Money (and the proceeds standing to the
credit of the Proceeds Account may be used for this purpose)
unless, within 60 days of the Casualty Occurrence, the
Borrowers demonstrate to the reasonable satisfaction of the
Agent that:
(i) at and from the time of the Casualty Occurrence to the
expiration of the Facilities, the Borrowers are and
will be able to meet their respective obligations
under the Relevant Documents;
(ii) the Borrowers have decided to reinstate the affected
property to no less a condition than it was in before
the Casualty Occurrence;
(iii) the Borrowers have received those proceeds and
deposited them into the Proceeds Accounts;
(iv) those proceeds (together with any other amount
deposited by a Borrower or any other person into a
Borrower's Proceeds Account) are sufficient for each
Borrower to fund its share of the costs expected to be
incurred in reinstating the affected property to its
previous condition; and
(v) no Event of Default is subsisting.
The Agent will (while an Event of Default or Potential Event
of Default is subsisting, on the instructions of the Majority
Participants, but otherwise, at the direction of the relevant
Borrower) make available the proceeds standing to the credit
of the Borrower's Proceeds Account, provided that those
proceeds shall only be made available to the relevant Borrower
at its direction to the extent that they are required to fund
the relevant Borrower's share of the costs of the replacement,
repair or reimbursement of the affected property and upon
production to the Agent of invoices or cost estimates
reasonably satisfactory to the Agent for an amount equal to
that to be withdrawn from the Proceeds Account.
20.7 MINING UNIT RESERVE ACCOUNTS
(a) (Establishment)
Page 72
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(i) On or before the date of this Agreement, each Borrower
will establish in its name a US dollar account with
the Agent styled: [Name of Borrower] -Mining Unit
Reserve Account.
(ii) Each Mining Unit Reserve Account must be opened on
terms that only Authorised Officers of the Agent may
authorise withdrawals or transfers from the Mining
Unit Reserve Account and those Authorised Officers
will be the sole signatories to the Mining Unit
Reserve Account. The Agent shall cause those
Authorised Officers to effect any withdrawal or
transfer permitted by this clause.
(iii) The Agent will not make nor permit any withdrawals or
transfers from the Mining Unit Reserve Account except
as permitted by this clause 20.7.
(iv) At any time while an Event of Default subsists, each
Borrower authorises the Agent to make withdrawals from
its Mining Unit Reserve Account and each Sponsor
authorises the Security Trustee to make calls on MUR
Letters of Credit for the payment of any Secured Money
owed by that Borrower or, in the case of a Sponsor,
its Relevant Borrower, when due.
(b) (Payments into Mining Unit Reserve Account):
(i) The Security Trustee shall credit any amounts it
receives under any MUR Letter of Credit to the Mining
Unit Reserve Account of the Borrower on whose Relevant
Sponsor's account such MUR Letter of Credit is issued.
(ii) During the Availability Period for the Mining Unit
Facility, the Operator may, on behalf of the
Borrowers, give a Drawdown Notice requesting a Segment
of the Mining Unit Facility and that half of that
Segment be paid to each Borrower's Mining Unit Reserve
Account.
(c) (Transfers to Mining Unit Reserve Account) If on the
Conversion Date or any Test Date after the Conversion Date a
Borrower's MUR Balance is less than its Required MUR Amount,
then that Borrower shall promptly transfer from its Proceeds
Account to its Mining Unit Reserve Account an amount equal to
the lesser of:
(i) the amount by which its Required MUR Amount exceeds
its MUR Balance on that date; and
(ii) the balance (if any) standing to the credit of its
Proceeds Account after all of the payments falling in
clause 20.3(a) to (k) (inclusive) due to be made on or
prior to that date have been made.
(d) (Calls on Expiring MUR Letters of Credit) If at any time
within 30 days prior to the expiry of an MUR Letter of Credit
(the Expiring MUR Letter of Credit) a replacement MUR Letter
of Credit has not been issued to the Security Trustee which
will become effective no later than the expiry of the Expiring
MUR Letter of Credit for a face amount of not less than the
lesser of:
(i) the face amount of the Expiring MUR Letter of Credit
at that time less the aggregate at that time of all
amounts paid to the Security Trustee under the
Expiring MUR Letter of Credit in accordance with
paragraph (f); and
Page 73
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(ii) the amount by which the Required MUR Amount for the
Borrower for whose Relevant Sponsor's account the
Expiring MUR Letter of Credit is issued would exceed
that Borrower's MUR Balance immediately following the
expiry of the Expiring MUR Letter of Credit,
(such lesser amount, the Relevant Amount), the Agent may
instruct the Security Trustee to make a call under the
Expiring MUR Letter of Credit in an amount equal to the
Relevant Amount.
(e) (Payments from Mining Unit Reserve Account) A Borrower may
only withdraw amounts from its Mining Unit Reserve Account:
(i) to apply towards Works Costs relating to the Stage 2
Works to the extent that the same cannot be paid out
of that Borrower's Proceeds Account in accordance with
clause 20.3; and
(ii) to transfer to its Proceeds Account the amount (if
any) at any time standing to the credit of its Mining
Unit Reserve Account in excess of its Required MUR
Amount at that time.
(f) (Calls on MUR Letters of Credit) If at any time in the Agent's
opinion any Project Costs referred to in sub-paragraph (i) of
paragraph (e) which are due and payable by a Borrower cannot
be paid out of that Borrower's Proceeds Account in accordance
with clause 20.3, or its Mining Unit Reserve Account in
accordance with paragraph (e), the Agent may instruct the
Security Trustee to make a call under any MUR Letters of
Credit issued for the account of that Borrower's Relevant
Sponsor for an aggregate amount equal to the lesser of:
(i) the unpaid amount of such Project Costs; and
(ii) the total amounts available to be called under such
MUR Letters of Credit at that time.
(g) (Release of MUR Letters of Credit) If at any time a Borrower's
MUR Balance exceeds its Required MUR Amount the Borrower may,
by written notice to the Agent, request that the aggregate
amount available to be called under any MUR Letters of Credit
issued for the account of its Relevant Sponsor in excess of
its Required MUR Amount be reduced by an aggregate amount
which is not greater than such excess by releasing outstanding
MUR Letters of Credit and, if required, by that Borrower
procuring the issue of replacement MUR Letters of Credit in
the amount required so that its MUR Balance is equal to its
Required MUR Amount. Following receipt of any such notice from
a Borrower, the Agent shall instruct the Security Trustee to
release such MUR Letters of Credit to the extent of such
excess.
20.8 MINE DEVELOPMENT RESERVE ACCOUNTS
(a) (Establishment)
(i) On or before the date of this Agreement, each Borrower
will establish in its name a US dollar account with
the Agent styled: [Name of Borrower] -Mine Development
Reserve Account.
(ii) Each Mine Development Reserve Account must be opened
on terms that only Authorised Officers of the Agent
may authorise withdrawals or transfers from the
Page 74
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Mine Development Reserve Account and those Authorised
Officers will be the sole signatories to the Mine
Development Reserve Account. The Agent shall cause
those Authorised Officers to effect any withdrawal or
transfer permitted by this clause.
(iii) The Agent will not make nor permit any withdrawals or
transfers from its Mine Development Reserve Account
except as permitted by this clause 20.8.
(iv) At any time while an Event of Default subsists, each
Borrower authorises the Agent to make withdrawals from
its Mine Development Reserve Account and each Sponsor
authorises the Security Trustee to make calls on MDR
Letters of Credit for the payment of any Secured Money
owed by that Borrower or, in the case of a Sponsor,
its Relevant Borrower, when due.
(b) (Payments into Mine Development Reserve Account): The Security
Trustee shall credit any amounts it receives under any MDR
Letter of Credit to the Mine Development Reserve Account of
the Borrower on whose Relevant Sponsor's account such MDR
Letter of Credit is issued.
(c) (Transfers to Mine Development Reserve Account) If on any Test
Date after the date which is 364 days prior to the Conversion
Date a Borrower's MDR Balance is less than its Required MDR
Amount then on that Test Date that Borrower shall transfer
from its Proceeds Account to its Mine Development Reserve
Account an amount equal to the lesser of:
(i) the amount by which its Required MDR Amount exceeds
its MDR Balance on that Test Date; and
(ii) the balance (if any) standing to the credit of its
Proceeds Account after all of the payments falling in
clause 20.3(a) to (l) (inclusive) due to be made on or
prior to that Test Date have been made.
(d) (Calls on Expiring MDR Letters of Credit) If at any time
within 30 days prior to the expiry of an MDR Letter of Credit
(the Expiring MDR Letter of Credit) a replacement MDR Letter
of Credit has not been issued to the Security Trustee which
will become effective no later than the expiry of the Expiring
MDR Letter of Credit for a face amount of not less than the
lesser of:
(i) the face amount of the Expiring MDR Letter of Credit
at that time less the aggregate at that time of all
amounts paid to the Security Trustee under the
Expiring MDR Letter of Credit in accordance with
paragraph (f); and
(ii) the amount by which the Required MDR Amount for the
Borrower for whose Relevant Sponsor's account the
Expiring MDR Letter of Credit is issued would exceed
that Borrower's MDR Balance immediately following the
expiry of the Expiring MDR Letter of Credit,
(such lesser amount, the Relevant Amount), the Agent may
instruct the Security Trustee to make a call under the
Expiring MDR Letter of Credit in an amount equal to the
Relevant Amount.
Page 75
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(e) (Payments from Mine Development Reserve Account) A Borrower
may only withdraw amounts from its Mine Development Reserve
Account:
(i) to pay capital costs which are Project Costs (other
than capital costs in respect of the Stage 2 Works) to
the extent that the same cannot be paid out of that
Borrower's Proceeds Account in accordance with clause
20.3; and
(ii) to transfer to its Proceeds Account the amount (if
any) at any time standing to the credit of its Mine
Development Reserve Account in excess of its Required
MDR Amount at that time.
(f) (Calls on MDR Letters of Credit) If at any time any time in
the Agent's opinion any Projects Costs referred to in
sub-paragraph (i) of paragraph (e) which are due and payable
by a Borrower cannot be paid out of that Borrower's Proceeds
Account in accordance with clause 20.3 or its Mine Development
Reserve Account in accordance with paragraph (e), the Agent
may instruct the Security Trustee to make a call under any MDR
Letters of Credit issued for the account of that Borrower's
Relevant Sponsor for an aggregate amount equal to the lesser
of:
(i) the unpaid amount of such Project Costs; and
(ii) the total amounts available to be called under such
MDR Letters of Credit at that time.
(g) (Release of MDR Letters of Credit) If at any time a Borrower's
MDR Balance exceeds its Required MDR Amount the Borrower may,
by written notice to the Agent, request that the aggregate
amount available to be called under any MDR Letters of Credit
issued for the account of its Relevant Sponsor in excess of
its Required MDR Amount be reduced by an aggregate amount
which is not greater than such excess by releasing outstanding
MDR Letters of Credit and, if required, by that Borrower
procuring the issue of replacement MDR Letters of Credit in
the amount required so that its MDR Balance is equal to its
Required MDR Amount. Following receipt of any such notice from
a Borrower, the Agent shall instruct the Security Trustee to
release such MDR Letters of Credit to the extent of such
excess.
20.9 DEBT SERVICE RESERVE ACCOUNTS
(a) (Establishment) Each Borrower shall, from the date of this
Agreement until the Secured Money has been fully and finally
paid and repaid, maintain a US dollar account styled [Name of
Borrower] - Debt Service Reserve Account with the Agent.
(b) (Terms) Each Debt Service Reserve Account must be opened on
terms that only Authorised Officers of the Agent may authorise
withdrawals or transfers from the Debt Service Reserve Account
and those Authorised Officers will be the sole signatories to
the Debt Service Reserve Account. The Agent shall cause those
Authorised Officers to effect any withdrawal or transfer
permitted by this clause.
(c) (Transfers to Debt Service Reserve Accounts) If on any Test
Date after the Conversion Date the amount standing to the
credit of a Borrower's Debt Service Reserve Account is less
than its Required DSRA Amount on that Test Date then that
Borrower shall promptly
Page 76
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
transfer from its Proceeds Account to its Debt Service
Reserve Account an amount equal to the lesser of:
(i) the amount by which its Required DSRA Amount exceeds
the amount standing to the credit of its Debt Service
Reserve Account on that Test Date; and
(ii) the balance (if any) standing to the credit of its
Proceeds Account on that Test Date after all of the
payments falling in clause 20.3 (a) to (m) (inclusive)
due to be made on or prior to that Repayment Date have
been made.
(d) (Payments from Debt Service Reserve Account) The Agent may
apply any balance standing to the credit of a Borrower's Debt
Service Reserve Account, to the extent that the same cannot be
paid out of that Borrowers' Proceeds Account in accordance
with clause 20.3, to pay any Debt Service due and payable by
that Borrower in respect of the Term Facility and the Mining
Unit Facility pro rata.
20.10 INTEREST ON BANK ACCOUNTS
Money in a Bank Account will accrue interest at the rate and in the
manner which accounts of such type would normally bear. That interest
will be paid to the relevant Borrower on each Test Date during the
period commencing from the date of this Agreement and ending on the
date the relevant Bank Account is closed.
20.11 RESPONSIBILITY OF AGENT
(a) The Agent is not responsible for the performance by each
Borrower of its obligations in relation to any Bank Account,
nor is it under any obligation to take any action in relation
to any Bank Account which, in the sole discretion of the
Agent, may be contrary to any Law or this Agreement.
(b) The Agent has no duties in relation to any Bank Account except
as specified in this Agreement. In that regard, the Agent will
not be liable for any error in judgment or any mistake of fact
or Law, except for its own fraud, gross negligence or wilful
default.
(c) In particular, the Agent is not concerned or responsible as to
the application of funds withdrawn from any Bank Account or
whether amounts paid in that application are properly due and
payable.
20.12 NATURE OF BANK ACCOUNTS
(a) The rights of each Borrower in and to its Bank Accounts are
personal and incapable of assignment, charging or other
dealing, except under the Facility Securities. Each Borrower
shall not attempt or purport to deal with any Bank Account
other than in accordance with this Agreement.
(b) The balances in the Bank Accounts are not repayable except as
provided in this Agreement.
Page 77
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
21. HEDGING ARRANGEMENTS
21.1 LIMITATION
The Borrowers may only enter into interest rate and foreign exchange
hedging arrangements secured against the Mortgaged Property in
accordance with this clause.
21.2 HEDGING
(a) Each Borrower undertakes that not less than 2 Business Days
prior to the first Drawdown Date of the Term Facility it will
in consultation with the Agent implement the Hedging
Arrangements in accordance with this Agreement and will
maintain the Hedging Arrangements until the final Repayment
Date.
(b) Under the Hedging Arrangements each Borrower must, as a
minimum, hedge the Borrower's LIBOR and BBR exposure in
relation to the following periods, at the following
proportions of the forecast Principal Outstanding:
HEDGE PERIOD HEDGE PROTECTION
---------------------------------- -------------------------
Until the Conversion Date 95%
---------------------------------- -------------------------
After the Conversion Date until
the final Repayment Date 75%
---------------------------------- -------------------------
(c) Subject to paragraph (d), each Borrower must implement and
maintain Hedging Arrangements which, as a minimum, hedge 100%
of the Borrower's forecast Australian dollar/US dollar
exposure for the succeeding period of 12 months and 50% of the
Borrower's forecast Australian dollar/US dollar exposure for
the subsequent period of 12 months thereafter.
(d) The maximum Australian dollar/US dollar exposure a Borrower is
required to hedge under paragraph (c) shall not exceed the
lesser of:
(i) 80% of the amount which is equal to its forecast US
dollar revenues less its forecast US dollar
liabilities for the relevant period; and
(ii) 100% of the amount of its forecast Australian dollar
liabilities for the relevant period.
(e) Each Borrower shall not terminate or do or omit to do anything
which would permit the termination of a Hedging Arrangement
entered into pursuant to this clause 21.2 prior to its stated
maturity without the prior consent of the Agent.
21.3 SECURITY
(a) Only Hedging Arrangements made available by a Participant or
the Working Capital Facility Provider will be secured against
the Mortgaged Property.
(b) No Borrower shall provide any security to Hedging
Counterparties which are not Participants in a Project
Facility or the Working Capital Facility Provider.
Page 78
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(c) Participants in a Project Facility or the Working Capital
Facility Provider who enter into Hedging Arrangements with a
Borrower shall share security pari passu with other
Participants who are also participants in that Project
Facility or the Working Capital Facility Provider and who have
entered into Hedging Arrangements with that Borrower.
21.4 DOCUMENTS
Documents used to implement the Hedging Arrangements under this clause
may only be substantially in the form of AFMA ISDA (but made expressly
subject to this clause) or in the form agreed by the Agent acting on
the instructions of the Majority Participants (that agreement not to
be unreasonably withheld).
21.5 RIGHT OF HEDGING COUNTERPARTY TO TERMINATE
Subject to clauses 21.6, 21.7 and 21.8, if:
(a) an Event of Default by a Borrower under clause 18.1(a)(i) in
relation to a Hedging Arrangement subsists and:
(i) the Majority Participants have exercised their rights
under clause 18; or
(ii) that Event of Default has not been remedied within 10
Business Days of notice to the Agent of its
occurrence; or
(b) an adoption of or a change in Law after the commencement date
of a Hedging Arrangement with a Borrower renders it unlawful
for any party to that Hedging Arrangement to perform any
payment obligation under that Hedging Arrangement with that
Borrower,
the Hedging Counterparty may, subject to the terms of the Hedging
Arrangement, terminate the Hedging Arrangement.
21.6 RIGHT OF PARTICIPANTS TO TERMINATE
(a) (Material Adverse Effect) Where an Event of Default subsists
or a Hedging Counterparty is otherwise entitled to terminate a
Hedging Arrangement with a Borrower the Agent may direct that
Hedging Counterparty to, subject to the terms of the Hedging
Arrangement, terminate that Hedging Arrangement before the
termination date of that Hedging Arrangement where not to do
so may have a Material Adverse Effect.
(b) (Rights following acceleration of debt) Subject to clause 1.3,
after consultation with the relevant Borrower to the extent
that the Agent considers reasonable, the Agent acting on the
instructions (if any) of the Majority Participants may direct
a Hedging Counterparty to, subject to the terms of the Hedging
Arrangement, terminate a Hedging Arrangement with that
Borrower before the termination date of that Hedging
Arrangement if the Agent or the Majority Participants have
exercised the rights under clause 18.5 or, in respect of that
Borrower, clause 18.4.
(c) (Hedging Counterparty bound) The Hedging Counterparty
undertakes to comply (or, as applicable, its Related Entity
undertakes to procure that it complies) with any direction of
the Agent given under paragraphs (a) and (b) above.
21.7 RIGHTS OF HEDGING COUNTERPARTY FOLLOWING TERMINATION OF HEDGE
(a) If:
Page 79
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(i) a Hedging Counterparty has terminated a Hedging
Arrangement in accordance with clauses 21.5 or 21.6;
and
(ii) that Hedging Counterparty is owed an amount by way of
close-out in connection with that termination,
subject to this Agreement and the ISDA Master Agreement the
relevant Borrower shall immediately pay that amount to that
Hedging Counterparty.
(b) The Borrower may not pay and the Hedging Counterparty may not
receive the close-out amount referred to in paragraph (a)(ii)
other than in accordance with this clause 21.
21.8 RIGHTS GENERALLY
(a) A Hedging Counterparty may not terminate a Hedging Arrangement
save in accordance with this clause 21, except as a result of
a voluntary termination by a Borrower which does not result in
a breach of this clause 21 and the Approved Hedging Policy.
(b) If, as a result of the termination of a Hedging Arrangement
under this clause 21, a Borrower is required to pay a
close-out amount to a Hedging Counterparty, before making that
payment it will give the Agent written notice of the date and
amount of the payment.
21.9 TERM OF UNDERTAKINGS
Each undertaking in clause 21 continues from the date of this
Agreement until the Secured Money is fully and finally repaid.
22. INTEREST ON OVERDUE AMOUNTS
22.1 ACCRUAL AND PAYMENT
(a) (Accrual) Interest accrues on each unpaid amount which is due
and payable by an Obligor under or in respect of any
Transaction Document (including interest under this clause):
(i) on a daily basis up to the date of actual payment from
(and including) the due date or, in the case of an
amount payable by way of reimbursement or indemnity,
the date of disbursement or loss, if earlier;
(ii) both before and after judgment (as a separate and
independent obligation); and
(iii) at the rate provided in clause 22.2,
except where the relevant Transaction Document provides
otherwise. Interest so accrued is payable by the Obligor in
relation to whom the interest accrued.
(b) (Payment) Each Obligor shall pay interest accrued and payable
by it under this clause on demand by the Agent and on the last
Business Day of each nominal month. That interest is payable
in the currency of the unpaid amount on which it accrues.
22.2 RATE
The rate applicable under this clause is the sum of 2% per annum plus
the higher of:
(a) the rate (including the relevant Margin) applicable to the
amount immediately before the due date; and
Page 80
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(b) the sum of the relevant Margin and:
(i) if the amount is denominated in Australian dollars,
for each successive funding period of no more than 3
months selected by the Agent, BBR; or
(ii) if the amount is denominated in US dollars, for each
successive funding period of no more than 3 months
selected by the Agent, LIBOR.
Interest on amounts in US dollars is calculated on the basis of a year
of 360 days. Interest on amounts in Australian dollars is calculated
on the basis of a year of 365 days.
23. FEES
23.1 COMMITMENT FEES
(a) A commitment fee accrues at 0.50% per annum on the daily
amount of the Undrawn Commitment (if any) of each Participant
in relation to each Facility from the date of this Agreement
or, in the case of the Mining Unit Facility, from the
Conversion Date. It is calculated on the basis of a year of
365 days.
(b) The Borrowers shall pay in US dollars the accrued commitment
fee for each Project Facility and in Australian dollars the
accrued commitment fee for the Working Capital Facility on
each 31 March, 30 June, 30 September and 31 December during
the Availability Period for the relevant Facility.
23.2 FRONT END FEE
The Borrowers will pay to the arranger the Front End Fee at the time
specified in the front end fee letter from the Arranger to the
Borrowers dated on or about the date of this Agreement by way of a
drawdown under the Term Facility.
23.3 AGENCY FEE
The Borrowers shall pay to the Agent the Agency Fee at the times
specified in the agency fee letter from the Agent to the Borrowers
dated on or about the date of this Agreement.
23.4 SECURITY TRUSTEE FEE
The Borrowers shall pay to the Security Trustee the Security Trustee
Fee at the times specified in the security trustee fee letter from the
Security Trustee to the Borrowers dated on or about the date of this
Agreement.
24. INDEMNITIES
Each Borrower shall on demand indemnify each Indemnified Party against
any loss, cost (including break costs), liability or expense
(including legal costs on a full indemnity basis) which the
Indemnified Party (or any officer or employee of the Indemnified
Party) incurs as a result of or in connection with:
(a) any Event of Default, Potential Event of Default or breach of
a Transaction Document;
Page 81
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(b) the due exercise of any right, power or remedy under any
Transaction Document or any failure to exercise any right,
power or remedy;
(c) the Mortgaged Property or the existence of any interest in or
control, right, power or remedy with respect to the Mortgaged
Property;
(d) any statement in, conduct relying on or omission or alleged
omission from the Specified Information or any claim in
respect of the Specified Information;
(e) a Segment requested in a Drawdown Notice or Selection Notice
not being provided for any reason (including failure to fulfil
any condition precedent but excluding any default or
negligence by the Indemnified Party which is claiming under
this clause);
(f) a Participant or the Working Capital Facility Provider
receiving payments of principal in respect of any Segment
before the last day of a Funding Period relating to the
Segment or any period under clause 10.7 or clause 22.1 for any
reason, other than prepayment on the last day of a Funding
Period in accordance with this Agreement and default by the
Agent; or
(g) any facsimile transmissions transmitted or purportedly
transmitted to a Participant or the Working Capital Facility
Provider on behalf of a Borrower or the Operator(excluding any
default or negligence by the Indemnified Party which is
claiming under this clause).
Without limitation the indemnity will cover any amount determined by
the relevant Participant or the Working Capital Facility Provider to
be incurred because of the liquidation or re-employment of deposits or
other funds acquired or contracted for by the relevant Participant or
the Working Capital Facility Provider to fund or maintain any Segment
or amount (including loss of margin) and because of the reversing or
termination of any agreement or arrangement entered into by the
relevant Participant or the Working Capital Facility Provider to
hedge, fix or limit its effective cost of funding or maintaining any
Segment or amount. The indemnity of each Borrower in this clause is
several (in proportion to its Borrower's Portion, unless an event or
circumstance described in paragraphs (a) to (g) relates to one
Borrower and not the other, in which case the first Borrower only will
indemnify the Indemnified Parties against the relevant loss, cost,
liability or expense).
25. CURRENCY INDEMNITY
25.1 GENERAL
Each Borrower shall indemnify each Indemnified Party on demand against
any deficiency which arises whenever, for any reason (including as a
result of a judgment or order):
(a) that Indemnified Party receives or recovers from that Borrower
an amount in one currency (the Payment Currency) in respect of
an amount denominated under a Transaction Document in another
currency (the Due Currency); and
(b) the amount actually received or recovered by that Indemnified
Party from that Borrower under its normal practice when it
converts the Payment Currency into the Due Currency is less
than the relevant amount of the Due Currency.
Page 82
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
25.2 LIQUIDATION
In the event of the Liquidation (or analogous process) of a Borrower,
that Borrower shall indemnify each Indemnified Party on demand against
any deficiency resulting from any variation as between:
(a) the exchange rate actually applied for the purposes of the
liquidation (or analogous process) in converting into another
currency an amount expressed in one currency due or
contingently owing under a Transaction Document or under a
judgment or order relating to a Transaction Document; and
(b) the exchange rate at which that Indemnified Party in
accordance with its normal practice would be able to purchase
the last-mentioned currency with the first-mentioned currency
as at the final date or dates for the filing of proof or other
claim in the liquidation (or analogous process) or the nearest
available prior date including any premiums and costs of
exchange payable in connection with the purchase.
25.3 REIMBURSEMENT
Where an amount to be reimbursed or indemnified against under a
Transaction Document is denominated in a currency other than
Australian dollars, if an Indemnified Party so requests, the relevant
Borrower shall reimburse or indemnify it against the amount of
Australian dollars which that Indemnified Party certifies that it used
to buy the relevant amount of the other currency in accordance with
its normal procedures. If that Indemnified Party does not so request,
the relevant Borrower shall reimburse or indemnify it in that other
currency.
26. CONTROL ACCOUNTS
The accounts kept by the Agent constitute sufficient evidence, unless
proven wrong, of the amount at any time due from the Borrowers under
this Agreement.
27. EXPENSES
Each Borrower shall on demand reimburse severally, in proportion to
its Borrower's Portion (unless the expense relates solely to a
particular Borrower, in which case that Borrower shall reimburse the
expense in full):
(a) each Indemnified Party for its reasonable out of pocket
expenses in relation to the preparation, negotiation, review,
execution, stamping, registration and completion of the
Transaction Documents;
(b) each Indemnified Party for its expenses in relation to:
(i) any subsequent consent, agreement, approval, waiver,
amendment, preservation or consideration of rights or
remedies under the Transaction Documents;
(ii) any actual or contemplated enforcement of the
Transaction Documents, or the actual or contemplated
exercise, preservation or consideration of any rights,
powers or remedies under the Transaction Documents or
in relation to the
Page 83
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Mortgaged Property where the Indemnified Party
reasonably believes that an Event of Default or
Potential Event of Default may have occurred or could
occur;
(iii) any enquiry by a Government Agency concerning any
Relevant Company or the Mortgaged Property or a
transaction or activity the subject of the Transaction
Documents, or in connection with which, financial
accommodation or funds raised under a Transaction
Document are used or provided;
(iv) any subsequent review or assessment of the Transaction
Documents or other relevant documentation or
environmental audit or the retention of consultants to
evaluate matters of material concern of an Indemnified
Party (acting reasonably); and
(v) insurance reviews of the Project.
This includes legal and accounting costs and expenses on a full
indemnity basis, any expenses incurred in any review, insurance audit
or environmental audit or in retaining consultants to evaluate matters
of material concern to the Indemnified Parties.
28. STAMP DUTIES, GST AND OTHER TAXES
28.1 STAMP DUTY AND OTHER TAXES
(a) Each Borrower shall severally, in proportion to its Borrower's
Portion, pay or reimburse each Indemnified Party for all
stamp, transaction, registration and similar Taxes (including
fines and penalties) on or in relation to the execution,
delivery, performance or enforcement of any Transaction
Document or any payment, receipt or other transaction
contemplated by any Transaction Document.
(b) Those Taxes include financial institutions duty, debits tax or
other Taxes payable by return and Taxes passed on to any
Indemnified Party by a bank or financial institution.
(c) Each Borrower shall on demand severally, in proportion to its
Borrower's Portion, indemnify each Indemnified Party against
any liability resulting from delay or omission to pay those
Taxes except to the extent the liability results from failure
by the Indemnified Party to pay any Tax after having been put
in funds (with all necessary documents) to do so by the
Borrower.
28.2 GST
All payments to be made by a Borrower to an Indemnified Party or by a
Participant or the Working Capital Facility Provider to the Agent
under or in connection with any Transaction Document have been
calculated without regard to GST.
(a) If all or part of any such payment to an Indemnified Party is
the consideration for a taxable supply for GST purposes then,
when a Borrower makes the payment:
(i) it must pay to the Indemnified Party an additional
amount equal to that payment (or part) multiplied by
the appropriate rate of GST (currently 10%); and
(ii) the Indemnified Party will promptly provide to the
Borrower a tax invoice complying with GST Law and
reasonably detailed calculations showing how the
Page 84
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
amount of GST has been calculated. However, nothing in
this sub-paragraph (ii) obliges an Indemnified Party
to provide details of its business or tax affairs
which it considers in good faith to be confidential.
(b) Where under any Transaction Document a Borrower is required to
reimburse or indemnify for an amount, the Borrower will pay
the relevant amount (including any sum in respect of GST) less
any GST Input Tax Credit the relevant Indemnified Party is
entitled to claim in respect of that amount.
(c) Where under any Transaction Document a Participant or the
Working Capital Facility Provider is required to reimburse or
indemnify the Agent for an amount, the Participant or the
Working Capital Facility Provider will pay the relevant amount
(including any sum in respect of GST) less any GST Input Tax
Credit the Agent is entitled to claim in respect of that
amount. The Borrower's indemnity to the Agent will include any
sum in respect of GST.
29. SET-OFF
(a) Each Indemnified Party may apply any credit balance in any
currency (whether or not matured) in any account of a Borrower
with any branch of that Indemnified Party towards satisfaction
of any sum then due and payable by that Borrower to that
Indemnified Party under or in relation to any Transaction
Document. No Indemnified Party need make the application.
(b) An Indemnified Party may exchange currencies to make that
application.
30. WAIVERS, REMEDIES CUMULATIVE
(a) No failure to exercise and no delay in exercising any right,
power or remedy under any Transaction Document operates as a
waiver. Nor does any single or partial exercise of any right,
power or remedy preclude any other or further exercise of that
or any other right, power or remedy.
The rights, powers and remedies provided to the Indemnified Parties in
the Transaction Documents are in addition to, and do not exclude or
limit, any right, power or remedy provided by law.
31. SEVERABILITY OF PROVISIONS
Any provision of any Transaction Document (other than clause 31) which
is prohibited or unenforceable in any jurisdiction is ineffective as
to that jurisdiction to the extent of the prohibition or
unenforceability. That does not invalidate the remaining provisions of
that Transaction Document nor affect the validity or enforceability of
that provision in any other jurisdiction.
32. SURVIVAL OF REPRESENTATIONS
All representations and warranties in any Transaction Document survive
the execution and delivery of the Transaction Documents and the
provision of advances and accommodation.
Page 85
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
33. INDEMNITY AND REIMBURSEMENT OBLIGATIONS
Unless otherwise stated, each indemnity, reimbursement or similar
obligation in any Transaction Document:
(a) is of a continuing nature and is independent of each other
obligation;
(b) is payable on demand; and
(c) survives termination or discharge of the relevant Transaction
Document.
34. MORATORIUM LEGISLATION
To the full extent permitted by law all legislation which at any time
directly or indirectly:
(a) lessens, varies or affects in favour of the Borrowers any
obligation under a Transaction Document; or
(b) delays, prevents or prejudicially affects the exercise by any
Indemnified Party of any right, power or remedy conferred by
any Transaction Document,
is excluded from the Transaction Documents.
35. ASSIGNMENTS
35.1 ASSIGNMENT BY BORROWERS
A Borrower may only assign or transfer any of its rights or
obligations under this Agreement and the other Transaction Documents
with the prior written consent of the Agent acting on the instructions
of all Participants (such consent not to be unreasonably withheld).
35.2 ASSIGNMENT BY PARTICIPANTS OR THE WORKING CAPITAL FACILITY PROVIDER
A Participant or the Working Capital Facility Provider may assign or
transfer all or any of its rights or obligations under the Transaction
Documents at any time if:
(a) any necessary prior Authorisation is obtained; and
(b) in the case of a transfer of obligations, the transfer is
effected by a substitution under clause 35.4 and the
transferee pays a registration fee of A$2,000 to the Agent.
35.3 CONSENT OF BORROWERS
(a) The consent of the Borrowers is required for an assignment or
transfer by a Participant or the Working Capital Facility
Provider unless:
(i) the assignment or transfer is to another Participant
or a Related Entity of a Participant;
(ii) an Event of Default is subsisting; or
(iii) the assignment or transfer is to a securitisation or
funding vehicle where the Participant or the Working
Capital Facility Provider remains lender of record.
Page 86
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(b) The consent of the Borrowers to an assignment or transfer must
not be unreasonably withheld or delayed.
35.4 SUBSTITUTION CERTIFICATES
(a) If a Participant or the Working Capital Facility Provider
wishes to substitute a new bank or financial institution for
all or part of its participation under this Agreement, it and
the substitute shall execute and deliver to the Agent 4
counterparts of a certificate substantially in the form of
annexure D.
(b) On receipt of the certificate, if the Agent is satisfied that
the substitution complies with clause 35.2, it shall promptly:
(i) notify the Operator;
(ii) countersign the counterparts on behalf of all other
parties to this Agreement;
(iii) enter the substitution in a register kept by it (which
will be conclusive); and
(iv) retain one counterpart and deliver the others to the
retiring Participant or the Working Capital Facility
Provider, the substitute Participant or the Working
Capital Facility Provider and the Operator.
(c) When the certificate is countersigned by the Agent the
retiring Participant or the Working Capital Facility Provider
will be relieved of its obligations, and the substitute
Participant will be bound by the Transaction Documents, as
stated in the certificate.
(d) Each other party to this Agreement irrevocably authorises the
Agent to sign each certificate on its behalf.
(e) Unless the Agent otherwise agrees, no substitution may be made
while any Drawdown Notice or Selection Notice is current.
(f) The relevant Participant or the Working Capital Facility
Provider, as applicable, must pay all costs of the
substitution.
35.5 DISCLOSURE
A Participant or the Working Capital Facility Provider may disclose to
a proposed assignee, transferee or sub-participant information which
relates to any Relevant Company or was furnished in connection with
the Transaction Documents, provided that such proposed assignee,
transferee or sub-participant undertakes to keep that information
confidential and not to disclose it except as permitted by clause
39.2.
35.6 NO INCREASED COSTS
Despite anything to the contrary in this Agreement, if a Participant
or the Working Capital Facility Provider assigns its rights under this
Agreement or changes its Lending Office, the Borrowers will not be
required to pay:
(a) any net increase in the total amount of costs, Taxes, fees or
charges which is a direct result of the assignment or change
and of which the Participant or the Working Capital Facility
Provider or its assignee was aware or ought reasonably to have
been aware on the date of the assignment or change; or
Page 87
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(b) any costs, expenses, Taxes, fees or Charges in respect of the
assignment or change.
For this purpose only, a substitution under clause 35.4 will be
regarded as an assignment.
35.7 ASSIGNMENT BY REFERENCE BANK
If a Participant which is a Reference Bank ceases to be a Participant
then, in consultation with the Borrowers, the Agent shall appoint
another Participant to replace that Participant as a Reference Bank.
36. RELATIONSHIP OF PARTICIPANTS TO AGENT AND SECURITY TRUSTEE
36.1 AUTHORITY
(a) Subject to clause 36.15, the Agent is irrevocably appointed to
act as agent for the Participants under and in respect of the
Transaction Documents.
(b) Each of the Agent and the Security Trustee has all rights and
powers expressly delegated to it by the Transaction Documents
together with all other powers reasonably incidental to those
powers.
(c) Each of the Agent and the Security Trustee has no duties or
responsibilities except those expressly set out in the
Transaction Documents.
36.2 INSTRUCTIONS; EXTENT OF DISCRETION
(a) In the exercise of all rights, powers and discretions under
the Transaction Documents the Agent shall act in accordance
with the instructions (if any) of the Majority Participants or
(where so specified) of all Participants.
(b) In the exercise of all rights, powers and discretions under
the Transaction Documents the Security Trustee shall act in
accordance with the instructions (if any) of the Agent.
(c) In the absence of those instructions, neither the Agent nor
the Security Trustee need act. However, it may act as it
thinks to be in the best interests of the Participants.
(d) Any action taken by the Agent or the Security Trustee in
accordance with the Transaction Documents binds all the
Participants.
(e) Neither the Agent nor the Security Trustee is obliged to
consult with the Participants or Hedging Counterparties before
giving any consent, approval or agreement or making any
determination under the Transaction Documents except where a
Transaction Document otherwise expressly provides.
36.3 NO OBLIGATION TO INVESTIGATE AUTHORITY
(a) The Borrower need not enquire whether any instructions have
been given to the Agent by all Participants or the Majority
Participants or to the Security Trustee by the Agent or as to
the terms of any of those instructions.
(b) As between the Borrower on the one hand and the Agent, the
Security Trustee and the Participants on the other, all action
taken by the Agent or the Security Trustee under the
Transaction Documents will be taken to be authorised.
Page 88
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
36.4 AGENT AND SECURITY TRUSTEE NOT FIDUCIARIES
Neither the Agent nor the Security Trustee owes any fiduciary duty to
any Participant, any Hedging Counterparty, any Relevant Company or any
other person except as expressly provided in a Transaction Document.
36.5 NO LIABILITY
None of the Agent, the Security Trustee, any Participant which is an
underwriter, arranger, lead manager or documentation bank or any of
their respective directors, officers, employees, agents, attorneys,
Related Entities or successors is responsible to the Participants for,
or will be liable to the Participants (whether in negligence or on any
other ground whatever) in respect of, any of the following whether
before or after the date of this Agreement.
(a) Any conduct in or relating to any loan proposal, prospectus,
offering circular, information memorandum or other
information, any document or agreement (including any Relevant
Document) or any transaction.
(b) The value, validity, effectiveness, genuineness,
enforceability or sufficiency of any document or agreement
(including any Relevant Document) or any transaction.
(c) Any failure by any Relevant Company to perform its
obligations.
(d) Any action taken or omitted to be taken by it or them under
any Transaction Document except in the case of its or their
own wilful misconduct or gross negligence.
36.6 DELEGATION
The Agent and the Security Trustee may employ agents and attorneys.
36.7 RELIANCE ON DOCUMENTS AND EXPERTS
The Agent and the Security Trustee may rely on:
(a) any document or communication believed by them to be genuine
and correct; and
(b) advice and statements of lawyers, independent accountants and
other experts selected by the Agent or, as the case may be,
the Security Trustee.
36.8 NOTICE OF TRANSFER
The Agent may treat each Participant as the holder of the
Participant's rights under the Transaction Documents until the Agent
has received a substitution certificate in accordance with this
Agreement or another notice of assignment satisfactory to the Agent.
36.9 NOTICE OF DEFAULT
(a) Neither the Agent nor the Security Trustee will be taken to
have knowledge of any fact or information (including the
occurrence of an Event of Default) unless:
(i) it has received notice from a Participant or a
Relevant Company or, in the case of the Security
Trustee, the Agent stating that fact or information
(and, in the case of an Event of Default or event
which could become one, describing it as such); or
Page 89
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(ii) its officers who have day to day responsibility for
the transaction become aware of that fact or
information.
(b) If the Agent becomes aware of an Event of Default or an event
which with time, notice or both would be an Event of Default
under subparagraph (a)(i) or (a)(ii), it shall notify the
Participants.
36.10 AGENT AND SECURITY TRUSTEE AS PARTICIPANT AND BANKER
(a) Each of the Agent and the Security Trustee may be a
Participant in its private or any other capacity. As a
Participant, each of the Agent and the Security Trustee has
the same rights and powers under the Transaction Documents as
any other Participant. It may exercise them as if it were not
acting as the Agent or, as the case may be, the Security
Trustee.
(b) Each of the Agent and the Security Trustee may engage in any
kind of business with any Relevant Company as if it were not
the Agent or, as the case may be, the Security Trustee. It may
receive consideration for services in connection with any
Transaction Document and otherwise without having to account
to the Participants.
36.11 INDEMNITY TO AGENT AND SECURITY TRUSTEE
(a) Each Participant shall severally indemnify the Agent and the
Security Trustee (to the extent not reimbursed by any Relevant
Company under any Transaction Document) ratably according to
their respective Commitments (or, if nil, in accordance with
their respective shares of the Commitments immediately before
cancellation) against any loss, cost, liability, expense or
damage the Agent or Security Trustee may sustain or incur
directly or indirectly under or in relation to the Transaction
Documents.
(b) No Participant is liable under this sub-clause for any of the
above to the extent that they arise from the Agent's or, as
the case may be, the Security Trustee's own wilful misconduct
or gross negligence.
(c) The Borrowers shall indemnify each Participant on demand
against any amount paid under paragraph (a).
36.12 INDEPENDENT INVESTIGATION OF CREDIT
Each Participant and Hedging Counterparty is responsible for having
made and continuing to make, independently and without reliance on the
Agent, the Security Trustee or any other Participant:
(a) its own investigations into the affairs of the Relevant
Companies; and
(b) its own analyses and decisions whether to enter the
Transaction Documents or to take or not take action under
them.
36.13 NO MONITORING
Neither the Agent nor the Security Trustee is required to keep itself
informed as to the compliance by any party (including any Relevant
Company) with any document or agreement (including any Relevant
Document) or to inspect any asset of any party.
Page 90
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
36.14 INFORMATION
(a) The Agent will provide to each Participant a copy of each
notice, report and other document given to it under any
Transaction Document in sufficient copies for the
Participants.
(b) Each Borrower (on its own behalf and on behalf of each other
Relevant Company) authorises the Agent to provide any
Participant or Hedging Counterparty with any information
concerning any Relevant Company. The Agent is not obliged to
do so.
(c) The Agent need not disclose any information if in the opinion
of the Agent (on the basis of the advice of its legal
advisers) disclosure would or might breach a law or a duty of
secrecy or confidence.
36.15 REPLACEMENT OF AGENT AND SECURITY TRUSTEE
(a) Subject to the appointment of a successor Agent or, as the
case may be, Security Trustee as provided in this clause:
(i) each of the Agent and the Security Trustee may resign
at any time by giving not less than 30 days prior
notice to the other Participants and to the Operator;
and
(ii) the Majority Participants may remove the Agent or the
Security Trustee by giving not less than 30 days'
prior notice to the Operator and the Agent or, as the
case may be, the Security Trustee.
(b) On notice of resignation or removal the Majority Participants
may appoint a successor Agent or, as the case may be, Security
Trustee.
(c) If no successor Agent or, as the case may be, Security Trustee
is appointed within 30 days after notice, the retiring Agent
or, as the case may be, the Security Trustee may appoint a
successor.
(d) The appointment of the successor Agent or, as the case may be,
Security Trustee will be effected by its execution of a deed
poll. The retiring Agent or, as the case may be, Security
Trustee is authorised to sign that deed poll on behalf of the
other parties. On countersignature of that deed poll by the
retiring Agent or, as the case may be, Security Trustee, the
successor Agent or, as the case may be, Security Trustee will
have all the rights, powers and obligations of the retiring
Agent or, as the case may be, the Security Trustee. The
retiring Agent or, as the case may be, Security Trustee will
be discharged from its rights, powers and obligations (other
than liabilities preserved under paragraph (f)).
(e) The retiring Agent or, as the case may be, Security Trustee
will execute and deliver all documents or agreements which are
necessary or in its opinion desirable to transfer to the
successor each Security Interest and Guarantee held by the
retiring Agent or, as the case may be, Security Trustee in
relation to the Secured Money or to effect the appointment of
the successor Agent or, as the case may be, Security Trustee.
(f) After any retiring Agent's or, as the case may be, Security
Trustee's resignation or removal, this clause will continue in
effect in respect of anything done or omitted to be done by it
while it was acting as Agent or, as the case may be, Security
Trustee.
Page 91
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
36.16 AMENDMENT OF TRANSACTION DOCUMENTS
At the request of all the Borrowers, the Agent may, with the approval
of 75% of the Participants (by total Commitments), alter the terms and
conditions of the Facilities except that each Participant must approve
any:
(a) reduction in fees or margins;
(b) increase in the average life of the Facilities; or
(c) material release of or material adverse variation in the
Facility Securities,
that would apply to that Participant.
36.17 NO OBLIGATIONS
Neither the Agent nor the Security Trustee is required to do anything
under any Transaction Document (even where instructed by all
Participants or the Majority Participants) if it believes that the
proceeds of enforcement will not be sufficient to reimburse it for its
costs, charges or expenses.
37. PROPORTIONATE SHARING
37.1 SHARING
(a) Whenever a Participant (Participant A) receives or recovers
any money in respect of any sum due from a Borrower under a
Transaction Document in respect of a Project Facility in any
way (including by set-off) except through distribution by the
Agent under this Agreement:
(i) Participant A will promptly notify the Agent and pay
an amount equal to the amount of that money to the
Agent (unless the Agent directs otherwise); and
(ii) the Agent will deal with the amount as if it were a
payment on account of all sums then payable to the
Participants.
(b) Unless paragraph (c) applies:
(i) the payment or recovery will be taken to have been a
payment for the account of the Agent and not to
Participant A for its own account, and the liability
of the relevant Borrower to Participant A will only be
reduced to the extent of any distribution received by
Participant A under paragraph (a)(ii); and
(ii) (without limiting sub-paragraph (i)) the relevant
Borrower shall indemnify Participant A against a
payment under paragraph (a)(i) to the extent that
(despite sub-paragraph (i)) its liability has been
discharged by the recovery or payment.
(c) Where:
(i) the money referred to in paragraph (a) was received or
recovered otherwise than by payment (for example, set
off); and
(ii) the relevant Borrower, 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 or the payment,
Page 92
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
then the following will apply so that the Participants have
the same rights and obligations as if the money had been paid
by the relevant Borrower to the Agent for the account of the
Participants and distributed accordingly:
(iii) each other Participant will assign to Participant A an
amount of the debt owed by the relevant Borrower to
that Participant under the Transaction Documents in
respect of Project Facilities equal to the amount
received by that Participant under paragraph (a);
(iv) Participant A will be entitled to all rights
(including interest and voting rights) under the
Transaction Documents in respect of the debt so
assigned; and
(v) that assignment will take effect automatically on
payment of the distributed amount by the Agent to the
other Participant.
(d) If Participant A is required to disgorge or unwind all or part
of the relevant recovery or payment then the other
Participants shall repay to the Agent for the account of the
Participant the amount necessary to ensure that all the
Participants share ratably in the amount of the recovery or
payment retained. Paragraphs (b) and (c) above apply only to
the retained amount.
37.2 REFUSAL TO JOIN IN ACTION
A Participant who does not accept an invitation to join an action
against the Borrower or does not share in the costs of the action (in
each case having been given a reasonable opportunity to do so) is not
entitled to share in any amount so recovered.
38. AGENT, BORROWER AND OPERATOR DEALINGS
Except where expressly provided otherwise:
(a) all correspondence under or in relation to the Transaction
Documents between a Participant on the one hand, and the
Borrowers on the other, will be addressed to the Agent and
Operator (with a copy to the relevant Borrower if the
correspondence relates to the making of a payment by that
Borrower);
(b) subject to paragraph (c), the Participants and the Borrowers
severally agree to deal with and through the Agent and the
Operator in accordance with this Agreement; and
(c) in respect of any payment to be made by the Borrowers, the
Participants and the Borrowers severally agree to deal with
and through the Agent in accordance with this Agreement.
39. CONFIDENTIALITY
39.1 CONFIDENTIALITY
Subject to the following sub-clause and without limiting any other
confidentiality obligations to which the Participants are subject
under any agreement or document in connection with the Project
Documents, no Indemnified Party shall disclose any unpublished
information or documents supplied
Page 93
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
by any Relevant Company to be confidential and are not in the public
domain.
39.2 PERMITTED DISCLOSURE
An Indemnified Party may disclose any confidential information or
documents:
(a) in enforcing a Transaction Document, in a proceeding arising
out of or in connection with a Transaction Document or to the
extent that disclosure is regarded by the Indemnified Party as
necessary to protect its interests;
(b) if required in pursuance of any court procedure for discovery
of documents;
(c) if required under a binding order of a Government Agency or
any procedure for discovery in any proceedings;
(d) if required under any law or any administrative guideline,
directive, request or policy whether or not having the force
of law and, if not having the force of law, with which
responsible bankers or financial institutions similarly
situated would normally comply;
(e) to an enforcement administrator or receiver appointed in
relation to the Mortgaged Property;
(f) to any Purchaser of the Mortgaged Property after any security
in relation to the Mortgaged Property is enforced;
(g) to a permitted assignee or transferee under the Transaction
Documents;
(h) as required or permitted by any Transaction Document;
(i) to its legal advisers, auditors and its consultants;
(j) to a Related Entity of the Indemnified Party;
(k) to a potential lender to the Borrowers during any syndication;
or
(l) with the prior written consent of the relevant Borrower,
provided that, in the case of disclosure described in paragraph (g) or
(k), the recipient of the confidential information or documents
undertakes to keep the confidential information or documents
confidential.
39.3 SURVIVAL OF OBLIGATION
This clause survives the termination of this Agreement.
40. NOTICES
All notices, requests, demands, consents, approvals, agreements or
other communications to or by a party to this Agreement:
(a) must be in writing signed by an Authorised Officer of the
sender; and
(b) will be taken to be given or made when delivered, received or
left at the address or fax number of the recipient shown in
schedule 1 or to any other address or fax number which it may
have notified the sender, but if delivery or receipt is on a
day on which business is not
Page 94
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
generally carried on in the place to which the communication
is sent or is later than 4pm (local time), it will be taken to
have been given or made at the commencement of business on the
next day on which business is generally carried on in that
place.
41. AUTHORISED OFFICERS
Each Borrower and the Operator irrevocably authorises each Indemnified
Party to rely on a certificate by any person purporting to be its
director or secretary as to the identity and signatures of its and the
Operator's Authorised Officers. Each Borrower and the Operator
warrants that those persons have been authorised to give notices and
communications under or relating to the Transaction Documents.
42. GOVERNING LAW AND JURISDICTION
(a) (Governing Law) This Agreement is governed by the laws of ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇.
(▇) (▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ courts) Each Borrower, the Operator, the
Marketing Company and each Sponsor agrees for the benefit of
the Indemnified Parties that the courts exercising
jurisdiction in New South Wales shall have jurisdiction to
hear and determine any suit, action or proceedings and to
settle any disputes which may arise out of or in connection
with the Transaction Documents (respectively, Proceedings and
Disputes) and, for such purposes, irrevocably submits to the
jurisdiction of such courts.
(c) (Appropriate forum) Each Borrower, the Operator, the Marketing
Company and each Sponsor irrevocably waives any objection
which it might now or hereafter have to the courts referred to
in clause 42(b) being nominated as the forum to hear and
determine any Proceedings and to settle any Disputes and
agrees not to claim that any such court is not an appropriate
or convenient forum.
(d) (Service of process) KMIC agrees that the process by which any
Proceedings are begun may be served on it by being delivered
to MMC at its address set out in Schedule 1 or any other
address in Australia notified by MMC to the Agent under clause
40(b). Consol agrees that the process by which any Proceedings
are begun may be served on it by being delivered to CEA at its
address set out in Schedule 1 or any other address in
Australia notified by CEA to the Agent under clause 40(b). If
the appointment by it of the person mentioned in this
paragraph (d) ceases to be effective KMIC or, as the case may
be, Consol shall immediately appoint a further person in
Australia to accept service of process on its behalf in
Australia and, failing such appointment within 15 days, the
Agent shall be entitled to appoint such a person by notice to
KMIC or, as the case may be, Consol. Nothing contained in this
Agreement will affect the right to serve process in any other
manner permitted by law.
(e) (Non-exclusive submissions) The submission to the jurisdiction
of the courts referred to in clause 42(b) shall not (and shall
not be construed so as to) limit the right of the Indemnified
Parties to take Proceedings against either Borrower, the
Operator, the Marketing Company or either Sponsor in any other
court of competent jurisdiction nor shall the taking of
Proceedings in any one or more jurisdictions preclude the
taking of Proceedings in any
Page 95
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
other jurisdiction (whether concurrently or not) if and to the
extent permitted by applicable law.
(f) (Waiver of immunity) To the extent that either Borrower, the
Operator, the Marketing Company or either Sponsor may in any
jurisdiction claim for itself or its assets immunity from
suit, execution, attachment or other legal processes and to
the extent that in any such jurisdiction there may be
attributed to itself or its assets such immunity (whether or
not claimed), each Borrower, the Operator, the Marketing
Company and each Sponsor irrevocably agrees not to claim and
irrevocably waives such immunity to the full extent permitted
by the laws of such jurisdiction.
43. COUNTERPARTS
This Agreement may be executed in any number of counterparts. All
counterparts together will be taken to constitute one instrument.
44. ACKNOWLEDGEMENT BY BORROWERS AND OPERATOR
The Borrowers and the Operator each confirm that:
(a) it has not entered into this Agreement in reliance on, or as a
result of, any statement or conduct of any kind of or on
behalf of any Indemnified Party or any Related Entity of any
Indemnified Party (including any advice, warranty,
representation or undertaking); and
(b) neither any Indemnified Party nor any Related Entity of any
Indemnified Party is obliged to do anything (including
disclose anything or give advice),
except as expressly set out in the Transaction Documents.
45. CONSENTS AND OPINIONS
45.1 DISCRETION OF INDEMNIFIED PARTIES
Except where expressly stated any Indemnified Party may give or
withhold, or give conditionally, approvals and consents, may be
satisfied or unsatisfied, may form opinions, and may exercise its
rights, powers and remedies, at its absolute discretion.
45.2 LIMITS ON DISCRETION
Where a Transaction Document provides that a consent, approval or
authority may not be unreasonably withheld, it may also not be
unreasonably delayed or conditioned.
EXECUTED as an agreement in Sydney.
Each attorney executing this Agreement states that he has no notice of
revocation or suspension of his power of attorney.
Page 96
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
THE BORROWERS
Signed for Consol Energy Australia Pty
Limited by its attorney under power of attorney
in the presence of:
------------------------------------- ---------------------------------------
Witness Signature Attorney Signature
------------------------------------- ---------------------------------------
Print Name Print Name
Page 97
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Signed for Maitland Main Collieries
Pty Limited by its attorney under
power of attorney in the presence of:
------------------------------------- ---------------------------------------
Witness Signature Attorney Signature
------------------------------------- ---------------------------------------
Print Name Print Name
THE OPERATOR
Signed for GLENNIES CREEK COAL
MANfAGEMENT PTY LIMITED by its
attorney under power of attorney in
the presence of:
------------------------------------- ---------------------------------------
Witness Signature Attorney Signature
------------------------------------- ---------------------------------------
Print Name Print Name
Page 98
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
THE MARKETING COMPANY
Signed for GLENNIES CREEK COAL SALES
PTY LIMITED by its attorney under
power of attorney in the presence of:
------------------------------------- ---------------------------------------
Witness Signature Attorney Signature
------------------------------------- ---------------------------------------
Print Name Print Name
THE SPONSORS
Signed for Consol Energy Inc by its attorney under power of attorney in the
presence of:
------------------------------------- ---------------------------------------
Witness Signature Attorney Signature
------------------------------------- ---------------------------------------
Print Name Print Name
Page 99
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Signed for K-M Investment Corporation
Limited by its attorney under power
of attorney in the presence of:
------------------------------------- ---------------------------------------
Witness Signature Attorney Signature
------------------------------------- ---------------------------------------
Print Name Print Name
THE AGENT
SIGNED on behalf of AUSTRALIA AND )
NEW ZEALAND BANKING GROUP )
LIMITED by its attorney under power )
of attorney in the presence of: )
------------------------------------- ---------------------------------------
Witness Signature
------------------------------------- ---------------------------------------
Print name Print name
Page 100
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
THE SECURITY TRUSTEE
SIGNED on behalf of ANZ CAPEL COURT )
LIMITED by its attorney under power )
of attorney in the presence of: )
------------------------------------- ---------------------------------------
Witness Signature
------------------------------------- ---------------------------------------
Print name Print name
THE ARRANGER
SIGNED on behalf of AUSTRALIA AND )
NEW ZEALAND BANKING GROUP LIMITED )
by its attorney under power of )
attorney in the presence of: )
------------------------------------- ---------------------------------------
Witness Signature
------------------------------------- ---------------------------------------
Print name Print name
Page 101
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
THE PARTICIPANTS
SIGNED on behalf of AUSTRALIA AND )
NEW ZEALAND BANKING GROUP LIMITED )
by its attorney under power of )
attorney in the presence of: )
------------------------------------- ---------------------------------------
Witness Signature
------------------------------------- ---------------------------------------
Print name Print name
HEDGING COUNTERPARTIES
Signed for Australia and
New Zealand Banking Group Limited
by its attorney under power of
attorney in the presence of:
------------------------------------- ---------------------------------------
Witness Signature Attorney Signature
------------------------------------- --------------------------------------
Print Name Print Name
Page 102
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
SCHEDULE 1
PARTICIPANTS
1 2 3 4
ADDRESS FOR CORRESPONDENCE
(IF OTHER THAN LENDING
PARTICIANT LENDING OFFICE COMMITMENT OFFICE)
Australia and New Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇ Term Facility: Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Zealand Banking Group Fax: (▇▇) ▇▇▇▇ ▇▇▇▇ US$33,000,000 Fax: (▇▇) ▇▇▇▇ ▇▇▇▇
Limited Phone: (▇▇) ▇▇▇▇ ▇▇▇▇ Contingency Facility: Phone: (▇▇) ▇▇▇▇ ▇▇▇▇
US$6,411,000
Mining Unit Facility:*
US$6,411,000
Working Capital
Facility
A$10,000,000
* Subject to Clause 10.1(b).
BORROWERS
PLACE OF OPTIONAL ADDRESS FOR
BORROWER REGISTRATION ADDRESS CORRESPONDENCE
Consol Energy Australia Pty Ltd New South Wales ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇, Fax: (▇▇) ▇▇▇▇ ▇▇▇▇
(ABN ▇▇ ▇▇▇ ▇▇▇ ▇▇▇) ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, Phone: (▇▇) ▇▇▇▇ ▇▇▇▇
Brisbane Qld ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ C/- AMCI Australia Pty Fax: (▇▇) ▇▇▇▇ ▇▇▇▇
Ltd Limited Phone: (▇▇) ▇▇▇▇ ▇▇▇▇
(ABN 29 000 021 652) ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
103
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
SPONSORS
PLACE OF OPTIONAL ADDRESS FOR
SPONSOR INCORPORATION ADDRESS CORRESPONDENCE
Consol Energy Inc Delaware ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: The Treasurer
USA
K-M Investment Corporation Delaware ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Phone: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Attention: The Chief Financial
Officer
AGENT AND OPERATOR
AGENT
Address: Australia and New Zealand Banking Group Limited
▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Attention: The Agent, Glennies Creek Coal Project
Fax: (▇▇) ▇▇▇▇ ▇▇▇▇
Phone: (▇▇) ▇▇▇▇ ▇▇▇▇
OPERATOR
Address: Glennies Creek Coal Management Pty Limited
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Attention: The Mine Manager
Fax: (▇▇) ▇▇▇▇ ▇▇▇▇
Phone: (▇▇) ▇▇▇▇ ▇▇▇▇
Page 104
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
SCHEDULE 2
FACILITY SECURITIES
The following documents are the Facility Securities.
The Charges.
The following Collateral Securities:
(a) the Share Mortgages;
(b) the Mining Tenements Mortgages;
(c) the Environmental Licences Mortgage;
(d) the Real Property Mortgages; and
(e) any other Collateral Security.
PROJECT DOCUMENTS
The following documents are Project Documents.
1. Joint Venture Agreement dated 7 December 2001 between the Borrowers
and the Operator.
2. CHPP Tolling Agreement dated 30 November 2001 between the Operator,
the Borrowers, Toyota Tsusho Mining (Australia) Pty Limited, Dia Coal
Mining (Australia) Pty Limited Navidale Pty Limited, Camberwell Coal
Pty Limited, RHA Pastoral Company Pty Limited and ▇▇▇▇▇ ▇▇▇▇▇▇ Pty
Limited.
3. Management Support Agreement dated 7 December 2001 between the
Borrowers and ▇▇▇▇▇ ▇▇▇▇▇▇ Pty Limited.
4. Marketing Agreements dated 7 December 2001 entered into between the
Borrowers and the Marketing Company.
5. Irrevocable Offer - EL5824 from CEA to MMC dated 7 December 2001.
Page 105
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
SCHEDULE 3
SPECIFIED INFORMATION
1. Glennies Creek Joint Venture Agreement dated 7 December 2001 between
Maitland Main Collieries Pty Ltd, Consol Energy Australia Pty Ltd and
Glennies Creek Coal Management Pty Ltd
2. Marketing Agreement dated 7 December 2001 between Consol Energy
Australia Pty Ltd and Glennies Creek Coal Sales Pty Ltd
3. Marketing Agreement dated 7 December 2001 between Maitland Main
Collieries Pty Ltd and Glennies Creek Coal Sales Pty Ltd
4. Management Support Agreement dated 7 December 2001 between Maitland
Main Collieries Pty Ltd, Consol Energy Australia Pty Ltd and ▇▇▇▇▇
▇▇▇▇▇▇ Pty Ltd
5. Irrevocable Offer for EL 5824 dated 7 December 2001 between Maitland
Main Collieries Pty Ltd and Consol Energy Australia Pty Ltd
6. Royalty Deed dated 7 December 2001 between Maitland Main Collieries
Pty Ltd, Consol Energy Australia Pty Ltd, AMCI Australia Pty Ltd,
American Metals & Coal International Inc and Consol Energy Inc
7. Guarantee and Indemnity dated 7 December 2001 between American Metals
& Coal International Inc, ▇▇▇▇▇ ▇▇▇▇▇▇ Pty Ltd and Consol Energy Inc
8. Deed of Cross Charge dated 7 December 2001 between Maitland Main
Collieries Pty Ltd, Consol Energy Australia Pty Ltd and Glennies Creek
Coal Management Pty Ltd
9. Certificates of Entry of Charge registered with the ASIC on 19
December 2001
9.1. Consol Energy Australia Pty Ltd - Maitland Main Collieries Pty
Ltd
9.2. Consol Energy Australia Pty Ltd - Glennies Creek Coal
Management Pty Ltd
9.3. Maitland Main Collieries Pty Ltd - Glennies Creek Coal
Management Pty Ltd
9.4. Maitland Main Collieries Pty Ltd - Consol Energy Australia Pty
Ltd
10. Endorsement Schedule for Transfer of Coal Lease 382 (1973) from
Maitland Main Collieries Pty Ltd to Consol Energy Australia Pty Ltd
and Maitland Main Collieries Pty Ltd registered in the Department of
Mineral Resources on 8 January 2002
11. Endorsement Schedule for Transfer of Mining Lease 1437 (1992) from
▇▇▇▇▇ ▇▇▇▇▇▇ Pty Ltd and Maitland Main Collieries Pty Ltd to Consol
Energy Australia Pty Ltd and Maitland Main Collieries Pty Ltd
registered in the Department of Mineral Resources on 8 January 2002
12. Endorsement Schedule for Transfer of Exploration Licence 5824 (1992)
from ▇▇▇▇▇ ▇▇▇▇▇▇ Pty Ltd to Consol Energy Australia Pty Ltd
registered in the Department of Mineral Resources on 8 January 2002
13. Real Property Certificates of Titles - Consol Energy Australia Pty Ltd
and Maitland Main Collieries Pty Ltd as tenants in common in equal
shares
13.1. ▇▇▇ ▇ ▇▇ ▇▇▇▇▇▇
13.2. ▇▇▇ ▇ ▇▇ ▇▇▇▇▇▇
Page 106
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
13.3. ▇▇▇ ▇ ▇▇ ▇▇▇▇▇▇
13.4. ▇▇▇ ▇ ▇▇ ▇▇▇▇▇▇
13.5. ▇▇▇ ▇ ▇▇ ▇▇▇▇▇▇
13.6. ▇▇▇ ▇ ▇▇ ▇▇▇▇▇▇
13.7. ▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇
13.8. ▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇▇
13.9. ▇▇▇ ▇ ▇▇ ▇▇▇▇▇▇
13.10. ▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇▇
13.11. ▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇▇
13.12. ▇▇▇ ▇ ▇▇ ▇▇▇▇▇▇
13.13. ▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇▇
14. Real Property Lease from Consol Energy Australia Pty Ltd and Maitland
Main Collieries Pty Ltd to Glennies Creek Coal Sales Pty Ltd
commencing 7 December 2001
15. Certificate of Registration of Glennies Creek Coal Management Pty Ltd
16. Constitution of Glennies Creek Coal Management Pty Ltd
17. Certificate of Registration of Glennies Creek Coal Sales Pty Ltd
18. Constitution of Glennies Creek Coal Sales Pty Ltd
19. Fax from ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ dated 15 May
2002 regarding constitution of Consol Energy Australia Pty Ltd
20. Certificate of Registration of Consol Energy Australia Pty Ltd
21. Certificate of Registration of Maitland Main Collieries Pty Ltd
22. Articles of Association of Maitland Main Collieries Pty Ltd
23. Certificate of Registration of ▇▇▇▇▇ ▇▇▇▇▇▇ Pty Ltd
24. Articles of Association of ▇▇▇▇▇ ▇▇▇▇▇▇ Pty Ltd Pty Ltd
25. Correspondence regarding the FIRB approval for the development of
Glennies Creek Colliery
25.1. Letter from ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ dated 21 April 1998
25.2. Letter from The Treasury dated 14 May 1998
25.3. Letter from The Treasury dated 20 May 1998
26. Glennies Creek Joint Venture Audited Financial Statements
26.1. Completion Accounts for the period 1 April 2001 to 1 December
2001
26.2. Special Purpose Financial Report for the year ended 31 March
2001
26.3. Financial Statements for the year ended 31 March 2000
26.4. Financial Statements for the year ended 31 March 1999
26.5. Financial Statements for the period 27 November 1997 to 31
March 1999
Page 107
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
27. ▇▇▇▇▇ ▇▇▇▇▇▇ Pty Ltd Audited Financial Statements
27.1. Special Purpose Financial Report for the year ended 31 March
2001
27.2. Special Purpose Financial Report for the period ended 31 March
2000
27.3. Special Purpose Financial Report for the period ended 31 March
1999
Ashton Agreements
28. Transfer Deed dated 10 May 2001 between ▇▇▇▇▇ ▇▇▇▇▇▇ Pty Ltd, Maitland
Main Collieries Pty Ltd and Ashton Coal Mines Limited
29. Royalty Deed dated 10 May 2001 between ▇▇▇▇▇ ▇▇▇▇▇▇ Pty Ltd, Maitland
Main Collieries Pty Ltd and Ashton Coal Mines Limited
30. Letter from White Mining Pty Ltd dated 9 November 2001 regarding
Ashton Coal Project
▇▇▇▇▇▇▇▇ Agreements
31. Email from ▇▇▇▇▇▇ ▇▇▇▇▇▇, Sparke Helmore dated 8 May 2002 to ▇▇▇
▇▇▇▇▇▇▇, Enex Resources containing drafts of:
31.1. Deed of Agreement for the Land Licence
31.2. Deed of Variation for the Agreement MPL343, and
31.3. Sub Lease for MPL343
32. Letter from Liddell Coal Operations Pty Ltd dated 1 August 1997 to
Maitland Main Collieries Pty Ltd regarding the ▇▇▇▇▇▇▇▇ Agreements
33. Sub Lease of Part Coal Lease 382 dated 1 August 1997 between Maitland
Main Collieries Pty Ltd and ▇▇▇▇▇▇▇▇ Tenements Pty Ltd
33.1. Annexure B - Coal Mining Lease 382
34. Agreement over Part MPL343 dated 1 August 1997 between Maitland Main
Collieries Pty Ltd and ▇▇▇▇▇▇▇▇ Tenements Pty Ltd
34.1. Annexure B - Sub Lease of Part Mining Purposes Lease 343
34.2. Annexure B - Mining Purposes Lease 343 dated 17 June 1996 to
▇▇▇▇▇▇▇▇ Tenements Pty Ltd
34.3. Annexure C - Land Lease
34.4. Annexure D - Coal Washing Agreement Terms
35. Letter from NSW Department of Mineral Resources dated 18 March 1998 to
Maitland Main Collieries Pty Ltd registering the Sub Lease to ▇▇▇▇▇▇▇▇
Tenements Pty Ltd
36. MPLA Agreement dated 13 February 1996 between Maitland Main Collieries
Pty Ltd, Liddell Coal Operations Pty Ltd and ▇▇▇▇▇▇▇▇ Tenements Pty
Ltd
37. Deed of Release and Indemnity dated 13 February 1995 between Maitland
Main Collieries Pty Ltd and Hunter Valley Coal Corporation Pty Ltd
38. Manager Rules signed by Inspector of Coal Mines 24 April 1999
38.1. Managers Rules for Cut and Flit Operation for Main West
Development Panel signed by District Inspector 15 August 1999
Page 108
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
39. Mining Operations Plan
39.1. Appendix 1 - Approvals and Licences
39.2. Appendix 2 - Highwall Stability Study and Risk Review
39.3. Appendix 3 - Archaeological Localities
39.4. Appendix 4 - Additional Information
40. Letter from NSW Department of Mineral Resources dated 25 May 1998
containing New Lease Condition
41. Security Certificate by ANZ Banking Group Limited for the Minister for
Mineral Resources (NSW) for the sum of $100,000.00 in relation to
Mining Lease 1437 (Act 1992) and Coal Lease 382 (Act 1973)
42. Security Certificate by ANZ Banking Group Limited for the Minister for
Mineral Resources (NSW) for the sum of $10,000.00 in relation to
Exploration Licence 5824 (Act 1992) and Coal Lease 382 (Act 1973)
43. Mining Lease 1437 (Act 1992) registered on 28 April 1999
44. Endorsement of Sub Lease from Maitland Main Collieries Pty Ltd to
▇▇▇▇▇▇▇▇ Tenements Pty Ltd for Part of Coal Lease 382 (Act 1973)
45. Coal Lease 382 (Act 1973) dated 12 November ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ Agreements
46. CHPP Tolling Agreement between Toyota Tsusho Mining (Australia) Pty
Ltd, Dia Coal Mining (Australia) Pty Ltd, Navidale Pty Ltd, Camberwell
Coal Pty Ltd, RHA Pastoral Company Pty Ltd, ▇▇▇▇▇ ▇▇▇▇▇▇ Pty Ltd,
Maitland Collieries Pty Ltd, Glennies Creek Coal Management Pty Ltd
and Consol Energy Australia Pty Ltd dated 30 November 2001
47. Camberwell Interest Option Deed between Toyota Tsusho Mining
(Australia) Pty Ltd, Dia Coal Mining (Australia) Pty Ltd, Navidale Pty
Ltd, Camberwell Coal Pty Ltd, RHA Pastoral Company Pty Ltd, ▇▇▇▇▇
▇▇▇▇▇▇ Pty Ltd, Maitland Collieries Pty Ltd and Consol Energy
Australia Pty Ltd dated 30 November 2001
48. Licence Deed between Toyota Tsusho Mining (Australia) Pty Ltd, Dia
Coal Mining (Australia) Pty Ltd, Navidale Pty Ltd, RHA Pastoral
Company Pty Ltd, Camberwell Coal Pty Ltd, ▇▇▇▇▇ ▇▇▇▇▇▇ Pty Ltd,
Maitland Collieries Pty Ltd, Consol Energy Australia Pty Ltd and
Glennies Creek Coal Management Pty Ltd dated 30 November 2001
49. Exclusive Agency Agreement between ▇▇▇▇▇ ▇▇▇▇▇▇ Pty Ltd, Maitland
Collieries Pty Ltd and Toyota Tsusho Corporation and Consol Energy
Australia Pty Ltd and Glennies Creek Coal Sales Pty Ltd dated 30
November 2001
50. Financier's Deed of Consent between Glennies Creek Coal Management Pty
Ltd and Toyota Tsusho Investment (Australia) Pty Ltd dated 30 November
2001
51. Memorandum of Understanding dated 9 May 2000 between Toyota Tsusho
Mining Pty Ltd (Australia) Pty Ltd and AMCI Australia Pty Ltd
52. Stage 1 Environmental Management Plan - December 1998
53. Approval for Modification to Development Consent from the NSW
Department of Urban Affairs and Planning dated 18 November 1998
Page 109
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
54. Submissions from EPA and DMR regarding the modification application
55. Acknowledgment from the NSW Department of Urban Affairs and Planning
dated 26 August 1998 of the application for modification to the
development consent
56. Statement of Environmental Effects in Support of a Section 96(2)
Application prepared by ▇▇ ▇▇▇▇▇▇▇ & Co dated July 1998
57. Environmental Impact Statement Volume 1 Summary prepared by Dames &
▇▇▇▇▇ dated 20 August 1990
58. Environmental Impact Statement Volume 2 Supplementary Studies prepared
by Dames & ▇▇▇▇▇ dated 20 August 1990
59. Notice of Modification to Development Consent dated 18 December 2001
for the use of the existing highwall entry in the long term and the
transportation of coal to Camberwell
60. Notice of Modification to the Camberwell Development Consent dated 18
December 2001 to allow the upgrade of the Camberwell Coal Handling and
Preparation Plant to process coal mined from Glennies Creek and the
construction of a coal conveyor between the two sites
61. 1999 Annual Environmental Management Report
62. Report of Compliance with Development Consent Conditions May 1999
63. Environmental Protection Authority Licence Number 007622 dated 1 April
1999
64. Notice of Approval of Application for Pollution Control dated 9 April
1999
65. Air Quality Management Plan Stage One 1999
66. Noise Management Plan Stage One 1999
67. Department of Land and Water Conservation Licences:
67.1. 20SL051622 commencing 1 July 1999
67.2. 20SL060339 commencing 17 March 1998
67.3. 20SL060229 commencing 25 February 1997
68. Report on Possible Occurrence of Endangered Flora Species prepared by
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Natural Consultants Pty Ltd dated June 1998
69. Consent to Destroy National Parks and Wildlife Service Site 37-2-803
and Collection Report dated 2 May 1997 and Aboriginal Archaeological
Site Collection on 24 April 1997 by Wonnarua Tribal Council Inc
70. On Site Archaeological Consultation prepared by ▇▇▇▇▇ ▇▇▇▇▇▇▇,
National Heritage Studies Pty Ltd dated January 1991
71. Copies of title searches undertaken on 20 February 2001
71.1. ▇▇▇ ▇ ▇▇ ▇▇▇▇▇▇
71.2. ▇▇▇ ▇ ▇▇ ▇▇▇▇▇▇
71.3. ▇▇▇ ▇ ▇▇ ▇▇▇▇▇▇
71.4. ▇▇▇ ▇ ▇▇ ▇▇▇▇▇▇
71.5. ▇▇▇ ▇ ▇▇ ▇▇▇▇▇▇
Page 110
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
71.6. ▇▇▇ ▇ ▇▇ ▇▇▇▇▇▇
71.7. ▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇
71.8. ▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇▇
71.9. ▇▇▇ ▇ ▇▇ ▇▇▇▇▇▇
71.10. ▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇▇
71.11. ▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇▇
71.12. ▇▇▇ ▇ ▇▇ ▇▇▇▇▇▇
71.13. ▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇▇
72. Valuation Report of the Surface Holdings by Dupont ▇▇▇▇▇ dated 23
September 1996 (note that there was an update to this valuation in
early 2001 which was sent 11 June 2002 Item 4)
73. Fax to ▇▇▇▇ ▇▇▇▇▇, Consol Energy dated 22 August 2001 regarding
accidents and injuries
74. Glennies Creek Colliery Workers Compensation Insurance Policy with
Coal Mines Insurance
75. Glennies Creek Colliery Certified Agreement 2001
76. Glennies Creek Colliery Certified Agreement 2000
77. Various offers of employment for staff
78. Asset Sale Agreement dated 25 October 2001 between ▇▇▇▇▇ ▇▇▇▇▇▇ Pty
Ltd and Maitland Main Collieries Pty Ltd and American Metals & Coal
International Inc and Consol Energy Australia Pty Ltd and Consol
Energy Inc
79. Deed of Termination and Release (Deed of Cross Charge) dated 7
December 2001 between Maitland Main Collieries Pty Ltd and ▇▇▇▇▇
▇▇▇▇▇▇ Pty Ltd
80. Deed of Termination (Glennies Creek Joint Venture) dated 7 December
2001 between Maitland Main Collieries Pty Ltd and ▇▇▇▇▇ ▇▇▇▇▇▇ Pty Ltd
and Namoi Coal Pty Ltd
81. Deed of Rectification dated 24 October 2001 between Maitland Main
Collieries Pty Ltd and ▇▇▇▇▇ ▇▇▇▇▇▇ Pty Ltd and Namoi Coal Pty Ltd
82. Glennies Creek Joint Venture Agreement dated 21 November 1997 between
Maitland Main Collieries Pty Ltd and ▇▇▇▇▇ ▇▇▇▇▇▇ Pty Ltd and Namoi
Coal Pty Ltd
83. Share Sale Agreement relating to the shares in Maitland Main
Collieries Pty Ltd dated 9 May 2001 between Tomen Corporation, Tomen
Australia Limited, Nippon Oil (Australia) Pty Ltd and ▇▇▇▇▇ ▇▇▇▇▇▇ Pty
Ltd and American Metals & Coal International Inc
83.1. Guaranty Agreement dated 30 April 2001 from American Metals &
Coal International Inc in favour of Tomen Corporation and
Tomen Australia Limited
83.2. Guaranty Agreement dated 30 April 2001 from American Metals &
Coal International Inc in favour of Nippon Oil (Australia) Pty
Ltd
83.3. Consent of Directors of American Metals & Coal International
Inc dated 30 April 2001
83.4. Opinion of Counsel to Guarantor issued by ▇▇▇▇ ▇ ▇▇▇▇▇▇▇ to
Tomen Corporation, Tomen Australia Limited and Nippon Oil
(Australia) Pty Ltd
Page 111
83.5. Deed of Agreement and Acknowledgement dated 9 May 2001 issued
by Tomen Corporation, Tomen Australia Limited and Nippon Oil
(Australia) Pty Ltd to Maitland Main Collieries Pty Ltd, ▇▇▇▇▇
▇▇▇▇▇▇ Pty Ltd and Namoi Coal Pty Ltd
84. Glennies Creek Colliery 2000 Annual Environmental Management Report
85. Letter to Environmental Protection Authority dated 25 February 2002
enclosing the Glennies Creek Colliery Annual Returns for the periods:
85.1. 31 December 2001 to 29 November 2001
85.2. 30 November 2001 to 31 December 2001
86. Glennies Creek OH&S Audit Verification Report prepared by WS (▇▇▇▇▇)
▇▇▇▇▇ of ▇▇▇▇▇ Safety Systems Pty Ltd dated 25 & 26 March 2002
87. Glennies Creek Audit Document - Coal Dust Explosion Prevention and
Suppression prepared by Colltraining Pty Ltd dated 29 April 2002
88. JCB Health Audit Report No. GC001 dated 16 November 2001
89. Statement of Environmental Effects in support of a Section 96(2)
Application for the Glennies Creek Coal Mine dated June 2001 prepared
by ▇▇ ▇▇▇▇▇▇▇ & Co Pty Ltd
90. Statement of Environmental Effects in support of an Application to
Modify the Development Consent for the Glennies Creek Coal Mine dated
December 2001 prepared by ▇▇ ▇▇▇▇▇▇▇ & Co Pty Ltd
91. Sundry correspondence in relation to the proposed modification to the
development consent:
91.1. Fax from Development & Infrastructure Assessment Branch of
"planningnsw" dated 29 May 2002 enclosing draft consent
conditions
91.2. Letter to Conservation Planning Unit NSW National Parks and
Wildlife Service dated 23 April 2002 enclosing report prepared
by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ National Resources Consultants Pty Ltd
91.3. Letter to Environmental Protection Authority dated 15 May 2002
enclosing report from ▇▇▇▇▇▇ Air Sciences dated 15 May 2002 in
relation to potential air quality impacts of the proposed
ventilation shaft
92. Air Quality Impact Assessment: Glennies Creek Ventilation Shaft
prepared by ▇▇▇▇▇▇ Air Sciences dated 19 April 2002
93. The Archaeological Investigation of the Site of a Proposed Ventilation
Shaft Facility and a Private Powerline for Glennies creek Colliery
prepared by ▇▇▇▇ ▇▇▇▇▇▇▇▇, Archaeological Surveys & Reports Pty Ltd
dated April 2002
94. Department of Land and Water Conservation Licence 20SL018779
commencing 9 July 1999
95. Sundry correspondence in relation to the Development Consent for
Glennies Creek Colliery:
95.1. Fax from ▇▇▇ ▇▇▇▇▇▇▇▇ to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ dated 20 July 2001 (20
pages)
95.2. Statutory Declaration by ▇▇▇ ▇▇▇▇▇▇▇▇ dated 18 July 2001
95.3. Letter from NSW Department of Mineral Resources dated 23 April
1999
95.4. Letter from ▇▇▇ ▇▇▇▇▇▇▇▇ to Glennies Creek Colliery dated 11
July 2001
95.5. Daily Report from ▇▇▇▇▇▇▇ Contracting Pty Ltd for 23 October
1996
Page 112
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
95.6. Letter from Maitland Main Collieries Pty Ltd to Department of
Urban Affairs and Planning dated 29 October 1996
96. ▇▇▇▇▇▇▇▇ Novation Deed
96.1. Draft letter to Glencore Coal Australia Pty Ltd in relation to
the Deed of Novation
96.2. Draft Deed of Novation between Maitland Main Collieries Pty
Ltd and Consol Energy Australia Pty Ltd and ▇▇▇▇▇▇▇▇ Tenements
Pty Ltd and Liddell Coal Operations Pty Ltd
97. Draft Commercial Terms of the DBT Contract for the supply of the
longwall and associated equipment.
98. Electricity Supply Contracts between Glennies Creek Coal Management
Pty Ltd and Energy Australia dated 17 December 2001
99. Major Equipment Hire Agreements (to replace hire agreements previously
forwarded):
99.1. Joy Shuttle Car 15SC RH (number SC10) from Waratah Hire Pty
Ltd
99.2. Joy Shuttle Car 15SC (number SC01) from Waratah Hire Pty Ltd
99.3. Joy Shuttle Car 15SC LH (number Q235) from Allied Plant
Services Pty Ltd
99.4. 18 cubic metre Ventilation Fan (number QQ246) from Allied
Plant Services Pty Ltd
99.5. ▇▇▇▇▇▇ Teletram (number 1811) from Allied Plant Services Pty
Ltd
99.6. Eimco 130 (number 112) from Allied Plant Services Pty Ltd
99.7. Eimco 130 (number 119) from Allied Plant Services Pty Ltd
99.8. Eimco 130 (number 120) from Allied Plant Services Pty Ltd
99.9. Eimco 130 (number 1452) from Allied Plant Services Pty Ltd
99.10. Eimco 130 (number 1453) from Allied Plant Services Pty Ltd
99.11. Driftrunner (Machine 5101) from Specialised Mining Equipment
Pty Ltd
99.12. Driftrunner (Machine 5098) from Specialised Mining Equipment
Pty Ltd
99.13. Driftrunner (Machine 5126) from Specialised Mining Equipment
Pty Ltd
99.14. Driftrunner (Machine 5136) from Specialised Mining Equipment
Pty Ltd
99.15. Driftrunner (Machine 5140) from Specialised Mining Equipment
Pty Ltd
99.16. ARO Series 40 REMLB-AWT Roof Bolter from Hydramatic
Engineering Pty Ltd
100. Joy Documents
100.1. Letter from Joy Mining Machinery dated 7 November 2000
confirming the supply of three Joy 10SC32BC5 Shuttle Cars
100.2. Joy Mining Machinery Invoice no. 1800010003 for
AUD1,877,232.50 dated 29 May 2001 and corresponding
confirmation of funds transfer
100.3. Joy Mining Machinery Invoice no. 1800010004 for USD66,708.40
dated 29 May 2001 and corresponding confirmation of funds
transfer for AUD127,793.87
100.4. Contract summary prepared by Joy (undated)
100.5. Letter from Joy Mining Machinery dated 18 July 2001 to ▇▇▇▇▇
▇▇▇▇, Glennies Creek Colliery regarding Shuttle Car Drive
Shaft Failure
Page 113
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
100.6. Fax from Joy Mining Machinery dated 25 July 2002 to the
Department of Mineral Resources regarding Shuttle Car
Hydraulic Brake System
100.7. Letter from ▇▇▇▇▇ ▇▇▇▇, Glennies Creek Colliery dated 7 August
2001 to Joy Mining Machinery highlighting shuttle car concerns
100.8. Heads of Agreement signed by Joy Mining Machinery (14 November
2001) and ▇▇▇▇▇ ▇▇▇▇, Glennies Creek Colliery (23 November
2001)
100.9. Letter from ▇▇▇▇▇ ▇▇▇▇, Glennies Creek Colliery dated 28
December 2001 to Joy Mining Machinery regarding extension to
the expiry date of the Heads of Agreement
100.10. Fax from Joy Mining Machinery dated 8 January 2002 confirming
extension
100.11. Email from ▇▇▇▇▇ ▇▇▇▇, Glennies Creek Colliery dated 6 May
2002 to ▇▇▇▇ ▇▇▇▇▇▇, Joy Mining Machinery regarding
replacement of shuttle cars and response from ▇▇▇▇ ▇▇▇▇▇▇
dated 8 May 2002
100.12. Memo from ▇▇▇▇▇ ▇▇▇▇, Glennies Creek Colliery dated 13 May
2002 to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Consol and ▇▇▇▇▇ ▇▇▇▇, AMCI outlining
the shuttle car history
100.13. Minutes of meeting between Joy Mining Machinery and Glennies
Creek Colliery dated 13 May 2002
101. Valuation Report prepared by Dupont ▇▇▇▇▇ dated 26 February 2001
102. Draft Deed of Novation for the Ashton Agreements
103. Hire Agreement with Waratah Hire Pty Ltd dated 4 April 2002 for the
hire of a Joy 12CM30 Continuous Miner
104. Environmental Impact Statement Volume 3 Figures prepared by Dames &
▇▇▇▇▇ dated 20 August 1990
105. Letter from ▇▇▇▇▇ ▇▇▇▇▇▇ Pty Ltd to Tomen Corporation, Tomen Australia
Limited and Nippon Oil (Australia) Pty Ltd dated 30 July 2001
106. Letter from Tomen Corporation dated 13 August 2001
107. Letter from Nippon Oil (Australia) Pty Ltd dated 13 August 2001
108. Email from ▇▇▇ ▇▇▇▇▇▇ (AMCI Australia Pty Ltd) to ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
(Nippon Steel Corporation) dated 25 June 2002 regarding the sale of
30,000 tonnes of coal.
109. Email from ▇▇▇ ▇▇▇▇▇▇ (AMCI Australia Pty Ltd) to ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
(Nippon Steel Corporation) dated 26 June 2002 confirming the
acceptance by Nippon Steel Corporation of 30,000 tonnes of coal.
110. Camberwell Development Consent dated 21 March 1990
111. Camberwell Notice of Amendment to Development Consent dated 22 April
1992
112. Camberwell Notice of Amendment to Development Consent dated 22
December 1994
113. Notice from ▇▇▇▇▇▇▇▇▇ Shire Council to Camberwell Coal Pty Ltd
regarding the Determination of Development Application dated 28
December 1995
114. DBT Invoices:
114.1. Cover letter from ▇▇▇ ▇▇▇▇▇▇ - DBT Australia Pty Ltd dated 20
June 2002
114.2. Invoices dated 12 June 2002 for 75% Claim as follows:
Page 114
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
114.2.1. Euro 7,774,953.00 plus 10% GST
114.2.2. GBP 223,407.00 plus 10% GST
114.2.3. USD 282,150.00 plus 10% GST
114.2.4. AUD 3,731,125.00 plus 10% GST
114.3. ▇▇▇▇ of Lading dated 6 June 2002 with Port of Loading
Bremerhaven and Port of Discharge Sydney
114.4. Seaway ▇▇▇▇ dated 30 May 2002 with Port of Loading Bremerhaven
and Port of Discharge Sydney
114.5. RBA Exchange Rates used in the determination of Australian
dollar equivalent GST
115. Joy Mining Machinery's Standard Terms and Conditions (revision 4 May
2001).
116. Notice of modification to development consent granted by the Minister
for Planning on 28 June 2002.
Page 115
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
ANNEXURE A
DRAWDOWN NOTICE
[Operator's Letterhead]
TO: [Agent]
DRAWDOWN NOTICE NO. [*]
This is an irrevocable notice under clause 5 of the Facility Agreement dated [*]
(the Facility Agreement).
(1) The Operator, on behalf of the Borrowers, wishes to draw under
Facility or Facilities on [*] (the Drawdown Date). NOTE: Date is to be
a Business Day during the Availability Period for the relevant
Facility. The Operator represents and warrants that each Borrower has
authorised the Operator to give this Drawdown Notice on its behalf.
(2) The total amount to be drawn for the [*] Facility is [*].
NOTE: Amount to comply with the limits in clauses 10 and 11.
(3) Particulars of each Segment of each Facility are as follows:
BORROWER FACILITY AMOUNT FUNDING PERIOD
Consol Energy [*] [*] [*]
Australia Pty
Limited
Maitland Main [*]
Collieries Pty
Limited
[*] [*] [*] [*]
NOTE: Amounts to comply with clauses 10 and 11. Length of Funding
Period to comply with clause 7.
(5) [With respect to the [*] Facility,] please remit on [date] half of the
proceeds to account number [*] at [*] and the other half to account
number [*] at [*].
[Note: Must specify Proceeds Account for each Borrower in the same
currency as the Segment]
Page 116
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
OR
(5) With respect to the Working Capital Facility, please apply on [date]
the proceeds to repayment of A$[amount] of Segment(s) which have a
Funding Period ending on that date.
(6) The Operator and each Borrower represents and warrants as follows.
(a) [(Except as disclosed in paragraph (c) ]the representations
and warranties in the Facility Agreement are true as though
they had been made at the date of this Drawdown Notice and the
Drawdown Date specified above in respect of the facts and
circumstances then subsisting.
(b) [(Except as disclosed in paragraph (c) ]no Event of Default or
Potential Event of Default subsists or will result from the
drawing.
[(c) Details of the exceptions to paragraphs (a) and (b) are as
follows: [*], and we [have taken|propose] the following
remedial action [*].]
NOTE: Inclusion of a statement under paragraph (c) will not prejudice
the conditions precedent in the agreement.
Definitions in the Facility Agreement apply when used in this Drawdown Notice.
On behalf of [GLENNIES CREEK COAL MANAGEMENT PTY] LIMITED, for and on behalf of
each Borrower.
By: [Authorised Officer of Operator]
DATED [*]
Page 117
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
ANNEXURE B
SELECTION NOTICE
[OPERATOR'S LETTERHEAD]
TO: [Agent]
SELECTION NOTICE NO. [*]
This is an irrevocable notice under clause 6 of the Facility Agreement dated [*]
(the Facility Agreement).
(1) The Borrowers wish to continue [a Segment|Segments] under Project
Facility or Project Facilities] on [*] (the Selection Date).
NOTE: The selection date is to be a Business Day.
(2) Particulars of [each|the] Segment [of each Project Facility ]requested
are as follows:
BORROWER FACILITY AMOUNT FUNDING PERIOD
Consol Energy [*] [*] [*]
Australia Pty Limited
Maitland Main [*] [*] [*]
Collieries Pty
Limited
NOTE: Amounts to comply with clause 10. Length of Funding Periods to
comply with clause 7.
(3) The Operator and each Borrower represents and warrants as follows.
(a) [(Except as disclosed in paragraph (c) ]the representations
and warranties in the Facility Agreement are true as though
they had been made at the date of this Selection Notice and
the Selection Date specified above in respect of the facts and
circumstances then subsisting.
(b) [Except as disclosed in paragraph (c) ]no Event of Default or
Potential Event of Default subsists or will result from the
continuation of the [Segment|Segments].
[(c) Details of the exceptions to paragraphs (a) and (b) are as
follows:
([*]; and)
Page 118
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(we [have taken|propose] the following remedial action:)
([*]; [and])]
Definitions in the Facility Agreement apply in this Selection Notice.
On behalf of [GLENNIES CREEK COAL MANAGEMENT PTY] LIMITED, for and on behalf of
each Borrower.
By: [Authorised Officer of Operator]
DATED [*]
Page 119
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
ANNEXURE C
VERIFICATION CERTIFICATE
NOTE: To be signed by 2 directors or a director and secretary of the relevant
company.
TO: Australia and New Zealand Banking Group Limited for itself and as
Agent for the Participants under the Facility Agreement and their
respective substitutes and assigns.
SYNDICATED MULTI-OPTION FACILITY FOR GLENNIES CREEK COAL JOINT VENTURE
We are [directors] [a director and a secretary] [the sole director and
secretary] of [*] (the Company).
We refer to the Facility Agreement dated [*] (the Facility Agreement) between,
among others, the Company and Australia and New Zealand Banking Group Limited .
Definitions in the Facility Agreement apply in this Certificate.
We certify as follows.
1. Attached are complete copies of the following.
(a) If the Company has executed any Transaction Document to which
it is expressed to be a party under power of attorney, the
duly stamped and registered power of attorney under which the
Company has executed that Transaction Document (marked A).
That power of attorney has not been revoked or suspended by
the Company and remains in full force and effect.
(b) Extracts of minutes of a meeting of the directors of the
Company approving execution of each Transaction Document to
which it is expressed to be a party and appointing attorneys
for that purpose (and, if applicable, appointing Authorised
Officers of the Company for the purpose of the Transaction
Documents (marked B)). Those resolutions have not been
amended, modified or revoked and are in full force and effect.
(c) The constituent documents for the Company, if they are not
already held by the Agent (marked C).
(d) Where the Company is signing as trustee, documents
constituting the trust (marked D).
If any of the documents in paragraph (c) or (d) (if applicable) are already held
by the Agent, we confirm that
(a) those documents are complete and up-to-date; or
(b) if there is an attachment marked E, the attachment marked E
comprises all subsequent amendments to them.
The following are signatures of the Authorised Officers of the Company and the
persons who have been authorised to sign each Transaction Document to which it
is expressed to be a party and to give notices and communications under or in
connection with the Transaction Documents.
AUTHORISED OFFICERS
Page 120
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
NAME POSITION SIGNATURE
* *
-------------------
* *
-------------------
* *
-------------------
The Company is solvent and, taking into consideration the liabilities it will
incur under the Transaction Documents, will remain solvent.
----------------------------------------------
[Director| Sole Director and Secretary]
Date:
----------------------------------------------
[Secretary|Director]
Date:
Page 121
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
ANNEXURE D
SUBSTITUTION CERTIFICATE
for a Participation of [*]$[*]
relating to the Syndicated Multi-Option Facility Agreement (the Facility
Agreement) dated [*] between Australia and New Zealand Banking Group Limited as
Agent and the Borrowers and other parties named in that agreement between:
[*] (the Substitute Participant);
[*] (the Retiring Participant); and
[*] (the Agent) for itself and on behalf of the other parties to the Facility
Agreement.
IT IS AGREED as follows.
2. DEFINITIONS
In this Certificate definitions in the Facility Agreement and the
following definitions apply unless the context requires otherwise.
[Assigned Drawings means the participation in the Principal
Outstanding representing the Substituted Participation.]
Substituted Participation means the Commitment of the Retiring
Participant and the participation in the Principal Outstanding drawn
under that Commitment [ in respect of the following Segments:] NOTE:
To be inserted if only part of participation is being substituted.
DATE FACILITY FUNDING PERIOD CURRENCY AMOUNT OF
PARTICIPATION
[*] [*] [*] [*] [*]
[*] [*] [*] [*] [*]
Substitution Date means the date of countersignature of this
Certificate by the Agent[ or [*] whichever is the later]. NOTE: Insert
any other date or dates as appropriate.
Clause 1.2 of the Facility Agreement applies to this Certificate.
3. SUBSTITUTION
3.1 [ASSIGNMENT OF ASSIGNED DRAWINGS
The Retiring Participant assigns absolutely to the Substitute
Participant the Assigned Drawings with effect from and including the
Substitution Date.]
Page 122
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
3.2 RELEASE OF RETIRING PARTICIPANT
The Retiring Participant will cease to be entitled to and bound by its
other rights and obligations as a Participant under the Transaction
Documents [relating to the Substituted Participation] NOTE: Insert if
only part of commitment assumed with effect from and including the
Substitution Date. It will remain entitled to and bound by rights and
obligations which accrue up to the Substitution Date including
interest and fees payable on or before the Substitution Date.
3.3 ASSUMPTION BY SUBSTITUTE PARTICIPANT
With effect from and including the Substitution Date:
(c) the Substitute Participant and each of the parties to the
Facility Agreement shall assume obligations towards each other
and acquire rights against each other which are identical to
those which cease under clause 2.2, except to the extent the
obligations and rights relate to the identity of or location
of the Substitute Participant and not to the identity of or
location of the Retiring Participant; and
(d) the Substitute Participant will be taken to be a party to the
Facility Agreement as a Participant with a Commitment [and
participation in the Principal Outstanding] equal to the
Substituted Participation.
4. INDEPENDENT ASSESSMENT BY SUBSTITUTE PARTICIPANT
Without limiting the generality of clause 2 the Substitute Participant
agrees as specified in clauses 36.5 (No Liability) and 36.12
(Independent investigation of credit) of the Facility Agreement. Those
clauses apply (subject to any agreement to the contrary) as if
references to the Agent included the Retiring Participant. This
Certificate is a Transaction Document for the purposes of the Facility
Agreement.
5. PAYMENTS
From and including the Substitution Date the Agent shall make all
payments due under the Transaction Documents in relation to the
Substituted Participation to the Substitute Participant. The Retiring
Participant and the Substitute Participant will make directly between
themselves those payments and adjustments which they agree with
respect to accrued interest, fees, costs and other amounts
attributable to the Substituted Participation before the Substitution
Date.
6. WARRANTY
The Retiring Participant and the Substitute Participant severally
represent and warrant to the other parties that clause 36.2(a) of the
Facility Agreement has been complied with in relation to the
Substitute Participant.
7. NOTICES
For the purpose of the Facility Agreement the Lending Office and
address for correspondence of the Substitute Participant is the
address set out below.
Page 123
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
8. REGISTRATION FEE
A registration fee of A$2,000 is payable by the Substitute Participant
to the Agent on delivery of this Certificate to the Agent.
9. LAW
This Certificate is governed by the laws of [New South Wales].
Signed by the authorised representatives of the parties [in the
Australian Capital Territory|New South Wales|[insert place outside
Australia]].
THE RETIRING PARTICIPANT
[*]
by:
-----------------
THE SUBSTITUTE PARTICIPANT
[*]
by:
-----------------
[Lending Office][ and address for correspondence]:[*]
[Address for correspondence: [*]]NOTE: If different from Lending Office.
Countersigned by an authorised representative of the Agent for itself and for
the other parties to the Facility Agreement.
THE AGENT
[*]
by: DATED [*]
Page 124
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
ANNEXURE E
REPAYMENT SCHEDULES
PART 1 - TERM FACILITY
% OF BORROWER'S TOTAL TERM PRINCIPAL
REPAYMENT DATE OUTSTANDING
31 March 2006 10.92%
30 September 2006 11.21%
31 March 2007 11.50%
30 September 2007 11.81%
31 March 2008 12.12%
30 September 2008 12.44%
31 March 2009 30.00%
PART 2 - MINING UNIT FACILITY
% OF BORROWER'S TOTAL MU PRINCIPAL
REPAYMENT DATE OUTSTANDING
31 March 2006 10.92%
30 September 2006 11.21%
31 March 2007 11.50%
30 September 2007 11.81%
31 March 2008 12.12%
30 September 2008 12.44%
31 March 2009 30.00%
Page 125
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
ANNEXURE F
INITIAL BUDGET
FORECAST OF COAL SALES - DETAILS
COUNTRY US$/TONNE FOB TONNES TO BE SOLD
Japan 34.50 225,000
Korea 34.50 70,000
Taiwan 34.50 60,000
Brazil 40.00 70,000
Europe 40.00 155,000
Domestic 34.50 125,500
705,500
Weighted Average 36.25
Page 126
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
GLENNIES CK OPERATING COSTS - LONGWALL
2002
APRIL MAY JUNE JULY AUG
Net Weeks 3 4 5 4 4
Development (Metres) 1050 1400 1750 1315 480
Development (Tonnes) 23100 30800 38500 28930 10560
Pillar Extraction (Tonnes)
Longwall (Tonnes) 0 0 0 0 0
Total ROM Tonnes 23100 30800 38500 28930 10560
Yield (%) 51.4 51.4 51.4 51.5 52.0
Total Clean Tonnes 11880 15840 19800 14905 ▇▇▇▇
▇▇▇▇▇▇▇ 1
LWUnits 0 0 0 0
CMUnits 1.5 1.5 1.5 1.5 1.5
TotalUnits 1.5 1.5 1.5 1.5 1.5
LABOUR
Number 100 100 107 107 107
Salary 19 19 19 19 19
Wages 76 76 83 83 83
Casuals 5 5 5 5 5
LabourCost
Salary $permonth 195542 195542 195542 195542 195542
Wages $per/man/week $ 2,115 482220 642960 877725 702180 702180
Casuals $per/man/week $ 2,000 30000 40000 50000 40000 40000
Total 707762 878502 1123267 937722 937722
Ventilation 31,500 42,000 52,500 39,450 14,400
CleaningExpenses $perperson $ 100 10,000 10,000 10,700 10,700 10,700
DrillingRods&Bits $perd'mentmetre $ 7 7,350 9,800 12,250 9,205 3,360
FireFighting $perd'mentmetre $ 4 4,200 5,600 7,000 5,260 1,920
Fuel/Diesel $perUnit $ 15,000 22,500 22,500 22,500 22,500 22,500
Grease&Oils $perCMUnit $ 10,000 15,000 15,000 15,000 15,000 15,000
MinerPicks $perCMtonne $ 0.20 4,620 6,160 7,700 5,786 2,112
SEPT OCT NOV DEC
Net Weeks 5 4 4 4
Development (Metres) 1250 1000 1000 1000
Development (Tonnes) 27500 22000 22000 22000
Pillar Extraction (Tonnes)
Longwall (Tonnes) 140000 112841 50000 180000
Total ROM Tonnes 167500 134841 72000 202000
Yield (%) 61.4 61.4 59.5 61.3
Total Clean Tonnes 102817 82784 42840 123908
LWMoves 1
LWUnits 1 1 1 1
CMUnits 1 1 1 1
TotalUnits 2 2 2 2
LABOUR
Number 107 107 107 107
Salary 19 19 19 19
Wages 83 83 83 83
Casuals 5 5 5 5
LabourCost
Salary $permonth 195542 195542 195542 195542
Wages $per/man/week $ 2,115 877725 702180 702180 702180
Casuals $per/man/week $ 2,000 50000 40000 40000 40000
Total 1123267 937722 937722 937722
Ventilation 37,500 30,000 80,000 30,000
CleaningExpenses $perperson $ 100 10,700 10,700 10,700 10,700
DrillingRods&Bits $perd'mentmetre $ 7 8,750 7,000 7,000 7,000
FireFighting $perd'mentmetre $ 4 5,000 4,000 4,000 4,000
Fuel/Diesel $perUnit $ 15,000 15,000 15,000 15,000 15,000
Grease&Oils $perCMUnit $ 10,000 10,000 10,000 10,000 10,000
MinerPicks $perCMtonne $ 0.20 5,500 4,400 4,400 4,400
2003 YEM2003
JAN FEB MAR TOTAL $/TONNE
Net Weeks 3 4 5 49
Development (Metres) 750 285 1250 12,530
Development (Tonnes) 16500 6270 27500 275,660
Pillar Extraction (Tonnes)
Longwall (Tonnes) 135000 180000 138997 936,838
Total ROM Tonnes 151500 186270 166497 1,212,498
Yield (%) 61.3 62.0 61.0 60.2
Total Clean Tonnes 92931 115571 101529 730,296
LWMoves 2
▇▇▇▇▇▇▇ ▇ ▇ ▇
▇▇▇▇▇▇▇ ▇ ▇ ▇
▇▇▇▇▇▇▇▇▇▇ 2 2 2
LABOUR
Number 107 107 107 106
Salary 19 19 19
Wages 83 83 83
Casuals 5 5 5
LabourCost
Salary $permonth 195542 195542 195542 2,346,500
Wages $per/man/week $ 2,115 526635 702180 877725 8,498,070
Casuals $per/man/week $ 2,000 30000 40000 50000 490,000
Total 752177 937722 1123267 11,334,570 9.35
Ventilation 22,500 8,550 37,500 425,900
CleaningExpenses $perperson $ 100 10,700 10,700 10,700 127,000
DrillingRods&Bits $perd'mentmetre $ 7 5,250 1,995 8,750 87,710
FireFighting $perd'mentmetre $ 4 3,000 1,140 5,000 50,120
Fuel/Diesel $perUnit $ 15,000 15,000 15,000 15,000 217,500
Grease&Oils $perCMUnit $ 10,000 10,000 10,000 10,000 145,000
MinerPicks $perCMtonne $ 0.20 3,300 1,254 5,500 55,132
Page 127
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
2002
APRIL MAY JUNE JULY AUG
OtherOperatingSupplies $perCMUnit $ 40,000 60,000 60,000 60,000 60,000 60,000
RoofSupport-Primary 126,000 168,000 210,000 157,800 57,600
SecondaryRoofSupport 10,500 14,000 17,500 13,150 4,800
HosesandPipes $ 20,000 20,000 20,000 20,000 20,000 20,000
SafetyEquipment $perperson/month $ 150.00 15,000 15,000 16,050 16,050 16,050
StoneDust $perd'mentmetre $ 3.00 3,150 4,200 5,250 3,945 1,440
Tools $perperson/month $ 150 15,000 15,000 16,050 16,050 16,050
OPERATINGSUPPLIES 344,820 407,260 472,500 394,896 245,932
BeltInstallations $perd'mentmetre $ 15 15,750 21,000 26,250 19,725 57,200
BeltMaintenance pertotaltonne $ 0.50 11,550 15,400 19,250 14,465 5,280
ConveyorStructure pertotaltonne $ 0.10 2,310 3,080 3,850 2,893 1,056
CableRepairs $perCMUnit/Month $ 10,000 15,000 15,000 15,000 15,000 15,000
DieselEquipment $perUnit/Month $ 15,000 22,500 22,500 22,500 22,500 22,500
HydraulicHoses/Fittings $perCMUnit/Month $ 5,000 7,500 7,500 7,500 7,500 7,500
Lighting/Communications $perd'mentmetre $ 5 5,250 7,000 8,750 6,575 2,400
CMs-Maintenance $perCMUnit/Month $ 20,000 30,000 30,000 30,000 30,000 30,000
MonitoringEquipment $perd'mentmetre $ 5 5,250 7,000 8,750 6,575 2,400
▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇ $perd'mentmetre $ 15 15,750 21,000 26,250 19,725 7,200
▇▇▇▇▇▇▇▇▇.▇▇▇▇▇ $perd'mentmetre $ 15 15,750 21,000 26,250 19,725 7,200
RoofBoltingEquipment $perd'mentmetre $ 15 15,750 21,000 26,250 19,725 7,200
RubberTyres $perCMtonne $ 0.50 11,550 15,400 19,250 14,465 5,280
ShuttleCars $perCMUnit/Month $ 10,000 15,000 15,000 15,000 15,000 15,000
Pumping $perd'mentmetre $ 15 15,750 21,000 26,250 19,725 7,200
ContractLabourServicing $perCMtonne $ 3 69,300 92,400 115,500 86,790 31,680
MAINTENANCESUPPLIES 273,960 335,280 396,600 320,388 224,096
Maintenance perLWtonne $ 1.00 - - - - -
Emulsion - - - - -
Longwall perLWmonth $ 22,000 -
Materials perLWtonne $ 0.17 - - - - -
▇▇▇▇▇▇▇ perLWtonne $ 0.29 - - - - -
LWMoves - - - - 550,000
LWMINING - - - - 550,000
LHDs $perCM/Month $ 54,000 18,000 18,000 18,000 18,000 18,000
Buildings $perCM/Month $ 4,000 4,000 4,000 4,000 4,000 4,000
SEPT OCT NOV DEC
OtherOperatingSupplies $perCMUnit $ 40,000 40,000 40,000 40,000 40,000
RoofSupport-Primary 150,000 120,000 140,000 120,000
SecondaryRoofSupport 26,500 21,284 15,000 28,000
HosesandPipes $ 20,000 20,000 20,000 20,000 20,000
SafetyEquipment $perperson/month $ 150.00 16,050 16,050 16,050 16,050
StoneDust $perd'mentmetre $ 3.00 3,750 3,000 3,000 3,000
Tools $perperson/month $ 150 16,050 16,050 16,050 16,050
OPERATINGSUPPLIES 364,800 317,484 381,200 324,200
BeltInstallations $perd'mentmetre $ 15 18,750 15,000 65,000 15,000
BeltMaintenance pertotaltonne $ 0.50 83,750 67,421 36,000 101,000
ConveyorStructure pertotaltonne $ 0.10 16,750 13,484 7,200 20,200
CableRepairs $perCMUnit/Month $ 10,000 10,000 10,000 10,000 10,000
DieselEquipment $perUnit/Month $ 15,000 30,000 30,000 30,000 30,000
HydraulicHoses/Fittings $perCMUnit/Month $ 5,000 5,000 5,000 5,000 5,000
Lighting/Communications $perd'mentmetre $ 5 6,250 5,000 5,000 5,000
CMs-Maintenance $perCMUnit/Month $ 20,000 20,000 20,000 20,000 20,000
MonitoringEquipment $perd'mentmetre $ 5 6,250 5,000 5,000 5,000
▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇ $perd'mentmetre $ 15 18,750 15,000 15,000 15,000
▇▇▇▇▇▇▇▇▇.▇▇▇▇▇ $perd'mentmetre $ 15 18,750 15,000 15,000 15,000
RoofBoltingEquipment $perd'mentmetre $ 15 18,750 15,000 15,000 15,000
RubberTyres $perCMtonne $ 0.50 13,750 11,000 11,000 11,000
ShuttleCars $perCMUnit/Month $ 10,000 10,000 10,000 10,000 10,000
Pumping $perd'mentmetre $ 15 18,750 15,000 15,000 15,000
ContractLabourServicing $perCMtonne $ 3 82,500 66,000 66,000 66,000
MAINTENANCESUPPLIES 378,000 317,905 330,200 358,200
Maintenance perLWtonne $ 1.00 140,000 112,841 50,000 180,000
Emulsion 22,000 22,000 22,000 22,000
Longwall perLWmonth $ 22,000 22,000 22,000 22,000 22,000
Materials perLWtonne $ 0.17 23,800 19,183 8,500 30,600
▇▇▇▇▇▇▇ perLWtonne $ 0.29 40,600 32,724 14,500 52,200
LWMoves - - 650,000 -
LWMINING 226,400 186,748 745,000 284,800
LHDs $perCM/Month $ 54,000 18,000 18,000 18,000 18,000
Buildings $perCM/Month $ 4,000 4,000 4,000 4,000 4,000
2003 YEM2003
JAN FEB MAR TOTAL $/TONNE
OtherOperatingSupplies $perCMUnit $ 40,000 40,000 40,000 40,000 580,000
RoofSupport-Primary 90,000 34,200 150,000 1,523,600
SecondaryRoofSupport 21,000 20,850 26,400 218,984
HosesandPipes $ 20,000 20,000 20,000 20,000 240,000
SafetyEquipment $perperson/month $ 150.00 16,050 16,050 16,050
StoneDust $perd'mentmetre $ 3.00 2,250 855 3,750 37,590
Tools $perperson/month $ 150 16,050 16,050 16,050 190,500
OPERATINGSUPPLIES 275,100 196,644 364,700 4,089,536 3.37
BeltInstallations $perd'mentmetre $ 15 11,250 4,275 18,750 287,950
BeltMaintenance pertotaltonne $ 0.50 75,750 93,135 83,249 606,249
ConveyorStructure pertotaltonne $ 0.10 15,150 18,627 16,650 121,250
CableRepairs $perCMUnit/Month $ 10,000 10,000 10,000 10,000 145,000
DieselEquipment $perUnit/Month $ 15,000 30,000 30,000 30,000 322,500
HydraulicHoses/Fittings $perCMUnit/Month $ 5,000 5,000 5,000 5,000 72,500
Lighting/Communications $perd'mentmetre $ 5 3,750 1,425 6,250 62,650
CMs-Maintenance $perCMUnit/Month $ 20,000 20,000 20,000 20,000 290,000
MonitoringEquipment $perd'mentmetre $ 5 3,750 1,425 6,250 62,650
▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇ $perd'mentmetre $ 15 11,250 4,275 18,750 187,950
▇▇▇▇▇▇▇▇▇.▇▇▇▇▇ $perd'mentmetre $ 15 11,250 4,275 18,750 187,950
RoofBoltingEquipment $perd'mentmetre $ 15 11,250 4,275 18,750 187,950
RubberTyres $perCMtonne $ 0.50 8,250 3,135 13,750 137,830
ShuttleCars $perCMUnit/Month $ 10,000 10,000 10,000 10,000 145,000
Pumping $perd'mentmetre $ 15 11,250 4,275 18,750 187,950
ContractLabourServicing $perCMtonne $ 3 49,500 18,810 82,500
MAINTENANCESUPPLIES 287,400 232,932 377,398 3,832,359 3.16
Maintenance perLWtonne $ 1.00 135,000 180,000 138,997 936,838
Emulsion 22,000 22,000 22,000 154,000
Longwall perLWmonth $ 22,000 22,000 22,000 22,000
Materials perLWtonne $ 0.17 22,950 30,600 23,629 159,262
▇▇▇▇▇▇▇ perLWtonne $ 0.29 39,150 52,200 40,309 271,683
LWMoves - - - 1,200,000
LWMINING 219,100 284,800 224,936 2,721,783 2.24
LHDs $perCM/Month $ 54,000 18,000 18,000 18,000 216,000
Buildings $perCM/Month $ 4,000 4,000 4,000 4,000 48,000
Page 128
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
2002
APRIL MAY JUNE JULY AUG
General $perCM/Month $ 100,000 200,000 150,000 100,000 100,000 100,000
EQUIPMENTHIRE 222,000 172,000 122,000 122,000 122,000
Power $perTotalTonne $ 0.50 23,100 30,800 38,500 28,930 10,560
POWER 23,100 30,800 38,500 28,930 10,560
CivilWorks $perMonth $ 5,000 5,000 5,000 5,000 5,000 5,000
Computers $perMonth $ 2,000 2,000 2,000 2,000 2,000 2,000
ConsultingServices $perUnit/Month $ 20,000 30,000 30,000 30,000 30,000 30,000
Entertainment $perMonth $ 1,000 1,000 1,000 1,000 1,000 1,000
Environment $perMonth $ 10,000 10,000 10,000 10,000 10,000 10,000
Freight $perUnit/Month $ 20,000 30,000 30,000 30,000 30,000 30,000
MotorVehicles $perMonth $ 4,000 4,000 4,000 4,000 4,000 4,000
PropertyTaxes $perMonth $ 3,000 3,000 3,000 3,000 3,000 3,000
SamplingandAnalysis $pertotalmetre $ 10.00 10,500 14,000 17,500 13,150 4,800
OfficeSupplies $perCM/Month $ 2,000 3,000 3,000 3,000 3,000 3,000
Telephones $perCM/Month $ 2,000 3,000 3,000 3,000 3,000 3,000
Training $perperson/month $ 200 20,000 20,000 21,400 21,400 21,400
Accommodation $perMonth $ 3,000 3,000 3,000 3,000 3,000 3,000
Donations $perMonth $ 500 500 500 500 500 500
InterestPaid-Leases $perMonth $ 6,000 6,000 6,000 6,000 6,000 6,000
Insurance $perMonth $ 60,000 60,000 60,000 60,000 60,000 60,000
AMCIBackcharge $perMonth $ 40,000 40,000 40,000 40,000 40,000 40,000
ADMINISTRATION 231,000 234,500 239,400 235,050 226,700
TOTALMININGCOSTS($) 1,802,642 2,058,342 2,392,267 2,038,986 2,317,010
TOTALMININGCOSTS($/t) 78.04 66.83 62.14 70.48 219.41
WASHINGCOSTS($/t)
CoalHaulage $perTotalTonne $ 1.50 1.25 1.25 1.25 1.25 1.25
AccessFee $perMonth $ 142,865 6.18 4.64 3.71 4.94 13.53
WashingCosts $perTotalTonne $ 2.16 2.75 2.75 2.75 2.75 2.75
Total 10.18 8.64 7.71 8.94 17.53
SEPT OCT NOV DEC
General $perCM/Month $ 100,000 100,000 100,000 100,000 100,000
EQUIPMENTHIRE 122,000 122,000 122,000 122,000
Power $perTotalTonne $ 0.50 83,750 67,421 36,000 101,000
POWER 83,750 67,421 36,000 101,000
CivilWorks $perMonth $ 5,000 5,000 5,000 5,000 5,000
Computers $perMonth $ 2,000 2,000 2,000 2,000 2,000
ConsultingServices $perUnit/Month $ 20,000 40,000 40,000 40,000 40,000
Entertainment $perMonth $ 1,000 1,000 1,000 1,000 1,000
Environment $perMonth $ 10,000 10,000 10,000 10,000 10,000
Freight $perUnit/Month $ 20,000 40,000 40,000 40,000 40,000
MotorVehicles $perMonth $ 4,000 4,000 4,000 4,000 4,000
PropertyTaxes $perMonth $ 3,000 3,000 3,000 3,000 3,000
SamplingandAnalysis $pertotalmetre $ 10.00 12,500 10,000 10,000 10,000
OfficeSupplies $perCM/Month $ 2,000 2,000 2,000 2,000 2,000
Telephones $perCM/Month $ 2,000 2,000 2,000 2,000 2,000
Training $perperson/month $ 200 21,400 21,400 21,400 21,400
Accommodation $perMonth $ 3,000 3,000 3,000 3,000 3,000
Donations $perMonth $ 500 500 500 500 500
InterestPaid-Leases $perMonth $ 6,000 6,000 6,000 6,000 6,000
Insurance $perMonth $ 60,000 60,000 60,000 60,000 60,000
AMCIBackcharge $perMonth $ 40,000 40,000 40,000 40,000 40,000
ADMINISTRATION 252,400 249,900 249,900 249,900
TOTALMININGCOSTS($) 2,550,617 2,199,179 2,802,022 2,377,822
TOTALMININGCOSTS($/t) 15.23 16.31 38.92 11.77
WASHINGCOSTS($/t)
CoalHaulage $perTotalTonne $ 1.50 1.50 1.50 1.50 1.50
AccessFee $perMonth $ 142,865 0.85 1.06 1.98 0.71
WashingCosts $perTotalTonne $ 2.16 2.16 2.16 2.16 2.16
Total 4.51 4.72 5.64 4.37
2003 YEM2003
JAN FEB MAR TOTAL $/TONNE
General $perCM/Month $ 100,000 100,000 100,000 100,000 1,350,000
EQUIPMENTHIRE 122,000 122,000 122,000 1,614,000 1.33
Power $perTotalTonne $ 0.50 75,750 93,135 83,249 672,194
POWER 75,750 93,135 83,249 672,194 0.55
CivilWorks $perMonth $ 5,000 5,000 5,000 5,000 60,000
Computers $perMonth $ 2,000 2,000 2,000 2,000 24,000
ConsultingServices $perUnit/Month $ 20,000 40,000 40,000 40,000 430,000
Entertainment $perMonth $ 1,000 1,000 1,000 1,000 12,000
Environment $perMonth $ 10,000 10,000 10,000 10,000 120,000
Freight $perUnit/Month $ 20,000 40,000 40,000 40,000 430,000
MotorVehicles $perMonth $ 4,000 4,000 4,000 4,000 48,000
PropertyTaxes $perMonth $ 3,000 3,000 3,000 3,000 36,000
SamplingandAnalysis $pertotalmetre $ 10.00 7,500 2,850 12,500 125,300
OfficeSupplies $perCM/Month $ 2,000 2,000 2,000 2,000 29,000
Telephones $perCM/Month $ 2,000 2,000 2,000 2,000 29,000
Training $perperson/month $ 200 21,400 21,400 21,400 254,000
Accommodation $perMonth $ 3,000 3,000 3,000 3,000 36,000
Donations $perMonth $ 500 500 500 500 6,000
InterestPaid-Leases $perMonth $ 6,000 6,000 6,000 6,000 72,000
Insurance $perMonth $ 60,000 60,000 60,000 60,000 720,000
AMCIBackcharge $perMonth $ 40,000 40,000 40,000 40,000 480,000
ADMINISTRATION 247,400 242,750 252,400 2,911,300 2.40
TOTALMININGCOSTS($) 1,978,927 2,109,983 2,547,949 27,175,742 22.41
27,175,742
TOTALMININGCOSTS($/t) 13.06 11.33 15.30
WASHINGCOSTS($/t)
CoalHaulage $perTotalTonne $ 1.50 1.50 1.50 1.50
AccessFee $perMonth $ 142,865 0.94 0.77 0.86
WashingCosts $perTotalTonne $ 2.16 2.16 2.16 2.16
Total 4.60 4.43 4.52
Page 129
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
2002
APRIL MAY JUNE JULY AUG
TOTALPRODUCTIONCOSTS($/t) 88.22 75.47 69.85 79.42 236.94
YIELD % 51.43 51.43 51.43 51.52 52.00
YIELDADJUSTMENT($/t) 171.54 146.74 135.81 154.15 455.66
OTHERCHARGES
RoyaltyandResearch $perCleanTonne $ 1.75 1.75 1.75 1.75 1.75 1.75
ManagementFee $perCleanTonne $ 1.50 1.66 1.66 1.66 1.66 1.66
Total 3.25 3.41 3.41 3.41 3.41 3.41
TRANSPORTCOSTS
RailFreight $perCleanTonne $ 3.15 3.15 3.15 3.15 3.15 3.15
PortCosts $perCleanTonne $ 3.00 3.00 3.00 3.00 3.00 3.00
SamplingCostsetc. $perCleanTonne $ 0.30 0.30 0.30 0.30 0.30 0.30
Total 6.45 6.45 6.45 6.45 6.45
TOTALFOBCOSTS($/t) 181.40 156.60 145.67 164.01 465.52
TOTALFOBCOSTS($) 2,155,043 2,480,589 2,884,360 2,444,534 2,556,258
REVENUE(A$)
ExchangeRate 1$US/1$A 0.55 0.55 0.55 0.55 0.55 0.55
SellingPrice $US 36.25 36.25 36.25 36.25 36.25 36.25
SellingPrice $A 65.92 65.92 65.92 65.92 65.92
Total 783,088 1,044,117 1,305,147 982,485 361,961
PROFIT/(LOSS) (1,371,955) (1,436,472) (1,579,213) (1,462,049) (2,194,297)
CumulativeProfit/(Loss) (1,371,955) (2,808,427) (4,387,640) (5,849,689) (8,043,986)
SEPT OCT NOV DEC
TOTALPRODUCTIONCOSTS($/t) 19.74 21.03 44.56 16.14
YIELD % 61.38 61.39 59.50 61.34
YIELDADJUSTMENT($/t) 32.16 34.25 74.89 26.31
OTHERCHARGES
RoyaltyandResearch $perCleanTonne $ 1.75 1.75 1.75 1.75 1.75
ManagementFee $perCleanTonne $ 1.50 1.66 1.66 1.66 1.66
Total 3.25 3.41 3.41 3.41 3.41
TRANSPORTCOSTS
RailFreight $perCleanTonne $ 3.15 3.15 3.15 3.15 3.15
PortCosts $perCleanTonne $ 3.00 3.00 3.00 3.00 3.00
SamplingCostsetc. $perCleanTonne $ 0.30 0.30 0.30 0.30 0.30
Total 6.45 6.45 6.45 6.45
TOTALFOBCOSTS($/t) 42.02 44.11 84.75 36.17
TOTALFOBCOSTS($) 4,320,307 3,651,809 3,630,809 4,481,740
REVENUE(A$)
ExchangeRate 1$US/1$A 0.55 0.55 0.55 0.55 0.55
SellingPrice $US 36.25 36.25 36.25 36.25 36.25
SellingPrice $A 65.92 65.92 65.92 65.92
Total 6,777,337 5,456,811 2,823,863 8,167,582
PROFIT/(LOSS) 2,457,030 1,805,002 (806,946) 3,685,842
CumulativeProfit/(Loss) (5,586,956) (3,781,955) (4,588,901) (903,059)
2003 YEM2003
JAN FEB MAR TOTAL $/TONNE
TOTALPRODUCTIONCOSTS($/t) 17.67 15.75 19.82
YIELD % 61.34 62.04 60.98
YIELDADJUSTMENT($/t) 28.80 25.39 32.51
OTHERCHARGES
RoyaltyandResearch $perCleanTonne $ 1.75 1.75 1.75 1.75
ManagementFee $perCleanTonne $ 1.50 1.66 1.66 1.66
Total 3.25 3.41 3.41 3.41
TRANSPORTCOSTS
RailFreight $perCleanTonne $ 3.15 3.15 3.15 3.15
PortCosts $perCleanTonne $ 3.00 3.00 3.00 3.00
SamplingCostsetc. $perCleanTonne $ 0.30 0.30 0.30 0.30
Total 6.45 6.45 6.45
TOTALFOBCOSTS($/t) 38.66 35.25 42.37
TOTALFOBCOSTS($) 3,592,581 4,074,127 4,301,264 40,573,421 55.56
REVENUE(A$)
ExchangeRate 1$US/1$A 0.55 0.55 0.55 0.55
SellingPrice $US 36.25 36.25 36.25 36.25
SellingPrice $A 65.92 65.92 65.92
Total 6,125,686 7,618,042 6,692,405 48,138,524 65.92
-
PROFIT/(LOSS) 2,533,105 3,543,916 2,391,141 7,565,103 10.36
CumulativeProfit/(Loss) 1,630,046 5,173,962 7,565,103
Page 130
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
ASSUMPTIONS
YEM
Year 2003
DEVELOPMENT
CM Units 1.5 and 1
Metres per Week 350
LONGWALL
Commences 1 st September, 2002 with all new equipment
Tonnes Per Week ▇▇▇▇▇
▇▇ ▇▇▇▇▇(▇▇▇▇▇) 3
page 131
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
GLENNIES CK - LONGWALL ▇▇▇▇▇▇▇
2002 2002
APRIL JUNE
STAFF
Manager 1 1
Deputy Manager 1 1
Production Manager 1 1
Engineering Manager 1 1
Mech. Engineer 1 1
Elect. Engineer 1 1
LW Engineer 1 1
Safety/Training 1 1
Purchasing/Stores 1 1
Accountant 1 1
Admin. Assistant 3 3
Surveyor 1 1
Surveyor Assistant 1 1
Undermanagers 4 4
Sub-Total 0 19 19
PLACE MINING CM UNIT
Deputies 2 2
Miners 14 10
Tradesman 4 4
Sub-Total 0 20 16
SECOND CM UNIT
Deputies 1
Miners 6
Tradesman 2
Sub-Total 0 9 0
LW UNIT
Deputies 2
Miners 12
Tradesman 4
Sub-Total 0 0 18
OUTBYE
Deputies 1 4
Miners 3 2
Tradesman 2 2
Sub-Total 0 6 8
MAINTENANCE
Deputies 2 2
Miners 12 12
Tradesman 4 4
Sub-Total 0 18 18
WEEKEND
Deputies 4 4
Miners 9 9
Tradesman 6 6
Sub-Total 0 19 19
SURFACE
Miners 4 4
Tradesman 0 0
Sub-Total 0 4 4
Total 76 83
10% FOR ABSENTEEISM
Total Wages 76 83
Grand Total 0 95 102
Page 132
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
PRODUCTION SCHEDULE FEB 2002
YEM2003
2002
APRIL MAY JUNE JULY AUG SEPT OCT NOV DEC
Weeks 4 4 5 4 4 5 4 4 5
A/L 1 1
Net Weeks 3 4 5 4 4 5 4 4 4
DEVELOPMENT
LW2 M/G
Total Metres 1215 815 315 0
M/month 300 400 500 315
Tonnes per month 6600 8800 11000 6930
Yield % 50 50 50 50
Clean tonnes per mth 3300 4400 5500 3465
LW3 M/G
Total Metres 3730 2730 1480 480 0
M/month 750 1000 1250 1000 480
Tonnes per month 16500 22000 27500 22000 10560
Yield % 52 52 52 52 52
Clean tonnes per mth 8580 11440 14300 11440 5491
LW4 M/G
Total Metres 5285 4035 3035 2035 1035
M/month 1250 1000 1000 ▇▇▇▇
▇▇▇▇▇▇ per month 27500 22000 22000 22000
Yield % 53 53 53 53
Clean tonnes per mth 14575 11660 11660 11660
2003
JAN FEB MAR TOTAL
Weeks 4 4 5 52
A/L 1 3
Net Weeks 3 4 5 49
DEVELOPMENT
LW5 M/G
Total Metres 5417 4167
M/month 1250 1515
Tonnes per month 27500
Yield % 54
Clean tonnes per mth 14850
Total Metres
M/month 4480
Tonnes per month
Yield %
Clean tonnes per mth
Total Metres 285 0 0
M/month 750 285 5285
Tonnes per month 16500 6270 0
Yield % 53 53
Clean tonnes per mth 8745 3323 0
Page 133
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
YEM2003
APRIL MAY JUNE JULY AUG SEPT OCT NOV DEC
DEV Ms 1050 1400 1750 1315 480 1250 1000 1000 1000
DEV Ts 23100 30800 38500 28930 10560 27500 22000 22000 22000
DEV CLEAN Ts 11880 15840 19800 14905 5491 14575 11660 11660 ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ 252841 112841 0
T/month 140000 112841
Yield % 63.0 63.0
Clean tonnes per mth 88242 71124
LW2
Total Tonnes 683997 633997 453997
T/month 50000 180000
Yield % 62.4 62.4
Clean tonnes per mth 31180 112248
LW TONNES 0 0 0 0 0 140000 112841 50000 180000
CLEAN TONNES 0 0 0 0 0 88242 71124 31180 112248
TOTAL ROM 23100 30800 38500 28930 10560 167500 134841 72000 202000
TOTAL CLEAN 11880 15840 19800 14905 5491 102817 82784 42840 123908
TOTAL YIELD 51.4 51.4 51.4 51.5 52.0 61.4 61.4 59.5 61.3
2003
JAN FEB MAR TOTAL
DEV Ms 750 285 1250 12530
DEV Ts 16500 6270 27500 275660
DEV CLEAN Ts 8745 3323 14850 144389
LW TONNES
Total Tonnes
T/month 252841
Yield %
Clean tonnes per mth
Total Tonnes 318997 138997 0
T/month 135000 180000 138997 683997
Yield % 62.4 62.4 62.4
Clean tonnes per mth 84186 112248 ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇ 135000 180000 138997 936838
CLEAN TONNES 84186 112248 86679 585906
TOTAL ROM 151500 186270 166497 1212498
TOTAL CLEAN 92931 115571 101529 730296
TOTAL YIELD 61.3 62.0 61.0 60.2
Page 134
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
COSTS DISTRIBUTED - YEM2003
APRIL MAY JUNE JULY AUGUST SEPT OCTOBER NOVEMBER DECEMBER
Net Weeks 3 4 5 4 4 5 4 4 4
Development 23,100 30,800 38,500 28,930 10,560 27,500 22,000 22,000 22,000
▇▇▇▇▇▇
▇▇▇ ▇▇▇
▇▇ ▇▇▇▇▇▇ - - - - - 140,000 112,841 50,000 180,000
Total Tonnes 23,100 30,800 38,500 28,930 10,560 167,500 134,841 72,000 202,000
LW Mining ($)
Labour 385,988 308,790 308,790 308,790
Maintenance 180,600 145,565 64,500 232,200
Materials 45,800 41,183 30,500 52,600
LW Moves 550,000 - 650,000 -
1,162,388 495,538 1,053,790 593,590
LW Mining ($/t)
Labour 2.76 2.74 6.18 1.72
Maintenance 1.29 1.29 1.29 1.29
Materials 0.33 0.36 0.61 0.29
LW Moves 2.18 2.18 0.95 0.95
- - - - - 6.55 6.57 9.03 4.25
Development Costs ($)
Labour 298,215 397,620 497,025 397,620 397,620 364,838 291,870 291,870 291,870
Operating Supplies 344,820 407,260 472,500 394,896 245,932 364,800 317,484 381,200 324,200
Maintenance Supplies 273,960 335,280 396,600 320,388 224,096 378,000 317,905 330,200 358,200
JANUARY FEBRUARY MARCH TOTAL
Net Weeks 3 4 5 49
Development 16,500 6,270 27,500 ▇▇▇,▇▇▇
▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇ 135,000 180,000 138,997 936,838
Total Tonnes 151,500 186,270 166,497 1,212,498
LW Mining ($)
Labour 231,593 308,790 385,988 2,238,728
Maintenance 174,150 232,200 179,306 1,208,521
Materials 44,950 52,600 45,629 313,262
LW Moves - - - 1,200,000
450,693 593,590 610,923 4,960,511
LW Mining ($/t)
Labour 1.72 1.72 2.78 2.39
Maintenance 1.29 1.29 1.29 1.29
Materials 0.33 0.29 0.33 0.33
LW Moves 0.95 0.95 0.95 1.28
4.29 4.25 5.35 5.29
Development Costs ($)
Labour 218,903 291,870 364,838 4,104,158
Operating Supplies 275,100 196,644 364,700 4,089,536
Maintenance Supplies 287,400 232,932 377,398 3,832,359
Page 135
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
APRIL MAY JUNE JULY AUGUST SEPT OCTOBER NOVEMBER DECEMBER
Equipment Hire 222,000 172,000 122,000 122,000 122,000 122,000 122,000 122,000 122,000
1,138,995 1,312,160 1,488,125 1,234,904 989,648 1,229,638 1,049,259 1,125,270 1,096,270
Development Costs ($/t)
Labour 12.91 12.91 12.91 13.74 37.65 13.27 13.27 13.27 13.27
Maintenance 14.93 13.22 12.27 13.65 23.29 13.27 14.43 17.33 14.74
Materials 11.86 10.89 10.30 11.07 21.22 13.75 14.45 15.01 16.28
Equipment Hire 9.61 5.58 3.17 4.22 11.55 4.44 5.55 5.55 5.55
49.31 42.60 38.65 42.69 93.72 44.71 47.69 51.15 49.83
Services ($)
Labour 214,005 285,340 430,700 344,560 344,560 176,900 141,520 141,520 141,520
Power 23,100 30,800 38,500 28,930 10,560 83,750 67,421 36,000 101,000
237,105 316,140 469,200 373,490 355,120 260,650 208,941 177,520 242,520
Services ($/t)
Labour 9.26 9.26 11.19 11.91 32.63 1.06 1.05 1.97 0.70
Power 1.00 1.00 1.00 1.00 1.00 0.50 0.50 0.50 0.50
10.26 10.26 12.19 12.91 33.63 1.56 1.55 2.47 1.20
Overheads ($)
Salaries 195,542 195,542 195,542 195,542 195,542 195,542 195,542 195,542 195,542
Administration 231,000 234,500 239,400 235,050 226,700 252,400 249,900 249,900 249,900
426,542 430,042 434,942 430,592 422,242 447,942 445,442 445,442 445,442
Overheads ($/t)
Salaries 8.47 6.35 5.08 6.76 18.52 1.17 1.45 2.72 0.97
Administration 10.00 7.61 6.22 8.12 21.47 1.51 1.85 3.47 1.24
18.47 13.96 11.30 14.88 39.99 2.67 3.30 6.19 2.21
JANUARY FEBRUARY MARCH TOTAL
Equipment Hire 122,000 122,000 122,000 1,614,000
903,403 843,446 1,228,935 13,640,052
Development Costs ($/t)
Labour 13.27 46.55 13.27 14.89
Maintenance 16.67 31.36 13.26 14.84
Materials 17.42 37.15 13.72 13.90
Equipment Hire 7.39 19.46 4.44 5.86
54.75 134.52 44.69 49.48
Services ($)
Labour 106,140 141,520 176,900 2,645,185
Power 75,750 93,135 83,249 672,194
181,890 234,655 260,149 3,317,379
Services ($/t)
Labour 0.70 0.76 1.06 2.18
Power 0.50 0.50 0.50 0.55
1.20 1.26 1.56 2.74
Overheads ($)
Salaries 195,542 195,542 195,542 2,346,500
Administration 247,400 242,750 252,400 2,911,300
442,942 438,292 447,942 5,257,800
Overheads ($/t)
Salaries 1.29 1.05 1.17 1.94
Administration 1.63 1.30 1.52 2.40
2.92 2.35 2.69 4.34
Page 136
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
APRIL MAY JUNE JULY AUGUST SEPT OCTOBER NOVEMBER DECEMBER
Total ROM Costs ($) 1,802,642 2,058,342 2,392,267 2,038,986 1,767,010 3,100,617 2,199,179 2,802,022 2,377,822
Total ROM Costs ($/t) 78.04 66.83 62.14 70.48 167.33 18.51 16.31 38.92 11.77
JANUARY FEBRUARY MARCH TOTAL
Total ROM Costs ($) 1,978,927 2,109,983 2,547,949 27,175,742
Total ROM Costs ($/t) 13.06 11.33 15.30 22.41
Page 137
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
GLENNIES CREEK COLLIERY - CAPITAL BUDGET -YEM 2003
2002 CASH
FLOW
AREA ITEM EST. $K WHEN APRIL MAY JUNE JULY AUG SEPT
OPERATIONAL
- DEVELOPMENT
Quickdusters x 2 35 Apr 35
Toolbox sleds/trailers x 5 44 Apr/May/
June 14 15 15
Purchase 4-Boom Bolter (currently hired) 560 Jul 560
Cable handling reeler system (ex Alliance) 15 Apr 15
Replace hire development equipment:
Transformers 70 Apr 70
DCBs 50 Apr 50
Auxiliary Fans (2) 220 Nov
Reticulated Cables 48 Apr 48
Cables -
CM, S/Car, etc 30 Apr 30
HT 158 Apr 158
Service Pipes (100 mm ____) 180
1800m/month Apr/May/ 30 20 20
Jun
1100m/month Jul/Aug 20 20
300m/month - (supplement pipes salvaged from LW Sept - 10
tailgate) Mar 03
Belt move pods x 6 60 May 60
Cribroom 10 Apr 10
Canton stoneduster (ex Alliance) 10 Apr 10
Stonedust sled 12 May 12
Stonedust handling u/g 15 May 15
Surface forklift / loader 90 May 90
Road leveller 10 Apr 10
Electric pump pods (2) 80 May 80
2003
AREA ITEM OCT NOV DEC JAN FEB MAR
OPERATIONAL
- DEVELOPMENT
Quickdusters x 2
Toolbox sleds/trailers x 5
Purchase 4-Boom Bolter (currently hired)
Cable handling reeler system (ex Alliance)
Replace hire development equipment:
Transformers
DCBs
Auxiliary Fans (2) 220
Reticulated Cables
Cables -
CM, S/Car, etc
HT
Service Pipes (100 mm ____)
1800m/month
1100m/month
300m/month - (supplement pipes salvaged from LW
tailgate) 10 10 10 10 10 10
Belt move pods x 6
Cribroom
Canton stoneduster (ex Alliance)
Stonedust sled
Stonedust handling u/g
Surface forklift / loader
Road leveller
Electric pump pods (2)
Page 138
SYNDICATED MULTI-OPTION FACILITY AGREEMENT Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
2002 CASH
FLOW
AREA ITEM EST. $K WHEN APRIL MAY JUNE JULY AUG SEPT
Air pumps (8) 20 Apr 20
10-44 gal. dusters for belt road 8 May 8
U/g workshop and diesel bay 150 Jul/Aug 100 50
OUTBYE U/g diesel pod 50 May 50
Drift Travel Road Upgrade -
Drainage machine water pts 20 Jun 20
Drainage 20 Jun 20
Strategic upgrading/concreting 30 Jun 30
Shotcrete main return 25 c/t area Main West 50 Mar
Gopher roofbolts (six ex Alliance) 5 Apr 5
TOTAL 2050
2002 CASH
FLOW
AREA ITEM EST. $K WHEN APRIL MAY JUNE JULY AUG SEPT
OPERATIONAL LONGWALL 31000 2600 450 19000 2000 350 6100
LONGWALL
ANCILLARIES/SERVICES:
Tools/spares sled 10 Jul 10
Structure salvage pods/trailers x 3 30 Aug 30
Tailgate service pipes salvage trailer 20 Aug 20
AFC/BSL Chain boxes 20 Jun/Jul 10 10
SPARE LW FACE CABLES:
▇▇▇▇▇▇▇ / tailgate drive / maingate drive 120 Aug 120
SOLCENIC SUPPLY PIPES: (50MM __)
3000m 2" Victaulic pipe & clamps 30 Jun 30
Installation contract 10 Jun 10
2003
AREA ITEM OCT NOV DEC JAN FEB MAR
Air pumps (8)
10-44 gal. dusters for belt road
U/g workshop and diesel bay
OUTBYE U/g diesel pod
Drift Travel Road Upgrade -
Drainage machine water pts
Drainage
Strategic upgrading/concreting
Shotcrete main return 25 c/t area Main West 50
Gopher roofbolts (six ex Alliance)
TOTAL
AREA ITEM
OPERATIONAL Longwall 500
LONGWALL
ANCILLARIES/SERVICES:
Tools/spares sled
Structure salvage pods/trailers x 3
Tailgate service pipes salvage trailer
AFC/BSL Chain boxes
SPARE LW FACE CABLES:
▇▇▇▇▇▇▇ / tailgate drive / maingate drive
SOLCENIC SUPPLY PIPES: (50MM __)
3000m 2" Victaulic pipe & clamps
Installation contract
Page 139
2002 CASH
FLOW
AREA ITEM EST. $K WHEN APRIL MAY JUNE JULY AUG SEPT
Mixing station 10 Jul 10
Total 31250
AREA ITEM EST. $K WHEN
OPERATIONAL
VENTILATION
Review study 33 Feb/Mar 33
Shaft & Fans 5500 Dec 200 800
NE4 overcasts, stoppings, regulator 35 Mar
NE5 overcast excavation 75 May 75
NE5 overcasts, stoppings, regulator 35 Jul 35
37 c/t excavation 150 Aug 150
37 c/t 5psi overcasts 90 Nov
SUB TOTAL 5918
CONVEYORS
CV003 Magnet 120 Apr 120
CV003 Tonnage Upgrade Jul/Aug
CV003 drivehead 560 300 260
Upgrade longwall gate conveyors 200 100 100
Conveyor belt 100 50 50
NE2 LTU and Belt Winder - ex Alliance 150 Jun/Jul 100 50
NE3 LTU - ex Alliance 100 Sept/Oct 50
Conveyor structure 600m/month 440 Mar/Apr/
May/Jun 110 110 110 110
Nil Jul - Mar 03 (maybe allow 100m/mth to 120 Jul/Mar 15 15 15
replace u/s rollers, structure salvaged
from LW)
SUB TOTAL
1790
2003
AREA ITEM OCT NOV DEC JAN FEB MAR
Mixing station
Total
AREA ITEM
OPERATIONAL
VENTILATION
Review study
Shaft & Fans 800 1000 1000 1000 700
NE4 overcasts, stoppings, regulator 35
NE5 overcast excavation
NE5 overcasts, stoppings, regulator
37 c/t excavation
37 c/t 5psi overcasts 90
SUB TOTAL
CONVEYORS
CV003 Magnet
CV003 Tonnage Upgrade
CV003 drivehead
Upgrade longwall gate conveyors
Conveyor belt
NE2 LTU and Belt Winder - ex Alliance
NE3 LTU - ex Alliance 50
Conveyor structure 600m/month
Nil Jul - Mar 03 (maybe allow 100m/mth to 15 15 15 15 15
replace u/s rollers, structure salvaged
from LW)
SUB TOTAL
Page 140
2002 CASH
FLOW
AREA ITEM EST. $K WHEN APRIL MAY JUNE JULY AUG SEPT OCT
Mobile/Diesel
Equipment & LHD x 2 650 Sept 650
Attachments SMV x 4 @ $150 each 600 Sept 600
PJB service vehicle - maintenance 80 May 80
Attachments 50 Sept 50
New Surface Utility (Nissan u/s) -
routine 15 Apr 15
replacement 12 mths/24 mths
Ballast trailer (purchase/replace
hire unit) 80 Apr 80
QDS Auger - ex Alliance 15 Apr 15
SUB TOTAL 1490
AREA ITEM EST. $K WHEN
OPERATIONAL
Pumping
Mudskipper (replace hired unit) 13 Apr 13
GENERAL
EXPLORATION:
Surface boreholes (per Consol) x 3 100 Feb 100
Directional longhole from NE5 100 Feb-03
Geophysical / Surveyor Computer
Model System 30 May 30
MONITORING Self Rescuer System 400 May 400
GAS:
NE5 Gas Monitoring Points 10 Jul 10
Upgrade the Citect system 15 Feb
Maihak single point goaf monitoring 15 Oct 15
Computer/Control Room 15 Apr 15
Portal rapid sealing system 100 May 100
Shotcrete/seal M&M Portal 5 Apr 5
TOTAL 803
2003
AREA ITEM NOV DEC JAN FEB MAR
Mobile/Diesel
Equipment & LHD x 2
Attachments SMV x 4 @ $150 each
PJB service vehicle - maintenance
Attachments
New Surface Utility (Nissan u/s) -
routine
replacement 12 mths/24 mths
Ballast trailer (purchase/replace
hire unit)
QDS Auger - ex Alliance
SUB TOTAL
AREA ITEM
OPERATIONAL
PUMPING
Mudskipper (replace hired unit)
GENERAL
EXPLORATION:
Surface boreholes (per Consol) x 3
Directional longhole from NE5 100
Geophysical / Surveyor Computer
Model System
MONITORING Self Rescuer System
GAS:
NE5 Gas Monitoring Points
Upgrade the Citect system 15
Maihak single point goaf monitoring
Computer/Control Room
Portal rapid sealing system
Shotcrete/seal M&M Portal
TOTAL
Page 141
2002 CASH
FLOW
AREA ITEM EST. $K WHEN APRIL MAY JUNE JULY AUG SEPT OCT
CIVIL WORKS
Reorganisation of bench / workshop 100 May 100
Oil separator 20 May 20
Store and goods received area 20 May 20
Surface fire water system system upgrade 15 May 15
Dams 50 Apr 50
Water Treatment Plant 85 Jul ▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ Mar
SUB TOTAL 940
ADMINISTRATION
Office upgrade 30 Apr 30
Computers + software 20 Ongoing 2 2 2 2 2 2 2
Total 50
CONTINGENCY 2.5%
44291 3693 1752 19367 3467 1367 8277 1392
2003
AREA ITEM NOV DEC JAN FEB MAR
CIVIL WORKS
Reorganisation of bench / workshop
Oil separator
Store and goods received area
Surface fire water system system upgrade
Dams
Water Treatment Plant
▇▇▇▇▇▇ ▇▇▇▇ Crossing 650
SUB TOTAL
ADMINISTRATION
Office upgrade
Computers + software 2 2 2
TOTAL
CONTINGENCY 2.5%
44291 1337 1027 1027 840 745
Page 142