UK/2705281-2
Draft: 17 March 2011
For Basel 3 carve-in
For the avoidance of doubt, this document is in a non-binding, recommended form. Its intention is to be used as a starting point for negotiation only. Individual parties are free to depart from its terms and should always satisfy themselves of the regulatory implications of its use.SINGLE CURRENCY TERM FACILITY AGREEMENT
FOR PRE-EXPORT FINANCE TRANSACTIONS
[amount in numbers]
FACILITY AGREEMENT
dated []
for
[NAME OF PRINCIPAL COMPANY]
arranged by
[NAME[s] OF mandated lead ARRANGER[S]]
as Mandated Lead Arranger[s]
with
[NAME OF AGENT]
acting as Agent
and
[NAME OF SECURITY AGENT]
acting as Security Agent
The Loan Market Association ("LMA") consents to the use and reproduction of this document by members of the Loan Market Association for the preparation and documentation of agreements relating to transactions or potential transactions in the loan markets. This document may be reproduced and distributed to non-members of the Loan Market Association in hard copy only. The LMA does not consent to the use, reproduction, distribution or communication to the public of this document for any other purpose, in any other manner or by any other person and expressly reserves all other rights.
Loan Market Association. All rights reserved.
LMA.Pre-Export Finance FacilityAgmt.01[●] July 2012
23789-3-105-v14.2 / - 1 - / 70-40506689CONTENTS
Clause / Page
1.Definitions and Interpretation
2.The Facility
3.Purpose
4.Conditions of Utilisation
5.Utilisation
6.Repayment
7.Voluntary prepayment and cancellation
8.Mandatory prepayment and cancellation
9.Restrictions
10.Interest
11.Interest Periods
12.Changes to the Calculation of Interest
13.Fees
14.Tax Gross Up and Indemnities
15.Increased Costs
16.Other Indemnities
17.Mitigation by the Lenders
18.Costs and Expenses
19.Guarantee and Indemnity
20.Representations
21.Information Undertakings
22.Financial covenants
23.Cover Ratios
24.General Undertakings
25.Sales Contracts Undertakings
26.Bank Accounts
27.Events of Default
28.Changes to the Lenders
29.Restriction on Debt Purchase Transactions
30.Changes to the Obligors
31.Role of the Agent [and] the Arranger [and the Reference Banks]
32.The Security Agent
33.Conduct of Business by the Finance Parties
34.Sharing among the Finance Parties
35.Payment mechanics
36.Set-Off
37.Notices
38.Calculations and Certificates
39.Partial Invalidity
40.Remedies and Waivers
41.Amendments and Waivers
42.Confidentiality
43.Confidentiality of Funding Rates [and Reference Bank Quotations]
44.Counterparts
45.[Governing language]
46.Governing Law
47.Enforcement
46.Arbitration
47.Jurisdiction of English courts
48.[Waiver of immunity]
Schedule 1 The Original Parties
Schedule 2 Conditions precedent
Schedule 3 Requests and Notices
Schedule 4 Mandatory Cost formula
Schedule 5 Form of Transfer Certificate
Schedule 6 Form of Assignment Agreement
Schedule 7 Form of Reporting Certificates
Schedule 8 LMA Form of Confidentiality Undertaking
Schedule 9 Timetables
Schedule 10 [Benchmark]
Schedule 11 Forms of Notifiable Debt Purchase Transaction Notice
Schedule 12 Form of Contracts Report
Schedule 13 Products
Schedule 14 Original Buyers
Schedule 15 Form of Irrevocable Payment Instructions
LMA.CommodityFinancePXF.0314 June 2016
THIS AGREEMENT is dated [] and made between:
(1)[[] (the "Parent"[1]);]
(2)[] (the "Borrower");
(3)THE SUBSIDIARIES of [the Borrower]/[the Parent] listed in Part I of Schedule 1 (The Original Parties) as guarantors ([together with the Parent,] the "Guarantors");
(4)[] [and []] as mandated lead arranger[s] ([whether acting individually or together] the "Arranger");
(5)THE FINANCIAL INSTITUTIONS listed in Part II of Schedule 1(The Original Parties) as lenders (the "Original Lenders");
(6)[] as agent of the [other Finance Parties] (the "Agent"); and
(7)[] as security trustee for the Secured Parties (the "Security Agent").
IT IS AGREED as follows:
SECTION 1
INTERPRETATION
1.Definitions and Interpretation
1.1Definitions
In this Agreement:
"Acceptable Bank" means:
(a)a bank or financial institution which has a rating for its long-term unsecured and non credit-enhanced debt obligations of [] or higher by Standard & Poor's Rating Services or Fitch Ratings Ltd or [] or higher by Moody's Investors Service Limited or a comparable rating from an internationally recognised credit rating agency; or
(b)any other bank or financial institution approved by the Agent.
"Accounting Principles" means [generally accepted accounting principles in [][, including IFRS]]/ [IFRS].[2]
"Accounting Reference Date" means [].
"Additional Buyer" has the meaning given to that term in paragraph (b) of the definition of "Buyer".
"Additional Sales Contract" has the meaning given to that term in paragraph (b) of the definition of "Sales Contract".
"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.
"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.
"Auditors" means[name of current auditors of the [Borrower]/[Parent]] [or any other firm appointed by the [Borrower]/[Parent] to act as its statutory auditors]/[[ ] or any other firm approved in advance by the Majority Lenders (such approval not to be unreasonably withheld or delayed)].[3]
["Audit Laws" means the EU Regulation (537/2014) on specific requirements regarding statutory audit of public-interest entities and repealing Commission Decision 2005/909/EC and the EU Directive (2014/56/EU) amending Directive 2006/43/EC on statutory audits of annual accounts and consolidated accounts.]
"Authorisation" means an authorisation, consent, approval, resolution, licence, exemption, filing, notarisation or registration.
"Availability Period" meansthe period from and including the date of this Agreement to and including [ ].
"Available Commitment" meansa Lender's Commitment minus:
(a)its participation in any outstanding Utilisations; and
(b)in relation to any proposed Utilisation, its participation in any other Utilisations that are due to be made on or before the proposed Utilisation Date.
"Available Facility" means the aggregate for the time being of each Lender's Available Commitment.
"[Borrower]/[Parent] Affiliate" means each Affiliate of [the Borrower]/[the Parent].
"Borrowings" has the meaning given to that term in Clause 22.1 (Financial definitions).
["Benchmark Rate" means, in relation to any Loan:
(a)the applicable Screen Rate as of the Specified Time for [sterling][4]/[dollars][5]/[euro][6]/[other][7]and for a period equal in length to the Interest Period of that Loan; or
(b)as otherwise determined pursuant to Clause12.1 (Unavailability of Screen Rate)[,
and if, in either case, that rate is less than zero, the Benchmark Rate shall be deemed to be zero].][8]
"Break Costs" means the amount (if any) by which:
(a)the interest [excluding the Margin] which a Lender should have received for the period from the date of receipt of all or any part of its participation in a Loan or Unpaid Sum to the last day of the current Interest Period in respect of that Loan or Unpaid Sum, had the principal amount or Unpaid Sum received been paid on the last day of that Interest Period;
exceeds:
(b)the amount which that Lender would be able to obtain by placing an amount equal to the principal amount or Unpaid Sum received by it on deposit with a leading bank in the Relevant 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, [insert principal financial centre of jurisdiction of incorporation of Borrower] and [in relation to any date for payment or purchase of [insert currency of Facility if not sterling or euro], the principal financial centre of the country of that currency][9]/[(in relation to any date for payment or purchase of euro) any TARGET Day][10] / [and any day specified as such in Schedule 10(Benchmark)][11].
"Buyer" means:
(a)each of the persons listed as such in Schedule 14 (Original Buyers) (an "Original Buyer"); and
(b)any other person which has become a Buyer in accordance with Clause25.9 (AdditionalBuyers and Additional Sales Contracts) (an "Additional Buyer"),
but excluding any such person that has ceased to be a Buyer in accordance with Clause25.8(Buyer failure).
"Cash" means, at any time, cash [denominated in [specify acceptable currencies]] in hand or at bank and (in the latter case) credited to an account in the name of [an Obligor]/[a member of the Group] with an Acceptable Bank and to which [an Obligor]/[a member of the Group] is alone (or together with other [Obligors]/[members of the Group]) beneficially entitled and for so long as:
(a)that cash is repayable [on demand]/[within [ ] days after the relevant date of calculation];
(b)repayment of that cash is not contingent on the prior discharge of any other indebtedness of any member of the Group or of any other person whatsoever or on the satisfaction of any other condition;
(c)there is no Security over that cash except for Transaction Security or any Permitted Security constituted by a netting or set-off arrangement entered into by members of the Group in the ordinary course of their banking arrangements; and
(d)the cash is freely and [(except as mentioned in paragraph (a) above)] immediately available to be applied in repayment or prepayment of the Facility.
"Cash Equivalent Investments" means at any time:
(a)certificates of deposit maturing within [one year] after the relevant date of calculation and issued by an Acceptable Bank;
(b)any investment in marketable debt obligations issued or guaranteed by the government of [the United States of America, the United Kingdom, [any member state of the European Economic Area or any Participating Member State]] or by an instrumentality or agency of any of them having an equivalent credit rating, maturing within [one year] after the relevant date of calculation and not convertible or exchangeable to any other security;
(c)commercial paper not convertible or exchangeable to any other security:
(i)for which a recognised trading market exists;
(ii)issued by an issuer incorporated in [the United States of America, the United Kingdom, [any member state of the European Economic Area or any Participating Member State]];
(iii)which matures within [one year] after the relevant date of calculation; and
(iv)which has a credit rating of either A-1 or higher by Standard & Poor's Rating Services or F1 or higher by Fitch Ratings Ltd or P-1 or higher by Moody's Investors Service Limited, or, if no rating is available in respect of the commercial paper, the issuer of which has, in respect of its long-term unsecured and non-credit enhanced debt obligations, an equivalent rating;
(d)[sterling bills of exchange eligible for rediscount at the Bank of England and accepted by an Acceptable Bank (or their dematerialised equivalent);]
(e)any investment in money market funds which (i) have a credit rating of either A-1 or higher by Standard & Poor's Rating Services or F1 or higher by Fitch Ratings Ltd or P-1 or higher by Moody's Investors Service Limited, (ii) which invest substantially all their assets in securities of the types described in paragraphs (a) to (d) above and (iii) can be turned into cash on not more than [30] days' notice; or
(f)any other debt security approved by the Majority Lenders,
in each case, [denominated in [specify acceptable currencies] and] to which any [Obligor]/[member of the Group] is alone (or together with other [Obligors]/[members of the Group] beneficially entitled at that time and which is not issued or guaranteed by any member of the Group or subject to any Security (other than Security arising under the Transaction Security Documents).
["Change of Control" means [] ceases directly or indirectly to:
(a)[have the power (whether by way of ownership of shares, proxy, contract, agency or otherwise) to:
(i)cast, or control the casting of, more than [ ]% of the maximum number of votes that might be cast at a general meeting of [the Borrower]/[the Parent];
(ii)appoint or remove all, or the majority, of the directors or other equivalent officers of [the Borrower]/[the Parent]; or
(iii)give directions with respect to the operating and financial policies of [the Borrower]/[the Parent] with which the directors or other equivalent officers of [the Borrower]/[the Parent] are obliged to comply; or
(b)hold beneficially more than [ ]% of the issued share capital of [the Borrower]/[the Parent] (excluding any part of that issued share capital that carries no right to participate beyond a specified amount in a distribution of either profits or capital);]
OR
["Change of Control" means any person or group of persons acting in concert gains direct or indirect control of [the Borrower]/[the Parent]. [For the purposes of this definition:
(a)"control" of [the Borrower]/[the Parent] means:
(i)the power (whether by way of ownership of shares, proxy, contract, agency or otherwise) to:
(A)cast, or control the casting of, more than [one-half] of the maximum number of votes that might be cast at a general meeting of [the Borrower]/[the Parent];
(B)appoint or remove all, or the majority, of the directors or other equivalent officers of [the Borrower]/[the Parent]; or
(C)give directions with respect to the operating and financial policies of [the Borrower]/[the Parent] with which the directors or other equivalent officers of [the Borrower]/[the Parent] are obliged to comply; or
(ii)the holding beneficially of more than [ ]% of the issued share capital of [the Borrower]/[the Parent] (excluding any part of that issued share capital that carries no right to participate beyond a specified amount in a distribution of either profits or capital);
and
(b)"acting in concert" means, a group of persons who, pursuant to an agreement or understanding (whether formal or informal), actively co-operate, through the acquisition or ownership [directly or indirectly] by any of them of shares in [the Borrower]/[the Parent] or otherwise, either directly or indirectly, to obtain or consolidate control of [the Borrower]/[the Parent].]
"Charged Property" means all of the assets of the Obligors which from time to time are, or are expressed to be, the subject of the Transaction Security.
"Collection Account" means the bank account opened and maintained by the Borrower with the Collection Account Bank in accordance with Clause 26 (Bank Accounts) and includes any interest of the Borrower in any replacement account or any sub-division or sub-account of that account.
"Collection Account Bank" means [•][12].
"Collection Account [Pledge/Charge] Agreement" means the Collection Account [pledge/charge] agreement dated on or about the date of this Agreement between the Borrower as [pledgor/chargor] and the Security Agent as [pledgee/chargee], pursuant to which the Borrower [pledges/charges], inter alia, all amounts standing to the credit of the Collection Account in favour of the Security Agent to secure the Secured Obligations.[13]
"Commitment" means:
(a)in relation to an Original Lender, the amount set opposite its name under the heading "Commitment" in Part IIof Schedule 1 (The Original Parties) and the amount of any other Commitment transferred to it under this Agreement; and
(b) in relation to any other Lender, the amount of any Commitment transferred to it under this Agreement,
to the extentnot cancelled, reduced or transferred by it under this Agreement.
"Compliance Certificate" means a certificate [substantially in the form set out in Part Iof Schedule 7(Form of Reporting Certificates)]/[in form and substance satisfactory to the Agent].
"Confidential Information" means all information relating to [the Borrower]/[the Parent], any Obligor, the Group, the Transaction Documents 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:
(a)any member of the Group or any of its advisers; or
(b)another Finance Party, if the information was obtained by that Finance Party directly or indirectly from any member of the Group or any of its advisers,
in whatever form, and includes information given orally and any document, electronic file or any other way of representing or recording information which contains or is derived or copied from such information but excludes:
(i)information that:
(A)is or becomes public information other than as a direct or indirect result of any breach by that Finance Party of Clause 42.1 (Confidential Information); or
(B)is identified in writing at the time of delivery as non-confidential by any member of the Group or any of its advisers; or
(C)is known by that Finance Party before the date the information is disclosed to it in accordance with paragraphs (a) or (b) above or is lawfully obtained by that Finance Party after that date, from a source which is, as far as that Finance Party is aware, unconnected with the Group and which, in either case, as far as that Finance Party is aware, has not been obtained in breach of, and is not otherwise subject to, any obligation of confidentiality.
(ii)any Funding Rate [or Reference Bank Quotation].
"Confidentiality Undertaking" means a confidentiality undertaking substantially in a recommended form of the LMA as set out in Schedule 8(LMA Form of Confidentiality Undertaking) or in any other form agreed between [the Borrower]/[the Parent] and the Agent.
["Contracts Report" means a report summarising certain terms of and performance (for the period to which the Contracts Report relates) under, the Sales Contracts assigned under the Sales Contracts [Pledge/ Assignment] Agreement, substantially in the form of Schedule 12(Form of Contracts Report).]
"Cover Ratios" has the meaning given to that term in Clause 23.1 (Definitions).
"Cover Ratios Certificate" means a certificate substantially in the form set out in Part II of Schedule 7 (Form of Reporting Certificates))]/[in form and substance satisfactory to the Agent].
"Debt Purchase Transaction" means, in relation to a person, a transaction where such person:
(a)purchases by way of assignment or transfer;
(b)enters into any sub-participation in respect of; or
(c)enters into any other agreement or arrangement having an economic effect substantially similar to a sub-participation in respect of,
any Commitment or amount outstanding under this Agreement.
"Debt Service Obligations" has the meaning given to that term in Clause 23.1 (Definitions).
["Debt Service Reserve Account" or "DSRA" means the bank account opened and maintained by the Borrower with the [Agent]/[Security Agent] in accordance with Clause26 (Bank Accounts) and includes any interest of the Borrower in any replacement account or any sub-division or sub-account of that account.][14]
"Default" means an Event of Default or any event or circumstance specified in Clause 27 (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.
"Delegate" means any delegate, agent, attorney or co-trustee appointed by the Security Agent.