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0001204459-10-002678.txt : 20101109
0001204459-10-002678.hdr.sgml : 20101109
20101109091735
ACCESSION NUMBER: 0001204459-10-002678
CONFORMED SUBMISSION TYPE: 6-K
PUBLIC DOCUMENT COUNT: 3
CONFORMED PERIOD OF REPORT: 20101109
FILED AS OF DATE: 20101109
DATE AS OF CHANGE: 20101109
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: HARRY WINSTON DIAMOND CORP
CENTRAL INDEX KEY: 0000841071
STANDARD INDUSTRIAL CLASSIFICATION: METAL MINING [1000]
IRS NUMBER: 000000000
FISCAL YEAR END: 0131
FILING VALUES:
FORM TYPE: 6-K
SEC ACT: 1934 Act
SEC FILE NUMBER: 001-33838
FILM NUMBER: 101174540
BUSINESS ADDRESS:
STREET 1: PO BOX 4569
STREET 2: STATION A
CITY: TORONTO
STATE: A6
ZIP: M5W 4T9
BUSINESS PHONE: 4163622237
MAIL ADDRESS:
STREET 1: PO BOX 4569
STREET 2: STATION A
CITY: TORONTO
STATE: A6
ZIP: M5W 4T9
FORMER COMPANY:
FORMER CONFORMED NAME: ABER DIAMOND CORP
DATE OF NAME CHANGE: 19950606
6-K
1
form6k.htm
FORM 6-K
Harry Winston Diamond Corporation - Form 6-K - Filed by newsfilecorp.com
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 6-K
REPORT OF FOREIGN PRIVATE ISSUER PURSUANT TO RULE
13A-16
OR 15D-16 UNDER THE SECURITIES EXCHANGE ACT OF 1934
For the month of November, 2010
Commission File Number: 001-33838
HARRY WINSTON DIAMOND
CORPORATION
(Translation of registrant's name into
English)
P.O. Box 4569, Station A
Toronto, ON, Canada
M5W 4T9
(Address of principal executive offices)
Indicate by check mark whether the registrant files or will file
annual reports under cover of Form 20-F or Form 40-F.
Form 20-F [ ] Form 40-F
[X]
Indicate by check mark if the registrant is submitting the Form
6-K in paper as permitted by Regulation S-T Rule
101(b)(1): [ ]
Indicate by check mark if the registrant is submitting the Form
6-K in paper as permitted by Regulation S-T Rule
101(b)(7): [ ]
Indicate by check mark whether the registrant by furnishing the
information contained in this Form is also thereby furnishing the information to
the Commission pursuant to Rule 12g3-2(b) under the Securities Exchange Act of
1934.
Yes [
]
No [X]
If "Yes" is marked, indicate below the file number assigned to
the registrant in connection with Rule 12g3-2(b): N/A
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned, thereunto duly authorized.
DATED the 9th day of November, 2010.
HARRY WINSTON DIAMOND CORPORATION
(Registrant)
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By: |
/s/ LYLE R. HEPBURN |
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Name: |
Lyle R. Hepburn |
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Title: |
Corporate Secretary |
EXHIBIT INDEX
EX-99.1
2
exhibit99-1.htm
EXHIBIT 99.1
Harry Winston Diamond Corporation - Exhibit 99.1 - Filed by newsfilecorp.com
Exhibit 99.1
CONFORMED COPY
US$100,000,000
FACILITY AGREEMENT
dated 24 June 2010
for
HARRY WINSTON DIAMOND CORPORATION
arranged by
STANDARD CHARTERED BANK
with
STANDARD CHARTERED BANK
acting as Facility Agent
and
STANDARD CHARTERED BANK
acting as Security Agent
Baker & McKenzie LLP
London
Ref: NDT/JRK
CONTENTS
i
ii
THIS AGREEMENT is dated 24 June 2010 and made
between:
(1) |
HARRY WINSTON DIAMOND CORPORATION, a corporation
incorporated under the laws of Canada as a borrower and as a guarantor
("HWDC"); |
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(2) |
HARRY WINSTON DIAMOND MINES LTD., a corporation
incorporated under the laws of the Northwest Territories as a borrower and
a guarantor ("HWDM"); |
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(3) |
6355137 CANADA INC., a corporation incorporated
under the laws of Canada as a guarantor ("Canada Inc."); |
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(4) |
STANDARD CHARTERED BANK as mandated lead arranger
(the "Arranger"); |
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(5) |
THE FINANCIAL INSTITUTIONS listed in Part II of
Schedule 1 as lenders (the "Original Lenders"); |
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(6) |
STANDARD CHARTERED BANK as agent of the other
Finance Parties, other than the Hedging Counterparty, (the "Facility
Agent"); and |
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(7) |
STANDARD CHARTERED BANK as security agent for
itself and on behalf of the Finance Parties (the "Security
Agent"). |
IT IS AGREED as follows:
SECTION 1
INTERPRETATION
1. |
DEFINITIONS AND INTERPRETATION |
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1.1 |
Definitions |
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In this Agreement: |
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"Additional Cost Rate" has the meaning given to it
in Schedule 4 (Mandatory Cost Formulae). |
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"ADB" means Antwerpse Diamantbank N.V. |
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"Affiliate" means, in relation to any person, a
Subsidiary of that person or a Holding Company of that person or any other
Subsidiary of that Holding Company. |
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"Amended DDMI Water Licence" means the water
licence granted by the Wek'eezhii Land and Water Board to DDMI effective 1
November 2007 (as amended 1 November 2008) reference
W2007L2-0003. |
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"Assignment Agreement" means an agreement
substantially in the form set out in Schedule 6 (Form of Assignment
Agreement) or any other form agreed between the relevant assignor and
assignee. |
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"Authorisation" means an authorisation, consent,
approval, resolution, licence, exemption, filing, notarisation or
registration. |
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"Availability Period" means the period from and
including the date of this Agreement to and including the date falling one
month prior to the Final Maturity Date. |
1
"Available Commitment" means a
Lender's Commitment minus:
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(a) |
the Base Currency Amount of its participation in any
outstanding Loans; and |
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(b) |
in relation to any proposed Utilisation, the Base
Currency Amount of its participation in any Loans that are due to be made
on or before the proposed Utilisation Date, |
other than that Lender's participation
in any Loans that are due to be repaid or prepaid on or before the proposed
Utilisation Date.
"Available Facility" means the
aggregate for the time being of each Lender's Available Commitment.
"Base Currency" means US Dollars.
"Base Currency Amount" means, in
relation to a Loan, the amount requested in the Utilisation Request delivered by
a Borrower for that Loan (or, if the amount requested is not denominated in the
Base Currency, that amount converted into the Base Currency at the Facility
Agent's Spot Rate of Exchange on the date which is three Business Days before
the Utilisation Date or, if later, on the date the Facility Agent receives the
Utilisation Request) adjusted to reflect any repayment or prepayment of the
Loan.
"Borrower" means each of HWDC
and HWDM.
"Break Costs" means the amount
(if any) by which:
|
(a) |
the interest which a Lender should have received for the
period from the date of receipt of all or any part of its participation in
a Loan or Unpaid Sum to the last day of the current Interest Period in
respect of that Loan or Unpaid Sum, had the principal amount or Unpaid Sum
received been paid on the last day of that Interest
Period; |
exceeds:
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(b) |
the amount which that Lender would be able to obtain by
placing an amount equal to the principal amount or Unpaid Sum received by
it on deposit with a leading bank in the Relevant Interbank Market for a
period starting on the Business Day following receipt or recovery and
ending on the last day of the current Interest
Period. |
"Business Day" means a day
(other than a Saturday or Sunday) on which banks are open for general business
in London, England, and (where payment is due in US Dollars) New York, and
(where payment is due in Canadian Dollars) Toronto, Ontario.
"Canada Inc. General Security
Agreement" means the general security agreement dated the date hereof by
Canada Inc. in favour of the Security Agent charging all present and future
property, assets and undertaking of Canada Inc..
"Canada Inc. Pledge Agreement"
means the pledge agreement dated the date hereof by Canada Inc. pledging the
Equity Interests in HWDLP legally and beneficially owned by Canada Inc..
"Capital Lease" means any lease
which should be treated as a capital lease under GAAP.
"Cash Equivalent" means:
|
(a) |
debt securities denominated in Canadian Dollars, US
Dollars, euro or sterling, which are not convertible into any other form
of security, rated or issued by any person rated |
2
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Aa2 or better by Moody's or AA or better by Standard
& Poor's and not issued or guaranteed by any member of the
Group; |
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(b) |
debt securities denominated in Canadian Dollars, US
Dollars, euro or sterling which are not convertible into any other form of
security, rated P-1 by Moody's or A-1 or better by Standard & Poor's
and not issued or guaranteed by any member of the Group; |
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(c) |
certificates of deposit denominated in Canadian Dollars,
US Dollars, euro or sterling issued by, and acceptances so denominated by,
banking institutions authorised under applicable legislation which at the
time of making such issue or acceptances, have outstanding debt securities
rated as provided in paragraph (b) above; and |
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(d) |
such other securities (if any) as are approved as such in
writing by the Facility Agent (acting on the instructions of the Majority
Lenders), |
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which, in each case, have no more than twelve months to
final maturity. |
"Charged Assets" means any
assets of any Obligor over which Security is, or is purported to be, created in
favour of the Security Agent pursuant to the Security Documents or any of them.
"Commitment" means:
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(a) |
in relation to an Original Lender, the amount in the Base
Currency set opposite its name under the heading "Commitment" in Part II
of Schedule 1 (The Original Parties) and the amount of any other
Commitment transferred to it under this Agreement; and |
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(b) |
in relation to any other Lender, the amount in the Base
Currency of any Commitment transferred to it under this
Agreement, |
to the extent not cancelled, reduced or
transferred by it under this Agreement.
"Compliance Certificate" means a
certificate substantially in the form set out in Schedule 7 (Form of
Compliance Certificate).
"Confidential Information" means
all information relating to HWDC, any Obligor, the Group, the Finance Documents,
Kinross, Rio Tinto plc, the Diavik Joint Venture, the Diavik Diamond Mine or the
Facility of which a Finance Party becomes aware in its capacity as, or for the
purpose of becoming, a Finance Party or which is received by a Finance Party in
relation to, or for the purpose of becoming a Finance Party under, the Finance
Documents or the Facility from either:
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(a) |
any member of the Group or any of its advisers;
or |
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(b) |
another Finance Party, if the information was obtained by
that Finance Party directly or indirectly from any member of the Group or
any of its advisers, |
in whatever form, and includes
information given orally and any document, electronic file or any other way of
representing or recording information which contains or is derived or copied
from such information but excludes information that:
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(i) |
is or becomes public information other than as a direct
or indirect result of any breach by that Finance Party of Clause 37
(Confidentiality); or |
3
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(ii) |
is identified in writing at the time of delivery as
non-confidential by any member of the Group or any of its advisers;
or |
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(iii) |
is known by that Finance Party before the date the
information is disclosed to it in accordance with paragraphs (a) or (b)
above or is lawfully obtained by that Finance Party after that date, from
a source which is, as far as that Finance Party is aware, unconnected with
the Group and which, in either case, as far as that Finance Party is
aware, has not been obtained in breach of, and is not otherwise subject
to, any obligation of confidentiality. |
"Confidentiality Undertaking"
means a confidentiality undertaking substantially in a recommended form of the
LMA as set out in Schedule 9 (LMA Form of Confidentiality Undertaking) or
in any other form agreed between HWDC and the Facility Agent.
"Cost of Funds" means, in
relation to a Lender and an Interest Period, the rate notified to the Facility
Agent by that Lender (at its absolute discretion) at the Specified Time to be
that which expresses as a percentage rate per annum the cost to that Lender of
funding its participation in the relevant Loan from whatever source it may
reasonably select (provided that the Cost of Funds may never be higher than
LIBOR plus 100 per cent of LIBOR).
"Dangerous Substance" means any
radioactive emissions, noise and any natural or artificial substance (in
whatever form) the generation, transportation, storage, treatment, use or
disposal of which (whether alone or in combination with any other substance)
gives rise to a risk of causing harm to man or any other living organism or
damaging the Environment or public health or welfare, including (without
limitation) any controlled, special, hazardous, toxic, radioactive or dangerous
waste.
"DDMI" means Diavik Diamond
Mines Inc., a company incorporated under the laws of the Northwest Territories,
Canada.
"DDMI Agreement" means each of:
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(a) |
the Participation Agreements; |
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(b) |
the Environmental Agreement; |
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(c) |
the Monitoring Agreement; and |
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(d) |
any other material agreement entered into by the Diavik
Joint Venture and/or the Manager in relation to the ownership (other than
as directly relates to the ownership of the Diavik Joint Venture itself),
development, operation or maintenance of the Diavik Diamond
Mine. |
"DDMI Authorisation" means all
Authorisations necessary or desirable to authorise the Diavik Joint Venture to
carry on the mineral exploration and/or mining activities as currently being
undertaken by the Diavik Joint Venture at the Diavik Diamond Mine,
including:
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(a) |
the Diavik Mining Rights; |
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(b) |
the Amended DDMI Water Licence; and |
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(c) |
the Diavik Leases. |
For the avoidance of doubt the DDMI
Authorisations are material Authorisations.
"Default" means an Event of
Default or any event or circumstance specified in Clause 23 (Events of
Default) which would (with the expiry of a grace period, the giving of
notice, the making of any determination under the
Finance Documents or any combination of any of the foregoing) be an Event of
Default.
4
"Delegate" means any delegate,
agent, co-agent, attorney or trustee appointed by the Security Agent.
"Diavik Diamond Mine" means the
diamond mine located approximately 300 kilometres from Yellowknife in the
Northwest Territories, Canada, and known as the Diavik Diamond Mine.
"Diavik Documents" means each
of:
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(a) |
the Diavik Joint Venture Agreement; |
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(b) |
the Mutual Consent Agreement; |
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(c) |
the Production Splitting Protocol; |
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(d) |
the Reclamation Letter; and |
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(e) |
any other material agreement to which an Obligor and/or
HWDLP are a party with the Joint Venture Partner, relating to the
ownership, development, operation or management of the Diavik Joint
Venture. |
"Diavik Interest" means HWDC's
indirect 31 per cent. interest in the Diavik Joint Venture.
"Diavik Joint Venture" means the
unincorporated joint arrangement between HWDLP and the Joint Venture Partner
that owns and operates the Diavik Diamond Mine pursuant to the Diavik Joint
Venture Agreement.
"Diavik Joint Venture Agreement"
means the joint venture agreement made as of March 23, 1995 between Kennecott
Canada Inc. and HWDC (then named Aber Resources Limited) as amended by an
amending agreement dated December 1, 1995 between the same parties, as
subsequently assigned by Kennecott Canada Inc. to DDMI and by HWDC to HWDM, as
amended, and as subsequently assigned by HWDM to HWDLP.
"Diavik Leases" means each of:
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(a) |
Diavik Lease #76D-8-5-2 between Her Majesty the Queen in
right of Canada and DDMI dated 29 March 2000; |
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(b) |
Diavik Lease #76D-8-6-2 between Her Majesty the Queen in
right of Canada and DDMI dated 29 March 2000; |
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(c) |
Diavik Lease #76D-8-7-2 between Her Majesty the Queen in
right of Canada and DDMI dated 29 March 2000; |
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(d) |
Diavik Lease #76D-9-5-2 between Her Majesty the Queen in
right of Canada and DDMI dated 29 March 2000; and |
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(e) |
Diavik Lease #76D-9-9-2 between Her Majesty the Queen in
right of Canada and DDMI dated 29 March 2000. |
5
"Diavik Mining Rights" means all
interests in the surface of the lands, the minerals in (or that may be extracted
from) the lands, water rights, mining concessions, ownership rights and other
rights of way, easements, licenses and other rights and interests necessary to
the operation of the Diavik Diamond Mine.
"Disruption Event" means either
or both of:
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(a) |
a material disruption to those payment or communications
systems or to those financial markets which are, in each case, required to
operate in order for payments to be made in connection with the Facility
(or otherwise in order for the transactions contemplated by the Finance
Documents to be carried out) which disruption is not caused by, and is
beyond the control of, any of the Parties; or |
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(b) |
the occurrence of any other event which results in a
disruption (of a technical or systems-related nature) to the treasury or
payments operations of a Party preventing that, or any other
Party: |
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(i) |
from performing its payment obligations under the Finance
Documents; or |
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(ii) |
from communicating with other Parties in accordance with
the terms of the Finance Documents, |
and which (in either such case) is not
caused by, and is beyond the control of, the Party whose operations are
disrupted.
"Environment" means all, or any
of, the following media: the air (including, without limitation, the air within
buildings and the air within other natural or man-made structures above or below
ground), water (including, without limitation, ground and surface water) and
land (including, without limitation, surface and sub-surface soil).
"Environmental Agreement" means
the environmental agreement dated 8 March 2000 between, among others, Her
Majesty the Queen in right of Canada and DDMI .
"Environmental Claim" means any
claim by any person:
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(a) |
in respect of any loss or liability suffered or incurred
by that person as a result of or in connection with any violation of
Environmental Law; or |
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(b) |
that arises as a result of or in connection with
Environmental Contamination and that could give rise to any remedy or
penalty (whether interim or final) that may be enforced or assessed by
private or public legal action or administrative order or
proceedings. |
"Environmental Contamination"
means each of the following and their consequences:
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(a) |
any release, discharge, emission, leakage or spillage of
any Dangerous Substance at or from any site owned, leased, occupied or
used by any member of the Restricted Group, the Diavik Joint Venture or
the Manager into any part of the Environment; or |
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(b) |
any accident, fire, explosion or sudden event at any site
owned, leased, occupied or used by any member of the Restricted Group, the
Diavik Joint Venture or the Manager which is directly or indirectly caused
by or attributable to any Dangerous Substance; or |
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(c) |
any other pollution of the
Environment. |
6
"Environmental Law" means all
laws (including, without limitation, common law), regulations, directives, codes
of practice, circulars, guidance notices and the like having legal effect
concerning the protection of human health, the Environment, the conditions of
the work place or the generation, transportation, storage, treatment or disposal
of Dangerous Substances.
"Environmental Licence" means
any permit, licence, authorisation, consent or other approval required by any
Environmental Law.
"Equity Interests" means, with
respect to any person, shares of capital stock of (or other ownership or profit
interests in) such person, warrants, options or other rights for the purchase or
other acquisition from such person of shares of capital stock of (or other
ownership or profit interests in) such person, securities convertible into or
exchangeable for shares of capital stock of (or other ownership or profit
interests in) such person or warrants, rights or options for the purchase or
other acquisition from such person of such shares (or such other interests), and
other ownership or profit interests in such person (including, without
limitation, partnership, member or trust interests therein), whether voting or
non-voting, and whether or not such shares, warrants, options, rights or other
interests are authorised or otherwise existing on any date of determination.
"Event of Default" means any
event or circumstance specified as such in Clause 23 (Events of Default).
"Facility" means the revolving
loan facility made available under this Agreement as described in Clause 2
(The Facility).
"Facility Agent's Spot Rate of
Exchange" means the Facility Agent's spot rate of exchange for the purchase
of the relevant currency with the Base Currency in the London foreign exchange
market at or about 11:00 a.m. on a particular day.
"Facility Office" means the
office or offices notified by a Lender to the Facility Agent in writing on or
before the date it becomes a Lender (or, following that date, by not less than
five Business Days' written notice) as the office or offices through which it
will perform its obligations under this Agreement.
"Fee Letter" means any letter or
letters between the Arranger and HWDC (or the Facility Agent or the Security
Agent and HWDC) setting out any of the fees payable in connection with the
Finance Documents.
"Final Maturity Date" means
subject to Clause 7.2 (Extension Option) the date which is the third
anniversary of the date of this Agreement (except that if the Final Maturity
Date is not a Business Day, it will instead be the immediately preceding
Business Day).
"Finance Document" means:
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(a) |
this Agreement; |
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(b) |
any Security Document; |
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(c) |
any Fee Letter; |
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(d) |
any Hedging Agreement; |
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(e) |
the Kinross Consent; and |
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(f) |
any other document designated as such by the Facility
Agent and HWDC. |
7
"Finance Party" means the
Facility Agent, the Security Agent, the Arranger, a Lender and, provided that it
has acceded to this Agreement by execution of the Hedging Accession Letter (and
otherwise in compliance with Clause 24.10 (Hedging Accession Letter)), the
Hedging Counterparty.
"Financial Indebtedness" means,
in respect of any person, any indebtedness for or in respect of:
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(a) |
moneys borrowed by such person; |
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(b) |
any amount raised by such person pursuant to any note
purchase facility or the issue of bonds, notes, debentures, loan stock or
any similar instrument; |
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(c) |
any amount raised by such person by acceptance under any
acceptance credit facility (or dematerialised equivalent) or any amount
raised under any documentary credit facility; |
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(d) |
receivables sold or discounted by such person (other than
any receivables to the extent they are sold on a non-recourse
basis); |
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(e) |
any lease or hire purchase contract entered into by such
person which would, in accordance with GAAP, be treated as a finance or
capital lease; |
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(f) |
any other transaction (including any forward sale or
purchase agreement) having the commercial effect of a borrowing; |
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(g) |
any arrangement pursuant to which any asset sold or
otherwise disposed of by that person is or may be leased to or reacquired
by that person (whether following the exercise of an option or otherwise)
where such arrangement is entered into primarily as a means of raising
finance; |
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(h) |
any derivative transaction entered into by such person in
connection with protection against or benefit from fluctuation in any rate
or price; |
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(i) |
any counter-indemnity obligation of such person in
respect of a guarantee, indemnity, bond, standby or documentary letter of
credit or any other instrument issued by a bank or financial institution
for the account of such person; |
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(j) |
any liability to redeem or purchase any redeemable share
capital to the extent that such share capital is redeemable at the option
of the holder on or prior to the Final Maturity Date; and |
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(k) |
the amount of any liability of such person in respect of
any guarantee or indemnity for any of the items referred to in paragraphs
(a) to (j) above. |
"GAAP" means generally accepted
accounting principles in Canada.
"General Security Document"
means each of:
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(a) |
the HWDM General Security Agreement; and |
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(b) |
the Canada Inc. General Security
Agreement. |
"Governmental Authority" means
any supranational, national, federal, state, provincial, territorial, local or
municipal government body, or any political subdivision thereof, and any agency,
authority, instrumentality, regulatory body, court, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to
government and including a Minister of the Crown, the Superintendent of
Financial Institutions or other comparable authority or agency
8
"Group" means HWDC and its
Subsidiaries for the time being.
"Guarantor" means each of HWDC,
HWDM and Canada Inc.
"Hedging Accession Letter" means
the accession letter set out in Schedule 13 (Hedging Accession Letter)
"Hedging Agreement" means any
agreement in relation to any derivatives transaction entered into between any
member of the Restricted Group and the Hedging Counterparty.
"Hedging Liabilities" means the
Liabilities owed by any member of the Restricted Group to the Hedging
Counterparty under or in connection with any Hedging Agreement.
"Hedging Counterparty" means
Standard Chartered Bank in its capacity as a hedging counterparty to any Obligor
(or any permitted assisgnee or permitted transferee of Standard Chartered Bank
in that capacity of all or any part of any hedging arrangement under any Hedging
Agreement).
"Holding Company" means, in
relation to a company or corporation, any other company or corporation in
respect of which it is a Subsidiary.
"HWDLP" means Harry Winston
Diamond Limited Partnership, a limited partnership formed under the Partnership
Act (Northwest Territories).
"HWDLP Partnership Agreement"
means the limited partnership agreement dated 31 March 2009 between HWDM, as
general partner, and Kinross and Canada Inc. as limited partners.
"HWDM General Security
Agreement" means the general security agreement dated the date hereof by
HWDM in favour of the Security Agent charging all present and future property,
assets and undertaking of HWDM.
"HWDC Pledge Agreement" means
the pledge agreement dated the date hereof by HWDC pledging the Equity Interests
in HWDM legally and beneficially owned by HWDC.
"HWDC Subscription Agreement"
means the subscription agreement dated 19 March 2009 between HWDC and Kinross.
"HWDM Pledge Agreement" means
the pledge agreement dated the date hereof by HWDM pledging the Equity Interests
in HWDLP and Canada Inc. legally and beneficially owned by HWDM.
"HWDM Shareholders Agreement"
means the shareholders' agreement dated 31 March 2009 between HWDC, Kinross and
HWDM.
"HWFAC" means Harry Winston
Fifth Avenue Corporation, a corporation incorporated under the laws of Canada.
"HWI" means Harry Winston Inc.
"HWI Guarantee" means the
guarantee dated 22 February 2008 granted by HWDC in favour of HSBC Bank USA,
N.A. as administrative agent in respect of certain obligations of HWI in a
maximum principal amount of US$20,000,000.
9
"HW International" means Harry
Winston Diamond International N.V.
"Information Memorandum" means a
document in the form approved by HWDC concerning the Group which, at HWDC's
request and on its behalf, was or will be prepared in relation to this
transaction and distributed by the Arranger to selected financial institutions
in respect of the syndication or other sell down by the Original Lender of the
Facility.
"Interest Act (Canada)" means
Interest Act, R.S.C. 1985, c. I-15.
"Interest Period" means, in
relation to a Loan, each period determined in accordance with Clause 10
(Interest Periods) and, in relation to an Unpaid Sum, each period
determined in accordance with Clause 9.3 (Default interest).
"Joint Venture Partner" means,
at any time:
|
(a) |
DDMI; or |
|
|
|
|
(b) |
if DDMI is not then the counterparty to HWDLP under the
Diavik Joint Venture Agreement, any person or persons, from time to time,
that is then the counterparty to HWDLP under the Diavik Joint Venture
Agreement. |
"Kinross" means Kinross Gold
Corporation., a company incorporated under the laws of Ontario.
"Kinross Consent" means the
consent of Kinross, in the form attached as Schedule 11.
"Kinross Document" means each
of:
|
(a) |
the HWDC Subscription Agreement; |
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|
(b) |
the HWDLP Partnership Agreement; |
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(c) |
the HWDM Shareholders' Agreement; and |
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|
(d) |
any other material agreement to which an Obligor and
Kinross is a party, relating to the ownership, management and/or operation
of HWDLP. |
"Lender" means:
|
(e) |
any Original Lender; and |
|
|
|
|
(f) |
any bank, financial institution, trust, fund or other
entity which has become a Party in accordance with Clause 24 (Changes
to the Lenders and the Hedging Counterparty), |
which in each case has not ceased to be
a Party in accordance with the terms of this Agreement.
"Liabilities" means, at any
time, all amounts owed to a Finance Party under or in connection with any
Finance Document.
"LIBOR" means, in relation to
any Loan:
|
(a) |
the applicable Screen Rate; or |
|
|
|
|
(b) |
(if no Screen Rate is available for the currency or
Interest Period of that Loan) the arithmetic mean of the rates (rounded
upwards to four decimal places) as supplied to the Facility Agent at its request
quoted by the Reference Banks to leading banks in the London interbank market, as of the Specified Time on the
Quotation Day for the offering of deposits in the currency of that Loan and for
a period comparable to the Interest Period for that Loan. |
10
"Loan" means a loan made or to
be made under the Facility or the principal amount outstanding for the time
being of that loan.
"LMA" means the Loan Market
Association.
"Majority Lenders" means:
|
(a) |
until the Total Commitments have been reduced to zero, a
Lender or Lenders whose Commitments aggregate more than
662/3 % of the Total Commitments (or, if the Total
Commitments have been reduced to zero and there are no Loans then
outstanding, aggregated more than 662/3 % of the
Total Commitments immediately prior to the reduction); or |
|
|
|
|
(b) |
at any other time, a Lender or Lenders whose
participations in the Loans then outstanding aggregate more than
662/3 % of all the Loans then outstanding.
|
"Manager" means at any time:
|
(a) |
DDMI; or |
|
|
|
|
(b) |
if DDMI is not then the manager pursuant to the Diavik
Joint Venture Agreement, then any successor to DDMI appointed in
accordance with the terms of the Diavik Joint Venture
Agreement. |
"Mandatory Cost" means the
percentage rate per annum calculated by the Facility Agent in accordance with
Schedule 4 (Mandatory Cost formulae).
"Margin" means 3.5 per cent. per
annum.
"Material Documents" means each
of the Diavik Documents and the Kinross Documents, other than the Mutual
Consent, the Production Splitting Protocol and the Reclamation Letter.
"Material Adverse Effect"
means a material adverse effect on:
|
(a) |
the business, operations, property or condition
(financial or otherwise) of the Restricted Group taken as a
whole; |
|
|
|
|
(b) |
the ability of any Obligor to perform and comply with its
obligations under any Finance Document; |
|
|
|
|
(c) |
the validity, legality or enforceability of any Finance
Document or any rights or remedies of any Finance Party under any Finance
Document; or |
|
|
|
|
(d) |
the validity, legality or enforceability of any Security
expressed to be created by or pursuant to, or to be evidenced in, any
Security Document. |
11
"Monitoring Agreement" means the
socio-economic monitoring agreement dated 2 October 1999 between, among others,
DDMI and the Government of the North West Territories.
"Month" means a period starting
on one day in a calendar month and ending on the numerically corresponding day
in the next calendar month, except that:
|
(a) |
(subject to paragraph (c) below) if the numerically
corresponding day is not a Business Day, that period shall end on the next
Business Day in that calendar month in which that period is to end if
there is one, or if there is not, on the immediately preceding Business
Day; |
|
|
|
|
(b) |
if there is no numerically corresponding day in the
calendar month in which that period is to end, that period shall end on
the last Business Day in that calendar month; and |
|
|
|
|
(c) |
if an Interest Period begins on the last Business Day of
a calendar month, that Interest Period shall end on the last Business Day
in the calendar month in which that Interest Period is to
end. |
The above rules will only apply to the
last Month of any period.
"Monthly Joint Venture Performance
Report" means the monthly report produced by DDMI in respect of the Diavik
Diamond Mine.
"Mutual Consent Agreement" means
the Mutual Consent to release of information dated 22 September 2003 between
HWDLP and DDMI.
"Non-Material Documents" means
the Mutual Consent, the Production Splitting Protocol and the Reclamation
Letter.
"Obligor" means each of HWDC,
HWDM and Canada Inc..
"Optional Currency" means
Canadian Dollars.
"Original Financial Statements"
means:
|
(a) |
in relation to the Group, the audited consolidated
financial statements for the financial year ended 31 January 2009 and the
unaudited consolidated financial statements for the Half-Year Period ended
31 July 2009; and |
|
|
|
|
(b) |
in relation to the Restricted Group, the unaudited
consolidated financial statements of the Restricted Group for the period
ended 31 July 2009. |
"Participation Agreement" means
each of:
|
(a) |
the participation agreement dated 24 September 2001
between DDMI and the Lutsel K'e Dene First Nation; |
|
|
|
|
(b) |
the participation agreement dated 23 September 2001
between DDMI and the Kitikmeot Innuit Association; |
|
|
|
|
(c) |
the participation agreement dated 26 October 2000 between
DDMI and the Yellowknife Dene First Nation; |
|
|
|
|
(d) |
the participation agreement dated 24 March 2000 between
DDMI and the North Slave Metis Alliance; and |
12
|
(e) |
the participation agreement dated 6 April 2000 between
DDMI and the Dogrib Treaty 11 Council. |
"Party" means a party to this
Agreement.
"Production Splitting Protocol"
means the agreement to establish the protocol for diamond product splitting
dated 7 January 2003 between HWDLP and DDMI.
"Purchase Money Financing" means
indebtedness incurred to finance the acquisition of tangible personal property,
provided that:
|
(a) |
it is created substantially simultaneously with the
acquisition of such personal property; |
|
|
|
|
(b) |
the amount of such indebtedness is not increased
subsequent to such acquisition; and |
|
|
|
|
(c) |
the principal amount of such indebtedness at no time
exceeds 100% of the original purchase price of such personal property at
the time it was acquired, and for the purposes of this definition the term
"acquisition" shall include a Capital Lease, and the term "acquire" shall
have a corresponding meaning. |
"Quotation Day" means, in
relation to any period for which an interest rate is to be determined, two
Business Days before the first day of that period, unless market practice
differs in the Relevant Interbank Market for a currency, in which case the
Quotation Day for that currency will be determined by the Facility Agent in
accordance with market practice in the Relevant Interbank Market (and if
quotations would normally be given by leading banks in the Relevant Interbank
Market on more than one day, the Quotation Day will be the last of those days).
"Receiver" has the meaning given
to that term in Clause 27.1 (Security Provisions).
"Reclamation Letter" means the
letter dated 17 January 2002 from DDMI to HWDM regarding security for
reclamation and abandonment costs at the Diavik Diamond Mine.
"Reference Banks" means, in
relation to LIBOR, the principal London offices of Standard Chartered Bank,
Lloyds Banking Group plc and Barclays Bank plc or such other banks as may be
appointed by the Facility Agent, acting reasonably, in consultation with HWDC.
"Related Fund" in relation to a
fund (the "first fund"), means a fund which is managed or advised by the
same investment manager or investment adviser as the first fund or, if it is
managed by a different investment manager or investment adviser, a fund whose
investment manager or investment adviser is an Affiliate of the investment
manager or investment adviser of the first fund.
"Relevant Interbank Market"
means the London interbank market.
"Relevant Jurisdiction" means,
in relation to an Obligor:
|
(a) |
its jurisdiction of incorporation or continuation, as the
case may be; |
|
|
|
|
(b) |
any jurisdiction where any of its Charged Assets are
situated; and |
|
|
|
|
(c) |
any jurisdiction where it carries on
business. |
"Repeating
Representations" means the representations deemed to be repeated by each
Obligor in accordance with Clause 19.25 (Repetition).
13
"Representative" means any
delegate, agent, manager, administrator, nominee, attorney, trustee or
custodian.
"Reservations" means the legal
principle that equitable remedies are remedies which may be granted or refused
at the discretion of the court and damages may be regarded as an adequate
remedy, the limitation on enforcement as a result of laws relating to
bankruptcy, insolvency, liquidation, reorganisation, administration and other
rights affecting the rights of creditors generally, statutory time-barring of
claims, defences of set-off or counterclaim, rules against penalties and the
fact that a court may refuse to give effect to a partial invalidity clause.
"Restricted Group" means HWDC
and its Subsidiaries (including, for the avoidance of doubt, HWDLP) but not
including HWFAC and its Subsidiaries.
"Restricted Subsidiary" means,
from time to time, a Subsidiary of HWDC (including, for the avoidance of doubt,
HWDLP) that is in the Restricted Group.
"Rollover Loan" means one or more
Loans:
|
(a) |
made or to be made on the same day that a maturing Loan
is due to be repaid; |
|
|
|
|
(b) |
the aggregate amount of which is equal to or less than
the amount of the maturing Loan; |
|
|
|
|
(c) |
in the same currency as the maturing Loan (unless it
arose as a result of the operation of Clause 6.2 (Unavailability of a
Currency)); and |
|
|
|
|
(d) |
made or to be made to the same Borrower for the purpose
of refinancing a maturing Loan. |
"Screen Rate" means in relation
to LIBOR, the British Bankers Association Interest Settlement Rate for the
relevant currency and period displayed on the appropriate page of the Reuters
screen. If the agreed page is replaced or service ceases to be available, the
Facility Agent may specify another page or service displaying the appropriate
rate after consultation with HWDC and the Lenders.
"Security" means a mortgage,
charge, pledge, lien or other security interest securing any obligation of any
person or any other agreement or arrangement having a similar effect.
"Security Documents" means:
|
(a) |
the General Security Documents; |
|
|
|
|
(b) |
the HWDC Pledge Agreement; |
|
|
|
|
(c) |
the HWDM Pledge Agreement; |
|
|
|
|
(d) |
the Canada Inc. Pledge Agreement; and |
|
|
|
|
(e) |
any other document, whether entered into pursuant to
Clause 18.8 (Additional Security) or otherwise, creating or
evidencing or purporting to create or evidence Security for all or any
part of the obligations of the Obligors or any of them under the any
Finance Document or entered into in connection with the creation,
validity, perfection or priority of any such
Security. |
"Specified Time" means a time
determined in accordance with Schedule 10 (Timetables).
"Subsidiary" means in relation
to any person, a person:
14
|
(a) |
which is controlled, directly or indirectly, by the first
mentioned person; |
|
|
|
|
|
(b) |
more than half of the issued share capital of which is
beneficially owned, directly or indirectly, by the first mentioned
person; |
|
|
|
|
|
(c) |
of whose dividends or distributions the first mentioned
person is entitled to receive more than half; or |
|
|
|
|
|
(d) |
which is a Subsidiary of another Subsidiary of the first
mentioned person, |
|
|
|
|
|
and, for this purpose, a person shall be treated as being
controlled by another if that other person is able to direct its affairs
and/or to control the composition of its board of directors or equivalent
body. |
|
|
|
|
|
"Tax" means any tax, levy, impost, duty or other
charge or withholding of a similar nature (including any penalty or
interest payable in connection with any failure to pay or any delay in
paying any of the same). |
|
|
|
|
|
"Total Commitments" means the aggregate of the
Commitments, being US$100,000,000 at the date of this Agreement. |
|
|
|
|
|
"Transaction Documents" means the Finance
Documents, the Diavik Documents, the Kinross Documents and the DDMI
Agreements. |
|
|
|
|
|
"Transfer Certificate" means a certificate
substantially in the form set out in Schedule 5 (Form of Transfer
Certificate) or any other form agreed between the Facility Agent and
HWDC. |
|
|
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|
|
"Transfer Date" means, in relation to an
assignment or a transfer, the later of: |
|
|
|
|
|
(a) |
the proposed Transfer Date specified in the relevant
Assignment Agreement or Transfer Certificate; and |
|
|
|
|
|
(b) |
the date on which the Facility Agent executes the
relevant Assignment Agreement or Transfer Certificate. |
|
|
|
|
|
"Unpaid Sum" means any sum due and payable but
unpaid by an Obligor under the Finance Documents. |
|
|
|
|
|
"Utilisation" means a utilisation of the
Facility. |
|
|
|
|
|
"Utilisation Date" means the date of a
Utilisation, being the date on which a Loan is to be made. |
|
|
|
|
|
"Utilisation Request" means a notice substantially
in the form set out in Schedule 3 (Utilisation Request). |
|
|
|
|
|
"VAT" means value added tax or goods and services
tax and any other tax of a similar nature. |
|
|
|
|
1.2 |
Construction |
|
|
|
|
|
(a) |
Unless a contrary indication appears, any reference in
this Agreement to: |
|
|
|
|
|
|
(i) |
"DDMI", "Kinross", any "Manager",
any "Joint Venture Partner", the "Facility Agent", the
"Hedging Counterparty", the "Security Agent", the
"Arranger", any "Finance Party", any "Lender", any
"Obligor" or any |
15
|
|
|
"Party" shall be construed so as to include its
successors, permitted assigns and permitted transferees; |
|
|
|
|
|
|
(ii) |
a document in an "agreed form" is a reference to a
document initialled on or prior to the date of this Agreement for the
purposes of identification as such by or on behalf of an Obligor and the
Facility Agent; |
|
|
|
|
|
|
(iii) |
"assets" includes present and future properties,
revenues and rights of every description; |
|
|
|
|
|
|
(iv) |
a "Finance Document" or any other agreement or
instrument is a reference to that Finance Document or other agreement or
instrument as amended, novated, supplemented, extended or
restated; |
|
|
|
|
|
|
(v) |
"indebtedness" includes any obligation (whether
incurred as principal or as surety) for the payment or repayment of money,
whether present or future, actual or contingent; |
|
|
|
|
|
|
(vi) |
a "person" includes any individual, firm, company,
corporation, government, state or agency of a state or any association,
trust, joint venture, consortium or partnership (whether or not having
separate legal personality); |
|
|
|
|
|
|
(vii) |
a "regulation" includes any regulation, rule,
official directive, request or guideline (whether or not having the force
of law) of any governmental, intergovernmental or supranational body,
agency, department or of any regulatory, self-regulatory or other
authority or organisation; |
|
|
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|
|
(viii) |
a provision of law is a reference to that provision as
amended or re-enacted; and |
|
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|
|
(ix) |
a time of day is a reference to London time. |
|
|
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|
|
(b) |
Section, Clause and Schedule headings are for ease of
reference only. |
|
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|
|
(c) |
Unless a contrary indication appears: |
|
|
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|
|
|
(i) |
a term used in any other Finance Document (excluding, for
these purposes, the Kinross Consent) or in any notice given under or in
connection with any Finance Document (excluding, for these purposes, the
Kinross Consent) has the same meaning in that Finance Document or notice
as in this Agreement; and |
|
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|
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|
|
(ii) |
"including" or "includes" shall be deemed
to be followed by "without limitation". |
|
|
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|
|
(d) |
A Default (other than an Event of Default) is
"continuing" if it has not been remedied or waived and an Event of
Default is "continuing" if it has not been waived or, in the case
of Clause 4.2(a) only, remedied. |
|
|
|
|
1.3 |
Currency Definitions |
|
|
|
|
|
In the Finance Documents (excluding, for these purposes,
the Kinross Consent): |
|
|
|
|
|
(a) |
"US$" and "US Dollars" denote the lawful
currency of the United States of America; and |
|
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|
|
(b) |
"CA$" and "Canadian Dollars" denote the
lawful currency of Canada. |
16
1.4 |
Third Party Rights |
|
|
|
|
(a) |
Unless expressly provided to the contrary in a Finance
Document a person who is not a Party has no right under the Contracts
(Rights of Third Parties) Act 1999 (the "Third Parties Act") to
enforce or to enjoy the benefit of any term of this Agreement. |
|
|
|
|
(b) |
Notwithstanding any term of any Finance Document, the
consent of any person who is not a Party is not required to rescind or
vary this Agreement at any time. |
|
|
|
1.5 |
No Partnership |
|
|
|
|
Nothing contained or implied in any Finance Document
shall constitute or be deemed to constitute a partnership between any of
the Parties. |
17
SECTION 2
THE FACILITY
2. |
THE FACILITY |
|
|
2.1 |
The Facility |
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|
|
Subject to the terms of this Agreement, the Lenders agree
to make available to the Borrowers a multicurrency revolving loan facility
in an aggregate amount equal to the Total Commitments. |
|
|
2.2 |
Finance Parties' rights and
obligations |
|
(a) |
The obligations of each Finance Party under the Finance
Documents are several. Failure by a Finance Party to perform its
obligations under the Finance Documents does not affect the obligations of
any other Party under the Finance Documents. No Finance Party is
responsible for the obligations of any other Finance Party under the
Finance Documents. |
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|
|
|
(b) |
The rights of each Finance Party under or in connection
with the Finance Documents are separate and independent rights and any
debt arising under the Finance Documents to a Finance Party from an
Obligor shall be a separate and independent debt. |
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|
|
|
(c) |
A Finance Party may, except as otherwise stated in the
Finance Documents, separately enforce its rights under the Finance
Documents. |
|
(a) |
Each Obligor (other than HWDC) by its execution of this
Agreement irrevocably appoints HWDC to act on its behalf as its agent in
relation to the Finance Documents and irrevocably authorises: |
|
|
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|
|
(i) |
HWDC on its behalf to supply all information concerning
itself contemplated by this Agreement to the Finance Parties and to give
all notices and instructions (including, in the case of a Borrower,
Utilisation Requests), to make such agreements and to effect the relevant
amendments, supplements and variations capable of being given, made or
effected by any Obligor notwithstanding that they may affect the Obligor,
without further reference to or the consent of that Obligor; and |
|
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|
|
(ii) |
each Finance Party to give any notice, demand or other
communication to that Obligor pursuant to the Finance Documents to
HWDC, |
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|
|
and in each case the Obligor shall be bound as though the
Obligor itself had given the notices and instructions (including, without
limitation, any Utilisation Requests) or executed or made the agreements
or effected the amendments, supplements or variations, or received the
relevant notice, demand or other communication. |
|
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|
|
(b) |
Every act, omission, agreement, undertaking settlement,
waiver, amendment, supplement, variation, notice or other communication
given or made by HWDC or given to HWDC under any Finance Document on
behalf of another Obligor or in connection with any Finance Document
(whether or not known to any other Obligor and whether occurring before or
after such other Obligor became an Obligor under any Finance Document)
shall be binding for all purposes on that Obligor as if that Obligor had
expressly made, given or concurred with it. In the event of any
conflict between any notices, or other communications of HWDC and
any other Obligor, those of the Obligors' Agent shall prevail. |
18
3. |
PURPOSE |
|
|
|
3.1 |
Purpose |
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|
|
|
(a) |
Each Borrower shall apply all amounts borrowed by it
under the Facility towards meeting its general corporate and working
capital purposes and which, in the case of HWDM, includes financing cash
calls arising under the HWDLP Partnership Agreement, other than, subject
to paragraph (b) below, to the extent that such amounts are to be
contributed by any partner in HWDLP that is not a member of the Restricted
Group. |
|
|
|
|
(b) |
If any partner in HWDLP that is not a member of the
Restricted Group fails to make its contribution to a cash call under the
HWDLP Partnership Agreement in accordance with the terms of that
agreement, then HWDM may apply amounts borrowed under this Agreement to
finance any such shortfall in a cash call arising under the HWDLP
Partnership Agreement provided that HWDM increases its Partnership Units
(as such term is defined in the HWDLP Partnership Agreement) in accordance
with the terms of Clause 4.4(4) of the HWDLP Partnership Agreement (and
provided that, for the avoidance of doubt, such Partnership Units shall be
the subject of Security in favour of the Finance Parties pursuant to the
Security Documents). |
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3.2 |
Monitoring |
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|
|
No Finance Party is bound to monitor or verify the
application of any amount borrowed pursuant to this Agreement. |
|
|
|
4. |
CONDITIONS OF UTILISATION |
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|
|
4.1 |
Initial conditions precedent |
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|
|
No Borrower may deliver a Utilisation Request unless the
Facility Agent has received all of the documents and other evidence listed
in Schedule 2 (Conditions precedent) in form and substance
satisfactory to the Facility Agent. The Facility Agent shall notify HWDC
and the Lenders promptly upon being so satisfied. |
|
|
|
4.2 |
Further conditions precedent |
|
|
|
|
The Lenders will only be obliged to comply with Clause
5.4 (Lenders' participation) if on the date of the Utilisation
Request and on the proposed Utilisation Date: |
|
|
|
|
(a) |
in the case of a Rollover Loan, no Event of Default is
continuing or would result from the proposed Loan and, in the case of any
other Loan, no Default is continuing or would result from the proposed
Loan; |
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|
|
(b) |
the Repeating Representations to be made or deemed to be
made by each Obligor are true; and |
|
|
|
|
(c) |
no mandatory prepayment event under Clause 8
(Prepayment and Cancellation) has occurred. |
19
4.3 |
Maximum number of Loans |
|
|
|
|
(a) |
A Borrower may not deliver a Utilisation Request if as a
result of the proposed Utilisation five or more Loans would be
outstanding. |
|
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|
|
(b) |
Any Loan made by a single Lender under Clause 6.2
(Unavailability of a currency) shall not be taken into account in
this Clause 4.3. |
20
SECTION 3
UTILISATION
5. |
UTILISATION |
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5.1 |
Delivery of a Utilisation Request |
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A Borrower may utilise the Facility by delivery to the
Facility Agent of a duly completed Utilisation Request not later than the
Specified Time. |
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5.2 |
Completion of a Utilisation
Request |
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(a) |
Each Utilisation Request is irrevocable and will not be
regarded as having been duly completed unless: |
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(i) |
the proposed Utilisation Date is a Business Day within
the Availability Period; |
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(ii) |
the currency and amount of the Utilisation comply with
Clause 5.3 (Currency and amount); and |
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(iii) |
the proposed Interest Period complies with Clause 10
(Interest Periods). |
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(b) |
Only one Loan may be requested in each Utilisation
Request. |
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(a) |
The currency specified in a Utilisation Request must be
the Base Currency or the Optional Currency. |
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(b) |
The amount of the proposed Loan must be: |
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(i) |
if the currency selected is the Base Currency, (A) a
minimum of US$5,000,000 or, if less, the Available Facility, and (B) in
multiples of US$1,000,000; or |
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(ii) |
if the currency selected is the Optional Currency, (A) a
minimum of CA$5,000,000 or, if less, the Available Facility, and (B) in
multiples of CA$1,000,000, |
and in any event such that its Base
Currency Amount is less than or equal to the Available Facility.
5.4 |
Lenders' participation |
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(a) |
If the conditions set out in this Agreement have been
met, each Lender shall make its participation in each Loan available by
the Utilisation Date through its Facility Office. |
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(b) |
The amount of each Lender's participation in each Loan
will be equal to the proportion borne by its Available Commitment to the
Available Facility immediately prior to making the Loan. |
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(c) |
The Facility Agent shall determine the Base Currency
Amount of each Loan which is to be made in the Optional Currency and shall
notify each Lender of the amount, currency and the Base Currency Amount of
each Loan and the amount of its participation in that Loan, in each case
by the Specified Time. |
21
5.5 |
Cancellation of Commitment |
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The Commitments which, at that time, are unutilised shall
be immediately cancelled at the end of the Availability Period. |
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6. |
OPTIONAL CURRENCY |
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6.1 |
Selection of currency |
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A Borrower (or HWDC on behalf of a Borrower) shall select
the currency of a Loan in a Utilisation Request. |
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6.2 |
Unavailability of a currency |
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If before the Specified Time on any Quotation
Day: |
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(a) |
a Lender notifies the Facility Agent that the Optional
Currency is not readily available to it in the amount required;
or |
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(b) |
a Lender notifies the Facility Agent that compliance with
its obligation to participate in a Loan in the Optional Currency would
contravene a law or regulation applicable to
it, |
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the Facility Agent will give notice to the relevant
Borrower to that effect by the Specified Time on that day. In this event,
any Lender that gives notice pursuant to this Clause 6.2 will be required
to participate in the Loan in the Base Currency (in an amount equal to
that Lender's proportion of the Base Currency Amount of that Loan or, in
respect of a Rollover Loan, an amount equal to that Lender's proportion of
the Base Currency Amount of the Rollover Loan that is due to be made) and
its participation will be treated as a separate Loan denominated in the
Base Currency during that Interest Period. |
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6.3 |
Participation in a Loan |
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Each Lender's participation in a Loan will be determined
in accordance with paragraph (b) of Clause 5.4 (Lenders'
participation). |
22
SECTION 4
REPAYMENT, PREPAYMENT AND
CANCELLATION
7. |
REPAYMENT |
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7.1 |
Repayment of Loans |
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Each Borrower which has drawn a Loan shall repay that
Loan on the last day of its Interest Period. |
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7.2 |
Extension Option |
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(a) |
Subject to satisfaction of the requirements of this
Clause 7.2 (Extension Option), the Final Maturity Date shall be
extended by 364 days on the request of HWDC. |
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(b) |
HWDC may, by written notice received by the Facility
Agent not less than 60 days and no more than 90 days prior to the then
Final Maturity Date, request an extension to the Final Maturity Date of
364 days and shall confirm in this notice (the "Extension Notice")
that: |
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(i) |
no Default is continuing or would result from the
extension of the Final Maturity Date; |
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(ii) |
the Repeating Representations to be made or deemed to be
made by each Obligor are true; and |
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(iii) |
no mandatory prepayment event under Clause 8 (Prepayment
and Cancellation) has occurred. |
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(c) |
Within a reasonable period following receipt of the
Extension Notice, the Facility Agent shall confirm in writing to HWDC that
the extension will be effective on the Final Maturity Date subject to the
following being satisfied: |
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(i) |
receipt of a notice on the then Final Maturity Date,
repeating the statements in the Extension Notice as of the Final Maturity
Date; and |
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(ii) |
receipt of payment by the Facility Agent (for the account
of each Lender) of the extension fee referred to in Clause 12.5 (Extension
Fee) at least 5 Business Days prior to the Final Maturity Date. |
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(d) |
The Facility Agent shall promptly notify each Lender of
any such request. |
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(e) |
There may be up to two extensions of the Final Maturity
Date. |
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8. |
PREPAYMENT AND CANCELLATION |
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8.1 |
Illegality |
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If it becomes unlawful (or otherwise contrary to any
applicable regulation) in any applicable jurisdiction for a Lender (a
"Relevant Lender") to perform any of its obligations as
contemplated by this Agreement or to fund or maintain its participation in
any Loan: |
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(a) |
the Relevant Lender shall promptly notify the Facility
Agent upon becoming aware of that event; |
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(b) |
upon the Facility Agent notifying HWDC, the Commitment of
the Relevant Lender will be immediately cancelled;
and |
23
|
(c) |
each Borrower shall repay the Relevant Lender's
participation in the Loans made to that Borrower on the earlier of (i) the
last day of the Interest Period for each Loan occurring after the Facility
Agent has notified HWDC and (ii) the date specified by the Relevant Lender
in the notice delivered to the Facility Agent (being no earlier than the
last day of any applicable grace period permitted by law). |
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8.2 |
Change of control - HWDC |
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(a) |
If any person or group of persons acting in concert gains
control of HWDC: |
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(i) |
HWDC shall promptly notify the Facility Agent in writing
upon becoming aware of that event; |
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(ii) |
a Lender shall not be obliged to fund a Utilisation;
and |
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(iii) |
subject to paragraph (b) below if a Lender so requires
and notifies the Facility Agent within two Business Days of the end of the
consultation period described in Clause 8.2(b) below, the Facility Agent
shall, by not less than one Business Days notice to HWDC, cancel the
Commitment of that Lender and declare the participation of that Lender in
all outstanding Loans, together with accrued interest, and all other
amounts accrued under the Finance Documents immediately due and payable,
whereupon the Commitment of that Lender will be cancelled and all such
outstanding amounts will become immediately due and payable. |
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(b) |
Prior to exercising its rights under paragraph (a)(iii)
above, a Lender shall use its reasonable endeavours within five Business
Days of notice from the Facility Agent informing it of a change of control
described in paragraph (a) above to consult with HWDC in good faith in
respect of the change of control described in paragraph (a) above for a
period not exceeding ten Business Days. |
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(c) |
For the purposes of paragraphs (a) above and (d) below,
"control" means the power to direct the management and policies of
an entity or to control the composition of its board of directors or other
equivalent body, whether the ownership of voting capital, by contract or
otherwise. |
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(d) |
For the purpose of paragraph (a) above "acting in
concert" means persons who, pursuant to an agreement or understanding
(whether formal or informal, actively cooperate to obtain or consolidate
control of an entity. |
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8.3 |
Change of Control - The Diavik Joint Venture and the
Manager |
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(a) |
If: |
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(i) |
Rio Tinto plc does not or ceases to own or control
(directly or indirectly) a sixty per cent. share in the Diavik Joint
Venture; or |
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(ii) |
Rio Tinto plc does not or ceases to own or control
(directly or indirectly) a one hundred per cent. interest in any entity
which is then the Joint Venture Partner or the Manager, |
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then: |
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(iii) |
HWDC shall promptly notify the Facility Agent in writing
upon becoming aware of any such event; |
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(iv) |
a Lender shall not be obliged to fund a Utilisation;
and |
24
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(v) |
subject to paragraph (b) below if a Lender so requires
and notifies the Facility Agent within two Business Days of the end of the
consultation period described in Clause 8.3(b) below, the Facility Agent
shall, by not less than one Business Days' notice to HWDC, cancel the
Commitment of that Lender and declare the participation of that Lender in
all outstanding Loans, together with accrued interest, and all other
amounts accrued under the Finance Documents immediately due and payable,
whereupon the Commitment of that Lender will be cancelled and all such
outstanding amounts will become immediately due and
payable. |
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(b) |
Prior to exercising its rights under paragraph (a)(v)
above, a Lender shall use its reasonable endeavours within five Business
Days of notice from the Facility Agent informing it of an event described
in paragraphs (a)(i) or (ii) above, to consult with HWDC in good faith in
respect of that event for a period not exceeding ten Business
Days. |
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(c) |
For the purposes of paragraphs (a) above,
"control" means the power to direct the management and policies of
an entity or to control the composition of its board of directors or other
equivalent body, whether the ownership of voting capital, by contract or
otherwise. |
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(i) |
the Diavik Joint Venture (whether each member acting
jointly or severally, or through the Joint Venture Partner, including in
its capacity as Manager or otherwise); or |
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(ii) |
HWDLP (whether acting through HWDM in its capacity as
general partner or otherwise), |
enters into any debt financing
arrangement that might reasonably be expected to impair the ability of any
Obligor to perform its obligations under any Finance Document,
then:
|
(iii) |
HWDC shall promptly notify the Facility Agent in writing
upon becoming aware of any such event; and |
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(iv) |
a Lender shall not be obliged to fund a
Utilisation. |
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(b) |
If a Lender so requires and notifies the Facility Agent
within ten Business Days of the Facility Agent notifying the Lender of
such an event described in Paragraphs (a)(i) or (a)(ii), the Facility
Agent shall, by not less than one Business Days notice to HWDC, cancel the
Commitment of that Lender and declare the participation of that Lender in
all outstanding Loans, together with accrued interest, and all other
amounts accrued under the Finance Documents immediately due and payable,
whereupon the Commitment of that Lender will be cancelled and all such
outstanding amounts will become immediately due and payable. |
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(c) |
This Clause 8.4 (Material Financing) shall not
apply in the case of any Purchase Money Financing by the Manager in the
ordinary course of mining operations at the Diavik Diamond
Mine. |
25
8.5 |
Voluntary cancellation |
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HWDC may, if it gives the Facility Agent not less than
ten Business Days' (or such shorter period as the Majority Lenders may
agree) prior notice, cancel the whole or any part (being a minimum amount
of US$10,000,000) of the Available Facility. Any cancellation under this
Clause 8.4 shall reduce the Commitments of the Lenders rateably. |
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8.6 |
Voluntary Prepayment of Loans |
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The Borrower to which a Loan has been made may, if it
gives the Facility Agent not less than ten Business Days' (or such shorter
period as the Majority Lenders may agree) prior notice, prepay the whole
or any part of a Loan (but if in part, being an amount that reduces the
Base Currency Amount of the Loan by a minimum amount of
$US5,000,000). |
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8.7 |
Right of replacement or repayment and cancellation in
relation to a single Lender |
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(a) |
If: |
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(i) |
any sum payable to any Lender by an Obligor is required
to be increased under paragraph (c) of Clause 13.2 (Tax gross-up);
or |
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(ii) |
any Lender claims indemnification from HWDC under Clause
13.3 (Tax indemnity) or Clause 14.1 (Increased
costs), |
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HWDC may, whilst the circumstance giving rise to the
requirement for that increase or indemnification continues, give the
Facility Agent notice of cancellation of the Commitment of that Lender and
its intention to procure the repayment of that Lender's participation in
the Loans. |
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(b) |
On receipt of a notice of cancellation referred to in
paragraph (a) above, the Commitment of that Lender shall immediately be
reduced to zero. |
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(c) |
On the last day of each Interest Period which ends after
HWDC has given notice of cancellation under paragraph (a) above (or, if
earlier, the date specified by HWDC in that notice), each Borrower to
which a Loan is outstanding shall repay that Lender's participation in
that Loan. |
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8.8 |
Restrictions |
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(a) |
Any notice of cancellation or prepayment given by any
Party under this Clause 8 shall be irrevocable and, unless a contrary
indication appears in this Agreement, shall specify the date or dates upon
which the relevant cancellation or prepayment is to be made and the amount
of that cancellation or prepayment. |
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(b) |
Any prepayment under this Agreement shall be made
together with accrued interest on the amount prepaid and, subject to any
Break Costs, without premium or penalty. |
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(c) |
Unless a contrary indication appears in this Agreement,
any part of the Facility which is prepaid or repaid may be reborrowed in
accordance with the terms of this Agreement. |
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(d) |
The Borrowers shall not repay or prepay all or any part
of the Loans or cancel all or any part of the Commitments except at the
times and in the manner expressly provided for in this
Agreement. |
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(e) |
No amount of the Total Commitments cancelled under this
Agreement may be subsequently reinstated. |
26
|
(f) |
If the Facility Agent receives a notice under this Clause
8 it shall promptly forward a copy of that notice to either HWDC or the
affected Lender, as appropriate. |
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(g) |
If all or part of a Loan is repaid or prepaid and is not
available for redrawing (other than by operation of Clause 4.2 (Further
conditions precedent)), an amount of the Commitments (equal to the
Base Currency Amount of the amount of the Loan which is repaid or prepaid)
will be deemed to be cancelled on the date of repayment or prepayment. Any
cancellation under this paragraph (g) shall reduce the Commitments of the
Lenders rateably. |
27
SECTION 5
COSTS OF UTILISATIONS
9. |
INTEREST |
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9.1 |
Calculation of interest |
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The rate of interest on each Loan for each Interest
Period is the percentage rate per annum which is the aggregate of the
applicable: |
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(a) |
Margin; |
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(b) |
the higher of LIBOR and the Cost of Funds; and |
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(c) |
Mandatory Cost, if any. |
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9.2 |
Payment of interest |
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The Borrower to which a Loan has been made shall pay
accrued interest on that Loan on the last day of each Interest Period
(and, if the Interest Period is longer than six Months, on the dates
falling at six monthly intervals after the first day of the Interest
Period). |
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9.3 |
Default interest |
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(a) |
If an Obligor fails to pay any amount payable by it under
a Finance Document on its due date, interest shall accrue on the overdue
amount from the due date up to the date of actual payment (both before and
after judgment) at a rate which, subject to paragraph (b) below, is two
per cent higher than the rate which would have been payable if the overdue
amount had, during the period of non-payment, constituted a Loan in the
currency of the overdue amount for successive Interest Periods, each of a
duration selected by the Facility Agent (acting reasonably). Any interest
accruing under this Clause 9.3 shall be immediately payable by the Obligor
on demand by the Facility Agent. |
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(b) |
If any overdue amount consists of all or part of a Loan
which became due on a day which was not the last day of an Interest Period
relating to that Loan: |
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(i) |
the first Interest Period for that overdue amount shall
have a duration equal to the unexpired portion of the current Interest
Period relating to that Loan; and |
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(ii) |
the rate of interest applying to the overdue amount
during that first Interest Period shall be two per cent. higher than the
rate which would have applied if the overdue amount had not become
due. |
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(c) |
Default interest (if unpaid) arising on an overdue amount
will be compounded with the overdue amount at the end of each Interest
Period applicable to that overdue amount but will remain immediately due
and payable. |
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9.4 |
Notification of rates of interest |
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(a) |
The Facility Agent shall notify the Lenders and the
Borrower of the determination of a rate of interest under this Agreement
at the Specified Time. |
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(b) |
A Lender shall notify the Facility Agent of its Costs of
Funds, if applicable, under this Agreement at the Specified
Time. |
28
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(c) |
If a Lender has notified the Facility Agent of its Cost
of Funds at the Specified Time, the Facility Agent shall notify the
Borrower of the relevant rate of that Lender's Costs of Funds. Nothing in
this Clause shall require the Facility Agent or the relevant Lender to
provide to the Borrower its calculation or any further information used in
the determination of its Costs of Funds. |
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10. |
INTEREST PERIODS |
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10.1 |
Selection of Interest Periods |
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(a) |
A Borrower (or HWDC on behalf of HWDM) may select an
Interest Period for a Loan in the Utilisation Request for that
Loan. |
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(b) |
Subject to this Clause 10, a Borrower (or HWDC on behalf
of HWDM) may select an Interest Period of one, three, six or twelve Months
or any other period agreed between HWDC and the Facility Agent (acting on
the instructions of all the Lenders). |
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(c) |
An Interest Period for a Loan shall not extend beyond the
Final Maturity Date. |
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(d) |
Each Interest Period for a Loan shall start on the
Utilisation Date. |
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(e) |
A Loan has one Interest Period only. |
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10.2 |
Non-Business Days |
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If an Interest Period would otherwise end on a day which
is not a Business Day, that Interest Period will instead end on the next
Business Day in that calendar month (if there is one) or the preceding
Business Day (if there is not), provided, however, that if the next
Business Day would extend the Loan beyond the Final Maturity Date, the
Interest Period will end on the preceding Business Day. |
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11. |
CHANGES TO THE CALCULATION OF INTEREST |
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11.1 |
Absence of quotations |
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Subject to Clause 11.2 (Market disruption), if
LIBOR is to be determined by reference to the Reference Banks but a
Reference Bank does not supply a quotation by the Specified Time on the
Quotation Day, the applicable LIBOR shall be determined on the basis of
the quotations of the remaining Reference Banks. |
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11.2 |
Market disruption |
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(a) |
If a Market Disruption Event occurs in relation to a Loan
for any Interest Period, then the rate of interest on each Lender's share
of that Loan for the Interest Period shall be the percentage rate per
annum which is the sum of: |
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(i) |
the Margin; |
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(ii) |
the Cost of Funds (save that the proviso to that
definition shall not apply) notified to the Facility Agent by that Lender
(at its absolute discretion) as soon as reasonably practicable and in any
event before interest is due to be paid in respect of that Interest
Period; and |
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(iii) |
the Mandatory Cost, if any, applicable to that Lender's
participation in the Loan. |
29
|
(b) |
In this Agreement, "Market Disruption Event" means
at or about noon on the Quotation Day for the relevant Interest Period the
Screen Rate is not available and none or only one of the Reference Banks
supplies a rate to the Facility Agent to determine LIBOR for the relevant
currency and Interest Period. |
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11.3 |
Alternative basis of interest or funding |
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(a) |
If a Market Disruption Event occurs and the Facility
Agent or HWDC so requires, the Facility Agent and HWDC shall enter into
negotiations (for a period of not more than thirty days) with a view to
agreeing a substitute basis for determining the rate of
interest. |
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(b) |
Any alternative basis agreed pursuant to paragraph (a)
above shall, with the prior consent of all the Lenders and HWDC, be
binding on all Parties. |
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11.4 |
Break Costs |
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(a) |
Each Borrower shall, within three Business Days of demand
by a Finance Party (excluding for these purposes, the Hedging
Counterparty), pay to that Finance Party its Break Costs attributable to
all or any part of a Loan or Unpaid Sum being paid by that Borrower on a
day other than the last day of an Interest Period for that Loan or Unpaid
Sum. |
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(b) |
Each Lender shall, as soon as reasonably practicable
after a demand by the Facility Agent, provide a certificate confirming the
amount of its Break Costs for any Interest Period in which they
accrue. |
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12. |
FEES |
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12.1 |
Commitment Fee |
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(a) |
HWDC or HWDM shall pay to the Facility Agent (for the
account of each Lender) a fee in the Base Currency computed at the rate of
1.75 per cent. per annum on that Lender's Available Commitment for the
Availability Period. |
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(b) |
The accrued commitment fee is payable in arrears on the
last day of each successive period of three Months which ends during the
Availability Period, on the last day of the Availability Period and, if
cancelled in full, on the cancelled amount of the relevant Lender's
Commitment at the time the cancellation is effective. |
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12.2 |
Arrangement Fee |
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HWDC or HWDM shall pay to the Arranger an arrangement fee
in the amount and at the times agreed in a Fee Letter. |
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12.3 |
Agency Fee |
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HWDC or HWDM shall pay to the Facility Agent (for its own
account) an agency fee in the amount and at the times agreed in a Fee
Letter. |
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12.4 |
Security Agent Fee |
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HWDC or HWDM shall pay to the Security Agent (for its own
account) a security agent fee in the amount and at the times specified in
a Fee Letter. |
30
12.5 |
Extension Fee |
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HWDC or HWDM shall pay to the Facility Agent (for the
account of each Lender) an extension fee in the amount and at the times
agreed in a Fee Letter. |
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SECTION 6
ADDITIONAL PAYMENT OBLIGATIONS
13. |
TAX GROSS UP AND INDEMNITIES |
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13.1 |
Definitions |
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(a) |
In this Agreement: |
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"Protected Party" means a Finance Party (excluding
for these purposes, the Hedging Counterparty) which is or will be subject
to any liability, or required to make any payment, for or on account of
Tax in relation to a sum received or receivable (or any sum deemed for the
purposes of Tax to be received or receivable) under a Finance
Document. |
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"Tax Credit" means a credit against, relief or
remission for, or repayment of any Tax. |
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"Tax Deduction" means a deduction or withholding
for or on account of Tax from a payment under a Finance
Document. |
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"Tax Payment" means either the increase in a
payment made by an Obligor to a Finance Party (excluding for these
purposes, the Hedging Counterparty) under Clause 13.2 (Tax
gross-up) or a payment under Clause 13.3 (Tax
indemnity). |
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(b) |
Unless a contrary indication appears, in this Clause 13 a
reference to "determines" or "determined" means a
determination made in the absolute discretion of the person making the
determination. |
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13.2 |
Tax gross-up |
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(a) |
Each Obligor shall make all payments to be made by it
without any Tax Deduction, unless a Tax Deduction is required by
law. |
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(b) |
HWDC or HWDM shall promptly upon becoming aware that an
Obligor must make a Tax Deduction (or that there is any change in the rate
or the basis of a Tax Deduction) notify the Facility Agent accordingly.
Similarly, a Lender shall notify the Facility Agent on becoming so aware
in respect of a payment payable to that Lender. If the Facility Agent
receives such notification from a Lender it shall notify HWDC and that
Obligor. |
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(c) |
If a Tax Deduction is required by law to be made by an
Obligor, the amount of the payment due from that Obligor shall be
increased to an amount which (after making any Tax Deduction) leaves an
amount equal to the payment which would have been due if no Tax Deduction
had been required. |
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(d) |
If an Obligor is required to make a Tax Deduction, that
Obligor shall make that Tax Deduction and any payment required in
connection with that Tax Deduction within the time allowed and in the
minimum amount required by law. |
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(e) |
Within thirty days of making either a Tax Deduction or
any payment required in connection with that Tax Deduction, the Obligor
making that Tax Deduction shall deliver to the Facility Agent for the
Finance Party (excluding for these purposes, the Hedging Counterparty)
entitled to the payment evidence reasonably satisfactory to that Finance
Party (excluding for these purposes, the Hedging Counterparty) that the
Tax Deduction has been made or (as applicable) any appropriate payment
paid to the relevant taxing authority. |
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13.3 |
Tax indemnity |
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(a) |
HWDC or HWDM shall (within three Business Days of demand
by the Facility Agent) pay to a Protected Party an amount equal to the
loss, liability or cost which that Protected Party determines will be or
has been (directly or indirectly) suffered for or on account of Tax by
that Protected Party in respect of a Finance Document. |
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(b) |
Paragraph (a) above shall not apply: |
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(i) |
with respect to any Tax assessed on a Finance Party
(excluding for these purposes, the Hedging Counterparty): |
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(A) |
under the law of the jurisdiction in which that Finance
Party (excluding for these purposes, the Hedging Counterparty) is
incorporated or, if different, the jurisdiction (or jurisdictions) in
which that Finance Party (excluding for these purposes, the Hedging
Counterparty) is treated as resident for tax purposes; or |
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(B) |
under the law of the jurisdiction in which that Finance
Party's Facility Office is located in respect of amounts received or
receivable in that jurisdiction, |
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if that Tax is imposed on or calculated by reference to
the net income received or receivable (but not any sum deemed to be
received or receivable) by that Finance Party (excluding for these
purposes, the Hedging Counterparty) or the capital of that Finance Party;
or |
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(ii) |
to the extent a loss, liability or cost is compensated
for by an increased payment under Clause 13.2 (Tax
gross-up). |
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(c) |
A Protected Party making, or intending to make a claim
under paragraph (a) above shall promptly notify the Facility Agent of the
event which will give, or has given, rise to the claim, following which
the Facility Agent shall notify HWDC and HWDM. |
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(d) |
A Protected Party shall, on receiving a payment from an
Obligor under this Clause 13.3, notify the Facility Agent. |
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13.4 |
Tax Credit |
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If an Obligor makes a Tax Payment and the relevant
Finance Party determines that: |
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(a) |
a Tax Credit is attributable either to an increased
payment of which that Tax Payment forms part, or to that Tax Payment;
and |
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(b) |
that Finance Party has obtained, utilised and retained
that Tax Credit, |
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the Finance Party shall pay an amount to the Obligor
which that Finance Party determines will leave it (after that payment) in
the same after-Tax position as it would have been in had the Tax Payment
not been required to be made by the Obligor. |
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13.5 |
Stamp taxes |
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HWDC or HWDM shall pay and, within three Business Days of
demand, indemnify each Finance Party (excluding for these purposes, the
Hedging Counterparty) against any cost, loss or liability that Finance
Party incurs in relation to all stamp duty, registration and other similar
Taxes payable in respect of any Finance Document. |
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13.6 |
VAT |
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(a) |
All amounts set out or expressed in a Finance Document to
be payable by any Party to a Finance Party (excluding for these purposes,
the Hedging Counterparty) which (in whole or in part) constitute the
consideration for a supply for VAT purposes shall be deemed to be
exclusive of any VAT which is chargeable on such supply, and accordingly,
subject to paragraph (b) below, if VAT is or becomes chargeable on any
supply made by any Finance Party (excluding for these purposes, the
Hedging Counterparty) to any Party under a Finance Document, that Party
shall pay to such Finance Party (in addition to and at the same time as
paying any other consideration for such supply) an amount equal to the
amount of such VAT (and such Finance Party shall promptly provide an
appropriate VAT invoice to such Party). |
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(b) |
If VAT is or becomes chargeable on any supply made by any
Finance Party (excluding for these purposes, the Hedging Counterparty)
(the "Supplier") to any other Finance Party (the
"Recipient") under a Finance Document, and any Party other than the
Recipient (the "Subject Party") is required by the terms of any
Finance Document to pay an amount equal to the consideration for such
supply to the Supplier (rather than being required to reimburse the
Recipient in respect of that consideration), such Party shall also pay to
the Supplier (in addition to and at the same time as paying such amount)
an amount equal to the amount of such VAT. The Recipient will promptly pay
to the Subject Party an amount equal to any credit or repayment obtained
by the Recipient from the relevant tax authority under the appropriate VAT
legislation which the Recipient reasonably determines is in respect of
such VAT. |
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(c) |
Where a Finance Document requires any Party to reimburse
or indemnify a Finance Party (excluding for these purposes, the Hedging
Counterparty) for any cost or expense, that Party shall reimburse or
indemnify (as the case may be) such Finance Party for the full amount of
such cost or expense, including such part thereof as represents VAT, save
to the extent that such Finance Party reasonably determines that it is
entitled to credit or repayment under the appropriate VAT legislation in
respect of such VAT from the relevant tax authority. |
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(d) |
Any reference in this Clause 13.6 to any Party shall, at
any time when such Party is treated as a member of a group for VAT
purposes, include (where appropriate and unless the context otherwise
requires) a reference to the representative member of such group at such
time. |
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14. |
INCREASED COSTS |
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14.1 |
Increased costs |
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(a) |
Subject to Clause 14.3 (Exceptions) HWDC or HWDM
shall, within three Business Days of a demand by the Facility Agent , pay
for the account of a Finance Party (excluding for these purposes, the
Hedging Counterparty) the amount of any Increased Costs incurred by that
Finance Party (excluding for these purposes, the Hedging Counterparty) or
any of its Affiliates as a result of (i) the introduction of or any change
in (or in the interpretation, administration or application of) any law or
regulation or (ii) compliance with any law or regulation made after the
date of this Agreement. |
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(b) |
In this Agreement "Increased Costs"
means: |
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(i) |
a reduction in the rate of return from the Facility or on
a Finance Party's (or its Affiliate's) (but excluding for these purposes,
the Hedging Counterparty) overall capital; |
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(ii) |
an additional or increased cost; or |
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(iii) |
a reduction of any amount due and payable under any
Finance Document, |
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which is incurred or suffered by a Finance Party
(excluding for these purposes, the Hedging Counterparty) or any of its
Affiliates to the extent that it is attributable to that Finance Party
having entered into its Commitment or funding or performing its
obligations under any Finance Document. |
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14.2 |
Increased cost claims |
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(a) |
A Finance Party (excluding for these purposes, the
Hedging Counterparty) intending to make a claim pursuant to Clause 14.1
(Increased costs) shall notify the Facility Agent of the event
giving rise to the claim, following which the Facility Agent shall
promptly notify HWDC. |
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(b) |
Each Finance Party (excluding for these purposes, the
Hedging Counterparty) shall, as soon as practicable after a demand by the
Facility Agent, provide a certificate confirming the amount of its
Increased Costs. |
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14.3 |
Exceptions |
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(a) |
Clause 14.1 (Increased costs) does not apply to
the extent any Increased Cost is: |
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(i) |
attributable to a Tax Deduction required by law to be
made by an Obligor; |
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(ii) |
compensated for by Clause 13.3 (Tax indemnity) (or
would have been compensated for under Clause 13.3 (Tax indemnity)
but was not so compensated solely because any of the exclusions in
paragraph (b) of Clause 13.3 (Tax indemnity) applied); |
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(iii) |
compensated for by the payment of the Mandatory Cost;
or |
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(iv) |
attributable to the wilful breach by the relevant Finance
Party or its Affiliates of any law or regulation. |
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(b) |
In this Clause 14.3, a reference to a "Tax
Deduction" has the same meaning given to the term in Clause 13.1
(Definitions). |
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15. |
OTHER INDEMNITIES |
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15.1 |
Currency indemnity |
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(a) |
If any sum due from an Obligor under the Finance
Documents (excluding for these purposes, a Hedging Agreement) (a
"Sum"), or any order, judgment or award given or made in relation
to a Sum, has to be converted from the currency (the "First
Currency") in which that Sum is payable into another currency (the
"Second Currency") for the purpose of: |
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(i) |
making or filing a claim or proof against that
Obligor; |
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(ii) |
obtaining or enforcing an order, judgment or award in
relation to any litigation or arbitration
proceedings, |
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that Obligor shall as an independent obligation, within
three Business Days of demand, indemnify each Finance Party (excluding for
these purposes, the Hedging Counterparty) to whom that Sum is due against
any cost, loss or liability arising out of or as a result of the
conversion including any discrepancy between (A) the rate of exchange used
to convert that Sum from the First Currency into the Second Currency and
(B) the rate or rates of exchange available to that person at the time of
its receipt of that Sum. |
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(b) |
Each Obligor waives any right it may have in any
jurisdiction to pay any amount under the Finance Documents in a currency
or currency unit other than that in which it is expressed to be
payable. |
15.2 |
Other indemnities |
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HWDC shall (or shall procure that an Obligor will),
within three Business Days of demand, indemnify each Finance Party against
any cost, loss or liability incurred by that Finance Party as a result
of: |
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(a) |
the occurrence of any Event of Default; |
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(b) |
a failure by an Obligor to pay any amount due under a
Finance Document on its due date, including without limitation, any cost,
loss or liability arising as a result of Clause 29 (Sharing among the
Finance Parties); |
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(c) |
funding, or making arrangements to fund, its
participation in a Loan requested by a Borrower in a Utilisation Request
but not made by reason of the operation of any one or more of the
provisions of this Agreement (other than by reason of default or
negligence by that Finance Party alone); or |
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(d) |
a Loan (or part of a Loan) not being prepaid in
accordance with a notice of prepayment given by a Borrower or
HWDC. |
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15.3 |
Indemnity to the Facility Agent and the Security
Agent |
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HWDC shall promptly indemnify the Facility Agent and the
Security Agent against any cost, loss or liability incurred by the
Facility Agent or the Security Agent (acting reasonably) as a result
of: |
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(a) |
investigating any event which it reasonably believes is a
Default; or |
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(b) |
acting or relying on any notice, request or instruction
which it reasonably believes to be genuine, correct and appropriately
authorised. |
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16. |
MITIGATION BY THE LENDERS |
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16.1 |
Mitigation |
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(a) |
Each Finance Party (excluding for these purposes, the
Hedging Counterparty) shall, in consultation with HWDC, take all
reasonable steps to mitigate any circumstances which arise and which would
result in any amount becoming payable under or pursuant to, or cancelled
pursuant to, any of Clause 8.1 (Illegality), Clause 13 (Tax
gross-up and indemnities), Clause 14 (Increased costs) or
paragraph 3 of Schedule 4 (Mandatory Cost formulae) including (but
not limited to) transferring its rights and obligations under the Finance
Documents to another Affiliate or Facility Office. |
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(b) |
Paragraph (a) above does not in any way limit the
obligations of any Obligor under the Finance Documents. |
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16.2 |
Limitation of liability |
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(a) |
HWDC shall promptly indemnify each Finance Party
(excluding for these purposes, the Hedging Counterparty) for all costs and
expenses reasonably incurred by that Finance Party as a result of steps
taken by it under Clause 16.1 (Mitigation). |
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(b) |
A Finance Party is not obliged to take any steps under
Clause 16.1 (Mitigation) if, in the opinion of that Finance Party
(acting reasonably), to do so might be prejudicial to it or any of its
Affiliates. |
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17. |
COSTS AND EXPENSES |
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17.1 |
Transaction expenses |
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HWDC or HWDM shall promptly on demand pay the Facility
Agent, the Security Agent and the Arranger the amount of all costs and
expenses (including legal fees) reasonably incurred by any of them in
connection with the negotiation, preparation, printing, execution and
syndication of: |
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(a) |
this Agreement and any other documents referred to in
this Agreement; and |
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(b) |
any other Finance Documents executed after the date of
this Agreement. |
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17.2 |
Amendment costs |
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If (a) an Obligor requests an amendment, waiver or
consent or (b) an amendment is required pursuant to Clause 30.9 (Change
of currency), HWDC shall, within three Business Days of demand,
reimburse the Facility Agent and the Security Agent for the amount of all
costs and expenses (including legal fees) reasonably incurred by the
Facility Agent or the Security Agent, as the case may be, in responding
to, evaluating, negotiating or complying with that request or
requirement. |
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17.3 |
Enforcement costs |
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HWDC or HWDM shall, within three Business Days of demand,
pay to each Finance Party the amount of all costs and expenses (including
legal fees) incurred by that Finance Party in connection with the
enforcement of, or the preservation of any rights under, any Finance
Document. |
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17.4 |
Security Agent Expenses |
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HWDC or HWDM shall, within three Business Days of demand
pay the Security Agent the amount of all costs and expenses (including
legal fees) reasonably incurred by the Security Agent in connection with
the administration or release of any Security expressed to be created by
or pursuant to or to be evidenced in any Security
Document. |
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SECTION 7
GUARANTEE
18. |
GUARANTEE AND INDEMNITY |
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18.1 |
Guarantee and indemnity |
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Each Guarantor irrevocably and unconditionally jointly
and severally: |
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(a) |
guarantees to each Finance Party punctual performance by
each Obligor of all that Obligor's obligations under the Finance
Documents; |
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(b) |
undertakes with each Finance Party that whenever an
Obligor does not pay any amount when due under or in connection with any
Finance Document, that Guarantor shall immediately on demand pay that
amount as if it was the principal obligor; and |
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(c) |
agrees with each Finance Party that if any obligation
guaranteed by it is or becomes unenforceable, invalid or illegal, it will,
as an independent and primary obligation, indemnify that Finance Party
immediately on demand against any cost, loss or liability it incurs as a
result of an Obligor not paying any amount which would, but for such
unenforceability, invalidity or illegality, have been payable by it under
any Finance Document on the date when it would have been due. The amount
payable by an Obligor under this indemnity will not exceed the amount it
would have had to pay under this Clause 18 if the amount claimed had been
recoverable on the basis of a guarantee. |
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18.2 |
Continuing guarantee |
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This guarantee is a continuing guarantee and will extend
to the ultimate balance of sums payable by any Obligor under the Finance
Documents, regardless of any intermediate payment or discharge in whole or
in part. |
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18.3 |
Reinstatement |
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If any discharge, release or arrangement (whether in
respect of the obligations of any Obligor or any security for those
obligations or otherwise) is made by a Finance Party in whole or in part
on the basis of any payment, security or other disposition which is
avoided or must be restored in insolvency, liquidation, administration or
otherwise, without limitation, then the liability of each Guarantor under
this Clause 18 will continue or be reinstated as if the discharge, release
or arrangement had not occurred. |
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18.4 |
Waiver of defences |
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The obligations of each Guarantor under this Clause 18
will not be affected by an act, omission, matter or thing which, but for
this Clause, would reduce, release or prejudice any of its obligations
under this Clause 18 (without limitation and whether or not known to it or
any Finance Party) including: |
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(a) |
any time, waiver or consent granted to, or composition
with, any Obligor or other person; |
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(b) |
the release of any other Obligor or any other person
under the terms of any composition or arrangement with any creditor of any
member of the Group; |
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(c) |
the taking, variation, compromise, exchange, renewal or
release of, or refusal or neglect to perfect, take up or enforce, any
rights against, or security over assets of, any Obligor or other person or
any non-presentation or non-observance of any formality or other requirement in respect of any
instrument or any failure to realise the full value of any
security; |
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(d) |
any incapacity or lack of power, authority or legal
personality of or dissolution or change in the members or status of an
Obligor or any other person; |
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(e) |
any amendment, novation, supplement, extension,
restatement (however fundamental and whether or not more onerous) or
replacement of any Finance Document or any other document or security
including without limitation any change in the purpose of, any extension
of or any increase in any facility or the addition of any new facility
under any Finance Document or other document or security; |
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(f) |
any unenforceability, illegality or invalidity of any
obligation of any person under any Finance Document or any other document
or security; or |
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(g) |
any insolvency or similar proceedings. |
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18.5 |
Immediate recourse |
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Each Guarantor waives any right it may have of first
requiring any Finance Party (or any trustee or agent on its behalf) to
proceed against or enforce any other rights or security or claim payment
from any person before claiming from that Guarantor under this Clause 18.
This waiver applies irrespective of any law or any provision of a Finance
Document to the contrary. |
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18.6 |
Appropriations |
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Until all amounts which may be or become payable by the
Obligors under or in connection with the Finance Documents have been
irrevocably paid in full, each Finance Party (or any trustee or agent on
its behalf) may: |
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(a) |
refrain from applying or enforcing any other moneys,
security or rights held or received by that Finance Party (or any trustee
or agent on its behalf) in respect of those amounts, or apply and enforce
the same in such manner and order as it sees fit (whether against those
amounts or otherwise) and no Guarantor shall be entitled to the benefit of
the same; and |
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(b) |
hold in an interest-bearing suspense account any moneys
received from any Guarantor or on account of any Guarantor's liability
under this Clause 18. |
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18.7 |
Deferral of Guarantors' rights |
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Until all amounts which may be or become payable by the
Obligors under or in connection with the Finance Documents have been
irrevocably paid in full and unless the Facility Agent otherwise directs,
no Guarantor will exercise any rights which it may have by reason of
performance by it of its obligations under the Finance Documents or by
reason of any amount being payable, or liability arising, under this
Clause 18: |
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(a) |
to be indemnified by an Obligor; |
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(b) |
to claim any contribution from any other guarantor of any
Obligor's obligations under the Finance Documents; |
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(c) |
to take the benefit (in whole or in part and whether by
way of subrogation or otherwise) of any rights of the Finance Parties
under the Finance Documents or of any other guarantee or security taken
pursuant to, or in connection with, the Finance Documents by any Finance
Party; |
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(d) |
to bring legal or other proceedings for an order
requiring any Obligor to make any payment, or perform any obligation, in
respect of which any Guarantor has given a guarantee, undertaking or
indemnity under Clause 18.1 (Guarantee and Indemnity); |
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(e) |
to exercise any right of set-off against any Obligor;
and/or |
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(f) |
to claim or prove as a creditor of any Obligor in
competition with any Finance Party. |
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If an Obligor receives any benefit, payment or
distribution in relation to such rights it shall hold that benefit,
payment or distribution to the extent necessary to enable all amounts
which may be or become payable to the Finance Parties by the Obligors
under or in connection with the Finance Documents to be repaid in full on
trust for the Finance Parties and shall promptly pay or transfer the same
to the Facility Agent or as the Facility Agent may direct for application
in accordance with Clause 30 (Payment mechanics). |
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18.8 |
Additional security |
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This guarantee is in addition to and is not in any way
prejudiced by any other guarantee or security now or subsequently held by
any Finance Party. |
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SECTION 8
REPRESENTATIONS, UNDERTAKINGS AND EVENTS
OF DEFAULT
19. |
REPRESENTATIONS |
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Each Obligor makes the representations and warranties set
out in this Clause 19 to each Finance Party on the date of this
Agreement. |
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19.1 |
Status |
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(a) |
It is a corporation, duly incorporated and validly
existing under the law of its jurisdiction of incorporation. |
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(b) |
It and each of the Restricted Subsidiaries has the
corporate power to own its assets and carry on its business as it is being
conducted. |
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(c) |
For the purposes of Part 2 of the Overseas Companies
Regulations 2009 it has not registered any UK establishment. |
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19.2 |
Binding obligations |
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The obligations expressed to be assumed by it in each
Transaction Document to which it is a party are, subject to Reservations,
legal, valid, binding and enforceable obligations. |
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19.3 |
Non-conflict with other obligations |
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The entry into and performance by it of, and the
transactions contemplated by, the Transaction Documents to which it is a
party do not and will not conflict with: |
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(a) |
any law or regulation applicable to it; |
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(b) |
its or any of the Restricted Subsidiaries' constitutional
documents (constating documents); or |
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(c) |
any agreement or instrument binding upon it or any of the
Restricted Subsidiaries or any of its or any of the Restricted
Subsidiaries' assets in any material respect, |
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nor (except as provided in any Security Document), result
in the creation of, or oblige it or any of the Restricted Subsidiaries to
create, any Security over any of its or the Restricted Subsidiaries'
assets. |
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19.4 |
Power and authority |
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It has the corporate power to enter into, perform and
deliver, and has taken all necessary action to authorise its entry into,
performance and delivery of, the Transaction Documents to which it is a
party and the transactions contemplated by those Transaction
Documents. |
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19.5 |
Validity and admissibility in evidence |
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All Authorisations required: |
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(a) |
to enable each Obligor lawfully to enter into, exercise
its rights and comply with its obligations in the Transaction Documents to
which it is a party; |
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(b) |
to make the Transaction Documents to which it is a party
admissible in evidence in its jurisdiction of incorporation;
and |
41
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(c) |
to enable that Obligor to create any Security expressed
to be created by that Obligor by or pursuant to, or, as the case may be,
any Security expressed to have been created by that Obligor and to be
evidenced in, any Security Document and to ensure that such Security has
the priority and ranking it is expressed to have, |
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have been obtained or effected and are in full force and
effect. |
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19.6 |
Governing law and enforcement |
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(a) |
Subject to any general principles of law limiting the
choice of law in contracts which are specifically referred to in any legal
opinion delivered pursuant to Clause 4 (Conditions of Utilisation),
the choice of English law as the governing law of the Finance Documents to
which it is or is to be a party (or, in the case of any such Finance
Document which is expressed to be governed by any other law, the choice of
that other law) will be recognised and enforced in its jurisdiction of
incorporation. |
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(b) |
Subject to any general principles of law limiting the
recognition and enforcement of judgments in applicable jurisdictions which
are specifically referred to in any legal opinion delivered pursuant to
Clause 4 (Conditions of Utilisation), any judgment obtained in
England in relation to a Finance Document to which it is or is to be a
party (or, in the case of any such Finance Document which confers
jurisdiction to settle disputes on any other courts, any judgment obtained
in those other courts) will be recognised and enforced in its jurisdiction
of incorporation. |
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19.7 |
Deduction of Tax |
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As at the date of this Agreement, it is not required to
make any deduction for or on account of Tax from any payment it may make
under any Finance Document. |
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19.8 |
No filing or stamp taxes |
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Under the law of its Relevant Jurisdiction it is not
necessary that the Finance Documents be filed, recorded or enrolled with
any court or other authority in that jurisdiction or that any stamp,
registration, notarial or similar tax or fee be paid on or in relation to
the Finance Documents or the transactions contemplated by the Finance
Documents, except for the registration of Security granted under the
Security Documents. |
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19.9 |
No Default |
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(a) |
As at the date of this Agreement, no Default is
continuing or might reasonably be expected to result from the making of
any Utilisation |
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(b) |
No Event of Default is continuing or might reasonably be
expected to result from the making of any Utilisation. |
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(c) |
No other event or circumstance is outstanding which
constitutes a default under any other agreement or instrument which is
binding on it or any of the Restricted Group or to which its (or any of
the Restricted Group's) assets are subject, which might reasonably be
expected to have a Material Adverse Effect. |
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19.10 |
Compliance with Law and Authorisations |
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(a) |
Each member of the Restricted Group is in compliance with
all law and regulation applicable to it in any Relevant Jurisdiction,
where non-compliance might reasonably be expected to have a Material
Adverse Effect. |
42
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(b) |
Without prejudice to paragraph (a) above, each member of
the Restricted Group has obtained and is in compliance with all
Authorisations required under any law or regulation applicable to it in
any Relevant Jurisdiction, where non-compliance might reasonably be
expected to have a Material Adverse Effect. |
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19.11 |
No misleading information |
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(a) |
All written information provided by or on behalf of any
member of the Group to any Finance Party in connection with the
Transaction Documents was true and accurate in all material respects as at
the date it was provided or as at the date (if any) at which it is
stated. |
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(b) |
No Obligor is aware of any fact or circumstance that
would render any of the information referred to in this Clause 19.11
(No misleading information) inaccurate or misleading in any
material respect. |
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19.12 |
Information Memorandum |
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In the event that HWDC has been requested by the Arranger
to provide information in connection with the preparation and/or revision
of an Information Memorandum then: |
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(a) |
Any factual information provided by any member of the
Group for the purposes of the Information Memorandum was true and accurate
in all material respects as at the date it was provided or as at the date
(if any) at which it is stated. |
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(b) |
The financial projections contained in the Information
Memorandum have been prepared on the basis of recent historical
information and on the basis of reasonable assumptions. |
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(c) |
Nothing has occurred or been omitted from the Information
Memorandum and no information has been given or withheld that results in
the information contained in the Information Memorandum being untrue or
misleading in any material respect. |
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19.13 |
Financial statements |
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(a) |
Each of the Original Financial Statements was prepared in
accordance with GAAP consistently applied. |
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(b) |
Each of the Original Financial Statements fairly
represent the financial condition and operations of the Group or the
Restricted Group (as applicable) during the relevant financial
period. |
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(c) |
As at the date of this Agreement, there has been no
material adverse change in its business or financial condition (or the
business or consolidated financial condition of the Group or the
Restricted Group) since 31 July 2009. |
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19.14 |
Pari passu ranking |
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The payment obligations of the Obligors under the Finance
Documents rank at least pari passu with the claims of all its other
unsecured and unsubordinated creditors, except for obligations mandatorily
preferred by law applying to companies generally. |
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19.15 |
Security |
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(a) |
It is the absolute legal and beneficial owner of all the
assets over which it purports to create Security under or pursuant to the
Security Documents and each Security Document to which it is a party
creates the Security which that Security Document purports to create and such Security has been validly
created and, subject to paragraph (c) in the case of the Security created
pursuant to the General Security Documents only, has the ranking and
priority it is expressed to have. |
43
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(b) |
HWDLP is the absolute legal and beneficial owner of its
joint venture interest in the Diavik Joint Venture. |
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(c) |
Without prejudice to paragraph (a) above, the Security
created under each of the General Security Documents has the ranking and
priority it is expressed to have subject to: |
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(i) |
any netting or set-off arrangement entered into by it in
the ordinary course of its banking arrangements for the purpose of netting
debit and credit balances under the standard terms and conditions of any
bank providing banking services to any such person; |
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(ii) |
any Security arising by operation of law in favour of a
Governmental Authority for taxes, royalties, assessments or other
governmental charges or levies not at the time delinquent or thereafter
payable without penalty or being diligently contested in good faith by
appropriate proceedings and for which adequate reserves in accordance with
GAAP shall have been set aside on its books; |
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(iii) |
any Security or Quasi-Security arising under any
retention of title, hire purchase or conditional sale arrangement or
arrangements having similar effect in respect of goods supplied to a
member of the Restricted Group in the ordinary course of trading and on
the supplier's standard or usual terms and not arising as a result of any
default or omission by any member of the Restricted Group; |
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(iv) |
any lien arising by operation of law in the ordinary
course of trading; and |
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(v) |
any Security or Quasi-Security permitted by Clause
22.3(c)(vii). |
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19.16 |
No proceedings pending or threatened |
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No litigation, arbitration or administrative proceedings
of or before any court, arbitral body or agency which has a reasonable
prospect of success and, if adversely determined, might reasonably be
expected to have a Material Adverse Effect have (to the best of its
knowledge and belief) been started or threatened against it or any of its
Restricted Subsidiaries. No labour disputes which might reasonably be
expected to have a Material Adverse Effect are current or (to the best of
its knowledge and belief) threatened against it or any of its Restricted
Subsidiaries. |
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19.17 |
Environmental Compliance |
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(a) |
It and each of the Restricted Subsidiaries has obtained
all requisite Environmental Licences required for the carrying on of its
business as currently conducted and has at all times complied
with: |
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(i) |
all applicable Environmental Laws; |
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(ii) |
the terms and conditions of such Environmental Licences;
and |
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(iii) |
all other covenants, conditions, restrictions and
agreements directly or indirectly concerned with any Environmental
Contamination, where the failure to do so might reasonably be expected
to have a Material Adverse Effect. |
44
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(b) |
There are to the best of its knowledge and belief, no
circumstances which may prevent or interfere with the compliance in the
future of it and each of the Restricted Subsidiaries with all applicable
Environmental Laws, the terms of all Environmental Licences referred to in
paragraph (a) above and all covenants, conditions, restrictions and
agreements referred to in such paragraph, where the failure to comply
might reasonably be expected to have a Material Adverse Effect. |
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19.18 |
Environmental Claims |
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No Environmental Claim which has a reasonable prospect of
success and, if adversely determined, might reasonably be expected to have
a Material Adverse Effect has (to the best of its knowledge and belief)
been started or threatened against it or any of the Restricted
Subsidiaries. |
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19.19 |
Taxation |
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(a) |
It and each of the Restricted Subsidiaries has duly and
punctually paid and discharged all Taxes imposed upon it or its assets or,
as the case may be, upon such Restricted Subsidiary or the assets of such
Restricted Subsidiary within the time period allowed without incurring
penalties (save to the extent that (i) payment is being contested in good
faith, (ii) adequate reserves are being maintained for those Taxes and
(iii) payment can be lawfully withheld). |
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(b) |
It and each of the Restricted Subsidiaries is not
materially overdue in the filing of any Tax returns. |
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(c) |
No claims have been or are reasonably likely to be
asserted against it or any of the Restricted Subsidiaries with respect to
Taxes which might reasonably be expected to have a Material Adverse
Effect. |
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19.20 |
No immunity |
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In any proceedings taken in its jurisdiction of
incorporation in relation to any Finance Document to which it is a party,
it will not be entitled to claim for itself or any of its assets immunity
from suit, execution, attachment or other legal process. |
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19.21 |
Diavik Document counterparties status |
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(a) |
HWDLP: |
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(i) |
is a limited partnership, duly formed and validly
existing under the Partnership Act (Northwest Territories); and |
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(ii) |
has the partnership power to enter into, perform and
deliver, and has taken all necessary partnership action to authorise its
entry into, performance and delivery of, the Transaction Documents to
which it is a party and the transactions contemplated by those Transaction
Documents. |
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(b) |
The entering into by HWDLP of the Diavik Documents to
which it is a party and the performance by it of its obligations
thereunder, do not conflict with: |
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(i) |
any law or regulation applicable to it; |
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(ii) |
its constitutional documents (constating
documents); or |
45
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(iii) |
any agreement or instrument binding upon it or any of its
assets in any material respect, |
|
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nor (except as provided under clause 9.4(c) the Diavik
Joint Venture Agreement), result in the creation of, or oblige it to
create, any Security over any of its assets. |
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(c) |
DDMI: |
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(i) |
is a corporation, duly incorporated and validly existing
under the law of its jurisdiction of incorporation; |
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(ii) |
has the corporate power to own its assets and carry on
its business as it is being conducted; and |
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(iii) |
has the corporate power to enter into, perform and
deliver, and has taken all necessary action to authorise its entry into,
performance and delivery of, the Diavik Documents, the DDMI Agreements
(save in the case of paragraph (d) of the definition of DDMI Agreements in
relation to which the representation in this subparagraph (c)(iii) will be
given to the best of its knowledge and belief only) and the DDMI
Authorisations to which it is a party and the transactions contemplated by
those documents. |
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(d) |
To the best of each Obligor's knowledge and belief the
entering into by DDMI of the DDMI Agreements, the Diavik Documents and
DDMI Authorisations to which DDMI is a party and the performance of DDMI's
obligations thereunder, does not conflict with: |
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(i) |
any law or regulation applicable to DDMI; |
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(ii) |
DDMI's constitutional documents (constating
documents); or |
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(iii) |
any agreement or instrument binding upon DDMI or any of
its assets in any material respect, |
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nor (except as provided under section 9.4(c) of the
Diavik Joint Venture Agreement), result in the creation of, or oblige it
to create, any Security over any of its or DDMI's assets (except that this
does not apply to DDMI's interest in the Diavik Joint Venture). |
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(e) |
To the best of its knowledge and belief, the Manager is a
Subsidiary of Rio Tinto plc. |
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(f) |
As at the date of this Agreement, DDMI is the
Manager. |
19.22 |
Binding obligations under Transaction Documents and
DDMI Authorisations |
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The obligations expressed to be assumed by each of HWDLP
and the Joint Venture Partner in each of the Transaction Documents and
DDMI Authorisations to which it is a party, are, subject to Reservations,
legal, valid, binding and enforceable obligations. |
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19.23 |
Diavik Diamond Mine |
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(a) |
The activities being carried out at the lands comprising
the Diavik Diamond Mine relate only to the exploration for and mining and
processing of diamonds, and activities ancillary thereto. |
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(b) |
The activities of the Diavik Joint Venture relate only to
the exploration for, mining, processing and sale of diamonds, and
activities ancillary thereto. |
46
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(c) |
The Diavik Joint Venture or the Manager (as the case may
be) is in compliance with all law and regulation applicable to it, where
non-compliance might reasonably be expected to have a Material Adverse
Effect. |
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(d) |
The Diavik Joint Venture or the Manager (as the case may
be) has obtained and is in compliance with all Authorisations (including
the DDMI Authorisations) required under any law or regulation applicable
to it and the activities being undertaken by it where the failure so to do
might reasonably be expected to have a Material Adverse Effect. |
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(e) |
The Diavik Joint Venture or the Manager (as the case may
be) has obtained all requisite Environmental Licences required for the
carrying on of its business as currently conducted and has at all times
complied with: |
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(i) |
all applicable Environmental Laws; |
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(ii) |
the terms and conditions of such Environmental Licences
(including all applicable DDMI Authorisations); and |
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(iii) |
all other covenants, conditions, restrictions and
agreements directly or indirectly concerned with any Environmental
Contamination, |
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where the failure to do so might reasonably be expected
to have a Material Adverse Effect. |
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(f) |
There is in place in respect of the Diavik Diamond Mine,
all insurance that would be expected of a prudent mine owner and
operator. |
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(g) |
All mining claims and mining rights with respect to the
Diavik Diamond Mine (including those granted under the Diavik Leases) are
in full force and effect to the extent required in relation to the mining
activities undertaken by the Diavik Joint Venture or the Manager under the
Diavik Joint Venture Agreement. |
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(h) |
To the best of its knowledge and belief of each Obligor
(and HWDM, in its capacity as general partner of HWDLP, confirms that to
the best of HWDLP's knowledge and belief): |
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(i) |
(A) the Diavik Joint Venture is not in default (howsoever
described) under any DDMI Authorisation or DDMI Agreement where such
default might reasonably be expected to have a Material Adverse Effect;
and |
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(B) there exists no grounds on which any DDMI
Authorisation or DDMI Agreement could be (I) cancelled, revoked or
terminated prematurely, (II) suspended, (III) not renewed, or (IV) renewed
on new terms where such revocation, termination, failure to renew or such
new terms might, in each case, reasonably be expected to have a Material
Adverse Effect; |
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(ii) |
there exists no dispute under any DDMI Authorisation or
DDMI Agreement which might reasonably be expected to have a Material
Adverse Effect; |
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(iii) |
all activities at the Diavik Diamond Mine have been
conducted in accordance with good mining and engineering practices (and
any other applicable industry standard) and all applicable workers'
compensation and health and safety and work place laws, regulations and
policies have been duly complied with, where the failure to do so might
reasonably be expected to have a Material Adverse
Effect; |
47
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(iv) |
no litigation, arbitration or administrative proceedings
of or before any court, arbitral body or agency which has a reasonable
prospect of success and, if adversely determined, might reasonably be
expected to have a Material Adverse Effect have been started or threatened
against the Manager or the Diavik Joint Venture; |
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(v) |
no labour disputes which might reasonably be expected to
have a Material Adverse Effect are current or threatened against the
Manager or the Diavik Joint Venture; |
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(vi) |
there are no circumstances which might reasonably be
expected to prevent or interfere with the compliance in the future of the
Diavik Joint Venture with all applicable Environmental Laws, the terms of
all Environmental Licences referred to in paragraph (e) above and all
covenants, conditions, restrictions and agreements referred to in such
paragraph, where the failure to comply might reasonably be expected to
have a Material Adverse Effect; |
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(vii) |
no Environmental Claim which has a reasonable prospect of
success and, if adversely determined, might reasonably be expected to have
a Material Adverse Effect, has been started or threatened against the
Manager or the Diavik Joint Venture; |
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(viii) |
there are no material outstanding aboriginal land claims
with respect to any of the lands required in connection with the mining
and processing activities at the Diavik Diamond Mine (including those
areas granted under the Diavik Leases); |
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(ix) |
the Diavik Joint Venture is entitled to quiet enjoyment,
in all material respects, of all lands required in connection with the
mining and processing activities at the Diavik Diamond Mine (including
those areas granted under the Diavik Leases); and |
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(x) |
the Diavik Joint Venture has paid all material taxes due
from it in respect of the Diavik Diamond Mine. |
19.24 |
Diavik Documents and the Kinross
Documents |
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(a) |
The Diavik Documents and the Kinross Documents are in
full force and effect as at the date of this Agreement. |
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(b) |
(i) Each Obligor and HWDLP is in material compliance with
its obligations under each of the Diavik Documents and the Kinross
Documents to which it is a party, (ii) no material amounts (which, include
any amount in relation to any cash call under the HWDLP Partnership
Agreement or the Diavik Joint Venture Agreement, as the case may be) are
outstanding from any person under any Diavik Document or any Kinross
Document other than amounts (other than cash call amounts) outstanding in
the ordinary course of business, and (iii) without prejudice to the
foregoing of this clause (b), all the covenants that are to be performed
by the date of this Agreement under such agreements by any Obligor or
HWDLP have been performed. |
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(c) |
To the best of the knowledge and belief of each Obligor
(and HWDM, in its capacity as general partner of HWDLP, confirms that to
the best of HWDLP's knowledge and belief) the Joint Venture Partner
(including, in its capacity as the Manager, as the case may be) (i) is in
material compliance with its obligations under the Diavik Documents to
which it is a party, and (ii) all the covenants that are to be performed
by the date of this Agreement under such agreements by the Joint Venture
Partner (including, in its capacity as the Manager, as the case may be)
have been performed. |
48
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(d) |
No person has any written or oral agreement, option,
understanding or commitment, or any right or privilege capable of becoming
such for the purchase from HWDLP of its interest in the Diavik Joint
Venture, for the purchase from HWDM or Canada Inc. of its respective
partnership interest in HWDLP or for the purchase from HWDC of its shares
in HWDM, subject to the following: |
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(i) |
in the case of each of HWDM and Canada Inc's respective
interest in HWDLP, a right of first refusal granted to Kinross in respect
of any transfer of a partnership interest by HWDM and Canada Inc. pursuant
to section 8.5 of the HWDLP Partnership Agreement; |
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(ii) |
in the case of each of HWDM and Canada Inc's respective
interest in HWDLP, a right granted to Kinross enabling Kinross to acquire
the whole of the partnership interest of HWDM or Canada Inc. in HWDLP,
pursuant to section 9.2 of the HWDLP Partnership Agreement (as modified by
the Kinross Consent); |
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(iii) |
in the case of HWDLP, a Security right granted to the
Manager over all of HWDLP's interest in the Diavik Joint Venture, pursuant
to section 9.4(c) of the Diavik Joint Venture Agreement; and |
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(iv) |
in the case of HWDLP, a right of first refusal granted to
the Joint Venture Partner pursuant to section 15.3 of the Diavik Joint
Venture Agreement; |
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and: |
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(A) in the case of each of those paragraphs (i), (ii) and
(iv) above, such right is contingent and has not arisen; |
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(B) in the case of paragraphs (iii), such Security does
not secure any amount; and |
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(C) none of paragraphs (i) to (iv) affects, in any
respect the rights of any Finance Party in relation to the grant or
enforcement of any of the Security created by any Security
Document. |
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(e) |
To the best of the Obligor's knowledge and belief (and
HWDM, in its capacity as general partner of HWDLP, confirms that to the
best of HWDLP's knowledge and belief) in respect of Kinross and the Joint
Venture Partner only, as at the date of this Agreement no party to a
Diavik Agreement, has taken any steps towards putting in place any
material financing arrangements at the level of the Diavik Joint Venture
or HWDLP, other than capital equipment leasing by the Manager in the
ordinary course of mining operations at the Diavik Diamond Mine. |
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(f) |
There exists no material dispute under any Diavik
Document or any Kinross Document. |
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19.25 |
Repetition |
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Except as otherwise provided therein, each of the
representations set out in this Clause 19 are deemed to be made by each
Obligor by reference to the facts and circumstances then existing
on: |
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(a) |
the date of each Utilisation
Request; |
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(b) |
the first day of each Interest Period; and |
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(c) |
the date on which the Facility Agent receives any
extension request under Clause 7.2 (Extension Option) of this
Agreement. |
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20. |
INFORMATION UNDERTAKINGS |
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The undertakings in this Clause 20 remain in force from
the date of this Agreement for so long as any amount is outstanding under
the Finance Documents or any Commitment is in force. |
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20.1 |
Financial statements |
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HWDC shall supply to the Facility Agent in sufficient
copies for all the Lenders: |
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(a) |
as soon as the same become available, but in any event
within 120 days after the end of each of its financial years the audited
consolidated financial statements for that financial year of the Group and
the Restricted Group; and |
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(b) |
as soon as the same become available, but in any event
within 90 days after the end of the first half of each of its financial
years, the unaudited consolidated financial statements for that financial
half year of the Group and the Restricted Group. |
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20.2 |
Compliance Certificate |
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(a) |
HWDC shall supply to the Facility Agent, with each set of
financial statements delivered pursuant to paragraph (a) or (b) of Clause
20.1 (Financial statements), a Compliance Certificate setting out
(in reasonable detail) computations as to compliance with Clause 21
(Financial covenants) as at the date as at which those financial
statements were drawn up. |
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(b) |
Each Compliance Certificate shall be signed by the Chief
Financial Officer of HWDC. |
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20.3 |
Requirements as to financial statements |
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(a) |
Each set of financial statements delivered by HWDC
pursuant to Clause 20.1(a) shall be audited by HWDC's auditors, which
shall be an internationally recognised firm of auditors. |
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(b) |
Each set of financial statements delivered by HWDC
pursuant to Clause 20.1 (Financial statements) shall be certified
by the Chief Financial Officer of the relevant company as fairly
representing its financial condition as at the date as at which those
financial statements were drawn up. |
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(c) |
HWDC shall procure that each set of financial statements
delivered pursuant to Clause 20.1 (Financial statements) is
prepared using GAAP, accounting practices and financial reference periods
consistent with those applied in the preparation of the Original Financial
Statements unless, in relation to any set of financial statements, it
notifies the Facility Agent that there has been a change in GAAP, the
accounting practices or reference periods and its auditors (being, an
internationally recognised firm of auditors) deliver to the Facility
Agent: |
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(i) |
a description of any change necessary for those financial
statements to reflect the GAAP, accounting practices and reference periods
upon which that Obligor's Original Financial Statements were prepared;
and |
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(ii) |
sufficient information, in form and substance as may be
reasonably required by the Facility Agent, to enable the Lenders to
determine whether Clause 21 (Financial covenants) has been complied
with and make an accurate comparison between the financial position
indicated in those financial statements and that Obligor's Original
Financial Statements. |
Any reference in this Agreement to
those financial statements shall be construed as a reference to those financial
statements as adjusted to reflect the basis upon which the Original Financial
Statements were prepared.
20.4 |
Amendments |
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If HWDC notifies the Facility Agent of a change in
accordance with Clause 20.3(c) and the Facility Agent so
requests: |
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(a) |
HWDC and the Facility Agent shall enter into negotiations
in good faith with a view to agreeing any amendments to this Agreement
which are necessary as a result of the change and which, to the extent
practicable, will be such as to ensure that the change does not result in
any material alteration in the commercial effect of the obligations in
this Agreement, and if any amendments are agreed they shall take effect
and be binding on each of the Parties in accordance with their terms;
and |
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(b) |
if no such agreement is reached within 60 days of the
Facility Agent's request, the Facility Agent shall (if so requested by the
Majority Lenders) instruct HWDC's auditors or, if the Facility Agent shall
so require, an internationally recognised firm of independent accountants
appointed by HWDC and approved by the Facility Agent or, in the absence of
such appointment or approval within five days of request for such
appointment by the Facility Agent, an internationally recognised firm of
independent accountants appointed by the Facility Agent to determine any
amendments to the financial covenants in Clause 21 (Financial
Covenants) and the definitions used in those covenants and any
consequential amendments to the provisions of this Agreement which those
auditors or, as the case may be, accountants (acting as experts and not
arbitrators) consider appropriate to grant to the Finance Parties
protection comparable to that granted on the date of this Agreement, which
amendments shall take effect when so determined by those auditors or, as
the case may be, accountants. Where such auditors or accountants are so
instructed, the cost and expense of those auditors or accountants shall be
for the account of HWDC. |
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20.5 |
Information: miscellaneous |
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HWDC shall supply to the Facility Agent (in sufficient
copies for all the Lenders, if the Facility Agent so requests): |
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(a) |
all material documents dispatched by HWDC to its
shareholders (or any class of them) or its creditors generally at the same
time as they are dispatched; |
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(b) |
promptly upon becoming aware of them, the details of any
material litigation, arbitration or administrative proceedings which are
current, threatened or pending against any member of the Restricted Group;
and |
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(c) |
promptly, such further information regarding the
financial condition, business and operations of any member of the
Restricted Group or the Diavik Diamond Mine as any Finance Party (through
the Facility Agent) may reasonably request. |
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20.6 |
Notification of default |
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(a) |
Each Obligor shall notify the Facility Agent of any
Default (and the steps, if any, being taken to remedy it) promptly upon
becoming aware of its occurrence (unless that Obligor is aware that a
notification has already been provided by another Obligor). |
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(b) |
Promptly upon a request by the Facility Agent, HWDC shall
supply to the Facility Agent a certificate signed by any two of its
directors or appropriately qualified officers on its behalf certifying
that no Default is continuing (or if a Default is continuing, specifying
the Default and the steps, if any, being taken to remedy it). |
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20.7 |
Use of websites |
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(a) |
HWDC may satisfy its obligation under this Agreement to
deliver any information in relation to those Lenders (the "Website
Lenders") who accept this method of communication by posting this
information onto an electronic website designated by HWDC and the Facility
Agent (the "Designated Website") if: |
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(i) |
the Facility Agent expressly agrees (after consultation
with each of the Lenders) that it will accept communication of the
information by this method; |
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(ii) |
both HWDC and the Facility Agent are aware of the address
of and any relevant password specifications for the Designated Website;
and |
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(iii) |
the information is in a format previously agreed between
HWDC and the Facility Agent. |
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If any Lender (a "Paper Form Lender") does not
agree to the delivery of information electronically then the Facility
Agent shall notify HWDC accordingly and HWDC shall supply the information
to the Facility Agent (in sufficient copies for each Paper Form Lender) in
paper form. In any event HWDC shall supply the Facility Agent with at
least one copy in paper form of any information required to be provided by
it. |
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(b) |
The Facility Agent shall supply each Website Lender with
the address of and any relevant password specifications for the Designated
Website following designation of that website by HWDC and the Facility
Agent. |
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(c) |
HWDC shall promptly upon becoming aware of its occurrence
notify the Facility Agent if: |
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(i) |
the Designated Website cannot be accessed due to
technical failure; |
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(ii) |
the password specifications for the Designated Website
change; |
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(iii) |
any new information which is required to be provided
under this Agreement is posted onto the Designated Website; |
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(iv) |
any existing information which has been provided under
this Agreement and posted onto the Designated Website is amended;
or |
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(v) |
HWDC becomes aware that the Designated Website or any
information posted onto the Designated Website is or has been infected by
any electronic virus or similar software. |
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If HWDC notifies the Facility Agent under paragraph
(c)(i) or paragraph (c)(v) above, all information to be provided by HWDC
under this Agreement after the date of that notice shall be supplied in
paper form unless and until the Facility Agent and each Website Lender is
satisfied that the circumstances giving rise to the notification are no
longer continuing. |
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(d) |
Any Website Lender may request, through the Facility
Agent, one paper copy of any information required to be provided under
this Agreement which is posted onto the Designated Website. HWDC shall
comply with any such request within ten Business Days. |
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20.8 |
"Know your customer" checks |
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(a) |
If: |
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(i) |
the introduction of or any change in (or in the
interpretation, administration or application of) any law or regulation
made after the date of this Agreement; |
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(ii) |
any change in the status of an Obligor after the date of
this Agreement; or |
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(iii) |
a proposed assignment or transfer by a Lender of any of
its rights and obligations under this Agreement to a party that is not a
Lender prior to such assignment or transfer, |
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obliges the Facility Agent or any Lender (or, in the case
of paragraph (iii) above, any prospective new Lender) to comply with "know
your customer" or similar identification procedures in circumstances where
the necessary information is not already available to it, each Obligor
shall promptly upon the request of the Facility Agent or any Lender
supply, or procure the supply of, such documentation and other evidence as
is reasonably requested by the Facility Agent (for itself or on behalf of
any Lender) or any Lender (for itself or, in the case of the event
described in paragraph (iii) above, on behalf of any prospective new
Lender) in order for the Facility Agent, such Lender or, in the case of
the event described in paragraph (iii) above, any prospective new Lender
to carry out and be satisfied it has complied with all necessary "know
your customer" or other similar checks under all applicable laws and
regulations pursuant to the transactions contemplated in the Finance
Documents. |
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(b) |
Each Lender shall promptly upon the request of the
Facility Agent supply, or procure the supply of, such documentation and
other evidence as is reasonably requested by the Facility Agent (for
itself) in order for the Facility Agent to carry out and be satisfied it
has complied with all necessary "know your customer" or other similar
checks under all applicable laws and regulations pursuant to the
transactions contemplated in the Finance Documents. |
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21. |
FINANCIAL COVENANTS |
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The covenants in this Clause 21 remain in force from the
date of this Agreement for so long as any amount is outstanding under the
Finance Documents or any Commitment is in force. |
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21.1 |
Definitions |
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(a) |
In this Clause 21: |
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"Consolidated Tangible Net Worth" means, at any
time, the aggregate of: |
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(i) |
the amounts paid up or credited as paid up on the issued
share capital of HWDC on a consolidated basis (other than any redeemable
share capital that is redeemable at the option of the holder on or prior
to the Final Maturity Date); and |
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(ii) |
the aggregate amount of the capital and revenue reserves
of HWDC on a consolidated basis (including any amount credited to the
share premium account, any capital redemption reserve fund and any balance
standing to the credit of the consolidated profit and loss account of
HWDC), |
but after deducting or excluding:
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(iii) |
any debit balance on the consolidated profit and loss
account of HWDC; |
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(iv) |
(to the extent included) non-cash foreign exchange
losses |
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(v) |
(to the extent included) any amount attributable to
goodwill (including goodwill arising on consolidation), intellectual
property or other intangible assets of the Group; |
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(vi) |
(to the extent included) any amount attributable to the
interests of any shareholder (not being a member of the Group) in any
member of the Group other than HWDC; |
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(vii) |
(to the extent included) any amount set aside or
otherwise reserved for taxation or deferred taxation; |
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(viii) |
(to the extent included) any amounts arising from any
upward revaluation of assets made at any time after the date of this
Agreement unless the revaluation is based on, and the written up value
does not exceed the value shown by, a written valuation carried out by a
professional and independent valuer acceptable to the Facility Agent;
and |
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(ix) |
any dividend or other distribution declared, recommended
or made by any member of the Group to the extent payable to a person who
is not a member of the Group and to the extent such dividend or
distribution is not or, as the case may be, would not be provided for in
the relevant consolidated financial statements referred to in Clause
20.1. |
"Debt" means, at any time,
without double-counting, the aggregate amount of all obligations (whether
present or future, actual or contingent, as principal or surety) for the payment
or repayments of money (whether in respect of interest principal or otherwise)
of all members of the Restricted Group calculated on a consolidated basis for or
in respect of:
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moneys borrowed; |
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(ii) |
any amount raised pursuant to any note purchase facility
or the issue of bonds, notes, debentures, loan stock or any similar
instrument; |
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(iii) |
any amount raised by acceptance under any acceptance
credit facility or dematerialised equivalent (but excluding any acceptance
credits issued in the ordinary course of business payable in less than 90
days) or any amount raised under any documentary credit
facility; |
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(iv) |
receivables sold or discounted (other than any
receivables to the extent they are sold on a non-recourse
basis); |
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(v) |
the amount of any liability in respect of any lease or
hire purchase contract which would, in accordance with GAAP, be treated as
a finance or capital lease; |
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(vi) |
any amount raised under any other transaction (including
any forward sale or purchase agreement) having the commercial effect of a
borrowing; |
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(vii) |
any arrangement pursuant to which any asset sold or
otherwise disposed of by that person is or may be leased to or reacquired
by that person (whether following the exercise of an option or otherwise)
which has the commercial effect of a borrowing; |
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(viii) |
any derivative transaction entered into in connection
with protection against or benefit from fluctuation in any rate or price
(and, when calculating the value of any derivative transaction, only the
marked to market value shall be taken into account); |
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(ix) |
any counter-indemnity obligation in respect of a
guarantee, indemnity, bond, standby or documentary letter of credit or any
other instrument issued for the account of a member of the Restricted
Group by a bank or financial institution; |
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(x) |
any liability to redeem or purchase any redeemable share
capital where that share capital is redeemable at the option of the holder
on or prior to the Final Maturity Date; and |
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(xi) |
the amount of any liability of any member of the
Restricted Group in respect of any guarantee or indemnity for any of the
items referred to in paragraphs (i) to (x) above, of a person who is not a
member of the Restricted Group. |
"EBITDA" means, in respect of
any Relevant Period, the consolidated net earnings of the Restricted Group
before:
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(i) |
taking into account any interest (including the interest
element of leasing and hire purchase payments and capitalised interest),
commission, fees, discounts or other finance charges of whatsoever nature
incurred or payable, received or receivable, by any member of the
Restricted Group (including any commission, fees, discounts and other
finance charges incurred or payable, received or receivable, by any member
of the Restricted Group under any interest rate hedging
arrangement); |
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(ii) |
deducting or providing for corporation tax or withholding
tax (in each case whether current or deferred) or their equivalents in any
relevant jurisdiction or any other taxes on income, capital or gains
(excluding, for the avoidance of doubt, taxes or duties in respect of
sales); |
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(iii) |
taking into account any extraordinary items (whether
positive or negative) or any exceptional items (whether positive or
negative) (including any amounts in relation to (A) foreign exchange gain
or loss, or (B) the revaluation of an asset or any gain or loss of book
value arising on the disposal of an asset by any member of the Restricted
Group; |
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(iv) |
taking into account any amount attributable to the
depreciation of tangible assets of any member of the Restricted
Group; |
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(v) |
taking into account any amount attributable to the
amortisation of goodwill, intellectual property and other intangible
assets of any member of the Restricted Group; and |
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(viii) |
taking into account any amount attributable to minority
interests. |
"Equity" means, in respect of
the Restricted Group, Consolidated Tangible Net Worth plus any amounts
attributable to goodwill (including goodwill arising from consolidation),
intellectual property or other intangible assets of the Restricted Group but
after deducting investments in HWFAC and its Subsidiaries.
"Half-Year Period" means the
first half of each of HWDC's financial years.
"Interest Expense" means, in
respect of any Relevant Period, the aggregate amount of the interest (including
the interest element of leasing and hire purchase payments and capitalised
interest), commission, fees, discounts and other finance charges of whatsoever
nature incurred or payable by any member of the Restricted Group (including any
commission, fees, discounts and other finance charges incurred or payable by any
member of the Restricted Group under any interest rate hedging arrangement but
after deducting any commission, fees, discounts and other finance charges
received or receivable by any member of the Restricted Group under any such
arrangement), less the aggregate of any interest received in respect of any
credit balances held by any relevant entity and any interest received by any
relevant entity in respect of any investment in a Cash Equivalent calculated in
respect of the Restricted Group on a consolidated basis.
"Relevant Period" means each
period of twelve months ending on the last day of HWDC's financial year and on
the last day of each Half-Year Period.
21.2 |
Debt to Equity Ratio of the Restricted
Group |
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(a) |
HWDC shall ensure that the ratio of Debt to Equity of the
Restricted Group shall at no time exceed 1:1. |
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(b) |
For the purposes of the covenant set out in paragraph (a)
above, reference to "the Group" in the definition of "Consolidated
Tangible Net Worth" shall be construed as references to the Restricted
Group and the calculations made on that basis in accordance with the
applicable accounts. |
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21.3 |
Debt to EBITDA |
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HWDC shall ensure that the ratio of Debt as at the end of
any Relevant Period to EBITDA in respect of such Relevant Period shall not
exceed 4:1. |
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21.4 |
Interest Cover Ratio |
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HWDC shall ensure that the ratio of EBITDA to Interest
Expense in respect of any Relevant Period shall equal or exceed
4:1. |
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21.5 |
Minimum Consolidated Tangible Net Worth of the
Group |
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HWDC shall ensure that the Consolidated Tangible Net
Worth shall at no time be less than
US$450,000,000. |
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21.6 |
Calculations |
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(a) |
All calculations made for the purposes of the covenants
set out in Clause 21.3 (Debt to EBITDA) and Clause 21.4
(Interest Cover Ratio) shall be made by reference to the
following: |
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(i) |
where the Relevant Period to which such covenant relates
ends on the last day of any financial year of HWDC, the audited
consolidated financial statements of the Restricted Group for that
financial year delivered pursuant to Clause 20.1 (Financial
Statements); and |
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(ii) |
where the Relevant Period to which such covenant relates
ends on the last day of the Half-Year Period in any financial year of the
Restricted Group, the unaudited consolidated financial statements of the
Restricted Group for that Half-Year Period, the last set of audited
consolidated financial statements of the Restricted Group and the
unaudited set of consolidated financial statements for the previous
Half-Year Period of the Restricted Group, in each case delivered pursuant
to Clause 20.1 (Financial Statements) (other than those for the
Half-Year Period ending 31 July 2009 which shall be delivered under
Schedule 2 (Conditions Precedent)). |
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(b) |
All calculations made for the purposes of the covenants
set out in Clause 21.2 (Debt to Equity Ratio of the Restricted
Group) shall be made by reference to the following: |
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(i) |
where the date of computation is the last day of any
financial year of HWDC, the audited consolidated financial statements of
the Restricted Group for that financial year delivered pursuant to Clause
20.1 (Financial Statements); |
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(ii) |
where the date of computation is the last day of the
Half-Year Period in any financial year of HWDC, the unaudited consolidated
financial statements of the Restricted Group for that Half-Year Period,
the last set of audited consolidated financial statements of the
Restricted Group and the unaudited set of consolidated financial
statements for the previous Half-Year Period of the Restricted Group, in
each case delivered pursuant to Clause 20.1 (Financial Statements)
(other than those for the Half-Year Period ending 31 July 2009 which shall
be delivered under Schedule 2 (Conditions Precedent));
and |
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(iii) |
in any other case, the amounts which would be included or
reflected in consolidated financial statements of the Restricted Group
prepared as at the date of computation using GAAP and accounting practices
consistent with those applied in the preparation of Original Financial
Statements relating to the Restricted Group. |
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(c) |
All calculations made for the purposes of the covenants
set out in Clause 21.5 (Minimum Consolidated Tangible Net Worth of the
Group) shall be made by reference to the following: |
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(i) |
where the date of computation is the last day of any
financial year of HWDC, the audited consolidated financial statements of
the Group for that financial year delivered pursuant to Clause 20.1
(Financial Statements); |
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(ii) |
where the date of computation is the last day of the
Half-Year Period in any financial year of HWDC, the unaudited consolidated
financial statements of the Group for that Half-Year Period;
and |
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(iii) |
in any other case, the amounts which would be included or
reflected in consolidated financial statements of the Group prepared as at
the date of computation using GAAP and accounting practices consistent
with those applied in the preparation of the Original Financial Statements
relating to the Group. |
21.7 |
Initial Financial Testing |
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The financial covenants set out in Clauses 21.2 to 21.5
shall be first tested by reference to the audited consolidated annual
financial statements of the Group and the Restricted Group (as applicable)
for HWDC's financial year ending 31 January 2010, as required to be
delivered pursuant to Clause 20.1 (Financial Statements). |
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22. |
GENERAL UNDERTAKINGS |
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The undertakings in this Clause 22 remain in force from
the date of this Agreement for so long as any amount is outstanding under
the Finance Documents or any Commitment is in force. |
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22.1 |
Authorisations |
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Each Obligor shall promptly: |
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(a) |
obtain, comply with and do all that is necessary to
maintain in full force and effect; and |
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(b) |
supply certified copies to the Facility Agent
of, |
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any Authorisation required under any law or regulation of
its jurisdiction of incorporation to enable it to perform its obligations
under the Finance Documents and to ensure the legality, validity,
enforceability or admissibility in evidence in its jurisdiction of
incorporation of any Finance Document. |
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22.2 |
Compliance with laws |
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Each Obligor shall (and HWDC shall ensure that each other
member of the Restricted Group will) comply in all respects with all laws
to which it may be subject, except if failure so to comply would not
materially impair its ability to perform its obligations under the Finance
Documents. |
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22.3 |
Negative pledge |
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In this Clause 22.3, "Quasi-Security" means an
arrangement or transaction described in paragraph (b) below. |
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(a) |
No Obligor shall (and HWDC shall ensure that no other
member of the Restricted Group will) create or permit to subsist any
Security over any of its assets. |
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(b) |
No Obligor shall (and HWDC shall ensure that no other
member of the Restricted Group will): |
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(i) |
sell, transfer or otherwise dispose of any of its assets
on terms whereby they are or may be leased to or re-acquired by an Obligor
or any other member of the Group; |
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(ii) |
sell, transfer or otherwise dispose of any of its
receivables on recourse terms; |
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(iii) |
enter into any arrangement under which money or the
benefit of a bank or other account may be applied, set-off or made subject
to a combination of accounts; or |
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(iv) |
enter into any other preferential arrangement having a
similar effect, |
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in circumstances where the arrangement or transaction is
entered into primarily as a method of raising Financial Indebtedness or of
financing the acquisition of an asset. |
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(c) |
Paragraphs (a) and (b) above do not apply to any Security
or (as the case may be) Quasi-Security, listed
below: |
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(i) |
any Security or Quasi-Security listed in Schedule 8
(Existing Security) except to the extent the principal amount
secured by that Security or Quasi-Security exceeds the amount stated in
that Schedule; |
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(ii) |
any netting or set-off arrangement entered into by any
member of the Restricted Group in the ordinary course of its banking
arrangements for the purpose of netting debit and credit balances under
the standard terms and conditions of any bank providing banking services
to any such person; |
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(iii) |
any lien arising by operation of law and in the ordinary
course of trading; |
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(iv) |
any Security or Quasi-Security entered into pursuant to
any Finance Document; |
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(v) |
any Security arising by operation of law in favour of a
Governmental Authority for taxes, royalties, assessments or other
governmental charges or levies not at the time delinquent or thereafter
payable without penalty or being diligently contested in good faith by
appropriate proceedings and for which adequate reserves in accordance with
GAAP shall have been set aside on its books; |
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(vi) |
any Security or Quasi-Security arising under any
retention of title, hire purchase or conditional sale arrangement or
arrangements having similar effect in respect of goods supplied to a
member of the Restricted Group in the ordinary course of trading and on
the supplier's standard or usual terms and not arising as a result of any
default or omission by any member of the Restricted Group; or |
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(vii) |
any Security or Quasi-Security securing indebtedness the
principal amount of which (when aggregated with the principal amount of
any other indebtedness which has the benefit of Security or Quasi-Security
given by any member of the Restricted Group, other than any permitted
under paragraphs (i) to (vi) above) does not exceed US$5,000,000 (or its
equivalent in another currency or currencies). |
22.4 |
Disposals |
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(a) |
No Obligor shall (and HWDC shall ensure that no other
member of the Restricted Group will), enter into a single transaction or a
series of transactions (whether related or not) and whether voluntary or
involuntary to sell, lease, transfer or otherwise dispose of any
asset. |
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(b) |
Notwithstanding any provision of this Agreement to the
contrary, no Obligor shall (and HWDC shall ensure that no other member of
the Restricted Group will) permit any reduction in the Diavik Interest to
occur. |
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(c) |
Clause 22.4(a) above shall not apply to a
disposal: |
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(i) |
of cash or the sale of diamonds, in each case, in the
ordinary course of trading of the disposing person; |
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(ii) |
on arm's length terms of obsolete or redundant vehicles,
computers, furniture, plant or equipment; and |
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(iii) |
of Cash Equivalents for cash or in exchange for other
Cash Equivalents. |
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22.5 |
Merger |
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(a) |
No Obligor shall (and HWDC shall ensure that no other
member of the Restricted Group will) enter into any amalgamation,
demerger, merger or corporate reconstruction. |
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(b) |
Paragraph 22.5(a) above shall not apply to mergers
between members of the Restricted Group that are not Obligors or HWDLP,
where that merger would not reasonably be expected to have a Material
Adverse Effect. |
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22.6 |
Change of business |
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HWDC shall procure that no substantial change is made to
the general nature of the business of HWDC, HWDM, HWDLP, the Restricted
Group or the Diavik Joint Venture from that carried on at the date of this
Agreement. |
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22.7 |
Financial Indebtedness |
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(a) |
Except as provided below, no member of the Restricted
Group may incur or permit to be outstanding any Financial
Indebtedness. |
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(b) |
Paragraph (a) does not apply to: |
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(i) |
any Financial Indebtedness incurred under the Finance
Documents; |
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(ii) |
any derivative transaction entered into by a member of
the Restricted Group for the purposes of protection against fluctuation in
any rate or price for risk hedging purposes and not on a speculative
basis; |
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(iii) |
unsecured Financial Indebtedness of HWDC pursuant to an
indemnity agreement in favour of Montreal Trust Company of Canada dated 31
January 2003, in a principal amount not exceeding CA$8,000,000; |
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(iv) |
Financial Indebtedness of 6019838 Canada Inc. pursuant to
an assumption of obligations under a loan agreement dated 31 January 2003
with Montreal Trust Company of Canada, in a principal amount not exceeding
CA$8,000,000; |
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(v) |
Financial Indebtedness of HW International under a loan
agreement dated 12 July 2007 owed to ADB in a principal amount not
exceeding US$45,000,000; |
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(vi) |
(without double-counting) any guarantee or indemnity in
respect of the foregoing paragraphs (iii), (iv) and (v) and the following
paragraph (x) permitted under Clause 22.14(b)(v) (Loans, Guarantees
and Contingent Liabilities); |
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(vii) |
any loan (A) between an Obligor and any other Obligor, or
(B) between a member of the Restricted Group that is not an Obligor and
another member of the Restricted Group that is not an Obligor; |
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(viii) |
any loan between an Obligor and a member of the
Restricted Group who is not an Obligor which is set out in Schedule 12
hereto, provided that the principal amount of any such loan shall not at
any time exceed the amount shown in that Schedule; |
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(ix) |
any renewal or refinancing of any of the Financial
Indebtedness permitted under this paragraph (b), provided that the
principal amount of the indebtedness borrowed or raised under that renewal
or refinancing does not exceed the relevant limit set out above of the
existing Financial Indebtedness that is being renewed or refinanced;
or |
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(x) |
any Financial Indebtedness incurred by a member of the
Restricted Group, the total principal amount of which (when aggregated
with the total principal amount of all other Financial Indebtedness of
each member of the Restricted Group other than that permitted under
paragraphs (i) to (ix) above) does not exceed US$100,000,000 (or its
equivalent in another currency or currencies). |
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(c) |
For the avoidance of doubt, any offering of common shares
by HWDC will not constitute Financial Indebtedness and will therefore not
count towards the US$100,000,000 (or its equivalent in another currency or
currencies) threshold amount set out in this Clause 22.7(b)(x) above, and
the distribution of monies raised by way of any such offering of common
shares by HWDC throughout the Group is not restricted by this
Agreement. |
22.8 |
Insurance |
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(a) |
Each Obligor shall (and HWDC shall ensure that each other
member of the Restricted Group will) effect and maintain insurance on and
in relation to its business and assets with reputable underwriters or
insurance companies against such risks and to such extent as is usual for
prudent companies carrying on a business such as that carried on by such
Obligor or other member of the Restricted Group. |
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(b) |
HWDC shall supply the Facility Agent with a certified
copy of: (i) any certificate of insurance issued to the Diavik Joint
Venture or the Manager (as the case may be) and (ii) a copy of any policy
or certificate of insurance issued to any member of the Restricted Group,
in each case which the Facility Agent may reasonably request. |
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22.9 |
Security |
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(a) |
Each Obligor shall ensure that any Security expressed to
be created by it by or pursuant to, or, as the case may be, expressed to
have been created by it and to be evidenced in, any Security Document
remains in full force and effect with, subject to paragraph (g) below the
ranking and priority it is expressed to have. |
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(b) |
No Obligor shall (and HWDC shall ensure that no other
member of the Restricted Group will) do or omit to do anything or
knowingly permit or cause anything to be done or omitted to be done which
would or could adversely affect any Security expressed to be created by
any Obligor by or pursuant to, or any Security expressed to have been
created by any Obligor and to be evidenced in, any Security
Document, provided that this paragraph (b) shall not prevent any
member of the Restricted Group creating or permitting to subsist any
Security that is permitted under Clause 22.3(c)(vii) and is in accordance
with Clause 19.15 (Security). |
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(c) |
Each Obligor shall (and HWDC shall procure that each
member of the Restricted Group will) take all such action as the Facility
Agent or the Security Agent may reasonably request (and in such form as
the Security Agent may reasonably require in favour of the Security Agent
or its nominee(s)) for the purpose of perfecting the Security created or
intended to be created under or evidenced by the Security Documents or for
the exercise of any rights, powers and remedies of the Security Agent or
the Finance Parties provided by or pursuant to the Finance Documents or by
law. |
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(d) |
Each Obligor shall, if the Security Agent lawfully
exercises any power (whether of sale or other disposal or otherwise) or
right with respect to the Charged Assets, do everything within its power
to permit the exercise of such power or right. |
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(e) |
Each Obligor shall (and HWDC shall procure that each
member of the Restricted Group shall) take all such action as is available
to it (including making all filings and registrations) as may be necessary
for the purpose of the creation, perfection, protection or maintenance of
any Security conferred or intended to be conferred on the Security Agent
or the Finance Parties by or pursuant to the Finance Documents (including,
creating and perfecting Security over all of HWDC's shares and other
interests in HWDM and all of HWDM's rights, title and interest in HWDLP,
as may be owned by each of them from time to time). |
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(f) |
Without limitation to any other provision of this Clause
22.9 (Security), to the extent that HWDM or Canada Inc has made a
Senior Loan or an Ordinary Loan to HWDLP, that Obligor shall ensure that
any such loan (including any promissory note evidencing the same) is the
subject of Security under a Security Document. |
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(g) |
The obligation to maintain in full, force and effect the
ranking and priority of all Security created or intended to be created
pursuant to the General Security Documents shall be subject to HWDM or
Canada Inc (as the case may be) creating or permitting to subsist the
Security or Quasi-Security described in Clauses 19.15(c)(i) to
19.15(c)(v). |
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22.10 |
Pari Passu Ranking |
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Without limiting Clause 22.9(a), each Obligor shall
ensure that its payment obligations under the Finance Documents will rank
at least pari passu with the claims of all its unsecured and
unsubordinated creditors, except for obligations mandatorily preferred by
law applying to companies generally. |
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22.11 |
Environmental Compliance |
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Each Obligor shall (and HWDC shall ensure that each other
member of the Restricted Group will) obtain and maintain all requisite
Environmental Licences and comply with: |
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(a) |
all applicable Environmental Laws; |
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(b) |
the terms and conditions of all Environmental Licences
applicable to it; and |
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(c) |
all other covenants, conditions, restrictions and
agreements directly or indirectly concerned with any Environmental
Contamination, and take all reasonable steps in anticipation of known or
expected future changes to or obligations under the same, in each case
where failure to do so might reasonably be expected to have a Material
Adverse Effect. |
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22.12 |
Environmental Claims |
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HWDC shall inform the Facility Agent in writing as soon
as reasonably practicable upon its becoming aware of: |
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(a) |
any material Environmental Claim which has been commenced
or threatened against any member of the Restricted Group; or |
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(b) |
any facts or circumstances which will or are reasonably
likely to result in any material Environmental Claim being commenced or
threatened against any member of the Restricted Group. |
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22.13 |
Taxation |
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(a) |
Each Obligor shall (and HWDC shall ensure that each other
member of the Restricted Group will) duly and punctually pay and discharge
all Taxes imposed upon it or its assets within the time period allowed
without incurring penalties (save to the extent that (i) payment is being
contested in good faith, (ii) adequate reserves are being maintained for
those Taxes and (iii) payment can be lawfully withheld). |
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(b) |
No Obligor shall (and HWDC shall ensure that no other
member of the Restricted Group will) be materially overdue in the filing
of any Tax returns. |
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(c) |
Each Obligor shall (and HWDC shall ensure that each other
member of the Restricted Group will) do all such things as are necessary
to ensure that no claims are or are reasonably likely to be asserted
against any member of the Restricted Group with respect to Taxes which
might reasonably be expected to have a Material Adverse Effect. |
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22.14 |
Loans, Guarantees and Contingent
Liabilities |
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(a) |
No Obligor shall (and HWDC shall ensure that no other
member of the Restricted Group will): |
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(i) |
make any loans, grant any credit or provide any other
financial accommodation to or for the benefit of any person; |
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(ii) |
give any guarantee or indemnity to or for the benefit of
any person or otherwise voluntarily assume any liability, whether actual
or contingent, in respect of any obligation of any person; or |
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(iii) |
be or become directly or indirectly or actually or
contingently liable for any loss, damage or expense resulting from the
non-payment or breach of any obligation of any other person. |
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(b) |
Paragraph (a) above does not apply to: |
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(i) |
any guarantee or indemnity given by an Obligor to any
Finance Party under the Finance Documents; |
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(ii) |
trade credit granted to a customer of that member of the
Restricted Group for a period no greater than 30 days on arm's length
commercial terms in the ordinary course of
trading; |
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(iii) |
the HWI Guarantee provided that, for the avoidance of
doubt, the principal amount of HWDC's liability under the HWI Guarantee
shall not exceed US$20,000,000; |
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(iv) |
any loan made by a member of the Restricted Group to
another member of the Restricted Group that constitutes Financial
Indebtedness of such other member permitted under Clause 22.7(b)(vii) or
(viii); |
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(v) |
any guarantee or indemnity permitted under Clause
22.7(b)(vi) and (x) (Financial Indebtedness) that is (A) given by
an Obligor of the payment obligations of any other Obligor, or (B) given
by a member of the Restricted Group of the payment obligations of any
other member of the Restricted Group that is not an Obligor; |
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(vi) |
the unsecured Financial Indebtedness of HWDC pursuant to
an indemnity agreement in favour of Montreal Trust Company of Canada dated
31 January 2003, in a principal amount not exceeding
CA$8,000,000; |
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(vii) |
any loan (other than a loan by a member of the Restricted
Group permitted under Clause 22.14(b)(iv) above) or guarantee made by a
member of the Restricted Group to a member of the Group, provided that:
(A) the then available permitted Financial Indebtedness under Clause
22.7(b)(x) (Financial Indebtedness) shall be reduced by the same
amount as such loan or guarantee for the period such loan or guarantee is
outstanding; and (B) the aggregate amount of any loan, guarantee or
investment by the Restricted Group under this Clause 22.14(b)(viii) and
Clause 22.15(c) (Acquisitions and Investments) and the permitted
Financial Indebtedness under Clause 22.7(b)(x) (Financial
Indebtedness) shall at no time exceed US$100,000,000 (or its
equivalent in another currency or currencies); and |
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(viii) |
any renewal or refinancing of anything permitted under
this Clause 22.14(b) above, provided that the principal amount of the
relevant indebtedness, guarantee, indemnity or other liability does not
exceed the relevant limit set out above of the existing indebtedness,
guarantee, indemnity or other liability that is being renewed or
refinanced. |
22.15 |
Acquisitions and Investments |
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(a) |
No Obligor shall (and HWDC shall ensure that no other
member of the Restricted Group will): |
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(i) |
establish or acquire any Subsidiary; |
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(ii) |
acquire all or part of the business, assets or
undertaking of any other person; |
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(iii) |
invest in any other person (other than a member of the
Restricted Group), |
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if such establishment, acquisition or investment is
material to the Restricted Group. |
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(b) |
Paragraph (a) above does not apply to any increase by
HWDC or HWDM in the Diavik Interest (whether through an increase in HWDM's
or Canada Inc.'s interest in HWDLP or through an increase in HWDLP's
interest in the Diavik Joint Venture) provided that any such increase in
the Diavik Interest shall be the subject of Security in favour of the
Finance Parties in form and substance satisfactory to the Facility
Agent. |
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(c) |
Paragraph (a) above does not apply to any investment by
way of equity made by any member of the Restricted Group in a member of
the Group (that is not a member of the Restricted Group), provided that:
(A) the then available permitted Financial Indebtedness under Clause
22.7(b)(x) (Financial Indebtedness) shall be reduced by the same
amount as such investment for the period such investment is outstanding;
and (B) the aggregate amount of any loan, guarantee or investment by the
Restricted Group under Clause 22.14(b)(viii) (Loans, Guarantees and
Contingent Liabilities) and this Clause 22.15(c) and the permitted
Financial Indebtedness under Clause 22.7(b)(x) (Financial
Indebtedness) shall at no time exceed US$100,000,000 (or its
equivalent in another currency or currencies). |
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22.16 |
Syndication |
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HWDC shall, at the request of the Arranger, provide all
reasonable assistance that the Arranger may require in connection with the
syndication or sell-down of the Facility, and in particular shall provide
such information available to HWDC as may be required by the Arranger in
connection with such syndication or sell-down (including in connection
with the preparation of an Information Memorandum for potential
institutions participating in the Facility). |
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22.17 |
End of Financial Year |
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(a) |
Each Obligor shall (and HWDC shall ensure that each other
member of the Restricted Group other than HWDLP will) maintain 31 January
in each year as the end of its financial year. |
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(b) |
HWDLP shall maintain 28 February in each year as the end
of its financial year. |
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22.18 |
Diavik Documents and Kinross Documents |
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(a) |
Each Obligor shall (and HWDC shall ensure that each
member of the Restricted Group will): |
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(i) |
comply with and perform all of its material obligations
under each of the Diavik Documents and the Kinross Documents to which it
is a party; and |
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(ii) |
maintain and act reasonably to enforce all of its rights
under the Diavik Documents and the Kinross Documents to which it is a
party. |
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(b) |
No Obligor shall (and HWDC shall ensure that no member of
the Restricted Group will): |
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(i) |
amend or waive or agree to any amendment or waiver of any
term of any Diavik Document or any Kinross Document to which it is a party
where (A) such amendment or waiver might reasonably be expected to have a
Material Adverse Effect, or (B) such amendment or waiver affects or might
reasonably be expected to affect the position of Standard Chartered Bank
under the terms of the Kinross Consent; |
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(ii) |
terminate or agree to terminate any Material Document to
which it is a party; |
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(iii) |
amend or waive or agree to any amendment or waiver of any
term of any Non-Material Document to which it is a party, or terminate or
agree to terminate any Non-Material Document to which it is a party, where
such amendment, waiver or termination might reasonably be expected to have
a Material Adverse Effect; |
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(iv) |
enter into any new Material Document; or |
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(v) |
agree to or permit any transfer (whether by assignment or
transfer, or otherwise) of any material rights or obligations of any
person under any Diavik Document or Kinross Document to which it is a
party, other than pursuant to the Security Documents, provided that
Kinross may transfer its rights in accordance with the terms of the
Kinross Documents provided that any successor to Kinross agrees to be
bound by the terms of the Kinross Consent and provided that (without
prejudice to Clause 8.3 (Change of Control - The Diavik Joint Venture
and the Manager)) DDMI may transfer its rights in accordance with the
terms of the Diavik Joint Venture Agreement. |
22.19 |
Notification |
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(a) |
HWDC or HWDM (as the case may be) shall promptly, as soon
as it is available, provide the Facility Agent with: |
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(i) |
the Monthly Joint Venture Performance Report;
and |
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(ii) |
while a Default is continuing, a copy of any Funding
Notice (as that term is defined in the HWDLP Partnership Agreement) issued
by HWDLP and any cash call request issued by the Manager pursuant to the
Diavik Joint Venture Agreement. |
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(b) |
HWDC or HWDM (as the case may be) shall promptly, once it
knows or is reliably informed of the same, inform the Facility Agent
of: |
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(i) |
the occurrence of any material default or material
dispute under any Diavik Document, Kinross Document, DDMI Authorisation or
any DDMI Agreement; |
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(ii) |
the occurrence of any material adverse change in the
condition of any party to a Diavik Document, Kinross Document or a DDMI
Agreement; |
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(iii) |
any actual or proposed amendment to any Diavik Document
or Kinross Document or the entering into of any new Diavik Document or
Kinross Document; |
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(iv) |
the identity of any counterparty to a DDMI Agreement from
time to time; |
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(v) |
any resignation notice received from the Manager under
the Diavik Joint Venture Agreement; |
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(vi) |
any event which might reasonably be expected to result in
the revocation, withdrawal, cancellation, termination, suspension,
forfeiture or material variation of any material Authorisation (including
any DDMI Authorisation) or any DDMI Agreement; |
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(vii) |
the details of any material litigation, arbitration or
administrative proceedings which are current, threatened or pending
against the Diavik Joint Venture or the Manager (as the case may be) or
otherwise in relation to Diavik Diamond Mine, including any material
labour dispute; |
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(viii) |
any material Environmental Claim which has been commenced
or threatened against the Diavik Joint Venture or the Manager (as the case
may be); |
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(ix) |
any facts or circumstances which will or are reasonably
likely to result in any material Environmental Claim being commenced or
threatened against the Diavik Joint Venture or the Manager (as the case
may be); |
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(x) |
any event of force majeure that occurs in respect of any
DDMI Authorisation or DDMI Agreement, or otherwise in respect of the
Diavik Diamond Mine; |
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(xi) |
any material loss or damage to Diavik Diamond Mine or any
loss or damage that might reasonably be expected to result in a Material
Adverse Effect; |
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(xii) |
any failure or suspension of operation at Diavik Diamond
Mine which might reasonably be expected to have a Material Adverse
Effect; |
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(xiii) |
any accident which could give rise to an Environmental
Claim against the Diavik Joint Venture or the Manager (as the case may
be); and |
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(xiv) |
any event which might reasonably be expected to have or
result in a Material Adverse Effect. |
22.20 |
Hedging |
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(a) |
HWDC grants to the Original Lender: |
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(i) |
a right of first refusal to arrange or provide;
and |
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(ii) |
a right to match any bona fide offer for, |
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any hedging by HWDC or any other member of the Restricted
Group in relation to the obligations of any Obligor under the Finance
Documents (other than foreign exchange on a spot basis). |
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(b) |
For these purposes, "hedging" means any interest
rate, foreign exchange, derivative, commodity or other hedging arrangement
or related treasury services. |
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(c) |
The arranging or provision of any hedging to HWDC or any
other member of the Restricted Group is subject to the appropriate
documentation and fees to be agreed between HWDC or that member of the
Restricted Group (as the case may be) and the Hedging
Counterparty. |
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(d) |
This Clause 22.20 is not a commitment by the Original
Lender to provide any hedging, nor a representation that any hedging can
be arranged. |
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(e) |
To the extent that any member of the Restricted Group
wishes to enter into any hedging in connection with the Finance Documents
with any assignee or transferee of the Hedging Counterparty, where such
Hedging Counterparty will accede to this Agreement, any such Hedging
Agreement shall be in form and substance satisfactory to the Facility
Agent, acting on the instructions of the Majority Lenders. |
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23. |
EVENTS OF DEFAULT |
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Each of the events or circumstances set out in this
Clause 23 is an Event of Default (save for Clause 23.19
(Acceleration)). |
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23.1 |
Non-payment and other obligations |
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(a) |
An Obligor does not pay on the due date any amount
payable pursuant to a Finance Document at the place and in the currency in
which it is expressed to be payable unless its failure to pay is caused by administrative or
technical error and payment is made within five Business Days of its due
date. |
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(b) |
HWDLP (including, HWDM acting as general partner of
HWDLP) fails to fund any cash call under the Diavik Joint Venture
Agreement. |
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(c) |
The balance secured under the security interest described
in Paragraph 1 of Schedule 8 (Existing Security) becomes any
positive amount. |
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(d) |
Any partner in HWDLP that is a member of the Restricted
Group: |
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(i) |
fails to contribute funds to HWDLP in accordance with the
terms of the relevant funding notice; or |
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(ii) |
whether voluntarily or involuntarily, makes any transfer
of or grants any Security over, or purports to make a transfer of or
purports to grant any Security over, all or any portion of its Total
Interest (as defined in the HWDLP Partnership Agreement), and such
transfer, purported transfer, grant of Security, or purported grant of
Security is or, would, with the expiry of a grace period, the giving of
notice, the making of any determination or any of the foregoing, be an
event of default under the HWDLP Partnership
Agreement. |
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(e) |
Any Obligor (or other member of the Restricted Group)
enters into a single transaction or a series of transactions (whether
related or not) and whether voluntary or involuntary to sell, lease,
transfer or otherwise dispose of any of its direct or indirect interest in
the Diavik Joint Venture. |
23.2 |
Financial covenants |
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Any requirement of Clause 21 (Financial covenants)
is not satisfied. |
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23.3 |
Other obligations |
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(a) |
An Obligor does not comply with any provision of the
Finance Documents (other than those referred to in Clause 23.1
(Non-payment and other obligations) and Clause 23.2 (Financial
covenants)). |
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(b) |
No Event of Default under paragraph (a) above will occur
if the failure to comply is capable of remedy and is remedied within ten
Business Days of the earlier of (A) the Facility Agent giving notice to
HWDC and (B) HWDC becoming aware of the failure to
comply. |
23.4 |
Misrepresentation |
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Any representation or statement made or deemed to be made
by an Obligor in the Finance Documents or any other document delivered by
or on behalf of any Obligor under or in connection with any Finance
Document is or proves to have been incorrect or misleading when made or
deemed to be made. |
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23.5 |
Cross default |
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(a) |
Any Financial Indebtedness of any member of the
Restricted Group is not paid when due nor within any originally applicable
grace period. |
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(b) |
Any Financial Indebtedness of any member of the
Restricted Group is declared to be or otherwise becomes due and payable
prior to its specified maturity as a result of an event of default
(however described). |
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(c) |
Any commitment for any Financial Indebtedness of any
member of the Restricted Group is cancelled or suspended by a creditor of
any member of the Restricted Group as a result of an event of default
(however described). |
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(d) |
Any creditor of any member of the Restricted Group
becomes entitled to declare any Financial Indebtedness of any member of
the Restricted Group due and payable prior to its specified maturity as a
result of an event of default (however described). |
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(e) |
No Event of Default will occur under this Clause 23.5 if
the aggregate amount of Financial Indebtedness or commitment for Financial
Indebtedness falling within paragraphs (a) to (d) above is less than or
equal to US$15,000,000 (or its equivalent in any other currency or
currencies). |
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23.6 |
Insolvency |
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(a) |
Any Joint Venture Partner, the Manager or any member of
the Restricted Group is unable or admits inability to pay its debts as
they fall due, suspends making payments on any of its debts or, by reason
of actual or anticipated financial difficulties, commences negotiations
with one or more of its creditors with a view to rescheduling any of its
indebtedness. |
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(b) |
The value of the assets of any Obligor is less than its
liabilities (taking into account contingent and prospective liabilities,
other than, in the case of HWDM and Canada Inc, contingent liabilities
under this Agreement). |
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(c) |
The value of the assets of the Restricted Group taken as
a whole is less than its liabilities taken as a whole (taking into account
all contingent and prospective liabilities). |
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(d) |
A moratorium is declared in respect of any indebtedness
of any Joint Venture Partner, the Manager or any member of the Restricted
Group. |
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23.7 |
Insolvency proceedings |
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(a) |
Any corporate action, legal proceedings or other
procedure or step is taken in relation to: |
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(i) |
the suspension of payments, a moratorium of any
indebtedness, winding-up, dissolution, administration or reorganisation
(by way of voluntary arrangement, scheme of arrangement or otherwise) of
any member of the Restricted Group other than a solvent liquidation or
merger between of any members of the Restricted Group that is not an
Obligor or HWDLP; |
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(ii) |
a composition, compromise, assignment or arrangement with
any creditor of any member of the Restricted Group; |
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(iii) |
the appointment of a liquidator (other than in respect of
a solvent liquidation of a member of the Restricted Group that is not an
Obligor or HWDLP), receiver, administrative receiver, administrator,
compulsory manager or other similar officer in respect of any member of
the Restricted Group or any of its respective assets;
or |
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(iv) |
enforcement of any Security securing indebtedness in an
amount greater than or equal to US$5,000,000 over any assets of any member
of the Restricted Group, |
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or any analogous procedure or step is taken in any
jurisdiction. |
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(b) |
Any of the events set out in clause 23.7(a) occurs in
relation to: |
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(i) |
the person that is the Manager; or |
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(ii) |
any Joint Venture Partner. |
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(c) |
This Clause 23.7 shall not apply to any winding-up
petition which is frivolous or vexatious and is discharged, stayed or
dismissed within thirty days of commencement. |
23.8 |
Creditors' process |
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Any attachment, sequestration, distress or execution
affects any asset or assets of the Manager, any Joint Venture Partner or a
member of the Restricted Group and is not discharged within ten Business
Days. |
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23.9 |
Diavik Documents, Kinross Documents, DDMI Agreements
and DDMI Authorisations |
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(a) |
Any material Authorisation in relation to the Diavik
Diamond Mine, the Diavik Joint Venture and/or HWDLP (including any DDMI
Authorisation) is modified or is suspended, cancelled, revoked, forfeited,
surrendered or terminated (whether in whole or in part) or otherwise
ceases to be in full force and effect, and is not replaced to the
reasonable satisfaction of the Facility Agent within 30 days of the
relevant event occurring. |
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(b) |
Any of the Material Documents is suspended, cancelled,
revoked, forfeited, surrendered or terminated (whether in whole or in
part) or otherwise ceases to be in full force and effect. |
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(c) |
Any of the Non-Material Documents or the DDMI Agreements
is suspended, cancelled, revoked, forfeited, surrendered or terminated
(whether in whole or in part) or otherwise ceases to be in full force and
effect, except if it is (a) not replaced, where such failure to replace
would not reasonably be expected to have a Material Adverse Effect or (b)
replaced to the reasonable satisfaction of the Facility Agent within a
reasonable period of it being cancelled, revoked, forfeited, surrendered
or terminated. |
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(d) |
Any event of default (howsoever described) occurs under
any Kinross Document or Diavik Document in respect of any member of the
Restricted Group. |
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23.10 |
Unlawfulness |
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It is or becomes unlawful for an Obligor or Kinross to
perform any of its obligations under any Finance Document. |
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23.11 |
Repudiation |
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(a) |
Any party to a Finance Document (other than a Finance
Party) repudiates a Finance Document or evidences an intention to
repudiate a Finance Document. |
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(b) |
Any party to a Transaction Document (which for the
purposes of this Paragraph (b) excludes the Finance Documents) repudiates
a Transaction Document (to which it is a party) or evidences an intention to repudiate a
Transaction Document (to which it is a party) and such repudiation might
reasonably be expected to impair the performance by any Obligor or Kinross
of any obligations under any Finance Document to which it is a
party. |
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(c) |
The Kinross Consent is not or ceases to be legal, valid,
binding and enforceable as against Kinross. |
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(d) |
Any party to the Kinross Consent (other than a Finance
Party) fails to comply in any respect with the Kinross Consent. |
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23.12 |
Security |
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Any Security expressed to be created by or pursuant to,
or to be evidenced in, any Security Document is not in full force and
effect with the ranking and priority it is expressed to have, subject to,
in the case of the Security created pursuant to any General Security
Document only, any prior ranking security created or permitted to subsist
by HWDM or Canada Inc (as the case may be) as described in Clauses
19.15(c)(i) to 19.15(c)(v). |
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23.13 |
Proceedings Pending or Threatened |
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(a) |
Any litigation, arbitration or administrative proceedings
of or before any court, arbitral body or agency are started or threatened
against any member of the Restricted Group which is reasonably likely to
be adversely determined against that member of the Restricted Group, and
if so determined, might reasonably be expected to have a Material Adverse
Effect. |
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(b) |
Any litigation, arbitration or administrative proceedings
(including, for the avoidance of doubt, any Environmental Claim or labour
dispute) of or before any court, arbitral body or agency are started or
threatened in relation to Diavik Diamond Mine which might reasonably be
expected to have a Material Adverse Effect. |
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23.14 |
Diavik Joint Venture Performance |
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(a) |
The Diavik Joint Venture or the Manager (as the case may
be) fails: |
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(i) |
to comply with any applicable law, regulation or any
Authorisation (including any DDMI Authorisation or Environmental Licence)
in relation to the Diavik Diamond Mine, where such failure might
reasonably be expected to have a Material Adverse Effect; |
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(ii) |
to put in place and maintain insurance (to the extent as
would be expected of a prudent mine owner and operator) in respect of the
Diavik Diamond Mine; |
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(iii) |
to comply with any term of any Diavik Document to which
it is a party or any DDMI Agreement where such failure might reasonably be
expected to have a Material Adverse Effect; or |
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(iv) |
to manage, operate or maintain the Diavik Diamond Mine in
accordance with good mining and engineering practices, or any other
applicable industry standard, and such might reasonably be expected to
have a Material Adverse Effect. |
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(b) |
Without prejudice to paragraph (a) above, any Joint
Venture Partner fails to comply with any term of any Diavik Document or
any DDMI Agreement to which it is a party where such failure might
reasonably be expected to have a Material Adverse
Effect |
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23.15 |
Governmental Intervention |
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Any Governmental Authority takes, or states officially
that it intends to take, any step with a view to: |
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(a) |
the seizure, expropriation, nationalisation or
acquisition of: (i) any assets or assets being the whole or any material
part of the mining or processing assets of the Diavik Diamond Mine, or
(ii) any interest of any member of the Restricted Group, Kinross or Rio
Tinto plc in, as applicable, the Diavik Joint Venture or HWDLP (including
any share or any asset representing any partnership interest in HWDLP);
or |
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(b) |
the displacement of the management of the Diavik Joint
Venture or the Manager or the displacement of the operation by the Manager
of the Diavik Diamond Mine. |
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23.16 |
Destruction |
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The whole or any material part of the Diavik Diamond Mine
is destroyed or is irreparably damaged. |
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23.17 |
Abandonment |
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For any reason the Diavik Joint Venture or the Manager
abandons operation or maintenance of the Diavik Diamond Mine or any
material part of it. |
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23.18 |
Material Adverse Change |
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Any event or circumstance occurs which might reasonably
be expected to have a Material Adverse Effect. |
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23.19 |
Acceleration |
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(a) |
On and at any time after the occurrence of an Event of
Default which is continuing the Facility Agent may, and shall if so
directed by the Majority Lenders: |
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(i) |
by notice to HWDC: |
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(A) |
cancel the Total Commitments whereupon they shall
immediately be cancelled; |
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(B) |
declare that all or part of the Loans, together with
accrued interest, and all other amounts accrued or outstanding under the
Finance Documents be immediately due and payable, whereupon they shall
become immediately due and payable; and/or |
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(C) |
declare that all or part of the Loans be payable on
demand, whereupon they shall immediately become payable on demand by the
Facility Agent on the instructions of the Majority Lenders;
and/or |
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(ii) |
instruct the Security Agent to enforce all or any part of
the Security created by or pursuant to, or evidenced in, the Security
Documents or enforce any other right, remedy, power or discretion held by
it, |
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provided that if no notice or instruction has been issued
pursuant to this Clause 23.19 (including a notice or instruction reserving
rights) in the event of an Event of Default which has been continuing for
a continuous period of no less than 180 days since the Facility Agent
first became aware of such continuing Event of Default (any such period
being referred to as a "Continuous Default Period"), then such
Event of Default will be deemed to be no longer continuing as of
the expiry of the relevant Continuous Default Period. |
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(b) |
The Parties acknowledge that while an Event of Default is
continuing, the Security Agent may make payments under or in respect of
any funding request received under the HWDLP Partnership
Agreement. |
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SECTION 9
CHANGES TO PARTIES
24. |
CHANGES TO THE LENDERS AND THE HEDGING
COUNTERPARTY |
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24.1 |
Assignments and transfers by the Lenders |
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Subject to this Clause 24, a Lender (the "Existing
Lender") may: |
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(a) |
assign any of its rights; or |
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(b) |
transfer by novation any of its rights and
obligations, |
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to another bank or financial institution or to a trust,
fund or other entity which is regularly engaged in or established for the
purpose of making, purchasing or investing in loans, securities or other
financial assets (the "New Lender"). |
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24.2 |
Conditions of assignment or transfer |
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(a) |
The consent of HWDC is required for an assignment or
transfer by an Existing Lender, unless (i) the assignment or transfer is
to another Lender or an Affiliate of a Lender, or (ii) an Event of Default
is continuing. |
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(b) |
If required, the consent of HWDC to an assignment or
transfer must not be unreasonably withheld or delayed. HWDC will be deemed
to have given its consent five Business Days after the Existing Lender has
requested it unless consent is expressly refused by HWDC within that
time. |
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(c) |
The consent of HWDC to an assignment or transfer must not
be withheld solely because the assignment or transfer may result in an
increase to the Mandatory Cost. |
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(d) |
An assignment will only be effective on: |
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(i) |
receipt by the Facility Agent (whether in the Assignment
Agreement or otherwise) of written confirmation from the New Lender (in
form and substance satisfactory to the Facility Agent) that the New Lender
will assume the same obligations to the other Finance Parties as it would
have been under if it was an Original Lender; and |
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(ii) |
performance by the Facility Agent of all necessary "know
your customer" or other similar checks under all applicable laws and
regulations in relation to such assignment to a New Lender, the completion
of which the Facility Agent shall promptly notify to the Existing Lender
and the New Lender. |
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(e) |
A transfer will only be effective if the procedure set
out in Clause 24.5 (Procedure for transfer) is complied
with. |
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(f) |
If: |
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(i) |
a Lender assigns or transfers any of its rights or
obligations under the Finance Documents; and |
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(ii) |
as a result of circumstances existing at the date the
assignment, transfer or change occurs, an Obligor would be obliged to make
a payment to the New Lender or Lender acting through its new Facility
Office under Clause 13 (Tax gross-up and indemnities) or Clause 14
(Increased Costs), then the New Lender or Lender acting through its new
Facility Office is only entitled to receive payment under those Clauses to
the same extent as the Existing Lender or Lender acting through its
previous Facility Office would have been if the assignment, transfer or
change had not occurred. |
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(g) |
Each New Lender, by executing the relevant Transfer
Certificate or Assignment Agreement, confirms, for the avoidance of doubt,
that the Facility Agent has authority to execute on its behalf any
amendment or waiver that has been approved by or on behalf of the
requisite Lender or Lenders in accordance with this Agreement on or prior
to the date on which the transfer or assignment becomes effective in
accordance with this Agreement and that it is bound by that decision to
the same extent as the Existing Lender would have been had it remained a
Lender. |
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24.3 |
Assignment or transfer fee |
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The New Lender shall, on the date upon which an
assignment or transfer takes effect, pay to the Facility Agent (for its
own account) a fee of US$2,000. |
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24.4 |
Limitation of responsibility of Existing
Lenders |
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(a) |
Unless expressly agreed to the contrary, an Existing
Lender makes no representation or warranty and assumes no responsibility
to a New Lender for: |
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(i) |
the legality, validity, effectiveness, adequacy or
enforceability of the Finance Documents or any other documents; |
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(ii) |
the financial condition of any Obligor or the
Group; |
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(iii) |
the performance and observance by any Obligor of its
obligations under the Finance Documents or any other documents;
or |
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(iv) |
the accuracy of any statements (whether written or oral)
made in or in connection with any Finance Document or any other
document, |
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and any representations or warranties implied by law are
excluded. |
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(b) |
Each New Lender confirms to the Existing Lender and the
other Finance Parties that it: |
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(i) |
has made (and shall continue to make) its own independent
investigation and assessment of the financial condition and affairs of
each Obligor and its related entities in connection with its participation
in this Agreement and has not relied exclusively on any information
provided to it by the Existing Lender in connection with any Finance
Document; and |
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(ii) |
will continue to make its own independent appraisal of
the creditworthiness of each Obligor and its related entities whilst any
amount is or may be outstanding under the Finance Documents or any
Commitment is in force. |
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(c) |
Nothing in any Finance Document obliges an Existing
Lender to: |
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(i) |
accept a re-transfer or re-assignment from a New Lender
of any of the rights and obligations assigned or transferred under this
Clause 24; or |
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(ii) |
support any losses directly or indirectly incurred by the
New Lender by reason of the non-performance by any Obligor of its
obligations under the Finance Documents or
otherwise. |
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24.5 |
Procedure for transfer |
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(a) |
Subject to the conditions set out in Clause 24.2
(Conditions of assignment or transfer) a transfer is effected in
accordance with paragraph (c) below when the Facility Agent executes an
otherwise duly completed Transfer Certificate delivered to it by the
Existing Lender and the New Lender. The Facility Agent shall, subject to
paragraph (b) below, as soon as reasonably practicable after receipt by it
of a duly completed Transfer Certificate appearing on its face to comply
with the terms of this Agreement and delivered in accordance with the
terms of this Agreement, execute that Transfer Certificate. |
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(b) |
The Facility Agent shall only be obliged to execute a
Transfer Certificate delivered to it by the Existing Lender and the New
Lender once it is satisfied it has complied with all necessary "know your
customer" or other similar checks under all applicable laws and
regulations in relation to the transfer to such New Lender. |
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(c) |
On the Transfer Date: |
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(i) |
to the extent that in the Transfer Certificate the
Existing Lender seeks to transfer by novation its rights and obligations
under the Finance Documents each of the Obligors and the Existing Lender
shall be released from further obligations towards one another under the
Finance Documents and their respective rights against one another under
the Finance Documents shall be cancelled (being the "Discharged Rights
and Obligations"); |
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(ii) |
each of the Obligors and the New Lender shall assume
obligations towards one another and/or acquire rights against one another
which differ from the Discharged Rights and Obligations only insofar as
that Obligor and the New Lender have assumed and/or acquired the same in
place of that Obligor and the Existing Lender; |
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(iii) |
the Facility Agent, the Arranger, the New Lender and
other Lenders shall acquire the same rights and assume the same
obligations between themselves as they would have acquired and assumed had
the New Lender been an Original Lender with the rights and/or obligations
acquired or assumed by it as a result of the transfer and to that extent
the Facility Agent, the Arranger and the Existing Lender shall each be
released from further obligations to each other under the Finance
Documents; and |
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(iv) |
the New Lender shall become a Party as a
"Lender". |
24.6 |
Procedure for assignment |
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(a) |
Subject to the conditions set out in Clause 24.2
(Conditions of assignment or transfer) an assignment may be
effected in accordance with paragraph (c) below when the Facility Agent
executes an otherwise duly completed Assignment Agreement delivered to it
by the Existing Lender and the New Lender. The Facility Agent shall,
subject to paragraph (b) below, as soon as reasonably practicable after
receipt by it of a duly completed Assignment Agreement appearing on its
face to comply with the terms of this Agreement and delivered in
accordance with the terms of this Agreement, execute that Assignment
Agreement. |
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(b) |
The Facility Agent shall only be obliged to execute an
Assignment Agreement delivered to it by the Existing Lender and the New
Lender once it is satisfied it has complied with all necessary "know your
customer" or other similar checks under all applicable laws and
regulations in relation to the assignment to such New
Lender. |
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(c) |
On the Transfer Date: |
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(i) |
the Existing Lender will assign absolutely to the New
Lender the rights under the Finance Documents expressed to be the subject
of the assignment in the Assignment Agreement; |
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(ii) |
the Existing Lender will be released by each Obligor and
the other Finance Parties from the obligations owed by it (the
"Relevant Obligations") and expressed to be the subject of the
release in the Assignment Agreement; and |
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(iii) |
the New Lender shall become a Party as a "Lender" and
will be bound by obligations equivalent to the Relevant
Obligations. |
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(d) |
Lenders may utilise procedures other than those set out
in this Clause 24.6 to assign their rights under the Finance Documents
(but not, without the consent of the relevant Obligor or unless in
accordance with Clause 24.5 (Procedure for transfer), to obtain a
release by that Obligor from the obligations owed to that Obligor by the
Lenders nor the assumption of equivalent obligations by a New Lender)
provided that they comply with the conditions set out in Clause
24.2 (Conditions of assignment or transfer). |
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24.7 |
Copy of Transfer Certificate or Assignment Agreement
to HWDC |
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The Facility Agent shall, as soon as reasonably
practicable after it has executed a Transfer Certificate or an Assignment
Agreement, send to HWDC a copy of that Transfer Certificate or Assignment
Agreement. |
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24.8 |
Security over Lenders' rights |
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In addition to the other rights provided to Lenders under
this Clause 24, each Lender may without consulting with or obtaining
consent from any Obligor, at any time charge, assign or otherwise create
Security in or over (whether by way of collateral or otherwise) all or any
of its rights under any Finance Document to secure obligations of that
Lender including, without limitation: |
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(a) |
any charge, assignment or other Security to secure
obligations to a federal reserve or central bank; and |
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(b) |
in the case of any Lender which is a fund, any charge,
assignment or other Security granted to any holders (or trustee or
representatives of holders) of obligations owed, or securities issued, by
that Lender as security for those obligations or securities, |
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except that no such charge, assignment or Security
shall: |
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(i) |
release a Lender from any of its obligations under the
Finance Documents or substitute the beneficiary of the relevant charge,
assignment or Security for the Lender as a party to any of the Finance
Documents; or |
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(ii) |
require any payments to be made by an Obligor other than
or in excess of, or grant to any person any more extensive rights than,
those required to be made or granted to the relevant Lender under the
Finance Documents. |
24.9 |
Change of Hedge Counterparty |
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The Hedge Counterparty may (in accordance with the terms
of the relevant Hedging Agreement and subject to any consent required
under that Hedging Agreement) transfer any of its rights and benefits or
obligations in respect of the Hedging Agreements to which it is
a party if any transferee has acceded to this Agreement as
the Hedge Counterparty pursuant to Clause 24.10 (Hedging Accession
Letter). |
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24.10 |
Hedging Accession Letter |
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With effect from the date of acceptance by the Security
Agent and the Facility Agent of a Hedging Accession Letter duly executed
and delivered to the Security Agent by the relevant acceding party (being
an assignee or transferee of the Hedging Counterparty) or, if later, the
date specified in that Hedging Accession Letter: |
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(a) |
any Party ceasing entirely to be the Hedging Counterparty
shall be discharged from further obligations towards the Security Agent
and other Parties under this Agreement and their respective rights against
one another shall be cancelled (except in each case for those rights which
arose prior to that date); and |
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(b) |
as from that date, the replacement or new Hedging
Counterparty shall assume the same obligations and become entitled to the
same rights, as if it had been an original Party to this Agreement in that
capacity. |
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24.11 |
Ancillary Provision |
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Each Obligor shall execute and do all such transfers,
assignments, assurances, acts and things as the Facility Agent (or the
Hedging Counterparty as the case may be) may reasonably request for
perfecting or completing any assignment or transfer. |
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25. |
CHANGES TO THE OBLIGORS |
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No Obligor may assign any of its rights or transfer any
of its rights or obligations under the Finance
Documents. |
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SECTION 10
THE FINANCE PARTIES
26. |
ROLE OF THE FACILITY AGENT, THE SECURITY AGENT, THE
ARRANGER AND THE HEDGING COUNTERPARTY |
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26.1 |
Appointment of the Facility Agent and the Security
Agent |
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(a) |
Each Finance Party (other than itself and the Hedging
Counterparty) appoints the Facility Agent to act as its agent under and in
connection with the Finance Documents. |
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(b) |
Each Finance Party appoints the Security Agent to act as
Security Agent under and in connection with the Finance
Documents. |
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(c) |
Each Finance Party (other than itself and the Hedging
Counterparty) authorises the Facility Agent and each Finance Party
authorises the Security Agent to exercise the rights, powers, authorities
and discretions specifically given to the Facility Agent or, as the case
may be, the Security Agent under or in connection with the Finance
Documents together with any other incidental rights, powers, authorities
and discretions. |
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(d) |
Each of the parties to this Agreement agrees that the
Security Agent shall have only those duties, obligations and
responsibilities expressly specified in this Agreement or in the Finance
Documents to which the Security Agent is expressed to be a party (and no
others shall be implied). |
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26.2 |
Duties of the Facility Agent and the Security
Agent |
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(a) |
Subject to paragraph (b) below, the Facility Agent shall
promptly forward to a Party the original or a copy of any document which
is delivered to the Facility Agent for that Party by any other
Party. |
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(b) |
Without prejudice to Clause 24.7 (Copy of Transfer
Certificate or Assignment Agreement to HWDC), paragraph (a) above
shall not apply to any Transfer Certificate or to any Assignment
Agreement. |
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(c) |
If the Facility Agent receives notice from a Party
referring to this Agreement, describing a Default and stating that the
circumstance described is a Default, it shall promptly notify the other
Finance Parties. |
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(d) |
If the Facility Agent is aware of the non-payment of any
principal, interest, commitment fee or other fee or amount payable to a
Finance Party or the Hedging Counterparty (other than the Facility Agent,
the Security Agent or the Arranger) under this Agreement it shall promptly
notify the other Finance Parties. |
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(e) |
The Security Agent shall: |
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(i) |
promptly notify the Facility Agent and the Hedging
Counterparty of the contents of any communication sent or received by it,
in its capacity as Security Agent under the Finance Documents, to or from
any of the Obligors under any of the Finance Documents; |
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(ii) |
forward to a Finance Party the original or a copy of any
document which is delivered to the Security Agent for that Party by any
other Party provided that, except where a Finance Document expressly
provides otherwise, the Security Agent is not obliged to review or check the
adequacy, accuracy or completeness of any document it forwards to another
party; |
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(iii) |
notify the Hedging Counterparty promptly upon receipt of
any notice or instruction served on it under paragraph 23.19
(Acceleration); and |
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(iv) |
notify each other Finance Party if it enforces, or takes
any steps to enforce, any of the Transaction Security. |
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(f) |
Subject to paragraph (e) above, the Security Agent shall
have no duty or responsibility, either initially or on a continuing basis,
to provide any of the Parties with any information with respect to any
Obligor whenever coming into its possession or to provide any of the
Parties with any communication received by it under or in connection with
any of the Finance Documents. |
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(g) |
The duties of the Facility Agent and the Security Agent
under the Finance Documents are solely mechanical and administrative in
nature. |
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26.3 |
Role of the Arranger |
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Except as specifically provided in the Finance Documents,
the Arranger has no obligations of any kind to any other Party under or in
connection with any Finance Document. |
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26.4 |
No fiduciary duties |
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(a) |
Nothing in this Agreement constitutes the Facility Agent,
the Security Agent (except as expressly provided in Clause 27 (Security
Provisions) or in any Security Documents) or the Arranger as a trustee
or fiduciary of any other person. |
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(b) |
None of the Facility Agent, the Security Agent or the
Arranger shall be bound to account to any Finance Party for any sum or the
profit element of any sum received by it for its own account. |
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26.5 |
Business with the Group |
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(a) |
The Facility Agent, the Security Agent and the Arranger
may each accept deposits from, lend money to and generally engage in any
kind of banking or other business with any member of the Group or any
other person and shall not be bound to account to such member or any other
person for any profits or benefits arising from such business. |
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(b) |
The Facility Agent, the Security Agent, the Arranger and
the Hedging Counterparty shall be entitled, notwithstanding that it is
also the Facility Agent, the Security Agent or, as the case may be, the
Arranger or Hedging Counterparty to take, or refrain from taking, any
action which it would be entitled to take or refrain from taking as a
Finance Party or in connection with any other relationship with any member
of the Group or any other person if it were not the Facility Agent, the
Security Agent or, as the case may be, the Arranger or Hedging
Counterparty. |
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(c) |
Neither the Facility Agent nor the Security Agent shall
be precluded, by virtue of its position as a fiduciary or a Finance Party
or any such other relationship, from exercising any of its rights, powers,
authorities or discretions as agent or, as the case may be, as Security
Agent under the Finance Documents. |
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26.6 |
Rights and discretions of the Facility Agent and the
Security Agent |
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(a) |
The Facility Agent and the Security Agent may each rely
on: |
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(i) |
any representation, notice or document believed by it to
be genuine, correct and appropriately authorised; and |
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(ii) |
any statement made by a director, authorised signatory or
employee of any person regarding any matters which may reasonably be
assumed to be within his knowledge or within his power to
verify. |
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(b) |
The Facility Agent and the Security Agent may each assume
(unless it has received notice to the contrary in its capacity as agent
or, as the case may be, as Security Agent under the Finance Documents)
that: |
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(i) |
no Default has occurred (unless it has actual knowledge
of a Default arising under Clause 23.1 (Non-payment and other
obligations)); |
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(ii) |
no default (howsoever described) has occurred under any
Hedging Agreement (unless it has actual knowledge of the same); |
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(iii) |
any right, power, authority or discretion vested in any
Party or the Majority Lenders has not been exercised; and |
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(iv) |
any notice or request given or made by HWDC (other than a
Utilisation Request) is given or made on behalf of and with the consent
and knowledge of all the Obligors. |
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(c) |
The Facility Agent and the Security Agent may each
engage, pay for and rely on the opinion, advice or services of, or any
information obtained from, any lawyers, accountants, surveyors or other
experts. Any such opinion, advice or information may be sent or obtained
by letter, telex message, facsimile transmission, telephone or any other
means and neither the Facility Agent nor the Security Agent shall be
liable for acting on any opinion, advice or information purporting to be
so conveyed although the same shall contain some error or shall not be
authentic. |
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(d) |
The Facility Agent and the Security Agent may each act in
relation to the Finance Documents through its personnel and agents. Any
such agent engaged in any profession or business shall be entitled to be
paid all usual professional and other charges for business transacted and
acts done by him or any partner or employee of his in connection with the
Finance Documents. |
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(e) |
The Facility Agent and the Security Agent may each
disclose to any other Party any information it reasonably believes it has
received as agent or, as the case may be, as Security Agent under the
Finance Documents. |
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(f) |
Notwithstanding any other provision of any Finance
Document to the contrary, none of the Facility Agent, the Security Agent
or the Arranger is obliged to do or omit to do anything if it would or
might in its reasonable opinion constitute a breach of any law or
regulation or a breach of a fiduciary duty or duty of
confidentiality. |
26.7 |
Majority Lenders' and Facility Agent's
instructions |
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(a) |
Unless a contrary indication appears in a Finance
Document, the Facility Agent shall (i) exercise any right, power,
authority or discretion vested in it as agent under the Finance Documents
in accordance with any instructions given to it by the Majority Lenders
(or, if so instructed by the Majority Lenders, refrain from exercising any
right, power, authority or discretion vested in it as agent under the
Finance Documents) and (ii) not be liable for any act (or omission) if it
acts (or refrains from taking any action) in accordance with an
instruction of the Majority Lenders. |
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(b) |
Unless a contrary indication appears in a Finance
Document, the Security Agent shall (i) exercise any right, power,
authority or discretion vested in it as Security Agent under the Finance
Documents in accordance with any instructions given to it by the Facility
Agent (or, if so instructed by the Facility Agent, refrain from exercising
any right, power, authority or discretion vested in it as Security Agent
under the Finance Documents) and (ii) not be liable for any act (or
omission) if it acts (or refrains from taking any action) in accordance
with an instruction of the Facility Agent. |
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(c) |
Unless a contrary indication appears in a Finance
Document, any instructions given by the Majority Lenders to the Facility
Agent or, as the case may be, by the Facility Agent to the Security Agent
will be binding on all the Finance Parties. |
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(d) |
The Facility Agent may refrain from acting in accordance
with the instructions of the Majority Lenders (or, if appropriate, the
Lenders) and the Security Agent may refrain from acting in accordance with
the instructions of the Facility Agent until it has received such security
or indemnity as it may require for any cost, loss or liability (together
with any associated VAT) which it may incur in complying with the
instructions. |
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(e) |
In the absence of instructions from the Majority Lenders,
(or, if appropriate, the Lenders) the Facility Agent and, in the absence
of instructions from the Facility Agent, the Security Agent may each act
(or refrain from taking action) as it considers to be in the best interest
of the Finance Parties (which shall exclude the Facility Agent in the case
of the Facility Agent) as the case may be. |
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(f) |
Neither the Facility Agent nor the Security Agent is
authorised to act on behalf of a Finance Party (without first obtaining
that Finance Party's consent) in any legal or arbitration proceedings
relating to any Finance Document. The Facility Agent may not give such
consent to the Security Agent without first obtaining that Finance Party's
consent. |
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(g) |
The Security Agent: |
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(i) |
shall be entitled to ensure that any instructions
received by it from the Facility Agent, the Arranger, the Hedging
Counterparty or the Lenders are duly given in accordance with the terms of
the Finance Documents; and |
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(ii) |
unless it has received actual notice of revocation,
assume that any such instructions have not been
revoked. |
26.8 |
Responsibility for documentation |
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None of the Facility Agent, the Security Agent (or any
Receiver or Delegate)or the Arranger is responsible for: |
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(a) |
the adequacy, accuracy and/or completeness of any
information (whether oral or written) supplied by the Facility Agent, the
Security Agent (or any Receiver or Delegate), the Arranger, an Obligor or
any other person given in or in connection with any Finance Document (or
the transaction contemplated therein) or the Information Memorandum or any
other agreement, arrangement or document entered into, made or executed in
anticipation of or in connection with any Finance Document; |
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(b) |
the legality, validity, effectiveness, adequacy or
enforceability of any Finance Document, the Secured Property (as defined
in clause 27 (Security Provisions) or any other agreement,
arrangement or document entered into, made or executed
in anticipation of or in connection with any Finance
Document or the Secured Property (as defined in Clause 27 (Security
Provisions)); or |
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(c) |
any determination as to whether any information provided
or to be provided to any Finance Party is non-public information the use
of which may be regulated or prohibited by applicable law or regulation
relating to insider dealing or otherwise. |
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26.9 |
Exclusion of liability |
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(a) |
Without limiting paragraph (b) below (and without
prejudice to the provisions of Clause 30.10(e) (Disruption to Payment
Systems etc.) in the case of the Facility Agent, neither the Facility
Agent nor the Security Agent will be liable (including, without
limitation, for negligence or any other category of liability whatsoever)
for any action taken by it under or in connection with or for any omission
by it in relation to any Finance Document, unless directly caused by its
gross negligence or wilful misconduct. |
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(b) |
No Party (other than the Facility Agent) may take any
proceedings against any officer, employee or agent of the Facility Agent
and no Party (other than the Security Agent) may take any proceedings
against any officer, employee or agent of the Security Agent in respect of
any claim such Party might have against the Facility Agent or the Security
Agent or in respect of any act or omission of any kind by that officer,
employee or agent in relation to any Finance Document and any officer,
employee or agent of the Facility Agent or the Security Agent may rely on
this Clause subject to Clause 1.4 (Third Party Rights) and the
provisions of the Third Parties Act. |
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(c) |
Neither the Facility Agent nor the Security Agent will be
liable for any delay (or any related consequences) in crediting an account
with an amount required under the Finance Documents to be paid by it if it
has taken all necessary steps as soon as reasonably practicable to comply
with the regulations or operating procedures of any recognised clearing or
settlement system used by it for that purpose. |
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(d) |
Nothing in this Agreement shall oblige the Facility
Agent, the Security Agent or the Arranger to carry out any "know your
customer" or other checks in relation to any person on behalf of any
Lender and each Lender confirms to the Facility Agent, the Security Agent
and the Arranger that it is solely responsible for any such checks it is
required to carry out and that it may not rely on any statement in
relation to such checks made by the Facility Agent or the
Arranger. |
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26.10 |
Indemnity to the Facility Agent and the Security
Agent |
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(a) |
Each Lender shall (in proportion to its share of the
Total Commitments or, if the Total Commitments are then zero, to its share
of the Total Commitments immediately prior to their reduction to zero)
indemnify the Facility Agent, within three Business Days of demand,
against any cost, loss or liability (including, without limitation, for
negligence or any other category of liability whatsoever) incurred by the
Facility Agent (otherwise than by reason of its gross negligence or wilful
misconduct) (or, in the case of any cost, loss or liability incurred by
the Facility Agent pursuant to Clause 30.10 (Disruption to Payment
Systems etc.), notwithstanding the Facility Agent's negligence, gross
negligence or any other category of liability whatsoever but not including
any claim based on the fraud of the Facility Agent) in acting as agent
under the Finance Documents (unless it has been reimbursed by an Obligor
pursuant to a Finance Document). |
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(b) |
Each of the Finance Parties shall (in the proportion that
the Liabilities due to it bears to the aggregate of the Liabilities due to
all the Finance Parties for the time being (or, if the Liabilities due to each of those Finance Parties
is zero, immediately prior to their being reduced to zero)), indemnify the
Security Agent and every Receiver and any Delegate, within three Business
Days of demand, against any cost, loss or liability incurred by any of
them (otherwise than by reason of the relevant Security Agent's,
Receiver's or Delegate's gross negligence or wilful misconduct) in acting
as Security Agent, Receiver or Delegate under the Finance Documents
(unless the relevant Security Agent, Receiver or Delegate has been
reimbursed by an Obligor pursuant to a Finance Document), including making
any payment under or in respect of any funding request under the HWDLP
Partnership Agreement. |
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(c) |
For the purposes only of paragraph (b) above, to the
extent that any hedging transaction under a Hedging Agreement has not been
terminated or closed out, the Hedging Liabilities due to the Hedging
Counterparty in respect of that hedging transaction will be deemed to
be: |
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(i) |
if the relevant Hedging Agreement is based on an ISDA
Master Agreement, the amount, if any, which would be payable to it under
that Hedging Agreement in respect of those hedging transactions, if the
date on which the calculation is made was deemed to be an Early
Termination Date (as defined in the relevant ISDA Master Agreement) for
which the relevant Obligor is the Defaulting Party (as defined in the
relevant ISDA Master Agreement); or |
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(ii) |
if the relevant Hedging Agreement is not based on an ISDA
Master Agreement, the amount, if any, which would be payable to it under
that Hedging Agreement in respect of that hedging transaction, if the date
on which the calculation is made was deemed to be the date on which an
event similar in meaning and effect (under that Hedging Agreement) to an
Early Termination Date (as defined in any ISDA Master Agreement) occurred
under that Hedging Agreement for which the relevant Obligor is in a
position similar in meaning and effect (under that Hedging Agreement) to
that of a Defaulting Party (under and as defined in the same ISDA Master
Agreement), |
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that amount, in each case, to be certified by the
relevant Hedging Counterparty and as calculated in accordance with the
relevant Hedging Agreement. |
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(d) |
HWDC shall, within three Business Days of demand,
indemnify each Lender and/or the Hedging Counterparty as the case may be,
against, and reimburse to each Lender and the Hedging Counterparty, as the
case may be, the amount of, any payment made by it pursuant to paragraphs
(a) or (b) above. |
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26.11 |
Resignation of the Facility Agent or the Security
Agent |
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(a) |
The Facility Agent or the Security Agent may resign and
appoint one of its Affiliates acting through an office as successor by
giving notice to other Finance Parties and in and HWDC. |
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(b) |
Alternatively: |
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(i) |
the Facility Agent may resign by giving 30 days' notice
to the other Finance Parties and HWDC, in which case the Majority Lenders
(after consultation with HWDC) may appoint a successor Facility Agent;
and |
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(ii) |
the Security Agent may resign by giving 30 days' notice
to the other Finance Parties and HWDC, in which case all Lenders and the
Hedging Counterparty (after consultation with HWDC) may appoint a
successor Security Agent. |
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(c) |
If the Majority Lenders have not appointed a successor
Facility Agent or, as the case may be, a successor Security Agent in
accordance with paragraph (b) above within 20 days after notice of
resignation was given, the retiring Facility Agent or, as the case may be,
the Security Agent (after consultation with HWDC) may appoint a successor
Facility Agent or Security Agent. |
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(d) |
The retiring Agent or Security Agent shall, at its own
cost, make available to its successor such documents and records and
provide such assistance as its successor may reasonably request for the
purposes of performing its functions as agent or Security Agent under the
Finance Documents. |
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(e) |
The Facility Agent's resignation notice shall only take
effect upon: |
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(i) |
the appointment of a successor; and |
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(ii) |
the receipt by the Facility Agent of written confirmation
from the successor (in form and substance satisfactory to the Facility
Agent) that the successor agrees to be bound by the provisions of the
Finance Documents and all other related agreements to which the Facility
Agent is a party in its capacity as agent under the Finance
Documents. |
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(f) |
The Security Agent's resignation notice shall only take
effect upon: |
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(i) |
the appointment of a successor; |
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(ii) |
the receipt by the Facility Agent and the Hedging
Counterparty of written confirmation from the successor (in form and
substance satisfactory to the Facility Agent and the Hedging
Counterparty), together with such other evidence as the Facility Agent and
the Hedging Counterparty may require, that the successor agrees to be
bound by the provisions of the Finance Documents and all other related
agreements to which the Security Agent is a party in its capacity as
Security Agent under the Finance Documents; and |
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(iii) |
the receipt by the Facility Agent and the Hedging
Counterparty of written confirmation from the Security Agent and the
successor (in form and substance satisfactory to the Facility Agent and
the Hedging Counterparty) that all the Security expressed to be created by
or pursuant to, or to be evidenced in, the Security Documents in favour of
the Security Agent and all the Security Agent's rights, benefits and
obligations as Security Agent under the Finance Documents have been
transferred to the successor. |
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(g) |
Upon any such resignation notice taking effect, the
retiring Facility Agent or Security Agent shall be discharged from any
further obligation in respect of the Finance Documents but shall remain
entitled to the benefit of this Clause 26 and Clause 27 (Security
Provisions). Its successor and each of the other Parties shall have
the same rights and obligations amongst themselves as they would have had
if such successor had been an original Party. |
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(h) |
After consultation with HWDC, the Majority Lenders (and,
in the case of the Security Agent, the Hedging Counterparty) may, by
notice to the Facility Agent or, as the case may be, through the Facility
Agent to the Security Agent, require it to resign in accordance with
paragraph (b) above. In this event, the Facility Agent or, as the case may
be, the Security Agent shall resign in accordance with paragraph (b)
above. |
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(i) |
The Parties agree, if requested to do so, to execute
whatever documents may be reasonably required to effect such a change of
Facility Agent or Security Agent. |
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Such a request may be made, in the case of an appointment
under paragraph (a) or paragraph (c) above, by the retiring Facility Agent
or Security Agent or, in the case of an appointment under paragraph (b)
above, by the Majority Lenders. |
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26.12 |
Confidentiality |
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(a) |
In acting as agent under the Finance Documents, the
Facility Agent and in acting as Security Agent under the Finance
Documents, the Security Agent shall be regarded as acting through its
agency or other appropriate division which shall in each case be treated
as a separate entity from any other of its divisions or
departments. |
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(b) |
If information is received by another division or
department of the Facility Agent or, as the case may be, the Security
Agent, it may be treated as confidential to that division or department
and the Facility Agent or, as the case may be, the Security Agent shall
not be deemed to have notice of it. |
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26.13 |
Relationship with the Finance Parties |
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(a) |
Each of the Facility Agent and the Security Agent, as the
case may be, may treat the person shown in its records as Lender or as the
Hedging Counterparty at the opening of business (in the place of the
Facility Agent's or Security Agent's principal office as notified to the
Finance Parties from time to time) as the Lender acting through its
Facility Office or the Hedging Counterparty (as applicable): |
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(i) |
entitled to or liable for any payment due under any
Finance Document on that day; and |
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(ii) |
entitled to receive and act upon any notice, request,
document or communication or make any decision or determination under any
Finance Document made or delivered on that day, |
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unless it has received not less than five Business Days'
prior notice from that Lender or the Hedging Counterparty to the contrary
in accordance with the terms of this Agreement. |
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(b) |
Each Lender shall supply the Facility Agent with any
information required by the Facility Agent in order to calculate the
Mandatory Cost in accordance with Schedule 4 (Mandatory Cost
formulae). |
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(c) |
Any Lender may by notice to the Facility Agent appoint a
person to receive on its behalf all notices, communications, information
and documents to be made or despatched to that Lender under the Finance
Documents. Such notice shall contain the address, fax number and
electronic mail address and/or any other information required to enable
the sending and receipt of information by that means (and, in each case,
the department or officer, if any, for whose attention communication is to
be made) and be treated as a notification of a substitute address, fax
number, electronic mail address, department and officer by that Lender for
the purposes of Clause 32.2 (Addresses) and the Facility Agent
shall be entitled to treat such person as the person entitled to receive
all such notices, communications, information and documents as though that
person were that Lender. The Facility Agent shall notify the Security
Agent of any such appointment described in the preceding
sentence. |
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(d) |
Neither the Facility Agent nor the Security Agent shall
have any obligation or liability to any Finance Party or any other person
as a result of any failure by any Obligor or any other person to perform
any of its obligations under the Finance
Documents. |
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26.14 |
Credit appraisal by the Finance Parties |
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Without affecting the responsibility of any Obligor for
information supplied by it or on its behalf in connection with any Finance
Document, each Lender confirms to the Facility Agent, the Security Agent
and the Arranger that it has been, and will continue to be, solely
responsible for making its own independent appraisal and investigation of
all risks arising under or in connection with any Finance Document
including but not limited to: |
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(a) |
the financial condition, status and nature of each member
of the Group, the Diavik Joint Venture, the Manager, Kinross or the Diavik
Diamond Mine; |
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(b) |
the legality, validity, effectiveness, adequacy or
enforceability of any Finance Document and any other agreement, Security,
arrangement or document entered into, made or executed in anticipation of,
under or in connection with any Finance Document; |
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(c) |
whether that Lender or the Hedging Counterparty has
recourse, and the nature and extent of that recourse, against any Party or
any of its respective assets under or in connection with any Finance
Document, the transactions contemplated by the Finance Documents or any
other agreement, Security, arrangement or document entered into, made or
executed in anticipation of, under or in connection with any Finance
Document; |
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(d) |
the ownership, value or sufficiency of any of the Charged
Assets, the adequacy or priority of any Security expressed to be created
by or pursuant to, or to be evidenced in, any Security Document, the right
or title of any person in or to any of the Charged Assets or the existence
of any Security affecting the same; |
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(e) |
the adequacy, accuracy and/or completeness of the
Information Memorandum, if any, and any other information provided by the
Facility Agent, the Security Agent, any Party or any other person under or
in connection with any Finance Document, the transactions contemplated by
the Finance Documents or any other agreement, Security, arrangement or
document entered into, made or executed in anticipation of, under or in
connection with any Finance Document; and |
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(f) |
the adequacy, accuracy and/or completeness of any
communication delivered to it under any of the Finance Documents, any
legal or other opinions, reports, valuations, certificates, appraisals or
other documents delivered or made or required to be delivered or made at
any time in connection with any of the Finance Documents or any other
report or other document, statement or information circulated, delivered
or made, whether orally or otherwise and whether before, on or after the
date of this Agreement, |
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and each Finance Party has not relied upon any
representation or statement made by the Facility Agent, the Security Agent
or the Arranger as being an inducement to enter into any Finance
Document. |
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26.15 |
Reference Banks |
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If a Reference Bank (or, if a Reference Bank is not a
Lender, the Lender of which it is an Affiliate) ceases to be a Lender, the
Facility Agent shall (in consultation with HWDC) appoint another Lender or
an Affiliate of a Lender to replace that Reference
Bank. |
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26.16 |
Management Time of the Facility Agent and the Security
Agent |
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Any amount payable to the Facility Agent or the Security
Agent under Clause 15.3 (Indemnity to the Facility Agent and the
Security Agent), Clause 17 (Costs and Expenses) and Clause
26.10 (Lenders' Indemnity to the Facility Agent and the Security
Agent) shall include the cost of utilising its management time or
other resources and will be calculated on the basis of such reasonable
daily or hourly rates as it may notify to HWDC and the Lenders, and is in
addition to any fee paid or payable to it under Clause 12
(Fees). |
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26.17 |
Deduction from Amounts Payable by the Facility Agent
or the Security Agent |
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If any Party owes an amount to the Facility Agent or the
Security Agent under the Finance Documents the Facility Agent or, as the
case may be, the Security Agent may, after giving notice to that Party,
deduct an amount not exceeding that amount from any payment to that Party
which the Facility Agent or, as the case may be, the Security Agent would
otherwise be obliged to make under the Finance Documents and apply the
amount deducted in or towards satisfaction of the amount owed. For the
purposes of the Finance Documents that Party shall be regarded as having
received any amount so deducted. |
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26.18 |
Change of Office |
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Either the Facility Agent or the Security Agent may at
any time in its sole discretion by notice to each Finance Party and HWDC
designate a different office from which its duties as agent or, as the
case may be, Security Agent under the Finance Documents will be performed
from the date of notification. |
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26.19 |
Hedging Counterparty to Notify |
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(a) |
If an Obligor defaults on any payment due under a Hedging
Agreement or any other Event of Default (as defined in any ISDA Master
Agreement, or the equivalent term in any Hedging Agreement not based on an
ISDA Master Agreement) or Termination Event (as defined in any ISDA Master
Agreement, or the equivalent term in any Hedging Agreement not based on an
ISDA Master Agreement) occurs in respect of an Obligor, the Hedge
Counterparty which is party to that Hedging Agreement shall, upon becoming
aware of that default, notify the Security Agent and the Facility
Agent. |
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(b) |
If the Hedging Counterparty terminates or closes-out, in
whole or in part, any hedging transaction under any Hedging Agreement it
shall notify the Security Agent and the Facility Agent. |
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27. |
SECURITY PROVISIONS |
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27.1 |
Definitions |
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In this Clause 27: |
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"Deductions" means: |
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(a) |
all sums payable to any Receiver; |
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(b) |
all sums which the Security Agent is required to pay to
any person in priority to, or before making any distribution to, the
Finance Parties; and |
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(c) |
insurance proceeds required to be applied in repairing,
replacing, restoring or rebuilding any Charged Assets which have been
damaged or destroyed. |
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"Proceeds" means all receipts or
recoveries by the Security Agent in relation to the Rights and all other moneys
which are by the terms of any of the Finance Documents to be applied by the
Security Agent in accordance with Clause 27.5 (Application of Proceeds),
after deducting (without double counting) the Deductions and including the
proceeds (after deducting commissions and expenses) of any permitted currency
conversion,
and the "Proceeds" attributable
to any particular Obligor means all such receipts or recoveries in relation to
the Rights relating to that Obligor and all other such moneys which are to be so
applied on account of, or in connection with, the obligations of that Obligor
under the Finance Documents, after deducting (without double counting) the
Deductions insofar as they relate to that Obligor or those Rights or obligations
and including the proceeds (after deducting commissions and expenses) of any
permitted currency conversion,
but not including in any such case any
amounts paid to the Security Agent in accordance with Clause 29.5 (c)(vi)(A)
(Exceptions).
"Receiver" means a receiver
and/or manager, administrative receiver, trustee or similar officer appointed
for the purpose of realising, getting in or disposing of any of the Charged
Assets.
"Rights" means:
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the Transaction Security; |
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(b) |
all contractual rights in favour of the Security Agent
(other than for its sole benefit) under or pursuant to any Finance
Document; and |
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(c) |
all rights vested by law in the Security Agent by virtue
of its holding the Transaction Security, |
and the "Rights" relating to any
particular Obligor means:
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(d) |
the Transaction Security created by, or existing over the
assets of, that Obligor; |
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(e) |
all contractual rights falling within paragraph (b) above
and granted by that Obligor; and |
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(f) |
all rights vested by law in the Security Agent by virtue
of its holding the Transaction Security specified in paragraph (d)
above. |
"Secured Property" means the
Rights and the Proceeds.
"Transaction Security" means any
Security for all or any part of the obligations of any Obligor under any Finance
Documents expressed to be created by or pursuant to, or to be evidenced in, any
Security Document.
27.2 |
Security for Finance Parties |
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The Security Agent and each other Finance Party agree
that the Security Agent, shall hold the Secured Property as agent for and
on behalf of the Finance Parties on the terms and conditions contained in
the Finance Documents. |
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27.3 |
Directions and Default Procedure |
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(a) |
Each of the Facility Agent and the Security Agent shall
as soon as reasonably practicable after becoming aware of the same notify
the other of: |
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(i) |
any Default arising under Clause 23.1 (Non-payment and
other obligations) of which it has actual knowledge; and |
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(ii) |
any other Default of which it has received notice (other
than from the other) in its capacity as agent or, as the case may be, as
Security Agent under the Finance Documents. |
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(b) |
None of the Finance Parties (other than the Security
Agent) shall have any independent power to enforce the Security Documents
or any of the Transaction Security or to exercise any rights, powers,
authorities or discretions or to grant any consents or releases under or
pursuant to the Security Documents or otherwise have direct recourse to
the Transaction Security except through the Security Agent. |
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(c) |
Subject to (i) Clause 26.7(d) (Majority Lenders' and
Facility Agent's Instructions), (ii) compliance by the other Parties
with paragraphs (f) and (g) of Clause 27.12 (Relationship with the
Finance Parties) and (iii) the provisions of paragraph (g) below, the
Security Agent shall take such action (including, without limitation, the
exercise of all rights, powers, authorities and discretions and the
granting of consents or releases) or, as the case may be, refrain from
taking such action under or pursuant to the Finance Documents as the
Facility Agent shall specifically direct the Security Agent in writing
(and so that only the Facility Agent shall be entitled to give any such
directions to the Security Agent). The provisions of the preceding
sentence of this paragraph (c) shall not apply where the terms of the
Finance Documents entitle the Security Agent to take, or refrain from
taking, any action and in any such case the Security Agent shall be
entitled to take or, as the case may be, refrain from taking such action
without reference to (and notwithstanding any contrary direction from) the
Facility Agent. |
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(d) |
Subject to paragraph (c) above, at any time after the
Security Documents have become enforceable in accordance with their
respective terms, the Security Agent shall, acting on the written
directions of the Facility Agent, exercise all powers of enforcement of
the Transaction Security in accordance with such directions but not
otherwise. |
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(e) |
The Security Agent shall not be required to take any
action or exercise any of the rights, powers, authorities or discretions
under or pursuant to the Finance Documents beyond those which the Facility
Agent shall specifically instruct the Security Agent in writing to take or
exercise and then only to the extent stated in the Facility Agent's
specific instructions in writing. |
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(f) |
The Security Agent shall at any time after the occurrence
of a Default be entitled (but not obliged) to request instructions from
the Facility Agent as to whether it should endeavour to enforce any of the
rights, powers, authorities or discretions under or pursuant to the
Finance Documents and/or as to the manner in which it should endeavour to
do so, and to request the Facility Agent to convene on reasonable notice a
meeting of the Finance Parties to discuss such matters. The Security Agent
shall have no obligation to ensure that the Facility Agent convenes such a
meeting or that any Finance Party attends such a meeting. |
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(g) |
The Security Agent shall not be obliged to act or refrain
from exercising any right, power authority or discretion vested in it as
Security Agent, in accordance with any instructions given to it by the Facility Agent or any
other person in respect of any provision or matter which protects the
Security Agent's own position in its personal capacity as apposed to the
role of Security Agent. |
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27.4 |
Payments to the Security Agent |
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Notwithstanding any other provision of any Finance
Document, at any time after any of the Transaction Security becomes
enforceable, the Security Agent may require the Facility Agent to pay all
sums received or recovered by it from any Obligor under any Finance
Document to the Security Agent or as it may direct for application in
accordance with the terms of the Finance Documents. |
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27.5 |
Application of Proceeds |
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(a) |
All Proceeds attributable to any Obligor shall, to the
extent permitted by all applicable laws, be applied by the Security Agent
in the following order of priority: |
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(i) |
first, in or towards payment of any amount then
due and payable by that Obligor to the Security Agent or Delegate under
the Finance Documents; |
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(ii) |
secondly, if that Obligor is HWDC or HWDM, in or
towards satisfying its obligations (if any) to the Finance Parties under
or in relation to 26.10(b) (Indemnity to the Facility Agent and the
Security Agent), insofar as such obligations arise as a result of a
payment made by or any of them to the Security Agent under Clause 26.10(b)
(Indemnity to the Facility Agent and the Security Agent), pro
rata to the amounts owed to each of them under Clause 26.10(b)
(Indemnity to the Facility Agent and the Security Agent); |
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(iii) |
thirdly, in payment to: |
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(A) |
the Facility Agent on its own behalf and on behalf of the
Arranger and the Lenders; |
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(B) |
and the Hedge Counterparty |
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for application towards the discharge of: |
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(C) |
the Liabilities owed to each of the Facility Agent,
Arranger and each of the Lenders (in accordance with the terms of the
Finance Documents); and |
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(D) |
the Hedging Liabilities (on a pro rata basis
between the Hedging Liabilities of each Hedging Counterparty (if
applicable)); |
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on a pro rata basis between paragraph (C) above
and paragraph (D); |
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(iv) |
fourthly, if such Obligor is under no further
actual or contingent liability under the Finance Documents, in payment to
any person whom the Security Agent is obliged to pay in priority to that
Obligor, to the extent it is so obliged; and |
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(v) |
fifthly, in payment to that Obligor. |
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(b) |
Before making any application under paragraph (a) above
the Security Agent may: |
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(i) |
convert any Proceeds attributable to any Obligor from
their existing currency of denomination into the currency or currencies
(if different) of sums then outstanding from that Obligor under the Finance Documents
(any such conversion from one currency to another to be made at the spot
rate for the purchase of that other currency with the first-mentioned
currency reasonably determined by the Security Agent); |
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(ii) |
place any such Proceeds to the credit of a proceeds or a
suspense or any other account or accounts (howsoever named) and hold the
same (whether or not set aside by way of reserve in accordance with
paragraph (b)(iii) below) in such account or accounts for any
period; |
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(iii) |
set aside in any such account, by way of reserve, amounts
required to meet: |
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(A) |
any amount which may become due and payable by that
Obligor to the Security Agent under the Finance Documents; |
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(B) |
all such Deductions insofar as they relate to that
Obligor, the Rights relating to that Obligor and the obligations of that
Obligor under the Finance Documents which will or may become payable and
which will or may not be discharged out of future receipts or recoveries
pursuant to, or upon enforcement of, any of the Rights relating to that
Obligor; and |
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(C) |
any other liability which may arise. |
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(c) |
The fact that the Security Agent may apply any Proceeds
in accordance with paragraph (a) above will not prevent any subsequent
exercise of its powers under paragraph (b) above. |
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(d) |
The fact that the Security Agent may apply any Proceeds
in accordance with paragraph (a)(ii) or paragraph (a)(iii) above, or
determine that any Obligor is under no further actual or contingent
liability under the Finance Documents and apply any Proceeds in accordance
with paragraph (a)(iv) or paragraph (a)(v) above, will not prevent the
Security Agent from applying any further Proceeds in the order set out in
paragraph (a) above. |
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(e) |
The Security Agent shall be entitled to make the
deductions or withholdings (on account of Tax or otherwise) from payments
under this Agreement which it is required by any applicable law to make,
and to pay all Taxes which may be assessed against it and/or all expenses
which may be incurred by it in respect of any of the Secured Property, in
respect of anything done by it in its capacity as Security Agent under the
Finance Documents or otherwise by virtue of such capacity. Each of the
Obligors agrees that its obligations under the Finance Documents shall
only be discharged by virtue of receipt or recovery by the Security Agent
of Proceeds, or of applications made by the Security Agent under this
Agreement, to the extent that the ultimate recipient actually receives
moneys (whether directly or through the Facility Agent or otherwise) from
the Security Agent under this Agreement which are to be applied in or
towards the discharge of those obligations. |
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(f) |
If any of the Obligors receives any sum from any person
which, pursuant to the Finance Documents, should have been paid to the
Security Agent, such sum shall be held on trust for the Finance Parties
and shall forthwith be paid over to the Security Agent for application in
accordance with this Clause 27.5. |
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(g) |
The Security Agent shall be entitled to pay any
Deductions to the person or persons entitled to the
same. |
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(h) |
The Security Agent shall have no duty or responsibility,
either initially or on a continuing basis, to investigate the application
by any other person of any sums distributed pursuant to this Clause
27.5. |
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27.6 |
Acceptance of Obligors' Right and Title |
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The Security Agent shall be entitled to accept without
enquiry, requisition or objection such right and title as each of the
Obligors may have to any of the Charged Assets and shall not be bound or
concerned to investigate or make any enquiry into the right or title of
such Obligor to any of the Charged Assets or, without prejudice to the
foregoing, to require such Obligor to remedy any defect in its right or
title as aforesaid. |
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27.7 |
Defects in Transaction Security |
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The Security Agent shall not be liable for any failure or
omission: |
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(a) |
to require the deposit with it of any deed or document
certifying, representing or constituting the title of any of the Obligors
to any of the Charged Assets; |
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(b) |
to obtain any Authorisation or other authority for the
execution, delivery, validity, legality, adequacy, performance,
enforceability or admissibility in evidence of any of the Finance
Documents; |
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(c) |
to register or notify any of the Transaction Security in
accordance with the provisions of any of the documents of title of any of
the Obligors; |
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(d) |
to effect or procure registration of or otherwise protect
any of the Transaction Security by registering the same under any
applicable registration laws in any territory; |
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(e) |
to take, or to require any of the Obligors to take, any
steps to render the Transaction Security effective or to secure the
creation of any ancillary charge under the laws of any jurisdiction;
or |
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(f) |
to require any further assurances in relation to any of
the Security Documents. |
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27.8 |
No Duty to Collect Payments |
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The Security Agent shall not have any duty: |
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(a) |
to ensure that any payment or other financial benefit in
respect of any of the Charged Assets is duly and punctually paid, received
or collected; or |
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(b) |
to ensure the taking up of any (or any offer of any)
stocks, shares, rights, moneys or other property accruing or offered at
any time by way of interest, dividend, redemption, bonus, rights,
preference, option, warrant or otherwise in respect of any of the Charged
Assets. |
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27.9 |
Deposit of Documents |
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The Security Agent shall be at liberty to place any of
the Finance Documents and any other instruments, documents or deeds
delivered to it pursuant to or in connection with any of the Finance
Documents for the time being in its possession in any safe deposit, safe
or receptacle or with any bank (including the Security Agent or the
Facility Agent or any of the other Finance Parties), any company whose
business includes undertaking the safe custody of documents or any firm of
lawyers of good repute and may make arrangements for allowing the relevant
Obligor or its lawyers or auditors access to or possession of such
Finance Documents, instruments, documents and deeds when
necessary and shall not be responsible for any loss incurred in connection
with any such deposit, access or possession. |
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27.10 |
Investments |
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Unless provided otherwise in any Finance Document, all
moneys which are received by the Security Agent as agent for and on behalf
of the Finance Parties in relation to any of the Finance Documents may be
invested in the name of the Security Agent or any nominee or under the
control of the Security Agent in any investment for the time being
authorised by English law for the investment of such money or in any other
investments, and if not otherwise invested such moneys may be placed on
deposit in the name of the Security Agent or any nominee or under the
control of the Security Agent at any bank or institution (including the
Security Agent) and upon any terms and in any currency. The Security Agent
may at any time change or transfer any such investments to or into other
such investments or convert any moneys so deposited into any other
currency. The Security Agent shall not be responsible for any loss or any
depreciation in the value of any such investment or deposit unless
directly caused by its gross negligence or wilful misconduct. |
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27.11 |
Insurance |
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Without prejudice to the provisions of any of the Finance
Documents, the Security Agent shall not be under any obligation to insure
any property or to require any other person to maintain any such insurance
and shall not be responsible for any loss which may be suffered by any
person as a result of the lack of or inadequacy or insufficiency of any
such insurance. Where the Security Agent is named on any insurance policy
as an insured party, it shall not be responsible for any loss which may be
suffered by reason of, directly or indirectly, its failure to notify the
insurers of any material fact relating to the risk assumed by such
insurers or any other information of any kind, unless the Facility Agent
shall have requested it to do so in writing and the Security Agent shall
have failed to do so within 14 days thereafter. |
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27.12 |
Relationship with the Finance Parties |
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(a) |
The Security Agent shall be entitled to, and shall, carry
out all dealings under or in relation to the Finance Documents (excluding
for this purpose the Hedging Agreement) with the other Finance Parties
(excluding for this purpose the Hedging Counterparty) through the Facility
Agent. |
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(b) |
The Security Agent shall be entitled to rely on the
Facility Agent's certificate or the Hedging Counterparty's Certificate, as
the case may be, as to all amounts which are owing, actually or
contingently, at any time by any Obligor to all or any of the Finance
Parties or the Hedging Counterparty (other than the Security Agent in its
capacity as such) under the Finance Documents, whether or not
due. |
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(c) |
The Security Agent shall be at liberty to accept as
sufficient evidence a certificate signed or purported to be signed on
behalf of the Facility Agent to the effect that any particular dealing,
transaction, step or thing is, in the opinion of the Facility Agent,
suitable or expedient or as to any other fact or matter upon which the
Security Agent may require to be satisfied and the Security Agent shall in
no way be bound to call for further evidence or be responsible for any
loss that may be occasioned by acting on any such certificate. |
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(d) |
The Security Agent shall be entitled to assume that any
instructions, authorities or certificates received by it from the Facility
Agent or the Hedging Counterparty under or pursuant to the Finance
Documents are: |
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(i) |
given in accordance with the provisions of the Finance
Documents; |
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(ii) |
given, where appropriate, with any prior approval or
consent required under the Finance Documents; and |
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(iii) |
given, where appropriate, in accordance with directions
of persons or the provisions of agreements by which the Facility Agent is
bound, |
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and the Security Agent shall not be liable to any other
person for any action taken or omitted under or in connection with the
Finance Documents in accordance with any such instructions, authorities or
certificates unless directly caused by its gross negligence or wilful
misconduct. Without prejudice to the generality of the foregoing, it is
expressly agreed that the Security Agent shall be entitled to assume that,
and shall have no duty or responsibility to investigate whether, the
Facility Agent has obtained any prior approval or consent (whether from
any Lender or the Majority Lenders or any other person or group of
persons) which the Facility Agent is required to obtain before giving any
such instruction, authority or certificate to the Security
Agent. |
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(e) |
The Security Agent shall be entitled (and bound) to
assume that the identity of the Facility Agent has not changed from the
person named as such in this Agreement or, as the case may be, last
notified to the Security Agent under this paragraph (e) unless and until
it is notified otherwise by the retiring such Agent and its successor in
writing together with the date from which the change becomes effective.
The Security Agent shall be entitled to rely upon and assume that any such
notification is authentic and shall not be liable for any loss occasioned
by so assuming or relying. |
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(f) |
Each of the Facility Agent and the Hedging Counterparty
shall promptly notify the Security Agent of the contents of any
communication on any matter concerning the Transaction Security between it
and any Obligor or which it receives pursuant to Clause 32.3(c)
(Delivery). |
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(g) |
The Facility Agent shall furnish to the Security Agent,
and each of the Arranger, the Lenders and the Obligors shall furnish to
the Facility Agent, for transmission to the Security Agent, such
information as the Security Agent may reasonably specify (to or through
the Facility Agent) as being necessary or desirable for the purpose of
enabling the Security Agent to perform its functions as Security Agent
under the Finance Documents. |
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(h) |
Each of the Finance Parties irrevocably authorises the
Security Agent to enter into each and any Security Document as agent for
and on behalf of such Finance Party. |
27.13 |
Compliance with Law |
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Notwithstanding anything else contained in the Finance
Documents, the Security Agent may refrain from doing anything which would
or might in its opinion be contrary to any relevant law of any
jurisdiction or any relevant directive or regulation of any agency of any
state or which would or might otherwise render it liable to any person,
and may do anything which is, in its opinion, necessary to comply with any
such law, directive or regulation. |
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27.14 |
Indemnity |
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(a) |
Each Obligor irrevocably and unconditionally jointly and
severally agrees to indemnify the Security Agent and every attorney, agent
or other person appointed by the Security Agent under any of the Finance
Documents immediately on demand against all claims, demands, liabilities,
proceedings, costs, fees, charges, losses and expenses incurred by the
Security Agent or any such appointee in relation to or arising out of the
taking or holding of any of the Transaction Security, the exercise
or purported exercise of any of the rights, powers,
authorities and discretions vested in the Security Agent or any such
appointee or any other matter or thing done or omitted to be done in
connection with any of the Finance Documents or pursuant to any law or
regulation (other than any of the same incurred or arising as a result of
its or any such appointee's gross negligence or wilful
misconduct). |
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(b) |
The Security Agent may, whether or not it has made a
demand under paragraph (a) above, indemnify itself and every such
appointee out of the Secured Property against all claims, demands,
liabilities, proceedings, costs, fees, charges, losses and expenses
referred to in paragraph (a) above (other than any incurred or arising as
a result of its or any such appointee's gross negligence or wilful
misconduct). |
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27.15 |
Delegation |
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(a) |
The Security Agent, any Receiver or any Delegate may, at
any time delegate by power of attorney or otherwise to any person or
persons, or fluctuating body of persons, for any period, all or any of the
rights, powers, authorities and discretions vested in it by any of the
Finance Documents. Any such delegation may be made upon such terms
(including the power to sub-delegate) and subject to such conditions and
regulations as the Security Agent, that Receiver or that Delegate may
think fit in the interests of the Finance Parties. |
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(b) |
The Security Agent shall not be bound to supervise, or be
in any way responsible for any loss incurred by reason of any misconduct
or default on the part of, any such delegate or sub-delegate. |
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27.16 |
Appointment of Additional Security
Agents |
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(a) |
The Security Agent may at any time appoint (and
subsequently remove) any person to act either as a separate security agent
or as a co-security agent jointly with it: |
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(i) |
if it considers such appointment to be in the interests
of the Finance Parties; |
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(ii) |
for the purposes of conforming to any legal requirements,
restrictions or conditions in any jurisdiction in which any particular act
or acts is or are to be performed; or |
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(iii) |
for the purposes of obtaining a judgment in any
jurisdiction or the enforcement in any jurisdiction of either a judgment
already obtained or any of the provisions of the Finance
Documents, |
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and the Security Agent shall give prior notice to HWDC
and the Facility Agent of any such appointment. |
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(b) |
Any such appointment shall only take effect upon the
receipt by the Facility Agent of written confirmation from the appointee
(in form and substance satisfactory to the Facility Agent) that the
appointee agrees to be bound by the provisions of the Finance Documents
and all other related agreements to which the Security Agent is a party in
its capacity as Security Agent under the Finance Documents. |
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(c) |
Any person so appointed shall have such rights, powers,
authorities and discretions and such duties and obligations as shall be
conferred or imposed on such person by the instrument of appointment and
shall, subject to any limitation contained in such instrument of
appointment, have the same benefits under this Agreement (other than
Clause 12.4 (Security Agent Fee) and this Clause 27.16) as the
Security Agent. |
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(d) |
The Security Agent shall have power in like manner to
remove any person so appointed. |
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(e) |
Such remuneration as the Security Agent may pay to any
person so appointed, and any costs, charges and expenses (together with
any applicable VAT) incurred by such person in performing its functions
pursuant to such appointment, shall be treated as costs, charges and
expenses incurred by the Security Agent in performing its functions as
Security Agent under the Finance Documents. |
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(f) |
The Security Agent shall not be bound to supervise, or be
in any way responsible for any loss incurred by reason of any misconduct
or default on the part of, any such Security Agent. |
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27.17 |
Amendments by Security Agent |
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(a) |
Unless the provisions of any Finance Document expressly
provide otherwise, the Security Agent may, if authorised by the Facility
Agent, amend or vary the terms of, waive breaches of or defaults under or
otherwise excuse performance of any provision of, or grant consents under,
any of the Security Documents, any such amendment, variation, waiver or
consent so authorised to be binding on all Parties and the Security Agent
to be under no liability whatsoever in respect thereof. |
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(b) |
Subject to paragraph (c) below, the Facility Agent may,
with the prior approval of the Majority Lenders, authorise the Security
Agent to take any action contemplated by paragraph (a) above. |
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(c) |
The Facility Agent may not authorise the Security Agent
to effect: |
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(i) |
any amendment of any Security Document which would affect
the nature or the scope of any of the Charged Assets or any of the Secured
Property or the manner in which any Proceeds are to be distributed by the
Security Agent; |
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(ii) |
the release of any of the Transaction Security or of any
of the Charged Assets from the Transaction Security; or |
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(iii) |
any change in this Clause 27.17, |
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without the prior consent of all the Finance
Parties. |
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(d) |
Paragraphs (a), (b) and (c) above are without prejudice
to: |
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(i) |
any release permitted by Clause 27.18 (Releases)
or Clause 27.22 (Release of Transaction Security); or |
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(ii) |
any amendment of any Security Document insofar as the
same is necessary in order to effect such release. |
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27.18 |
Releases |
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The Security Agent shall release Charged Assets from the
Transaction Security where such Charged Assets are: |
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(a) |
disposed of pursuant to a disposal which is otherwise
permitted by the terms of the Finance Documents (and the Facility has
confirmed to the Security Agent that this is the case);
and |
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(b) |
execute any documents (including, but not limited to,
formal releases and certificates of non-crystallisation of floating
charges) and do any things insofar as the same are necessary in order to
effect any release permitted by this Clause 27.18 or Clause 27.22
(Release of Transaction Security). |
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27.19 |
Waiver |
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Each of the Obligors hereby waives, to the extent
permitted under applicable law, all rights it may otherwise have to
require that the Transaction Security be enforced in any particular order
or manner or that any sum received or recovered from any person, or by
virtue of the enforcement of any of the Transaction Security or any other
encumbrance of any nature over any assets or revenues, which is capable of
being applied in or towards discharge of any of the obligations of the
Obligors under the Finance Documents, is so applied, whether on receipt or
recovery or at any time thereafter. |
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27.20 |
Powers Conferred by General Law |
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The rights, powers, authorities and discretions conferred
upon the Security Agent by this Agreement and the other Finance Documents
shall be in addition to any which may from time to time be vested in the
Security Agent by the general law or otherwise. |
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27.21 |
Perpetuity Period |
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The perpetuity period under the rule against
perpetuities, if applicable to this Agreement, shall be the period of one
hundred and twenty-five years from the date of this Agreement. |
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27.22 |
Release of Transaction Security |
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If the Facility Agent, with the approval of the all of
the Lenders and the Hedging Counterparty, shall determine that all the
obligations of all the Obligors under the Finance Documents have been
fully and finally discharged and that none of the Finance Parties is under
any commitment, obligation or liability (whether actual or contingent) to
make Loans or provide other financial accommodation under or pursuant to
any Finance Document to any Obligor, it shall notify the Security Agent of
such determination and approval. Upon such notification the Security Agent
shall release, without recourse or warranty, all of the Transaction
Security then held by it, whereupon each of the Security Agent, the
Facility Agent, the other Finance Parties and the Obligors shall be
released from its obligations under this Agreement (save for those which
arose prior to such release). |
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27.23 |
Division separate |
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(a) |
In acting as security agent for the Secured Parties, the
Security Agent shall be regarded as acting through its security agency
division which shall be treated as a separate entity from any of its other
divisions or departments. |
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(b) |
If information is received by another division or
department of the Security Agent, it may be treated as confidential to
that division or department and the Security Agent shall not be deemed to
have notice of it. |
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27.24 |
Disapplication |
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Section 1 of the Trustee Act 2000 shall not apply to the
duties of the Security Agent in relation to any trust constituted by this
Agreement. Where there are any inconsistencies between the Trustee Act
1925 or the Trustee Act 2000 and the provisions of this Agreement, the
provisions of this Agreement shall, to the extent allowed by law, prevail
and, in the case of any inconsistency with the Trustee Act 2000, the
provisions of this Agreement shall constitute a restriction or exclusion
for the purposes of that Act. |
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28. |
CONDUCT OF BUSINESS BY THE FINANCE
PARTIES |
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No provision of this Agreement will: |
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(a) |
interfere with the right of any Finance Party to arrange
its affairs (tax or otherwise) in whatever manner it thinks fit; |
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(b) |
oblige any Finance Party to investigate or claim any
credit, relief, remission or repayment available to it or the extent,
order and manner of any claim; or |
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(c) |
oblige any Finance Party to disclose any information
relating to its affairs (tax or otherwise) or any computations in respect
of Tax. |
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29. |
SHARING AMONG THE FINANCE PARTIES |
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29.1 |
Payments to Finance Parties |
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If a Finance Party, other than for these purposes
(subject to Clause 29.5 (Exceptions) below) the Hedging
Counterparty (a "Recovering Finance Party") receives or recovers
any amount from an Obligor other than in accordance with Clause 30
(Payment mechanics) (a "Recovered Amount") and applies that
amount to a payment due under the Finance Documents then: |
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(a) |
the Recovering Finance Party shall, within three Business
Days, notify details of the receipt or recovery to the Facility
Agent; |
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(b) |
the Facility Agent shall determine whether the receipt or
recovery is in excess of the amount the Recovering Finance Party would
have been paid had the receipt or recovery been received or made by the
Facility Agent and distributed in accordance with Clause 30 (Payment
mechanics), without taking account of any Tax which would be imposed
on the Facility Agent in relation to the receipt, recovery or
distribution; and |
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(c) |
the Recovering Finance Party shall, within three Business
Days of demand by the Facility Agent, pay to the Facility Agent an amount
(the "Sharing Payment") equal to such receipt or recovery less any
amount which the Facility Agent determines may be retained by the
Recovering Finance Party as its share of any payment to be made, in
accordance with Clause 30.5(a) (Partial payments). |
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29.2 |
Redistribution of payments |
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The Facility Agent shall treat the Sharing Payment as if
it had been paid by the relevant Obligor and distribute it between the
Finance Parties (other than the Recovering Finance Party) (the "Sharing
Finance Parties") in accordance with Clause 30.5(a) (Partial
payments) towards the obligations of that Obligor to the Sharing
Finance Parties. |
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29.3 |
Recovering Finance Party's rights |
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On a distribution by the Facility Agent under Clause 29.2
(Redistribution of payments) of a payment received by a Recovering
Finance Party from an Obligor, as between the relevant Obligor and the
Recovering Finance Party, an amount of the Recovered Amount equal to the
Sharing Payment will be treated as not having been paid by that
Obligor. |
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29.4 |
Reversal of redistribution |
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If any part of the Sharing Payment received or recovered
by a Recovering Finance Party becomes repayable and is repaid by that
Recovering Finance Party, then: |
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(a) |
each Sharing Finance Party shall, upon request of the
Facility Agent, pay to the Facility Agent for the account of that
Recovering Finance Party an amount equal to the appropriate part of its
share of the Sharing Payment (together with an amount as is necessary to
reimburse that Recovering Finance Party for its proportion of any interest
on the Sharing Payment which that Recovering Finance Party is required to
pay) (the "Redistributed Amount"); and |
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(b) |
as between the relevant Obligor and each relevant Sharing
Finance Party, an amount equal to the relevant Redistributed Amount will
be treated as not having been paid by that Obligor. |
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29.5 |
Exceptions |
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(a) |
This Clause 29 shall not apply to the extent that the
Recovering Finance Party (including, for these purposes pursuant to
paragraph (c) below, the Hedging Counterparty) would not, after making any
payment pursuant to this Clause, have a valid and enforceable claim
against the relevant Obligor. |
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(b) |
A Recovering Finance Party (including, for these purposes
pursuant to paragraph (c) below, the Hedging Counterparty) is not obliged
to share with any other Finance Party any amount which the Recovering
Finance Party (including, for these purposes pursuant to paragraph (c)
below, the Hedging Counterparty) has received or recovered as a result of
taking legal or arbitration proceedings, if: |
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(i) |
it notified that other Finance Party, of the legal or
arbitration proceedings; and |
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(ii) |
that other Finance Party, had an opportunity to
participate in those legal or arbitration proceedings but did not do so as
soon as reasonably practicable having received notice and did not take
separate legal or arbitration proceedings. |
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(c) |
This Clause 29 shall apply with the following
modifications after the Security Documents have become enforceable and the
Facility Agent has notified the other Finance Parties that this Clause
29.5(c) is operative: |
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(i) |
paragraphs (b) and (c) of Clause 29.1 (Payments to
Finance Parties) and Clauses 29.2 (Redistribution of Payments),
29.3 (Recovering Finance Party's Rights) and 29.4 (Reversal of
Redistribution) shall not apply, and references to a "Recovering
Finance Party" in Clause 29.1 and in this paragraph (c) shall be deemed to
include the Hedging Counterparty; |
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(ii) |
the Recovering Finance Party shall, at the same time as
notifying the Facility Agent in accordance with Clause 29.1(a)
(Payments to Finance Parties), pay an amount equal to such receipt
or recovery to the Facility Agent (or directly to the Security Agent in
the case of the Hedging Counterparty), which shall pay an amount equal to
such amount to the Security Agent; |
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(iii) |
the Security Agent shall treat the amount paid to it
under paragraph (ii) above as moneys which are by the terms of this
Agreement to be applied by it in accordance with Clause 27.5
(Application of Proceeds) on account of, or
in connection with, the obligations of the relevant Obligor
under the Finance Documents and shall deal with the same
accordingly; |
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(iv) |
on a distribution by the Security Agent under Clause 27.5
(Application of Proceeds) of the amount paid to it by the Facility
Agent or the Hedging Counterparty under paragraph (ii) above, the
Recovering Finance Party will be subrogated to the rights of the other
Finance Parties which have shared in the redistribution; |
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(v) |
if and to the extent that the Recovering Finance Party is
not able to rely on its rights under paragraph (iv) above, the relevant
Obligor shall be liable to the Recovering Finance Party for a debt equal
to the amount of such receipt or recovery which is immediately due and
payable; and |
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(vi) |
if any part of the receipt or recovery becomes repayable
and is repaid by that Recovering Finance Party,
then: |
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(A) |
each other Finance Party shall, upon request of the
Security Agent (through the Facility Agent in the case of the Lenders and
the Arranger), pay to the Security Agent for transmission to that
Recovering Finance Party in accordance with paragraphs (B) and (C) below
such amount as the Security Agent shall determine and certify to be
necessary to ensure that each Secured Finance Party (including that
Recovering Finance Party) bears an appropriate proportion of the repayment
made by that Recovering Finance Party (such determination to be made in a
manner which is consistent with the order of distribution set out in
Clause 27.5 (Application of Proceeds) and the indemnities contained
in this Agreement); |
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(B) |
the Security Agent shall, upon receipt of each amount
paid to it under paragraph (A) above, pay an amount equal to such amount
to the Facility Agent or the Hedging Counterparty, as the case may
be; |
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(C) |
if paid to the Facility Agent under paragraph (B), the
Facility Agent shall, upon receipt of each amount paid to it under
paragraph (B) above, pay an amount equal to such amount to that Recovering
Finance Party; and |
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(D) |
that Recovering Finance Party's (including, for the
avoidance of doubt, the Hedging Counterparty if the relevant Recovering
Finance Party) rights of subrogation in respect of any payment made under
paragraph (A) above shall be cancelled and the relevant Obligor will be
liable to the Finance Party making such payment for the amount so
paid. |
29.6 |
No Security |
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The provisions of this Clause 29 shall not, and shall not
be construed so as to, constitute a charge by any Finance Party, as the
case may be, over all or any part of any amount received or recovered by
it under any of the circumstances mentioned in this Clause
29. |
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SECTION 11
ADMINISTRATION
30. |
PAYMENT MECHANICS |
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30.1 |
Payments to the Facility Agent |
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(a) |
On each date on which an Obligor or a Lender is required
to make a payment under a Finance Document, that Obligor or Lender shall
make the same available to the Facility Agent (unless a contrary
indication appears in a Finance Document) for value on the due date at the
time and in such funds specified by the Facility Agent as being customary
at the time for settlement of transactions in the relevant currency in the
place of payment. |
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(b) |
Payment shall be made to such account in the principal
financial centre of the country of that currency with such bank as the
Facility Agent specifies. |
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30.2 |
Distributions by the Facility Agent |
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Each payment received by the Facility Agent under the
Finance Documents for another Party shall, subject to Clause 26.17
(Deduction from Amounts Payable by the Facility Agent or the Security
Agent), Clause 27.4 (Payments to the Security Agent), Clause
30.3 (Distributions to an Obligor) and Clause 30.4
(Clawback) be made available by the Facility Agent as soon as
practicable after receipt to the Party entitled to receive payment in
accordance with this Agreement (in the case of a Lender, for the account
of its Facility Office), to such account as that Party may notify to the
Facility Agent by not less than five Business Days' notice with a bank in
the principal financial centre of the country of that currency. |
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30.3 |
Distributions to an Obligor |
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The Facility Agent and the Security Agent may (with the
consent of the Obligor or in accordance with Clause 31 (Set-off))
each apply any amount received by it for that Obligor in or towards
payment (on the date and in the currency and funds of receipt) of any
amount due from that Obligor under the Finance Documents or in or towards
purchase of any amount of any currency to be so applied. |
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30.4 |
Clawback |
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(a) |
Where a sum is to be paid to the Facility Agent or the
Security Agent under the Finance Documents for another Party, the Facility
Agent or, as the case may be, the Security Agent is not obliged to pay
that sum to that other Party (or to enter into or perform any related
exchange contract) until it has been able to establish to its satisfaction
that it has actually received that sum. |
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(b) |
If the Facility Agent or the Security Agent pays an
amount to another Party and it proves to be the case that the Facility
Agent or, as the case may be, the Security Agent had not actually received
that amount, then the Party to whom that amount (or the proceeds of any
related exchange contract) was paid by the Facility Agent or, as the case
may be, the Security Agent shall on demand refund the same to the Facility
Agent or, as the case may be, the Security Agent together with interest on
that amount from the date of payment to the date of receipt by the
Facility Agent or, as the case may be, the Security Agent, calculated by
it to reflect its cost of funds. |
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30.5 |
Partial payments |
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(a) |
If the Facility Agent receives a payment that is
insufficient to discharge all the amounts then due and payable by an
Obligor under the Finance Documents, the Facility Agent shall apply that
payment towards the obligations of that Obligor under the Finance
Documents in the following order: |
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(i) |
first, in or towards payment pro rata of any
unpaid fees, costs and expenses of the Facility Agent, the Security Agent
or the Arranger under the Finance Documents; |
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(ii) |
secondly, in or towards payment pro rata of any
accrued interest, fee or commission due but unpaid under this
Agreement; |
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(iii) |
thirdly, in or towards payment pro rata of any
principal due but unpaid under this Agreement; and |
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(iv) |
fourthly, in or towards payment pro rata of any
other sum owed to a Lender, the Facility Agent, the Security Agent or the
Arranger that is due but unpaid under the Finance Documents. |
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(b) |
The Facility Agent shall, if so directed by the Majority
Lenders, vary the order set out in paragraphs (a)(ii) to (iv)
above. |
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(c) |
Paragraphs (a) and (b) above will override any
appropriation made by an Obligor. |
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30.6 |
No set-off by Obligors |
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All payments to be made by an Obligor under the Finance
Documents shall be calculated and be made without (and free and clear of
any deduction for) set-off or counterclaim. |
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30.7 |
Business Days |
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(a) |
Any payment which is due to be made on a day that is not
a Business Day shall be made on the next Business Day in the same calendar
month (if there is one) or the preceding Business Day (if there is
not). |
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(b) |
During any extension of the due date for payment of any
principal or Unpaid Sum under this Agreement interest is payable on the
principal or Unpaid Sum at the rate payable on the original due
date. |
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30.8 |
Currency of account |
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(a) |
Subject to paragraphs (b) to (e) below, the Base Currency
is the currency of account and payment for any sum due from an Obligor
under any Finance Document. |
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(b) |
A prepayment or repayment of a Loan or Unpaid Sum or a
part of a Loan or Unpaid Sum shall be made in the currency in which that
Loan or Unpaid Sum is denominated on its due date. |
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(c) |
Each payment of interest shall be made in the currency in
which the sum in respect of which the interest is payable was denominated
when that interest accrued. |
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(d) |
Each payment in respect of costs, expenses or Taxes shall
be made in the currency in which the costs, expenses or Taxes are
incurred. |
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(e) |
Any amount expressed to be payable in a currency other
than the Base Currency shall be paid in that other currency. |
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30.9 |
Change of currency |
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(a) |
Unless otherwise prohibited by law, if more than one
currency or currency unit are at the same time recognised by the central
bank of any country as the lawful currency of that country,
then: |
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(i) |
any reference in the Finance Documents to, and any
obligations arising under the Finance Documents in, the currency of that
country shall be translated into, or paid in, the currency or currency
unit of that country designated by the Facility Agent (after consultation
with HWDC); and |
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(ii) |
any translation from one currency or currency unit to
another shall be at the official rate of exchange recognised by the
central bank for the conversion of that currency or currency unit into the
other, rounded up or down by the Facility Agent (acting
reasonably). |
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(b) |
If a change in any currency of a country occurs, this
Agreement will, to the extent the Facility Agent (acting reasonably and
after consultation with HWDC) specifies to be necessary, be amended to
comply with any generally accepted conventions and market practice in the
Relevant Interbank Market and otherwise to reflect the change in
currency. |
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30.10 |
Disruption to Payment Systems etc. |
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If either the Facility Agent determines (in its
discretion) that a Disruption Event has occurred or the Facility Agent is
notified by HWDC that a Disruption Event has occurred: |
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(a) |
the Facility Agent may, and shall if requested to do so
by HWDC, consult with HWDC with a view to agreeing with HWDC such changes
to the operation or administration of the Facility as the Facility Agent
may deem necessary in the circumstances; |
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(b) |
the Facility Agent shall not be obliged to consult with
HWDC in relation to any changes mentioned in paragraph (a) if, in its
opinion, it is not practicable to do so in the circumstances and, in any
event, shall have no obligation to agree to such changes; |
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(c) |
the Facility Agent may consult with the Lenders, the
Security Agent and the Arranger in relation to any changes mentioned in
paragraph (a) but shall not be obliged to do so if, in its opinion, it is
not practicable to do so in the circumstances; |
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(d) |
any such changes agreed upon by the Facility Agent and
HWDC shall (whether or not it is finally determined that a Disruption
Event has occurred) be binding upon the Parties as an amendment to (or, as
the case may be, waiver of) the terms of the Finance Documents
notwithstanding the provisions of Clause 36 (Amendments and
Waivers); |
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(e) |
the Facility Agent shall not be liable for any damages,
costs or losses whatsoever (including, without limitation for negligence,
gross negligence or any other category of liability whatsoever but not
including any claim based on the fraud of the Facility Agent) arising as a
result of its taking, or failing to take, any actions pursuant to or in
connection with this Clause 30.10; and |
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(f) |
the Facility Agent shall notify the Lenders, the Security
Agent and the Arranger of all changes agreed pursuant to paragraph (d)
above. |
31. |
SET-OFF |
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A Finance Party (excluding for the purposes of this
Clause 31, the Hedging Counterparty) may set off any matured obligation
due from an Obligor under the Finance Documents (to the extent
beneficially owned by that Finance Party) against any matured obligation
owed by that Finance Party to that Obligor, regardless of the place of
payment, booking branch or currency of either obligation. If the
obligations are in different currencies, the Finance Party may convert
either obligation at a market rate of exchange in its usual course of
business for the purpose of the set-off. |
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32. |
NOTICES |
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32.1 |
Communications in writing |
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Any communication to be made under or in connection with
the Finance Documents shall be made in writing and, unless otherwise
stated, may be made by fax, letter or electronic mail. |
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32.2 |
Addresses |
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The address, fax number and e-mail address (and the
department or officer, if any, for whose attention the communication is to
be made) of each Party for any communication or document to be made or
delivered under or in connection with the Finance Documents
is: |
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(a) |
in the case of an Obligor, that identified with its name
below; |
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(b) |
in the case of each Lender, that notified in writing to
the Facility Agent on or prior to the date on which it becomes a
Party; |
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(c) |
in the case of the Arranger, the Facility Agent and the
Security Agent, that identified with its name below; |
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(d) |
in the case of any successor Facility Agent, that
notified in writing to the retiring Facility Agent on or prior to the date
on which the resignation notice of the retiring Agent takes
effect; |
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(e) |
in the case of any successor Security Agent, that
notified in writing to the Facility Agent on or prior to the date on which
the resignation notice of the retiring Security Trustee takes
effect; |
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(f) |
in the case of the Hedging Counterparty, that notified in
writing under the Hedging Accession Letter; and |
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(g) |
in the case of any additional security agent appointed
pursuant to Clause 27.16 (Appointment of Additional Security
Agents), that notified in writing to the Facility Agent on or prior to
the date on which such appointment takes
effect, |
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or any substitute address, fax number, email address or
department or officer as the Party may notify to the Facility Agent (or
the Facility Agent may notify to the other Parties, if a change is made by
the Facility Agent) by not less than five Business Days' notice. |
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32.3 |
Delivery |
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(a) |
Any communication or document made or delivered by one
person to another under or in connection with the Finance Documents will
only be effective: |
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(i) |
if by way of fax, when received in legible
form; |
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(ii) |
if by way of letter, when it has been left at the
relevant address or five Business Days after being deposited in the post
postage prepaid in an envelope addressed to it at that address;
or |
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(iii) |
if by way of electronic mail, when actually reviewed in
readable form; |
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and, if a particular department or officer is specified
as part of its address details provided under Clause 32.2
(Addresses), if addressed to that department or officer. |
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(b) |
Any communication or document to be made or delivered to
the Facility Agent or the Security Agent will be effective only when
actually received by it and then only if it is expressly marked for the
attention of the department or officer identified with its signature below
(or any substitute department or officer as it shall specify for this
purpose). |
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(c) |
All communications from or to an Obligor (other than any
between the Security Agent and any Obligor under or in connection with any
Security Document) shall be sent through the Facility Agent. |
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(d) |
Any communication or document made or delivered to HWDC
in accordance with this Clause 32 will be deemed to have been made or
delivered to each of the Obligors. |
32.4 |
Notification of address and fax number |
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Promptly upon receipt of notification of an address or
fax number or change of address or fax number pursuant to Clause 32.2
(Addresses) or changing its own address or fax number, the Facility
Agent shall notify the other Parties. |
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32.5 |
English language |
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(a) |
Any notice given under or in connection with any Finance
Document must be in English. |
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(b) |
All other documents provided under or in connection with
any Finance Document must be: |
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(i) |
in English; or |
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(ii) |
if not in English, and if so required by the Facility
Agent, accompanied by a certified English translation and, in this case,
the English translation will prevail unless the document is a
constitutional (constating), statutory or other official
document. |
33. |
CALCULATIONS AND CERTIFICATES |
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33.1 |
Accounts |
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In any litigation or arbitration proceedings arising out
of or in connection with a Finance Document, the entries made in the
accounts maintained by a Finance Party are prima facie evidence of
the matters to which they relate. |
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33.2 |
Certificates and Determinations |
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Any certification or determination by a Finance Party of
a rate or amount under any Finance Document is, in the absence of manifest
error, conclusive evidence of the matters to which it relates. |
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33.3 |
Day count convention |
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(a) |
Any interest, commission or fee accruing under a Finance
Document will accrue from day to day and is calculated on the basis of the
actual number of days elapsed and a year of 360 days or, in any case where
the practice in the Relevant Interbank Market differs, in accordance with
that market practice. |
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(b) |
For the purposes of the Interest Act (Canada) and
disclosure under such act, whenever interest to be paid under this
Agreement is to be calculated on the basis of a year of 360 days or any
other period of time that is less than a calendar year, the yearly rate of
interest to which the rate determined pursuant to such calculation is
equivalent is the rate so determined multiplied by the actual number of
days in the calendar year in which the same is to be ascertained and
divided by either 360 days or such other period of time, as the case may
be. |
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34. |
PARTIAL INVALIDITY |
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If, at any time, any provision of the Finance Documents
is or becomes illegal, invalid or unenforceable in any respect under any
law of any jurisdiction, neither the legality, validity or enforceability
of the remaining provisions nor the legality, validity or enforceability
of such provision under the law of any other jurisdiction will in any way
be affected or impaired. |
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35. |
REMEDIES AND WAIVERS |
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No failure to exercise, nor any delay in exercising, on
the part of any Finance Party, any right or remedy under the Finance
Documents shall operate as a waiver, nor shall any single or partial
exercise of any right or remedy prevent any further or other exercise or
the exercise of any other right or remedy. The rights and remedies
provided in this Agreement are cumulative and not exclusive of any rights
or remedies provided by law. |
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36. |
AMENDMENTS AND WAIVERS |
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36.1 |
Required consents |
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(a) |
Subject to Clause 36.2 (Exceptions) any term of
the Finance Documents (for these purposes excluding any Hedging
Agreement), may be amended or waived only with the consent of the Majority
Lenders and the Obligors and any such amendment or waiver will be binding
on all Parties. |
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(b) |
The Facility Agent may effect, on behalf of any Lender,
Arranger or the Security Agent, any amendment or waiver permitted by this
Clause. |
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36.2 |
Exceptions |
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(a) |
An amendment or waiver that has the effect of changing or
which relates to: |
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(i) |
the definition of "Majority Lenders" in Clause 1.1
(Definitions); |
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(ii) |
an extension to the date of payment of any amount under
the Finance Documents; |
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(iii) |
a reduction in the Margin or a reduction in the amount of
any payment of principal, interest, fees or commission payable; |
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(iv) |
an increase in or an extension of any
Commitment; |
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(v) |
any provision which expressly requires the consent of all
the Lenders; |
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(vi) |
Clause 2.2 (Finance Parties' rights and
obligations), Clause 24 (Changes to the Lenders and the Hedging
Counterparty) or this Clause 36; or |
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(vii) |
the nature or scope of the guarantee and indemnity
granted under Clause 18 (Guarantee and
Indemnity), |
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shall not be made without the prior consent of all the
Lenders. |
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(b) |
An amendment or waiver which relates to the rights or
obligations of the Facility Agent, the Security Agent or the Arranger
(each in their capacity as such) may not be effected without the consent
of the Facility Agent, the Security Agent or the Arranger, as the case may
be. |
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(c) |
An amendment or waiver which: |
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(i) |
relates to the identity of the Security Agent; |
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(ii) |
would have the effect of changing, or relates to, the
nature or scope of the guarantee and indemnity granted under Clause 18
(Guarantee and Indemnity) of the Facility Agreement; |
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(iii) |
relates to the release of any guarantee and indemnity
granted under Clause 18 (Guarantee and Indemnity) of the Facility
Agreement; or |
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(iv) |
would affect the nature or scope of the Secured Property
or the manner in which the proceeds of enforcement of the Transaction
Security are distributed, |
may not be affected without the
consent of all of the Lenders and the Hedging Counterparty.
37. |
CONFIDENTIALITY |
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37.1 |
Confidential Information |
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Each Finance Party agrees to keep all Confidential
Information confidential and not to disclose it to anyone, save to the
extent permitted by Clause 37.2 (Disclosure of Confidential
Information), and to ensure that all Confidential Information is
protected with security measures and a degree of care that would apply to
its own confidential information. |
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37.2 |
Disclosure of Confidential Information |
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Any Finance Party may disclose: |
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(a) |
to any of its Affiliates and Related Funds and any of its
or their officers, directors, employees, professional advisers, auditors,
insurers, insurance brokers, service providers, partners and
Representatives such Confidential Information as that Finance Party shall
consider appropriate if any person to whom the Confidential Information is
to be given pursuant to this paragraph (a) is informed in writing of its
confidential nature and that some or all of such Confidential Information
may be price-sensitive information except that there shall be no such
requirement to so inform if the recipient is subject to professional
obligations to maintain the confidentiality of the information or is
otherwise bound by requirements of confidentiality in relation to the
Confidential Information; |
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(b) |
to any person: |
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(i) |
to (or through) whom it assigns or transfers (or may
potentially assign or transfer) all or any of its rights and/or
obligations under one or more Finance Documents and to any of that
person's Affiliates, Related Funds, Representatives and professional
advisers; |
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(ii) |
with (or through) whom it enters into (or may potentially
enter into), whether directly or indirectly, any sub-participation in
relation to, or any other transaction under which payments are to be made
or may be made by reference to, one or more Finance Documents and/or one
or more Obligors and to any of that person's Affiliates, Related Funds,
Representatives and professional advisers; |
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(iii) |
appointed by any Finance Party or by a person to whom
paragraph (b)(i) or (ii) above applies to receive communications, notices,
information or documents delivered pursuant to the Finance Documents on
its behalf (including, without limitation, any person appointed under
Clause 26.13(c) (Relationship with the Lenders)); |
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(iv) |
who invests in or otherwise finances (or may potentially
invest in or otherwise finance), directly or indirectly, any transaction
referred to in paragraph (b)(i) or (b)(ii) above; |
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(v) |
to whom information is required or requested to be
disclosed by any court of competent jurisdiction or any governmental,
banking, taxation or other regulatory authority or similar body, the rules
of any relevant stock exchange or pursuant to any applicable law or
regulation; |
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(vi) |
to whom or for whose benefit that Finance Party charges,
assigns or otherwise creates Security (or may do so) pursuant to Clause
24.8 (Security over Lenders' rights); |
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(vii) |
to whom information is required to be disclosed in
connection with, and for the purposes of, any litigation, arbitration,
administrative or other investigations, proceedings or disputes; |
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(viii) |
who is a Party; or |
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(ix) |
with the consent of HWDC; |
in each case, such Confidential
Information as that Finance Party shall consider appropriate if:
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(A) |
in relation to paragraphs (b)(i), (b)(ii) and b(iii)
above, the person to whom the Confidential Information is to be given has
entered into a Confidentiality Undertaking except that there shall be no
requirement for a Confidentiality Undertaking if the recipient is a
professional adviser and is subject to professional obligations to
maintain the confidentiality of the Confidential
Information; |
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(B) |
in relation to paragraph (b)(iv) above, the person to
whom the Confidential Information is to be given has entered into a
Confidentiality Undertaking or is otherwise bound by requirements of
confidentiality in relation to the Confidential Information they receive
and is informed that some or all of such Confidential Information may be
price-sensitive information; |
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(C) |
in relation to paragraphs (b)(v), (b)(vi) and (b)(vii)
above, the person to whom the Confidential Information is to be given is
informed of its confidential nature and that some or all of such
Confidential Information may be price-sensitive information except that
there shall be no requirement to so inform if, in the opinion of that
Finance Party, it is not practicable to do so in the
circumstances; |
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(c) |
to any person appointed by that Finance Party or by a
person to whom paragraph (b)(i) or (b)(ii) above applies to provide
administration or settlement services in respect of one or more of the
Finance Documents including without limitation, in relation to the trading
of participations in respect of the Finance Documents, such Confidential
Information as may be required to be disclosed to enable such service
provider to provide any of the services referred to in this paragraph (c)
if the service provider to whom the Confidential Information is to be
given has entered into a confidentiality agreement substantially in the
form of the LMA Master Confidentiality Undertaking for Use With
Administration/Settlement Service Providers or such other form of
confidentiality undertaking agreed between HWDC and the relevant Finance
Party; |
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(d) |
to any rating agency (including its professional
advisers) such Confidential Information as may be required to be disclosed
to enable such rating agency to carry out its normal rating activities in
relation to the Finance Documents and/or the
Obligors. |
37.3 |
Entire agreement |
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This Clause 37 (Confidentiality) constitutes the
entire agreement between the Parties in relation to the obligations of the
Finance Parties under the Finance Documents regarding Confidential
Information and supersedes any previous agreement, whether express or
implied, regarding Confidential Information. |
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37.4 |
Inside information |
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Each of the Finance Parties acknowledges that some or all
of the Confidential Information is or may be price-sensitive information
and that the use of such information may be regulated or prohibited by
applicable legislation including securities law relating to insider
dealing and market abuse and each of the Finance Parties undertakes not to
use any Confidential Information for any unlawful purpose. |
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37.5 |
Notification of disclosure |
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Each of the Finance Parties agrees (to the extent
permitted by law and regulation) to inform HWDC: |
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(a) |
of the circumstances of any disclosure of Confidential
Information made pursuant to paragraph (b) or (d) of Clause 37.2
(Disclosure of Confidential Information) except where such
disclosure is made to any of the persons referred to in that paragraph
during the ordinary course of its supervisory or regulatory function;
and |
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(b) |
upon becoming aware that Confidential Information has
been disclosed in breach of this Clause 36.2(c)
(Confidentiality). |
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37.6 |
Continuing obligations |
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The obligations in this Clause 37
(Confidentiality) are continuing and, in particular, shall survive
and remain binding on each Finance Party for a period of twelve months
from the earlier of: |
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(a) |
the date on which all amounts payable by the Obligors
under or in connection with this Agreement have been paid in full and all
Commitments have been cancelled or otherwise cease to be available;
and |
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(b) |
the date on which such Finance Party otherwise ceases to
be a Finance Party. |
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38. |
COUNTERPARTS |
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Each Finance Document may be executed in any number of
counterparts, and this has the same effect as if the signatures on the
counterparts were on a single copy of the Finance
Document. |
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SECTION 12
GOVERNING LAW AND ENFORCEMENT
39. |
GOVERNING LAW |
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This Agreement, and any non-contractual obligations
arising out of it, are governed by English law. |
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40. |
ENFORCEMENT |
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40.1 |
Jurisdiction |
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(a) |
The courts of England have exclusive jurisdiction to
settle any dispute arising out of or in connection with this Agreement
(including a dispute relating to the existence, validity or termination of
this Agreement or any non-contractual obligation arising out of or in
connection with this Agreement) (a "Dispute"). |
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(b) |
The Parties agree that the courts of England are the most
appropriate and convenient courts to settle Disputes and accordingly no
Party will argue to the contrary. |
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(c) |
This Clause 40.1 is for the benefit of the Finance
Parties only. As a result, no Finance Party shall be prevented from taking
proceedings relating to a Dispute in any other courts with jurisdiction.
To the extent allowed by law, the Finance Parties may take concurrent
proceedings in any number of jurisdictions. |
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40.2 |
Service of process |
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(a) |
Without prejudice to any other mode of service allowed
under any relevant law, each Obligor (other than an Obligor incorporated
in England and Wales): |
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(i) |
irrevocably appoints Stikeman Elliott LLP, whose address
for service is Dauntsey House, 4B Frederick's Place, London EC2R 8AB, as
its agent for service of process in relation to any proceedings before the
English courts in connection with any Finance Document; |
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|
(ii) |
agrees that if, for any reason, the appointment of any
process agent appointed by such Obligor in or in accordance with this
Clause 40.2 ceases to be effective, it will immediately appoint a
substitute process agent with an address for service in England and Wales,
notify the Facility Agent of such appointment and of such substitute
process agent's address for service and deliver to the Facility Agent
evidence, in form and substance satisfactory to the Facility Agent, that
such substitute process agent has accepted its appointment; |
|
|
|
|
|
|
(iii) |
agrees that process will be effectively served on it if
served upon the address for service specified in paragraph (a)(i) above of
the process agent specified in such paragraph or, if there has been a
change in the address for service of such process agent, upon the last
address for service notified to the Facility Agent of such process agent
or, if such Obligor has appointed a substitute process agent in accordance
with paragraph (a)(ii) above, upon the last address for service notified
to the Facility Agent of the last substitute process agent so appointed
(and in respect of which notice of such appointment has been given to the
Facility Agent in accordance with paragraph (a)(ii) above) notwithstanding
that such process agent or substitute process agent is no longer found at
such address or has ceased to act or exist; and |
112
|
|
(iv) |
agrees that failure by a process agent to notify the
relevant Obligor of the process will not invalidate the proceedings
concerned. |
|
|
|
|
|
(b) |
Each Obligor appointed as a process agent under this
Clause 40.2 or otherwise pursuant to or in connection with this Agreement
accepts such appointment. |
|
|
|
|
|
(c) |
As used in this Clause 40.2, the expression "process
agent" includes, where the context so admits, a substitute process
agent. |
This Agreement has been entered into on the date stated at
the beginning of this Agreement.
113
SCHEDULE 1
The Original Parties
Part I
The Original Obligors
Name of original Borrowers |
Registration number (or equivalent, if any)
|
|
|
Harry Winston Diamond Corporation |
600366-4 |
|
|
Harry Winston Diamond Mines Ltd. |
C4224 |
|
|
|
|
|
|
Name of original Guarantors |
Registration number (or equivalent, if any)
|
|
|
Harry Winston Diamond Corporation |
600366-4 |
|
|
Harry Winston Diamond Mines Ltd. |
C4224 |
|
|
6355137 Canada Inc. |
635513-7 |
|
|
|
|
|
|
Name of original Security providers |
Registration number (or equivalent, if any)
|
|
|
Harry Winston Diamond Corporation |
600366-4 |
|
|
Harry Winston Diamond Mines Ltd. |
C4224 |
|
|
6355137 Canada Inc. |
635513-7 |
114
Part II
The Original Lenders
Name of Original Lender |
Commitment (US$) |
|
|
Standard Chartered Bank |
100,000,000 |
115
SCHEDULE 2
Conditions Precedent
1. |
ORIGINAL OBLIGORS |
|
|
|
|
|
(a) |
A copy of the articles and by-laws (and all amendments
thereto) of each Obligor. |
|
|
|
|
|
(b) |
A copy of the certificate made and registered under
section 58 of the Partnership Act (NWT) with respect to HWDLP. |
|
|
|
|
|
(c) |
A copy of a resolution of the board of directors of each
Obligor: |
|
|
|
|
|
|
(i) |
approving the terms of, and the transactions contemplated
by, the Finance Documents to which it is a party (including, with respect
to each of HWDM and Canada Inc. consenting to the transfer and pledge of
its shares) and resolving that it execute the Finance Documents to which
it is a party; |
|
|
|
|
|
|
(ii) |
authorising a specified person or persons to execute the
Finance Documents to which it is a party on its behalf; and |
|
|
|
|
|
|
(iii) |
authorising a specified person or persons, on its behalf,
to sign and/or despatch all documents and notices (including, if relevant,
any Utilisation Request) to be signed and/or despatched by it under or in
connection with the Finance Documents to which it is a party. |
|
|
|
|
|
(d) |
A specimen of the signature of each person authorised by
the resolution referred to in paragraph (c) above. |
|
|
|
|
|
(e) |
A certificate of each Obligor (signed by a director or
officer) confirming that borrowing or guaranteeing, as appropriate, the
Total Commitments would not cause any borrowing, guaranteeing or similar
limit binding on any Borrower to be exceeded. |
|
|
|
|
|
(f) |
A certificate of each Obligor (signed by a director or
officer) certifying that each copy document relating to it specified in
this Schedule 2 is correct, complete and in full force and effect as at a
date no earlier than the date of this Agreement. |
|
|
|
|
|
(g) |
A certificate of each Obligor (signed by a director or
officer) confirming that that Obligor has not registered a UK
establishment (as defined in the Overseas Companies Regulations
2009). |
|
|
|
|
|
(h) |
A certificate of compliance with respect to each of the
Obligors dated as of the date of this Agreement. |
|
|
|
|
|
(i) |
A certificate of an officer of each of the Obligors with
respect to certain factual matters and attaching, inter alia, thereto true
and correct copies of (i) its articles and all amendments thereto, (ii)
its by-laws and all amendments thereto and (iii) the relevant resolution
referenced in paragraph 1(c) above. |
|
|
|
|
2. |
LEGAL OPINIONS |
|
|
|
|
|
(a) |
A legal opinion of Baker & McKenzie LLP, London
office, legal advisers to the Arranger, the Security Agent and the
Facility Agent, as to English law. |
|
|
|
|
|
(b) |
A legal opinion of Stikeman Elliott LLP, legal advisers
to the Obligors, as to Ontario law. |
116
|
(c) |
A legal opinion of Davis and Company, legal advisers to
the Obligors as to Northwest Territories law. |
|
|
|
|
3. |
OTHER DOCUMENTS AND EVIDENCE |
|
|
|
|
|
(a) |
Evidence that any process agent referred to in Clause
40.2 (Service of Process) has accepted its appointment. |
|
|
|
|
|
(b) |
A copy of any other Authorisation or other document,
opinion or assurance which the Facility Agent considers to be necessary or
desirable (if it has notified HWDC accordingly) in connection with the
entry into and performance of the transactions contemplated by any Finance
Document or for the validity and enforceability of any Finance
Document. |
|
|
|
|
|
(c) |
The Original Financial Statements. |
|
|
|
|
|
(d) |
Evidence that the fees, costs and expenses then due from
HWDC or HWDM pursuant to Clause 12 (Fees), Clause 13.5 (Stamp
Taxes) and Clause 17 (Costs and Expenses) have been paid or
will be paid by the first Utilisation Date. |
|
|
|
|
|
(e) |
All necessary "know your customer" requirements of the
Finance Parties satisfied. |
|
|
|
|
|
(f) |
A certified structure chart for the Group, which shall
show voting interests in members of the Restricted Group and, the
structure, to the best of HWDC's knowledge and belief of the ownership of
HWDLP and the Diavik Joint Venture. |
|
|
|
|
4. |
FINANCE DOCUMENTS |
|
|
|
|
|
Each of the following documents duly executed by all the
parties thereto: |
|
|
|
|
|
(a) |
this Agreement; |
|
|
|
|
|
(b) |
each Fee Letter; and |
|
|
|
|
|
(c) |
the Kinross Consent. |
|
|
|
|
5. |
SECURITY DOCUMENTS |
|
|
|
|
|
(a) |
A perfection certificate with respect to each
Obligor. |
|
|
|
|
|
(b) |
Each of the following documents duly executed by all the
parties thereto: |
|
|
|
|
|
|
(i) |
the HWDC Pledge Agreement; |
|
|
|
|
|
|
(ii) |
the HWDM General Security Agreement; |
|
|
|
|
|
|
(iii) |
the HWDM Pledge Agreement; |
|
|
|
|
|
|
(iv) |
the Canada Inc. General Security Agreement; and |
|
|
|
|
|
|
(v) |
the Canada Inc. Pledge Agreement. |
|
|
|
|
|
(c) |
Certificates evidencing: |
|
|
|
|
|
|
(i) |
the Equity Interests held by HWDC in the capital of
HWDM; |
|
|
|
|
|
|
(ii) |
the Equity Interests held by HWDM in the capital of
Canada Inc.; |
117
|
(iii) |
the Equity Interests held by HWDM in the capital of
HWDLP; and |
|
|
|
|
(iv) |
the Equity Interests held by Canada Inc. in the capital
of HWDLP. |
|
(d) |
Transfer powers with respect to: |
|
|
|
|
|
|
(i) |
the Equity Interests held by HWDC in the capital of
HWDM; |
|
|
|
|
|
|
(ii) |
the Equity Interests held by HWDM in the capital of
Canada Inc.; |
|
|
|
|
|
|
(iii) |
the Equity Interests held by HWDM in the capital of
HWDLP; and |
|
|
|
|
|
|
(iv) |
the Equity Interests held by Canada Inc. in the capital
of HWDLP. |
|
|
|
|
|
(e) |
Filing of financing statements under the applicable
personal property security legislation (or equivalent) against: |
|
|
|
|
|
|
(i) |
HWDC; |
|
|
|
|
|
|
(ii) |
HWDM; and |
|
|
|
|
|
|
(iii) |
Canada Inc. |
|
|
|
|
|
(f) |
Such other documents as the Facility Agent considers to
be necessary or desirable in connection with the creation, validity,
perfection or priority of the Security referred to in the documents
specified in paragraph 5(b) above. |
6. |
DIAVIK MINING CPS |
|
|
|
|
Copies, certified by HWDC to be true, complete and in
full force and effect, of the following documents: |
|
|
|
|
(a) |
each Diavik Document; |
|
|
|
|
(b) |
each DDMI Agreement; |
|
|
|
|
(c) |
each DDMI Authorisation; and |
|
|
|
|
(d) |
each Kinross Document. |
118
SCHEDULE 3
Utilisation Request
From: [Borrower]
To: [Facility Agent]
Dated:
Dear Sirs
Harry Winston Diamond Corporation US$100,000,000
Facility Agreement
dated
[
] (the "Agreement")
1. |
We refer to the Agreement. This is a Utilisation Request.
Terms defined in the Agreement have the same meaning in this Utilisation
Request unless given a different meaning in this Utilisation
Request. |
|
|
2. |
We wish to borrow a Loan on the following
terms: |
|
Proposed Utilisation Date: |
[
] (or, if that is not a Business Day, the next Business Day) |
|
|
|
|
Currency of Loan: |
[
] |
|
|
|
|
Amount: |
[
] or, if less, the Available Facility |
|
|
|
|
Interest Period: |
[
] |
3. |
We confirm that each condition specified in Clause 4.2
(Further conditions precedent) is satisfied on the date of this
Utilisation Request. |
|
|
4. |
The proceeds of this Loan should be credited to
[account]. |
|
|
5. |
This Utilisation Request is
irrevocable. |
Yours faithfully
____________________________________
authorised signatory
for
[name of relevant Borrower]
119
SCHEDULE 4
Mandatory Cost formulae
1. |
The Mandatory Cost is an addition to the interest rate to
compensate Lenders for the cost of compliance with (a) the requirements of
the Bank of England and/or the Financial Services Authority (or, in either
case, any other authority which replaces all or any of its functions) or
(b) the requirements of the European Central Bank. |
|
|
2. |
On the first day of each Interest Period (or as soon as
possible thereafter) the Facility Agent shall calculate, as a percentage
rate, a rate (the "Additional Cost Rate") for each Lender, in
accordance with the paragraphs set out below. The Mandatory Cost will be
calculated by the Facility Agent as a weighted average of the Lenders'
Additional Cost Rates (weighted in proportion to the percentage
participation of each Lender in the relevant Loan) and will be expressed
as a percentage rate per annum. |
|
|
3. |
The Additional Cost Rate for any Lender lending from a
Facility Office in a Participating Member State will be the percentage
notified by that Lender to the Facility Agent. This percentage will be
certified by that Lender in its notice to the Facility Agent to be its
reasonable determination of the cost (expressed as a percentage of that
Lender's participation in all Loans made from that Facility Office) of
complying with the minimum reserve requirements of the European Central
Bank in respect of loans made from that Facility Office. |
|
|
4. |
The Additional Cost Rate for any Lender lending from a
Facility Office in the United Kingdom will be calculated by the Facility
Agent as follows: |
|
(a) |
in relation to a sterling Loan: |
|
|
|
|
|
AB + C ( B − D) + E
× 0 01.per cent. per annum |
|
|
100 − ( A + C ) |
|
|
|
|
(b) |
in relation to a Loan in any currency other than
sterling: |
|
|
|
|
|
E × 0 01. per cent. per annum.
300 |
Where:
|
A |
is the percentage of Eligible Liabilities (assuming these
to be in excess of any stated minimum) which that Lender is from time to
time required to maintain as an interest free cash ratio deposit with the
Bank of England to comply with cash ratio requirements. |
|
|
|
|
B |
is the percentage rate of interest (excluding the Margin
and the Mandatory Cost and, if the Loan is an Unpaid Sum, the additional
rate of interest specified in paragraph (a) of Clause 9.3 (Default
interest)) payable for the relevant Interest Period on the
Loan. |
|
|
|
|
C |
is the percentage (if any) of Eligible Liabilities which
that Lender is required from time to time to maintain as interest bearing
Special Deposits with the Bank of England. |
|
|
|
|
D |
is the percentage rate per annum payable by the Bank of
England to the Facility Agent on interest bearing Special
Deposits. |
|
|
|
|
E |
is designed to compensate Lenders for amounts payable
under the Fees Rules and is calculated by the Facility Agent as being the
average of the most recent rates of charge supplied by the Reference Banks to the
Facility Agent pursuant to paragraph 7 below and expressed in pounds per
£1,000,000. |
120
5. |
For the purposes of this Schedule: |
|
|
|
|
(a) |
"Eligible Liabilities" and "Special
Deposits" have the meanings given to them from time to time under or
pursuant to the Bank of England Act 1998 or (as may be appropriate) by the
Bank of England; |
|
|
|
|
(b) |
"Fees Rules" means the rules on periodic fees
contained in the Financial Services Authority Fees Manual or such other
law or regulation as may be in force from time to time in respect of the
payment of fees for the acceptance of deposits; |
|
|
|
|
(c) |
"Fee Tariffs" means the fee tariffs specified in
the Fees Rules under the activity group A.1 Deposit acceptors (ignoring
any minimum fee or zero rated fee required pursuant to the Fees Rules but
taking into account any applicable discount rate); and |
|
|
|
|
(d) |
"Tariff Base" has the meaning given to it in, and
will be calculated in accordance with, the Fees Rules. |
|
|
|
6. |
In application of the above formulae, A, B, C and D will
be included in the formulae as percentages (i.e. 5 per cent. will be
included in the formula as 5 and not as 0.05). A negative result obtained
by subtracting D from B shall be taken as zero. The resulting figures
shall be rounded to four decimal places. |
|
|
|
7. |
If requested by the Facility Agent, each Reference Bank
shall, as soon as practicable after publication by the Financial Services
Authority, supply to the Facility Agent, the rate of charge payable by
that Reference Bank to the Financial Services Authority pursuant to the
Fees Rules in respect of the relevant financial year of the Financial
Services Authority (calculated for this purpose by that Reference Bank as
being the average of the Fee Tariffs applicable to that Reference Bank for
that financial year) and expressed in pounds per £1,000,000 of the Tariff
Base of that Reference Bank. |
|
|
|
8. |
Each Lender shall supply any information required by the
Facility Agent for the purpose of calculating its Additional Cost Rate. In
particular, but without limitation, each Lender shall supply the following
information on or prior to the date on which it becomes a
Lender: |
|
|
|
|
(a) |
the jurisdiction of its Facility Office; and |
|
|
|
|
(b) |
any other information that the Facility Agent may
reasonably require for such purpose. |
|
|
|
|
Each Lender shall promptly notify the Facility Agent of
any change to the information provided by it pursuant to this
paragraph. |
|
|
|
9. |
The percentages of each Lender for the purpose of A and C
above and the rates of charge of each Reference Bank for the purpose of E
above shall be determined by the Facility Agent based upon the information
supplied to it pursuant to paragraphs 7 and 8 above and on the assumption
that, unless a Lender notifies the Facility Agent to the contrary, each
Lender's obligations in relation to cash ratio deposits and Special
Deposits are the same as those of a typical bank from its jurisdiction of incorporation with
a Facility Office in the same jurisdiction as its Facility
Office. |
121
10. |
The Facility Agent shall have no liability to any person
if such determination results in an Additional Cost Rate which over or
under compensates any Lender and shall be entitled to assume that the
information provided by any Lender or Reference Bank pursuant to
paragraphs 3, 7 and 8 above is true and correct in all respects. |
|
|
11. |
The Facility Agent shall distribute the additional
amounts received as a result of the Mandatory Cost to the Lenders on the
basis of the Additional Cost Rate for each Lender based on the information
provided by each Lender and each Reference Bank pursuant to paragraphs 3,
7 and 8 above. |
|
|
12. |
Any determination by the Facility Agent pursuant to this
Schedule in relation to a formula, the Mandatory Cost, an Additional Cost
Rate or any amount payable to a Lender shall, in the absence of manifest
error, be conclusive and binding on all Parties. |
|
|
13. |
The Facility Agent may from time to time, after
consultation with HWDC and the Lenders, determine and notify to all
Parties any amendments which are required to be made to this Schedule in
order to comply with any change in law, regulation or any requirements
from time to time imposed by the Bank of England, the Financial Services
Authority or the European Central Bank (or, in any case, any other
authority which replaces all or any of its functions) and any such
determination shall, in the absence of manifest error, be conclusive and
binding on all Parties. |
122
SCHEDULE 5
Form of Transfer Certificate
To: |
Standard Chartered Bank as
Facility Agent |
|
|
From: |
[The Existing Lender] (the
"Existing Lender") and [The New Lender] (the "New
Lender") |
|
|
Dated: |
|
Harry Winston Diamond Corporation US$100,000,000 Facility
Agreement
dated [
] (the "Agreement")
1. |
We refer to the Agreement. This is a Transfer
Certificate. Terms defined in the Agreement have the same meaning in this
Transfer Certificate unless given a different meaning in this Transfer
Certificate. |
|
|
2. |
We refer to Clause 24.5 (Procedure for
transfer): |
|
(a) |
The Existing Lender and the New Lender agree to the
Existing Lender transferring to the New Lender by novation all or part of
the Existing Lender's Commitment, rights and obligations referred to in
the Schedule in accordance with Clause 24.5 (Procedure for
transfer). |
|
|
|
|
(b) |
The proposed Transfer Date is
[ ]. |
|
|
|
|
(c) |
The Facility Office and address, fax number and attention
details for notices of the New Lender for the purposes of Clause 32.2
(Addresses) are set out in the
Schedule. |
3. |
The New Lender expressly acknowledges the limitations on
the Existing Lender's obligations set out in paragraph (c) of Clause 24.4
(Limitation of responsibility of Existing Lenders). |
|
|
4. |
This Transfer Certificate may be executed in any number
of counterparts and this has the same effect as if the signatures on the
counterparts were on a single copy of this Transfer Certificate. |
|
|
5. |
This Transfer Certificate is governed by English
law. |
|
|
6. |
This Transfer Certificate has been entered into on the
date stated at the beginning of this Transfer
Certificate. |
123
THE SCHEDULE
Commitment/rights and obligations to be transferred
[insert relevant details]
[Facility Office
address, fax number and attention details for notices and account details
for
payments,]
[Existing Lender] |
[New Lender] |
|
|
By: |
By: |
This Transfer Certificate is accepted by the Facility Agent and
the Transfer Date is confirmed as
[
].
[Facility Agent]
By:
124
SCHEDULE 6
Form of Assignment Agreement
To:
Standard Chartered Bank as Facility Agent and Harry Winston Diamond Corporation,
for and on behalf of each Obligor
From: [the Existing Lender] (the
"Existing Lender") and [the New Lender] (the "New Lender")
Dated:
Harry Winston Diamond Corporation - US$100,000,000 Facility
Agreement
dated
[
] (the "Agreement")
1. |
We refer to the Agreement. This is an Assignment
Agreement. Terms defined in the Agreement have the same meaning in this
Assignment Agreement unless given a different meaning in this Assignment
Agreement. |
|
|
|
2. |
We refer to Clause 24.6 (Procedure for
assignment): |
|
|
|
|
(a) |
The Existing Lender assigns absolutely to the New Lender
all the rights of the Existing Lender under the Agreement and the other
Finance Documents which relate to that portion of the Existing Lender's
Commitments and participations in Loans under the Agreement as specified
in the Schedule. |
|
|
|
|
(b) |
The Existing Lender is released from all the obligations
of the Existing Lender which correspond to that portion of the Existing
Lender's Commitments and participations in Loans under the Agreement
specified in the Schedule. |
|
|
|
|
(c) |
The New Lender becomes a Party as a Lender and is bound
by obligations equivalent to those from which the Existing Lender is
released under paragraph (b) above. |
|
|
|
3. |
The proposed Transfer Date is
[ ]. |
|
|
|
4. |
On the Transfer Date the New Lender becomes Party to the
Finance Documents as a Lender. |
|
|
|
5. |
The Facility Office and address, fax number and attention
details for notices of the New Lender for the purposes of Clause 32.2
(Addresses) are set out in the Schedule. |
|
|
|
6. |
The New Lender expressly acknowledges the limitations on
the Existing Lender's obligations set out in paragraph (c) of Clause 24.4
(Limitation of responsibility of Existing Lenders). |
|
|
|
7. |
This Assignment Agreement acts as notice to the Facility
Agent (on behalf of each Lender, the Arranger and the Security Agent) and,
upon delivery in accordance with Clause 24.7 (Copy of Transfer
Certificate or Assignment Agreement to HWDC), to HWDC (on behalf of
each Obligor) of the assignment referred to in this Assignment
Agreement. |
|
|
|
8. |
This Assignment Agreement may be executed in any number
of counterparts and this has the same effect as if the signatures on the
counterparts were on a single copy of this Assignment Agreement. |
|
|
|
9. |
This Assignment Agreement is governed by English
law. |
|
|
|
10. |
This Assignment Agreement has been entered into on the
date stated at the beginning of this Assignment
Agreement. |
125
THE SCHEDULE
Rights to be assigned and obligations to be released and
undertaken
[insert relevant details]
[Facility office address, fax number and attention details
for notices and account details for payments]
[Existing Lender] |
[New Lender] |
|
|
By: |
By: |
This Assignment Agreement is accepted by the Facility Agent and
the Transfer Date is confirmed as
[ ].
Signature of this Assignment Agreement by the Facility Agent
constitutes confirmation by the Facility Agent of receipt of notice of the
assignment referred to herein, which notice the Facility Agent receives on
behalf of each Lender, Arranger and the Security Agent.
[Facility Agent]
By:
126
SCHEDULE 7
Form of Compliance Certificate
To: |
Standard Chartered Bank as Facility Agent |
|
|
From: |
Harry Winston Diamond Corporation |
|
|
Dated: |
|
Dear Sirs
Harry Winston Diamond Corporation UD$100,000,000 Facility
Agreement
dated [
] (the "Agreement")
1. |
We refer to the Agreement. This is a Compliance
Certificate. Terms defined in the Agreement have the same meaning when
used in this Compliance Certificate unless given a different meaning in
this Compliance Certificate. |
|
|
2. |
We confirm that: |
|
(a) |
as at [relevant testing date], the ratio of Debt
to Equity of the Restricted Group was
[ ]; |
|
|
|
|
(b) |
the ratio of Debt at the end of the last Relevant Period
to EBITDA of the Restricted Group in respect of the last Relevant Period
was []:[]; |
|
|
|
|
(c) |
the ratio of EBITDA to Interest Expense of the Restricted
Group in respect of the last Relevant Period was []:[]; and |
|
|
|
|
(d) |
the Consolidate Tangible Net Worth of the Group is at
least US$450,000,000 and as at [relevant testing date] was
[
]. |
3. |
We set out below calculations establishing the figures in
paragraph 2 above:
[
].* |
|
|
4. |
[We confirm that no Default is
continuing]. |
Signed: |
.............................. |
.................................... |
|
|
|
|
CFO |
[Authorised Officer] |
|
|
|
|
of |
of |
|
|
|
|
Harry Winston Diamond Corporation |
Harry Winston Diamond Corporation
|
* If any statement cannot be made, the certificate
should identify any Default that is continuing and the steps, if any, being
taken to remedy it.
127
SCHEDULE 8
Existing Security
Name of Obligor/ Restricted Group
person |
|
Security
|
|
Total Principal Amount of
Indebtedness Secured |
|
|
|
|
|
(1) HWDLP |
|
Security right pursuant to
section 9.4(c) of the Diavik Joint Venture Agreement. |
|
Zero. There shall be no amounts
secured by this Security. |
128
SCHEDULE 9
LMA Form of Confidentiality Undertaking
[Letterhead of Arranger]
To:
|
[insert name of Potential Lender]
|
Company: |
(the "Company") |
|
Date:
|
|
|
Amount: |
|
|
Agent: |
|
|
Dear Sirs
We understand that you are considering participating in the
Facility. In consideration of us agreeing to make available to you certain
information and to prevent front-running of the Facility, by your signature of a
copy of this letter you agree as follows:
1. |
CONFIDENTIALITY UNDERTAKING |
|
|
|
You undertake: |
|
|
1.1 |
to keep all Confidential Information confidential and not
to disclose it to anyone, save to the extent permitted by paragraph (A)2
below and to ensure that all Confidential Information is protected with
security measures and a degree of care that would apply to your own
confidential information; |
|
|
1.2 |
to keep confidential and not disclose to anyone except as
provided for by paragraph (A)2 below the fact that the Confidential
Information has been made available or that discussions or negotiations
are taking place or have taken place between us in connection with the
Facility; and |
|
|
1.3 |
to use the Confidential Information only for the
Permitted Purpose. |
|
|
2. |
PERMITTED DISCLOSURE |
|
|
|
We agree that you may disclose such Confidential
Information and such of those matters referred to in paragraph (A)1.2
above as you shall consider appropriate: |
|
|
2.1 |
to members of the Participant Group and their officers,
directors, employees, professional advisers and auditors if any person to
whom the Confidential Information is to be given pursuant to this
paragraph (A)2.1 is informed in writing of its confidential nature and
that some or all of such Confidential Information may be price-sensitive
information, except that there shall be no such requirement to so inform
if the recipient is subject to professional obligations to maintain the
confidentiality of the information or is otherwise bound by requirements
of confidentiality in relation to the Confidential
Information; |
129
2.2 |
to any person to whom information is required or
requested to be disclosed by any governmental, banking, taxation or other
regulatory authority or similar body, the rules of any relevant stock
exchange or pursuant to any applicable law or regulation; and |
|
|
2.3 |
with the prior written consent of us and the
Company. |
|
|
3. |
NOTIFICATION OF DISCLOSURE |
You agree (to the extent permitted by law and regulation) to
inform us:
3.1 |
of the circumstances of any disclosure of Confidential
Information made pursuant to paragraph (A)2.2 above except where such
disclosure is made to any of the persons referred to in that paragraph
during the ordinary course of its supervisory or regulatory function;
and |
|
|
3.2 |
upon becoming aware that Confidential Information has
been disclosed in breach of this letter. |
|
|
4. |
RETURN OF COPIES |
|
|
|
If you do not participate in the Facility and we so
request in writing, you shall return all Confidential Information supplied
to you by us and destroy or permanently erase (to the extent technically
practicable) all copies of Confidential Information made by you and use
your reasonable endeavours to ensure that anyone to whom you have supplied
any Confidential Information destroys or permanently erases (to the extent
technically practicable) such Confidential Information and any copies made
by them, in each case save to the extent that you or the recipients are
required to retain any such Confidential Information by any applicable
law, rule or regulation or by any competent judicial, governmental,
supervisory or regulatory body or in accordance with internal policy, or
where the Confidential Information has been disclosed under paragraph
(A)2.2 above. |
|
|
5. |
CONTINUING OBLIGATIONS |
|
|
|
The obligations in this letter are continuing and, in
particular, shall survive the termination of any discussions or
negotiations between you and us. Notwithstanding the previous sentence,
the obligations in Part A of this letter [(other than those set out in
paragraph A(10) below which shall remain in place until the end of the
Offer Period (as defined in paragraph A(10) below))] shall cease on the
earlier of (a) the date on which you become a party to the Facility
Agreement or (b) [twelve] months after the date of this letter. |
|
|
6. |
NO REPRESENTATION; CONSEQUENCES OF BREACH, ETC |
|
|
|
You acknowledge and agree that: |
|
|
6.1 |
neither we nor any of our officers, employees or advisers
(each a "Relevant Person") (i) make any representation or warranty,
express or implied, as to, or assume any responsibility for, the accuracy,
reliability or completeness of any of the Confidential Information or any
other information supplied by us or any member of the Group or the
assumptions on which it is based or (ii) shall be under any obligation to
update or correct any inaccuracy in the Confidential Information or any
other information supplied by us or any member of the Group or be
otherwise liable to you or any other person in respect of the Confidential
Information or any such information; and |
|
|
6.2 |
we or members of the Group may be irreparably harmed by
the breach of the terms of this letter and damages may not be an adequate
remedy; each Relevant Person or member of the Group may be granted an
injunction or specific performance for any threatened or actual breach of
the provisions of this letter by you. |
130
7. |
ENTIRE AGREEMENT; NO WAIVER; AMENDMENTS, ETC |
|
|
7.1 |
This letter constitutes the entire agreement between us
in relation to your obligations regarding Confidential Information and
supersedes any previous agreement, whether express or implied, regarding
Confidential Information. |
|
|
7.2 |
No failure or delay in exercising any right or remedy
under this letter will operate as a waiver thereof nor will any single or
partial exercise of any right or remedy preclude any further exercise
thereof or the exercise of any other right or remedy under this
letter. |
|
|
7.3 |
The terms of this letter and your obligations under this
letter may only be amended or modified by written agreement between
us. |
|
|
8. |
INSIDE INFORMATION |
|
|
|
You acknowledge that some or all of the Confidential
Information is or may be price-sensitive information and that the use of
such information may be regulated or prohibited by applicable legislation
including securities law relating to insider dealing and market abuse and
you undertake not to use any Confidential Information for any unlawful
purpose. |
|
|
9. |
NATURE OF UNDERTAKINGS |
|
|
|
The undertakings given by you under Part A of this letter
are given to us and (without implying any fiduciary obligations on our
part) are also given for the benefit of the Company and each other member
of the Group. |
|
|
10. |
[[STANDSTILL |
You acknowledge and agree that neither you nor any other member
of the Participant Group:
10.1 |
hold any shares in [offeree company] or are
otherwise interested in shares carrying voting rights in [offeree
company]; |
|
|
|
10.2 |
will: |
|
|
|
|
(a) |
acquire or offer to acquire, or cause any other person to
acquire or to offer to acquire, any shares in [offeree company] or other
interests in shares carrying voting rights in [offeree company] until the
end of the offer period (as defined in the Takeover Code) (the "Offer
Period"); or |
|
|
|
|
(b) |
enter into an agreement or arrangement (whether or not
legally binding) that would result in the acquisition of shares in
[offeree company] or other interests in shares carrying voting
rights in [offeree company] until the end of the Offer
Period, |
provided that nothing in this paragraph 10.2 shall prevent the
acquisition of shares in [offeree company] or other interests in shares
carrying voting rights in [offeree company]:
|
(c) |
carried out in a client-serving capacity by any part of
the trading operations of an entity in the Participant Group that is a
recognised intermediary within the meaning of the Takeover Code;
or |
|
|
|
|
(d) |
with the consent of the Takeover Panel, by a member of
the Participant Group as security for a loan in the normal course of
business.]/OR |
131
[10. |
INFORMATION BARRIERS
|
You acknowledge and agree that:
10.1 |
you have established information barriers between the
persons or entities within the Participant Group which are responsible
for: |
|
|
|
|
(a) |
making decisions in relation to your or their
participation in the Facility; and |
|
|
|
|
(b) |
trading, or making investment decisions in relation to,
equity investments, |
and that those information barriers comply with the minimum
standards for effective information barriers identified in Practice Statement
No. 25 ("Debt Syndication During Offer Periods") published by the Takeover Panel
Executive on 17 June 2009 (the "Information Barriers"); and
10.2 |
you will maintain the Information Barriers, and ensure
that the Confidential Information may not be accessed by any persons or
entities within the Participant Group who hold or may acquire shares in
[offeree company] or who are or may be otherwise interested in
shares carrying voting rights in [offeree company], until the end
of the offer period (as defined in the Takeover
Code).]] |
(B) |
FRONT RUNNING - PARTICIPANT |
No Front Running Undertaking
You acknowledge and agree that:
(a) |
you will not, and you will procure that no other member
of the Participant Group will engage in any Front Running; |
|
|
(b) |
if you or any other member of the Participant Group
engages in any Front Running we may suffer loss or damage [and your
position in future financings with us and the Company may be
prejudiced]; |
|
|
(c) |
if you or any other member of the Participant Group
engages in any Front Running we retain the right not to allocate to you a
participation under the Facility; |
|
|
(d) |
[you confirm that neither you nor any other member of the
Participant Group has engaged in any Front
Running.] |
[When you sign the Facility Agreement and any transfer document
under the Facility Agreement (in the case of any transfer document, only if
signed within [three/six] months after [the date of signing of the Facility
Agreement]/[the Free to Trade Time]), you will, if we so request, confirm to us
in writing that neither you nor any other member of the Participant Group has
breached the terms of this Part B of this letter.]
[Any arrangement, front-end or similar fee which may be payable
to you in connection with the Facility is only payable on condition that neither
you nor any other member of the Participant Group has breached the terms of this
Part B of this letter. This condition is in addition to any other conditions
agreed between us in relation to your entitlement to any such fee.]
(C) |
FRONT RUNNING - ARRANGER |
No Front Running Undertaking
On our receipt of a copy of this letter signed by you, we
acknowledge and agree that:
132
(a) |
we will not, and we will procure that no other member of
the Arranger Group will engage in any Front Running; |
|
|
(b) |
if we or any other member of the Arranger Group engages
in any Front Running you may suffer loss or damage [and our position in
future financings with you and the Company may be prejudiced]; |
|
|
(c) |
[we confirm that neither we nor any other member of the
Arranger Group has engaged in any Front Running.] |
[When we sign the Facility Agreement and any transfer document
under the Facility Agreement (in the case of any transfer document, only if
signed within [three/six] months after [the date of signing of the Facility
Agreement]/[the Free to Trade Time]), we will, if you so request, confirm to you
in writing that neither we nor any other member of the Arranger Group has
breached the terms of Part C of this letter.]
14. |
THIRD PARTY RIGHTS |
|
|
14.1 |
Subject to this paragraph (D)14 and to paragraphs (A)6
and (A)9, a person who is not a party to this letter has no right under
the Contracts (Rights of Third Parties) Act 1999 (the "Third Parties Act")
to enforce or to enjoy the benefit of any term of this letter. |
|
|
14.2 |
The Relevant Persons and each member of the Group may
enjoy the benefit of the terms of paragraphs (A)6 and (A)9 subject to and
in accordance with this paragraph (D)1 and the provisions of the Third
Parties Act. |
|
|
14.3 |
Notwithstanding any provisions of this letter, the
parties to this letter do not require the consent of any Relevant Person
or any member of the Group to rescind or vary this letter at any
time. |
|
|
15. |
GOVERNING LAW AND JURISDICTION |
|
|
15.1 |
This letter and the agreement constituted by your
acknowledgement of its terms (the "Letter") and any non-contractual
obligations arising out of or in connection with it (including any non-
contractual obligations arising out of the negotiation of the transaction
contemplated by this Letter) are governed by English law. |
|
|
15.2 |
The courts of England have non-exclusive jurisdiction to
settle any dispute arising out of or in connection with this Letter
(including a dispute relating to any non-contractual obligation arising
out of or in connection with either this Letter or the negotiation of the
transaction contemplated by this Letter). |
|
|
16. |
DEFINITIONS |
|
|
|
In this letter (including the acknowledgement set out
below): |
|
|
|
"Arranger Group" means us, each of our holding
companies and subsidiaries and each subsidiary of each of our holding
companies (as each such term is defined in the Companies Act 2006) and
each of our or their directors, officers and employees (including any
sales and trading teams) provided that when used in this letter in respect
of an Arranger it applies severally only in respect of that Arranger, each
of that Arranger's holding companies and subsidiaries, each subsidiary of
each of its holding companies and each director, officer and employee
(including any sales and trading teams) of that Arranger or any of the
foregoing and not, for the avoidance of doubt, those of another
Arranger. |
133
"Confidential Information" means
all information relating to the Company, any Obligor, the Group, [the Target
Group,] the Finance Documents and/or the Facility which is provided to you in
relation to the Finance Documents or Facility by us or any of our affiliates or
advisers, in whatever form, and includes information given orally and any
document, electronic file or any other way of representing or recording
information which contains or is derived or copied from such information but
excludes information that:
|
(a) |
is or becomes public information other than as a direct
or indirect result of any breach by you of this letter; or |
|
|
|
|
(b) |
is identified in writing at the time of delivery as
non-confidential by us or our advisers; or |
|
|
|
|
(c) |
is known by you before the date the information is
disclosed to you by us or any of our affiliates or advisers or is lawfully
obtained by you after that date, from a source which is, as far as you are
aware, unconnected with the Group [or the Target Group] and which, in
either case, as far as you are aware, has not been obtained in breach of,
and is not otherwise subject to, any obligation of
confidentiality. |
"Facility Agreement" means the facility agreement
entered into or to be entered into in relation to the Facility.
"Facility Interest" means a legal, beneficial or
economic interest acquired or to be acquired expressly and specifically in or in
relation to the Facility, whether as initial lender or by way of assignment,
transfer, novation, sub-participation (whether disclosed, undisclosed, risk or
funded) or any other similar method.
"Finance Documents" means the documents defined in the
Facility Agreement as Finance Documents.
"Free to Trade Time" means the time we, or any relevant
bookrunner(s), notify the parties participating as lenders of record in
Syndication of their final allocations in the Facility.
"Front Running" means undertaking any of the following
activities prior to the Free to Trade Time which is intended to or is reasonably
likely to encourage any person to take a Facility Interest except as a lender of
record in Syndication:
|
(a) |
communication with any person or the disclosure of any
information to any person in relation to a Facility Interest;
[or] |
|
|
|
|
(b) |
making a price (whether firm or indicative) with a view
to buying or selling a Facility Interest; [or] |
|
|
|
|
(c) |
[entering into (or agreeing to enter into) any agreement,
option or other arrangement, whether legally binding or not, giving rise
to the assumption of any risk or participation in any exposure in relation
to a Facility Interest], |
excluding where any of the foregoing is:
(i) |
made to or entered into by you with another member of the
Participant Group (in the case of the undertaking made by you in this
letter) or by us with another member of the Arranger Group (in the case of
the undertaking made by us in this letter); or |
|
|
(ii) |
an act of a member of the Participant Group (in the case
of the undertaking made by you in this letter) or the Arranger Group (in
the case of the undertaking made by us in this
letter) who in each case is operating on the
public side of an information barrier unless such person is acting on the
instructions of a person who has received Confidential Information and is aware
of the proposed Facility. |
134
"Group" means the Company and its subsidiaries for the
time being (as such term is defined in the Companies Act 2006).
["interests in shares" shall have the same meaning as
"interests in securities" under the Takeover Code.]
"Obligor" means a borrower or a guarantor under the
Facility Agreement.
"Participant Group" means you, each of your holding
companies and subsidiaries and each subsidiary of each of your holding companies
(as each such term is defined in the Companies Act 2006) and where such term is
used in Part B of this letter and the definition of "Front Running" each of your
or their directors, officers and employees (including any sales and trading
teams).
"Permitted Purpose" means considering and evaluating
whether to enter into the Facility.
"Syndication" means the primary syndication of the
Facility.
["Takeover Code" means The City Code on Takeovers and
Mergers.]
["Takeover Panel" means the Panel on Takeovers and
Mergers.]
["Target" means [].]
["Target Group" means the Target and its subsidiaries
(as such term is defined in the Companies Act 2006).]
Please acknowledge your agreement to the above by signing and
returning the enclosed copy.
Yours faithfully
. . . . . . . . . . . . .
.. . . . . . . .
For and on behalf of
Standard Chartered Bank
135
To: |
Standard Chartered Bank |
|
The Company and each other member
of the Group |
We acknowledge and agree to the above:
. . . . . . . . . .
.. . . . . . . . . . .
For and on behalf of
[Potential Lender]
136
SCHEDULE 10
Timetables
|
Loans in US$
|
Loans in CA$
|
Delivery of a duly completed Utilisation Request (Clause
5.1 (Delivery of a Utilisation Request) |
U-3
10:00 (in London, England) |
U-4
10:00 (in London, England) |
Facility Agent determines (in relation to a Utilisation)
the Base Currency Amount of the Loan if required under Clause 5.4
(Lenders' participation) |
N/A |
U-3 |
Facility Agent notifies the Lenders of the Loan in
accordance with Clause 5.4 (Lenders' participation). |
Promptly |
U-3 |
Facility Agent receives a notification from a Lender
under Clause 6.2 (Unavailability of a currency) |
N/A |
U-3 |
LIBOR/Cost of Funds is fixed |
Quotation Day
11:00 (in London,
England) |
Quotation Day
11:00 (in London,
England) |
"U" = date of Utilisation
"U-X" = X Business Days prior to date of utilisation
137
SCHEDULE 11
Form of Kinross Consent
CONSENT AND AGREEMENT
THIS
CONSENT AND AGREEMENT (this Agreement) dated as of this _____ day of
June, 2010 is between KINROSS GOLD CORPORATION, a corporation amalgamated under
the laws of the Province of Ontario (Kinross), HARRY WINSTON DIAMOND
CORPORATION, a corporation continued under the laws of Canada (HWDC),
HARRY WINSTON DIAMOND MINES LTD., a corporation incorporated under the laws of
the Northwest Territories (HWDM and, together with HWDC, the
Borrowers), 6355137 CANADA INC., a corporation incorporated under the
laws of Canada (Canada Inc. and, together with the Borrowers, the
Obligors) and STANDARD CHARTERED BANK (SCB), as agent for
itself and certain other financial institutions (the Lenders) from time
to time party to that certain facility agreement to be entered into between the
Obligors, SCB and certain financial institutions to be listed therein,
including, on accession SCB as hedging counterparty (as amended, supplemented,
restated or modified from time to time, the Facility Agreement).
WHEREAS,
Kinross and HWDC are party to a subscription agreement made as of the 19th day
of March, 2009 (the Subscription Agreement) pursuant to which Kinross
subscribed for, inter alia, common shares in the capital of HWDC, special
voting shares in the capital of HWDM and partnership units in Harry Winston
Diamond Limited Partnership (HWDLP);
AND
WHEREAS, Kinross, HWDC and HWDM are party to a shareholders agreement made March
31, 2009 (the Shareholders Agreement) recording their agreement,
inter alia, as to the manner in which HWDMs affairs shall be conducted;
AND
WHEREAS, HWDM, Canada Inc. and Kinross are party to an amended limited
partnership agreement with respect to HWDLP made and entered into as of March
31, 2009 (the Partnership Agreement and, together with the Subscription
Agreement and the Shareholders Agreement, the Kinross Documents)
recording their agreement, inter alia, as to the manner in which HWDLPs
affairs shall be conducted;
AND
WHEREAS, HWDC, HWDM and Canada Inc.s desire to enter into the Facility
Agreement with SCB and the Lenders pursuant to which, inter alia, the
Lenders will agree to extend commitments to make loans and other financial
accommodations (including SCB providing hedging facilities) to and for the
benefit of the Borrowers and each of the Obligors will guarantee the obligations
of the Borrowers;
138
AND
WHEREAS, as collateral security for their obligations under the Facility
Agreement and related documents, including hedging facilities provided by SCB
(collectively the Finance Documents), HWDC, HWDM and Canada Inc. have
agreed to enter into certain security agreements with SCB, as agent for itself
and the Lenders (including SCB in its capacity as hedging counterparty) as
follows: (i) HWDC has agreed to grant SCB a first priority security interest in
the shares in the capital of HWDM, and all warrants, options and other rights to
acquire such shares, which HWDC now owns or may hereafter acquire; (ii) HWDM has
agreed to grant SCB a first priority security interest in all of its present and
after-acquired property; (iii) HWDM has agreed to grant SCB a first priority
security interest in its Partnership Units and the GP Interest (each as defined
below) now owned or hereafter acquired; (iv) Canada Inc. has agreed to grant SCB
a first priority security interest in its Partnership Units now owned or
hereafter acquired; and (v) Canada Inc. has agreed to grant SCB a first priority
security interest in all of its current and after-acquired property
(collectively, the Security);
AND
WHEREAS, as a result of the interest held by Kinross in the Borrowers, Kinross
will be deriving a benefit from extension by the Lenders of loans and other
financial accommodations to and for the benefit of the Borrowers;
AND
WHEREAS, the Kinross Documents require HWDC, HWDM and Canada Inc. to obtain the
consent of Kinross to them entering into the Finance Documents and to the
granting of the Security;
NOW
THEREFORE in consideration of the premises and mutual covenants herein contained
and other good and valuable consideration (the receipt and sufficiency of which
is hereby acknowledged), the parties hereby acknowledge and agree as follows:
1. Defined Terms.
The terms Acceptable Consideration, Default Option, Encumbrances,
Fair Market Value, Funding Notice, GP Interest, HW Partner, Income Tax
Act, Kinross Partner, Limited Partner, Partner in Default, Partnership
Units, Person, Related Entity, Third Party, Total Interest, Transfer
and Transferee shall have the respective meanings ascribed thereto in the
Partnership Agreement. The term Special Voting Shares shall have the meaning
ascribed thereto in the Shareholders Agreement. The term Secured Party means
the party enforcing the security interest granted pursuant to the Security and
includes, as the context requires, SCB, any agent or receiver acting for SCB and
any receiver or receiver-manager or like officer appointed by order of the court
over the assets of an Obligor. The HW Group means HWDC and any Related Entity
of HWDC, including HWDM and Canada Inc. The Kinross Group means Kinross and
any Related Entity of Kinross. The HW Group Interest means the Total Interest
of the HW Group and the GP Interest (to the extent that the GP
Interest is held by the HW Group). Partnership Event of Default shall have the
meaning ascribed to Event of Default in the Partnership Agreement.
Partnership Independent Valuator shall have the meaning ascribed to
Independent Valuator in the Partnership Agreement.
139
|
(a) |
Kinross hereby consents to the execution and delivery of
the Finance Documents and the creation, grant and registration of the
Security and the exercise and performance by the Obligors and by SCB, the
Lenders and the Secured Party of their respective rights, remedies and
obligations under the Finance Documents on the basis set forth in this
Agreement and agrees that the execution and delivery of the Finance
Documents and the creation, grant and registration of the Security and the
exercise and performance by the Obligors and by SCB, the Lenders and the
Secured Party of their respective rights, remedies and obligations under
the Finance Documents on the basis set forth in this Agreement shall not
constitute a breach under or a default of the Kinross Documents.
Notwithstanding anything to the contrary contained in the Partnership
Agreement or Shareholders Agreement but subject to the Secured Partys
compliance with paragraphs 3, 4, 5, 6 and 7 of this Agreement, Kinross
acknowledges and agrees that the Security and any enforcement thereof
shall have priority over and shall not be subordinate or subject to the
provisions of the Partnership Agreement or the Shareholders Agreement, or
give rise to rights thereunder. For greater certainty, the Partnership
Agreement or the Shareholders Agreement shall continue to apply to any
Transfer or proposed Transfer made or to be made by a member of the HW
Group that is not in connection with a Secured Party exercising its rights
and remedies under the Finance Documents. |
|
|
|
|
(b) |
Kinross shall use reasonable efforts
to: |
|
(i) |
notify SCB promptly upon it becoming aware that any HW
Partner is a "Partner in Default"; |
|
|
|
|
|
(ii) |
deliver to SCB a copy of: |
|
|
|
|
|
|
(A) |
any notice given by Kinross to a HW Partner or the
General Partner pursuant to Section 9.2(1)(a) of the Partnership
Agreement; and |
|
|
|
|
|
|
(B) |
any report (or other document) setting out the Fair
Market Value of the Total Interest of the Partner in Default, as
determined in accordance with the Partnership Agreement (the
Partnership FMV Report), |
140
provided, however, that, in each case,
Kinross shall incur no liability by reason of a failure in good faith to provide
such notice or any such Partnership FMV Report.
|
(a) |
The Secured Party shall be permitted to Transfer to a
Third Party pursuant to the exercise of its rights and remedies under the
Finance Documents all or any part of the ROFR Offered Interest (as defined
below) provided that: |
|
(i) |
The Secured Party has delivered a Notice of Default (as
defined below) to Kinross pursuant to paragraph 6(a) and no Notice of
Revocation (as defined below) has been subsequently delivered by the
Secured Party to Kinross in respect of the Event of Default (as defined in
the Facility Agreement) that is the subject of that Notice of
Default; |
|
|
|
|
(ii) |
Subject to paragraph 6(b), the Secured Party has
delivered to Kinross the Valuation (as defined below) contemplated by
paragraph 6(g); |
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(iii) |
Subject to paragraph 6(b), Kinross has not delivered a
Default Option Notice within the Default Option Exercise Period (as
defined below) to the Secured Party pursuant to paragraph 6(g); |
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(iv) |
The Secured Party has delivered a Notice of Transfer (as
defined below) with respect to the ROFR Offered Interest to Kinross
pursuant to paragraph 4(a); |
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(v) |
Kinross has not delivered a ROFR Notice within the ROFR
Exercise Period (as defined below) to the Secured Party pursuant to
paragraph 4(b); |
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(vi) |
The Secured Party has complied with paragraph
5; |
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(vii) |
The Transferee of the Partnership Units has agreed in
writing to become a party to and be bound by the terms of the Partnership
Agreement as a Limited Partner by executing a form of counterpart and
acknowledgment substantially in the form attached as Schedule C to the
Partnership Agreement and delivered an original executed version of such
form to Kinross; |
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(viii) |
The Secured Party concurrently Transfers to the
Transferee of the Partnership Units for $0.01 per Special Voting Share the
same proportion of Special Voting Shares owned by the HW Group as the
Partnership Units Transferred to such Transferee is of the HW Groups Partnership Units
immediately prior to the Transfer, rounded up to the nearest whole
number; |
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(ix) |
Such Transfer will not be to: |
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(A) |
a non-resident of Canada for purposes of the Income Tax
Act (Canada) (the Income Tax Act), |
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(B) |
a partnership, other than a partnership that is a
Canadian partnership as defined in the Income Tax Act, |
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(C) |
a person or partnership whose interest in HWDLP would be
a tax shelter for purposes of subsection 237.1(1) of the Income Tax
Act; |
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(D) |
any person or partnership, if an interest in the person
or partnership, as the case may be, is a tax shelter investment for
purposes of the Income Tax Act; |
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(E) |
one or more persons or partnerships, if such Transfer
could cause HWDLP to be a SIFT partnership for purposes of the Income Tax
Act; or |
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(F) |
any person or partnership, if, in the opinion of the
Secured Party (acting reasonably following consultation with Kinross
(acting reasonably)), such Transfer would have a material adverse tax
impact on HWDLP or any Kinross Partner at the date of such Transfer as a
result of a change of law that is announced on or after the date of this
Agreement and is in effect as at the date of such Transfer, provided that
if Kinross disagrees (acting reasonably) with the Secured Partys opinion,
the Secured Party and Kinross shall jointly retain independent tax counsel
(with costs of the same to be borne by Kinross but reimbursed to Kinross
by the Secured Party if it is finally determined that the Secured Party's
opinion was incorrect) to make a final determination (such determination
to be made within 10 days of delivery of a Notice of Transfer in respect
of that particular person or partnership by the Secured Party to Kinross
under paragraph 4(a)) as to whether such Transfer would have a material
adverse tax impact on HWDLP or any Kinross Partner at the date of such
Transfer. |
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(x) |
Such Transfer will not require the qualification for
distribution or the registration of, or will not cause HWDLP to be
required to qualify or register, the Partnership Units pursuant to any
applicable law; and |
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(xi) |
All requirements of applicable law in respect of such
Transfer have been satisfied. |
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(b) |
The Secured Party shall be permitted to Transfer the GP
Interest (to the extent that the GP Interest is held by the HW Group) to a
newly-formed Canadian corporation that is wholly-owned by a Third Party
(the New GP) pursuant to the exercise of its rights and remedies
under the Finance Documents provided that: |
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(i) |
The Secured Party concurrently transfers to such Third
Party and/or its Related Entities at least a majority of the then
outstanding Partnership Units in accordance with paragraph 3(a); |
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(ii) |
The New GP shall issue to the holders of Special Voting
Shares (taking into account the Transfer contemplated pursuant to
paragraph 3(a)(viii)) for nominal consideration voting securities in the
capital of the New GP (each, a Voting Share) in the same
proportions as the Special Voting Shares are then outstanding, as at the
date of the Transfer of the GP Interest to the New GP; |
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(iii) |
Such Third Party and its Related Entities shall not own
any voting securities in the capital of the New GP other than Voting
Shares; |
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(iv) |
The holders of Voting Shares and the New GP shall enter
into a shareholders agreement in substantially the form of the
Shareholders Agreement and conferring on Kinross rights and obligations
that are no less favourable as those conferred on it under the
Shareholders Agreement, as the same may be amended, restated or replaced
from time to time in accordance with the terms thereof and this
Agreement; |
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(v) |
Such Transfer will not be to: |
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(A) |
a non-resident of Canada for purposes of the Income Tax
Act, |
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(B) |
a partnership, other than a partnership that is a
Canadian partnership as defined in the Income Tax
Act, |
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(C) |
a person or partnership whose interest in HWDLP would be
a tax shelter for purposes of subsection 237.1(1) of the Income Tax
Act; |
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(D) |
any person or partnership, if an interest in the person
or partnership, as the case may be, is a tax shelter investment for
purposes of the Income Tax Act; |
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(E) |
one or more persons or partnerships, if such Transfer
could cause HWDLP to be a SIFT partnership for purposes of the Income Tax
Act; or |
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(F) |
any person or partnership, if, in the opinion of the
Secured Party (acting reasonably following consultation with Kinross
(acting reasonably)), such Transfer would have a material adverse tax
impact on HWDLP or any Kinross Partner at the date of such Transfer as a
result of a change of law that is announced on or after the date of this
Agreement and is in effect as at the date of such Transfer, provided that
if Kinross disagrees (acting reasonably) with the Secured Partys opinion,
the Secured Party and Kinross shall jointly retain independent tax counsel
(with costs of the same to be borne by Kinross but reimbursed to Kinross
by the Secured Party if it is finally determined that the Secured Party's
opinion was incorrect) to make a final determination (such determination
to be made within 10 days of delivery of a Notice of Transfer in respect
of that particular person or partnership by the Secured Party to Kinross
under paragraph 4(a)) as to whether such Transfer would have a material
adverse tax impact on HWDLP or any Kinross Partner at the date of such
Transfer. |
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(vi) |
Such Transfer will not require the qualification for
distribution or the registration of, or will not cause HWDLP to be
required to qualify or register, the Partnership Units or the GP Interest
pursuant to any applicable law; and |
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(vii) |
All requirements of applicable law in respect of such
Transfer have been satisfied. |
4. |
Right of First Refusal. |
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(a) |
Prior to any Transfer by the Secured Party to a Third
Party pursuant to the exercise of its rights and remedies under the
Finance Documents or pursuant to applicable law, the Secured Party shall obtain from
such Third Party a bona fide offer in writing which offer shall be irrevocable
for a period of not less than 30 days from the start of the ROFR Exercise Period
and shall give notice of such proposed Transfer (the Notice of
Transfer), with a copy of the offer in question, to Kinross. The Notice of
Transfer shall set out the part (or all) of the HW Group Interest that such
Third Party has offered to purchase (the ROFR Offered Interest), the
closing date of the Transfer (which shall not be earlier than the day
immediately following the expiry of the ROFR Exercise Period), the name of the
Third Party and the price (the ROFR Purchase Price) at which, and the
other terms upon which, such ROFR Offered Interest is to be Transferred;
provided that: |
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(i) |
the ROFR Purchase Price for the ROFR Offered Interest
shall only be satisfied using Acceptable Consideration; |
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(ii) |
the offer for the ROFR Offered Interest shall contain no
term or condition which is so unique or unusual as to render it incapable
to being matched or performed on a commercially reasonable basis (other
than for monetary reasons) by any Person dealing at arms length with the
Secured Party; and |
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(iii) |
the ROFR Purchase Price shall be net of any consent fee
or other charge that would have been payable to any Third Party on the
Transfer of the ROFR Offered Interest to any Person other than the Kinross
Group. |
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(b) |
Kinross shall have the right, exercisable by notice in
writing (the ROFR Notice) given to the Secured Party within 30
days of (subject to paragraph (c) below and paragraph 6(b)) the later to
occur of: (i) receipt of the Notice of Transfer and (ii) the expiry of the
Default Option Exercise Period (such 30 day period, the ROFR Exercise
Period), to purchase all (but not less than all) of the ROFR Offered
Interest for the ROFR Purchase Price. If Kinross does not give such notice
within the ROFR Exercise Period, the Secured Party may, subject to
paragraphs 3 and 5, Transfer the ROFR Offered Interest to the Third Party
within 90 days after the expiry of the ROFR Exercise Period, for a price
not less than the ROFR Purchase Price and on other terms no more
favourable to such Third Party than those set forth in the Notice of
Transfer. If any of the ROFR Offered Interest is not so sold within such
90 day period, the Secured Party shall, before the Transfer of any of such
ROFR Offered Interest, be required to offer such ROFR Offered Interest
again to Kinross pursuant to this paragraph 4. |
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(c) |
For greater certainty, if, pursuant to paragraph 6(b)
below, no Default Option Exercise Period has arisen or will arise then the
ROFR Exercise Period will be the 30 day period commencing on the date of
receipt of the Notice of Transfer. |
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5. |
Co-Sale Right |
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(a) |
If the Secured Party has given Notice of Transfer
pursuant to paragraph 4(a) with respect to the proposed Transfer of the
ROFR Offered Interest to a Third Party, and the right of first refusal
under paragraph 4 hereof with respect to such ROFR Offered Interest has
either not been exercised by Kinross prior to the expiry of the ROFR
Exercise Period or has been specifically declined, each of the Kinross
Partners shall have the right to Transfer (the Co-Sale Right)
that portion of the Total Interest determined in accordance with paragraph
5(c) (the Co-Sale Interest) held by such Kinross Partners to the
Third Party upon the same terms and at the same price as those set forth
in the Notice of Transfer (provided, for greater certainty, that the
Secured Party shall not be liable for any breach or default on the part of
the Third Party) and the Secured Party shall not Transfer any of the ROFR
Offered Interest to the Third Party, except upon compliance with this
paragraph 5 and provided, for greater certainty, that there has been no
breach or default on the part of the Third Party in purchasing the Co-Sale
Interest in compliance with this paragraph 5. |
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(b) |
Within the ROFR Exercise Period, each Kinross Partner
that desires to Transfer its Co-Sale Interest, which it is entitled to
Transfer to the Third Party in accordance with this paragraph 5, shall
give written notice to the Secured Party and the Third Party and, upon
giving such notice, such Kinross Partners shall be bound to Transfer such
portion of the Co-Sale Interest to the Third Party, in accordance with
such notice and this paragraph 5. |
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(c) |
Each Kinross Partner who exercises its Co-Sale Right
pursuant to paragraph 5(b) shall have the right to Transfer to the Third
Party a portion of its Total Interest that is equal to: |
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(i) |
in the case of the Partnership Units included in such
Total Interest, the product obtained by multiplying: |
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(A) |
the number of Partnership Units owned by such Kinross
Partner immediately before the consummation of the Transfer to the Third
Party of the ROFR Offered Interest, by |
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(B) |
a fraction, the numerator of which is the aggregate
number of Partnership Units included in the ROFR Offered Interest and the
denominator of which is the total number of Partnership Units owned by the
HW Group (or otherwise held by the Secured Party in connection with the
enforcement of its security interest) immediately before the consummation
of the Transfer to the Third Party of the ROFR Offered
Interest; |
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(ii) |
in the case of the loans included in such Total Interest,
the product obtained by multiplying: |
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(A) |
the aggregate principal amount outstanding of the loans
to HWDLP held by such Kinross Partner immediately before the consummation
of the Transfer of the ROFR Offered Interest, by |
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(B) |
a fraction, the numerator of which is the aggregate
principal amount of the loans included in the ROFR Offered Interest and
the denominator of which is the aggregate principal amount outstanding of
the loans to HWDLP owned by the HW Group (or otherwise held by the Secured
Party in connection with the enforcement of its security interest)
immediately prior to the consummation of the Transfer of the ROFR Offered
Interest to the Third Party. |
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(d) |
No Kinross Partner shall be obliged, in connection with
any Transfer under this paragraph 5, to provide representations,
warranties or indemnities with respect to any matter other than its
capacity, and title to its Co-Sale Interest or right to Transfer its
Co-Sale Interest and no Kinross Partner shall be liable for more than its
pro rata share (based upon the amount of consideration received) of any
liability for misrepresentation or indemnity, and such liability shall not
exceed the total purchased price received by such Kinross Partner for its
Co-Sale Interest. |
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(e) |
If a Kinross Partner fails to give a notice under
paragraph 5(b) within the ROFR Exercise Period, then such Kinross Partner
shall be deemed to have waived its Co- Sale Right hereunder with respect
to the proposed Transfer referred to in the Notice of
Transfer. |
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(a) |
Subject to paragraph 6(b) below, prior to any Transfer by
the Secured Party to a Third Party pursuant to the exercise of its rights
and remedies under the Finance Documents and applicable law, the Secured
Party shall have given notice pursuant to this paragraph 6(a) and Kinross
shall have been afforded the opportunity of exercising its rights under
paragraph 6(g). The Secured Party may, at any time that an Event of
Default has occurred and is continuing under, and as defined in, the
Facility Agreement, deliver to Kinross notice of such Event of Default (a
Notice of Default), together with a certificate signed by a
representative of the Secured Party certifying that an Event of Default
has occurred and is continuing under, and as defined in, the Facility
Agreement. If the Secured Party has delivered to Kinross a Notice of
Default, then the Secured Party shall promptly deliver to Kinross notice
if such Event of Default is no longer continuing (a Notice of
Revocation). |
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(b) |
Upon receipt of a Notice of Default and unless and until
a Notice of Revocation is given, no Kinross Partner shall have the right
to exercise its Default Option pursuant to Section 9.2(1)(a) of the
Partnership Agreement (and for greater certainty, no obligation for the
General Partner to appoint the Partnership Independent Valuator shall
arise), provided that if a Kinross Partner has issued a notice pursuant to
Section 9.2(1)(a) of the Partnership Agreement exercising its Default
Option prior to the Notice of Default being delivered to Kinross and the
Partnership Independent Valuator has been appointed, and such notice has
not expired or been revoked by Kinross, then: |
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(i) |
Kinross shall promptly notify the Secured Party to that
effect upon receipt of the Notice of Default (if it has not already done
so pursuant to paragraph 2(b) above); |
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(ii) |
subject to paragraph 6(b)(v) below, that Notice of
Default shall have no force or effect in relation to any Kinross Partner,
and as a result no Transfer to a Third Party of either the ROFR Offered
Interest or the GP Interest pursuant to paragraphs 3(a) or 3(b) may take
place while the Partnership Independent Valuator is carrying out its
valuation or during the related LPA Determination Period or, to the extent
it arises, the LPA Transfer Period (each as defined below); |
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(iii) |
such Kinross Partner shall be entitled to complete the
contemplated Transfer pursuant to Article 9 of the Partnership Agreement,
provided that the Kinross Partner, notwithstanding Section
9.2(1)(a)(i) of the Partnership Agreement, shall have: |
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(A) |
either: |
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(I) a period of 30 days commencing on the date of
delivery of the applicable Partnership FMV Report, or |
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(II) if when the Notice of Default is delivered by the
Secured Party, the Partnership FMV report has already been delivered, a
period commencing on the date of receipt of the Notice of Default and
ending on the earlier of (x) the day falling 30 days after the date of
receipt by the Kinross Partner of the Notice of Default and (y) the last
day of the 180 day period referred to in Section 9.2(1)(a)(i) of the
Partnership Agreement, |
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(that period being the "LPA Determination
Period") |
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to determine whether it wishes to exercise its Default
Option in respect of the whole of the Total Interest of the HW Partners
and to give written notice of its decision in such 30 day period (the
"Partnership Default Option Notice") to the HW Partners and the Secured
Party, after which period each Kinross Partner shall cease to have the
right to exercise the Default Option; and |
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(B) |
if it has decided to exercise the Default Option and has
given the Partnership Default Option Notice (confirming that it wishes to
exercise the Default Option) within the LPA Determination Period, a
further period of 30 days commencing on the date of the Partnership
Default Option Notice to complete the Transfer of the same (the "LPA
Transfer Period") after which period any purported Transfer pursuant to
Section 9.3 of the Partnership Agreement shall not be effective in respect
of such Default Option; |
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(iv) |
the remaining provisions of this paragraph 6 (including
for greater certainty the obligation to appoint the Independent Valuator
in paragraph 6(c) and the rights of any Kinross Partner in paragraph 6(g))
shall cease to be applicable in respect of either the exercise of the
Default Option or the Notice of Default (if subsequently in effect
pursuant to paragraph 6(b)(v) below); for greater certainty, this shall be the case even in the event that
that any Kinross Partner subsequently either notifies the Secured Party
that it has decided not to proceed with the exercise of its rights under
Section 9.2(1)(a) of the Partnership Agreement, or fails to complete the
Transfer in the applicable LPA Transfer Period pursuant to the exercise of
such rights; |
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(v) |
in the event that the Kinross Partner in question
subsequently either notifies the Secured Party that it has decided not to
proceed with the exercise of its rights under Section 9.2(1)(a) of the
Partnership Agreement, or fails to complete the Transfer pursuant to the
exercise of such rights in the applicable LPA Transfer Period, the Secured
Party may proceed with any sale of the ROFR Offered Interest and the GP
Interest pursuant to the remaining provisions of Sections 3(a) and/or
3(b), but without any further requirement to comply with the provisions of
this paragraph 6. Kinross shall provide prompt written notification to the
Secured Party of any such determination by a Kinross Partner that it does
not wish to proceed any further with the exercise of its rights under
Section 9.2(1)(a) of the Partnership
Agreement. |
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(c) |
Subject to paragraph (b) above, promptly after a Notice
of Default has been given and provided that a Notice of Revocation has not
been given, the Secured Party shall appoint as an independent valuator, an
investment bank, accounting firm or other firm with recognized business
valuation credentials that is independent of the parties and which has
experience in valuing mining businesses (the Independent
Valuator) acceptable to Kinross (which acceptance shall not be
unreasonably withheld, conditioned or delayed). Any Independent Valuator
appointed pursuant to this paragraph 6(c) shall be required, as a
condition of its retention, to provide the Secured Party and Kinross with
its determination of Fair Market Value of the HW Group Interest within 45
days following its appointment. The Secured Party shall deliver to
Kinross, promptly upon receipt by the Secured Party, the report of the
Independent Valuator prepared pursuant to this paragraph 6(c). If the
report of the Independent Valuator specifies a range of values in its
determination of Fair Market Value of the HW Group Interest, then the Fair
Market Value of the HW Group Interest shall be the midpoint of the range
of such values. |
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(d) |
The Secured Party, Kinross, its Related Entities and
HWDLP shall in all respects co- operate with the Independent Valuator in
its determination of Fair Market Value of the HW Group Interest. Such
co-operation shall include access to the books and records of HWDLP. The determination of Fair Market Value
by the Independent Valuator shall be, for purposes of this Agreement,
final, conclusive and binding. |
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(e) |
All fees, disbursements and other costs and expenses
associated with the determination of Fair Market Value of the HW Group
Interest by the Independent Valuator in accordance with the provisions
hereof shall be borne by the Secured Party. |
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(f) |
If the Independent Valuator shall have provided a report
determining the Fair Market Value for purposes of this Agreement or the
Partnership Agreement as at a date which is within six months of the
subsequent date for determination of the Fair Market Value of the HW Group
Interest, provided that such report may be disclosed, on a reliance basis,
to the Secured Party, such report shall be deemed to be the report
required to be delivered pursuant to paragraph 6(c) and the Fair Market
Value of the HW Group Interest for the purposes of this Agreement shall be
deemed to be the Fair Market Value of the HW Group Interest previously
determined in such report. |
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(g) |
Unless a Notice of Revocation has been given, or, if a
Notice of Revocation has been given but a Partnership Event of Default has
occurred and is continuing, Kinross shall have the right to elect, by
notice in writing (the Default Option Notice) given to the
Secured Party within 30 days of delivery by the Secured Party to Kinross
pursuant to paragraph 6(c) of the report of the Independent Valuator
establishing Fair Market Value of the HW Group Interest (the
Valuation and such 30 day period, the Default Option Exercise
Period), to purchase all, but not less than all, of the HW Group
Interest for 80% of the Fair Market Value (the Default Option Purchase
Price). |
7. |
Closing Procedures. |
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(a) |
Upon the giving of a ROFR Notice or Default Option Notice
by Kinross to the Secured Party pursuant to paragraph 4(b) or paragraph
6(g), as applicable, there shall be a binding agreement for purchase and
sale between Kinross and the Secured Party pursuant to which Kinross
agrees to purchase, and the Secured Party agrees to sell, the ROFR Offered
Interest, in the case of a ROFR Notice, or the HW Group Interest, in the
case of a Default Option Notice, for the ROFR Purchase Price, in the case
of a ROFR Notice, or the Default Option Purchase Price, in the case of a
Default Option Notice. Such purchase shall close at the offices of
Stikeman Elliott LLP in Toronto, Ontario on the 30th calendar day
following the date of the receipt by the Secured Party of the applicable notice given by Kinross, or, if
such day is not a Business Day, on the following Business Day. For the
purposes of this Agreement, "Business Day" means a day (other than a
Saturday or Sunday) on which banks are open for general business in
London, England and Toronto, Ontario. |
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(b) |
Upon the closing of the Transfer by the Secured Party to
Kinross pursuant to paragraph 7(a), above: |
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(i) |
the Secured Party shall deliver to Kinross: (A) executed
conveyance documents with respect to the ROFR Offered Interest, in the
case of a Transfer pursuant to paragraph 4, or the Total Interest and the
GP Interest, in the case of a Transfer pursuant to paragraph 6, together
with the certificate(s) representing the Partnership Units included in the
ROFR Offered Interest or the Total Interest, as the case may be; and (B) a
certificate executed by the Secured Party addressed to Kinross certifying
that the Secured Party: (1) has the full right, power and authority to
enter into such conveyance documents and to perform its obligations
thereunder, and (2) has not done any act to dispose of, sell, assign, or
encumber any of the ROFR Offered Interest, in the case of a Transfer
pursuant to paragraph 4, or the Total Interest and the GP Interest, in the
case of a Transfer pursuant to paragraph 6; and |
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(ii) |
Kinross shall deliver to the Secured Party, or as the
Secured Party may direct, certified cheques or immediately available funds
by wire transfer to an account or accounts specified in writing by the
Secured Party in full payment of the ROFR Purchase Price or the Default
Option Purchase Price, as applicable. |
8.
Representations. Kinross makes the representations and warranties
set out below to SCB on the date of this Agreement:
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(a) |
It is a corporation, duly incorporated and validly
existing under the law of the Province of Ontario. |
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(b) |
It has the corporate power to enter into, perform and
deliver, and has taken all necessary action to authorise its entry into,
performance and delivery of, this Agreement and the transactions
contemplated by this Agreement. |
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Any assignee or transferee of Kinross that accedes to this
Agreement in accordance with paragraph 16 below shall be deemed to repeat the
representations and warranties set out above on the date of the written
agreement referred to in paragraph 16.
9.
No Assumption. SCB, the Lenders and the Secured Party shall not be
considered a party to the Kinross Documents as a result of the exercise of any
of its rights under the Finance Documents or the taking or enforcement of the
Security unless they become the registered or beneficial holder of any of the HW
Group Interests.
10. Notices.
Any notice, document or written communication to be given or delivered
pursuant to or in connection with this Agreement shall be in writing and shall
be given by delivering the same personally or by prepaid courier or prepaid
registered mail, addressed to the party to be notified at the address of such
party set out opposite the partys name below or at such other address of which
such party has given notice to the other parties:
(a) |
if to SCB or the Secured Party: |
(b) |
if to Kinross: |
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5th Floor, 1 Basinghall Avenue |
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25 York Street, 17th Floor |
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London EC2V 5DD, UK |
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Toronto, ON M5J 2V5 |
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Attention: Paul Thompson/ Charles Mildred |
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Attention: Corporate Secretary
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Any such notice, document or written communication shall be
deemed to have been received when delivered personally, on the Business Day
following the date in which it was sent by courier or on the fifth Business Day
following the day sent by prepaid registered mail.
11. No
Partnership. Nothing herein contained shall be construed as creating between
the parties a partnership, joint venture or other joint association.
12.
Amendment. Neither this Agreement nor any provision hereof may be
changed, waived, discharged or terminated except by instrument in writing,
signed by the parties or by the party against whom enforcement of the change,
waiver, discharge or termination is sought. No consent of the Obligors or HWDLP
shall be necessary to any amendment to the terms hereof.
13.
Severability. Any provision of this Agreement which is invalid or
unenforceable under the laws of any jurisdiction in which this Agreement is
sought to be enforced shall, as to such jurisdiction and to the extent such provision is invalid or unenforceable,
be deemed severable and shall not affect any other provision of this Agreement.
153
14.
Interpretation. The division of this Agreement into sections and
subsections and the insertion of headings exist only for convenience and shall
not affect the construction or interpretation hereof. Words importing the
singular number only include the plural and vice versa. When a reference in this
Agreement is made to a party or parties, such reference shall be to a party
or parties to this Agreement unless otherwise indicated.
15.
Waiver. Neither this Agreement nor any provision hereof may be changed,
waived, discharged or terminated except by instrument in writing, signed by the
party against whom enforcement of the change, waiver, discharge or termination
is sought.
16.
Successors and Assigns. This Agreement shall enure and accrue to the
benefit of and shall be binding upon the parties and their respective successors
and assigns and every reference herein to a party shall extend to such
successors and assigns as if specifically named therein; Kinross agrees that if
it wishes to assign or transfer any of its interests in the Borrowers or HWDLP,
it shall first deliver to SCB a written agreement by the proposed assignee or
transferee in favour of SCB, pursuant to which that proposed assignee or
transferee agrees to be bound by the provisions hereof to the same extent as
Kinross.
17.
Entire Agreement. This Agreement supersedes all prior agreements and
understandings relating to the subject matter hereof.
18.
Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the Province of Ontario and the federal laws of
Canada applicable therein.
19.
Jurisdiction. The parties submit and attorn to the non-exclusive
jurisdiction of the courts of the Province of Ontario. To the extent permitted
by law, the parties irrevocably waive any objection (including any claim of
inconvenient forum) that each may now or hereafter have to the venue of any
legal proceeding arising out of or relating to this Agreement in courts of such
province.
20.
Counterparts. This Agreement may be executed in any number of
counterparts, by original or facsimile signature, each of which when so executed
shall be deemed to be an original and all of such counterparts taken together
shall be deemed to constitute one and the same agreement.
21.
Termination. This Agreement shall terminate upon the earliest to occur of
(i) written confirmation by SCB of irrevocable repayment and performance in full
of all indebtedness, liabilities and obligations of every kind, nature and
description (whether direct or indirect, joint or several, absolute or
contingent, matured or unmatured) of the Obligors or any of them under the
Finance Documents; and (ii) a transfer by Kinross of all of its
interest in HWDLP and HWDM to the HW Group.
154
IN WITNESS
WHEREOF the parties have duly executed this Agreement as of the date and year
first written above.
|
KINROSS GOLD CORPORATION |
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By:
______________________________________ |
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Name: |
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Title: |
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STANDARD CHARTERED BANK |
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By:
______________________________________ |
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Name: |
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Title: |
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HARRY WINSTON DIAMOND CORPORATION |
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By:
______________________________________ |
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Name: |
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Title: |
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HARRY WINSTON DIAMOND MINES LTD. |
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By:
______________________________________ |
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Name: |
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Title: |
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6355137 CANADA INC. |
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By:
______________________________________ |
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Name: |
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Title: |
155
SCHEDULE 12
Loans from Obligors to non-Obligor members of the Restricted
Group
No. |
Name (all loans are from |
USD$ (or |
Description |
|
HWDC) |
USD$ |
|
|
|
equivalent) |
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|
2701 |
ADVANCES TO ABEREX |
[REDACTED] |
Historical
balance |
|
|
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|
2702 |
ADVANCES TO MARKET'G SARL |
[REDACTED] |
[REDACTED]for HW International Bonds and
[REDACTED]for payment to Davy Lapa |
|
|
|
|
2705 |
ADVANCES TO ATS |
[REDACTED] |
Leasehold
improvements and working capital |
|
|
|
|
2707 |
ADVANCES TO ABER FIFTH AVE |
[REDACTED] |
A few historical
capital contribution to HWI done with loans through AFAC, plus minor cross
charges |
|
|
|
|
2708 |
ADVANCES TO AFI |
[REDACTED] |
Historical
balance |
|
|
|
|
2747 |
ADVANCES TO Building Services
|
[REDACTED] |
Leasehold
improvements and working capital |
|
|
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|
2767 |
LOAN DUE TO ATS (CAD) |
[REDACTED] |
Working capital
|
|
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|
2768 |
LOAN DUE TO ATS (USD) |
[REDACTED] |
Working capital
|
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|
[REDACTED] |
|
156
SCHEDULE 13
Form of Hedging Accession Letter
To: |
[Insert full name of current Security
Agent] for itself and each of the other parties to the Facility
Agreement referred to below. |
|
|
To: |
[Insert full name of current Facility
Agent] as Facility Agent. |
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From: |
[The Name of the Hedging Counterparty]
|
THIS UNDERTAKING is made on [date] by Standard Chartered
Bank plc (the "Acceding Hedging Counterparty") in relation to the
agreement (the "Facility Agreement") dated [ ] between, among others,
Harry Winston Diamond Corporation, Harry Winston Diamond Mines Ltd. [INSERT NAME
OF SECURITY AGENT] as security agent, [INSERT NAME OF FACILITY AGENT] as
facility agent, the other Finance Parties and the other Obligors (each as
defined in the Facility Agreement). Terms defined in the Facility Agreement
shall, unless otherwise defined in this Undertaking, bear the same meanings when
used in this Undertaking.
In consideration of the Acceding Hedging Counterparty being
accepted as the Hedging Counterparty for the purposes of the Facility Agreement,
the Acceding Hedging Counterparty confirms that, as from [DATE], it intends to
be party to the Facility Agreement as the Hedging Counterparty and undertakes to
perform all the obligations expressed in the Facility Agreement to be assumed by
the Hedging Counterparty and agrees that it shall be bound by all the provisions
of the Facility Agreement, as if it had been an original party to the Facility
Agreement.
This Undertaking and any non-contractual obligations arising
out of or in connection with it are governed by English law.
THIS UNDERTAKING has been entered into on the date
stated above.
Acceding Hedging Counterparty
Standard Chartered Bank plc |
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By: |
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Address: |
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Fax: |
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Accepted by the Security Agent |
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Accepted by the Facility Agent |
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for and on behalf of |
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for and on behalf of |
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[Insert full name of current Security Agent]
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[Insert full name of Senior Agent]
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Date: |
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Date: |
157
SIGNATORIES
THE OBLIGORS
Harry Winston Diamond Corporation
Executed by |
) |
|
HARRY WINSTON DIAMOND |
) |
ALAN MAYNE |
CORPORATION, a corporation |
) |
|
incorporated under the laws of Canada by |
) |
|
Alan Mayne a person who, in accordance |
) |
Print name: Alan Mayne |
with the laws of that territory, is acting under |
) |
(Authorised Signatory) |
the authority of that corporation in the |
) |
|
presence of: |
) |
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Witness signature: |
BETH BANDLER |
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Witness name: |
Beth Bandler |
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Witness address: |
Harry Winston Diamond Corporation
|
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[REDACTED] |
|
Notice Details:
Address: PO Box 4569, Station A, Toronto, ON M5W 4T9 (mail);
[REDACTED] (courier)
Fax No: 416-962-2230
Attention: Chief
Financial Officer
Harry Winston Diamond Mines Ltd.
Executed by |
) |
ALAN MAYNE |
HARRY WINSTON DIAMOND MINES |
) |
|
LTD., a corporation incorporated under the |
) |
|
laws of Northwest Territories by Alan Mayne |
) |
|
a person who, in accordance with the laws of |
) |
Print name: Alan Mayne |
that territory, is acting under the authority of |
) |
(Authorised Signatory) |
that corporation in the presence of: |
) |
|
|
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|
Witness signature: |
BETH BANDLER |
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Witness name: |
Beth Bandler |
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Witness address: |
Harry Winston Diamond Corporation
|
|
|
[REDACTED] |
|
Notice Details:
Address: PO Box 4569, Station A, Toronto, ON M5W 4T9 (mail);
and [REDACTED] (courier)
Fax No: 416-962-2230
Attention: Chief Financial Officer
158
6355137 Canada Inc. |
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|
|
|
|
Executed by |
) |
|
6355137 CANADA INC., a corporation |
) |
ALAN MAYNE |
incorporated under the laws of Canada by |
) |
|
Alan Mayne a person who, in accordance |
) |
|
with the laws of that territory, is acting under |
) |
Print name: Alan Mayne |
the authority of that corporation in the |
) |
(Authorised Signatory) |
presence of: |
) |
|
|
BETH BANDLER |
|
Witness signature: |
|
|
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|
Witness name: |
Beth Bandler |
|
|
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|
Witness address: |
Harry Winston Diamond Corporation
|
|
|
[REDACTED] |
|
Notice Details:
Address: PO Box 4569, Station A, Toronto, ON M5W 4T9 (mail);
and [REDACTED] (courier)
Fax No: 416-962-2230
Attention: Chief Financial Officer
THE ARRANGER
Standard Chartered Bank
EXECUTED by: |
RAYMOND SMEDY |
By: |
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EXECUTED by: |
JONATHAN HUBBARD |
By: |
|
Notice Details:
Address: 1 Basinghall Avenue, London EC2V 5DD, UK
Fax No:
+44 (0)20 7885 9438
Attention: Ray Smedy
THE ORIGINAL LENDERS
Standard Chartered Bank
EXECUTED by: |
RAYMOND SMEDY |
By: |
|
159
EXECUTED by: |
JONATHAN HUBBARD |
By: |
|
Notice Details:
Address: 1 Basinghall Avenue, London EC2V 5DD, UK
Fax No: +44 (0)20 7885 9438
Attention: Ray Smedy
THE FACILITY AGENT
Standard Chartered Bank
EXECUTED by: |
CHARLES MILDRED |
By: |
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EXECUTED by: |
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By: |
|
Notice Details:
Address: |
5th Floor, 1 Basinghall Avenue,
London EC2V 5DD, UK |
Fax No: |
+44 (0)20 7885 1974/6460 |
Attention: |
Aimee Flynn/Michelle Goodridge
|
THE SECURITY AGENT
Standard Chartered Bank
EXECUTED by: |
CHARLES MILDRED |
By: |
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|
EXECUTED by: |
|
By: |
|
Notice Details:
Address: |
5th Floor, 1 Basinghall Avenue,
London EC2V 5DD, UK |
Fax No: |
+44 (0)20 7885 1974/6460 |
Attention: |
Paul Thompson/Charles Mildred
|
160
EX-99.2
3
exhibit99-2.htm
EXHIBIT 99.2
Harry Winston Diamond Corporation - Exhibit 99.2 - Filed by newsfilecorp.com
Exhibit 99.2
FIRST AMENDING AGREEMENT TO THE FACILITY AGREEMENT
for
HARRY WINSTON DIAMOND CORPORATION
arranged by
STANDARD CHARTERED BANK
with
STANDARD CHARTERED BANK
acting as Facility Agent
and
STANDARD CHARTERED BANK
acting as Security Agent
_____________________________________________________________________________
Dated as of 25 August 2010
_____________________________________________________________________________
FIRST AMENDING AGREEMENT
|
This First Amending Agreement is dated 25 August 2010 and
made between: |
|
|
(1) |
HARRY WINSTON DIAMOND CORPORATION, a corporation
incorporated under the laws of Canada as a borrower and as a guarantor
("HWDC"); |
|
|
(2) |
HARRY WINSTON DIAMOND MINES LTD., a corporation
incorporated under the laws of the Northwest Territories as a borrower and
a guarantor ("HWDM"); |
|
|
(3) |
6355137 CANADA INC., a corporation incorporated
under the laws of Canada as a guarantor ("Canada Inc."); |
|
|
(4) |
STANDARD CHARTERED BANK as mandated lead
arranger; |
|
|
(5) |
THE FINANCIAL INSTITUTIONS listed on the signature
pages hereto; |
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|
(6) |
STANDARD CHARTERED BANK as agent of the other
Finance Parties, other than the Hedging Counterparty; and |
|
|
(7) |
STANDARD CHARTERED BANK as security agent for
itself and on behalf of the Finance Parties. |
|
|
|
RECITALS: |
|
(a) |
Pursuant to a facility agreement dated 24 June 2010 (as
amended, supplemented, amended and restated or otherwise modified from
time to time, the Facility Agreement), the Facility Agent and the
Original Lenders made available to the Borrowers a multicurrency revolving
loan facility in the amount of US$100,000,000; |
|
|
|
|
(b) |
Provided that the Effective Date has occurred, the
Parties to the Facility Agreement wish to make certain amendments to the
Facility Agreement on the terms and conditions set forth in this First
Amending Agreement. |
NOW
THEREFORE in consideration of the mutual agreements herein contained and
other good and valuable consideration (the receipt and sufficiency of which are
hereby acknowledged), the parties hereto agree as follows:
ARTICLE 1
INTERPRETATION
Section 1.1 Defined Terms.
In
this First Amending Agreement and the recitals hereto, First Amending
Agreement, herein, hereby, hereof, and similar
expressions mean and refer to this First Amending Agreement.
"Effective
Date" has the meaning given to that term in the Waiver Letter.
- 3 -
"Waiver
Letter" means the letter dated on or about the date of this Agreement among
HWDC, HWDM and the Facility Agent relating to a request for waivers and consent
in relation to an acquisition by HWDC of Kinross' interests in HWDLP and HWDM.
Section 1.2 Incorporation of Facility
Agreement and Finance Document
(1) Subject
to the Effective Date date occurring as described below, this First Amending
Agreement is supplemental to and shall be read in conjunction with the Facility
Agreement.
(2)
This First Amending Agreement is a Finance Document.
(3)
For the avoidance of doubt, Clauses 34, 35, 37 and 38 of the Facility Agreement
are hereby incorporated into this First Amending Agreement and shall be applied
and construed mutatis mutandis herein.
(4)
In this First Amending Agreement and the recitals hereto, unless there is
something in the subject matter or context inconsistent therewith, or unless so
stated to the contrary in this First Amending Agreement, words and expressions
herein contained which are defined in the Facility Agreement shall have the
meanings given to such words and expressions in the Facility Agreement. If there
is any conflict between the terms of this First Amending Agreement and the
Facility Agreement, the Facility Agreement shall override the First Amending
Agreement (other than, for the avoidance of doubt, to the extent the amendments
to the same set out herein become effective on achievement of the Effective
Date).
Section 1.3 Interpretation not Affected by
Headings, etc.
Article,
Section, Clause and Schedule headings are for ease of reference only.
ARTICLE 2
AMENDMENTS TO FACILITY AGREEMENT
Section 2.1 Effective Date of the Amendments
to the Facility Agreement and termination date.
The
Amendments set out in Sections 2.2 and 2.3 shall take effect on the Effective
Date. If the Effective Date does not occur within thirty days of the execution
of this Agreement, this First Amending Agreement shall terminate.
Section 2.2 Amendment to Section 1
(Definitions and Interpretation).
Clause
1.1 of the Facility Agreement is hereby amended as follows:
(1)
The definition of Diavik Interest is amended by replacing the figure 31 with
the figure 40 and adding the words as the same may be increased from time to
time immediately after the words Diavik Joint Venture.
(2)
The definition of Kinross Document is amended by:
- 4 -
|
(i) |
changing the words Kinross Document to Partnership
Document and moving the definition to the appropriate alphabetical
position in Clause 1.1 of the Facility Agreement; |
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|
(ii) |
deleting the word and in paragraph (c); |
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|
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|
(iii) |
inserting at the end of paragraph (d) of the definition
the words (other than, for the avoidance of doubt, the promissory note
issued by HWDC as a means of payment under the Kinross Disposal Agreement
and the obligation to pay a portion of the purchase price as evidenced by
such promissory note); |
|
|
|
|
(iv) |
adding the word and at the end of paragraph (d)
immediately after the words operation of HWDLP; and |
|
|
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|
(v) |
adding a new paragraph (e) as
follows: |
(e) the Kinross Disposal Agreement.
(3) The
definition of Material Documents is amended by deleting the words and
the Kinross Documents and replacing it with the term and the Partnership
Documents.
(4) The
definition of Transaction Documents is amended by deleting the words
the Kinross Documents and replacing it with the words the Partnership
Documents.
(5) The
following definition is inserted:
"Kinross Disposal Agreement
means the sale and purchase agreement dated as of August 11, 2010 between
Kinross and HWDC pursuant to which Kinross disposed of its interests in HWDLP
and HWDM to HWDC"
Section 2.3 Amendment to Facility Agreement.
(1)
The heading in Clause 19.24 is hereby amended by deleting the words and the
Kinross Documents and inserting in their place the words and the Partnership
Documents.
(2) Clause
19.24(a) is hereby amended by deleting the words and the Kinross Documents and
inserting in their place the words and the Partnership Documents (other than,
for the avoidance of doubt, the Kinross Disposal Agreement).
(3) Clause
19.24(b) is hereby amended by deleting the words and the Kinross Documents and
inserting in their place the words and the Partnership Documents and deleting
the words or any Kinross Document and inserting in their place the words or
any Partnership Document.
(4)
Clause 19.24(d) is hereby amended by deleting subsections (i) and (ii) in their
entirety.
(5) Clause
19.24(f) is hereby amended by deleting the words any Kinross Document and
inserting in their place the words any Partnership Document.
- 5 -
(6) The
heading in Clause 22.18 is hereby amended by deleting the words and the Kinross
Documents and inserting in their place the words and the Partnership
Documents.
(7) Clause
22.18(a) is hereby amended by deleting the words and the Kinross Documents and
inserting in their place the words and the Partnership Documents.
(8) Clause
22.18(b)(i) is hereby amended by deleting the words any Kinross Document and
inserting in their place the words any Partnership Document.
(9) Clause
22.18(b)(iv) is hereby deleted in its entirety and replaced by the following:
"enter
into:
|
A. |
any new Diavik Document; |
|
|
|
|
B. |
any agreement with any person that might reasonably be
expected to have an adverse effect on the perfection or enforceability of
the Security created (or purported to be created) by the Security
Documents or the ability of any Finance Party to enforce such
Security;" |
(10)
Clause 22.18(b)(v) is hereby amended by deleting the words or Kinross Document
and inserting in their place the words or the Partnership Document and
deleting the words the Kinross Documents and inserting in their place the
words the Partnership Documents.
(11) Clause
22.19(b)(i) is hereby amended by deleting the words Kinross Document and
inserting in their place the words Partnership Document.
(12)
Clause 22.19(b)(ii) is hereby amended by deleting the words , Kinross
Document.
(13) Clause
22.19(b)(iii) is hereby amended by deleting each reference to the words or
Kinross Document and inserting in their place the words or Partnership
Document.
(14) The
heading in Clause 23.9 is hereby amended by deleting the words Kinross
Document and inserting in their place the words Partnership Document.
(15) Clause
23.9(d) is hereby amended by deleting the words Kinross Document or and
inserting in their place Partnership Document or.
ARTICLE 3
MISCELLANEOUS
Section 3.1 Facility Agreement in Effect.
Except as stated herein, the Facility Agreement and the other
Finance Documents shall continue in full force and effect in accordance with the
provisions thereof, as amended hereby, and all obligations of the Borrowers
under the Facility Agreement and the other Finance Documents are hereby ratified
and confirmed and shall continue in full force and effect. Any reference to the
Facility Agreement in any Finance Document shall refer to the Facility Agreement
as amended hereby. This First Amending Agreement is a Finance Document, as
defined under the Facility Agreement.
- 6 -
Section 3.2 Governing Law.
This First Amending Agreement, and any non-contractual
obligations arising out of it, are governed by English law.
Section 3.3 Enforcement
(1) The
courts of England have exclusive jurisdiction to settle any dispute arising out
of or in connection with this Agreement (including a dispute relating to the
existence, validity or termination of this Agreement or any non-contractual
obligation arising out of or in connection with this Agreement) (a
"Dispute").
(2)
The Parties agree that the courts of England are the most appropriate and
convenient courts to settle Disputes and accordingly no Party will argue to the
contrary.
(3) This
Section 3.3 is for the benefit of the Finance Parties only. As a result, no
Finance Party shall be prevented from taking proceedings relating to a Dispute
in any other courts with jurisdiction. To the extent allowed by law, the Finance
Parties may take concurrent proceedings in any number of jurisdictions.
[SIGNATURE PAGES FOLLOW]
- 7 -
This First Amending Agreement has been entered into on the
date stated at the beginning of this First Amending Agreement.
SIGNATORIES
THE OBLIGORS |
|
|
Harry Winston Diamond Corporation |
|
|
|
|
|
Executed by |
) |
ALAN MAYNE |
HARRY WINSTON DIAMOND |
) |
|
CORPORATION, a corporation |
) |
|
incorporated under the laws of Canada |
) |
|
by [ ] a person who, in accordance with the |
) |
Print name: Alan Mayne |
laws of that territory, is acting under the |
) |
(Authorised Signatory) |
authority of that corporation in the presence |
) |
|
of: |
) |
|
|
BETH BANDLER |
|
|
|
|
Witness signature: |
|
|
|
|
|
Witness name: |
Beth Bandler |
|
|
|
|
Witness address: |
Harry Winston Diamond Corporation
|
|
|
|
|
|
[REDACTED] |
|
Harry Winston Diamond Mines Ltd. |
|
|
|
|
|
Executed by |
) |
ALAN MAYNE |
HARRY WINSTON DIAMOND MINES |
) |
|
LTD., a corporation incorporated under the |
) |
|
laws of Northwest Territories |
) |
|
by [ ] a person who, in accordance with the |
) |
Print name: Alan Mayne |
laws of that territory, is acting under the |
) |
(Authorised Signatory) |
authority of that corporation in the presence |
) |
|
of: |
) |
|
|
BETH BANDLER |
|
|
|
|
Witness signature: |
|
|
|
|
|
Witness name: |
Beth Bandler |
|
|
|
|
Witness address: |
Harry Winston Diamond Corporation
|
|
|
|
|
|
[REDACTED] |
|
- 8 -
6355137 Canada Inc. |
|
|
|
|
|
Executed by |
) |
ALAN MAYNE |
6355137 CANADA INC., a corporation |
) |
|
incorporated under the laws of Canada by |
) |
|
Alan Mayne a person who, in accordance |
) |
|
with the laws of that territory, is acting under |
) |
Print name: Alan Mayne |
the authority of that corporation in the |
) |
(Authorised Signatory) |
presence of: |
) |
|
|
BETH BANDLER |
|
|
|
|
Witness signature: |
|
|
|
|
|
Witness name: |
Beth Bandler |
|
|
|
|
Witness address: |
Harry Winston Diamond Corporation
|
|
|
|
|
|
[REDACTED] |
|
- 9 -
THE ARRANGER
Standard Chartered Bank
EXECUTED by:
By:
EXECUTED
by:
................................................
By:
THE ORIGINAL LENDERS
Standard Chartered Bank
EXECUTED
by:
................................................
By:
EXECUTED
by:
................................................
By:
THE FACILITY AGENT
Standard Chartered Bank
EXECUTED
by:
...............................................
By:
EXECUTED
by:
...............................................
By:
THE SECURITY AGENT
Standard Chartered Bank
EXECUTED
by:
................................................
By:
EXECUTED
by:
...............................................
By:
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