ADVFN Logo ADVFN

We could not find any results for:
Make sure your spelling is correct or try broadening your search.

Trending Now

Toplists

It looks like you aren't logged in.
Click the button below to log in and view your recent history.

Hot Features

Registration Strip Icon for monitor Customisable watchlists with full streaming quotes from leading exchanges, such as LSE, NASDAQ, NYSE, AMEX, Bovespa, BIT and more.

BTU Peabody Energy Corporation

23.85
-0.40 (-1.65%)
29 Nov 2024 - Closed
Delayed by 15 minutes
Share Name Share Symbol Market Type
Peabody Energy Corporation NYSE:BTU NYSE Common Stock
  Price Change % Change Share Price High Price Low Price Open Price Shares Traded Last Trade
  -0.40 -1.65% 23.85 24.46 23.61 24.36 1,822,161 21:44:41

Form 8-K/A - Current report: [Amend]

29/11/2024 10:07pm

Edgar (US Regulatory)


PEABODY ENERGY CORP true 0001064728 0001064728 2024-11-25 2024-11-25

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

 

Form 8-K/A

 

 

CURRENT REPORT

PURSUANT TO SECTION 13 OR 15(d)

OF THE SECURITIES EXCHANGE ACT OF 1934

Date of Report (Date of earliest event reported): November 25, 2024

 

 

PEABODY ENERGY CORPORATION

(Exact name of registrant as specified in its charter)

 

 

 

Delaware   1-16463   13-4004153
(State or Other Jurisdiction
of Incorporation)
  (Commission
File Number)
  (I.R.S. Employer
Identification No.)

 

  701 Market Street, St. Louis, Missouri   63101-1826  
  (Address of Principal Executive Offices)   (Zip Code)  

Registrant’s telephone number, including area code: (314) 342-3400

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Securities registered pursuant to Section 12(b) of the Act:

 

Title of each class

 

Trading
Symbol(s)

 

Name of each exchange
on which registered

Common Stock, par value $0.01 per share   BTU   New York Stock Exchange

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

Emerging growth company 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐

 

 

 


EXPLANATORY NOTE

This Amendment No. 1 to Current Report on Form 8-K is being filed to add Exhibit 2.1, Exhibit 2.2, Exhibit 2.3 and Exhibit 2.4 to the Current Report on Form 8-K filed by the registrant on November 25, 2024 (the “Original 8-K”), and to reflect these additions in Items 1.01 and 9.01. The registrant indicated in the Original 8-K that Exhibit 2.1, Exhibit 2.2, Exhibit 2.3 and Exhibit 2.4 would be filed by amendment.

 

Item 1.01

Entry into a Material Definitive Agreement.

On November 25, 2024, Peabody Energy Corporation (the “Company”) entered into definitive agreements to acquire, through one or more subsidiaries, from Anglo American plc, a United Kingdom public limited company (“Anglo”), a portion of the assets and businesses associated with Anglo’s metallurgical coal portfolio in Australia, including the Moranbah North and Grosvenor mines, the Moranbah South development project, the Capcoal complex, the Roper Creek mine, and the Dawson complex (comprising the Dawson Main/Central, Dawson South, Dawson South Exploration and Theodore South exploration mines, collectively, the “Dawson Assets”) (such acquisition of assets and businesses associated with Anglo’s metallurgical coal portfolio in Australia, collectively, the “Acquisition”). The Acquisition is expected to close in the first half of 2025, subject to regulatory approvals, completion of pre-emptive rights processes and satisfaction of other customary closing conditions.

Purchase Agreements

The Company intends to consummate the Acquisition pursuant to (1) a Share Purchase Agreement by and among the Company, Anglo American Netherlands B.V., Anglo American Services (UK) Ltd. and Peabody SMC Pty Ltd (“SMC Bidco”), a newly-formed subsidiary of the Company formed for the purposes of consummating the Acquisition under such agreement (the “SMC Purchase Agreement” and, the acquisition contemplated thereby, the “SMC Acquisition”), and (2) a Share and Asset Purchase Agreement by and among the Company, Anglo American Netherlands B.V., Moranbah North Coal Pty Ltd., Anglo American Steelmaking Coal Assets Eastern Australia Limited, Anglo American Steelmaking Coal Holdings Limited, Anglo American Services (UK) Ltd. and Peabody MNG Pty Ltd, a subsidiary of the Company formed for the purposes of consummating the Acquisition under such agreement (the “MNG Purchase Agreement” and, together with the SMC Purchase Agreement, the “Purchase Agreements”).

The Purchase Agreements contemplate (1) an upfront cash payment of $2.05 billion and fixed deferred cash payments totaling $725.0 million that will be payable in annual installments over a four-year period commencing on the first anniversary of the closing date of the Acquisition, and (2) additional contingent cash payments capped at $1.0 billion, comprised of (a) royalty payments contingent on the price of coal exceeding agreed-upon thresholds for each of the five years following the closing date of the Acquisition and (b) payments contingent on the potential restart of the Grosvenor mine. The total consideration for the Acquisition would be up to approximately $3.775 billion if the maximum amounts under the contingencies described above become payable.

The Purchase Agreements contain customary representations and warranties and covenants for transactions of this type, and the consummation of the Acquisition is subject to the satisfaction or waiver of certain customary conditions. Each of the Purchase Agreements may terminate at the option of either the Company or Anglo upon the occurrence of a material adverse change (as defined in each Purchase Agreement) with respect to the assets to be acquired, subject to certain cure provisions (as further described in each Purchase Agreement). In addition, the consummation of the Acquisition is subject to the completion of certain pre-emptive rights processes in favor of joint venture partners in respect of the assets to be acquired. The consummation of the Acquisition is also subject to certain regulatory approvals.

The foregoing summaries of the SMC Purchase Agreement and the MNG Purchase Agreement do not purport to be complete and are subject to, and qualified in their entirety by, the full text of the SMC Purchase Agreement and the MNG Purchase Agreement, copies of which are filed as Exhibit 2.1 and Exhibit 2.2, respectively, to this Current Report on Form 8-K.


Sale of Dawson Assets

Following the closing of the SMC Acquisition, the Company intends to sell the Dawson Assets (the “Dawson Sale”) to Pt Bukit Makmur Mandiri Utama or one of its subsidiaries to be formed for purposes of consummating the Dawson Sale (“BUMA”). Accordingly, concurrently with its entry into the Purchase Agreements, the Company has entered into (1) an option deed by and among BUMA and SMC Bidco (the “Dawson Option Deed”), pursuant to which the Dawson Sale would be consummated, and (2) a loan note deed by and among BUMA and SMC Bidco pursuant to which BUMA will lend to SMC Bidco the funds required to purchase the Dawson Assets under the SMC Purchase Agreement and fund certain other obligations in relation to the Dawson Assets (the “Loan Note Deed”). The Company’s obligations under the Dawson Option Deed and the Loan Note Deed will be guaranteed by one of the Company’s Australian subsidiaries.

The Dawson Option Deed contains a put option (under which BUMA offers to purchase) and a call option (under which the Company offers to sell) with respect to the Dawson Assets. The consideration payable by BUMA to the Company for the Dawson Assets is, subject to certain conditions, approximately $455.0 million, which is the purchase price under the SMC Purchase Agreement attributable to the Dawson Assets (the “Dawson SMC Consideration”). The Dawson SMC Consideration is comprised of a $355.0 million upfront cash payment and $100.0 million fixed deferred cash payments totaling $100.0 million that will be payable in annual installments over a four-year period commencing on the first anniversary of the closing date of the Dawson Sale. The Loan Note Deed evidences BUMA’s obligation to pay the Dawson SMC Consideration to the Company on the anticipated closing date of the SMC Acquisition, which would finance the Company’s acquisition of the Dawson Assets (and the related portion of the SMC Acquisition).

The foregoing summaries of the Dawson Option Deed and the Loan Note Deed do not purport to be complete and are subject to, and qualified in their entirety by, the full text of the Dawson Option Deed and the Loan Note Deed, copies of which are filed as Exhibit 2.3 and Exhibit 2.4, respectively, to this Current Report on Form 8-K.

Bridge Loan Facility

Concurrently with its entry into the Purchase Agreements, the Company entered into a bridge loan facility commitment letter (the “Bridge Commitment Letter”, and the senior secured 364-day bridge facility provided for therein, the “Bridge Facility”), pursuant to which Jefferies Finance LLC (“Jefferies”), Deutsche Bank AG Cayman Islands Branch (“DBCI”), Deutsche Bank Securities Inc. (“DBSI” and, together with DBCI, collectively, “DB”), KKR Capital Markets LLC (“KCM”) and KKR Corporate Lending LLC (“KCL”, and together with Jefferies, DB and KCM, the “Bridge Commitment Parties”), agreed to provide the Bridge Facility to the Company in the amount of up to $2.075 billion in order to finance the Acquisition in part.

Subject to the conditions in the Bridge Commitment Letter, the commitments under the Bridge Facility (the “Bridge Commitments”) may be reduced by proceeds of certain equity offerings of the Company and certain additional indebtedness that may be incurred by the Company to finance the Acquisition. The Company expects to reduce the Bridge Commitments through such offerings or financings, possibly to zero, prior to the closing date, but there can be no assurance such offerings or financings will occur and any such expectation is subject to market conditions.

To the extent borrowings are made under the Bridge Facility, any loans would bear interest at Term SOFR plus an applicable margin of 8.00% or a base rate plus an applicable margin of 7.00%, at the Company’s option. Such applicable margin would increase by an additional 0.75% on the date that is 90 days following the closing date of the Acquisition. Any borrowings under the Bridge Facility would mature 364 days from the initial funding date, which would be on or around the closing date of the Acquisition.

The availability of borrowings under the Bridge Facility is subject to the satisfaction of certain customary conditions for transactions of this type. Any definitive financing documentation for the Bridge Facility will contain customary representations and warranties, covenants and events of defaults for transactions of this type. Upon execution of any definitive financing documentation for the Bridge Facility, the Bridge Facility will be guaranteed by substantially all U.S. subsidiaries of the Company and secured by substantially all assets of the Company, its U.S. subsidiaries and, subject to certain conditions, certain of the Company’s Australian subsidiaries.


Revolving Credit Facility Amendment

On November 25, 2024, the Company amended its revolving credit facility by entering into that certain Amendment No. 1 Credit Agreement, dated as of November 25, 2024 (the “Revolving Credit Facility Amendment”), with PNC Bank, National Association, as administrative agent (the “Agent”), and the lenders party thereto (such lenders, the “Consenting Lenders”), which amends that certain Credit Agreement by and among the Company, as borrower, certain subsidiaries of the Company party thereto, the Agent, and the lenders party thereto.

Pursuant to the Revolving Credit Facility Amendment, the Company, the Agent and the Consenting Lenders, among other things, made certain changes to permit the Acquisition, the Bridge Facility and the incurrence of additional indebtedness to finance the Acquisition, to the extent applicable.

The foregoing summary of the Revolving Credit Facility Amendment does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the Revolving Credit Facility Amendment, a copy of which is filed as Exhibit 10.1 to this Current Report on Form 8-K.

 

Item 7.01

Regulation FD Disclosure.

On November 25, 2024, the Company issued a press release announcing the Acquisition and posted an investor presentation regarding the Acquisition under the investor section on its website www.peabodyenergy.com. Copies of the press release and investor presentation are attached as Exhibit 99.1 and Exhibit 99.2, respectively, to this Current Report on Form 8-K and are incorporated herein by reference.

The information contained herein, including Exhibit 99.1 and Exhibit 99.2, is being furnished pursuant to Item 7.01 of Form 8-K and shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liabilities of that section, nor shall it be deemed incorporated by reference into any of the Company’s filings under the Securities Act of 1933, as amended, or the Exchange Act, whether made before or after the date hereof and regardless of any general incorporation language in such filings, except to the extent expressly set forth by specific reference in such a filing. The furnishing of this information will not be deemed an admission as to the materiality of any information contained herein.

Forward-Looking Statements

This Current Report on Form 8-K contains forward-looking statements within the meaning of the securities laws. Forward-looking statements can be identified by the fact that they do not relate strictly to historical or current facts. They often include words or variation of words such as “expects,” “anticipates,” “intends,” “plans,” “believes,” “seeks,” “estimates,” “projects,” “forecasts,” “targets,” “would,” “will,” “should,” “goal,” “could” or “may” or other similar expressions. Forward-looking statements provide management’s or the Board’s current expectations or predictions of future conditions, events, or results. All statements that address operating performance, events, or developments that may occur in the future are forward-looking statements, including statements regarding the Acquisition, the financing components of the Acquisition and the expected date of closing of the Acquisition. All forward-looking statements speak only as of the date they are made and reflect the Company’s good faith beliefs, assumptions, and expectations, but they are not guarantees of future performance or events. Furthermore, the Company disclaims any obligation to publicly update or revise any forward-looking statement, except as required by law. By their nature, forward-looking statements are subject to risks and uncertainties that could cause actual results to differ materially from those suggested by the forward-looking statements. Factors that might cause such differences include, but are not limited to, a variety of economic, competitive, and regulatory factors, many of which are beyond the Company’s control, that are described in the Company’s periodic reports filed with the SEC including its Annual Report on Form 10-K for the fiscal year ended December 31, 2023 and Quarterly Report on Form 10-Q for the quarter ended June 30, 2024 and other factors that the Company may describe from time to time in other filings with the SEC. should understand that it is not possible to predict or identify all such factors and, consequently, you should not consider any such list to be a complete set of all potential risks or uncertainties.


Item 9.01

Financial Statements and Exhibits.

 

(d)

Exhibits.

 

Exhibit
Number

  

Description

 2.1    Share Purchase Agreement, dated as of November 25, 2024, by and among Peabody Energy Corporation, Anglo American Netherlands B.V., Anglo American Services (UK) Ltd. and Peabody SMC Pty Ltd*
 2.2    Share and Asset Purchase Agreement, dated as of November 25, 2024, by and among Peabody Energy Corporation, Anglo American Netherlands B.V., Moranbah North Coal Pty Ltd., Anglo American Steelmaking Coal Assets Eastern Australia Limited, Anglo American Steelmaking Coal Holdings Limited, Anglo American Services (UK) Ltd. and Peabody MNG Pty Ltd*
 2.3    Option Deed, dated as of November 25, 2024, by and among Peabody SMC Pty Ltd, Peabody Australia Holdco Pty Ltd, PT Bukit Makmur Internasional and PT Delta Dunia Makmur Tbk*
 2.4    Dawson Loan Note Deed, dated as of November 25, 2024, by and among Peabody SMC Pty Ltd and PT Bukit Makmur Internasional*
10.1    Amendment No. 1 to Credit Agreement, dated as of November 25, 2024, by and among Peabody Energy Corporation, PNC Bank, National Association, as administrative agent, and the lenders party thereto.*†
99.1    Press Release, dated November 25, 2024‡
99.2    Investor Presentation, dated November 25, 2024‡
104    Cover Page Interactive Data File (embedded within the Inline XBRL document).

 

 

*

Certain portions of this exhibit have been redacted pursuant to Regulation S-K, Item 601(a)(6) and Item 601(b)(2)(ii). This exhibit excludes certain immaterial schedules and exhibits pursuant to the provisions of Regulation S-K, Item 601(a)(5). A copy of any of the omitted information, schedules and exhibits pursuant to Regulation S-K, Item 601(a)(5), Item 601(a)(6) and Item 601(b)(2)(ii), as applicable, will be furnished to the Securities and Exchange Commission upon request.

Previously filed.

Previously furnished.


SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this Current Report on Form 8-K to be signed on its behalf by the undersigned hereunto duly authorized.

 

November 29, 2024     PEABODY ENERGY CORPORATION
    By:  

/s/ Scott T. Jarboe

    Name:   Scott T. Jarboe
    Title:  

Chief Administrative Officer and

Corporate Secretary

Exhibit 2.1

CERTAIN INFORMATION HAS BEEN EXCLUDED FROM THIS EXHIBIT BECAUSE

IT IS NOT MATERIAL AND IS THE TYPE THAT THE REGISTRANT TREATS AS

PRIVATE OR CONFIDENTIAL. THE OMITTED PORTIONS OF THIS DOCUMENT

ARE INDICATED BY [***].

Execution Version

25 November 2024

ANGLO AMERICAN NETHERLANDS B.V.

(as Seller)

and

ANGLO AMERICAN SERVICES (UK) LTD.

(as Seller Guarantor)

and

PEABODY SMC PTY LTD

(as Buyer)

and

PEABODY ENERGY CORPORATION

(as Buyer Guarantor)

 

 

AGREEMENT

related to SHARE PURCHASE for

ANGLO AMERICAN AUSTRALIA LIMITED

 

 


TABLE OF CONTENTS

 

Clause        Page  

1.

  DEFINITIONS AND INTERPRETATION      1  

2.

  GRANT OF CALL OPTION AND PUT OPTION      32  

3.

  SALE OF THE SHARES      32  

4.

  DEPOSIT      33  

5.

  CONSIDERATION      33  

6.

  ALLOCATION AND ADJUSTMENT OF THE CONSIDERATION      34  

7.

  ROYALTY      35  

8.

  FOREIGN RESIDENT CAPITAL GAINS WITHHOLDING      35  

9.

  CONDITIONS TO EXERCISE OF CALL OPTION AND PUT OPTION      36  

10.

  PRE-EMPTION RIGHTS      41  

11.

  PRE-COMPLETION OBLIGATIONS      43  

12.

  SEPARATION PLAN      48  

13.

  MATERIAL ADVERSE CHANGE      50  

14.

  COMPLETION      51  

15.

  COMPLETION ACCOUNTS      53  

16.

  POST-COMPLETION OBLIGATIONS      54  

17.

  [***]      55  

18.

  GUARANTEES      55  

19.

  MORANBAH NORTH CLAIMS      56  

20.

  POST-COMPLETION PAYMENT OBLIGATIONS      57  

21.

  SELLER’S WARRANTIES AND UNDERTAKINGS      58  

22.

  SELLER GUARANTOR’S WARRANTIES AND UNDERTAKINGS      59  

23.

  BUYER’S WARRANTIES AND UNDERTAKINGS      62  

24.

  BUYER GUARANTOR’S WARRANTIES AND UNDERTAKINGS      64  

25.

  BUYER INDEMNITIES      71  

26.

  SELLER INDEMNITIES      71  

27.

  INSURANCE      72  

28.

  EMPLOYEES      73  

29.

  TAX COVENANT      73  

30.

  CONFIDENTIALITY AND ANNOUNCEMENTS      74  

31.

  TERMINATION      75  

32.

  GST      76  

33.

  FURTHER ASSURANCE      77  

34.

  POWER OF ATTORNEY      77  

35.

  ENTIRE AGREEMENT AND REMEDIES      78  

 

i


36.

  POST-COMPLETION EFFECT OF AGREEMENT      78  

37.

  WAIVER AND VARIATION      79  

38.

  INVALIDITY      79  

39.

  ASSIGNMENT      79  

40.

  PAYMENTS, SET-OFF AND DEFAULT INTEREST      80  

41.

  TRANSACTION COMMUNICATIONS      80  

42.

  NOTICES      81  

43.

  COSTS      83  

44.

  RIGHTS OF THIRD PARTIES      83  

45.

  COUNTERPARTS      84  

46.

  GOVERNING LAW AND JURISDICTION      84  

47.

  PROCESS AGENT      84  

SCHEDULE 1

  
 

PARTICULARS OF THE COMPANY AND THE SUBSIDIARIES

  

SCHEDULE 2

  
 

CONSIDERATION ALLOCATION

  

SCHEDULE 3

  
 

ROYALTY ALLOCATION

  

SCHEDULE 4

  
 

PRE-COMPLETION OBLIGATIONS

  

SCHEDULE 5

  
 

COMPLETION OBLIGATIONS

  

SCHEDULE 6

  
 

SELLER’S WARRANTIES

  

SCHEDULE 7

  
 

LIMITATIONS ON SELLER LIABILITY

  

SCHEDULE 8

  
 

TAX COVENANT

  

SCHEDULE 9

  
 

COMPLETION ACCOUNTS

  

SCHEDULE 10

  
 

FORMAT OF COMPLETION ACCOUNTS

  

SCHEDULE 11

  
 

ROYALTY

  

SCHEDULE 12

  
 

MINING TENEMENTS

  

SCHEDULE 13

  
  PROPERTY   

 

 

ii


SCHEDULE 14

  
 

INTELLECTUAL PROPERTY

  

SCHEDULE 15

  
 

SELLER GUARANTEES

  

SCHEDULE 16

  
 

SPECIFIC CONTRACTS

  

SCHEDULE 17

  
 

TERMINATING CONTRACTS

  

SCHEDULE 18

  
 

SEPARATION PRINCIPLES

  

EXHIBIT 1

  
 

EXERCISE NOTICES

  

EXHIBIT 2

  
 

ROYALTY WORKED EXAMPLE

  

EXHIBIT 3

  
 

TRANSITIONAL SERVICES AGREEMENT

  

 

iii


THIS DEED is made on 25 November 2024.

BETWEEN

 

(1)

ANGLO AMERICAN NETHERLANDS B.V., a company incorporated in The Netherlands with registered number 33139747 and having its registered office at 17 Charterhouse Street, London EC1N 6RA (the “Seller”);

 

(2)

ANGLO AMERICAN SERVICES (UK) LTD., a company incorporated in the United Kingdom with registered number 02295324 and having its registered office at 17 Charterhouse Street, London EC1N 6RA (the “Seller Guarantor”);

 

(3)

PEABODY SMC PTY LTD, a company incorporated in Queensland, Australia with company number ACN 682 277 587 and having its registered office at Level 14, 31 Duncan Street, Fortitude Valley QLD 4006 (the “Buyer”); and

 

(4)

PEABODY ENERGY CORPORATION, a company incorporated in the State of Delaware, United States of America with registered number 2864939 and having its registered office at 701 Market Street, St. Louis, Missouri, United States of America (the “Buyer Guarantor”).

RECITALS

 

(A)

On the exercise of the Put Option or Call Option subject to the terms of this Deed, the Seller wishes to sell and the Buyer wishes to acquire the Company’s entire issued share capital.

 

(B)

The Seller Guarantor has become a party to this Deed for the purpose of entering into the guarantee and indemnity set out in Clause 22.

 

(C)

The Buyer Guarantor has become a party to this Deed for the purpose of entering into the guarantee and indemnity set out in Clause 24.

IT IS AGREED THAT

 

1.

DEFINITIONS AND INTERPRETATION

 

1.1

In this Deed, unless the context otherwise requires or amended by Clause 10.4:

1936 Tax Act” means the Income Tax Assessment Act 1936 (Cth);

1997 Tax Act” means the Income Tax Assessment Act 1997 (Cth);

AASC” means Anglo American Steelmaking Coal Pty Ltd (ACN 076 059 679), further details of which are set out in Schedule 1;

AASCH” means Anglo American Steelmaking Coal Holdings Limited (ACN 079 017 940), further details of which are set out in Schedule 1;

Accounting Standards” means:

 

  (a)

the Corporations Act’s requirements for the preparation and contents of financial reports; and

 

  (b)

the accounting standards approved under the Corporations Act, being the Australian Accounting Standards and any authoritative interpretations issued by the Australian Accounting Standards Board;

 

1


Accounts” means, in respect of the Company, the audited consolidated balance sheet as at the Accounts Date and the audited consolidated profit and loss statements and statement of cash flows for the year ending on the Accounts Date, together with the notes to and the reports of the directors in respect of those accounts, as included at document 02.02.05.03 of the Data Room;

Accounts Date” means 31 December 2023;

Affiliate” means, in respect of a legal entity, any other legal entity which controls, is controlled by, or is under common control with that legal entity. An entity is deemed to “control” another if it:

 

  (a)

owns directly or indirectly more than 50% of the shares entitled to vote at a general election of directors of such other entity;

 

  (b)

has the right to appoint the majority of the board of directors (or equivalent body) of a legal entity; or

 

  (c)

has the majority voting interest in such other entity if such entity does not have either shares or directors,

and in all cases unless stated otherwise excluding each Group Company and the Moranbah North Entities; but, if the Buyer (or an Affiliate of the Buyer) is the ‘Buyer’ under the Moranbah North SAPA, on and from completion of the transactions contemplated by the Moranbah North SAPA, the term “Affiliates” in respect of the Buyer will include the Moranbah North Entities;

Agreed Form” means, in relation to a document, the form of that document agreed in writing by or on behalf of the Buyer and Seller as being in agreed form;

Alternative Financing” has the meaning given in Clause 24.4(g);

Alternative Recovery Claim” has the meaning given in paragraph 9.2 of Schedule 7;

Anglo Dawson” means Anglo Coal (Dawson) Limited, further details of which are set out in Schedule 1;

Anglo Dawson South” means Anglo Coal (Dawson South) Pty Ltd, further details of which are set out in Schedule 1;

Anglo Eastern Australia” means Anglo American Steelmaking Coal Assets Eastern Australia Limited, further details of which are set out in Schedule 1;

Anglo German Creek” means Anglo Coal (German Creek) Pty Ltd, further details of which are set out in Schedule 1;

Anglo Grosvenor” means Anglo Coal (Grosvenor) Pty Ltd, further details of which are set out in Schedule 1;

Anglo Month End Date” means 1 December 2024, 31 December 2024, 2 February 2025, 2 March 2025, 30 March 2025, 27 April 2025, 1 June 2025, 29 June 2025, 3 August 2025, 31 August 2025, 28 September 2025, 2 November 2025, 30 November 2025, 31 December 2025, 1 February 2026 and 1 March 2026 or such other accounting month end date (including for these purposes any four or five week period end date or equivalent) as notified by the Seller to the Buyer;

 

2


Anglo Roper Creek” means Anglo Coal (Roper Creek) Pty Ltd, further details of which are set out in Schedule 1;

Anglo Theodore South” means Anglo Coal (Theodore South) Pty Ltd, further details of which are set out in Schedule 1;

Anticorruption Laws” means all laws, regulations, or orders relating to bribery, or corruption (governmental or commercial), including laws that prohibit the corrupt payment, offer, promise, or authorisation of the payment or transfer of anything of value (including gifts or entertainment), directly or indirectly, to any foreign government official, foreign government employee, person or commercial entity, to obtain a business advantage, or the offer, promise, or gift of, or the request for, agreement to receive or receipt of a financial or other advantage to induce or reward the improper performance of a relevant function or activity; such as, without limitation, the U.S. Foreign Corrupt Practices Act of 1977, as amended from time to time, the UK Bribery Act of 2010, the Criminal Code 1995 (Cth), the Criminal Code 1899 (Qld), the National Anti-Corruption Commission Act 2022 (Cth), the Crimes Legislation Amendment (Combatting Foreign Bribery) Act 2024 (Cth), and any laws enacted to implement the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions signed in Paris on 17 December 1997, which entered into force on 15 February 1999, and the Convention’s Commentaries;

Anti-trust Authority” means any Authority that has jurisdiction over Anti-trust Laws;

Anti-trust Laws” means all Laws governing the conduct of any person in relation to restrictive or other anti-competitive agreements or practices (including cartels, pricing, resale pricing, market sharing, bid rigging, terms of trading, purchase or supply and joint ventures), abuse of dominant or monopoly market positions (whether held individually or collectively) and the control of acquisitions or mergers;

ASIC” means the Australian Securities and Investment Commission;

Assumed Liabilities” means all of the Seller’s Liabilities and obligations in connection with the Shares and whether incurred, accrued, arising or connected to the period before, on or after Completion, including all Joint Venture Liabilities and all Environmental Obligations (excluding any Liabilities arising from the Seller’s breach of any Transaction Document or Liabilities described in Clause 17, Tax Covenant Claims for which the Seller is liable);

Assumed Liability Insurance Amount” has the meaning given in Clause 25.1(d);

Authority” means any competent governmental, administrative, supervisory, regulatory, judicial, determinative, disciplinary, enforcement or tax raising body, authority, agency, board, department, court or tribunal of any jurisdiction and whether supranational, national, regional or local;

Bank Guarantee Beneficiary” means each beneficiary of a Bank Guarantee (including each beneficiary specified in the table in Part 1 of Schedule 15);

Bank Guarantees” means any (including replacement or new) guarantees, bonds, credit support arrangements, indemnities and letters of comfort given by or on behalf of the Seller or given by a financial institution on behalf of any Group Company in each case in relation to any Group Company, including those specified in Part 1 of Schedule 15;

Business Day” means any day other than a Saturday, Sunday or public holiday in the City of London, England or Brisbane, Queensland, Australia; provided, that, for purposes of the Marketing Period, “Business Day” means any day excluding Saturday, Sunday and any day which is a legal holiday under the laws of the State of New York or is a day on which banking institutions located in New York are authorized or required by law or other governmental action to close;

 

 

3


Business Warranties” means the Warranties other than the Fundamental Warranties and the Tax Warranties;

Business Warranty Claim” means a Claim by the Buyer in respect of a Business Warranty;

Buyer Deal Team Members” means [***], [***], [***], [***], [***] and [***];

Buyer Financing Agreements” has the meaning given in Clause 23.1(g);

Buyer Group” means the Buyer and each of its Affiliates, in each case from time to time and including the Group Companies from Completion and, if applicable, the Moranbah North Entities subject to completion of the transactions contemplated by the Moranbah North SAPA;

Buyer Refund Amount” has the meaning given in Clause 20.1;

Buyer Revolver Amendment” has the meaning given in Clause 24.4(f);

Buyer Revolver Payoff Documentation” has the meaning given in Clause 24.4(f)(ii)(B)(II);

Buyer Revolving Credit Agreement” has the meaning given in Clause 24.4(f);

Buyers Bank Account” means:

 

  (a)

Bank: [***];

 

  (b)

Bank Address: [***];

 

  (c)

Account Name: [***];

 

  (d)

Account Number: [***];

 

  (e)

Wire ABA: [***];

 

  (f)

ACH ABA: [***]; and

 

  (g)

Swift: [***];

Call Option” has the meaning given in Clause 2.2;

Call Option Exercise Period” means the period commencing on the Call Option Exercise Period Commencement Date and ending on the date that is five Business Days after the Call Option Exercise Period Commencement Date;

Call Option Exercise Period Commencement Date” means the Business Day immediately after the end of the Put Option Exercise Period;

Capcoal Joint Venture” means the joint venture constituted by the Capcoal JVA;

Capcoal JVA” means [***];

 

4


Capcoal Manager” means Anglo Coal (Capcoal Management) Pty Limited, further details of which are set out in Schedule 1;

Capcoal Participating Interest” means the 70% undivided legal and beneficial right, title, and interest held by Anglo German Creek and Jena in the Capcoal Joint Venture;

Carve-out Accounts” means the audited financial statements in respect of the Carve-out Assets for the financial years ending 31 December 2022 and 31 December 2023, and any subsequent financial year ending at least 90 days prior to the Scheduled Completion Date, and the related statements of comprehensive income (loss), changes in stockholders equity, and changes in cash flows for the financial years then ended;

Carve-out Assets” means:

 

  (a)

the Group Companies;

 

  (b)

the Moranbah North Assets; and

 

  (c)

the Moranbah North Entities;

Carve-out Required Information” means:

 

  (a)

the Carve-out Accounts;

 

  (b)

the unaudited balance sheet in respect of the Carve-out Assets as of the last date of each subsequent quarter, other than the fourth quarter in any financial year, ending after 31 December 2023, and at least 45 days prior to the Scheduled Completion Date, and the related statements of comprehensive income (loss), changes in stockholders equity, and changes in cash flows for the financial year then ended for the three months then ending and for the portion of the year to date reviewed by the Seller’s independent auditor;

 

  (c)

historical information reasonably requested by the Buyer in the Buyer’s preparation of the pro forma financial statements required to be included in any Offering Documents for the Financing (including such financial information as the Buyer may reasonably request in order to permit the Buyer to complete any required reconciliation from International Financial Reporting Standards (“IFRS”) to generally accepted accounting principles in the United States and any required reclassifications to conform to the Buyer Group’s financial statement presentation) (it being agreed that the Seller need only assist in the preparation thereof but shall not be required to (x) prepare independently any pro forma financial statements or (y) provide any information or assistance relating to (A) the proposed aggregate amount of debt financing, together with assumed interest rates, dividends (if any) and fees and expenses relating to the incurrence of such debt, (B) any post-Completion Date or pro forma cost savings, synergies, capitalisation or ownership desired to be incorporated into any information used in connection with such financing or (C) any financial information related to the Buyer Group); and

 

  (d)

all other financial data and other information regarding the Carve-out Assets that is reasonably requested by the Buyer and required for the Buyer to produce customary Offering Documents for private placements of non-convertible bonds pursuant to Rule 144A under the US Securities Act (but for the avoidance of doubt, excluding the Excluded Information); provided that, notwithstanding anything to the contrary in this definition or otherwise, nothing herein shall require the Seller to provide (or be deemed to require the Seller to prepare) any (1) description of all or any portion of the Financing, including any “description of notes,” “plan of distribution” and

 

5


  information customarily provided by investment banks or their counsel or advisors in the preparation of Offering Documents for private placements of non-convertible bonds pursuant to Rule 144A under the US Securities Act, (2) risk factors relating to, or any description of, all or any component of the financing contemplated thereby, (3) segment reporting or consolidating and other financial statements or data required by Rules 3-03(e), 3-05, 3-09, 3-10, 3-16, 13-01 or 13-02 of Regulation S-X under the US Securities Act, (4) compensation discussion and analysis and other information required by Item 402, 404 or 601 of Regulation S-K under the US Securities Act, (5) any information regarding executive compensation and related pension disclosure rules related to US Securities and Exchange Commission Release Nos. 33-8732A, 34-54302A and IC-27444A, (6) any financial information (other than the historical financial statements detailed in paragraphs (b) and (c) above) that the Seller or the Group, as the case may be, does not maintain in the ordinary course of business, (7) any other information not reasonably available to the Seller under the Seller’s current reporting systems, (8) projections or (9) any other information customarily excluded from Offering Documents for private placements of non-convertible high-yield bonds pursuant to Rule 144A under the Securities Act (collectively, the “Excluded Information”).

The Carve-out Required Information required to be provided by the Seller pursuant to this Deed shall be subject to the additional limitations set out in Clause 11.13.

For the avoidance of doubt, the financial statements referred to in the foregoing paragraphs (a) and (b) will be prepared in accordance with IFRS and the unaudited financial statements referred to in paragraph (b) will be reviewed by the independent accountants of the Seller as provided in the procedures specified by Public Company Accounting Oversight Board Accounting Standard 4015;

Carve-outs” means:

 

  (a)

the Jellinbah Carve-out;

 

  (b)

the Moranbah Carve-out; and

 

  (c)

any Pre-emption Carve-out notified in accordance with Clause 10.5;

Cash” means, in respect of the Group Companies, without duplication:

 

  (a)

cash in hand;

 

  (b)

cash standing to the credit of any account with a bank or other financial institution;

 

  (c)

the Inter-Group Funding Receivables;

 

  (d)

cash equivalents, including liquid or realisable stocks, shares, bonds, treasury bills and other such securities; and

 

  (e)

any cash held as security arising from any pay out of a Bank Guarantee,

and all accrued interest, in each case, as at the Effective Time together with any item required to be included in Cash in accordance with paragraphs 5 or 6 of Schedule 9 and as set out in the Completion Accounts prepared in accordance with Schedule 9;

Changed Holder Review Application” means in respect of each FPS Environmental Authority, an application to the Scheme Manager under section 33 of the Financial Provisioning Act to make a ‘changed holder review allocation’ (as defined in the Financial Provisioning Act) in respect of the proposed ‘changed holder event’ (as defined in the Financial Provisioning Act) contemplated by the sale of the Shares to the Buyer;

 

 

6


Changed Holder Review Decision” means, in respect of each FPS Environmental Authority, a ‘changed holder review decision’ (as defined in the Financial Provisioning Act) made by the Scheme Manager in response to the Changed Holder Review Application in respect of the FPS Environmental Authority;

Claim” means any claim, demand, legal process or cause of action by a party to this Deed whether in contract, tort, at common law or in equity, under statute, or otherwise, including any Tax Covenant Claim;

Clear Exit Payment” means any payments to be made by the Company or a Subsidiary to permit that Company or Subsidiary to leave the Seller Consolidated Group on Completion clear of any Group Liability in accordance with section 721-35 of the 1997 Tax Act calculated or estimated in accordance with the principles set out in the Seller Tax Sharing Agreement;

Commissioner” means the Australian Commissioner of Taxation;

Commitment Letter” means the commitment letter between the Buyer Guarantor, Jefferies Finance LLC, Deutsche Bank AG Cayman Islands Branch, Deutsche Bank Securities Inc., KKR Corporate Lending LLC and KKR Capital Markets LLC, dated on or about the date of this Deed, as amended, supplemented or replaced in compliance with this Deed, pursuant to which the financial institutions party thereto have agreed, subject only to the Financing Conditions set forth therein, to provide or cause to be provided the debt financing set forth therein for the purposes of financing in part the transactions contemplated by the Transaction Documents;

Company” means Anglo American Australia Limited, a company incorporated in Victoria, Australia with company number ACN 004 892 371 and having its registered office at Level 11, 201 Charlotte St, Brisbane, Queensland 4000, Australia;

Completion” means completion of the sale and purchase of the Shares in accordance with Clause 14;

Completion Accounts” means the Group’s aggregate balance sheet as at the Effective Time and as prepared, agreed or determined, as the case may be, in accordance with Schedule 9;

Completion Date” means the date on which Completion takes place;

Completion Payment” means:

 

  (a)

the Up-front Consideration; minus

 

  (b)

the Deposit (including accrued interest in accordance with Clause 4.3(c)(iii)); plus

 

  (c)

the Estimated Cash; minus

 

  (d)

the Estimated Debt; plus

 

  (e)

the Estimated Working Capital Adjustment;

Completion Schedule” has the meaning given in Clause 11.5;

Conditions” means the conditions set out in Clause 9.1;

 

7


Confidential Information” has the meaning given in Clause 30.1;

Connected Persons” means, in respect of a person, its directors, officers and employees;

Consideration” has the meaning given in Clause 5.1;

Consolidated Group” means a multiple entry consolidated group formed in accordance with Part 3-90, as modified by Division 719, of the 1997 Tax Act;

Consolidated Subsidiaries” means each Subsidiary except for (1) Dawson Sales Pty Ltd; (2) Dawson South Sales Pty Ltd; and (3) German Creek Coal Pty. Limited, in each case, further details of which are set out in Schedule 1;

Corporations Act” means the Corporations Act 2001 (Cth) as amended from time to time;

D&O Insurance” has the meaning given in Clause 16.4;

Data Room” means the electronic data room hosted by Ansarada with the name “Project Oryx” as at 5:00pm AEST on 22 November 2024, an index of which is in Agreed Form;

Data Room USB Stick” means the USB memory stick containing the contents of the Data Room;

Dawson Joint Venture” means the joint venture constituted by the Dawson JVA;

Dawson JVA” means [***];

Dawson Participating Interest” means the 51% undivided legal and beneficial right, title, and interest held by Anglo Dawson in the Dawson Joint Venture;

Dawson South Exploration Joint Venture” means the joint venture constituted by the Dawson South Exploration JVA;

Dawson South Exploration JVA” means [***];

Dawson South Exploration Participating Interest” means the 51% undivided legal and beneficial right, title, and interest held by Anglo Dawson South in the Dawson South Exploration Joint Venture;

Dawson South Joint Venture” means the joint venture constituted by the Dawson South JVA;

Dawson South JVA” means [***];

Dawson South Participating Interest” means the 51% undivided legal and beneficial right, title, and interest held by Anglo Dawson South in the Dawson South Joint Venture;

DBCTCo” means Dalrymple Bay Coal Terminal Pty. Ltd., a company incorporated in Queensland, Australia with company number ACN 010 268 167 and having its registered office at Martin Armstrong Drive, Haypoint via Mackay, Queensland 4741;

 

8


Debt” means in respect of the Group Companies the aggregate amount (expressed as a positive number) of the following, without duplication:

 

  (a)

any borrowings from any bank or other financial institution, including in the form of letters of credits (to the extent drawn) but excluding in all cases (i) any rehabilitation guarantees, bonds, assurances or similar provided by the Seller or a Group Company, including in respect of its Mining Tenements, and (ii) any Seller Guarantees. For the avoidance of doubt, this paragraph (a) includes any cash standing to the debit of any account with a bank or other financial institution;

 

  (b)

any indebtedness evidenced by any bond, note, loan stock, debenture or similar instrument;

 

  (c)

any obligations under any conditional sale, title retention, forward sale or purchase or any similar agreement or arrangement creating obligations with respect to the deferred purchase price of property (other than customary trade credit given in the ordinary course of trading and other than factoring or discounting without recourse);

 

  (d)

any asset or liability in respect of interest rate, currency or commodity swap, forward contract, cap, collar or other hedging agreement or arrangement (valued as if terminated at Completion and any such assets will be included in Debt as a negative figure);

 

  (e)

any corporation or profit based tax liabilities or assets (and any such assets will be included in Debt as a negative figure);

 

  (f)

any sell-side transaction-related costs to the extent payable by a Group Company after the Effective Time, excluding any GST other than Irrecoverable GST;

 

  (g)

any Transaction Bonuses;

 

  (h)

the Inter-Group Funding Payables;

 

  (i)

any guarantees in respect of any obligation under limbs (a) to (h) above (but excluding any rehabilitation guarantees, bonds, assurances or similar provided, including in respect of the Mining Tenements), but only to the extent drawn or called as of the Effective Time;

 

  (j)

any break fees or prepayment penalties or premiums, incurred in relation to the repayment or termination of any of the matters referred to in limbs (a) to (i) above, but solely to the extent such repayment or termination is a necessary consequence of Completion or results from actions taken before the Effective Time; and

 

  (k)

any accrued but unpaid interest on any of the matters referred to in limbs (a) to (j) above up to the Effective Time,

in each case as at the Effective Time together with any item required to be included in Debt in accordance with paragraphs 5 and 6 of Schedule 9, and as set out in the Completion Accounts prepared in accordance with Schedule 9;

Deferred Fixed Consideration means the First Deferred Payment, the Second Deferred Payment, the Third Deferred Payment and the Fourth Deferred Payment;

Deposit” has the meaning given in Clause 4.1;

Disclosed” means disclosed with sufficient detail to enable a reasonable buyer to identify the nature and scope of the matter disclosed;

Disclosure Letter” means the disclosure letter dated on or about the date of this Deed, delivered by or on behalf of the Seller to the Buyer immediately before signing this Deed;

 

9


Disclosure Material” means the following information and documents provided by the Seller Group or its Representatives to the Buyer Group (excluding the Moranbah North Entities) or its Representatives before the date of this Deed:

 

  (a)

the information and documents contained in the Data Room (including the Vendor Reports);

 

  (b)

the written responses (including any attachments to those responses) given to any written questions submitted by the Buyer Group or its Representatives included in the Data Room;

 

  (c)

all written information and documents provided during any site visit to the Mining Tenements or the Properties;

 

  (d)

any management presentations and information memoranda in relation to the transaction completed by this Deed or the Moranbah North SAPA (including the ‘Information Memorandum’ at document 01.03.01 in the Data Room and the management presentations in folder 01.05 in the Data Room) and all written and verbal information provided during the question and answer process of any management presentations; and

 

  (e)

all information (including in any attachments) in the Disclosure Letter or in any disclosure letter provided to the Buyer (or its Affiliate) pursuant to the Moranbah North SAPA;

Dispute” has the meaning given in Clause 46.3;

Draft Completion Accounts” has the meaning given in paragraph 1 of Schedule 9;

Duty” means any stamp, transaction, transfer, landholder or registration duty or similar charge imposed by a Tax Authority and any interest and penalties payable in connection with such duty or similar charge;

Effective Time” means immediately before Completion;

Employee” means any employee of a Group Company;

Encumbrance” means any interest or equity of any person (including any right to acquire, option or right of pre-emption), any mortgage, charge, pledge, lien, assignment, hypothecation, security interest (including any created by Law), title retention, voting agreement or any other security agreement or arrangement, but excluding any Permitted Encumbrance;

End of Month Date” means the next Business Day after the first Anglo Month End Date to occur after the completion of the Moranbah North SAPA;

Environment” means any or all of the following media (alone or in combination): air (including the air within buildings or other natural or man-made structures whether above or below ground); water (including water under or within land or in drains or sewers); and soil and land (including buildings) and any ecological systems and living organisms supported by these media (including, for the avoidance of doubt, man);

Environmental Authorisation” means any authorisation, approval, permit, licence, consent, registration or authority required by any Environmental Law;

 

 

10


Environmental Law” means a Law, regulating or otherwise relating to the Environment, including land use, planning, pollution of the atmosphere, water or land waste, the storage and handling of chemicals, protected flora and fauna, Hazardous Substances, or any other aspect of protection of the Environment or associated administration, notices, investigations or prosecutions;

Environmental Obligation” means an obligation of an Indemnified Party arising out of, relating to, associated with, or in respect of:

 

  (a)

the abandonment, reclamation, remediation, decommissioning, rehabilitation, restoration or contamination of or in relation to;

 

  (b)

clean-up, remediation, removal, response or other actions or damages, contribution, indemnification, cost recovery, compensation, or injunctive relief pursuant to any claim, demand, legal proceeding or cause of action based on Environmental Law in relation to; or

 

  (c)

any notice, order, direction or requirement given under an Environmental Law (including in relation to the provision of security, financial assurance or other financial support) in relation to,

in each case, the Mining Tenements or the Properties, which has arisen or accrued before or on Completion and remains unsatisfied as at Completion or arises or accrues after Completion;

Escalation Event” has the meaning given in Clause 12.4;

Estimated Cash” means the Seller’s good faith estimate of the Cash notified by the Seller to the Buyer pursuant to Clause 11.5(a);

Estimated Debt” means the Seller’s good faith estimate of the Debt notified by the Seller to the Buyer pursuant to Clause 11.5(b);

Estimated Inter-Group Funding Payables” means the Seller’s good faith estimate of the Inter-Group Funding Payables notified by the Seller to the Buyer pursuant to Clause 11.5(b);

Estimated Inter-Group Funding Receivables” means the Seller’s good faith estimate of the Inter-Group Funding Receivables notified by the Seller to the Buyer pursuant to Clause 11.5(a);

Estimated Working Capital” means the Seller’s good faith estimate of the Working Capital notified by the Seller to the Buyer pursuant to Clause 11.5(c);

Estimated Working Capital Adjustment” means the amount (which may be a positive or negative number) equal to the Estimated Working Capital minus the Working Capital Target;

Exchange Rate” means with respect to a particular currency for a particular day:

 

  (a)

to convert into US dollars, the mid-point spot rate of exchange for that currency into US dollars at the rate quoted by Bloomberg as at 4:00pm (London time) two Business Days before the relevant day;

 

  (b)

to convert into AU dollars, the mid-point spot rate of exchange for that currency into AU dollars at the rate quoted by Bloomberg as at 4:00pm (London time) two Business Days before the relevant day; or

 

11


  (c)

to convert into any currency other than AU dollars or US dollars, the mid-point spot rate of exchange for that currency into the relevant currency at the rate quoted by Bloomberg as at 4:00pm (London time) two Business Days before the relevant day;

Excluded Claim” means a Claim in respect of Clauses 17.4, 18.4, 19.3 or 26;

Exercise Notice” means:

 

  (a)

in respect of the Seller, a notice to exercise the Put Option (substantially in the form set out in Part 2 in Exhibit 1); or

 

  (b)

in respect of the Buyer, a notice to exercise the Call Option (substantially in the form set out in Part 1 in Exhibit 1);

Exempted Amount” means any sums transferred or distributed from the Seller to, or for the benefit of, the Seller Guarantor after the date of this Deed that is owing to the Seller Guarantor from the Seller or to which the Seller Guarantor is entitled by way of dividend declared by the Seller;

Existing Insurance Policies” has the meaning given in Clause 27.1;

Exxaro” means Exxaro Australia Pty Ltd, a company incorporated in Queensland, Australia with company number ACN 063 427 369 and having its registered office at ‘PricewaterhouseCoopers’ Level 15, 125 St Georges Terrace, Perth, Western Australia 6000;

FATA” means the Foreign Acquisitions and Takeovers Act 1975 (Cth);

Federal Treasurer” means the Treasurer of the Commonwealth of Australia;

Fee Letter” has the meaning given in Clause 23.1(g);

Financial Provisioning” means any security (including any bank guarantee), financial assurance, contribution and / or surety required by the State, the Scheme Manager and / or any other Authority in respect of either or both a Mining Tenement and / or an Environmental Authorisation (including in connection with the sale of the Shares to the Buyer under this Deed or a change in control in respect of the Mining Tenements as contemplated by this Deed) under the Environmental Protection Act 1994 (Qld) and the Resources Acts;

Financial Provisioning Act” means the Mineral and Energy Resources (Financial Provisioning) Act 2018 (Qld);

Financing” means the financing incurred or intended to be incurred pursuant to the Commitment Letter and the permanent financing described in the Commitment Letter;

Financing Conditions” means the conditions precedent to obtaining the Financing set forth in the Commitment Letter;

Financing Sources” means the entities that have committed to provide any portion of the Financing or have otherwise entered into any commitment letter, engagement letter, credit agreement, underwriting agreement, purchase agreement, indenture or other agreement in connection with the Financing (other than a Buyer Group member), including the agents, arrangers and lenders that are parties to the Commitment Letter (including the agents, arrangers and lenders party to any joinder agreements, or any similar agreement pursuant to which the Commitment Letter is modified, supplemented, extended or replaced to add agents, arrangers, lenders or similar entities as parties thereto who had not executed the Commitment Letter as the date of this Deed, entered into in connection therewith), together with their respective Representatives, trustees, shareholders, members and controlling persons and the respective successors and assigns of any of the foregoing;

 

 

12


First Deferred Payment” means $71,170,000;

First Longstop Date Extension Period” has the meaning given in Clause 9.8;

Fourth Deferred Payment” means $101,170,000;

FPS Environmental Authorities” means each Environmental Authorisation in respect of which Financial Provisioning has been provided under the Financial Provisioning Act;

Fundamental Warranties” means the Warranties in paragraphs 2, 3, 5 and 13.3 of Schedule 6;

Fundamental Warranty Claim” means a Claim by the Buyer in respect of a Fundamental Warranty;

Grosvenor Contingent Consideration” means the ‘Deferred Fixed Consideration’ and the ‘Grosvenor Contingent Consideration’ each as defined in the Moranbah North SAPA;

“[***]” has the meaning given in the Moranbah North SAPA:

Grosvenor Manager” means Anglo Coal (Grosvenor Management) Pty Ltd, a company incorporated in Queensland, Australia with company number ACN 153 794 122 and having its registered office at Level 11, 201 Charlotte Street, Brisbane, Queensland 4000;

Grosvenor Royalty” means the ‘Royalty’ as defined in the Moranbah North SAPA;

Group” means the Company and each Subsidiary, excluding the Moranbah North Entities and any Subsidiary transferred in accordance with the Carve-outs;

Group Assets” has the meaning given in the definition of Separation;

Group Company” means any Group member;

Group Information Schedule” means Schedule 1;

Group Liability” has the meaning given to that term in section 721-10 of the 1997 Tax Act, having regard to the table set out in subsection 721-10(2) of the 1997 Tax Act;

GST” has the meaning given in the GST Act or any other goods and services tax, value added tax or similar tax, whether chargeable in Australia or elsewhere;

GST Act” means the A New Tax System (Goods and Services Tax) Act 1999 (Cth);

GST Amount” has the meaning given in Clause 32.3(a);

GST exclusive consideration” has the meaning given in Clause 32.3(a);

GST Group” has the meaning given in the GST Act;

Guaranteed Obligations” means all the Buyer’s obligations under or in respect of this Deed;

Hazardous Substance” means any substance which is, or may be, hazardous, toxic, dangerous or polluting or which is regulated by any Law relating to the Environment;

 

13


Head Company” has the meaning given to that term in section 995-1 of the 1997 Tax Act by reference to section 719-75 of the 1997 Tax Act;

HTM” means Half-Tide Marine Pty Ltd, a company incorporated in Queensland, Australia with company number ACN 084 470 959 and having its registered office at DBCT M S F283, Martin Armstrong Drive, Hay Point, Queensland 4740;

Indemnified Party” means the Seller and all of its Affiliates and Representatives and each officer, employee and agent of such persons;

“[***]” has the meaning given in Clause 17.1;

“[***]” has the meaning given in Clause 17.2;

Initial Longstop Date” means 5.00 p.m. on the date which is nine months from the date of this Deed;

Inter-Group Funding Payables” means the amounts (expressed as a positive number), together with interest accrued on all such amounts, owing from a Group Company to the Seller or any Seller’s Affiliate, but excluding Inter-Group Trading Amounts and amounts in respect of the Terminating Contracts, as set out in the Completion Accounts prepared in accordance with Schedule 9;

Inter-Group Funding Receivables” means the amounts, together with interest accrued on all such amounts, owing from the Seller or any Seller’s Affiliate to a Group Company, but excluding Inter-Group Trading Amounts and amounts in respect of the Terminating Contracts, as set out in the Completion Accounts prepared in accordance with Schedule 9;

Inter-Group Trading Amounts” means any amount of an ordinary trading nature between a Group Company and the Seller or any Seller’s Affiliate;

Irrecoverable GST” means any amount in respect of GST a person has incurred which neither that person nor (where applicable) any other member of the same GST Group as such person is entitled to recover (by way of credit, repayment, refund or otherwise) from any relevant Tax Authority pursuant to and determined in accordance with any relevant law;

Jellinbah” means Jellinbah Group Pty Ltd, a company incorporated in Queensland, Australia with company number ACN 010 754 793 and having its registered office at Level 20, 66 Eagle Street, Brisbane, Queensland 4000;

Jellinbah Carve-out” means the transfer of the Jellinbah Seller from the Group to Anglo American Australia Holdings Pty Limited or any other member of the Seller Group and such transfer having been approved and recorded in the share register of the Jellinbah Seller;

Jellinbah Seller” means Anglo Coal (Jellinbah) Holdings Pty Ltd, a company incorporated in Queensland, Australia, with company number ACN 099 344 993 and having its registered office at Level 11, 201 Charlotte Street, Brisbane, Queensland 4000;

Jellinbah SPA” means [***];

Jena” means Jena Pty. Limited, a company incorporated in Australian Capital Territory, Australia with company number ACN 008 571 079 and having its registered office at Level 11, 201 Charlotte Street, Brisbane, Queensland 4000, as trustee for the Jena Unit Trust having Australian Business Number 50 008 791 131;

 

14


Joint Venture Agreements” means (as applicable) the:

 

  (a)

Capcoal JVA;

 

  (b)

Dawson JVA;

 

  (c)

Dawson South JVA;

 

  (d)

Dawson South Exploration JVA;

 

  (e)

Theodore South JVA;

 

  (f)

Moranbah South EJVA; and

 

  (g)

Roper Creek JVA;

Joint Venture Liabilities” means all of any Group Company’s Liabilities and obligations in relation to the Joint Ventures or the Joint Venture Agreements (whether arising before, on or after Completion), including any obligation to pay a cash call or other called sum (however described) pursuant to each Joint Venture Agreement;

Joint Venture Participants” means each party (other than a Group Company) to the Joint Venture Agreements;

Joint Ventures” means (as applicable) the Capcoal Joint Venture, Dawson Joint Venture, Dawson South Joint Venture, Dawson South Exploration Joint Venture, Theodore South Joint Venture, Moranbah South Joint Venture and the Roper Creek Joint Venture;

Laws” means all applicable legislation, statutes, directives, regulations, judgments, decisions, decrees, orders, instruments, by-laws, and other legislative measures or decisions having the force of law, treaties, conventions and other agreements between states, or between states and the European Union or other supranational bodies, rules of common law, customary law and equity and all civil or other codes and all other laws of, or having effect in, any jurisdiction from time to time;

Leads” has the meaning given in Clause 12.6;

Liabilities” includes all liabilities (whether actual, contingent or prospective), losses, damages, penalties, claims, demands, proceedings, costs and expenses of whatever description provided that, for the avoidance of doubt, the definition of ‘Liabilities’ will not apply to the definitions of ‘Cash’, ‘Debt’, ‘Working Capital’, ‘Inter-Group Funding Payables’, ‘Inter-Group Funding Receivables’, or ‘Inter-Group Trading Amounts’, any estimates of such defined terms or the accounting policies in Schedule 9;

Longstop Date” means the Initial Longstop Date, as extended in accordance with Clauses 9.8 to 9.10, or such other time and date as may be agreed in writing between the Seller and the Buyer;

MAC Cure Date” means the earlier of:

 

  (a)

90 days after the date of the notice from the Seller under Clause 13.2; and

 

  (b)

10 Business Days before the Scheduled Completion Date;

Management Accounts” means the unaudited management accounts for:

 

15


  (a)

the ‘Steelmaking Coal’ operating segment (as referred to in the Anglo American plc annual report), consisting of the balance sheet as at 27 October 2024 and the profit and loss for the period from the Accounts Date to 27 October 2024; and

 

  (b)

‘Corporate Australia’ (comprising the Company, Anglo American Australia Holdings Pty Limited, Anglo American Exploration (Australia) Pty Limited and Anglo American Australia Finance Limited), consisting of the balance sheet as at 31 October 2024 and the profit and loss for the period from the Accounts Date to 31 October 2024,

as contained in documents 02.02.11.01 and 02.02.11.02 of the Data Room;

Marketing Period” means, prior to the date which is five Business Days prior to the date which is the Anglo Month End Date prior to the Anglo Month End Date immediately prior to the earliest Pre-emption Expiry (it being agreed, by way of example, that if the Pre-emption Expiry is September 2, 2025, then the Marketing Period shall not apply after July 28, 2025), the first period of twenty-five (25) consecutive Business Days beginning after the Buyer receives the Carve-out Required Information, provided that:

 

  (a)

if the annual or quarterly financial statements constituting Carve-out Required Information would be required to be updated pursuant to such definition during such twenty-five (25) consecutive Business Day period (and have not been updated prior to such period), then the Marketing Period will not be deemed to commence until (and will not be deemed to restart any earlier than) the earliest date on which the Seller furnishes the Buyer with the applicable updated financial statements (giving effect to the notwithstanding paragraph below);

 

  (b)

if any of the financial statements included in the Carve-out Required Information are restated, the Seller announces an intent to restate any such financial statements or that any such restatement is under consideration or may be a possibility, or the board of directors of Seller determines that a restatement of any such financial statements is required, then the Marketing Period will be deemed not to resume unless and until (and will not be deemed to restart any earlier than) such restatement has been completed or the Seller has determined that no restatement is required in accordance with IFRS consistently applied (giving effect to the notwithstanding paragraph below);

 

  (c)

if the Carve-out Required Information contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained in such Carve-out Required Information, in the light of the circumstances under which they were made, not misleading, then the Marketing Period will not be deemed to resume unless and until such Carve-out Required Information has been updated or amended so that there is no longer any such untrue statement or omission (giving effect to the notwithstanding paragraph below);

 

  (d)

if the financial statements included in the Carve-out Required Information are not sufficient at any time during such twenty-five (25) consecutive Business Day period (giving effect to the notwithstanding paragraph below) to permit the Seller’s independent auditor to issue a customary “comfort” letter to the relevant Financing Sources, including as to customary “negative assurance” and change period comfort, in order to consummate the Financing, then the Marketing Period will not be deemed to resume unless and until such financial statements are sufficient to permit the Seller’s independent auditor to issue such customary comfort letter in order to consummate the Financing; and

 

16


  (e)

(x) if such twenty-five (25) consecutive Business Day period has not ended on or prior to (i) December 20, 2024, then such period will commence no earlier than January 2, 2025, (ii) August 15, 2025, then such period will not commence until September 2, 2025, and (iii) December 19, 2025, then such period will not commence until January 5, 2026, and (y) November 27, 2024 through November 29, 2024, January 20, 2025, February 17, 2025, May 26, 2025, June 19, 2025, July 4, 2025, November 26, 2025 through November 28, 2025 will not be Business Days for purposes of calculating the twenty-five (25) consecutive Business Day period and such twenty-five (25) consecutive Business Day period will toll during such times (but will not be required to re-start following such tolling).

Notwithstanding anything included herein to the contrary (other than with respect to paragraph (e) above), the Seller may provide updates to the Carve-out Required Information during such Marketing Period with more recent information regarding the Carve-out Assets, including financial statements, related financial data and information related to the financial position, results of operations, cash flows and prospects in respect of the Carve-out Assets, and in such event the twenty-five (25) consecutive Business Day period will not be deemed to have been tolled or recommenced. If at any time the Seller will reasonably and in good faith believe that it has provided the Carve-out Required Information, it may deliver to Buyer a written notice to that effect (stating when it believes it completed such delivery), in which case, the requirement to deliver the Carve-out Required Information will be deemed to have been satisfied as of the date of such notice, unless the Buyer in good faith reasonably believes the Seller has not completed the delivery of the Carve-out Required Information on such date and, within two (2) Business Days after the date of delivery of such notice, delivers a written notice to the Seller to that effect (stating with specificity which Carve-out Required Information the Seller has not delivered) and, following delivery of such Carve-out Required Information specified in such notice, the Marketing Period will commence; provided, that such written notice from the Buyer to the Seller will not prejudice the Seller’s right to assert that the Carve-out Required Information was, in fact, delivered. Notwithstanding anything in this definition to the contrary, the Marketing Period will be deemed to have been completed on any date on which the Financing has been consummated, including if the proceeds of the Financing are placed into escrow upon consummation.

Material Adverse Change” means any change, matter, event or circumstance which happens or is announced (or otherwise becomes known to the Buyer or the Seller) after the date of this Deed and before Completion which (individually or when aggregated with all such changes, matters, events or circumstances of a like kind) has had, or is reasonably likely to have, a long-term material adverse effect on the business, assets, operations or financial condition of the Moranbah North Entities, Group Companies, and the Moranbah North Assets taken as a whole, but does not include any change, matter, event, circumstance, or adverse effect (whether alone or in combination):

 

  (a)

that has been Disclosed in the Disclosure Material, this Deed, any other Transaction Document or the Moranbah North SAPA (which the parties agree does not include disclosure of the risk of the mere fact that a change, matter, event or circumstance may occur);

 

  (b)

in relation to compliance with the terms of this Deed, the Moranbah North SAPA and / or any other Transaction Document;

 

  (c)

in relation to the announcement or execution of the transactions contemplated by this Deed, the Moranbah North SAPA and / or any other Transaction Document (including any adverse effect that may arise from threatened or actual loss of, or disruption in, any customer, supplier, vendor, lender, contractor, employee, landlord, lessee, community or government relationships, or by reason of the identity of the Buyer or any communication by the Buyer regarding its plans or intentions with respect to the Group Companies);

 

 

17


  (d)

in relation to the satisfaction or waiver of a Condition;

 

  (e)

in relation to the exercise of any Pre-emption Rights;

 

  (f)

agreed to, requested by, or consented to, in writing by the Buyer or the Buyer Guarantor or otherwise arises as a result of any action of the Buyer or its Affiliates;

 

  (g)

of which the Buyer is actually aware as at the date of this Deed (which the parties agree does not include awareness of the risk of the mere fact that a change, matter, event or circumstance may occur);

 

  (h)

in relation to changes in commodity prices (including in connection with coal prices and / or demand for coal), exchange rates or interest rates;

 

  (i)

in relation to general economic, political, business, market, regulatory or financial conditions, or changes in such conditions, applying in the coal mining industry;

 

  (j)

in relation to changes or major disruptions to, or fluctuations in, currency exchange rates, financial, securities or other market conditions in the local, domestic or international financial markets (including prevailing interest rates) generally;

 

  (k)

in relation to activism, acts of terrorism, riot, war (whether or not declared), civil war, armed hostilities, sabotage (including cyberattack), international or national emergency or similar, or the continuation, escalation or worsening thereof, including those that affect the Group Companies and their competitors in any market for the production and supply of coal in a similar manner;

 

  (l)

in relation to any natural disaster, including the worsening of such event;

 

  (m)

in relation to any epidemic, pandemic, disease, outbreak of illness (including COVID-19), including the worsening of such event, other health crisis or public health event;

 

  (n)

in relation to any industrial action, strike, lockout or other labour difficulty (in each case, which has an industry wide impact);

 

  (o)

in relation to any change in any Law (including Tax Laws and Tax rates, state royalties or state royalty rates) (whether such change has taken effect) or the judicial or administrative interpretation of any Law, including its application or non-application, in each case excluding any Law that solely relates to the Group Companies or the assets of the Group Companies;

 

  (p)

in relation to any change in financial reporting standards, accounting policies, accounting standards or generally accepted accounting principles, including their application or non-application; or

 

  (q)

in relation to the non-cash depreciation or amortisation of assets of the Group in the ordinary course.

A failure (or projected failure) by the Group Companies or the Joint Ventures to meet internal projections, budgets, estimates, forecasts or revenue or earning predictions for any period will not, on its own, constitute a Material Adverse Change;

 

 

18


Material Contract” means:

 

  (a)

the Specific Contracts; and

 

  (b)

any current contract to which a Group Company is a party which had an annual revenue or annual expenditure of AUD 50,000,000 or more in the financial year immediately preceding the date of this Deed;

Mining Tenements” means the mining tenements as described in Schedule 12;

Mitsui” means Mitsui Moura Investment Pty Ltd, a company incorporated in Queensland, Australia with company number ACN 088 091 356 and having its registered office at Level 24, 480 Queen Street, Brisbane, Queensland 4000;

[***]” means [***];

Moranbah Carve-out” means the transfer of Moranbah North Coal Seller and Moranbah North Coal (No2) Pty Ltd ACN 009 871 425 from the Group to Anglo American Australia Holdings Pty Limited or any other member of the Seller Group and such transfers having been approved and recorded in the share registers of Moranbah North Coal Seller and Moranbah North Coal (No2) Pty Ltd ACN 009 871 425 (as applicable), in each case after completion of the Moranbah North SAPA;

Moranbah Claim Payment” has the meaning given in Clause 19.3;

Moranbah Manager” means Anglo Coal (Moranbah North Management) Pty Limited, a company incorporated in Victoria, Australia, with company number ACN 069 603 587 and having its registered office at Level 11, 201 Charlotte Street, Brisbane, Queensland 4000;

Moranbah North Assets” means MNC Assets as that term is defined in the Moranbah North SAPA;

Moranbah North Buyer” means Peabody MNG Pty Ltd, a company incorporated in Queensland, Australia with company number ACN 682 278 904 and having its registered office at Level 14, 31 Duncan Street, Fortitude Valley QLD 4006;

Moranbah North Claim” means any claim by the Moranbah North Buyer against the Moranbah North Sellers (other than, for the avoidance of doubt, the Moranbah North Coal Seller) pursuant to the Moranbah North SAPA, whether in contract, tort or otherwise, including any ‘Tax Covenant Claim’ (as defined in the Moranbah North SAPA) (but excluding any claim in relation to an amount which would constitute a Buyer Refund Amount or Seller Refund Amount);

Moranbah North Coal Seller” means Moranbah North Coal Pty Ltd, a company incorporated in Victoria, Australia with company number ACN 007 083 249 and having its registered office at Level 11, 201 Charlotte Street, Brisbane, Queensland 4000;

Moranbah North Entities” means the Moranbah Manager, the Grosvenor Manager and Moranbah Sales;

Moranbah North Interest” means the MNC Interest as that term is defined in the Moranbah North SAPA;

Moranbah North JVA” means [***];

Moranbah North Pre-emption Acceptance Notice” means a notice from one or more of the Japanese Parties under clause 9.4(b) or 9.4(e) of the Moranbah North JVA requiring that the Moranbah North Interest be assigned to one or more of the Japanese Parties;

 

19


Moranbah North SAPA” means the share and asset sale and purchase agreement in respect of the Moranbah North Entities and the Moranbah North Assets, between (1) the Seller; (2) the Seller Guarantor; (3) the Moranbah North Sellers; (4) the Moranbah North Buyer; and (5) the Buyer Guarantor, dated on or around the date of this Deed;

Moranbah North Sellers” means the Moranbah North Coal Seller, Anglo Eastern Australia and AASCH;

Moranbah Sales” means Moranbah North Coal (Sales) Pty Ltd, a company incorporated in Victoria, Australia, with company number ACN 069 603 649 and having its registered office at Level 11, 201 Charlotte Street, Brisbane, Queensland 4000, further details of which are set out in Schedule 1;

Moranbah South EJVA” means [***];

Moranbah South Joint Venture” means the joint venture constituted by the Moranbah South EJVA;

Moranbah South Participating Interest” means the 50% undivided legal and beneficial right, title, and interest held by Anglo Grosvenor in the Moranbah South Joint Venture;

Notice of Decision” means, in respect of each FPS Environmental Authority, a notice given by the Scheme Manager under section 36 of the Financial Provisioning Act in respect of the Changed Holder Review Decision in respect of the FPS Environmental Authority;

Objection Notice” has the meaning given in paragraph 1.3 of Schedule 9;

Offering Documents” means offering documents, private placement memoranda, prospectuses, prospectus supplements, registration statements, syndication documents and materials (including information memoranda, lender and investor presentations and other marketing documents) to the extent the same are customary and required in connection with the Financing;

Participating Interest” means (as applicable) each of the:

 

  (a)

Capcoal Participating Interest;

 

  (b)

Dawson Participating Interest;

 

  (c)

Dawson South Participating Interest;

 

  (d)

Dawson South Exploration Participating Interest;

 

  (e)

Theodore South Participating Interest;

 

  (f)

Moranbah South Participating Interest; and

 

  (g)

Roper Creek Participating Interest,

excluding, from the date of completion of any transaction pursuant to a Pre-emption Acceptance Notice, such Participating Interest which is the subject of a Pre-emption Acceptance Notice;

 

 

20


Permitted Encumbrance” means any of the following:

 

  (a)

a PPS Register security interest registered in the ordinary course of business in connection with an equipment financing, hire purchase, retention of title or similar arrangement;

 

  (b)

any Encumbrance arising under or in connection with a Joint Venture Agreement;

 

  (c)

any mortgage or registration against the Mining Tenements or the Properties that is Disclosed or would have shown on a public enquiry report two Business Days before the date of this Deed;

 

  (d)

any Encumbrance that is Disclosed;

 

  (e)

in respect of the Mining Tenements and the Properties, any reservation or covenant arising under law or arising in respect of the grant of the Mining Tenement;

 

  (f)

a retention of title arrangement under which title is retained by a supplier over goods supplied to any Group Company until payment for such goods is made if such arrangement has been entered into in the ordinary course of business;

 

  (g)

a security interest contemplated by section 12(3)(b) of the PPSA if such commercial consignment has been entered into in the ordinary course of business; and

 

  (h)

a security interest contemplated by section 12(3)(c) of the PPSA if such PPS lease has been entered into in the ordinary course of business and is not a security interest within the meaning of section 12(1) of the PPSA;

PNC” has the meaning given in Clause 24.4(f);

PPS Register” means the personal properties securities register established under the PPSA;

PPSA” means the Personal Property Securities Act 2009 (Cth);

Pre-emption Acceptance Notice” means:

 

  (a)

in respect of the Capcoal Joint Venture, a notice from Mitsui under clause 7.3(a) of the Capcoal JVA requiring that the relevant Capcoal Participating Interest (being the interest held by one or both of Jena and Anglo German Creek) be transferred to Mitsui;

 

  (b)

in respect of the Dawson South Joint Venture, a notice from Mitsui under clause 7.3 of the Dawson South JVA requiring that the Dawson South Participating Interest be transferred to Mitsui;

 

  (c)

in respect of the Dawson South Exploration Joint Venture, a notice from Mitsui under clause 20.3(a) of the Dawson South Exploration JVA requiring that the Dawson South Exploration Participating Interest be transferred to Mitsui;

 

  (d)

in respect of the Theodore South Joint Venture, a notice from Mitsui under clause 20.3(a) of the Theodore South JVA requiring that the Theodore South Participating Interest be transferred to Mitsui; and

 

  (e)

in respect of the Moranbah South Joint Venture, a notice from Exxaro under clause 18.3 of the Moranbah South EJVA requiring that the Moranbah South Participating Interest be transferred to Exxaro;

 

21


Pre-emption Carve-out” has the meaning given in Clause 10.5;

Pre-Completion Date Claim” has the meaning given in Clause 27.5(a);

Pre-emption Exercise Period” means the prescribed period under each Pre-emption Joint Venture Agreement in which the Joint Venture Participant has to give a Pre-emption Acceptance Notice;

Pre-emption Expiry” has the meaning given in Clause 14.9;

Pre-emption Joint Venture” means (as applicable) each of the:

 

  (a)

Capcoal Joint Venture;

 

  (b)

Dawson South Joint Venture;

 

  (c)

Dawson South Exploration Joint Venture;

 

  (d)

Theodore South Joint Venture; and

 

  (e)

Moranbah South Joint Venture;

Pre-emption Joint Venture Agreements” means the:

 

  (a)

Capcoal JVA;

 

  (b)

Dawson South JVA;

 

  (c)

Dawson South Exploration JVA;

 

  (d)

Theodore South JVA; and

 

  (e)

Moranbah South EJVA;

Pre-emption Offer Notice” means:

 

  (a)

in respect of the Capcoal Joint Venture, a notice from each of Anglo German Creek and Jena under clause 8.3 of the Capcoal JVA in respect of the change of control that would result from completion of this Deed;

 

  (b)

in respect of the Dawson South Joint Venture, a notice from Anglo Dawson South under clause 8.3 of the Dawson South JVA in respect of the change of control that would result from completion of this Deed;

 

  (c)

in respect of the Dawson South Exploration Joint Venture, a notice from Anglo Dawson South under clause 21.3 of the Dawson South Exploration JVA in respect of the change of control that would result from completion of this Deed;

 

  (d)

in respect of the Theodore South Joint Venture, a notice from Anglo Theodore South under clause 21.3 of the Theodore South JVA in respect of the change of control that would result from completion of this Deed; and

 

  (e)

in respect of the Moranbah South Joint Venture, a notice from Anglo Grosvenor under clause 19.3 of the Moranbah South EJVA in respect of the change of control that would result from completion of this Deed;

Pre-emption Rights” means the preferential rights held by the relevant Joint Venture Participant in and under each Pre-emption Joint Venture Agreement;

 

22


Pre-emption SPA” means:

 

  (a)

in respect of the Capcoal Joint Venture, any agreement to sell the Capcoal Participating Interest held by one or both of Jena and Anglo German Creek to Mitsui in accordance with a Pre-emption Acceptance Notice;

 

  (b)

in respect of the Dawson South Joint Venture, any agreement to sell the Dawson South Participating Interest to Mitsui in accordance with a Pre-emption Acceptance Notice;

 

  (c)

in respect of the Dawson South Exploration Joint Venture, any agreement to sell the Dawson South Exploration Participating Interest to Mitsui in accordance with a Pre-emption Acceptance Notice;

 

  (d)

in respect of the Theodore South Joint Venture, any agreement to sell the Theodore South Exploration Participating Interest to Mitsui in accordance with a Pre-emption Acceptance Notice; and

 

  (e)

in respect of the Moranbah South Joint Venture, any agreement to sell the Moranbah South Participating Interest to Exxaro in accordance with a Pre-emption Acceptance Notice;

Premium Refund” has the meaning given in Clause 27.3(c);

Pro forma Financial Information” means, with respect to each Pro forma Financial Information Period, the pro forma profit and loss account and pro forma balance sheet as set out in document 02.02.05.43 in the Data Room;

Pro forma Financial Information Period” means the year ended on the Accounts Date or the six months ended 30 June 2024, as the context permits;

Properties” means the real property (whether leasehold or freehold) listed in Schedule 13;

Purchaser Payment Notification Form” has the meaning given in Clause 8.6;

Put Option” has the meaning given in Clause 2.1;

Put Option Exercise Period” means the period commencing on the Put Option Exercise Period Commencement Date and ending on the date that is 15 Business Days after the Put Option Exercise Period Commencement Date;

Put Option Exercise Period Commencement Date” means the date as determined pursuant to Clause 9.1;

Recipient” has the meaning given in Clause 32.3(a);

Refunded Financial Provisioning” means, to the extent the Seller Financial Provisioning is in the form of a cash contribution to the Scheme Manager (or other Authority) in respect of an FPS Environmental Authority and is paid by or on behalf of a Group Company, an amount calculated as follows:

 

LOGO

where:

 

23


Cash Contribution” means the amount of the relevant cash contribution paid by or on behalf of the Group Company to the Scheme Manager (or other Authority) in respect of the FPS Environmental Authority; and

Remaining Period” means the number of days between Completion and the end of the 12-month period in respect of which the Cash Contribution was paid for the FPS Environmental Authority;

Regulatory Conditions” has the meaning given in Clause 9.2(a)(i);

Related Transaction Agreements” has the meaning given in Clause 46.4;

Relief” means:

 

  (a)

any loss, relief, allowance or credit, in respect of any Tax and any deduction in computing income, profits or gains for the purposes of any Tax; or

 

  (b)

any right to a refund or repayment of Tax,

and any reference to the use or set-off of a Relief will be construed accordingly;

Replacement Bank Guarantee” means in respect of a Bank Guarantee, one or more bank guarantees or other security in favour of the relevant Bank Guarantee Beneficiary, in a form, and on terms, and for an amount, and if applicable, from such institution, as the relevant Bank Guarantee Beneficiary may require, (as notified by the Seller or the Bank Guarantee Beneficiary to the Buyer) as replacement security for the Bank Guarantee;

Replacement Financial Provisioning” means in respect of any Seller Financial Provisioning, Financial Provisioning in favour of the State (including Financial Provisioning to be paid into the scheme fund in accordance with the Financial Provisioning Act) in a form, and on terms, and for an amount, and, if applicable, from such institution, as the State or Scheme Manager may require (as notified by the Seller, the State or the Scheme Manager to the Buyer) as replacement Financial Provisioning for the Seller Financial Provisioning (including, for the avoidance of doubt, any Financial Provisioning in excess of the Seller Financial Provisioning for any FPS Environmental Authority as at the date of this Deed);

Reporting Accountants” has the meaning given in paragraph 2.1 of Schedule 9;

Representatives” means:

 

  (a)

in relation to the Buyer, any Buyer Group member and their respective directors, officers, employees, agents, consultants, advisers, auditors, accountants and Financing Sources; and

 

  (b)

in relation to any other person, its Affiliates and its and their respective directors, officers, employees, agents, consultants, advisers, auditors and accountants;

Resources Acts” means the Mineral Resources Act 1989 (Qld), the Mineral and Energy Resources (Common Provisions) Act 2014 (Qld), the Financial Provisioning Act and the Petroleum and Gas (Production and Safety) Act 2004 (Qld) (as applicable);

Roper Creek Joint Venture” means the joint venture constituted by the Roper Creek JVA;

Roper Creek JVA” means [***];

 

24


Roper Creek Participating Interest” means the 86.36% undivided legal and beneficial right, title, and interest held by Anglo German Creek and Anglo Roper Creek in the Roper Creek Joint Venture;

Royalty” has the meaning given in paragraph 2.3 of Schedule 11;

Royalty Amount has the meaning given in paragraph 2.3 of Schedule 11;

Royalty Amount Dispute” has the meaning given in Schedule 11;

Rules” has the meaning given in Clause 46.2;

Sanctioned Person” means a person or entity:

 

  (a)

designated on the lists of Specially Designated Nationals and Blocked Persons or “Foreign Sanctions Evaders” maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of Commerce, the U.S. Department of State and any other agency of the U.S. government;

 

  (b)

designated on the Consolidated List of Persons, Groups and Entities Subject to EU Financial Sanctions maintained by the European Commission, the Consolidated List maintained by the Department of Foreign Affairs and Trade maintained by the Australian Government; the Consolidated List of Financial Sanctions Targets maintained by the Office of Financial Sanctions Implementation within the UK’s HM Treasury, or any equivalent list maintained by the competent sanctions authority of any member state of the EU;

 

  (c)

that is, or is part of, a government of a Sanctioned Territory;

 

  (d)

that is located, organised or residing in any Sanctioned Territory; or

 

  (e)

50% or more directly or indirectly owned or controlled by any of the foregoing;

Sanctioned Territory” means any country or other territory subject to a comprehensive export, import, financial or investment embargo under any Sanctions Laws, which currently comprise Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, the so-called Donetsk People’s Republic, and the so-called Luhansk People’s Republic;

Sanctions Laws” means any applicable export control and economic sanctions Laws and regulations of the Commonwealth of Australia, the U.S., the United Nations Security Council, the EU, any member state of the EU and the UK;

Separation Committee” has the meaning given in Clause 12.5;

Scheduled Completion Date” means:

 

  (a)

if the Seller has given a notice under clause 15.2 of the Moranbah North SAPA, except where Clause 14.8 applies, subject to paragraph (c), the End of Month Date following the last of the Conditions being satisfied or waived and an Exercise Notice being given;

 

  (b)

if the Seller has not given a notice under clause 15.2 of the Moranbah North SAPA, except where Clause 14.8 applies, subject to paragraph (c), the End of Month Date following the last of the Conditions being satisfied or waived and an Exercise Notice being given (but if the satisfaction or waiver of the last Condition (aside from the conditions in Clauses 9.1(b) and 9.1(c)) is less than five Business Days before that End of Month Date, the following End of Month Date);

 

25


  (c)

if:

 

  (i)

the Marketing Period has not yet been completed as of the close of business on the day which is at least three Business Days prior to the date determined under paragraph (a) or (b);

 

  (ii)

Pre-emption Expiry would not occur on or prior to the date determined under paragraph (a) or (b); and

 

  (iii)

Pre-emption Expiry would not occur on or prior to a revised Scheduled Completion Date that would apply following a Scheduled Completion Date determined under paragraph (a) or (b) in circumstances where the Buyer does not comply with its obligations under Clause 14.2 on the Scheduled Completion Date and the Seller could give a notice under Clause 14.8 to defer Completion to the next End of Month Date,

then the next End of Month Date determined under paragraph (a) or (b) after the Marketing Period has completed;

 

  (d)

where Clause 14.8 applies, the date determined in accordance with Clause 14.8; or

 

  (e)

any other date agreed in writing by the Seller and the Buyer;

Scheme Manager” has the meaning given to that term in the Financial Provisioning Act;

Second Deferred Payment” means $144,830,000;

Second Longstop Date Extension Period” has the meaning given in Clause 9.10;

Seller Consolidated Group” means the Consolidated Group of which the Consolidated Subsidiaries (and the Company, as applicable) are each a member from time to time before Completion;

Seller Financial Provisioning” means all (including any replacement or new) Financial Provisioning given by the Seller or on its behalf or given by a financial institution on behalf of any Group Company in relation to the Mining Tenements or Environmental Authorisations (which as at the date of this Deed are specified in the table in Part 2 of Schedule 15);

Seller Group” means:

 

  (a)

the Seller and each of its Affiliates, in each case from time to time;

 

  (b)

before Completion, the Group Companies; and

 

  (c)

the Moranbah North Entities before completion of the transactions contemplated by the Moranbah North SAPA;

Seller GST Group” means the GST Group of which AASC is the representative member and one or more Group Companies is a member;

Seller Guaranteed Obligations” means all the obligations of the Seller under or in respect of this Deed;

 

 

26


Seller Guarantees” means:

 

  (a)

except to the extent the Seller Financial Provisioning is in the form of a cash contribution to the Scheme Manager (or other Authority) in respect of the FPS Environmental Authorities, the Seller Financial Provisioning; and

 

  (b)

the Bank Guarantees;

Seller Head Company” means the Head Company of the Seller Consolidated Group;

Seller Refund Amount” has the meaning given in Clause 20.2;

Seller Tax Sharing Agreement” means the Tax Sharing Agreement in respect of the Seller Consolidated Group;

Sellers Bank Account” means:

 

  (a)

Bank: [***];

 

  (b)

Bank Address: [***];

 

  (c)

Account Name: [***];

 

  (d)

Account Number: [***];

 

  (e)

IBAN: [***];

 

  (f)

Swift Code: [***];

Sellers Solicitors” means Latham & Watkins (London) LLP of 99 Bishopsgate, London, United Kingdom EC2M 3XF;

Senior Executives” has the meaning given in Clause 12.4;

Separation Plan” means a written plan agreed between the Seller and the Buyer in accordance with Clause 12.1 (or as otherwise agreed between the parties) addressing migration of the Buyer off the Services (including timeframes for that migration) and other issues relating to separation of certain people, processes, contracts, marketing services, technology and data, assets, intellectual property and ongoing projects, including the creation of a separate, standalone SAP instance for the Group (together with the Services, the “Group Assets”) in the period through to the end of the term of the TSA;

Separation Principles” means the principles set out in Schedule 18;

Services” has the meaning given in the TSA;

Shares” means the entire issued share capital of the Company, comprising, as at the date of this Deed, 24,301,707,175 fully paid ordinary shares in the Company;

SOFR” means the ‘Secured Overnight Financing Rate’ (SOFR) administered by the Federal Reserve Bank of New York (or any other person which takes over the administration of that rate) published by the Federal Reserve Bank of New York (or any other person which takes over the publication of that rate);

Specific Contracts” means those contracts listed in Schedule 16;

State” means the state of Queensland, Australia;

 

27


Stock Exchange” means the London Stock Exchange and the Johannesburg Stock Exchange;

Subsidiary” means the companies whose details are set out in the section of the Group Information Schedule entitled “Subsidiaries” and any other subsidiary undertaking of the Company from time to time but, from the date of completion of a transaction pursuant to a Pre-emption Acceptance Notice, such subsidiary undertaking which is the subject of such Pre-emption Acceptance Notice and, in relation to which any Group Company ceases to hold shares, will cease to be a “Subsidiary” and will be deemed deleted from the Group Information Schedule;

Supplier” has the meaning given in Clause 32.3;

Surviving Provisions” means Clauses 1, 24.10, 30, 31.2, 32, 34 and 37 to 46.1;

TAA” means the Taxation Administration Act 1953 (Cth);

Tax” means all forms of taxes, Duty, imposts, charges, withholdings, rates, levies, royalties or other governmental impositions of whatever nature and by whatever authority imposed, assessed or charged together with all costs, charges, interest, penalties, fines, expenses and other additional statutory charges, incidental or related to the imposition and all forms of claims, obligations, offsets, payments or liabilities under a tax sharing agreement or tax funding agreement (and “Taxes” and “Taxation” will be construed accordingly);

Tax Authority” means a taxing or other governmental (local or central), state or municipal authority (whether within or outside Australia) competent to impose a liability for or to collect Tax or make any decision or ruling on any matter relating to Tax;

Tax Claim” means a Tax Warranty Claim or a Tax Covenant Claim;

Tax Covenant” means the covenant relating to Taxation set out at paragraph 2 of Schedule 8;

Tax Covenant Claim” means a Claim in respect of the Tax Covenant;

Tax Funding Agreement” means any agreement where a member of a Consolidated Group may be required to pay an amount or be entitled to receive an amount calculated by reference to a Group Liability, but excluding a Tax Sharing Agreement;

Tax Law” means any law relating to Tax, including the 1997 Tax Act, the 1936 Tax Act, the TAA and the GST Act;

Tax Return” means any return, declaration, report, notice, claim for refund, information or statement relating to Tax, including any applicable schedule, supplement, attachment and amendment;

Tax Sharing Agreement” means an agreement that is a valid tax sharing agreement under section 721-25 of the 1997 Tax Act;

Tax Warranties” means the Warranties in paragraph 21 of Schedule 6;

Tax Warranty Claim” means a Claim in respect of a Tax Warranty;

Terminating Contracts” means the contracts listed in Schedule 17;

Theodore South Joint Venture” means the joint venture constituted by the Theodore South JVA;

 

28


Theodore South JVA” means [***];

Theodore South Participating Interest” means the 51% undivided legal and beneficial right, title, and interest held by Anglo Theodore South in the Theodore South Joint Venture;

Third Deferred Payment” means $144,830,000;

Third-Party Claim” has the meaning given in paragraph 14 of Schedule 7;

Third-Party Consent” has the meaning given in Clause 12.10;

Third-Party Guarantees” means any guarantees, bonds, credit support arrangements, indemnities and letters of comfort of any nature given:

 

  (a)

to a third party by any Group Company in respect of the Seller’s or Seller’s Affiliate’s obligation (excluding any guarantees, bonds, credit support arrangements, indemnities and letters of comfort given in respect of the assets and liabilities that are the subject of the transactions contemplated by the Moranbah North SAPA); or

 

  (b)

to a third party by the Seller or a Seller’s Affiliate in respect of any obligation of any Group Company;

Trade Marks and Get-up” means trade marks, service marks, logos, get-up, trade names, designs, or any similar rights, in all cases whether registered or unregistered, that bear the words “Anglo” or “Anglo American”;

Transaction” means the transactions contemplated by this Deed and / or the other Transaction Documents or any part of this Deed and / or the other Transaction Documents;

Transaction Bonuses” means the amount of any bonuses to be paid to any director, officer or Employee solely as a result of the Transaction, together with the superannuation contributions related to such bonuses, but in each case only to the extent such amounts are payable by a Group Company after the Effective Time;

Transaction Communications” has the meaning given in Clause 41;

Transaction Documents” means this Deed and any other documents in Agreed Form or required to be entered into pursuant to this Deed, including the Disclosure Letter, the TSA, the Moranbah North SAPA and the ‘Disclosure Letter’ as defined in the Moranbah North SAPA;

TSA” means the transitional services agreement between the Seller Guarantor and AASC to be entered into on Completion in the form set out in Exhibit 3 and as amended in accordance with its terms;

Up-front Consideration” means $652,000,000;

US Securities Act” means the United States Securities Act of 1933 and the rules and regulations promulgated thereunder, or any successor statute, rules or regulations thereto;

Vendor Reports” means the [***];

Warranties” means the warranties set out in Clause 21 and Schedule 6;

 

 

29


Working Capital” means, in respect of the Group Companies, the aggregate of trade and other receivables (including GST but excluding long service leave assets), inventory (including raw materials, work in progress, finished goods, stocks, spares and rotables), prepayments (excluding in respect of the Refunded Financial Provisioning) and accrued income, less the aggregate of creditors and accruals for GST (and other non-corporation/non-profit based taxes) and for goods and services received but not paid for, other current payables, employee liabilities/ employee provisions (excluding long service leave liabilities) and deferred income; in each case as at the Effective Time, together with any item required to be included in Working Capital in accordance with paragraphs 5 and 6 of Schedule 9, and as set out in the Completion Accounts prepared in accordance with Schedule 9, and provided that Working Capital will exclude any amount or item taken account of in Cash or Debt;

Working Capital Adjustment” means the amount (which may be a positive or negative number) equal to the Working Capital minus the Working Capital Target;

Working Capital Target” means AUD 48,568,738 translated into US dollars at the Exchange Rate applicable on the Completion Date as adjusted by Clause 6.3 (if applicable);

Working Hours” means 9:30 am to 5:30 pm (based on the time at the location of the address of the recipient of the relevant notice) on a Business Day; and

“[***]” means [***].

 

1.2

In this Deed, unless the context otherwise requires:

 

  (a)

“undertaking” and “group undertaking” will be construed in accordance with section 1161 of the Companies Act 2006, “subsidiary” and “holding company” will be construed in accordance with section 1159 of the Companies Act 2006 and “subsidiary undertaking” and “parent undertaking” will be construed in accordance with section 1162 of the Companies Act 2006;

 

  (b)

every reference to a particular Law will be construed also as a reference to all other Laws made under the Law referred to and to all such Laws as amended, re-enacted, consolidated or replaced or as their application or interpretation is affected by other Laws from time to time and whether before or after Completion but, as between the parties, no such amendment after the date of this Deed will apply for the purposes of this Deed to the extent that it would impose any new or extended obligation, liability or restriction on, or otherwise adversely affect the rights of, any party;

 

  (c)

references to Clauses and Schedules are references to clauses of and schedules to this Deed; references to paragraphs and sub-paragraphs are references to paragraphs and sub-paragraphs of the Schedule in which the reference appears, and references to this Deed includes the Schedules;

 

  (d)

the singular includes the plural and vice versa, and a gender includes any other gender;

 

  (e)

references to a “party” means a party to this Deed and includes its successors in title, personal representatives and permitted assigns;

 

  (f)

references to a “person” includes any individual, partnership, body corporate, corporation sole or aggregate, state or agency of a state, and any unincorporated association or organisation, in each case whether or not having separate legal personality;

 

  (g)

references to a “company” includes any company, corporation or other body corporate wherever and however incorporated or established;

 

30


  (h)

references to the phrase “to the extent that” are a matter of degree and are not synonymous with “if”;

 

  (i)

references to “AU dollars” or “AUD” are references to the lawful currency from time to time of Australia;

 

  (j)

references to “US dollars”, “dollars”, “USD” or “$” are references to the lawful currency from time to time of the United States of America;

 

  (k)

for the purposes of applying a reference to a monetary sum expressed in AU dollars or US dollars, an amount in a different currency must be deemed to be an amount in AU dollars or US dollars, as required by this Deed, translated at the applicable Exchange Rate for the relevant date (which for a Claim will be the date of payment in respect of such Claim and for the Completion Accounts will be the date expressed in the Completion Accounts), except as expressly set out in this Deed;

 

  (l)

references to times of the day are to London, United Kingdom time unless otherwise stated;

 

  (m)

references to writing includes any modes of reproducing words in a legible and non-transitory form, including by e-mail;

 

  (n)

references to any English legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court official or any other legal concept or thing is, in respect of any jurisdiction other than England, deemed to include what most nearly approximates in that jurisdiction to the English legal term;

 

  (o)

words introduced by the word “other” are not to be given a restrictive meaning because they are preceded by words referring to a particular class of acts, matters or things;

 

  (p)

general words are not to be given a restrictive meaning because they are followed by words which are particular examples of the acts, matters or things covered by the general words, and the words “includes” and “including” will be construed without limitation;

 

  (q)

where this Deed requires any party to reimburse or indemnify another party for any cost, expense or liability, references to such “costs”, “expenses” and / or “liabilities” (or similar phrases or expressions) incurred by a person must not include any amount in respect of GST other than Irrecoverable GST;

 

  (r)

if the day on which the Buyer must pay the Deposit is not a Business Day, the Buyer must pay the Deposit on the next Business Day; and

 

  (s)

a procuring obligation where used in the context of the Seller in respect of a Group Company means that the Seller undertakes to exercise its voting rights and use reasonable endeavours to use such powers as are vested in the Seller from time to time as a shareholder of any Group Company (and which is not inconsistent with the Seller’s fiduciary duties, if any) to ensure compliance with that obligation.

 

1.3

The title of and headings and sub-headings in this Deed are inserted for convenience only and do not affect the construction or interpretation of this Deed.

 

1.4

Each schedule to this Deed forms part of this Deed.

 

1.5

References to a document (including this Deed) include such document as amended or varied in accordance with its terms.

 

31


2.

GRANT OF CALL OPTION AND PUT OPTION

 

2.1

In consideration of the Seller paying to the Buyer $10.00 (the sufficiency and receipt of which is acknowledged) and the undertakings in this Deed, the Buyer irrevocably offers to purchase the Shares from the Seller at the price and on the terms of this Deed (“Put Option”) during the Put Option Exercise Period.

 

2.2

In consideration of the Buyer paying to the Seller $10.00 (the sufficiency and receipt of which is acknowledged) and the undertakings in this Deed, the Seller irrevocably offers to sell the Shares to the Buyer at the price and on the terms of this Deed (“Call Option”) during the Call Option Exercise Period.

 

2.3

To accept an offer and exercise the Put Option or the Call Option, the Buyer or Seller (as applicable) must deliver an Exercise Notice (which is irrevocable) to the other party at any time during the Put Option Exercise Period or Call Option Exercise Period (as applicable).

 

2.4

If the Buyer exercises the Call Option, or the Seller exercises the Put Option, then:

 

  (a)

from the date of the Exercise Notice, the Seller must sell, and the Buyer must purchase, the Shares on and subject to the terms of this Deed; and

 

  (b)

this Deed and the Exercise Notice constitute evidence of the contract arising on exercise of the Call Option or Put Option (as applicable) as a result of the provisions referred to in Clause 2.6 becoming binding on the parties.

 

2.5

If either the Put Option or the Call Option has not been validly exercised during the Put Option Exercise Period or the Call Option Exercise Period (or this Deed is terminated in accordance with Clause 9.12):

 

  (a)

the Buyer will have no further interest in the Shares; and

 

  (b)

both the Call Option and the Put Option will automatically lapse and Clause 31 will apply.

 

2.6

Clauses 3, 5.1, 5.2, 6, 7, 11.5, 11.6, 14, 15, 16, 17, 19, 20, 25, 26, 27.3, 27.4, 27.5, 28, 29, Schedule 5, Schedule 6, Schedule 8, Schedule 9, Schedule 10 and Schedule 11 are not binding and have no force or effect until exercise of the Put Option or the Call Option.

 

3.

SALE OF THE SHARES

 

3.1

On the terms set out in this Deed, and on the exercise of the Put Option or the Call Option, the Seller shall sell and the Buyer shall purchase the Shares with effect from Completion, with full title guarantee, free from all Encumbrances, together with all rights attaching to the Shares as at Completion (including all dividends and distributions declared, declared and paid or declared and made in respect of the Shares after the Completion Date).

 

3.2

Title to and risk in the Shares remains solely with the Seller until Completion, and subject to the terms of this Deed, passes to the Buyer on Completion.

 

3.3

The Seller irrevocably waives any right of pre-emption or other restriction on transfer in respect of the Shares conferred on it under any agreement or otherwise in connection with the sale of the Shares pursuant to this Deed.

 

32


4.

DEPOSIT

 

4.1

On the date of this Deed, the Buyer shall pay to the Seller’s Bank Account a deposit in the amount of $29,000,000 (the “Deposit”) to secure the Buyer’s performance of its obligations under this Deed.

 

4.2

The Seller may terminate this Deed by notice in writing to the Buyer with immediate effect if the Buyer fails to pay such Deposit on the date of this Deed.

 

4.3

The Deposit:

 

  (a)

will accrue interest;

 

  (b)

may be commingled with the Seller’s other funds; and

 

  (c)

will be:

 

  (i)

retained, together with all accrued interest, by the Seller if:

 

  (A)

the Buyer is in breach of Clauses 5.2(b), 9.2 and / or 9.3 and in each case, this Deed is terminated by the Seller in accordance with Clause 31; or

 

  (B)

this Deed is terminated in accordance with Clause 31.1(b) as a result of termination of the Moranbah North SAPA for breach by the buyer entity under the Moranbah North SAPA;

 

  (ii)

refunded, together with all accrued interest, to the Buyer as soon as reasonably practicable (and in any event within 10 Business Days) if this Deed is terminated other than as set out in Clause 4.3(c)(i); or

 

  (iii)

credited, together with all accrued interest, to the Consideration at Completion in accordance with the terms of this Deed.

 

4.4

A party’s entitlement to the Deposit as provided in Clause 4.3 does not limit or prejudice any other rights or remedies any party may have against any other party.

 

5.

CONSIDERATION

 

5.1

The purchase price for the sale of the Shares under this Deed (the “Consideration”) is the amount in US dollars equal to:

 

  (a)

the Up-front Consideration; plus

 

  (b)

the Cash; minus

 

  (c)

the Debt; plus

 

  (d)

the Working Capital Adjustment; plus

 

  (e)

the Deferred Fixed Consideration.

 

5.2

The Consideration will be satisfied as follows:

 

  (a)

the payment of the Deposit by the Buyer in accordance with Clause 4.1;

 

  (b)

the payment at Completion by the Buyer to the Seller of the Completion Payment;

 

33


  (c)

the payment of the Deferred Fixed Consideration by the Buyer to the Seller in accordance with Clause 5.3; and

 

  (d)

further payment (if any) as required in accordance with Clause 15 in connection with the Completion Accounts.

 

5.3

The Buyer must pay the Deferred Fixed Consideration to the Seller by paying or procuring the payment to the Seller of:

 

  (a)

an amount equal to the First Deferred Payment on or before the first anniversary of the Completion Date;

 

  (b)

an amount equal to the Second Deferred Payment on or before the second anniversary of the Completion Date;

 

  (c)

an amount equal to the Third Deferred Payment on or before the third anniversary of the Completion Date; and

 

  (d)

an amount equal to the Fourth Deferred Payment on or before the fourth anniversary of the Completion Date.

 

5.4

The Consideration will, subject to any further adjustment pursuant to this Deed and to the extent lawful, be adopted for all Tax reporting purposes.

 

5.5

With effect from the date of this Deed, all Inter-Group Trading Amounts will be settled in the ordinary course of business in accordance with the terms on which such Inter-Group Trading Amounts were incurred.

 

5.6

Where any payment is made by the Seller in satisfaction of a liability arising under this Deed, it shall to the extent lawful be treated by the Buyer and the Seller as an adjustment to the Consideration paid to the Seller in respect of the Shares.

 

6.

ALLOCATION AND ADJUSTMENT OF THE CONSIDERATION

 

6.1

The parties agree that the Consideration will be allocated:

 

  (a)

in respect of the Deposit, the Up-front Consideration less the Deposit, and the Deferred Fixed Consideration, as set out in Schedule 2; and

 

  (b)

in respect of any adjustment to the Consideration to be paid in accordance with this Deed, as any such adjustment is attributable to each Group Company or asset held by a Group Company (as applicable).

 

6.2

The Buyer and the Seller acknowledge that the Buyer has determined, and the Seller has agreed to, the allocation of value in respect of each Participating Interest and the other assets of the Group in Clause 6.1 having regard to the genuine inherent value of each such Participating Interest and the other assets.

 

6.3

If any Joint Venture Participant gives a Pre-emption Acceptance Notice in connection with the Transaction, the Consideration will be reduced by the value that would have otherwise been allocated to the Participating Interest of the relevant Pre-emption Joint Venture pursuant to Clause 6.1, and, in calculating the required adjustment to the Consideration, the Working Capital Target shall be revised so as to exclude the portion of the Working Capital Target that relates to the pre-empted Participating Interest of the relevant Pre-emption Joint Venture (the “Pre-Empt Working Capital Target”), and for the avoidance of doubt such exclusion may result in a revised Working Capital Target that is the same as, greater than or less than (including by virtue of being a negative figure) the original Working Capital Target.

 

34


  The Pre-Empt Working Capital Target shall be agreed by the parties in good faith at the relevant time on condition that it shall be calculated using the same methodology as was actually used in practice in the calculation of the Working Capital Target set out in the ‘SMC Working Capital Analysis 2 October 2024’ (set out in document 01.06.11 in the Data Room) including, for the avoidance of doubt, being a last 24 month average to June 2024.

 

7.

ROYALTY

 

7.1

The Buyer must pay the Royalty (if any) to the Seller in accordance with Schedule 11.

 

7.2

The parties agree that the Royalty will be allocated as set out in Schedule 3.

 

7.3

If any Joint Venture Participant gives a Pre-emption Acceptance Notice in connection with the Transaction, the Royalty and the Nominated Total Royalty Amount will be reduced by the value that would have otherwise been allocated to the Participating Interest of the relevant Pre-emption Joint Venture the subject of the Pre-emption Acceptance Notice pursuant to Clause 7.2.

 

8.

FOREIGN RESIDENT CAPITAL GAINS WITHHOLDING

 

8.1

If the Seller provides a declaration to the Buyer under subsection 14-225(2) of Schedule 1 to the TAA on or before Completion (but not earlier than 6 months before Completion) and the Buyer does not know that declaration to be false, the Buyer must not withhold any amount from the Completion Payment.

 

8.2

If the Seller determines that it is at any point likely to make a declaration under Clause 8.1, the Seller will inform the Buyer as soon as reasonably possible and provide evidence to support the likelihood of the declaration being made.

 

8.3

If the Seller does not provide a declaration referred to in Clause 8.1 and the Buyer is required to pay an amount to the Commissioner under section 14-200 of Schedule 1 to the TAA, the Buyer is entitled to withhold the amount determined in accordance with subsection 14-200(3) of Schedule 1 to the TAA from the Completion Payment and must remit that amount to the Commissioner within the time required by subsection 14-200(2) of Schedule 1 to the TAA. Remission of that amount to the Commissioner discharges the Buyer’s obligation to pay the Completion Payment under this Deed to the extent of that amount as if it had been paid directly to the Seller.

 

8.4

Where the Seller gives the Buyer a variation notice under section 14-235 of Schedule 1 to the TAA at least 10 Business Days prior to Completion, the Buyer’s entitlement to withhold an amount from the Completion Payment under Clause 8.3 is limited to an amount calculated in accordance with the variation notice.

 

8.5

If the Buyer intends to withhold an amount from the Completion Payment under Clause 8.3, the Buyer must, at least 10 Business Days before the Completion Date, give the Seller written notice of the Buyer’s intention to do so. The Buyer’s notice must include an estimate of the amount which the Buyer intends to withhold from the Completion Payment.

 

8.6

At least three Business Days before lodging any ‘Foreign Resident Capital Gains Withholding Purchaser Payment Notification Form’ or any other similar form of notification with the Commissioner concerning the amount to be withheld under Clause 8.3 (“Purchaser Payment Notification Form”), the Buyer must give a draft copy of the form to the Seller for review and comment. If the Seller provides the Buyer with any updated, different or additional information in relation to the Purchaser Payment Notification Form (“Additional Information”), then:

 

35


  (a)

the Buyer must, within one Business Day, determine whether the Buyer is still required to lodge the Purchaser Payment Notification Form and notify the Seller of that determination; and

 

  (b)

if the Buyer determines that it is still required to lodge the Purchaser Payment Notification Form, then the Buyer must amend it in accordance with any Additional Information relating to the Seller’s details before lodgement.

 

8.7

The Buyer must give the Seller a copy of the following documents within the following timeframes:

 

  (a)

any Purchaser Payment Notification Form lodged by the Buyer with the Commissioner, on the same day the Buyer lodges the form with the Commissioner;

 

  (b)

any response from the Commissioner to the Purchaser Payment Notification Form referred to in Clause 8.7(a) (including but not limited to any payment reference numbers), within one Business Day after the response is received by the Buyer; and

 

  (c)

evidence satisfactory to the Seller that the Buyer has remitted any amount withheld from the Completion Payment to the Commissioner, within two Business Days of the Completion Date.

 

8.8

For the avoidance of doubt, the parties agree that no withholding shall be required or permitted from any payment in respect of the Consideration or the Royalty other than any withholding from the Completion Payment in accordance with this Clause 8.

 

9.

CONDITIONS TO EXERCISE OF CALL OPTION AND PUT OPTION

 

9.1

The Put Option Exercise Period Commencement Date will be the first Business Day after all of the following conditions (the “Conditions”) have been satisfied or waived in accordance with Clauses 9.13 or 9.14:

Pre-emption rights and related rights

 

  (a)

in respect of each Pre-emption Joint Venture, one of the following occurring:

 

  (i)

receipt of a written, unconditional and irrevocable waiver by the applicable Joint Venture Participant of its right to give a Pre-emption Acceptance Notice and of the other additional requirements (including delivery of relevant certifications) under a Pre-emption Joint Venture Agreement which must be satisfied prior to the change in control that will be occasioned by Completion;

 

  (ii)

receipt of a Pre-emption Acceptance Notice by the relevant Group Company that is a party to the applicable Pre-emption Joint Venture Agreement and completion of the sale of the relevant Participating Interest required upon receipt of the Pre-emption Acceptance Notice; or

 

  (iii)

the expiry of each Pre-emption Exercise Period applicable to each Joint Venture Participant, without any such Joint Venture Participant giving a Pre-emption Acceptance Notice and the satisfaction or waiver of any additional requirements (including delivery of relevant certifications) under a Pre-emption Joint Venture Agreement which must be satisfied prior to the change in control that will be occasioned by Completion;

 

  (b)

the transactions contemplated by the Moranbah North SAPA completing in accordance with its terms;

 

36


  (c)

the completion of the Carve-outs;

Contracts and consents

 

  (d)

the counterparty to each Specific Contract consenting in writing to the direct or indirect change of control of a Group Company which will occur following completion of the Transaction (as contemplated by this Deed) and, to the extent applicable, waiving in writing any right which it may have to vary, cancel or terminate the agreement in existence between such counterparty and the relevant Group Company as a result of Completion, in each case, which may be subject to Completion;

Financial assurances and releases

 

  (e)

the Buyer providing evidence of its ability to provide the Replacement Bank Guarantees and Replacement Financial Provisioning, in each case, to the extent of the Bank Guarantees and Financial Provisioning described in Schedule 15, in a form and from such institutions as are reasonably satisfactory to the Seller;

Regulatory – FDI / Anti-trust and General

 

  (f)

the Anti-trust Authority in each of India, Japan, Taiwan, Vietnam, China, South Korea, Slovakia, Turkey and Brazil granting (or being deemed to have granted, including by way of an Anti-trust Authority not issuing a decision by the expiry of the relevant period after a complete notification has been filed with such Anti-trust Authority) their consent, approval, clearance, confirmation or waiver of license in respect of the Transaction under applicable Anti-trust Laws or having confirmed that there is no such requirement;

 

  (g)

one of the following occurring:

 

  (i)

the Buyer receiving notice in writing from the Federal Treasurer or his or her delegate to the effect that there are no objections under the Australian Government’s foreign investment policy or under FATA to the Buyer acquiring the Shares in accordance with this Deed; or

 

  (ii)

the Federal Treasurer being, by reason of lapse of time, no longer empowered to make an order under FATA in respect of the acquisition contemplated by this Deed; or

 

  (iii)

if an interim order is made under the FATA in respect of the acquisition contemplated by this Deed, the subsequent period for making a final order prohibiting the acquisition contemplated by this Deed elapses without a final order being made.

 

9.2

Subject to Clause 9.5:

 

  (a)

the Buyer shall (also subject to Clause 9.6) use, at its own cost:

 

  (i)

best endeavours to ensure that the Conditions set out in Clauses 9.1(f) and 9.1(g) (together, the “Regulatory Conditions”); and

 

  (ii)

reasonable endeavours to ensure that the Condition set out in Clause 9.1(e),

are / is satisfied as soon as practicable and in any event no later than the Longstop Date and shall not, and shall procure that none of its Representatives shall, take any action that could reasonably be expected to adversely affect the satisfaction of the Conditions; and

 

 

37


  (b)

the Seller shall use, at its own cost, reasonable endeavours to ensure that the Conditions set out in Clauses 9.1(a) to 9.1(d) are satisfied as soon as practicable and in any event no later than the Longstop Date and shall not, and shall procure that none of its Representatives shall, take any action that could reasonably be expected to adversely affect the satisfaction of the Conditions (but the Moranbah North Sellers and the Jellinbah Seller shall be permitted to take or omit to take any actions that are necessary to complete the transactions contemplated by the Moranbah North SAPA and / or the Jellinbah SPA).

 

9.3

Without prejudice to Clause 9.2 and subject to Clauses 9.5 and 9.6, the Buyer shall, and shall procure that each of its Affiliates, and its and its Affiliates’ Connected Persons shall, so far as the Buyer is able and to the extent within its power to do so, co-operate fully in all actions and omissions necessary to procure the satisfaction of the Regulatory Conditions as soon as practicable and in any event by the Longstop Date, including:

 

  (a)

making all filings and notifications as soon as practicable after the date of this Deed and in any event within five Business Days of the date of this Deed and obtaining all consents, approvals, clearances, waivers or actions of any Authorities in relation to the Regulatory Conditions to satisfy the Regulatory Conditions as soon as possible after the date of this Deed and in accordance with any relevant time limit;

 

  (b)

promptly notifying the Seller (including providing copies) of any material communication (whether written or oral) with any Authority in relation to the Regulatory Conditions, keeping the Seller regularly and reasonably informed of the progress of any notification or filing, discussing with the Seller the scope, timing and tactics for satisfying the Regulatory Conditions, and providing such assistance as may reasonably be required by the Seller in relation to the satisfaction of the Regulatory Conditions;

 

  (c)

responding to any request for information from any such Authority in relation to the Regulatory Conditions promptly and in any event in accordance with any relevant time limit, including such timing for a response as agreed between the parties acting reasonably;

 

  (d)

only making communications (whether orally or in writing) with any such Authority in relation to the Regulatory Conditions after consulting with and taking into account the Seller’s views as to the mode, content and timing of such communications and giving the Seller a reasonable opportunity to comment on drafts of such communications and to participate in all material telephone calls and material meetings with any such Authority (save to the extent that such Authority expressly requests that the Seller should not participate in such meetings or telephone calls);

 

  (e)

not making any filing with any Authority in relation to the Transaction or any business which competes with, supplies or is a customer of any Group Company which is not required solely to fulfil a Regulatory Condition (or a corresponding regulatory condition in the Moranbah North SAPA) without the Seller’s written consent as to the making of such filing and its form and content;

 

  (f)

except for the Moranbah North SAPA, not (whether alone or acting in concert with others) acquiring or offering to acquire (or causing another person acting on its behalf to acquire or offer to acquire) or entering into a definitive agreement (or causing another person acting on its behalf to enter into a definitive agreement) that, if carried into effect, would result in the acquisition of, a business that competes with the business of a Group Company or any other business the acquisition of which might reasonably be expected to prejudice or delay the satisfaction of any of the Regulatory Conditions; and

 

 

38


  (g)

taking all steps necessary to secure the satisfaction of the Regulatory Conditions, including proposing, negotiating, offering to commit and agreeing, in each case where necessary to ensure that the Regulatory Conditions are satisfied before the Longstop Date, with each relevant Authority to effect (and if such offer is accepted, commit to effect), by agreement, order or otherwise, the sale, divestiture, licence or disposition of any necessary assets or businesses or the performance of any necessary behavioural remedies or Regulatory Conditions. For the avoidance of doubt:

 

  (i)

the Buyer shall make any such proposal, negotiation, offer to commit or agreement with any relevant Authority in sufficient time to ensure that the Regulatory Conditions are satisfied before the Longstop Date, and

 

  (ii)

any such sale, divestiture, licence or disposition of assets or businesses, and any such behavioural remedies will have no impact on the payments to be made pursuant to Clauses 5, 14 or 15, and any costs, expenses or damages related to any sale, divestiture, licence or disposition of assets or businesses or to any such other remedies, or both, will be for the Buyer’s sole account.

 

9.4

Without prejudice to Clause 9.2 and subject to Clause 9.5, the Seller shall, and shall ensure that each Seller’s Affiliate and, before Completion, each Group Company shall, so far as the Seller is able and to the extent within its power to do so:

 

  (a)

provide the Buyer and any Authority in relation to the Conditions with any necessary information and documents for the purpose of making any filings, notifications or communications to any such Authority that are required to satisfy a Condition;

 

  (b)

in respect of Regulatory Conditions:

 

  (i)

promptly notify the Buyer (including providing copies) of any material communication (whether written or oral) with any Authority in relation to the Regulatory Conditions, keep the Buyer regularly and reasonably informed of any material response or communication from or to any Authority, discuss with the Buyer the scope, timing and tactics for responding to any material request of an Authority, and provide such assistance as may reasonably be required by the Buyer in relation to the satisfaction of the Regulatory Conditions; and

 

  (ii)

only make material communications (whether orally or in writing) with any such Authority in relation to the Regulatory Conditions after consulting with and taking into account the Buyer’s views as to the mode, content and timing of such communications and giving the Buyer a reasonable opportunity to comment on drafts of such communications and to participate in all material telephone calls and material meetings with any such Authority (save to the extent that such Authority expressly requests that the Buyer should not participate in such meetings or telephone calls); and

 

  (c)

in respect of the Condition in Clause 9.1(a), promptly notify the Buyer (including providing copies) of any material communication (whether written or oral) with any applicable Joint Venture Participant in relation to the Pre-emption Rights and keep the Buyer regularly and reasonably informed of any response or communication from or to any applicable Joint Venture Participant in relation to the Pre-emption Rights.

 

 

39


9.5

Nothing in this Clause 9 will require a party to disclose commercially sensitive or legally privileged information regarding itself or its Representatives to another party, except to the extent necessary to ensure that the Conditions and any notifications required under Clause 9.7 are satisfied, in which case such disclosure will be on a confidential external counsel-to-counsel basis only.

 

9.6

Nothing in this Clause 9 requires the Buyer to take any action to secure the satisfaction of a Regulatory Condition if such action is reasonably likely to result in a sale, divestiture, licence, disposition or surrender of any material mining assets or businesses of the Buyer Group (excluding the Group Companies, the Moranbah North Entities and the Moranbah North Assets).

 

9.7

Each party shall, to the extent permitted by Law, keep the other party informed as to the progress of satisfaction of the Conditions, including promptly notifying the other parties in writing each time it becomes aware that any of the Conditions have been satisfied and at the same time (or promptly after) provide the other parties with reasonable evidence of the same.

 

9.8

Subject to the parties having complied with their obligations under Clauses 9.2 to 9.4, if a Condition has not been satisfied by the Initial Longstop Date and the Buyer or the Seller (acting reasonably) considers that:

 

  (a)

any outstanding Conditions are reasonably likely to be satisfied within the three months following the Initial Longstop Date; and

 

  (b)

all Conditions which are satisfied prior to the Initial Longstop Date are reasonably likely to remain satisfied until the date which is three months following the Initial Longstop Date,

that party may, by notice, extend the Longstop Date for a further period of three months commencing on the Initial Longstop Date (“First Longstop Date Extension Period”).

 

9.9

The parties must continue to comply with their obligations under Clauses 9.2 to 9.4 and 9.7 for the duration of the First Longstop Date Extension Period.

 

9.10

Subject to the parties having complied with their obligations under Clause 9.9, if a Condition has not been satisfied by the end of the First Longstop Date Extension Period and the Buyer or the Seller (acting reasonably) considers that:

 

  (a)

any outstanding Conditions are reasonably likely to be satisfied within the three months following the end of the First Longstop Date Extension Period; and

 

  (b)

all Conditions which are satisfied prior to the end of the First Longstop Date Extension Period are reasonably likely to remain satisfied until the date which is three months following the First Longstop Date Extension Period,

that party may, by notice, extend the Longstop Date for a further period of three months commencing on the last day of the First Longstop Date Extension Period (“Second Longstop Date Extension Period”).

 

9.11

The parties must continue to comply with their obligations under Clauses 9.2 to 9.4 and 9.7 for the duration of the Second Longstop Date Extension Period.

 

40


9.12

If:

 

  (a)

a Condition is not satisfied or waived by the Longstop Date; or

 

  (b)

the parties agree that a Condition will not be satisfied by the Longstop Date (unless that Condition is satisfied before the termination of this Deed),

neither the Buyer or the Seller may give an Exercise Notice and the Buyer or the Seller may give notice to the other parties in writing to terminate this Deed (provided the terminating party is not in breach of a material obligation under this Deed (including Clause 9.2), following which Clause 31 will apply).

 

9.13

The Seller may, to such extent it thinks fit and is legally entitled to do so, waive the Condition set out in Clause 9.1(e), in whole or in part, by written notice to the Buyer.

 

9.14

The Buyer and Seller may, by written agreement, waive any or all of the Regulatory Conditions and / or the Conditions set out in Clauses 9.1(a), 9.1(b), 9.1(c) and 9.1(d), in whole or in part.

 

9.15

Notwithstanding anything in this Clause 9, nothing in this Deed shall require the Seller to re-issue or issue, or take or omit to take any action that would require it to re-issue or issue, a second Pre-emption Offer Notice in respect of a Pre-emption Joint Venture.

 

10.

PRE-EMPTION RIGHTS

 

10.1

In respect of each Pre-emption Joint Venture, the Seller shall, after the execution of this Deed, when determined by the Seller, acting reasonably and in consultation with the Buyer (provided that the Buyer shall not have a consent or veto right with respect to the form, content or timing of issuance of the Pre-Emption Offer Notice and the Seller shall not be obliged to implement any comments made by the Buyer in those respects), provide, or cause the relevant Group Company to provide, the relevant Pre-emption Offer Notice to each relevant Joint Venture Participant (and the Seller may provide, or cause the relevant Group Company to provide, a relevant Pre-emption Offer Notice more than once). Unless otherwise agreed between the parties, a Pre-emption Offer Notice must be delivered no earlier than 2 January 2025 and the Seller must not seek a waiver or variation of any Pre-Emption Rights to bring forward the date of Pre-emption Expiry that would otherwise apply in respect of the Pre-Emption Offer Notice.

 

10.2

The Seller undertakes to the Buyer that from the date of this Deed until the earlier of Completion and the termination of this Deed it will promptly provide the Buyer with written notice (a “Buyer Pre-emption Notice”) of:

 

  (a)

any Joint Venture Participant that gives a Pre-emption Acceptance Notice; and

 

  (b)

the completion of the sale of the any Participating Interest to a Joint Venture Participant,

in the case of (b) identifying to the Buyer the extent to which the Completion Payment will be amended to remove the proportion of Up-front Consideration less the Deposit from the Completion Payment applicable to the relevant Pre-emption Joint Venture and Participating Interest, as set out in Schedule 2 (a “Completion Payment Pre-emption Adjustment Amount”).

 

10.3

The Buyer undertakes to the Seller that it will notify all relevant Financing Sources of a Completion Payment Pre-emption Adjustment Amount promptly after receipt of a Buyer Pre-emption Notice.

 

41


10.4

If any Joint Venture Participant gives a Pre-emption Acceptance Notice and the sale of the relevant Participating Interest completes, the parties agree that this Deed will continue to be valid and binding and will be completed, save that all references to the Company’s interest in and under such Pre-emption Joint Venture Agreement pursuant to which the Joint Venture Participant’s right to give a Pre-emption Acceptance Notice is exercised, and all related rights, obligations, liabilities, assets and interests and the Pre-emption Joint Venture Agreements will be deemed to be removed from this Deed with effect from the date of completion of such sale under the relevant Pre-emption Acceptance Notice, and in particular:

 

  (a)

the definition of Mining Tenements will be amended to remove the mining tenements attributable to the relevant Pre-emption Joint Venture;

 

  (b)

the definition of Properties will be amended to remove the real property attributable to the relevant Pre-emption Joint Venture;

 

  (c)

the definition of Seller Guarantees will be amended to remove the guarantees, bonds, credit support arrangements, indemnities and letters of comfort attributable to the relevant Pre-emption Joint Venture;

 

  (d)

the definition of Seller Financial Provisioning will be amended to remove the Financial Provisioning attributable to the relevant Pre-emption Joint Venture;

 

  (e)

the definition of Third-Party Guarantees will be amended to remove the guarantees, bonds, credit support arrangements, indemnities and letters of comfort attributable to the relevant Pre-emption Joint Venture;

 

  (f)

Clause 27 will not apply in respect of the relevant Group Company or Group Companies;

 

  (g)

the definition of Completion Payment will be amended to remove the proportion of Up-front Consideration less the Deposit from the Completion Payment applicable to the relevant Pre-emption Joint Venture, as set out in Schedule 2;

 

  (h)

the definitions of First Deferred Payment, Second Deferred Payment, Third Deferred Payment and Fourth Deferred Payment will be amended to reflect a pro rata reduction in the amounts applicable to the relevant Pre-emption Joint Venture, as set out in Schedule 2; and

 

  (i)

the Nominated Total Royalty Amount will be amended to remove the proportion of the Nominated Total Royalty Amount applicable to the relevant Pre-emption Joint Venture, as set out in Schedule 3,

provided that in respect of the Capcoal Joint Venture, if a Pre-emption Acceptance Notice is received in respect of only one of Jena’s or Anglo German Creek’s Capcoal Participating Interest, the Capcoal Participating Interest of Jena or Anglo German Creek which is not the subject of a Pre-emption Acceptance Notice (as applicable) will remain part of this Deed.

 

10.5

Where:

 

  (a)

any Joint Venture Participant gives a Pre-emption Acceptance Notice and the sale of the relevant Participating Interest completes in accordance with the applicable Pre-emption SPA; and

 

 

42


  (b)

the relevant Participating Interest was the only material asset held by the relevant Group Company that was party to the applicable Pre-emption SPA,

 

the Seller may (in its sole discretion, but provided notice is given to the Buyer) elect to cause the transfer of the relevant Group Company from the Group to Anglo American Australia Holdings Pty Limited or another member of the Seller Group and cause the approval and recording of such transfer in the share register of the relevant Group Company (each a “Pre-emption Carve-out”), in which case the parties agree that this Deed will continue to be valid and binding and will be completed, save that the relevant Group Company will be deemed to not form part of the Group for the purpose of this Deed.

 

11.

PRE-COMPLETION OBLIGATIONS

 

11.1

During the period from the date of this Deed to the earlier of Completion and the termination of this Deed, the Seller shall perform its obligations as set out in Schedule 4.

 

11.2

During the period from the date of this Deed to the earlier of Completion and the termination of this Deed, the Seller must accommodate any reasonable request by the Buyer for a reasonable number of persons authorised by the Buyer:

 

  (a)

to be given reasonable, non-disruptive and supervised access during normal business hours and on reasonable notice, to inspect the operating sites, books and records of the Group; and

 

  (b)

to have reasonable access to management of the Group, for the sole purpose of planning the integration of the Group with the Buyer Group following Completion,

in each case, at the sole cost and risk of the Buyer.

 

11.3

The Seller is not required to give the Buyer or persons authorised by it the access described in Clause 11.2 to the extent that the Seller determines that such access might reasonably be expected to:

 

  (a)

put a Seller Group member in breach of the Competition and Consumer Act 2010 (Cth), any duty of confidence (other than to the extent material subject to obligations of confidence has already been disclosed in the Disclosure Material) or any duty or obligation under Applicable Data Protection Laws; or

 

  (b)

result in a loss of any legal professional privilege.

 

11.4

The Buyer:

 

  (a)

must not direct, manage or control the conduct of any Group Company or of any employee of a Group Company, or otherwise impede the conduct of the business of the Group, at any time before Completion; and

 

  (b)

must ensure that any persons provided with the access referred to in Clause 11.2 comply with the reasonable requirements of the Seller in respect of the access and do not unreasonably interfere with the business or operations of the Group.

 

11.5

Not less than five Business Days before Completion, the Seller shall provide the Buyer with a schedule in writing (the “Completion Schedule”), prepared in good faith, setting out the details of:

 

  (a)

the Estimated Cash and the Estimated Inter-Group Funding Receivables;

 

  (b)

the Estimated Debt and the Estimated Inter-Group Funding Payables;

 

  (c)

the Estimated Working Capital and the Estimated Working Capital Adjustment; and

 

43


  (d)

the Completion Payment,

together with reasonable supporting information for the Seller’s calculation of the above items.

 

11.6

At least five Business Days before Completion, the Buyer shall provide to the Seller, as applicable:

 

  (a)

for each Group Company, the written consents in Agreed Form to act as director, secretary and public officer in respect of each incoming director, secretary and public officer that is replacing a director, secretary or public officer appointed by the Seller;

 

  (b)

if applicable, a replacement address for the registered office and principal place of business of each Group Company; and

 

  (c)

replacement names for each Group Company to take effect from Completion which must not include the words Anglo or Anglo American or any words which may be misleading or deceptively similar to or likely to be confused with the words Anglo or Anglo American.

 

11.7

In respect of the FPS Environmental Authorities:

 

  (a)

the Buyer must, within 20 Business Days after the date of this Deed, make a Changed Holder Review Application in respect of each relevant FPS Environmental Authority; and

 

  (b)

the Seller must procure that the Group Company holding each FPS Environmental Authority consents to the Changed Holder Review Application made by the Buyer.

 

11.8

Before Completion, the Seller must procure that:

 

  (a)

the Company, as provisional head company of the Seller Consolidated Group, makes a written choice under paragraph 719-5(4)(c) of the 1997 Tax Act for Anglo American Australia Holdings Pty Limited to become an eligible tier-1 company member of the Seller Consolidated Group with effect from the time Anglo American Australia Holdings Pty Limited became eligible to become an eligible tier-1 company of the Seller Consolidated Group;

 

  (b)

Anglo American Australia Holdings Pty Limited notifies the Commissioner in the approved form as required by section 719-77 of the 1997 Tax Act; and

 

  (c)

the written choice under Clause 11.8(a) and the notification under Clause 11.8(b) are provided to the Buyer.

 

11.9

Before Completion:

 

  (a)

the Seller must, not less than 10 Business Days before Completion, procure that the Seller Head Company gives the Buyer and the relevant Consolidated Subsidiary:

 

  (i)

a draft calculation of the Clear Exit Payment for the Consolidated Subsidiaries in respect of each relevant Group Liability in subsection 721-10(2) of the 1997 Tax Act; and

 

  (ii)

work papers supporting the calculation of the Clear Exit Payment in sufficient detail to enable a review and in a manner consistent with the methodology provided in the Seller Tax Sharing Agreement;

 

44


  (b)

the Buyer must, not less than five Business Days before Completion, provide to the Seller any comments it has on the draft calculation of the Clear Exit Payment provided under Clause 11.9(a)(i) and the Seller must consider any such comments (acting reasonably);

 

  (c)

the Seller must, no later than two Business Days before Completion, procure that the Seller Head Company gives the relevant Consolidated Subsidiary and the Buyer a calculation of the Clear Exit Payment for the relevant Consolidated Subsidiary based on the draft calculation referred to in Clause 11.9(a)(i) and the Buyer’s comments referred to in Clause 11.9(b);

 

  (d)

at least one Business Day before Completion, the Seller must procure that:

 

  (i)

each of the Consolidated Subsidiaries pays the Clear Exit Payment (if any) to the Seller Head Company to which the relevant Group Liability relates in accordance with the Seller Tax Sharing Agreement;

 

  (ii)

the relevant Seller Head Company provides the relevant Consolidated Subsidiary and the Buyer a written receipt or other document evidencing the payment of any amount paid under Clause 11.9(a)(i); and

 

  (iii)

the relevant Group Company has discharged all other amounts owing by it to the relevant Seller Head Company or any other member of the Seller Consolidated Group under the Seller Tax Sharing Agreement or a Tax Funding Agreement.

 

11.10

At Completion, the Seller must deliver to the Buyer a deed of release in respect of any obligations or liabilities of each of the Consolidated Subsidiaries under the Seller Tax Sharing Agreement or a Tax Funding Agreement, duly executed by the Seller Head Company.

 

11.11

During the period from completion under the Moranbah North SAPA until the earlier of Completion or termination of this Deed, the Seller shall procure that the Group Companies maintain and continue to provide any services provided to the Moranbah North Entities on substantially the same terms as provided for the previous 12 months.

 

11.12

As soon as reasonably practicable after the date of this Deed, the Seller must use reasonable endeavours, at the Buyer’s sole cost, risk and expense, to prepare and deliver the Carve-out Accounts to the Buyer and in any event no later than prior to Completion.

 

11.13

From the date of this Deed until the Completion Date or the earlier termination of this Deed, the Seller shall use reasonable endeavours to provide, when reasonably requested by the Buyer in relation to the Buyer Financing Agreements, the following, in each case, at the Buyer’s sole cost, risk and expense:

 

  (a)

furnishing the Buyer with the Carve-out Required Information;

 

  (b)

to the extent required to consummate the Financing, providing customary authorisation and representation letters and arranging for customary auditor consents and comfort letters, provided, that in the case of authorisation letters, (I) no liability shall be imposed on the Seller or any of its affiliates or any of their respective officers or employees involved prior to the Completion Date and (II) the effectiveness thereof shall be conditioned upon, or become operative as of or after, the occurrence of Completion;

 

45


  (c)

authorising the distribution of information relating to the Seller Group and the Carve-out Assets to rating agencies, prospective investors and/or lenders, provided:

 

  (i)

that the Seller is afforded adequate time to review and comment on such information prior to distribution; and

 

  (ii)

that the Seller will not be required to authorise the distribution of, and the Buyer will not, and will procure that its Affiliates will not, distribute without the Seller’s prior written consent (at its reasonable discretion), any information relating to the Seller Group and the Carve-out Assets unless the disclosure of such information is subject to customary confidentiality provisions for a ratings agency, prospective investors and/or lenders or otherwise required by Law or by any Authority (including, for the avoidance of doubt, any Tax Authority) having applicable jurisdiction, the rules of a Stock Exchange or the securities laws of the United States of America;

 

  (d)

assisting in the preparation of definitive financing documents, including guarantee and collateral documents and customary closing certificates and other customary documents as reasonably necessary, in each case, not to be effective until the Completion Date; and

 

  (e)

furnishing the Buyer at least three Business Days prior to the Scheduled Completion Date with all documentation and other information required by a governmental body with respect to the Buyer Financing Agreements under applicable “know your customer” and anti-money laundering rules and regulations that is reasonably requested by the Buyer at least 10 Business Days prior to the Scheduled Completion Date,

provided, however, that no such cooperation shall be required to the extent it would:

 

  (f)

unreasonably disrupt the conduct of the Seller Group’s business;

 

  (g)

be reasonably expected to cause any director, officer or employee of the Seller to incur any personal liability;

 

  (h)

require the Seller to waive or amend any terms of this Deed or the Moranbah North SAPA;

 

  (i)

require the Seller Group to provide any information that is prohibited or restricted by applicable Law or is legally privileged or could result in the disclosure of trade secrets, customer data or competitively sensitive information;

 

  (j)

require the Seller Group or any persons who are officers or directors of such entities to pass resolutions or consents to approve or authorize the execution of such financing or enter into, execute or deliver any certificate, document, instrument or agreement (other than the authorisation letters referred to in Clause 11.13(b) above, customary representation letters required in connection with the provision of any “comfort letters” in accordance with Clause 11.13(b) above) or agree to any change or modification of any existing certificate, document, instrument or agreement;

 

  (k)

cause any representation or warranty in this Deed to be breached by the Seller or any Affiliate of the Seller;

 

  (l)

conflict with the organisational documents of the Seller or relevant Seller’s Affiliate or any Laws;

 

46


  (m)

reasonably be expected to result in a material violation or material breach of, or a default (with or without notice, lapse of time, or both) under, any Material Contract to which the Seller or any Affiliate of the Seller is a party;

 

  (n)

require the delivery of any opinion of counsel by the Seller or an Affiliate of the Seller;

 

  (o)

except for the Carve-out Required Information, require the Seller or any Affiliate of the Seller to prepare any financial statements or information that cannot be produced or provided without unreasonable cost or expense;

 

  (p)

require the Seller or any of its Affiliates to pay any commitment or other fee, or agree to provide any indemnity, in connection with the Financing;

 

  (q)

require the Seller to prepare or deliver any pro forma financial information or projections; or

 

  (r)

reasonably be expected to cause any director, officer or employee or stockholder of the Company or any of its Subsidiaries to incur personal liability.

Nothing contained in this Clause 11.13 or otherwise shall require the Seller or any Affiliate of the Seller, prior to the Completion Date, to be an issuer or other obligor with respect to the Financing. The Buyer shall, promptly upon request by the Seller, reimburse the Seller or any Affiliate of the Seller for all reasonable and documented out-of-pocket costs incurred by them or their respective Representatives in connection with such cooperation and shall reimburse, indemnify and hold harmless the Seller and the Affiliates of the Seller and their respective Representatives from and against any and all losses actually suffered or incurred by them in connection with the arrangement of the Financing, any action taken by them at the request of Buyer or its representatives pursuant to this Clause 11.13 and any information used in connection therewith, except to the extent resulting from the fraud of the Seller or any Affiliate of Seller or any of their respective Representatives, or arising from incorrect or misleading information provided by the Seller or any Affiliate of Seller or any of their respective Representatives.

 

11.14

In no event shall the receipt or availability of any funds or the Financing by Buyer or any of its Affiliates or any other financing or other transactions be a condition to any of the Buyer’s or the Buyer Guarantor’s obligations under this Deed or the Moranbah North SAPA. Notwithstanding anything to the contrary in this Deed, the Seller’s breach of any of the covenants required to be performed by it under Clause 11.13 shall not be considered in determining the satisfaction of any Condition, unless:

 

  (a)

the Buyer has provided the Seller with notice in writing of such breach (with reasonable specificity as to the basis for any such breach) and the Seller has failed to cure such breach in a timely manner; and

 

  (b)

such breach is the primary cause of the Buyer being unable to obtain the proceeds of the Financing on the Completion Date.

 

11.15

In no event shall any member of the Seller Group be entitled to seek or obtain any recovery or judgment against any lenders or other Financing Sources (in each case, including their Representatives and their respective successors and assigns) of the Buyer Group, including for any type of damage relating to this Deed or the transactions contemplated by the Transaction Documents, whether at law or in equity, in contract, in tort or otherwise.

 

47


11.16

The Buyer may, at any time prior to Completion, request the Seller’s consent to present the Buyer’s proposed business plan with respect to each Joint Venture to each relevant Joint Venture Participant. The Seller:

 

  (a)

may in its discretion (acting reasonably and having regard to the Seller’s obligation in Clause 9.2(b)), consent or withhold its consent to such presentation; and

 

  (b)

will be entitled to:

 

  (i)

review and comment on all material proposed to be presented to the Joint Venture Participants; and

 

  (ii)

have its Representatives present and participate at such meeting between the Buyer and the Joint Venture Participants.

 

12.

SEPARATION PLAN

Agreement of the Separation Plan

 

12.1

The Seller will provide a draft Separation Plan to the Buyer no later than three months after the date of this Deed. The Seller will use reasonable endeavours to incorporate the Separation Principles in the draft Separation Plan. Upon receipt by the Buyer of the Seller’s draft Separation Plan, the Seller and the Buyer will use reasonable endeavours to agree in writing the final Separation Plan which incorporates the Separation Principles by the earlier of (i) Completion; and (ii) the date that is four months after the date of this Deed (and if not agreed by that date, as soon as reasonably practicable thereafter).

 

12.2

In connection with the agreement of the Separation Plan, the parties must act in good faith in relation to requests by the Buyer to add or remove Services under the TSA and each party must act reasonably in negotiating amendments to the TSA to reflect such requests, including by using reasonable endeavours to agree on the scope of the added or removed Services, and the associated charges.

 

12.3

The parties agree that following the date on which the Separation Plan is agreed in accordance with Clause 12.1 they will continue to review and update the Separation Plan, by mutual agreement in writing, including during the term of the TSA, with the goal of achieving a smooth and efficient transition with respect to the Group Assets in accordance with the timelines contemplated by the Separation Principles (and in any event by the end of the term of the TSA).

 

12.4

In the event that the parties fail to agree the final Separation Plan in accordance with Clause 12.1, or any adjustment to the Separation Plan proposed by either party under Clause 12.3, this will be an escalation event (an “Escalation Event”) and the Buyer and the Seller will, within 15 Business Days of the occurrence of an Escalation Event, escalate the Escalation Event in writing to a director or equivalent senior individual of their respective organisations (“Senior Executives”). The Senior Executives will promptly cooperate in good faith to resolve the Escalation Event and if the Escalation Event has not been resolved in writing by the Senior Executives within 15 Business Days of being notified of it by the parties, the Escalation Event will be deemed to have become a Dispute and each party may commence the formal dispute resolution procedure set out in Clause 46. In circumstances where the Escalation Event relates to a specific item within the draft Separation Plan but the parties are otherwise in agreement as to the other items within the draft Separation Plan, the parties will use reasonable endeavours to implement the Separation Plan in respect of those items that are agreed upon in accordance with this Clause 12.

 

48


Separation Committee

 

12.5

The parties will establish a separation committee (the “Separation Committee”) to assist them (subject to compliance with Anti-trust Laws) in agreeing the Separation Plan and facilitating the execution of the Separation Plan (including by seeking to resolve issues relating to the execution of the Separation Plan, and confirming when steps under the Separation Plan will commence and when they have been completed).

 

12.6

Within one month of the date of this Deed, each of the Seller and Buyer must appoint and notify the other of no less than two suitably experienced representatives as members of the Separation Committee, and each party must nominate one of their members to have joint day-to-day responsibility for the management of the Separation Committee (the “Leads”). Each party may change their appointed members of the Separation Committee by notice to the other party at any time. The members of the Separation Committee must meet (including by videoconference) within five Business Days of delivery of the first draft Separation Plan and thereafter at least fortnightly, unless otherwise agreed by the members of the Separation Committee. Advisors to either party may join the Separation Committee, on a permanent or ad hoc basis, as required.

 

12.7

The Lead for each of the Seller and Buyer must use reasonable endeavours to agree with the other party’s Lead an agenda for each upcoming meeting of the Separation Committee and to circulate to all other members of the Separation Committee the agenda for that meeting by no later than two Business Days before that meeting.

 

12.8

The Separation Committee may decide to undertake separation activities in a way which deviates from the Separation Plan, provided all such decisions by the Separation Committee are made unanimously between the two Leads. In the event one party considers a deviation from the Separation Plan is necessary and / or disagrees with the proposed implementation of the Separation Plan, and the Leads fail to unanimously agree on how to resolve a request or issue, this will be an Escalation Event and Clause 12.4 will apply mutatis mutandis.

Implementation of the Separation Plan

 

12.9

Subject to compliance with Anti-trust Laws, the Seller, the Seller Guarantor, the Buyer Guarantor and the Buyer will comply with the requirements of, and use reasonable endeavours to achieve any milestones set out in, the agreed Separation Plan including by procuring that any of their Affiliates undertake any action required to comply with the Separation Plan on and from the date the Separation Plan is agreed.

 

12.10

If the Seller becomes aware that a third-party consent is required in respect of the separation of a Group Asset (“Third-Party Consent”), the Seller will notify the Buyer of such required Third-Party Consent as soon as reasonably practicable, and unless the Seller and Buyer agree (acting reasonably) that it is not in the best interests of the Group to seek such Third-Party Consent, the Seller will use reasonable endeavours to obtain such Third-Party Consent in accordance with the timelines contemplated by the Separation Principles or Separation Plan (as applicable) (and in any event by the end of the term of the TSA). All one-off and recurring third-party costs suffered, incurred or due to be incurred by the Seller Group in relation to the transfer by the Seller Group of a Group Asset to the Buyer Group and in obtaining any Third-Party Consents will be borne by the Buyer and the Buyer will promptly reimburse the Seller for any amounts so incurred by the Seller Group. If a Third-Party Consent has not been obtained by the Seller by the end of the TSA (or Completion, where required by the Separation Principles), the relevant Group Asset will not be separated from the Seller Group’s business and the Buyer will be responsible for procuring an alternative to that Group Asset.

 

 

49


12.11

Without limiting Clause 25.1 and save as otherwise provided for in Clause 12.10, with effect from the relevant date(s) contemplated by the Separation Principles or as otherwise agreed in the Separation Plan (and in any event by the end of the term of the TSA), the Buyer will:

 

  (a)

own and hold the exclusive benefit of the Group Assets that have been separated from the Seller Group’s business;

 

  (b)

carry out and perform all the obligations and liabilities to be carried out and performed in relation to the Group Assets that have been separated from the Seller Group’s business; and

 

  (c)

indemnify and hold the Seller Group harmless against all Liabilities which may be suffered or incurred by the Seller Group in respect of any failure by the Buyer to comply with Clause 12.11(b).

 

12.12

Without limiting any provision of the TSA (or the agreed Separation Plan):

 

  (a)

the Seller and the Buyer are each responsible for their own and their Affiliates’ internal and third-party costs relating to the formulation of the Separation Plan;

 

  (b)

the Buyer is responsible for the internal and third-party costs of the Seller Group, as well as for their own and their Affiliates’ internal and third-party costs, relating to the execution and performance of the Separation Plan and the administration of the Separation Committee; and

 

  (c)

subject to Clause 12.12(d), costs to be met by the Buyer as described in Clauses 12.10 and 12.12(b) will be “at cost” without any mark-up imposed by the Seller Group and will be invoiced by the relevant Seller Group member in arrears at any time after the end of the relevant calendar month. The amounts specified in each invoice (together with any GST if applicable) will be payable by the Buyer within 30 days of receipt of the relevant invoice. The Seller’s invoice given under this Clause 12.12(c) may include separation costs which relate to any preceding calendar month and be in respect of more than one calendar month; and

 

  (d)

the Buyer’s maximum aggregate liability in respect of all costs invoiced under Clause 12.12(c) (when aggregated with all costs invoiced under clause 13.12(c) of the Moranbah North SAPA) will not exceed $20,000,000.

 

12.13

The parties acknowledge and agree that compliance by them with their obligations under this Clause 12 is taken to constitute compliance by their respective Affiliates with Clause 13 of the Moranbah North SAPA.

 

13.

MATERIAL ADVERSE CHANGE

 

13.1

If, before Completion, either the Buyer or the Seller becomes aware that a Material Adverse Change has occurred, each party must promptly give written notice to each other party, including full details of the Material Adverse Change.

 

13.2

No later than 10 Business Days after a party gives a notice under Clause 13.1 (or such other period as the Buyer and the Seller may agree in writing), the Seller must notify the Buyer whether, in the reasonable opinion of the Seller, the Seller considers that the Material Adverse Change could be cured (including by payment of money) or could otherwise cease to exist on or before Completion and full details of all relevant circumstances, including the basis on which the Seller considers the Material Adverse Change can be cured or otherwise cease to exist, and applicable timeframes.

 

13.3

If a Material Adverse Change occurs before Completion and the Seller gives a notice under Clause 13.2 that the Material Adverse Change can be cured before Completion, the Seller must use reasonable endeavours to investigate and cure (or procure the cure of) the Material Adverse Change before the MAC Cure Date.

 

50


13.4

The Seller must keep the Buyer reasonably informed in relation to any Material Adverse Change (including providing details of any actions the Seller is taking to cure the Material Adverse Change), and must promptly give written notice to the Buyer at any time before Completion if, in the reasonable opinion of the Seller, the Seller considers that a Material Adverse Change cannot be cured or otherwise cease to exist before the MAC Cure Date.

 

13.5

If a Material Adverse Change occurs before Completion and the Material Adverse Change is not cured or has not otherwise ceased to exist on or before the MAC Cure Date:

 

  (a)

the Buyer may, by written notice to the Seller; or

 

  (b)

the Seller may, by written notice to the Buyer,

terminate this Deed at any time up until immediately prior to Completion.

 

13.6

If the Seller gives a notice under Clause 13.2 or 13.4 that the Material Adverse Change cannot be cured and will not otherwise cease to exist on or before Completion:

 

  (a)

the Buyer may, by written notice to the Seller; or

 

  (b)

the Seller may, by written notice to the Buyer,

terminate this Deed within 10 Business Days of the Seller having given notice under Clause 13.2 or 13.4.

 

13.7

The parties agree that the occurrence of a Material Adverse Change will not constitute a breach of this Deed by the Seller.

 

13.8

Nothing in Clause 13.7 restricts the Buyer from making a Claim against a Seller Group member for a breach by a Seller Group member of its obligations under this Deed, except that the Buyer is excluded from making a Claim against a Seller Group member:

 

  (a)

where a Material Adverse Change has been cured in accordance with this Clause 13 or otherwise ceases to exist on the Completion Date; or

 

  (b)

in respect of any breach of Warranty by the Seller where this Deed is terminated in accordance with Clauses 13.5 or 13.6.

 

14.

COMPLETION

 

14.1

Completion will take place at the Seller’s Solicitor’s offices (or at any other place as agreed in writing by the Seller and the Buyer) on the Scheduled Completion Date.

 

14.2

At Completion:

 

  (a)

the Seller shall do or procure the carrying out of all those things listed in paragraph 1 of Schedule 5; and

 

  (b)

the Buyer shall do or procure the carrying out of all those things listed in paragraph 2 of Schedule 5.

 

14.3

At Completion:

 

  (a)

the Buyer shall procure that each relevant Group Company repays to the Seller and / or the Seller’s relevant Affiliate the amount of any Estimated Inter-Group Funding Payables;

 

51


  (b)

the Seller shall, and shall procure that each of the Seller’s relevant Affiliates shall, repay to each relevant Group Company the amount of any Estimated Inter-Group Funding Receivables; and

 

  (c)

the repayments in accordance with Clauses 14.3(a) and 14.3(b) will be settled by payments between (a) the Seller, for itself and as agent on behalf of the relevant Seller’s Affiliates; and (b) the Buyer, for itself and as agent on behalf of the relevant Group Companies and Clause 21.5 will apply to such payments.

 

14.4

Within 10 Business Days of the Completion Accounts becoming binding in accordance with Schedule 9, and the Inter-Group Funding Payables and Inter-Group Funding Receivables being finally determined, if the amount of any Inter-Group Funding Payable and / or any Inter-Group Funding Receivable contained in the Completion Accounts is greater or less than the corresponding Estimated Inter-Group Funding Payable or Estimated Inter-Group Funding Receivable, the Seller and the Buyer shall procure that any necessary adjustments to the repayments pursuant to Clause 14.3 are made to ensure that the actual amount of each Inter-Group Funding Payable and each Inter-Group Funding Receivable has been repaid by each relevant Group Company to the Seller or relevant Seller’s Affiliate, or by the Seller or relevant Seller’s Affiliate to the relevant Group Company, as the case may be and it is agreed that any amounts payable by the relevant Group Company to the Seller or relevant Seller’s Affiliate, or by the Seller or relevant Seller’s Affiliate to the relevant Group Company under this Clause 14.4, will to the extent possible, be set-off against each other, such that a single amount will be payable by the relevant Group Company to the Seller or relevant Seller’s Affiliate or vice versa.

 

14.5

Subject to Clause 14.6, all documents and items delivered, and payments received, in connection with Completion will be held by the recipient to the order of the person delivering or making them.

 

14.6

Simultaneously with:

 

  (a)

the delivery of all documents and items required to be delivered;

 

  (b)

the receipt of all payments required to be made; and

 

  (c)

the performance of all other obligations required to be performed at Completion,

(and in the case of Clause 14.8(b), other than any such delivery, payment or performance to the extent such is not practicable), all such documents, items and payments will cease to be held to the order of the person delivering or making them, will be released and Completion will be deemed to have taken place.

 

14.7

No party shall be obliged to complete the sale and purchase of any of the Shares unless the sale and purchase of all of the Shares is completed simultaneously.

 

14.8

Without prejudice to Clause 31 or any other rights and remedies a party may have, if the Buyer or the Seller does not comply with its obligations under Clause 14.2 on the Scheduled Completion Date, the Buyer (in the case of non-compliance by the Seller) and the Seller (in the case of non-compliance by the Buyer) shall each be entitled by notice in writing to each other party, at its discretion:

 

  (a)

to defer Completion to the next End of Month Date or any later date set for Completion in accordance with this Clause 14.8(a). In such event:

 

  (i)

if the deferral is the result of non-compliance by the Buyer, the Seller may at its election provide the Buyer with an updated Completion Schedule in accordance with the requirements of Clause 11.5 (other than in respect of timing), which will then constitute the Completion Schedule for the purposes of this Deed in lieu of any prior Completion Schedule;

 

52


  (ii)

if the deferral is the result of non-compliance by the Seller, the Seller will, if requested by the Buyer, promptly upon such request provide the Buyer with an updated Completion Schedule in accordance with the requirements of Clause 11.5 (other than in respect of timing), which will then constitute the Completion Schedule for the purposes of this Deed in lieu of any prior Completion Schedule; and

 

  (iii)

this Clause 14.8 will also apply to Completion so deferred;

 

  (b)

so far as practicable, to complete the sale and purchase of the Shares in accordance with Clause 14.1 and Schedule 5; or

 

  (c)

provided Completion has been deferred in accordance with Clause 14.8(a) at least once by it, to terminate this Deed by notice in writing to the other parties, following which Clause 31 will apply.

 

14.9

Notwithstanding anything in this Deed, in respect of any Pre-emption Joint Venture Agreement where a waiver has not been received in accordance with Clause 9.1(a)(i) or completion of the sale of the relevant Participating Interest has not occurred in accordance with Clause 9.1(a)(ii), if Completion is not permitted under such Pre-emption Joint Venture Agreement without causing a default or an obligation of re-assignment because the period for Completion to occur following expiry of the applicable Pre-emption Exercise Period has passed (such circumstances constituting a “Pre-emption Expiry), the Seller may, in its discretion, terminate this Deed prior to Completion by notice in writing to the other parties.

 

14.10

Within five Business Days of Completion, the Seller must provide to the Buyer evidence that Anglo American Australia Holdings Pty Limited has been appointed as the new provisional head company of the Seller Consolidated Group pursuant to subsection 719-60(3) of the 1997 Tax Act.

 

15.

COMPLETION ACCOUNTS

 

15.1

In respect of the Completion Accounts, the parties shall comply with the requirements set out in Schedule 9.

 

15.2

Within 10 Business Days, starting on the day after the Completion Accounts become binding in accordance with the provisions of Schedule 9, the following payments will be made:

 

  (a)

in respect of the Cash:

 

  (i)

if the Cash is less than the Estimated Cash, the Seller shall repay to the Buyer an amount equal to such difference; or

 

  (ii)

if the Cash is greater than the Estimated Cash, the Buyer shall pay to the Seller an amount equal to such difference;

 

  (b)

in respect of the Debt:

 

  (i)

if the Debt is less than the Estimated Debt, the Buyer shall pay to the Seller an amount equal to such difference; or

 

  (ii)

if the Debt is greater than the Estimated Debt, the Seller shall repay to the Buyer an amount equal to such difference; and

 

53


  (c)

in respect of the Working Capital:

 

  (i)

if the Working Capital is less than the Estimated Working Capital, the Seller shall repay to the Buyer an amount equal to such difference; or

 

  (ii)

if the Working Capital is greater than the Estimated Working Capital, the Buyer shall pay to the Seller an amount equal to such difference,

and it is agreed that any amounts payable by the Buyer to the Seller under this Clause 15.2 will, to the extent possible, be set-off against amounts payable by the Seller to the Buyer under this Clause 15.2, such that a single amount will be payable by the Buyer to the Seller or vice versa.

 

16.

POST-COMPLETION OBLIGATIONS

 

16.1

The Buyer shall by no later than the next scheduled payroll following Completion, procure, to the extent not paid on or before the Completion Date, the payment by each relevant Group Company of any Transaction Bonuses to the persons entitled to such amounts, and each Group Company will deduct and withhold from any such payment such amount as the relevant Group Company is required by Law to deduct and withhold for, or on account of, Tax. The Buyer shall procure that each relevant Group Company accounts to the appropriate Tax Authority for amounts so deducted or withheld in accordance with applicable Law. Any such recipient of a Transaction Bonus may enforce this Clause 16.1 under the Contracts (Rights of Third Parties) Act 1999.

 

16.2

After Completion, the Buyer must procure that the Group Companies make all necessary filings with ASIC to give effect to the changes in the membership of the Group Companies, the changes in the officers of each Group Company and the change in name and registered address of each Group Company made in accordance with the terms of this Deed.

 

16.3

The Buyer shall procure that each Group Company shall as soon as reasonably practicable and in any event:

 

  (a)

within five Business Days of Completion:

 

  (i)

remove any use of the Trade Marks and Get-up displayed online by the Group Company and / or any of their Affiliates; and

 

  (ii)

cease to use in the ordinary course of any business:

 

  (A)

the words “Anglo” or “Anglo American”; and

 

  (B)

any business or domain name which, at Completion, was or had been used by the Seller or any Seller’s Affiliate;

 

  (b)

within 20 Business Days of Completion:

 

  (i)

remove or replace the Trade Marks and Get-up on any administrative forms, templates, documents and other corporate content; and

 

  (ii)

remove any signs and indicia bearing the Trade Marks and Get-up from any headquarter premises of the Group Company and / or any of their Affiliates;

 

  (c)

within 60 Business Days of Completion, remove any signs and indicia bearing the Trade Marks and Get-up from any other sites and operations owned, controlled and / or operated by the Group Company; and

 

54


  (d)

within 12 months of Completion, remove or replace the Trade Marks and Get-up on any clothing of Employees.

 

16.4

The Buyer shall put in place and maintain until the sixth anniversary of the Completion Date run-off directors’ and officers’ insurance with the same level of coverage and scope as each Group Company has in place immediately before Completion (“D&O Insurance”) in respect of those directors and officers of any Group Company who resign from any board of a Group Company at or before Completion, providing a level of cover no less extensive than that which is in place as at the date of this Deed. The Buyer undertakes that it shall not take or omit to take (and shall procure that each Buyer Group member shall not take or omit to take) any action which has the effect of invalidating the D&O Insurance. Any such director covered by the D&O Insurance may enforce this Clause 16.4 under the Contracts (Rights of Third Parties) Act 1999.

 

16.5

For a period of seven years from Completion, the Buyer shall, and shall procure that each Group Company shall:

 

  (a)

preserve and maintain all books, records and documents which relate to the Taxation of the Group and each Group Company (other than in respect of the Moranbah North Assets) and pertain to events occurring before Completion; and

 

  (b)

make all books, records and documents which are in its possession or control and relate to the Group (other than in respect of the Moranbah North Assets and only insofar as the same record matters occurring on or before Completion) available for inspection by the Seller and its Representatives and permit the Seller and its Representatives to have reasonable access during normal Working Hours to, and to take copies (at such person’s own expense) of such books, records and documents, and to otherwise provide reasonable information and assistance and reasonable access to any director, officer, employee or agent or adviser of the Group, in each case to the extent reasonably required by the Seller or their Representatives and subject to reasonable advance notice being given.

 

16.6

Except as required by applicable Law or with the Seller’s written consent (such consent not to be unreasonably withheld, conditioned or delayed), the Buyer shall not, and shall not cause or permit any Buyer Group member (including the Group Companies) to, make or change any Tax election, amend any Tax Return or take any Tax position on any Tax Return, in each case with respect to any period (or part of any period) ended on or before Completion, that could result in any increased Tax liability (or any indemnification or payment obligation under this Deed or any other Transaction Document in respect of any Tax liability) to, or reduce any Relief of, the Seller or any of its Affiliates.

 

17.

[***]

 

17.1

[***]

 

17.2

[***].

 

17.3

[***]

 

17.4

[***]

 

18.

GUARANTEES

 

18.1

From Completion the Buyer shall promptly do everything necessary to assist the Seller with the release of the Seller Guarantees, including:

 

55


  (a)

lodging the Replacement Bank Guarantees and Replacement Financial Provisioning (and any duly completed and executed forms as may be required) with the State or the Bank Guarantee Beneficiary; and

 

  (b)

providing the relevant Authority with any further Financial Provisioning in relation to the Mining Tenements and related Environmental Authorisations as and if required by the relevant Authority (including any Financial Provisioning which is specified as being required to be provided in a Notice of Decision),

and, pending release of any such Seller Guarantee, on and from Completion, the Buyer will indemnify the Seller and each Seller’s Affiliate on demand (on a dollar for dollar basis) against all Liabilities arising after Completion under or by reason of such Seller Guarantee.

 

18.2

Without limiting Clause 18.1, on and from Completion the Buyer shall deliver to the relevant Authority any Financial Provisioning (in addition to any Financial Provisioning required to be delivered under Clause 18.1) required to be provided in respect of a Mining Tenement and / or an Environmental Authorisation under the Resources Act or the Environmental Protection Act 1994 (Qld) (including in respect of any FPS Environmental Authority).

 

18.3

Without limiting Clause 18.2, the Buyer shall use reasonable endeavours to ensure that as soon as reasonably practicable after Completion, the Seller and each Seller’s Affiliate are released from all Third-Party Guarantees and, to the extent not replaced at or before Completion, any Seller Guarantees given by the Seller or any Seller’s Affiliate in respect of obligations of any Group Company and pending release of any such Third-Party Guarantee or Seller Guarantee, and the Buyer shall indemnify the Seller and each Seller’s Affiliate on demand (on a dollar for dollar basis) against all Liabilities arising after Completion under or by reason of such Third-Party Guarantee or Seller Guarantee.

 

18.4

Without limiting Clause 18.2, the Seller shall use reasonable endeavours to ensure that as soon as reasonably practicable after Completion, each Group Company is released from all Third-Party Guarantees given by that Group Company in respect of the Seller’s or any Seller’s Affiliate’s obligations and pending release of any such Third-Party Guarantee, the Seller shall indemnify the Buyer and each Group Company on demand (on a dollar for dollar basis) against all Liabilities arising after Completion under or by reason of such Third-Party Guarantee.

 

19.

MORANBAH NORTH CLAIMS

 

19.1

From the date the Buyer or a Buyer Group member notifies a Moranbah North Seller which is a member of the Buyer Group of a Moranbah North Claim, the Buyer shall:

 

  (a)

immediately notify the Seller of the Moranbah North Claim;

 

  (b)

take (and procure any Buyer Group member takes) such action as the Seller requests to avoid, resist, dispute, appeal, compromise, remedy or defend the Moranbah North Claim;

 

  (c)

delegate the conduct of all current and future proceedings on behalf of the relevant Moranbah North Seller(s) in respect of the Moranbah North Claim to the Seller;

 

  (d)

retain such legal advisers as nominated by the Seller to act on behalf of the relevant Moranbah North Seller(s), in accordance with the Seller’s instructions;

 

  (e)

provide (and procure any Buyer Group member provides) such information and assistance as the Seller or the appointed legal advisers may require in connection with the conduct of the Moranbah North Claim; and

 

56


  (f)

not take any action, and shall procure that no Buyer Group member takes any action, on behalf of the relevant Moranbah North Seller(s) in respect of the Moranbah North Claim without the Seller’s prior written consent.

 

19.2

The Buyer shall execute and deliver or procure the execution and delivery of all such documents and shall do all such things as the Seller requires for the purpose of giving full effect to the provisions of Clause 19.1 and to secure for the Seller the full benefit of the rights, powers and remedies conferred upon it under Clause 19.1.

 

19.3

If any Moranbah North Seller which is a member of the Buyer Group makes any payment to the Moranbah North Buyer in respect of any Moranbah North Claim (a “Moranbah Claim Payment”), provided that the Buyer has materially complied with its obligations under Clauses 19.1 and 19.2, the Seller shall pay to the Buyer’s Bank Account within 10 Business Days of a Moranbah Claim Payment being made, an amount equal to the Moranbah Claim Payment, less an amount equal to any Tax refund or other Tax saving to which any Group Company or any other member of the Buyer Group is, or would following an appropriate amendment to the relevant tax return be, entitled by reason of the consideration received by the relevant Moranbah North Seller from the Moranbah North Buyer under the Moranbah North SAPA being treated as reduced by the amount of the Moranbah Claim Payment, but excluding any amounts identifiably taken into account in Cash, Debt or Working Capital for the purpose of determining the Completion Accounts.

 

19.4

Provided that the Buyer has materially complied with its obligations under Clauses 19.1 and 19.2, the Seller will pay all costs and expenses incurred by the Buyer Group in providing such information and assistance as set out in Clauses 19.1 and 19.2.

 

19.5

The Seller will not be required to pay any amount to the Buyer under Clause 19.3 if the Buyer has not materially complied fully with its obligations under Clauses 19.1 and 19.2.

 

20.

POST-COMPLETION PAYMENT OBLIGATIONS

 

20.1

If the Buyer Group receives any amount following Completion pursuant to any provision of the Moranbah North SAPA, including any amount in respect of any purchase price adjustment, settlement of inter-company receivables / payables or wrong pocket adjustments, or in connection with any [***], the Grosvenor Contingent Consideration or the Grosvenor Royalty, but excluding any amount in respect of a Moranbah North Claim other than any amount received by a Moranbah North Seller which is a member of the Buyer Group, that is not transferred to the Seller pursuant to the Moranbah North SAPA, the other provisions of this Deed or included in ‘Cash’, ‘Debt’ or ‘Working Capital’ as defined in the Moranbah North SAPA for the purpose of determining the ‘Completion Accounts’ as defined in the Moranbah North SAPA (any such amount a “Buyer Refund Amount”), the Buyer will immediately notify the Seller and procure that an amount equal to the Buyer Refund Amount is paid to the Seller’s Bank Account within 10 Business Days of receiving the Buyer Refund Amount.

 

20.2

If any Moranbah North Seller which is a member of the Buyer Group makes any payment (excluding a Moranbah Claim Payment) following Completion pursuant to and in compliance with any provision of the Moranbah North SAPA that is not included in ‘Cash’, ‘Debt’ or ‘Working Capital’ as defined in the Moranbah North SAPA for the purpose of determining the ‘Completion Accounts’ as defined in the Moranbah North SAPA (any such amount a “Seller Refund Amount”), the Buyer will immediately notify the Seller and the Seller shall, provided the relevant Moranbah North Seller has fully complied with its obligations under the Moranbah North SAPA in respect of such payment, procure that an amount equal to the Seller Refund Amount is paid to the Buyer’s Bank Account within 10 Business Days of the Seller Refund Amount being paid.

 

57


20.3

Following Completion, if the beneficiary (including the Scheme Manager) of any Seller Financial Provisioning pays or refunds any portion of that Seller Financial Provisioning to the Buyer Group (including as a result of the Buyer Group providing the Replacement Financial Provisioning and including if any portion of the Seller Financial Provisioning is credited against the Replacement Financial Provisioning), the Buyer must promptly, and in any case within five Business Days:

 

  (a)

notify the Seller of receipt of such payment; and

 

  (b)

pay the applicable Refunded Financial Provisioning amount (in respect of the applicable Seller Financial Provisioning) to the Seller.

 

21.

SELLER’S WARRANTIES AND UNDERTAKINGS

 

21.1

The Seller warrants to the Buyer that each of the Warranties in Schedule 6 is true and accurate:

 

  (a)

as at the date of this Deed; and

 

  (b)

in respect of the Fundamental Warranties only, as at Completion as if repeated immediately before Completion and on the basis that any reference made to the date of this Deed (whether express or implied) in any Warranty must be considered a reference to the Completion Date.

 

21.2

Each of the Warranties must be construed as being separate and independent.

 

21.3

Warranties qualified by the expression “so far as the Seller is aware” (or any similar expression) are deemed to be given by the Seller only based on the actual knowledge of [***], [***], [***], [***], [***], [***], [***], [***], [***], [***] and [***] as at the date of this Deed.

 

21.4

Notwithstanding any other provision of this Deed, the provisions of this Clause 21 and Schedule 7, and the provisions in paragraph 3 of the Tax Covenant, operate to limit the Seller’s liability in respect of any Claim.

 

21.5

The Seller and the Buyer acknowledge and agree that on and from Completion:

 

  (a)

except in the case of fraud and without prejudice to any matter agreed in the Transaction Documents, to the extent permitted by Law, the Seller, its Affiliates and its Affiliates’ Connected Persons have no rights or remedies against (and have not assigned any rights or remedies against) and shall not bring or make any claim, proceeding, suit or action, in relation to the transactions contemplated by the Transaction Documents:

 

  (i)

in connection with any information, opinion or advice supplied or given (or omitted to be supplied or given) in connection with any of the Transaction Documents against any current or former directors, officers, employees, agents, consultants, advisers, auditors and accountants of any Group Company (each of whom shall be entitled to enforce this Clause 21.5(a)(i) under the Contracts (Rights of Third Parties) Act 1999) on whom it may have relied before agreeing to any terms of, or entering into, any Transaction Document; and

 

  (ii)

against any Group Company or any of their current or former directors, officers, employees, agents, consultants, advisers, auditors and accountants (each of which shall be entitled to enforce this Clause 21.5(a)(ii) under the Contracts (Rights of Third Parties) Act 1999) in relation to a matter occurring before the Completion Date,

 

58


and with effect from Completion, the Seller irrevocably releases, waives, forfeits and / or extinguishes (and shall procure that each of its Affiliates and its Affiliates’ Connected Persons release, waive, forfeit and / or extinguish) any such claim, proceeding, suit or action;

 

  (b)

subject to any payments required to be made on or following the Completion Date pursuant to this Deed (including the payment of the Transaction Bonuses), no amounts will be owed from a Group Company to the Seller or any of its Affiliates in relation to matters occurring before Completion; and

 

  (c)

subject to any payments required to be made on or following the Completion Date pursuant to this Deed (including the payment of the Transaction Bonuses), no amounts will be owed from the Seller or a Seller’s Affiliate to a Group Company in relation to matters occurring before Completion.

 

22.

SELLER GUARANTOR’S WARRANTIES AND UNDERTAKINGS

 

22.1

The Seller Guarantor warrants to the Buyer as at the date of this Deed and as at Completion as if repeated immediately before Completion that:

 

  (a)

the Seller Guarantor is validly incorporated, in existence and duly registered under the laws of its country of incorporation;

 

  (b)

no (i) meeting has been convened, resolution proposed, petition presented or order made for its winding up; (ii) receiver, receiver and manager, provisional liquidator, liquidator, administrator or other officer of the court has been appointed in relation to any of its assets; or (iii) mortgagee has taken, attempted to take or indicated an intention to exercise its rights under any security of which it is the mortgagor or chargor;

 

  (c)

the Seller Guarantor has taken all necessary action and has all requisite power and authority to enter into and perform this Deed and the other Transaction Documents to which the Seller Guarantor is a party in accordance with their terms;

 

  (d)

this Deed and the other Transaction Documents to which the Seller Guarantor is a party constitute (or will constitute when executed) valid, legal and binding obligations on the Seller Guarantor in accordance with their terms;

 

  (e)

the execution and delivery of this Deed and the other Transaction Documents to which the Seller Guarantor is a party by the Seller Guarantor and the performance of and compliance with their terms and provisions will not conflict with or result in a breach of, or constitute a default under, the Seller Guarantor’s constitutional documents, any agreement or instrument to which the Seller Guarantor is a party or by which it is bound, or any Law, order or judgment that applies to or binds the Seller Guarantor or any of its property;

 

  (f)

no consent, action, approval or authorisation of, and no registration, declaration, notification or filing with or to, any Authority is required to be obtained, or made, by the Seller Guarantor to authorise the execution or performance of this Deed by the Seller Guarantor;

 

  (g)

the Seller Guarantor is not and none of its directors, officers, employees, agents, or representatives is engaged (in such capacity) in any conduct, activity or omission which would constitute material non-compliance with any Sanctions Law or Anticorruption Law; and

 

59


  (h)

the Seller Guarantor is not and none of its directors, officers, employees, agents or representatives (in such capacity):

 

  (i)

is or has been a Sanctioned Person;

 

  (ii)

is or has been in breach of any Sanctions Laws; or

 

  (iii)

has in the three years before the date of this Deed engaged in any transaction or dealing with any Sanctioned Person or with any Sanctioned Territory,

but Clauses 22.1(g) and 22.1(h) will not apply if and to the extent that it is or would be unenforceable by reason of breach of any provision of the Council Regulation (EC) No 2271/96 of 22 November 1996, the Protecting against the Effects of the Extraterritorial Application of Third Country Legislation (Amendment) (EU Exit) Regulations 2020 (SI 2020/1660), any law or regulation implementing such regulations in any member state of the European Union or the United Kingdom, or any similar blocking or anti-boycott law.

 

22.2

The Seller Guarantor irrevocably and unconditionally:

 

  (a)

guarantees, as a primary obligation to the Buyer, the due and punctual performance by the Seller of all the Seller Guaranteed Obligations in accordance with this Clause 22;

 

  (b)

undertakes to the Buyer that:

 

  (i)

whenever the Seller does not pay any amount when due under or in connection with the Seller Guaranteed Obligations, it shall immediately on demand and without deduction or withholding pay that amount as if the Seller Guarantor was the principal obligor; and

 

  (ii)

whenever the Seller fails to perform any other Seller Guaranteed Obligation, it shall immediately on demand perform (or procure the performance of) and satisfy (or procure the satisfaction of) that Seller Guaranteed Obligation,

so that the same benefits are conferred on the Buyer as it would have received if such Seller Guaranteed Obligations had been performed and satisfied by the Seller; and

 

  (c)

indemnifies each of the Buyer, all of its Affiliates and each officer, employee and agent of such persons on demand (on a dollar for dollar basis) against all Liabilities which the Buyer may suffer or incur (whether directly or indirectly) as a result of any claim relating to:

 

  (i)

the failure of the Seller to perform any of the Seller Guaranteed Obligations; or

 

  (ii)

any Seller Guaranteed Obligation becoming unenforceable, invalid or illegal.

 

22.3

The guarantee in Clause 22.2 is a continuing guarantee and will extend to the ultimate balance of sums payable by the Seller in respect of the Seller Guaranteed Obligations, regardless of any intermediate payment or discharge in whole or in part.

 

60


22.4

If any payment by the Seller and / or the Seller Guarantor or any discharge of any obligations of the Seller and / or the Seller Guarantor or any security for those obligations or otherwise is avoided or reduced because of insolvency or any similar event:

 

  (a)

the liability of the Seller and the Seller Guarantor will continue as if the payment discharge, avoidance or reduction had not occurred; and

 

  (b)

the Buyer will be entitled to recover the value or amount of that security or payment from the Seller Guarantor as if the payment, discharge, avoidance or reduction had not occurred.

 

22.5

The obligations of the Seller Guarantor under this Clause 22 will not be affected by any act, omission, matter or thing which, but for this Clause 22.5, would reduce, release or prejudice any of its obligations under this Clause 22 (whether or not known to the Buyer, the Buyer Guarantor, the Seller or the Seller Guarantor) including:

 

  (a)

any time, waiver or consent granted to, or composition with, the Seller or any other person;

 

  (b)

the release of the Seller or any other person under the terms of any composition or arrangement with any creditor;

 

  (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, the Seller or any 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;

 

  (d)

any incapacity or lack of power, authority or legal personality of or dissolution, amalgamation, reconstruction or change in the members or status of the Buyer or any other person;

 

  (e)

any amendment (however fundamental) or replacement of any of the Seller Guaranteed Obligations or any other document or security;

 

  (f)

any unenforceability, illegality or invalidity of any obligation of any person under this Deed or any other document or security; or

 

  (g)

any insolvency or similar proceedings.

 

22.6

The Seller Guarantor waives any right it may have of first requiring the Buyer to proceed against or enforce any other rights or security or claim payment from any person before claiming from the Seller Guarantor under this Clause 22. This waiver applies irrespective of any law or any provision of this Deed to the contrary.

 

22.7

Until all amounts which may be or become payable by the Seller under or in connection with the Seller Guaranteed Obligations have been irrevocably paid in full:

 

  (a)

the Buyer may refrain from applying or enforcing any other money, security or rights held or received by the Buyer 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 the Seller Guarantor shall not be entitled to the benefit of the same;

 

  (b)

the Buyer may hold in an interest-bearing suspense account any money received from the Seller Guarantor or on account of the Seller Guarantor’s liability under this Clause 22;

 

61


  (c)

the Seller Guarantor shall not exercise any rights which it may have by reason of performance by it of the Seller Guaranteed Obligations to be indemnified by the Seller or to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Seller in respect of the Seller Guaranteed Obligations or of any other guarantee or security taken pursuant to, or in connection with, the Seller Guaranteed Obligations by the Buyer; and

 

  (d)

the Seller Guarantor shall not claim from the Seller any sums which may be owing to it from the Seller or have the benefit of any set-off or counter claim or proof against, or dividend, composition or payment by, the Seller other than in respect of an Exempted Amount.

 

22.8

The Seller Guarantor undertakes to hold any security taken from the Seller in connection with this guarantee in trust for the Buyer pending discharge in full of all the Seller Guarantor’s obligations under this Clause 22.

 

22.9

This guarantee is in addition to and is not in any way prejudiced by any other guarantee or security now or subsequently held by the Buyer.

 

23.

BUYER’S WARRANTIES AND UNDERTAKINGS

 

23.1

The Buyer warrants to the Seller as at the date of this Deed and as at Completion as if repeated immediately before Completion that:

 

  (a)

the Buyer is validly incorporated, in existence and duly registered under the laws of its country of incorporation;

 

  (b)

no (i) meeting has been convened, resolution proposed, petition presented or order made for its winding up; (ii) receiver, receiver and manager, provisional liquidator, liquidator, administrator or other officer of the court has been appointed in relation to any of its assets; or (iii) mortgagee has taken, attempted to take or indicated an intention to exercise its rights under any security of which it is the mortgagor or chargor;

 

  (c)

the Buyer has taken all necessary action and has all requisite power and authority to enter into and perform this Deed and the other Transaction Documents in accordance with their terms;

 

  (d)

this Deed and the other Transaction Documents constitute (or will constitute when executed) valid, legal and binding obligations on the Buyer in accordance with their terms;

 

  (e)

the execution and delivery of this Deed and the other Transaction Documents by the Buyer and the performance of and compliance with their terms and provisions will not conflict with or result in a breach of, or constitute a default under, the Buyer’s constitutional documents, any agreement or instrument to which the Buyer is a party or by which it is bound, or any Law, order or judgment that applies to or binds the Buyer or any of its property;

 

  (f)

no consent, action, approval or authorisation of, and no registration, declaration, notification or filing with or to, any Authority (other than the Regulatory Conditions) is required to be obtained, or made, by the Buyer to authorise the execution or performance of this Deed by the Buyer, and, in respect of the Regulatory Conditions, no Authority has indicated to the Buyer, its Affiliates or the Buyer’s or its Affiliates’ Representatives that its consent, approval or authorisation may not be provided, or may only be provided on a conditional basis (and such conditions are not standard conditions or not satisfactory to the Buyer), to enable the Buyer’s performance of this Deed;

 

62


  (g)

the Buyer has provided the Seller with a correct and complete copy of the Commitment Letter (including all exhibits, schedules, annexes, supplements and amendments to the Commitment Letter) and any fee letter related to the Commitment Letter (the “Fee Letter”) pursuant to which the Buyer Guarantor will have available funds, together with cash on hand, to meet its obligations under the Transaction Documents (such debt financing agreements together being the “Buyer Financing Agreements”) provided that such copy of the Fee Letter may be redacted with respect to fees, pricing caps and other economic terms to the extent such redacted terms do not adversely affect the availability of the Financing at Completion;

 

  (h)

each Buyer Financing Agreement is in full force and effect and has been executed by and is binding upon the Buyer Group members that are party to the Buyer Financing Agreements and, to the Buyer’s knowledge, all other parties to the Buyer Financing Agreements;

 

  (i)

there are no agreements, side letters or arrangements (other than the Buyer Financing Agreements and the fee letters related thereto) relating to the Financing that impose or permit the imposition of conditions precedent to the funding of the Financing on the Completion Date or would otherwise affect the availability of the Financing on the Completion Date;

 

  (j)

the Buyer has no reason to believe that any of the Financing Conditions contemplated by the Commitment Letter, and as will be contained in the Buyer Financing Agreements, will not be satisfied or that the Financing will not be made available to the Buyer on or prior to the Completion and the Buyer is not aware of the existence of any fact, matter or circumstance as of the date of this Deed that would reasonably be expected to cause such conditions to the Financing not to be satisfied and the Completion not to occur;

 

  (k)

the Buyer is not aware of any fact, matter, event or circumstance which is or could reasonably be expected to result in a Claim, and for the purposes of this Clause 23.1(k), the Buyer’s awareness means the extent to which the Buyer Deal Team Members are aware, or ought reasonably to have been aware after having made reasonable enquiries, as at the date of this Deed of such fact, matter, event or circumstance;

 

  (l)

the Buyer is not and no Buyer Group member nor any of their respective directors, officers, employees, agents, or representatives is engaged (in such capacity) in any conduct, activity or omission which would constitute material non-compliance with any Sanctions Law or Anticorruption Law; and

 

  (m)

the Buyer is not and no Buyer Group member nor any of their respective directors, officers, employees, agents or representatives (in such capacity):

 

  (i)

is or has been a Sanctioned Person;

 

  (ii)

is or has been in breach of any Sanctions Laws; or

 

63


  (iii)

has in the three years before the date of this Deed engaged in any transaction or dealing with any Sanctioned Person or with any Sanctioned Territory, but Clauses 23.1(l) and 23.1(m) will not apply if and to the extent that it is or would be unenforceable by reason of breach of any provision of the Council Regulation (EC) No 2271/96 of 22 November 1996, the Protecting against the Effects of the Extraterritorial Application of Third Country Legislation (Amendment) (EU Exit) Regulations 2020 (SI 2020/1660), any law or regulation implementing such regulations in any member state of the European Union or the United Kingdom, or any similar blocking or anti-boycott law.

 

23.2

The Buyer acknowledges and agrees that except in the case of fraud and without prejudice to any matter agreed in the Transaction Documents:

 

  (a)

it has no rights or remedies against and shall not bring or make any claim, proceeding, suit or action in connection with any of the transactions contemplated in any of the Transaction Documents against any Group Company or any Seller’s Affiliate, or each of their respective current or former directors, officers, employees, agents, consultants, advisers, auditors and accountants (each of whom shall be entitled to enforce this Clause 23.2(a) under the Contracts (Rights of Third Parties) Act 1999), and the Buyer irrevocably releases, waives, forfeits and / or extinguishes any such claim, proceeding, suit or action; and

 

  (b)

on and from Completion, no Group Company will have any rights or remedies against, or any basis for bringing any claim, proceeding, suit or action against, the Seller, its Affiliates or its or its Affiliates’ Connected Persons (each of which shall be entitled to enforce this Clause 23.2(b) under the Contracts (Rights of Third Parties) Act 1999), and with effect from Completion, the Buyer shall procure that no Group Company brings any such claim, proceeding, suit or action to the extent the Buyer has control of the Group Company.

 

23.3

With effect from Completion, to the maximum extent permitted by Law, the Buyer shall grant, and shall procure that each Group Company shall grant, a release and full discharge to all officers of the Group Companies that resign effective from Completion from all liabilities or obligations owed to a Group Company and shall procure that each Group Company shall waive all claims it has or may have against such persons in connection with his appointment as a director of, or employment with, or conduct in relation to, any Group Company (except in the case of fraud and without prejudice to any matter agreed in the Transaction Documents).

 

23.4

If the Buyer becomes aware that any of the Moranbah North Sellers has received notice of a ‘Demand’ in respect of a Moranbah North Entity or given a direction in respect of an ‘Other Tax Return’ under Schedule 8 of the Moranbah North SAPA, then the Buyer must immediately notify the Seller in writing and procure that the relevant Moranbah North Seller exercises its rights under Schedule 8 of the Moranbah North SAPA in respect of such ‘Demand’ in accordance with the Seller’s instructions and, if so requested by the Seller, allow the Seller to exercise such rights by dealing directly with the Moranbah North Buyer.

 

24.

BUYER GUARANTOR’S WARRANTIES AND UNDERTAKINGS

 

24.1

The Buyer Guarantor warrants to the Seller as at the date of this Deed and as at Completion as if repeated immediately before Completion that:

 

  (a)

the Buyer Guarantor is validly incorporated, in existence, in good standing and duly registered under the laws of its country of incorporation;

 

  (b)

no (i) meeting has been convened, resolution proposed, petition presented or order made for its winding up; (ii) receiver, receiver and manager, provisional liquidator, liquidator, administrator or other officer of the court has been appointed in relation to any of its assets; or (iii) mortgagee has taken, attempted to take or indicated an intention to exercise its rights under any security of which it is the mortgagor or chargor;

 

64


  (c)

neither Buyer nor Buyer Guarantor is entering into this Deed with the actual intent to hinder, delay or defraud either present or future creditors of any member of the Buyer Group. As of the date of this Deed and immediately after giving effect to the Transaction (including the payment of the Completion Payment), assuming the accuracy of the representations and warranties set forth in Clause 21.1:

 

  (i)

the amount of the “fair saleable value” of the assets of the Buyer Guarantor and its subsidiaries, taken as a whole, will exceed the amount that will be required to pay the probable liabilities (including contingent liabilities) of Buyer Guarantor and its subsidiaries, taken as a whole, as such liabilities become absolute and matured;

 

  (ii)

the assets of Buyer Guarantor, taken as a whole, at a fair valuation, will exceed their liabilities (including the probable amount of all contingent liabilities);

 

  (iii)

the Buyer Guarantor and its subsidiaries, taken as a whole, will not have an unreasonably small amount of capital for the operation of the businesses in which they are engaged or proposed to be engaged; and

 

  (iv)

Buyer Guarantor and its subsidiaries, taken as a whole, will not have incurred liabilities, including contingent and other liabilities, beyond their ability to pay such liabilities as they mature or become due;

 

  (d)

the Buyer Guarantor has taken all necessary action and has all requisite power and authority to enter into and perform this Deed, the other Transaction Documents and the Buyer Financing Agreements to which the Buyer Guarantor is a party in accordance with their terms;

 

  (e)

this Deed, the other Transaction Documents and the Buyer Financing Agreements to which the Buyer Guarantor is a party constitute (or will constitute when executed) valid, legal and binding obligations on the Buyer Guarantor in accordance with their terms;

 

  (f)

the execution and delivery of this Deed, the other Transaction Documents and the Buyer Financing Agreements to which the Buyer Guarantor is a party by the Buyer Guarantor and the performance of and compliance with their terms and provisions will not conflict with or result in a breach of, or constitute a default under, the Buyer Guarantor’s constitutional documents, any agreement or instrument to which the Buyer Guarantor is a party or by which it is bound, or any Law, order or judgment that applies to or binds the Buyer Guarantor or any of its property;

 

  (g)

no consent, action, approval or authorisation of, and no registration, declaration, notification or filing with or to, any Authority (other than the Regulatory Conditions) is required to be obtained, or made, by the Buyer Guarantor to authorise the execution or performance of this Deed by the Buyer Guarantor, and, in respect of the Regulatory Conditions, no Authority has indicated to the Buyer Guarantor, its Affiliates or the Buyer Guarantor’s or its Affiliates’ Representatives that its consent, approval or authorisation may not be provided, or may only be provided on a conditional basis (and such conditions are not standard conditions or not satisfactory to the Buyer Guarantor), to enable the Buyer Guarantor’s performance of this Deed;

 

65


  (h)

the Buyer Guarantor is not and no Buyer Group member (excluding the Moranbah North Entities) nor any of their respective directors, officers, employees, agents, or representatives is engaged (in such capacity) in any conduct, activity or omission which would constitute material non-compliance with any Sanctions Law or Anticorruption Law;

 

  (i)

the Buyer Guarantor is not and no Buyer Group member (excluding the Moranbah North Entities) nor any of their respective directors, officers, employees, agents or representatives (in such capacity):

 

  (i)

is or has been a Sanctioned Person;

 

  (ii)

is or has been in breach of any Sanctions Laws; or

 

  (iii)

has in the three years before the date of this Deed engaged in any transaction or dealing with any Sanctioned Person or with any Sanctioned Territory,

but Clauses 24.1(h) and 24.1(i) will not apply if and to the extent that it is or would be unenforceable by reason of breach of any provision of the Council Regulation (EC) No 2271/96 of 22 November 1996, the Protecting against the Effects of the Extraterritorial Application of Third Country Legislation (Amendment) (EU Exit) Regulations 2020 (SI 2020/1660), any law or regulation implementing such regulations in any member state of the European Union or the United Kingdom, or any similar blocking or anti-boycott law; and

 

  (j)

the Buyer Guarantor is not aware of any condition or circumstance that would prevent, hinder or delay its ability to wire or transfer at Completion the proceeds of the Financing to the bank account designated for such purpose by the Seller in accordance with this Deed.

 

24.2

The Buyer Guarantor irrevocably and unconditionally:

 

  (a)

guarantees, as a primary obligation to the Seller, the due and punctual performance by the Buyer of all the Guaranteed Obligations in accordance with this Clause 24;

 

  (b)

undertakes to the Seller that:

 

  (i)

whenever the Buyer does not pay any amount when due under or in connection with the Guaranteed Obligations, it shall immediately on demand and without deduction or withholding pay that amount as if the Buyer Guarantor was the principal obligor; and

 

  (ii)

whenever the Buyer fails to perform any other Guaranteed Obligation, it shall immediately on demand perform (or procure the performance of) and satisfy (or procure the satisfaction of) that Guaranteed Obligation,

so that the same benefits are conferred on the Seller as it would have received if such Guaranteed Obligations had been performed and satisfied by the Buyer; and

 

  (c)

indemnifies each Indemnified Party on demand (on a dollar for dollar basis) against all Liabilities which the Seller may suffer or incur (whether directly or indirectly) as a result of any claim relating to:

 

  (i)

the failure of the Buyer to perform any of the Guaranteed Obligations; or

 

  (ii)

any Guaranteed Obligation becoming unenforceable, invalid or illegal.

 

66


24.3

The guarantee in Clause 24.2 is a continuing guarantee and will extend to the ultimate balance of sums payable by the Buyer in respect of the Guaranteed Obligations, regardless of any intermediate payment or discharge in whole or in part.

 

24.4

The Buyer Guarantor will:

 

  (a)

maintain the Buyer Financing Agreements in full force and effect and, except for amendments, modifications, restatements or other changes made to any Buyer Financing Agreement that would not materially adversely affect the Buyer’s and Buyer Guarantor’s ability to satisfy their obligations under the Transaction Documents (and any change which causes the conditionality of any Buyer Financing Agreement to become more onerous or affects the ability of the Buyer Guarantor to enforce its rights against the Financing Sources will be regarded as materially adversely affecting the Buyer’s and Buyer Guarantor’s ability to satisfy their obligations under the Transaction Documents), without the prior written consent of Seller agree to, or permit, any amendment, restatement, amendment and restatement, replacement, supplement, or other modification of, or waiver or consent under, the Buyer Financing Agreements or other documentation relating to the Financing, and not do any act or take any step or omit to do any act or take any step that would in any way:

 

  (i)

reduce the aggregate amount of the Financing committed and available to be drawn by the Buyer Guarantor under the Buyer Financing Agreements;

 

  (ii)

reduce the period for which funds are available to be drawn by the Buyer Guarantor;

 

  (iii)

otherwise materially adversely affect the Buyer Guarantor’s ability to draw funds under the Buyer Financing Agreements on the Completion Date sufficient to enable the Buyer and Buyer Guarantor to meet their obligations under the Transaction Documents and pay all fees and expenses required to be paid in connection with such Financing; or

 

  (iv)

breach the obligations of Buyer Guarantor under the Buyer Financing Agreements or definitive financing documentation with respect thereto;

 

  (b)

keep the Seller reasonably informed of all material developments in respect of the Buyer Financing Agreements (including, without limitation, any proposed amendments or waivers in respect of the Buyer Financing Agreements and provide the Seller with copies of any such amendments or waivers);

 

  (c)

give the Seller prompt written notice of:

 

  (i)

any material breach or default by any party to the Buyer Financing Agreements or definitive document related to the Financing; or

 

  (ii)

the receipt of any written notice from any Financing Source with respect to any:

 

  (A)

actual default, termination or repudiation by any party to the Buyer Financing Agreements or any definitive document related to the Financing, or any provisions of the Buyer Financing Agreements or any definitive document related to the Financing; or

 

67


  (B)

material dispute or disagreement between or among any parties to the Buyer Financing Agreements or any definitive document related to the Financing,

that would adversely impact or delay in any material respect the ability of the Buyer to consummate the Transaction;

 

  (d)

upon written request of Seller, inform Seller on a reasonably current basis of the status of its efforts to arrange the Financing contemplated by the Buyer Financing Agreements and to satisfy the conditions thereof, including, upon written request of Seller, advising and updating Seller and its counsel, in a reasonable level of detail, with respect to status, proposed closing date and material terms of the definitive documentation related to the Financing, providing copies of then current drafts of the credit agreement, indenture, offering memorandum and other primary definitive documents, once drafting of such documentation is sufficiently advanced;

 

  (e)

take all action reasonably necessary to satisfy on a timely basis the conditions precedent to the Financing on or prior to the Completion and to draw such amounts as it requires under the Buyer Financing Agreements on the Completion Date sufficient, together with such other contemplated sources, for the Buyer and Buyer Guarantor to meet their obligations under the Transaction Documents and all fees and expenses required to be paid in connection with such financing;

 

  (f)

promptly following the date of this Deed, engage PNC Bank, National Association (“PNC”) to seek an amendment (the “Buyer Revolver Amendment”) to that certain Credit Agreement dated 18 January 2024, by and among the Buyer Guarantor as borrower, PNC as administrative agent, and the other financial institutions parties as lenders (the “Buyer Revolving Credit Agreement”) (such amendment to be executed by the parties required to execute such amendment pursuant to Section 11.1 of the Buyer Revolving Credit Agreement) to permit the Transaction, provided that:

 

  (i)

upon execution of the Buyer Revolver Amendment, the Buyer Guarantor will deliver a copy of the same to the Seller; and

 

  (ii)

if the Buyer Guarantor determines that the Buyer Revolver Amendment will not be executed on or prior to the Completion Date, then the Buyer Guarantor will:

 

  (A)

notify the Seller in writing of the same; and

 

  (B)

deliver to Seller:

 

  (I)

prior to Completion, draft payoff and release documentation of the type required by paragraph 10(iii) of Annex C to the Buyer Financing Agreement (the “Buyer Revolver Payoff Documentation”); and

 

  (II)

at Completion, copies of the Buyer Revolver Payoff Documentation executed by PNC (and any other applicable person) that is full force and effect as of the Completion Date; and

 

 

68


  (g)

if the Buyer Financing Agreements terminate or any portion of the Financing required to complete the Transaction becomes unavailable:

 

  (i)

promptly notify the Seller in writing of such unavailability and the reason for such unavailability; and

 

  (ii)

use reasonable best efforts to arrange and obtain, as promptly as practicable following the occurrence of such event, alternative financing for any such unavailable portion from the same or alternative sources (the “Alternative Financing”) in an amount sufficient, when taken together with the available portion of the Financing and other sources of cash available to Buyer, to consummate the Transaction and to pay the Completion Payment and other amounts contemplated by this Deed;

 

  (iii)

use best efforts to cause the Alternative Financing to not include any conditions to its consummation that are materially more onerous than those in the Buyer Financing Agreements as of the date of this Deed or would reasonably be expected to prevent, materially delay or materially impede Completion;

 

  (iv)

deliver to Seller true, correct and complete copies of all contracts or other arrangements pursuant to which any alternative financing source shall have committed to provide any portion of the Alternative Financing (provided that any fee letters in connection therewith may be redacted in a manner consistent with the Fee Letter provided as of the date of this Deed),

provided that, the Buyer Guarantor will not be required to obtain any Alternative Financing on terms and conditions that are less favourable in the aggregate or in any material respect, than the terms and conditions in the Buyer Financing Agreement. Compliance by the Buyer Guarantor with this Clause 24.4(g) will not relieve the Buyer of its obligations to consummate the Transaction whether or not the Financing or any Alternative Financing is available. To the extent the Buyer Guarantor obtains Alternative Financing or amends, replaces, supplements, terminates, modifies or waives any of the Financing, in each case pursuant to this Clause 24.4, references to the “Financing,” “Financing Sources,” “Buyer Financing Agreement” and other like terms in this Deed shall be deemed to refer to such Alternative Financing, the commitments under the Alternative Financing and the agreements with respect to the Alternative Financing, or the Financing, as so amended, replaced, supplemented, terminated, modified or waived; and

 

  (h)

to the extent that the Financing is not capable of being drawn on or prior to the Completion Date as a result of a failure of any Financing Source or other relevant counterparty to perform its obligations under the Buyer Financing Agreements, take all such actions (or procure that such action is taken) as is necessary to enforce its or any other Buyer Group member’s rights against such Financing Source or counterparty under the Buyer Financing Agreements.

 

24.5

If any payment by the Buyer and / or the Buyer Guarantor or any discharge of any obligations of the Buyer and / or the Buyer Guarantor or any security for those obligations or otherwise is avoided or reduced because of insolvency or any similar event:

 

  (a)

the liability of the Buyer and the Buyer Guarantor will continue as if the payment discharge, avoidance or reduction had not occurred; and

 

  (b)

the Seller will be entitled to recover the value or amount of that security or payment from the Buyer Guarantor as if the payment, discharge, avoidance or reduction had not occurred.

 

69


24.6

The obligations of the Buyer Guarantor under this Clause 24 will not be affected by any act, omission, matter or thing which, but for this Clause 24.6, would reduce, release or prejudice any of its obligations under this Clause 24 (whether or not known to the Buyer, the Buyer Guarantor, the Seller or the Seller Guarantor) including:

 

  (a)

any time, waiver or consent granted to, or composition with, the Buyer or any other person;

 

  (b)

the release of the Buyer or any other person under the terms of any composition or arrangement with any creditor;

 

  (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, the Buyer 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;

 

  (d)

any incapacity or lack of power, authority or legal personality of or dissolution, amalgamation, reconstruction or change in the members or status of the Seller or any other person;

 

  (e)

any amendment (however fundamental) or replacement of any of the Guaranteed Obligations or any other document or security;

 

  (f)

any unenforceability, illegality or invalidity of any obligation of any person under this Deed or any other document or security; or

 

  (g)

any insolvency or similar proceedings.

 

24.7

The Buyer Guarantor waives any right it may have of first requiring the Seller to proceed against or enforce any other rights or security or claim payment from any person before claiming from the Buyer Guarantor under this Clause 24. This waiver applies irrespective of any law or any provision of this Deed to the contrary.

 

24.8

Until all amounts which may be or become payable by the Buyer under or in connection with the Guaranteed Obligations have been irrevocably paid in full:

 

  (a)

the Seller may refrain from applying or enforcing any other money, security or rights held or received by the Seller 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 the Buyer Guarantor shall not be entitled to the benefit of the same;

 

  (b)

the Seller may hold in an interest-bearing suspense account any money received from the Buyer Guarantor or on account of the Buyer Guarantor’s liability under this Clause 24;

 

  (c)

the Buyer Guarantor shall not exercise any rights which it may have by reason of performance by it of the Guaranteed Obligations to be indemnified by the Buyer or to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Buyer in respect of the Guaranteed Obligations or of any other guarantee or security taken pursuant to, or in connection with, the Guaranteed Obligations by the Seller; and

 

  (d)

the Buyer Guarantor shall not claim from the Buyer any sums which may be owing to it from the Buyer or have the benefit of any set-off or counter claim or proof against, or dividend, composition or payment by, the Buyer.

 

70


24.9

The Buyer Guarantor undertakes to hold any security taken from the Buyer in connection with this guarantee in trust for the Seller pending discharge in full of all the Buyer Guarantors’ obligations under this Clause 24.

 

24.10

This guarantee is in addition to and is not in any way prejudiced by any other guarantee or security now or subsequently held by the Seller.

 

25.

BUYER INDEMNITIES

 

25.1

To the maximum extent permitted by Law, and without limiting any other provision of this Deed, any other Transaction Document or any deed or agreement of novation, assumption or assignment in connection with this Deed or any other Transaction Document, on and from Completion, the Buyer:

 

  (a)

shall assume responsibility for and fully satisfy all Assumed Liabilities;

 

  (b)

shall indemnify each Indemnified Party on demand (on a dollar for dollar basis) against all Liabilities arising (whether arising before, on or after the Completion Date and regardless of whether arising due to an Indemnified Party’s negligence or breach of duty (statutory or otherwise) and / or Seller Group Representatives) in connection with all Assumed Liabilities (including for any claims), except to the extent that any such Liability is actually recovered by the Indemnified Party under an insurance policy held by a Seller Group member as at the date of this Deed;

 

  (c)

releases the Indemnified Parties from all Liabilities which may arise or be incurred or sustained by the Buyer or any Buyer’s Affiliate or Buyer Group member from time to time or any of its or their officers, employees or agents and all claims which may be made against an Indemnified Party in relation to the Assumed Liabilities; and

 

  (d)

shall comply with, perform or otherwise satisfy all Assumed Liabilities, including all Environmental Obligations, including as requested by an Indemnified Party,

provided that, without limiting Clause 27 and without double counting, the Seller undertakes to the Buyer that promptly following the receipt by any Indemnified Party of any proceeds under an insurance policy held by a Seller Group member as at the date of this Deed in respect of an Assumed Liability assumed by the Buyer pursuant to Clauses 25.1(a), 25.1(c) or (d) (an “Assumed Liability Insurance Amount”), it shall, within five Business Days of receipt, procure that an amount equal to such Assumed Liability Insurance Amount in full and without any set-off or deduction under this Deed, any other Transaction Document or otherwise is transferred to the Buyer’s Bank Account on a dollar for dollar basis but excluding any amounts identifiably taken into account in Cash, Debt or Working Capital for the purpose of determining the Completion Accounts.

 

25.2

The Seller holds on trust for each other Indemnified Party the benefit of Clause 25.1 to the extent that such provisions apply to those Indemnified Parties and, without derogating from any right of those Indemnified Parties to enforce those clauses, is entitled to enforce these clauses on behalf of those Indemnified Parties.

 

26.

SELLER INDEMNITIES

To the maximum extent permitted by Law, and without limiting any other provision of this Deed, any other Transaction Document or any deed or agreement of novation, assumption or assignment in connection with this Deed or any other Transaction Document, on and from Completion, the Seller shall indemnify each Buyer Group member on demand (on a dollar for dollar basis) against all Liabilities arising out of or in connection with [***], except to the extent that such Liabilities are accounted for in the Completion Accounts.

 

71


27.

INSURANCE

 

27.1

The Seller shall, and shall procure that its Affiliates shall, maintain in force all existing third-party insurance policies (in all material respects on the same terms and similar level of cover prevailing at the date of this Deed) for the benefit of the Group Companies until the Completion Date or earlier termination of this Deed (“Existing Insurance Policies”), save that the Seller or the Seller Group may amend the insurance policies maintained for the benefit of the Group Companies if such amended policies are substantially the same as those generally applicable to the Anglo American plc group as a whole.

 

27.2

The Seller shall, and shall procure that its Affiliates or relevant Group Companies, make all claims under the Existing Insurance Policies in relation to the Group Companies’ claims covered by such policies in relation to the period after the date of this Deed until the Completion Date (or earlier termination of this Deed) at the Seller’s cost or the Group Companies’ promptly and in accordance with the requirements of the relevant policy.

 

27.3

The Buyer agrees that, following the Completion Date:

 

  (a)

the Seller will not be required to maintain the Existing Insurance Policies;

 

  (b)

if the Seller continues to maintain the Existing Insurance Policies, neither the Buyer nor any of the Group Companies will be entitled to benefit from such policies;

 

  (c)

any amount received by the Group Companies in respect of a refund of insurance premiums paid by the Seller in relation to the Group Companies in respect of periods after the Completion Date (a “Premium Refund”) is to be held by the Group Companies for the benefit of the Seller; and

 

  (d)

it will procure replacement insurance policies in relation to the Group Companies and the Joint Ventures.

 

27.4

For the purposes of Clause 27.3(c), the parties acknowledge that, if:

 

  (a)

any amount is received by the Group Companies in respect of any Premium Refund before Completion, unless such amount has been included in the Completion Accounts, the Group Companies shall pay those amounts (after adjustment for any Tax payable or any Tax benefit receivable by the Group) to the Seller; and

 

72


  (b)

any amount is received by the Group Companies in respect of any Premium Refund after Completion, the Buyer shall procure that those amounts (after adjustment for any Tax paid or any Tax benefit received by the Group Companies) are promptly paid by the Group Companies to the Seller after receipt by the Group Companies of such amount.

 

27.5

Each party acknowledges and agrees that:

 

  (a)

the Seller will be entitled to benefit from the proceeds of any insurance claim in relation to the period before the Completion Date in respect of circumstances arising before the Completion Date in relation to the Group Companies, including any proceeds of such claim that relates to periods after the Completion Date (“Pre-Completion Date Claim”), and the Seller and the Group Companies may (at the Seller’s cost) make and continue to pursue the Pre-Completion Date Claim after the Completion Date in the name of the Group Companies; and

 

  (b)

the Buyer shall co-operate fully with the Seller after the Completion Date in respect of any Pre-Completion Date Claim, including procuring that the Group Companies give all assistance requested by the Seller (at the Seller’s cost) (including the provision of information and the execution of documents, including the assignment of the benefit of any Pre-Completion Date Claim) to enable the Seller to recover in full under the Pre-Completion Date Claim; and

 

  (c)

in respect of circumstances arising after the Completion Date in relation to the Group Companies:

 

  (i)

the Seller will be entitled to benefit from the proceeds of any insurance claim in relation to the period before the Completion Date; and

 

  (ii)

subject to Clause 20.1, the Buyer will be entitled to benefit from the proceeds of any insurance claim in relation to the period after the Completion Date.

 

28.

EMPLOYEES

 

28.1

Subject to Clause 28.2, the Buyer undertakes to the Seller that it will procure that any Employee that is made redundant from any Group Company in the period commencing on Completion and ending 12 months after Completion will receive at least those amounts that would have been owed to such Employee on redundancy as calculated in accordance with document 08.02.10.01.01 in the Data Room.

 

28.2

Notwithstanding any of the foregoing to the contrary, Clause 28.1 shall not operate to duplicate any Entitlements owed to any Employee and shall not impose an obligation on the Buyer to continue or offer employment to any employee or limit the right of the Buyer to terminate the employment of, or to reassign or otherwise alter the status of, any employee of the Group after the Completion Date, or to change in any manner the terms and conditions of his or her employment or other service to or engagement by the Group.

 

29.

TAX COVENANT

The provisions of Schedule 8 apply with effect from Completion.

 

73


30.

CONFIDENTIALITY AND ANNOUNCEMENTS

 

30.1

Subject to Clauses 30.3 and 30.6, each party:

 

  (a)

shall treat, and shall procure that each of its Affiliates shall treat, as strictly confidential:

 

  (i)

the provisions of this Deed and the other Transaction Documents (including the identities of the parties to such agreements), their subject matter, any documents referred to in them, and the process of their negotiation;

 

  (ii)

in the case of the Seller or the Seller Guarantor, any information received or held by the Seller, the Seller Guarantor, or any of their respective Representatives which relates to the Buyer Group; and

 

  (iii)

in the case of the Buyer or the Buyer Guarantor, any information directly or indirectly received or held by the Buyer, the Buyer Guarantor, or any of their respective Representatives which relates to the Seller Group,

(together “Confidential Information”); and

 

  (b)

shall not, and shall procure that its Affiliates shall not, except with the written consent of the party to whom the Confidential Information relates (which shall not be unreasonably withheld, delayed or conditioned), make use of (except for the purposes of performing its obligations or exercising its rights under this Deed or any other Transaction Document) or disclose to any person (other than its Representatives in accordance with Clause 30.2) any Confidential Information,

and for the purposes of this Clause 30, the term “Affiliates” includes the Group Companies with respect to the Seller before Completion and with respect to the Buyer after Completion.

 

30.2

Each party undertakes that it shall, and it shall procure that its Affiliates shall, only disclose Confidential Information to its Representatives where:

 

  (a)

it is reasonably required for the purposes of performing its obligations or exercising its rights under this Deed or any other Transaction Document (including in respect of the Pre-emption Rights); or

 

  (b)

it is reasonably required for the purposes of refinancing any financing put in place and / or obtaining financing to enable the Buyer to perform its obligations under this Deed or any other Transaction Document,

only where such recipients are informed of the confidential nature of the Confidential Information and the provisions of this Clause 30 and instructed to comply with this Clause 30 as if they were a party to it.

 

30.3

The Seller may disclose Confidential Information to any Joint Venture Participant if such Joint Venture Participant is informed of the confidential nature of the Confidential Information and the provisions of this Clause 30 and instructed to comply with this Clause 30 as if they were a party to it.

 

30.4

Subject to Clauses 30.5 and 30.6, each party shall not (and shall procure that its Affiliates shall not) make any announcement (including any communication to the public, to any customers, suppliers or employees of any Group Company) concerning the subject matter of this Deed without the other parties’ written consent (which shall not be unreasonably withheld or delayed).

 

74


30.5

As soon as practicable after each of the date of this Deed and Completion the Seller and the Buyer:

 

  (a)

may make individual announcements regarding the Transaction; and / or

 

  (b)

shall procure that a joint announcement of the Transaction is made,

in each case by way of press release in Agreed Form.

 

30.6

Clauses 30.1, 30.2 and 30.3 will not apply if and to the extent that the party using or disclosing Confidential Information or making such announcement can demonstrate that:

 

  (a)

such disclosure or announcement is required by Law or by any Authority (including, for the avoidance of doubt, any Tax Authority) having applicable jurisdiction, the rules of a Stock Exchange or the securities laws of the United States of America;

 

  (b)

such disclosure is required for the purposes of the transactions contemplated by the Transaction Documents or the Jellinbah SPA (including any arbitral or judicial proceedings arising out of any of the Transaction Documents or the Jellinbah SPA);

 

  (c)

such disclosure is required for the purposes or the preparation of, or to be included within any accounts, financial statements and / or the tax returns or other submissions to or communications with any Tax Authority in connection with the tax affairs of the disclosing party or its Affiliate;

 

  (d)

such disclosure or announcement is required to facilitate any assignment or proposed assignment of the whole or any part of the rights or benefits under this Deed which is permitted by Clause 39; or

 

  (e)

the Confidential Information concerned has come into the public domain other than through that party’s fault (or that of its Representatives) or the fault of any person to whom such Confidential Information has been disclosed in accordance with this Clause 30.6.

 

30.7

Notwithstanding anything to the contrary contained in this Deed, the Buyer Group and its respective Representatives may disclose any information relating to the Seller or the transactions contemplated by the Transaction Documents to any Financing Sources or rating agencies (in each case, without any obligation on the part of the Financing Sources or rating agencies to comply with the terms of this clause) so long as:

 

  (a)

in the case of any Financing Source, such Financing Source is subject to confidentiality undertakings set forth in the Commitment Letter or that are at least as restrictive as those to the Financing Sources under the Commitment Letter; or

 

  (b)

in the case of any rating agency, such rating agency is subject to customary confidentiality undertakings with respect to dissemination of such information to such rating agency.

 

30.8

The provisions of this Clause 30 will survive termination of this Deed or Completion and will continue for a period of five years from the date of this Deed.

 

31.

TERMINATION

 

31.1

Written notice to terminate this Deed may be given:

 

  (a)

in accordance with Clause 4.2;

 

75


  (b)

in accordance with Clause 9.12;

 

  (c)

in accordance with Clauses 13.5 or 13.6; or

 

  (d)

in accordance with Clause 14.8(c).

 

31.2

If:

 

  (a)

neither the Call Option nor the Put Option has been validly exercised during the Call Option Exercise Period or the Put Option Exercise Period, respectively, this Deed will cease to have effect the day immediately following the end of the Put Option Exercise Period;

 

  (b)

notice of termination is given in accordance with Clause 31.1, this Deed will cease to have effect immediately upon delivery of such notice of termination; or

 

  (c)

the Moranbah North SAPA is terminated in accordance with clause 34.1 of the Moranbah North SAPA, this Deed will cease to have effect immediately upon such termination,

except that the Surviving Provisions and any rights or liabilities that have accrued before that time will continue in full force and effect, and the Buyer shall, and shall procure that its Representatives shall, immediately return to the Company all Confidential Information without keeping any copies of the Confidential Information, destroy all information and documentation derived from the Confidential Information and expunge all Confidential Information from any computer or other device.

 

32.

GST

 

32.1

In this Clause 32:

 

  (a)

unless the context requires otherwise, words or expressions used in this Clause 32 which are defined in the GST Act have the same meaning in this Clause;

 

  (b)

any part of a supply that is treated as a separate supply for the purposes of the GST Act (including for the purpose of attributing GST payable to tax periods) will be treated accordingly; and

 

  (c)

a reference to GST payable by, or input tax credit entitlement of, a party includes any GST payable by or input tax credit entitlement of the representative member of any GST Group of which that party is a member.

 

32.2

Any consideration payable or to be provided for a supply made under or in connection with this Deed, unless specifically described in this Deed as inclusive of GST, does not include any amount on account of GST.

 

32.3

Subject to Clause 32.4, if a party (“Supplier”) makes a supply under or in connection with this Deed on which GST is payable:

 

  (a)

the consideration payable or to be provided for that supply under this Deed, but for the application of this Clause, (“GST exclusive consideration”) is increased by, and the recipient of the supply (“Recipient”) must also pay to the Supplier, an amount equal to the GST payable on the supply (“GST Amount”); and

 

  (b)

subject to Clause 32.5, the GST Amount must be paid by the Recipient to the Supplier without set-off, deduction or requirement for demand, at the same time as any part of the GST exclusive consideration is first payable or to be provided.

 

76


32.4

Clause 32.3 does not apply to the extent that either:

 

  (a)

the consideration payable or to be provided for the supply is expressly described in this Deed as inclusive of GST; or

 

  (b)

the supply is subject to reverse charge pursuant to Division 84 of the GST Act.

 

32.5

The Recipient need not pay the GST Amount until the Supplier has given the Recipient, or other entity as permitted by the GST Act, a tax invoice for the supply to which the payment relates.

 

32.6

If a payment to a party under this Deed is a reimbursement or indemnification, calculated by reference to a loss, cost or expense incurred by that party, the payment will be reduced by the amount of any input tax credit to which that party is entitled in respect of the acquisition to which that loss, cost or expense relates.

 

32.7

If the GST payable by a Supplier on any supply made under or in connection with this Deed varies from the GST Amount paid or payable by the Recipient under Clause 32.3, the Supplier will provide a corresponding refund or credit to, or will be entitled to receive the amount of that variation from, the Recipient. If an adjustment event occurs in relation to a supply, the Supplier must issue an adjustment note to the Recipient for that supply within 10 Business Days of becoming aware of the adjustment event.

 

32.8

This Clause 32 will survive Completion.

 

33.

FURTHER ASSURANCE

For a period of 12 months from the Completion Date, each party shall execute and deliver or procure the execution and delivery of all such documents and shall do all such things as the other parties may reasonably require (and at the cost of such other parties) for the purpose of giving full effect to the provisions of this Deed and to secure for each party the full benefit of the rights, powers and remedies conferred upon it under this Deed.

 

34.

POWER OF ATTORNEY

 

34.1

From Completion and for so long after Completion as the Seller remains the registered holder of any Shares, the Seller shall appoint the Buyer to be its lawful attorney to exercise all rights in relation to all such Shares as the Buyer in its absolute discretion sees fit.

 

34.2

The power of attorney given in Clause 34.1 is irrevocable, save with the Buyer’s written consent, and is given by way of security to secure the Buyer’s proprietary interest as the Buyer of the relevant Shares but will expire on the date on which the Buyer is entered in the register of members of the Company as holder of the relevant Shares.

 

34.3

For so long as the power of attorney given in Clause 34.1 remains in force, the Seller shall:

 

  (a)

not exercise any rights which attach to the relevant Shares or are exercisable in its capacity as registered holder of the relevant Shares without the Buyer’s written consent;

 

  (b)

hold on trust for the Buyer all dividends and other distributions of profits or assets received by the Seller in respect of the relevant Shares and promptly notify the Buyer as attorney of anything received by the Seller in its capacity as registered holder of the relevant Shares;

 

77


  (c)

act promptly in accordance with the Buyer’s instructions in relation to any rights exercisable or anything received by it in its capacity as registered holder of the relevant Shares; and

 

  (d)

ratify whatever the Buyer may do as attorney in its name or on its behalf in exercising the powers contained in this Clause 34.3.

 

34.4

Nothing in this Clause 34 will require the Seller to take any action (or require it to omit to take any action) that would breach any applicable Law.

 

35.

ENTIRE AGREEMENT AND REMEDIES

 

35.1

This Deed and the other Transaction Documents together set out the entire agreement between the parties relating to the subject matter of this Deed and the matters described in the other Transaction Documents and, save to the extent expressly set out in this Deed or any other Transaction Document, supersede and extinguish any prior drafts, agreements, undertakings, representations, warranties, promises, assurances and arrangements of any nature, whether in writing, relating to this Deed and the other Transaction Documents.

 

35.2

Each party acknowledges and agrees that in entering into this Deed and the Transaction Documents it has not relied and is not relying on, and will have no claim or remedy in respect of, any statement, representation, warranty, undertaking, assurance, promise, understanding or other provision made, whether by a party to this Deed or not, whether written or oral, express or implied and whether negligently or innocently made, which is not expressly set out in this Deed or any other Transaction Document.

 

35.3

Save as expressly set out in this Deed or any other Transaction Document, to the extent permitted by Law, the only right or remedy of any party in relation to any statement, representation, warranty, undertaking, assurance, promise, understanding or other provision set out in this Deed or any other Transaction Document will be for breach of this Deed or the relevant Transaction Document to the exclusion of all other rights and remedies (including those in tort or arising under statute). Save as expressly set out in this Deed, no party will be entitled to rescind or terminate this Deed in any circumstances at any time, whether before or after Completion, and each party waives any rights of rescission or termination it may have.

 

35.4

If there is any conflict between the terms of this Deed and any other agreement, this Deed will prevail (as between the parties to this Deed and as between the Seller and any of its Affiliates and any members of the Buyer Group) unless:

 

  (a)

such other agreement expressly states that it overrides this Deed in the relevant respect; and

 

  (b)

the Seller, the Seller Guarantor, the Buyer and the Buyer Guarantor are either also parties to that other agreement or otherwise agree in writing that such other agreement will override this Deed in that respect.

 

35.5

This Clause 35 will not exclude any liability for or remedy in respect of fraud.

 

36.

POST-COMPLETION EFFECT OF AGREEMENT

Notwithstanding Completion, each provision of this Deed and any other Transaction Document not performed at or before Completion, but which remains capable of performance will remain in full force and effect and, except as otherwise expressly provided, without limit in time.

 

78


37.

WAIVER AND VARIATION

 

37.1

A failure or delay by a party to exercise any right or remedy provided under this Deed or by Law, whether by conduct or otherwise, will not constitute a waiver of that or any other right or remedy, nor will it preclude or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this Deed or by Law, whether by conduct or otherwise, will preclude or restrict the further exercise of that or any other right or remedy.

 

37.2

A waiver of any right or remedy under this Deed will only be effective if given in writing and will not be deemed a waiver of any subsequent breach or default.

 

37.3

A party that waives a right or remedy provided under this Deed or by Law in relation to another party does not affect its rights in relation to any other party.

 

37.4

No amendment of this Deed will be valid unless it is in writing and duly executed by or on behalf of the Buyer, the Buyer Guarantor, the Seller and the Seller Guarantor. Unless agreed, no amendment will constitute a general waiver of any provision of this Deed, nor will it affect any rights or obligations under or pursuant to this Deed which have already accrued up to the date of amendment and the rights and obligations under or pursuant to this Deed will remain in full force and effect except and only to the extent that they are varied or amended.

 

38.

INVALIDITY

Where any provision of this Deed is or becomes illegal, invalid or unenforceable in any respect under the Laws of any jurisdiction such provision will be deemed to be severed from this Deed and, if possible, replaced with a lawful provision which, as closely as possible, gives effect to the intention of the parties under this Deed and, where permissible, that will not affect or impair the legality, validity or enforceability in that, or any other, jurisdiction of any other provision of this Deed.

 

39.

ASSIGNMENT

 

39.1

Subject to Clause 39.2, except as the parties specifically agree in writing, a person may only assign, transfer, charge or otherwise deal with any of its rights under this Deed (including to grant, declare, create or dispose of any right or interest in it) with the other parties’ written consent.

 

39.2

On and after Completion, the Buyer may assign its rights under this Deed and the Transaction Documents to any of its lenders or any agent acting on behalf of such lenders as security for the Buyer’s (or its Affiliates’) obligations to such lenders, provided that such assignment shall not release the Buyer or the Buyer Guarantor from their respective obligations under this Deed or the Transaction Documents.

 

39.3

Any assignment made pursuant to Clause 39.2 shall be on the basis that:

 

  (a)

the Seller may discharge its obligations under this Deed to the Buyer until it receives notice of the assignment;

 

  (b)

the liability of the Seller and the Seller Guarantor to any assignee shall not be greater than its liability to the Buyer; and

 

  (c)

the assignment shall not result in any other Taxes, costs or expenses for which the Seller, the Seller Guarantor or its direct or indirect owners would be responsible.

 

79


39.4

This Deed will be binding on and continue for the benefit of the successors and assignees of each party.

 

40.

PAYMENTS, SET-OFF AND DEFAULT INTEREST

 

40.1

Except as otherwise provided in this Deed, any payment to be made pursuant to this Deed by the Buyer or the Buyer Guarantor to the Seller or the Seller Guarantor must be made to the Seller’s Bank Account, and any payment to be made pursuant to this Deed by the Seller or the Seller Guarantor to the Buyer or the Buyer Guarantor must be made to the Buyer’s Bank Account, in each case by way of electronic transfer in immediately available funds on or before the due date for payment. Receipt of such sum in such account on or before the due date for payment will discharge the payer of its obligation to make such payment.

 

40.2

Subject to Clauses 40.3 and 8, all payments made by any party under this Deed, or any other Transaction Document, must be made free from any set-off, counterclaim or other deduction or withholding of any nature, except for deductions or withholdings required to be made by Law. If any such deductions or withholdings are required by Law to be made from such payments for or on account of Tax (other than any payments of interest or an amount permitted to be withheld by the Buyer under Clause 8), the amount of the payment must be increased by such amount as will, after the deduction or withholding has been made, leave the recipient of the payment with the same amount as it would have been entitled to receive in the absence of any such requirement to make a deduction or withholding.

 

40.3

If, following the payment of an additional amount under Clause 40.2, the recipient of the increased payment subsequently obtains any Relief on account of such deduction or withholding, the recipient shall pay to the payer of the increased payment such amount (not exceeding the amount of the Relief) that the recipient shall determine (acting reasonably) will leave it in no better or worse position than it would have been in had no withholding or deduction been required to be made.

 

40.4

If any sum payable under this Deed (other than any payment of interest or the Consideration) is subject to Tax in the hands of the recipient (or would be subject to Tax but for the availability of a Relief), the payor shall pay such additional amount as will ensure that the net amount received by the recipient (after giving credit for any Relief which has been obtained by the recipient, as applicable, in respect of the losses, costs and expenses or other items giving rise to such payment) will be the amount that the recipient would have received if the payment had not been subject to Tax.

 

40.5

Where the Seller or the Buyer default in the payment when due of any damages or other sum payable by virtue of this Deed or any other Transaction Document, the Seller’s liability or the Buyer’s liability (as the case may be) will be increased to include an amount equal to interest on such sum from the date when payment is due to the date of actual payment (both before and after judgment) at that annual rate which is 2 % per annum above SOFR in effect during such period. Such interest will accrue from day to day and be compounded quarterly and will be payable without prejudice to any other remedy available to any other party (as the case may be) in respect of such default.

 

41.

TRANSACTION COMMUNICATIONS

All communications between the Seller and / or a member of the Seller Group and any (i) Group Company; or (ii) professional adviser engaged by the Seller and / or a member of the Seller Group (including those to which the Seller’s Solicitors are also party), relating to the negotiation, preparation, execution and completion of this Deed and the transactions contemplated by it or any similar transaction (“Transaction Communications”) shall be the Seller’s property and no waiver of legal privilege in any such documents is made or is to be implied. Accordingly:

 

80


  (a)

neither the Buyer (before or after Completion) nor, after Completion, any Group Company shall have access to or be entitled to see or take copies of any Transaction Communications in whatever form these may be held (and whether or not these are held by third parties including the Seller’s Solicitors); and

 

  (b)

the Seller may take such steps as it shall consider necessary or desirable to delete or remove any such Transaction Communications from the Group’s computer systems and records before Completion.

 

42.

NOTICES

 

42.1

Subject to Clause 42.5, any notice or other communication given under this Deed or in connection with the matters contemplated in this Deed will, except where otherwise specifically provided, be in writing in the English language, addressed as provided in Clause 42.2 and served:

 

  (a)

by hand to the relevant address, in which case it will be deemed to have been given upon delivery to that address, but any notice delivered outside Working Hours will be deemed given at the start of the next period of Working Hours;

 

  (b)

by courier (or if from any place outside the country where the relevant address is located, by air courier) to the relevant address, in which case it will be deemed to have been given three Business Days after its delivery to a representative of the courier; or

 

  (c)

by e-mail to the relevant e-mail address, in which case it will, subject to no automated notification of delivery failure being received by the sender, be deemed to have been given when sent, but any e-mail sent outside Working Hours will be deemed given at the start of the next period of Working Hours.

 

42.2

Notices under this Deed must be sent for the attention of the person and to the address or e-mail address, subject to Clause 42.3, as set out below:

For the Seller and the Seller Guarantor:

 

Name:    Anglo American Netherlands B.V.
For the attention of:    [***]
Address:    17 Charterhouse Street, London, EC1N 6RA
E-mail address:    [***]
with a copy (which will not constitute notice) to:
Name:    Latham & Watkins (London) LLP
For the attention of:    [***]
Address:    99 Bishopsgate, London, United Kingdom EC2M 3XF
E-mail address:    [***]@lw.com;
   [***]@lw.com
and
Name:    MinterEllison

 

81


For the attention of:    [***]
Address:    Waterfront Place, 1 Eagle Street, Brisbane, QLD, Australia 4000
E-mail address:    [***]@minterellison.com; [***]@minterellison.com
For the Buyer:
Name:    Peabody SMC Pty Ltd
For the attention of:    [***]
Address:    Level 14, 31 Duncan Street, Fortitude Valley QLD 4006
E-mail address:    [***];
   [***];
   [***]
with a copy (which will not constitute notice) to:
Name:    Jones Day
For the attention of:    [***]
Address:    Level 31, 123 Eagle Street, Brisbane, QLD, Australia 4000
E-mail address:    [***]@jonesday.com; [***]@jonesday.com
For the Buyer Guarantor:
Name:    Peabody Energy Corporation
For the attention of:    [***]
Address:    701 Market Street, St. Louis, Missouri, United States of America
E-mail address:    [***];
   [***];
   [***]
with a copy (which will not constitute notice) to:
Name:    Jones Day
For the attention of:    [***]
Address:    Level 31, 123 Eagle Street, Brisbane, QLD, Australia 4000
E-mail address:    [***]@jonesday.com; [***]@jonesday.com

 

42.3

Any notice or other communication under this Deed will not be invalid by reason that a copy is not delivered to any addressee nominated to receive a copy.

 

42.4

Each party to this Deed may notify each other party of any change to its address or other details specified in Clause 42.2, but such notification will only be effective on the date specified in such notice or five Business Days after the notice is given, whichever is later.

 

82


42.5

Any notices:

 

  (a)

relating to the exercise of the Call Option or Put Option (including delivery of any Exercise Notice by the Buyer or the Seller, as applicable); or

 

  (b)

given by the Buyer or the Seller under Clause 14.8 or otherwise in connection with the Scheduled Completion Date,

will be deemed to have been given on the date of delivery, regardless of whether such notice is given on a day which is not a Business Day and / or outside of Working Hours.

 

43.

COSTS

 

43.1

Except as otherwise provided in this Deed, each party shall bear its own costs and expenses arising out of or in connection with the preparation, negotiation and implementation of this Deed and all other Transaction Documents.

 

43.2

The Buyer shall bear and promptly pay all Duty assessed, payable or otherwise imposed or arising as a result of or in connection with the entry into, or the implementation of any of the transactions contemplated by, this Deed or of any of the other Transaction Documents. The Buyer shall be responsible for arranging the payment of all such Duty, including fulfilling any administrative or reporting obligation imposed by the jurisdiction in question in connection with such payment, and the Buyer shall indemnify the Seller on demand (on a dollar for dollar basis) against any Liabilities suffered by the Seller as a result of the Buyer failing to comply with its obligations under this Clause 43.2.

 

43.3

The Buyer shall further indemnify the Seller on demand (on a dollar for dollar basis) against any Duty assessed, payable or otherwise imposed on any member of the Seller Group as a result of or in connection with the Moranbah Carve-out. To the extent that any member of the Seller Group is required by Law to sign or lodge forms or other documents in connection with the assessment, payment or imposition of any such Duty, the Seller will procure that such member of the Seller Group signs or lodges such forms or documents on such basis as the Seller considers necessary in order to comply with applicable Law, having given the Buyer reasonable opportunity to review the same in draft and having taken into account any reasonable comments of the Buyer.

 

43.4

The Seller holds on trust for each other member of the Seller Group the benefit of Clauses 43.2 and 43.3 to the extent that such provisions apply to those members of the Seller Group and, without derogating from any right of those members of the Seller Group to enforce those clauses, is entitled to enforce these clauses on behalf of those members of the Seller Group.

 

44.

RIGHTS OF THIRD PARTIES

 

44.1

The specified third-party beneficiaries of the undertakings referred to in Clauses 16.1, 16.4, 21.5, 23.2, 25.2 and 43.4 will, in each case, have the right to enforce the relevant terms by reason of the Contracts (Rights of Third Parties) Act 1999.

 

44.2

Except as provided in Clause 44.1, a person who is not a party to this Deed will have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms.

 

44.3

Each party represents to each other party that their respective rights to terminate, rescind or agree any amendment, waiver or settlement under this Deed are not subject to the consent of any person that is not a party to this Deed.

 

83


45.

COUNTERPARTS

This Deed may be executed in any number of counterparts on separate physical or electronic counterparts. All executed counterparts constitute one instrument.

 

46.

GOVERNING LAW AND JURISDICTION

 

46.1

This Deed and any non-contractual rights or obligations arising out of or in connection with it is governed by and must be construed in accordance with English law.

 

46.2

Any Dispute, other than a Royalty Amount Dispute which shall be governed by Schedule 11 or a Dispute in respect of the preparation, agreement or determination, as the case may be, of the Draft Completion Accounts and the Completion Accounts which shall be governed by Schedule 9, will be referred to and finally resolved by arbitration under the Rules of Arbitration of the International Chamber of Commerce (the “Rules”), which are deemed to be incorporated by reference into this Clause 46. There must be three arbitrators, two of whom will be nominated by the respective parties in accordance with the Rules and the third, who will be the presiding arbitrator, must be nominated by the two party nominated arbitrators within 14 days of the last of their appointments. The seat, or legal place, of arbitration will be London, England. English will be used in the arbitral proceedings. Judgment on any award may be entered in any court having jurisdiction.

 

46.3

For the purposes of this Clause, “Dispute” means any dispute, controversy, claim or difference of whatever nature arising out of, relating to, or having any connection with this Deed, including a dispute regarding the existence, formation, validity, interpretation, performance, breach or termination of this Deed and also including any dispute relating to any non-contractual rights or obligations arising out of, relating to, or having any connection with this Deed.

 

46.4

Each party agrees that the arbitration agreement set out in this Clause 46 and the arbitration agreement contained in the Moranbah North SAPA (together, the “Related Transaction Agreements”) will together be deemed to be a single arbitration agreement.

 

46.5

The parties agree to the consolidation of any two or more arbitrations commenced pursuant to this Clause 46 and / or the arbitration agreement contained in any Related Transaction Agreement. For the avoidance of doubt, this Clause 46.5 is an agreement by all parties for the purposes of Article 10(a) of the Rules.

 

46.6

To the extent permitted by Law, each party waives any objection it may have to the validity and/or enforcement of any arbitral award, which such objection is on the basis that a dispute has been resolved in a manner contemplated by this Clause 46.

 

47.

PROCESS AGENT

 

47.1

Without prejudice to any other permitted mode of service, the parties agree that service of any claim form, notice or other document for the purpose of or in connection with any action or proceeding in England or Wales arising out of or in any way relating to this Deed will be duly served upon:

 

  (a)

the Seller or the Seller Guarantor if it is delivered personally or sent by recorded or special delivery post (or any substantially similar form of mail) to the Seller Guarantor at its registered address, marked for the attention of Group Legal and Corporate Secretary or such other person and address in England or Wales as such party shall notify all the other parties in writing from time to time; and

 

84


  (b)

the Buyer and the Buyer Guarantor if it is delivered personally or sent by recorded or special delivery post (or any substantially similar form of mail) to [***], marked for the attention of Director – Service of Process or such other person and address in England or Wales as such party shall notify all the other parties in writing from time to time,

in each case whether or not such claim form, notice or other document is forwarded to the relevant party or received by such party.

 

85


SCHEDULE 4

PRE-COMPLETION OBLIGATIONS

 

1.

SELLER’S OBLIGATIONS

 

1.1

Subject to paragraph 2 and except as otherwise stated in this Deed or with the Buyer’s written consent (which will not be unreasonably withheld, conditioned or delayed), the Seller shall from the date of this Deed until the earlier of Completion and the termination of this Deed:

 

  (a)

procure that each Group Company carries on its business in all material respects in the ordinary course including in accordance with past practice in respect of the approval and administration of budgets and capital plans;

 

  (b)

procure the termination of the Terminating Contracts, in each case:

 

  (i)

on a liability free basis; and

 

  (ii)

with such termination to take effect from Completion at the latest;

 

  (c)

not create any Encumbrance over, or sell or dispose of, the Shares;

 

  (d)

procure the relevant Group Company not to create any Encumbrance over, or sell or dispose of, any interest in any share or loan capital or other security of any Group Company, and in the case of Anglo Dawson, procure that a Group Company remains the sole member of Anglo Dawson;

 

  (e)

procure that none of the Group Companies:

 

  (i)

create, allot, issue, redeem, buy back or repurchase any share capital, loan capital or other security or grant any options over, or any other right in respect of, any share, loan capital or other security, except to another Group Company;

 

  (ii)

create or vary any Encumbrance over their shares, assets or undertaking except in favour of another Group Company;

 

  (iii)

make any material alteration to their constitutional documents;

 

  (iv)

enter into any transaction with the Seller or Seller’s Affiliates which is not on arm’s length terms;

 

  (v)

of its own volition, terminate or adversely vary or fail to enforce the material terms of any Material Contract or accept or agree to any material variations to services to be performed or goods to be supplied under any Material Contract, except in the ordinary course of business;

 

  (vi)

enter into, amend or terminate (or agree to enter into, amend or terminate) a contract or commitment that will result in aggregate annual receipts or expenditure in excess of AUD 50,000,000, otherwise than in the ordinary course of business;

 

  (vii)

vary, amend or waive any Pre-Emption Rights for the purpose of entitling the relevant Joint Venture Participant to assign the benefit of a Pre-Emption Right to a third party or otherwise permitting a third party (in each case other than a person entitled to exercise the Pre-Emption Right under the relevant Pre-emption Joint Venture Agreement) to acquire a direct or indirect interest in the assets the subject of the Pre-Emption Right;


  (viii)

borrow any money, other than in the ordinary course of business or from another Group Company;

 

  (ix)

make or grant any loans, capital advance, financial facility or any other financial accommodation, other than in the ordinary course of business or to another Group Company;

 

  (x)

enter into any agreement or arrangement or permit any action where another company becomes its subsidiary undertaking;

 

  (xi)

enter into, vary or terminate any joint venture, partnership or agreement or arrangement for the sharing of profits or assets, otherwise than in the ordinary course of business;

 

  (xii)

institute or settle any material legal proceedings which is likely to result in a payment by or to a Group Company in excess of AUD 10,000,000 (except in respect of debt collection in the ordinary course of business);

 

  (xiii)

sell or lease any real property outside of the ordinary course of business;

 

  (xiv)

grant a royalty on coal produced or sold;

 

  (xv)

voluntarily terminate, relinquish or dispose of, or fail to renew, any Mining Tenement or Environmental Authorisation, other than EPC 793;

 

  (xvi)

make, change or revoke any material Tax election or surrender or compromise any right to claim Relief, or settle or finally resolve any Tax contest with respect to any amount of Tax or take any action that would have the effect of increasing the liability to pay Tax of any Consolidated Subsidiary;

 

  (xvii)

change an annual Tax accounting period;

 

  (xviii)

prepare, file or amend any Tax Return in a manner in which the positions adopted in that Tax Return are inconsistent with past practices;

 

  (xix)

change residence for Tax purposes;

 

  (xx)

enter into any material agreement with any Tax Authority or terminate or rescind any material agreement with a Tax Authority that is in effect on the date of this Deed; or

 

  (xxi)

enter into any agreement or arrangement to do any of the matters referred to in sub-paragraphs (i) to (xx) above.

 

2.

EXCEPTIONS

 

2.1

Nothing in paragraph 1.1 operates to restrict or prevent:

 

  (a)

without limiting the terms of the Moranbah North SAPA or the Jellinbah SPA, the Group Companies from dealing in any way with the Moranbah North Assets or the shares in Jellinbah in accordance with the Moranbah North SAPA or the Jellinbah SPA (as applicable);


  (b)

the completion or performance of any actions required or undertaken in connection with the transactions contemplated by the Moranbah North SAPA and / or the Jellinbah SPA, or the exercise or assertion of any obligations or rights contained in the Moranbah North SAPA or Jellinbah SPA, or the completion or performance of any actions required or undertaken in connection with the satisfaction of the Conditions in Clause 9.1 (including in connection with any Pre-emption Acceptance Notice);

 

  (c)

the completion or performance of any actions required or undertaken in connection with the transactions contemplated following receipt of any Pre-emption Acceptance Notice;

 

  (d)

the completion or performance of any actions required or undertaken in connection or association with:

 

  (i)

the Carve-Outs; or

 

  (ii)

the transfer and separation of Anglo American Australia Holdings Pty Limited and Anglo American Exploration (Australia) Pty Limited from the Group;

 

  (e)

any matter reasonably undertaken by any Group Company in an emergency or disaster situation with the intention of minimising any adverse effect of such situation (but the Buyer must be kept fully informed of any actions taken pursuant to this paragraph (e));

 

  (f)

any matter undertaken to comply with any requirement of applicable Law or any forthcoming change in applicable Law (in each case, including any rules, guidelines, requests or requirements of any Authority);

 

  (g)

the completion or performance of any obligations undertaken pursuant to any contract or arrangement entered into by any Group Company before the date of this Deed in the ordinary course of business or otherwise entered into other than in breach of this Deed;

 

  (h)

the completion or performance of any actions required or undertaken in accordance with this Deed in connection with the Transaction, including the termination of the Terminating Contracts;

 

  (i)

the termination of any agreements between any Group Company and the Seller Group, in each case on a liability free basis and with such termination to take effect prior to the Effective Time at the latest;

 

  (j)

any matter that relates to the settlement of Tax demands against the Seller or a Group Company either by way of litigation or negotiations which, in the Seller’s opinion, is necessary or desirable to minimise or reduce Taxes;

 

  (k)

a Group Company from entering into an advance pricing agreement with a Tax Authority to the extent that negotiations with a Tax Authority had already commenced as at the date of this Deed;

 

  (l)

the settlement or steps taken in connection with the determination of the legal proceedings relating to the [***];


  (m)

any matter that is contemplated, authorised by any agreement, arrangement or material that is Disclosed including but not limited to any business plan or budget (including for the Joint Venture) in the Data Room; or

 

  (n)

entering into or performing any of the following agreements on an arm’s length basis:

 

  (i)

any agreement for the purchase or sale of coal for a term of no more than 12 months (including an extension of any such agreements for a term of no more than 12 months); or

 

  (ii)

any agreement to amend, transfer or otherwise deal with port, below rail or above rail rights or obligations to the extent that the agreement is either:

 

  (A)

with one or more of the Group Companies, the Joint Venture Participants, the Moranbah North Entities and their joint venture participants; or

 

  (B)

for a term of no more than 12 months;

 

2.2

If the Seller or any of its Representatives requests in writing the Buyer’s consent pursuant to paragraph 1.1 and provides reasonable details of the matter for which consent is sought, such consent will be deemed to have been given unless the Buyer notifies the Seller or Representative in writing within two Business Days of the relevant request that the Buyer does not consent to the relevant request.


SCHEDULE 5

COMPLETION OBLIGATIONS

 

1.

SELLER’S OBLIGATIONS

 

1.1

At or before Completion, the Seller shall deliver or make available to the Buyer:

 

  (a)

transfer form(s) to transfer all of the Shares into the name of the Buyer, duly completed and executed by the Seller, in a registrable form (subject only to due stamping);

 

  (b)

existing share certificates in respect of all of the Shares, or an indemnity for any lost share certificates duly executed by the Seller in Agreed Form;

 

  (c)

a copy of any power of attorney in Agreed Form under which any document to be delivered to the Buyer under this paragraph 1 has been executed;

 

  (d)

any consents or waivers required in respect of the Conditions to the extent that those consents and waivers have been obtained by or on behalf of the Seller;

 

  (e)

if applicable, the ASIC corporate keys for each Group Company;

 

  (f)

a counterpart of the TSA duly executed by the Seller Guarantor and AASC;

 

  (g)

a copy of a duly executed board resolution or duly executed board minutes of the Seller approving the execution by the Seller of any documents which the Seller is required to execute or deliver at Completion;

 

  (h)

one copy of the Data Room USB Stick;

 

  (i)

in respect of each Encumbrance over the Shares or the assets of a Group Company which is registered on the PPS Register immediately before Completion, evidence satisfactory to the Buyer (acting reasonably) that the Encumbrance has been released, or will be released, with effect from Completion;

 

  (j)

to the extent not already provided or in the possession of a Group Company, at the relevant Group Company’s registered office, or otherwise the location of the business of each Group Company, all the statutory and other books (duly written up to date) of each Group Company and all certificates of incorporation, certificates of incorporation on change of name and common seals or such equivalent items in the relevant jurisdiction as are kept by such Group Company or required to be kept by Law, to the extent not within the control of a Group Company. For the avoidance of doubt, any legal advice sought or received by a Group Company in relation to the Transaction or transaction similar to the Transaction will be excluded from this obligation;

 

  (k)

in respect of each Group Company:

 

  (i)

a copy of a duly executed board resolution or duly executed board minutes in Agreed Form, approving:

 

  (I)

the persons advised in accordance with Clause 11.6(a) to be appointed as directors, secretary and public officer (as applicable) of the relevant Group Company (as applicable); and


  (II)

if applicable, its registered office and principal place of business be changed to the address notified by the Buyer in accordance with Clause 11.6(b),

in each case, with effect from Completion; and

 

  (ii)

the written and executed resignation of each director, secretary and public officer (as applicable) of such Group Company appointed by the Seller or Seller’s Affiliate, duly executed by the relevant resigning person(s) in Agreed Form;

 

  (l)

evidence of the termination of the Terminating Contracts, in each case prior to the Effective Time; and

 

  (m)

a copy of a duly executed board resolution or duly executed board minutes of the Company approving:

 

  (i)

the transfers of the Shares and (subject only to due stamping) the registration, in the register of members, of the Buyer as the holder of the shares concerned; and

 

  (ii)

the issue of new share certificates for the Shares in the name of the Buyer.

 

2.

BUYER’S OBLIGATIONS

 

2.1

At or before Completion, the Buyer shall:

 

  (a)

pay or procure the payment to the Seller of an amount equal to the Completion Payment, the receipt of which will fully discharge the Buyer from its obligation to pay (or procure the payment of) the amount in Clause 5.2(b);

 

  (b)

deliver or make available to the Seller:

 

  (i)

counterparts of all documents that the Seller is required to deliver under paragraph 1.1 to which the Buyer or the Buyer Guarantor is a party or which otherwise contemplates execution by the Buyer or the Buyer Guarantor, duly executed by the Buyer or the Buyer Guarantor (as applicable);

 

  (ii)

the original or certified copy of any power of attorney in Agreed Form under which any document to be delivered to the Seller under this paragraph 2.1 has been executed;

 

  (iii)

a copy of a duly executed board resolution or duly executed board minutes of the Buyer approving the execution by the Buyer of any documents which the Buyer is required to execute or deliver at Completion;

 

  (iv)

copies of the Replacement Bank Guarantees; and

 

  (v)

any consents or waivers required in respect of the Conditions to the extent that those consents and waivers have been obtained by or on behalf of the Buyer.


SCHEDULE 6

SELLER’S WARRANTIES

 

1.

DEFINITIONS AND INTERPRETATION

 

1.1

In this Schedule:

Applicable Data Protection Laws” means:

 

  (a)

the Australian Privacy Act 1988 (Cth); and

 

  (b)

the General Data Protection Regulation 2016/679, the UK Data Protection Act 2018 (the “DPA”) and the UK General Data Protection Regulation as defined by the DPA as amended by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019,

and any relevant law, statute, declaration, decree, directive, legislative enactment, order, ordinance, regulation, rule or other binding instrument which implements any of the above, in each case as amended, consolidated, re-enacted or replaced from time to time;

Capcoal Plant and Equipment Assets” means the plant and equipment listed in the Fixed Asset Register under company code AU41 and AU42;

Dawson Plant and Equipment Assets” means the plant and equipment listed in the Fixed Asset Register under company code AU85;

Dawson South Exploration Plant and Equipment Assets” means the plant and equipment listed in the Fixed Asset Register under company code AU77, to the extent it relates to the Dawson South Exploration Joint Venture;

Dawson South Plant and Equipment Assets” means the plant and equipment listed in the Fixed Asset Register under company code AU77, to the extent it relates to the Dawson South Joint Venture;

Entitlements” means any superannuation, incapacity, sickness, disability, accident, healthcare or death benefits (including in the form of a lump sum);

Fixed Asset Register” means document 02.02.02.04 in the Data Room;

Finance Documents” has the meaning given in paragraph 11.1;

Insurance Policy” has the meaning given in paragraph 19.1;

Intellectual Property” means:

 

  (a)

all rights in patents, utility models, trade marks, service marks, logos, get-up, trade names, internet domain names, copyright (including rights in computer software), design rights, moral rights, database rights, topography rights, plant variety rights, confidential information and knowledge (including know-how, inventions, secret formulae and processes, market information, and lists of customers and suppliers), and rights protecting goodwill and reputation, in all cases that is material to the Group and owned or used by the Group whether registered or unregistered; all other forms of protection having a similar nature or effect anywhere in the world to any of the items in this limb (a); and

 

  (b)

applications for or registrations of any of the rights in limb (a),


in each case, that is or are material to the Group Companies;

Moranbah North Plant and Equipment Assets” has the meaning given to ‘Plant and Equipment’ in the Moranbah North SAPA;

Moranbah South Exploration Plant and Equipment Assets” means the plant and equipment listed in the Fixed Asset Register under company code AU56;

Plant and Equipment Assets” means the Capcoal Plant and Equipment Assets, Dawson Plant and Equipment Assets, Dawson South Plant and Equipment Assets, Dawson South Exploration Plant and Equipment Assets, Moranbah South Exploration Plant and Equipment Assets, Roper Creek Plant and Equipment Assets and Theodore South Plant and Equipment Assets but excluding the Moranbah North Plant and Equipment Assets;

Roper Creek Plant and Equipment Assets” means the plant and equipment listed in the Fixed Asset Register under company code AU49; and

Theodore South Plant and Equipment Assets” means the plant and equipment listed in the Fixed Asset Register under company code AU72.

 

2.

TITLE AND CAPACITY

 

2.1

The Seller is validly incorporated, in existence and duly registered under the laws of its country of incorporation.

 

2.2

The Seller has taken all necessary action and has all requisite power and authority to enter and perform this Deed and the other Transaction Documents to which it is a party in accordance with their terms.

 

2.3

This Deed and the other Transaction Documents (to which the Seller is a party) constitute (or will constitute when executed) valid, legal and binding obligations on the Seller in accordance with their terms.

 

2.4

The execution and delivery of this Deed and the other Transaction Documents by the Seller and the performance of and compliance with their terms and provisions will not conflict with or result in a breach of, or constitute a default under, the Seller’s constitutional documents, any agreement or instrument to which the Seller is a party or by which it is bound, or any Law, order or judgment that applies to or binds the Seller or any of its property.

 

3.

CAPITAL STRUCTURE AND CORPORATE INFORMATION

 

3.1

The Shares constitute the whole of the allotted and issued share capital of the Company and are fully paid and free from all Encumbrances, and the Seller is the sole legal and beneficial owner of the Shares.

 

3.2

The section of the Group Information Schedule entitled “Subsidiaries”:

 

  (a)

lists all the subsidiaries and subsidiary undertakings of the Company other than the Moranbah North Entities and those subsidiaries subject to the Jellinbah Carve-out and the Moranbah Carve-out;

 

  (b)

sets out particulars of their allotted and issued share capital or:

 

  (i)

in the case of Anglo Dawson, its member; and

 

  (ii)

in the case of Jena, its unit trust interests; and


  (c)

is complete and accurate in all material respects as at the date of this Deed.

 

3.3

Unless otherwise indicated in the Group Information Schedule, the Company or a Subsidiary is the sole legal and beneficial owner of the whole allotted and issued share capital of each Subsidiary and all such shares are fully paid up and free from all Encumbrances, other than the Pre-emption Rights.

 

3.4

No person (other than a Group Company or the Seller) has a right to require any Group Company to allot, issue, sell, transfer any share capital, or to convert existing securities into or to issue securities that have rights to convert into any share capital other than in accordance with the Joint Venture Agreements.

 

4.

CONSTITUTIONAL AND CORPORATE DOCUMENTS

 

4.1

Copies of the constitution of each Group Company are included in the Data Room.

 

4.2

All statutory books (excluding the minutes books) and registers required to be maintained by each Group Company under the law of its jurisdiction of incorporation are in the possession or under the control of the Group Company to which they relate and are properly written up in all material respects.

 

5.

INSOLVENCY

 

5.1

No receiver or administrative receiver or manager or receiver and manager or trustee or similar person has been appointed over the whole or any part of the assets or undertaking of any Group Company. No administrator has been appointed, nor has any administration order been made, in respect of any Group Company, and no petition or application for such an order or any notice of appointment of, or of any intention to appoint, an administrator has been threatened, presented, made, served or filed.

 

5.2

No voluntary arrangement, compromise, composition, scheme of arrangement, standstill agreement, deferral, rescheduling or other readjustment or reorganisation or other arrangement between any Group Company and its creditors (or any class of them) has been proposed or approved by any Group Company other than in the ordinary course of trading.

 

5.3

No petition has been threatened or presented against any Group Company by any third party, and no order has been made, no resolution has been passed and no meeting has been convened for the purpose of winding up any Group Company or for the appointment of a provisional liquidator or special manager to any Group Company.

 

5.4

No step has been taken with a view to the dissolution or striking-off the register of any Group Company.

 

5.5

No event or circumstance has occurred or exists in respect of any Group Company analogous to those described in paragraphs 5.1 to 5.4 above.

 

6.

PRO FORMA FINANCIAL INFORMATION

Insofar as it relates to the Group, the Pro forma Financial Information presents with reasonable accuracy the financial position of the Group (including, for these purposes, the Subsidiaries that are the subject of the Moranbah Carve-out and the Jellinbah Carve-out) as at the end of each Pro forma Financial Information Period and its financial performance for each Pro forma Financial Information Period.

 


7.

ACCOUNTS

 

7.1

The Accounts have been prepared:

 

  (a)

in accordance with the Accounting Standards; and

 

  (b)

in accordance with the requirements of the Corporations Act and any other applicable Laws.

 

7.2

Insofar as they relate to the Group, the Accounts give a true and fair view of the financial position of the Group (including, for these purposes, the Subsidiaries that are the subject of the Moranbah Carve-out and the Jellinbah Carve-out) as at the Accounts Date and its financial performance for the year ended on the Accounts Date.

 

8.

MANAGEMENT ACCOUNTS

 

8.1

So far as the Seller is aware, the Management Accounts have been prepared:

 

  (a)

with due care and attention; and

 

  (b)

on a basis consistent with the equivalent management accounts in respect of the same period in the prior year and in accordance with the Group’s monthly reporting procedures as consistently applied.

 

8.2

Having regard for the purposes for which they were prepared, so far as the Seller is aware, the Management Accounts present with reasonable accuracy the profits and losses and net assets of the entities to which they relate for the period, and as at the date, in respect of which they have been prepared, in each case insofar as they relate to the Group and in each case other than in respect of exceptional items which in aggregate are not material.

 

9.

PARTICIPATING INTERESTS AND PLANT AND EQUIPMENT ASSETS

 

9.1

Anglo German Creek and Jena hold the Capcoal Participating Interest in the Capcoal Plant and Equipment Assets.

 

9.2

Anglo Dawson holds the Dawson Participating Interest in the Dawson Plant and Equipment Assets.

 

9.3

Anglo Dawson South holds the:

 

  (a)

Dawson South Participating Interest in the Dawson South Plant and Equipment Assets; and

 

  (b)

Dawson South Exploration Participating Interest in the Dawson South Exploration Plant and Equipment Assets.

 

9.4

Anglo Grosvenor holds the Moranbah South Participating Interest in the Moranbah South Exploration Plant and Equipment Assets.

 

9.5

Anglo German Creek and Anglo Roper Creek hold the Roper Creek Participating Interest in the Roper Creek Plant and Equipment Assets.

 

9.6

Anglo Theodore South holds the Theodore South Participating Interest in the Theodore South Plant and Equipment Assets.

 

9.7

Other than the Pre-emption Rights, there are no Encumbrances over or affecting any Plant and Equipment Assets, and the Seller is not party to any agreement to grant any Encumbrance over any Plant and Equipment Asset.


9.8

Each Plant and Equipment Asset is:

 

  (a)

located at the mine or site to which is relates;

 

  (b)

in the physical possession or control of the Joint Venture Participants or the relevant Group Company, as applicable; and

 

  (c)

in a good and safe state of repair and condition and in satisfactory working order for its age.

 

10.

CONTRACTS

 

10.1

Copies of the Material Contracts are included in the Data Room.

 

10.2

No notice of termination or material breach (which is current and outstanding) of any Material Contract has been received or served by a Group Company, and, so far as the Seller is aware, there are no grounds for lawful termination by the counterparty of any Material Contract.

 

10.3

No Group Company is and, so far as the Seller is aware, no other party to a Material Contract is in material breach of any Material Contract.

 

10.4

So far as the Seller is aware, there are no agreements, arrangements or understandings to which the Group Companies are party other than as set out in the Disclosure Letter or the Vendor Reports that are outside the ordinary course of business of each of the Group Companies.

 

11.

FINANCE AND GUARANTEES

 

11.1

The Data Room contains details of the material terms of the current and outstanding financial indebtedness of each Group Company as at the date of this Deed, in each case excluding indebtedness between Group Companies (the “Finance Documents”).

 

11.2

Other than in the ordinary course of business, no Group Company has given or entered into any guarantee, mortgage, charge, pledge, lien, assignment or other security agreement or arrangement in respect of, or is otherwise responsible for the indebtedness or the default in the performance of any obligation of, any person other than another Group Company, a Representative of a Group Company or any Joint Venture Participant.

 

11.3

No Group Company has received any written notice (which is current and outstanding) from any counterparty under the Finance Documents:

 

  (a)

that it is in material default under the terms of any of the Finance Documents (and with such default still being outstanding at the date of this Deed); or

 

  (b)

to repay any part of the Finance Documents in advance of their stated maturity date.

 

12.

EMPLOYEES AND ENTITLEMENTS

 

12.1

So far as the Seller is aware, each Group Company (to the extent applicable) has complied with applicable Laws, awards, enterprise agreements or other instrument made or approved under any Law with respect to:

 

  (a)

employment of its Employees; and

 

  (b)

its Entitlements owed to Employees.


13.

MINING TENEMENTS AND INTERESTS

 

13.1

The details of each Mining Tenement set out in Schedule 12 are true and correct in all material respects.

 

13.2

Each Mining Tenement is valid, in good standing and is not liable to forfeiture, termination (other than expiry in the ordinary course), cancellation or suspension for any reason; and no notice has been received under any applicable Laws cancelling, forfeiting or suspending or threatening to cancel, forfeit or suspend the Mining Tenements nor any material licence, consent, permission, authority or permit held in relation to the Mining Tenements; and all material obligations and liabilities under the terms of each Mining Tenement (including the payment of all relevant material fees and charges in respect of those Mining Tenements) have been met and satisfied; and there are no outstanding material non-compliances with applicable Laws in relation to each Mining Tenement.

 

13.3

In respect of the Mining Tenements in which Schedule 12 provides that a Group Company has an interest, the Group Company is holder of a legal and beneficial interest in the percentage set out in Schedule 12, and the Group Company has full capacity and power to hold those interests.

 

13.4

At Completion, there will be no Encumbrances over or affecting any of the Participating Interests, and no Group Company is party to any agreement to grant any Encumbrance over any of the Mining Tenements, and there will be no agreements, options or rights capable of becoming or giving rise to an agreement or option for the purchase of the Mining Tenements.

 

13.5

There are no agreements, arrangements or understandings in force requiring any of the Participating Interests to be shared with or made available to any person.

 

14.

PROPERTY

 

14.1

The details of each Property set out in Schedule 13 are true and correct in all material respects.

General

 

14.2

The Properties are the only land and buildings owned, used or occupied by each Group Company in relation to the operation of the relevant Joint Ventures and for residential purposes.

 

14.3

Except as Disclosed, the Group Companies have exclusive occupation and right of quiet enjoyment of the Properties.

 

14.4

As at the date of this Deed, no notices have been received by the Seller or a Group Company, and there is no order, declaration, report, recommendation or approved proposal of a public authority or government department which would materially affect the use of any of the Properties.

Freehold Properties

 

14.5

In relation to those Properties listed in Schedule 13, which are real property owned by the Group Companies (“Freehold Properties”):

 

  (a)

a Group Company is the registered holder and beneficial owner of the Freehold Properties;

 

  (b)

all rates, taxes and levies (including land tax) applicable to the Freehold Properties have been paid; and


  (c)

a Group Company has not sold, agreed to sell, granted any option to sell, lease or sublease or agreed to lease or sublease any of the Freehold Properties.

Leasehold Properties

 

14.6

In relation to the Properties listed in Schedule 13, which are leased by the Group Companies (“Leasehold Properties”):

 

  (a)

there are no subsisting material breaches of the leases of the Leasehold Properties (“Property Leases”); and

 

  (b)

as at the date of this Deed, no Group Company has received any notice of any breach of the Property Leases.

 

14.7

The Property Leases:

 

  (a)

are valid and subsisting; and

 

  (b)

have not been amended or modified.

 

15.

INTELLECTUAL PROPERTY

 

15.1

As at the date of this Deed, no claims have been received by the Seller Group challenging any Group Company’s use of the Intellectual Property.

 

15.2

As at the date of this Deed, Schedule 14 is a complete and accurate list of:

 

  (a)

all material registered business names and trade marks;

 

  (b)

all material registered patents and designs; and

 

  (c)

all material applications for registration of patents, trade marks and designs,

owned or used by the Group Companies.

 

16.

COMPLIANCE WITH LAWS AND DISPUTES

 

16.1

Each Group Company is conducting, and has for the three years before the date of this Deed conducted its business, in all material respects, in accordance with all applicable Laws.

 

16.2

No Group Company:

 

  (a)

is or has in the three years before the date of this Deed been engaged in any litigation, administrative, mediation or arbitration proceedings or other proceedings or hearings before any Authority (except for debt collection in the normal course of business), in each case of a value exceeding AUD 5,000,000); or

 

  (b)

is or has in the three years before the date of this Deed received written notice that it is the subject of any formal investigation, inquiry or enforcement proceedings by any Authority which would have a material adverse effect on the Group as a whole,

and no such proceedings, investigations or inquiries have been threatened in writing or are pending.


16.3

No Group Company:

 

  (a)

is affected by any existing or pending judgments, decisions or rulings made against a Group Company that would have a material adverse effect on the Group as a whole; or

 

  (b)

has given any undertakings arising from legal proceedings to an Authority or other third party which remains in force.

 

17.

ENVIRONMENT

 

17.1

So far as the Seller is aware:

 

  (a)

in relation to the Mining Tenements there are no material, unremediated breaches of any applicable Environmental Laws; and

 

  (b)

all material Environmental Authorisations in relation to the Mining Tenements:

 

  (i)

have been obtained; and

 

  (ii)

are in full force and effect in all material respects.

 

18.

BRIBERY, CORRUPTION, SANCTIONS AND EXPORT CONTROLS

 

18.1

No Group Company nor any of their respective directors, officers, employees, agents, or representatives is engaged (in such capacity) in any conduct, activity or omission which would constitute material non-compliance with any Sanctions Law or Anticorruption Law.

 

18.2

No Group Company nor any of their respective directors, officers, employees, agents or representatives (in such capacity):

 

  (a)

is or has been a Sanctioned Person;

 

  (b)

is or has been in breach of any Sanctions Laws; or

 

  (c)

has in the three years before the date of this Deed engaged in any transaction or dealing with any Sanctioned Person and/or with any Sanctioned Territory,

provided paragraph 18.1 and this paragraph 18.2 will not apply if and to the extent that it is or would be unenforceable by reason of breach of any provision of the Council Regulation (EC) No 2271/96 of 22 November 1996, the Protecting against the Effects of the Extraterritorial Application of Third Country Legislation (Amendment) (EU Exit) Regulations 2020 (SI 2020/1660), any law or regulation implementing such regulations in any member state of the European Union or the United Kingdom, or any similar blocking or anti-boycott law.

 

19.

INSURANCE

 

19.1

A summary of all material insurance policies maintained by or covering the Group as at the date of this Deed is included in the Data Room (each, an “Insurance Policy”).

 

19.2

All premiums due and payable on each Insurance Policy have been paid and no written notice of cancellation, termination or revocation of any Insurance Policy has been received by any Group Company.


20.

POWERS OF ATTORNEY

There are no powers of attorney in force given by any Group Company, other than those given to:

 

  (a)

its Representatives in the ordinary course of business or otherwise to ensure the continued operation of the Group or to a holder of an Encumbrance solely to facilitate its enforcement; or

 

  (b)

the Group’s employees in the ordinary course of business.

 

21.

TAX

 

21.1

Each Group Company and the Seller Head Company has in the three years before the date of this Deed made or submitted all material returns, accounts and computations in relation to Tax which it was required by law to make or submit, and all such returns, accounts and computations were prepared on a proper basis.

 

21.2

Each Group Company or the Seller Head Company has complied on a timely basis with all notices served on it and any other requirements lawfully made of it by any Tax Authority.

 

21.3

All Tax for which a Group Company or the Seller Head Company has been liable to account has been duly paid (insofar as such Tax ought to have been paid), and no Group Company is liable, or has in the three years before the date of this Deed been liable, to pay a material penalty, surcharge, fine or interest in connection with Tax.

 

21.4

Each Group Company has in the three years before the date of this Deed deducted or withheld all Tax which it has been obliged by law to deduct or withhold from amounts paid by it and has properly accounted to the relevant Tax Authority for all amounts of Tax so deducted or withheld to the extent such amounts are due to be paid to a Tax Authority.

 

21.5

No Group Company is currently party to any material dispute with, or audit, investigation or non-routine review by, any Tax Authority, and no Group Company has been notified that it is the subject of any non-routine investigation, enquiry or audit by any Tax Authority.

 

21.6

Each Group Company has since its date of incorporation been resident for Tax purposes only in its jurisdiction of incorporation, and no Group Company is liable to pay Tax chargeable under the laws of any other jurisdiction save in respect of income or gain on which it may be subject to Tax solely by way of withholding.

 

21.7

In relation to any period during which a Group Company has been a member of the Seller Consolidated Group, there are no Group Liabilities not covered by the Seller Tax Sharing Agreement, including:

 

  (a)

in the circumstances set out in section 721-25(2) of the 1997 Tax Act (the Seller Tax Sharing Agreement was entered into as an arrangement to prejudice the recovery by the Commissioner of some or all of any Group Liability of the Seller Consolidated Group); and

 

  (b)

in the circumstances set out in section 721-25(3) of the 1997 Tax Act (the Seller Head Company fails to provide a copy of the Seller Tax Sharing Agreement in the approved form as required by section 721-25(3) of the 1997 Tax Act).

 

21.8

The Company and each of the Consolidated Subsidiaries is a member of the Seller Consolidated Group.


21.9

The Company and each of the Consolidated Subsidiaries is a party to the Seller Tax Sharing Agreement which covers all Group Liabilities.

 

21.10

Each Group Company has in the three years before the date of this Deed maintained proper and adequate records to enable it to comply in all material respects with its obligations to:

 

  (a)

prepare and submit any information, notices, computations, returns and payments required in respect of any Tax Law;

 

  (b)

prepare any accounts necessary for compliance with any Tax Law;

 

  (c)

support any position taken by any Group Company for Tax purposes; and

 

  (d)

retain necessary records as required by any Tax Law,

and, so far as the Seller is aware, such records are accurate in all material respects.

 

21.11

All transactions and instruments entered into in the three years before the date of this Deed for which a Group Company is the person statutorily liable to pay the Duty, or where the Group Company has agreed to pay Duty, have been duly stamped, are not insufficiently stamped, and in respect of such transactions or instruments the Duty has been paid and there is no requirement to upstamp on the account of an interim assessment.

 

21.12

No transactions contemplated by this Deed or the Transaction Documents will cause a revocation or breach of any corporate reconstruction relief from Duty sought by any Group Company in the period of three years before the date of this Deed.

 

21.13

Each Group Company:

 

  (a)

that is required to be registered for GST under the GST Act is so registered;

 

  (b)

has complied in all material respects with its obligations under the GST Act;

 

  (c)

is not in default of any obligation to make or lodge any payment or GST return or notification under the GST Act;

 

  (d)

has appropriate systems to capture and report GST obligations and comply with the GST Act;

 

  (e)

has no material agreement or arrangement requiring it to pay any GST on a supply which does not contain a provision enabling it, as recipient, to require the other party to the agreement or arrangement to provide to each Group Company a tax invoice for any GST on that supply before that payment is required; and

 

  (f)

has not been paid any amount on account of, or in respect of, GST by any entity which it was not contractually entitled to be paid.

 

21.14

No Group Company has ever been a member of a GST Group other than the Seller GST Group.


SCHEDULE 7

LIMITATIONS ON SELLER LIABILITY

 

1.

FINANCIAL LIMITS ON CLAIMS

 

1.1

The Seller Group’s maximum aggregate liability in respect of all Claims (including any reasonable and properly incurred costs, expenses and other liabilities payable by the Seller Group in connection with such Claims) will not exceed the aggregate of the Consideration and the Royalty, each to the extent actually received by the Seller as at the date of the Claim.

 

1.2

Subject to paragraph 1.1, the Seller Group’s aggregate liability:

 

  (a)

for all Fundamental Warranty Claims (including any costs, expenses and other liabilities payable by the Seller in connection with such Fundamental Warranty Claims), will not exceed the aggregate of the Consideration and the Royalty, each to the extent actually received by the Seller as at the date of the Claim;

 

  (b)

for all Business Warranty Claims (including any costs, expenses and other liabilities payable by the Seller in connection with such Business Warranty Claims), will not exceed 10% of the Completion Payment;

 

  (c)

for all Tax Covenant Claims, will not exceed 30% of the aggregate of the Consideration and the Royalty, each to the extent actually received by the Seller as at the date of the Claim;

 

  (d)

for all Tax Warranty Claims, will not exceed 10% of the Completion Payment; and

 

  (e)

for all other Claims (including any costs, expenses and other liabilities payable by the Seller in connection with such Claims), will not exceed 10% of the Completion Payment.

 

1.3

The Seller Group will not be liable in respect of any single Claim or any series of Claims which arise from the same or substantially the same facts, matters, circumstances or events (and such Claim(s) will be disregarded for all purposes) unless the amount of the liability pursuant to such Claim or series of Claims would exceed 0.1% of the Completion Payment.

 

1.4

The Seller Group will not be liable in respect of any single Claim unless the aggregate amount of the Seller Group’s liability for all Claims (other than Claims excluded by paragraph 1.3 or any other paragraph of this Schedule 7) would exceed 1% of the aggregate of the Consideration and the Royalty, each to the extent actually received by the Seller as at the date of the Claim, in which case the Seller Group will be liable only for the excess.

 

2.

TIME LIMITS ON CLAIMS

 

2.1

The Seller will not be liable in respect of any Claim, and any such Claim will be wholly barred and unenforceable unless the Buyer has given notice in writing of such Claim to the Seller:

 

  (a)

in the case of a Tax Claim, within the period of five years beginning with the Completion Date;

 

  (b)

in the case of a Fundamental Warranty Claim, within the period of two years beginning with the Completion Date; and

 

  (c)

in the case of any other Claim, within the period of 12 months beginning with the Completion Date.


2.2

Any notice referred to in paragraph 2.1 must:

 

  (a)

be given by the Buyer to the Seller as soon as reasonably practicable and, in any event, within 30 Business Days of the Buyer becoming aware of the facts, matters, circumstances or events giving rise to such Claim;

 

  (b)

include such detail and supporting evidence as is reasonably available to the Buyer at the time of the relevant facts and circumstances giving rise to the Claim, together with the Buyer’s good faith estimate of any alleged Liability; and

 

  (c)

specify (without prejudice to the Buyer’s right subsequently to identify other Warranties which are breached by the same facts) the specific Warranties or other provisions of this Deed which are alleged to have been breached,

but the failure of the notice from the Buyer to comply with the requirements of sub-paragraphs (a), (b) and (c) will not operate to limit the Seller’s liability except to the extent that the Seller’s ability to defend such Claim is prejudiced or the Seller’s liability (or reasonably and properly incurred costs and expenses of the Seller in defending such Claim) is increased as a result of such failure.

 

2.3

For the avoidance of doubt, the Buyer may give notice of any single Claim in accordance with paragraph 2, whether or not the amount set out in paragraph 1.4 has been exceeded at the time the notice is given.

 

2.4

The Seller will not be liable in respect of any Claim (other than a Tax Covenant Claim), and the Seller’s liability in respect of such Claim will cease (and no new Claim may be made in respect of the facts, matter, events or circumstances giving rise to such Claim) to the extent not previously satisfied, withdrawn or settled, six months after the date on which the notice referred to in paragraph 2.1 is given unless court proceedings in respect of the subject matter of the Claim:

 

  (a)

have been commenced by being both issued and validly served on the Seller; and

 

  (b)

have not been withdrawn or terminated and are continuing to be pursued with reasonable diligence by the Buyer.

 

3.

REMEDIABLE BREACHES

To the extent the fact, matter, event or circumstance giving rise to a Claim is capable of remedy, the Seller will not be liable for such Claim if and to the extent that it is remedied at the Seller’s cost and expense to the Buyer’s reasonable satisfaction within 60 Business Days of the date of the notice referred to in paragraph 2.1. Without prejudice to any obligation on the Buyer to mitigate any loss, the Buyer shall, and shall procure that each Buyer Group member shall, at the Seller’s cost and expense, provide reasonable assistance to the Seller to remedy any such fact, matter, event or circumstance.

 

4.

INDIRECT LOSS

 

4.1

The Seller will not be liable for any indirect loss.

 

4.2

The Seller will not be liable for any punitive loss, loss of profit (other than direct loss of profit, being a loss of profit that arises naturally from the relevant breach or circumstance), loss of goodwill, loss of opportunity or loss of reputation, whether actual or prospective, in respect of any Claim.


5.

DISCLOSURE

The Seller will not be liable in respect of any Claim (other than a Tax Covenant Claim) if and to the extent that the fact, matter, event or circumstance giving rise to such Claim is Disclosed:

 

  (a)

in the Disclosure Material, this Deed, any other Transaction Document or the Moranbah North SAPA;

 

  (b)

in the Pro forma Financial Information;

 

  (c)

in any information available, on the date that is two Business Days before the date of this Deed, on the PPS Register or public registers maintained by any of the Trade Marks Office, IP Australia, the Queensland Titles Registry, the Queensland Department of Environment, Science and Innovation, the Queensland Department of Natural Resources and Mines, the Commonwealth Department of Climate Change, Energy, the Environment and Water, the Clean Energy Regulator, the National Native Title Tribunal, ASIC or the Queensland Competition Authority;

 

  (d)

in any information available, on the following dates specified, on public registers maintained by:

 

  (i)

the High Court of Australia, as at the date which is two Business Days before the date of this Deed;

 

  (ii)

the Federal Court of Australia, as at the date which is two Business Days before the date of this Deed;

 

  (iii)

the Supreme Court of Queensland and District Court of Queensland, as at the date which is two Business Days before the date of this Deed;

 

  (iv)

the Land Court of Queensland, as at 19 November 2024;

 

  (v)

the Supreme Court of New South Wales, as at 18 November 2024;

 

  (vi)

the Supreme Court of Western Australia, as at 18 November 2024;

 

  (vii)

the Supreme Court of Victoria, as at 19 November 2024;

 

  (viii)

the Supreme Court of South Australia, as at 6 November 2024;

 

  (ix)

the Supreme Court of the Northern Territory, as at 18 November 2024;

 

  (x)

the Supreme Court of the Australian Capital Territory, as at 18 November 2024; or

 

  (e)

in any information available through releases on a Stock Exchange published by Anglo American plc (including quarterly, half yearly and annual reports) in the 12 month period prior to the date of this Deed, on or before the date that is two Business Days before the date of this Deed.

 

6.

BUYER’S KNOWLEDGE

 

6.1

The Seller will not be liable in respect of any Claim (other than a Tax Covenant Claim) if and to the extent that the Buyer Deal Team Members are aware, or ought reasonably to have been aware as at the date of this Deed (including after having made reasonable enquiries after they had each reviewed the Disclosure Material and read the Vendor Reports, this Deed and the Moranbah North SAPA, and any other Transaction Document) of the Claim or the fact, matter, event or circumstance which is the subject matter of the Claim.


6.2

The Buyer and the Buyer Guarantor acknowledge, agree, represent and warrant to the Seller, that at no time has the Seller or any person on their behalf made or given or has the Buyer or the Buyer Guarantor relied on any representation, warranty, promise or undertaking in respect of the future financial performance or prospects of the Group Companies (including any dividends which may be paid by the Group Companies) or otherwise (including in connection with any financial analysis or modelling conducted by the Buyer or any of their Representatives).

 

6.3

The Buyer and the Buyer Guarantor acknowledge, agree, represent and warrant to the Seller, that, notwithstanding anything in this Deed (but subject to the Warranties), neither the Seller (nor any of its Representatives) make any warranty or representation in respect of the future recoverable reserves, physical characteristics of or prospects in relation to the Mining Tenements. Without limiting the generality of the foregoing, the Seller makes no representation or warranty, whether express or implied, and disclaims any liability in respect of or as to:

 

  (a)

except as provided in the Warranty in paragraph 9.8 of Schedule 6, any personal property, the Plant and Equipment Assets (as defined in Schedule 6) and equipment located on the Mining Tenements;

 

  (b)

the state, condition, conformity to model or samples of any physical assets located on or forming part of the Mining Tenements or Properties, including all installations, structures, plants, equipment, machinery, and the Buyer and the Buyer Guarantor acknowledge and agree that all such assets and the Plant and Equipment Assets are transferred under this Deed on an “as is, where is” basis (subject to the Warranties);

 

  (c)

the amount, quality, price, or deliverability of, or values with respect to, any reserves attributable to the Mining Tenements;

 

  (d)

the issuance, reissuance or transfer of any permits related to the Mining Tenements (including the grant of any tenement from an application);

 

  (e)

any authorisation, consent, approval, or waiver required under any Mining Tenements, Properties or applicable Law;

 

  (f)

any geological, geophysical, engineering, economic, or other interpretations, forecasts, or evaluations in respect of the Mining Tenements, including in respect of any geological formation, drilling prospect, or reserves, and the Buyer affirms and acknowledges that it has made its own independent assessment and evaluation of these matters; or

 

  (g)

any forward-looking statements, forecasts, or financial projections, including present or future value of anticipated income, costs, or profits.

 

7.

CONTINGENT LIABILITIES

Other than in respect of a Tax Claim, the Seller will not be liable in respect of any liability which is contingent or otherwise not capable of being quantified in relation to any Claim unless and until such contingent or unquantifiable liability becomes an actual and quantifiable liability and is due and payable.


8.

PRO FORMA FINANCIAL INFORMATION / COMPLETION ACCOUNTS

 

8.1

The Seller will not be liable in respect of any Claim (other than a Tax Claim, to which the provisions of Schedule 8 will instead apply) to the extent of the amount of an allowance, provision or reserve in respect of the fact, matter, event or circumstance giving rise to such Claim has been made in the Pro forma Financial Information or such fact, matter, event or circumstance is provided for in the Completion Accounts.

 

8.2

If and to the extent that:

 

  (a)

the amount of any allowance, provision or reserve is made in the Pro forma Financial Information or the Completion Accounts or otherwise taken into account or reflected in them is found to be in excess of the matter for which such allowance, provision or reserve was made;

 

  (b)

any asset is found to have been included at an undervalue in the Pro forma Financial Information or the Completion Accounts or any liability is found to have been included at an overvalue in them; or

 

  (c)

any sum is received by any Group Company in relation to an asset which had been written off as irrecoverable or provided against in the preparation of the Pro forma Financial Information or the Completion Accounts,

then the amount of any such excess, undervalue, overvalue or receipt (less any applicable Tax) (as the case may be) will be credited against and applied in relieving the Seller from any liability it would otherwise incur in respect of any Claims.

 

9.

ALTERNATIVE RECOVERY

 

9.1

The Seller will not be liable in respect of any Claim to the extent of the amount of the Liabilities to which the Claim relates has otherwise been made good or has otherwise been compensated for in full without loss to any Buyer Group member.

 

9.2

The Seller will not be liable in respect of any Claim (other than a Tax Claim, to which the provisions of Schedule 8 will instead apply) if the Buyer Group has a right of recovery against, or indemnity from, any third party, including pursuant to any insurance policy (whether under provision of law, contract or otherwise) in respect of the Liabilities to which the Claim relates, unless the Buyer Group has first used reasonable endeavours to recover from such third party (an “Alternative Recovery Claim”).

 

9.3

In respect of any Alternative Recovery Claim, the Buyer shall:

 

  (a)

as soon as reasonably practicable give written notice of the Alternative Recovery Claim to the Seller specifying in reasonable detail the material aspects of the Alternative Recovery Claim;

 

  (b)

keep the Seller reasonably informed of the progress of the Alternative Recovery Claim;

 

  (c)

provide the Seller (at the Seller’s cost and expense) with copies of all material correspondence or other documents relating to the Alternative Recovery Claim requested by the Seller, subject always to legal professional privilege and any confidentiality obligations that are binding on any Buyer Group member; and

 

  (d)

use reasonable endeavours to consult with the Seller regarding the conduct of the Alternative Recovery Claim.


9.4

The Buyer will not be precluded from bringing any Claim under this Deed by reason of any breach of the terms of paragraph 9.3, but the Seller will not be liable in respect of any relevant Claim to the extent the Seller’s liability would otherwise arise or be increased by such breach.

 

10.

SUBSEQUENT RECOVERY

If the Seller pays the Buyer any amount in respect of a Claim (other than a Tax Claim, to which the provisions of Schedule 8 will instead apply) and the Buyer or any Buyer Group member is or subsequently becomes entitled to recover from any person other than the Seller a sum which is referable to that Claim (including any by way of discount, relief or credit), the Buyer shall give prompt notice to the Seller, and shall, and shall procure that any relevant Buyer Group member shall, use reasonable endeavours to seek recovery from such third party. If any amount is actually recovered from such third party, such amount must promptly be repaid by the Buyer to the Seller.

 

11.

FINANCIAL BENEFIT

In calculating the Seller’s liability in respect of any Claim, any net quantifiable financial benefit to any Buyer Group member as a result of the matter giving rise to such Claim or the Claim itself will be taken into account, including the amount by which any Taxation for which any Buyer Group member is accountable or liable to be assessed is actually reduced or extinguished as a result of the matter giving rise to such Claim or the Claim itself provided such reduction will be realised not later than the tax period in which the payment from the Seller falls due.

 

12.

NO DUPLICATION OF RECOVERY

 

12.1

The Buyer will not be entitled to recover damages or obtain payment, reimbursement, restitution or indemnity more than once in respect of the same Liabilities, regardless of whether more than one Claim arises in respect of it, or whether any such claim arises under or in respect of the Moranbah North SAPA, and for this purpose recovery by the Buyer or any Group Company will be deemed to be a recovery by each of them.

 

12.2

If the Buyer is entitled to claim under the Tax Covenant and under the Warranties in respect of the same liability, the Buyer may claim under either or both, but payments under the Tax Covenant will satisfy and discharge any Claim which is capable of being made under the Warranties in respect of the same liability and vice versa to the extent of the amount paid.

 

13.

VOLUNTARY ACTS/FUTURE CHANGES

The Seller will not be liable in respect of any Claim (other than a Tax Claim, to which the provisions of Schedule 8 will instead apply) if and to the extent that the Claim would not have arisen but for, or is increased or not reduced as a result of:

 

  (a)

the completion of the sale of any Participating Interest required upon receipt of a Pre-emption Acceptance Notice;

 

  (b)

any act or omission by the Seller or any Seller’s Affiliate or any Group Company as a consequence of the execution and / or performance of any Transaction Document, and / or the Moranbah North SAPA;

 

  (c)

any act or omission of the Seller, any Seller’s Affiliate or any Group Company before Completion taken at the written request of or with the Buyer’s written consent;


  (d)

any failure by the Buyer to act in accordance with paragraph 14 of this Schedule in connection with the matter giving rise to such Claim;

 

  (e)

any act or omission of any Buyer Group member, or any of their directors, officers, employees, agents or consultants after Completion which is outside its ordinary course of business as conducted at Completion and is not carried out pursuant to a legally binding obligation entered into on or before Completion or pursuant to any obligation imposed by Law, but in each case only in circumstances where:

 

  (i)

the relevant person knew that the relevant Claim would arise or was reasonably likely to arise because of the voluntary act and that an alternative course of action was available at no additional cost to the relevant Buyer Group member; and

 

  (ii)

the act or omission was not carried out in the ordinary course of business of the relevant Buyer Group member or pursuant to a legally binding commitment of any Buyer Group member created on or before Completion, in complying with any law or applicable regulation or at the written request of any Tax Authority or at the Seller’s or Seller’s Affiliate’s written request or with the written consent of the Seller or Seller’s Affiliate;

 

  (f)

any winding-up or cessation of, or any change in, the nature or conduct of any business carried on by a Buyer Group member after Completion;

 

  (g)

any reorganisation or change in ownership of any Group Company or any Participating Interest after Completion, other than to the extent that the Buyer has entered into an agreement to dispose of the Dawson Participating Interest, the Dawson South Participating Interest, the Dawson South Exploration Participating Interest and the Theodore South Participating Interest (or companies holding those participating interest, or any combination thereof) (“Dawson Carve Out Assets”) on or before Completion, in which case the Buyer can make Claims under this Deed in respect of Liabilities suffered in relation to the Dawson Carve Out Assets that have been disposed, which if made, will be determined in accordance with the terms of this Deed (including being subject to the relevant qualifications and limitations described in this Deed (including Schedule 7) on the basis that the Buyer is deemed to still own the Dawson Carve Out Assets, in respect of any such Claim, the Buyer would have suffered the relevant Liability, provided that:

 

  (i)

the Seller’s Liability to the Buyer will be:

 

  (A)

no greater than if the Buyer had not made such a disposal and had continued to operate the Dawson Carve Out Assets in the ordinary course; and

 

  (B)

in any event not greater than the Buyer’s own Liability;

 

  (ii)

the Buyer shall indemnify each Indemnified Party on demand (on a dollar for dollar basis) against all Liabilities which may be suffered or incurred by the Indemnified Parties as a result of any claim, proceeding, suit or action by or in relation to a third party acquirer of the Dawson Participating Interest, the Dawson South Participating Interest, the Dawson South Exploration Participating Interest and the Theodore South Participating Interest (or companies holding those participating interest, or a combination thereof) in connection with such acquisition; and


  (iii)

notwithstanding anything in this paragraph 13(g) of Schedule 7 the Seller will not liable in respect of any Claim if and to the extent the purchaser of the Dawson Carve Out Assets or any of its Affiliates:

 

  (A)

has a right of recovery against, or indemnity from, any third party (other than the Buyer), including pursuant to any insurance policy (whether under provision of law, contract or otherwise) in respect of the Liabilities to which the Claim relates, unless the purchaser of the Dawson Carve Out Assets has first used reasonable endeavours to recover from such third party; or

 

  (B)

has failed to take reasonable steps to mitigate any Liabilities to which the Claim relates;

 

  (h)

any alteration to or enactment (other than a re-enactment) of any statute, statutory instrument or other legislative act or other change of Law (including any decision of any court or tribunal) or any practice of any Authority (including the withdrawal of any extra-statutory concession of a Tax Authority) which is announced and enacted after the date of this Deed (whether relating to Taxation, rates of Taxation or otherwise);

 

  (i)

the withdrawal or amendment of or change to any practice, concession or written agreement or administrative arrangements with any Group Company previously made by any Tax Authority in force at the date of this Deed;

 

  (j)

any change in the accounting reference date or the length of any accounting period of any Buyer Group member made on or after Completion; or

 

  (k)

any change in the accounting bases, policies, practices or methods applied in preparing any accounts or valuing any assets or liabilities of any Group Company from those used in the preparation of the Pro forma Financial Information other than a change which is reported by a Group Company’s auditors at the time to be necessary in their opinion because such bases, policies, practise or methods as at Completion are not in accordance with any appropriate published accounting practices or principles then current.

 

14.

CONDUCT OF THIRD-PARTY CLAIMS

In respect of any fact, matter, event or circumstance which any Buyer Group member becomes aware of, which is reasonably likely to result in a claim against any of them which is not a Moranbah North Claim (a “Third-Party Claim”) and which, in turn, is reasonably likely to result in a Claim (other than a Tax Claim, to which the provisions of Schedule 8 will instead apply), the Buyer shall:

 

  (a)

as soon as reasonably practicable give written notice of the Third-Party Claim to the Seller specifying in reasonable detail the material aspects of the Third-Party Claim (but any failure to do so will not prejudice the Buyer’s Claim except to the extent the amount of the Claim is increased by the delay);

 

  (b)

keep the Seller reasonably informed of the progress of the Third-Party Claim;

 

  (c)

provide the Seller upon request (and at the Seller’s cost and expense) with copies of all material correspondence or other documents relating to the Third-Party Claim requested by the Seller, subject always to legal professional privilege and any confidentiality obligations that are binding on any Buyer Group member;


  (d)

consult with the Seller regarding the conduct of the Third-Party Claim;

 

  (e)

not cease to defend the Third-Party Claim or make any admission of liability or any agreement, compromise or payment in relation to the Third-Party Claim without the Seller’s written consent, which will not be unreasonably withheld or delayed;

 

  (f)

take such action as the Seller may reasonably request to avoid, resist, dispute, appeal, compromise, remedy or defend the Third-Party Claim; and

 

  (g)

subject to any consent (if any) required under a Joint Venture Agreement (which the Buyer must (and must procure any Group Company must) use reasonable endeavours to obtain), allow the Seller, at its election (in writing), to take over the conduct of the Third-Party Claim, in which case:

 

  (i)

the Buyer shall:

 

  (A)

delegate the conduct of any proceedings in respect of the Third-Party Claim to the Seller;

 

  (B)

retain such legal advisers as nominated by the Seller to act on behalf of the relevant member(s) of the Buyer Group in relation to the Third-Party Claim in accordance with the Seller’s instructions (provided the Buyer is entitled to engage its own separate legal advisers, at its own cost and expense);

 

  (C)

procure that its Representatives provide such information and assistance as the Seller or the appointed legal advisers may require in connection with the conduct of the Third-Party Claim (subject to the Seller paying reasonable cost and expenses of such Representatives in providing such information and assistance); and

 

  (D)

procure that the relevant Group Company will promptly take such actions or omit to take such actions as directed by the Seller in accordance with its rights under this paragraph 14; and

 

  (ii)

the Seller shall:

 

  (A)

keep the Buyer reasonably informed of the progress of the Third-Party Claim;

 

  (B)

provide the Buyer upon request with copies of all material correspondence or other documents relating to the Third-Party Claim requested by the Buyer, subject always to legal professional privilege and any confidentiality obligations that are binding on the Seller or any of its Affiliates;

 

  (C)

consult with the Buyer regarding the conduct of the Third-Party Claim;

 

  (D)

not cease to defend the Third-Party Claim or make any admission of liability or enter into any agreement or compromise in relation to such Third-Party Claim without consultation with the Buyer; and

 

  (E)

have a consent right, not to be unreasonably withheld or delayed, in respect of any admission of liability, compromise or settlement or payment in respect of any Third-Party Claim by any Buyer Group member;


  (F)

act reasonably in all the circumstances in respect of the conduct of the Third-Party Claim, including having regard to the likelihood of success the proceedings; and

 

  (G)

provided that the Buyer has complied with its obligations under paragraph 14(g)(i), indemnify the Buyer on demand (on a dollar for dollar basis) against all Liabilities reasonably incurred by the Buyer and its Affiliates in connection with the conduct of the Third-Party Claim by the Seller.

 

15.

DUTY TO MITIGATE

The Buyer shall procure that reasonable steps and proceedings are taken by each Buyer Group member and each of their directors and officers to mitigate any Liabilities, Claim (other than a Tax Covenant Claim) or potential Claim (other than a Tax Covenant Claim). Nothing in this Deed will relieve the Buyer of the common law rules of mitigation in respect of its loss.

 

16.

SELLER ACCESS

In the event of an actual or potential Claim, the Buyer shall, subject to the Seller giving such undertakings as to confidentiality as the Buyer may reasonably require, procure that the Seller and its Representatives are provided, upon reasonable notice and during Working Hours, with all such assistance, documentation, information and access to such information, records, premises and personnel of the relevant Group Companies as they may reasonably require (but excluding anything which is subject to legal privilege) to investigate, avoid, remedy, dispute, resist, appeal, compromise or contest such Claim and shall permit the Seller and its Representatives to make copies of such documentation and information to the extent relevant to the Claim.

 

17.

APPLICATION TO EXCLUDED CLAIMS

 

  (a)

Paragraphs 1.2 to 1.4, 2, 5 and 6 of this Schedule 7 do not apply to Excluded Claims.

 

  (b)

Paragraph 1.1 of this Schedule 7 does not apply to a Claim in respect of Clause 19.3.

 

  (c)

Without limiting paragraph 17(a), the Seller Group will not be liable in respect of any single Excluded Claim or any series of Excluded Claims which arise from the same or substantially the same facts, matters, circumstances or events (and such Excluded Claim(s) will be disregarded for all purposes) unless the amount of the liability pursuant to such Excluded Claim or series of Excluded Claims would exceed $50,000.


SCHEDULE 8

TAX COVENANT

 

1.

DEFINITIONS AND INTERPRETATION

 

1.1

In this Schedule:

Actual Tax Liability” means a liability of a Group Company to make a payment (or increased payment) of Tax or a payment in respect of, or on account of, Tax;

Buyer’s Relief” means:

 

  (a)

any Post-Completion Relief; and

 

  (b)

any Relief arising to any member of the Buyer’s Tax Group (other than a Group Company) at any time;

Buyers Tax Group” means the Buyer and each other company which is, or is for a Tax purpose, treated as being a member of the same group as, or otherwise controlled by, connected with, or associated in any way with, the Buyer from time to time;

Consolidated Return” has the meaning given in paragraph 6.1;

Deemed Tax Liability” means the use or set-off of a Buyer’s Relief in circumstances where, but for the use or set-off, a Group Company would have had an Actual Tax Liability in respect of which the Seller would have had a liability under this Schedule, and the amount that is to be treated for the purposes of this Schedule as a Deemed Tax Liability will be determined as follows:

 

  (a)

where the Relief that is used or set-off is a deduction from or offset against Tax, the Deemed Tax Liability will be the amount of that Relief so used or set-off;

 

  (b)

where the Relief that is used or set-off is a deduction from or offset against Income, Profits or Gains, the Deemed Tax Liability will be the amount of Tax saved as a result of such use or set-off; and

 

  (c)

where the Relief that is the subject of the set-off is a repayment of Tax, credit or other amount payable by a Tax Authority, the Deemed Tax Liability will be the amount that would have been obtained but for the set-off;

Demand” means:

 

  (a)

any notice, demand, assessment, letter or other document issued, or action taken by, or on behalf of, any Tax Authority; or

 

  (b)

the preparation or submission to a Tax Authority of a Tax Return by the Buyer, any Group Company or another person,

from which it appears that a Tax Liability is, or is likely to be, incurred by or imposed on any Group Company;

Event” includes (without limitation) any event, transaction, act, payment, action, circumstance, state of affairs, default, omission or occurrence of any nature (including, for the avoidance of doubt, Completion itself) and whether or not the Buyer or any Group Company is a party to it, and reference to an Event occurring on or before a particular date includes Events which for Tax purposes are deemed to have, or are treated as having, occurred on or before that date;


Income, Profits or Gains” includes income, profits or gains which are deemed to be earned, accrued or received for Tax purposes, and references to Income, Profits or Gains earned, accrued or received on or before a particular date means Income, Profits or Gains which are regarded as having been, or are deemed to have been, earned, accrued or received on or before that date for Tax purposes;

Independent Tax Expert” means a legal practitioner with at least 10 years’ experience in Tax (at ‘Partner’ or comparable senior level) that is independent of each of the Buyer and the Seller and appointed by the parties under paragraph 6.10;

Other Tax Return” means any Tax Return for or in respect of any accounting period or other tax reporting period of a Group Company which is not a Consolidated Return;

Overprovision” means (applying the accounting policies, principles and practices adopted in relation to the preparation of the Completion Accounts) the amount by which any provision for Tax (other than deferred tax) in the Completion Accounts is overstated but disregarding any overstatement to the extent that it arises as a result of:

 

  (a)

a change in legislation (or a change in interpretation on the basis of case law), a change in the published practice of any Tax Authority, a change in generally accepted accounting principles or a change in the rates of Tax, in each case announced and taking effect after the date of this Deed;

 

  (b)

a voluntary act of the Buyer or the relevant Group Company after Completion;

 

  (c)

any change after Completion of accounting policy, method or basis of a Group Company or the date to which a Group Company makes up its accounts; or

 

  (d)

the use of any Buyer’s Relief;

Post-Completion Relief” means a Relief which arises:

 

  (a)

as a consequence of, or in connection with, any Event occurring (or being treated for Tax purposes as occurring) after Completion; or

 

  (b)

in respect of a period falling after Completion;

Relevant Percentage” means in respect of a Group Company, the percentage economic interest in that Group Company directly or indirectly acquired by the Buyer pursuant to this Deed;

Resolution Institute” means the Resolution Institute ABN 69 008 651 232;

Straddle Period” means an accounting period or other tax reporting period of a Group Company that begins on or before the Completion Date and ends after the Completion Date; and

Tax Liability” means an Actual Tax Liability or a Deemed Tax Liability.

 

1.2

For the purpose of this Schedule and, in particular, computing any Tax Liability or Relief and for determining whether and to what extent a Tax Liability or a Relief relates to a pre- or post-Completion period, any Taxes of a Group Company with respect to any Straddle Period shall be apportioned between the portion of such period up to and including the Completion Date and the portion of such period that begins after the Completion Date on the basis that an accounting or other tax reporting period is deemed to have ended as of the close of business on the Completion Date.


1.3

References in this Schedule to paragraphs are to paragraphs in this Schedule unless otherwise stated.

 

2.

COVENANT TO PAY

 

2.1

Subject to the provisions of paragraph 3 and Schedule 7 of this Deed, the Seller covenants with the Buyer to pay to the Buyer an amount equal to the Relevant Percentage of:

 

  (a)

any Actual Tax Liability:

 

  (i)

arising as a consequence of or by reference to any Event which occurred on or before Completion or was deemed to occur on or before Completion for the purposes of any Tax but excluding any such Actual Tax Liability to the extent that it arises in respect of or by reference to any Income, Profits or Gains;

 

  (ii)

arising in respect of or by reference to any Income, Profits or Gains to the extent that such Income, Profits or Gains were earned, accrued or received on or before Completion;

 

  (b)

any Deemed Tax Liability; and

 

  (c)

all reasonable out of pocket costs and expenses properly incurred by or on behalf of the Buyer or any Group Company (other than any management costs and expenses) in connection with:

 

  (i)

a liability of the kind referred to in paragraph 2.1(a) or 2.1(b); or

 

  (ii)

successfully taking or defending any action against the Seller under this Schedule.

 

3.

LIMITATIONS AND EXCLUSIONS

 

3.1

The Seller shall not be liable under paragraph 2 of this Schedule 8 or for breach of the Tax Warranties in respect of a liability of a Group Company (treating the relevant loss giving rise to a claim for a breach of a Tax Warranty as if, for the purposes of this paragraph 3, it was a liability) to the extent that:

 

  (a)

the liability in question has been paid or discharged before Completion or such payment or discharge was economically taken into account or economically reflected in the Completion Accounts;

 

  (b)

provision or reserve was made in the Completion Accounts in respect of the liability in question;

 

  (c)

the liability in question arises, or is increased, as a result of a change in legislation (or a change in interpretation on the basis of case law), a change in the published practice of any Tax Authority, a change in generally accepted accounting principles or a change in the rates of Tax, in each case announced and taking effect after the date of this Deed;

 

  (d)

the liability in question would not have arisen but for a voluntary act or omission of the relevant Group Company after Completion or any other member of the Buyer’s Tax Group at any time, other than an act which:


  (i)

is in the ordinary course of business as carried on by the relevant Group Company at or before Completion;

 

  (ii)

is carried out at the written direction or request or with the written consent of the Seller; or

 

  (iii)

is carried out pursuant to any legally binding obligation of any Group Company created or incurred before Completion;

 

  (e)

the liability in question would not have arisen but for a voluntary act or omission of the Seller or any Group Company, in either case on or before Completion, at the written direction or request or with the written consent of the Buyer;

 

  (f)

the liability in question comprises interest arising by virtue of an instalment of Tax paid prior to Completion proving to be an underpayment, insofar as it would not have been an underpayment but for an amount of Income, Profits or Gains actually earned, accrued or received after Completion exceeding the amount taken into account in calculating the relevant instalment of Tax;

 

  (g)

the liability in question would not have arisen but for any change after Completion of accounting policy, method or basis of a Group Company or the date to which a Group Company makes up its accounts, except where such change is necessary so as to ensure compliance with law or generally accepted accounting principles (as applied at Completion) where a Group Company was before, or on, Completion not so compliant;

 

  (h)

the liability in question would not have arisen but for the failure or omission on the part of a Group Company to comply with a written request of the Seller or its duly authorised agents to make a valid claim, election, surrender or disclaimer or to give a valid notice or consent to do any other thing, under the provisions of an enactment or regulation relating to Tax after Completion, the making, giving or doing of which was taken into account in the Completion Accounts;

 

  (i)

a Relief (other than a Buyer’s Relief) is available to the relevant Group Company, or is for no consideration made available by the Seller to the Group Company, to set against or otherwise mitigate the liability in question (and the Buyer shall, at the Seller’s written request, provide the Seller with such information and access to the Buyer’s personnel and advisors as the Seller may reasonably require in order to determine the availability of any such Relief);

 

  (j)

the amount of the liability in question has been recovered from a person (excluding any Group Company, the Buyer or any other member of the Buyer’s Tax Group) without cost to the Buyer or any Group Company;

 

  (k)

the Income, Profits or Gains in respect of which the liability in question arises were actually earned, accrued or received by a Group Company on or before Completion and were not reflected in the Completion Accounts but should have been so reflected, and the benefit of such Income, Profits or Gains was either retained by the relevant Group Company or expended in the ordinary course of its business;

 

  (l)

the liability in question comprises interest, penalties, charges or costs in so far as attributable to the unreasonable delay or default of the Buyer or any Group Company after Completion (including for the avoidance of doubt a delay or default of the Buyer or any Group Company in paying to a Tax Authority any amount received from the Seller pursuant to paragraph 2 of this Schedule) or arises as a result of the failure of the Buyer to comply with any of its obligations under this Deed;


  (m)

the liability in question is Tax to which Clause 43.2 of this Deed applies; or

 

  (n)

the Buyer has otherwise made recovery in respect of that liability under this Schedule or under any provision of this Deed or any other Transaction Document.

 

3.2

Certain provisions of Schedule 7 contain further limitations which apply to claims under this Schedule.

 

3.3

The Seller shall have no liability to the Buyer under any part of this Deed in respect of any non-availability, inability to use, or loss or restriction of any Relief other than to the extent it gives rise to a Tax Liability to which paragraph 2 of this Schedule 8 applies.

 

4.

MANNER OF MAKING AND CONDUCT OF CLAIMS

 

4.1

If any Group Company or any other member of the Buyer’s Tax Group becomes aware of a Demand issued after Completion which could give rise to a liability for the Seller under paragraph 2 of this Schedule 8 or for breach of the Tax Warranties:

 

  (a)

the Buyer shall give written notice to the Seller of the Demand (including reasonably sufficient details of the Demand, the due date for payment and the time limits for any appeal) as soon as reasonably practicable (and in any event no more than five Business Days) after the Buyer or the relevant Group Company becomes aware of the Demand;

 

  (b)

the Buyer shall take (or shall procure that the relevant Group Company shall take) such action as the Seller may reasonably request in writing to avoid, dispute, resist, appeal, compromise or defend the Demand;

 

  (c)

the Seller shall have the right (if it wishes) to control any proceedings, negotiations, discussions, settlement and any other matter in connection with the action referred to in paragraph 4.1(b); and

 

  (d)

both parties must be kept fully informed of any actual or proposed material developments (including any meetings) relating to the Demand or any action referred to in this paragraph 4.1; and the Buyer undertakes that it shall, and shall procure that each Group Company shall, afford to the Seller reasonable access to all material correspondence and documentation relating to the Demand or action and any other information, assistance and access to records and personnel as it reasonably requires in connection with the Demand or action.

 

4.2

The Seller shall indemnify the Buyer, the relevant Group Company and any other member of the Buyer’s Tax Group (as applicable) against all reasonable out of pocket costs properly incurred in connection with any action referred to in paragraph 4.1(b) or paragraph 4.1(c) (excluding, for the avoidance of doubt, any costs attributable to internal management or personnel time).

 

4.3

Subject to paragraph 4.4, the Buyer must ensure that no matter relating to the Demand referred to in paragraph 4.1 is settled, disposed of or otherwise compromised without the Seller’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed.

 

4.4

If the Seller does not:

 

  (a)

request the Buyer to take, or procure the taking of, any such action as referred to in paragraph 4.1(b); or


  (b)

give written notice to the Buyer that it wishes to exercise its right under paragraph 4.1(c),

within 20 Business Days of receipt by the Seller of a notice under paragraph 4.1(a), then the Buyer shall be free to satisfy or settle the Demand on such terms as it may in its sole discretion think fit, if, in each case, the Buyer has given further notice to the Seller stating its intention to exercise such entitlement, and the Seller has not within 10 Business Days of the date that such further notice is received by the Seller: (i) made such request as referred to in paragraph 4.4(a); or (ii) given written notice to the Buyer as referred to in paragraph 4.4(b).

 

4.5

If, due to a shorter time limit applying for a response to a Tax Authority in respect of a Demand, the Seller and the Buyer are unable to comply with the timing requirements described in paragraph 4.4, then: (i) the parties shall use their good faith efforts to give effect to paragraph 4.4 so as to provide each of the parties with sufficient notice and opportunity to prepare a response to the Demand; and (ii) if reasonably requested by the Seller and permitted under applicable law, the Buyer shall cause the relevant Group Company to apply for an extension to the date by which a response to the Demand is required.

 

5.

PAYMENT OF CLAIMS

 

5.1

Payments by the Seller of any liability under this Schedule must be made in cleared and immediately available funds on the days specified in paragraph 5.2.

 

5.2

The days referred to in paragraph 5.1 are as follows:

 

  (a)

in the case of an Actual Tax Liability, the day which is two Business Days prior to the date on which the Tax is to be paid to the relevant Tax Authority, as notified by the Buyer to the Seller at least five Business Days prior to such day or, if later, five Business Days after demand is made for payment by the Buyer;

 

  (b)

in the case of a Deemed Tax Liability, the later of five Business Days after demand is made for payment by or on behalf of the Buyer and the day on which the Tax which would have been payable but for the use or set-off would otherwise have been due and payable to the relevant Tax Authority; and

 

  (c)

in any other case, five Business Days after the date on which demand is made for payment by or on behalf of the Buyer.

 

6.

TAX RETURNS AND COMPUTATIONS

 

6.1

Notwithstanding any other provision in this paragraph 6:

 

  (a)

the Seller will, at its sole cost and expense, have the sole conduct and control of the preparation and (to the extent legally possible) lodgement, filing or submission (as applicable) of all consolidated income tax returns (including for the avoidance of doubt any amendment to any such consolidated income tax return) of the Seller Consolidated Group for all Tax periods (“Consolidated Return”); and

 

  (b)

if a Consolidated Return in respect of an income year ending prior to Completion is not lodged prior to Completion or requires amendment after Completion, and the lodgement obligation in respect of such Consolidated Return or amended Consolidated Return falls on a Group Company from Completion, the Buyer will procure that the relevant Consolidated Return or amended Consolidated Return is signed and lodged with the relevant Tax Authority in the form provided by the Seller without amendment.


6.2

Subject to a direction being given by the Seller to the Buyer under paragraph 6.4, the Seller or its duly authorised agents will (at the Seller’s expense) be responsible for preparing, submitting to and / or agreeing with the relevant Tax Authorities all Other Tax Returns for accounting periods or other tax reporting periods ending on or before Completion (whether such Other Tax Returns are submitted before or after Completion).

 

6.3

For the purposes of paragraph 6.2:

 

  (a)

all Other Tax Returns must be submitted in draft form by the Seller to the Buyer or its duly authorised agents for comment at a reasonable time, and in any event at least (i) in the case of an Other Tax Return relating to GST or payroll tax, or royalties in relation to coal or coal seam gas, five Business Days, and (ii) in all other cases, 20 Business Days, before the last date on which the Other Tax Return may be filed with the relevant Tax Authority without incurring interest and penalties;

 

  (b)

if it wishes to do so, the Buyer or its duly authorised agent must comment (i) where such Other Tax Return relates to GST or payroll tax, or royalties in relation to coal or coal seam gas, within three Business Days, and (ii) in all other cases, within 10 Business Days, of its receipt of any such Other Tax Returns from the Seller (“Buyer Response Period”), and if the Seller has not received any comments within the Buyer Response Period, the Buyer and its duly authorised agents will be deemed to have approved such draft documents;

 

  (c)

the Seller must take into account all reasonable comments and suggestions made by the Buyer or its duly authorised agents that are received within the Buyer Response Period;

 

  (d)

if the Seller and the Buyer do not agree on any item set out in an Other Tax Return, the Seller and the Buyer must attempt to resolve the dispute as soon as practicable, and in the absence of reaching an agreement paragraph 6.10 will apply;

 

  (e)

the Seller and the Buyer must each afford (or procure that there is afforded) to the other or their duly authorised agents, information and assistance which may reasonably be required to prepare, submit and agree all outstanding Other Tax Returns relating to the Group Companies; and

 

  (f)

the Seller and the Buyer must as soon as practicable deliver to each other copies of all correspondence sent to or received from any Tax Authority relating to the Group Companies.

 

6.4

Notwithstanding paragraphs 6.2 and 6.3, the Seller may in its discretion direct the Buyer in writing to prepare, submit to and / or agree with the relevant Tax Authorities (at the Seller’s expense) any Other Tax Return for an accounting period or other tax reporting period of a Group Company ending on or before Completion, in which case paragraph 6.7(b) will apply.

 

6.5

The Buyer shall be responsible for preparing, submitting to and / or agreeing with the relevant Tax Authorities all Other Tax Returns for any Straddle Period, subject to paragraph 6.7.

 

6.6

The Buyer shall procure that the Group Companies shall cause the Other Tax Returns mentioned in paragraphs 6.2, 6.4 and 6.5 (as applicable) to be signed and submitted to the appropriate Tax Authority on a timely basis and only with such amendments as are incorporated in accordance with paragraphs 6.3 and 6.7 (as applicable).

 


6.7

The provisions of paragraph 6.3 will apply in respect of:

 

  (a)

any Other Tax Return for a Straddle Period as if the word “Seller” reads “Buyer” and the word “Buyer” reads “Seller”, but the Seller will only have a right to comment on any matter, or receive copies of correspondence, to the extent they are reasonably expected to be relevant to a liability of the Seller under this Schedule or under the Tax Warranties; and

 

  (b)

any Other Tax Return in respect of which the Seller has given a direction to the Buyer under paragraph 6.4 as if the word “Seller” reads “Buyer” and the word “Buyer” reads “Seller”, but the Buyer must incorporate all comments and suggestions made by the Seller or its duly authorised agents that are provided in accordance with paragraph 6.3(b).

 

6.8

If, due to a shorter time limit applying in relation to the filing of an Other Tax Return, the Seller and the Buyer are unable to comply with the timing requirements described in this paragraph 6, then: (i) the parties shall use their good faith efforts to give effect to this paragraph 6 so as to provide each of the parties with sufficient notice and opportunity for review and comment with respect to such Other Tax Return; and (ii), if reasonably requested by the Seller and permitted under applicable law, the Buyer shall cause the relevant Group Company to apply for an extension of the filing date of such Other Tax Return.

 

6.9

For the avoidance of doubt where any matter relating to Tax gives rise to a Demand to which the provisions of paragraph 4 apply, the provisions of paragraph 4 will in the event of a conflict take precedence over the provisions of this paragraph 6.

 

6.10

If the Buyer and the Seller have not resolved a dispute under this paragraph 6 in respect of an Other Tax Return within 10 Business Days after the dispute arises, either the Buyer or the Seller may refer the matter to an Independent Tax Expert in accordance with this paragraph 6.10 and the following provisions will apply:

 

  (a)

the Independent Tax Expert must be agreed by the Buyer and the Seller, but if the Buyer and the Seller cannot agree within five Business Days after either the Buyer or the Seller requests such an appointment, then, either the Buyer or the Seller may request that the Resolution Institute nominates the Independent Tax Expert in accordance with the Resolution Institute’s expert determination rules;

 

  (b)

if the Buyer or the Seller requests that the Resolution Institute nominates the Independent Tax Expert, the Buyer and the Seller must comply with all requirements of the Resolution Institute for the provision of that nomination, including, if applicable, providing the Resolution Institute with:

 

  (i)

a copy of relevant provisions of this Deed;

 

  (ii)

a description of the disputed matters; and

 

  (iii)

the approximate value of, and the technical areas involved in, the disputed matters;

 

  (c)

if the Resolution Institute nominates a list of persons to be the Independent Tax Expert rather than one particular person, the first person named on that list, who accepts the appointment, will be the Independent Tax Expert;

 

  (d)

the disputed matters must be submitted to the Independent Tax Expert to settle with the relevant draft Other Tax Return and an extract of the relevant provisions of this Deed;

 

  (e)

the Buyer and the Seller must instruct the Independent Tax Expert to:


  (i)

finish its determination of the disputed matters as soon as practicable; and

 

  (ii)

deliver to the Buyer and the Seller a report that states, on the basis of the Independent Tax Expert’s determination, its opinion as to:

 

  (A)

the disputed matters, including the reasons for the Independent Tax Expert’s determination; and

 

  (B)

the allocation of the Independent Tax Expert’s costs;

 

  (f)

the Buyer and the Seller must promptly supply the Independent Tax Expert with any information, assistance and cooperation requested in writing by the Independent Tax Expert in connection with its determination;

 

  (g)

all written correspondence between the Independent Tax Expert and the Seller must be copied to the Buyer, and all written correspondence between the Independent Tax Expert and the Buyer must be copied to the Seller;

 

  (h)

the Independent Tax Expert will act as an expert and not as an arbitrator and its written determination will be final and binding on the Buyer and the Seller in the absence of manifest error; and

 

  (i)

the costs of:

 

  (i)

the Resolution Institute (if requested) in providing its nomination of the Independent Tax Expert; and

 

  (ii)

the Independent Tax Expert,

will be borne by the Seller as to one half, and the Buyer as to one half unless, in respect of only the costs of the Independent Tax Expert, the Independent Tax Expert decides otherwise having regard to the relative position of the Buyer and the Seller on the disputed matters.

 

7.

CORRESPONDING SAVINGS AND THIRD PARTY RECOVERY

 

7.1

If any Tax Liability which has resulted in a payment having been made by the Seller under this Schedule or for breach of any of the Tax Warranties has given rise to a Relief which would not otherwise have arisen and has not been taken into account in calculating the liability of the Seller under this Deed:

 

  (a)

the Buyer must procure that full details of the Relief are given to the Seller as soon as reasonably practicable;

 

  (b)

to the extent that a liability of a Group Company or the Buyer to make an actual payment of Tax (in respect of which the Seller would not have been liable under this Schedule or under the Tax Warranties (ignoring paragraph 1 and paragraph 2 of Schedule 7)) is reduced as a result of the use or set-off of the Relief, the Buyer must pay to the Seller on the date when the Buyer or relevant Group Company would have been under an obligation to make the reduced payment of Tax an amount equal to the lower of:

 

  (i)

the amount by which the liability is reduced, plus (in respect of a Relief which is a repayment of Tax) any interest or repayment supplement received in relation to the Relief; and


  (ii)

the amount of the payment previously made by the Seller in respect of the Tax Liability giving rise to the Relief,

save that the amount referred to above shall first be applied to reduce or eliminate any payment then due from the Seller to the Buyer under this Schedule or for breach of the Tax Warranties.

 

7.2

If the Seller at any time:

 

  (a)

pays to the Buyer an amount under this Schedule or for breach of any of the Tax Warranties; or

 

  (b)

has agreed in writing that it is liable to pay such amount,

and the Buyer or any Group Company is or becomes entitled to recover from some other person (other than another member of the Buyer’s Tax Group) any sum in respect of the matter giving rise to the payment, the Buyer shall notify the Seller in writing of the existence of the right to recover as soon as reasonably practicable and must take all reasonable steps to enforce such recovery from that other person.

 

7.3

If the Seller has already paid the relevant amount (as described in paragraph 7.2(a)), the Buyer shall within five Business Days of such recovery, pay to the Seller the lesser of:

 

  (a)

the sum so recovered by the Buyer or the relevant Group Company (as applicable) from the other person (including sums recovered in respect of costs and any interest or repayment supplement received in respect of the sum recovered); and

 

  (b)

the amount paid by the Seller to the Buyer as referred to above.

 

7.4

If the Seller has yet to pay the relevant amount (as described in paragraph 7.2(b)), the amount recovered (including sums recovered in respect of costs and any interest or repayment supplement received in respect of the sum recovered) will be set-off against any payment which the Seller would otherwise be liable to make to the Buyer in respect of the matter giving rise to the payment.

 

8.

OVERPROVISIONS

 

8.1

If, on or before the fifth anniversary of Completion, it is determined that there is an Overprovision (and the Buyer shall, at the Seller’s written request, provide the Seller with such information and access to the Buyer’s personnel and advisors as the Seller may reasonably require in order to determine whether there is an Overprovision):

 

  (a)

the amount of any Overprovision will first be set-off against any payment then due from the Seller under this Schedule or for breach of the Tax Warranties;

 

  (b)

to the extent that there is an excess, a refund will be made to the Seller of any previous payment or payments made by the Seller under this Schedule or for breach of the Tax Warranties (and not previously refunded) up to the amount of that excess; and

 

  (c)

to the extent that the excess referred to in paragraph 8.1(b) is not exhausted under that paragraph, the remainder of that excess will be carried forward to offset any further payment that may become due from the Seller under this Schedule or for breach of any of the Tax Warranties.


9.

TAX REFUNDS

 

9.1

If, on or before the fifth anniversary of Completion, the Buyer or any Group Company becomes aware that a Group Company is entitled to:

 

  (a)

a repayment of Tax which:

 

  (i)

arises in respect of a period ending on or before Completion;

 

  (ii)

is not reflected in the Completion Accounts; and

 

  (iii)

does not arise as a result of:

 

  (A)

a change in legislation (or a change in interpretation on the basis of case law), a change in the published practice of any Tax Authority, a change in generally accepted accounting principles or a change in the rates of Tax, in each case announced and taking effect after the date of this Deed;

 

  (B)

a voluntary act of the Buyer or the relevant Group Company after Completion (other than any administrative action required to obtain the repayment in question);

 

  (C)

any change after Completion of accounting policy, method or basis of a Group Company or the date to which a Group Company makes up its accounts; or

 

  (D)

the use of a Buyer’s Relief; or

 

  (b)

any interest or repayment supplement received in relation to a repayment of Tax falling with paragraph 9.1(a) above,

(in each case a “Tax Refund”), the Buyer shall notify the Seller in writing of the existence of, and any other available details relating to, the entitlement to the Tax Refund as soon as reasonably practicable and must take all reasonable steps to obtain such Tax Refund. The Buyer shall procure that the relevant Group Company pays to the Seller an amount equal to the Tax Refund within five Business Days of receiving it.

 

10.

ACCESS TO DOCUMENTS AND INFORMATION

 

  (a)

The Buyer undertakes that it will procure that each Group Company preserves, and affords to the Seller reasonable access to, all documents, records, correspondence, accounts and other information in respect of or relevant for the purpose of determining the liability of each Group Company to Tax until such time as the Seller ceases to have any liability or contingent liability under the terms of this Schedule or under the Tax Warranties (other than in circumstances where it would give rise to a waiver of legal professional privilege).

 

  (b)

The Seller undertakes that it will preserve, and afford to the Buyer reasonable access to, all documents, records, correspondence, accounts and other information that it holds in respect of or relevant for the purpose of determining the liability of each Group Company to Tax until such time as the Buyer ceases to have any liability or contingent liability under the terms of this Deed (other than in circumstances where it would give rise to a waiver of legal professional privilege).


SCHEDULE 9

COMPLETION ACCOUNTS

 

1.

PREPARATION OF COMPLETION ACCOUNTS

 

1.1

The Buyer shall procure that a draft of the Completion Accounts (the “Draft Completion Accounts”) is prepared in accordance with paragraphs 4, 5 and 6 and delivered to the Seller within 50 Business Days following Completion.

 

1.2

To enable the Seller to review the Draft Completion Accounts, the Buyer shall keep up-to-date, and grant to the Seller and its Representatives reasonable access at reasonable times and on reasonable notice to, (i) the books and records of the Group held by the Group and the Moranbah North Entities, and (ii) any other information of the Group which may reasonably be required to enable them to review the Draft Completion Accounts, including reasonable access to premises of the Group and the Moranbah North Entities. The Seller and its Representatives will have the right to take copies of any documents that they reasonably require and will be provided with such access to the relevant personnel of the Group as they reasonably require to enable them to review the Draft Completion Accounts. If an Objection Notice is served in accordance with paragraph 1.3 the Seller’s and their Representatives’ access and ability to take copies of documents under this paragraph 1.2 will be extended until the Completion Accounts are determined in accordance with this Schedule 9.

 

1.3

The Seller shall notify the Buyer within 50 Business Days after receiving the Draft Completion Accounts if it:

 

  (a)

accepts the Draft Completion Accounts for the purposes of this Deed; or

 

  (b)

does not accept the Draft Completion Accounts in which case the Seller will notify the Buyer of (i) the items in the Draft Completion Accounts which the Seller disputes; (ii) reasonable detail regarding the basis upon which the Seller disputes such items; and (iii) the adjustment and / or the replacement item that the Seller would propose (such matters in this sub-paragraph (b) together being the “Objection Notice”).

 

1.4

To enable the Buyer to prepare the Draft Completion Accounts, the Seller shall keep up-to-date, and grant to the Buyer and its Representatives reasonable access at reasonable times and on reasonable notice to, the books and records held by the Seller or a Seller’s Affiliate and any other information of the Group held by the Seller or a Seller’s Affiliate which may reasonably be required to enable them to prepare the Draft Completion Accounts. The Buyer and its Representatives will have the right to take copies of any documents that they reasonably require and will be provided with access to the relevant personnel of the Seller or a Seller’s Affiliate as they reasonably require to enable them to prepare the Draft Completion Accounts.

 

1.5

If the Seller is satisfied with the Draft Completion Accounts (either as originally submitted by the Buyer or after adjustments agreed between the Seller and the Buyer) or if the Seller fails to notify the Buyer through delivery of an Objection Notice within the 50-Business Day period referred to in paragraph 1.3, the Draft Completion Accounts (incorporating any agreed adjustments) will constitute the “Completion Accounts” for the purposes of this Deed and will be final and binding on the Seller and the Buyer.


2.

APPOINTMENT OF REPORTING ACCOUNTANTS

 

2.1

If the Seller provides an Objection Notice, the parties must attempt in good faith to reach agreement in respect of the Draft Completion Accounts (such agreed Draft Completion Accounts (as amended) will constitute the Completion Accounts) and, if they are unable to do so within 15 Business Days following receipt by the Buyer of the Objection Notice, the matters detailed in the Objection Notice remaining in dispute at such time may be referred by either the Seller or the Buyer to:

 

  (a)

an individual of at least ten years’ relevant experience at:

 

  (i)

an independent firm of internationally recognised chartered accountants; or

 

  (ii)

an independent boutique specialty firm with an active practice in the United Kingdom focused on post-merger and acquisition purchase price resolution,

where ‘independent’ means that such individual and firm has not provided:

 

  (iii)

audit advice or audit services in the last five years to the Seller, the Buyer Group or a Group Company; or

 

  (iv)

advice to the Seller, the Buyer or a Group Company in connection with the Transaction,

to be agreed upon by the Seller and the Buyer within five Business Days of a notice by one to the other requiring such agreement; or

 

  (b)

failing such agreement, such independent firm of internationally recognised chartered accountants nominated:

 

  (i)

by or on behalf of the President for the time being of the Institute of Chartered Accountants in England and Wales pursuant to a joint application of the Seller and the Buyer (and the Buyer and the Seller must cooperate and do all things necessary to promptly make such joint application); or

 

  (ii)

if a joint application is not made within five Business Days of a notice, by either the Seller or the Buyer to the other requiring a joint application to be made by the ICC International Centre for ADR in accordance with the Rules for Appointment of Experts and Neutrals of the International Chamber of Commerce (or any other appointing authority of similar repute which accepts unilateral applications to nominate Reporting Accountants) pursuant to an application by either the Buyer or the Seller,

(the “Reporting Accountants”).

 

2.2

If paragraph 2.1 applies, the Seller and the Buyer must provide such reasonable cooperation to promptly agree the terms of appointment for the Reporting Accountants, which will (unless otherwise agreed in writing between the Seller and the Buyer) be on the following basis:

 

  (a)

a joint appointment on behalf of both the Buyer and the Seller on the Reporting Accountants’ standard terms and conditions for such an appointment; and

 

  (b)

otherwise in accordance with the terms set out in this Schedule 9.

 

2.3

If the terms of engagement of the Reporting Accountants are not agreed within 10 Business Days following the identity of the Reporting Accountants being determined (or such longer period as the Seller and the Buyer may agree), the terms of appointment may be unilaterally approved by the appointing party, acting reasonably, and the party unilaterally approving the terms must ensure that the appointment is in accordance with paragraphs 2.2(a) to 2.2(b). Each party agrees that the other party may sign and deliver, on that party’s behalf, any documents, including engagement letters, necessary to expedite the appointment of the Reporting Accountants.


2.4

The Reporting Accountants’ fees and expenses (including GST) will be borne equally between the Buyer and the Seller at the time the final determination is made in accordance with paragraph 3.2(j), except in the following cases:

 

  (a)

without prejudice to paragraph 2.4(b), if a party unilaterally appoints the Reporting Accountants pursuant to paragraph 2.3 but the appointment is not in accordance with paragraphs 2.2(a) to 2.2(b), such party must bear all of the Reporting Accountants’ fees and expenses (including GST) (provided any failure of the appointment to be in accordance paragraphs 2.2(a) to 2.2(b) will (subject to paragraph 3.2(j)) not undermine the final and binding nature of the Reporting Accountants’ findings pursuant to this Schedule 9); or

 

  (b)

if the Reporting Accountants, exercising their sole discretion, are of the opinion that a party has been disruptive to the process set out in this Schedule 9 or materially breached an express provision set out in this Schedule 9, the Reporting Accountants may determine that the disruptive party should be responsible for 75% of the Reporting Accountants’ fees and expenses (including GST) (and for the avoidance of doubt, the balance of the Reporting Accountants’ fees and expenses (including GST) must be borne by the Buyer where the disruptive party is the Seller or by the Seller where the disruptive party is the Buyer).

 

2.5

If the appointed Reporting Accountants become unwilling or incapable of acting or do not deliver their determination within the period required in paragraph 3.2(j):

 

  (a)

the Buyer and the Seller must use reasonable endeavours to agree the identity and terms of appointment of replacement Reporting Accountants in accordance with paragraphs 2.1 to 2.4; and

 

  (b)

paragraph 3 will apply in relation to each and any replacement Reporting Accountants as if they were the first Reporting Accountants appointed.

 

3.

REPORTING ACCOUNTANTS’ DETERMINATION PROCESS

 

3.1

The Seller and the Buyer must each co-operate in good faith with the Reporting Accountants and each grant the Reporting Accountants, if appointed, reasonable access, at reasonable times and on reasonable notice, to the books and records of the Group held by the Seller or its Affiliates (in the case of the Seller and to the extent held) or the Buyer Group (in the case of the Buyer) and any other information of the Group held by the Seller or its Affiliates (in the case of the Seller and to the extent held) or the Buyer Group (in the case of the Buyer) which may reasonably be required to enable them to determine the final Completion Accounts. The Reporting Accountants will have the right to take copies of any documents that they reasonably require and will be provided with such access to the relevant personnel of the Seller or its Affiliates (in the case of the Seller) or the Buyer Group (in the case of the Buyer) as they reasonably require to enable them to determine the final Completion Accounts.

 

3.2

Except to the extent that the Buyer and the Seller agree otherwise, the Reporting Accountants shall determine their own procedure, subject to the following:

 

  (a)

the Buyer, the Seller and / or their respective accountants (on a party’s behalf) shall promptly (and in any event within 20 Business Days following a relevant appointment) submit a written statement on the matters detailed in the Objection Notice which remain in dispute (together with relevant supporting documents) to the Reporting Accountants for determination (each parties’ written statement (together with relevant supporting documents) an “Objection Notice Written Statement”);


  (b)

on the earlier of (i) the Reporting Accountant’s receipt of both the Buyer’s Objection Notice Written Statement and the Seller’s Objection Notice Written Statement; and (ii) the expiry of the 20-Business Day period in paragraph 3.2(a), the Reporting Accountants will promptly deliver a copy of the Buyer’s Objection Notice Written Statement to the Seller and the Seller’s Objection Notice Written Statement to the Buyer (in each case to the extent received);

 

  (c)

following receipt from the Reporting Accountants of a party’s respective Objection Notice Written Statement, the Buyer and the Seller will have the opportunity to comment once only (but nothing in this sub-paragraph will prevent the parties from responding to any requests from the Reporting Accountants under paragraph 3.1) on the other’s Objection Notice Written Statement (to the extent such party submitted an Objection Notice Written Statement to the Reporting Accountant) by written comment delivered to the Reporting Accountants not later than 20 Business Days after the Objection Notice Written Statement was received from the Reporting Accountants;

 

  (d)

the Reporting Accountants will promptly deliver a copy of the Buyer’s comments on the Seller’s Objection Notice Written Statement to the Seller and the Seller’s comments on the Buyer’s Objection Notice Written Statement to the Buyer on the earlier of (i) the Reporting Accountant’s receipt of both the Buyer’s comments on the Seller’s Objection Notice Written Statement and the Seller’s comments on the Buyer’s Objection Notice Written Statement pursuant to paragraph 3.2(c); and (ii) the expiry of the 15-Business Day period referred to in paragraph 3.2(c);

 

  (e)

apart from procedural matters and / or as otherwise set out in this Deed, the Reporting Accountants shall determine only:

 

  (i)

whether any of the arguments for an alteration to the Draft Completion Accounts put forward in the Objection Notice Written Statements submitted under paragraph 3.2(a) is correct in whole or in part (unless such matters are agreed between the Buyer and Seller); and

 

  (ii)

if so, what alterations should be made to the Draft Completion Accounts to correct the relevant inaccuracy in it;

 

  (f)

the Reporting Accountants will apply the accounting policies in paragraphs 5 and 6 of this Schedule 9 and the relevant definitions in Clause 1;

 

  (g)

the Reporting Accountants will not be entitled to determine the scope of their own jurisdiction;

 

  (h)

the Reporting Accountants will not be entitled to determine an amount that is higher than the highest value, or lower than the lowest value, in each case for any particular item in the Draft Completion Accounts or the Objection Notice, and subject thereto, in the parties’ respective Objection Notice Written Statements;

 

  (i)

the Reporting Accountants will act as experts (and not as arbitrators) in making their determination, and their determination of any matter falling within their jurisdiction will be final and binding on the Seller and the Buyer save for manifest error (when the relevant part of their determination will be void and the matter will be resubmitted to the Reporting Accountants by either party for correction as soon as reasonably practicable); and


  (j)

the Reporting Accountants will make their determination pursuant to paragraph 3.2(h) within 20 Business Days after the expiry of the 20-Business Day period referred to in paragraph 3.2(c) or as soon after as is reasonably possible, and such determination will be provided to the Seller and the Buyer and will (unless otherwise agreed by the Seller and the Buyer) include reasons for each relevant determination.

 

3.3

Any determination of the Reporting Accountants under paragraph 3.2(j) above will be deemed to be incorporated into the Draft Completion Accounts which, as adjusted by the alterations so determined by the Reporting Accountants (if any), will become the Completion Accounts and be final and binding on the Seller and the Buyer.

 

3.4

Nothing in this Schedule 9 will entitle a party or the Reporting Accountants access to any information or document which is protected by legal professional privilege or which has been prepared by the other party or its accountants and other professional advisers with a view to assessing the merits of any claim or argument, but a party will not be entitled by reason of this paragraph 3.4 to refuse to supply such part or parts of documents as contain only the facts on which the relevant claim or argument is based.

 

3.5

Each party shall, and shall procure that its accountants and other advisers shall, and shall instruct the Reporting Accountants to, keep all accountants’ working papers or information and documents provided to them pursuant to this Schedule 9 confidential and shall not use them for any purpose except for disclosure or use in connection with the preparation or review of the Draft Completion Accounts, the proceedings of the Reporting Accountants or any other matter arising out of this Deed or in defending any claim or argument or alleged claim or argument relating to this Deed or its subject matter.

 

4.

FORM OF COMPLETION ACCOUNTS

The Completion Accounts will be presented substantially in the format set out in Schedule 10.

 

5.

ACCOUNTING POLICIES

The Completion Accounts will be prepared:

 

  (a)

in accordance with the specific accounting policies, principles, practices, rules, estimation techniques and procedures set out in paragraph 6 of this Schedule 9;

 

  (b)

subject to sub-paragraph (a) above, in accordance with the same accounting policies, principles, practices, rules, estimation techniques and procedures as were actually used in the preparation of the Pro forma Financial Information for the year ended on the Accounts Date (the “Reference Accounts”); and

 

  (c)

subject to sub-paragraphs (a) and (b) above, in accordance with the Accounting Standards in force for accounting periods ended on the Accounts Date.

For the avoidance of doubt, paragraph 5(a) shall take precedence over paragraphs 5(b) and 5(c), and paragraph 5(b) shall take precedence over paragraph 5(c).

 

6.

SPECIFIC POLICIES

 

6.1

Unless stated to the contrary in paragraphs 6.2 to 6.15 of this Schedule 9, the Completion Accounts will be prepared:

 

  (a)

by reference to the Group’s proportional ownership of the general ledgers of the Group Companies as at the Effective Time;


  (b)

to take into account information and events after the Effective Time that provide further evidence of conditions that existed at the Effective Time (in accordance with AASB 110 “Events after the Reporting Period”) up until the time the Buyer delivers the Draft Completion Accounts to the Seller pursuant to and in accordance with paragraph 1.1 of this Schedule 9 (the “Cut-Off Time”);

 

  (c)

on a going concern basis and to include no charge, provision, reserve, write-off, impairment or loss (whether against an asset or as a liability) to the extent arising as a consequence of the Transaction, or any change in management strategy, direction or priority or possible closure of any business (or part thereof) which results from the Transaction or which is implemented at the direction of the Buyer after the Effective Time;

 

  (d)

such that all assets and liabilities will be stated in US dollars. Amounts which are originally denominated in a currency other than US dollars will be translated into US dollars at the Exchange Rate applicable on the Completion Date; and

 

  (e)

such that no item will be included in the Completion Accounts more than once and no item will be excluded from (or included in) the Completion Accounts solely on the grounds of immateriality.

 

6.2

No liability, whether current or non-current, will be included in the Completion Accounts in respect of any Environmental Obligation or Joint Venture Liabilities, any matters which are the subject of refund obligations in Clauses 19 and 20, health and safety provisions, capital expenditure commitments, replacement costs, planning requirements, dilapidations, reappraisal of the value of fixed assets, compliance with laws and regulations, loss-making or onerous contract provisions (including any provisions for future losses or loss-making contracts or future costs, including for the avoidance of doubt in relation to the Grosvenor mine), contingent liabilities, off-balance sheet arrangements or commitments (including for these purposes, commitments in respect of land leases), general provisions, general reserves, general accruals, any liability or provision in respect of or as a result of separation from the Seller Group of the Group Companies (including but not limited to the provision of alternative arrangements to those which the Group Companies were party to as part of the Seller Group), or any liability to be settled by the Seller, or by any Seller’s Affiliate, after the Effective Time on behalf of the Group Companies at no cost to the Group Companies provided always that (other than in the case of Joint Venture Liabilities and any liability to be settled by the Seller, or by any Seller’s Affiliate, after the Effective Time on behalf of the Group Companies at no cost to the Group Companies) this paragraph 6.2 will not operate to exclude payables or accruals for goods and services already received in respect of the foregoing but not paid for, in each case as at the Effective Time.

 

6.3

Except as required to the contrary by paragraphs 6.2 or 6.4 to 6.15 of this Schedule 9, the provisions, reserves, liabilities and accruals to be included in the Completion Accounts will neither be increased nor created compared to the amounts included in the Reference Accounts, except insofar as required to reflect a receipt or payment, reclassification to another line item within Cash, Debt or Working Capital or such other change in factual circumstances (as opposed to judgment) between the Accounts Date and the Effective Time.

 

6.4

Inventory (including coal inventory) will be included in Working Capital and will be calculated in accordance with paragraph 5(b) of this Schedule 9 (including with respect to the components of inventory, the capitalisation or allocation of costs to inventory (including waste removal costs) and inventory provisioning), provided always that in the absence of damage, provision (or write-off) may be made only against spares / stores / rotables inventory and no provision against (or write-off of) inventory will be included in the Completion Accounts (or write-off made) (i) if the inventory concerned has been used or sold before the Cut-Off Time, (ii) to the extent the inventory concerned is covered by insurance or has scrap value, or (iii) if an offsetting liability is already included elsewhere in the Completion Accounts in respect of such inventory.


6.5

Receivables provisions will be calculated in accordance with paragraph 5(b) of this Schedule 9, provided always that no provision will be included (or write-off made) to the extent (i) the receivable is owed by the Seller or its Affiliates, (ii) the receivable balance has been received in cash or is the subject of an agreed payment plan by the Cut-Off Time, (iii) the receivable balance is covered by insurance, collateral or similar, (iv) an offsetting liability (such as deferred income) is included in the Completion Accounts in respect of such receivable, or (v) in respect of the sales tax element of the receivable.

 

6.6

The only assets and liabilities to be included in the Completion Accounts in respect of leases will be an asset in respect of prepayments and a liability in respect of accruals, in each case in Working Capital, in respect of amounts prepaid or amounts owing at the Effective Time in respect of the monthly or quarterly rental period concerned. For the avoidance of doubt, no account will be taken of AASB 16 in preparing the Completion Accounts.

 

6.7

The Completion Accounts will exclude any asset or liability in respect of any pension, post-retirement, superannuation or similar plans or obligations in existence at the date of this Deed (including medical arrangements, life insurance, other post-employment benefits, deferred compensation plans, arrangements or agreements) other than prepayments or accruals in respect of monthly or other periodical contributions paid in advance or payable in arrears solely in respect of defined contribution schemes.

 

6.8

An asset will be included in Cash of an amount of USD 17.7 million (seventeen million, seven hundred thousand USD) in respect of the future dividend stream from DBCTCo and HTM.

 

6.9

Australian Carbon Credit Units and “Surplus Safeguard Mechanism Credits” will be included as an asset in Cash at their mark-to-market value as at the Effective Time. For these purposes, “Surplus Safeguard Mechanism Credits” are those Safeguard Mechanism Credits earned by the Group Companies in respect of the period up to the Effective Time (irrespective of whether actually issued by then) which are in excess of those required to offset the Carbon Credit Liabilities of the Group Companies as at the Effective Time. No asset shall be included in the Completion Accounts in respect of Safeguard Mechanism Credits that are not Surplus Safeguard Mechanism Credits and no liability shall be included in the Completion Accounts in respect of Carbon Credit Liabilities. In this paragraph 6.9:

 

  (a)

Australian Carbon Credit Unit” means a financial instrument issued by the Clean Energy Regulator in respect of eligible projects that result in a reduction of greenhouse gas emissions. Each Australian Carbon Credit Unit represents the avoidance or removal of one tonne of carbon dioxide equivalent greenhouse gas;

 

  (b)

Safeguard Mechanism Credit” means a unit issued (or to be issued) by the Clean Energy Regulator to facilities that have reduced emissions below the applicable baseline set by the Clean Energy Regulator. Each credit represents one tonne of carbon dioxide equivalent reduced below such baseline, or beyond the facility’s legal obligations. The Group earns Safeguard Mechanism Credits from the Clean Energy Regulator; and

 

  (c)

Carbon Credit Liabilities” means, if applicable, the amount owing or liability accrued up to the Effective Time with regard to Safeguard Mechanism Credits, comprising such unpaid (at the Effective Time) liability owing to the Clean Energy Regulator (if applicable) as set out in the most recent carbon credits liability statement for periods prior to the Effective Time and an estimate of such liability accrued (but unpaid at the Effective Time) from the date of such statement up to the Effective Time.


6.10

The Completion Accounts will only include liabilities with regards to the take-or-pay supply agreements to the extent such liabilities relate to a shortfall in the goods and services taken up to the Effective Time.

 

6.11

No liability will be included in Cash, Debt or Working Capital in respect of receivables factored without recourse.

 

6.12

Royalty costs will be recognised on a straight-line basis over the quarterly period to which they relate, with the cost for the relevant quarter being based on the actual cost for that quarter (as opposed, for example, to the pro rata or estimated cost based on the previous quarter). A liability shall be included within Debt in respect of any historical underpayment of royalty costs unpaid and outstanding as at the Effective Time (calculated in accordance with the first sentence of this paragraph) to the extent such amounts have actually been demanded (and disregarding any demand initiated by the Buyer Group) by the Cut-Off Time and are actually due and payable.

 

6.13

No receivable or liability will be included in the Completion Accounts in respect of the [***] or in respect of the [***].

 

6.14

The Completion Accounts will include in Debt any liabilities (and any assets) in respect of corporation or profit-based Taxes as at the Effective Time and will include in Working Capital any other liabilities (and assets) in respect of Taxes, which will be calculated, in each case, in accordance with applicable Tax legislation and as if the Effective Time were at the end of a tax reporting period, provided always that no deferred tax assets or deferred tax liabilities will be recognised in the Completion Accounts.

 

6.15

No amount shall be included in the Completion Accounts in respect of Refunded Financial Provisioning.


This Deed has been entered into on the date stated at the beginning of it.

 

EXECUTED and delivered as a DEED by

ANGLO AMERICAN NETHERLANDS B.V.

       
Acting by two directors:     

/s/ Joanne Wilson

    

/s/ Kurt Burrows

Signature of director      Signature of director

Joanne Wilson

    

Kurt Burrows

Name of director (print)      Name of director (print)

[Signature page to SMC Share Purchase Agreement]


EXECUTED and delivered as a DEED by

ANGLO AMERICAN SERVICES (UK) LTD.

       
Acting by a director:      In the presence of:

/s/ Joanne Wilson

    

/s/ Nicola Gillian Warms

Signature of director      Signature of witness

Joanne Wilson

    

Nicola Gillian Warms

Name of director (print)      Name of witness (print)
    

[***]

     Occupation of witness (print)
    

[***]

     Address of witness (print)
    

  

    

  

[Signature page to SMC Share Purchase Agreement]


EXECUTED and delivered as a DEED by

PEABODY ENERGY CORPORATION

Acting by an authorised signatory:

/s/ Patrick J. Forkin III

Signature of authorised signatory

[***]

Title of authorised signatory

Patrick J. Forkin III

Name of authorised signatory (print)

[Signature page to SMC Share Purchase Agreement]


EXECUTED as a DEED by PEABODY SMC PTY LTD in accordance with section 127(1) of the Corporations Act        

/s/ Sean Kendall Allen

    

/s/ Michael James Carter

Signature of director      Signature of director / secretary

Sean Kendall Allen

    

Michael James Carter

Name of director (print)      Name of director / secretary (print)

[Signature page to SMC Share Purchase Agreement]

Exhibit 2.2

CERTAIN INFORMATION HAS BEEN EXCLUDED FROM THIS EXHIBIT BECAUSE

IT IS NOT MATERIAL AND IS THE TYPE THAT THE REGISTRANT TREATS AS

PRIVATE OR CONFIDENTIAL. THE OMITTED PORTIONS OF THIS DOCUMENT

ARE INDICATED BY [***].

Execution Version

25 November 2024

ANGLO AMERICAN NETHERLANDS B.V.

(as Anglo)

MORANBAH NORTH COAL PTY LTD

(as MNC)

ANGLO AMERICAN STEELMAKING COAL ASSETS EASTERN

AUSTRALIA LIMITED

(as Anglo Eastern Australia)

ANGLO AMERICAN STEELMAKING COAL HOLDINGS LIMITED

(as AASCH)

ANGLO AMERICAN SERVICES (UK) LTD.

(as Seller Guarantor)

PEABODY MNG PTY LTD

(as Buyer)

and

PEABODY ENERGY CORPORATION

(as Buyer Guarantor)

 

 

AGREEMENT

related to SHARE AND ASSET PURCHASE for

MORANBAH NORTH AND GROSVENOR

 

 

 


TABLE OF CONTENTS

 

Clause        Page  

1.

  DEFINITIONS AND INTERPRETATION      2  

2.

  SALE OF THE MNC ASSETS      27  

3.

  SALE OF THE SHARES      27  

4.

  DEPOSIT      28  

5.

  CONSIDERATION      29  

6.

  GROSVENOR CONTINGENT CONSIDERATION      30  

7.

  ALLOCATION AND ADJUSTMENT OF THE CONSIDERATION      31  

8.

  ROYALTY      31  

9.

  FOREIGN RESIDENT CAPITAL GAINS WITHHOLDING      31  

10.

  CONDITIONS      32  

11.

  TAG-ALONG RIGHTS      37  

12.

  PRE-COMPLETION OBLIGATIONS      37  

13.

  SEPARATION PLAN      40  

14.

  MATERIAL ADVERSE CHANGE      42  

15.

  COMPLETION      43  

16.

  COMPLETION ACCOUNTS      45  

17.

  POST-COMPLETION OBLIGATIONS      46  

18.

  TENEMENT APPLICATION      48  

19.

  WRONG POCKETS      50  

20.

  ASSUMED CONTRACTS AND COAL SALES AGREEMENTS      51  

21.

  GUARANTEES      53  

22.

  [***]      53  

23.

  ANGLO’S WARRANTIES      54  

24.

  SELLERS’ WARRANTIES AND UNDERTAKINGS      54  

25.

  SELLER GUARANTOR’S WARRANTIES AND UNDERTAKINGS      55  

26.

  BUYER’S WARRANTIES AND UNDERTAKINGS      58  

27.

  BUYER GUARANTOR’S WARRANTIES AND UNDERTAKINGS      60  

28.

  BUYER INDEMNITIES      66  

29.

  SELLER INDEMNITIES      67  

30.

  INSURANCE      67  

31.

  EMPLOYEES      69  

32.

  TAX COVENANT      69  

33.

  CONFIDENTIALITY AND ANNOUNCEMENTS      69  

34.

  TERMINATION      71  

35.

  GST      71  

36.

  FURTHER ASSURANCE      73  


37.

  POWERS OF ATTORNEY      73  

38.

  ENTIRE AGREEMENT AND REMEDIES      73  

39.

  POST-COMPLETION EFFECT OF AGREEMENT      74  

40.

  WAIVER AND VARIATION      74  

41.

  INVALIDITY      75  

42.

  ASSIGNMENT      75  

43.

  PAYMENTS, SET-OFF AND DEFAULT INTEREST      75  

44.

  TRANSACTION COMMUNICATIONS      76  

45.

  NOTICES      77  

46.

  COSTS      78  

47.

  RIGHTS OF THIRD PARTIES      79  

48.

  COUNTERPARTS      79  

49.

  GOVERNING LAW AND JURISDICTION      79  

50.

  PROCESS AGENT      80  

SCHEDULE 1

  
  PARTICULARS OF THE GROUP COMPANIES   

SCHEDULE 2

  
  CONSIDERATION ALLOCATION   

SCHEDULE 3

  
  ROYALTY ALLOCATION   

SCHEDULE 4

  
  PRE-COMPLETION OBLIGATIONS   

SCHEDULE 5

  
  COMPLETION OBLIGATIONS   

SCHEDULE 6

  
  SELLERS’ WARRANTIES   

SCHEDULE 7

  
  LIMITATIONS ON ANGLO AND SELLERS’ LIABILITY   

SCHEDULE 8

  
  TAX COVENANT   

SCHEDULE 9

  
  COMPLETION ACCOUNTS   

SCHEDULE 10

  
  FORMAT OF COMPLETION ACCOUNTS   

SCHEDULE 11

  
  ROYALTY   

SCHEDULE 12

  
  MINING TENEMENTS   


SCHEDULE 13

  
  PROPERTY   

SCHEDULE 14

  
  INTELLECTUAL PROPERTY   

SCHEDULE 15

  
  SELLER GUARANTEES   

SCHEDULE 16

  
  ASSUMED CONTRACTS, SPECIFIC CONTRACTS AND COAL SALES AGREEMENTS   

SCHEDULE 17

  
  SEPARATION PRINCIPLES   

EXHIBIT 1

  
  ROYALTY WORKED EXAMPLE   

EXHIBIT 2

  
  TRANSITIONAL SERVICES AGREEMENT   

 


THIS DEED is made on 25 November 2024.

BETWEEN

 

(1)

ANGLO AMERICAN NETHERLANDS B.V., a company incorporated in The Netherlands with registered number 33139747 and having its registered office at 17 Charterhouse Street, London EC1N 6RA (“Anglo”);

 

(2)

MORANBAH NORTH COAL PTY LTD, a company incorporated in Victoria, Australia, with company number ACN 007 083 249 and having its registered office at Level 11, 201 Charlotte Street, Brisbane, Queensland 4000 (“MNC”);

 

(3)

ANGLO AMERICAN STEELMAKING COAL ASSETS EASTERN AUSTRALIA LIMITED, a company incorporated in Queensland, Australia, with company number ACN 009 727 851 and having its registered office at Level 11, 201 Charlotte Street, Brisbane, Queensland 4000 (“Anglo Eastern Australia”);

 

(4)

ANGLO AMERICAN STEELMAKING COAL HOLDINGS LIMITED, a company incorporated in Queensland, Australia, with company number ACN 079 017 940 and having its registered office at Level 11, 201 Charlotte Street, Brisbane, Queensland 4000 (“AASCH”);

 

(5)

ANGLO AMERICAN SERVICES (UK) LTD., a company incorporated in the United Kingdom with registered number 02295324 and having its registered office at 17 Charterhouse Street, London EC1N 6RA (the “Seller Guarantor”);

 

(6)

PEABODY MNG PTY LTD, a company incorporated in Queensland, Australia with company number ACN 682 278 904 and having its registered office at Level 14, 31 Duncan Street, Fortitude Valley QLD 4006 (the “Buyer”); and

 

(7)

PEABODY ENERGY CORPORATION, a company incorporated in the State of Delaware, United States of America with registered number 2864939 and having its registered office at 701 Market Street, St. Louis, Missouri, United States of America (the “Buyer Guarantor”).

RECITALS

 

(A)

MNC owns the legal and beneficial title in the Moranbah Sales Shares, the MNC Assets and a beneficial interest in the DBCTCo Shares.

 

(B)

Anglo Eastern Australia owns the legal and beneficial title in the Moranbah Manager Shares.

 

(C)

AASCH owns the legal and beneficial title in the ACGM Shares.

 

(D)

MNC has agreed to sell, and the Buyer has agreed to purchase, the legal and beneficial title in the Moranbah Sales Shares, the MNC Assets and the beneficial interest in the DBCTCo Shares on the terms and subject to the Conditions set out in this Deed.

 

(E)

Anglo Eastern Australia has agreed to sell, and the Buyer has agreed to purchase, the Moranbah Manager Shares on the terms and subject to the Conditions set out in this Deed.

 

(F)

AASCH has agreed to sell, and the Buyer has agreed to purchase, the ACGM Shares on the terms and subject to the Conditions set out in this Deed.

 

(G)

Anglo has become a party to this Deed for the purpose of taking certain actions in respect of the Transaction as expressly set out in this Deed.

 

(H)

The Seller Guarantor has become party to this Deed for the purpose of entering into the guarantee and indemnity set out in Clause 25.

 

1


(I)

The Buyer Guarantor has become a party to this Deed for the purpose of entering into the guarantee and indemnity set out in Clause 27.

IT IS AGREED THAT

 

1.

DEFINITIONS AND INTERPRETATION

 

1.1

In this Deed, unless the context otherwise requires:

1936 Tax Act” means the Income Tax Assessment Act 1936 (Cth);

1997 Tax Act” means the Income Tax Assessment Act 1997 (Cth);

AASC” means Anglo American Steelmaking Coal Pty Ltd, a company incorporated in Victoria, Australia, with company number ACN 076 059 679 and having its registered office at Level 11, 201 Charlotte Street, Brisbane, Queensland 4000;

Accounting Standards” means:

 

  (a)

the Corporations Act’s requirements for the preparation and contents of financial reports; and

 

  (b)

the accounting standards approved under the Corporations Act, being the Australian Accounting Standards and any authoritative interpretations issued by the Australian Accounting Standards Board;

Accounts” means, in respect of:

 

  (a)

the Joint Venture, the audited special purpose financial report for the year ending on the Accounts Date (document 02.02.05.06 in the Data Room); and

 

  (b)

Moranbah Sales, the audited balance sheet as at the Accounts Date and the audited profit and loss statements and statement of cash flows for the year ending on the Accounts Date, together with the notes to and the reports of the directors in respect of those accounts (document 02.02.05.12 in the Data Room);

Accounts Date” means 31 December 2023;

ACGM” means Anglo Coal (Grosvenor Management) Pty Ltd, a company incorporated in Queensland, Australia, with company number ACN 153 794 122 and having its registered office at Level 11, 201 Charlotte Street, Brisbane, Queensland 4000, further details of which are set out in Schedule 1;

ACGM Shares” means all of the shares in the capital of ACGM, being, as at the date of this Deed, two fully paid ordinary shares;

Affiliate” means, in respect of a legal entity, any other legal entity which controls, is controlled by, or is under common control with that legal entity. An entity is deemed to “control” another if it:

 

  (a)

owns directly or indirectly more than 50% of the shares entitled to vote at a general election of directors of such other entity;

 

  (b)

has the right to appoint the majority of the board of directors (or equivalent body) of a legal entity; or

 

  (c)

has the majority voting interest in such other entity if such entity does not have either shares or directors,

and in all cases unless stated otherwise excluding each Group Company and the SMC Entities; but:

 

 

2


  (d)

in circumstances where ‘Completion’ as defined under the SMC SPA does not occur within three Business Days after Completion, then up to and including the ‘Effective Time’ as defined under the SMC SPA, the term “Affiliate” in respect of the Sellers for the purpose of the definitions of “Inter-Group Funding Payables” and “Inter-Group Funding Receivables” and Clauses 15.4, 15.5, 24.5(b) and 24.5(c) will include the SMC Entities; and

 

  (e)

on and from completion of the transactions contemplated by the SMC SPA, the term “Affiliates” in respect of the Buyer will include the SMC Entities;

Agreed Form” means, in relation to a document, the form of that document agreed in writing by or on behalf of the Buyer and Anglo as being in agreed form;

Alternative Financing” has the meaning given in Clause 27.4(g);

Alternative Recovery Claim” has the meaning given in paragraph 9.2 of Schedule 7;

Anglo Month End Date” means 1 December 2024, 31 December 2024, 2 February 2025, 2 March 2025, 30 March 2025, 27 April 2025, 1 June 2025, 29 June 2025, 3 August 2025, 31 August 2025, 28 September 2025, 2 November 2025, 30 November 2025, 31 December 2025, 1 February 2026 and 1 March 2026 or such other accounting month end date (including for these purposes any four or five week period end date or equivalent) as notified by Anglo to the Buyer;

Anglo Services and Marketing Agreements” means any agreement for the provision of services by AASC (or any of its Affiliates, excluding any Group Company) to any Group Company, including:

 

  (a)

the technical and management services agreement between (1) AASC; and (2) the Moranbah Manager dated 23 October 1997;

 

  (b)

the marketing services agreement between (1) AASC; and (2) Moranbah Sales dated 23 October 1997;

 

  (c)

the administrative services agreement between (1) the Moranbah Manager; and (2) Moranbah Sales dated 23 October 1997; and

 

  (d)

the management and services agreement between (1) AASC; and (2) MNC dated 12 July 1999;

Anglos Bank Account” means:

 

  (a)

Bank: [***];

 

  (b)

Bank Address: [***];

 

  (c)

Account Name: [***];

 

  (d)

Account Number: [***];

 

  (e)

IBAN: [***];

 

  (f)

Swift Code: [***];

 

3


Anticorruption Laws” means all laws, regulations, or orders relating to bribery, or corruption (governmental or commercial), including laws that prohibit the corrupt payment, offer, promise, or authorisation of the payment or transfer of anything of value (including gifts or entertainment), directly or indirectly, to any foreign government official, foreign government employee, person or commercial entity, to obtain a business advantage, or the offer, promise, or gift of, or the request for, agreement to receive or receipt of a financial or other advantage to induce or reward the improper performance of a relevant function or activity; such as, without limitation, the U.S. Foreign Corrupt Practices Act of 1977, as amended from time to time, the UK Bribery Act of 2010, the Criminal Code 1995 (Cth), the Criminal Code 1899 (Qld), the National Anti-Corruption Commission Act 2022 (Cth), the Crimes Legislation Amendment (Combatting Foreign Bribery) Act 2024 (Cth), and any laws enacted to implement the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions signed in Paris on 17 December 1997, which entered into force on 15 February 1999, and the Convention’s Commentaries;

Anti-trust Authority” means any Authority that has jurisdiction over Anti-trust Laws;

Anti-trust Laws” means all Laws governing the conduct of any person in relation to restrictive or other anti-competitive agreements or practices (including cartels, pricing, resale pricing, market sharing, bid rigging, terms of trading, purchase or supply and joint ventures), abuse of dominant or monopoly market positions (whether held individually or collectively) and the control of acquisitions or mergers;

ASIC” means the Australian Securities and Investment Commission;

Assumed Contracts” means all agreements, arrangements, understandings and orders entered into, made or accepted by or on behalf of MNC (on its own or with others) in the conduct of the Business that are not fully performed, in respect of which MNC (including through any Group member) has outstanding obligations or in respect of which MNC (including through any Group member) retains any rights at the Completion Date, including those specified in Part 1 of Schedule 16 but excluding the Coal Sales Agreements and the Specific Contracts;

Assumed Liabilities” means all of the Sellers’ Liabilities and obligations in connection with the MNC Assets and the Shares and whether incurred, accrued, arising or connected to the period before, on or after Completion, including all Joint Venture Liabilities and all Environmental Obligations (excluding any Liabilities arising from the Sellers’ breach of any Transaction Document, Liabilities described in Clause 22 and Tax Covenant Claims for which the Sellers are liable);

Assumed Liability Insurance Amount” has the meaning given to it in Clause 28.1;

Authority” means any competent governmental, administrative, supervisory, regulatory, judicial, determinative, disciplinary, enforcement or tax raising body, authority, agency, board, department, court or tribunal of any jurisdiction and whether supranational, national, regional or local and, when used in the context of [***] and a [***], includes an [***]appointed pursuant to the [***];

Bank Guarantee Beneficiary” means each beneficiary of a Bank Guarantee (including each beneficiary specified in the table in Part 1 of Schedule 15);

Bank Guarantees” means any (including replacement or new) guarantees, bonds, credit support arrangements, indemnities and letters of comfort given by or on behalf of the Sellers or given by a financial institution on behalf of any Group Company before Completion in relation to any Group Company, including those specified in the table in Part 1 of Schedule 15;

Benefits” has the meaning given to it in Clause 20.1;

 

4


Business” means the businesses carried on by MNC and the Group Companies as at the date of this Deed, including in respect of the business of operating the Mines;

Business Day” means any day other than a Saturday, Sunday or public holiday in the City of London, England or Brisbane, Queensland, Australia;

Business Warranties” means the Warranties other than the Fundamental Warranties and the Tax Warranties;

Business Warranty Claim” means a Claim by the Buyer in respect of a Business Warranty;

Buyer Deal Team Members” means [***], [***], [***], [***], [***] and [***];

Buyer Financing Agreements” has the meaning given in Clause 26.1(g);

Buyer Group” means the Buyer and each of its Affiliates, in each case from time to time and including the Group Companies from Completion and, if applicable, the SMC Entities subject to completion of the transactions contemplated by the SMC SPA;

Buyer Revolver Amendment” has the meaning given to it in Clause 27.4(f);

Buyer Revolver Payoff Documentation” has the meaning given to it in Clause 27.4(f);

Buyer Revolving Credit Agreement” has the meaning given to it in Clause 27.4(f);

Buyers Bank Account” means:

 

  (a)

Bank: [***];

 

  (b)

Bank Address: [***];

 

  (c)

Account Name: [***];

 

  (d)

Account Number: [***];

 

  (e)

Wire ABA: [***];

 

  (f)

ACH ABA: [***]; and

 

  (g)

Swift: [***];

Cash” means, in respect of the Group Companies and the MNC Assets, without duplication:

 

  (a)

cash in hand;

 

  (b)

cash standing to the credit of any account with a bank or other financial institution;

 

  (c)

the Inter-Group Funding Receivables;

 

  (d)

cash equivalents, including liquid or realisable stocks, shares, bonds, treasury bills and other such securities; and

 

  (e)

any cash held as security arising from the pay out of any Bank Guarantee;

and all accrued interest, in each case, as at the Effective Time together with any item required to be included in Cash in accordance with paragraphs 5 or 6 of Schedule 9 and as set out in the Completion Accounts prepared in accordance with Schedule 9;

 

5


CGT Withholding Amount means amounts, if any, determined under section 14-200(3) of Schedule 1 to the TAA, which may be payable to the Commissioner under section 14-200(1) of Schedule 1 to the TAA;

Changed Holder Review Application” means in respect of each FPS Environmental Authority, an application to the Scheme Manager under section 33 of the Financial Provisioning Act to make a ‘changed holder review allocation’ (as defined in the Financial Provisioning Act) in respect of the proposed ‘changed holder event’ (as defined in the Financial Provisioning Act) contemplated by the transfer of the Mining Tenements to the Buyer;

Changed Holder Review Decision” means, in respect of each FPS Environmental Authority, a ‘changed holder review decision’ (as defined in the Financial Provisioning Act) made by the Scheme Manager in response to the Changed Holder Review Application in respect of the FPS Environmental Authority;

Claim” means any claim, demand, legal process or cause of action by a party to this Deed whether in contract, tort, at common law or in equity, under statute, or otherwise, including any Tax Covenant Claim;

Clear Exit Payments” means any payments to be made by ACGM or the Moranbah Manager to permit either of ACGM or the Moranbah Manager to leave the Seller Consolidated Group on Completion clear of any Group Liability in accordance with section 721-35 of the 1997 Tax Act calculated or estimated in accordance with the principles set out in the Seller Tax Sharing Agreement;

Clearance Certificate” means a certificate issued by the Commissioner under subsection 14-220(1) of Schedule 1 to the TAA;

Coal Inventory” means all coal from the Mines which is in stockpiles at any mine site or at any port, or in the course of transit to or between these places or on board ship or delivered to customers, and which MNC legally or beneficially owns immediately before Completion;

Coal Sales Agreements” means all agreements, arrangements, understandings and orders entered into, made or accepted by or on behalf of MNC (including through Moranbah Sales) in relation to the sale of ‘Coal’ (as that term is defined in the Joint Venture Agreement) that are not fully performed, in respect of which MNC (including through Moranbah Sales) has outstanding obligations or in respect of which MNC (including through Moranbah Sales) retains any rights at the Completion Date, including those specified in Part 3 of Schedule 16;

Commissioner means the Australian Commissioner of Taxation;

Commitment Letter” means the commitment letter between the Buyer Guarantor, Jefferies Finance LLC, Deutsche Bank AG Cayman Islands Branch, Deutsche Bank Securities Inc., KKR Corporate Lending LLC and KKR Capital Markets LLC, dated on or about the date of this Deed, as amended, supplemented or replaced in compliance with this Deed, pursuant to which the financial institutions party thereto have agreed, subject only to the Financing Conditions set forth therein, to provide or cause to be provided the debt financing set forth therein for the purposes of financing in part the transactions contemplated by the Transaction Documents;

Completion” means completion of the sale and purchase of the Shares and the MNC Assets in accordance with Clause 15;

Completion Accounts” means the aggregate balance sheet with respect to Moranbah Sales, the Moranbah Manager, ACGM and the MNC Assets, in each case as at the Effective Time and as prepared, agreed or determined, as the case may be, in accordance with Schedule 9;

Completion Date” means the date on which Completion takes place;

 

6


Completion Payment” means:

 

  (a)

the Up-front Consideration; minus

 

  (b)

the Deposit (including accrued interest in accordance with Clause 4.3(c)(iii)); plus

 

  (c)

the Estimated Cash; minus

 

  (d)

the Estimated Debt; plus

 

  (e)

the Estimated Working Capital Adjustment;

Completion Schedule” has the meaning given in Clause 12.5;

Conditions” means the conditions set out in Clause 10.1;

Confidential Information” has the meaning given in Clause 33.1;

Connected Persons” means, in respect of a person, its directors, officers and employees;

Consideration” has the meaning given in Clause 5.1;

Consolidated Group” means a multiple entry consolidated group formed in accordance with Part 3-90, as modified by Division 719, of the 1997 Tax Act;

Corporations Act” means the Corporations Act 2001 (Cth);

D&O Insurance” has the meaning given in Clause 17.6;

Data Room” means the electronic data room hosted by Ansarada with the name “Project Oryx” as at 5:00pm on 22 November 2024, an index of which is in Agreed Form;

Data Room USB Stick” means the USB memory stick containing the contents of the Data Room;

DBCTCo” means Dalrymple Bay Coal Terminal Pty. Ltd., a company incorporated in Queensland, Australia with company number ACN 010 268 167 and having its registered office at Martin Armstrong Drive, Haypoint via Mackay, Queensland 4741;

DBCTCo Shareholders Agreement” means [***];

DBCTCo Shares” means all shares owned by the Moranbah Manager in the share capital of DBCTCo being, as at the date of this Deed, 5,500,000 ordinary partly paid shares which are beneficially held for MNC and the other Joint Venture Participants;

Debt” means, in respect of the Group Companies and the MNC Assets, the aggregate amount (expressed as a positive number) of the following, without duplication:

 

  (a)

any borrowings from any bank or other financial institution including in the form of letters of credits (to the extent drawn) but excluding in all cases (i) any rehabilitation guarantees, bonds, assurances or similar provided by the Sellers or a Group Company, including in respect of its Mining Tenements, and (ii) any Seller Guarantees. For the avoidance of doubt, this paragraph (a) includes any cash standing to the debit of any account with a bank or other financial institution;

 

  (b)

any indebtedness evidenced by any bond, note, loan stock, debenture or similar instrument;

 

7


  (c)

any obligations under any conditional sale, title retention, forward sale or purchase or any similar agreement or arrangement creating obligations with respect to the deferred purchase price of property (other than customary trade credit given in the ordinary course of trading and other than factoring or discounting without recourse);

 

  (d)

any asset or liability in respect of interest rate, currency or commodity swap, forward contract, cap, collar or other hedging agreement or arrangement (valued as if terminated at Completion and any such assets will be included in Debt as a negative figure);

 

  (e)

any corporation or profit based tax liabilities or assets (and any such assets will be included in Debt as a negative figure);

 

  (f)

any sell-side transaction-related costs to the extent payable by a Group Company after the Effective Time, excluding any GST other than Irrecoverable GST;

 

  (g)

any Transaction Bonuses;

 

  (h)

the Inter-Group Funding Payables;

 

  (i)

any guarantees in respect of any obligation under limbs (a) to (h) above (but excluding any rehabilitation guarantees, bonds, assurances or similar provided, including in respect of the Mining Tenements), but only to the extent drawn or called as of the Effective Time;

 

  (j)

any break fees or prepayment penalties or premiums, incurred in relation to the repayment or termination of any of the matters referred to in limbs (a) to (i) above, but solely to the extent such repayment or termination is a necessary consequence of Completion or results from actions taken before the Effective Time; and

 

  (k)

any accrued but unpaid interest on any of the matters referred to in limbs (a) to (j) above up to the Effective Time,

in each case as at the Effective Time together with any item required to be included in Debt in accordance with paragraphs 5 and 6 of Schedule 9 and as set out in the Completion Accounts prepared in accordance with Schedule 9;

Deed of Cross Charge” has the meaning given in the Joint Venture Agreement;

Deferred Fixed Consideration” means the First Deferred Payment, the Second Deferred Payment, the Third Deferred Payment and the Fourth Deferred Payment;

Demand” has the meaning given in the Tax Covenant;

Deposit” has the meaning given in Clause 4.1;

Disclosed” means disclosed with sufficient detail to enable a reasonable buyer to identify the nature and scope of the matter disclosed;

Disclosure Letter” means the disclosure letter dated on or about the date of this Deed, delivered by or on behalf of the Sellers to the Buyer immediately before signing this Deed;

Disclosure Material” means the following information and documents provided by Anglo, the Sellers’ Group or their Representatives to the Buyer Group (excluding the SMC Entities) or its Representatives before the date of this Deed:

 

  (a)

the information and documents contained in the Data Room (including the Vendor Reports);

 

8


  (b)

the written responses (including any attachments to those responses) given to any written questions submitted by the Buyer Group or its Representatives included in the Data Room;

 

  (c)

all written information and documents provided during any site visit to the Mining Tenements or the Properties;

 

  (d)

any management presentations and information memoranda in relation to the transaction completed by this Deed, the SMC SPA (including the ‘Information Memorandum’ at document 01.03.01 in the Data Room and the management presentations in folder 01.05 in the Data Room) and all written and verbal information provided during the question and answer process of any management presentations; and

 

  (e)

all information (including in any attachments) in the Disclosure Letter or in any disclosure letter provided to the Buyer (or its Affiliate) pursuant to the SMC SPA;

Dispute” has the meaning given in Clause 49.3;

Draft Completion Accounts” has the meaning given in paragraph 1 of Schedule 9;

Duty” means any stamp, transaction, transfer, landholder or registration duty or similar charge imposed by a Tax Authority and any interest and penalties payable in connection with such duty or similar charge;

Effective Time” means immediately before Completion;

Employee” means any employee of a Group Company;

Encumbrance” means any interest or equity of any person (including any right to acquire, option or right of pre-emption), any mortgage, charge, pledge, lien, assignment, hypothecation, security interest (including any created by Law), title retention, voting agreement or any other security agreement or arrangement, but excluding any Permitted Encumbrance;

End of Month Date” means two Business Days before an Anglo Month End Date;

Environment” means any or all of the following media (alone or in combination): air (including the air within buildings or other natural or man-made structures whether above or below ground); water (including water under or within land or in drains or sewers); and soil and land (including buildings) and any ecological systems and living organisms supported by these media (including, for the avoidance of doubt, man);

Environmental Authorisation” means any authorisation, approval, permit, licence, consent, registration or authority required by any Environmental Law;

Environmental Law” means a Law regulating or otherwise relating to the Environment, including land use, planning, pollution of the atmosphere, water or land waste, the storage and handling of chemicals, protected flora and fauna, Hazardous Substances, or any other aspect of protection of the Environment or associated administration, notices, investigations or prosecutions;

Environmental Obligation” means an obligation of an Indemnified Party arising out of, relating to, associated with, or in respect of:

 

  (a)

the abandonment, reclamation, remediation, decommissioning, rehabilitation, restoration or contamination of or in relation to;

 

  (b)

clean-up, remediation, removal, response or other actions or damages, contribution, indemnification, cost recovery, compensation, or injunctive relief pursuant to any claim, demand, legal proceeding or cause of action based on Environmental Law in relation to; or

 

 

9


  (c)

any notice, order, direction or requirement given under an Environmental Law (including in relation to the provision of security, financial assurance or other financial support) in relation to,

in each case, the Business, the Mining Tenements or the Properties, which has arisen or accrued before or on Completion and remains unsatisfied as at Completion or arises or accrues after Completion;

Escalation Event” has the meaning given to it in Clause 13.4;

Estimated Cash” means Anglo’s good faith estimate of the Cash notified by Anglo to the Buyer pursuant to Clause 12.5(a);

Estimated Debt” means Anglo’s good faith estimate of the Debt notified by Anglo to the Buyer pursuant to Clause 12.5(b);

Estimated Inter-Group Funding Payables” means Anglo’s good faith estimate of the Inter-Group Funding Payables notified by Anglo to the Buyer pursuant to Clause 12.5(b);

Estimated Inter-Group Funding Receivables” means Anglo’s good faith estimate of the Inter-Group Funding Receivables notified by Anglo to the Buyer pursuant to Clause 12.5(a);

Estimated Working Capital” means Anglo’s good faith estimate of the Working Capital notified by Anglo to the Buyer pursuant to Clause 12.5(c);

Estimated Working Capital Adjustment” means the amount equal to the Estimated Working Capital minus the Working Capital Target and, for the avoidance of doubt, if Estimated Working Capital is less negative than the Working Capital Target, the Estimated Working Capital Adjustment shall be a positive number, and if Estimated Working Capital is more negative than the Working Capital Target, the Estimated Working Capital Adjustment shall be a negative number;

Exchange Rate” means with respect to a particular currency for a particular day:

 

  (a)

to convert into US dollars, the mid-point spot rate of exchange for that currency into US dollars at the rate quoted by Bloomberg as at 4:00pm (London time) two Business Days before the relevant day;

 

  (b)

to convert into AU dollars, the mid-point spot rate of exchange for that currency into AU dollars at the rate quoted by Bloomberg as at 4:00pm (London time) two Business Days before the relevant day; or

 

  (c)

to convert into any currency other than AU dollars or US dollars, the mid-point spot rate of exchange for that currency into the relevant currency at the rate quoted by Bloomberg as at 4:00pm (London time) two Business Days before the relevant day;

Excluded Claim” means a Claim in respect of Clauses 18.2, 20.5, 21.4, 22.4 or 29;

Exempted Amount” means any sums transferred or distributed from a Seller or Anglo to, or for the benefit of, the Seller Guarantor after the date of this Deed that is owing to the Seller Guarantor from a Seller or Anglo or to which the Seller Guarantor is entitled by way of dividend declared by a Seller or Anglo;

 

10


Exercise Period” means the prescribed period (as may be extended) under clause 9.4 of the Joint Venture Agreement in which the Japanese Parties have to give a Pre-emption Acceptance Notice;

Existing Insurance Policies” has the meaning given in Clause 30.1;

FATA” means the Foreign Acquisitions and Takeovers Act 1975 (Cth);

Federal Treasurer” means the Treasurer of the Commonwealth of Australia;

Fee Letter” has the meaning given to it in Clause 26.1(g);

Financial Provisioning” means any security (including any bank guarantee), financial assurance, contribution and / or surety required by the State, the Scheme Manager and / or any other Authority in respect of either or both a Mining Tenement and / or an Environmental Authorisation (including in connection with the sale of the MNC Assets and the Shares to the Buyer under this Deed) under the Environmental Protection Act 1994 (Qld) and the Resources Acts;

Financial Provisioning Act” means the Mineral and Energy Resources (Financial Provisioning) Act 2018 (Qld);

Financing” means the financing incurred or intended to be incurred pursuant to the Commitment Letter and the permanent financing described in the Commitment Letter;

Financing Conditions” means the conditions precedent to obtaining the Financing set forth in the Commitment Letter;

Financing Sources” means the entities that have committed to provide any portion of the Financing or have otherwise entered into any commitment letter, engagement letter, credit agreement, underwriting agreement, purchase agreement, indenture or other agreement in connection with the Financing (other than a Buyer Group member), including the agents, arrangers and lenders that are parties to the Commitment Letter (including the agents, arrangers and lenders party to any joinder agreements, or any similar agreement pursuant to which the Commitment Letter is modified, supplemented, extended or replaced to add agents, arrangers, lenders or similar entities as parties thereto who had not executed the Commitment Letter as the date of this Deed, entered into in connection therewith), together with their respective Representatives, trustees, shareholders, members and controlling persons and the respective successors and assigns of any of the foregoing;

First Deferred Payment” means $40,000,000;

First Grosvenor Contingent Payment” means $250,000,000;

First Longstop Date Extension Period” has the meaning given in Clause 10.9;

Fourth Deferred Payment” means $61,000,000;

FPS Environmental Authorities” means each Environmental Authorisation in respect of which Financial Provisioning has been provided under the Financial Provisioning Act;

Fundamental Warranties” means the Warranties in paragraphs 2, 3, 5 and 19.3 of Schedule 6;

Fundamental Warranty Claim” means a Claim by the Buyer in respect of a Fundamental Warranty;

 

11


Grosvenor Contingent Consideration” means the First Grosvenor Contingent Payment and the Second Grosvenor Contingent Payment, payable by the Buyer to the Sellers in accordance with Clause 6;

“[***]” means [***];

“[***]” means any claim, suit, adjudication, arbitration, cause of action, proceeding, prosecution, litigation, investigation, inquiry, directive, direction or enforceable undertaking or judgment in connection with the [***];

“[***]” has the meaning given in Clause 30.5(b);

Grosvenor Mine” means the Grosvenor coal mine;

Grosvenor Mine Opening” means the first to occur of:

 

  (a)

the first sale of coal from longwall coal production from the Grosvenor Mine after [***]; and

 

  (b)

1,500,000 tonnes of cumulative run-of-mine coal production from the Grosvenor Mine after the date of this Deed;

Group” means Moranbah Sales, the Moranbah Manager and ACGM;

Group Company” means any Group member;

Group Liability” has the meaning given to that term in section 721-10 of the 1997 Tax Act, having regard to the table set out in subsection 721-10(2) of the 1997 Tax Act;

GST” has the meaning given in the GST Act or any other goods and services tax, value added tax or similar tax, whether chargeable in Australia or elsewhere;

GST Act” means the A New Tax System (Goods and Services Tax) Act 1999 (Cth);

GST Amount” has the meaning given in Clause 35.6(a);

GST Group” has the meaning given in the GST Act;

Guaranteed Obligations” means all the Buyer’s obligations under or in respect of this Deed;

Hazardous Substance” means any substance which is, or may be, hazardous, toxic, dangerous or polluting or which is regulated by any Law relating to the Environment;

Head Company” has the meaning given to that term in section 995-1 of the 1997 Tax Act by reference to section 719-75 of the 1997 Tax Act;

Indemnified Party” means Anglo, the Sellers and all of their Affiliates and Representatives and each officer, employee and agent of such persons;

“[***]” has the meaning given in Clause 22.1;

“[***]” has the meaning given in Clause 22.2;

Initial Longstop Date” means 5.00 p.m. on the date which is nine months from the date of this Deed;

 

 

12


Inter-Group Funding Payables” means the amounts (expressed as a positive number), together with interest accrued on all such amounts, owing from a Group Company to the Sellers or a Seller’s Affiliate, but excluding Inter-Group Trading Amounts, as set out in the Completion Accounts prepared in accordance with Schedule 9;

Inter-Group Funding Receivables” means the amounts, together with interest accrued on all such amounts, owing from the Sellers or a Seller’s Affiliate to a Group Company, but excluding Inter-Group Trading Amounts, as set out in the Completion Accounts prepared in accordance with Schedule 9;

Inter-Group Trading Amounts” means any amount of an ordinary trading nature between a Group Company and a Seller or a Seller’s Affiliate;

Interest” has the meaning given in the Joint Venture Agreement;

Irrecoverable GST” means any amount in respect of GST a person has incurred which neither that person nor (where applicable) any other member of the same GST Group as such person is entitled to recover (by way of credit, repayment, refund or otherwise) from any relevant Tax Authority pursuant to and determined in accordance with any relevant law;

Japanese Parties” has the meaning given in the Joint Venture Agreement;

Jellinbah” means Jellinbah Group Pty Ltd, a company incorporated in Queensland, Australia, with company number ACN 010 754 793 and having its registered office at Level 20, 66 Eagle Street, Brisbane, Queensland 4000;

Jellinbah Seller” means Anglo Coal (Jellinbah) Holdings Pty Ltd, a company incorporated in Queensland, Australia, with company number ACN 099 344 993 and having its registered office at Level 11, 201 Charlotte Street, Brisbane, Queensland 4000;

Jellinbah SPA” means [***];

Joint Venture” means the Moranbah North Coal Joint Venture constituted by the Joint Venture Agreement;

Joint Venture Agreement” means [***];

Joint Venture Liabilities” means all of MNC’s Liabilities and obligations in relation to the Joint Venture or the Joint Venture Agreement (whether arising before, on or after Completion), including any obligation to pay a cash call or other called sum (however described) pursuant to the Joint Venture Agreement;

Joint Venture Participants” means MNC and the Japanese Parties;

Joint Venture Property” has the meaning given in the Joint Venture Agreement;

JV Deeds of Assumption” means a ‘Deed of Assumption’ (as defined in the Joint Venture Agreement) in respect of the Joint Venture Agreement and the Related Agreements in substantially the same form as the form set out in schedule 2 of the Joint Venture Agreement where MNC is the ‘Assignor’ and the Buyer is the ‘Assignee’;

JV Guarantees” means [***];

JV Mining Tenements” means the JV mining tenements described in Schedule 12;

JV Properties” means the real property (whether leasehold or freehold) listed under the heading ‘JV Properties’ in Schedule 13;

Land Act” means the Land Act 1994 (Qld);

 

13


Laws” means all applicable legislation, statutes, directives, regulations, judgments, decisions, decrees, orders, instruments, by-laws, and other legislative measures or decisions having the force of law, treaties, conventions and other agreements between states, or between states and the European Union or other supranational bodies, rules of common law, customary law and equity and all civil or other codes and all other laws of, or having effect in, any jurisdiction from time to time;

Leads” has the meaning given to it in Clause 13.6;

Liabilities” includes all liabilities (whether actual, contingent or prospective), losses, damages, penalties, claims, demands, proceedings, costs and expenses of whatever description provided that, for the avoidance of doubt, the definition of ‘Liabilities’ will not apply to the definitions of ‘Cash’, ‘Debt’, ‘Working Capital’, ‘Inter-Group Funding Payables’, ‘Inter-Group Funding Receivables’, or ‘Inter-Group Trading Amounts’, any estimates of such defined terms or the accounting policies in Schedule 9;

Longstop Date” means the Initial Longstop Date, as extended in accordance with Clauses 10.9 to 10.11 or such other time and date as may be agreed in writing between Anglo and the Buyer;

MAC Cure Date” means the earlier of:

 

  (a)

90 days after the date of the notice from the Sellers under Clause 14.2; and

 

  (b)

10 Business Days before the Scheduled Completion Date;

Management Accounts” means the unaudited management accounts for MNC’s interest in the Joint Venture, consisting of the balance sheet as at 27 October 2024 and the profit and loss for the period from the Accounts Date to 27 October 2024, as contained in document 02.02.11.03 of the Data Room;

Management Agreement” means [***];

Marketing Period” has the meaning given in the SMC SPA;

Material Adverse Change” means any change, matter, event or circumstance which happens or is announced (or otherwise becomes known to the Buyer, Anglo or the Sellers) after the date of this Deed and before Completion which (individually or when aggregated with all such changes, matters, events or circumstances of a like kind) has had, or is reasonably likely to have, a long-term material adverse effect on the business, assets, operations or financial condition of the SMC Entities, Group Companies, and the MNC Assets taken as a whole, but does not include any change, matter, event, circumstance, or adverse effect (whether alone or in combination):

 

  (a)

that has been Disclosed in the Disclosure Material, this Deed, any other Transaction Document or the SMC SPA (which the parties agree does not include disclosure of the risk of the mere fact that a change, matter, event or circumstance may occur);

 

  (b)

in relation to compliance with the terms of this Deed, the SMC SPA and / or any other Transaction Document;

 

  (c)

in relation to the announcement or execution of the transactions contemplated by this Deed, the SMC SPA and / or any other Transaction Document (including any adverse effect that may arise from threatened or actual loss of, or disruption in, any customer, supplier, vendor, lender, contractor, employee, landlord, lessee, community or government relationships, or by reason of the identity of the Buyer or any communication by the Buyer regarding its plans or intentions with respect to the Group Companies and the MNC Assets);

 

  (d)

in relation to the satisfaction or waiver of a Condition;

 

14


  (e)

in relation to the exercise of any Pre-emption Rights;

 

  (f)

agreed to, requested by, or consented to, in writing by the Buyer or the Buyer Guarantor or otherwise arises as a result of any action of the Buyer or its Affiliates;

 

  (g)

of which the Buyer is actually aware as at the date of this Deed (which the parties agree does not include awareness of the risk of the mere fact that a change, matter, event or circumstance may occur);

 

  (h)

in relation to changes in commodity prices (including in connection with coal prices and / or demand for coal), exchange rates or interest rates;

 

  (i)

in relation to general economic, political, business, market, regulatory or financial conditions, or changes in such conditions, applying in the coal mining industry;

 

  (j)

in relation to changes or major disruptions to, or fluctuations in, currency exchange rates, financial, securities or other market conditions in the local, domestic or international financial markets (including prevailing interest rates) generally;

 

  (k)

in relation to activism, acts of terrorism, riot, war (whether or not declared), civil war, armed hostilities, sabotage (including cyberattack), international or national emergency or similar, or the continuation, escalation or worsening thereof, including those that affect the Group Companies and their competitors in any market for the production and supply of coal in a similar manner;

 

  (l)

in relation to any natural disaster, including the worsening of such event;

 

  (m)

in relation to any epidemic, pandemic, disease, outbreak of illness (including COVID-19), including the worsening of such event, other health crisis or public health event;

 

  (n)

in relation to any industrial action, strike, lockout or other labour difficulty (in each case, which has an industry wide impact);

 

  (o)

in relation to any change in any Law (including Tax Laws and Tax rates, state royalties or state royalty rates) (whether such change has taken effect) or the judicial or administrative interpretation of any Law, including its application or non-application, in each case excluding any Law that solely relates to the Group Companies, the assets of the Group Companies or the MNC Assets;

 

  (p)

in relation to any change in financial reporting standards, accounting policies, accounting standards or generally accepted accounting principles, including their application or non-application; or

 

  (q)

in relation to the non-cash depreciation or amortisation of assets of the Group Companies in the ordinary course.

A failure (or projected failure) by the Group Companies or the Joint Venture to meet internal projections, budgets, estimates, forecasts or revenue or earning predictions for any period will not, on its own, constitute a Material Adverse Change;

Material Contract” means:

 

  (a)

the Specific Contracts; and

 

  (b)

any current contract to which MNC or a Group Company is a party which had an annual revenue of AUD 50,000,000 or more in the financial year immediately preceding the date of this Deed;

 

15


MDL 166” means mineral development licence numbered 166 issued under the Resources Acts;

Mines” means the MN Mine and the Grosvenor Mine;

Mining Tenement Transfers” means, in respect of each of the Mining Tenements, documents to transfer (subject to the Minister’s approval under the Resources Acts, the impression of transfer duty or other taxes of a similar nature and registration of the transfer) MNC’s interest in the Mining Tenements to the Buyer in form required under the Resources Act (being, as at the date of this Deed, the Department of Resource’s Form MMOL-05);

Mining Tenements” means the JV Mining Tenements and MDL 166 as described in Schedule 12;

Minister” means the Minister responsible for the Resources Acts and the Land Act, as the case may be;

[***]” means [***];

MN Mine” means the Moranbah North coal mine;

MNC Assets” has the meaning given in Clause 2;

MNC Interest” means:

 

  (a)

MNC’s 88% Interest;

 

  (b)

to the extent not included in limb (a) of this definition, MNC’s right, title and interest in:

 

  (i)

the Joint Venture Property (including the JV Mining Tenements, the Properties and the Personal Property that is Joint Venture Property);

 

  (ii)

the Coal Inventory;

 

  (iii)

the Related Agreements;

 

  (iv)

any cash contributed by MNC in accordance with the Joint Venture Agreement and held in bank accounts on its behalf;

 

  (v)

to the extent in the possession or control of MNC or the Moranbah Manager, the interest of MNC in all geological, drill core, metallurgical studies and development data and analysis, wraps, samples and technical reports prepared solely in relation to the JV Mining Tenements; and

 

  (vi)

any other agreements entered into for the purpose of the Joint Venture (including the Assumed Contracts and the Specific Contracts) but excluding the Coal Sales Agreements; and

 

  (c)

MNC’s Joint Venture Liabilities;

MNC Properties” means the real property (whether leasehold or freehold) listed under the heading ‘MNC Properties’ in Schedule 13;

MNC Properties Interest” means the interest in the real property (whether leasehold or freehold) listed under the heading ‘MNC Properties’ in Schedule 13;

MNC Tenement Interest” means:

 

16


  (a)

MDL 166;

 

  (b)

to the extent in the possession or control of MNC or the Moranbah Manager, the interest of MNC in all geological, drill core, metallurgical studies and development data and analysis, wraps, samples and technical reports prepared solely in relation to MDL 166;

 

  (c)

any agreements entered for the purpose of MDL 166; and

 

  (d)

the liabilities and obligations of MNC in respect of MDL 166 and any agreements entered into for the purpose of MDL 166 as referred to in limb (c) of this definition;

Moranbah Manager” means Anglo Coal (Moranbah North Management) Pty Limited, a company incorporated in Victoria, Australia, with company number ACN 069 603 587 and having its registered office at Level 11, 201 Charlotte Street, Brisbane, Queensland 4000, further details of which are set out in Schedule 1;

Moranbah Manager Shares” means all of the shares in the capital of the Moranbah Manager, being, as at the date of this Deed, two fully paid ordinary shares;

Moranbah Sales” means Moranbah North Coal (Sales) Pty Ltd, a company incorporated in Victoria, Australia, with company number ACN 069 603 649 and having its registered office at Level 11, 201 Charlotte Street, Brisbane, Queensland 4000, further details of which are set out in Schedule 1;

Moranbah Sales Shareholders Agreement” means [***];

Moranbah Sales Shares” means all of the shares in the capital of Moranbah Sales which are held by MNC, being, as at the date of this Deed, 8,800 fully paid ordinary shares;

Notice of Decision” means, in respect of each FPS Environmental Authority, a notice given by the Scheme Manager under section 36 of the Financial Provisioning Act in respect of the Changed Holder Review Decision in respect of the FPS Environmental Authority;

Objection Notice” has the meaning given in paragraph 1.3 of Schedule 9;

Permitted Encumbrance” means any of the following:

 

  (a)

a PPS Register security interest registered in the ordinary course of business in connection with an equipment financing, hire purchase, retention of title or similar arrangement;

 

  (b)

any Encumbrance arising under or in connection with the Joint Venture Agreement, the Moranbah Sales Shareholders’ Agreement or the Deed of Cross Charge;

 

  (c)

any mortgage or registration against the Mining Tenements or the Properties that is Disclosed or would have shown on a public enquiry report two Business Days before the date of this Deed;

 

  (d)

any Encumbrance that is Disclosed;

 

  (e)

in respect of the Mining Tenements and the Properties, any reservation or covenant arising under law or arising in respect of the grant of the Mining Tenement;

 

  (f)

a retention of title arrangement under which title is retained by a supplier over goods supplied to any Group Company until payment for such goods is made if such arrangement has been entered into in the ordinary course of business;

 

17


  (g)

a security interest contemplated by section 12(3)(b) of the PPSA if such commercial consignment has been entered into in the ordinary course of business; and

 

  (h)

a security interest contemplated by section 12(3)(c) of the PPSA if such PPS lease has been entered into in the ordinary course of business and is not a security interest within the meaning of section 12(1) of the PPSA;

Personal Property” means:

 

  (a)

the Plant and Equipment; and

 

  (b)

the Records;

Plant and Equipment” means the plant and equipment listed in document 02.02.02.04 in the Data Room under company code AU51;

PNC” has the meaning given to it in Clause 27.4(f);

PPS Register” means the personal properties securities register established under the PPSA;

PPSA” means the Personal Property Securities Act 2009 (Cth);

Pre-Completion Date Claim” has the meaning given to it in Clause 30.5;

Pre-emption Acceptance Notice” means a notice from one or more of the Japanese Parties under clause 9.4(b) or 9.4(e) of the Joint Venture Agreement requiring that the MNC Interest be assigned to one or more of the Japanese Parties;

Pre-emption Expiry” has the meaning given to it in Clause 15.11.

Pre-emption Offer Notice” means a notice from MNC under clause 9.4 of the Joint Venture Agreement in respect of the sale of the MNC Interest to the Buyer under this Deed;

Pre-emption Rights” means the preferential rights held by each Joint Venture Participant in and under the Joint Venture Agreement;

Premium Refund” has the meaning given in Clause 30.3(c);

Pro forma Financial Information” means, with respect to each Pro forma Financial Information Period, the pro forma profit and loss account and pro forma balance sheet as set out in document 02.02.05.42 in the Data Room;

Pro forma Financial Information Period” means the year ended on the Accounts Date or the six months ended 30 June 2024, as the context permits;

Properties” means the JV Properties and the MNC Properties;

Recipient” has the meaning given in Clause 35.7;

Records” means, to the extent in the possession or control of any of the Sellers, the Moranbah Manager or ACGM, all books, accounts, data, records, manuals, files, documents, correspondence, forms, materials and databases, in any form or medium (including paper, electronically stored data, magnetic media, microfiche, film and microfilm), of any Sellers’ Group member which relate to the Group Companies and the MNC Assets, including customer records and data, advertising matter, product descriptions, price lists, regulatory files, correspondence, mailing lists, purchase orders, credit, collection and sales records, sales and promotional materials, personnel records, market surveys and related materials, business procedures, litigation files, studies and reports, the personnel and wage records of the Employees and the Tax records;

 

 

18


Refunded Financial Provisioning” means, to the extent the Seller Financial Provisioning is in the form of a cash contribution to the Scheme Manager (or other Authority) in respect of an FPS Environmental Authority and is paid by a Seller or a Group Company, an amount calculated as follows:

 

LOGO

where:

Cash Contribution” means:

 

  (i)

in the case of a Seller, 100%; or

 

  (ii)

in the case of a Group Company, 88%,

of the amount of the relevant cash contribution paid by a Seller or a Group Company to the Scheme Manager (or other Authority) in respect of the FPS Environmental Authority; and

Remaining Period” means the number of days between Completion and the end of the 12-month period in respect of which the Cash Contribution was paid for the FPS Environmental Authority;

Regulatory Conditions” has the meaning given in Clause 10.2(a);

Related Agreement” has the meaning given in the Joint Venture Agreement;

Related Transaction Agreements” has the meaning given in Clause 49.4;

Relief” means:

 

  (a)

any loss, relief, allowance or credit, in respect of any Tax and any deduction in computing income, profits or gains for the purposes of any Tax; or

 

  (b)

any right to a refund or repayment of Tax,

and any reference to the use or set-off of a Relief will be construed accordingly;

Replacement Bank Guarantee” means in respect of a Bank Guarantee, one or more bank guarantees or other security in favour of the relevant Bank Guarantee Beneficiary, in a form, and on terms, and for an amount, and if applicable, from such institution, as the relevant Bank Guarantee Beneficiary may require (as notified by the Sellers or the Bank Guarantee Beneficiary to the Buyer) as replacement security for the Bank Guarantee;

Replacement Financial Provisioning” means in respect of any Seller Financial Provisioning, Financial Provisioning in favour of the State (including Financial Provisioning to be paid into the scheme fund in accordance with the Financial Provisioning Act) in a form, and on terms, and for an amount, and, if applicable, from such institution, as the State or Scheme Manager may require (as notified by the Sellers, the State or the Scheme Manager to the Buyer) as replacement Financial Provisioning for the Seller Financial Provisioning (including, for the avoidance of doubt, any Financial Provisioning in excess of the Seller Financial Provisioning for any FPS Environmental Authority as at the date of this Deed);

Reporting Accountants” has the meaning given in paragraph 2.1 of Schedule 9;

 

19


Representatives” means:

 

  (a)

in relation to the Buyer, any Buyer Group member and their respective directors, officers, employees, agents, consultants, advisers, auditors, accountants and Financing Sources; and

 

  (b)

in relation to any other person, its Affiliates and its and their respective directors, officers, employees, agents, consultants, advisers, auditors and accountants;

Resources Acts” means the Mineral Resources Act 1989 (Qld), the Mineral and Energy Resources (Common Provisions) Act 2014 (Qld), the Financial Provisioning Act and the Petroleum and Gas (Production and Safety) Act 2004 (Qld) (as applicable);

Resources Minister” means the Minister responsible for the Resources Acts;

Royalty” has the meaning given in paragraph 2.3 of Schedule 11;

Royalty Amount” has the meaning given in paragraph 2.3 of Schedule 11;

Royalty Amount Dispute” has the meaning given in paragraph 6.1 of Schedule 11;

Royalty Deed” means [***];

Royalty Interest” means MNC’s rights, title and interest (including Liabilities) in the Royalty Deed;

Rules” has the meaning given to it in Clause 49.2;

Sales Representative Agreement” means [***];

Sanctioned Person” means a person or entity:

 

  (a)

designated on the lists of Specially Designated Nationals and Blocked Persons or “Foreign Sanctions Evaders” maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of Commerce, the U.S. Department of State and any other agency of the U.S. government;

 

  (b)

designated on the Consolidated List of Persons, Groups and Entities Subject to EU Financial Sanctions maintained by the European Commission, the Consolidated List maintained by the Department of Foreign Affairs and Trade maintained by the Australian Government; the Consolidated List of Financial Sanctions Targets maintained by the Office of Financial Sanctions Implementation within the UK’s HM Treasury, or any equivalent list maintained by the competent sanctions authority of any member state of the EU;

 

  (c)

that is, or is part of, a government of a Sanctioned Territory;

 

  (d)

that is located, organised or residing in any Sanctioned Territory; or

 

  (e)

50% or more directly or indirectly owned or controlled by any of the foregoing;

Sanctioned Territory” means any country or other territory subject to a comprehensive export, import, financial or investment embargo under any Sanctions Laws, which currently comprise Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, the so-called Donetsk People’s Republic, and the so-called Luhansk People’s Republic;

 

20


Sanctions Laws” means any applicable export control and economic sanctions Laws and regulations of the Commonwealth of Australia, the U.S., the United Nations Security Council, the EU, any member state of the EU and the UK;

Scheduled Completion Date” means:

 

  (a)

except where Clauses 15.2 or 15.10 applies, subject to paragraph (c), the End of Month Date following the last of the Conditions being satisfied or waived (but if the satisfaction or waiver of the last Condition is less than five Business Days before that End of Month Date, the following End of Month Date);

 

  (b)

where Clause 15.2 applies, subject to paragraph (c), the End of Month Date nominated by Anglo in writing in accordance with Clause 15.2;

 

  (c)

if:

 

  (i)

the Marketing Period has not yet been completed as of the close of business on the day which is at least three Business Days prior to the date determined under paragraph (a) or (b);

 

  (ii)

Pre-emption Expiry would not occur prior to the day which is at least three Business Days after the date determined under paragraph (a) or (b); and

 

  (iii)

Pre-emption Expiry would not occur prior to the day which is at least three Business Days after a revised Scheduled Completion Date that would apply following a Scheduled Completion Date determined under paragraph (a) or (b) in circumstances where the Buyer does not comply with its obligations under Clause 15.3 on the Scheduled Completion Date and Anglo and / or the Sellers could give a notice under Clause 15.10 to defer Completion to the next End of Month Date,

then the next End of Month Date after the day on which the Marketing Period has completed;

 

  (d)

where Clause 15.10 applies, the date determined in accordance with Clause 15.10; or

 

  (e)

any other date agreed in writing by Anglo and the Buyer;

Scheme Manager” has the meaning given to that term in the Financial Provisioning Act;

Second Deferred Payment” means $81,000,000;

Second Grosvenor Contingent Payment” means $200,000,000;

Second Longstop Date Extension Period” has the meaning given to it in Clause 10.11(b);

Section 408 Notice” means a notice complying with section 408 of the Environmental Protection Act 1994 (Qld);

Seller Consolidated Group” means the Consolidated Group of which each of ACGM and the Moranbah Manager are members from time to time before Completion;

Seller Financial Provisioning” means all (including any replacement or new) Financial Provisioning given by the Sellers or on their behalf or given by a financial institution on behalf of any Group Company in relation to the MNC Assets, which, as at the date of this Deed, are specified in the table in Part 2 of Schedule 15;

 

21


Seller Guaranteed Obligations” means all the obligations of Anglo and the Sellers under or in respect of this Deed;

Seller Guarantees” means:

 

  (a)

except to the extent the Seller Financial Provisioning is in the form of a cash contribution to the Scheme Manager (or other Authority) in respect of the FPS Environmental Authorities, the Seller Financial Provisioning; and

 

  (b)

the Bank Guarantees;

Seller Head Company” means the Head Company of the Seller Consolidated Group;

Seller Tax Sharing Agreement” means the Tax Sharing Agreement in respect of the Seller Consolidated Group;

Sellers” means MNC, Anglo Eastern Australia and AASCH (and each, a “Seller”);

Sellers Bank Account” means:

 

  (a)

Bank: [***];

 

  (b)

Bank Address: [***];

 

  (c)

Account Name: [***];

 

  (d)

Account Number: [***];

 

  (e)

BSB: [***];

 

  (f)

Swift Code: [***];

Sellers Group” means the Sellers and the Sellers’ Affiliates, in each case from time to time and including, for the avoidance of doubt, the Group Companies before Completion;

Sellers GST Group” means the GST Group of which AASC is the representative member and one or more Group Companies is a member;

Sellers Solicitors” means Latham & Watkins (London) LLP of 99 Bishopsgate, London, United Kingdom EC2M 3XF;

Senior Executives” has the meaning given to it in Clause 13.4;

Separation Committee” has the meaning given to it in Clause 13.5;

Separation Plan” means a written plan agreed between the Sellers and the Buyer in accordance with Clause 13.1 (or as otherwise agreed between the parties) addressing migration of the Buyer off the Services (including timeframes for that migration) and other issues relating to separation of certain people, processes, contracts, marketing services, technology and data, assets, intellectual property and ongoing projects, including the creation of a separate, standalone SAP instance for the Group (together with the Services, the “Group Assets”) in the period through to the end of the term of the TSA;

Separation Principles” means the principles set out in Schedule 17;

Services” has the meaning given in the TSA;

Shares” means:

 

22


  (a)

the Moranbah Sales Shares;

 

  (b)

the Moranbah Manager Shares;

 

  (c)

the ACGM Shares; and

 

  (d)

MNC’s beneficial interest in the DBCTCo Shares;

SMC Entities” means Anglo American Australia Limited, a company incorporated in Victoria, Australia, with company number ACN 004 892 371 and having its registered office at Level 11, 201 Charlotte Street, Brisbane, Queensland 4000 Australia, and its subsidiaries (other than the Group);

SMC SPA” means the share purchase agreement in respect of the shares held by Anglo in Anglo American Australia Limited between (1) Anglo; (2) the Seller Guarantor; (3) Peabody SMC Pty Ltd ACN 682 277 587; and (4) the Buyer Guarantor, dated on or around the date of this Deed;

SOFR” means the ‘Secured Overnight Financing Rate’ (SOFR) administered by the Federal Reserve Bank of New York (or any other person which takes over the administration of that rate) published by the Federal Reserve Bank of New York (or any other person which takes over the publication of that rate);

Specific Contracts” means those contracts listed in Part 2 of Schedule 16;

State” means the state of Queensland, Australia;

Stock Exchange” means the London Stock Exchange and the Johannesburg Stock Exchange;

Supplier” has the meaning given in Clause 35.7;

Surviving Provisions” means Clauses 1, 27.10, 33, 34.2, 35, 37, 40 to 49.1 and paragraph 4.3(c) of Schedule 4;

TAA” means the Taxation Administration Act 1953 (Cth);

Tax” means all forms of taxes, Duty, imposts, charges, withholdings, rates, levies, royalties or other governmental impositions of whatever nature and by whatever authority imposed, assessed or charged together with all costs, charges, interest, penalties, fines, expenses and other additional statutory charges, incidental or related to the imposition and all forms of claims, obligations, offsets, payments or liabilities under a tax sharing agreement or tax funding agreement (and “Taxes” and “Taxation” will be construed accordingly);

Tax Act” means the Income Tax Assessment Act 1997 (Cth) and the Income Tax Assessment Act 1936 (Cth), as applicable;

Tax Authority” means a taxing or other governmental (local or central), state or municipal authority (whether within or outside Australia) competent to impose a liability for or to collect Tax or make any decision or ruling on any matter relating to Tax;

Tax Claim” means a Tax Warranty Claim or a Tax Covenant Claim;

Tax Covenant” means the covenant relating to Taxation set out at paragraph 2 of Schedule 8;

Tax Covenant Claim” means a Claim in respect of the Tax Covenant;

 

23


Tax Funding Agreement” means any agreement where a member of a Consolidated Group may be required to pay an amount or be entitled to receive an amount calculated by reference to a Group Liability, but excluding a Tax Sharing Agreement;

Tax Law” means any law relating to Tax, including the 1997 Tax Act, the 1936 Tax Act, the TAA and the GST Act;

Tax Return” means any return, declaration, report, notice, claim for refund, information or statement relating to Tax, including any applicable schedule, supplement, attachment and amendment;

Tax Sharing Agreement” means an agreement that is a valid tax sharing agreement under section 721-25 of the 1997 Tax Act;

Tax Warranties” means the Warranties in paragraph 17 of Schedule 6;

Tax Warranty Claim” means a Claim in respect of a Tax Warranty;

Tenement Application” means Exploration Permit for Coal Application number 28462;

Term Lease” means MNC’s interest in the JV Properties that are term leases under the Land Act;

Term Lease Transfers” means the transfer by MNC to the Buyer of MNC’s interest as lessee under the Term Leases;

Third Deferred Payment” means $81,000,000;

Third-Party Claim” has the meaning given in paragraph 14 of Schedule 7;

Third-Party Consent” has the meaning given to it in Clause 13.10;

Third-Party Guarantees” means any guarantees, bonds, credit support arrangements, indemnities and letters of comfort of any nature given:

 

  (a)

to a third party by any Group Company in respect of any Seller’s or Seller’s Affiliate’s obligation (excluding any guarantees, bonds, credit support arrangements, indemnities and letters of comfort given in respect of the assets and liabilities that are the subject of the transactions contemplated by the SMC SPA); or

 

  (b)

to a third party by the Sellers or a Seller’s Affiliate in respect of any obligation of any Group Company;

Trade Marks and Get-up” means trade marks, service marks, logos, get-up, trade names, designs, or any similar rights, in all cases whether registered or unregistered, that bear the words “Anglo” or “Anglo American”;

Transaction” means the transactions contemplated by this Deed and / or the other Transaction Documents or any part of this Deed and / or the other Transaction Documents;

Transaction Bonuses” means the amount of any bonuses to be paid to any director, officer or Employee solely as a result of the Transaction, together with the superannuation contributions related to such bonuses, but in each case only to the extent such amounts are payable by a Group Company after the Effective Time;

Transaction Communications” has the meaning given in Clause 44;

 

24


Transaction Documents” means this Deed and any other documents in Agreed Form or required to be entered into pursuant to this Deed, including the Disclosure Letter, the SMC SPA, the TSA and the ‘Disclosure Letter’ as defined in the SMC SPA;

TSA” means the transitional services agreement between the Seller Guarantor and the Buyer to be entered into on Completion in the form set out in Exhibit 2 and as amended in accordance with its terms;

Up-front Consideration” means $1,368,000,000;

Vendor Reports” means [***];

Warranties” means the warranties set out in Clause 24 and Schedule 6;

Working Capital” means, in respect of the Group Companies and the MNC Assets, the aggregate of trade and other receivables (including GST but excluding long service leave assets), inventory (including raw materials, work in progress, finished goods, stocks, spares and rotables), prepayments (excluding in respect of the Refunded Financial Provisioning) and accrued income, less the aggregate of creditors and accruals for GST (and other non-corporation/non-profit based taxes) and for goods and services received but not paid for, other current payables, employee liabilities / employee provisions (excluding long service leave liabilities) and deferred income; in each case as at the Effective Time, together with any item required to be included in Working Capital in accordance with paragraphs 5 and 6 of Schedule 9, and as set out in the Completion Accounts prepared in accordance with Schedule 9, and provided that Working Capital will exclude any amount or item taken account of in Cash or Debt;

Working Capital Adjustment” means the amount equal to the Working Capital minus the Working Capital Target and, for the avoidance of doubt, if Working Capital is less negative than the Working Capital Target, the Working Capital Adjustment will be a positive number, and if Working Capital is more negative than the Working Capital Target, the Working Capital Adjustment will be a negative number;

Working Capital Target” means AUD negative 75,000,000 translated into US dollars at the Exchange Rate applicable on the Completion Date;

Working Hours” means 9:30 am to 5:30 pm (based on the time at the location of the address of the recipient of the relevant notice) on a Business Day; and

“[***]” means [***].

 

1.2

In this Deed, unless the context otherwise requires:

 

  (a)

“undertaking” and “group undertaking” will be construed in accordance with section 1161 of the Companies Act 2006, “subsidiary” and “holding company” will be construed in accordance with section 1159 of the Companies Act 2006 and “subsidiary undertaking” and “parent undertaking” will be construed in accordance with section 1162 of the Companies Act 2006;

 

  (b)

every reference to a particular Law will be construed also as a reference to all other Laws made under the Law referred to and to all such Laws as amended, re-enacted, consolidated or replaced or as their application or interpretation is affected by other Laws from time to time and whether before or after Completion but, as between the parties, no such amendment after the date of this Deed will apply for the purposes of this Deed to the extent that it would impose any new or extended obligation, liability or restriction on, or otherwise adversely affect the rights of, any party;

 

25


  (c)

references to Clauses and Schedules are references to clauses of and schedules to this Deed; references to paragraphs and sub-paragraphs are references to paragraphs and sub-paragraphs of the Schedule in which the reference appears, and references to this Deed includes the Schedules;

 

  (d)

the singular includes the plural and vice versa, and a gender includes any other gender;

 

  (e)

references to a “party” means a party to this Deed and includes its successors in title, personal representatives and permitted assigns;

 

  (f)

references to a “person” includes any individual, partnership, body corporate, corporation sole or aggregate, state or agency of a state, and any unincorporated association or organisation, in each case whether or not having separate legal personality;

 

  (g)

references to a “company” includes any company, corporation or other body corporate wherever and however incorporated or established;

 

  (h)

references to the phrase “to the extent that” are a matter of degree and are not synonymous with “if”;

 

  (i)

references to “AU dollars” or “AUD” are references to the lawful currency from time to time of Australia;

 

  (j)

references to “US dollars”, “dollars”, “USD” or “$” are references to the lawful currency from time to time of the United States of America;

 

  (k)

for the purposes of applying a reference to a monetary sum expressed in AU dollars or US dollars, an amount in a different currency must be deemed to be an amount in AU dollars or US dollars, as required by this Deed, translated at the applicable Exchange Rate for the relevant date (which for a Claim will be the date of payment in respect of such Claim and for the Completion Accounts will be the date expressed in the Completion Accounts), except as expressly set out in this Deed;

 

  (l)

references to times of the day are to London, United Kingdom time unless otherwise stated;

 

  (m)

references to writing includes any modes of reproducing words in a legible and non-transitory form, including by e-mail;

 

  (n)

references to any English legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court official or any other legal concept or thing is, in respect of any jurisdiction other than England, deemed to include what most nearly approximates in that jurisdiction to the English legal term;

 

  (o)

words introduced by the word “other” are not to be given a restrictive meaning because they are preceded by words referring to a particular class of acts, matters or things;

 

  (p)

general words are not to be given a restrictive meaning because they are followed by words which are particular examples of the acts, matters or things covered by the general words, and the words “includes” and “including” will be construed without limitation;

 

  (q)

where this Deed requires any party to reimburse or indemnify another party for any cost, expense or liability, references to such “costs”, “expenses” and / or “liabilities” (or similar phrases or expressions) incurred by a person must not include any amount in respect of GST other than Irrecoverable GST;

 

26


  (r)

if the day on which a party must pay the Deposit is not a Business Day, the party must pay the Deposit on the next Business Day; and

 

  (s)

a procuring obligation where used in the context of Anglo or a Seller in respect of MNC, the Moranbah Manager, Moranbah Sales, ACGM and / or DBCTCo, as applicable, means that Anglo or the Seller undertakes to exercise its voting rights and use reasonable endeavours to use such powers as are vested in Anglo or the Seller, as applicable, from time to time as a shareholder of any Group Company (and which is not inconsistent with Anglo and / or the Sellers’ fiduciary duties or contractual obligations, if any) to ensure compliance with that obligation.

 

1.3

The title of and headings and sub-headings in this Deed are inserted for convenience only and do not affect the construction or interpretation of this Deed.

 

1.4

Each schedule to this Deed forms part of this Deed.

 

1.5

References to a document (including this Deed) include such document as amended or varied in accordance with its terms.

 

2.

SALE OF THE MNC ASSETS

 

2.1

On the terms set out in this Deed, and subject to Completion, MNC shall sell and the Buyer shall purchase the assets listed below (the “MNC Assets”), with effect from Completion, with full title guarantee, free from all Encumbrances:

 

  (a)

the MNC Interest;

 

  (b)

MNC’s right title and interest in the Coal Sales Agreements;

 

  (c)

the MNC Tenement Interest;

 

  (d)

the MNC Properties Interest; and

 

  (e)

the Royalty Interest.

 

2.2

Title to and risk in the MNC Assets remains solely with MNC until Completion, and subject to the terms of this Deed, passes to the Buyer on Completion.

 

2.3

MNC irrevocably waives any right of pre-emption or other restriction on transfer in respect of the MNC Assets conferred on it under any agreement or otherwise in connection with the sale of the MNC Assets pursuant to this Deed.

 

3.

SALE OF THE SHARES

Moranbah Sales Shares

 

3.1

On the terms set out in this Deed, and subject to Completion, MNC shall sell and the Buyer shall purchase the Moranbah Sales Shares with effect from Completion, with full title guarantee, free from all Encumbrances, together with all rights attaching to the Moranbah Sales Shares as at Completion (including all dividends and distributions declared, declared and paid or made in respect of the Moranbah Sales Shares after the Completion Date).

 

3.2

Title to and risk in the Moranbah Sales Shares remains solely with MNC until Completion, and subject to the terms of this Deed, passes to the Buyer on Completion.

 

3.3

MNC irrevocably waives any right of pre-emption or other restriction on transfer in respect of the Moranbah Sales Shares conferred on it under any agreement or otherwise in connection with the sale of the Moranbah Sales Shares pursuant to this Deed.

 

27


Moranbah Manager Shares

 

3.4

On the terms set out in this Deed, and subject to Completion, Anglo Eastern Australia shall sell and the Buyer shall purchase the Moranbah Manager Shares with effect from Completion, with full title guarantee, free from all Encumbrances, together with all rights attaching to the Moranbah Manager Shares as at Completion (including all dividends and distributions declared, paid or made in respect of the Moranbah Manager Shares after the Completion Date).

 

3.5

Title to and risk in the Moranbah Manager Shares remains solely with Anglo Eastern Australia until Completion, and subject to the terms of this Deed, passes to the Buyer on Completion.

 

3.6

Anglo Eastern Australia irrevocably waives any right of pre-emption or other restriction on transfer in respect of the Moranbah Manager Shares conferred on it under any agreement or otherwise in connection with the sale of the Moranbah Manager Shares pursuant to this Deed.

ACGM Shares

 

3.7

On the terms set out in this Deed, and subject to Completion, AASCH shall sell and the Buyer shall purchase the ACGM Shares with effect from Completion, with full title guarantee, free from all Encumbrances, together with all rights attaching to the ACGM Shares as at Completion (including all dividends and distributions declared, paid or made in respect of the ACGM Shares after the Completion Date).

 

3.8

Title to and risk in the ACGM Shares remains solely with AASCH until Completion, and subject to the terms of this Deed, passes to the Buyer on Completion.

 

3.9

AASCH irrevocably waives any right of pre-emption or other restriction on transfer in respect of the ACGM Shares conferred on it under any agreement or otherwise in connection with the sale of the ACGM Shares pursuant to this Deed.

 

4.

DEPOSIT

 

4.1

On the date of this Deed or the next Business Day, the Buyer shall pay to the Sellers’ Bank Account a deposit in the amount of $46,000,000 (the “Deposit”) to secure the Buyer’s performance of its obligations under this Deed.

 

4.2

Anglo may terminate this Deed on behalf of itself and the Sellers by notice in writing to the Buyer with immediate effect if the Buyer fails to pay such Deposit on the date of this Deed.

 

4.3

The Deposit:

 

  (a)

will accrue interest;

 

  (b)

may be commingled with the Sellers’ and / or Anglo’s other funds; and

 

  (c)

will be:

 

  (i)

retained, together with all accrued interest, by the Sellers if:

 

  (A)

the Buyer is in breach of Clauses 5.2(b), 10.2 and / or 10.3 and, in each case, this Deed is terminated by Anglo in accordance with Clause 34; or

 

  (B)

this Deed is terminated in accordance with Clause 34.1(e);

 

  (ii)

refunded, together with all accrued interest, to the Buyer as soon as reasonably practicable (and in any event within 10 Business Days) if this Deed is terminated other than as set out in Clause 4.3(c)(i); or

 

28


  (iii)

credited, together with all accrued interest, to the Consideration at Completion in accordance with the terms of this Deed,

 

4.4

A party’s entitlement to the Deposit as provided in Clause 4.3 does not limit or prejudice any other rights or remedies any party may have against any other party.

 

5.

CONSIDERATION

 

5.1

The purchase price for the sale of the Shares and the MNC Assets under this Deed (the “Consideration”) is the amount in US dollars equal to:

 

  (a)

the Up-front Consideration; plus

 

  (b)

the Cash; minus

 

  (c)

the Debt; plus

 

  (d)

the Working Capital Adjustment; plus

 

  (e)

the Deferred Fixed Consideration; plus

 

  (f)

the Grosvenor Contingent Consideration (if any).

 

5.2

The Consideration will be satisfied as follows:

 

  (a)

the payment of the Deposit by the Buyer in accordance with Clause 4.1;

 

  (b)

the payment at Completion by the Buyer to the Sellers of the Completion Payment;

 

  (c)

the payment of the Deferred Fixed Consideration by the Buyer to the Sellers in accordance with Clause 5.3;

 

  (d)

the payment of the Grosvenor Contingent Consideration (if any) in accordance with Clause 6; and

 

  (e)

further payment (if any) as required in accordance with Clause 16 in connection with the Completion Accounts.

 

5.3

The Buyer must pay the Deferred Fixed Consideration to the Sellers by paying or procuring the payment to the Sellers of:

 

  (a)

an amount equal to the First Deferred Payment on or before the first anniversary of the Completion Date;

 

  (b)

an amount equal to the Second Deferred Payment on or before the second anniversary of the Completion Date;

 

  (c)

an amount equal to the Third Deferred Payment on or before the third anniversary of the Completion Date; and

 

  (d)

an amount equal to the Fourth Deferred Payment on or before the fourth anniversary of the Completion Date.

 

5.4

The Consideration will, subject to any further adjustment pursuant to this Deed and to the extent lawful, be adopted for all Tax reporting purposes.

 

5.5

With effect from the date of this Deed, all Inter-Group Trading Amounts will be settled in the ordinary course of business in accordance with the terms on which such Inter-Group Trading Amounts were incurred.

 

29


5.6

Where any payment is made by or on behalf of a Seller in satisfaction of a liability arising under this Deed, it shall to the extent lawful be treated by the Buyer and the Sellers as an adjustment to the Consideration paid to the Sellers in respect of the Shares and the MNC Assets.

 

6.

GROSVENOR CONTINGENT CONSIDERATION

 

6.1

The Grosvenor Contingent Consideration is only payable in accordance with this Clause 6 if Grosvenor Mine Opening occurs.

 

6.2

If the condition in Clause 6.1 is satisfied, the Buyer must pay the Grosvenor Contingent Consideration to the Sellers as follows:

 

  (a)

the payment of the First Grosvenor Contingent Payment, on the date that is one month after Grosvenor Mine Opening occurs, provided that if Grosvenor Mine Opening occurs more than one month prior to the Scheduled Completion Date, the First Grosvenor Contingent Payment is payable on the Completion Date; and

 

  (b)

the payment of the Second Grosvenor Contingent Payment, on the second anniversary of Grosvenor Mine Opening occurring.

 

6.3

From Completion until the occurrence of Grosvenor Mine Opening, the Buyer must:

 

  (a)

subject to Clause 6.4, use reasonable endeavours to procure the occurrence of Grosvenor Mine Opening;

 

  (b)

keep Anglo informed as to the progress of achieving Grosvenor Mine Opening, including by providing Anglo with a report at the end of each Quarter containing details of the steps taken by the Buyer Group during the Quarter, and the anticipated steps to occur in the next Quarter, to progress the Grosvenor Mine Opening; and

 

  (c)

subject to Clause 6.4, not (and must procure that each Buyer Group member does not) directly or indirectly enter into any agreement, arrangement or undertaking or take any action or fail to take any action (other than any action required to be taken or not taken for compliance with any Environmental Law) which has the purpose or consequence of minimising or avoiding the Grosvenor Contingent Consideration.

 

6.4

Nothing in Clauses 6.3(a) or 6.3(c):

 

  (a)

requires the Buyer to undertake any bord and pillar mining of the Grosvenor Mine after Completion; or

 

  (b)

fetters the commercial decision-making process of the Buyer Group in respect of the decision to re-open the Grosvenor Mine for longwall production.

 

6.5

From Completion until the payment of the Second Grosvenor Contingent Payment, the Buyer must ensure that the Mining Tenements are not legally or beneficially transferred, assigned, sold, disposed of or made the subject of a sublease without the prior written consent of the Sellers (such consent not to be unreasonably withheld or delayed in the circumstances described in Clause 6.6), other than in connection with a Buyer Group member granting an Encumbrance over the Mining Tenements in connection with a bona fide financing arrangement or pursuant to the Joint Venture Agreement, and the enforcement or release of such Encumbrance (provided that any assignee or transferee resulting from the enforcement of such rights agrees in favour of the Sellers to pay the Grosvenor Contingent Consideration in accordance with this Clause 6).

 

6.6

For the purposes of Clause 6.4, the Sellers shall not unreasonably withhold or delay their consent to the proposed transfer, assignment, sale or disposal (as applicable) of the Mining Tenements, where the transferee has the financial and technical capacity to procure the Grosvenor Mine Opening and covenants in favour of both the Buyer and Anglo to keep them informed as to the progress of achieving Grosvenor Mine Opening, including by providing them with a report at the end of each Quarter containing details of the steps taken by the transferee during the Quarter, and the anticipated steps to occur in the next Quarter, to progress the Grosvenor Mine Opening.

 

 

30


6.7

To avoid doubt, the assignment, transfer, sale or disposal of the Mining Tenements by the Buyer will not release the Buyer from the obligation to pay the Grosvenor Contingent Consideration in accordance with the terms of this Deed.

 

7.

ALLOCATION AND ADJUSTMENT OF THE CONSIDERATION

The parties agree that the Consideration will be allocated:

 

  (a)

in respect of the Deposit, the Up-front Consideration less the Deposit, the Deferred Fixed Consideration and the Grosvenor Contingent Consideration, as set out in Part 1 of Schedule 2; and

 

  (b)

in respect of any adjustment to the Consideration to be paid in accordance with this Deed, as any such adjustment is attributable to the relevant Shares and / or the relevant MNC Assets.

 

8.

ROYALTY

 

8.1

The Buyer must pay the Royalty (if any) to the Sellers in accordance with Schedule 11.

 

8.2

The parties agree that the Royalty will be allocated as set out in Schedule 3.

 

9.

FOREIGN RESIDENT CAPITAL GAINS WITHHOLDING

 

9.1

For the purposes of subsection 14-225(1) of Schedule 1 to the TAA, each Seller declares that, from the date of this Deed until Completion, the Seller is and will be an ‘Australian resident’ as defined in the Tax Act. If Completion occurs later than the date six months after the date of this Deed, each Seller must deliver to the Buyer, at or before Completion, a further declaration that the entity is an ‘Australian resident’ and will be an Australian resident up until Completion.

 

9.2

The Buyer acknowledges and agrees that:

 

  (a)

Clause 9.1 constitutes a residency declaration for the purposes of sections 14-210(3) and 14-225(1) of Schedule 1 to the TAA, given by each Seller to the Buyer;

 

  (b)

the Buyer does not know that residency declaration to be false; and

 

  (c)

as a result of the matters referred to in Clauses 9.2(a) and 9.2(b), the Buyer will not, in relation to the Shares and the MNC Assets other than any MNC Assets that constitute ‘taxable Australian real property’ (as defined in the Tax Act):

 

  (i)

withhold any amount in relation to a CGT Withholding Amount from any payments to be made to any of the Sellers; or

 

  (ii)

pay a CGT Withholding Amount to the Commissioner in connection with this Deed.

 

9.3

The Buyer acknowledges and agrees that it is not required to pay a CGT Withholding Amount to the Commissioner in connection with the sale of any MNC Assets that constitute ‘taxable Australian real property’ (as defined in the Tax Act) under this Deed provided that the Buyer has received, before Completion, a Clearance Certificate from MNC covering the time this transaction was entered into.

 

31


10.

CONDITIONS

 

10.1

Completion shall be subject to each of the following conditions (the “Conditions”) being satisfied or waived in accordance with Clause 10.14 or 10.15 by the Longstop Date:

Pre-emption rights and related rights

 

  (a)

in respect of the Joint Venture Agreement, one of the following occurring:

 

  (i)

receipt of a written, unconditional and irrevocable waiver by each Japanese Party of its right to give a Pre-emption Acceptance Notice; or

 

  (ii)

the expiry of the Exercise Period without one or more of the Japanese Parties giving a Pre-emption Acceptance Notice for the entirety of the MNC Interest;

 

  (b)

each of the Japanese Parties having given (or being deemed to have given) their consent to the sale of the MNC Interest to the Buyer in accordance with the Joint Venture Agreement;

JV documents, contracts and consents

 

  (c)

MNC and the Buyer obtaining signed counterparts of:

 

  (i)

the JV Deeds of Assumption;

 

  (ii)

a deed of assignment executed in accordance with the Sales Representative Agreement;

 

  (iii)

a release, effective on Completion, of the Deed of Cross Charge granted by MNC; and

 

  (iv)

a deed of assumption executed in accordance with the Moranbah Sales Shareholders’ Agreement,

in each case subject to Completion and duly executed by all parties other than MNC and the Buyer (and the Buyer’s Affiliates);

 

  (d)

the counterparty to each Specific Contract consenting in writing to the transfer of the Sellers’ rights and obligations under the relevant Specific Contract to the Buyer (which may be by way of a deed of assignment executed by the counterparty and may be subject to Completion);

 

  (e)

MNC and Anglo Eastern Australia obtaining the release of the JV Guarantees (subject to Completion) in a form acceptable to MNC and Anglo Eastern Australia (acting reasonably) duly executed by the beneficiaries of the JV Guarantees;

Financial assurances and releases

 

  (f)

the Buyer providing evidence of its ability to provide the Replacement Bank Guarantees and Replacement Financial Provisioning, in each case, to the extent of the Bank Guarantees and Financial Provisioning described in Schedule 15, in a form and from such institutions as are reasonably satisfactory to MNC;

 

32


Regulatory – Mining Tenements

 

  (g)

the Resources Minister or relevant Authority providing (and MNC receiving) indicative approval under the Resources Acts to the effect that, subject to compliance with the Resources Acts and with any conditions specified in such approval, the Resources Minister will approve the transfer to the Buyer of the Mining Tenements, and such indicative approval is either not subject to any conditions or, if it imposes any conditions, those conditions must be acceptable to MNC and the Buyer (each acting reasonably), and such indicative approval remaining valid for no less than 10 Business Days after satisfaction or waiver of all other Conditions;

Regulatory – FDI / Anti-trust and General

 

  (h)

the Anti-trust Authority in each of India, Japan, Taiwan, Vietnam, China, South Korea, Slovakia, Turkey and Brazil granting (or being deemed to have granted, including by way of an Anti-trust Authority not issuing a decision by the expiry of the relevant period after a complete notification has been filed with such Anti-trust Authority) their consent, approval, clearance, confirmation or waiver of license in respect of the Transaction under applicable Anti-trust Laws or having confirmed that there is no such requirement;

 

  (i)

one of the following occurring:

 

  (i)

the Buyer receiving notice in writing from the Federal Treasurer or his or her delegate to the effect that there are no objections under the Australian Government’s foreign investment policy or under FATA to the transactions contemplated by this Deed; or

 

  (ii)

the Federal Treasurer being, by reason of lapse of time, no longer empowered to make an order under FATA in respect of the acquisition contemplated by this Deed; or

 

  (iii)

if an interim order is made under the FATA in respect of the acquisition contemplated by this Deed, the subsequent period for making a final order prohibiting the acquisition contemplated by this Deed elapses without a final order being made;

 

10.2

Subject to Clause 10.6:

 

  (a)

the Buyer shall (also subject to Clause 10.7) use, at its own cost:

 

  (i)

best endeavours to ensure that the Conditions set out in Clauses 10.1(g) to 10.1(i) (together, the “Regulatory Conditions”); and

 

  (ii)

reasonable endeavours to ensure that the Conditions set out in Clauses 10.1(a) to 10.1(f),

are satisfied as soon as practicable and in any event no later than the Longstop Date and shall not, and shall procure that none of its Representatives shall, take any action that could reasonably be expected to adversely affect the satisfaction of the Conditions; and

 

  (b)

the Sellers shall, at their own cost, use reasonable endeavours to:

 

  (i)

ensure that the Conditions set out in Clauses 10.1(a) to 10.1(e) are satisfied as soon as practicable and in any event no later than the Longstop Date and shall not, and shall procure that none of their Representatives shall, take any action that could reasonably be expected to adversely affect the satisfaction of the Conditions (but the Sellers’ Group shall be permitted to take or omit to take any actions that are necessary to complete the transactions contemplated by any or all of the Jellinbah SPA and / or the SMC SPA (including any Pre-emption SPA (as defined in the SMC SPA)); and

 

 

33


  (ii)

as soon as reasonably practicable and in any event no later than Completion, seek the consent of each of the Japanese Parties to the continuation of the Moranbah Manager as the manager under the terms of the Management Agreement and the Joint Venture Agreement or the assignment by MNC to the Buyer of the right to either become or appoint the manager under the Joint Venture Agreement but, for the avoidance of doubt, this shall not be a Condition. The Buyer must provide the Sellers with such assistance as is reasonably required by the Sellers to obtain these consents.

 

10.3

Without prejudice to Clause 10.2 and subject to Clauses 10.6 and 10.7, the Buyer shall, and shall procure that each of its Affiliates, and its and its Affiliates’ Connected Persons shall, so far as the Buyer is able and to the extent within its power to do so, co-operate fully in all actions and omissions necessary to procure the satisfaction of the Regulatory Conditions as soon as practicable and in any event by the Longstop Date, including:

 

  (a)

making all filings and notifications as soon as practicable after the date of this Deed and in any event within five Business Days of the date of this Deed and obtaining all consents, approvals, clearances, waivers or actions of any Authorities in relation to the Regulatory Conditions to satisfy the Regulatory Conditions as soon as possible after the date of this Deed and in accordance with any relevant time limit;

 

  (b)

promptly notifying the Sellers (including providing copies) of any material communication (whether written or oral) with any Authority in relation to the Regulatory Conditions, keeping the Sellers regularly and reasonably informed of the progress of any notification or filing, discussing with the Sellers the scope, timing and tactics for satisfying the Regulatory Conditions, and providing such assistance as may reasonably be required by the Sellers in relation to the satisfaction of the Regulatory Conditions;

 

  (c)

responding to any request for information from any such Authority in relation to the Regulatory Conditions promptly and in any event in accordance with any relevant time limit, including such timing for a response as agreed between the parties acting reasonably;

 

  (d)

only making communications (whether orally or in writing) with any such Authority in relation to the Regulatory Conditions after consulting with and taking into account the Sellers’ views as to the mode, content and timing of such communications and giving the Sellers a reasonable opportunity to comment on drafts of such communications and to participate in all material telephone calls and material meetings with any such Authority (save to the extent that such Authority expressly requests that the Sellers should not participate in such meetings or telephone calls);

 

  (e)

not making any filing with any Authority in relation to the Transaction or any business which competes with, supplies or is a customer of any Group Company which is not required solely to fulfil a Regulatory Condition (or a corresponding regulatory condition in the SMC SPA) without the Sellers’ written consent as to the making of such filing and its form and content;

 

  (f)

except for the SMC SPA, not (whether alone or acting in concert with others) acquiring or offering to acquire (or causing another person acting on its behalf to acquire or offer to acquire) or entering into a definitive agreement (or causing another person acting on its behalf to enter into a definitive agreement) that, if carried into effect, would result in the acquisition of, a business that competes with the business of a Group Company or any other business the acquisition of which might reasonably be expected to prejudice or delay the satisfaction of any of the Regulatory Conditions; and

 

 

34


  (g)

taking all steps necessary to secure the satisfaction of the Regulatory Conditions, including proposing, negotiating, offering to commit and agreeing, in each case where necessary to ensure that the Regulatory Conditions are satisfied before the Longstop Date, with each relevant Authority to effect (and if such offer is accepted, commit to effect), by agreement, order or otherwise, the sale, divestiture, licence or disposition of any necessary assets or businesses or the performance of any necessary behavioural remedies or Regulatory Conditions. For the avoidance of doubt:

 

  (i)

the Buyer shall make any such proposal, negotiation, offer to commit or agreement with any relevant Authority in sufficient time to ensure that the Regulatory Conditions are satisfied before the Longstop Date, and

 

  (ii)

any such sale, divestiture, licence or disposition of assets or businesses, and any such behavioural remedies will have no impact on the payments to be made pursuant to Clauses 5, 15 or 16, and any costs, expenses or damages related to any sale, divestiture, licence or disposition of assets or businesses or to any such other remedies, or both, will be for the Buyer’s sole account.

 

10.4

Without prejudice to Clause 10.2 and subject to Clause 10.6, the Buyer and the Buyer Guarantor shall ensure that an acceptable replacement guarantee (conditional on Completion) is delivered to each JV Guarantee beneficiary on the terms required by each JV Guarantee for a substitute or replacement guarantor in order to satisfy the Condition set out in Clause 10.1(e).

 

10.5

Without prejudice to Clause 10.2 and subject to Clause 10.6, the Sellers shall, and shall ensure that each Seller’s Affiliate and, before Completion, each Group Company shall, so far as the Sellers are able and to the extent within their power to do so:

 

  (a)

provide the Buyer and any Authority in relation to the Conditions with any necessary information and documents for the purpose of making any filings, notifications or communications to any such Authority that are required to satisfy a Condition;

 

  (b)

in respect of Regulatory Conditions:

 

  (i)

promptly notify the Buyer (including providing copies) of any material communication (whether written or oral) with any Authority in relation to the Regulatory Conditions, keep the Buyer regularly and reasonably informed of any material response or communication from or to any Authority, discuss with the Buyer the scope, timing and tactics for responding to any material request of an Authority, and provide such assistance as may reasonably be required by the Buyer in relation to the satisfaction of the Regulatory Conditions; and

 

  (ii)

only make material communications (whether orally or in writing) with any such Authority in relation to the Regulatory Conditions after consulting with and taking into account the Buyer’s views as to the mode, content and timing of such communications and giving the Buyer a reasonable opportunity to comment on drafts of such communications and to participate in all material telephone calls and material meetings with any such Authority (save to the extent that such Authority expressly requests that the Buyer should not participate in such meetings or telephone calls); and

 

  (c)

in respect of the Condition in Clause 10.1(a):

 

  (i)

consult with the Buyer in relation to the seeking of such waivers and consents from the Japanese Parties (provided that the Buyer shall not have a consent or veto right with respect to the form, content or timing of any communications to the Japanese Parties and the Sellers shall not be obliged to implement any comments made by the Buyer);

 

 

35


  (ii)

promptly notify the Buyer (including providing copies) of any material communication (whether written or oral) with any Japanese Party in relation to the Pre-emption Rights, waivers and consents and keep the Buyer regularly and reasonably informed of any response or communication from or to any Japanese Party in relation to the Pre-emption Rights, waivers and consents.

 

10.6

Nothing in this Clause 10 will require a party to disclose commercially sensitive or legally privileged information regarding itself or its Representatives to another party, except to the extent necessary to ensure that the Conditions and any notifications required under Clause 10.8 are satisfied, in which case such disclosure will be on a confidential external counsel-to-counsel basis only.

 

10.7

Nothing in this Clause 10 requires the Buyer to take any action to secure the satisfaction of a Regulatory Condition if such action is reasonably likely to result in a sale, divestiture, licence, disposition or surrender of any material mining assets or businesses of the Buyer Group (excluding the Group Companies, the SMC Entities and the MNC Assets).

 

10.8

Each party shall, to the extent permitted by Law, keep the other party informed as to the progress of satisfaction of the Conditions, including promptly notifying the other parties in writing each time it becomes aware that any of the Conditions have been satisfied and at the same time (or promptly after) provide the other parties with reasonable evidence of the same.

 

10.9

Subject to the parties having complied with their obligations under Clauses 10.2 to 10.5, if a Condition has not been satisfied by the Initial Longstop Date and the Buyer or Anglo (on behalf of itself and the Sellers) (acting reasonably) considers that:

 

  (a)

any outstanding Conditions are reasonably likely to be satisfied within the three months following the Initial Longstop Date; and

 

  (b)

all Conditions which are satisfied prior to the Initial Longstop Date are reasonably likely to remain satisfied until the date which is three months following the Initial Longstop Date,

that party may, by notice, extend the Longstop Date for a further period of three months commencing on the Initial Longstop Date (“First Longstop Date Extension Period”).

 

10.10

The parties must continue to comply with their obligations under Clauses 10.2 to 10.5 and 10.8 for the duration of the First Longstop Date Extension Period.

 

10.11

Subject to the parties having complied with their obligations under Clause 10.10, if a Condition has not been satisfied by the end of the First Longstop Date Extension Period and the Buyer or Anglo (on behalf of itself and the Sellers) (acting reasonably) considers that:

 

  (a)

any outstanding Conditions are reasonably likely to be satisfied within the three months following the end of the First Longstop Date Extension Period; and

 

  (b)

all Conditions which are satisfied prior to the end of the First Longstop Date Extension Period are reasonably likely to remain satisfied until the date which is three months following the First Longstop Date Extension Period,

that party may, by notice, extend the Longstop Date for a further period of three months commencing on the last day of the First Longstop Date Extension Period (“Second Longstop Date Extension Period”).

 

10.12

The parties must continue to comply with their obligations under Clauses 10.2 to 10.5 and 10.8 for the duration of the Second Longstop Date Extension Period.

 

10.13

If:

 

  (a)

a Condition is not satisfied or waived by the Longstop Date; or

 

36


  (b)

the parties agree that a Condition will not be satisfied by the Longstop Date (unless that Condition is satisfied before the termination of this Deed),

the Buyer, the Sellers or Anglo on behalf of itself and the Sellers may give notice to the other parties in writing to terminate this Deed (provided the terminating party is not in breach of a material obligation under this Deed (including Clause 10.2)), following which Clause 34 will apply.

 

10.14

Anglo may, on behalf of the Sellers, to the extent it thinks fit and is legally entitled to do so, waive the Conditions set out in Clauses 10.1(e) and 10.1(f), in whole or in part, by written notice to the Buyer.

 

10.15

The Buyer and Anglo, on behalf of the Sellers, may, by written agreement, waive any or all of the Regulatory Conditions and / or the Conditions set out in Clauses 10.1(a) to 10.1(d), in whole or in part.

 

10.16

Notwithstanding anything in this Clause 10, nothing in this Deed shall require a Seller to re-issue or issue, or take or omit to take any action that would require it to re-issue or issue, a second Pre-emption Offer Notice.

 

10.17

Unless otherwise agreed between the parties, a Pre-emption Offer Notice must be delivered no earlier than 4 December 2024 and the Sellers must not seek a waiver or variation of any Pre-Emption Rights to bring forward the date of Pre-emption Expiry that would otherwise apply in respect of the Pre-Emption Offer Notice.

 

11.

TAG-ALONG RIGHTS

 

11.1

If, following the delivery of the Pre-emption Offer Notice by MNC to the Japanese Parties in connection with the Condition set out in Clause 10.1(a), any or all of the Japanese Parties give a written offer to the Buyer in accordance with clause 9.4(e) of the Joint Venture Agreement to assign its Interest to the Buyer then the Buyer must, within 10 days of receipt of each such offer, accept the offer to acquire the Interest and execute all documents and do all things required to give effect to such acceptance.

 

11.2

The Buyer indemnifies and agrees to hold harmless Anglo, MNC and the Sellers for all Liabilities and claims incurred by Anglo, MNC or the Sellers arising out of a failure by the Buyer to comply with Clause 11.1.

 

12.

PRE-COMPLETION OBLIGATIONS

 

12.1

During the period from the date of this Deed to the earlier of Completion and the termination of this Deed:

 

  (a)

MNC shall perform its obligations as set out in paragraph 1 of Schedule 4; and

 

  (b)

the Sellers shall perform their obligations as set out in paragraph 2 of Schedule 4.

 

12.2

During the period from the date of this Deed to the earlier of Completion and the termination of this Deed, the Sellers must accommodate any reasonable request by the Buyer for a reasonable number of persons authorised by the Buyer:

 

  (a)

to be given reasonable, non-disruptive and supervised access during normal business hours and on reasonable notice, to inspect the operating sites, books and records of the Business; and

 

  (b)

to have reasonable access to management of the Business, for the sole purpose of planning the integration of the Business with the Buyer Group following Completion, in each case, at the sole risk and cost of the Buyer.

 

37


12.3

The Sellers are not required to give the Buyer or persons authorised by it the access described in Clause 12.2 to the extent that the Sellers determine that such access might reasonably be expected to:

 

  (a)

put a Sellers’ Group member in breach of the Competition and Consumer Act 2010 (Cth), any duty of confidence (other than to the extent material subject to obligations of confidence has already been disclosed in the Disclosure Material) or any duty or obligation under Applicable Data Protection Laws; or

 

  (b)

result in a loss of any legal professional privilege.

 

12.4

The Buyer:

 

  (a)

must not direct, manage or control the conduct of the Business or of any employee of the Business, or otherwise impede the conduct of the Business, at any time before Completion; and

 

  (b)

must ensure that any persons provided with the access referred to in Clause 12.2 comply with the reasonable requirements of the Sellers in respect of the access and do not unreasonably interfere with the Business.

 

12.5

Not less than five Business Days before Completion, Anglo shall provide the Buyer with a schedule in writing (the “Completion Schedule”), prepared in good faith, setting out the details of:

 

  (a)

the Estimated Cash and the Estimated Inter-Group Funding Receivables;

 

  (b)

the Estimated Debt and the Estimated Inter-Group Funding Payables;

 

  (c)

the Estimated Working Capital and the Estimated Working Capital Adjustment; and

 

  (d)

the Completion Payment,

together with reasonable supporting information for Anglo’s calculation of the above items.

 

12.6

At least five Business Days before Completion, the Buyer shall provide to the Sellers, as applicable:

 

  (a)

for each Group Company, the written consents in Agreed Form to act as director, secretary and public officer in respect of each incoming director, secretary and public officer that is replacing a director, secretary or public officer appointed by a Seller; and

 

  (b)

replacement names for each Group Company to take effect from Completion which must not include the words Anglo or Anglo American or any words:

 

  (i)

forming part of any of the trade marks or business names set out in Schedule 14 or otherwise used or owned by the Group or the Business; or

 

  (ii)

which may be misleading or deceptively similar to or likely to be confused with the words Anglo or Anglo American.

 

12.7

In respect of the FPS Environmental Authorities:

 

  (a)

the Buyer must, within 20 Business Days after the date of this Deed, make a Changed Holder Review Application in respect of each relevant FPS Environmental Authority; and

 

38


  (b)

if required, MNC must consent to the Changed Holder Review Application made by the Buyer.

 

12.8

In respect of AASCH and Anglo Eastern Australia only:

 

  (a)

the Sellers must, not less than 10 Business Days before Completion, procure that the Seller Head Company gives the Buyer and the relevant Group Company:

 

  (i)

a draft calculation of the Clear Exit Payment for the Group Companies in respect of each relevant Group Liability in subsection 721-10(2) of the 1997 Tax Act; and

 

  (ii)

work papers supporting the calculation of the Clear Exit Payment in sufficient detail to enable a review and in a manner consistent with the methodology provided in the Seller Tax Sharing Agreement;

 

  (b)

the Buyer must, not less than five Business Days before Completion, provide to the Sellers any comments it has on the draft calculation of the Clear Exit Payment provided under Clause 12.8(a)(i) and the Sellers must consider any such comments (acting reasonably);

 

  (c)

the Sellers must, no later than two Business Days before Completion, procure that the Seller Head Company gives the relevant Group Company and the Buyer a calculation of the Clear Exit Payment for the relevant Group Company based on the draft calculation referred to in Clause 12.8(a)(i) and the Buyer’s comments referred to in Clause 12.8(b);

 

  (d)

at least one Business Day before Completion, the Sellers must procure that:

 

  (i)

the relevant Group Company pays the Clear Exit Payment (if any) to the Seller Head Company to which the relevant Group Liability relates in accordance with the Seller Tax Sharing Agreement;

 

  (ii)

the relevant Seller Head Company provides the relevant Group Company and the Buyer a written receipt or other document evidencing the payment of any amount paid under Clause 12.8(d)(i); and

 

  (iii)

the relevant Group Company has discharged all other amounts owing by it to the relevant Seller Head Company or any other member of the Seller Consolidated Group under the Seller Tax Sharing Agreement or a Tax Funding Agreement.

 

12.9

In no event shall any member of the Sellers’ Group be entitled to seek or obtain any recovery or judgment against any lenders or other Financing Sources (in each case, including their Representatives and their respective successors and assigns) of the Buyer Group, including for any type of damage relating to this Deed or the transactions contemplated by the Transaction Documents, whether at law or in equity, in contract, in tort or otherwise.

 

12.10

The Buyer may, at any time prior to Completion, request Anglo and the Sellers’ consent to present the Buyer’s proposed business plan with respect to the Business to the Japanese Parties. Anglo and the Sellers:

 

  (a)

may, in their discretion (acting reasonably and having regard to the Sellers’ obligation in Clause 10.2(b)), consent or withhold their consent to such presentation; and

 

  (b)

will be entitled to:

 

39


  (i)

review and comment on all material proposed to be presented to the Japanese Parties; and

 

  (ii)

have their Representatives present at such meeting between the Buyer and the Japanese Parties.

 

13.

SEPARATION PLAN

Agreement of the Separation Plan

 

13.1

The Sellers will provide a draft Separation Plan to the Buyer no later than three months after the date of this Deed. The Sellers will use reasonable endeavours to incorporate the Separation Principles in the draft Separation Plan. Upon receipt by the Buyer of the Sellers’ draft Separation Plan, the Sellers and the Buyer will use reasonable endeavours to agree in writing the final Separation Plan which incorporates the Separation Principles by the earlier of (i) Completion; and (ii) the date that is four months after the date of this Deed (and if not agreed by that date, as soon as reasonably practicable thereafter).

 

13.2

In connection with the agreement of the Separation Plan, the parties must act in good faith in relation to requests by the Buyer to add or remove Services under the TSA and each party must act reasonably in negotiating amendments to the TSA to reflect such requests, including by using reasonable endeavours to agree on the scope of the added or removed Services, and the associated charges.

 

13.3

The parties agree that following the date on which the Separation Plan is agreed in accordance with Clause 13.1 they will continue to review and update the Separation Plan, by mutual agreement in writing, including during the term of the TSA, with the goal of achieving a smooth and efficient transition with respect to the Group Assets in accordance with the timelines contemplated by the Separation Principles (and in any event by the end of the term of the TSA).

 

13.4

In the event that the parties fail to agree the final Separation Plan in accordance with Clause 13.1, or any adjustment to the Separation Plan proposed by either party under Clause 13.3, this will be an escalation event (an “Escalation Event”) and the Buyer and the Sellers will, within 15 Business Days of the occurrence of an Escalation Event, escalate the Escalation Event in writing to a director or equivalent senior individual of their respective organisations (“Senior Executives”). The Senior Executives will promptly cooperate in good faith to resolve the Escalation Event and if the Escalation Event has not been resolved in writing by the Senior Executives within 15 Business Days of being notified of it by the parties, the Escalation Event will be deemed to have become a Dispute and each party may commence the formal dispute resolution procedure set out in Clause 49. In circumstances where the Escalation Event relates to a specific item within the draft Separation Plan but the parties are otherwise in agreement as to the other items within the draft Separation Plan, the parties will use reasonable endeavours to implement the Separation Plan in respect of those items that are agreed upon in accordance with this Clause 13.

Separation Committee

 

13.5

The parties will establish a separation committee (the “Separation Committee”) to assist them (subject to compliance with Anti-trust Laws) in agreeing the Separation Plan and facilitating the execution of the Separation Plan (including by seeking to resolve issues relating to the execution of the Separation Plan, and confirming when steps under the Separation Plan will commence and when they have been completed).

 

13.6

Within one month of the date of this Deed, each of the Sellers and Buyer must appoint and notify the other of no less than two suitably experienced representatives as members of the Separation Committee, and each party must nominate one of their members to have joint day-to-day responsibility for the management of the Separation Committee (the “Leads”). Each party may

 

40


  change their appointed members of the Separation Committee by notice to the other party at any time. The members of the Separation Committee must meet (including by videoconference) within five Business Days of delivery of the first draft Separation Plan and thereafter at least fortnightly, unless otherwise agreed by the members of the Separation Committee. Advisors to any party may join the Separation Committee, on a permanent or ad hoc basis, as required.

 

13.7

The Lead for each of the Sellers and Buyer must use reasonable endeavours to agree with the other party’s Lead an agenda for each upcoming meeting of the Separation Committee and to circulate to all other members of the Separation Committee the agenda for that meeting by no later than two Business Days before that meeting.

 

13.8

The Separation Committee may decide to undertake separation activities in a way which deviates from the Separation Plan, provided all such decisions by the Separation Committee are made unanimously between the two Leads. In the event one party considers a deviation from the Separation Plan is necessary and / or disagrees with the proposed implementation of the Separation Plan, and the Leads fail to unanimously agree on how to resolve a request or issue, this will be an Escalation Event and Clause 13.4 will apply mutatis mutandis.

Implementation of the Separation Plan

 

13.9

Subject to compliance with Anti-trust Laws, the Sellers, the Seller Guarantor, the Buyer Guarantor and the Buyer will comply with the requirements of, and use reasonable endeavours to achieve any milestones set out in, the agreed Separation Plan including by procuring that any of their Affiliates undertake any action required to comply with the Separation Plan on and from the date the Separation Plan is agreed.

 

13.10

If the Sellers become aware that a third-party consent is required in respect of the separation of a Group Asset (“Third-Party Consent”), the Sellers will notify the Buyer of such required Third-Party Consent as soon as reasonably practicable, and unless the Sellers and Buyer agree (acting reasonably) that it is not in the best interests of the Group to seek such Third-Party Consent, the Sellers will use reasonable endeavours to obtain such Third-Party Consent in accordance with the timelines contemplated by the Separation Principles or Separation Plan (as applicable) (and in any event by the end of the term of the TSA). All one-off and recurring third-party costs suffered, incurred or due to be incurred by the Sellers’ Group (and Anglo and Anglo’s Affiliates) in relation to the transfer by the Sellers’ Group, Anglo or Anglo’s Affiliates of a Group Asset to the Buyer Group and in obtaining any Third-Party Consents will be borne by the Buyer and the Buyer will promptly reimburse the Sellers for any amounts so incurred by the Sellers Group. If a Third-Party Consent has not been obtained by the Sellers by the end of the TSA (or Completion, where required by the Separation Principles), the relevant Group Asset will not be separated from the Sellers’ Group’s business and the Buyer will be responsible for procuring an alternative to that Group Asset.

 

13.11

Without limiting Clause 28 and save as otherwise provided for in Clause 13.10, with effect from the relevant date(s) contemplated by the Separation Principles or as otherwise agreed in the Separation Plan (and in any event by the end of the term of the TSA), the Buyer will:

 

  (a)

own and hold the exclusive benefit of the Group Assets that have been separated from the Sellers’ Group’s business;

 

  (b)

carry out and perform all the obligations and liabilities to be carried out and performed in relation to the Group Assets that have been separated from the Sellers’ Group’s business; and

 

  (c)

indemnify and hold the Sellers’ Group harmless against all Liabilities which may be suffered or incurred by the Sellers’ Group in respect of any failure by the Buyer to comply with Clause 13.11(b).

 

41


13.12

Without limiting any provision of the TSA (or the agreed Separation Plan):

 

  (a)

the Sellers and the Buyer are each responsible for their own and their Affiliates’ internal and third-party costs relating to the formulation of the Separation Plan; and

 

  (b)

the Buyer is responsible for the internal and third-party costs of:

 

  (i)

the Sellers and the Sellers’ Affiliates; and

 

  (ii)

Anglo and Anglo’s Affiliates,

as well as for their own and their Affiliates’ internal and third-party costs, relating to the execution and performance of the Separation Plan and the administration of the Separation Committee;

 

  (c)

costs to be met by the Buyer as described in Clauses 13.10 and 13.12(b) will be “at cost” without any mark-up imposed by the Sellers’ Group and will be invoiced by the relevant Sellers’ Group member in arrears at any time after the end of the relevant calendar month. The amounts specified in each invoice (together with any GST if applicable) will be payable by the Buyer within 30 days of receipt of the relevant invoice. The Sellers’ invoice given under this Clause 13.12(c) may include those costs to be met by the Buyer as described in Clauses 13.10 and 13.12(b) which relate to any preceding calendar month and be in respect of more than one calendar month; and

 

  (d)

the Buyer’s maximum aggregate liability in respect of all costs invoiced under Clause 13.12(c) (together with all costs invoiced under clause 12.12(c) of the SMC SPA) will not exceed $20,000,000.

 

13.13

The parties acknowledge and agree that compliance by their respective Affiliates with their obligations under clause 12 of the SMC SPA is taken to constitute compliance by them with this Clause 13.

 

14.

MATERIAL ADVERSE CHANGE

 

14.1

If, before Completion, either the Buyer or the Sellers become aware that a Material Adverse Change has occurred, each party must promptly give written notice to each other party, including full details of the Material Adverse Change.

 

14.2

No later than 10 Business Days after a party gives a notice under Clause 14.1 (or such other period as the Buyer and the Sellers may agree in writing), the Sellers must notify the Buyer whether, in the reasonable opinion of the Sellers, the Sellers consider that the Material Adverse Change could be cured (including by payment of money) or could otherwise cease to exist on or before Completion and full details of all relevant circumstances, including the basis on which the Sellers consider the Material Adverse Change can be cured or otherwise cease to exist, and applicable timeframes.

 

14.3

If a Material Adverse Change occurs before Completion and the Sellers give a notice under Clause 14.2 that the Material Adverse Change can be cured before Completion, the Sellers must use reasonable endeavours to investigate and cure (or procure the cure of) the Material Adverse Change before the MAC Cure Date.

 

14.4

The Sellers must keep the Buyer reasonably informed in relation to any Material Adverse Change (including providing details of any actions the Sellers are taking to cure the Material Adverse Change), and must promptly give written notice to the Buyer at any time before Completion if, in the reasonable opinion of the Sellers, the Sellers consider that a Material Adverse Change cannot be cured or otherwise cease to exist before the MAC Cure Date.

 

42


14.5

If a Material Adverse Change occurs before Completion and the Material Adverse Change is not cured or has not otherwise ceased to exist on or before the MAC Cure Date:

 

  (a)

the Buyer may, by written notice to the Sellers; or

 

  (b)

the Sellers may, by written notice to the Buyer,

terminate this Deed at any time up until immediately prior to Completion.

 

14.6

If the Sellers give a notice under Clause 14.2 or 14.4 that the Material Adverse Change cannot be cured and will not otherwise cease to exist on or before Completion:

 

  (a)

the Buyer may, by written notice to the Sellers; or

 

  (b)

the Sellers may, by written notice to the Buyer,

terminate this Deed within 10 Business Days of the Sellers having given notice under Clause 14.2 or 14.4.

 

14.7

The parties agree that the occurrence of a Material Adverse Change will not constitute a breach of this Deed by the Sellers.

 

14.8

Nothing in Clause 14.7 restricts the Buyer from making a Claim against a Sellers’ Group member for a breach by a Sellers’ Group member of its obligations under this Deed, except that the Buyer is excluded from making a Claim against a Sellers’ Group member:

 

  (a)

where a Material Adverse Change has been cured in accordance with this Clause 14 or otherwise ceases to exist on the Completion Date; or

 

  (b)

in respect of any breach of Warranty by the Sellers where this Deed is terminated in accordance with Clauses 14.5 or 14.6.

 

15.

COMPLETION

 

15.1

Completion will take place at the Sellers’ Solicitors offices (or at any other place as agreed in writing by Anglo and the Buyer) on the Scheduled Completion Date.

 

15.2

Where the Buyer (or a Buyer’s Affiliate) is the ‘Buyer’ under the SMC SPA, Anglo may, by notice to the Buyer, defer the Scheduled Completion Date to any subsequent End of Month Date where Anglo considers (acting reasonably) such deferral is necessary to ensure completion of the SMC SPA occurs on the next Business Day after the Sunday which occurs subsequent to Completion. Anglo may give multiple notices extending the Scheduled Completion Date under this Clause 15.2.

 

15.3

At Completion:

 

  (a)

MNC shall do or procure the carrying out of, all those things listed in paragraph 1 of Schedule 5;

 

  (b)

the Sellers shall do or procure the carrying out of, all those things listed in paragraph 2 of Schedule 5; and

 

  (c)

the Buyer shall do or procure the carrying out of all those things listed in paragraph 3 of Schedule 5.

 

15.4

At Completion:

 

43


  (a)

the Buyer shall procure that each relevant Group Company repays to each relevant Seller and / or the Seller’s Affiliate the amount of any Estimated Inter-Group Funding Payables;

 

  (b)

the relevant Seller shall, and shall procure that each of the Sellers’ relevant Affiliates shall, repay to each relevant Group Company the amount of any Estimated Inter-Group Funding Receivables; and

 

  (c)

the repayments in accordance with Clauses 15.4(a) and 15.4(b) will be settled by payments between (a) the relevant Seller, for itself and as agent on behalf of the Seller’s relevant Affiliates; and (b) the Buyer, for itself and as agent on behalf of the relevant Group Companies, and Clause 24.5(b) will apply to such payments.

 

15.5

Within 10 Business Days of the Completion Accounts becoming binding in accordance with Schedule 9, and the Inter-Group Funding Payables and Inter-Group Funding Receivables being finally determined, if the amount of any Inter-Group Funding Payable and / or any Inter-Group Funding Receivable contained in the Completion Accounts is greater or less than the corresponding Estimated Inter-Group Funding Payable or Estimated Inter-Group Funding Receivable, the Sellers and the Buyer shall procure that any necessary adjustments to the repayments pursuant to Clause 15.4 are made to ensure that the actual amount of each Inter-Group Funding Payable and each Inter-Group Funding Receivable has been repaid by each relevant Group Company to the relevant Seller or relevant Seller’s Affiliate, or by the relevant Seller or relevant Seller’s Affiliate to the relevant Group Company, as the case may be and it is agreed that any amounts payable by the relevant Group Company to the Sellers or relevant Sellers’ Affiliate, or by the Sellers or relevant Sellers’ Affiliate to the relevant Group Company under this Clause 15.5, will to the extent possible, be set-off against each other, such that a single amount will be payable by the relevant Group Company to the Sellers or relevant Sellers’ Affiliate or vice versa.

 

15.6

If the Buyer (or an Affiliate of the Buyer) is not the ‘Buyer’ pursuant to the SMC SPA, the parties acknowledge and agree that each of the Anglo Services and Marketing Agreements will terminate with effect on and from Completion. The Buyer shall, as soon as practicable after AASC issues an invoice for remuneration in relation to the provision of services for the period before Completion under an Anglo Services and Marketing Agreement, procure that the Moranbah Manager pays the amount of that invoice to AASC, as if those agreements were still in force.

 

15.7

Subject to Clause 15.8, all documents and items delivered, and payments received, in connection with Completion will be held by the recipient to the order of the person delivering or making them.

 

15.8

Simultaneously with:

 

  (a)

the delivery of all documents and items required to be delivered;

 

  (b)

the receipt of all payments required to be made; and

 

  (c)

the performance of all other obligations required to be performed at Completion,

(and in the case of Clause 15.10(b), other than any such delivery, payment or performance to the extent such is not practicable), all such documents, items and payments will cease to be held to the order of the person delivering or making them, will be released and Completion will be deemed to have taken place.

 

15.9

No party shall be obliged to complete the sale and purchase of any of the MNC Assets and any of the Shares unless the sale and purchase of all the MNC Assets and all of the Shares is completed simultaneously.

 

44


15.10

Without prejudice to Clause 34 or any other rights and remedies a party may have, if the Buyer or the Sellers do not comply with their obligations under Clause 15.3 on the Scheduled Completion Date, the Buyer (in the case of non-compliance by the Sellers and / or MNG) and Anglo and / or the Sellers (in the case of non-compliance by the Buyer) shall each be entitled by notice in writing to each other party, at its discretion:

 

  (a)

to defer Completion to the next End of Month Date or any later date set for Completion in accordance with this Clause 15.10(a). In such event:

 

  (i)

if the deferral is the result of non-compliance by the Buyer, Anglo may at its election provide the Buyer with an updated Completion Schedule in accordance with the requirements of Clause 12.5 (other than in respect of timing), which will then constitute the Completion Schedule for the purposes of this Deed in lieu of any prior Completion Schedule;

 

  (ii)

if the deferral is the result of non-compliance by any Seller and / or MNG, Anglo will, if requested by the Buyer, promptly upon such request provide the Buyer with an updated Completion Schedule in accordance with the requirements of Clause 12.5 (other than in respect of timing), which will then constitute the Completion Schedule for the purposes of this Deed in lieu of any prior Completion Schedule; and

 

  (iii)

this Clause 15.10 will also apply to Completion so deferred;

 

  (b)

so far as practicable, to complete the sale and purchase of the MNC Assets and the Shares in accordance with Clause 15.2 and Schedule 5; or

 

  (c)

provided Completion has been deferred in accordance with Clause 15.10(a) at least once by it, to terminate this Deed by notice in writing to the other parties, following which Clause 34 will apply.

 

15.11

Notwithstanding anything in this Deed, if a waiver has not been received in accordance with Clause 10.1(a)(i) and Completion is not permitted under the Joint Venture Agreement without causing a default or an obligation of re-assignment because the period for Completion to occur following expiry of the Exercise Period has passed (such circumstances constituting “Pre-emption Expiry”), the Sellers may, in their direction, terminate this Deed prior to Completion by notice in writing to the other parties.

 

16.

COMPLETION ACCOUNTS

 

16.1

In respect of the Completion Accounts, the parties shall comply with the requirements set out in Schedule 9.

 

16.2

Within 10 Business Days, starting on the day after the Completion Accounts become binding in accordance with the provisions of Schedule 9, the following payments will be made:

 

  (a)

in respect of the Cash:

 

  (i)

if the Cash is less than the Estimated Cash, the Sellers shall repay to the Buyer an amount equal to such difference; or

 

  (ii)

if the Cash is greater than the Estimated Cash, the Buyer shall pay to the Sellers an amount equal to such difference;

 

  (b)

in respect of the Debt:

 

  (i)

if the Debt is less than the Estimated Debt, the Buyer shall pay to the Sellers an amount equal to such difference; or

 

45


  (ii)

if the Debt is greater than the Estimated Debt, the Sellers shall repay to the Buyer an amount equal to such difference; and

 

  (c)

in respect of the Working Capital:

 

  (i)

if the Working Capital is less than the Estimated Working Capital, the Sellers shall repay to the Buyer an amount equal to such difference; or

 

  (ii)

if the Working Capital is greater than the Estimated Working Capital, the Buyer shall pay to the Sellers an amount equal to such difference,

and it is agreed that any amounts payable by the Buyer to the Sellers under this Clause 16.2 will, to the extent possible, be set-off against amounts payable by the Sellers to the Buyer under this Clause 16.2 such that a single amount will be payable by the Buyer to the Sellers or vice versa.

 

17.

POST-COMPLETION OBLIGATIONS

 

17.1

The Buyer shall by no later than the next scheduled payroll following Completion, procure, to the extent not paid on or before the Completion Date, the payment by each relevant Group Company of any Transaction Bonuses to the persons entitled to such amounts and each Group Company will deduct and withhold from any such payment such amount as the relevant Group Company is required by Law to deduct and withhold for, or on account of, Tax. The Buyer shall procure that each relevant Group Company accounts to the appropriate Tax Authority for amounts so deducted or withheld in accordance with applicable Law. Any such recipient of a Transaction Bonus may enforce this Clause 17.1 under the Contracts (Rights of Third Parties) Act 1999.

 

17.2

After Completion, the Buyer must procure that the Group Companies make all necessary filings with ASIC to give effect to the changes in the membership of the Group Companies, the changes in the officers of each Group Company and the change in name and registered address of each Group Company made in accordance with the terms of this Deed.

 

17.3

The parties acknowledge that legal title to the Mining Tenements, to the extent of the MNC Interest and MNC Tenement Interest, remains with MNC until registration of the Buyer as a holder of the Mining Tenements under the Resources Acts, and agree that, subject to Clause 29, from Completion until the Buyer is registered as the holder of the Mining Tenements under the Resources Acts, MNC shall:

 

  (a)

to the maximum extent permitted by law and subject to the terms of the Joint Venture Agreement:

 

  (i)

grant the Buyer the right to access the Mining Tenements as if the Buyer was the registered holder of the Mining Tenements;

 

  (ii)

exclusively delegate its rights and powers as a registered holder of the Mining Tenements to the Buyer;

 

  (iii)

(at the Buyer’s cost) promptly do such other things as the Buyer reasonably and lawfully requires to be done to enable the Buyer to exercise the rights granted under this Clause 17.3(a); and

 

  (b)

not, nor authorise, agree or commit to:

 

  (i)

take steps to surrender, cancel or transfer the Mining Tenements;

 

  (ii)

assign, transfer, create any Encumbrance over, declare itself a trustee of or otherwise deal with or dispose of the Mining Tenements; or

 

46


  (iii)

agree to a variation of the terms of the Mining Tenements.

 

17.4

The Buyer must, promptly after Completion, execute and lodge the Mining Tenement Transfers, together with all documents necessary to transfer MNC’s interest in the Mining Tenements:

 

  (a)

firstly, if not already stamped, for stamping by or on behalf of the relevant Authority (and promptly pay any Duty assessed); and

 

  (b)

then, for registration with the relevant Authority under the Resources Acts,

and following that do all things as may be reasonably necessary to facilitate the registration of the same.

 

17.5

The Buyer shall procure that each Group Company shall as soon as reasonably practicable and in any event:

 

  (a)

within five Business Days of Completion:

 

  (i)

remove any use of the Trade Marks and Get-up displayed online by the Group Company and / or any of their Affiliates; and

 

  (ii)

cease to use in the ordinary course of any business:

 

  (A)

the words “Anglo” or “Anglo American”; and

 

  (B)

any business or domain name which at Completion was or had been used by the Sellers or any Sellers’ Affiliate;

 

  (b)

within 20 Business Days of Completion:

 

  (i)

remove or replace the Trade Marks and Get-up on any administrative forms, templates, documents and other corporate content; and

 

  (ii)

remove any signs and indicia bearing the Trade Marks and Get-up from any headquarter premises of the Group Company and / or any of their Affiliates;

 

  (c)

within 60 Business Days of Completion, remove any signs and indicia bearing the Trade Marks and Get-up from any other sites and operations owned, controlled and / or operated by the Group Company; and

 

  (d)

within 12 months of Completion, remove or replace the Trade Marks and Get-up on any clothing of Employees.

 

17.6

The Buyer shall put in place and maintain until the sixth anniversary of the Completion Date run-off directors’ and officers’ insurance with the same level of coverage and scope as each Group Company has in place immediately before Completion (“D&O Insurance”) in respect of those directors and officers of any Group Company who resign from any board of a Group Company at or before Completion, providing a level of cover no less extensive than that which is in place as at the date of this Deed. The Buyer undertakes that it shall not take or omit to take (and shall procure that each Buyer Group member shall not take or omit to take) any action which has the effect of invalidating the D&O Insurance. Any such director covered by the D&O Insurance may enforce this Clause 17.6 under the Contracts (Rights of Third Parties) Act 1999.

 

17.7

For a period of seven years from Completion, the Buyer shall, and shall procure that each Group Company shall:

 

47


  (a)

preserve and maintain all books, records and documents which relate to the Taxation of the Group and each Group Company and pertain to events occurring before Completion; and

 

  (b)

make all books, records and documents which are in its possession or control and relate to the Group (insofar as the same record matters occurring on or before Completion) available for inspection by Anglo, the Sellers and their respective Representatives, permit Anglo, the Sellers and their respective Representatives to have reasonable access during normal Working Hours to, and to take copies (at such person’s own expense) of such books, records and documents, and to otherwise provide reasonable information and assistance and reasonable access to any director, officer, employee or agent or adviser of the Group, in each case to the extent reasonably required by Anglo, the Sellers or their respective Representatives and subject to reasonable advance notice being given.

 

17.8

Except as required by applicable Law or with Anglo’s written consent (such consent not to be unreasonably withheld, conditioned or delayed), the Buyer shall not, and shall not cause or permit any Buyer Group member (including the Group Companies) to, make or change any Tax election, amend any Tax Return or take any Tax position on any Tax Return, in each case with respect to any period (or part of any period) ended on or before Completion, that could result in any increased Tax liability (or any indemnification or payment obligation under this Deed or any other Transaction Document in respect of any Tax liability) to, or reduce any Relief of, Anglo, Anglo’s Affiliates, the Sellers or a Seller’s Affiliate.

 

17.9

If the consents contemplated by Clause 10.2(b)(ii) are not obtained before Completion, the Buyer shall use reasonable endeavours, at its own cost, to as soon as practicable following Completion, re-appoint the Moranbah Manager or appoint any replacement manager for the Moranbah Manager under the Management Agreement and Joint Venture Agreement.

 

17.10

Following Completion, if the beneficiary (including the Scheme Manager) of any Seller Financial Provisioning pays or refunds any portion of that Seller Financial Provisioning to the Buyer Group (including as a result of the Buyer Group providing the Replacement Financial Provisioning and including if any portion of the Seller Financial Provisioning is credited against the Replacement Financial Provisioning), the Buyer must promptly, and in any case within five Business Days:

 

  (a)

notify MNC of receipt of such payment; and

 

  (b)

pay the applicable Refunded Financial Provisioning amount (in respect of the applicable Seller Financial Provisioning) to MNC.

 

18.

TENEMENT APPLICATION

 

18.1

MNC and the Buyer acknowledge that the Tenement Application:

 

  (a)

is not transferable until it is granted under the Resources Acts; and

 

  (b)

may not be granted before Completion.

 

18.2

If the Tenement Application is not granted before Completion or is granted without reasonable time to secure indicative approval for the transfer of MNC’s interest in the Tenement Application to the Buyer (and secure any other necessary approvals to do so) by Completion, from Completion:

 

  (a)

MNC appoints the Buyer as its agent in respect of the Tenement Application and authorises the Buyer to do all things necessary (at the Buyer’s cost) to:

 

48


  (i)

obtain the grant of the Tenement Application (including, but not limited to, executing any required documents and dealing directly with the Authority); and

 

  (ii)

attend to transfer the tenement granted from the Tenement Application to the Buyer (including, but not limited to, dealing directly with the Authority);

 

  (b)

MNC must:

 

  (i)

promptly notify the Authority in writing that the Buyer has been appointed as MNC’s agent in respect of the Tenement Application and all dealings associated with it and will (at the Buyer’s cost) execute and deliver to the Buyer such further documentation as the Authority reasonably requires to evidence such appointment;

 

  (ii)

do all things reasonably necessary to ensure that the Buyer is accepted as MNC’s agent in this respect by the Authority; and

 

  (iii)

not revoke the appointment of the Buyer as its agent until such time as the transfer of the tenement granted from the Tenement Application has been completed;

 

  (c)

the Buyer accepts that appointment as agent on the terms of this Clause 18.2, and agrees to take all reasonable steps to progress the Tenement Application expeditiously and procure the granting of the tenement under the Resources Acts pursuant to the Tenement Application as soon as possible (including providing such further information and assistance to the Authority as is reasonably required, including as to the financial and technical resources of the Buyer);

 

  (d)

MNC and the Buyer must cooperate in progressing the Tenement Application to grant and transfer to the Buyer (at the Buyer’s cost), including promptly providing all necessary information, undertaking all steps and signing all documents reasonably requested by the Buyer to progress the Tenement Application to grant and transfer to the Buyer, and the Buyer must provide or pay, as the case may be, any applicable Financial Provisioning;

 

  (e)

each of MNC and the Buyer must promptly deliver to the other all notices and correspondence that each sends or receives in relation to the Tenement Application;

 

  (f)

following grant of the Tenement Application, the Buyer:

 

  (i)

must provide to MNC a duly completed transfer form for the transfer of the tenement granted from the Tenement Application, which MNC must sign and deliver it to the Buyer; and

 

  (ii)

must do all things necessary (including immediately applying for the consent of the Resources Minister in accordance with the Resources Acts) to transfer the tenement granted from the Tenement Application to the Buyer.

 

18.3

The Buyer indemnifies MNC from and against any Liabilities (including any claim by any person against MNC) in respect of the Tenement Application, any tenement granted under the Resources Acts as a result of the Tenement Application or the Buyer’s acts or omissions as agent under this Clause 18, except to the extent of any Liability or claim which is caused or contributed to by any act or omission of MNC or any of its Affiliates, other than MNC’s exercise of any right under this Deed.

 

18.4

MNC and Buyer agree that if:

 

49


  (a)

the Tenement Application is refused, MNC must immediately notify the Buyer of the refusal; or

 

  (b)

the Buyer notifies MNC following Completion that it wishes MNC to withdraw or not progress the Tenement Application (including where the Tenement Application is offered for grant subject to conditions that are unacceptable to the Buyer), MNC must decline the grant and withdraw the application or surrender the Tenement Application and immediately notify the Buyer of the declining, withdrawing or surrender.

 

19.

WRONG POCKETS

 

19.1

Subject to Clauses 19.2 and 19.3, if within 12 months following Completion, it is established that the Sellers or the Buyer has any right, title, or interest in any asset which, pursuant to this Deed should have been transferred to, or retained by, the other (as the case may be):

 

  (a)

the party holding the right, title, or interest in the asset shall transfer such right, title or interest, as soon as practicable, to the other party (or its nominee) on terms that no consideration is required to be paid for such transfer; and

 

  (b)

each party shall execute or do, or procure to be executed or done, at the own cost, all such documents and things as may be necessary to validly effect the transfer and to vest the relevant right, title and / or interest in the asset to the other party (or its nominee),

but no party will be obliged to transfer (or procure the transfer of) any asset which cannot by its terms or by Law be so transferred (except that the parties shall cooperate and use reasonable endeavours to obtain any consents and approvals from third parties as may be necessary to complete such transfer as soon as reasonably possible).

 

19.2

If it is established in accordance with Clause 19.1 that the Sellers have any right, title, or interest in any asset held by the Sellers which, pursuant to this Deed should have been transferred to the Buyer, the Buyer shall transfer to the Sellers’ Bank Account immediately before the transfer of such asset by the Sellers to the Buyer an amount in US dollars equal to:

 

  (a)

if such an asset was not included in Cash, Debt or Working Capital and, as a result the Buyer did not pay the Sellers for such asset as part of the Consideration, the value of such asset that should have been included in the Completion Accounts within either Cash, Debt or Working Capital calculated in accordance with Schedule 9; minus

 

  (b)

any amount that the parties agree in good faith has accrued to the benefit of the Sellers in connection with the asset in the period between Completion and the transfer pursuant to this Clause 19; plus

 

  (c)

any amount that the parties agree in good faith has been incurred by the Sellers in connection with the asset in the period between Completion and the transfer pursuant to this Clause 19.

 

19.3

If it is established in accordance with Clause 19.1 that the Buyer has any right, title, or interest in any asset which, pursuant to this Deed should not have been transferred to the Buyer and should have remained with the relevant Seller, the relevant Seller shall transfer to the Buyer’s Bank Account immediately before the transfer of such asset by the Buyer to the relevant Seller an amount in US dollars equal to:

 

  (a)

if such an asset was included in Cash, Debt or Working Capital and, as a result the Buyer did pay the Sellers for such asset as part of the Consideration, the value of such asset that was included in the Completion Accounts within either Cash, Debt or Working Capital calculated in accordance with Schedule 9; minus

 

50


  (b)

any amount that the parties agree in good faith has accrued to the benefit of the Buyer in connection with the asset in the period between Completion and the transfer pursuant to this Clause 19; plus

 

  (c)

any amount that the parties agree in good faith has been incurred by the Buyer in connection with the asset in the period between Completion and the transfer pursuant to this Clause 19.

 

19.4

The Buyer Group will not be liable in respect of any single Claim or any series of Claims under this Clause 19 which arise from the same or substantially the same facts, matters, circumstances or events (and such Claim(s) will be disregarded for all purposes) unless the amount of the liability pursuant to such Claim or series of Claims would exceed 0.1% of the Completion Payment.

 

19.5

The Buyer Group will not be liable in respect of any single Claim unless the aggregate amount of the Buyer Group’s liability for all Claims (other than Claims excluded by Clause 19.4) would exceed 1% of the Completion Payment, in which case the Buyer Group will only be liable for the excess.

 

20.

ASSUMED CONTRACTS AND COAL SALES AGREEMENTS

 

20.1

Subject to Clause 20.3, on and with effect from Completion, MNC shall, assign and the Buyer accepts an assignment of all of MNC’s rights under, benefits of and interests in the Assumed Contracts and the Coal Sales Agreements (as applicable, “Benefits”) and assumes MNC’s obligations and Liabilities in relation to the Assumed Contracts and the Coal Sales Agreements (whether arising before, on or after Completion).

 

20.2

Without limiting Clause 20.1, and subject to Clause 20.9, in respect of each Assumed Contract and Coal Sales Agreement, MNC and the Buyer shall use best endeavours to, and as soon as reasonably possible, enter into a deed of assumption and assignment (or if required by the relevant contract, a deed of novation) with the counterparty, conditional upon Completion, under which:

 

  (a)

the Benefits under the Assumed Contract and the Coal Sales Agreement (as applicable) are assigned to the Buyer with effect on and from Completion;

 

  (b)

the Buyer assumes MNC’s obligations and Liabilities under the Assumed Contract and the Coal Sales Agreement (as applicable) (whether arising before, on and from Completion); and

 

  (c)

MNC as assignor is released from its obligations and Liabilities under the Assumed Contract and the Coal Sales Agreement (as applicable) (whether arising before, on and from Completion),

and which shall be in the form approved by MNC and the Buyer (and such approval shall not be unreasonably withheld or delayed).

 

20.3

This Deed does not constitute an assignment or an attempted assignment of an Assumed Contract or Coal Sales Agreement if an assignment or attempted assignment requires the consent of the counterparty to the Assumed Contract or Coal Sales Agreement (as applicable) and would constitute a breach of that Assumed Contract or Coal Sales Agreement (as applicable) or applicable Law if an assignment were made without that consent.

 

20.4

If the consent of a counterparty is required for the transfer of an Assumed Contract or Coal Sales Agreement to the Buyer under Clauses 20.1 to 20.3, MNC and the Buyer will use their reasonable endeavours to obtain that consent by or as soon as reasonably practicable after Completion.

 

51


20.5

Pending the transfer of an Assumed Contract or Coal Sales Agreement to the Buyer under Clause 20.1, MNC shall, on and from Completion, at the expense of the Buyer:

 

  (a)

hold the Benefits of the Assumed Contract or the Coal Sales Agreement on trust for the Buyer and account to the Buyer promptly after receipt by it for the value of any Benefit of the Assumed Contract or the Coal Sales Agreement that arises (or relates to the period) after Completion;

 

  (b)

subject to Clause 20.7, enforce the Assumed Contract or the Coal Sales Agreement against any counterparty to it in the manner that the Buyer directs (and promptly following such direction) from time to time; and

 

  (c)

not agree to any termination, amendment or waiver of MNC’s rights under the Assumed Contract or the Coal Sales Agreement without the Buyer’s written consent.

 

20.6

If any Assumed Contract or Coal Sales Agreement has not been transferred to the Buyer at Completion:

 

  (a)

subject to Clause 20.7, MNC shall perform and observe all obligations of MNC under any Assumed Contract or Coal Sales Agreement which are due to be performed before Completion;

 

  (b)

the Buyer shall, to the extent it lawfully can, assume, perform and observe all obligations of MNC’s under any Assumed Contract or Coal Sales Agreement which are due to be performed after Completion; and

 

  (c)

subject to Clause 20.7, MNC shall at the request and expense of and with the Buyer’s assistance, use its reasonable endeavours to perform any obligation of MNC under any Assumed Contract or Coal Sales Agreement which arises (or relates to the period) from Completion which the Buyer cannot lawfully assume, perform or observe.

 

20.7

Without limiting Clause 20.6, MNC is not required to incur any costs (or take any action which requires MNC to incur costs) in complying with Clauses 20.5(b), 20.6(a) and 20.6(c) unless the Buyer has paid MNC the anticipated costs of complying with those Clauses (as notified by MNC to the Buyer, acting reasonably).

 

20.8

Without limiting Clause 28, the Buyer indemnifies Anglo and the Sellers (on a dollar for dollar basis) against all Liabilities suffered, paid or incurred by Anglo or the Sellers from:

 

  (a)

any breach, non-performance or non-observance of any obligation of the assignee under an Assumed Contract or Coal Sales Agreement;

 

  (b)

MNC performing its obligations under Clauses 20.5(b), 20.6(a) and 20.6(c);

 

  (c)

any claim made by a counterparty under an Assumed Contract or Coal Sales Agreement; and

 

  (d)

any breach by the Buyer of Clauses 20.6(a) to 20.6(c).

 

20.9

If, despite their reasonable endeavours, MNC and the Buyer are unable (including because any counterparty consent required cannot be obtained) to transfer an Assumed Contract or Coal Sales Agreement under Clauses 20.1 to 20.3 within 12 months from Completion, MNC may, by written notice to the Buyer, require MNC and the Buyer to use their respective reasonable endeavours to procure that the Assumed Contract or Coal Sales Agreement is terminated with no additional liability to MNC. For the avoidance of doubt, there will be no adjustment to the Consideration because of any such termination.

 

52


20.10

The provisions of this Clause 20 continue to apply in relation to, and pending the termination of an Assumed Contract or Coal Sales Agreement under Clause 20.9. If the Buyer and Anglo have, by written agreement, agreed to waive the Condition in Clause 10.15 in respect of any Specific Contract, the parties agree that a reference to Assumed Contracts in this Clause 20 includes reference to each Specific Contract in relation to which the Condition in Clause 10.15 has not been satisfied (as applicable).

 

21.

GUARANTEES

 

21.1

From Completion, the Buyer shall promptly do everything necessary to assist the Sellers with the release of the Seller Guarantees, including:

 

  (a)

lodging the Replacement Bank Guarantees and Replacement Financial Provisioning (and any duly completed and executed forms as may be required) with the State or the Bank Guarantee Beneficiary; and

 

  (b)

providing the relevant Authority with any further Financial Provisioning in relation to the Mining Tenements and related Environmental Authorisations as and if required by the relevant Authority (including any Financial Provisioning which is specified as being required to be provided in a Notice of Decision),

and, pending release of any such Seller Guarantee, on and from Completion the Buyer will indemnify the Sellers and the Sellers’ Affiliates on demand (on a dollar for dollar basis) against all Liabilities arising after Completion under or by reason of such Seller Guarantee.

 

21.2

Without limiting Clause 21.1, on and from Completion, the Buyer shall deliver to the relevant Authority any Financial Provisioning (in addition to any Financial Provisioning required to be delivered under Clause 21.1) required to be provided in respect of a Mining Tenement and / or an Environmental Authorisation under the Resources Act or the Environmental Protection Act 1994 (Qld) (including in respect of any FPS Environmental Authority).

 

21.3

Without limiting Clause 21.1 to 21.2, the Buyer shall use reasonable endeavours to ensure that as soon as reasonably practicable after Completion, the Sellers and each Seller’s Affiliate are released from all Third-Party Guarantees and, to the extent not replaced at or before Completion, any Seller Guarantees given by the Sellers or any Seller’s Affiliate in respect of obligations of any Group Company and pending release of any such Third-Party Guarantee or Seller Guarantee, and the Buyer shall indemnify the Sellers and each Seller’s Affiliate on demand (on a dollar for dollar basis) against all Liabilities arising after Completion under or by reason of such Third-Party Guarantee or Seller Guarantee.

 

21.4

Without limiting Clauses 21.1 to 21.2, the Sellers shall use reasonable endeavours to ensure that as soon as reasonably practicable after Completion, each Group Company is released from all Third-Party Guarantees given by it in respect of the Sellers’ or any Seller’s Affiliate’s obligations and pending release of any such Third-Party Guarantee, the Sellers shall indemnify the Buyer and each Group Company on demand (on a dollar for dollar basis) against all Liabilities arising after Completion under or by reason of such Third-Party Guarantee.

 

22.

[***]

 

22.1

[***]

 

22.2

[***]

 

22.3

[***]

 

22.4

[***]

 

53


23.

ANGLO’S WARRANTIES

Anglo warrants to the Buyer as at the date of this Deed and as at Completion as if repeated immediately before Completion that:

 

  (a)

Anglo is validly incorporated, in existence and duly registered under the laws of its country of incorporation;

 

  (b)

Anglo has taken all necessary action and has all requisite power and authority to enter and perform this Deed and the other Transaction Documents to which it is a party in accordance with their terms;

 

  (c)

this Deed and the other Transaction Documents (to which it is a party) constitute (or will constitute when executed) valid, legal and binding obligations on Anglo in accordance with their terms; and

 

  (d)

the execution and delivery of this Deed and the other Transaction Documents by Anglo and the performance of and compliance with their terms and provisions will not conflict with or result in a breach of, or constitute a default under, the constitutional documents of Anglo, any agreement or instrument to which Anglo is a party or by which it is bound, or any Law, order or judgment that applies to or binds Anglo or any of its property.

 

24.

SELLERS’ WARRANTIES AND UNDERTAKINGS

 

24.1

The Sellers warrant to the Buyer that each of the Warranties in Schedule 6 is true and accurate:

 

  (a)

as at the date of this Deed; and

 

  (b)

in respect of the Fundamental Warranties only, as at Completion as if repeated immediately before Completion and on the basis that any reference made to the date of this Deed (whether express or implied) in any Warranty must be considered a reference to the Completion Date.

 

24.2

Each of the Warranties must be construed as being separate and independent.

 

24.3

Warranties qualified by the expression “so far as the Sellers are aware” (or any similar expression) are deemed to be given by the Sellers only based on the actual knowledge of [***], [***], [***], [***], [***], [***], [***], [***], [***], [***] and [***]as at the date of this Deed.

 

24.4

Notwithstanding any other provision of this Deed, the provisions of this Clause 24 and Schedule 7, and the provisions in paragraph 3 of the Tax Covenant, operate to limit the Sellers’ liability in respect of any Claim.

 

24.5

The Sellers and the Buyer acknowledge and agree that on and from Completion:

 

  (a)

except in the case of fraud and without prejudice to any matter agreed in the Transaction Documents, to the extent permitted by Law, the Sellers, their Affiliates and their and their Affiliates’ Connected Persons have no rights or remedies against (and have not assigned any rights or remedies against) and shall not bring or make any claim, proceeding, suit or action, in relation to the transactions contemplated by the Transaction Documents:

 

  (i)

in connection with any information, opinion or advice supplied or given (or omitted to be supplied or given) in connection with any of the Transaction Documents against any current or former directors, officers, employees, agents, consultants, advisers, auditors and accountants of any Group Company (each of whom shall be entitled to enforce this Clause 24.5(a)(i) under the Contracts (Rights of Third Parties) Act 1999) on whom it may have relied before agreeing to any terms of, or entering into, any Transaction Document; and

 

54


  (ii)

against any Group Company or any of their current or former directors, officers, employees, agents, consultants, advisers, auditors and accountants (each of which shall be entitled to enforce this Clause 24.5(a)(ii) under the Contracts (Rights of Third Parties) Act 1999) in relation to a matter occurring before the Completion Date,

and with effect from Completion, the Sellers irrevocably release, waive, forfeit and / or extinguish (and shall procure that each of their Affiliates and their and their Affiliates’ Connected Persons release, waive, forfeit and / or extinguish) any such claim, proceeding, suit or action;

 

  (b)

subject to any payments required to be made on or following the Completion Date pursuant to this Deed (including the payment of the Transaction Bonuses), no amounts will be owed from a Group Company to the Sellers or a Seller’s Affiliate in relation to matters occurring before Completion; and

 

  (c)

subject to any payments required to be made on or following the Completion Date pursuant to this Deed (including the payment of the Transaction Bonuses), no amounts will be owed from the Sellers or a Seller’s Affiliate to a Group Company in relation to matters occurring before Completion.

 

25.

SELLER GUARANTOR’S WARRANTIES AND UNDERTAKINGS

 

25.1

The Seller Guarantor warrants to the Buyer as at the date of this Deed and as at Completion as if repeated immediately before Completion that:

 

  (a)

the Seller Guarantor is validly incorporated, in existence and duly registered under the laws of its country of incorporation;

 

  (b)

no (i) meeting has been convened, resolution proposed, petition presented or order made for its winding up; (ii) receiver, receiver and manager, provisional liquidator, liquidator, administrator or other officer of the court has been appointed in relation to any of its assets; or (iii) mortgagee has taken, attempted to take or indicated an intention to exercise its rights under any security of which it is the mortgagor or chargor;

 

  (c)

the Seller Guarantor has taken all necessary action and has all requisite power and authority to enter into and perform this Deed and the other Transaction Documents to which the Seller Guarantor is a party in accordance with their terms;

 

  (d)

this Deed and the other Transaction Documents to which the Seller Guarantor is a party constitute (or will constitute when executed) valid, legal and binding obligations on the Seller Guarantor in accordance with their terms;

 

  (e)

the execution and delivery of this Deed and the other Transaction Documents to which the Seller Guarantor is a party by the Seller Guarantor and the performance of and compliance with their terms and provisions will not conflict with or result in a breach of, or constitute a default under, the Seller Guarantor’s constitutional documents, any agreement or instrument to which the Seller Guarantor is a party or by which it is bound, or any Law, order or judgment that applies to or binds the Seller Guarantor or any of its property;

 

  (f)

no consent, action, approval or authorisation of, and no registration, declaration, notification or filing with or to, any Authority is required to be obtained, or made, by the Seller Guarantor to authorise the execution or performance of this Deed by the Seller Guarantor;

 

55


  (g)

the Seller Guarantor is not and none of its directors, officers, employees, agents, or representatives is engaged (in such capacity) in any conduct, activity or omission which would constitute material non-compliance with any Sanctions Law or Anticorruption Law; and

 

  (h)

the Seller Guarantor is not and none of its directors, officers, employees, agents or representatives (in such capacity):

 

  (i)

is or has been a Sanctioned Person;

 

  (ii)

is or has been in breach of any Sanctions Laws; or

 

  (iii)

has in the three years before the date of this Deed engaged in any transaction or dealing with any Sanctioned Person or with any Sanctioned Territory,

but Clauses 25.1(g) and 25.1(h) will not apply if and to the extent that it is or would be unenforceable by reason of breach of any provision of the Council Regulation (EC) No 2271/96 of 22 November 1996, the Protecting against the Effects of the Extraterritorial Application of Third Country Legislation (Amendment) (EU Exit) Regulations 2020 (SI 2020/1660), any law or regulation implementing such regulations in any member state of the European Union or the United Kingdom, or any similar blocking or anti-boycott law.

 

25.2

The Seller Guarantor irrevocably and unconditionally:

 

  (a)

guarantees, as a primary obligation to the Buyer, the due and punctual performance by Anglo and the Sellers of all the Seller Guaranteed Obligations in accordance with this Clause 25;

 

  (b)

undertakes to the Buyer that:

 

  (i)

whenever Anglo or the Sellers do not pay any amount when due under or in connection with the Seller Guaranteed Obligations, it shall immediately on demand and without deduction or withholding pay that amount as if the Seller Guarantor was the principal obligor; and

 

  (ii)

whenever Anglo or the Sellers fail to perform any other Seller Guaranteed Obligation, it shall immediately on demand perform (or procure the performance of) and satisfy (or procure the satisfaction of) that Seller Guaranteed Obligation,

so that the same benefits are conferred on the Buyer as it would have received if such Seller Guaranteed Obligations had been performed and satisfied by Anglo or the Sellers (as relevant); and

 

  (c)

indemnifies each of the Buyer, all of its Affiliates and each officer, employee and agent of such persons on demand (on a dollar for dollar basis) against all Liabilities which the Buyer may suffer or incur (whether directly or indirectly) as a result of any claim relating to:

 

  (i)

the failure of Anglo or the Sellers to perform any of the Seller Guaranteed Obligations; or

 

  (ii)

any Seller Guaranteed Obligation becoming unenforceable, invalid or illegal.

 

25.3

The guarantee in Clause 25.2 is a continuing guarantee and will extend to the ultimate balance of sums payable by Anglo and the Sellers in respect of the Seller Guaranteed Obligations, regardless of any intermediate payment or discharge in whole or in part.

 

56


25.4

If any payment by any of Anglo, the Sellers and / or the Seller Guarantor or any discharge of any obligations of Anglo, the Sellers and / or the Seller Guarantor or any security for those obligations or otherwise is avoided or reduced because of insolvency or any similar event:

 

  (a)

the liability of Anglo, the Sellers and the Seller Guarantor will continue as if the payment discharge, avoidance or reduction had not occurred; and

 

  (b)

the Buyer will be entitled to recover the value or amount of that security or payment from the Seller Guarantor as if the payment, discharge, avoidance or reduction had not occurred.

 

25.5

The obligations of the Seller Guarantor under this Clause 25 will not be affected by any act, omission, matter or thing which, but for this Clause 25.5, would reduce, release or prejudice any of its obligations under this Clause 25 (whether or not known to the Buyer, the Buyer Guarantor, Anglo, the Sellers or the Seller Guarantor) including:

 

  (a)

any time, waiver or consent granted to, or composition with, Anglo, the Sellers or any other person;

 

  (b)

the release of Anglo, the Sellers or any other person under the terms of any composition or arrangement with any creditor;

 

  (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, Anglo, the Sellers or any 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;

 

  (d)

any incapacity or lack of power, authority or legal personality of or dissolution, amalgamation, reconstruction or change in the members or status of the Buyer or any other person;

 

  (e)

any amendment (however fundamental) or replacement of any of the Seller Guaranteed Obligations or any other document or security;

 

  (f)

any unenforceability, illegality or invalidity of any obligation of any person under this Deed or any other document or security; or

 

  (g)

any insolvency or similar proceedings.

 

25.6

The Seller Guarantor waives any right it may have of first requiring the Buyer to proceed against or enforce any other rights or security or claim payment from any person before claiming from the Seller Guarantor under this Clause 25. This waiver applies irrespective of any law or any provision of this Deed to the contrary.

 

25.7

Until all amounts which may be or become payable by Anglo or the Sellers under or in connection with the Seller Guaranteed Obligations have been irrevocably paid in full:

 

  (a)

the Buyer may refrain from applying or enforcing any other money, security or rights held or received by the Buyer 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 the Seller Guarantor shall not be entitled to the benefit of the same;

 

  (b)

the Buyer may hold in an interest-bearing suspense account any money received from the Seller Guarantor or on account of the Seller Guarantor’s liability under this Clause 25;

 

57


  (c)

the Seller Guarantor shall not exercise any rights which it may have by reason of performance by it of the Seller Guaranteed Obligations to be indemnified by Anglo or the Sellers or to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of Anglo or the Sellers in respect of the Seller Guaranteed Obligations or of any other guarantee or security taken pursuant to, or in connection with, the Seller Guaranteed Obligations by the Buyer; and

 

  (d)

the Seller Guarantor shall not claim from Anglo or the Sellers any sums which may be owing to it from Anglo or the Sellers or have the benefit of any set-off or counter claim or proof against, or dividend, composition or payment by, Anglo or the Sellers other than in respect of an Exempted Amount.

 

25.8

The Seller Guarantor undertakes to hold any security taken from Anglo or the Sellers in connection with this guarantee in trust for the Buyer pending discharge in full of all the Seller Guarantor’s obligations under this Clause 25.

 

25.9

This guarantee is in addition to and is not in any way prejudiced by any other guarantee or security now or subsequently held by the Buyer.

 

26.

BUYER’S WARRANTIES AND UNDERTAKINGS

 

26.1

The Buyer warrants to Anglo and the Sellers as at the date of this Deed and as at Completion as if repeated immediately before Completion that:

 

  (a)

the Buyer is validly incorporated, in existence and duly registered under the laws of its country of incorporation;

 

  (b)

no (i) meeting has been convened, resolution proposed, petition presented or order made for its winding up; (ii) receiver, receiver and manager, provisional liquidator, liquidator, administrator or other officer of the court has been appointed in relation to any of its assets; or (iii) mortgagee has taken, attempted to take or indicated an intention to exercise its rights under any security of which it is the mortgagor or chargor;

 

  (c)

the Buyer has taken all necessary action and has all requisite power and authority to enter into and perform this Deed and the other Transaction Documents in accordance with their terms;

 

  (d)

this Deed and the other Transaction Documents constitute (or will constitute when executed) valid, legal and binding obligations on the Buyer in accordance with their terms;

 

  (e)

the execution and delivery of this Deed and the other Transaction Documents by the Buyer and the performance of and compliance with their terms and provisions will not conflict with or result in a breach of, or constitute a default under, the Buyer’s constitutional documents, any agreement or instrument to which the Buyer is a party or by which it is bound, or any Law, order or judgment that applies to or binds the Buyer or any of its property;

 

  (f)

no consent, action, approval or authorisation of, and no registration, declaration, notification or filing with or to, any Authority (other than the Regulatory Conditions) is required to be obtained, or made, by the Buyer to authorise the execution or performance of this Deed by the Buyer, and, in respect of the Regulatory Conditions, no Authority has indicated to the Buyer, its Affiliates or the Buyer’s or its Affiliates’ Representatives that its consent, approval or authorisation may not be provided, or may only be provided on a conditional basis (and such conditions are not standard conditions or not satisfactory to the Buyer), to enable the Buyer’s performance of this Deed;

 

58


  (g)

the Buyer has provided Anglo and the Sellers with a correct and complete copy of the Commitment Letter (including all exhibits, schedules, annexes, supplements and amendments to the Commitment Letter) and any fee letter related to the Commitment Letter (the “Fee Letter”) pursuant to which the Buyer Guarantor will have available funds, together with cash on hand, to meet its obligations under the Transaction Documents (such debt financing agreements together being the “Buyer Financing Agreements”) provided that such copy of the Fee Letter may be redacted with respect to fees, pricing caps and other economic terms to the extent such redacted terms do not adversely affect the availability of the Financing at Completion;

 

  (h)

each Buyer Financing Agreement is in full force and effect and has been executed by and is binding upon the Buyer Group members that are party to the Buyer Financing Agreements and, to the Buyer’s knowledge, all other parties to the Buyer Financing Agreements;

 

  (i)

there are no agreements, side letters or arrangements (other than the Buyer Financing Agreements and the fee letters related thereto) relating to the Financing that impose or permit the imposition of conditions precedent to the funding of the Financing on the Completion Date or would otherwise affect the availability of the Financing on the Completion Date;

 

  (j)

the Buyer has no reason to believe that any of the Financing Conditions contemplated by the Commitment Letter, and as will be contained in the Buyer Financing Agreements, will not be satisfied or that the Financing will not be made available to the Buyer on or prior to the Completion and the Buyer is not aware of the existence of any fact, matter or circumstance as of the date of this Deed that would reasonably be expected to cause such conditions to the Financing not to be satisfied and the Completion not to occur;

 

  (k)

the Buyer is not aware of any fact, matter, event or circumstance which is or could reasonably be expected to result in a Claim, and for the purposes of this Clause 26.1(k), the Buyer’s awareness means the extent to which the Buyer Deal Team Members are aware, or ought reasonably to have been aware after having made reasonable enquiries, as at the date of this Deed of such fact, matter, event or circumstance;

 

  (l)

the Buyer is not and no Buyer Group member nor any of their respective directors, officers, employees, agents, or representatives is engaged (in such capacity) in any conduct, activity or omission which would constitute material non-compliance with any Sanctions Law or Anticorruption Law; and

 

  (m)

the Buyer is not and no Buyer Group member nor any of their respective directors, officers, employees, agents or representatives (in such capacity):

 

  (i)

is or has been a Sanctioned Person;

 

  (ii)

is or has been in breach of any Sanctions Laws; or

 

  (iii)

has in the three years before the date of this Deed engaged in any transaction or dealing with any Sanctioned Person or with any Sanctioned Territory,

but Clauses 26.1(l) and 26.1(m) will not apply if and to the extent that it is or would be unenforceable by reason of breach of any provision of the Council Regulation (EC) No 2271/96 of 22 November 1996, the Protecting against the Effects of the Extraterritorial Application of Third Country Legislation (Amendment) (EU Exit) Regulations 2020 (SI 2020/1660), any law or regulation implementing such regulations in any member state of the European Union or the United Kingdom, or any similar blocking or anti-boycott law.

 

59


26.2

The Buyer acknowledges and agrees that except in the case of fraud and without prejudice to any matter agreed in the Transaction Documents:

 

  (a)

it has no rights or remedies against and shall not bring or make any claim, proceeding, suit or action in connection with any of the transactions contemplated in any of the Transaction Documents against any Group Company, Anglo or any Seller’s Affiliate, or each of their respective current or former directors, officers, employees, agents, consultants, advisers, auditors and accountants (each of whom shall be entitled to enforce this Clause 26.2(a) under the Contracts (Rights of Third Parties) Act 1999), and the Buyer irrevocably releases, waives, forfeits and / or extinguishes any such claim, proceeding, suit or action; and

 

  (b)

on and from Completion, no Group Company will have any rights or remedies against, or any basis for bringing any claim, proceeding, suit or action against, Anglo, the Sellers, their Affiliates or their or their Affiliates’ Connected Persons (each of which shall be entitled to enforce this Clause 26.2(b) under the Contracts (Rights of Third Parties) Act 1999), and with effect from Completion, the Buyer shall procure that no Group Company brings any such claim, proceeding, suit or action to the extent the Buyer has control of the Group Company.

 

26.3

With effect from Completion, to the maximum extent permitted by Law, the Buyer shall grant, and shall procure that each Group Company shall grant, a release and full discharge to all officers of the Group Companies that resign effective from Completion from all liabilities or obligations owed to a Group Company and shall procure that each Group Company shall waive all claims it has or may have against such persons in connection with his appointment as a director of, or employment with, or conduct in relation to, any Group Company (except in the case of fraud and without prejudice to any matter agreed in the Transaction Documents).

 

26.4

The Buyer acknowledges that:

 

  (a)

before the Buyer signed this Deed, the Buyer was given a Section 408 Notice in relation to each of those Properties that have particulars recorded in the environmental management register maintained under the Environmental Protection Act 1994 (Qld); and

 

  (b)

a copy of the Section 408 Notices given to the Buyer is contained as an annexure to the Disclosure Letter.

 

27.

BUYER GUARANTOR’S WARRANTIES AND UNDERTAKINGS

 

27.1

The Buyer Guarantor warrants to Anglo and the Sellers as at the date of this Deed and as at Completion as if repeated immediately before Completion that:

 

  (a)

the Buyer Guarantor is validly incorporated, in existence, in good standing and duly registered under the laws of its country of incorporation;

 

  (b)

no (i) meeting has been convened, resolution proposed, petition presented or order made for its winding up; (ii) receiver, receiver and manager, provisional liquidator, liquidator, administrator or other officer of the court has been appointed in relation to any of its assets; or (iii) mortgagee has taken, attempted to take or indicated an intention to exercise its rights under any security of which it is the mortgagor or chargor;

 

  (c)

neither Buyer nor Buyer Guarantor is entering into this Deed with the actual intent to hinder, delay or defraud either present or future creditors of any member of the Buyer Group. As of the date of this Deed and immediately after giving effect to the Transaction (including the payment of the Completion Payment), assuming the accuracy of the representations and warranties set forth in Clause 24.1:

 

60


  (i)

the amount of the “fair saleable value” of the assets of the Buyer Guarantor and its subsidiaries, taken as a whole, will exceed the amount that will be required to pay the probable liabilities (including contingent liabilities) of Buyer Guarantor and its subsidiaries, taken as a whole, as such liabilities become absolute and matured;

 

  (ii)

the assets of Buyer Guarantor, taken as a whole, at a fair valuation, will exceed their liabilities (including the probable amount of all contingent liabilities);

 

  (iii)

the Buyer Guarantor and its subsidiaries, taken as a whole, will not have an unreasonably small amount of capital for the operation of the businesses in which they are engaged or proposed to be engaged; and

 

  (iv)

Buyer Guarantor and its subsidiaries, taken as a whole, will not have incurred liabilities, including contingent and other liabilities, beyond their ability to pay such liabilities as they mature or become due;

 

  (d)

the Buyer Guarantor has taken all necessary action and has all requisite power and authority to enter into and perform this Deed, the other Transaction Documents and the Buyer Financing Agreements to which the Buyer Guarantor is a party in accordance with their terms;

 

  (e)

this Deed, the other Transaction Documents and the Buyer Financing Agreements to which the Buyer Guarantor is a party constitute (or will constitute when executed) valid, legal and binding obligations on the Buyer Guarantor in accordance with their terms;

 

  (f)

the execution and delivery of this Deed and the other Transaction Documents to which the Buyer Guarantor is a party by the Buyer Guarantor and the performance of and compliance with their terms and provisions will not conflict with or result in a breach of, or constitute a default under, the Buyer Guarantor’s constitutional documents, any agreement or instrument to which the Buyer Guarantor is a party or by which it is bound, or any Law, order or judgment that applies to or binds the Buyer Guarantor or any of its property;

 

  (g)

no consent, action, approval or authorisation of, and no registration, declaration, notification or filing with or to, any Authority (other than the Regulatory Conditions) is required to be obtained, or made, by the Buyer Guarantor to authorise the execution or performance of this Deed by the Buyer Guarantor, and, in respect of the Regulatory Conditions, no Authority has indicated to the Buyer Guarantor, its Affiliates or the Buyer Guarantor’s or its Affiliates’ Representatives that its consent, approval or authorisation may not be provided, or may only be provided on a conditional basis (and such conditions are not standard conditions or not satisfactory to the Buyer Guarantor), to enable the Buyer Guarantor’s performance of this Deed;

 

  (h)

the Buyer Guarantor is not and no Buyer Group member nor any of their respective directors, officers, employees, agents, or representatives is engaged (in such capacity) in any conduct, activity or omission which would constitute material non-compliance with any Sanctions Law or Anticorruption Law; and

 

  (i)

the Buyer Guarantor is not and no Buyer Group member nor any of their respective directors, officers, employees, agents or representatives (in such capacity):

 

  (i)

is or has been a Sanctioned Person;

 

  (ii)

is or has been in breach of any Sanctions Laws; or

 

  (iii)

has in the three years before the date of this Deed engaged in any transaction or dealing with any Sanctioned Person or with any Sanctioned Territory,

 

61


but Clauses 27.1(h) and 27.1(i) will not apply if and to the extent that it is or would be unenforceable by reason of breach of any provision of the Council Regulation (EC) No 2271/96 of 22 November 1996, the Protecting against the Effects of the Extraterritorial Application of Third Country Legislation (Amendment) (EU Exit) Regulations 2020 (SI 2020/1660), any law or regulation implementing such regulations in any member state of the European Union or the United Kingdom, or any similar blocking or anti-boycott law; and

 

  (j)

the Buyer Guarantor is not aware of any condition or circumstance that would prevent, hinder or delay its ability to wire or transfer at Completion the proceeds of the Financing to the bank account designated for such purpose by the Sellers in accordance with this Deed.

 

27.2

The Buyer Guarantor irrevocably and unconditionally:

 

  (a)

guarantees, as a primary obligation to Anglo and the Sellers, the due and punctual performance by the Buyer of all the Guaranteed Obligations in accordance with this Clause 27;

 

  (b)

undertakes to Anglo and the Sellers that:

 

  (i)

whenever the Buyer does not pay any amount when due under or in connection with the Guaranteed Obligations, it shall immediately on demand and without deduction or withholding pay that amount as if the Buyer Guarantor was the principal obligor; and

 

  (ii)

whenever the Buyer fails to perform any other Guaranteed Obligation, it shall immediately on demand perform (or procure the performance of) and satisfy (or procure the satisfaction of) that Guaranteed Obligation,

so that the same benefits are conferred on Anglo and the Sellers as they would have received if such Guaranteed Obligations had been performed and satisfied by the Buyer; and

 

  (c)

indemnifies each Indemnified Party on demand (on a dollar for dollar basis) against all Liabilities which Anglo or the Sellers may suffer or incur (whether directly or indirectly) as a result of any claim relating to:

 

  (i)

the failure of the Buyer to perform any of the Guaranteed Obligations; or

 

  (ii)

any Guaranteed Obligation becoming unenforceable, invalid or illegal.

 

27.3

The guarantee in Clause 27.2 is a continuing guarantee and will extend to the ultimate balance of sums payable by the Buyer in respect of the Guaranteed Obligations, regardless of any intermediate payment or discharge in whole or in part.

 

27.4

The Buyer Guarantor will:

 

  (a)

maintain the Buyer Financing Agreements in full force and effect and, except for amendments, modifications, restatements or other changes made to any Buyer Financing Agreement that would not materially adversely affect the Buyer’s and Buyer Guarantor’s ability to satisfy their obligations under the Transaction Documents (and any change which causes the conditionality of any Buyer Financing Agreement to become more onerous or affects the ability of the Buyer Guarantor to enforce its rights against the Financing Sources will be regarded as materially adversely affecting the Buyer’s and Buyer Guarantor’s ability to satisfy their obligations under the Transaction Documents), without the prior written consent of the Sellers agree to, or permit, any amendment, restatement, amendment and restatement, replacement, supplement, or

 

62


  other modification of, or waiver or consent under, the Buyer Financing Agreements or other documentation relating to the Financing, and not do any act or take any step or omit to do any act or take any step that would in any way:

 

  (i)

reduce the aggregate amount of the Financing committed and available to be drawn by the Buyer Guarantor under the Buyer Financing Agreements;

 

  (ii)

reduce the period for which funds are available to be drawn by the Buyer Guarantor;

 

  (iii)

otherwise materially adversely affect the Buyer Guarantor’s ability to draw funds under the Buyer Financing Agreements on the Completion Date sufficient to enable the Buyer and Buyer Guarantor to meet their obligations under the Transaction Documents and pay all fees and expenses required to be paid in connection with such Financing; or

 

  (iv)

breach the obligations of Buyer Guarantor under the Buyer Financing Agreements or definitive financing documentation with respect thereto;

 

  (b)

keep Anglo and the Sellers reasonably informed of all material developments in respect of the Buyer Financing Agreements (including, without limitation, any proposed amendments or waivers in respect of the Buyer Financing Agreements) and provide the Sellers with copies of any such amendments or waivers);

 

  (c)

give the Sellers prompt written notice of:

 

  (i)

any material breach or default by any party to the Buyer Financing Agreements or definitive document related to the Financing; or

 

  (ii)

the receipt of any written notice from any Financing Source with respect to any:

 

  (A)

actual default, termination or repudiation by any party to the Buyer Financing Agreements or any definitive document related to the Financing, or any provisions of the Buyer Financing Agreements or any definitive document related to the Financing; or

 

  (B)

material dispute or disagreement between or among any parties to the Buyer Financing Agreements or any definitive document related to the Financing,

that would adversely impact or delay in any material respect the ability of the Buyer to consummate the Transaction;

 

  (d)

upon written request of Sellers, inform the Sellers on a reasonably current basis of the status of its efforts to arrange the Financing contemplated by the Buyer Financing Agreements and to satisfy the conditions thereof, including, upon written request of Sellers, advising and updating the Sellers and their counsel, in a reasonable level of detail, with respect to status, proposed closing date and material terms of the definitive documentation related to the Financing, providing copies of then current drafts of the credit agreement, indenture, offering memorandum and other primary definitive documents, once drafting of such documentation is sufficiently advanced;

 

  (e)

take all action necessary to satisfy on a timely basis the conditions precedent to the Financing on or prior to the Completion and to draw such amounts as it requires under the Buyer Financing Agreements on the Completion Date sufficient, together with such other contemplated sources, for the Buyer and Buyer Guarantor to meet their obligations under the Transaction Documents and all fees and expenses required to be paid in connection with such financing;

 

63


  (f)

promptly following the date of this Deed, engage PNC Bank, National Association (“PNC”) to seek an amendment (the “Buyer Revolver Amendment”) to that certain Credit Agreement dated 18 January 2024, by and among the Buyer Guarantor as borrower, PNC as administrative agent, and the other financial institutions parties as lenders (the “Buyer Revolving Credit Agreement”) (such amendment to be executed by the parties required to execute such amendment pursuant to Section 11.1 of the Buyer Revolving Credit Agreement) to permit the Transaction, provided that:

 

  (i)

upon execution of the Buyer Revolver Amendment, the Buyer Guarantor will deliver a copy of the same to the Sellers; and

 

  (ii)

if the Buyer Guarantor determines that the Buyer Revolver Amendment will not be executed on or prior to the Completion Date, then the Buyer Guarantor will:

 

  (A)

notify the Sellers in writing of the same; and

 

  (B)

deliver to the Sellers:

 

  (I)

prior to Completion, draft payoff and release documentation of the type required by paragraph 10(iii) of Annex C to the Buyer Financing Agreement (the “Buyer Revolver Payoff Documentation”); and

 

  (II)

at Completion, copies of the Buyer Revolver Payoff Documentation executed by PNC (and any other applicable person) that is full force and effect as of the Completion Date; and

 

  (g)

if the Buyer Financing Agreements terminate or any portion of the Financing required to complete the Transaction becomes unavailable:

 

  (i)

promptly notify the Sellers in writing of such unavailability and the reason for such unavailability;

 

  (ii)

use reasonable best efforts to arrange and obtain, as promptly as practicable following the occurrence of such event, alternative financing for any such unavailable portion from the same or alternative sources (the “Alternative Financing”) in an amount sufficient, when taken together with the available portion of the Financing and other sources of cash available to Buyer, to consummate the Transaction and to pay the Completion Payment and other amounts contemplated by this Deed;

 

  (iii)

use best efforts to cause the Alternative Financing to not include any conditions to its consummation that are materially more onerous than or in addition to those in the Buyer Financing Agreements as of the date of this Deed, or would reasonably be expected to prevent, materially delay or materially impede Completion; and

 

  (iv)

deliver to the Sellers true, correct and complete copies of all contracts or other arrangements pursuant to which any alternative financing source shall have committed to provide any portion of the Alternative Financing (provided that any fee letters in connection therewith may be redacted in a manner consistent with the Fee Letter provided as of the date of this Deed),

provided that, the Buyer Guarantor will not be required to obtain any Alternative Financing on terms and conditions that are less favourable in the aggregate or in any material respect, than the terms and conditions in the Buyer Financing Agreement. Compliance by the Buyer Guarantor with this Clause 27.4(g) will not relieve the Buyer

 

64


of its obligations to consummate the Transaction whether or not the Financing or any Alternative Financing is available. To the extent the Buyer Guarantor obtains Alternative Financing or amends, replaces, supplements, terminates, modifies or waives any of the Financing, in each case pursuant to this Clause 27.4, references to the “Financing,” “Financing Sources,” “Buyer Financing Agreement” and other like terms in this Deed shall be deemed to refer to such Alternative Financing, the commitments under the Alternative Financing and the agreements with respect to the Alternative Financing, or the Financing, as so amended, replaced, supplemented, terminated, modified or waived; and

 

  (h)

to the extent that the Financing is not capable of being drawn on or prior to the Completion Date as a result of a failure of any Financing Source or other relevant counterparty to perform its obligations under the Buyer Financing Agreements, take all such actions (or procure that such action is taken) as is necessary to enforce its or any other Buyer Group member’s rights against such Financing Source or counterparty under the Buyer Financing Agreements.

 

27.5

If any payment by the Buyer and / or the Buyer Guarantor or any discharge of any obligations of the Buyer and / or the Buyer Guarantor or any security for those obligations or otherwise is avoided or reduced because of insolvency or any similar event:

 

  (a)

the liability of the Buyer and the Buyer Guarantor will continue as if the payment discharge, avoidance or reduction had not occurred; and

 

  (b)

Anglo and the Sellers will be entitled to recover the value or amount of that security or payment from the Buyer Guarantor as if the payment, discharge, avoidance or reduction had not occurred.

 

27.6

The obligations of the Buyer Guarantor under this Clause 27 will not be affected by any act, omission, matter or thing which, but for this Clause 27.6, would reduce, release or prejudice any of its obligations under this Clause 27 (whether or not known to the Buyer, the Buyer Guarantor, Anglo, the Sellers or the Seller Guarantor) including:

 

  (a)

any time, waiver or consent granted to, or composition with, the Buyer or any other person;

 

  (b)

the release of the Buyer or any other person under the terms of any composition or arrangement with any creditor;

 

  (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, the Buyer 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;

 

  (d)

any incapacity or lack of power, authority or legal personality of or dissolution, amalgamation, reconstruction or change in the members or status of the Sellers or any other person;

 

  (e)

any amendment (however fundamental) or replacement of any of the Guaranteed Obligations or any other document or security;

 

  (f)

any unenforceability, illegality or invalidity of any obligation of any person under this Deed or any other document or security; or

 

  (g)

any insolvency or similar proceedings.

 

65


27.7

The Buyer Guarantor waives any right it may have of first requiring Anglo or the Sellers to proceed against or enforce any other rights or security or claim payment from any person before claiming from the Buyer Guarantor under this Clause 27. This waiver applies irrespective of any law or any provision of this Deed to the contrary.

 

27.8

Until all amounts which may be or become payable by the Buyer under or in connection with the Guaranteed Obligations have been irrevocably paid in full:

 

  (a)

Anglo and the Sellers may refrain from applying or enforcing any other money, security or rights held or received by Anglo and the Sellers in respect of those amounts or apply and enforce the same in such manner and order as they see fit (whether against those amounts or otherwise), and the Buyer Guarantor shall not be entitled to the benefit of the same;

 

  (b)

Anglo and the Sellers may hold in an interest-bearing suspense account any money received from the Buyer Guarantor or on account of the Buyer Guarantor’s liability under this Clause 27;

 

  (c)

the Buyer Guarantor shall not exercise any rights which it may have by reason of performance by it of the Guaranteed Obligations to be indemnified by the Buyer or to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Buyer in respect of the Guaranteed Obligations or of any other guarantee or security taken pursuant to, or in connection with, the Guaranteed Obligations by Anglo and the Sellers; and

 

  (d)

the Buyer Guarantor shall not claim from the Buyer any sums which may be owing to it from the Buyer or have the benefit of any set-off or counter claim or proof against, or dividend, composition or payment by, the Buyer.

 

27.9

The Buyer Guarantor undertakes to hold any security taken from the Buyer in connection with this guarantee in trust for Anglo and the Sellers pending discharge in full of all the Buyer Guarantors’ obligations under this Clause 27.

 

27.10

This guarantee is in addition to and is not in any way prejudiced by any other guarantee or security now or subsequently held by Anglo and the Sellers.

 

28.

BUYER INDEMNITIES

 

28.1

To the maximum extent permitted by Law, and without limiting any other provision of this Deed, any other Transaction Document or any deed or agreement of novation, assumption or assignment in connection with this Deed or any other Transaction Document, on and from Completion the Buyer:

 

  (a)

shall assume responsibility for and fully satisfy all Assumed Liabilities;

 

  (b)

shall indemnify each Indemnified Party on demand (on a dollar for dollar basis) against all Liabilities arising (whether arising before, on or after the Completion Date and regardless of whether arising due to an Indemnified Party’s negligence or breach of duty (statutory or otherwise) and / or Sellers’ Group Representatives) in connection with all Assumed Liabilities (including for any claims), except to the extent that any such Liability is actually recovered by the Indemnified Party under an insurance policy held by a Sellers’ Group member as at the date of this Deed;

 

  (c)

releases the Indemnified Parties from all Liabilities which may arise or be incurred or sustained by the Buyer or any Buyer’s Affiliate or Buyer Group member from time to time or any of its or their officers, employees or agents and all claims which may be made against an Indemnified Party in relation to the Assumed Liabilities; and

 

66


  (d)

shall comply with, perform or otherwise satisfy all Assumed Liabilities, including all Environmental Obligations, including as requested by an Indemnified Party,

provided that, without limiting Clause 30 and without double counting, the Sellers undertake to the Buyer that promptly following the receipt by any Indemnified Party of any proceeds under an insurance policy held by a Sellers’ Group member as at the date of this Deed in respect of an Assumed Liability assumed by the Buyer pursuant to Clauses 28.1(a), 28.1(c) or 28.1(d) (an Assumed Liability Insurance Amount), they shall, within five Business Days of receipt, procure that an amount equal to such Assumed Liability Insurance Amount in full and without any set-off or deduction under this Deed, any other Transaction Document or otherwise is transferred to the Buyer’s Bank Account on a dollar for dollar basis but excluding any amounts identifiably taken into account in Cash, Debt or Working Capital for the purpose of determining the Completion Accounts.

 

28.2

The Sellers hold on trust for each other Indemnified Party the benefit of Clause 28.1 to the extent that such provisions apply to those Indemnified Parties and, without derogating from any right of those Indemnified Parties to enforce those clauses, are entitled to enforce these clauses on behalf of those Indemnified Parties.

 

29.

SELLER INDEMNITIES

To the maximum extent permitted by Law, and without limiting any other provision of this Deed, any other Transaction Document or any deed or agreement of novation, assumption or assignment in connection with this Deed or any other Transaction Document, on and from Completion, the Sellers shall indemnify each Buyer Group member on demand (on a dollar for dollar basis) against all Liabilities arising out of or in connection with [***], except to the extent that such Liabilities are accounted for in the Completion Accounts.

 

30.

INSURANCE

 

30.1

The Sellers shall, and shall procure that their Affiliates shall, maintain in force all existing third-party insurance policies (in all material respects on the same terms and similar level of cover prevailing at the date of this Deed) for the benefit of MNC (in respect of the MNC Assets) and the Group Companies until the Completion Date or earlier termination of this Deed (“Existing Insurance Policies”), save that the Sellers or the Sellers’ Group may amend the insurance policies maintained for the benefit of the Group Companies if such amended policies are substantially the same as those generally applicable to the Anglo American plc group as a whole.

 

30.2

The Sellers shall, and shall procure that their Affiliates or relevant Group Companies, make all claims under the Existing Insurance Policies in relation to the Group Companies’ claims covered by such policies in relation to the period after the date of this Deed until the Completion Date (or earlier termination of this Deed) at the Sellers’ cost or the Group Companies’ promptly and in accordance with the requirements of the relevant policy.

 

67


30.3

The Buyer agrees that, following the Completion Date:

 

  (a)

following the transactions contemplated by the SMC SPA being completed (or the SMC SPA being terminated), the Sellers will not be required to maintain the Existing Insurance Policies;

 

  (b)

if the Sellers continue to maintain the Existing Insurance Policies, neither the Buyer nor any of the Group Companies will be entitled to benefit from such policies;

 

  (c)

any amount received by the Group Companies in respect of a refund of insurance premiums paid by Anglo or the Sellers in relation to the Group Companies or the MNC Assets in respect of periods after the Completion Date (a “Premium Refund”) is to be held by the Group Companies for the benefit of Anglo; and

 

  (d)

it will procure replacement insurance policies in relation to the Group Companies and the Joint Venture.

 

30.4

For the purposes of Clause 30.3(c), the parties acknowledge that, if:

 

  (a)

any amount is received by the Group Companies in respect of any Premium Refund before Completion, unless such amount has been included in the Completion Accounts, the Group Companies shall pay those amounts (after adjustment for any Tax payable or any Tax benefit receivable by the Group Companies or MNC) to Anglo; and

 

  (b)

any amount is received by the Group Companies in respect of any Premium Refund after Completion, the Buyer shall procure that those amounts (after adjustment for any Tax paid or any Tax benefit received by the Group Companies) are promptly paid by the Group Companies to Anglo after receipt by the Group Companies of such amount.

 

30.5

Each party acknowledges and agrees that:

 

  (a)

the Sellers will be entitled to benefit from the proceeds of any insurance claim in relation to the period before the Completion Date in respect of circumstances arising before the Completion Date in relation to the MNC Assets and the Group Companies, including any proceeds of such claim that relates to periods after the Completion Date (“Pre-Completion Date Claim”), and Anglo and the Group Companies may (at Anglo’s cost) make and continue to pursue the Pre-Completion Date Claim after the Completion Date in the name of Anglo, the Sellers or the Group Companies (as applicable);

 

  (b)

members of the Sellers’ Group have lodged a Pre-Completion Date Claim(s) in respect of [***] and if the Buyer or a Buyer Group member receives any settlement or payout in respect of [***]after Completion, the Buyer undertakes to the Sellers and Anglo that it shall immediately notify Anglo of receipt of such amount and pay such amount to the relevant Seller within five Business Days;

 

  (c)

the Buyer shall co-operate fully with Anglo and the Sellers after the Completion Date in respect of any Pre-Completion Date Claim (including [***]), including procuring that the Group Companies give all assistance requested by Anglo (at Anglo’s cost) (including the provision of information and the execution of documents, including the assignment of the benefit of any Pre-Completion Date Claim) to enable Anglo to recover in full under the Pre-Completion Date Claim; and

 

  (d)

in respect of circumstances arising after the Completion Date in relation to the MNC Assets or the Group Companies (as applicable):

 

68


  (i)

Anglo will be entitled to benefit from the proceeds of any insurance claim in relation to the period before the Completion Date; and

 

  (ii)

subject to Clause 30.5(b), the Buyer will be entitled to benefit from the proceeds of any insurance claim in relation to the period after the Completion Date.

 

31.

EMPLOYEES

 

31.1

Subject to Clause 31.2, the Buyer undertakes to Anglo that it will procure that any Employee that is made redundant from any Group Company in the period commencing on Completion and ending 12 months after Completion will receive at least those amounts that would have been owed to such Employee on redundancy as calculated in accordance with document 08.02.10.01.01 in the Data Room.

 

31.2

Notwithstanding any of the foregoing to the contrary, Clause 31.1 shall not operate to duplicate any Entitlements owed to any Employee and shall not impose an obligation on the Buyer to continue or offer employment to any employee or limit the right of the Buyer to terminate the employment of, or to reassign or otherwise alter the status of, any employee of the Group after the Completion Date, or to change in any manner the terms and conditions of his or her employment or other service to or engagement by the Group.

 

32.

TAX COVENANT

The provisions of Schedule 8 apply with effect from Completion.

 

33.

CONFIDENTIALITY AND ANNOUNCEMENTS

 

33.1

Subject to Clauses 33.3 and 33.6, each party:

 

  (a)

shall treat, and shall procure that each of its Affiliates shall treat, as strictly confidential:

 

  (i)

the provisions of this Deed and the other Transaction Documents (including the identities of the parties to such agreements), their subject matter, any documents referred to in them, and the process of their negotiation;

 

  (ii)

in the case of Anglo, any information received or held by Anglo or any of its Representatives which relates to the Buyer Group; and

 

  (iii)

in the case of the Sellers or the Seller Guarantor, any information received or held by the Sellers, the Seller Guarantor or any of their respective Representatives which relates to the Buyer Group; and

 

  (iv)

in the case of the Buyer or the Buyer Guarantor, any information directly or indirectly received or held by the Buyer, the Buyer Guarantor, or any of their respective Representatives which relates to Anglo or the Sellers’ Group,

(together “Confidential Information”); and

 

  (b)

shall not, and shall procure that its Affiliates shall not, except with the written consent of the party to whom the Confidential Information relates (which shall not be unreasonably withheld, delayed or conditioned), make use of (except for the purposes of performing its obligations or exercising its rights under this Deed or any other Transaction Document) or disclose to any person (other than its Representatives in accordance with Clause 33.2) any Confidential Information,

and for the purposes of this Clause 33, the term “Affiliates” includes the Group Companies with respect to Anglo and the Sellers before Completion and with respect to the Buyer after Completion.

 

69


33.2

Each party undertakes that it shall, and it shall procure that its Affiliates shall, only disclose Confidential Information to its Representatives where:

 

  (a)

it is reasonably required for the purposes of performing its obligations or exercising its rights under this Deed or any other Transaction Document (including in respect of the Pre-emption Rights); or

 

  (b)

it is reasonably required for the purposes of refinancing any financing put in place and / or obtaining financing to enable the Buyer to perform its obligations under this Deed or any other Transaction Document,

only where such recipients are informed of the confidential nature of the Confidential Information and the provisions of this Clause 33 and instructed to comply with this Clause 33 as if they were a party to it.

 

33.3

Anglo and the Sellers may disclose Confidential Information to any Joint Venture Participant if such Joint Venture Participant is informed of the confidential nature of the Confidential Information and the provisions of this Clause 33 and instructed to comply with this Clause 33 as if they were a party to it.

 

33.4

Subject to Clauses 33.5 and 33.6, each party shall not (and shall procure that its Affiliates shall not) make any announcement (including any communication to the public, to any customers, suppliers or employees of any Group Company) concerning the subject matter of this Deed without the other parties’ written consent (which shall not be unreasonably withheld or delayed).

 

33.5

As soon as practicable after each of the date of this Deed and Completion, Anglo, the Sellers and the Buyer:

 

  (a)

may make individual announcements regarding the Transaction; and / or

 

  (b)

shall procure that a joint announcement of the Transaction is made,

in each case by way of press release in Agreed Form.

 

33.6

Clauses 33.1, 33.2 and 33.3 will not apply if and to the extent that the party using or disclosing Confidential Information or making such announcement can demonstrate that:

 

  (a)

such disclosure or announcement is required by Law or by any Authority (including, for the avoidance of doubt, any Tax Authority) having applicable jurisdiction, the rules of a Stock Exchange or the securities laws of the United States of America;

 

  (b)

such disclosure or use is required for the purposes of the transactions contemplated by any of the Transaction Documents or the Jellinbah SPA (including any arbitral or judicial proceedings arising out of any of the Transaction Documents or the Jellinbah SPA);

 

  (c)

such disclosure is required for the purposes or the preparation of, or to be included within any accounts, financial statements and / or the tax returns or other submissions to or communications with any Tax Authority in connection with the tax affairs of the disclosing party or its Affiliate;

 

  (d)

such disclosure or announcement is required to facilitate any assignment or proposed assignment of the whole or any part of the rights or benefits under this Deed which is permitted by Clause 42; or

 

  (e)

the Confidential Information concerned has come into the public domain other than through that party’s fault (or that of its Representatives) or the fault of any person to whom such Confidential Information has been disclosed in accordance with this Clause 33.6.

 

 

70


33.7

Notwithstanding anything to the contrary contained in this Deed, the Buyer Group and its respective Representatives may disclose any information relating to the Sellers or the transactions contemplated by the Transaction Documents to any Financing Sources or rating agencies (in each case, without any obligation on the part of the Financing Sources or rating agencies to comply with the terms of this clause) so long as:

 

  (a)

in the case of any Financing Source, such Financing Source is subject to confidentiality undertakings set forth in the Commitment Letter or that are at least as restrictive as those to the Financing Sources under the Commitment Letter; or

 

  (b)

in the case of any rating agency, such rating agency is subject to customary confidentiality undertakings with respect to dissemination of such information to such rating agency.

 

33.8

The provisions of this Clause 33 will survive termination of this Deed or Completion and will continue for a period of five years from the date of this Deed.

 

34.

TERMINATION

 

34.1

Written notice to terminate this Deed may be given:

 

  (a)

in accordance with Clause 4.2;

 

  (b)

in accordance with Clause 10.13;

 

  (c)

in accordance with Clauses 14.5 or 14.6;

 

  (d)

in accordance with Clause 15.10(c); or

 

  (e)

by the Sellers, if the SMC SPA is terminated before completion under the SMC SPA.

 

34.2

If notice of termination is given in accordance with Clause 34.1, this Deed will cease to have effect immediately upon delivery of such notice of termination, except that the Surviving Provisions and any rights or liabilities that have accrued before that time will continue in full force and effect, and the Buyer shall, and shall procure that its Representatives shall, immediately return to Anglo and the Sellers all Confidential Information without keeping any copies of the Confidential Information, destroy all information and documentation derived from the Confidential Information and expunge all Confidential Information from any computer or other device.

 

35.

GST

 

35.1

In this Clause 35:

 

  (a)

unless the context requires otherwise, words or expressions used in this Clause 35 which are defined in the GST Act have the same meaning in this Clause;

 

  (b)

any part of a supply that is treated as a separate supply for the purposes of the GST Act (including for the purpose of attributing GST payable to tax periods) will be treated accordingly; and

 

  (c)

a reference to GST payable by, or input tax credit entitlement of, a party includes any GST payable by or input tax credit entitlement of the representative member of any GST Group of which that party is a member.

 

71


35.2

MNC and the Buyer agree that the sale of the MNC Assets under this Deed constitutes the supply of a going concern for the purposes of the GST Act.

 

35.3

Without limiting Clause 35.6, MNC undertakes to carry on the enterprise transferred under this Deed until the day that the supply is made for the purposes of the GST Act.

 

35.4

The Buyer warrants to MNC that:

 

  (a)

it is registered for GST at the date of this Deed and it will not do anything to cause it to cease to be registered before Completion;

 

  (b)

it will provide written evidence of its GST registration to MNC upon request; and

 

  (c)

will immediately notify MNC in writing if it ceases to be registered before Completion for any reason.

 

35.5

If the Buyer does not provide evidence of registration as required by Clause 35.4(b) or ceases to be registered before Completion, MNC may elect to treat the supply of the MNC Assets as a taxable supply, and, accordingly, the Buyer must pay the GST Amount (calculated under Clause 35.6) to MNC on the Completion Date.

 

35.6

Notwithstanding Clause 35.2, if MNC reasonably determines that it is liable to pay GST on the supply of all or some of the MNC Assets under this Deed:

 

  (a)

the Buyer must pay to MNC in addition to any consideration to be provided by the Buyer to MNC for that supply pursuant to any other clause of this Deed, an amount equal to the GST payable on the supply (“GST Amount”);

 

  (b)

in addition to the GST Amount, the Buyer must pay to MNC an amount equal to any interest, fines, penalties and additional tax payable by MNC as a result of the supply of the MNC Assets being incorrectly treated as a supply of a going concern or otherwise resulting from the GST payable on the supply being paid late or the GST Amount being paid late;

 

  (c)

the GST Amount and any amount payable under Clause 35.6(b) must be paid by the Buyer to MNC within five Business Days of MNC issuing a tax invoice to the Buyer for the relevant taxable supply, except where the GST Amount is payable on the Completion Date in accordance with Clause 35.5; and

 

  (d)

it will not be a defence to any claim against the Buyer pursuant to this Clause 35.6 that MNC did not pay the GST on the supply when it fell due under the GST Act.

 

35.7

If a party (“Supplier”) makes a supply under or in connection with this Deed (apart from the supply of the MNC Assets) on which GST is payable, the consideration payable or to be provided for that supply but for the application of this Clause is increased by an amount equal to the GST payable on the supply, and subject to the Supplier giving a tax invoice in respect of that taxable supply to the recipient of the supply (“Recipient”), the Recipient must pay to the Supplier an amount equal to the GST payable on the supply within five Business Days of receiving a tax invoice.

 

35.8

If a payment to a party under this Deed is a reimbursement or indemnification, calculated by reference to a loss, cost or expense incurred by that party, the payment will be reduced by the amount of any input tax credit to which that party, or the representative member of the GST Group that party is a member of (as the case may be), is entitled in respect of that loss, cost or expense.

 

72


35.9

If the GST payable by a Supplier on any supply made under or in connection with this Deed varies from the GST Amount paid or payable by the Recipient under Clause 35.6 or Clause 35.7, the Supplier will provide a corresponding refund or credit to, or will be entitled to receive the amount of that variation from, the Recipient. If an adjustment event occurs in relation to a supply, the Supplier must issue an adjustment note to the Recipient for that supply within 10 Business Days of becoming aware of the adjustment event.

 

35.10

This Clause 35 will survive Completion.

 

36.

FURTHER ASSURANCE

Subject to Clause 18 which governs circumstances in which it is established that a Seller or the Buyer has any right, title, or interest which, pursuant to this Deed should have been transferred to, or retained by, the other (as the case may be), for a period of 12 months from the Completion Date each party shall execute and deliver or procure the execution and delivery of all such documents and shall do all such things as the other parties may reasonably require (and at the cost of such other parties) for the purpose of giving full effect to the provisions of this Deed and to secure for each party the full benefit of the rights, powers and remedies conferred upon it under this Deed.

 

37.

POWERS OF ATTORNEY

 

37.1

From Completion and for so long after Completion as the Sellers remain the registered holder of any Shares, each Seller shall appoint the Buyer to be its lawful attorney to exercise all rights in relation to the relevant Shares as the Buyer in its absolute discretion sees fit.

 

37.2

The powers of attorney given in Clause 37.1 are irrevocable, save with the Buyer’s written consent, and are given by way of security to secure the Buyer’s proprietary interest as the Buyer of the relevant Shares but will expire on the date on which the Buyer is entered in the register of members of the relevant Group Company as holder of the relevant Shares.

 

37.3

For so long as a Sellers’ power of attorney given in Clause 37.1 remains in force, the relevant Seller shall:

 

  (a)

not exercise any rights which attach to the relevant Shares or are exercisable in its capacity as registered holder of the relevant Shares without the Buyer’s written consent;

 

  (b)

hold on trust for the Buyer all dividends and other distributions of profits or assets received by such Seller in respect of the relevant Shares and promptly notify the Buyer as attorney of anything received by such Seller in its capacity as registered holder of the relevant Shares;

 

  (c)

act promptly in accordance with the Buyer’s instructions in relation to any rights exercisable or anything received by it in its capacity as registered holder of the relevant Shares; and

 

  (d)

ratify whatever the Buyer may do as attorney in its name or on its behalf in exercising the powers contained in this Clause 37.

 

37.4

Nothing in this Clause 37 will require any Seller to take any action (or require it to omit to take any action) that would breach any applicable Law.

 

38.

ENTIRE AGREEMENT AND REMEDIES

 

38.1

This Deed and the other Transaction Documents together set out the entire agreement between the parties relating to the subject matter of this Deed and the matters described in the other Transaction Documents and, save to the extent expressly set out in this Deed or any other Transaction Document, supersede and extinguish any prior drafts, agreements, undertakings, representations, warranties, promises, assurances and arrangements of any nature, whether or not in writing, relating to this Deed and the other Transaction Documents.

 

73


38.2

Each party acknowledges and agrees that in entering into this Deed and the Transaction Documents it has not relied and is not relying on, and will have no claim or remedy in respect of, any statement, representation, warranty, undertaking, assurance, promise, understanding or other provision made, whether by a party to this Deed or not, whether written or oral, express or implied and whether negligently or innocently made, which is not expressly set out in this Deed or any other Transaction Document.

 

38.3

Save as expressly set out in this Deed or any other Transaction Document, to the extent permitted by Law, the only right or remedy of any party in relation to any statement, representation, warranty, undertaking, assurance, promise, understanding or other provision set out in this Deed or any other Transaction Document will be for breach of this Deed or the relevant Transaction Document to the exclusion of all other rights and remedies (including those in tort or arising under statute). Save as expressly set out in this Deed, no party will be entitled to rescind or terminate this Deed in any circumstances at any time, whether before or after Completion, and each party waives any rights of rescission or termination it may have.

 

38.4

If there is any conflict between the terms of this Deed and any other agreement, this Deed will prevail (as between the parties to this Deed and as between the Sellers and a Seller’s Affiliate and any members of the Buyer Group) unless:

 

  (a)

such other agreement expressly states that it overrides this Deed in the relevant respect; and

 

  (b)

Anglo, the Sellers, the Seller Guarantor, the Buyer and the Buyer Guarantor are either also parties to that other agreement or otherwise agree in writing that such other agreement will override this Deed in that respect.

 

38.5

The rights and obligations of Anglo and the Sellers under this Deed are several, and not joint nor joint and several.

 

38.6

Except as set out in Clause 38.7, each Seller is liable under this Deed only to the extent that the obligation or liability on the Seller or Sellers relates to or arises out of the interest being sold by that Seller to the Buyer, being:

 

  (a)

in respect of MNC, the MNC Assets, the Moranbah Sales Shares and MNC’s interest in the DBCTCo Shares;

 

  (b)

in respect of Anglo Eastern Australia, the Moranbah Manager Shares; and

 

  (c)

in respect of AASCH, the ACGM Shares.

 

38.7

For any obligation or liability that does not relate to or arise out of a particular interest, the Sellers’ obligations and liabilities will be several in the proportion to which they are entitled to receive the Consideration as set out in Part 2 of Schedule 2.

 

38.8

This Clause 38 will not exclude any liability for or remedy in respect of fraud.

 

39.

POST-COMPLETION EFFECT OF AGREEMENT

Notwithstanding Completion, each provision of this Deed and any other Transaction Document not performed at or before Completion, but which remains capable of performance will remain in full force and effect and, except as otherwise expressly provided, without limit in time.

 

40.

WAIVER AND VARIATION

 

40.1

A failure or delay by a party to exercise any right or remedy provided under this Deed or by Law, whether by conduct or otherwise, will not constitute a waiver of that or any other right or remedy, nor will it preclude or restrict any further exercise of that or any other right or remedy.

 

74


  No single or partial exercise of any right or remedy provided under this Deed or by Law, whether by conduct or otherwise, will preclude or restrict the further exercise of that or any other right or remedy.

 

40.2

A waiver of any right or remedy under this Deed will only be effective if given in writing and will not be deemed a waiver of any subsequent breach or default.

 

40.3

A party that waives a right or remedy provided under this Deed or by Law in relation to another party does not affect its rights in relation to any of the other parties.

 

40.4

No amendment of this Deed will be valid unless it is in writing and duly executed by or on behalf of the Buyer, the Buyer Guarantor, Anglo, the Sellers and the Seller Guarantor. Unless agreed, no amendment will constitute a general waiver of any provision of this Deed, nor will it affect any rights or obligations under or pursuant to this Deed which have already accrued up to the date of amendment and the rights and obligations under or pursuant to this Deed will remain in full force and effect except and only to the extent that they are varied or amended.

 

41.

INVALIDITY

Where any provision of this Deed is or becomes illegal, invalid or unenforceable in any respect under the Laws of any jurisdiction such provision will be deemed to be severed from this Deed and, if possible, replaced with a lawful provision which, as closely as possible, gives effect to the intention of the parties under this Deed and, where permissible, that will not affect or impair the legality, validity or enforceability in that, or any other, jurisdiction of any other provision of this Deed.

 

42.

ASSIGNMENT

 

42.1

Subject to Clause 42.2, except as the parties specifically agree in writing, a person may only assign, transfer, charge or otherwise deal with any of its rights under this Deed (including to grant, declare, create or dispose of any right or interest in it) with the other parties’ written consent.

 

42.2

On and after Completion, the Buyer may assign its rights under this Deed and the Transaction Documents to any of its lenders or any agent acting on behalf of such lenders as security for the Buyer’s (or its Affiliates’) obligations to such lenders, provided that such assignment shall not release the Buyer and the Buyer Guarantor from their respective obligations under this Deed or the Transaction Documents.

 

42.3

Any assignment made pursuant to Clause 42.2 shall be on the basis that:

 

  (a)

the Sellers may discharge their obligations under this Deed to the Buyer until they receives notice of the assignment;

 

  (b)

the liability of the Sellers and the Seller Guarantor to any assignee shall not be greater than their liability to the Buyer; and

 

  (c)

the assignment shall not result in any other Taxes, costs or expenses for which the Sellers, the Seller Guarantor or their direct or indirect owners would be responsible.

 

42.4

This Deed will be binding on and continue for the benefit of the successors and assignees of each party.

 

43.

PAYMENTS, SET-OFF AND DEFAULT INTEREST

 

43.1

Except as otherwise provided in this Deed, any payment to be made pursuant to this Deed by the Buyer or the Buyer Guarantor to Anglo, the Sellers or the Seller Guarantor must be made to the Sellers’ Bank Account, and any payment to be made pursuant to this Deed by Anglo, the Sellers or the Seller Guarantor to the Buyer or the Buyer Guarantor must be made to the Buyer’s Bank Account, in each case by way of electronic transfer in immediately available funds on or before the due date for payment. Receipt of such sum in such account on or before the due date for payment will discharge the payer of its obligation to make such payment.

 

75


43.2

Subject to Clauses 43.3 and 9, all payments made by any party under this Deed, or any other Transaction Document, must be made free from any set-off, counterclaim or other deduction or withholding of any nature, except for deductions or withholdings required to be made by Law. If any such deductions or withholdings are required by Law to be made from such payments for or on account of Tax (other than any payments of interest or an amount permitted to be withheld by the Buyer under Clause 9), the amount of the payment must be increased by such amount as will, after the deduction or withholding has been made, leave the recipient of the payment with the same amount as it would have been entitled to receive in the absence of any such requirement to make a deduction or withholding.

 

43.3

If, following the payment of an additional amount under Clause 43.2, the recipient of the increased payment subsequently obtains any Relief on account of such deduction or withholding, the recipient shall pay to the payer of the increased payment such amount (not exceeding the amount of the Relief) that the recipient shall determine (acting reasonably) will leave it in no better or worse position than it would have been in had no withholding or deduction been required to be made.

 

43.4

If any sum payable under this Deed (other than any payment of interest or the Consideration) is subject to Tax in the hands of the recipient (or would be subject to Tax but for the availability of a Relief), the payor shall pay such additional amount as will ensure that the net amount received by the recipient (after giving credit for any Relief which has been obtained by the recipient, as applicable, in respect of the losses, costs and expenses or other items giving rise to such payment) will be the amount that the recipient would have received if the payment had not been subject to Tax.

 

43.5

Where the Sellers or the Buyer default in the payment when due of any damages or other sum payable by virtue of this Deed or any other Transaction Document, the Sellers’ liability or the Buyer’s liability (as the case may be) will be increased to include an amount equal to interest on such sum from the date when payment is due to the date of actual payment (both before and after judgment) at that annual rate which is 2% per annum above SOFR in effect during such period. Such interest will accrue from day to day and be compounded quarterly and will be payable without prejudice to any other remedy available to any of the other parties (as the case may be) in respect of such default.

 

44.

TRANSACTION COMMUNICATIONS

All communications between the Sellers and / or a member of the Sellers’ Group and any (i) Group Company; or (ii) professional adviser engaged by the Sellers and / or a member of the Sellers’ Group (including those to which the Sellers’ Solicitors are also party), relating to the negotiation, preparation, execution and completion of this Deed and the transactions contemplated by it or any similar transaction (“Transaction Communications”) shall be Anglo’s property and no waiver of legal privilege in any such documents is made or is to be implied. Accordingly:

 

  (a)

neither the Buyer (before or after Completion) nor, after Completion, the Sellers or any Group Company shall have access to or be entitled to see or take copies of any Transaction Communications in whatever form these may be held (and whether or not these are held by third parties including the Sellers’ Solicitors); and

 

  (b)

Anglo may take such steps as it shall consider necessary or desirable to delete or remove any such Transaction Communications from the Sellers’ and the Group’s computer systems and records before Completion.

 

76


45.

NOTICES

 

45.1

Subject to Clause 45.5, any notice or other communication given under this Deed or in connection with the matters contemplated in this Deed will, except where otherwise specifically provided, be in writing in the English language, addressed as provided in Clause 45.2 and served:

 

  (a)

by hand to the relevant address, in which case it will be deemed to have been given upon delivery to that address, but any notice delivered outside Working Hours will be deemed given at the start of the next period of Working Hours;

 

  (b)

by courier (or if from any place outside the country where the relevant address is located, by air courier) to the relevant address, in which case it will be deemed to have been given three Business Days after its delivery to a representative of the courier; or

 

  (c)

by e-mail to the relevant e-mail address, in which case it will, subject to no automated notification of delivery failure being received by the sender, be deemed to have been given when sent, but any e-mail sent outside Working Hours will be deemed given at the start of the next period of Working Hours.

 

45.2

Notices under this Deed must be sent for the attention of the person and to the address or e-mail address, subject to Clause 45.3, as set out below:

For Anglo, the Sellers and the Seller Guarantor:

 

Name:    Anglo American Netherlands B.V.
For the attention of:    [***]
Address:    17 Charterhouse Street, London, EC1N 6RA
E-mail address:    [***]@angloamerican.com
with a copy (which will not constitute notice) to:
Name:    Latham & Watkins (London) LLP
For the attention of:    [***]
Address:    99 Bishopsgate, London, United Kingdom EC2M 3XF
E-mail address:    [***]@lw.com;
   [***]@lw.com and
Name:    MinterEllison
For the attention of:    [***]
Address:    Waterfront Place, 1 Eagle Street, Brisbane, QLD, Australia 4000
E-mail address:    ,[***]@minterellison.com; ,[***]@minterellison.com

 

77


For the Buyer:
Name:    Peabody MNG Pty Ltd
For the attention of:    ,[***]
Address:    Level 14, 31 Duncan Street, Fortitude Valley QLD 4006
E-mail address:   

[***]@peabodyenergy.com;

[***]@peabodyenergy.com;   [***]@peabodyenergy.com

with a copy (which will not constitute notice) to:
Name:    Jones Day
For the attention of:    [***] and [***]
Address:    Level 31, 123 Eagle Street, Brisbane, QLD, Australia 4000
E-mail address:    [***]@jonesday.com; [***]@jonesday.com
For the Buyer Guarantor:   
Name:    Peabody Energy Corporation

For the attention of:

   [***] and [***]
Address:    701 Market Street, St. Louis, Missouri, United States of America
E-mail address:    [***]@peabodyenergy.com;
   [***]@peabodyenergy.com;   [***]@peabodyenergy.com
with a copy (which will not constitute notice) to:
Name:    Jones Day
For the attention of:    [***] and [***]
Address:    Level 31, 123 Eagle Street, Brisbane, QLD, Australia, 4000
E-mail address:    [***]@jonesday.com; [***]@jonesday.com

 

45.3

Any notice or other communication under this Deed will not be invalid by reason that a copy is not delivered to any addressee nominated to receive a copy.

 

45.4

Each party to this Deed may notify the other parties of any change to its address or other details specified in Clause 45.2, but such notification will only be effective on the date specified in such notice or five Business Days after the notice is given, whichever is later.

 

45.5

Any notices given by the Buyer or a Seller under Clause 15.10 or otherwise in connection with the Scheduled Completion Date will be deemed to have been given on the date of delivery, regardless of whether such notice is given on a day which is not a Business Day and / or outside of Working Hours.

 

46.

COSTS

 

46.1

Except as otherwise provided in this Deed, each party shall bear its own costs and expenses arising out of or in connection with the preparation, negotiation and implementation of this Deed and all other Transaction Documents.

 

78


46.2

The Buyer shall bear and promptly pay all Duty assessed, payable or otherwise imposed or arising as a result of or in connection with the entry into, or the implementation of any of the transactions contemplated by, this Deed or of any of the other Transaction Documents. The Buyer shall be responsible for arranging the payment of all such Duty, including fulfilling any administrative or reporting obligation imposed by the jurisdiction in question in connection with such payment, and the Buyer shall indemnify Anglo and the Sellers on demand (on a dollar for dollar basis) against any Liabilities suffered by Anglo or the Sellers as a result of the Buyer failing to comply with its obligations under this Clause 46.2.

 

47.

RIGHTS OF THIRD PARTIES

 

47.1

The specified third-party beneficiaries of the undertakings referred to in Clauses 17.1, 17.6, 24.5, 26.2 and 28 will, in each case, have the right to enforce the relevant terms by reason of the Contracts (Rights of Third Parties) Act 1999.

 

47.2

Except as provided in Clause 47.1, a person who is not a party to this Deed will have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms.

 

47.3

Anglo and the Sellers each represent to the Buyer and the Buyer represents to Anglo and the Sellers that their respective rights to terminate, rescind or agree any amendment, waiver or settlement under this Deed are not subject to the consent of any person that is not a party to this Deed.

 

48.

COUNTERPARTS

This Deed may be executed in any number of counterparts on separate physical or electronic counterparts. All executed counterparts constitute one instrument.

 

49.

GOVERNING LAW AND JURISDICTION

 

49.1

This Deed and any non-contractual rights or obligations arising out of or in connection with it is governed by and must be construed in accordance with English law.

 

49.2

Any Dispute, other than a Royalty Amount Dispute which shall be governed by Schedule 11 or a Dispute in respect of the preparation, agreement or determination, as the case may be, of the Draft Completion Accounts and the Completion Accounts which shall be governed by Schedule 9, will be referred to and finally resolved by arbitration under the Rules of Arbitration of the International Chamber of Commerce (the “Rules”), which are deemed to be incorporated by reference into this Clause 49. There must be three arbitrators, two of whom will be nominated by the respective parties in accordance with the Rules and the third, who will be the presiding arbitrator, must be nominated by the two party nominated arbitrators within 14 days of the last of their appointments. The seat, or legal place, of arbitration will be London, England. English will be used in the arbitral proceedings. Judgment on any award may be entered in any court having jurisdiction.

 

49.3

For the purposes of this Clause, “Dispute” means any dispute, controversy, claim or difference of whatever nature arising out of, relating to, or having any connection with this Deed, including a dispute regarding the existence, formation, validity, interpretation, performance, breach or termination of this Deed and also including any dispute relating to any non-contractual rights or obligations arising out of, relating to, or having any connection with this Deed.

 

49.4

Each party agrees that the arbitration agreement set out in this Clause 49 and the arbitration agreement contained in the SMC SPA (together, the “Related Transaction Agreements”) will together be deemed to be a single arbitration agreement.

 

49.5

The parties agree to the consolidation of any two or more arbitrations commenced pursuant to this Clause 49 and / or the arbitration agreement contained in any Related Transaction Agreement. For the avoidance of doubt, this Clause 49.5 is an agreement by all parties for the purposes of Article 10(a) of the Rules.

 

79


49.6

To the extent permitted by Law, each party waives any objection it may have to the validity and/or enforcement of any arbitral award, which such objection is on the basis that a dispute has been resolved in a manner contemplated by this Clause 49.

 

50.

PROCESS AGENT

 

50.1

Without prejudice to any other permitted mode of service, the parties agree that service of any claim form, notice or other document for the purpose of or in connection with any action or proceeding in England or Wales arising out of or in any way relating to this Deed will be duly served upon:

 

  (a)

Anglo, the Sellers and the Seller Guarantor if it is delivered personally or sent by recorded or special delivery post (or any substantially similar form of mail) to the Seller Guarantor at its registered address, marked for the attention of Group Legal and Corporate Secretary or such other person and address in England or Wales as such party shall notify all the other parties in writing from time to time; and

 

  (b)

the Buyer and the Buyer Guarantor if it is delivered personally or sent by recorded or special delivery post (or any substantially similar form of mail) to [***], marked for the attention of Director – Service of Process or such other person and address in England or Wales as such party shall notify all the other parties in writing from time to time,

in each case whether or not such claim form, notice or other document is forwarded to the relevant party or received by such party.

 

80


SCHEDULE 4

PRE-COMPLETION OBLIGATIONS

 

1.

MNC’S OBLIGATIONS

 

1.1

Subject to paragraph 3 and except as otherwise stated in this Deed or with the Buyer’s written consent (which will not be unreasonably withheld, conditioned or delayed), MNC shall from the date of this Deed until the earlier of Completion and the termination of this Deed:

 

  (a)

carry on the Business in all material respects in the ordinary course including in accordance with past practice in respect of the approval and administration of budgets and capital plans; and

 

  (b)

not, nor authorise, agree or commit to:

 

  (i)

sell or dispose of the MNC Interest other than in the ordinary course of business or sell or dispose of the Royalty Interest or the MNC Properties Interest;

 

  (ii)

create any Encumbrance over the MNC Assets;

 

  (iii)

in respect of the Mining Tenements:

 

  (A)

take steps to surrender, cancel or transfer the Mining Tenements;

 

  (B)

assign, transfer, create any Encumbrance over, declare itself a trustee of or otherwise deal with or dispose of the Mining Tenements;

 

  (C)

fail to renew any Mining Tenement; or

 

  (D)

agree to a variation of the terms of the Mining Tenements;

 

  (iv)

of its own volition, terminate or adversely vary or fail to enforce the material terms of any Related Agreement, Coal Sales Agreement, Assumed Contract or Material Contract or accept or agree to any material variations to services to be performed or goods to be supplied under any Related Agreement, Coal Sales Agreement, Assumed Contract or Material Contract, except in the ordinary course of business;

 

  (v)

enter into any abnormal or unusual transaction which materially adversely affects the MNC Assets or the Business;

 

  (vi)

enter into, amend or terminate (or agree to enter into, amend or terminate) a contract or commitment that will result in aggregate annual receipts or expenditure in excess of AUD 10,000,000, otherwise than in the ordinary course of business;

 

  (vii)

vary, amend or waive any Pre-Emption Rights for the purpose of entitling the relevant Joint Venture Participant to assign the benefit of a Pre-Emption Right to a third party or otherwise permitting a third party (in each case other than a person entitled to exercise the Pre-Emption Right) to acquire a direct or indirect interest in the assets the subject of the Pre-Emption Right;

 

  (viii)

institute or settle any material legal proceedings which is likely to result in a payment by or to a Group Company in excess of AUD 10,000,000 (except in respect of debt collection in the ordinary course of business);

 

  (ix)

grant a royalty on coal produced or sold; or


  (x)

sell or lease any real property outside of the ordinary course of business.

 

2.

SELLERS’ OBLIGATIONS

 

2.1

Subject to paragraph 3 and except as otherwise stated in this Deed or with the Buyer’s written consent (which will not be unreasonably withheld, conditioned or delayed):

 

  (a)

MNC shall, and shall use reasonable endeavours to procure in respect of Moranbah Sales that it will;

 

  (b)

Anglo Eastern Australia shall, and shall use reasonable endeavours to procure in respect of the Moranbah Manager that it will; and

 

  (c)

AASCH shall, and shall use reasonable endeavours to procure in respect of the ACGM that it will,

carry on the Business in all material respects in the ordinary course including in accordance with past practice in respect of the approval and administration of approved budgets and capital plans, in respect of Moranbah Sales, the Moranbah Manager and ACGM, will not (nor authorise, agree or commit to) until the earlier of Completion and the termination of this Deed:

 

  (d)

create, allot, issue, redeem, buy back or repurchase any share capital, loan capital or other security or grant any options over, or any other right in respect of, any share, loan capital or other security, except to another Group Company;

 

  (e)

create or vary any Encumbrance over its shares, assets or undertaking, except to another Group Company;

 

  (f)

make any material alteration to its constitutional documents;

 

  (g)

enter into any transaction with the Sellers or a Seller’s Affiliate which is not on arm’s length terms;

 

  (h)

of its own volition, terminate or adversely vary or fail to enforce the material terms of any Material Contract or accept or agree to any material variations to services to be performed or goods to be supplied under any Material Contract, except in the ordinary course of business;

 

  (i)

enter into, amend or terminate (or agree to enter into, amend or terminate) a contract or commitment that will result in aggregate annual receipts or expenditure in excess of AUD 10,000,000, otherwise than in the ordinary course of business;

 

  (j)

borrow any money, other than in the ordinary course of business or from another Group Company;

 

  (k)

make or grant any loans, capital advance, financial facility or any other financial accommodation, other than in the ordinary course of business or to another Group Company;

 

  (l)

enter into any agreement or arrangement or permit any action where another company becomes its subsidiary undertaking;

 

  (m)

enter into, vary or terminate any joint venture, partnership or agreement or arrangement for the sharing of profits or assets, otherwise than in the ordinary course of business;

 

  (n)

institute or settle any material legal proceedings which is likely to result in a payment by or to a Group Company in excess of AUD 10,000,000 (except in respect of debt collection in the ordinary course of business);


  (o)

sell or lease any real property outside of the ordinary course of business;

 

  (p)

grant a royalty on coal produced or sold;

 

  (q)

voluntarily terminate, relinquish or dispose of, or fail to renew, any Mining Tenement or Environmental Authorisation;

 

  (r)

make, change or revoke any material Tax election, or surrender or compromise any right to claim Relief, or settle or finally resolve any Tax contest with respect to any amount of Tax or take any action that would have the effect of increasing the liability to pay Tax of any Group Company;

 

  (s)

change an annual Tax accounting period;

 

  (t)

prepare, file or amend any Tax Return in a manner in which the positions adopted in that Tax Return are inconsistent with past practices;

 

  (u)

change residence for Tax purposes;

 

  (v)

enter into any material agreement with any Tax Authority or terminate or rescind any material agreement with a Tax Authority that is in effect on the date of this Deed; or

 

  (w)

enter into any agreement or arrangement to do any of the matters referred to in sub-paragraphs (d) to (v) above.

 

3.

EXCEPTIONS

 

3.1

Nothing in paragraphs 1.1, 2.1 and 2.2 operates to restrict or prevent:

 

  (a)

the completion or performance of any actions required or undertaken in connection with the transactions contemplated by the SMC SPA and the Jellinbah SPA, or the exercise or assertion of any obligations or rights contained in the SMC SPA or the Jellinbah SPA, or the completion or performance of any actions required or undertaken in connection with the satisfaction of the Conditions in Clause 10.1 (including in connection with any Pre-emption Acceptance Notice), in each case in accordance with the SMC SPA;

 

  (b)

the completion or performance of any actions required or undertaken in connection with the transactions contemplated following receipt of any Pre-emption Acceptance Notice in accordance with the Joint Venture Agreement;

 

  (c)

the completion of performance of any actions required or undertaken in connection with the ‘Carve-outs’ (as that term is defined in the SMC SPA);

 

  (d)

any matter reasonably undertaken by any Group Company in an emergency or disaster situation with the intention of minimising any adverse effect of such situation (but the Buyer must be kept fully informed of any actions taken pursuant to this paragraph 3.1(d));

 

  (e)

any matter undertaken to comply with any requirement of applicable Law or any forthcoming change in applicable Law (in each case, including any rules, guidelines, requests or requirements of any Authority);

 

  (f)

the completion or performance of any obligations undertaken pursuant to any contract or arrangement entered into by any Group Company before the date of this Deed in the ordinary course of business or otherwise entered into other than in breach of this Deed;

 

  (g)

the completion or performance of any actions required or undertaken in accordance with this Deed in connection with the Transaction, including to fulfil any of the Conditions;


  (h)

any matter that relates to the settlement of Tax demands against the Sellers or a Group Company either by way of litigation or negotiations which, in Anglo or the Sellers’ opinion, is necessary or desirable to minimise or reduce Taxes;

 

  (i)

a Group Company from entering into an advance pricing agreement with a Tax Authority to the extent that negotiations with a Tax Authority had already commenced as at the date of this Deed;

 

  (j)

the settlement or steps taken in connection with the determination of the legal proceedings relating to the [***];

 

  (k)

any matter that is contemplated, authorised by any agreement, arrangement or material that is Disclosed including but not limited to any business plan or budget (including for the Joint Venture);

 

  (l)

entering into or performing any of the following agreements on an arm’s length basis:

 

  (i)

any agreement for the purchase or sale of coal for a term of no more than 12 months (including an extension of any such agreements for a term of no more than 12 months);

 

  (ii)

any agreement to amend, transfer or otherwise deal with port, below rail or above rail rights or obligations to the extent that the agreement is either:

 

  (A)

with one or more of the SMC Entities, their joint venture participants and MNC and the other Joint Venture Participants; or

 

  (B)

for a term of no more than 12 months; or

 

  (m)

any agreement to amend or extend [***].

 

3.2

If Anglo, the Sellers or Anglo’s or a Sellers’ Representatives requests in writing the Buyer’s consent pursuant to paragraphs 1.1, 2.1 and 2.2 and provides reasonable details of the matter for which consent is sought, such consent will be deemed to have been given unless the Buyer notifies the Sellers or its Representatives in writing within two Business Days of the relevant request that the Buyer does not consent to the relevant request.

 

4.

[***]


SCHEDULE 5

COMPLETION OBLIGATIONS

 

1.

MNC’S OBLIGATIONS

 

1.1

At or before Completion, MNC shall:

 

  (a)

deliver or make available to the Buyer:

 

  (i)

such part of the MNC Assets as are capable of passing by delivery at the places where they are located;

 

  (ii)

in respect of each Encumbrance over the MNC Assets which is registered on the PPS Register immediately before Completion, evidence satisfactory to the Buyer (acting reasonably) that the Encumbrance has been released, or will be released, with effect from Completion;

 

  (iii)

all documents of title (if any) relating to the MNC Interest, the MNC Properties Interest and the MNC Tenement Interest;

 

  (iv)

completed Mining Tenement Transfers required for the transfer of the Mining Tenements (except for the impression of transfer duty or other Taxes of a similar nature) duly executed by MNC (except for the Tenement Application, if not granted prior to Completion);

 

  (v)

duly executed, registrable (except for stamping) transfer forms for the Properties (excluding Term Leases);

 

  (vi)

duly executed, registrable (except for stamping) transfer forms to effect the Term Lease Transfers;

 

  (vii)

the JV Deeds of Assumption, duly executed by MNC and the Japanese Parties;

 

  (viii)

a signed counterpart of an instrument assigning MNC’s rights and interests under the Royalty Deed to the Buyer in accordance with the Royalty Deed, duly executed by MNC;

 

  (ix)

to the extent obtained before Completion, an instrument assigning the right to either become or appoint the manager under the Joint Venture Agreement (which may take the form of the JV Deed of Assumption);

 

  (x)

signed counterparts of the deeds of assignment (or deeds of novation) for the Specific Contracts (and, to the extent obtained before Completion, the Coal Sales Agreements and the Assumed Contracts) to which MNC is party, duly executed by the relevant third party and MNC;

 

  (xi)

a notice in writing revoking the appointment of MNC’s nominated Representative to the management committee constituted under the Joint Venture Agreement;

 

  (xii)

if applicable and where required by Law, transfer of ownership and registration certificates (and roadworthiness certificates) for all motor vehicles included in the Plant and Equipment that are registered in the name of MNC; and

 

  (b)

if applicable, cause the Anglo Services and Marketing Agreements to be terminated with effect from Completion.


2.

SELLERS’ OBLIGATIONS

 

2.1

At or before Completion the Sellers shall deliver to the Buyer, or procure the delivery to the Buyer of:

 

  (a)

in respect of the Moranbah Manager Shares, the Moranbah Sales Shares and the ACGM Shares, transfer forms to transfer all of the relevant Shares into the Buyer’s name, duly completed and executed by the relevant Seller, in a registrable form (subject only to due stamping);

 

  (b)

existing share certificates in respect of the Shares, or an indemnity for any lost share certificates duly executed by the relevant Seller in Agreed Form;

 

  (c)

any consents or waivers required in respect of the Conditions to the extent that those consents and waivers have been obtained by or on behalf of the Sellers;

 

  (d)

if applicable, the ASIC corporate keys for the Moranbah Manager, Moranbah Sales and ACGM;

 

  (e)

a counterpart of the TSA duly executed by the Seller Guarantor;

 

  (f)

signed counterparts of the deeds of assignment (or deeds of novation) for the Specific Contracts (and, to the extent obtained before Completion, the Coal Sales Agreements and the Assumed Contracts) to which the Group Companies are party, duly executed by the relevant third party and the relevant Group Company;

 

  (g)

resignation letters duly executed by each of the exiting directors and officers (or any replacement directors and officers appointed before Completion) to resign as directors, secretaries and public officers (as applicable) of the Group Companies with effect from Completion;

 

  (h)

a copy of a duly executed board resolution or duly executed board minutes of the Sellers approving the execution by the Sellers of any documents which the Sellers are required to execute or deliver at Completion;

 

  (i)

one copy of the Data Room USB Stick;

 

  (j)

in respect of each Encumbrance over the Shares or the assets of a Group Company which is registered on the PPS Register immediately before Completion, evidence satisfactory to the Buyer (acting reasonably) that the Encumbrance has been released, or will be released, with effect from Completion;

 

  (k)

to the extent not already provided or in the possession of a Group Company, at the relevant Group Company’s registered office, or otherwise to the location of the business of each Group Company, all the statutory and other books (duly written up to date) of each Group Company and all certificates of incorporation, certificates of incorporation on change of name and common seals or such equivalent items in the relevant jurisdiction as are kept by such Group Company or required to be kept by Law, to the extent not within the control of a Group Company. For the avoidance of doubt, any legal advice sought or received by a Group Company that is not owned by a Group Company or relates to the Transaction or transaction similar to the Transaction will be excluded from this obligation;

 

  (l)

in respect of each Group Company, the written and executed resignation of each director, secretary, public officer and auditors (as applicable) of such Group Company appointed by the Sellers or any Seller’s Affiliate, duly executed by the relevant resigning person(s) in Agreed Form;


  (m)

a copy of duly executed board resolutions or duly executed board minutes of the Moranbah Manager, Moranbah Sales and AASCH approving:

 

  (i)

the transfers of the relevant Shares and (subject only to due stamping) the registration, in the register of members, of the Buyer as the holder of the shares concerned;

 

  (ii)

the issue of new share certificates for the relevant Shares in the name of the Buyer; and

 

  (iii)

the persons advised in accordance with Clause 12.6(a) to be appointed as directors, secretary and public officer (as applicable) of the relevant Group Company (as applicable).

 

3.

BUYER’S OBLIGATIONS

 

3.1

At or before Completion, the Buyer shall:

 

  (a)

pay or procure the payment to the Sellers of an amount equal to the Completion Payment, the receipt of which will fully discharge the Buyer from its obligation to pay (or procure the payment of) the amount in Clause 5.2(b);

 

  (b)

deliver to Anglo or procure the delivery to Anglo of:

 

  (i)

counterparts of all documents that the Sellers are required to deliver under paragraphs 1 and 2 to which the Buyer or the Buyer Guarantor is a party or which otherwise contemplates execution by the Buyer or the Buyer Guarantor, duly executed by the Buyer or the Buyer Guarantor (as applicable);

 

  (ii)

the original or certified copy of any power of attorney in Agreed Form under which any document to be delivered to the Sellers under this paragraph 3.1 has been executed;

 

  (iii)

a copy of a duly executed board resolution or duly executed board minutes of the Buyer approving the execution by the Buyer of any documents which the Buyer is required to execute or deliver at Completion;

 

  (iv)

a Deed of Cross Charge executed by the Buyer in substantially the same form and to the same effect as appended to the Joint Venture Agreement in favour of the Japanese Parties; and

 

  (v)

a copy of the duly executed Replacement Bank Guarantees;

 

  (c)

do all other things reasonably necessary or desirable within the power of the Buyer to transfer the MNC Assets and the Shares to the Buyer; and

 

  (d)

provide to the Sellers and Anglo evidence of (i) this Deed having been lodged for assessment with the Queensland Revenue Office and (ii) Duty having been paid in respect of the dutiable transactions contemplated or effected by or under this Deed to the extent that a notice of assessment in respect of such Duty has been issued no later than five Business Days prior to the Completion Date.


SCHEDULE 6

SELLERS’ WARRANTIES

 

1.

DEFINITIONS AND INTERPRETATION

 

1.1

In this Schedule:

Applicable Data Protection Laws” means:

 

  (a)

the Australian Privacy Act 1988 (Cth); and

 

  (b)

the General Data Protection Regulation 2016/679, the UK Data Protection Act 2018 (the “DPA”) and the UK General Data Protection Regulation as defined by the DPA as amended by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019, and any relevant law, statute, declaration, decree, directive, legislative enactment, order, ordinance, regulation, rule or other binding instrument which implements any of the above, in each case as amended, consolidated, re-enacted or replaced from time to time;

Entitlements” means any superannuation, incapacity, sickness, disability, accident, healthcare or death benefits (including in the form of a lump sum);

Finance Documents” has the meaning given in paragraph 10.1;

Insurance Policy” has the meaning given in paragraph 15.1; and

Intellectual Property” means:

 

  (a)

all rights in patents, utility models, trade marks, service marks, logos, get-up, trade names, internet domain names, copyright (including rights in computer software), design rights, moral rights, database rights, topography rights, plant variety rights, confidential information and knowledge (including know-how, inventions, secret formulae and processes, market information, and lists of customers and suppliers), and rights protecting goodwill and reputation, in all cases that is material to the Group or used by the Group whether registered or unregistered; all other forms of protection having a similar nature or effect anywhere in the world to any of the items in this limb (a); and

 

  (b)

applications for or registrations of any of the rights in limb (a),

in each case, that is or are material to the Business or the Group Companies.

 

2.

TITLE AND CAPACITY

 

2.1

Each Seller is validly incorporated, in existence and duly registered under the laws of their country of incorporation.

 

2.2

Each Seller has taken all necessary action and has all requisite power and authority to enter and perform this Deed and the other Transaction Documents to which it is a party in accordance with their terms.

 

2.3

This Deed and the other Transaction Documents (to which the Sellers are a party) constitute (or will constitute when executed) valid, legal and binding obligations each Seller in accordance with their terms.

 

2.4

The execution and delivery of this Deed and the other Transaction Documents by each Seller and the performance of and compliance with their terms and provisions will not conflict with or result in a breach of, or constitute a default under, the constitutional documents of each Seller, as applicable, any agreement or instrument to which a Seller is a party or by which it is bound, or any Law, order or judgment that applies to or binds a Seller or any of their property.


3.

CAPITAL STRUCTURE AND CORPORATE INFORMATION

 

3.1

The Shares constitute the whole of the allotted and issued share capital of each Group Company and are fully paid and free from all Encumbrances, and each Seller is the sole legal and beneficial owner of the Shares set out beside its name in Schedule 1 other than in respect of MNC which is the beneficial owner of the DBCTCo Shares.

 

3.2

No Group Company has a subsidiary.

 

3.3

No person (other than a Seller or a Group Company) has a right to require any Group Company to allot, issue, sell, transfer any share capital, or to convert existing securities into or to issue securities that have rights to convert into any share capital other than in accordance with the Joint Venture Agreement, the Management Agreement, the DBCTCo Shareholders Agreement or the Moranbah Sales Shareholders’ Agreement.

 

4.

CONSTITUTIONAL AND CORPORATE DOCUMENTS

 

4.1

Copies of the constitution of each Group Company are included in the Data Room.

 

4.2

All statutory books (excluding the minutes books) and registers required to be maintained by each Group Company under the law of its jurisdiction of incorporation are in the possession or under the control of the Group Company to which they relate and are properly written up in all material respects.

 

5.

INSOLVENCY

 

5.1

No receiver or administrative receiver or manager or receiver and manager or trustee or similar person has been appointed over the whole or any part of the assets or undertaking of any Group Company. No administrator has been appointed, nor has any administration order been made, in respect of any Group Company, and no petition or application for such an order or any notice of appointment of, or of any intention to appoint, an administrator has been threatened, presented, made, served or filed.

 

5.2

No voluntary arrangement, compromise, composition, scheme of arrangement, standstill agreement, deferral, rescheduling or other readjustment or reorganisation or other arrangement between any Group Company and its creditors (or any class of them) has been proposed or approved by any Group Company other than in the ordinary course of trading.

 

5.3

No petition has been threatened or presented against any Group Company by any third party, and no order has been made, no resolution has been passed and no meeting has been convened for the purpose of winding up any Group Company or for the appointment of a provisional liquidator or special manager to any Group Company.

 

5.4

No step has been taken with a view to the dissolution or striking-off the register of any Group Company.

 

5.5

No event or circumstance has occurred or exists in respect of any Group Company analogous to those described in paragraphs 5.1 to 5.4 above.

 

6.

PRO FORMA FINANCIAL INFORMATION

The Pro forma Financial Information presents with reasonable accuracy the financial position of the Group and the MNC Assets as at the end of each Pro forma Financial Information Period and their financial performance for each Pro forma Financial Information Period.


7.

ACCOUNTS

 

7.1

The Accounts have been prepared:

 

  (a)

in accordance with the Accounting Standards; and

 

  (b)

other than in respect of the Joint Venture (which are special purpose accounts), in accordance with the requirements of the Corporations Act and any other applicable laws.

 

7.2

The Accounts give a true and fair view of the financial position of Moranbah Sales or the Joint Venture (as applicable) at the Accounts Date and their financial performance for the year ended on the Accounts Date.

 

8.

MANAGEMENT ACCOUNTS

 

8.1

So far as the Sellers are aware, the Management Accounts have been prepared:

 

  (a)

with due care and attention; and

 

  (b)

on a basis consistent with the equivalent management accounts in respect of the same period in the prior year and in accordance with the Group’s monthly reporting procedures as consistently applied.

 

8.2

Having regard for the purposes for which they were prepared, so far as the Sellers are aware, the Management Accounts present with reasonable accuracy the profits and losses and net assets of the entities to which they relate for the period, and as at the date, in respect of which they have been prepared, in each case insofar as they relate to the Group and in each case other than in respect of exceptional items which in aggregate are not material.

 

9.

CONTRACTS

 

9.1

Copies of the Material Contracts are included in the Data Room.

 

9.2

No notice of termination or material breach (which is current and outstanding) of any Material Contract has been received or served by a Group Company, and, so far as the Sellers are aware, there are no grounds for lawful termination by the counterparty of any Material Contract.

 

9.3

No Group Company is and, so far as the Sellers are aware, no other party to a Material Contract is in material breach of any Material Contract.

 

9.4

So far as the Sellers are aware, there are no agreements, arrangements or understandings to which the Group Companies are party other than as set out in the Disclosure Letter or the Vendor Reports that are outside the ordinary course of business of each of the Group Companies.

 

10.

FINANCE AND GUARANTEES

 

10.1

The Data Room contains details of the material terms of the current and outstanding financial indebtedness of each Group Company as at the date of this Deed, in each case excluding indebtedness between Group Companies (the “Finance Documents”).

 

10.2

Other than in the ordinary course of business, no Group Company has given or entered into any guarantee, mortgage, charge, pledge, lien, assignment or other security agreement or arrangement in respect of, or is otherwise responsible for the indebtedness or the default in the performance of any obligation of, any person other than another Group Company, a Representative of a Group Company or any Joint Venture Participant.


10.3

No Group Company has received any written notice (which is current and outstanding) from any counterparty under the Finance Documents:

 

  (a)

that it is in material default under the terms of any of the Finance Documents (and with such default still being outstanding at the date of this Deed); or

 

  (b)

to repay any part of the Finance Documents in advance of their stated maturity date.

 

11.

EMPLOYEES AND ENTITLEMENTS

So far as the Sellers are aware, MNC and each Group Company (to the extent applicable) has complied with applicable Laws, awards, enterprise agreements or other instrument made or approved under any Law with respect to:

 

  (a)

employment of its Employees; and

 

  (b)

its Entitlements owed to Employees.

 

12.

INTELLECTUAL PROPERTY

 

12.1

As at the date of this Deed, no claims have been received by the Sellers’ Group challenging any Group Company’s use of the Intellectual Property.

 

12.2

As at the date of this Deed, Schedule 14 is a complete and accurate list of:

 

  (a)

all material registered business names and trade marks;

 

  (b)

all material registered patents and designs; and

 

  (c)

all material applications for registration of patents, trade marks and designs,

owned or used by the Group Companies.

 

13.

COMPLIANCE WITH LAWS AND DISPUTES

 

13.1

Each Group Company is conducting, and has for the three years before the date of this Deed conducted its business, in all material respects, in accordance with all applicable Laws.

 

13.2

No Group Company:

 

  (a)

is or has in the three years before the date of this Deed been engaged in any litigation, administrative, mediation or arbitration proceedings or other proceedings or hearings before any Authority (except for debt collection in the normal course of business), in each case of a value exceeding AUD 5,000,000; or

 

  (b)

is or has in the three years before the date of this Deed received written notice that it is the subject of any formal investigation, inquiry or enforcement proceedings by any Authority which would have a material adverse effect on the Group as a whole,

and no such proceedings, investigations or inquiries have been threatened in writing or are pending.

 

13.3

No Group Company:

 

  (a)

is affected by any existing or pending judgments, decisions or rulings made against a Group Company that would have a material adverse effect on the Group as a whole; or

 

  (b)

has given any undertakings arising from legal proceedings to an Authority or other third party which remains in force.


14.

BRIBERY, CORRUPTION, SANCTIONS AND EXPORT CONTROLS

 

14.1

No Group Company nor any of their respective directors, officers, employees, agents, or representatives is engaged (in such capacity) in any conduct, activity or omission which would constitute material non-compliance with any Sanctions Law or Anticorruption Law.

 

14.2

No Group Company nor any of their respective directors, officers, employees, agents or representatives (in such capacity):

 

  (a)

is or has been a Sanctioned Person;

 

  (b)

is or has been in breach of any Sanctions Laws; or

 

  (c)

has in the three years before the date of this Deed engaged in any transaction or dealing with any Sanctioned Person and/or with any Sanctioned Territory,

provided paragraph 14.1 and this paragraph 14.2 will not apply if and to the extent that it is or would be unenforceable by reason of breach of any provision of the Council Regulation (EC) No 2271/96 of 22 November 1996, the Protecting against the Effects of the Extraterritorial Application of Third Country Legislation (Amendment) (EU Exit) Regulations 2020 (SI 2020/1660), any law or regulation implementing such regulations in any member state of the European Union or the United Kingdom, or any similar blocking or anti-boycott law.

 

15.

INSURANCE

 

15.1

A summary of all material insurance policies maintained by or covering the Group as at the date of this Deed are included in the Data Room (each, an “Insurance Policy”).

 

15.2

All premiums due and payable on each Insurance Policy have been paid and no written notice of cancellation, termination or revocation of any Insurance Policy has been received by any Group Company.

 

16.

POWERS OF ATTORNEY

There are no powers of attorney in force given by any Group Company, other than those given to:

 

  (a)

its Representatives in the ordinary course of business or otherwise to ensure the continued operation of the Group or to a holder of an Encumbrance solely to facilitate its enforcement; or

 

  (b)

the Group’s employees in the ordinary course of business.

 

17.

TAX

 

17.1

Each Group Company and the Seller Head Company has in the three years before the date of this Deed made or submitted all material returns, accounts and computations in relation to Tax which it was required by law to make or submit, and all such returns, accounts and computations were prepared on a proper basis.

 

17.2

Each Group Company or the Seller Head Company has complied on a timely basis with all notices served on it and any other requirements lawfully made of it by any Tax Authority.

 

17.3

All Tax for which a Group Company or the Seller Head Company has been liable to account has been duly paid (insofar as such Tax ought to have been paid), and no Group Company is liable, or has in the three years before the date of this Deed been liable, to pay a material penalty, surcharge, fine or interest in connection with Tax.


17.4

Each Group Company has in the three years before the date of this Deed deducted or withheld all Tax which it has been obliged by law to deduct or withhold from amounts paid by it and has properly accounted to the relevant Tax Authority for all amounts of Tax so deducted or withheld to the extent such amounts are due to be paid to a Tax Authority.

 

17.5

No Group Company is currently party to any material dispute with, or audit, investigation or non-routine review by, any Tax Authority, and no Group Company has been notified that it is the subject of any non-routine investigation, enquiry or audit by any Tax Authority.

 

17.6

Each Group Company has since its date of incorporation been resident for Tax purposes only in its jurisdiction of incorporation, and no Group Company is liable to pay Tax chargeable under the laws of any other jurisdiction save in respect of income or gain on which it may be subject to Tax solely by way of withholding.

 

17.7

In relation to any period during which ACGM and the Moranbah Manager have each been members of the Seller Consolidated Group, there are no Group Liabilities not covered by the Seller Tax Sharing Agreement, including:

 

  (a)

in the circumstances set out in section 721-25(2) of the 1997 Tax Act (the Seller Tax Sharing Agreement was entered into as an arrangement to prejudice the recovery by the Commissioner of some or all of any Group Liability of the Seller Consolidated Group); and

 

  (b)

in the circumstances set out in section 721-25(3) of the 1997 Tax Act (the Seller Head Company fails to provide a copy of the Seller Tax Sharing Agreement in the approved form as required by section 721-25(3) of the 1997 Tax Act).

 

17.8

ACGM and the Moranbah Manager are each party to the Seller Tax Sharing Agreement which covers all Group Liabilities.

 

17.9

Each Group Company has in the three years before the date of this Deed maintained proper and adequate records to enable it to comply in all material respects with its obligations to:

 

  (a)

prepare and submit any information, notices, computations, returns and payments required in respect of any Tax Law;

 

  (b)

prepare any accounts necessary for compliance with any Tax Law;

 

  (c)

support any position taken by any Group Company for Tax purposes; and

 

  (d)

retain necessary records as required by any Tax Law,

and, so far as the Sellers are aware, such records are accurate in all material respects.

 

17.10

All transactions and instruments entered into in the three years before the date of this Deed for which a Group Company is the person statutorily liable to pay Duty, or where the Group Company has agreed to pay Duty, have been duly stamped, are not insufficiently stamped, and in respect of such transactions or instruments, Duty has been paid and there is no requirement to upstamp on the account of an interim assessment.

 

17.11

No transactions contemplated by this Deed or the Transaction Documents will cause a revocation or breach of any corporate reconstruction relief from Australian stamp duty sought by any Group Company in the period of three years before the date of this Deed.

 

17.12

Each Group Company:

 

  (a)

that is required to be registered for GST under the GST Act is so registered;


  (b)

has complied in all material respects with its obligations under the GST Act;

 

  (c)

is not in default of any obligation to make or lodge any payment or GST return or notification under the GST Act;

 

  (d)

has appropriate systems to capture and report GST obligations and comply with the GST Act;

 

  (e)

has no material agreement or arrangement requiring it to pay any GST on a supply which does not contain a provision enabling it, as recipient, to require the other party to the agreement or arrangement to provide to each Group Company a tax invoice for any GST on that supply before that payment is required; and

 

  (f)

has not been paid any amount on account of, or in respect of, GST by any entity which it was not contractually entitled to be paid.

 

17.13

No Group Company has ever been a member of a GST Group other than the Sellers’ GST Group.

 

18.

PERSONAL PROPERTY

 

18.1

As holder of the MNC Interest, MNC owns an 88% beneficial interest in the Plant and Equipment.

 

18.2

Other than the Pre-emption Rights, there are no Encumbrances over or affecting any Plant and Equipment and MNC is not party to any agreement to grant any Encumbrance over any Plant and Equipment.

 

18.3

Each item of the Plant and Equipment that is material to the Business is:

 

  (a)

located at the Mines (except where undergoing repairs or maintenance);

 

  (b)

in the physical possession of the Joint Venture Participants, Moranbah Sales, the Moranbah Manager or ACGM; and

 

  (c)

in a good and safe state of repair and condition and in satisfactory working order for its age other than in respect of any Plant and Equipment that is underground at the Grosvenor Mine or on the surface at the Grosvenor Mine that was damaged as part of the sealing process that has occurred at the Grosvenor Mine.

 

19.

MINING TENEMENTS AND INTERESTS

 

19.1

The details of each Mining Tenement set out in Schedule 12 are true and correct in all material respects.

 

19.2

Each Mining Tenement is valid, in good standing and is not liable to forfeiture, termination (other than expiry in the ordinary course), cancellation or suspension for any reason; and no notice has been received under any applicable Laws cancelling, forfeiting or suspending or threatening to cancel, forfeit or suspend the Mining Tenements nor any material licence, consent, permission, authority or permit held in relation to the Mining Tenements; and all material obligations and liabilities under the terms of each Mining Tenement (including the payment of all relevant material fees and charges in respect of those Mining Tenements) have been met and satisfied; and there are no outstanding material non-compliances with applicable Laws in relation to each Mining Tenement.

 

19.3

MNC is the holder of a legal and beneficial interest in the Mining Tenements in the percentage set out in Schedule 12 (other than any Mining Tenements which are disposed of or otherwise dealt with by MNC not in breach of its obligations under Schedule 4), and MNC has full capacity and power to hold those interests.


19.4

At Completion, there will be no Encumbrances over or affecting MNC’s interest in the Mining Tenements, and MNC is not party to any agreement to grant any Encumbrance over any of the Mining Tenements except in accordance with the Joint Venture Agreement, and there will be no agreements, options or rights capable of becoming or giving rise to an agreement or option for the purchase of the Mining Tenements, other than any agreements, options or rights entered into by MNC not in breach of its obligations under Schedule 4.

 

19.5

There are no agreements, arrangements or understandings in force requiring MNC’s interests in the Mining Tenements to be shared with or made available to any person.

 

20.

ENVIRONMENT

 

20.1

So far as the Sellers are aware:

 

  (a)

in relation to the Mining Tenements there are no material, unremediated breaches of any applicable Environmental Law;

 

  (b)

all material Environmental Authorisations in relation to the Mining Tenements:

 

  (i)

have been obtained; and

 

  (ii)

are in full force and effect in all material respects.

 

21.

PROPERTY

 

21.1

The details of each Property set out in Schedule 13 are true and correct in all material respects.

General

 

21.2

The Properties are the only land and buildings owned, used or occupied by the Business in relation to the operation of the Mines and for residential purposes.

 

21.3

Except as Disclosed, the Sellers, the Joint Venture Participants or the Moranbah Manager have exclusive occupation and right of quiet enjoyment of the Properties except for any Properties used for residential purposes.

 

21.4

As at the date of this Deed, no notices have been received by a Seller or a Group Company, and there is no order, declaration, report, recommendation or approved proposal of a public authority or government department which would materially affect the use of any of the Properties.

Freehold Properties

 

21.5

In relation to those Properties listed in Schedule 13, which are real property owned by MNC (“Freehold Properties”):

 

  (a)

MNC is the registered holder and beneficial owner of the Freehold Properties in the percentages set out in Schedule 13;

 

  (b)

all rates, taxes and levies (including land tax) applicable to the Freehold Properties have been paid; and

 

  (c)

except for leases granted in the ordinary course, no Seller or Group Company has sold, agreed to sell, granted any option to sell, lease or sublease or agreed to lease or sublease any of the Freehold Properties.

Leasehold Properties

 

21.6

In relation to the Properties listed in Schedule 13, which are leased MNC or the Moranbah Manager (“Leasehold Properties”):


  (a)

there are no subsisting material breaches of the leases of the Leasehold Properties (“Property Leases”); and

 

  (b)

as at the date of this Deed, no Seller or Group Company has received any notice of any breach of the Property Leases.

 

21.7

The Property Leases:

 

  (a)

are valid and subsisting; and

 

  (b)

have not been amended or modified.


SCHEDULE 7

LIMITATIONS ON ANGLO AND SELLERS’ LIABILITY

 

1.

FINANCIAL LIMITS ON CLAIMS

 

1.1

The Sellers’ Group’s maximum aggregate liability in respect of all Claims (including any reasonable and properly incurred costs, expenses and other liabilities payable by the Sellers’ Group in connection with such Claims) will not exceed the aggregate of the Consideration and the Royalty, each to the extent actually received by the Sellers as at the date of the Claim.

 

1.2

Subject to paragraph 1.1, the Sellers’ Group’s aggregate liability:

 

  (a)

for all Fundamental Warranty Claims (including any costs, expenses and other liabilities payable by the Sellers in connection with such Fundamental Warranty Claims), will not exceed the aggregate of the Consideration and the Royalty, each to the extent actually received by the Sellers as at the date of the Claim;

 

  (b)

for all Business Warranty Claims (including any costs, expenses and other liabilities payable by the Sellers in connection with such Business Warranty Claims), will not exceed 10% of the Completion Payment;

 

  (c)

for all Tax Covenant Claims, will not exceed 30% of the aggregate of the Consideration and the Royalty, each to the extent actually received by the Sellers as at the date of the Claim;

 

  (d)

for all Tax Warranty Claims, will not exceed 10% of the Completion Payment; and

 

  (e)

for all other Claims (including any costs, expenses and other liabilities payable by the Sellers in connection with such Claims), will not exceed 10% of the Completion Payment.

 

1.3

The Sellers’ Group will not be liable in respect of any single Claim or any series of Claims which arise from the same or substantially the same facts, matters, circumstances or events (and such Claim(s) will be disregarded for all purposes) unless the amount of the liability pursuant to such Claim or series of Claims would exceed 0.1% of the Completion Payment.

 

1.4

The Sellers’ Group will not be liable in respect of any single Claim unless the aggregate amount of the Sellers’ Group’s liability for all Claims (other than Claims excluded by paragraph 1.3 or any other paragraph of this Schedule 7) would exceed 1% of the aggregate of the Consideration and the Royalty, each to the extent actually received by the Sellers as at the date of the Claim, in which case the Sellers’ Group will only be liable for the excess.

 

2.

TIME LIMITS ON CLAIMS

 

2.1

Anglo and the Sellers will not be liable in respect of any Claim, and any such Claim will be wholly barred and unenforceable unless the Buyer has given notice in writing of such Claim to Anglo and the Sellers:

 

  (a)

in the case of a Tax Claim, within the period of five years beginning with the Completion Date;

 

  (b)

in the case of a Fundamental Warranty Claim, within the period of two years beginning with the Completion Date; and

 

  (c)

in the case of any other Claim, within the period of 12 months beginning with the Completion Date.


2.2

Any notice referred to in paragraph 2.1 must:

 

  (a)

be given by the Buyer to Anglo and the Sellers as soon as reasonably practicable and, in any event, within 30 Business Days of the Buyer becoming aware of the facts, matters, circumstances or events giving rise to such Claim;

 

  (b)

include such detail and supporting evidence as is reasonably available to the Buyer at the time of the relevant facts and circumstances giving rise to the Claim, together with the Buyer’s good faith estimate of any alleged Liability; and

 

  (c)

specify (without prejudice to the Buyer’s right subsequently to identify other Warranties which are breached by the same facts) the specific Warranties or other provisions of this Deed which are alleged to have been breached,

but the failure of the notice from the Buyer to comply with the requirements of sub-paragraphs (a), (b) and (c) will not operate to limit Anglo’s or the Sellers’ liability except to the extent that the Sellers’ (or, in circumstances where Anglo has elected to take conduct of the Claim against the Sellers, Anglo’s) ability to defend such Claim is prejudiced or Anglo’s or the Sellers’ liability (or reasonably and properly incurred costs and expenses of Anglo or the Sellers in defending such Claim) is increased as a result of such failure.

 

2.3

For the avoidance of doubt, the Buyer may give notice of any single Claim in accordance with paragraph 2, whether or not the amount set out in paragraph 1.4 has been exceeded at the time the notice is given.

 

2.4

Anglo and the Sellers will not be liable in respect of any Claim (other than a Tax Covenant Claim), and Anglo’s and the Sellers’ liability in respect of such Claim will cease (and no new Claim may be made in respect of the facts, matter, events or circumstances giving rise to such Claim) to the extent not previously satisfied, withdrawn or settled, six months after the date on which the notice referred to in paragraph 2.1 is given unless court proceedings in respect of the subject matter of the Claim:

 

  (a)

have been commenced by being both issued and validly served on Anglo and the Sellers; and

 

  (b)

have not been withdrawn or terminated and are continuing to be pursued with reasonable diligence by the Buyer.

 

3.

REMEDIABLE BREACHES

To the extent the fact, matter, event or circumstance giving rise to a Claim is capable of remedy, Anglo and the Sellers will not be liable for such Claim if and to the extent that it is remedied at Anglo or the Sellers’ cost and expense to the Buyer’s reasonable satisfaction within 60 Business Days of the date of the notice referred to in paragraph 2.1. Without prejudice to any obligation on the Buyer to mitigate any loss, the Buyer shall, and shall procure that each Buyer Group member shall, at Anglo’s or the Sellers’ cost and expense, provide reasonable assistance to Anglo or the Sellers to remedy any such fact, matter, event or circumstance.

 

4.

INDIRECT LOSS

 

4.1

Neither Anglo nor the Sellers will be liable for any indirect loss.

 

4.2

Neither Anglo nor the Sellers will be liable for any punitive loss, loss of profit (other than direct loss of profit, being a loss of profit that arises naturally from the relevant breach or circumstance), loss of goodwill, loss of opportunity or loss of reputation, whether actual or prospective, in respect of any Claim.

 

5.

DISCLOSURE


Anglo and the Sellers will not be liable in respect of any Claim (other than a Tax Covenant Claim) if and to the extent that the fact, matter, event or circumstance giving rise to such Claim is Disclosed:

 

  (a)

in the Disclosure Material, this Deed, any other Transaction Document or the SMC SPA;

 

  (b)

in the Pro forma Financial Information;

 

  (c)

in any information available, on the date that is two Business Days before the date of this Deed, on the PPS Register or public registers maintained by any of the Trade Marks Office, IP Australia, the Queensland Titles Registry, the Queensland Department of Environment, Science and Innovation, the Queensland Department of Natural Resources and Mines, the Commonwealth Department of Climate Change, Energy, the Environment and Water, the Clean Energy Regulator, the National Native Title Tribunal, ASIC, or the Queensland Competition Authority;

 

  (d)

in any information available, on the following dates specified, on public registers maintained by:

 

  (i)

the High Court of Australia, as at the date which is two Business Days before the date of this Deed;

 

  (ii)

the Federal Court of Australia, as at the date which is two Business Days before the date of this Deed;

 

  (iii)

the Supreme Court of Queensland and District Court of Queensland, as at the date which is two Business Days before the date of this Deed;

 

  (iv)

the Land Court of Queensland, as at 19 November 2024;

 

  (v)

the Supreme Court of New South Wales, as at 18 November 2024;

 

  (vi)

the Supreme Court of Western Australia, as at 18 November 2024;

 

  (vii)

the Supreme Court of Victoria, as at the date which is 19 November 2024;

 

  (viii)

the Supreme Court of South Australia, as at 6 November 2024;

 

  (ix)

the Supreme Court of the Northern Territory, as at 18 November 2024;

 

  (x)

the Supreme Court of the Australian Capital Territory, as at 18 November 2024; or

 

  (e)

in issuance, any information available through releases on a Stock Exchange published by Anglo American plc (including quarterly, half yearly and annual reports) in the 12 month period prior to the date of this Deed, on or before the date that is two Business Days before the date of this Deed.

 

6.

BUYER’S KNOWLEDGE

 

6.1

Anglo and the Sellers will not be liable in respect of any Claim (other than a Tax Covenant Claim) if and to the extent that the Buyer Deal Team Members are aware, or ought reasonably to have been aware as at the date of this Deed (including after having made reasonable enquiries after they had each reviewed the Disclosure Material and read the Vendor Reports, this Deed, the SMC SPA and any other Transaction Document) of the Claim or the fact, matter, event or circumstance which is the subject matter of the Claim.


6.2

The Buyer and the Buyer Guarantor acknowledge, agree, represent and warrant to Anglo and the Sellers, that at no time have Anglo or the Sellers or any person on their behalf made or given or has the Buyer or the Buyer Guarantor relied on any representation, warranty, promise or undertaking in respect of the future financial performance or prospects of the Group Companies (including any dividends which may be paid by the Group Companies) or otherwise (including in connection with any financial analysis or modelling conducted by the Buyer or any of their Representatives).

 

6.3

The Buyer and the Buyer Guarantor acknowledge, agree, represent and warrant to Anglo and the Sellers, that, notwithstanding anything in this Deed (but subject to the Warranties), neither Anglo nor the Sellers (nor any of their Representatives) make any warranty or representation in respect of the future recoverable reserves, physical characteristics of or prospects in relation to the Mining Tenements. Without limiting the generality of the foregoing, Anglo and the Sellers make no representation or warranty, whether express or implied, and disclaims any liability in respect of or as to:

 

  (a)

except as provided in the Warranty in paragraph 18.3 of Schedule 6, any personal property and equipment located on the Mining Tenements;

 

  (b)

the state, condition, conformity to model or samples, or any physical assets located on or forming part of the Mining Tenements or Properties, including all installations, structures, plants, equipment, machinery, and the MNC Assets, and the Buyer and the Buyer Guarantor acknowledge and agree that all such assets are transferred under this Deed on an “as is, where is” basis (subject to the Warranties);

 

  (c)

the amount, quality, price, or deliverability of, or values with respect to, any reserves attributable to the Mining Tenements;

 

  (d)

the issuance, reissuance or transfer of any permits related to the Mining Tenements (including the grant of the Tenement Application);

 

  (e)

any authorisation, consent, approval, or waiver required under any Mining Tenements, Properties or applicable Law;

 

  (f)

any geological, geophysical, engineering, economic, or other interpretations, forecasts, or evaluations in respect of the Mining Tenements, including in respect of any geological formation, drilling prospect, or reserves, and the Buyer affirms and acknowledges that it has made its own independent assessment and evaluation of these matters; or

 

  (g)

any forward-looking statements, forecasts, or financial projections, including present or future value of anticipated income, costs, or profits.

 

7.

CONTINGENT LIABILITIES

Other than in respect of a Tax Claim, Anglo and the Sellers will not be liable in respect of any liability which is contingent or otherwise not capable of being quantified in relation to any Claim unless and until such contingent or unquantifiable liability becomes an actual and quantifiable liability and is due and payable.

 

8.

PRO FORMA FINANCIAL INFORMATION / COMPLETION ACCOUNTS

 

8.1

Anglo and the Sellers will not be liable in respect of any Claim (other than a Tax Claim, to which the provisions of Schedule 8 will instead apply) to the extent of the amount of an allowance, provision or reserve in respect of the fact, matter, event or circumstance giving rise to such Claim has been made in the Pro forma Financial Information or such fact, matter, event or circumstance is provided for in the Completion Accounts.


8.2

If and to the extent that:

 

  (a)

the amount of any allowance, provision or reserve is made in the Pro forma Financial Information or the Completion Accounts or otherwise taken into account or reflected in them is found to be in excess of the matter for which such allowance, provision or reserve was made;

 

  (b)

any asset is found to have been included at an undervalue in the Pro forma Financial Information or the Completion Accounts or any liability is found to have been included at an overvalue in them; or

 

  (c)

any sum is received by any Group Company in relation to an asset which had been written off as irrecoverable or provided against in the preparation of the Pro forma Financial Information or the Completion Accounts,

then the amount of any such excess, undervalue, overvalue or receipt (less any applicable Tax) (as the case may be) will be credited against and applied in relieving Anglo and the Sellers from any liability it would otherwise incur in respect of any Claims.

 

9.

ALTERNATIVE RECOVERY

 

9.1

Anglo and the Sellers will not be liable in respect of any Claim to the extent of the amount of the Liabilities to which the Claim relates has otherwise been made good or has otherwise been compensated for in full without loss to any Buyer Group member.

 

9.2

Anglo and the Sellers will not be liable in respect of any Claim (other than a Tax Claim, to which the provisions of Schedule 8 will instead apply) if the Buyer Group has a right of recovery against, or indemnity from, any third party, including pursuant to any insurance policy (whether under provision of law, contract or otherwise) in respect of the Liabilities to which the Claim relates, unless the Buyer Group has first used reasonable endeavours to recover from such third party (an “Alternative Recovery Claim”).

 

9.3

In respect of any Alternative Recovery Claim, the Buyer shall:

 

  (a)

as soon as reasonably practicable give written notice of the Alternative Recovery Claim to Anglo and the Sellers specifying in reasonable detail the material aspects of the Alternative Recovery Claim;

 

  (b)

keep Anglo and the Sellers reasonably informed of the progress of the Alternative Recovery Claim;

 

  (c)

provide Anglo and the Sellers (at Anglo’s and the Sellers’ cost and expense) with copies of all material correspondence or other documents relating to the Alternative Recovery Claim requested by Anglo and the Sellers, subject always to legal professional privilege and any confidentiality obligations that are binding on any Buyer Group member; and

 

  (d)

use reasonable endeavours to consult with Anglo and the Sellers regarding the conduct of the Alternative Recovery Claim.

 

9.4

The Buyer will not be precluded from bringing any Claim under this Deed by reason of any breach of the terms of paragraph 9.3, but Anglo and the Sellers will not be liable in respect of any relevant Claim to the extent Anglo’s or the Sellers’ liability would otherwise arise or be increased by such breach.


10.

SUBSEQUENT RECOVERY

If Anglo or the Sellers pay the Buyer any amount in respect of a Claim (other than a Tax Claim, to which the provisions of Schedule 8 will instead apply) and the Buyer or any Buyer Group member is or subsequently becomes entitled to recover from any person other than Anglo or the Sellers a sum which is referable to that Claim (including any by way of discount, relief or credit), the Buyer shall give prompt notice to Anglo and the Sellers, and shall, and shall procure that any relevant Buyer Group member shall, use reasonable endeavours to seek recovery from such third party. If any amount is actually recovered from such third party, such amount must promptly be repaid by the Buyer to Anglo or the Sellers, as applicable.

 

11.

FINANCIAL BENEFIT

 

11.1

In calculating Anglo and the Sellers’ liability in respect of any Claim, any net quantifiable financial benefit to any Buyer Group member as a result of the matter giving rise to such Claim or the Claim itself will be taken into account, including the amount by which any Taxation for which any Buyer Group member is accountable or liable to be assessed is actually reduced or extinguished as a result of the matter giving rise to such Claim or the Claim itself provided such reduction will be realised not later than the tax period in which the payment from Anglo or the Sellers falls due.

 

11.2

If:

 

  (a)

the Buyer (or an Affiliate of the Buyer) is the ‘Buyer’ under the SMC SPA;

 

  (b)

as a consequence of a payment becoming due from Anglo or MNC in respect of any Claim and the proceeds of the Transaction effected pursuant to this Deed accordingly being treated as reduced for Tax purposes, Anglo American Australia Limited realises or will realise a reduction in the amount of Tax for which it is accountable or liable to be assessed or receives or will receive any repayment of Tax; and

 

  (c)

such reduction or repayment has not been taken into account under paragraph 11.1 (whether due to the operation of the proviso therein or otherwise) or any other provision of the Transaction Documents,

then the amount payable by Anglo or MNC to the Buyer in respect of the Claim shall be adjusted downwards to reflect the relevant reduction in or repayment of Tax (notwithstanding that the same may be realised in a tax period later than that in which the payment from Anglo or MNC in respect of the Claim falls due) or, in the event that no such downwards adjustment is made, the Buyer shall pay to Anglo or MNC (as the case may be) an amount equal to the relevant reduction or repayment, such payment to be made (in the case of a reduction in the amount of Tax) within five Business Days of the date on which the reduced Tax payment is made or (in the case of a repayment of Tax) within five Business Days of the date on which the repayment of Tax is received.

 

12.

NO DUPLICATION OF RECOVERY

 

12.1

The Buyer will not be entitled to recover damages or obtain payment, reimbursement, restitution or indemnity more than once in respect of the same Liabilities, regardless of whether more than one Claim arises in respect of it, or whether any such claim arises under or in respect of the SMC SPA, and for this purpose recovery by the Buyer or any Group Company will be deemed to be a recovery by each of them.

 

12.2

If the Buyer is entitled to claim under the Tax Covenant and under the Warranties in respect of the same liability, the Buyer may claim under either or both, but payments under the Tax Covenant will satisfy and discharge any Claim which is capable of being made under the Warranties in respect of the same liability and vice versa to the extent of the amount paid.


13.

VOLUNTARY ACTS / FUTURE CHANGES

Anglo and the Sellers will not be liable in respect of any Claim (other than a Tax Claim, to which the provisions of Schedule 8 will instead apply) if and to the extent that the Claim would not have arisen but for, or is increased or not reduced as a result of:

 

  (a)

the completion of the sale of any MNC Assets required upon receipt of a Pre-emption Acceptance Notice;

 

  (b)

any act or omission by Anglo or any of Anglo’s Affiliates or any Group Company as a consequence of the execution and / or performance of any Transaction Document and / or the SMC SPA;

 

  (c)

any act or omission of the Sellers, Anglo or any of Anglo’s Affiliates or any Group Company before Completion taken at the Buyer’s written request of or with the Buyer’s written consent;

 

  (d)

any failure by the Buyer to act in accordance with paragraph 14 of this Schedule in connection with the matter giving rise to such Claim;

 

  (e)

any act or omission of any Buyer Group member, or any of their directors, officers, employees, agents or consultants after Completion which is outside its ordinary course of business as conducted at Completion and is not carried out pursuant to a legally binding obligation entered into on or before Completion or pursuant to any obligation imposed by Law, but in each case only in circumstances where:

 

  (i)

the relevant person knew that the relevant Claim would arise or was reasonably likely to arise because of the voluntary act and that an alternative course of action was available at no additional cost to the relevant Buyer Group member; and

 

  (ii)

the act or omission was not carried out in the ordinary course of business of the relevant Buyer Group member or pursuant to a legally binding commitment of any Buyer Group member created on or before Completion, in complying with any law or applicable regulation or at the written request of any Tax Authority or at the written request or with the written consent of the Sellers, Anglo or an Affiliate of Anglo;

 

  (f)

any winding-up or cessation of, or any change in, the nature or conduct of any business carried on by a Buyer Group member after Completion;

 

  (g)

any reorganisation or change in ownership of any Group Company after Completion;

 

  (h)

any alteration to or enactment (other than a re-enactment) of any statute, statutory instrument or other legislative act or other change of Law (including any decision of any court or tribunal) or any practice of any Authority (including the withdrawal of any extra-statutory concession of a Tax Authority) which is announced and enacted after the date of this Deed (whether relating to Taxation, rates of Taxation or otherwise);

 

  (i)

the withdrawal or amendment of or change to any practice, concession or written agreement or administrative arrangements with any Group Company previously made by any Tax Authority in force at the date of this Deed;

 

  (j)

any change in the accounting reference date or the length of any accounting period of any Buyer Group member made on or after Completion; or

 

  (k)

any change in the accounting bases, policies, practices or methods applied in preparing any accounts or valuing any assets or liabilities of any Group Company from those used in the preparation of the Pro forma Financial Information other than a change which is reported by a Group Company’s auditors at the time to be necessary in their opinion because such bases, policies, practise or methods as at Completion are not in accordance with any appropriate published accounting practices or principles then current.


14.

CONDUCT OF THIRD-PARTY CLAIMS

 

14.1

In respect of any fact, matter, event or circumstance which any Buyer Group member becomes aware of, which is reasonably likely to result in a claim against any of them (a “Third-Party Claim”) and which, in turn, is reasonably likely to result in a Claim (other than a Tax Claim, to which the provisions of Schedule 8 will instead apply), the Buyer shall:

 

  (a)

as soon as reasonably practicable give written notice of the Third-Party Claim to Anglo and the Sellers specifying in reasonable detail the material aspects of the Third-Party Claim (but any failure to do so will not prejudice the Buyer’s Claim except to the extent the amount of the Claim is increased by the delay);

 

  (b)

keep Anglo and the Sellers reasonably informed of the progress of the Third-Party Claim;

 

  (c)

provide Anglo and the Sellers upon request (and at Anglo’s and the Sellers’ cost and expense) with copies of all material correspondence or other documents relating to the Third-Party Claim requested by Anglo and the Sellers, subject always to legal professional privilege and any confidentiality obligations that are binding on any Buyer Group member;

 

  (d)

consult with Anglo and the Sellers regarding the conduct of the Third-Party Claim;

 

  (e)

not cease to defend the Third-Party Claim or make any admission of liability or any agreement, compromise or payment in relation to the Third-Party Claim without the written consent of Anglo, which will not be unreasonably withheld or delayed;

 

  (f)

take such action as Anglo may reasonably request to avoid, resist, dispute, appeal, compromise, remedy or defend the Third-Party Claim; and

 

  (g)

subject to any consent (if any) required under the Joint Venture Agreement (which the Buyer must (and must procure any Group Company must) use reasonable endeavours to obtain), allow Anglo, at its election (in writing), to take over the conduct of the Third-Party Claim, in which case:

 

  (i)

the Buyer shall:

 

  (A)

delegate the conduct of any proceedings in respect of the Third-Party Claim to Anglo;

 

  (B)

retain such legal advisers as nominated by Anglo to act on behalf of the relevant member(s) of the Buyer Group in relation to the Third-Party Claim in accordance with Anglo’s instructions (provided the Buyer is entitled to engage its own separate legal advisers, at its own cost and expense); and

 

  (C)

procure that its Representatives provide such information and assistance as Anglo or the appointed legal advisers may require in connection with the conduct of the Third-Party Claim (subject to Anglo paying reasonable cost and expenses of such Representatives in providing such information and assistance);

 

  (D)

procure that the relevant Group Company will promptly take such actions or omit to take such actions as directed by Anglo in accordance with its rights under this paragraph 14; and


  (ii)

Anglo shall:

 

  (A)

keep the Buyer reasonably informed of the progress of the Third-Party Claim;

 

  (B)

provide the Buyer upon request with copies of all material correspondence or other documents relating to the Third-Party Claim requested by the Buyer, subject always to legal professional privilege and any confidentiality obligations that are binding on Anglo or Anglo’s Affiliates;

 

  (C)

consult with the Buyer regarding the conduct of the Third-Party Claim;

 

  (D)

not cease to defend the Third-Party Claim or make any admission of liability or enter into any agreement or compromise in relation to such Third-Party Claim without consultation with the Buyer;

 

  (E)

act reasonably in all the circumstances in respect of the conduct of the Third-Party Claim, including having regard to the likelihood of success of the proceedings; and

 

  (F)

provided that the Buyer has complied with its obligations under paragraph 14.1(g)(i), the Sellers shall indemnify the Buyer on demand (on a dollar for dollar basis) against all Liabilities reasonably incurred by the Buyer and its Affiliates in connection with the conduct of the Third-Party Claim by Anglo and / or the Sellers.

 

14.2

The Buyer acknowledges and agrees that:

 

  (a)

in respect of any Third-Party Claim, Anglo will have the right to take over the conduct of such Third-Party Claim in accordance with the terms of this paragraph 14; and

 

  (b)

in respect of any Claim, Anglo will have the right to take over the conduct of such Claim in accordance with the terms of the SMC SPA,

and the Sellers are not entitled to make any admission of liability, enter into any agreement or compromise or make payment in relation to such Third-Party Claim or Claim without Anglo’s prior written consent.

 

15.

DUTY TO MITIGATE

The Buyer shall procure that reasonable steps and proceedings are taken by each Buyer Group member and each of their directors and officers to mitigate any Liabilities, Claim (other than a Tax Covenant Claim) or potential Claim (other than a Tax Covenant Claim). Nothing in this Deed will relieve the Buyer of the common law rules of mitigation in respect of its loss.

 

16.

ANGLO’S ACCESS

In the event of an actual or potential Claim, the Buyer shall, subject to Anglo giving such undertakings as to confidentiality as the Buyer may reasonably require, procure that Anglo and its Representatives are provided, upon reasonable notice and during Working Hours, with all such assistance, documentation, information and access to such information, records, premises and personnel of the relevant Group Companies as they may reasonably require (but excluding anything which is subject to legal privilege) to investigate, avoid, remedy, dispute, resist, appeal, compromise or contest such Claim and shall permit Anglo and its Representatives to make copies of such documentation and information to the extent relevant to the Claim.


17.

APPLICATION TO EXCLUDED CLAIMS

 

  (a)

Paragraphs 1.2 to 1.4, 2, 5 and 6 of this Schedule 7 do not apply to Excluded Claims.

 

  (b)

Without limiting paragraph 17(a), the Sellers’ Group will not be liable in respect of any single Excluded Claim or any series of Excluded Claims which arise from the same or substantially the same facts, matters, circumstances or events (and such Excluded Claim(s) will be disregarded for all purposes) unless the amount of the liability pursuant to such Excluded Claim or series of Excluded Claims would exceed $50,000.


SCHEDULE 8

TAX COVENANT

 

1.

DEFINITIONS AND INTERPRETATION

 

1.1

In this Schedule:

Actual Tax Liability” means a liability of a Group Company to make a payment (or increased payment) of Tax or a payment in respect of, or on account of, Tax;

Buyers Relief” means:

 

  (a)

any Post-Completion Relief; and

 

  (b)

any Relief arising to any member of the Buyer’s Tax Group (other than a Group Company) at any time;

Buyers Tax Group” means the Buyer and each other company which is, or is for a Tax purpose, treated as being a member of the same group as, or otherwise controlled by, connected with, or associated in any way with, the Buyer from time to time;

Consolidated Return” has the meaning given in paragraph 6.1;

Deemed Tax Liability” means the use or set-off of a Buyer’s Relief in circumstances where, but for the use or set-off, a Group Company would have had an Actual Tax Liability in respect of which the Sellers would have had a liability under this Schedule, and the amount that is to be treated for the purposes of this Schedule as a Deemed Tax Liability will be determined as follows:

 

  (a)

where the Relief that is used or set-off is a deduction from or offset against Tax, the Deemed Tax Liability will be the amount of that Relief so used or set-off;

 

  (b)

where the Relief that is used or set-off is a deduction from or offset against Income, Profits or Gains, the Deemed Tax Liability will be the amount of Tax saved as a result of such use or set-off; and

 

  (c)

where the Relief that is the subject of the set-off is a repayment of Tax, credit or other amount payable by a Tax Authority, the Deemed Tax Liability will be the amount that would have been obtained but for the set-off;

Demand” means:

 

  (a)

any notice, demand, assessment, letter or other document issued, or action taken by, or on behalf of, any Tax Authority; or

 

  (b)

the preparation or submission to a Tax Authority of a Tax Return by the Buyer, any Group Company or another person,

from which it appears that a Tax Liability is, or is likely to be, incurred by or imposed on any Group Company;

Event” includes (without limitation) any event, transaction, act, payment, action, circumstance, state of affairs, default, omission or occurrence of any nature (including, for the avoidance of doubt, Completion itself) and whether or not the Buyer or any Group Company is a party to it, and reference to an Event occurring on or before a particular date includes Events which for Tax purposes are deemed to have, or are treated as having, occurred on or before that date;


Income, Profits or Gains” includes income, profits or gains which are deemed to be earned, accrued or received for Tax purposes, and references to Income, Profits or Gains earned, accrued or received on or before a particular date means Income, Profits or Gains which are regarded as having been, or are deemed to have been, earned, accrued or received on or before that date for Tax purposes;

Independent Tax Expert” means a legal practitioner with at least 10 years’ experience in Tax (at ‘Partner’ or comparable senior level) that is independent of each of the Buyer and the Sellers and appointed by the parties under paragraph 6.10;

Other Tax Return” means any Tax Return for or in respect of any accounting period or other tax reporting period of a Group Company which is not a Consolidated Return;

Overprovision” means (applying the accounting policies, principles and practices adopted in relation to the preparation of the Completion Accounts) the amount by which any provision for Tax (other than deferred tax) in the Completion Accounts is overstated but disregarding any overstatement to the extent that it arises as a result of:

 

  (a)

a change in legislation (or a change in interpretation on the basis of case law), a change in the published practice of any Tax Authority, a change in generally accepted accounting principles or a change in the rates of Tax, in each case announced and taking effect after the date of this Deed;

 

  (b)

a voluntary act of the Buyer or the relevant Group Company after Completion;

 

  (c)

any change after Completion of accounting policy, method or basis of a Group Company or the date to which a Group Company makes up its accounts; or

 

  (d)

the use of any Buyer’s Relief;

Post-Completion Relief” means a Relief which arises:

 

  (a)

as a consequence of, or in connection with, any Event occurring (or being treated for Tax purposes as occurring) after Completion; or

 

  (b)

in respect of a period falling after Completion;

Relevant Percentage” means in respect of a Group Company, the percentage economic interest in that Group Company directly or indirectly acquired by the Buyer pursuant to this Deed;

Resolution Institute” means the Resolution Institute ABN 69 008 651 232;

Straddle Period” means an accounting period or other tax reporting period of a Group Company that begins on or before the Completion Date and ends after the Completion Date; and

Tax Liability” means an Actual Tax Liability or a Deemed Tax Liability.

 

1.2

For the purpose of this Schedule and, in particular, computing any Tax Liability or Relief and for determining whether and to what extent a Tax Liability or a Relief relates to a pre- or post-Completion period, any Taxes of a Group Company with respect to any Straddle Period shall be apportioned between the portion of such period up to and including the Completion Date and the portion of such period that begins after the Completion Date on the basis that an accounting or other tax reporting period is deemed to have ended as of the close of business on the Completion Date.


1.3

Where any provision of this Schedule requires the Buyer to provide notice to the Sellers of any fact, matter, event or circumstance, the Buyer must provide a written copy of such notice to Anglo and the Buyer acknowledges and agrees that:

 

  (a)

Anglo will have the right (at Anglo’s election) to exercise any and all of the Sellers’ rights under paragraphs 4 and 6 of this Schedule; and

 

  (b)

the Sellers are not entitled to make any admission of liability, enter into any agreement or compromise or make payment under this Schedule or for breach of the Tax Warranties without Anglo’s prior written consent.

 

1.4

References in this Schedule to paragraphs are to paragraphs in this Schedule unless otherwise stated.

 

2.

COVENANT TO PAY

 

2.1

Subject to the provisions of paragraph 3 and Schedule 7 of this Deed, the Sellers covenant with the Buyer to pay to the Buyer an amount equal to their Relevant Percentage of:

 

  (a)

any Actual Tax Liability:

 

  (i)

arising as a consequence of or by reference to any Event which occurred on or before Completion or was deemed to occur on or before Completion for the purposes of any Tax but excluding any such Actual Tax Liability to the extent that it arises in respect of or by reference to any Income, Profits or Gains;

 

  (ii)

arising in respect of or by reference to any Income, Profits or Gains to the extent that such Income, Profits or Gains were earned, accrued or received on or before Completion;

 

  (b)

any Deemed Tax Liability; and

 

  (c)

all reasonable out of pocket costs and expenses properly incurred by the Buyer or any Group Company (other than any management costs and expenses) in connection with:

 

  (i)

a liability of the kind referred to in paragraph 2.1(a) or 2.1(b); or

 

  (ii)

successfully taking or defending any action against the Sellers under this Schedule.

 

3.

LIMITATIONS AND EXCLUSIONS

 

3.1

The Sellers shall not be liable under paragraph 2 of this Schedule or for breach of the Tax Warranties in respect of a liability of a Group Company (treating the relevant loss giving rise to a claim for a breach of a Tax Warranty as if, for the purposes of this paragraph 3, it was a liability) to the extent that:

 

  (a)

the liability in question has been paid or discharged before Completion or such payment or discharge was economically taken into account or economically reflected in the Completion Accounts;

 

  (b)

provision or reserve was made in the Completion Accounts in respect of the liability in question;

 

  (c)

the liability in question arises, or is increased, as a result of a change in legislation (or a change in interpretation on the basis of case law), a change in the published practice of any Tax Authority, a change in generally accepted accounting principles or a change in the rates of Tax, in each case announced and taking effect after the date of this Deed;


  (d)

the liability in question would not have arisen but for a voluntary act or omission of the relevant Group Company after Completion or any other member of the Buyer’s Tax Group at any time, other than an act which:

 

  (i)

is in the ordinary course of business as carried on by the relevant Group Company at or before Completion;

 

  (ii)

is carried out at the written direction or request or with the written consent of the Sellers; or

 

  (iii)

is carried out pursuant to any legally binding obligation of any Group Company created or incurred before Completion;

 

  (e)

the liability in question would not have arisen but for a voluntary act or omission of the Sellers or any Group Company, in either case on or before Completion, at the written direction or request or with the written consent of the Buyer;

 

  (f)

the liability in question comprises interest arising by virtue of an instalment of Tax paid prior to Completion proving to be an underpayment, insofar as it would not have been an underpayment but for an amount of Income, Profits or Gains actually earned, accrued or received after Completion exceeding the amount taken into account in calculating the relevant instalment of Tax;

 

  (g)

the liability in question would not have arisen but for any change after Completion of accounting policy, method or basis of a Group Company or the date to which a Group Company makes up its accounts, except where such change is necessary so as to ensure compliance with law or generally accepted accounting principles (as applied at Completion) where a Group Company was before, or on, Completion not so compliant;

 

  (h)

the liability in question would not have arisen but for the failure or omission on the part of a Group Company to comply with a written request of Anglo or any Seller or their duly authorised agents to make a valid claim, election, surrender or disclaimer or to give a valid notice or consent to do any other thing, under the provisions of an enactment or regulation relating to Tax after Completion, the making, giving or doing of which was taken into account in the Completion Accounts;

 

  (i)

a Relief (other than a Buyer’s Relief) is available to the relevant Group Company, or is for no consideration made available by Anglo or any Seller to the Group Company, to set against or otherwise mitigate the liability in question (and the Buyer shall, at a Sellers’ written request, provide the Sellers with such information and access to the Buyer’s personnel and advisors as the Sellers may reasonably require in order to determine the availability of any such Relief);

 

  (j)

the amount of the liability in question has been recovered from a person (excluding any Group Company, the Buyer or any other member of the Buyer’s Tax Group) without cost to the Buyer or any Group Company;

 

  (k)

the Income, Profits or Gains in respect of which the liability in question arises were actually earned, accrued or received by a Group Company on or before Completion and were not reflected in the Completion Accounts but should have been so reflected, and the benefit of such Income, Profits or Gains was either retained by the relevant Group Company or expended in the ordinary course of its business;

 

  (l)

the liability in question comprises interest, penalties, charges or costs in so far as attributable to the unreasonable delay or default of the Buyer or any Group Company after Completion (including for the avoidance of doubt a delay or default of the Buyer or any Group Company in paying to a Tax Authority any amount received from the Sellers pursuant to paragraph 2 of this Schedule) or arises as a result of the failure of the Buyer to comply with any of its obligations under this Deed;


  (m)

the liability in question is Tax to which Clause 46.2 of this Deed applies; or

 

  (n)

the Buyer has otherwise made recovery in respect of that liability under this Schedule or under any provision of this Deed or any other Transaction Document.

 

3.2

Certain provisions of Schedule 7 contain further limitations which apply to claims under this Schedule.

 

3.3

The Sellers shall have no liability to the Buyer under any part of this Deed in respect of any non-availability, inability to use, or loss or restriction of any Relief other than to the extent it gives rise to a Tax Liability to which paragraph 2 of this Schedule 8 applies.

 

4.

MANNER OF MAKING AND CONDUCT OF CLAIMS

 

4.1

If any Group Company or any other member of the Buyer’s Tax Group becomes aware of a Demand issued after Completion which could give rise to a liability for the Sellers under paragraph 2 of this Schedule or for breach of the Tax Warranties:

 

  (a)

the Buyer shall give written notice to the Sellers of the Demand (including reasonably sufficient details of the Demand, the due date for payment and the time limits for any appeal) as soon as reasonably practicable (and in any event no more than five Business Days) after the Buyer or the relevant Group Company becomes aware of the Demand;

 

  (b)

the Buyer shall take (or shall procure that the relevant Group Company shall take) such action as the Sellers may reasonably request in writing to avoid, dispute, resist, appeal, compromise or defend the Demand;

 

  (c)

the Sellers shall have the right (if it wishes) to control any proceedings, negotiations, discussions, settlement and any other matter in connection with the action referred to in paragraph 4.1(b); and

 

  (d)

all parties must be kept fully informed of any actual or proposed material developments (including any meetings) relating to the Demand or any action referred to in this paragraph 4.1; and the Buyer undertakes that it shall, and shall procure that each Group Company shall, afford to the Sellers reasonable access to all material correspondence and documentation relating to the Demand or action and any other information, assistance and access to records and personnel as it reasonably requires in connection with the Demand or action.

 

4.2

The Sellers shall indemnify the Buyer, the relevant Group Company and any other member of the Buyer’s Tax Group (as applicable) against all reasonable out of pocket costs properly incurred in connection with any action referred to in paragraph 4.1(b) or paragraph 4.1(c) (excluding, for the avoidance of doubt, any costs attributable to internal management or personnel time).

 

4.3

Subject to paragraph 4.4, the Buyer must ensure that no matter relating to the Demand referred to in paragraph 4.1 is settled, disposed of or otherwise compromised without the Sellers’ prior written consent, such consent not to be unreasonably withheld, conditioned or delayed.

 

4.4

If the Sellers do not:

 

  (a)

request the Buyer to take, or procure the taking of, any such action as referred to in paragraph 4.1(b); or


  (b)

give written notice to the Buyer that it wishes to exercise its right under paragraph 4.1(c),

within 20 Business Days of receipt by the Sellers of a notice under paragraph 4.1(a), then the Buyer shall be free to satisfy or settle the Demand on such terms as it may in its sole discretion think fit, if, in each case, the Buyer has given further notice to the Sellers stating its intention to exercise such entitlement, and the Sellers have not within 10 Business Days of the date that such further notice is received by the Sellers: (i) made such request as referred to in paragraph 4.4(a); or (ii) given written notice to the Buyer as referred to in paragraph 4.4(b).

 

4.5

If, due to a shorter time limit applying for a response to a Tax Authority in respect of a Demand, the Sellers and the Buyer are unable to comply with the timing requirements described in paragraph 4.4, then: (i) the parties shall use their good faith efforts to give effect to paragraph 4.4 so as to provide each of the parties with sufficient notice and opportunity to prepare a response to the Demand; and (ii), if reasonably requested by the Sellers and permitted under applicable law, the Buyer shall cause the relevant Group Company to apply for an extension to the date by which a response to the Demand is required.

 

5.

PAYMENT OF CLAIMS

 

5.1

Payments by the Sellers of any liability under this Schedule must be made in cleared and immediately available funds on the days specified in paragraph 5.2.

 

5.2

The days referred to in paragraph 5.1 are as follows:

 

  (a)

in the case of an Actual Tax Liability, the day which is two Business Days prior to the date on which the Tax is to be paid to the relevant Tax Authority, as notified by the Buyer to the Sellers at least five Business Days prior to such day or, if later, five Business Days after demand is made for payment by the Buyer;

 

  (b)

in the case of a Deemed Tax Liability, the later of five Business Days after demand is made for payment by or on behalf of the Buyer and the day on which the Tax which would have been payable but for the use or set-off would otherwise have been due and payable to the relevant Tax Authority; and

 

  (c)

in any other case, five Business Days after the date on which demand is made for payment by or on behalf of the Buyer.

 

6.

TAX RETURNS AND COMPUTATIONS

 

6.1

Notwithstanding any other provision in this paragraph 6, Anglo will, at its sole cost and expense, have the sole conduct and control of the preparation and lodgement, filing or submission (as applicable) of all consolidated income tax returns of the Seller Consolidated Group for all Tax periods (“Consolidated Return”).

 

6.2

Subject to a direction being given by the Sellers to the Buyer under paragraph 6.4, the Sellers or their duly authorised agents will (at the Sellers’ expense) be responsible for preparing, submitting to and / or agreeing with the relevant Tax Authorities all Other Tax Returns for accounting periods or other tax reporting periods ending on or before Completion (whether such Other Tax Returns are submitted before or after Completion).

 

6.3

For the purposes of paragraph 6.2:

 

  (a)

all Other Tax Returns must be submitted in draft form by the Sellers to the Buyer or its duly authorised agents for comment at a reasonable time, and in any event (i) in the case of an Other Tax Return relating to GST or payroll tax or royalties in relation to coal or coal seam gas, five Business Days, and (ii) in all other cases, 20 Business Days, before the last date on which the Other Tax Return may be filed with the relevant Tax Authority without incurring interest and penalties;


  (b)

if it wishes to do so, the Buyer or its duly authorised agent must comment (i) where such Other Tax Return relates to GST or payroll tax or royalties in relation to coal or coal seam gas, within three Business Days, and (ii) in all other cases, within 10 Business Days, of its receipt of any such Other Tax Returns from the Sellers (“Buyer Response Period”), and if the Sellers have not received any comments within the Buyer Response Period, the Buyer and its duly authorised agents will be deemed to have approved such draft documents;

 

  (c)

the Sellers must take into account all reasonable comments and suggestions made by the Buyer or its duly authorised agents that are received within the Buyer Response Period;

 

  (d)

if the Sellers and the Buyer do not agree on any item set out in an Other Tax Return, the Sellers and the Buyer must attempt to resolve the dispute as soon as practicable, and in the absence of reaching an agreement paragraph 6.10 will apply;

 

  (e)

the Sellers and the Buyer must each afford (or procure that there is afforded) to the other or their duly authorised agents, information and assistance which may reasonably be required to prepare, submit and agree all outstanding Other Tax Returns relating to the Group Companies; and

 

  (f)

the Sellers and the Buyer must as soon as practicable deliver to each other copies of all correspondence sent to or received from any Tax Authority relating to the Group Companies.

 

6.4

Notwithstanding paragraphs 6.2 and 6.3, the Sellers may in their discretion direct the Buyer in writing to prepare, submit to and / or agree with the relevant Tax Authorities (at the Sellers’ expense) any Other Tax Return for an accounting period or other tax reporting period of a Group Company ending on or before Completion, in which case paragraph 6.7(b) will apply.

 

6.5

The Buyer shall be responsible for preparing, submitting to and / or agreeing with the relevant Tax Authorities all Other Tax Returns for any Straddle Period, subject to paragraph 6.7.

 

6.6

The Buyer shall procure that the Group Companies shall cause the Other Tax Returns mentioned in paragraphs 6.2, 6.4 and 6.5 (as applicable) to be signed and submitted to the appropriate Tax Authority on a timely basis and only with such amendments as are incorporated in accordance with paragraphs 6.3 and 6.7 (as applicable).

 

6.7

The provisions of paragraph 6.3 will apply in respect of:

 

  (a)

any Other Tax Return for a Straddle Period as if the word “Seller” reads “Buyer” and the word “Buyer” reads “Seller”, but the Sellers will only have a right to comment on any matter, or receive copies of correspondence, to the extent they are reasonably expected to be relevant to a liability of the Sellers under this Schedule or under the Tax Warranties; and

 

  (b)

any Other Tax Return in respect of which the Sellers have given a direction to the Buyer under paragraph 6.4 as if the word “Seller” reads “Buyer” and the word “Buyer” reads “Seller”, but the Buyer must incorporate all comments and suggestions made by the Sellers or their duly authorised agents that are provided in accordance with paragraph 6.3(b).

 

6.8

If, due to a shorter time limit applying in relation to the filing of an Other Tax Return, the Sellers and the Buyer are unable to comply with the timing requirements described in this paragraph 6, then: (i) the parties shall use their good faith efforts to give effect to this paragraph 6 so as to provide each of the parties with sufficient notice and opportunity for review and comment with respect to such Other Tax Return; and (ii) if reasonably requested by the Sellers and permitted under applicable law, the Buyer shall cause the relevant Group Company to apply for an extension of the filing date of such Other Tax Return.


6.9

For the avoidance of doubt where any matter relating to Tax gives rise to a Demand to which the provisions of paragraph 4 apply, the provisions of paragraph 4 will in the event of a conflict take precedence over the provisions of this paragraph 6.

 

6.10

If the Buyer and the Sellers have not resolved a dispute under this paragraph 6 in respect of an Other Tax Return within 10 Business Days after the dispute arises, either the Buyer or the Sellers may refer the matter to an Independent Tax Expert in accordance with this paragraph 6.10 and the following provisions will apply:

 

  (a)

the Independent Tax Expert must be agreed by the Buyer and the Sellers, but if the Buyer and the Sellers cannot agree within five Business Days after either the Buyer or the Sellers requests such an appointment, then, either the Buyer or the Sellers may request that the Resolution Institute nominates the Independent Tax Expert in accordance with the Resolution Institute’s expert determination rules;

 

  (b)

if the Buyer or the Sellers requests that the Resolution Institute nominates the Independent Tax Expert, the Buyer and the Sellers must comply with all requirements of the Resolution Institute for the provision of that nomination, including, if applicable, providing the Resolution Institute with:

 

  (i)

a copy of relevant provisions of this Deed;

 

  (ii)

a description of the disputed matters; and

 

  (iii)

the approximate value of, and the technical areas involved in, the disputed matters;

 

  (c)

if the Resolution Institute nominates a list of persons to be the Independent Tax Expert rather than one particular person, the first person named on that list, who accepts the appointment, will be the Independent Tax Expert;

 

  (d)

the disputed matters must be submitted to the Independent Tax Expert to settle with the relevant draft Other Tax Return and an extract of the relevant provisions of this Deed;

 

  (e)

the Buyer and the Sellers must instruct the Independent Tax Expert to:

 

  (i)

finish its determination of the disputed matters as soon as practicable; and

 

  (ii)

deliver to the Buyer and the Sellers a report that states, on the basis of the Independent Tax Expert’s determination, its opinion as to:

 

  (A)

the disputed matters, including the reasons for the Independent Tax Expert’s determination; and

 

  (B)

the allocation of the Independent Tax Expert’s costs;

 

  (f)

the Buyer and the Sellers must promptly supply the Independent Tax Expert with any information, assistance and cooperation requested in writing by the Independent Tax Expert in connection with its determination;

 

  (g)

all written correspondence between the Independent Tax Expert and the Sellers must be copied to the Buyer, and all written correspondence between the Independent Tax Expert and the Buyer must be copied to the Sellers;


  (h)

the Independent Tax Expert will act as an expert and not as an arbitrator and its written determination will be final and binding on the Buyer and the Sellers in the absence of manifest error; and

 

  (i)

the costs of:

 

  (i)

the Resolution Institute (if requested) in providing its nomination of the Independent Tax Expert; and

 

  (ii)

the Independent Tax Expert,

will be borne by the Sellers as to one half, and the Buyer as to one half unless, in respect of only the costs of the Independent Tax Expert, the Independent Tax Expert decides otherwise having regard to the relative position of the Buyer and the Sellers on the disputed matters.

 

7.

CORRESPONDING SAVINGS AND THIRD PARTY RECOVERY

 

7.1

If any Tax Liability which has resulted in a payment having been made by the Sellers under this Schedule or for breach of any of the Tax Warranties has given rise to a Relief which would not otherwise have arisen and has not been taken into account in calculating the liability of the Sellers under this Deed:

 

  (a)

the Buyer must procure that full details of the Relief are given to the Sellers as soon as reasonably practicable; and

 

  (b)

to the extent that a liability of a Group Company or the Buyer to make an actual payment of Tax (in respect of which the Sellers would not have been liable under this Schedule or under the Tax Warranties (ignoring paragraph 1 and paragraph 2 of Schedule 7)) is reduced as a result of the use or set-off of the Relief, the Buyer must pay to the Sellers on the date when the Buyer or relevant Group Company would have been under an obligation to make the reduced payment of Tax an amount equal to the lower of:

 

  (i)

the amount by which the liability is reduced, plus (in respect of a Relief which is a repayment of Tax) any interest or repayment supplement received in relation to the Relief; and

 

  (ii)

the amount of the payment previously made by the Sellers in respect of the Tax Liability giving rise to the Relief,

save that the amount referred to above shall first be applied to reduce or eliminate any payment then due from the Sellers to the Buyer under this Schedule or for breach of the Tax Warranties.

 

7.2

If the Sellers at any time:

 

  (a)

pay to the Buyer an amount under this Schedule or for breach of any of the Tax Warranties; or

 

  (b)

have agreed in writing that it is liable to pay such amount,

and the Buyer or any Group Company is or becomes entitled to recover from some other person (other than another member of the Buyer’s Tax Group) any sum in respect of the matter giving rise to the payment, the Buyer shall notify the Sellers in writing of the existence of the right to recover as soon as reasonably practicable and must take all reasonable steps to enforce such recovery from that other person.


7.3

If the Sellers have already paid the relevant amount (as described in paragraph 7.2(a)), the Buyer shall within five Business Days of such recovery, pay to the Sellers the lesser of:

 

  (a)

the sum so recovered by the Buyer or the relevant Group Company (as applicable) from the other person (including sums recovered in respect of costs and any interest or repayment supplement received in respect of the sum recovered); and

 

  (b)

the amount paid by the Sellers to the Buyer as referred to above.

 

7.4

If the Sellers have yet to pay the relevant amount (as described in paragraph 7.2(b)), the amount recovered (including sums recovered in respect of costs and any interest or repayment supplement received in respect of the sum recovered) will be set-off against any payment which the Sellers would otherwise be liable to make to the Buyer in respect of the matter giving rise to the payment.

 

8.

OVERPROVISIONS

 

8.1

If, on or before the fifth anniversary of Completion, it is determined that there is an Overprovision (and the Buyer shall, at the Sellers’ written request, provide the Sellers with such information and access to the Buyer’s personnel and advisors as the Sellers may reasonably require in order to determine whether there is an Overprovision):

 

  (a)

the amount of any Overprovision will first be set-off against any payment then due from the Sellers under this Schedule or for breach of the Tax Warranties;

 

  (b)

to the extent that there is an excess, a refund will be made to the Sellers of any previous payment or payments made by the Sellers under this Schedule or for breach of the Tax Warranties (and not previously refunded) up to the amount of that excess; and

 

  (c)

to the extent that the excess referred to in paragraph 8.1(b) is not exhausted under that paragraph, the remainder of that excess will be carried forward to offset any further payment that may become due from the Sellers under this Schedule or for breach of any of the Tax Warranties.

 

9.

TAX REFUNDS

 

9.1

If, on or before the fifth anniversary of Completion, the Buyer or any Group Company becomes aware that a Group Company is entitled to:

 

  (a)

a repayment of Tax which:

 

  (i)

arises in respect of a period ending on or before Completion;

 

  (ii)

is not reflected in the Completion Accounts; and

 

  (iii)

does not arise as a result of:

 

  (A)

a change in legislation (or a change in interpretation on the basis of case law), a change in the published practice of any Tax Authority, a change in generally accepted accounting principles or a change in the rates of Tax, in each case announced and taking effect after the date of this Deed;

 

  (B)

a voluntary act of the Buyer or the relevant Group Company after Completion (other than any administrative action required to obtain the repayment in question);


  (C)

any change after Completion of accounting policy, method or basis of a Group Company or the date to which a Group Company makes up its accounts; or

 

  (D)

the use of a Buyer’s Relief; or

 

  (b)

any interest or repayment supplement received in relation to a repayment of Tax falling with paragraph 9.1(a) above,

(in each case a “Tax Refund”), the Buyer shall notify the Sellers in writing of the existence of, and any other available details relating to, the entitlement to the Tax Refund as soon as reasonably practicable and must take all reasonable steps to obtain such Tax Refund. The Buyer shall procure that the relevant Group Company pays to the Sellers an amount equal to the Tax Refund within five Business Days of receiving it.

 

10.

ACCESS TO DOCUMENTS AND INFORMATION

 

10.1

The Buyer undertakes that it will procure that each Group Company preserves, and affords to the Sellers reasonable access to, all documents, records, correspondence, accounts and other information in respect of or relevant for the purpose of determining the liability of each Group Company to Tax until such time as the Sellers cease to have any liability or contingent liability under the terms of this Schedule or under the Tax Warranties (other than in circumstances where it would give rise to a waiver of legal professional privilege).

 

10.2

Anglo and Sellers undertake that they will preserve, and afford to the Buyer reasonable access to, all documents, records, correspondence, accounts and other information that it holds in respect of or relevant for the purpose of determining the liability of each Group Company to Tax until such time as the Buyer ceases to have any liability or contingent liability under the terms of this Deed (other than in circumstances where it would give rise to a waiver of legal professional privilege).


SCHEDULE 9

COMPLETION ACCOUNTS

 

1.

PREPARATION OF COMPLETION ACCOUNTS

 

1.1

The Buyer shall procure that a draft of the Completion Accounts (the “Draft Completion Accounts”) is prepared in accordance with paragraphs 4, 5 and 6 and delivered to Anglo within 50 Business Days following Completion.

 

1.2

To enable Anglo to review the Draft Completion Accounts, the Buyer shall keep up-to-date, and grant to Anglo and its Representatives reasonable access at reasonable times and on reasonable notice to, (i) the books and records of the Group held by the Group, and (ii) any other information of the Group which may reasonably be required to enable them to review the Draft Completion Accounts, including reasonable access to premises of the Group and the Mines. Anglo and its Representatives will have the right to take copies of any documents that they reasonably require and will be provided with such access to the relevant personnel of the Group as they reasonably require to enable them to review the Draft Completion Accounts. If an Objection Notice is served in accordance with paragraph 1.3, Anglo’s and its Representatives’ access and ability to take copies of documents under this paragraph 1.2 will be extended until the Completion Accounts are determined in accordance with this Schedule 9.

 

1.3

Anglo shall notify the Buyer within 50 Business Days after receiving the Draft Completion Accounts if it:

 

  (a)

accepts the Draft Completion Accounts for the purposes of this Deed; or

 

  (b)

does not accept the Draft Completion Accounts in which case Anglo will notify the Buyer of (i) the items in the Draft Completion Accounts which Anglo disputes; (ii) reasonable detail regarding the basis upon which Anglo disputes such items; and (iii) the adjustment and / or the replacement item that Anglo would propose (such matters in this sub-paragraph (b) together being the “Objection Notice”).

 

1.4

To enable the Buyer to review prepare the Draft Completion Accounts Anglo shall keep up-to-date, and grant to the Buyer and its Representatives reasonable access at reasonable times and on reasonable notice to, the books and records held by Anglo in respect of the Sellers or a Seller’s Affiliate and any other information of the Group held by Anglo or Anglo’s Affiliates which may reasonably be required to enable them to prepare the Draft Completion Accounts. The Buyer and its Representatives will have the right to take copies of any documents that they reasonably require and will be provided with such access to the relevant personnel of Anglo or Anglo’s Affiliates as they reasonably require to enable them to prepare the Draft Completion Accounts.

 

1.5

If Anglo is satisfied with the Draft Completion Accounts (either as originally submitted by the Buyer or after adjustments agreed between Anglo and the Buyer) or if Anglo fails to notify the Buyer through delivery of an Objection Notice within the 50-Business Day period referred to in paragraph 1.3, the Draft Completion Accounts (incorporating any agreed adjustments) will constitute the “Completion Accounts” for the purposes of this Deed and will be final and binding on Anglo, the Sellers and the Buyer.

 

2.

APPOINTMENT OF REPORTING ACCOUNTANTS

 

2.1

If Anglo provides an Objection Notice, the parties must attempt in good faith to reach agreement in respect of the Draft Completion Accounts (such agreed Draft Completion Accounts (as amended) will constitute the Completion Accounts) and, if they are unable to do so within 15 Business Days following receipt by the Buyer of Anglo’s Objection Notice, the matters detailed in the Objection Notice remaining in dispute at such time may be referred by either Anglo or the Buyer to:


  (a)

an individual of at least 10 years’ relevant experience at:

 

  (i)

an independent firm of internationally recognised chartered accountants; or

 

  (ii)

an independent boutique specialty firm with an active practice in the United Kingdom focused on post-merger and acquisition purchase price resolution,

where ‘independent’ means that such individual and firm has not provided:

 

  (iii)

audit advice or audit services in the last five years to Anglo, the Sellers, the Buyer Group or a Group Company; or

 

  (iv)

advice to Anglo, the Sellers, the Buyer Group or a Group Company in connection with the Transaction,

to be agreed upon by Anglo and the Buyer within five Business Days of a notice by one to the other requiring such agreement; or

 

  (b)

failing such agreement, such independent firm of internationally recognised chartered accountants nominated:

 

  (i)

by or on behalf of the President for the time being of the Institute of Chartered Accountants in England and Wales pursuant to a joint application of Anglo and the Buyer (and the Buyer and Anglo must cooperate and do all things necessary to promptly make such joint application); or

 

  (ii)

if a joint application is not made within five Business Days of a notice, by either Anglo or the Buyer to the other requiring a joint application to be made by the ICC International Centre for ADR in accordance with the Rules for Appointment of Experts and Neutrals of the International Chamber of Commerce (or any other appointing authority of similar repute which accepts unilateral applications to nominate Reporting Accountants) pursuant to an application by either the Buyer or Anglo,

(the “Reporting Accountants”).

 

2.2

If paragraph 2.1 applies, Anglo and the Buyer must provide such reasonable cooperation to promptly agree the terms of appointment for the Reporting Accountants, which will (unless otherwise agreed in writing between Anglo and the Buyer) be on the following basis:

 

  (a)

a joint appointment on behalf of both the Buyer and Anglo on the Reporting Accountants’ standard terms and conditions for such an appointment; and

 

  (b)

otherwise in accordance with the terms set out in this Schedule 9.

 

2.3

If the terms of engagement of the Reporting Accountants are not agreed within 10 Business Days following the identity of the Reporting Accountants being determined (or such longer period as Anglo and the Buyer may agree), the terms of appointment may be unilaterally approved by the appointing party, acting reasonably, and the party unilaterally approving the terms must ensure that the appointment is in accordance with paragraphs 2.2(a) to 2.2(b). Each party agrees that the other parties may sign and deliver, on that party’s behalf, any documents, including engagement letters, necessary to expedite the appointment of the Reporting Accountants.


2.4

The Reporting Accountants’ fees and expenses (including GST) will be borne equally between the Buyer and Anglo at the time the final determination is made in accordance with paragraph 3.2(j), except in the following cases:

 

  (a)

without prejudice to paragraph 2.4(b), if a party unilaterally appoints the Reporting Accountants pursuant to paragraph 2.3 but the appointment is not in accordance with paragraphs 2.2(a) to 2.2(b), such party must bear all of the Reporting Accountants’ fees and expenses (including GST) (provided any failure of the appointment to be in accordance paragraphs 2.2(a) to 2.2(b) will (subject to paragraph 3.2(h)) not undermine the final and binding nature of the Reporting Accountants’ findings pursuant to this Schedule 9); or

 

  (b)

if the Reporting Accountants, exercising their sole discretion, are of the opinion that a party has been disruptive to the process set out in this Schedule 9 or materially breached an express provision set out in this Schedule 9, the Reporting Accountants may determine that the disruptive party should be responsible for 75% of the Reporting Accountants’ fees and expenses (including GST) (and for the avoidance of doubt, the balance of the Reporting Accountants’ fees and expenses (including GST) must be borne by the Buyer where the disruptive party is Anglo or by Anglo where the disruptive party is the Buyer).

 

2.5

If the appointed Reporting Accountants become unwilling or incapable of acting or do not deliver their determination within the period required in paragraph 3.2(j):

 

  (a)

the Buyer and Anglo must use reasonable endeavours to agree the identity and terms of appointment of replacement Reporting Accountants in accordance with paragraphs 2.1 to 2.4; and

 

  (b)

paragraph 3 will apply in relation to each and any replacement Reporting Accountants as if they were the first Reporting Accountants appointed.

 

3.

REPORTING ACCOUNTANTS’ DETERMINATION PROCESS

 

3.1

Anglo and the Buyer must each co-operate in good faith with the Reporting Accountants and each grant the Reporting Accountants, if appointed, reasonable access, at reasonable times and on reasonable notice, to the books and records of the Group held by Anglo or its Affiliates (in the case of Anglo and to the extent held) or the Buyer Group (in the case of the Buyer) and any other information of the Group held by Anglo or its Affiliates (in the case of Anglo and to the extent held) or the Buyer Group (in the case of the Buyer) which may reasonably be required to enable them to determine the final Completion Accounts. The Reporting Accountants will have the right to take copies of any documents that they reasonably require and will be provided with such access to the relevant personnel of Anglo or its Affiliates (in the case of Anglo) or the Buyer Group (in the case of the Buyer) as they reasonably require to enable them to determine the final Completion Accounts.

 

3.2

Except to the extent that the Buyer and Anglo agree otherwise, the Reporting Accountants shall determine their own procedure, subject to the following:

 

  (a)

the Buyer and Anglo (or their respective accountants (on a party’s behalf)) shall promptly (and in any event within 20 Business Days following a relevant appointment) submit a written statement on the matters detailed in the Objection Notice which remain in dispute (together with relevant supporting documents) to the Reporting Accountants for determination (each parties’ written statement (together with relevant supporting documents) an “Objection Notice Written Statement”);


  (b)

on the earlier of (i) the Reporting Accountant’s receipt of both the Buyer’s Objection Notice Written Statement and Anglo’s Objection Notice Written Statement; and (ii) the expiry of the 20-Business Day period in paragraph 3.2(a), the Reporting Accountants will promptly deliver a copy of the Buyer’s Objection Notice Written Statement to Anglo and Anglo’s Objection Notice Written Statement to the Buyer (in each case to the extent received);

 

  (c)

following receipt from the Reporting Accountants of a party’s respective Objection Notice Written Statement, the Buyer and Anglo will have the opportunity to comment once only (but nothing in this sub-paragraph will prevent the parties from responding to any requests from the Reporting Accountants under paragraph 3.1) on the other’s Objection Notice Written Statement (to the extent such party submitted an Objection Notice Written Statement to the Reporting Accountant) by written comment delivered to the Reporting Accountants not later than 20 Business Days after the Objection Notice Written Statement was received from the Reporting Accountants;

 

  (d)

the Reporting Accountants will promptly deliver a copy of the Buyer’s comments on Anglo’s Objection Notice Written Statement to Anglo and Anglo’s comments on the Buyer’s Objection Notice Written Statement to the Buyer on the earlier of (i) the Reporting Accountant’s receipt of both the Buyer’s comments on Anglo’s Objection Notice Written Statement and Anglo’s comments on the Buyer’s Objection Notice Written Statement pursuant to paragraph 3.2(c); and (ii) the expiry of the 15-Business Day period referred to in paragraph 3.2(c);

 

  (e)

apart from procedural matters and / or as otherwise set out in this Deed, the Reporting Accountants shall determine only:

 

  (i)

whether any of the arguments for an alteration to the Draft Completion Accounts put forward in the Objection Notice Written Statements submitted under paragraph 3.2(a) is correct in whole or in part (unless such matters are agreed between the Buyer and Anglo); and

 

  (ii)

if so, what alterations should be made to the Draft Completion Accounts to correct the relevant inaccuracy in it;

 

  (f)

the Reporting Accountants will apply the accounting policies in paragraphs 5 and 6 of this Schedule 9 and the relevant definitions in Clause 1;

 

  (g)

the Reporting Accountants will not be entitled to determine the scope of their own jurisdiction;

 

  (h)

the Reporting Accountants will not be entitled to determine an amount that is higher than the highest value, or lower than the lowest value, in each case for any particular item in the Draft Completion Accounts or the Objection Notice, and subject thereto, in the parties’ respective Objection Notice Written Statements;

 

  (i)

the Reporting Accountants will act as experts (and not as arbitrators) in making their determination, and their determination of any matter falling within their jurisdiction will be final and binding on Anglo, the Sellers and the Buyer save for manifest error (when the relevant part of their determination will be void and the matter will be resubmitted to the Reporting Accountants by either party for correction as soon as reasonably practicable); and

 

  (j)

the Reporting Accountants will make their determination pursuant to paragraph 3.2(h) within 20 Business Days after the expiry of the 20-Business Day period referred to in paragraph 3.2(c) or as soon after as is reasonably possible, and such determination will be provided to Anglo and the Buyer and will (unless otherwise agreed by Anglo and the Buyer) include reasons for each relevant determination.


3.3

Any determination of the Reporting Accountants under paragraph 3.2(j) above will be deemed to be incorporated into the Draft Completion Accounts which, as adjusted by the alterations so determined by the Reporting Accountants (if any), will become the Completion Accounts and be final and binding on Anglo, the Sellers and the Buyer.

 

3.4

Nothing in this Schedule 9 will entitle a party or the Reporting Accountants access to any information or document which is protected by legal professional privilege or which has been prepared by the party or its accountants and other professional advisers with a view to assessing the merits of any claim or argument, but a party will not be entitled by reason of this paragraph 3.4 to refuse to supply such part or parts of documents as contain only the facts on which the relevant claim or argument is based.

 

3.5

Each party shall, and shall procure that its accountants and other advisers shall, and shall instruct the Reporting Accountants to, keep all accountants’ working papers or information and documents provided to them pursuant to this Schedule 9 confidential and shall not use them for any purpose except for disclosure or use in connection with the preparation or review of the Draft Completion Accounts, the proceedings of the Reporting Accountants or any other matter arising out of this Deed or in defending any claim or argument or alleged claim or argument relating to this Deed or its subject matter.

 

4.

FORM OF COMPLETION ACCOUNTS

The Completion Accounts will be presented substantially in the format set out in Schedule 10.

 

5.

ACCOUNTING POLICIES

The Completion Accounts will be prepared:

 

  (a)

in accordance with the specific accounting policies, principles, practices, rules, estimation techniques and procedures set out in paragraph 6 of this Schedule 9;

 

  (b)

subject to sub-paragraph (a) above, in accordance with the same accounting policies, principles, practices, rules, estimation techniques and procedures as were actually used in the preparation of the Pro forma Financial Information for the year ended on the Accounts Date (the “Reference Accounts”); and

 

  (c)

subject to sub-paragraphs (a) and (b) above, in accordance with the Accounting Standards in force for accounting periods ended on the Accounts Date.

For the avoidance of doubt, paragraph 5(a) shall take precedence over paragraphs 5(b) and 5(c), and paragraph 5(b) shall take precedence over paragraph 5(c).

 

6.

SPECIFIC POLICIES

 

6.1

Unless stated to the contrary in paragraphs 6.2 to 6.15 of this Schedule 9, the Completion Accounts will be prepared:

 

  (a)

by reference to the aggregation of (i) 100% of the general ledgers of the Group Companies (provided always that the general ledger of Moranbah Sales will be included on the basis of the proportional ownership of that entity by MNC); and (ii) the general ledger of MNC only insofar as constituting the MNC Assets, and in the case of each of (i) and (ii) drawn up as at the Effective Time. For the avoidance of doubt, Moranbah Sales and the relevant balances of the MNC Assets will be included in the Completion Accounts on the basis of the 88% proportional ownership held by MNC, provided always that any amounts owed between the Group Companies and the MNC Assets will be reconciled and (to the extent of the Group’s share of such balances) eliminated;


  (b)

to take into account information and events after the Effective Time that provide further evidence of conditions that existed at the Effective Time (in accordance with AASB 110 “Events after the Reporting Period”) up until the time the Buyer delivers the Draft Completion Accounts to Anglo pursuant to and in accordance with paragraph 1.1 of this Schedule 9 (the “Cut-Off Time”);

 

  (c)

on a going concern basis and to include no charge, provision, reserve, write-off, impairment or loss (whether against an asset or as a liability) to the extent arising as a consequence of the Transaction, or any change in management strategy, direction or priority or possible closure of any business (or part thereof) which results from the Transaction or which is implemented at the direction of the Buyer after the Effective Time;

 

  (d)

such that all assets and liabilities will be stated in US dollars. Amounts which are originally denominated in a currency other than US dollars will be translated into US dollars at the Exchange Rate applicable on the Completion Date; and

 

  (e)

such that no item will be included in the Completion Accounts more than once and no item will be excluded from (or included in) the Completion Accounts solely on the grounds of immateriality.

 

6.2

No liability, whether current or non-current, will be included in the Completion Accounts in respect of any Environmental Obligation or Joint Venture Liabilities, any matters which are the subject of refund obligations set out in clauses 19 and 20 of the SMC SPA, health and safety provisions, capital expenditure commitments, replacement costs, planning requirements, dilapidations, reappraisal of the value of fixed assets, compliance with laws and regulations, loss-making or onerous contract provisions (including any provisions for future losses or loss-making contracts or future costs, including for the avoidance of doubt in relation to the Grosvenor mine), contingent liabilities, off-balance sheet arrangements or commitments (including for these purposes, commitments in respect of land leases), general provisions, general reserves, general accruals, any liability or provision in respect of or as a result of separation from the Sellers’ Group of the Group Companies or the MNC Assets (including but not limited to the provision of alternative arrangements to those which the Group Companies or MNC Assets were party to as part of the Sellers’ Group), or any liability to be settled by the Sellers, or by any Seller’s Affiliate, after the Effective Time on behalf of the Group Companies or in respect of the MNC Assets at no cost to the Group Companies or the MNC Assets provided always that (other than in the case of Joint Venture Liabilities and any liability to be settled by the Sellers, or by any Seller’s Affiliate, after the Effective Time on behalf of the Group Companies or in respect of the MNC Assets at no cost to the Group Companies or the MNC Assets) this paragraph 6.2 will not operate to exclude payables or accruals for goods and services already received in respect of the foregoing but not paid for, in each case as at the Effective Time.

 

6.3

Except as required to the contrary by paragraphs 6.2 or 6.4 to 6.15 of this Schedule 9, the provisions, reserves, liabilities and accruals to be included in the Completion Accounts will neither be increased nor created compared to the amounts included in the Reference Accounts, except insofar as required to reflect a receipt or payment, reclassification to another line item within Cash, Debt or Working Capital or such other change in factual circumstances (as opposed to judgment) between the Accounts Date and the Effective Time.

 

6.4

Inventory (including coal inventory) will be included in Working Capital and will be calculated in accordance with paragraph 5(b) of this Schedule 9 (including with respect to the components of inventory, the capitalisation or allocation of costs to inventory (including waste removal costs) and inventory provisioning), provided always that in the absence of damage, provision (or write-off) may be made only against spares / stores / rotables inventory and no provision against (or write-off of) inventory will be included in the Completion Accounts (or write-off made) (i) if the inventory concerned has been used or sold before the Cut-Off Time, (ii) to the extent the inventory concerned is covered by insurance or has scrap value, or (iii) if an offsetting liability is already included elsewhere in the Completion Accounts in respect of such inventory.


6.5

Receivables provisions will be calculated in accordance with paragraph 5(b) of this Schedule 9, provided always that no provision will be included (or write-off made) to the extent (i) the receivable is owed by the Sellers or their Affiliates, (ii) the receivable balance has been received in cash or is the subject of an agreed payment plan by the Cut-Off Time, (iii) the receivable balance is covered by insurance, collateral or similar, (iv) an offsetting liability (such as deferred income) is included in the Completion Accounts in respect of such receivable, or (v) in respect of the sales tax element of the receivable.

 

6.6

The only assets and liabilities to be included in the Completion Accounts in respect of leases will be an asset in respect of prepayments and a liability in respect of accruals, in each case in Working Capital, in respect of amounts prepaid or amounts owing at the Effective Time in respect of the monthly or quarterly rental period concerned. For the avoidance of doubt, no account will be taken of AASB 16 in preparing the Completion Accounts.

 

6.7

The Completion Accounts will exclude any asset or liability in respect of any pension, post-retirement, superannuation or similar plans or obligations in existence at the date of this Deed (including medical arrangements, life insurance, other post-employment benefits, deferred compensation plans, arrangements or agreements) other than prepayments or accruals in respect of monthly or other periodical contributions paid in advance or payable in arrears solely in respect of defined contribution schemes.

 

6.8

An asset will be included in Cash of an amount of USD 12.3 million (twelve million, three hundred thousand USD) in respect of the future dividend stream from DBCTCo.

 

6.9

Australian Carbon Credit Units and “Surplus Safeguard Mechanism Credits” will be included as an asset in Cash at their mark-to-market value as at the Effective Time. For these purposes, “Surplus Safeguard Mechanism Credits” are those Safeguard Mechanism Credits earned by the Group Companies in respect of the period up to the Effective Time (irrespective of whether actually issued by then) which are in excess of those required to offset the Carbon Credit Liabilities of the Group Companies as at the Effective Time. No asset shall be included in the Completion Accounts in respect of Safeguard Mechanism Credits that are not Surplus Safeguard Mechanism Credits and no liability shall be included in the Completion Accounts in respect of Carbon Credit Liabilities. For the purpose of this paragraph 6.9:

 

  (a)

Australian Carbon Credit Unit” means a financial instrument issued by the Clean Energy Regulator in respect of eligible projects that result in a reduction of greenhouse gas emissions. Each Australian Carbon Credit Unit represents the avoidance or removal of one tonne of carbon dioxide equivalent greenhouse gas;

 

  (b)

Safeguard Mechanism Credit” means a unit issued (or to be issued) by the Clean Energy Regulator to facilities that have reduced emissions below the applicable baseline set by the Clean Energy Regulator. Each credit represents one tonne of carbon dioxide equivalent reduced below such baseline, or beyond the facility’s legal obligations. The Group earns Safeguard Mechanism Credits from the Clean Energy Regulator; and

 

  (c)

Carbon Credit Liabilities” means, if applicable, the amount owing or liability accrued up to the Effective Time with regard to Safeguard Mechanism Credits, comprising such unpaid (at the Effective Time) liability owing to the Clean Energy Regulator (if applicable) as set out in the most recent carbon credits liability statement for periods prior to the Effective Time and an estimate of such liability accrued (but unpaid at the Effective Time) from the date of such statement up to the Effective Time.


6.10

The Completion Accounts will only include liabilities with regards to the take-or-pay supply agreements to the extent such liabilities relate to a shortfall in the goods and services taken up to the Effective Time.

 

6.11

No receivable or liability will be included in the Completion Accounts in respect of the [***] or in respect of the [***].

 

6.12

No liability will be included in Cash, Debt or Working Capital in respect of receivables factored without recourse.

 

6.13

Royalty costs will be recognised on a straight-line basis over the quarterly period to which they relate, with the cost for the relevant quarter being based on the actual cost for that quarter (as opposed, for example, to the pro rata or estimated cost based on the previous quarter). A liability shall be included within Debt in respect of any historical underpayment of royalty costs unpaid and outstanding as at the Effective Time (calculated in accordance with the first sentence of this paragraph) to the extent such amounts have actually been demanded (and disregarding any demand initiated by the Buyer Group) by the Cut-Off Time and are actually due and payable.

 

6.14

The Completion Accounts will include in Debt any liabilities (and any assets) in respect of corporation or profit-based Taxes as at the Effective Time and will include in Working Capital any other liabilities (and assets) in respect of Taxes, which will be calculated, in each case, in accordance with applicable Tax legislation and as if the Effective Time were at the end of a tax reporting period, provided always that no deferred tax assets or deferred tax liabilities will be recognised in the Completion Accounts.

 

6.15

No amount shall be included in the Completion Accounts in respect of Refunded Financial Provisioning.


This Deed has been entered into on the date stated at the beginning of it.

 

EXECUTED and delivered as a DEED by ANGLO AMERICAN NETHERLANDS B.V.        
Acting by two directors:     

/s/ Joanne Wilson

    

/s/ Kurt Burrows

Signature of director      Signature of director

Joanne Wilson

    

Kurt Burrows

Name of director (print)      Name of director (print)

[Signature page to Share and Asset Purchase Agreement]


EXECUTED as a DEED by MORANBAH NORTH COAL PTY LTD in accordance with section 127(1) of the Corporations Act        

/s/ Carleigh Jane Andrews

    

/s/ Timothy Patrick O’Reilly

Signature of director      Signature of director / secretary

Carleigh Jane Andrews

    

Timothy Patrick O’Reilly

Name of director (print)      Name of director / secretary (print)

[Signature page to Share and Asset Purchase Agreement]


EXECUTED as a DEED by ANGLO AMERICAN STEELMAKING COAL ASSETS EASTERN AUSTRALIA LIMITED in accordance with section 127(1) of the Corporations Act        

/s/ Carleigh Jane Andrews

    

/s/ Timothy Patrick O’Reilly

Signature of director      Signature of director / secretary

Carleigh Jane Andrews

    

Timothy Patrick O’Reilly

Name of director (print)      Name of director / secretary (print)

[Signature page to Share and Asset Purchase Agreement]


EXECUTED as a DEED by ANGLO AMERICAN STEELMAKING COAL HOLDINGS LIMITED in accordance with section 127(1) of the Corporations Act        

/s/ Carleigh Jane Andrews

    

/s/ Timothy Patrick O’Reilly

Signature of director      Signature of director / secretary

Carleigh Jane Andrews

    

Timothy Patrick O’Reilly

Name of director (print)      Name of director / secretary (print)

[Signature page to Share and Asset Purchase Agreement]


EXECUTED and delivered as a DEED by ANGLO AMERICAN SERVICES (UK) LTD.        
Acting by a director:      In the presence of:

/s/ Joanne Wilson

    

/s/ Nicola Gillian Warms

Signature of director      Signature of witness

Joanne Wilson

    

Nicola Gillian Warms

Name of director (print)       Name of witness (print)
    

[***]

     Occupation of witness (print)
    

[***]

     Address of witness (print)
    

 

    

 

[Signature page to Share and Asset Purchase Agreement]


EXECUTED as a DEED by PEABODY MNG PTY LTD in accordance with section 127(1) of the Corporations Act        

/s/ Sean Kendall Allen

    

/s/ Michael James Carter

Signature of director      Signature of director / secretary

Sean Kendall Allen

    

Michael James Carter

Name of director (print)      Name of director / secretary (print)

[Signature page to Share and Asset Purchase Agreement]


EXECUTED and delivered as a DEED by PEABODY ENERGY CORPORATION
Acting by an authorised signatory:

/s/ Patrick J. Forkin III

Signature of authorised signatory

[***]

Title of authorised signatory

Patrick J. Forkin III

Name of authorised signatory (print)

[Signature page to Share and Asset Purchase Agreement]

Exhibit 2.3

CERTAIN INFORMATION HAS BEEN EXCLUDED FROM THIS EXHIBIT BECAUSE

IT IS NOT MATERIAL AND IS THE TYPE THAT THE REGISTRANT TREATS AS

PRIVATE OR CONFIDENTIAL. THE OMITTED PORTIONS OF THIS DOCUMENT

ARE INDICATED BY [***].

Option Deed

in respect of certain rights and interests relating to the Dawson Main, Dawson South, Dawson South Exploration and Theodore South Joint Ventures in Queensland, Australia

Peabody SMC Pty Ltd (“Peabody”)

Peabody Australia Holdco Pty Ltd (“Peabody Guarantor”)

PT Bukit Makmur Internasional (“Buyer”)

PT Delta Dunia Makmur Tbk (“Buyer Guarantor”)

 


Contents

 

1.   Definitions and Interpretation    4
2.   Grant of Call Option and Put Option    25
3.   Sale of the Shares    27
4.   Sale of the Dawson Carve-out Assets    27
5.   Consideration    28
6.   Allocation and Adjustment of the Consideration, Stamp Duty    30
7.   Foreign Resident Capital Gains Withholding    32
8.   Dawson JVA Waiver    33
9.   Conditions to Exercise of Call Option and Put Option    33
10.   Pre-Emption Rights    39
11.   Peabody’s obligations prior to SMC Completion    40
12.   Power of Sale    40
13.   SMC SPA Completion Accounts    42
14.   Obligations between SMC Completion and Completion    43
15.   Dawson Working Capital    45
16.   Material Adverse Change    45
17.   Transfer of Employment    46
18.   Completion    48
19.   Separation    49
20.   Post-Completion Obligations    51
21.   Wrong Pockets    53
22.   Assumed Contracts    53
23.   Guarantees    55
24.   Peabody’s Warranties and Undertakings    56
25.   Back to Back Warranty Claims and Tax Covenant Claims    57
26.   Peabody Guarantor’s Warranties and Undertakings    57
27.   Buyer’s Warranties and Undertakings    60
28.   Buyer Guarantor’s Warranties and Undertakings    63
29.   Buyer Indemnities    66
30.   Seller Indemnities    67
31.   Employees    67
32.   Tax Covenant    68
33.   Confidentiality and Announcements    68
34.   Termination    70
35.   GST    70
36.   Further Assurance    71
37.   Power of Attorney    71
38.   Entire Agreement and Remedies    72

 

i


39.   Post-Completion Effect of Agreement    72
40.   Waiver and Variation    72
41.   Invalidity    73
42.   Assignment    73
43.   Payments, Set-Off and Default Interest    73
44.   Transaction Communications    74
45.   Notices    74
46.   Costs    76
47.   Rights of Third Parties    76
48.   Counterparts    76
49.   Governing Law and Jurisdiction    77
50.   Process Agent    77
51.   Language    78
Schedule 1   
 

Particulars of the Company and the Subsidiaries

  
Schedule 2   
  Consideration Allocation   
Schedule 3   
  Completion Obligations   
Schedule 4   
  Peabody’s Warranties   
Schedule 5   
  Limitations on Peabody’s Liability   
Schedule 6   
  Back to Back Warranties   
Schedule 7   
  Tax Covenant   
Schedule 8   
  Mining Tenements   
Schedule 9   
Schedule 10   
  Property   
Schedule 11   
  Intellectual Property   
Schedule 12   
  Seller Guarantees   
Schedule 13   
  Assumed Contracts and Specific Contracts   
Schedule 14   
  Terminating Contracts   

 

ii


Schedule 15   
  Dawson JVA Asset Sale   
Schedule 16   
  Reporting Accountant Determination   
Schedule 17   
  Consultancy Services Agreement Principles   
Schedule 18   
  Secondment Agreement Principles   
Schedule 19   
  Separation Principles   
Schedule 20   
  Initial Put Option Commencement Date Extension   
Exhibit 1   
  Exercise Notices   
Exhibit 2   
  DEED OF ASSIGNMENT AND ASSUMPTION   

 

 

iii


THIS DEED is made on 25 November 2024.

BETWEEN

 

(1)

Peabody SMC Pty Ltd ACN 682 277 587 of Level 14, 31 Duncan Street, Fortitude Valley QLD 4006, Australia (“Peabody”)

 

(2)

Peabody Australia Holdco Pty Ltd ACN 154 820 130 of Level 14, 31 Duncan Street, Fortitude Valley QLD 4006, Australia (“Peabody Guarantor”)

 

(3)

PT Bukit Makmur Internasional of South Quarter Tower A, Penthouse Floor Unit A-1, Jl. RA. Kartini Kav. 8, Cilandak Barat, Jakarta, 12430 – Indonesia (“Buyer”)

 

(4)

PT Delta Dunia Makmur Tbk of South Quarter Tower A, Penthouse Floor, Jl. R. A Kartini Kav. 8, Cilandak Barat, Jakarta 12430 – Indonesia (“Buyer Guarantor”)

RECITALS

 

(1)

On or about the date of this Deed, Peabody entered into the SMC SPA, pursuant to which it may indirectly acquire, among other assets, the Shares and the Dawson Assets.

 

(2)

On or about the date of this Deed, the Buyer entered into the Loan Note Deed pursuant to which it agrees to subscribe for Loan Notes to fund the indirect acquisition of the Shares and the Dawson Assets by Peabody under the SMC SPA.

 

(3)

On the exercise of the Put Option or Call Option subject to the terms of this Deed, Peabody wishes to sell, and the Buyer wishes to acquire, the Dawson Sale Interest.

 

(4)

The Buyer Guarantor is party to this Deed for the purpose of entering into the guarantee and indemnity set out in Clause 28.

 

(5)

The Peabody Guarantor is party to this Deed for the purpose of entering into the guarantee and indemnity set out in Clause 26.

 

(6)

The SMC SPA was entered into following the formal, broad and competitive auction process concerning the steelmaking coal portfolio of the Anglo American Group in which Peabody was the successful bidder, acting in concert with the Buyer, in reliance on, amongst other things, the arrangements with the Buyer set out in this Deed and the Loan Note Deed.

IT IS AGREED THAT

 

1.

Definitions and Interpretation

 

1.1

In this Deed, unless the context otherwise requires or amended by Clause 10.2:

1997 Tax Act” means the Income Tax Assessment Act 1997 (Cth);

AAAL” means Anglo American Australia Limited (ACN 004 892 371);

AASCA” means Anglo American Steelmaking Coal Assets Pty Ltd (ACN 081 022 246);

AASCAEAL” means Anglo American Steelmaking Coal Assets Eastern Australia Limited (ACN 009 727 851);

AASM” means Anglo American Steelmaking Coal Pty Ltd (ACN 076 059 679);

AASM Holdings” means Anglo American Steelmaking Coal Holdings Limited (ACN 079 017 940);

 

Page 4


Accounting Standards” means:

 

  (a)

the Corporations Act’s requirements for the preparation and contents of financial reports; and

 

  (b)

the accounting standards approved under the Corporations Act, being the Australian Accounting Standards and any authoritative interpretations issued by the Australian Accounting Standards Board;

Accounts” means, in respect of AAAL, the audited consolidated balance sheet as at the Accounts Date and the audited consolidated profit and loss statements and statement of cash flows for the year ending on the Accounts Date, together with the notes to and the reports of the directors in respect of those accounts, as included at document 02.02.05.03 of the Data Room;

Accounts Date” means 31 December 2023;

Accrued Leave Benefits” means all accrued annual leave (including leave loading where applicable), long service leave and personal (sick and carer’s) leave entitlements of each Relevant Employee or Transferring Employee as the context requires;

Affiliate” means, in respect of a legal entity, any other legal entity which controls, is controlled by, or is under common control with that legal entity. An entity is deemed to “control” another if it:

 

  (a)

owns directly or indirectly more than 50% of the shares entitled to vote at a general election of directors of such other entity;

 

  (b)

has the right to appoint the majority of the board of directors (or equivalent body) of a legal entity; or

 

  (c)

has the majority voting interest in such other entity if such entity does not have either shares or directors,

and in all cases unless stated otherwise excluding each Group Company, but on and from a Completion, the term “Affiliates” in respect of the Buyer will include the Group Companies that have been directly or indirectly acquired by the Buyer as a result of that Completion;

Aggregate SMC Cap” means the sum of the ‘Consideration’ and the ‘Royalty’, each as defined in the SMC SPA, each to the extent actually received by the SMC Seller as at the date an SMC SPA Claim is made against the SMC Seller;

Agreed Form” means, in relation to a document, the form of that document agreed in writing by or on behalf of the Buyer and Peabody as being in agreed form;

Alternative Recovery Claim” has the meaning given in paragraph 8.2 of Schedule 5;

Anglo American Group” means Anglo American plc. and its subsidiaries;

Anglo Dawson” means Anglo Coal (Dawson) Limited, further details of which are set out in Schedule 1;

Anglo Dawson Holdings” means Anglo Coal (Dawson) Holdings Pty Ltd, further details of which are set out in Schedule 1;

Anglo Dawson Holdings Completion” means completion of the sale and purchase of the Anglo Dawson Holdings Shares (and associated relevant Dawson-Carve Out Assets) only, in accordance with Clause 18;

Anglo Dawson Holdings Shares” means the entire issued share capital of Anglo Dawson Holdings, being 292,001,000 fully paid ordinary shares as at the date of this Deed;

 

Page 5


Anglo Dawson South” means Anglo Coal (Dawson South) Pty Ltd, further details of which are set out in Schedule 1;

Anglo Dawson South Shares” means the entire issued share capital of Anglo Dawson South, being 50,000 fully paid ordinary shares as at the date of this Deed;

Anglo Theodore South” means Anglo Coal (Theodore South) Pty Ltd, further details of which are set out in Schedule 1;

Anglo Theodore South Shares” means the entire issued share capital of Anglo Theodore South, being 1 fully paid ordinary share as at the date of this Deed;

Anticorruption Laws” means all laws, regulations, or orders relating to bribery, or corruption (governmental or commercial), including laws that prohibit the corrupt payment, offer, promise, or authorisation of the payment or transfer of anything of value (including gifts or entertainment), directly or indirectly, to any foreign government official, foreign government employee, person or commercial entity, to obtain a business advantage, or the offer, promise, or gift of, or the request for, agreement to receive or receipt of a financial or other advantage to induce or reward the improper performance of a relevant function or activity; such as, without limitation, the U.S. Foreign Corrupt Practices Act of 1977, as amended from time to time, the UK Bribery Act of 2010, the Criminal Code 1995 (Cth), the Criminal Code 1899 (Qld), the National Anti-Corruption Commission Act 2022 (Cth), the Crimes Legislation Amendment (Combatting Foreign Bribery) Act 2024 (Cth), and any laws enacted to implement the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions signed in Paris on 17 December 1997, which entered into force on 15 February 1999, and the Convention’s Commentaries;

Anti-trust Authority” means any Authority that has jurisdiction over Anti-trust Laws;

Anti-trust Laws” means all Laws governing the conduct of any person in relation to restrictive or other anti-competitive agreements or practices (including cartels, pricing, resale pricing, market sharing, bid rigging, terms of trading, purchase or supply and joint ventures), abuse of dominant or monopoly market positions (whether held individually or collectively) and the control of acquisitions or mergers;

ASIC” means the Australian Securities and Investments Commission;

Assumed Contracts” means the agreements, arrangements, understandings and orders entered into, made or accepted by or on behalf of a Seller (on its own or with others) that are not fully performed, in respect of which the relevant Seller has outstanding obligations or retains any rights at the Completion Date, as agreed between Peabody and the Buyer in the Separation Plan. An indicative list, as at the date of this Deed, is set out in Part 1 of Schedule 13;

Assumed Liabilities” means all of Peabody’s Liabilities and obligations in connection with the Dawson Sale Interest and whether incurred, accrued, arising or connected to the period before, on or after Completion, including all Joint Venture Liabilities and all Environmental Obligations (excluding any Liabilities arising from Peabody’s breach of any Transaction Document);

Authority” means any competent governmental, administrative, supervisory, regulatory, judicial, determinative, disciplinary, enforcement or tax raising body, authority, agency, board, department, court or tribunal of any jurisdiction and whether supranational, national, regional or local;

Back to Back Business Warranties” means the Back to Back Warranties, other than the Back to Back Fundamental Warranties and the Back to Back Tax Warranties;

Back to Back Fundamental Warranties” means the Back to Back Warranties set out in paragraphs 2, 3, 5 and 13.3 of Schedule 6;

 

Page 6


Back to Back Tax Warranties” means the Back to Back Warranties set out in paragraph 21 of Schedule 6;

Back to Back Warranties” means the warranties set out in Schedule 6;

Back to Back Warranty Claim” means a Claim in respect of the Back to Back Warranties;

Bank Guarantee Beneficiary” means each beneficiary of a Bank Guarantee (including each beneficiary specified in the table in Part 1 of Schedule 12);

Bank Guarantees” means any (including replacement or new) guarantees, bonds, credit support arrangements, indemnities and letters of comfort given by or on behalf of the SMC Seller, a Seller or given by a financial institution on behalf of any Group Company, including those specified in Part 1 of Schedule 12;

Business Day”:

 

  (a)

in the period up to and including SMC Completion, has the meaning given to the term “Business Day” in the SMC SPA; and

 

  (b)

otherwise, means any day other than a Saturday, Sunday or public holiday in Brisbane, Queensland, Australia and Jakarta, Indonesia;

Buyer’s Bank Account” means:

 

On behalf of:    [***]
Bank:    [***]
Account number:    [***]
Swift code:    [***]

or such other bank account as notified by the Buyer to Peabody in writing from time to time;

Buyer Deal Team Members” means [***], [***] and [***];

Buyer Financing Letters” means the Commitment Letter and each Confirmation of Available Facility Letter;

Buyer Group” means the Buyer and each of its Affiliates, in each case from time to time and including the relevant Group Companies from each Completion;

Call Option” has the meaning given in Clause 2.2;

Call Option Exercise Period” means the period commencing on the Call Option Exercise Period Commencement Date and ending on:

 

  (a)

where Clause 8.4(b)(i) applies, the date on which Peabody exercises its Put Option in respect of the Dawson Joint Venture Assets; and

 

  (b)

otherwise, the date that is 15 Business Days after the Call Option Exercise Period Commencement Date;

Call Option Exercise Period Commencement Date” means the date as determined pursuant to Clause 9.1;

Changed Holder Review Application” means in respect of each FPS Environmental Authority, an application to the Scheme Manager under section 33 of the Financial Provisioning Act to make a ‘changed holder review allocation’ (as defined in the Financial Provisioning Act) in respect of the proposed ‘changed holder event’ (as defined in the Financial Provisioning Act) contemplated by the sale of the Dawson Sale Interest to the Buyer;

 

 

Page 7


Changed Holder Review Decision” means, in respect of each FPS Environmental Authority, a ‘changed holder review decision’ (as defined in the Financial Provisioning Act) made by the Scheme Manager in response to the Changed Holder Review Application in respect of the FPS Environmental Authority;

Claim” means any claim, demand, legal process or cause of action by a party to this Deed whether in contract, tort, at common law or in equity, under statute, or otherwise, including any Tax Covenant Claim;

Clear Exit Payments” means any payments to be made by a Company or a Subsidiary to permit that Company or Subsidiary to leave the Seller Consolidated Group on Completion clear of any Group Liability in accordance with section 721-35 of the 1997 Tax Act calculated or estimated in accordance with the principles set out in the Seller Tax Sharing Agreement;

Clearance Certificate” means a certificate issued by the Commissioner under subsection 14-220(1) of Schedule 1 to the TAA;

Coal Sales Agreement” means all agreements, arrangements, understandings and orders entered into, made or accepted by or on behalf of Anglo Dawson (including through Dawson Sales) in relation to the sale of ‘Coal’ (as that term is defined in the Dawson JVA) that are not fully performed, in respect of which Anglo Dawson (including through Dawson Sales) has outstanding obligations or in respect of which Anglo Dawson (including through Dawson Sales) retains any rights at Completion, and/or otherwise as agreed by the parties under the Separation Plan;

Commissioner” means the Australian Commissioner of Taxation;

Commitment Letter” means the commitment letter from Deutsche Bank AG, Singapore Branch (“DB”) to Pt Bukit Makmur Mandiri Utama, dated on or about the date of this Deed, as amended, supplemented or replaced in compliance with this Deed, pursuant to which DB has agreed, subject only to the Financing Conditions set forth therein, to provide or cause to be provided the bank guarantee facility referred to therein in order to ensure that the Buyer Group is able to meet its obligations to replace certain existing bank guarantees of the Group that Peabody is required to replace under the terms of the SMC SPA on SMC Completion in accordance with the Transaction Documents;

Companies” means each of Anglo Dawson Holdings, Anglo Dawson South and Anglo Theodore South;

Completion” means any of a Dawson Complex Completion, an Ex Dawson Main Completion, an Anglo Dawson Holdings Completion and/or a Dawson Joint Venture Assets Completion, as applicable;

Completion Date” means the date on which a Completion takes place;

Conditions” means the conditions set out in Clause 9.1, and includes the conditions set out in Clause 4 of Schedule 15 if Schedule 15 applies in accordance with Clause 8.4(b);

Confidential Information” has the meaning given in Clause 33.1;

Confirmation of Available Facility Letters” means each of the letters addressed to Pt Bukit Makmur Mandiri Utama from PT Bank Negara Indonesia (Persero) TBK (“BNI”) dated on or about the date of this Deed, as amended, supplemented or replaced in compliance with this Deed, pursuant to which BNI as lender and agent has confirmed, subject only to the Financing Conditions set forth therein, to provide or cause to be provided the facility referred to therein for the purposes of financing in part the transactions contemplated by the Transaction Documents;

 

Page 8


Connected Persons” means, in respect of a person, its directors, officers and employees;

Consideration” means:

 

  (a)

in respect of the Dawson Joint Venture Assets, where the Call Option or the Put Option is exercised in accordance with Clause 8.4(b), the higher of:

 

  (i)

the Principal Outstanding under the Relevant Loan Notes (as such terms are defined under the Loan Note Deed); and

 

  (ii)

the Fair Market Value,

as at the date of exercise; or

 

  (b)

in any other circumstances, the SMC Consideration.

Consolidated Group” means a multiple entry consolidated group formed in accordance with Part 3-90, as modified by Division 719, of the 1997 Tax Act;

Consolidated Subsidiaries” means each Subsidiary except for Dawson Sales Pty Ltd and Dawson South Sales Pty Ltd; in each case, further details of which are set out in Schedule 1;

Consultancy Services Agreements” means the agreements to be entered into between the relevant Peabody Group members and the Buyer (or a Buyer Group member) in accordance with Clause 14.1 and the principles set out in Schedule 17;

Corporations Act” means the Corporations Act 2001 (Cth) as amended from time to time;

D&O Insurance” has the meaning given in Clause 20.3;

Data Room” means the electronic data room hosted by Ansarada with the name “Project Oryx” as at 5:00pm AEST on 22 November 2024, an index of which is in Agreed Form;

Dawson Assets” means the Group and the Dawson Carve-out Assets;

Dawson Carve-out Assets” means:

 

  (a)

the Assumed Contracts; and

 

  (b)

any other assets identified as such by agreement between Peabody and the Buyer in the Separation Plan;

Dawson Cash Call Amount” means the amount of any JV Call properly made under any of the Joint Venture Agreements;

Dawson Complex Completion” means completion of the sale and purchase of the Dawson Sale Interest, including the Anglo Dawson Holdings Shares (and associated relevant Dawson-Carve Out Assets), in accordance with Clause 18;

Dawson Conduct Liabilities” means all Liabilities incurred by a Peabody Group member in connection with Peabody carrying out its obligations under Clause 14.1 or the Buyer failing to comply with its obligations under Clause 14.1 (but excludes, for the avoidance of doubt, Liabilities incurred by a Peabody Group member as a result of gross negligence or wilful misconduct by a Peabody Group member (other than the Group Companies) or the Representative of a Peabody Group member);

Dawson Deferred Consideration” means $100,000,000 (one hundred million dollars) as apportioned in Schedule 2;

Dawson Deposit” means $9,207,955.34 (nine million, two hundred and seven thousand, nine hundred and fifty-five dollars and thirty-four cents) as apportioned in Schedule 2;

 

Page 9


Dawson Joint Venture” means the joint venture constituted by the Dawson JVA;

Dawson Joint Venture Assets” has the meaning given in Schedule 15;

Dawson Joint Venture Assets Completion” means, where Schedule 15 applies in accordance with Clause 8.4(b), completion of the sale and purchase of the Dawson Joint Venture Assets (and associated relevant Dawson-Carve Out Assets) only, in accordance with Clause 18;

Dawson JVA” means [***];

Dawson JVA Waiver” means:

 

  (a)

[***]

 

  (b)

[***];

Dawson Manager” means Anglo Coal (Dawson Management) Pty Ltd (further details of which are set out in Schedule 1);

Dawson Participating Interest” means the 51% undivided legal and beneficial right, title, and interest held by Anglo Dawson in the Dawson Joint Venture;

Dawson Sale Interest” means (as the context requires, in respect of a Completion):

 

  (a)

the Shares;

 

  (b)

the Dawson Carve-out Assets; and

 

  (c)

if Schedule 15 applies in accordance with Clause 8.4(b), the Dawson Joint Venture Assets;

Dawson South Exploration Joint Venture” means the joint venture constituted by the Dawson South Exploration JVA;

Dawson South Exploration JVA” means [***];

Dawson South Exploration Participating Interest” means the 51% undivided legal and beneficial right, title, and interest held by Anglo Dawson South in the Dawson South Exploration Joint Venture;

Dawson South Joint Venture” means the joint venture constituted by the Dawson South JVA;

Dawson South JVA” means [***];

Dawson South Manager” means Anglo Coal (Dawson South Management) Pty Ltd (further details of which are set out in Schedule 1);

Dawson South Participating Interest” means the 51% undivided legal and beneficial right, title, and interest held by Anglo Dawson South in the Dawson South Joint Venture;

Dawson Upfront Consideration” means $355,000,000 (three hundred and fifty-five million dollars) less the Dawson Deposit;

 

Page 10


Dawson Working Capital Adjustment” means the amount (which may be a positive or negative number) equal to the Dawson Working Capital minus the Dawson Working Capital Target;

Dawson Working Capital” means the “Working Capital” (as defined in the SMC SPA), but only to the extent it relates to the Dawson Sale Interest;

Dawson Working Capital Target” means an amount (in AUD, but converted into US dollars at the Exchange Rate applicable on the SMC Completion Date) agreed between Peabody and the Buyer in accordance with Clause 15, or otherwise determined in accordance with Clause 15, to be calculated on the same basis as the “Working Capital Target” under the SMC SPA has been calculated;

Deed of Cross Guarantee” means a deed executed pursuant to ASIC Class Order 98/1418 or ASIC Corporations (Wholly-owned Companies) Instrument 2016/785 to which a Group Company is party and to which a Peabody Group member is the ‘Trustee’;

Disclosed” means disclosed with sufficient detail to enable a reasonable buyer to identify the nature and scope of the matter disclosed;

Duty” means any stamp, transaction or registration duty or similar charge imposed by a Tax Authority;

Employee” means any employee of a Group Company and any Transferring Employee;

Encumbrance” means any interest or equity of any person (including any right to acquire, option or right of pre-emption), any mortgage, charge, pledge, lien, assignment, hypothecation, security interest (including any created by Law), title retention, voting agreement or any other security agreement or arrangement, but excluding any Permitted Encumbrance;

End of Month Date” means the last Business Day of the relevant month;

Environment” means any or all of the following media (alone or in combination): air (including the air within buildings or other natural or man-made structures whether above or below ground); water (including water under or within land or in drains or sewers); and soil and land (including buildings) and any ecological systems and living organisms supported by these media (including, for the avoidance of doubt, man);

Environmental Authorisation” means any authorisation, approval, permit, licence, consent, registration or authority required by any Environmental Law;

Environmental Law” means a Law, regulating or otherwise relating to the Environment, including land use, planning, pollution of the atmosphere, water or land waste, the storage and handling of chemicals, protected flora and fauna, Hazardous Substances, or any other aspect of protection of the Environment or associated administration, notices, investigations or prosecutions;

Environmental Obligation” means an obligation of an Indemnified Party arising out of, relating to, associated with, or in respect of:

 

  (a)

the abandonment, reclamation, remediation, decommissioning, rehabilitation, restoration or contamination of or in relation to;

 

  (b)

clean-up, remediation, removal, response or other actions or damages, contribution, indemnification, cost recovery, compensation, or injunctive relief pursuant to any claim, demand, legal proceeding or cause of action based on Environmental Law in relation to; or

 

Page 11


  (c)

any notice, order, direction or requirement given under an Environmental Law (including in relation to the provision of security, financial assurance or other financial support) in relation to,

in each case, the Mining Tenements or the Properties, which has arisen or accrued before or on Completion and remains unsatisfied as at Completion or arises or accrues after Completion;

Ex Dawson Main Completion” means completion of the sale and purchase of the Dawson Sale Interest, excluding: (i) the Anglo Dawson Holdings Shares (and associated relevant Dawson-Carve Out Assets); and (ii) the Dawson Joint Venture Assets (and associated relevant Dawson-Carve Out Assets), in accordance with Clause 18;

Exchange Rate” means with respect to a particular currency for a particular day:

 

  (a)

to convert into US dollars, the mid-point spot rate of exchange for that currency into US dollars at the rate quoted by Bloomberg as at 4:00pm (London time) two Business Days before the relevant day;

 

  (b)

to convert into AU dollars, the mid-point spot rate of exchange for that currency into AU dollars at the rate quoted by Bloomberg as at 4:00pm (London time) two Business Days before the relevant day; or

 

  (c)

to convert into any currency other than AU dollars or US dollars, the mid-point spot rate of exchange for that currency into the relevant currency at the rate quoted by Bloomberg as at 4:00pm (London time) two Business Days before the relevant day;

Excluded Claim” means a Claim in respect of Clauses 23 or 30;

“Exercise Notice” means:

 

  (a)

in respect of Peabody, a notice to exercise the Put Option with respect to all or certain constituent parts of the Dawson Sale Interest (substantially in the form set out in Part 2 in Exhibit 1); or

 

  (b)

in respect of the Buyer, a notice to exercise the Call Option with respect to all or certain constituent parts of the Dawson Sale Interest (substantially in the form set out in Part 1 in Exhibit 1);

Fair Market Value” means the amount determined in accordance with Clause 5.7;

FATA” means the Foreign Acquisitions and Takeovers Act 1975 (Cth);

Federal Treasurer” means the Treasurer of the Commonwealth of Australia;

Financial Provisioning” means any security (including any bank guarantee), financial assurance, contribution and / or surety required by the State, the Scheme Manager and / or any other Authority in respect of either or both a Mining Tenement and / or an Environmental Authorisation (including in connection with the sale of the Dawson Sale Interest to the Buyer under this Deed or a change in control in respect of the Mining Tenements as contemplated by this Deed) under the Environmental Protection Act 1994 (Qld) and the Resources Acts;

Financial Provisioning Act” means the Mineral and Energy Resources (Financial Provisioning) Act 2018 (Qld);

Financing” means the financing incurred or intended to be incurred pursuant to the Buyer Financing Letters;

Financing Conditions” means the conditions precedent to obtaining the Financing set forth in the Buyer Financing Letters;

 

Page 12


Financing Sources” means the entities that have committed to provide any portion of the Financing or have otherwise entered into any commitment letter, engagement letter, credit agreement, underwriting agreement, purchase agreement, indenture or other agreement in connection with the Financing (other than a Buyer Group member), including the agents, arrangers and lenders that are parties to the Buyer Financing Letters (including the agents, arrangers and lenders party to any joinder agreements, or any similar agreement pursuant to which the Buyer Financing Letters are modified, supplemented, extended or replaced to add agents, arrangers, lenders or similar entities as parties thereto who had not executed the Buyer Financing Letters as the date of this Deed, entered into in connection therewith), together with their respective Representatives, trustees, shareholders, members and controlling persons and the respective successors and assigns of any of the foregoing;

FPS Environmental Authorities” means each Environmental Authorisation in respect of which Financial Provisioning has been provided under the Financial Provisioning Act;

General Security Deed” has the meaning given in the Loan Note Deed;

Group” means the Companies and each Subsidiary;

Group Company” means any Group member;

Group Information Schedule” means Schedule 1;

Group Liability” has the meaning given to that term in section 721-10 of the 1997 Tax Act, having regard to the table set out in subsection 721-10(2) of the 1997 Tax Act;

GST” has the meaning given in the GST Act or any other goods and services tax, value added tax or similar tax, whether chargeable in Australia or elsewhere;

GST Act” means the A New Tax System (Goods and Services Tax) Act 1999 (Cth);

GST Amount” has the meaning given in Clause 35.3(a);

GST exclusive consideration” has the meaning given in Clause 35.3(a);

GST Group” has the meaning given in the GST Act;

Guaranteed Obligations” means all the Buyer’s obligations under or in respect of this Deed and the Loan Note Deed;

Hazardous Substance” means any substance which is, or may be, hazardous, toxic, dangerous or polluting or which is regulated by any Law relating to the Environment;

Head Company” has the meaning given to that term in section 995-1 of the 1997 Tax Act by reference to section 719-75 of the 1997 Tax Act;

Indemnified Party” means Peabody and all of its Affiliates and Representatives and each officer, employee and agent of such persons;

Irrecoverable GST” means any amount in respect of GST a person has incurred which neither that person nor (where applicable) any other member of the same GST group as such person is entitled to recover (by way of credit, repayment, refund or otherwise) from any relevant Tax Authority pursuant to and determined in accordance with any relevant law;

Joint Venture Agreements” means (as applicable) the:

 

  (a)

Dawson JVA;

 

  (b)

Dawson South JVA;

 

  (c)

Dawson South Exploration JVA; and

 

Page 13


  (d)

Theodore South JVA;

Joint Venture Liabilities” means all of any Group Company’s liabilities and obligations in relation to the Joint Ventures or the Joint Venture Agreements (whether arising before, on or after Completion), including any obligation to pay a cash call or other called sum (however described) pursuant to each Joint Venture Agreement;

Joint Venture Participants” means each party (other than a Group Company) to the Joint Venture Agreements;

Joint Ventures” means (as applicable) the Dawson Joint Venture, Dawson South Joint Venture, Dawson South Exploration Joint Venture and Theodore South Joint Venture;

JV Call” has the meaning, in respect of a Joint Venture Agreement, given to the term ‘Call’ in that Joint Venture Agreement;

Laws” means all applicable legislation, statutes, directives, regulations, judgments, decisions, decrees, orders, instruments, by-laws, and other legislative measures or decisions having the force of law, treaties, conventions and other agreements between states, or between states and the European Union or other supranational bodies, rules of common law, customary law and equity and all civil or other codes and all other laws of, or having effect in, any jurisdiction from time to time;

Liabilities” includes all liabilities (whether actual, contingent or prospective), losses, damages, penalties, claims, demands, proceedings, costs and expenses of whatever description;

Loan Note” means a loan note issued by Peabody to the Buyer under the Loan Note Deed;

Loan Note Deed” means the deed entered into on or about the date of this Deed between Peabody and the Buyer;

Longstop Date” means:

 

  (a)

in respect of an Ex-Dawson Main Completion, 5.00 p.m. on the date which is 9 months after SMC Completion occurs; and

 

  (b)

in respect of a Dawson Complex Completion, Anglo Dawson Holdings Completion or a Dawson Joint Venture Assets Completion, 5.00pm on the date which is 9 months after the Call Option or Put Option is exercised in respect of those Completions,

or such other time and date as may be agreed in writing between Peabody and the Buyer;

MAC Cure Date” means the earlier of:

 

  (a)

90 days after the date of the notice from Peabody under Clause 16.2; and

 

  (b)

10 Business Days before the Scheduled Completion Date under the SMC SPA;

Management Accounts” means the unaudited monthly management accounts for:

 

  (a)

the ‘Steelmaking Coal’ operating segment (as referred to in the Anglo American plc annual report), consisting of the balance sheet as at 27 October 2024 and the profit and loss for the period from the Accounts Date to 27 October 2024; and

 

  (b)

‘Corporate Australia’ (comprising AAAL, Anglo American Australia Holdings Pty Limited, Anglo American Exploration (Australia) Pty Limited and Anglo American Australia Finance Limited), consisting of the balance sheet as at 31 October 2024 and the profit and loss for the period from the Accounts Date to 31 October 2024,

as contained in documents 02.02.11.01 and 02.02.11.02 of the Data Room;

 

Page 14


Material Adverse Change” has the meaning given in the SMC SPA;

Material Contract” means:

 

  (a)

the Specific Contracts; and

 

  (b)

any current contract to which a Group Company is a party which had an annual revenue or annual expenditure of AUD 50,000,000 or more in the financial year immediately preceding the date of this Deed;

Mining Tenements” means the mining tenements as described in Schedule 8;

Mitsui” means Mitsui Moura Investment Pty Ltd, a company incorporated in Queensland, Australia with company number ACN 088 091 356 and having its registered office at Level 24, 480 Queen Street, Brisbane, Queensland 4000;

Mitsui Group” means Mitsui and its Affiliates;

Net Proceeds has the meaning given in the Loan Note Deed;

Notice of Decision” means, in respect of each FPS Environmental Authority, a notice given by the Scheme Manager under section 36 of the Financial Provisioning Act in respect of the Changed Holder Review Decision in respect of the FPS Environmental Authority;

Participating Interest” means (as applicable) each of the:

 

  (a)

Dawson Participating Interest;

 

  (b)

Dawson South Participating Interest;

 

  (c)

Dawson South Exploration Participating Interest; and

 

  (d)

Theodore South Participating Interest,

excluding, from the date of completion of any transaction pursuant to a Pre-emption Acceptance Notice, such Participating Interest which is the subject of a Pre-emption Acceptance Notice;

Peabody Group” means Peabody and its Affiliates from time to time, and before Completion includes the Group Companies, and before SMC Completion excludes the Group Companies;

Permitted Encumbrance” means any of the following:

 

  (a)

a PPS Register Security Interest registered in the ordinary course of business in connection with an equipment financing, hire purchase, retention of title or similar arrangement;

 

  (b)

any Encumbrance arising under or in connection with a Joint Venture Agreement;

 

  (c)

any mortgage or registration against the Mining Tenements or the Properties that is Disclosed or would have shown on a public enquiry report two Business Days before the date of this Deed;

 

  (d)

any Encumbrance that is Disclosed;

 

  (e)

in respect of the Mining Tenements and the Properties, any reservation or covenant arising under law or arising in respect of the grant of the Mining Tenement;

 

  (f)

a retention of title arrangement under which title is retained by a supplier over goods supplied to any Group Company until payment for such goods is made if such arrangement has been entered into in the ordinary course of business;

 

Page 15


  (g)

a security interest contemplated by section 12(3)(b) of the PPSA if such commercial consignment has been entered into in the ordinary course of business; and

 

  (h)

a security interest contemplated by section 12(3)(c) of the PPSA if such PPS lease has been entered into in the ordinary course of business and is not a security interest within the meaning of section 12(1) of the PPSA;

PPS Register” means the personal properties securities register established under the PPSA;

PPSA” means the Personal Property Securities Act 2009 (Cth);

Pre-emption Acceptance Notice” means:

 

  (a)

if Schedule 15 applies in accordance with Clause 8.4(b), in respect of the Dawson Joint Venture, a notice from Mitsui under clause 7.3 of the Dawson JVA requiring that the Dawson Participating Interest be transferred to Mitsui;

 

  (b)

in respect of the Dawson South Joint Venture, a notice from Mitsui under clause 7.3 of the Dawson South JVA requiring that the Dawson South Participating Interest be transferred to Mitsui;

 

  (c)

in respect of the Dawson South Exploration Joint Venture, a notice from Mitsui under clause 20.3(a) of the Dawson South Exploration JVA requiring that the Dawson South Exploration Participating Interest be transferred to Mitsui; and

 

  (d)

in respect of the Theodore South Joint Venture, a notice from Mitsui under clause 20.3(a) of the Theodore South JVA requiring that the Theodore South Participating Interest be transferred to Mitsui;

Pre-emption Exercise Period” means the prescribed period under each Pre-emption Joint Venture Agreement in which the Joint Venture Participant has to give a Pre-emption Acceptance Notice;

Pre-emption Joint Venture” means (as applicable) each of the:

 

  (a)

Dawson South Joint Venture;

 

  (b)

Dawson South Exploration Joint Venture;

 

  (c)

Theodore South Joint Venture; and

 

  (d)

if Schedule 15 applies in accordance with Clause 8.4(b), the Dawson Joint Venture;

Pre-emption Joint Venture Agreements” means the:

 

  (a)

Dawson South JVA;

 

  (b)

Dawson South Exploration JVA;

 

  (c)

Theodore South JVA; and

 

  (d)

if Schedule 15 applies in accordance with Clause 8.4(b), the Dawson JVA;

Pre-emption Offer Notice” means:

 

  (a)

in respect of the Dawson South Joint Venture, a notice from Anglo Dawson South under clause 8.3 of the Dawson South JVA in respect of the change of control that would result from completion of this Deed;

 

Page 16


  (b)

in respect of the Dawson South Exploration Joint Venture, a notice from Anglo Dawson South under clause 21.3 of the Dawson South Exploration JVA in respect of the change of control that would result from completion of this Deed; and

 

  (c)

in respect of the Theodore South Joint Venture, a notice from Anglo Theodore South under clause 21.3 of the Theodore South JVA in respect of the change of control that would result from completion of this Deed;

Pre-emption Rights” means the preferential rights held by the relevant Joint Venture Participant in and under each Pre-emption Joint Venture Agreement;

“Prior Service” means an employee’s service with the relevant Seller Employer up to and including the Completion Date, including any period of service with another employer that is deemed by law to be service with that Seller Employer;

Pro forma Financial Information” means, with respect to each Pro forma Financial Information Period, the pro forma profit and loss account and pro forma balance sheet as set out in document 02.02.05.43 in the Data Room;

Properties” means the real property (whether leasehold or freehold) listed in Schedule 10;

Put Option” has the meaning given in Clause 2.1;

Put Option Exercise Period” means the period commencing on the Put Option Exercise Period Commencement Date and ending on the date that is 90 days after the Put Option Exercise Period Commencement Date, or if the Fair Market Value has not been determined at the end of that period, ending on the date that is 5 Business Days after the Fair Market Value has been determined;

Put Option Exercise Period Commencement Date” means the date determined in accordance with Clause 2.5;

Recipient” has the meaning given in Clause 35.3(a);

Regulatory Conditions” has the meaning given in Clause 9.3(a)(i);

Relevant Employee” means those employees identified by agreement between Peabody and the Buyer in the Separation Plan as employees whose roles will transition to the Buyer Group;

Relief” means:

 

  (a)

any loss, relief, allowance or credit, in respect of any Tax and any deduction in computing income, profits or gains for the purposes of any Tax; or

 

  (b)

any right to a refund or repayment of Tax,

and any reference to the use or set-off of a Relief will be construed accordingly;

Replacement Bank Guarantee” means in respect of a Bank Guarantee, one or more bank guarantees or other security in favour of the relevant Bank Guarantee Beneficiary, in a form, and on terms, and for an amount, and if applicable, from such institution, as the relevant Bank Guarantee Beneficiary may require (as notified by Peabody or the Bank Guarantee Beneficiary to the Buyer) as replacement security for the Bank Guarantee;

Replacement Financial Provisioning” means in respect of any Seller Financial Provisioning, Financial Provisioning in favour of the State (including Financial Provisioning to be paid into the scheme fund in accordance with the Financial Provisioning Act) in a form, and on terms, and for an amount, and, if applicable, from such institution, as the State or Scheme Manager may require (as notified by Peabody, the State or the Scheme Manager to the Buyer) as replacement Financial Provisioning for the Seller Financial Provisioning (including, for the avoidance of doubt, any Financial Provisioning in excess of the Seller Financial Provisioning for any FPS Environmental Authority as at the date of this Deed);

 

Page 17


Representatives” means:

 

  (a)

in relation to the Buyer, any Buyer Group member and their respective directors, officers, employees, agents, consultants, advisers, auditors, accountants and Financing Sources; and

 

  (b)

in relation to any other person, its Affiliates and its and their respective directors, officers, employees, agents, consultants, advisers, auditors and accountants, excluding:

 

  (i)

in respect of Peabody, any Employee; and

 

  (ii)

[***];

Resources Acts” means the Mineral Resources Act 1989 (Qld), the Mineral and Energy Resources (Common Provisions) Act 2014 (Qld), the Financial Provisioning Act and the Petroleum and Gas (Production and Safety) Act 2004 (Qld) (as applicable);

Resources Minister” means the Minister responsible for the Resources Acts;

Rules” has the meaning given in Clause 49.2;

Sanctioned Person” means a person or entity:

 

  (a)

designated on the lists of Specially Designated Nationals and Blocked Persons or “Foreign Sanctions Evaders” maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of Commerce, the U.S. Department of State and any other agency of the U.S. government;

 

  (b)

designated on the Consolidated List of Persons, Groups and Entities Subject to EU Financial Sanctions maintained by the European Commission, the Consolidated List maintained by the Department of Foreign Affairs and Trade maintained by the Australian Government; the Consolidated List of Financial Sanctions Targets maintained by the Office of Financial Sanctions Implementation within the UK’s HM Treasury, or any equivalent list maintained by the competent sanctions authority of any member state of the EU;

 

  (c)

that is, or is part of, a government of a Sanctioned Territory;

 

  (d)

that is located, organised or residing in any Sanctioned Territory; or

 

  (e)

50% or more directly or indirectly owned or controlled by any of the foregoing;

Sanctioned Territory” means any country or other territory subject to a comprehensive export, import, financial or investment embargo under any Sanctions Laws, which currently comprise Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, the so-called Donetsk People’s Republic, and the so-called Luhansk People’s Republic;

 

Page 18


Sanctions Laws” means any applicable export control and economic sanctions Laws and regulations of the Commonwealth of Australia, the U.S., the United Nations Security Council, the EU, any member state of the EU and the UK;

Scheduled Completion Date” means:

 

  (a)

for a Dawson Complex Completion, the End of Month Date following:

 

  (i)

the last of the Conditions set out in Clause 9.1 being satisfied or waived (including Clause 9.1(b) being satisfied in accordance with Clause 8.4(a)(i) or waived); and

 

  (ii)

an Exercise Notice being given accordingly; or

 

  (b)

for an Ex Dawson Main Completion, the End of Month Date following:

 

  (i)

the last of the Conditions set out in Clause 9.1 (excluding Clause 9.1(b)) being satisfied or waived; and

 

  (ii)

an Exercise Notice being given accordingly;

 

  (c)

for an Anglo Dawson Holdings Completion, the End of Month Date following:

 

  (i)

the last of the Conditions set out in Clause 9.1 (excluding Clause 9.1(b)) being satisfied or waived;

 

  (ii)

the Dawson JVA Waiver being obtained pursuant to Clause 8.4(a)(ii); and

 

  (iii)

an Exercise Notice being given accordingly;

 

  (d)

for a Dawson Joint Venture Assets Completion, the End of Month Date following:

 

  (i)

the last of the Conditions set out in Clause 9.1 (excluding Clause 9.1(b)) and incorporated under Clause 9.2 being satisfied or waived; and

 

  (ii)

an Exercise Notice being given accordingly;

 

  (e)

where Clause 18.7 applies, the date determined in accordance with Clause 18.7; or

 

  (f)

any other date agreed in writing by Peabody and the Buyer;

Scheme Manager” has the meaning given to that term in the Financial Provisioning Act;

Secondment Agreements” means the agreements to be entered into between the relevant Peabody Group members and the Buyer (or a Buyer Group member) in accordance with Clause 14.1 and the principles set out in Schedule 18;

Secured Financiers” has the meaning given in Clause 20.6(b).

Seller Consolidated Group” means the Consolidated Group of which the Consolidated Subsidiaries (and the Companies, as applicable) are each a member from time to time before Completion;

Seller Employer” has the meaning given in Clause 17.1;

Seller Financial Provisioning” means all (including any replacement or new) Financial Provisioning given by the SMC Seller (or on its behalf) or Peabody (or on its behalf) or given by a financial institution on behalf of any Group Company in relation to the Mining Tenements or Environmental Authorisations (which, as at the date of this Deed, are specified in the table in Part 2 of Schedule 12);

 

Page 19


Seller Guaranteed Obligations” means all of Peabody’s obligations under or in respect of this Deed and the Loan Note Deed;

Seller Guarantees” means:

 

  (a)

except to the extent the Seller Financial Provisioning is in the form of a cash contribution to the Scheme Manager (or other Authority) in respect of the FPS Environmental Authorities, the Seller Financial Provisioning; and

 

  (b)

the Bank Guarantees;

Seller Head Company” means the Head Company of the Seller Consolidated Group;

Seller Tax Sharing Agreement” means the Tax Sharing Agreement in respect of the Seller Consolidated Group;

Seller’s Bank Account” means:

Account Name: [***]

Account #: [***]

Wire ABA: [***]

ACH ABA: [***]

Swift: [***]

Bank: [***]

Bank Address: [***]

or such other bank account as notified by Peabody to the Buyer in writing from time to time;

Seller’s Solicitors” means Jones Day of Level 31, 123 Eagle Street, Brisbane QLD 4000;

Sellers” means AASCA, AASCAEAL and any other Peabody Group member (from time to time) which holds legal and/or beneficial title to a Dawson Carve-out Asset, in each case as the context requires;

Separation Plan” means a written plan agreed between Peabody and the Buyer in accordance with Clause 19 (or as otherwise agreed between the parties) addressing the matters set out in the Separation Principles, and any other matters agreed between the parties including issues relating to separation of certain people, processes, contracts, marketing services, technology and data, assets, intellectual property and ongoing projects;

Separation Principles” means the principles set out in Schedule 19;

Shares” means the:

 

  (a)

Anglo Dawson Holdings Shares;

 

  (b)

Anglo Dawson South Shares; and

 

  (c)

Anglo Theodore South Shares;

except if Schedule 15 applies in accordance with Clause 8.4(b), the Anglo Dawson Holdings Shares are excluded from the definition of Shares (except in relation to the definition of ‘SMC Consideration’).

SMC Completion” means ‘Completion’ as defined in the SMC SPA;

 

Page 20


SMC Completion Date” means the date on which SMC Completion occurs;

SMC Completion Payment” means the ‘Completion Payment’ as defined in the SMC SPA;

SMC Consideration” means the total amount paid and/or payable by the relevant Peabody Group member to the SMC Seller pursuant to the SMC SPA which is attributable to the Participating Interests and the Dawson Assets, as adjusted for any purchase price adjustments made pursuant to the SMC SPA and this Deed that are attributable to the Shares and the Dawson Assets, as notified by Peabody to the Buyer in accordance with this Deed which, at the date of this Deed, is an amount not exceeding $455,000,000 (four hundred and fifty-five million dollars);

SMC Dawson Funding Amount” means the SMC Dawson Guaranteed Sums plus the SMC Dawson Purchase Price.

SMC Dawson Guaranteed Sums” means:

 

  (a)

any (including replacement or new) guarantees, bonds, credit support arrangements, indemnities and letters of comfort given by or on behalf of the SMC Seller or given by a financial institution on behalf of any Group Company, in all cases relevant to the Mining Tenements, including those specified in Schedule 12; and

 

  (b)

all (including any replacement or new) contributions to the fund under the Financial Provisioning Act given by the SMC Seller or on its behalf or given by a financial institution on behalf of any Group Company in relation to the Mining Tenements or Environmental Authorisations (which as at the date of this Deed are specified in Schedule 12);

SMC Dawson Purchase Price” means an amount equal to:

 

  (a)

the Dawson Deposit; plus

 

  (b)

the Dawson Upfront Consideration; plus

 

  (c)

the Dawson Deferred Consideration;

SMC Group” has the meaning given to the term “Group” in the SMC SPA;

SMC Group Companies” has the meaning given to the term “Group Companies” in the SMC SPA;

SMC Peabody Lead” has the meaning given to the term “Lead” in relation to Peabody in the SMC SPA;

SMC Seller” means Anglo American Netherlands B.V.;

SMC Seller Consolidated Group” has the meaning given to the term “Seller Consolidated Group” in the SMC SPA;

SMC Seller Group” has the meaning given to the term “Seller Group” in the SMC SPA;

SMC Seller GST Group” has the meaning given to the term “Seller GST Group” in the SMC SPA;

SMC Seller Head Company” has the meaning given to the term “Seller Head Company” in the SMC SPA;

SMC Seller Tax Sharing Agreement” has the meaning given to the term “Seller Tax Sharing Agreement” in the SMC SPA;

 

Page 21


SMC Separation Committee” has the meaning given to the term “Separation Committee” in the SMC SPA;

SMC SPA” means the deed titled ‘Agreement related to Share Purchase for Anglo American Australia Limited’ between the SMC Seller, Peabody and others dated on or about the date of this Deed;

SMC SPA Completion Accounts” means the ‘Completion Accounts’ as defined in the SMC SPA as finally agreed or determined pursuant to the SMC SPA;

SMC SPA Dawson Duty” means that proportion of the SMC SPA Duty that is directly attributable to the transfer of the Dawson Participating Interest or the Group Companies that directly hold the Participating Interests as determined in accordance with Clause 6.4;

SMC SPA Disclosure Letter” means the disclosure letter dated on or about the date of the SMC SPA, delivered by or on behalf of the SMC Seller to Peabody immediately before signing the SMC SPA, a copy of which was provided to the Buyer prior to signing this Deed;

SMC SPA Duty” means all Duty assessed, payable or otherwise imposed or arising as a result of or in connection with the entry into, or the implementation of any of the transactions contemplated by the SMC SPA Transaction Documents;

SMC SPA Transaction Documents” means the SMC SPA and the other “Transaction Documents” (as defined in the SMC SPA);

SOFR” means the ‘Secured Overnight Financing Rate’ (SOFR) administered by the Federal Reserve Bank of New York (or any other person which takes over the administration of that rate) published by the Federal Reserve Bank of New York (or any other person which takes over the publication of that rate);

Specific Contracts” means those contracts identified as such by agreement between Peabody and the Buyer in the Separation Plan. An indicative list, as at the date of this Deed, is set out in Part 2 of Schedule 13;

Specific Security Deed” means a first ranking specific security deed where Peabody is the secured party, in substantially the same form as the “Specific Security Deeds” (as defined in the Loan Note Deed);

State” means the state of Queensland, Australia;

Stock Exchange” means the London Stock Exchange, the Johannesburg Stock Exchange, the New York Stock Exchange and the Indonesia Stock Exchange, in each case as the context requires;

Subsidiary” means the companies whose details are set out in the section of the Group Information Schedule entitled “Subsidiaries” and any other subsidiary undertaking of the Company from time to time but, from the date of completion of a transaction pursuant to a Pre-emption Acceptance Notice, such subsidiary undertaking which is the subject of such Pre-emption Acceptance Notice and, in relation to which any Group Company ceases to hold shares, will cease to be a “Subsidiary” and will be deemed deleted from the Group Information Schedule;

Supplier” has the meaning given in Clause 35.3;

Surviving Provisions” means Clauses 1, 12, 28.9, 33, 34.2, 35, 37 and 40 to 49.1;

TAA” means the Taxation Administration Act 1953 (Cth);

Tax” means all forms of taxes, duties, imposts, charges, withholdings, rates, levies, royalties or other governmental impositions of whatever nature and by whatever authority imposed, assessed or charged together with all costs, charges, interest, penalties, fines, expenses and other additional statutory charges, incidental or related to the imposition and all forms of claims, obligations, offsets, payments or liabilities under a tax sharing agreement or tax funding agreement (and “Taxes” and “Taxation” will be construed accordingly);

 

 

Page 22


Tax Authority” means a taxing or other governmental (local or central), state or municipal authority (whether within or outside Australia) competent to impose a liability for or to collect Tax or make any decision or ruling on any matter relating to Tax;

Tax Covenant” means the covenant relating to Taxation set out at paragraph 2 of Schedule 7;

Tax Covenant Claim” means a Claim in respect of the Tax Covenant;

Tax Return” means any return, declaration, report, notice, claim for refund, information or statement relating to Tax, including any applicable schedule, supplement, attachment and amendment;

Tax Sharing Agreement” means an agreement that is a valid tax sharing agreement under section 721-25 of the 1997 Tax Act;

Term Lease” means Anglo Dawson’s interest in the Properties that are term leases under the Land Act 1994 (Qld);

Term Lease Transfers” means the transfer by Anglo Dawson to the Buyer of Anglo Dawson’s interest as lessee under the Term Leases;

Terminating Contracts” means those contracts identified as such by agreement between Peabody and the Buyer in the Separation Plan. An indicative list, as at the date of this Deed, is set out in Schedule 14;

Theodore South Joint Venture” means the joint venture constituted by the Theodore South JVA;

Theodore South JVA” means [***];

Theodore South Participating Interest” means the 51% undivided legal and beneficial right, title, and interest held by Anglo Theodore South in the Theodore South Joint Venture;

Third-Party Claim” has the meaning given in paragraph 13 of Schedule 5;

Third-Party Guarantees” means any guarantees, bonds, credit support arrangements, indemnities and letters of comfort of any nature given:

 

  (a)

to a third party by any Group Company in respect of Peabody or its Affiliate’s obligation; or

 

  (b)

to a third party by Peabody or its Affiliate in respect of any obligation of any Group Company;

Trade Marks and Get-up” means trade marks, service marks, logos, get-up, trade names, designs, or any similar rights, in all cases whether registered or unregistered, that bear the words “Anglo”, “Anglo American” or “Peabody”;

Transaction” means the transactions contemplated by this Deed and / or the other Transaction Documents or any part of this Deed and / or the other Transaction Documents;

Transaction Communications” has the meaning given in Clause 44;

 

Page 23


Transaction Documents” means this Deed, the Loan Note Deed and any other documents in Agreed Form or required to be entered into pursuant to this Deed and the Loan Note Deed, including the Specific Security Deeds and the General Security Deeds;

Transferring Employee” means those Relevant Employees who accept the New Employing Entity’s offer of employment made under Clause 17 and who become employees of the New Employing Entity immediately prior to a Completion;

TSA” means the transitional services agreement between a Peabody Group member and a Buyer Group member entered into in accordance with the Separation Principles and the Separation Plan;

Vendor Reports” means the [***];

Warranties” means the warranties set out in Clause 24 and Schedule 4;

Warranty Claims” means a Claim by the Buyer in respect of a Warranty; and

Working Hours” means 9:30 am to 5:30 pm (based on the time at the location of the address of the recipient of the relevant notice) on a Business Day.

 

1.2

In this Deed, unless the context otherwise requires:

 

  (a)

“undertaking” and “group undertaking” will be construed in accordance with section 1161 of the Companies Act 2006, “subsidiary” and “holding company” will be construed in accordance with section 1159 of the Companies Act 2006, “subsidiary undertaking” and “parent undertaking” will be construed in accordance with section 1162 of the Companies Act 2006, and “ultimate holding company” will be construed in accordance with section 9 of the Corporations Act;

 

  (b)

every reference to a particular Law will be construed also as a reference to all other Laws made under the Law referred to and to all such Laws as amended, re-enacted, consolidated or replaced or as their application or interpretation is affected by other Laws from time to time and whether before or after Completion but, as between the parties, no such amendment after the date of this Deed will apply for the purposes of this Deed to the extent that it would impose any new or extended obligation, liability or restriction on, or otherwise adversely affect the rights of, any party;

 

  (c)

references to Clauses, Schedules and Exhibits are references to clauses of, schedules to and exhibits to this Deed; references to paragraphs and sub-paragraphs are references to paragraphs and sub-paragraphs of the Schedule in which the reference appears, and references to this Deed includes the Schedules and the Exhibits;

 

  (d)

the singular includes the plural and vice versa, and a gender includes any other gender;

 

  (e)

references to a “party” means a party to this Deed and includes its successors in title, personal representatives and permitted assigns;

 

  (f)

references to a “person” includes any individual, partnership, body corporate, corporation sole or aggregate, state or agency of a state, and any unincorporated association or organisation, in each case whether or not having separate legal personality;

 

  (g)

references to a “company” includes any company, corporation or other body corporate wherever and however incorporated or established;

 

  (h)

references to the phrase “to the extent that” are a matter of degree and are not synonymous with “if”;

 

Page 24


  (i)

references to “AU dollars” or “AUD” are references to the lawful currency from time to time of Australia;

 

  (j)

references to “US dollars”, “dollars”, “USD” or “$” are references to the lawful currency from time to time of the United States of America;

 

  (k)

for the purposes of applying a reference to a monetary sum expressed in AU dollars or US dollars, an amount in a different currency must be deemed to be an amount in AU dollars or US dollars, as required by this Deed, translated at the applicable Exchange Rate for the relevant date, except as expressly set out in this Deed;

 

  (l)

references to times of the day are to Brisbane, Queensland time unless otherwise stated;

 

  (m)

references to writing includes any modes of reproducing words in a legible and non-transitory form, including by e-mail;

 

  (n)

references to any English legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court official or any other legal concept or thing is, in respect of any jurisdiction other than England, deemed to include what most nearly approximates in that jurisdiction to the English legal term;

 

  (o)

words introduced by the word “other” are not to be given a restrictive meaning because they are preceded by words referring to a particular class of acts, matters or things;

 

  (p)

general words are not to be given a restrictive meaning because they are followed by words which are particular examples of the acts, matters or things covered by the general words, and the words “includes” and “including” will be construed without limitation;

 

  (q)

where this Deed requires any party to reimburse or indemnify another party for any cost, expense or liability, references to such “costs”, “expenses” and / or “liabilities” (or similar phrases or expressions) incurred by a person must not include any amount in respect of GST other than Irrecoverable GST; and

 

  (r)

a procuring obligation where used in the context of Peabody in respect of a Seller or a Group Company means that Peabody undertakes to exercise its voting rights and use reasonable endeavours to use such powers as are vested in Peabody from time to time as a shareholder of a Seller or any Group Company (and which is not inconsistent with Peabody’s fiduciary duties, if any) to ensure compliance with that obligation.

 

1.3

The title of and headings and sub-headings in this Deed are inserted for convenience only and do not affect the construction or interpretation of this Deed.

 

1.4

Each Schedule and Exhibit to this Deed forms part of this Deed.

 

1.5

References to a document (including this Deed) include such document as amended or varied in accordance with its terms.

 

2.

Grant of Call Option and Put Option

 

2.1

In consideration of Peabody paying to the Buyer $10.00 (the sufficiency and receipt of which is acknowledged) and the undertakings in this Deed, the Buyer irrevocably offers to purchase the Dawson Sale Interest from the relevant Seller at the price and on the terms of this Deed (“Put Option”) during the Put Option Exercise Period.

 

Page 25


2.2

In consideration of the Buyer paying to Peabody $10.00 (the sufficiency and receipt of which is acknowledged) and the undertakings in this Deed, Peabody irrevocably offers to procure the relevant Seller to sell the Dawson Sale Interest to the Buyer at the price and on the terms of this Deed (“Call Option”) during the Call Option Exercise Period. The Call Option fee paid under this Clause 2.2 forms as part-payment of the consideration upon any exercise of the Call Option.

 

2.3

The parties acknowledge that:

 

  (a)

a Call Option Exercise Period or Put Option Exercise Period may commence in respect of one or more Completions but not all Completions, and the commencement or expiry of a Call Option Exercise Period or Put Option Exercise Period, or the exercise of a Call Option or a Put Option, for a Completion does not prevent the commencement or expiry of a Call Option Exercise Period or Put Option Exercise Period, or the exercise of a Call Option or a Put Option, for other Completions; and

 

  (b)

where a party has a right or obligation that arises or applies in respect of the exercise of a Call Option or a Put Option in this Deed, that right or obligation shall apply to the relevant constituent parts of the Dawson Sale Interest to which such Put Option or Call Option (as the case may be) applies.

 

2.4

The parties acknowledge and agree that the entry into and performance of the Loan Note Deed does not constitute (in whole or in part) any consideration for the grant of the Put Option or the Call Option.

 

2.5

The Put Option Exercise Period Commencement Date shall be the earlier to occur of:

 

  (a)

the first Business Day after the end of the Call Option Exercise Period;

 

  (b)

the first Business Day occurring [***] (“Initial Put Option Commencement Date”), as extended or determined in accordance with Clause 2.6;

 

  (c)

the relevant Buyer Group member (as subscriber) fails to comply with its obligations in respect of ‘Cash Call Loan Notes’ (as defined under the Loan Note Deed) under the Loan Note Deed and does not pay or otherwise remedy such failure (including by payment of any interest) by the date that is 10 days before the relevant Group Company would become a “Defaulting Participant” under a Joint Venture Agreement as a result of the failure to pay a JV Call;

 

  (d)

other than in respect of a failure to pay a JV Call, the relevant Group Company becomes a “Defaulting Participant” under a Joint Venture Agreement;

 

  (e)

the relevant Buyer Group member (as subscriber) failing to comply with its obligations in respect of ‘Deferred Consideration Loan Notes’ (as defined under the Loan Note Deed) under the Loan Note Deed and does not perform or otherwise remedy such failure within 10 days of receiving written notice from Peabody of such non-compliance; or

 

  (f)

a Buyer Group member failing to pay, meet or otherwise satisfy any liability of a Peabody Group member (other than a Group Company) for a Joint Venture Liability, within 20 days after the Peabody Group member becomes liable for such Joint Venture Liability.

 

2.6

The Initial Put Option Commencement Date may be extended or be determined in accordance with Schedule 20.

 

2.7

To accept an offer and exercise the Put Option or the Call Option, the Buyer or Peabody (as applicable) must deliver an Exercise Notice (which is irrevocable) to the other party at any time during the Put Option Exercise Period or Call Option Exercise Period (as applicable).

 

Page 26


2.8

If the Buyer exercises the Call Option, or Peabody exercises the Put Option, then:

 

  (a)

from the date of and in accordance with the Exercise Notice, Peabody must procure the relevant Seller to sell, and the Buyer must purchase, the relevant Dawson Sale Interest on and subject to the terms of this Deed; and

 

  (b)

this Deed and the Exercise Notice constitute evidence of the contract arising on exercise of the Call Option or Put Option (as applicable) as a result of the provisions referred to in Clause 2.10 becoming binding on the Parties.

 

2.9

If either the Put Option or the Call Option in respect of a Completion has not been validly exercised during the relevant Put Option Exercise Period or the relevant Call Option Exercise Period (or this Deed is terminated in accordance with Clause 9.9):

 

  (a)

the Buyer will have no further interest in the relevant Dawson Sale Interest; and

 

  (b)

both the Call Option and the Put Option in respect of that Completion will automatically lapse and Clause 34 will apply.

 

2.10

Clauses 3, 4, 5.1, 18, 20 and Schedule 3 are not binding and have no force or effect until exercise of the Put Option or the Call Option.

 

3.

Sale of the Shares

 

3.1

On the terms set out in this Deed including being subject to Clause 8.4, and on the exercise of the Put Option or the Call Option, Peabody must procure the relevant Seller to sell, and the Buyer shall purchase, the Shares with effect from Completion, with full title guarantee, free from all Encumbrances, together with all rights attaching to the Shares as at Completion (including all dividends and distributions declared, declared and paid or declared and made in respect of the Shares after the Completion Date).

 

3.2

Title to and risk in the Shares remains solely with the relevant Seller until Completion, and subject to the terms of this Deed, passes to the Buyer on Completion.

 

3.3

Peabody must procure the relevant Seller irrevocably waives any right of pre-emption or other restriction on transfer in respect of the Shares conferred on it under any agreement or otherwise in connection with the sale of the Shares pursuant to this Deed.

 

4.

Sale of the Dawson Carve-out Assets

 

4.1

On the terms set out in this Deed, and on the exercise of the Put Option or the Call Option, Peabody must procure the relevant Seller to sell, and the Buyer shall purchase, the Dawson Carve-out Assets with effect from Completion, with full title guarantee, free from all Encumbrances.

 

4.2

Title to and risk in the Dawson Carve-out Assets remains solely with the relevant Seller until Completion, and subject to the terms of this Deed, passes to the Buyer on Completion.

 

4.3

Peabody must procure that each of the Sellers:

 

  (a)

acquires any Dawson Carve-Out Assets held by Peabody Group Members other than the Sellers and third parties to enable the sale and purchase contemplated by Clause 4.1 at no cost or expense in addition to the Consideration, to the Buyer other than any Duty payable by the Buyer; and

 

  (b)

irrevocably waives any right of pre-emption or other restriction on transfer in respect of the Dawson Carve-out Assets conferred on it under any agreement or otherwise in connection with the sale of the Dawson Carve-out Assets pursuant to this Deed.

 

Page 27


5.

Consideration

 

5.1

The purchase price for the sale of the Dawson Sale Interest under this Deed is the Consideration.

 

5.2

On or before the date of this Deed, the Buyer shall provide Peabody with evidence (which shall take the form of the Confirmation of Available Facility Letters) demonstrating that the Buyer has sources of funding for the SMC Dawson Funding Amount and that such sources will remain fully available and accessible to the Buyer between the date of this Deed and payment of the consideration payable by Peabody to the SMC Seller under the SMC SPA.

 

5.3

On or about the date of this Deed, the Buyer will be required to share copies of the Confirmation of Available Facility Letters and related documents with Peabody and its Representatives, and, if required, also share such agreements with the SMC Seller and its Representatives.

 

5.4

On or about the date of this Deed, a Peabody Group member and a Buyer Group member, amongst others, have entered into the Loan Note Deed pursuant to which a Buyer Group member or the Buyer agrees to lend Peabody the SMC Dawson Funding Amount from the sources available from the Confirmation of Available Facility Letters on the following basis:

 

  (a)

the Buyer Group member (as subscriber) will subscribe for, and the Peabody Group member (as issuer) will create Loan Notes, with a total principal amount as follows:

 

  (i)

on the date of the Loan Note Deed, for the amount of the Dawson Deposit;

 

  (ii)

on the date falling three Business Days before SMC Completion, for the amount of the Dawson Upfront Consideration;

 

  (iii)

on the date falling three Business Days before any portion of the Dawson Deferred Consideration is due to be paid under the SMC SPA, for the amount of the Dawson Deferred Consideration;

 

  (iv)

on the date falling three Business Days before any JV Call is required to be paid by any Group Company under the relevant Joint Venture Agreement, for the amount of the Dawson Cash Call Amount;

 

  (v)

if the purchase price adjustment mechanism under the SMC SPA results in a positive purchase price adjustment in favour of the SMC Seller and there is a component of that adjustment that relates to the Dawson Sale Interest (“Dawson Adjustment Amount”), on the date falling three Business Days before the Dawson Adjustment Amount is due under the SMC SPA, for the amount of the Dawson Adjustment Amount; and

 

  (vi)

on the date determined in accordance with Clause 6.4(h), for the amount of the SMC SPA Dawson Duty,

in each case in accordance with the Loan Note Deed;

 

  (b)

Peabody and the Buyer under this Deed, and the issuer and the subscriber will under the Loan Note Deed, acknowledge and agree, amongst other things, that:

 

  (i)

the creation of the Loan Notes referred to in Clause 5.4(a)(i) to Clause 5.4(a)(iii) (inclusive) and Clause 5.4(a)(v) and their issue to the subscriber pursuant to the Loan Note Deed is to fund the SMC Dawson Funding Amount for the issuer to provide to Peabody, or any related body corporate of Peabody to buy the Dawson Sale Interest on the terms of the SMC SPA and Peabody will use those funds to pay the SMC Dawson Purchase Price under the SMC SPA and utilise the SMC Dawson Guaranteed Sums to fund bank guarantees and financial provisioning amounts required to be funded by a Peabody Group member in connection with the SMC SPA;

 

Page 28


  (ii)

the creation of the Loan Notes referred to in Clause 5.4(a)(iv) and their issue to the subscriber pursuant to the Loan Note Deed is to fund payment of the relevant JV Call under the relevant Joint Venture Agreement; and

 

  (iii)

subject to the terms of this Deed, including any purchase price adjustment, the principal outstanding of the Loan Notes issued at the relevant time will be offset by the amount of the Consideration payable by the Buyer to Peabody under the terms of this Deed and the Buyer does not need to pay any further cash consideration to the issuer or any other Buyer Group member at Completion for the Dawson Sale Interest.

 

5.5

The Consideration will, subject to any further adjustment pursuant to this Deed and to the extent lawful, be adopted for all Tax reporting purposes.

 

5.6

Where any payment is made by Peabody in satisfaction of a liability arising under this Deed, it shall to the extent lawful be treated by the parties as an adjustment to the Consideration paid to Peabody in respect of the Dawson Sale Interest.

 

5.7

(Fair Market Value)

 

  (a)

The fair market value of the Dawson Joint Venture Assets (“Fair Market Value”) will be the amount in cash agreed between the Buyer and Peabody by the earlier of:

 

  (i)

10 days after the date the request for the Dawson JVA Waiver is provided to Mitsui pursuant to Clause 8.1; and

 

  (ii)

either:

 

  (A)

if the Put Option Exercise Period Commencement Date is determined in the circumstances described in Clause 8.1(a), 60 days before the Put Option Exercise Period Commencement Date; or

 

  (B)

if the Put Option Exercise Period Commencement Date is determined in the circumstances described in Clause 8.1(b), 10 days after the Put Option Exercise Period Commencement Date,

provided that, if agreement is not reached by the date provided in Clause 5.7(a)(i) or Clause 5.7(a)(ii) (as the case may be), then the Fair Market Value will be as determined at the request of the Buyer by a suitably qualified independent expert nominated by the Buyer (“Expert”). The Buyer must make the request within 2 Business Days after the relevant date and enter into such engagement as required by the Expert and the Expert’s costs shall be shared equally between Peabody and the Buyer.

 

  (b)

The Expert may call such other experts and consultants to advise them as they think fit, however the expert shall consult at least one firm of consultants which has a reputation for expertise in mining project valuation.

 

  (c)

The Expert may accept submissions in such form as they think fit as to the Fair Market Value and will be required to use best endeavours to state their determination (for which they need not give reasons) in writing within 21 days of appointment.

 

  (d)

The Expert will act as an expert and not as an arbitrator and its written determination will be final and binding on the Buyer and Peabody in the absence of manifest error.

 

Page 29


6.

Allocation and Adjustment of the Consideration, Stamp Duty

 

6.1

The parties agree that the Consideration will be allocated as set out in Schedule 2.

 

6.2

The Buyer and Peabody acknowledge that the Buyer has determined, and Peabody has agreed to, the allocation of value in respect of each Participating Interest and the Dawson Carve-out Assets in Clause 6.1 having regard to the genuine inherent value of each such Participating Interest and the Dawson Carve-out Assets.

 

6.3

If any Joint Venture Participant gives a Pre-emption Acceptance Notice in connection with the Transaction, the Consideration will be reduced by the amount of the Consideration that would have otherwise been allocated to the Participating Interest of the relevant Pre-emption Joint Venture pursuant to Clause 6.1.

 

6.4

The parties agree the following in respect of the SMC SPA Dawson Duty:

 

  (a)

proceeding on the basis that a concessionary lodgement regime should apply to the SMC SPA, no later than 10 Business Days after SMC Completion, Peabody must give written notice to the Buyer comprising Peabody’s draft submission to the Queensland Revenue Office (“Peabodys Initial Submission”). Peabody’s Initial Submission will not provide any calculation of the amount of the SMC SPA Duty and the provision of any value of assets to the Queensland Revenue Office will be withheld until the purchase price allocation has been completed by an independent valuation expert;

 

  (b)

no later than 5 Business Days after receiving the Peabody’s Initial Submission, the Buyer must provide their feedback or approval for Peabody to submit the Peabody’s Initial Submission to the Queensland Revenue Office. Both Peabody and the Buyer must work together to ensure the Peabody’s Initial Submission is lodged within 30 days of SMC Completion;

 

  (c)

no later than 30 Business Days before the due date for Peabody’s final submission (“Peabodys Final Submission”) to the Queensland Revenue Office concerning the SMC SPA Duty (having regard to any applicable concessionary lodgement regime and extensions of time granted by the Queensland Revenue Office), Peabody must give written notice to the Buyer comprising:

 

  (i)

a draft of Peabody’s Final Submission (and all necessary supporting materials) to the Queensland Revenue Office, including Peabody’s calculation of the amount of the SMC SPA Duty and SMC SPA Dawson Duty; and

 

  (ii)

the methodology that Peabody applied in determining the proportion of the SMC SPA Duty that is directly attributable to the transfer of the Dawson Participating Interest or the Group Companies that directly hold the Dawson Participating Interests.

 

  (d)

within 10 Business Days of receiving notice from Peabody that complies with the requirements of Clause 6.4(c), the Buyer must give written notice to Peabody either accepting or disputing Peabody’s calculation of the SMC SPA Dawson Duty and:

 

  (i)

if the Buyer accepts Peabody’s calculation of SMC SPA Dawson Duty (or does not give written notice within the 10 Business Day period), then Peabody’s calculation of the SMC SPA Dawson Duty will be the amount specified in Peabody’s submission to the Queensland Revenue Office; and

 

  (ii)

if the Buyer disputes Peabody’s calculation of the SMC SPA Dawson Duty, then the Buyer must provide reasons for the basis upon which it disputes the calculation, including the Buyer’s calculation of the SMC SPA Dawson Duty;

 

Page 30


  (e)

Peabody must provide the Buyer with reasonable access at reasonable times and on reasonable notice to the books and records held by Peabody which may be reasonably required by the Buyer to assess the SMC SPA Dawson Duty and the reasonableness of the methodology referred to in Clause 6.4(c)(ii);

 

  (f)

within 10 Business Days of receiving notice from the Buyer disputing the SMC SPA Dawson Duty under Clause 6.4(d), Peabody must give written notice to the Buyer either accepting or disputing the Buyer’s calculation of the SMC SPA Dawson Duty and:

 

  (i)

if Peabody accepts the Buyer’s calculation of SMC SPA Dawson Duty (or does not give written notice within the 10 Business Day period), then the Buyer’s calculation of the SMC SPA Dawson Duty will be the amount specified in Peabody’s submission to the Queensland Revenue Office; and

 

  (ii)

if Peabody disputes the Buyer’s calculation of the SMC SPA Dawson Duty, then either party may refer the matter to be determined in accordance with Schedule 16 (which, for the avoidance of doubt, will be a determination in respect of the SMC SPA Dawson Duty only) and amount as determined will be will be the amount specified in Peabody’s submission to the Queensland Revenue Office;

 

  (g)

Peabody shall provide to the Buyer:

 

  (i)

its submission to the Queensland Revenue Office concerning the SMC SPA Duty within 5 Business Days of submission; and

 

  (ii)

the Queensland Revenue Office’s assessment of SMC SPA Duty within 5 Business Days of receipt;

 

  (h)

the Buyer must pay the amount of the SMC SPA Dawson Duty specified in the Queensland Revenue Office’s assessment of SMC SPA Duty by subscribing for Loan Notes in accordance with Loan Note Deed by no later than three Business Days prior to the due date for payment of the SMC SPA Duty to the Queensland Revenue Office;

 

  (i)

if the amount paid by the Buyer under Clause 6.4(g) (including as a result of subsequent adjustment or reassessment) is:

 

  (i)

lower than the amount of the SMC SPA Dawson Duty finally determined by the Queensland Revenue Office, then the Buyer must pay the absolute value of the difference to Peabody by subscribing for Loan Notes in accordance with Loan Note Deed within 5 Business Days after the SMC SPA Dawson Duty is determined; or

 

  (ii)

higher than the amount of the SMC SPA Dawson Duty finally determined by the Queensland Revenue Office, then the amount of “Principal Outstanding” under the Loan Notes issued to Peabody shall increase by the absolute value of the difference within 5 Business Days after the SMC SPA Dawson Duty is determined; and

 

  (j)

subject to Peabody complying with its obligations under this Clause 6.4 and the SMC SPA, the Buyer shall indemnify Peabody on demand (on a dollar for dollar basis) against any Liabilities suffered by Peabody as a result of the Buyer failing to comply with its obligations under this Clause 6.4.

 

Page 31


7.

Foreign Resident Capital Gains Withholding

 

7.1

If Peabody provides a declaration to the Buyer under subsection 14-225(1) of Schedule 1 to the TAA, on or before Completion (but not earlier than 6 months before Completion) and the Buyer does not know that declaration to be false, the Buyer must not withhold any amount from the Consideration, other than to the extent the Consideration relates to assets that constitute ‘taxable Australian real property’ as defined in the Income Tax Assessment Act 1997.

 

7.2

The Buyer acknowledges and agrees that it is not required to pay a CGT Withholding Amount to the Commissioner in connection with the sale of any Dawson Joint Venture Assets that constitute ‘taxable Australian real property’ (as defined in the Income Tax Assessment Act 1997) under this Deed provided that the Buyer has received, before Completion, a Clearance Certificate from Peabody covering the time this transaction was entered into.

 

7.3

If Peabody does not provide a declaration referred to in Clauses 7.1 or 7.2 and the Buyer is required to pay an amount to the Commissioner under section 14-200 of Schedule 1 to the TAA, the Buyer is entitled to withhold the amount determined in accordance with subsection 14-200(3) of Schedule 1 to the TAA from the Consideration and must remit that amount to the Commissioner within the time required by subsection 14-200(2) of Schedule 1 to the TAA. Remission of that amount to the Commissioner discharges the Buyer’s obligation to pay the Consideration under this Deed to the extent of that amount as if it had been paid directly to Peabody.

 

7.4

If the Buyer intends to withhold an amount from the Consideration under Clause 7.3, the Buyer must, at least 10 Business Days before the Completion Date, give Peabody written notice of the Buyer’s intention to do so. The Buyer’s notice must include an estimate of the amount which the Buyer intends to withhold from the Consideration.

 

7.5

At least three Business Days before lodging any ‘Foreign Resident Capital Gains Withholding Purchaser Payment Notification Form’ or any other similar form of notification with the Commissioner concerning the amount to be withheld under Clause 7.3 (“Purchaser Payment Notification Form”), the Buyer must give a draft copy of the form to Peabody for review and comment. If Peabody provides the Buyer with any updated, different or additional information in relation to the Purchaser Payment Notification Form (“Additional Information”), then:

 

  (a)

the Buyer must, within one Business Day, determine whether the Buyer is still required to lodge the Purchaser Payment Notification Form and notify Peabody of that determination; and

 

  (b)

if the Buyer determines that it is still required to lodge the Purchaser Payment Notification Form, then the Buyer must amend it in accordance with any Additional Information relating to Peabody’s details before lodgement.

 

7.6

The Buyer must give Peabody a copy of the following documents within the following timeframes:

 

  (a)

any Purchaser Payment Notification Form lodged by the Buyer with the Commissioner, on the same day the Buyer lodges the form with the Commissioner;

 

  (b)

any response from the Commissioner to the Purchaser Payment Notification Form referred to in Clause 7.6(a) (including but not limited to any payment reference numbers), within one Business Day after the response is received by the Buyer; and

 

  (c)

evidence satisfactory to Peabody that the Buyer has remitted any amount withheld from the Consideration to the Commissioner, within two Business Days of the Completion Date.

 

Page 32


8.

Dawson JVA Waiver

 

8.1

[***]

 

8.2

[***]

 

8.3

[***]

 

8.4

[***]

 

8.5

[***]

 

9.

Conditions to Exercise of Call Option and Put Option

 

9.1

The Call Option Exercise Period Commencement Date in respect of a Completion will be the first Business Day after all of the following conditions (the “Conditions”) have been satisfied or waived in accordance with Clauses 9.10 to 9.11:

SMC Completion

 

  (a)

in respect of each Completion, SMC Completion occurs;

Dawson JVA Waiver

 

  (b)

in respect of a Dawson Complex Completion or Anglo Dawson Holdings Completion, receipt of the Dawson JVA Waiver in a form satisfactory to Peabody and the Buyer (acting reasonably) and subject to Clause 8.4;

Pre-emption rights and related rights

 

  (c)

in respect of a Dawson Complex Completion, an Ex Dawson Main Completion or an Anglo Dawson Holdings Completion, in respect of each Pre-emption Joint Venture, one of the following occurring:

 

  (i)

receipt of a written, unconditional and irrevocable waiver by the applicable Joint Venture Participant of its right to give a Pre-emption Acceptance Notice and of the other additional requirements (including delivery of relevant certifications) under a Pre-emption Joint Venture Agreement which must be satisfied prior to the change in control that will be occasioned by Completion;

 

  (ii)

receipt of a Pre-emption Acceptance Notice by the relevant Group Company that is a party to the applicable Pre-emption Joint Venture Agreement and completion of the sale of the relevant Participating Interest required upon receipt of the Pre-emption Acceptance Notice; or

 

  (iii)

the expiry of each Pre-emption Exercise Period applicable to each Joint Venture Participant, without any such Joint Venture Participant giving a Pre-emption Acceptance Notice and the satisfaction or waiver of any additional requirements (including delivery of relevant certifications) under a Pre-emption Joint Venture Agreement which must be satisfied prior to the change in control that will be occasioned by Completion;

 

Page 33


JV documents, contracts and consents

 

  (d)

in respect of a Dawson Complex Completion, Peabody and the Buyer obtaining signed counterparts of:

 

  (i)

a release of the ‘Guarantee’ (as defined in the Dawson JVA) in respect of the Dawson JVA and ‘Parent Company Support Deed’ in respect of the Dawson Manager’s obligations provided by AASM Holdings;

 

  (ii)

a replacement ‘Guarantee’ (as defined in the Dawson JVA) in respect of the Dawson JVA and replacement ‘Parent Company Support Deed’ in respect of the Dawson Manager’s obligations, provided by a Buyer Group member;

 

  (iii)

a release of the ‘Guarantee’ (as defined in the Dawson South JVA) in respect of the Dawson South JVA and ‘Parent Company Support Deed’ in respect of the Dawson South Manager’s obligations provided by AASM Holdings;

 

  (iv)

a replacement ‘Guarantee’ (as defined in the Dawson South JVA) in respect of the Dawson South JVA and replacement ‘Parent Company Support Deed’ in respect of the Dawson South Manager’s obligations, provided by a Buyer Group member;

 

  (v)

a release of the ‘Guarantee’ (as defined in the Dawson South Exploration JVA) in respect of the Dawson South Exploration JVA provided by AASM Holdings;

 

  (vi)

a replacement ‘Guarantee’ (as defined in the Dawson South Exploration JVA) in respect of the Dawson South Exploration JVA, provided by a Buyer Group member;

 

  (vii)

a release of the ‘Guarantee’ (as defined in the Theodore South JVA) in respect of the Theodore South JVA provided by AASM Holdings;

 

  (viii)

a replacement ‘Guarantee’ (as defined in the Theodore South JVA) in respect of the Theodore South JVA, provided by a Buyer Group member,

in each case subject to Completion and duly executed by all parties other than the relevant Group Company and the Buyer;

 

  (e)

in respect of an Ex Dawson Main Completion, Peabody and the Buyer obtaining signed counterparts of:

 

  (i)

a release of the ‘Guarantee’ (as defined in the Dawson South JVA) in respect of the Dawson South JVA and ‘Parent Company Support Deed’ in respect of the Dawson South Manager’s obligations provided by AASM Holdings;

 

  (ii)

a replacement ‘Guarantee’ (as defined in the Dawson South JVA) in respect of the Dawson South JVA and replacement ‘Parent Company Support Deed’ in respect of the Dawson South Manager’s obligations, provided by a Buyer Group member;

 

  (iii)

a release of the ‘Guarantee’ (as defined in the Dawson South Exploration JVA) in respect of the Dawson South Exploration JVA provided by AASM Holdings;

 

  (iv)

a replacement ‘Guarantee’ (as defined in the Dawson South Exploration JVA) in respect of the Dawson South Exploration JVA, provided by a Buyer Group member;

 

Page 34


  (v)

a release of the ‘Guarantee’ (as defined in the Theodore South JVA) in respect of the Theodore South JVA provided by AASM Holdings;

 

  (vi)

a replacement ‘Guarantee’ (as defined in the Theodore South JVA) in respect of the Theodore South JVA, provided by a Buyer Group member,

in each case subject to Completion and duly executed by all parties other than the relevant Group Company and the Buyer;

 

  (f)

in respect of an Anglo Dawson Holdings Completion, Peabody and the Buyer obtaining signed counterparts of:

 

  (i)

a release of the ‘Guarantee’ (as defined in the Dawson JVA) in respect of the Dawson JVA and ‘Parent Company Support Deed’ in respect of the Dawson Manager’s obligations provided by AASM Holdings;

 

  (ii)

a replacement ‘Guarantee’ (as defined in the Dawson JVA) in respect of the Dawson JVA and replacement ‘Parent Company Support Deed’ in respect of the Dawson Manager’s obligations, provided by a Buyer Group member,

in each case subject to Completion and duly executed by all parties other than the relevant Group Company and the Buyer;

Contracts and consents

 

  (g)

in respect of a Dawson Complex Completion, an Ex Dawson Main Completion or an Anglo Dawson Holdings Completion, the counterparty to each Specific Contract either (as applicable):

 

  (i)

consenting in writing to the direct or indirect change of control of a Group Company which will occur following completion of the Transaction (as contemplated by this Deed) and, to the extent applicable, waiving in writing any right which it may have to vary, cancel or terminate the agreement in existence between such counterparty and the relevant Group Company as a result of Completion, in each case, which may be subject to Completion; or

 

  (ii)

consenting in writing to the transfer of the relevant Seller’s rights and obligations under the relevant Specific Contract to the Buyer (which may be by way of a deed of assignment executed by the counterparty and may be subject to Completion);

Regulatory – FDI / Anti-trust and General

 

  (h)

in respect of each Completion, the Anti-trust Authority in any applicable jurisdictions granting (or being deemed to have granted, including by way of an Anti-trust Authority not issuing a decision by the expiry of the relevant period after a complete notification has been filed with such Anti-trust Authority) their consent, approval, clearance, confirmation or waiver of license in respect of the Transaction under applicable Anti-trust Laws or having confirmed that there is no such requirement; and

 

  (i)

in respect of each Completion, one of the following occurring:

 

  (i)

the Buyer receiving notice in writing from the Federal Treasurer or his or her delegate to the effect that there are no objections under the Australian Government’s foreign investment policy or under FATA to the Buyer acquiring the Dawson Sale Interest in accordance with this Deed; or

 

  (ii)

the Federal Treasurer being, by reason of lapse of time, no longer empowered to make an order under FATA in respect of the acquisition contemplated by this Deed; or

 

Page 35


  (iii)

if an interim order is made under the FATA in respect of the acquisition contemplated by this Deed, the subsequent period for making a final order prohibiting the acquisition contemplated by this Deed elapses without a final order being made.

 

  (j)

in respect of each Completion, if required, the Buyer Guarantor receiving shareholder approval for the Transaction in accordance with the corporate laws and Stock Exchange rules of Indonesia.

 

9.2

If Schedule 15 applies in accordance with Clause 8.4(b), then the Conditions in paragraph 4 of Schedule 15 will also apply.

 

9.3

Subject to Clause 9.6:

 

  (a)

the Buyer shall use, at its own cost:

 

  (i)

best endeavours to ensure that the Conditions set out in Clauses 9.1(h), 9.1(i) and 9.1(j) (together, the “Regulatory Conditions”);

 

  (ii)

reasonable endeavours to ensure that the Conditions set out in Clause 9.1(c) 9.1(d), 9.1(e), 9.1(f) and 9.1(g); and

 

  (iii)

if Schedule 15 applies in accordance with Clause 8.4(b):

 

  (A)

reasonable endeavours to ensure that the Condition set out in Clause 4.1(b) of Schedule 15; and

 

  (B)

best endeavours to ensure that the Condition set out in Clause 4.1(c) of Schedule 15,

are / is satisfied as soon as practicable and in any event no later than the Longstop Date and shall not, and shall procure that none of its Representatives shall, take any action that could reasonably be expected to adversely affect the satisfaction of the Conditions; and

 

  (b)

Peabody shall use, at its own cost, reasonable endeavours:

 

  (i)

to ensure that the Conditions set out in Clauses 9.1(a), 9.1(c), 9.1(d), 9.1(e), 9.1(f) and 9.1(g), and if Schedule 15 applies in accordance with Clause 8.4(b), also the Conditions set out in Clause 4.1(a) and Clause 4.1(b) of Schedule 15, are satisfied as soon as practicable and in any event no later than the Longstop Date and shall not, and shall procure that none of its Representatives shall, take any action that could reasonably be expected to adversely affect the satisfaction of the Conditions; and

 

  (ii)

as soon as reasonably practicable after SMC Completion and in any event no later than Completion, to seek the consent of the relevant Joint Venture Participant to the assignment and assumption of AASM’s rights and obligations under the Dawson South Exploration JVA and Theodore South JVA to the Buyer (or its nominee) but, for the avoidance of doubt, this shall not be a Condition. The Buyer must provide Peabody with such assistance as is reasonably required by Peabody to obtain these consents.

 

9.4

Without prejudice to Clause 9.3 and subject to Clause 9.6, the Buyer shall, and shall procure that each of its Affiliates, and its and its Affiliates’ Connected Persons shall, so far as the Buyer is able and to the extent within its power to do so, co-operate fully in all actions and omissions necessary to procure the satisfaction of the Regulatory Conditions as soon as practicable and in any event by the Longstop Date, including

 

Page 36


  (a)

making all filings and notifications as soon as practicable after the date of this Deed and in any event within five Business Days of the date of this Deed and obtaining all consents, approvals, clearances, waivers or actions of any Authorities in relation to the Regulatory Conditions to satisfy the Regulatory Conditions as soon as possible after the date of this Deed and in accordance with any relevant time limit;

 

  (b)

promptly notifying Peabody (including providing copies) of any material communication (whether written or oral) with any Authority in relation to the Regulatory Conditions, keeping Peabody regularly and reasonably informed of the progress of any notification or filing, discussing with Peabody the scope, timing and tactics for satisfying the Regulatory Conditions, and providing such assistance as may reasonably be required by Peabody in relation to the satisfaction of the Regulatory Conditions;

 

  (c)

responding to any request for information from any such Authority in relation to the Regulatory Conditions promptly and in any event in accordance with any relevant time limit, including such timing for a response as agreed between the parties acting reasonably;

 

  (d)

only making communications (whether orally or in writing) with any such Authority in relation to the Regulatory Conditions after consulting with and taking into account Peabody’s views as to the mode, content and timing of such communications and giving Peabody a reasonable opportunity to comment on drafts of such communications and to participate in all material telephone calls and material meetings with any such Authority (save to the extent that such Authority expressly requests that Peabody should not participate in such meetings or telephone calls);

 

  (e)

not making any filing with any Authority in relation to the Transaction or any business which competes with, supplies or is a customer of any Group Company which is not required solely to fulfil a Regulatory Condition without Peabody’s written consent as to the making of such filing and its form and content;

 

  (f)

not (whether alone or acting in concert with others) acquiring or offering to acquire (or causing another person acting on its behalf to acquire or offer to acquire) or entering into a definitive agreement (or causing another person acting on its behalf to enter into a definitive agreement) that, if carried into effect, would result in the acquisition of, a business that competes with the business of a Group Company or any other business the acquisition of which might reasonably be expected to prejudice or delay the satisfaction of any of the Regulatory Conditions; and

 

  (g)

taking all steps necessary to secure the satisfaction of the Regulatory Conditions, including proposing, negotiating, offering to commit and agreeing, in each case where necessary to ensure that the Regulatory Conditions are satisfied before the Longstop Date, with each relevant Authority to effect (and if such offer is accepted, commit to effect), by agreement, order or otherwise, the sale, divestiture, licence or disposition of any necessary assets or businesses or the performance of any necessary behavioural remedies or Regulatory Conditions. For the avoidance of doubt:

 

  (i)

the Buyer shall make any such proposal, negotiation, offer to commit or agreement with any relevant Authority in sufficient time to ensure that the Regulatory Conditions are satisfied before the Longstop Date, and

 

  (ii)

any such sale, divestiture, licence or disposition of assets or businesses, and any such behavioural remedies will have no impact on the payments to be made pursuant to Clauses 5 or 18, and any costs, expenses or damages related to any sale, divestiture, licence or disposition of assets or businesses or to any such other remedies, or both, will be for the Buyer’s sole account.

 

Page 37


9.5

Without prejudice to Clause 9.3 and subject to Clause 9.6, Peabody shall, and shall ensure that its Affiliates and, between SMC Completion and Completion, each Group Company shall, so far as Peabody is able and to the extent within its power to do so:

 

  (a)

provide the Buyer and any Authority in relation to the Conditions with any necessary information and documents for the purpose of making any filings, notifications or communications to any such Authority that are required to satisfy a Condition;

 

  (b)

in respect of Regulatory Conditions:

 

  (i)

promptly notify the Buyer (including providing copies) of any material communication (whether written or oral) with any Authority in relation to the Regulatory Conditions, keep the Buyer regularly and reasonably informed of any material response or communication from or to any Authority, discuss with the Buyer the scope, timing and tactics for responding to any material request of an Authority, and provide such assistance as may reasonably be required by the Buyer in relation to the satisfaction of the Regulatory Conditions; and

 

  (ii)

only make material communications (whether orally or in writing) with any such Authority in relation to the Regulatory Conditions after consulting with and taking into account the Buyer’s views as to the mode, content and timing of such communications and giving the Buyer a reasonable opportunity to comment on drafts of such communications and to participate in all material telephone calls and material meetings with any such Authority (save to the extent that such Authority expressly requests that the Buyer should not participate in such meetings or telephone calls); and

 

  (c)

in respect of the Condition in Clause 9.1(c), promptly notify the Buyer (including providing copies) of any material communication (whether written or oral) with any applicable Joint Venture Participant in relation to the Pre-emption Rights and keep the Buyer regularly and reasonably informed of any response or communication from or to any applicable Joint Venture Participant in relation to the Pre-emption Rights.

 

9.6

Nothing in this Clause 9 will require a party to disclose commercially sensitive or legally privileged information regarding itself or its Representatives to another party, except to the extent necessary to ensure that the Conditions and any notifications required under Clause 9.7 are satisfied, in which case such disclosure will be on a confidential external counsel-to-counsel basis only.

 

9.7

Nothing in this Clause 9 requires the Buyer to take any action to secure the satisfaction of a Regulatory Condition if such action is reasonably likely to result in a sale, divestiture, licence, disposition or surrender of any material mining assets or businesses of the Buyer Group (excluding the Dawson Sale Interest).

 

9.8

Each party shall, to the extent permitted by Law, keep the other party informed as to the progress of satisfaction of the Conditions, including promptly notifying the other parties in writing each time it becomes aware that any of the Conditions have been satisfied and at the same time (or promptly after) provide the other parties with reasonable evidence of the same.

 

9.9

If:

 

  (a)

a Condition (other than the Condition set out in Clause 9.1(b)) is not satisfied or waived by the Longstop Date; or

 

  (b)

the parties agree that a Condition (other than the Condition set out in Clause 9.1(b)) will not be satisfied by the Longstop Date (unless that Condition is satisfied before the termination of this Deed),

 

Page 38


neither the Buyer or Peabody may give an Exercise Notice and the Buyer or Peabody may give notice to the other parties in writing to terminate this Deed (provided the terminating party is not in breach of a material obligation under this Deed (including Clause 9.3), following which Clause 34 will apply).

 

9.10

The Buyer may, to such extent it thinks fit, waive the Condition set out in Clause 9.1(b), in whole or in part, by written notice to Peabody.

 

9.11

The Buyer and Peabody may, by written agreement, waive any or all of the Regulatory Conditions and / or the Conditions set out in Clause 9.1(g), and if Schedule 15 applies in accordance with Clause 8.4(b), also the Conditions set out in Clause 4.1(a) and (b) of Schedule 15, in whole or in part.

 

9.12

The Condition in Clause 9.1(a) cannot be waived.

 

10.

Pre-Emption Rights

 

10.1

In respect of each Pre-emption Joint Venture and subject to Clause 10.2, Peabody shall, at any time after SMC Completion, when determined by the Buyer, acting reasonably and in consultation with Peabody but by no later than 30 days after SMC Completion, provide, or cause the relevant Group Company to provide, the relevant Pre-emption Offer Notice to each relevant Joint Venture Participant (and Peabody may provide, or cause the relevant Group Company to provide, a relevant Pre-emption Offer Notice more than once).

 

10.2

In respect of the Dawson Joint Venture, Peabody shall, at any time after SMC Completion, when determined by the Buyer, acting reasonably and in consultation with Peabody but by no later than 5 days after the date on which Peabody exercises its Put Option with respect to the Dawson Joint Venture Assets under Clause 8.4(b)(i), provide, or cause the relevant Group Company to provide, the relevant Pre-emption Offer Notice to Mitsui.

 

10.3

If any Joint Venture Participant gives a Pre-emption Acceptance Notice under this Deed or under the SMC SPA and the sale of the relevant Participating Interest completes, the parties agree that this Deed will continue to be valid and binding and will be completed, save that all references to the relevant Group Company’s interest in and under such Pre-emption Joint Venture Agreement pursuant to which the Joint Venture Participant’s right to give a Pre-emption Acceptance Notice is exercised, and all related rights, obligations, liabilities, assets and interests and the Pre-emption Joint Venture Agreements will be deemed to be removed from this Deed with effect from the date of completion of such sale under the relevant Pre-emption Acceptance Notice, and in particular:

 

  (a)

the definition of Mining Tenements will be amended to remove the mining tenements attributable to the relevant Pre-emption Joint Venture;

 

  (b)

the definition of Properties will be amended to remove the real property attributable to the relevant Pre-emption Joint Venture;

 

  (c)

the definition of Seller Guarantees will be amended to remove the guarantees, bonds, credit support arrangements, indemnities and letters of comfort attributable to the relevant Pre-emption Joint Venture;

 

  (d)

the definition of Seller Financial Provisioning will be amended to remove the Financial Provisioning attributable to the relevant Pre-emption Joint Venture;

 

  (e)

the definition of Third-Party Guarantees will be amended to remove the guarantees, bonds, credit support arrangements, indemnities and letters of comfort attributable to the relevant Pre-emption Joint Venture;

 

  (f)

Clause 30 will not apply in respect of the relevant Group Company or Group Companies; and

 

Page 39


  (g)

the Consideration will be reduced by the proportionate amount applicable to the relevant Pre-emption Joint Venture, as set out in Schedule 2.

 

11.

Peabody’s obligations prior to SMC Completion

 

11.1

During the period from the date of this Deed to the earlier of SMC Completion and the termination of this Deed, Peabody shall procure that Peabody exercises its rights under and pursuant to the SMC SPA at the reasonable direction of the Buyer, but only to the extent such rights relate directly to, or materially affect, the Dawson Sale Interest and will otherwise consult with BUMA in good faith and take into account BUMA’s reasonable comments with respect to matters that relate to or affect the Dawson Sale Interest.

 

11.2

Nothing in Clause 11.1 operates to restrict or prevent Peabody taking any action:

 

  (a)

it considers reasonably necessary to prevent or avoid a breach or potential breach of the SMC SPA or Peabody’s financing arrangements entered into in connection with the SMC SPA;

 

  (b)

it considers reasonably necessary to respond to an emergency or disaster situation with the intention of minimising any adverse effect of such situation (but the Buyer must be kept fully informed of any actions taken pursuant to this Clause 11.2(b)); and

 

  (c)

to comply with any requirement of applicable Law or any forthcoming change in applicable Law (in each case, including any rules, guidelines, requests or requirements of any Authority).

 

11.3

During the period from the date of this Deed to the earlier of SMC Completion and the termination of this Deed, Peabody shall procure that Peabody promptly provides to the Buyer any correspondence or information received from the SMC Seller in connection with the SMC SPA, but only to the extent such correspondence or information relates to the Dawson Sale Interest (for example, by redacting information which does not relate to the Dawson Sale Interest).

 

12.

Power of Sale

 

12.1

In this Clause 12:

 

  (a)

a “Power of Sale Trigger Event” occurs if:

 

  (i)

the Conditions are not satisfied or waived by the Longstop Date, and this Deed is terminated in accordance with Clause 9.9;

 

  (ii)

subject to Peabody not being in default under this Deed, the Buyer fails to comply with its obligations that it is required to satisfy at Completion under Clause 18 and Peabody gives notice to terminate this Deed in accordance with Clause 18.7(c); or

 

  (iii)

neither the Call Option nor the Put Option has been validly exercised during the Call Option Exercise Period or the Put Option Exercise Period, respectively, and this Deed ceases to have effect the day immediately following the end of the Put Option Exercise Period in accordance with Clause 34.2(a).

 

  (b)

the “Relevant Dawson Sale Interest” is that part of the Dawson Sale Interest that is held by a Peabody Group member as at the date of the Power of Sale Trigger Event;

 

  (c)

RDSI Sales Agency” means the right and obligation to proactively identify, and negotiate terms in conformity with the RDSI Sales Parameters with, potential purchasers of the Relevant Dawson Sale Interest;

 

Page 40


  (d)

the “RDSI Sales Parameters” are that:

 

  (i)

the Relevant Dawson Sale Interest must be sold for upfront cash consideration;

 

  (ii)

all of the constituent parts of the Relevant Dawson Sale Interest must be sold as a single package;

 

  (iii)

the RDSI Sales Agent must take all reasonable care to ensure that Peabody sells the Relevant Dawson Sale Interest:

 

  (A)

if, when it is sold, it has a market value--not less than that market value; or

 

  (B)

otherwise--the best price that is reasonably obtainable, having regard to the circumstances existing when the Relevant Dawson Sale Interest is sold;

 

  (iv)

on terms and conditions substantially similar to the terms on which the Buyer agreed to buy the Dawson Sale Interest under this Deed, including that the buyer of the Relevant Dawson Sale Interest assumes all Assumed Liabilities applicable to the Relevant Dawson Interest and procures releases or replacement of all guarantees given by or on behalf of a Peabody Group member of any obligations associated with the Relevant Dawson Sale Interest; and

 

  (v)

the buyer of the Relevant Dawson Sale Interest does not receive representations and warranties more favourable than those given to the Buyer under this Deed and either:

 

  (A)

the Buyer (and not a Peabody Group member) gives representations and warranties to the buyer; or

 

  (B)

if a Peabody Group member is required to give representations and warranties to the buyer, the relevant Peabody Group member is indemnified by the Buyer Group for any liability in respect of all such representations or warranties given to the buyer, other than to the extent a breach of warranty is caused by the gross negligence or wilful misconduct of a Peabody Group Representative.

 

12.2

If a Power of Sale Trigger Event occurs, then Peabody shall:

 

  (a)

for a period of six months commencing on the Power of Sale Trigger Event, appoint the Buyer as the RDSI Sales Agent;

 

  (b)

to the extent that Peabody does not enter into a binding sales agreement in respect of the Relevant Dawson Sale Interest during the period referred to in Clause 12.2(a), appoint a suitably qualified independent third party as the RDSI Sales Agent;

 

  (c)

consider recommendations made by the RDSI Sales Agent in good faith; and

 

  (d)

use best endeavours to enter into a binding sales agreement in respect of the Relevant Dawson Sale Interest in accordance with the RDSI Sales Parameters, and then complete the sale contemplated by that binding sales agreement, without delay.

 

12.3

Peabody and the Buyer will cooperate with each other with respect to permitting potential buyers with access to due diligence information in respect of the Relevant Dawson Sale Interest and seeking to minimise liability through disclosures against any representations and warranties given in a binding sales agreement.

 

Page 41


12.4

If Peabody enters into a binding sales agreement in respect of the Relevant Dawson Sale Interest in accordance with Clause 12.2 (“Power of Sale Rights”), then the Buyer must procure that the Buyer Group does everything reasonably requested by Peabody to achieve completion under the binding sales agreement, including anything required under the Finance Documents (as defined in the Loan Note Deed) in relation to the release of any Encumbrance over any of the Relevant Dawson Sale Interest and releases of any Encumbrances granted in favour of Secured Financiers.

 

12.5

The Buyer must procure that the RDSI Sales Agent does not, as agent for Peabody, agree for Peabody to incur or assume any Liability unless Peabody gives its prior written consent, not to be unreasonably withheld.

 

13.

SMC SPA Completion Accounts

To the extent that the SMC SPA Completion Accounts relate to the Dawson Sale Interest, Peabody must:

 

  (a)

provide the Buyer with a copy of the draft SMC SPA Completion Accounts no later than 20 Business Days before they are required to be provided to the SMC Seller under the SMC SPA, together with any supporting workpapers to be provided to the SMC Seller (“Draft SMC SPA Completion Accounts”). The draft SMC SPA Completion Accounts and any supporting workpapers provided by the Buyer will be redacted so that only information in relation to the Dawson Sale Interest is provided to the Buyer;

 

  (b)

consult with the Buyer and take into account the Buyer’s reasonable views as to the components of the Draft SMC SPA Completion Accounts that relate to the Dawson Sale Interest; and

 

  (c)

upon request from the Buyer, exercise its rights under the SMC SPA to obtain further information from the SMC Seller to the extent reasonably necessary for the Buyer to review and assess the Draft SMC SPA Completion Accounts (but only to the extent relevant to the Dawson Sale Interest).

 

13.2

The Buyer shall notify Peabody within 10 Business Days after receiving the Draft SMC SPA Completion Accounts from Peabody if it:

 

  (a)

accepts the Draft SMC SPA Completion Accounts to the extent they relate to the Dawson Sale Interest; or

 

  (b)

does not accept the Draft SMC SPA Completion Accounts in which case the Buyer will notify Peabody of (i) the items in the Draft SMC SPA Completion Accounts which the Buyer disputes; (ii) reasonable detail regarding the basis upon which the Buyer disputes such items; and (iii) the adjustment and / or the replacement item that the Buyer would propose (such matters in this sub-paragraph (b) together being the “Objection Notice”).

If the Buyer fails to provide an Objection Notice within the period referred to above, then the Buyer will no longer be entitled to provide an Objection Notice.

 

13.3

Promptly after the SMC SPA Completion Accounts have been agreed or determined in accordance with the SMC SPA, Peabody shall provide written notice to the Buyer setting out:

 

  (a)

a copy of the final SMC SPA Completion Accounts (which will be redacted so that only information in relation to the Dawson Sale Interest is provided to the Buyer); and

 

  (b)

a response to the Objection Notice, setting out details on whether the matters raised in the Objection Notice were addressed in the final SMC SPA Completion Accounts.

 

Page 42


13.4

Within 10 Business Days of receipt of Peabody’s notice under Clause 13.3, and the Buyer stating:

 

  (a)

if the Buyer had delivered a valid Objection Notice under Clause 13.2 and the matters raised in the Objection Notice were not materially addressed in the final SMC SPA Completion Accounts, that it intends to dispute the final SMC SPA Completion Accounts to the extent they relate to the Dawson Sale Interest with Peabody, and setting out (i) the items in the final SMC SPA Completion Accounts which the Buyer disputes; (ii) reasonable detail regarding the basis upon which the Buyer disputes such items; and (iii) the adjustment and / or the replacement item that the Buyer would propose (“Further Objection Notice”); or

 

  (b)

otherwise, that it accepts the final SMC SPA Completion Accounts to the extent they relate to the Dawson Sale Interest.

 

13.5

If the Buyer gives a Further Objection Notice, the parties must attempt in good faith to reach agreement in respect of the matters set out in the Further Objection Notice and, if they are unable to do so within 15 Business Days following receipt by Peabody of the Further Objection Notice, the matters detailed in the Further Objection Notice will be referred to determination by an independent accountant in accordance with Schedule 16.

 

13.6

Nothing in this Clause 13 requires Peabody to obtain the Buyer’s consent to the SMC SPA Completion Accounts or any associated process under the SMC SPA.

 

14.

Obligations between SMC Completion and Completion

 

14.1

On (or conditional upon) SMC Completion (or such later date as may be agreed in writing between Peabody and the Buyer):

 

  (a)

Peabody shall procure that each relevant Peabody Group member enters into and complies with its obligations under the Consultancy Services Agreements and the Secondment Agreements (as applicable); and

 

  (b)

the Buyer shall procure that each relevant Buyer Group member enters into and complies with its obligations under the Consultancy Services Agreements and the Secondment Agreements (as applicable).

 

14.2

If Schedule 15 applies in accordance with Clause 8.4(b), then:

 

  (a)

Peabody shall perform its obligations set out in paragraph 5 of Schedule 15; and

 

  (b)

the Buyer shall perform its obligations set out in paragraph 6 of Schedule 15.

 

14.3

During the period from SMC Completion to the earlier of the last Completion and the termination of this Deed, Peabody must ensure that the Buyer and a reasonable number of persons authorised by the Buyer:

 

  (a)

are given reasonable, non-disruptive access during normal business hours and on reasonable notice, to inspect the operating sites, books and records of the Group; and

 

  (b)

have reasonable access to management of the Group, including for the purpose of planning the integration of the Group with the Buyer Group following Completion.

 

Page 43


14.4

Peabody is not required to give the Buyer or persons authorised by it the access described in Clause 14.3 to the extent that such access might reasonably be expected to:

 

  (a)

put a Peabody Group member or Buyer Group member in breach of the Competition and Consumer Act 2010 (Cth), any duty of confidence or any duty or obligation under Law; or

 

  (b)

result in a loss of any legal professional privilege.

 

14.5

The Buyer must ensure that any persons provided with the access referred to in Clause 14.3 comply with the reasonable requirements of Peabody in respect of the access and do not unreasonably interfere with the business or operations of the Group.

 

14.6

At least five Business Days before Completion, the Buyer shall provide to Peabody, as applicable:

 

  (a)

for each Group Company, the written consents in Agreed Form to act as director, secretary and public officer in respect of each incoming director, secretary and public officer that is replacing a director, secretary or public officer appointed by Peabody;

 

  (b)

if applicable, a replacement address for the registered office and principal place of business of each Group Company; and

 

  (c)

replacement names for each Group Company to take effect from Completion which must not include the words ‘Anglo’, ‘Anglo American’, ‘Peabody’ or any words which may be misleading or deceptively similar to or likely to be confused with the words ‘Anglo’, ‘Anglo American’ or ‘Peabody.

 

14.7

In respect of the FPS Environmental Authorities:

 

  (a)

the Buyer must make a Changed Holder Review Application in respect of each relevant FPS Environmental Authority (promptly and to the extent required under the Financial Provisioning Act); and

 

  (b)

Peabody must procure that the Group Company holding each FPS Environmental Authority for which a Changed Holder Review Application is required under the Financial Provisioning Act consents to the Changed Holder Review Application made by the Buyer.

 

14.8

Before Completion:

 

  (a)

Peabody must, not less than 10 Business Days before Completion, procure that the Seller Head Company gives the Buyer and the relevant Consolidated Subsidiary:

 

  (i)

a draft calculation of the Clear Exit Payment for the Consolidated Subsidiaries in respect of each relevant Group Liability in subsection 721-10(2) of the 1997 Tax Act; and

 

  (ii)

work papers supporting the calculation of the Clear Exit Payment in sufficient detail to enable a review and in a manner consistent with the methodology provided in the Seller Tax Sharing Agreement;

 

  (b)

the Buyer must, not less than 5 Business Days before Completion, provide to Peabody any comments it has on the draft calculation of the Clear Exit Payment provided under Clause 14.8(a)(i) and Peabody must consider any such comments (acting reasonably);

 

Page 44


  (c)

Peabody must, no later than 2 Business Days before Completion, procure that the Seller Head Company gives the relevant Consolidated Subsidiary and the Buyer a calculation of the Clear Exit Payment for the relevant Consolidated Subsidiary based on the draft calculation referred to in Clause 14.8(a)(i) and the Buyer’s comments referred to in Clause 14.8(b);

 

  (d)

at least 1 Business Day before Completion, Peabody must procure that:

 

  (i)

each of the Consolidated Subsidiaries pays the Clear Exit Payment (if any) to the Seller Head Company to which the relevant Group Liability relates in accordance with the Seller Tax Sharing Agreement;

 

  (ii)

the relevant Seller Head Company provides the relevant Consolidated Subsidiary and the Buyer a written receipt or other document evidencing the payment of any amount paid under Clause 14.8(d)(i); and

 

  (iii)

the relevant Group Company has discharged all other amounts owing by it to the relevant Seller Head Company or any other Member of the Seller Consolidated Group under the Seller Tax Sharing Agreement or a Tax Funding Agreement.

 

15.

Dawson Working Capital

 

15.1

The parties must use reasonable endeavours to agree the Dawson Working Capital Target prior to SMC Completion. In the event that the Dawson Working Capital Target is not agreed prior to SMC Completion, the parties must refer to the Dawson Working Capital Target to be determined in accordance with Schedule 16.

 

15.2

Within 10 Business Days after the SMC SPA Completion Accounts become binding on Peabody pursuant to the SMC SPA:

 

  (a)

if the Dawson Working Capital Adjustment is a positive number, the Buyer must Peabody an amount equal to the amount of the Dawson Working Capital Adjustment, to be funded by an issue of Loan Notes pursuant to clause 2.5 of the Loan Note Deed; or

 

  (b)

if the Dawson Working Capital Adjustment is a negative number, Peabody must pay the Buyer an amount equal to the absolute value of the Dawson Working Capital Adjustment, by way of prepayment to be set off against the face value of the “Upfront Consideration Loan Notes” (as defined in the Loan Note Deed).

 

16.

Material Adverse Change

 

16.1

If, before SMC Completion, either the Buyer or Peabody becomes aware that a Material Adverse Change has occurred, each party must promptly give written notice to each other party, including full details of the Material Adverse Change.

 

16.2

No later than 10 Business Days after a party gives a notice under Clause 16.2 (or such other period as the Buyer and Peabody may agree in writing), Peabody must notify the Buyer whether, in the reasonable opinion of Peabody, Peabody considers that the Material Adverse Change could be cured (including by payment of money) or could otherwise cease to exist on or before SMC Completion and full details of all relevant circumstances, including the basis on which Peabody considers the Material Adverse Change can be cured or otherwise cease to exist, and applicable timeframes.

 

16.3

If a Material Adverse Change occurs before SMC Completion and Peabody gives a notice under Clause 16.2 that the Material Adverse Change can be cured before SMC Completion, the Peabody must use reasonable endeavours to investigate and cure (or procure the cure of) the Material Adverse Change before the MAC Cure Date.

 

Page 45


16.4

Peabody must keep the Buyer reasonably informed in relation to any Material Adverse Change (including providing details of any actions that Peabody is taking to cure the Material Adverse Change), and must promptly give written notice to the Buyer at any time before SMC Completion if, in the reasonable opinion of Peabody, Peabody considers that a Material Adverse Change cannot be cured or otherwise cease to exist before the MAC Cure Date.

 

16.5

If a Material Adverse Change occurs before SMC Completion and the Material Adverse Change is not cured or has not otherwise ceased to exist on or before the MAC Cure Date, then:

 

  (a)

the Buyer may, by written notice to Peabody; or

 

  (b)

Peabody may, by written notice to the Buyer,

terminate this Deed at any time up until immediately prior to SMC Completion.

 

16.6

If Peabody gives a under Clause 16.2 or Clause 16.4 that the Material Adverse Change cannot be cured and will not otherwise cease to exist on or before SMC Completion, then:

 

  (a)

the Buyer may, by written notice to Peabody; or

 

  (b)

Peabody may, by written notice to the Buyer,

terminate this Deed within 10 Business Days of Peabody having given notice under Clause 16.2 or Clause 16.4.

 

16.7

The parties agree that the occurrence of a Material Adverse Change will not constitute a breach of this Deed by Peabody.

 

16.8

Nothing in Clause 16.7 restricts the Buyer from making a Claim against a Peabody Group member for a breach by a Peabody Group member of its obligations under this Deed, except that the Buyer is excluded from making a Claim against a Peabody Group member:

 

  (a)

where a Material Adverse Change has been cured in accordance with this Clause 16 or otherwise ceases to exist on the SMC Completion Date; or

 

  (b)

in respect of any breach of Warranty or Back to Back Warranty by Peabody where this Deed is terminated in accordance with Clauses 16.5 or 16.6.

 

17.

Transfer of Employment

 

17.1

By no later than two months before the Scheduled Completion Date, Peabody must procure that a Group Company agreed between the Buyer and Peabody (each acting reasonably) or, failing agreement prior to that time, Anglo Coal (Dawson Services) Pty Ltd (“New Employing Entity”) offers employment to each Relevant Employee who is employed by a Peabody Group member (“Seller Employer”) on that date.

 

17.2

Peabody must ensure that the New Employing Entity’s offer of employment to each Relevant Employee is in a form reasonably acceptable to the Buyer and:

 

  (a)

is on terms and conditions substantially similar to, and overall no less favourable than, the Relevant Employee’s terms and conditions of employment with the Seller Employer immediately prior to the Completion Date;

 

  (b)

is on terms that:

 

  (i)

the New Employing Entity will recognise the Relevant Employee’s Prior Service and assume liability for the Relevant Employee’s Accrued Leave Benefits accrued in respect of the Prior Service; and

 

Page 46


  (ii)

does not require the New Employing Entity to recognise and assume liability for acts or omissions by the Relevant Employee prior to the Completion Date;

 

  (iii)

provides that each Relevant Employee’s employment with the New Employing Entity will be conditional on Completion and, subject to Completion, will commence on the Completion Date; and

 

  (iv)

provides that if the Relevant Employee accepts the offer in writing, their employment with the Seller Employer will cease by agreement on the Completion Date.

 

17.3

The Buyer agrees that, for the purpose of calculating any service-related benefit to a Transferring Employee:

 

  (a)

each Transferring Employee’s Prior Service is to be taken as service with the New Employing Entity; and

 

  (b)

the continuity of each of the Transferring Employee’s employment is taken as not broken because they cease to be an employee of the Seller Employer and become an employee of the New Employing Entity.

 

17.4

The New Employing Entity is not required to provide a Transferring Employee with credit for a period of Prior Service when calculating a particular benefit to the extent that the Transferring Employee’s entitlement to that particular benefit has been paid or discharged by the Seller Employer.

 

17.5

Peabody must procure that the relevant Seller Employer:

 

  (a)

releases each Transferring Employee from their employment with the Seller Employer on or by the Completion Date;

 

  (b)

pays to each Transferring Employee all amounts due and payable to the employee on account of any wages, salary, allowances, other remuneration or other applicable benefits in respect of service up to and including the Completion Date;

 

  (c)

pays all superannuation contributions on behalf of the Transferring Employees that are due and payable under superannuation guarantee legislation in respect of service up to and including the Completion Date, to the superannuation fund of the Transferring Employee selected in accordance with “choice of fund” requirements under superannuation guarantee legislation; and

 

  (d)

no less than five Business Days before Completion, provides to the Buyer a list which indicates whether each Relevant Employee has accepted an offer of employment with the New Employing Entity.

 

17.6

The Buyer agrees that the Buyer Group will be solely responsible for:

 

  (a)

all wages, salary, allowances, remuneration, bonuses and other benefits (but not for acts and omissions of the Transferring Employees prior to the Completion Date) due to the Transferring Employees in respect of service with the New Employing Entity from the Completion Date;

 

  (b)

all superannuation contributions which are required to be made by law or any applicable industrial instruments on behalf of the Transferring Employees from the Completion Date; and

 

  (c)

the Accrued Leave Benefits of the Transferring Employees accrued as a result of service both prior to and after the Completion Date.

 

Page 47


17.7

Peabody is liable to each Buyer Group member and the New Employing Entity for, and indemnifies each Buyer Group member and the New Employing Entity against, all loss incurred or suffered by a Buyer Group member or the New Employing Entity arising from any claim by a Transferring Employee which:

 

  (a)

relates to a breach, or alleged breach, of any term or condition of that Transferring Employee’s employment with the Seller Employer occurring prior to Completion;

 

  (b)

is based on any event occurring on or prior to Completion; or

 

  (c)

otherwise arises from a breach by Peabody of its obligations under this Clause 16.

 

18.

Completion

 

18.1

The parties acknowledge that Completion may occur under this Deed in respect of one or more constituent parts of the Dawson Sale Interest simultaneously or at different times, and that this Deed is intended to regulate and give effect to each Completion as applicable to the relevant constituent parts of the Dawson Sale Interest. For the avoidance of doubt:

 

  (a)

any Completion that occurs with respect to certain constituent parts of the Dawson Sale Interest will not prevent a separate Completion in respect of the remaining constituent parts of the Dawson Sale Interest from occurring in accordance with this Deed; and

 

  (b)

where a party has a right or obligation that arises or applies at, before or after Completion (or on, before or after a Completion Date) in this Deed, that right or obligation shall apply to the relevant constituent parts of the Dawson Sale Interest to which such Completion (or Completion Date) relates.

 

18.2

Completion will take place at the Seller’s Solicitor’s offices (or at any other place as agreed in writing by Peabody and the Buyer) on the Scheduled Completion Date.

 

18.3

At Completion:

 

  (a)

Peabody shall do or procure the carrying out of all those things listed in paragraph 1 of Schedule 3 that pertain to the relevant Completion; and

 

  (b)

the Buyer shall do or procure the carrying out of all those things listed in paragraph 2 of Schedule 3 that pertain to the relevant Completion.

 

18.4

Subject to Clause 18.5, all documents and items delivered, and payments received, in connection with Completion will be held by the recipient to the order of the person delivering or making them.

 

18.5

Simultaneously with:

 

  (a)

the delivery of all documents and items required to be delivered;

 

  (b)

the receipt of all payments required to be made; and

 

  (c)

the performance of all other obligations required to be performed at Completion,

(and in the case of Clause 18.7(b), other than any such delivery, payment or performance to the extent such is not practicable), all such documents, items and payments will cease to be held to the order of the person delivering or making them, will be released and Completion will be deemed to have taken place.

 

Page 48


18.6

Subject to Clause 8, no party shall be obliged to complete the sale and purchase of any of the Dawson Sale Interests unless the sale and purchase of all of the Dawson Sale Interest is completed simultaneously.

 

18.7

Without prejudice to Clause 34 or any other rights and remedies a party may have, if the Buyer or Peabody does not comply with its obligations under Clause 18.3 on the Scheduled Completion Date, the Buyer (in the case of non-compliance by Peabody) and Peabody (in the case of non-compliance by the Buyer) shall each be entitled by notice in writing to each other party, at its discretion:

 

  (a)

to defer Completion to the next End of Month Date or any later date set for Completion in accordance with this Clause 18.7(a). In such event this Clause 18.7 will also apply to Completion so deferred;

 

  (b)

so far as practicable, to complete the sale and purchase of the Dawson Sale Interest in accordance with Clause 18.1 and Schedule 3; or

 

  (c)

provided Completion has been deferred in accordance with Clause 18.7(a) at least once by it, to terminate this Deed by notice in writing to the other parties, following which Clause 34 will apply.

 

19.

Separation

 

19.1

Peabody will provide a draft Separation Plan that reflects the Separation Principles to the Buyer no later than four months after the date of this Deed. Upon receipt by the Buyer of Peabody’s draft Separation Plan, Peabody and the Buyer will use reasonable endeavours to agree in writing the final Separation Plan which incorporates the Separation Principles by the earlier of:

 

  (a)

SMC Completion; and

 

  (b)

the date that is five months after the date of this Deed (and if not agreed by that date, as soon as reasonably practicable thereafter).

 

19.2

In connection with the agreement of the Separation Plan, the parties must act in good faith in relation to requests by the Buyer to add or remove services under the TSA and each party must act reasonably in negotiating amendments to the TSA to reflect such requests, including by using reasonable endeavours to agree on the scope of the added or removed services, and the associated charges.

 

19.3

The parties agree that following the date on which the Separation Plan is agreed in accordance with Clause 19.1, they will continue to review and update the Separation Plan, by mutual agreement in writing with the goal of achieving the Separation Principles.

 

19.4

In the event that the parties fail to agree the final Separation Plan in accordance with Clause 19.1, or any adjustment to the Separation Plan proposed by either party under Clause 19.3, this will be an escalation event (an “Escalation Event”) and the Buyer and Peabody will, within 15 Business Days of the occurrence of an Escalation Event, escalate the Escalation Event in writing to a director or equivalent senior individual of their respective organisations (“Senior Executives”). The Senior Executives will promptly cooperate in good faith to resolve the Escalation Event and if the Escalation Event has not been resolved in writing by the Senior Executives within 15 Business Days of being notified of it by the parties, the Escalation Event will be deemed to have become a Dispute and each party may commence the formal dispute resolution procedure set out in Clause 49. In circumstances where the Escalation Event relates to a specific item within the draft Separation Plan but the parties are otherwise in agreement as to the other items within the draft Separation Plan, the parties will use reasonable endeavours to implement the Separation Plan in respect of those items that are agreed upon in accordance with this Clause 19.

 

Page 49


19.5

The parties will establish a separation committee (Separation Committee”) to assist them (subject to compliance with Anti-trust Laws) in agreeing the Separation Plan and facilitating the execution of the Separation Plan (including by seeking to resolve issues relating to the execution of the Separation Plan, and confirming when steps under the Separation Plan will commence and when they have been completed).

 

19.6

Within one month of the date of this Deed, each of Peabody and Buyer must appoint and notify the other of no less than two suitably experienced representatives as members of the Separation Committee, and each party must nominate one of their members to have joint day-to-day responsibility for the management of the Separation Committee (the “Leads”). Each Party may change their appointed members of the Separation Committee by notice to the other Party at any time. The members of the Separation Committee must meet (including by videoconference) within five Business Days of delivery of the first draft Separation Plan and thereafter at least fortnightly, unless otherwise agreed by the members of the Separation Committee. Advisors to either party may join the Separation Committee, on a permanent or ad hoc basis, as required.

 

19.7

The Lead for each of Peabody and Buyer must use reasonable endeavours to agree with the other party’s Lead an agenda for each upcoming meeting of the Separation Committee and to circulate to all other members of the Separation Committee the agenda for that meeting by no later than two Business Days before that meeting.

 

19.8

Peabody must use reasonable endeavours to provide all information considered by the SMC Separation Committee as it relates to the Dawson Sale Interest or the Separation Principles.

 

19.9

The Separation Committee may decide to undertake separation activities in a way which deviates from the Separation Plan, provided all such decisions by the Separation Committee are made unanimously between the two Leads. In the event one party considers a deviation from the Separation Plan is necessary and / or disagrees with the proposed implementation of the Separation Plan, and the Leads fail to unanimously agree on how to resolve a request or issue, this will be an Escalation Event and Clause 19.4 will apply, mutatis mutandis.

 

19.10

Notwithstanding Clause 19.9, Peabody must ensure that:

 

  (a)

the SMC Peabody Lead raises any concern regarding the Dawson Sale Interest or the Separation Principles, as notified by the Buyer, as soon as reasonably practicable at the SMC Separation Committee; and

 

  (b)

the Peabody Lead provides regular updates on the SMC Separation Committee’s consideration of any such Buyer concerns.

 

19.11

Subject to compliance with Anti-trust Laws, the parties will comply with the requirements of, and use reasonable endeavours to achieve any milestones set out in, the agreed Separation Plan including by procuring that any of their Affiliates undertake any action required to comply with the Separation Plan on and from the date the Separation Plan is agreed.

 

19.12

If Peabody becomes aware that a third-party consent is required in respect of the separation of a Group Asset (“Third-Party Consent”), Peabody will notify the Buyer of such required Third-Party Consent as soon as reasonably practicable, and unless Peabody and Buyer agree (acting reasonably) that it is not in the best interests of the Group to seek such Third-Party Consent, Peabody will use reasonable endeavours to obtain such Third-Party Consent in accordance with the timelines contemplated by the Separation Principles or Separation Plan (as applicable) (and in any event by the end of the term of the TSA). All one-off and recurring third-party costs suffered, incurred or due to be incurred by the Peabody Group in relation to the transfer by the Peabody Group of a Group Asset to the Buyer Group and in obtaining any Third-Party Consents will be borne by the Buyer and the Buyer will promptly reimburse Peabody for any amounts so incurred by the Peabody Group. If a Third-Party Consent has not been obtained by Peabody by the end of the TSA (or Completion, where required by the Separation Principles), the relevant Group Asset will not be separated from the Peabody Group’s business and the Buyer will be responsible for procuring an alternative to that Group Asset.

 

Page 50


20.

Post-Completion Obligations

 

20.1

After Completion, the Buyer must procure that the Group Companies make all necessary filings with ASIC to give effect to the changes in the membership of the Group Companies, the changes in the officers of each Group Company and the change in name and registered address of each Group Company made in accordance with the terms of this Deed.

 

20.2

The Buyer shall procure that each Group Company shall as soon as reasonably practicable and in any event:

 

  (a)

within five Business Days of Completion:

 

  (i)

remove any use of the Trade Marks and Get-up displayed online by the Group Company and / or any of their Affiliates; and

 

  (ii)

cease to use in the ordinary course of any business:

 

  (A)

the words “Anglo”, “Anglo American” or “Peabody”; and

 

  (B)

any business or domain name which, at Completion, was or had been used by Peabody or any of its Affiliates;

 

  (b)

within 20 Business Days of Completion:

 

  (i)

remove or replace the Trade Marks and Get-up on any administrative forms, templates, documents and other corporate content; and

 

  (ii)

remove any signs and indicia bearing the Trade Marks and Get-up from any headquarter premises of the Group Company and / or any of their Affiliates;

 

  (c)

within 60 Business Days of Completion, remove any signs and indicia bearing the Trade Marks and Get-up from any other sites and operations owned, controlled and / or operated by the Group Company; and

 

  (d)

within 12 months of Completion, remove or replace the Trade Marks and Get-up on any clothing of Employees.

 

20.3

The Buyer shall put in place and maintain until the sixth anniversary of the Completion Date run-off directors’ and officers’ insurance with the same level of coverage and scope as each Group Company has in place immediately before Completion (“D&O Insurance”) in respect of those directors and officers of any Group Company who resign from any board of a Group Company at or before Completion, providing a level of cover no less extensive than that which is in place as at the date of this Deed. The Buyer undertakes that it shall not take or omit to take (and shall procure that each Buyer Group member shall not take or omit to take) any action which has the effect of invalidating the D&O Insurance. Any such director covered by the D&O Insurance may enforce this Clause 20.3 under the Contracts (Rights of Third Parties) Act 1999.

 

20.4

For a period of seven years from Completion, the Buyer shall, and shall procure that each Group Company shall:

 

  (a)

preserve and maintain all books, records and documents which relate to the Taxation of the Group and each Group Company and pertain to events occurring before Completion; and

 

Page 51


  (b)

make all books, records and documents which are in its possession or control and relate to the Group (only insofar as the same record matters occurring on or before Completion) available for inspection by Peabody and its Representatives and permit Peabody and its Representatives to have reasonable access during normal Working Hours to, and to take copies (at such person’s own expense) of such books, records and documents, and to otherwise provide reasonable information and assistance and reasonable access to any director, officer, employee or agent or adviser of the Group, in each case to the extent reasonably required by Peabody or its Representatives and subject to reasonable advance notice being given.

 

20.5

Except as required by applicable Law or with Peabody’s written consent (such consent not to be unreasonably withheld, conditioned or delayed), the Buyer shall not, and shall not cause or permit any Buyer Group member (including the Group Companies) to, make or change any Tax election, amend any Tax Return or take any Tax position on any Tax Return, in each case with respect to any period (or part of any period) ended on or before Completion, that could result in any increased Tax liability (or any indemnification or payment obligation under this Deed or any other Transaction Document in respect of any Tax liability) to, or reduce any Relief of, Peabody or any of its Affiliates.

 

20.6

The Buyer shall, and shall procure that each Group Company shall, use reasonable endeavours to create Encumbrances in favour of Peabody over the Participating Interests and other assets of each Group Company that owns a Participating Interest (“Participant Assets”) to secure the Buyer’s obligation to pay the Dawson Deferred Consideration as soon as reasonably practicable after Completion on substantially the same terms as the General Security Deed (as that term is defined in the Loan Note Deed). The Buyer’s obligation to use reasonable endeavours under this Clause 20.6 shall include:

 

  (a)

seeking agreement from Mitsui to enter into a deed of priority required under a Joint Venture Agreement to permit the granting of Encumbrances over the Joint Venture Assets by a Buyer Group member to a Peabody Group member; and

 

  (b)

seeking agreement from its Financing Sources in respect of contingent instruments, and any providers of supplemental or replacement contingent instruments or working capital facilities to the Buyer or a Buyer Group member (or, in each case, an agent or security trustee of their behalf) (the “Secured Financiers”) to enter into an intercreditor deed with Peabody such that any Encumbrances granted over the Participant Assets in favour of Peabody and the Secured Financiers will rank pari passu.

 

20.7

Peabody shall use reasonable endeavours, and the Buyer shall use reasonable endeavours to procure that its Secured Financiers, enter into an intercreditor deed between the Secured Financiers and Peabody prior to SMC Completion such that any Encumbrances granted over the Shares in favour of Peabody and the Secured Financiers will rank pari passu.

 

20.8

From Completion until the Dawson Deferred Consideration is paid in full, the Buyer shall not, and shall procure that each Group Company shall not, create or permit any Encumbrance in or over the Shares or the Participating Interests other than:

 

  (a)

a Permitted Encumbrance;

 

  (b)

Encumbrances in favour of its Secured Financiers provided that:

 

  (i)

the Secured Financier and Peabody have entered into an intercreditor deed such that any Encumbrances granted over the Shares or Participant Assets in favour of Peabody and the Secured Financiers will rank pari passu; and

 

  (ii)

no Encumbrance in respect of Shares or Participant Assets is granted in favour of a Secured Financier unless an Encumbrance is or has been granted to Peabody in respect of those Shares or Participating Interest or other assets (in each case to which Peabody is entitled to be granted an Encumbrance under Clause 20.6); or

 

Page 52


  (iii)

in respect of any Encumbrance granted for a working capital facility, the facility limit does not exceed AUD 50,000,000; or

 

  (c)

with the prior written consent of Peabody.

 

20.9

Within one Business Day after Completion:

 

  (a)

Peabody must lodge with ASIC a declaration by the directors of Peabody (or its holding company, if any) in accordance with clause 4.2(c)(i) and (ii) of the Deed of Cross Guarantee; and

 

  (b)

the Buyer must procure that the Company lodges with ASIC a copy of the certificate referred to in paragraph 1.1(o) of Schedule 3 and a notice of disposal, in accordance with clause 4.2(c)(ii) and (iii) of the Deed of Cross Guarantee.

 

21.

Wrong Pockets

If within 12 months following Completion, it is established that a Peabody Group member or a Buyer Group member has any right, title, or interest in any asset which is part of the Dawson Sale Interest which, pursuant to this Deed should have been transferred to, or retained by, the other (as the case may be):

 

  (a)

the party holding the right, title, or interest in the asset shall transfer such right, title or interest, as soon as practicable, to the other party (or its nominee) on terms that no consideration is required to be paid for such transfer; and

 

  (b)

each party shall execute or do, or procure to be executed or done, at the own cost, all such documents and things as may be necessary to validly effect the transfer and to vest the relevant right, title and / or interest in the asset to the other party (or its nominee),

but no party will be obliged to transfer (or procure the transfer of) any asset which cannot by its terms or by Law be so transferred (except that the parties shall cooperate and use reasonable endeavours to obtain any consents and approvals from third parties as may be necessary to complete such transfer as soon as reasonably possible).

 

22.

Assumed Contracts

 

22.1

Subject to Clause 22.3, on and with effect from Completion, Peabody must procure the relevant Seller to assign, and the Buyer accepts an assignment of, all of the relevant Seller’s rights under, benefits of and interests in the Assumed Contracts (“Benefits”) and assumes the relevant Seller’s obligations and Liabilities in relation to the Assumed Contracts (whether arising before, on or after Completion).

 

22.2

Without limiting Clause 22.1, and subject to Clause 22.8, in respect of each Assumed Contract, the relevant Seller and the Buyer shall use best endeavours to, and as soon as reasonably possible, enter into a deed of assumption and assignment (or if required by the relevant contract, a deed of novation) with the counterparty, conditional upon Completion, under which:

 

  (a)

the Benefits under the Assumed Contract are assigned to the Buyer with effect on and from Completion;

 

  (b)

the Buyer assumes the relevant Seller’s obligations and Liabilities under the Assumed Contract (whether arising before, on and from Completion); and

 

  (c)

the relevant Seller as assignor is released from its obligations and Liabilities under the Assumed Contract (whether arising before, on and from Completion),

 

Page 53


and which shall be in the form approved by Peabody and the Buyer (and such approval shall not be unreasonably withheld or delayed).

 

22.3

This Deed does not constitute an assignment or an attempted assignment of an Assumed Contract if an assignment or attempted assignment requires the consent of the counterparty to the Assumed Contract and would constitute a breach of that Assumed Contract or applicable Law if an assignment were made without that consent.

 

22.4

If the consent of a counterparty is required for the transfer of an Assumed Contract to the Buyer under Clauses 22.1 to 22.3, Peabody and the Buyer will use all reasonable endeavours to obtain that consent by or as soon as reasonably practicable after Completion.

 

22.5

Pending the transfer of an Assumed Contract to the Buyer under Clause 22.1, the relevant Seller shall, on and from Completion, at the expense of the Buyer:

 

  (a)

hold the Benefits of the Assumed Contract on trust for the Buyer and account to the Buyer promptly after receipt by it for the value of any Benefit of the Assumed Contract that arises (or relates to the period) after Completion;

 

  (b)

enforce the Assumed Contract against any counterparty to it in the manner that the Buyer directs (and promptly following such direction) from time to time; and

 

  (c)

not assign, transfer, amend, terminate, surrender or waive any of the Seller’s rights under, or otherwise deal with (or agree to or otherwise permit any such act or omission with respect to), the Assumed Contract without the Buyer’s prior written consent.

 

22.6

If any Assumed Contract has not been transferred to the Buyer at Completion:

 

  (a)

subject to Clause 22.7, the relevant Seller shall perform and observe all obligations of the relevant Seller under any Assumed Contract which are due to be performed before Completion;

 

  (b)

the Buyer shall, to the extent it lawfully can, assume, perform and observe all obligations of the relevant Seller under any Assumed Contract which are due to be performed after Completion; and

 

  (c)

the relevant Seller shall at the request and expense of and with the Buyer’s assistance, use all reasonable endeavours to perform any obligation of the relevant Seller under any Assumed Contract which arises (or relates to the period) from Completion in conformity with the Buyer’s directions which the Buyer cannot lawfully assume, perform or observe.

 

22.7

Without limiting Clause 29, the Buyer indemnifies Peabody and the relevant Seller (on a dollar for dollar basis) against all Liabilities suffered, paid or incurred by Peabody or the relevant Seller from:

 

  (a)

any breach, non-performance or non-observance of any obligation of the assignee under an Assumed Contract;

 

  (b)

the relevant Seller performing its obligations under Clauses 22.5(b), 22.6(a) and 22.6(c);

 

  (c)

any claim made by a counterparty under an Assumed Contract; and

 

  (d)

any breach by the Buyer of Clauses 22.6(a) to 22.6(c).

 

22.8

Peabody and the relevant Seller’s rights of indemnity under this Clause 20.8 will be reduced if and to the extent that Peabody or any of the Sellers has not substantively complied with its obligations under Clauses 22.5 and 22.6 and the Buyer’s Liability is increased as a result of such failure.

 

Page 54


22.9

If, despite all their reasonable endeavours, the relevant Seller and the Buyer are unable (including because any counterparty consent required cannot be obtained) to transfer an Assumed Contract under Clauses 22.1 to 22.3 within 12 months from Completion, Peabody may, by written notice to the Buyer, require the relevant Seller and the Buyer to use all their respective reasonable endeavours to procure that the Assumed Contract is terminated with no additional liability to the relevant Seller. For the avoidance of doubt, there will be no adjustment to the Consideration because of any such termination.

 

22.10

The provisions of this Clause 20.8 continue to apply in relation to, and pending the termination of an Assumed Contract under Clause 22.8. If the Buyer and Peabody have, by written agreement, agreed to waive the Condition in Clause 9.1(g)(ii) in respect of any Specific Contract, the parties agree that a reference to Assumed Contracts in this Clause 20.8 includes reference to each Specific Contract in relation to which the Condition in Clause 9.1(g)(ii) has not been satisfied (as applicable).

 

23.

Guarantees

 

23.1

From SMC Completion the Buyer shall promptly do everything necessary to assist Peabody with the release of the Seller Guarantees, including:

 

  (a)

lodging the Replacement Bank Guarantees and Replacement Financial Provisioning (and any duly completed and executed forms as may be required) with the State or the Bank Guarantee Beneficiary; and

 

  (b)

providing the relevant Authority with any further Financial Provisioning in relation to the Mining Tenements and related Environmental Authorisations as and if required by the relevant Authority (including any Financial Provisioning which is specified as being required to be provided in a Notice of Decision),

and, pending release of any such Seller Guarantee, on and from Completion, the Buyer will indemnify Peabody and each of its Affiliates on demand (on a dollar for dollar basis) against all Liabilities arising after SMC Completion under or by reason of such Seller Guarantee.

 

23.2

Without limiting Clause 23.1, on and from SMC Completion the Buyer shall deliver to the relevant Authority any Financial Provisioning (in addition to any Financial Provisioning required to be delivered under Clause 23.1) required to be provided in respect of a Mining Tenement and / or an Environmental Authorisation under the Resources Act or the Environmental Protection Act 1994 (Qld) (including in respect of any FPS Environmental Authority).

 

23.3

Without limiting Clause 23.2, the Buyer shall use reasonable endeavours to ensure that as soon as reasonably practicable after SMC Completion, Peabody and each of its Affiliates are released from all Third-Party Guarantees and, to the extent not replaced at or before SMC Completion, any Seller Guarantees given by Peabody or its Affiliates in respect of obligations of any Group Company and pending release of any such Third-Party Guarantee or Seller Guarantee, and the Buyer shall indemnify Peabody and its Affiliates on demand (on a dollar for dollar basis) against all Liabilities arising after SMC Completion under or by reason of such Third-Party Guarantee or Seller Guarantee.

 

23.4

Without limiting Clause 23.2, Peabody shall use reasonable endeavours to ensure that as soon as reasonably practicable after SMC Completion and no later than Completion, each Group Company is released from all Third-Party Guarantees given by it in respect of Peabody’s or any of its Affiliate’s obligations and pending release of any such Third-Party Guarantee, Peabody shall indemnify the Buyer and each Group Company on demand (on a dollar for dollar basis) against all Liabilities arising after SMC Completion under or by reason of such Third-Party Guarantee.

 

Page 55


24.

Peabody’s Warranties and Undertakings

 

24.1

Peabody warrants to the Buyer that each of the Warranties in Schedule 4 is true and accurate:

 

  (a)

as at the date of this Deed;

 

  (b)

as at SMC Completion as if repeated immediately before SMC Completion; and

 

  (c)

as at Completion as if repeated immediately before Completion.

 

24.2

Each of the Warranties must be construed as being separate and independent.

 

24.3

Peabody warrants to the Buyer that each of the Back to Back Warranties in Schedule 6 is true and accurate:

 

  (a)

as at the date of the SMC SPA; and

 

  (b)

in respect of the Back to Back Fundamental Warranties only, as at SMC Completion as if repeated immediately before SMC Completion and on the basis that any reference made to the date of this Deed (whether express or implied) in any Back to Back Fundamental Warranty must be considered a reference to the SMC Completion Date.

 

24.4

Each of the Back to Back Warranties must be construed as being separate and independent.

 

24.5

Back to Back Warranties qualified by the expression “so far as the SMC Seller is aware” (or any similar expression) are deemed to be given by Peabody only based on the actual knowledge of [***], [***], [***], [***], [***], [***], [***], [***], [***], [***]and [***]as at the date of the SMC SPA.

 

24.6

Notwithstanding any other provision of this Deed, the provisions of Clause 25 operate to limit Peabody’s liability in respect of a Back to Back Warranty Claim or a Tax Covenant Claim.

 

24.7

Notwithstanding any other provision of this Deed, the provisions of this Clause 24 and Schedule 5, operate to limit Peabody’s liability in respect of any Claim (other than a Back to Back Warranty Claim or a Tax Covenant Claim).

 

24.8

Peabody and the Buyer acknowledge and agree that on and from Completion:

 

  (a)

except in the case of fraud and without prejudice to any matter agreed in the Transaction Documents, to the extent permitted by Law, Peabody, its Affiliates and its Affiliates’ Connected Persons have no rights or remedies against (and have not assigned any rights or remedies against) and shall not bring or make any claim, proceeding, suit or action, in relation to the transactions contemplated by the Transaction Documents:

 

  (i)

in connection with any information, opinion or advice supplied or given (or omitted to be supplied or given) in connection with any of the Transaction Documents against any current or former directors, officers, employees, agents, consultants, advisers, auditors and accountants of any Group Company (each of whom shall be entitled to enforce this Clause 24.8(a)(i) under the Contracts (Rights of Third Parties) Act 1999) on whom it may have relied before agreeing to any terms of, or entering into, any Transaction Document; and

 

  (ii)

against any Group Company or any of their current or former directors, officers, employees, agents, consultants, advisers, auditors and accountants (each of which shall be entitled to enforce this Clause 24.8(a)(ii) under the Contracts (Rights of Third Parties) Act 1999) in relation to a matter occurring before the Completion Date,

 

Page 56


and with effect from Completion, Peabody irrevocably releases, waives, forfeits and / or extinguishes (and shall procure that each of its Affiliates and its Affiliates’ Connected Persons release, waive, forfeit and / or extinguish) any such claim, proceeding, suit or action;

 

  (b)

subject to any payments required to be made on or following the Completion Date pursuant to this Deed, no amounts will be owed from a Group Company to Peabody or any of its Affiliates in relation to matters occurring before Completion; and

 

  (c)

subject to any payments required to be made on or following the Completion Date pursuant to this Deed, no amounts will be owed from Peabody or any of its Affiliates to a Group Company in relation to matters occurring before Completion.

 

25.

Back to Back Warranty Claims and Tax Covenant Claims

 

[***]

 

26.

Peabody Guarantor’s Warranties and Undertakings

 

26.1

The Peabody Guarantor warrants to the Buyer as at the date of this Deed and as at Completion as if repeated immediately before Completion that:

 

  (a)

the Peabody Guarantor is validly incorporated, in existence and duly registered under the laws of its country of incorporation;

 

  (b)

no:

 

Page 57


  (i)

meeting has been convened, resolution proposed, petition presented or order made for its winding up;

 

  (ii)

receiver, receiver and manager, provisional liquidator, liquidator, administrator or other officer of the court has been appointed in relation to any of its assets; or

 

  (iii)

mortgagee has taken, attempted to take or indicated an intention to exercise its rights under any security of which it is the mortgagor or chargor;

 

  (c)

the Peabody Guarantor has taken all necessary action and has all requisite power and authority to enter into and perform this Deed and the other Transaction Documents to which the Peabody Guarantor is a party in accordance with their terms;

 

  (d)

this Deed and the other Transaction Documents to which the Peabody Guarantor is a party constitute (or will constitute when executed) valid, legal and binding obligations on the Peabody Guarantor in accordance with their terms;

 

  (e)

the execution and delivery of this Deed and the other Transaction Documents to which the Peabody Guarantor is a party by the Peabody Guarantor and the performance of and compliance with their terms and provisions will not conflict with or result in a breach of, or constitute a default under, the Peabody Guarantor’s constitutional documents, any agreement or instrument to which the Peabody Guarantor is a party or by which it is bound, or any Law, order or judgment that applies to or binds the Peabody Guarantor or any of its property;

 

  (f)

no consent, action, approval or authorisation of, and no registration, declaration, notification or filing with or to, any Authority is required to be obtained, or made, by the Peabody Guarantor to authorise the execution or performance of this Deed by the Peabody Guarantor;

 

  (g)

the Peabody Guarantor is not and none of its directors, officers, employees, agents, or representatives is engaged (in such capacity) in any conduct, activity or omission which would constitute material non-compliance with any Sanctions Law or Anticorruption Law; and

 

  (h)

the Peabody Guarantor is not and none of its directors, officers, employees, agents or representatives (in such capacity):

 

  (i)

is or has been a Sanctioned Person;

 

  (ii)

is or has been in breach of any Sanctions Laws; or

 

  (iii)

has in the three years before the date of this Deed engaged in any transaction or dealing with any Sanctioned Person or with any Sanctioned Territory,

but Clauses 26.1(g) and 26.1(h) will not apply if and to the extent that it is or would be unenforceable by reason of breach of any provision of the Council Regulation (EC) No 2271/96 of 22 November 1996, the Protecting against the Effects of the Extraterritorial Application of Third Country Legislation (Amendment) (EU Exit) Regulations 2020 (SI 2020/1660), any law or regulation implementing such regulations in any member state of the European Union or the United Kingdom, or any similar blocking or anti-boycott law.

 

26.2

The Peabody Guarantor irrevocably and unconditionally:

 

  (a)

guarantees, as a primary obligation to the Buyer, the due and punctual performance by Peabody of all the Seller Guaranteed Obligations in accordance with this Clause 26;

 

Page 58


  (b)

undertakes to the Buyer that:

 

  (i)

whenever Peabody does not pay any amount when due under or in connection with the Seller Guaranteed Obligations, it shall immediately on demand and without deduction or withholding pay that amount as if the Peabody Guarantor was the principal obligor; and

 

  (ii)

whenever Peabody fails to perform any other Seller Guaranteed Obligation, it shall immediately on demand perform (or procure the performance of) and satisfy (or procure the satisfaction of) that Seller Guaranteed Obligation,

so that the same benefits are conferred on the Buyer as it would have received if such Seller Guaranteed Obligations had been performed and satisfied by Peabody (as relevant); and

 

  (c)

indemnifies each of the Buyer, all of its Affiliates and Representatives and each officer, employee and agent of such persons on demand (on a dollar for dollar basis) against all Liabilities which the Buyer may suffer or incur (whether directly or indirectly) as a result of any claim relating to:

 

  (i)

the failure of Peabody to perform any of the Seller Guaranteed Obligations; or

 

  (ii)

any Seller Guaranteed Obligation becoming unenforceable, invalid or illegal.

 

26.3

The guarantee in Clause 26.2 is a continuing guarantee and will extend to the ultimate balance of sums payable by Peabody in respect of the Seller Guaranteed Obligations, regardless of any intermediate payment or discharge in whole or in part.

 

26.4

If any payment by any of Peabody and / or the Peabody Guarantor or any discharge of any obligations of Peabody and / or the Peabody Guarantor or any security for those obligations or otherwise is avoided or reduced because of insolvency or any similar event:

 

  (a)

the liability of Peabody and the Peabody Guarantor will continue as if the payment discharge, avoidance or reduction had not occurred; and

 

  (b)

the Buyer will be entitled to recover the value or amount of that security or payment from the Peabody Guarantor as if the payment, discharge, avoidance or reduction had not occurred.

 

26.5

The obligations of the Peabody Guarantor under this Clause 26 will not be affected by any act, omission, matter or thing which, but for this Clause 26.5, would reduce, release or prejudice any of its obligations under this Clause 26 (whether or not known to the Buyer, the Buyer Guarantor, Peabody or the Peabody Guarantor) including:

 

  (a)

any time, waiver or consent granted to, or composition with, Peabody or any other person;

 

  (b)

the release of Peabody or any other person under the terms of any composition or arrangement with any creditor;

 

  (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, Peabody or any 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;

 

  (d)

any incapacity or lack of power, authority or legal personality of or dissolution, amalgamation, reconstruction or change in the members or status of the Buyer or any other person;

 

Page 59


  (e)

any amendment (however fundamental) or replacement of any of the Seller Guaranteed Obligations or any other document or security;

 

  (f)

any unenforceability, illegality or invalidity of any obligation of any person under this Deed or any other document or security; or

 

  (g)

any insolvency or similar proceedings.

 

26.6

The Peabody Guarantor waives any right it may have of first requiring the Buyer to proceed against or enforce any other rights or security or claim payment from any person before claiming from the Peabody Guarantor under this Clause 26. This waiver applies irrespective of any law or any provision of this Deed to the contrary.

 

26.7

Until all amounts which may be or become payable by Peabody under or in connection with the Seller Guaranteed Obligations have been irrevocably paid in full:

 

  (a)

the Buyer may refrain from applying or enforcing any other money, security or rights held or received by the Buyer in respect of those amounts or apply and enforce the same in such manner and order as they see fit (whether against those amounts or otherwise), and the Peabody Guarantor shall not be entitled to the benefit of the same;

 

  (b)

the Buyer may hold in an interest-bearing suspense account any money received from the Peabody Guarantor or on account of the Peabody Guarantor’s liability under this Clause 26;

 

  (c)

the Peabody Guarantor shall not exercise any rights which it may have by reason of performance by it of the Seller Guaranteed Obligations to be indemnified by the Seller or to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Seller in respect of the Seller Guaranteed Obligations or of any other guarantee or security taken pursuant to, or in connection with, the Seller Guaranteed Obligations by the Buyer; and

 

  (d)

the Peabody Guarantor shall not claim from Peabody any sums which may be owing to it from Peabody or have the benefit of any set-off or counter claim or proof against, or dividend, composition or payment by, Peabody.

 

26.8

The Peabody Guarantor undertakes to hold any security taken from Peabody in connection with this guarantee in trust for the Buyer pending discharge in full of all the Peabody Guarantor’s obligations under this Clause 26.

 

26.9

This guarantee is in addition to and is not in any way prejudiced by any other guarantee or security now or subsequently held by the Buyer.

 

27.

Buyer’s Warranties and Undertakings

 

27.1

The Buyer warrants to Peabody:

 

  (a)

as at the date of this Deed;

 

  (b)

as at SMC Completion as if repeated immediately before SMC Completion; and

 

  (c)

as at Completion as if repeated immediately before Completion,

that:

 

  (d)

the Buyer is validly incorporated, in existence and duly registered under the laws of its country of incorporation;

 

Page 60


  (e)

no (i) meeting has been convened, resolution proposed, petition presented or order made for its winding up; (ii) receiver, receiver and manager, provisional liquidator, liquidator, administrator or other officer of the court has been appointed in relation to any of its assets; or (iii) mortgagee has taken, attempted to take or indicated an intention to exercise its rights under any security of which it is the mortgagor or chargor;

 

  (f)

the Buyer has taken all necessary action and has all requisite power and authority to enter into and perform this Deed and the other Transaction Documents in accordance with their terms;

 

  (g)

this Deed and the other Transaction Documents constitute (or will constitute when executed) valid, legal and binding obligations on the Buyer in accordance with their terms;

 

  (h)

the execution and delivery of this Deed and the other Transaction Documents by the Buyer and the performance of and compliance with their terms and provisions will not conflict with or result in a breach of, or constitute a default under, the Buyer’s constitutional documents, any agreement or instrument to which the Buyer is a party or by which it is bound, or any Law, order or judgment that applies to or binds the Buyer or any of its property;

 

  (i)

no consent, action, approval or authorisation of, and no registration, declaration, notification or filing with or to, any Authority (other than the Regulatory Conditions) is required to be obtained, or made, by the Buyer to authorise the execution or performance of this Deed by the Buyer, and, in respect of the Regulatory Conditions, no Authority has indicated to the Buyer, its Affiliates or the Buyer’s or its Affiliates’ Representatives that its consent, approval or authorisation may not be provided, or may only be provided on a conditional basis (and such conditions are not standard conditions or not satisfactory to the Buyer), to enable the Buyer’s performance of this Deed;

 

  (j)

the Buyer has provided Peabody with a correct and complete copy of the Buyer Financing Letters pursuant to which the Buyer will have available funds together with cash on hand to meet its obligations under the Transaction Documents;

 

  (k)

each Buyer Financing Letter is in full force and effect and has been executed by and is binding upon the Buyer Group members that are party to the Buyer Financing Letters and, to the Buyer’s knowledge, all other parties to the Buyer Financing Letters;

 

  (l)

there are no agreements, side letters or arrangements (other than as described in the Buyer Financing Letters) relating to the Financing that impose or permit the imposition of conditions precedent to the funding of the Financing on the Completion Date or would otherwise affect the availability of the Financing on the Completion Date;

 

  (m)

the Buyer is not aware of any fact, matter, event or circumstance which is or could reasonably be expected to result in a Claim, and for the purposes of this Clause 27.1(l), the Buyer’s awareness means the extent to which the Buyer Deal Team Members are aware, or ought reasonably to have been aware after having made reasonable enquiries, as at the date of this Deed of such fact, matter, event or circumstance;

 

  (n)

the Buyer is not and no Buyer Group member nor any of their respective directors, officers, employees, agents, or representatives is engaged (in such capacity) in any conduct, activity or omission which would constitute material non-compliance with any Sanctions Law or Anticorruption Law; and

 

Page 61


  (o)

the Buyer is not and no Buyer Group member nor any of their respective directors, officers, employees, agents or representatives (in such capacity):

 

  (i)

is or has been a Sanctioned Person;

 

  (ii)

is or has been in breach of any Sanctions Laws; or

 

  (iii)

has in the three years before the date of this Deed engaged in any transaction or dealing with any Sanctioned Person or with any Sanctioned Territory,

but Clauses 27.1(n) and 27.1(o) will not apply if and to the extent that it is or would be unenforceable by reason of breach of any provision of the Council Regulation (EC) No 2271/96 of 22 November 1996, the Protecting against the Effects of the Extraterritorial Application of Third Country Legislation (Amendment) (EU Exit) Regulations 2020 (SI 2020/1660), any law or regulation implementing such regulations in any member state of the European Union or the United Kingdom, or any similar blocking or anti-boycott law.

 

27.2

The Buyer will:

 

  (a)

maintain the Buyer Financing Letters in full force and effect, except for amendments, modifications, terminations, replacements, restatements, cancellations or other changes made to any Buyer Financing Letter that would not materially adversely affect the Buyer’s ability to satisfy its obligations under the Transaction Documents (and any change which causes the conditionality of any Buyer Financing Letter to become more onerous will be regarded as materially adversely affecting the Buyer’s ability to satisfy its obligations under the Transaction Documents) and not do any act or take any step or omit to do any act or take any step that would in any way:

 

  (i)

reduce the aggregate amount of the finance committed and available to be drawn by the Buyer under the Buyer Financing Letters;

 

  (ii)

reduce the period for which funds are available to be drawn by the Buyer; or

 

  (iii)

otherwise materially adversely affect the Buyer’s ability to draw funds under the Buyer Financing Letters on the Completion Date sufficient to enable the Buyer to meet its obligations under the Transaction Documents and pay all fees and expenses required to be paid in connection with such financing;

 

  (b)

keep Peabody reasonably informed of all material developments in respect of the Buyer Financing Letters (including, without limitation, any proposed amendments or waivers in respect of the Buyer Financing Letters);

 

  (c)

take all action necessary to draw such amounts as it requires under the Buyer Financing Letters on the Completion Date sufficient, together with such other contemplated sources, for the Buyer to meet its obligations under the Transaction Documents and all fees and expenses required to be paid in connection with such financing; and

 

  (d)

to the extent that such funds referred to in Clause 27.2(c) are not capable of being drawn as a result of a failure of the relevant counterparty to perform its obligations under the Buyer Financing Letters, take all such actions (or procure that such action is taken) as is necessary to enforce its or any other Buyer Group member’s rights against such counterparty under the relevant agreements.

 

Page 62


27.3

The Buyer acknowledges and agrees that except in the case of fraud and without prejudice to any matter agreed in the Transaction Documents:

 

  (a)

it has no rights or remedies against and shall not bring or make any claim, proceeding, suit or action in connection with any of the transactions contemplated in any of the Transaction Documents against any Group Company or any Affiliate of Peabody, or each of their respective current or former directors, officers, employees, agents, consultants, advisers, auditors and accountants (each of whom shall be entitled to enforce this Clause 27.3(a) under the Contracts (Rights of Third Parties) Act 1999), and the Buyer irrevocably releases, waives, forfeits and / or extinguishes any such claim, proceeding, suit or action; and

 

  (b)

on and from Completion, no Group Company will have any rights or remedies against, or any basis for bringing any claim, proceeding, suit or action against, Peabody, its Affiliates or its or its Affiliates’ Connected Persons (each of which shall be entitled to enforce this Clause 27.3(b) under the Contracts (Rights of Third Parties) Act 1999), and with effect from Completion, the Buyer shall procure that no Group Company brings any such claim, proceeding, suit or action to the extent the Buyer has control of the Group Company.

 

27.4

With effect from Completion, to the maximum extent permitted by Law, the Buyer shall grant, and shall procure that each Group Company shall grant, a release and full discharge to all officers of the Group Companies that resign effective from Completion from all liabilities or obligations owed to a Group Company and shall procure that each Group Company shall waive all claims it has or may have against such persons in connection with his appointment as a director of, or employment with, or conduct in relation to, any Group Company (except in the case of fraud and without prejudice to any matter agreed in the Transaction Documents).

 

28.

Buyer Guarantor’s Warranties and Undertakings

 

28.1

The Buyer Guarantor warrants to Peabody as at the date of this Deed and as at Completion as if repeated immediately before Completion that:

 

  (a)

the Buyer Guarantor is validly incorporated, in existence and duly registered under the laws of its country of incorporation;

 

  (b)

no:

 

  (i)

meeting has been convened, resolution proposed, petition presented or order made for its winding up;

 

  (ii)

receiver, receiver and manager, provisional liquidator, liquidator, administrator or other officer of the court has been appointed in relation to any of its assets; or

 

  (iii)

mortgagee has taken, attempted to take or indicated an intention to exercise its rights under any security of which it is the mortgagor or chargor;

 

  (c)

the Buyer Guarantor has taken all necessary action and has all requisite power and authority to enter into and perform this Deed and the other Transaction Documents to which the Buyer Guarantor is a party in accordance with their terms;

 

  (d)

this Deed and the other Transaction Documents to which the Buyer Guarantor is a party constitute (or will constitute when executed) valid, legal and binding obligations on the Buyer Guarantor in accordance with their terms;

 

 

Page 63


  (e)

the execution and delivery of this Deed and the other Transaction Documents to which the Buyer Guarantor is a party by the Buyer Guarantor and the performance of and compliance with their terms and provisions will not conflict with or result in a breach of, or constitute a default under, the Buyer Guarantor’s constitutional documents, any agreement or instrument to which the Buyer Guarantor is a party or by which it is bound, or any Law, order or judgment that applies to or binds the Buyer Guarantor or any of its property;

 

  (f)

no consent, action, approval or authorisation of, and no registration, declaration, notification or filing with or to, any Authority (other than the Regulatory Conditions) is required to be obtained, or made, by the Buyer Guarantor to authorise the execution or performance of this Deed by the Buyer Guarantor, and, in respect of the Regulatory Conditions, no Authority has indicated to the Buyer Guarantor, its Affiliates or the Buyer Guarantor’s or its Affiliates’ Representatives that its consent, approval or authorisation may not be provided, or may only be provided on a conditional basis (and such conditions are not standard conditions or not satisfactory to the Buyer Guarantor), to enable the Buyer Guarantor’s performance of this Deed;

 

  (g)

the Buyer Guarantor is not and no Buyer Group member nor any of their respective directors, officers, employees, agents, or representatives is engaged (in such capacity) in any conduct, activity or omission which would constitute material non-compliance with any Sanctions Law or Anticorruption Law; and

 

  (h)

the Buyer Guarantor is not and no Buyer Group member nor any of their respective directors, officers, employees, agents or representatives (in such capacity):

 

  (i)

is or has been a Sanctioned Person;

 

  (ii)

is or has been in breach of any Sanctions Laws; or

 

  (iii)

has in the three years before the date of this Deed engaged in any transaction or dealing with any Sanctioned Person or with any Sanctioned Territory,

but Clauses 28.1(g) and 28.1(h) will not apply if and to the extent that it is or would be unenforceable by reason of breach of any provision of the Council Regulation (EC) No 2271/96 of 22 November 1996, the Protecting against the Effects of the Extraterritorial Application of Third Country Legislation (Amendment) (EU Exit) Regulations 2020 (SI 2020/1660), any law or regulation implementing such regulations in any member state of the European Union or the United Kingdom, or any similar blocking or anti-boycott law.

 

28.2

The Buyer Guarantor irrevocably and unconditionally:

 

  (a)

guarantees, as a primary obligation to Peabody, the due and punctual performance by the Buyer of all the Guaranteed Obligations in accordance with this Clause 28;

 

  (b)

undertakes to Peabody that:

 

  (i)

whenever the Buyer does not pay any amount when due under or in connection with the Guaranteed Obligations, it shall immediately on demand and without deduction or withholding pay that amount as if the Buyer Guarantor was the principal obligor; and

 

  (ii)

whenever the Buyer fails to perform any other Guaranteed Obligation, it shall immediately on demand perform (or procure the performance of) and satisfy (or procure the satisfaction of) that Guaranteed Obligation,

so that the same benefits are conferred on Peabody as it would have received if such Guaranteed Obligations had been performed and satisfied by the Buyer; and

 

Page 64


  (c)

indemnifies each Indemnified Party on demand (on a dollar for dollar basis) against all Liabilities which Peabody may suffer or incur (whether directly or indirectly) as a result of any claim relating to:

 

  (i)

the failure of the Buyer to perform any of the Guaranteed Obligations; or

 

  (ii)

any Guaranteed Obligation becoming unenforceable, invalid or illegal.

 

28.3

The guarantee in Clause 28.2 is a continuing guarantee and will extend to the ultimate balance of sums payable by the Buyer in respect of the Guaranteed Obligations, regardless of any intermediate payment or discharge in whole or in part.

 

28.4

If any payment by the Buyer and / or the Buyer Guarantor or any discharge of any obligations of the Buyer and / or the Buyer Guarantor or any security for those obligations or otherwise is avoided or reduced because of insolvency or any similar event:

 

  (a)

the liability of the Buyer and the Buyer Guarantor will continue as if the payment discharge, avoidance or reduction had not occurred; and

 

  (b)

Peabody will be entitled to recover the value or amount of that security or payment from the Buyer Guarantor as if the payment, discharge, avoidance or reduction had not occurred.

 

28.5

The obligations of the Buyer Guarantor under this Clause 28 will not be affected by any act, omission, matter or thing which, but for this Clause 28.5, would reduce, release or prejudice any of its obligations under this Clause 28 (whether or not known to the Buyer, the Buyer Guarantor, Peabody or the Peabody Guarantor) including:

 

  (a)

any time, waiver or consent granted to, or composition with, the Buyer or any other person;

 

  (b)

the release of the Buyer or any other person under the terms of any composition or arrangement with any creditor;

 

  (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, the Buyer 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;

 

  (d)

any incapacity or lack of power, authority or legal personality of or dissolution, amalgamation, reconstruction or change in the members or status of Peabody or any other person;

 

  (e)

any amendment (however fundamental) or replacement of any of the Guaranteed Obligations or any other document or security;

 

  (f)

any unenforceability, illegality or invalidity of any obligation of any person under this Deed or any other document or security; or

 

  (g)

any insolvency or similar proceedings.

 

28.6

The Buyer Guarantor waives any right it may have of first requiring Peabody to proceed against or enforce any other rights or security or claim payment from any person before claiming from the Buyer Guarantor under this Clause 28. This waiver applies irrespective of any law or any provision of this Deed to the contrary.

 

Page 65


28.7

Until all amounts which may be or become payable by the Buyer under or in connection with the Guaranteed Obligations have been irrevocably paid in full:

 

  (a)

Peabody may refrain from applying or enforcing any other money, security or rights held or received by Peabody 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 the Buyer Guarantor shall not be entitled to the benefit of the same;

 

  (b)

Peabody may hold in an interest-bearing suspense account any money received from the Buyer Guarantor or on account of the Buyer Guarantor’s liability under this Clause 28;

 

  (c)

the Buyer Guarantor shall not exercise any rights which it may have by reason of performance by it of the Guaranteed Obligations to be indemnified by the Buyer or to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Buyer in respect of the Guaranteed Obligations or of any other guarantee or security taken pursuant to, or in connection with, the Guaranteed Obligations by Peabody; and

 

  (d)

the Buyer Guarantor shall not claim from the Buyer any sums which may be owing to it from the Buyer or have the benefit of any set-off or counter claim or proof against, or dividend, composition or payment by, the Buyer.

 

28.8

The Buyer Guarantor undertakes to hold any security taken from the Buyer in connection with this guarantee in trust for Peabody pending discharge in full of all the Buyer Guarantors’ obligations under this Clause 28.

 

28.9

This guarantee is in addition to and is not in any way prejudiced by any other guarantee or security now or subsequently held by Peabody.

 

29.

Buyer Indemnities

 

29.1

To the maximum extent permitted by Law, and without limiting any other provision of this Deed, any other Transaction Document or any deed or agreement of novation, assumption or assignment in connection with this Deed or any other Transaction Document, on and from SMC Completion, the Buyer:

 

  (a)

shall assume responsibility for and fully satisfy all Assumed Liabilities and the Dawson Conduct Liabilities;

 

  (b)

shall indemnify each Indemnified Party on demand (on a dollar for dollar basis) against all Liabilities arising (whether arising before, on or after SMC Completion and regardless of whether arising due to an Indemnified Party’s negligence or breach of duty (statutory or otherwise) and / or Peabody Group Representatives) in connection with all Assumed Liabilities and the Dawson Conduct Liabilities (including for any claims) except to the extent that any such Liability is actually recovered by the Indemnified Party under an insurance policy held by a Peabody Group member as at the date of this Deed;

 

  (c)

releases the Indemnified Parties from all Liabilities which may arise or be incurred or sustained by the Buyer or any Buyer’s Affiliate or Buyer Group member from time to time or any of its or their officers, employees or agents and all claims which may be made against an Indemnified Party in relation to the Assumed Liabilities and the Dawson Conduct Liabilities; and

 

  (d)

shall comply with, perform or otherwise satisfy all Assumed Liabilities, including all Environmental Obligations, and all Dawson Conduct Liabilities including as requested by an Indemnified Party,

 

Page 66


except to the extent that an Assumed Liability or a Dawson Conduct Liability has been satisfied by a Group Company.

 

29.2

The Buyer must not, and must procure that each of its Affiliates do not, make a Claim against the SMC Seller or its Affiliates in connection with the SMC SPA and indemnifies each Indemnified Party in respect of any such Claim.

 

29.3

Peabody holds on trust for each other Indemnified Party the benefit of Clause 29.1 and 29.2 to the extent that such provisions apply to those Indemnified Parties and, without derogating from any right of those Indemnified Parties to enforce those clauses, is entitled to enforce these clauses on behalf of those Indemnified Parties.

 

30.

Seller Indemnities

To the maximum extent permitted by Law, and without limiting any other provision of this Deed, any other Transaction Document or any deed or agreement of novation, assumption or assignment in connection with this Deed or any other Transaction Document, on and from Completion, Peabody shall indemnify each Buyer Group member on demand (on a dollar for dollar basis) against all Liabilities arising out of or in connection with [***], except to the extent that such Liabilities are accounted for in the SMC SPA Completion Accounts.

 

31.

Employees

 

31.1

Subject to Clause 31.2, the Buyer undertakes to Peabody that it will procure that any Employee that is made redundant from any Group Company in the period commencing on SMC Completion and ending 12 months after SMC Completion will receive at least those amounts that would have been owed to such Employee on redundancy as calculated in accordance with document 08.02.10.01.01 in the Data Room.

 

 

Page 67


31.2

Notwithstanding any of the foregoing to the contrary, Clause 31.1 shall not operate to duplicate any entitlements owed to any Employee and shall not impose an obligation on the Buyer to continue or offer employment to any employee or limit the right of the Buyer to terminate the employment of, or to reassign or otherwise alter the status of, any employee of the Group after the Completion Date, or to change in any manner the terms and conditions of his or her employment or other service to or engagement by the Group.

 

32.

Tax Covenant

 

32.1

The provisions of Schedule 7 apply with effect from SMC Completion.

 

32.2

Claims by the Buyer in respect of the Tax Covenant are subject to Clause 25.

 

33.

Confidentiality and Announcements

 

33.1

Subject to Clauses 33.3 and 33.6, each party:

 

  (a)

shall treat, and shall procure that each of its Affiliates shall treat, as strictly confidential:

 

  (i)

the provisions of this Deed and the other Transaction Documents (including the identities of the parties to such agreements), their subject matter, any documents referred to in them, and the process of their negotiation;

 

  (ii)

in the case of Peabody or the Peabody Guarantor, any information received or held by Peabody, the Peabody Guarantor, or any of their respective Representatives which relates to the Buyer Group; and

 

  (iii)

in the case of the Buyer or the Buyer Guarantor, any information directly or indirectly received or held by the Buyer, the Buyer Guarantor, or any of their respective Representatives which relates to the Peabody Group,

(together “Confidential Information”); and

 

  (b)

shall not, and shall procure that its Affiliates shall not, except with the written consent of the party to whom the Confidential Information relates (which shall not be unreasonably withheld, delayed or conditioned), make use of (except for the purposes of performing its obligations or exercising its rights under this Deed or any other Transaction Document) or disclose to any person (other than its Representatives in accordance with Clause 33.2) any Confidential Information,

and for the purposes of this Clause 33, the term “Affiliates” includes the Group Companies with respect to Peabody before Completion and with respect to the Buyer after Completion.

 

33.2

Each party undertakes that it shall, and it shall procure that its Affiliates shall, only disclose Confidential Information to its Representatives where:

 

  (a)

it is reasonably required for the purposes of performing its obligations or exercising its rights under this Deed or any other Transaction Document (including in respect of the Pre-emption Rights); or

 

  (b)

it is reasonably required for the purposes of refinancing any financing put in place and / or obtaining financing to enable the Buyer to perform its obligations under this Deed or any other Transaction Document,

 

Page 68


only where such recipients are informed of the confidential nature of the Confidential Information and the provisions of this Clause 33 and instructed to comply with this Clause 33 as if they were a party to it.

 

33.3

Peabody may disclose Confidential Information to any Joint Venture Participant if such Joint Venture Participant is informed of the confidential nature of the Confidential Information and the provisions of this Clause 33 and instructed to comply with this Clause 33 as if they were a party to it.

 

33.4

Subject to Clauses 33.5 and 33.6, each party shall not (and shall procure that its Affiliates shall not) make any announcement (including any communication to the public, to any customers, suppliers or employees of any Group Company) concerning the subject matter of this Deed without the other parties’ written consent (which shall not be unreasonably withheld or delayed).

 

33.5

As soon as practicable after each of the date of this Deed and Completion Peabody and the Buyer:

 

  (a)

may make individual announcements regarding the Transaction; and / or

 

  (b)

shall procure that a joint announcement of the Transaction is made,

in each case by way of press release in Agreed Form.

 

33.6

Clauses 33.1, 33.2 and 33.3 will not apply if and to the extent that the party using or disclosing Confidential Information or making such announcement can demonstrate that:

 

  (a)

such disclosure or announcement is required by Law or by any Authority (including, for the avoidance of doubt, any Tax Authority) having applicable jurisdiction or the rules of a Stock Exchange or the securities laws of the United States of America or Indonesia;

 

  (b)

such disclosure is required for the purposes of the transactions contemplated by the Transaction Documents (including any arbitral or judicial proceedings arising out of any of the Transaction Documents);

 

  (c)

such disclosure is required for the purposes or the preparation of, or to be included within any accounts, financial statements and / or the tax returns or other submissions to or communications with any Tax Authority in connection with the tax affairs of the disclosing party or its Affiliate;

 

  (d)

such disclosure or announcement is required to facilitate any assignment or proposed assignment of the whole or any part of the rights or benefits under this Deed which is permitted by Clause 42; or

 

  (e)

the Confidential Information concerned has come into the public domain other than through that party’s fault (or that of its Representatives) or the fault of any person to whom such Confidential Information has been disclosed in accordance with this Clause 33.6.

 

33.7

Any obligation of Peabody to provide the Buyer information, documents or any other material which relates to the SMC SPA and which is confidential pursuant to the SMC SPA is subject to Peabody obtaining the SMC Seller’s consent to disclose such information to the Buyer (and Peabody must use reasonable endeavours to obtain that consent). The provisions of this Clause 33 will survive termination of this Deed or Completion and will continue for a period of five years from the date of this Deed.

 

Page 69


34.

Termination

 

34.1

Written notice to terminate this Deed may be given:

 

  (a)

in accordance with Clause 9.9; or

 

  (b)

in accordance with Clause 18.7(c).

 

34.2

If:

 

  (a)

neither the Call Option nor the Put Option has been validly exercised during the Call Option Exercise Period or the Put Option Exercise Period, respectively, then this Deed will cease to have effect the day immediately following the end of the Put Option Exercise Period; or

 

  (b)

notice of termination is given in accordance with Clause 34.1, then this Deed will cease to have effect immediately upon delivery of such notice of termination,

except that the Surviving Provisions and any rights or liabilities that have accrued before that time will continue in full force and effect, and the Buyer shall, and shall procure that its Representatives shall, immediately return to Peabody all Confidential Information without keeping any copies of the Confidential Information, destroy all information and documentation derived from the Confidential Information and expunge all Confidential Information from any computer or other device.

 

35.

GST

In this Clause 35:

 

  (a)

unless the context requires otherwise, words or expressions used in this Clause 35 which are defined in the GST Act have the same meaning in this Clause;

 

  (b)

any part of a supply that is treated as a separate supply for the purposes of the GST Act (including for the purpose of attributing GST payable to tax periods) will be treated accordingly; and

 

  (c)

a reference to GST payable by, or input tax credit entitlement of, a party includes any GST payable by or input tax credit entitlement of the representative member of any GST group of which that party is a member.

 

35.2

Any consideration payable or to be provided for a supply made under or in connection with this Deed, unless specifically described in this Deed as inclusive of GST, does not include any amount on account of GST.

 

35.3

Subject to Clause 35.4, if a party (“Supplier”) makes a supply under or in connection with this Deed on which GST is payable (including if the GST treatment referred to in clause 7.1 of Schedule 15 does not apply):

 

  (a)

the consideration payable or to be provided for that supply under this Deed, but for the application of this Clause, (“GST exclusive consideration”) is increased by, and the recipient of the supply (“Recipient”) must also pay to the Supplier, an amount equal to the GST payable on the supply (“GST Amount”); and

 

  (b)

subject to Clause 35.5, the GST Amount must be paid by the Recipient to the Supplier without set-off, deduction or requirement for demand, at the same time as any part of the GST exclusive consideration is first payable or to be provided.

 

35.4

Clause 35.3 does not apply to the extent that either:

 

Page 70


  (a)

the consideration payable or to be provided for the supply is expressly described in this Deed as inclusive of GST; or

 

  (b)

the supply is subject to reverse charge pursuant to Division 84 of the GST Act.

 

35.5

The Recipient need not pay the GST Amount until the Supplier has given the Recipient, or other entity as permitted by the GST Act, a tax invoice for the supply to which the payment relates.

 

35.6

If a payment to a party under this Deed is a reimbursement or indemnification, calculated by reference to a loss, cost or expense incurred by that party, the payment will be reduced by the amount of any input tax credit to which that party is entitled in respect of the acquisition to which that loss, cost or expense relates.

 

35.7

If the GST payable by a Supplier on any supply made under or in connection with this Deed varies from the GST Amount paid or payable by the Recipient under Clause 35.3, the Supplier will provide a corresponding refund or credit to, or will be entitled to receive the amount of that variation from, the Recipient. If an adjustment event occurs in relation to a supply, the Supplier must issue an adjustment note to the Recipient for that supply within 10 Business Days of becoming aware of the adjustment event.

 

35.8

The Buyer shall indemnify shall Peabody on demand (on a dollar for dollar basis) against all penalties and/or interest imposed on a Peabody Group member as a result of the treatment of the supply referred to Schedule 15 as a GST-free supply of a going concern.

 

35.9

This Clause 35 will survive Completion.

 

36.

Further Assurance

For a period of 12 months from the Completion Date, each party shall execute and deliver or procure the execution and delivery of all such documents and shall do all such things as the other parties may reasonably require (and at the cost of such other party) for the purpose of giving full effect to the provisions of this Deed and to secure for each party the full benefit of the rights, powers and remedies conferred upon it under this Deed.

 

37.

Power of Attorney

 

37.1

From Completion in relation to any Dawson Sale Interest and for so long after Completion as the relevant Seller remains the registered holder of that Dawson Sale Interests, Peabody shall procure the relevant Seller to appoint the Buyer to be its lawful attorney to exercise all rights in relation to such Shares and/or Dawson Joint Venture Assets to which the Completion relates as the Buyer in its absolute discretion sees fit.

 

37.2

The power of attorney given in Clause 37.1 is irrevocable, save with the Buyer’s written consent, and is given by way of security to secure the Buyer’s proprietary interest as the Buyer of the relevant Dawson Sale Interests, but will expire on the date on which the Buyer is entered in the register of members of the Company as holder of the relevant Shares.

 

37.3

For so long as the power of attorney given in Clause 37.1 remains in force, Peabody shall procure the relevant Seller to:

 

  (a)

not exercise any rights which attach to the relevant Shares or are exercisable in its capacity as registered holder of the relevant Shares without the Buyer’s written consent;

 

  (b)

hold on trust for the Buyer all dividends and other distributions of profits or assets received by the relevant Seller in respect of the relevant Shares and promptly notify the Buyer as attorney of anything received by the relevant Seller in its capacity as registered holder of the relevant Shares;

 

Page 71


  (c)

act promptly in accordance with the Buyer’s instructions in relation to any rights exercisable or anything received by it in its capacity as registered holder of the relevant Shares; and

 

  (d)

ratify whatever the Buyer may do as attorney in its name or on its behalf in exercising the powers contained in this Clause 37.1.

 

37.4

Nothing in this Clause 37 will require the Peabody or the relevant Seller to take any action (or require it to omit to take any action) that would breach any applicable Law.

 

38.

Entire Agreement and Remedies

 

38.1

This Deed sets out the entire agreement between the parties relating to the subject matter of this Deed and, save to the extent expressly set out in this Deed, supersedes and extinguishes any prior drafts, agreements, undertakings, representations, warranties, promises, assurances and arrangements of any nature, whether in writing, relating to this Deed.

 

38.2

Each party acknowledges and agrees that in entering into this Deed and the Transaction Documents it has not relied and is not relying on, and will have no claim or remedy in respect of, any statement, representation, warranty, undertaking, assurance, promise, understanding or other provision made, whether by a party to this Deed or not, whether written or oral, express or implied and whether negligently or innocently made, which is not expressly set out in this Deed or any other Transaction Document.

 

38.3

Save as expressly set out in this Deed or any other Transaction Document, to the extent permitted by Law, the only right or remedy of any party in relation to any statement, representation, warranty, undertaking, assurance, promise, understanding or other provision set out in this Deed or any other Transaction Document will be for breach of this Deed or the relevant Transaction Document to the exclusion of all other rights and remedies (including those in tort or arising under statute). Save as expressly set out in this Deed, no party will be entitled to rescind or terminate this Deed in any circumstances at any time, whether before or after Completion, and each party waives any rights of rescission or termination it may have.

 

38.4

If there is any conflict between the terms of this Deed and any other agreement, this Deed will prevail (as between the parties to this Deed and as between any Peabody Group member and any Buyer Group member) unless:

 

  (a)

such other agreement expressly states that it overrides this Deed in the relevant respect; and

 

  (b)

Peabody, the Peabody Guarantor, the Buyer and the Buyer Guarantor are either also parties to that other agreement or otherwise agree in writing that such other agreement will override this Deed in that respect.

 

38.5

This Clause 38 will not exclude any liability for or remedy in respect of fraud.

 

39.

Post-Completion Effect of Agreement

Notwithstanding Completion, each provision of this Deed and any other Transaction Document not performed at or before Completion, but which remains capable of performance will remain in full force and effect and, except as otherwise expressly provided, without limit in time.

 

40.

Waiver and Variation

 

40.1

A failure or delay by a party to exercise any right or remedy provided under this Deed or by Law, whether by conduct or otherwise, will not constitute a waiver of that or any other right or remedy, nor will it preclude or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this Deed or by Law, whether by conduct or otherwise, will preclude or restrict the further exercise of that or any other right or remedy.

 

Page 72


40.2

A waiver of any right or remedy under this Deed will only be effective if given in writing and will not be deemed a waiver of any subsequent breach or default.

 

40.3

A party that waives a right or remedy provided under this Deed or by Law in relation to another party does not affect its rights in relation to any other party.

 

40.4

No amendment of this Deed will be valid unless it is in writing and duly executed by or on behalf of the Buyer, the Buyer Guarantor, Peabody and the Peabody Guarantor. Unless agreed, no amendment will constitute a general waiver of any provision of this Deed, nor will it affect any rights or obligations under or pursuant to this Deed which have already accrued up to the date of amendment and the rights and obligations under or pursuant to this Deed will remain in full force and effect except and only to the extent that they are varied or amended.

 

41.

Invalidity

Where any provision of this Deed is or becomes illegal, invalid or unenforceable in any respect under the Laws of any jurisdiction such provision will be deemed to be severed from this Deed and, if possible, replaced with a lawful provision which, as closely as possible, gives effect to the intention of the parties under this Deed and, where permissible, that will not affect or impair the legality, validity or enforceability in that, or any other, jurisdiction of any other provision of this Deed.

 

42.

Assignment

 

42.1

Subject to Clause 42.2, except as the parties specifically agree in writing, a person may only assign, transfer, charge or otherwise deal with any of its rights under this Deed (including to grant, declare, create or dispose of any right or interest in it) with the other parties’ written consent.

 

42.2

The Buyer may assign its rights under the Transaction Documents to any:

 

  (a)

Financing Sources, or any agent acting on behalf of such Financing Sources, as security for the Buyer’s (or its Affiliates’) obligations to such Financing Sources, provided that such assignment shall not release the Buyer and the Buyer Guarantor from their respective obligations under this Deed or the Transaction Documents; and

 

  (b)

Buyer Group member, provided that:

 

  (i)

that Buyer Group member has entered into a deed of assumption and assignment in respect of the Transaction Documents (substantially in the form set out in Exhibit 2); and

 

  (ii)

such assignment shall not release the Buyer and the Buyer Guarantor from their respective obligations under the Transaction Documents.

 

42.3

This Deed will be binding on and continue for the benefit of the successors and permitted assignees of each party.

 

43.

Payments, Set-Off and Default Interest

 

43.1

Except as otherwise provided in this Deed, any payment to be made pursuant to this Deed by the Buyer or the Buyer Guarantor to Peabody or to the Peabody Guarantor must be made to the Seller’s Bank Account, and any payment to be made pursuant to this Deed by Peabody or the Peabody Guarantor to the Buyer or the Buyer Guarantor must be made to the Buyer’s Bank Account, in each case by way of electronic transfer in immediately available funds on or before the due date for payment. Receipt of such sum in such account on or before the due date for payment will discharge the payer of its obligation to make such payment.

 

Page 73


43.2

Subject to Clauses 43.3 and 7, all payments made by any party under this Deed, or any other Transaction Document, must be made free from any set-off, counterclaim or other deduction or withholding of any nature, except for deductions or withholdings required to be made by Law. If any such deductions or withholdings are required by Law to be made from such payments for or on account of Tax (other than any payments of interest or an amount permitted to be withheld by the Buyer under Clause 7), the amount of the payment must be increased by such amount as will, after the deduction or withholding has been made, leave the recipient of the payment with the same amount as it would have been entitled to receive in the absence of any such requirement to make a deduction or withholding.

 

43.3

If, following the payment of an additional amount under Clause 43.2, the recipient of the increased payment subsequently obtains any Relief on account of such deduction or withholding, the recipient shall pay to the payer of the increased payment such amount (not exceeding the amount of the Relief) that the recipient shall determine (acting reasonably) will leave it in no better or worse position than it would have been in had no withholding or deduction been required to be made.

 

43.4

If any sum payable under this Deed (other than any payment of interest or the Consideration) is subject to Tax in the hands of the recipient (or would be subject to Tax but for the availability of a Relief), the payor shall pay such additional amount as will ensure that the net amount received by the recipient (after giving credit for any Relief which has been obtained by the recipient, as applicable, in respect of the losses, costs and expenses or other items giving rise to such payment) will be the amount that the recipient would have received if the payment had not been subject to Tax.

 

43.5

Where Peabody or the Buyer default in the payment when due of any damages or other sum payable by virtue of this Deed or any other Transaction Document, Peabody’s liability or the Buyer’s liability (as the case may be) will be increased to include an amount equal to interest on such sum from the date when payment is due to the date of actual payment (both before and after judgment) at that annual rate which is 2% per annum above SOFR in effect during such period. Such interest will accrue from day to day and be compounded quarterly and will be payable without prejudice to any other remedy available to any other parties (as the case may be) in respect of such default.

 

44.

Transaction Communications

All communications between a Peabody Group member and any (i) Group Company; or (ii) professional adviser engaged by a Peabody Group member (including those to which the Seller’s Solicitors are also party), relating to the negotiation, preparation, execution and completion of this Deed and the transactions contemplated by it or any similar transaction (“Transaction Communications”) shall be Peabody’s property and no waiver of legal privilege in any such documents is made or is to be implied. Accordingly:

 

  (a)

neither the Buyer (before or after Completion) nor, after Completion, any Group Company shall have access to or be entitled to see or take copies of any Transaction Communications in whatever form these may be held (and whether or not these are held by third parties including the Seller’s Solicitors); and

 

  (b)

Peabody may take such steps as it shall consider necessary or desirable to delete or remove any such Transaction Communications from the Group’s computer systems and records before Completion.

 

45.

Notices

 

45.1

Subject to Clause 45.5, any notice or other communication given under this Deed or in connection with the matters contemplated in this Deed will, except where otherwise specifically provided, be in writing in the English language, addressed as provided in Clause 45.2 and served:

 

Page 74


  (a)

by hand to the relevant address, in which case it will be deemed to have been given upon delivery to that address, but any notice delivered outside Working Hours will be deemed given at the start of the next period of Working Hours;

 

  (b)

by courier (or if from any place outside the country where the relevant address is located, by air courier) to the relevant address, in which case it will be deemed to have been given three Business Days after its delivery to a representative of the courier; or

 

  (c)

by e-mail to the relevant e-mail address, in which case it will, subject to no automated notification of delivery failure being received by the sender, be deemed to have been given when sent, but any e-mail sent outside Working Hours will be deemed given at the start of the next period of Working Hours.

 

45.2

Notices under this Deed must be sent for the attention of the person and to the address or e-mail address, subject to Clause 45.3, as set out below:

For Peabody and the Peabody Guarantor:

 

Name:    Peabody SMC Pty Ltd and Peabody Australia Holdco Pty Ltd
For the attention of:    [***] and [***]
Address:    Level 14, 31 Duncan Street, Fortitude Valley QLD 4006
E-mail address:    [***]@peabodyenergy.com; [***]@peabodyenergy.com; [***]@peabodyenergy.com
with a copy (which will not constitute notice) to:
Name:    Jones Day
For the attention of:    [***] and [***]
Address:    Level 31, 123 Eagle Street, Brisbane, QLD, Australia 4000
E-mail address:    [***]@jonesday.com; [***]@jonesday.com
For Buyer and Buyer Guarantor:
Name:    PT Bukit Makmur Internasional and
   PT Delta Dunia Makmur Tbk
For the attention of:    [***] and [***]
Address:    Level 11/199, Grey Street, South Brisbane, QLD, Australia 4101
E-mail address:    [***]@tigainvestments.com; [***]@deltadunia.com
with a copy (which will not constitute notice) to:
Name:    Corrs Chambers Westgarth
For the attention of:    [***] and [***]
Address:    Level 25, 567 Collins Street, Melbourne, VIC, Australia 3000
E-mail address:    [***]@corrs.com.au; [***]@corrs.com.au

 

Page 75


45.3

Any notice or other communication under this Deed will not be invalid by reason that a copy is not delivered to any addressee nominated to receive a copy.

 

45.4

Each party to this Deed may notify each other party of any change to its address or other details specified in Clause 45.2, but such notification will only be effective on the date specified in such notice or five Business Days after the notice is given, whichever is later.

 

45.5

Any notices:

 

  (a)

relating to the exercise of the Call Option or Put Option (including delivery of any Exercise Notice by the Buyer or Peabody, as applicable); or

 

  (b)

given by the Buyer or Peabody under Clause 18.7 or otherwise in connection with the Scheduled Completion Date,

will be deemed to have been given on the date of delivery, regardless of whether such notice is given on a day which is not a Business Day and / or outside of Working Hours.

 

46.

Costs

 

46.1

Except as otherwise provided in this Deed, each party shall bear its own costs and expenses arising out of or in connection with the preparation, negotiation and implementation of this Deed and all other Transaction Documents.

 

46.2

The Buyer shall bear and promptly pay all transfer duties and any other similar documentary, registration or transfer Taxes assessed, payable or otherwise imposed or arising as a result of or in connection with the entry into, or the implementation of any of the transactions contemplated by, this Deed or of any of the other Transaction Documents. The Buyer shall be responsible for arranging the payment of all such Taxes and duties, including fulfilling any administrative or reporting obligation imposed by the jurisdiction in question in connection with such payment, and the Buyer shall indemnify Peabody and the Sellers on demand (on a dollar for dollar basis) against any Liabilities suffered by Peabody and the Sellers as a result of the Buyer failing to comply with its obligations under this Clause 46.2.

 

47.

Rights of Third Parties

 

47.1

The specified third-party beneficiaries of the undertakings referred to in Clauses 20.3, 24.8 and 27.3 will, in each case, have the right to enforce the relevant terms by reason of the Contracts (Rights of Third Parties) Act 1999.

 

47.2

Except as provided in Clause 47.1, a person who is not a party to this Deed will have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms.

 

47.3

Each party represents to each other party that their respective rights to terminate, rescind or agree any amendment, waiver or settlement under this Deed are not subject to the consent of any person that is not a party to this Deed.

 

48.

Counterparts

This Deed may be executed in any number of counterparts on separate physical or electronic counterparts. All executed counterparts constitute one instrument.

 

Page 76


49.

Governing Law and Jurisdiction

 

49.1

This Deed and any non-contractual rights or obligations arising out of or in connection with it is governed by and must be construed in accordance with English law.

 

49.2

Any Dispute (other than a Further Objection Notice, which shall be governed by Schedule 16) will be referred to and finally resolved by arbitration under the Rules of Arbitration of the International Chamber of Commerce (the “Rules”), which are deemed to be incorporated by reference into this Clause 49. There must be three arbitrators, two of whom will be nominated by the respective parties in accordance with the Rules and the third, who will be the presiding arbitrator, must be nominated by the two party nominated arbitrators within 14 days of the last of their appointments. The seat, or legal place, of arbitration will be London, England. English will be used in the arbitral proceedings. Judgment on any award may be entered in any court having jurisdiction.

 

49.3

For the purposes of this Clause, “Dispute” means any dispute, controversy, claim or difference of whatever nature arising out of, relating to, or having any connection with this Deed, including a dispute regarding the existence, formation, validity, interpretation, performance, breach or termination of this Deed and also including any dispute relating to any non-contractual rights or obligations arising out of, relating to, or having any connection with this Deed.

 

49.4

The parties agree to the consolidation of any two or more arbitrations commenced pursuant to this Clause 49. For the avoidance of doubt, this Clause 49.4 is an agreement by all parties for the purposes of Article 10(a) of the Rules.

 

49.5

To the extent permitted by Law, each party waives any objection it may have to the validity and/or enforcement of any arbitral award, which such objection is on the basis that a dispute has been resolved in a manner contemplated by this Clause 49.

 

50.

Process Agent

 

50.1

Without prejudice to any other permitted mode of service, the parties agree that service of any claim form, notice or other document for the purpose of or in connection with any action or proceeding in England or Wales arising out of or in any way relating to this Deed will be duly served upon:

 

  (a)

Peabody and the Peabody Guarantor if it is delivered personally or sent by recorded or special delivery post (or any substantially similar form of mail) to 8th Floor, 100 Bishopsgate, London, EC2N 4AG, United Kingdom, marked for the attention of ‘Director – Service of Process’ or such other person and address in England or Wales as such party shall notify all the other parties in writing from time to time; and

 

  (b)

the Buyer and the Buyer Guarantor if it is delivered personally or sent by recorded or special delivery post (or any substantially similar form of mail) to the process agent notified by the Buyer to Peabody in writing as soon as practicable (and in any event no later than 5 Business Days) after the date of this Deed, failing which, to 8th Floor, 100 Bishopsgate, London, EC2N 4AG, United Kingdom, marked for the attention of ‘Director – Service of Process’ or such other person and address in England or Wales as such party shall notify all the other parties in writing from time to time,

in each case whether or not such claim form, notice or other document is forwarded to the relevant party or received by such party.

 

Page 77


51.

Language

To the extent required to be in compliance with the Law No. 24 of 2009 on National Flag, Language, Coat of Arms and National Anthem and Presidential Regulation No. 63 of 2019 on the Use of Indonesia Language, the parties agree that this Deed is executed in both the English language and Indonesian languages. For the avoidance of doubt, the existence of two languages of this Deed is not to be construed by any party as creating different rights and obligations, or duplication or multiplication of the rights and obligations, of the parties under any version of this Deed. The parties agree that the English language version and the Indonesian language version of this Deed shall be equally authentic, and that in the event of any inconsistency or different interpretation between the Indonesian language version and the English version of this Deed, the English language version shall prevail.

 

Page 78


Schedule 3

Completion Obligations

 

1.

Peabody’s Obligations

 

1.1

At or before Completion, Peabody shall procure the relevant Seller delivers or makes available to the Buyer:

 

  (a)

transfer form(s) to transfer all of the Shares into the name of the Buyer, duly completed and executed by the Seller, in a registrable form (subject only to due stamping);

 

  (b)

existing share certificates in respect of all of the Shares, or an indemnity for any lost share certificates duly executed by the Seller in Agreed Form;

 

  (c)

a copy of any power of attorney in Agreed Form under which any document to be delivered to the Buyer under this paragraph 1 has been executed;

 

  (d)

any consents or waivers required in respect of the Conditions to the extent that those consents and waivers have been obtained by or on behalf of the Seller;

 

  (e)

if applicable, the ASIC corporate keys for each Group Company;

 

  (f)

a counterpart of the TSA duly executed by the relevant Peabody Group member;

 

  (g)

a copy of a duly executed board resolution or duly executed board minutes of the Seller approving the execution by the Seller of any documents which the Seller is required to execute or deliver at Completion;

 

  (h)

in respect of each Encumbrance over the Shares or the assets of a Group Company which is registered on the PPS Register immediately before Completion, evidence satisfactory to the Buyer (acting reasonably) that the Encumbrance has been released, or will be released, with effect from Completion;

 

  (i)

to the extent not already provided or in the possession of a Group Company, at the relevant Group Company’s registered office, or otherwise the location of the business of each Group Company, all the statutory and other books (duly written up to date) of each Group Company and all certificates of incorporation, certificates of incorporation on change of name and common seals or such equivalent items in the relevant jurisdiction as are kept by such Group Company or required to be kept by Law, to the extent not within the control of a Group Company. For the avoidance of doubt, any legal advice sought or received by a Group Company in relation to the Transaction or transaction similar to the Transaction will be excluded from this obligation;

 

  (j)

in respect of each Group Company:

 

  (i)

a copy of a duly executed board resolution or duly executed board minutes in Agreed Form, approving:

 

  (A)

the persons advised in accordance with Clause 14.6(a) to be appointed as directors, secretary and public officer (as applicable) of the relevant Group Company (as applicable); and

 

  (B)

if applicable, its registered office and principal place of business be changed to the address notified by the Buyer in accordance with Clause 14.6(b);


in each case, with effect from Completion; and

 

  (ii)

the written and executed resignation of each director, secretary and public officer (as applicable) of such Group Company appointed by the Seller or Seller’s Affiliate, duly executed by the relevant resigning person(s) in Agreed Form;

 

  (k)

evidence of the termination of the Terminating Contracts, in each case with effect from Completion;

 

  (l)

a copy of a duly executed board resolution or duly executed board minutes of each Company approving:

 

  (i)

the transfers of the Shares and (subject only to due stamping) the registration, in the register of members, of the Buyer as the holder of the shares concerned; and

 

  (ii)

the issue of new share certificates for the Shares in the name of the Buyer;

 

  (m)

such part of the Dawson Carve-out Assets as are capable of passing by delivery at the places where they are located;

 

  (n)

in respect of each Encumbrance over the Dawson Carve-out Assets which is registered on the PPS Register immediately before Completion, evidence satisfactory to the Buyer (acting reasonably) that the Encumbrance has been released, or will be released, with effect from Completion;

 

  (o)

to the extent the relevant Group Companies are party to the Deed of Cross Guarantee, a copy of a certificate of the directors of the relevant Seller (or of its holding company) pursuant to clause 4.2(c)(i) of the Deed of Cross Guarantee;

 

  (p)

any consents or waivers required in respect of the Assumed Contracts and any other contracts forming part of the Dawson Carve-out Assets;

 

  (q)

copies of any consents from the relevant Joint Venture Participants to the assignment and assumption of AASM’s rights and obligations under the Dawson South Exploration JVA and Theodore South JVA to the Buyer;

 

  (r)

evidence satisfactory to the Buyer (acting reasonably) demonstrating that each of the Dawson Carve-out Assets previously held by the Peabody Group has been acquired by the Sellers, to enable the sale and purchase contemplated by Clause 4.1 of this Deed;

 

  (s)

copies of all irrevocable waivers of any right of pre-emption or other restriction on transfer in respect of the Dawson Carve-out Assets conferred on the Sellers under any agreement or otherwise in connection with the sale of the Dawson Carve-out Assets pursuant to this Deed;

 

  (t)

evidence satisfactory to the Buyer (acting reasonably) demonstrating:

 

  (i)

payment of the Clear Exit Payment by each of the Consolidated Subsidiaries to the Seller Head Company has been made; and

 

  (ii)

discharge by the relevant Group Company of all other amounts owing by it to the relevant Seller Head Company or any other Member of the Seller Consolidated Group under the Seller Tax Sharing Agreement or a Tax Funding Agreement;

 

  (u)

evidence satisfactory to the Buyer (acting reasonably) demonstrating:


  (i)

all Transferring Employees have been released from their employment with the Seller Employer;

 

  (ii)

all Transferring Employees have been paid all amounts due and payable to them on account of any wages, salary, allowances, other remuneration or other applicable benefits in respect of service up to and including the Completion Date; and

 

  (v)

evidence satisfactory to the Buyer (acting reasonably) demonstrating that each Group Company has been released from all Third-Party Guarantees given by it in respect of Peabody’s or any of its Affiliate’s obligations.

 

2.

Buyer’s Obligations

 

2.1

At or before Completion, the Buyer shall:

 

  (a)

pay or procure the payment to Peabody of an amount equal to the Consideration, the receipt of which will fully discharge the Buyer from its obligation to pay (or procure the payment of) the amount in Clause 5;

 

  (b)

deliver or make available to Peabody:

 

  (i)

counterparts of all documents that Peabody is required to deliver under paragraph 1.1 to which the Buyer or the Buyer Guarantor is a party or which otherwise contemplates execution by the Buyer or the Buyer Guarantor, duly executed by the Buyer or the Buyer Guarantor (as applicable);

 

  (ii)

the original or certified copy of any power of attorney in Agreed Form under which any document to be delivered to Peabody under this paragraph 2.1 has been executed;

 

  (iii)

a copy of a duly executed board resolution or duly executed board minutes of the Buyer approving the execution by the Buyer of any documents which the Buyer is required to execute or deliver at Completion;

 

  (iv)

copies of the Replacement Bank Guarantees;

 

  (v)

a replacement ‘Guarantee’ (as defined in the Dawson JVA) in respect of the Dawson JVA and replacement ‘Parent Company Support Deed’ in respect of the Dawson Manager’s obligations, duly executed by a Buyer Group member;

 

  (vi)

a replacement ‘Guarantee’ (as defined in the Dawson South JVA) in respect of the Dawson South JVA and replacement ‘Parent Company Support Deed’ in respect of the Dawson South Manager’s obligations, duly executed by a Buyer Group member;

 

  (vii)

a replacement ‘Guarantee’ (as defined in the Dawson South Exploration JVA) in respect of the Dawson South Exploration JVA, duly executed by a Buyer Group member;

 

  (viii)

a replacement ‘Guarantee’ (as defined in the Theodore South JVA) in respect of the Theodore South JVA, duly executed by a Buyer Group member;

 

  (ix)

any consents or waivers required in respect of the Conditions to the extent that those consents and waivers have been obtained by or on behalf of the Buyer;


  (x)

if the Completion is a Dawson Complex Completion, a Specific Security Deed in respect of all of the shares in the Companies held by the Buyer, executed by the Buyer;

 

  (xi)

if the Completion is an Ex Dawson Main Completion, a Specific Security Deed in respect of all of the shares in Anglo Dawson South and Anglo Theodore South held by the Buyer, executed by the Buyer;

 

  (xii)

if the Completion is an Anglo Dawson Holdings Completion, a Specific Security Deed in respect of all of the shares in Anglo Dawson Holdings held by the Buyer, executed by the Buyer; and

 

  (xiii)

if the Completion is a Dawson Joint Venture Assets Completion, a Specific Security Deed in respect of all of the shares in the Buyer held by its shareholder(s), executed by its shareholder(s).


Schedule 4

Peabody’s Warranties

 

1.

Title and Capacity

 

1.1

Peabody is validly incorporated, in existence and duly registered under the laws of its country of incorporation.

 

1.2

Peabody has taken all necessary action and has all requisite power and authority to enter and perform this Deed and the other Transaction Documents to which it is a party in accordance with their terms.

 

1.3

Peabody and the other Transaction Documents (to which it is a party) constitute (or will constitute when executed) valid, legal and binding obligations on Peabody in accordance with their terms.

 

1.4

The execution and delivery of this Deed and the other Transaction Documents by Peabody and the performance of and compliance with their terms and provisions will not conflict with or result in a breach of, or constitute a default under, Peabody’s constitutional documents, any agreement or instrument to which Peabody is a party or by which it is bound, or any Law, order or judgment that applies to or binds Peabody or any of its property.

 

2.

Capital Structure and Corporate Information

 

2.1

The relevant Shares constitute the whole of the allotted and issued share capital of the relevant Company and are fully paid and free from all Encumbrances, and the relevant Seller is the sole legal and beneficial owner of the relevant Shares.

 

2.2

The section of the Group Information Schedule entitled “Subsidiaries”:

 

  (a)

lists all the subsidiaries and subsidiary undertakings of each Company;

 

  (b)

sets out particulars of their allotted and issued share capital (or in the case of Anglo Dawson, its member); and

 

  (c)

are complete and accurate in all material respects as at the date of this Deed.

 

2.3

Unless otherwise indicated in the Group Information Schedule, a Company or a Subsidiary is the sole legal and beneficial owner of the whole allotted and issued share capital of each Subsidiary and all such shares are fully paid up and free from all Encumbrances, other than the Pre-emption Rights.

 

2.4

No person (other than a Group Company or a Seller) has a right to require any Group Company to allot, issue, sell, transfer any share capital, or to convert existing securities into or to issue securities that have rights to convert into any share capital other than in accordance with the Joint Venture Agreements.

 

2.5

Subject to the Buyer complying with its obligations under Clause 6.4, Peabody will attend to the lodgement and payment of all duty in relation to the transactions contemplated by the SMC SPA and ensure all documents (including landholder acquisition statements) are duly stamped.

 

3.

Anglo and Mitsui Arrangements

 

3.1

The SMC SPA provided to the Buyer no later than 2 Business Days prior to the date of this Deed is the final execution version of the SMC SPA.


3.2

Neither Peabody, nor any Peabody Group member:

 

  (a)

has entered into any agreement, arrangement or understanding that relates to the subject matter of this Deed or affects or implicates the transactions contemplated this Deed (“Side Agreement”) with any Anglo American Group member or any Mitsui Group member; or

 

  (b)

is aware of any such Side Agreement having been entered into between any Anglo American Group member or Mitsui Group member,

that has not been fully and fairly disclosed to the Buyer no later than 20 Business Days prior to the date of this Deed.


Schedule 5

Limitations on Peabody’s Liability

 

1.

Financial Limits On Claims

 

1.1

The Peabody Group’s maximum aggregate liability in respect of all Claims (including any reasonable and properly incurred costs, expenses and other liabilities payable by the Peabody Group in connection with such Claims) will not exceed the Consideration to the extent actually received by Peabody as at the date of the Claim.

 

1.2

Subject to paragraph 1.1, the Peabody Group’s aggregate liability:

 

  (a)

for all Warranty Claims (including any costs, expenses and other liabilities payable by Peabody in connection with such Warranty Claims), will not exceed the Consideration to the extent actually received by Peabody as at the date of the Claim; and

 

  (b)

for all other Claims (including any costs, expenses and other liabilities payable by Peabody in connection with such Claims), will not exceed 10% of the Consideration to the extent actually received by Peabody (including pursuant to the Loan Notes) as at the date of SMC Completion.

 

1.3

The Peabody Group will not be liable in respect of any single Claim or any series of Claims which arise from the same or substantially the same facts, matters, circumstances or events (and such Claim(s) will be disregarded for all purposes) unless the amount of the liability pursuant to such Claim or series of Claims would exceed 0.1% of the Consideration to the extent actually received by Peabody as at the date of Completion.

 

1.4

The Peabody Group will not be liable in respect of any single Claim unless the aggregate amount of the Peabody Group’s liability for all Claims (other than Claims excluded by paragraph 1.3 or any other paragraph of this Schedule 5) would exceed 1% of the Consideration actually received by Peabody as at the date of the Claim, in which case the Peabody Group will be liable only for the excess.

 

2.

Time Limits On Claims

 

2.1

Peabody will not be liable in respect of any Claim, and any such Claim will be wholly barred and unenforceable unless the Buyer has given notice in writing of such Claim to Peabody:

 

  (a)

in the case of a Warranty Claim, within the period of two years beginning with the Completion Date; and

 

  (b)

in the case of any other Claim, within the period of 12 months beginning with the Completion Date.

 

2.2

Any notice referred to in paragraph 2.1 must:

 

  (a)

be given by the Buyer to Peabody as soon as reasonably practicable and, in any event, within 30 Business Days of the Buyer becoming aware of the facts, matters, circumstances or events giving rise to such Claim;

 

  (b)

include such detail and supporting evidence as is reasonably available to the Buyer at the time of the relevant facts and circumstances giving rise to the Claim, together with the Buyer’s good faith estimate of any alleged Liability; and

 

  (c)

specify (without prejudice to the Buyer’s right subsequently to identify other Warranties which are breached by the same facts) the specific Warranties or other provisions of this Deed which are alleged to have been breached,


but the failure of the notice from the Buyer to comply with the requirements of sub-paragraphs (a), (b) and (c) will not operate to limit Peabody’s liability except to the extent that Peabody’s ability to defend such Claim is prejudiced or Peabody’s liability (or reasonably and properly incurred costs and expenses of Peabody in defending such Claim) is increased as a result of such failure.

 

2.3

For the avoidance of doubt, the Buyer may give notice of any single Claim in accordance with paragraph 2, whether or not the amount set out in paragraph 1.4 has been exceeded at the time the notice is given.

 

2.4

Peabody will not be liable in respect of any Claim, and Peabody’s liability in respect of such Claim will cease (and no new Claim may be made in respect of the facts, matter, events or circumstances giving rise to such Claim) to the extent not previously satisfied, withdrawn or settled, six months after the date on which the notice referred to in paragraph 2.1 is given unless court proceedings in respect of the subject matter of the Claim:

 

  (a)

have been commenced by being both issued and validly served on Peabody; and

 

  (b)

have not been withdrawn or terminated and are continuing to be pursued with reasonable diligence by the Buyer.

 

3.

Remediable Breaches

To the extent the fact, matter, event or circumstance giving rise to a Claim is capable of remedy, Peabody will not be liable for such Claim if and to the extent that it is remedied at Peabody’s cost and expense to the Buyer’s reasonable satisfaction within 60 Business Days of the date of the notice referred to in paragraph 2.1. Without prejudice to any obligation on the Buyer to mitigate any loss, the Buyer shall, and shall procure that each Buyer Group member shall, at Peabody’s cost and expense, provide reasonable assistance to Peabody to remedy any such fact, matter, event or circumstance.

 

4.

Indirect Loss

 

4.1

Peabody will not be liable for any indirect loss.

 

4.2

Peabody will not be liable for any punitive loss, loss of profit (other than direct loss of profit being a loss that arises naturally from the relevant breach or circumstances), loss of goodwill, loss of opportunity or loss of reputation, whether actual or prospective, in respect of any Claim.

 

5.

Disclosure

Peabody will not be liable in respect of any Claim if and to the extent that the fact, matter, event or circumstance giving rise to such Claim is Disclosed:

 

  (a)

in this Deed or any other Transaction Document;

 

  (b)

in any information available, on the date that is two Business Days before the date of this Deed, on the PPS Register or public registers maintained by any of the Trade Marks Office, IP Australia, the Queensland Titles Registry, the Queensland Department of Environment, Science and Innovation, the Queensland Department of Natural Resources and Mines, the Commonwealth Department of Climate Change, Energy, the Environment and Water, the Clean Energy Regulator, the National Native Title Tribunal, ASIC or the Queensland Competition Authority;

 

  (c)

in any information available, on the following dates specified, on public registers maintained by:


  (i)

the High Court of Australia, as at the date which is two Business Days before the date of this Deed;

 

  (ii)

the Federal Court of Australia, as at the date which is two Business Days before the date of this Deed;

 

  (iii)

the Supreme Court of Queensland and District Court of Queensland, as at the date which is two Business Days before the date of this Deed;

 

  (iv)

the Land Court of Queensland, as at 19 November 2024;

 

  (v)

the Supreme Court of New South Wales, as at 18 November 2024;

 

  (vi)

the Supreme Court of Western Australia, as at 18 November 2024;

 

  (vii)

the Supreme Court of Victoria, as at 18 November 2024;

 

  (viii)

the Supreme Court of South Australia, as at 6 November 2024;

 

  (ix)

the Supreme Court of the Northern Territory, as at 18 November 2024; or

 

  (x)

the Supreme Court of the Australian Capital Territory, as at 18 November 2024; or

 

  (d)

in any information available through releases on a Stock Exchange published by Anglo American plc (including quarterly, half yearly and annual reports) in the 12 month period prior to the date of this Deed, on or before the date that is two Business Days before the date of this Deed.

 

6.

Buyer’s Knowledge

 

6.1

Peabody will not be liable in respect of any Claim if and to the extent that the Buyer Deal Team Members are aware, or ought reasonably to have been aware as at the date of this Deed (including after having made reasonable enquiries after they had each reviewed this Deed and any other Transaction Document) of the Claim or the fact, matter, event or circumstance which is the subject matter of the Claim.

 

6.2

The Buyer and the Buyer Guarantor acknowledge, agree, represent and warrant to Peabody, that at no time has Peabody or any person on their behalf made or given or has the Buyer or the Buyer Guarantor relied on any representation, warranty, promise or undertaking in respect of the future financial performance or prospects of the Group Companies (including any dividends which may be paid by the Group Companies) or otherwise (including in connection with any financial analysis or modelling conducted by the Buyer or any of their Representatives).

 

6.3

The Buyer and the Buyer Guarantor acknowledge, agree, represent and warrant to Peabody that, notwithstanding anything in this Deed (but subject to the Warranties), neither Peabody (nor any of its Representatives) make any warranty or representation in respect of the future recoverable reserves, physical characteristics of or prospects in relation to the Mining Tenements. Without limiting the generality of the foregoing, Peabody makes no representation or warranty, whether express or implied, and disclaims any liability in respect of or as to:

 

  (a)

any personal property or equipment located on the Mining Tenements;

 

  (b)

the state, condition, conformity to model or samples, or any physical assets located on or forming part of the Mining Tenements or Properties, including all installations, structures, plants, equipment, machinery, and the Buyer and the Buyer Guarantor acknowledge and agree that all such assets are transferred under this Deed on an “as is, where is” basis (subject to the Warranties);


  (c)

the amount, quality, price, or deliverability of, or values with respect to, any reserves attributable to the Mining Tenements;

 

  (d)

the issuance, reissuance or transfer of any permits related to the Mining Tenements (including the grant of any tenement from an application);

 

  (e)

any authorisation, consent, approval, or waiver required under any Mining Tenements, Properties or applicable Law;

 

  (f)

any geological, geophysical, engineering, economic, or other interpretations, forecasts, or evaluations in respect of the Mining Tenements, including in respect of any geological formation, drilling prospect, or reserves, and the Buyer affirms and acknowledges that it has made its own independent assessment and evaluation of these matters; or

 

  (g)

any forward-looking statements, forecasts, or financial projections, including present or future value of anticipated income, costs, or profits.

 

7.

Contingent Liabilities

Other than in respect of a Tax Claim, Peabody will not be liable in respect of any liability which is contingent or otherwise not capable of being quantified in relation to any Claim unless and until such contingent or unquantifiable liability becomes an actual and quantifiable liability and is due and payable.

 

8.

Alternative Recovery

 

8.1

Peabody will not be liable in respect of any Claim to the extent of the amount of the Liabilities to which the Claim relates has otherwise been made good or has otherwise been compensated for in full without loss to any Buyer Group member.

 

8.2

Peabody will not be liable in respect of any Claim (other than a Tax Claim, to which the provisions of Schedule 7 will instead apply) if the Buyer Group has a right of recovery against, or indemnity from, any third party, including pursuant to any insurance policy (whether under provision of law, contract or otherwise) in respect of the Liabilities to which the Claim relates, unless the Buyer Group has first used reasonable endeavours to recover from such third party (an “Alternative Recovery Claim”).

 

8.3

In respect of any Alternative Recovery Claim, the Buyer shall:

 

  (a)

as soon as reasonably practicable give written notice of the Alternative Recovery Claim to Peabody specifying in reasonable detail the material aspects of the Alternative Recovery Claim;

 

  (b)

keep Peabody reasonably informed of the progress of the Alternative Recovery Claim;

 

  (c)

provide Peabody (at Peabody’s cost and expense) with copies of all material correspondence or other documents relating to the Alternative Recovery Claim requested by Peabody, subject always to legal professional privilege and any confidentiality obligations that are binding on any Buyer Group member; and

 

  (d)

use reasonable endeavours to consult with Peabody regarding the conduct of the Alternative Recovery Claim.


8.4

The Buyer will not be precluded from bringing any Claim under this Deed by reason of any breach of the terms of paragraph 8.3, but Peabody will not be liable in respect of any relevant Claim to the extent Peabody’s liability would otherwise arise or be increased by such breach.

 

9.

Subsequent Recovery

If Peabody pays the Buyer any amount in respect of a Claim and the Buyer or any Buyer Group member is or subsequently becomes entitled to recover from any person other than Peabody a sum which is referable to that Claim (including any by way of discount, relief or credit), the Buyer shall give prompt notice to Peabody, and shall, and shall procure that any relevant Buyer Group member shall, use reasonable endeavours to seek recovery from such third party. If any amount is actually recovered from such third party, such amount must promptly be repaid by the Buyer to Peabody.

 

10.

Financial Benefit

In calculating Peabody’s liability in respect of any Claim, any net quantifiable financial benefit to any Buyer Group member as a result of the matter giving rise to such Claim or the Claim itself will be taken into account, including the amount by which any Taxation for which any Buyer Group member is accountable or liable to be assessed is actually reduced or extinguished as a result of the matter giving rise to such Claim or the Claim itself provided such reduction will be realised not later than the tax period in which the payment from Peabody falls due.

 

11.

No Duplication Of Recovery

The Buyer will not be entitled to recover damages or obtain payment, reimbursement, restitution or indemnity more than once in respect of the same Liabilities, regardless of whether more than one Claim arises in respect of it, and for this purpose recovery by the Buyer or any Group Company will be deemed to be a recovery by each of them.

 

12.

Voluntary Acts/Future Changes

Peabody will not be liable in respect of any Claim if and to the extent that the Claim would not have arisen but for, or is increased or not reduced as a result of:

 

  (a)

the completion of the sale of any Participating Interest required upon receipt of a Pre-emption Acceptance Notice;

 

  (b)

any act or omission by Peabody, or any Affiliate of Peabody or any Group Company as a consequence of the execution and / or performance of any Transaction Document;

 

  (c)

any act or omission of Peabody, any Affiliate of Peabody or any Group Company before Completion taken at the written request of or with the Buyer’s written consent;

 

  (d)

any failure by the Buyer to act in accordance with paragraph 13 of this Schedule in connection with the matter giving rise to such Claim;

 

  (e)

any act or omission of any Buyer Group member, or any of their directors, officers, employees, agents or consultants, after Completion which is outside its ordinary course of business as conducted at Completion and is not carried out pursuant to a legally binding obligation entered into on or before Completion or pursuant to any obligation imposed by Law, but in each case only in circumstances where:

 

  (i)

the relevant person knew that the relevant Claim would arise or was reasonably likely to arise because of the voluntary act and that an alternative course of action was available at no additional cost to the relevant Buyer Group member; and


  (ii)

the act or omission was not carried out in the ordinary course of business of the relevant Buyer Group member or pursuant to a legally binding commitment of any Buyer Group member created on or before Completion, in complying with any law or applicable regulation or at the written request of any Tax Authority or at Peabody’s or its Affiliate’s written request or with the written consent of Peabody or its Affiliate;

 

  (f)

any winding-up or cessation of, or any change in, the nature or conduct of any business carried on by a Buyer Group member after Completion;

 

  (g)

any reorganisation or change in ownership of any Group Company or any Participating Interest after Completion;

 

  (h)

any alteration to or enactment (other than a re-enactment) of any statute, statutory instrument or other legislative act or other change of Law (including any decision of any court or tribunal) or any practice of any Authority (including the withdrawal of any extra-statutory concession of a Tax Authority) which is announced and enacted after the date of this Deed (whether relating to Taxation, rates of Taxation or otherwise);

 

  (i)

the withdrawal or amendment of or change to any practice, concession or written agreement or administrative arrangements with any Group Company previously made by any Tax Authority in force at the date of this Deed;

 

  (j)

any change in the accounting reference date or the length of any accounting period of any Buyer Group member made on or after Completion; or

 

  (k)

any change in the accounting bases, policies, practices or methods applied in preparing any accounts or valuing any assets or liabilities of any Group Company from those used in the preparation of the Pro forma Financial Information other than a change which is reported by a Group Company’s auditors at the time to be necessary in their opinion because such bases, policies, practise or methods as at Completion are not in accordance with any appropriate published accounting practices or principles then current.

 

13.

Conduct Of Third-Party Claims

In respect of any fact, matter, event or circumstance which any Buyer Group member becomes aware of, which is reasonably likely to result in a claim against any of them (a “Third-Party Claim”) and which, in turn, is reasonably likely to result in a Claim, the Buyer shall:

 

  (a)

as soon as reasonably practicable give written notice of the Third-Party Claim to Peabody specifying in reasonable detail the material aspects of the Third-Party Claim (but any failure to do so will not prejudice the Buyer’s Claim except to the extent the amount of the Claim is increased by the delay);

 

  (b)

keep Peabody reasonably informed of the progress of the Third-Party Claim;

 

  (c)

provide Peabody upon request (and at Peabody’s cost and expense) with copies of all material correspondence or other documents relating to the Third-Party Claim requested by Peabody, subject always to legal professional privilege and any confidentiality obligations that are binding on any Buyer Group member;

 

  (d)

consult with Peabody regarding the conduct of the Third-Party Claim;

 

  (e)

not cease to defend the Third-Party Claim or make any admission of liability or any agreement, compromise or payment in relation to the Third-Party Claim without Peabody’s written consent, which will not be unreasonably withheld or delayed;


  (f)

take such action as Peabody may reasonably request to avoid, resist, dispute, appeal, compromise, remedy or defend the Third-Party Claim; and

 

  (g)

subject to any consent (if any) required under a Joint Venture Agreement (which the Buyer must (and must procure any Group Company must) use reasonable endeavours to obtain), allow Peabody, at its election (in writing), to take over the conduct of the Third-Party Claim, in which case:

 

  (i)

the Buyer shall:

 

  (A)

delegate the conduct of any proceedings in respect of the Third-Party Claim to Peabody;

 

  (B)

retain such legal advisers as nominated by Peabody to act on behalf of the relevant member(s) of the Buyer Group in relation to the Third-Party Claim in accordance with Peabody’s instructions (provided the Buyer is entitled to engage its own separate legal advisers, at its own cost and expense);

 

  (C)

procure that its Representatives provide such information and assistance as Peabody or the appointed legal advisers may require in connection with the conduct of the Third-Party Claim (subject to Peabody paying reasonable cost and expenses of such Representatives in providing such information and assistance); and

 

  (D)

procure that the relevant Group Company will promptly take such actions or omit to take such actions as directed by Peabody in accordance with its rights under this paragraph 13; and

 

  (ii)

Peabody shall:

 

  (A)

keep the Buyer reasonably informed of the progress of the Third-Party Claim;

 

  (B)

provide the Buyer upon request with copies of all material correspondence or other documents relating to the Third-Party Claim requested by the Buyer, subject always to legal professional privilege and any confidentiality obligations that are binding on Peabody or any of its Affiliates;

 

  (C)

consult with the Buyer regarding the conduct of the Third-Party Claim;

 

  (D)

not cease to defend the Third-Party Claim or make any admission of liability or enter into any agreement or compromise in relation to such Third-Party Claim without consultation with the Buyer; and

 

  (E)

have a consent right, not to be unreasonably withheld or delayed, in respect of any admission of liability, compromise or settlement or payment in respect of any Third-Party Claim by any Buyer Group member;

 

  (F)

act reasonably in all the circumstances in respect of the conduct of the Third-Party Claim, including having regard to the likelihood of success of the proceedings; and

 

  (G)

provided that the Buyer has complied with its obligations under paragraph (g)(i), indemnify the Buyer on demand (on a dollar for dollar basis) against all Liabilities reasonably incurred by the Buyer and its Affiliates in connection with the conduct of the Third-Party Claim by Peabody.


14.

Duty To Mitigate

The Buyer shall procure that reasonable steps and proceedings are taken by each Buyer Group member and each of their directors and officers to mitigate any Liabilities, Claim or potential Claim. Nothing in this Deed will relieve the Buyer of the common law rules of mitigation in respect of its loss.

 

15.

Seller Access

In the event of an actual or potential Claim, the Buyer shall, subject to Peabody giving such undertakings as to confidentiality as the Buyer may reasonably require, procure that Peabody and its Representatives are provided, upon reasonable notice and during Working Hours, with all such assistance, documentation, information and access to such information, records, premises and personnel of the relevant Group Companies as they may reasonably require (but excluding anything which is subject to legal privilege) to investigate, avoid, remedy, dispute, resist, appeal, compromise or contest such Claim and shall permit Peabody and its Representatives to make copies of such documentation and information to the extent relevant to the Claim.

 

16.

Application To Excluded Claims

 

  (a)

Paragraphs 1.2 to 1.4, 2, 5 and 6 of this Schedule 5 do not apply to Excluded Claims.

 

  (b)

Without limiting paragraph 16(a), the Peabody Group will not be liable in respect of any single Excluded Claim or any series of Excluded Claims which arise from the same or substantially the same facts, matters, circumstances or events (and such Excluded Claim(s) will be disregarded for all purposes) unless the amount of the liability pursuant to such Excluded Claim or series of Excluded Claims would exceed $50,000.

 

17.

[***]


Schedule 6

Back to Back Warranties

 

1.

DEFINITIONS AND INTERPRETATION

 

1.1

In this Schedule:

Applicable Data Protection Laws” means:

 

  (a)

the Australian Privacy Act 1988 (Cth); and

 

  (b)

the General Data Protection Regulation 2016/679, the UK Data Protection Act 2018 (the “DPA”) and the UK General Data Protection Regulation as defined by the DPA as amended by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019,

and any relevant law, statute, declaration, decree, directive, legislative enactment, order, ordinance, regulation, rule or other binding instrument which implements any of the above, in each case as amended, consolidated, re-enacted or replaced from time to time;

Dawson Plant and Equipment Assets” means the plant and equipment listed in the Fixed Asset Register under company code AU85;

Dawson South Plant and Equipment Assets” means the plant and equipment listed in the Fixed Asset Register under company code AU77, to the extent it relates to the Dawson South Joint Venture;

Dawson South Exploration Plant and Equipment Assets” means the plant and equipment listed in the Fixed Asset Register under company code AU77, to the extent it relates to the Dawson South Exploration Joint Venture;

Entitlements” means any superannuation, incapacity, sickness, disability, accident, healthcare or death benefits (including in the form of a lump sum);

Finance Documents” has the meaning given in paragraph 11.1;

Fixed Asset Register” means document 02.02.02.04 in the Data Room.

Insurance Policy” has the meaning given in paragraph 19.1;

Intellectual Property” means:

 

  (a)

all rights in patents, utility models, trade marks, service marks, logos, get-up, trade names, internet domain names, copyright (including rights in computer software), design rights, moral rights, database rights, topography rights, plant variety rights, confidential information and knowledge (including know-how, inventions, secret formulae and processes, market information, and lists of customers and suppliers), and rights protecting goodwill and reputation, in all cases that is material to the Group and owned or used by the Group whether registered or unregistered; all other forms of protection having a similar nature or effect anywhere in the world to any of the items in this limb (a); and

 

  (b)

applications for or registrations of any of the rights in limb (a),

in each case, that is or are material to the Group Companies;

Plant and Equipment Assets” means the Dawson Plant and Equipment Assets, Dawson South Plant and Equipment Assets, Dawson South Exploration Plant and Equipment Assets, and Theodore South Plant and Equipment Assets;


Theodore South Plant and Equipment Assets” means the plant and equipment listed in the Fixed Asset Register under company code AU72.

 

2.

TITLE AND CAPACITY

 

2.1

The SMC Seller is validly incorporated, in existence and duly registered under the laws of its country of incorporation.

 

2.2

The SMC Seller has taken all necessary action and has all requisite power and authority to enter and perform the SMC SPA Transaction Documents to which it is a party in accordance with their terms.

 

2.3

The SMC SPA Transaction Documents (to which the SMC Seller is a party) constitute (or will constitute when executed) valid, legal and binding obligations on the SMC Seller in accordance with their terms.

 

2.4

The execution and delivery of the SMC SPA Transaction Documents by the SMC Seller and the performance of and compliance with their terms and provisions will not conflict with or result in a breach of, or constitute a default under, the SMC Seller’s constitutional documents, any agreement or instrument to which the SMC Seller is a party or by which it is bound, or any Law, order or judgment that applies to or binds the SMC Seller or any of its property.

 

3.

CAPITAL STRUCTURE AND CORPORATE INFORMATION

 

3.1

The section of the Group Information Schedule entitled “Subsidiaries”:

 

  (a)

lists all the subsidiaries and subsidiary undertakings of the Companies;

 

  (b)

sets out particulars of their allotted and issued share capital or in the case of Anglo Dawson, its member; and

 

  (c)

is complete and accurate in all material respects as at the date of this Deed.

 

3.2

Unless otherwise indicated in the Group Information Schedule, the Company or a Subsidiary is the sole legal and beneficial owner of the whole allotted and issued share capital of each Subsidiary and all such shares are fully paid up and free from all Encumbrances, other than the Pre-emption Rights.

 

3.3

No person (other than a Group Company or the SMC Seller) has a right to require any Group Company to allot, issue, sell, transfer any share capital, or to convert existing securities into or to issue securities that have rights to convert into any share capital other than in accordance with the Joint Venture Agreements.

 

4.

CONSTITUTIONAL AND CORPORATE DOCUMENTS

 

4.1

Copies of the constitution of each Group Company are included in the Data Room.

 

4.2

All statutory books (excluding the minutes books) and registers required to be maintained by each Group Company under the law of its jurisdiction of incorporation are in the possession or under the control of the Group Company to which they relate and are properly written up in all material respects.

 

5.

INSOLVENCY

 

5.1

No receiver or administrative receiver or manager or receiver and manager or trustee or similar person has been appointed over the whole or any part of the assets or undertaking of any Group Company. No administrator has been appointed, nor has any administration order been made, in respect of any Group Company, and no petition or application for such an order or any notice of appointment of, or of any intention to appoint, an administrator has been threatened, presented, made, served or filed.


5.2

No voluntary arrangement, compromise, composition, scheme of arrangement, standstill agreement, deferral, rescheduling or other readjustment or reorganisation or other arrangement between any Group Company and its creditors (or any class of them) has been proposed or approved by any Group Company other than in the ordinary course of trading.

 

5.3

No petition has been threatened or presented against any Group Company by any third party, and no order has been made, no resolution has been passed and no meeting has been convened for the purpose of winding up any Group Company or for the appointment of a provisional liquidator or special manager to any Group Company.

 

5.4

No step has been taken with a view to the dissolution or striking-off the register of any Group Company.

 

5.5

No event or circumstance has occurred or exists in respect of any Group Company analogous to those described in paragraphs 5.1 to 5.4.

 

6.

PRO FORMA FINANCIAL INFORMATION

 

6.1

Insofar as it relates to the SMC Group, the Pro forma Financial Information presents with reasonable accuracy the financial position of the SMC Group (including, for these purposes, the SMC Subsidiaries that are the subject of the Moranbah Carve-out and the Jellinbah Carve-out) as at the end of each Pro forma Financial Information Period and its financial performance for each Pro forma Financial Information Period. In this paragraph:

 

  (a)

Jellinbah Carve-out” has the meaning given to the term ‘Jellinbah Carve-out’ in the SMC SPA;

 

  (b)

Moranbah Carve-out” has the meaning given to the term ‘Moranbah Carve-out’ in the SMC SPA; and

 

  (c)

SMC Subsidiaries” has the meaning given to the term ‘Subsidiaries’ in the SMC SPA.

 

7.

ACCOUNTS

 

7.1

The Accounts have been prepared:

 

  (a)

in accordance with the Accounting Standards; and

 

  (b)

in accordance with the requirements of the Corporations Act and any other applicable Laws.

 

7.2

Insofar as they relate to the SMC Group, the Accounts give a true and fair view of the financial position of the SMC Group (including, for these purposes, the SMC Subsidiaries that are the subject of the Moranbah Carve-out and the Jellinbah Carve-out) as at the Accounts Date and its financial performance for the year ended on the Accounts Date. In this paragraph 7.2, ‘Jellinbah Carve-out’, ‘Moranbah Carve-out’ and ‘SMC Subsidiaries’ have the meaning given in paragraph 6.1.

 

8.

MANAGEMENT ACCOUNTS

 

8.1

So far as the SMC Seller is aware, the Management Accounts have been prepared:

 

  (a)

with due care and attention; and

 

  (b)

on a basis consistent with the equivalent management accounts in respect of the same period in the prior year and in accordance with the SMC Group’s monthly reporting procedures as consistently applied.

 

8.2

Having regard for the purposes for which they were prepared, so far as the SMC Seller is aware, the Management Accounts present with reasonable accuracy the profits and losses and net assets of the entities to which they relate for the period, and as at the date, in respect of which they have been prepared, in each case insofar as they relate to the SMC Group and in each case other than in respect of exceptional items which in aggregate are not material.


9.

PARTICIPATING INTERESTS AND PLANT AND EQUIPMENT ASSETS

 

9.1

Anglo Dawson holds the Dawson Participating Interest in the Dawson Plant and Equipment Assets.

 

9.2

Anglo Dawson South holds the:

 

  (a)

Dawson South Participating Interest in the Dawson South Plant and Equipment Assets; and

 

  (b)

Dawson South Exploration Participating Interest in the Dawson South Exploration Plant and Equipment Assets.

 

9.3

Anglo Theodore South holds the Theodore South Participating Interest in the Theodore South Plant and Equipment Assets.

 

9.4

Other than the Pre-emption Rights, there are no Encumbrances over or affecting any Plant and Equipment Assets, and the SMC Seller is not party to any agreement to grant any Encumbrance over any Plant and Equipment Asset.

 

9.5

Each Plant and Equipment Asset is:

 

  (a)

located at the mine or site to which is relates;

 

  (b)

in the physical possession or control of the Joint Venture Participants or the relevant Group Company, as applicable; and

 

  (c)

in a good and safe state of repair and condition and in satisfactory working order for its age.

 

10.

CONTRACTS

 

10.1

Copies of the Material Contracts are included in the Data Room.

 

10.2

No notice of termination or material breach (which is current and outstanding) of any Material Contract has been received or served by a Group Company, and, so far as the SMC Seller is aware, there are no grounds for lawful termination by the counterparty of any Material Contract.

 

10.3

No Group Company is and, so far as the SMC Seller is aware, no other party to a Material Contract is in material breach of any Material Contract.

 

10.4

So far as the SMC Seller is aware, there are no agreements, arrangements or understandings to which the Group Companies are party other than as set out in the SMC SPA Disclosure Letter or the Vendor Reports that are outside the ordinary course of business of each of the Group Companies.

 

11.

FINANCE AND GUARANTEES

 

11.1

The Data Room contains details of the material terms of the current and outstanding financial indebtedness of each Group Company as at the date of this Deed, in each case excluding indebtedness between Group Companies (the “Finance Documents”).

 

11.2

Other than in the ordinary course of business, no Group Company has given or entered into any guarantee, mortgage, charge, pledge, lien, assignment or other security agreement or arrangement in respect of, or is otherwise responsible for the indebtedness or the default in the performance of any obligation of, any person other than another Group Company, a Representative of a Group Company or any Joint Venture Participant.


11.3

No Group Company has received any written notice (which is current and outstanding) from any counterparty under the Finance Documents:

 

  (a)

that it is in material default under the terms of any of the Finance Documents (and with such default still being outstanding at the date of this Deed); or

 

  (b)

to repay any part of the Finance Documents in advance of their stated maturity date.

 

12.

EMPLOYEES AND ENTITLEMENTS

 

12.1

So far as the SMC Seller is aware, each Group Company (to the extent applicable) has complied with applicable Laws, awards, enterprise agreements or other instrument made or approved under any Law with respect to:

 

  (a)

employment of its Employees; and

 

  (b)

its Entitlements owed to Employees.

 

13.

MINING TENEMENTS AND INTERESTS

 

13.1

The details of each Mining Tenement set out in Schedule 8 are true and correct in all material respects.

 

13.2

Each Mining Tenement is valid, in good standing and is not liable to forfeiture, termination (other than expiry in the ordinary course), cancellation or suspension for any reason; and no notice has been received under any applicable Laws cancelling, forfeiting or suspending or threatening to cancel, forfeit or suspend the Mining Tenements nor any material licence, consent, permission, authority or permit held in relation to the Mining Tenements; and all material obligations and liabilities under the terms of each Mining Tenement (including the payment of all relevant material fees and charges in respect of those Mining Tenements) have been met and satisfied; and there are no outstanding material non-compliances with applicable Laws in relation to each Mining Tenement.

 

13.3

In respect of the Mining Tenements in which Schedule 8 provides that a Group Company has an interest, the Group Company is holder of a legal and beneficial interest in the percentage set out in Schedule 8, and the Group Company has full capacity and power to hold those interests.

 

13.4

At SMC Completion, there will be no Encumbrances over or affecting any of the Participating Interests, and no Group Company is party to any agreement to grant any Encumbrance over any of the Mining Tenements, and there will be no agreements, options or rights capable of becoming or giving rise to an agreement or option for the purchase of the Mining Tenements.

 

13.5

There are no agreements, arrangements or understandings in force requiring any of the Participating Interests to be shared with or made available to any person.

 

14.

PROPERTY

 

14.1

The details of each Property set out in Schedule 10 are true and correct in all material respects.

General

 

14.2

The Properties are the only land and buildings owned, used or occupied by each Group Company in relation to the operation of the relevant Joint Ventures and for residential purposes.

 

14.3

Except as Disclosed, the Group Companies have exclusive occupation and right of quiet enjoyment of the Properties.

 

14.4

As at the date of the SMC SPA, no notices have been received by the SMC Seller or a Group Company, and there is no order, declaration, report, recommendation or approved proposal of a public authority or government department which would materially affect the use of any of the Properties.


Freehold Properties

 

14.5

In relation to those Properties listed in Schedule 10, which are real property owned by the Group Companies (“Freehold Properties”):

 

  (a)

a Group Company is the registered holder and beneficial owner of the Freehold Properties;

 

  (b)

all rates, taxes and levies (including land tax) applicable to the Freehold Properties have been paid; and

 

  (c)

a Group Company has not sold, agreed to sell, granted any option to sell, lease or sublease or agreed to lease or sublease any of the Freehold Properties.

Leasehold Properties

 

14.6

In relation to the Properties listed in Schedule 10, which are leased by the Group Companies (“Leasehold Properties”):

 

  (a)

there are no subsisting material breaches of the leases of the Leasehold Properties (“Property Leases”); and

 

  (b)

as at the date of the SMC SPA, no Group Company has received any notice of any breach of the Property Leases.

 

14.7

The Property Leases:

 

  (a)

are valid and subsisting; and

 

  (b)

have not been amended or modified.

 

15.

INTELLECTUAL PROPERTY

 

15.1

As at the date of the SMC SPA, no claims have been received by the SMC Seller Group challenging any Group Company’s use of the Intellectual Property.

 

15.2

As at the date of the SMC SPA, Schedule 11 is a complete and accurate list of:

 

  (a)

all material registered business names and trade marks;

 

  (b)

all material registered patents and designs; and

 

  (c)

all material applications for registration of patents, trade marks and designs,

owned or used by the Group Companies.

 

16.

COMPLIANCE WITH LAWS AND DISPUTES

 

16.1

Each Group Company is conducting, and has for the three years before the date of this Deed conducted its business, in all material respects, in accordance with all applicable Laws.

 

16.2

No Group Company:

 

  (a)

is or has in the three years before the date of this Deed been engaged in any litigation, administrative, mediation or arbitration proceedings or other proceedings or hearings before any Authority (except for debt collection in the normal course of business), in each case of a value exceeding AUD 5,000,000); or


  (b)

is or has in the three years before the date of this Deed received written notice that it is the subject of any formal investigation, inquiry or enforcement proceedings by any Authority which would have a material adverse effect on the Group as a whole,

and no such proceedings, investigations or inquiries have been threatened in writing or are pending.

 

16.3

No Group Company:

 

  (a)

is affected by any existing or pending judgments, decisions or rulings made against a Group Company that would have a material adverse effect on the Group as a whole; or

 

  (b)

has given any undertakings arising from legal proceedings to an Authority or other third party which remains in force.

 

17.

ENVIRONMENT

 

17.1

So far as the SMC Seller is aware:

 

  (a)

in relation to the Mining Tenements there are no material, unremediated breaches of any applicable Environmental Laws; and

 

  (b)

all material Environmental Authorisations in relation to the Mining Tenements:

 

  (i)

have been obtained; and

 

  (ii)

are in full force and effect in all material respects.

 

18.

BRIBERY, CORRUPTION, SANCTIONS AND EXPORT CONTROLS

 

18.1

No Group Company nor any of their respective directors, officers, employees, agents, or representatives is engaged (in such capacity) in any conduct, activity or omission which would constitute material non-compliance with any Sanctions Law or Anticorruption Law.

 

18.2

No Group Company nor any of their respective directors, officers, employees, agents or representatives (in such capacity):

 

  (a)

is or has been a Sanctioned Person;

 

  (b)

is or has been in breach of any Sanctions Laws; or

 

  (c)

has in the three years before the date of this Deed engaged in any transaction or dealing with any Sanctioned Person and/or with any Sanctioned Territory,

provided paragraph 18.1 and this paragraph 18.2 will not apply if and to the extent that it is or would be unenforceable by reason of breach of any provision of the Council Regulation (EC) No 2271/96 of 22 November 1996, the Protecting against the Effects of the Extraterritorial Application of Third Country Legislation (Amendment) (EU Exit) Regulations 2020 (SI 2020/1660), any law or regulation implementing such regulations in any member state of the European Union or the United Kingdom, or any similar blocking or anti-boycott law.

 

19.

INSURANCE

 

19.1

A summary of all material insurance policies maintained by or covering the Group as at the date of this Deed is included in the Data Room (each, an “Insurance Policy”).

 

19.2

All premiums due and payable on each Insurance Policy have been paid and no written notice of cancellation, termination or revocation of any Insurance Policy has been received by any Group Company.


20.

POWERS OF ATTORNEY

There are no powers of attorney in force given by any Group Company, other than those given to:

 

  (a)

its Representatives in the ordinary course of business or otherwise to ensure the continued operation of the Group or to a holder of an Encumbrance solely to facilitate its enforcement; or

 

  (b)

the Group’s employees in the ordinary course of business.

 

21.

TAX

 

21.1

Each Group Company and the SMC Seller Head Company has in the three years before the date of this Deed made or submitted all material returns, accounts and computations in relation to Tax which it was required by law to make or submit, and all such returns, accounts and computations were prepared on a proper basis.

 

21.2

Each Group Company or the SMC Seller Head Company has complied on a timely basis with all notices served on it and any other requirements lawfully made of it by any Tax Authority.

 

21.3

All Tax for which a Group Company or the SMC Seller Head Company has been liable to account has been duly paid (insofar as such Tax ought to have been paid), and no Group Company is liable, or has in the three years before the date of this Deed been liable, to pay a material penalty, surcharge, fine or interest in connection with Tax.

 

21.4

Each Group Company has in the three years before the date of this Deed deducted or withheld all Tax which it has been obliged by law to deduct or withhold from amounts paid by it and has properly accounted to the relevant Tax Authority for all amounts of Tax so deducted or withheld to the extent such amounts are due to be paid to a Tax Authority.

 

21.5

No Group Company is currently party to any material dispute with, or audit, investigation or non-routine review by, any Tax Authority, and no Group Company has been notified that it is the subject of any non-routine investigation, enquiry or audit by any Tax Authority.

 

21.6

Each Group Company has since its date of incorporation been resident for Tax purposes only in its jurisdiction of incorporation, and no Group Company is liable to pay Tax chargeable under the laws of any other jurisdiction save in respect of income or gain on which it may be subject to Tax solely by way of withholding.

 

21.7

In relation to any period during which a Group Company has been a member of the SMC Seller Consolidated Group, there are no Group Liabilities not covered by the SMC Seller Tax Sharing Agreement, including:

 

  (a)

in the circumstances set out in section 721-25(2) of the 1997 Tax Act (the SMC Seller Tax Sharing Agreement was entered into as an arrangement to prejudice the recovery by the Commissioner of some or all of any Group Liability of the SMC Seller Consolidated Group); and

 

  (b)

in the circumstances set out in section 721-25(3) of the 1997 Tax Act (the SMC Seller Head Company fails to provide a copy of the SMC Seller Tax Sharing Agreement in the approved form as required by section 721-25(3) of the 1997 Tax Act).

 

21.8

Each Company and each of the Consolidated Subsidiaries is a member of the SMC Seller Consolidated Group.

 

21.9

Each Company and each of the Consolidated Subsidiaries is a party to the SMC Seller Tax Sharing Agreement which covers all Group Liabilities.

 

21.10

Each Group Company has in the three years before the date of this Deed maintained proper and adequate records to enable it to comply in all material respects with its obligations to:


  (a)

prepare and submit any information, notices, computations, returns and payments required in respect of any Tax Law;

 

  (b)

prepare any accounts necessary for compliance with any Tax Law;

 

  (c)

support any position taken by any Group Company for Tax purposes; and

 

  (d)

retain necessary records as required by any Tax Law,

and, so far as the SMC Seller is aware, such records are accurate in all material respects.

 

21.11

All transactions and instruments entered into in the three years before the date of this Deed for which a Group Company is the person statutorily liable to pay the Duty, or where the Group Company has agreed to pay Duty, have been duly stamped, are not insufficiently stamped, and in respect of such transactions or instruments the Duty has been paid and there is no requirement to upstamp on the account of an interim assessment.

 

21.12

No transactions contemplated by the SMC SPA Transaction Documents will cause a revocation or breach of any corporate reconstruction relief from Duty sought by any Group Company in the period of three years before the date of this Deed.

 

21.13

Each Group Company:

 

  (a)

that is required to be registered for GST under the GST Act is so registered;

 

  (b)

has complied in all material respects with its obligations under the GST Act;

 

  (c)

is not in default of any obligation to make or lodge any payment or GST return or notification under the GST Act;

 

  (d)

has appropriate systems to capture and report GST obligations and comply with the GST Act;

 

  (e)

has no material agreement or arrangement requiring it to pay any GST on a supply which does not contain a provision enabling it, as recipient, to require the other party to the agreement or arrangement to provide to each Group Company a tax invoice for any GST on that supply before that payment is required; and

 

  (f)

has not been paid any amount on account of, or in respect of, GST by any entity which it was not contractually entitled to be paid.

 

21.14

No Group Company has ever been a member of a GST Group other than the SMC Seller GST Group.


Schedule 7

Tax Covenant

 

1.

DEFINITIONS AND INTERPRETATION

 

1.1

In this Schedule:

Actual Tax Liability” means a liability of a Group Company to make a payment (or increased payment) of Tax or a payment in respect of, or on account of, Tax;

Buyer’s Relief” means:

 

  (a)

any Post-Completion Relief; and

 

  (b)

any Relief arising to any member of the Buyer’s Tax Group (other than a Group Company) at any time;

Buyer’s Tax Group” means the Buyer and each other company which is, or is for a Tax purpose, treated as being a member of the same group as, or otherwise controlled by, connected with, or associated in any way with, the Buyer from time to time;

Consolidated Return” has the meaning given in paragraph 6.1;

Deemed Tax Liability” means the use or set-off of a Buyer’s Relief in circumstances where, but for the use or set-off, a Group Company would have had an Actual Tax Liability in respect of which Peabody would have had a liability under this Schedule, and the amount that is to be treated for the purposes of this Schedule as a Deemed Tax Liability will be determined as follows:

 

  (a)

where the Relief that is used or set-off is a deduction from or offset against Tax, the Deemed Tax Liability will be the amount of that Relief so used or set-off;

 

  (b)

where the Relief that is used or set-off is a deduction from or offset against Income, Profits or Gains, the Deemed Tax Liability will be the amount of Tax saved as a result of such use or set-off; and

 

  (c)

where the Relief that is the subject of the set-off is a repayment of Tax, credit or other amount payable by a Tax Authority, the Deemed Tax Liability will be the amount that would have been obtained but for the set-off;

Demand” means:

 

  (a)

any notice, demand, assessment, letter or other document issued, or action taken by, or on behalf of, any Tax Authority; or

 

  (b)

the preparation or submission to a Tax Authority of a Tax Return by the Buyer, any Group Company or another person,

from which it appears that a Tax Liability is, or is likely to be, incurred by or imposed on any Group Company;

Event” includes (without limitation) any event, transaction, act, payment, action, circumstance, state of affairs, default, omission or occurrence of any nature (including, for the avoidance of doubt, Completion itself) and whether or not the Buyer or any Group Company is a party to it, and reference to an Event occurring on or before a particular date includes Events which for Tax purposes are deemed to have, or are treated as having, occurred on or before that date;


Income, Profits or Gains” includes income, profits or gains which are deemed to be earned, accrued or received for Tax purposes, and references to Income, Profits or Gains earned, accrued or received on or before a particular date means Income, Profits or Gains which are regarded as having been, or are deemed to have been, earned, accrued or received on or before that date for Tax purposes;

Independent Tax Expert” means a legal practitioner with at least 10 years’ experience in Tax (at ‘Partner’ or comparable senior level) that is independent of each of the Buyer and Peabody and appointed by the parties under paragraph 6.9;

Other Tax Return” means any Tax Return for or in respect of any accounting period or other tax reporting period of a Group Company which is not a Consolidated Return;

Overprovision” means (applying the accounting policies, principles and practices adopted in relation to the preparation of the SMC SPA Completion Accounts) the amount by which any provision for Tax (other than deferred tax) in the SMC SPA Completion Accounts is overstated but disregarding any overstatement to the extent that it arises as a result of:

 

  (a)

a change in legislation (or a change in interpretation on the basis of case law), a change in the published practice of any Tax Authority, a change in generally accepted accounting principles or a change in the rates of Tax, in each case announced and taking effect after the date of this Deed;

 

  (b)

a voluntary act of the Buyer or the relevant Group Company after SMC Completion;

 

  (c)

any change after SMC Completion of accounting policy, method or basis of a Group Company or the date to which a Group Company makes up its accounts; or

 

  (d)

the use of any Buyer’s Relief;

Post-Completion Relief” means a Relief which arises:

 

  (a)

as a consequence of, or in connection with, any Event occurring (or being treated for Tax purposes as occurring) after SMC Completion; or

 

  (b)

in respect of a period falling after SMC Completion;

Relevant Percentage” means in respect of a Group Company, the percentage economic interest in that Group Company directly or indirectly acquired by Peabody pursuant to the SMC SPA;

Resolution Institute” means the Resolution Institute ABN 69 008 651 232;

Straddle Period” means an accounting period or other tax reporting period of a Group Company that begins on or before the Completion Date and ends after the Completion Date; and

Tax Liability” means an Actual Tax Liability or a Deemed Tax Liability.

 

1.2

For the purpose of this Schedule and, in particular, computing any Tax Liability or Relief and for determining whether and to what extent a Tax Liability or a Relief relates to a pre- or post-Completion period, any Taxes of a Group Company with respect to any Straddle Period shall be apportioned between the portion of such period up to and including the Completion Date and the portion of such period that begins after the Completion Date on the basis that an accounting or other tax reporting period is deemed to have ended as of the close of business on the Completion Date.

 

1.3

References in this Schedule to paragraphs are to paragraphs in this Schedule unless otherwise stated.


2.

COVENANT TO PAY

 

2.1

Subject to the provisions of paragraph 3 and Schedule 5 of this Deed, Peabody covenants with the Buyer to pay to the Buyer an amount equal to the Relevant Percentage of:

 

  (a)

any Actual Tax Liability:

 

  (i)

arising as a consequence of or by reference to any Event which occurred on or before SMC Completion or was deemed to occur on or before Completion for the purposes of any Tax but excluding any such Actual Tax Liability to the extent that it arises in respect of or by reference to any Income, Profits or Gains;

 

  (ii)

arising in respect of or by reference to any Income, Profits or Gains to the extent that such Income, Profits or Gains were earned, accrued or received on or before SMC Completion;

 

  (b)

any Deemed Tax Liability; and

 

  (c)

all reasonable out of pocket costs and expenses properly incurred by or on behalf of the Buyer or any Group Company (other than any management costs and expenses) in connection with:

 

  (i)

a liability of the kind referred to in paragraphs 2.1(a) or 2.1(b); or

 

  (ii)

successfully taking or defending any action against Peabody under this Schedule.

 

3.

LIMITATIONS AND EXCLUSIONS

 

3.1

Peabody shall not be liable under paragraph 2 of this Schedule 7 or for breach of the Back to Back Tax Warranties in respect of a liability of a Group Company (treating the relevant loss giving rise to a claim for a breach of a Back to Back Tax Warranty as if, for the purposes of this paragraph 3 of this Schedule 7, it was a liability) to the extent that:

 

  (a)

the liability in question has been paid or discharged before SMC Completion or such payment or discharge was economically taken into account or economically reflected in the SMC SPA Completion Accounts;

 

  (b)

provision or reserve was made in the SMC SPA Completion Accounts in respect of the liability in question;

 

  (c)

the liability in question arises, or is increased, as a result of a change in legislation (or a change in interpretation on the basis of case law), a change in the published practice of any Tax Authority, a change in generally accepted accounting principles or a change in the rates of Tax, in each case announced and taking effect after the date of this Deed;

 

  (d)

the liability in question would not have arisen but for a voluntary act or omission of the relevant Group Company after SMC Completion or any other member of the Buyer’s Tax Group at any time, other than an act which:

 

  (i)

is in the ordinary course of business as carried on by the relevant Group Company at or before SMC Completion;

 

  (ii)

is carried out at the written direction or request or with the written consent of Peabody; or

 

  (iii)

is carried out pursuant to any legally binding obligation of any Group Company created or incurred before SMC Completion;


  (e)

the liability in question would not have arisen but for a voluntary act or omission of the SMC Seller or any Group Company, in either case on or before SMC Completion, at the written direction or request or with the written consent of the Buyer;

 

  (f)

the liability in question comprises interest arising by virtue of an instalment of Tax paid prior to SMC Completion proving to be an underpayment, insofar as it would not have been an underpayment but for an amount of Income, Profits or Gains actually earned, accrued or received after SMC Completion exceeding the amount taken into account in calculating the relevant instalment of Tax;

 

  (g)

the liability in question would not have arisen but for any change after SMC Completion of accounting policy, method or basis of a Group Company or the date to which a Group Company makes up its accounts, except where such change is necessary so as to ensure compliance with law or generally accepted accounting principles (as applied at SMC Completion) where a Group Company was before, or on, SMC Completion not so compliant;

 

  (h)

the liability in question would not have arisen but for the failure or omission on the part of a Group Company to comply with a written request of Peabody or its duly authorised agents to make a valid claim, election, surrender or disclaimer or to give a valid notice or consent to do any other thing, under the provisions of an enactment or regulation relating to Tax after SMC Completion, the making, giving or doing of which was taken into account in the SMC SPA Completion Accounts;

 

  (i)

a Relief (other than a Buyer’s Relief) is available to the relevant Group Company, or is for no consideration made available by Peabody or the SMC Seller to the Group Company, to set against or otherwise mitigate the liability in question (and the Buyer shall, at Peabody’s written request, provide Peabody with such information and access to the Buyer’s personnel and advisors as Peabody may reasonably require in order to determine the availability of any such Relief);

 

  (j)

the amount of the liability in question has been recovered from a person (excluding any Group Company, the Buyer or any other member of the Buyer’s Tax Group) without cost to the Buyer or any Group Company;

 

  (k)

the Income, Profits or Gains in respect of which the liability in question arises were actually earned, accrued or received by a Group Company on or before SMC Completion and were not reflected in the SMC SPA Completion Accounts but should have been so reflected, and the benefit of such Income, Profits or Gains was either retained by the relevant Group Company or expended in the ordinary course of its business;

 

  (l)

the liability in question comprises interest, penalties, charges or costs in so far as attributable to the unreasonable delay or default of the Buyer or any Group Company after SMC Completion (including for the avoidance of doubt a delay or default of the Buyer or any Group Company in paying to a Tax Authority any amount received from Peabody pursuant to paragraph 2 of this Schedule) or arises as a result of the failure of the Buyer to comply with any of its obligations under this Deed;

 

  (m)

the liability in question is Tax to which Clause 43.2 of the SMC SPA applies; or

 

  (n)

the Buyer has otherwise made recovery in respect of that liability under this Schedule.

 

3.2

Certain provisions of Schedule 5 contain further limitations which apply to claims under this Schedule 7.

 

3.3

Peabody shall have no liability to the Buyer under any part of this Deed in respect of any non-availability, inability to use, or loss or restriction of any Relief other than to the extent it gives rise to a Tax Liability to which paragraph 2 of this Schedule 7 applies.


4.

MANNER OF MAKING AND CONDUCT OF CLAIMS

 

4.1

If any Group Company or any other member of the Buyer’s Tax Group becomes aware of a Demand issued after Completion which could give rise to a liability for Peabody under paragraph 2 of this Schedule 5 or for breach of the Back to Back Tax Warranties:

 

  (a)

the Buyer shall give written notice to Peabody of the Demand (including reasonably sufficient details of the Demand, the due date for payment and the time limits for any appeal) as soon as reasonably practicable (and in any event no more than five Business Days) after the Buyer or the relevant Group Company becomes aware of the Demand;

 

  (b)

the Buyer shall take (or shall procure that the relevant Group Company shall take) such action as Peabody may reasonably request in writing to avoid, dispute, resist, appeal, compromise or defend the Demand;

 

  (c)

Peabody shall have the right (if it wishes) to control any proceedings, negotiations, discussions, settlement and any other matter in connection with the action referred to in paragraph 4.1(b); and

 

  (d)

both parties must be kept fully informed of any actual or proposed material developments (including any meetings) relating to the Demand or any action referred to in this paragraph 4.1; and the Buyer undertakes that it shall, and shall procure that each Group Company shall, afford to Peabody reasonable access to all material correspondence and documentation relating to the Demand or action and any other information, assistance and access to records and personnel as it reasonably requires in connection with the Demand or action.

 

4.2

Peabody shall indemnify the Buyer, the relevant Group Company and any other member of the Buyer’s Tax Group (as applicable) against all reasonable out of pocket costs properly incurred in connection with any action referred to in paragraph 4.1(b) or paragraph 4.1(c) (excluding, for the avoidance of doubt, any costs attributable to internal management or personnel time).

 

4.3

Subject to paragraph 4.4, the Buyer must ensure that no matter relating to the Demand referred to in paragraph 4.1 is settled, disposed of or otherwise compromised without Peabody’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed.

 

4.4

If Peabody does not:

 

  (a)

request the Buyer to take, or procure the taking of, any such action as referred to in paragraph 4.1(b); or

 

  (b)

give written notice to the Buyer that it wishes to exercise its right under paragraph 4.1(c),

within 20 Business Days of receipt by Peabody of a notice under paragraph 4.1(a), then the Buyer shall be free to satisfy or settle the Demand on such terms as it may in its sole discretion think fit, if, in each case, the Buyer has given further notice to Peabody stating its intention to exercise such entitlement, and Peabody has not within 10 Business Days of the date that such further notice is received by Peabody: (i) made such request as referred to in paragraph 4.4(a); or (ii) given written notice to the Buyer as referred to in paragraph 4.4(b).

 

4.5

If, due to a shorter time limit applying for a response to a Tax Authority in respect of a Demand, Peabody and the Buyer are unable to comply with the timing requirements described in paragraph 4.4, then: (i) the parties shall use their good faith efforts to give effect to paragraph 4.4 so as to provide each of the parties with sufficient notice and opportunity to prepare a response to the Demand; and (ii) if reasonably requested by Peabody and permitted under applicable law, the Buyer shall cause the relevant Group Company to apply for an extension to the date by which a response to the Demand is required.


5.

PAYMENT OF CLAIMS

 

5.1

Payments by Peabody of any liability under this Schedule must be made in cleared and immediately available funds on the days specified in paragraph 5.2.

 

5.2

The days referred to in paragraph 5.1 are as follows:

 

  (a)

in the case of an Actual Tax Liability, the day which is two Business Days prior to the date on which the Tax is to be paid to the relevant Tax Authority, as notified by the Buyer to Peabody at least five Business Days prior to such day or, if later, five Business Days after demand is made for payment by the Buyer;

 

  (b)

in the case of a Deemed Tax Liability, the later of five Business Days after demand is made for payment by or on behalf of the Buyer and the day on which the Tax which would have been payable but for the use or set-off would otherwise have been due and payable to the relevant Tax Authority; and

 

  (c)

in any other case, five Business Days after the date on which demand is made for payment by or on behalf of the Buyer.

 

6.

TAX RETURNS AND COMPUTATIONS

 

6.1

Notwithstanding any other provision in this paragraph 6:

 

  (a)

Peabody will, at its sole cost and expense, have the sole conduct and control of the preparation and (to the extent legally possible) lodgement, filing or submission (as applicable) of all consolidated income tax returns (including for the avoidance of doubt any amendment to any such consolidated income tax return) of the SMC Seller Consolidated Group and the Peabody Consolidated Group for all Tax periods (“Consolidated Return”); and

 

  (b)

if a Consolidated Return in respect of an income year ending prior to Completion is not lodged prior to Completion or requires amendment after Completion, and the lodgement obligation in respect of such Consolidated Return or amended Consolidated Return falls on a Group Company from Completion, the Buyer will procure that the relevant Consolidated Return or amended Consolidated Return is signed and lodged with the relevant Tax Authority in the form provided by Peabody without amendment.

 

6.2

Subject to a direction being given by Peabody to the Buyer under paragraph 6.4, Peabody or its duly authorised agents will (at Peabody’s expense) be responsible for preparing, submitting to and / or agreeing with the relevant Tax Authorities all Other Tax Returns for accounting periods or other tax reporting periods ending on or before SMC Completion (whether such Other Tax Returns are submitted before or after SMC Completion).

 

6.3

For the purposes of paragraph 6.2:

 

  (a)

all Other Tax Returns must be submitted in draft form by Peabody to the Buyer or its duly authorised agents for comment at a reasonable time, and in any event at least (i) in the case of an Other Tax Return relating to GST or payroll tax, or royalties in relation to coal or coal seam gas, five Business Days, and (ii) in all other cases, 20 Business Days, before the last date on which the Other Tax Return may be filed with the relevant Tax Authority without incurring interest and penalties;

 

  (b)

if it wishes to do so, the Buyer or its duly authorised agent must comment (i) where such Other Tax Return relates to GST or payroll tax, or royalties in relation to coal or coal seam gas, within three Business Days, and (ii) in all other cases, within 10 Business Days, of its receipt of any such Other Tax Returns from Peabody (“Buyer Response Period”), and if Peabody has not received any comments within the Buyer Response Period, the Buyer and its duly authorised agents will be deemed to have approved such draft documents;


  (c)

Peabody must take into account all reasonable comments and suggestions made by the Buyer or its duly authorised agents that are received within the Buyer Response Period;

 

  (d)

if Peabody and the Buyer do not agree on any item set out in an Other Tax Return, Peabody and the Buyer must attempt to resolve the dispute as soon as practicable, and in the absence of reaching an agreement paragraph 6.10 will apply;

 

  (e)

Peabody and the Buyer must each afford (or procure that there is afforded) to the other or their duly authorised agents, information and assistance which may reasonably be required to prepare, submit and agree all outstanding Other Tax Returns relating to the Group Companies; and

 

  (f)

Peabody and the Buyer must as soon as practicable deliver to each other copies of all correspondence sent to or received from any Tax Authority relating to the Group Companies.

 

6.4

Notwithstanding paragraphs 6.2 and 6.3, Peabody may in its discretion direct the Buyer in writing to prepare, submit to and / or agree with the relevant Tax Authorities (at Peabody’s expense) any Other Tax Return for an accounting period or other tax reporting period of a Group Company ending on or before SMC Completion, in which case paragraph 6.7(b) will apply.

 

6.5

The Buyer shall be responsible for preparing, submitting to and / or agreeing with the relevant Tax Authorities all Other Tax Returns for any Straddle Period, subject to paragraph 6.7.

 

6.6

The Buyer shall procure that the Group Companies shall cause the Other Tax Returns mentioned in paragraphs 6.2, 6.4 and 6.5 (as applicable) to be signed and submitted to the appropriate Tax Authority on a timely basis and only with such amendments as are incorporated in accordance with paragraphs 6.3 and 6.7 (as applicable).

 

6.7

The provisions of paragraph 6.3 will apply in respect of:

 

  (a)

any Other Tax Return for a Straddle Period as if the word “Peabody” reads “Buyer” and the word “Buyer” reads “Peabody”, but Peabody will only have a right to comment on any matter, or receive copies of correspondence, to the extent they are reasonably expected to be relevant to a liability of Peabody under this Schedule or under the Back to Back Tax Warranties; and

 

  (b)

any Other Tax Return in respect of which Peabody has given a direction to the Buyer under paragraph 6.4 as if the word “Peabody” reads “Buyer” and the word “Buyer” reads “Peabody”, but the Buyer must incorporate all comments and suggestions made by the Peabody or its duly authorised agents that are provided in accordance with paragraph 6.3(b).

 

6.8

If, due to a shorter time limit applying in relation to the filing of an Other Tax Return, Peabody and the Buyer are unable to comply with the timing requirements described in this paragraph 6, then: (i) the parties shall use their good faith efforts to give effect to this paragraph 6 so as to provide each of the parties with sufficient notice and opportunity for review and comment with respect to such Other Tax Return; and (ii), if reasonably requested by Peabody and permitted under applicable law, the Buyer shall cause the relevant Group Company to apply for an extension of the filing date of such Other Tax Return.

 

6.9

For the avoidance of doubt where any matter relating to Tax gives rise to a Demand to which the provisions of paragraph 4 apply, the provisions of paragraph 4 will in the event of a conflict take precedence over the provisions of this paragraph 6.

 

6.10

If the Buyer and Peabody have not resolved a dispute under this paragraph 6 in respect of an Other Tax Return within 10 Business Days after the dispute arises, either the Buyer or Peabody may refer the matter to an Independent Tax Expert in accordance with this paragraph 6.10 and the following provisions will apply:


  (a)

the Independent Tax Expert must be agreed by the Buyer and Peabody, but if the Buyer and Peabody cannot agree within five Business Days after either the Buyer or Peabody requests such an appointment, then, either the Buyer or Peabody may request that the Resolution Institute nominates the Independent Tax Expert in accordance with the Resolution Institute’s expert determination rules;

 

  (b)

if the Buyer or Peabody requests that the Resolution Institute nominates the Independent Tax Expert, the Buyer and Peabody must comply with all requirements of the Resolution Institute for the provision of that nomination, including, if applicable, providing the Resolution Institute with:

 

  (i)

a copy of relevant provisions of this Deed;

 

  (ii)

a description of the disputed matters; and

 

  (iii)

the approximate value of, and the technical areas involved in, the disputed matters;

 

  (c)

if the Resolution Institute nominates a list of persons to be the Independent Tax Expert rather than one particular person, the first person named on that list, who accepts the appointment, will be the Independent Tax Expert;

 

  (d)

the disputed matters must be submitted to the Independent Tax Expert to settle with the relevant draft Other Tax Return and an extract of the relevant provisions of this Deed;

 

  (e)

the Buyer and Peabody must instruct the Independent Tax Expert to:

 

  (i)

finish its determination of the disputed matters as soon as practicable; and

 

  (ii)

deliver to the Buyer and Peabody a report that states, on the basis of the Independent Tax Expert’s determination, its opinion as to:

 

  (A)

the disputed matters, including the reasons for the Independent Tax Expert’s determination; and

 

  (B)

the allocation of the Independent Tax Expert’s costs;

 

  (f)

the Buyer and Peabody must promptly supply the Independent Tax Expert with any information, assistance and cooperation requested in writing by the Independent Tax Expert in connection with its determination;

 

  (g)

all written correspondence between the Independent Tax Expert and Peabody must be copied to the Buyer, and all written correspondence between the Independent Tax Expert and the Buyer must be copied to Peabody;

 

  (h)

the Independent Tax Expert will act as an expert and not as an arbitrator and its written determination will be final and binding on the Buyer and Peabody in the absence of manifest error; and

 

  (i)

the costs of:

 

  (i)

the Resolution Institute (if requested) in providing its nomination of the Independent Tax Expert; and

 

  (ii)

the Independent Tax Expert,

will be borne by Peabody as to one half, and the Buyer as to one half unless, in respect of only the costs of the Independent Tax Expert, the Independent Tax Expert decides otherwise having regard to the relative position of the Buyer and Peabody on the disputed matters.


7.

CORRESPONDING SAVINGS AND THIRD PARTY RECOVERY

 

7.1

If any Tax Liability which has resulted in a payment having been made by Peabody under this Schedule or for breach of any of the Back to Back Tax Warranties has given rise to a Relief which would not otherwise have arisen and has not been taken into account in calculating the liability of Peabody under this Deed:

 

  (a)

the Buyer must procure that full details of the Relief are given to Peabody as soon as reasonably practicable;

 

  (b)

to the extent that a liability of a Group Company or the Buyer to make an actual payment of Tax (in respect of which Peabody would not have been liable under this Schedule or under the Tax Warranties (ignoring paragraph 1 and paragraph 2 of Schedule 5)) is reduced as a result of the use or set-off of the Relief, the Buyer must pay to Peabody on the date when the Buyer or relevant Group Company would have been under an obligation to make the reduced payment of Tax an amount equal to the lower of:

 

  (i)

the amount by which the liability is reduced, plus (in respect of a Relief which is a repayment of Tax) any interest or repayment supplement received in relation to the Relief; and

 

  (ii)

the amount of the payment previously made by Peabody in respect of the Tax Liability giving rise to the Relief,

save that the amount referred to above shall first be applied to reduce or eliminate any payment then due from Peabody to the Buyer under this Schedule or for breach of the Back to Back Tax Warranties.

 

7.2

If Peabody at any time:

 

  (a)

pays to the Buyer an amount under this Schedule or for breach of any of the Tax Warranties; or

 

  (b)

has agreed in writing that it is liable to pay such amount,

and the Buyer or any Group Company is or becomes entitled to recover from some other person (other than another member of the Buyer’s Tax Group) any sum in respect of the matter giving rise to the payment, the Buyer shall notify Peabody in writing of the existence of the right to recover as soon as reasonably practicable and must take all reasonable steps to enforce such recovery from that other person.

 

7.3

If Peabody has already paid the relevant amount (as described in paragraph 7.2(a)), the Buyer shall within five Business Days of such recovery, pay to Peabody the lesser of:

 

  (a)

the sum so recovered by the Buyer or the relevant Group Company (as applicable) from the other person (including sums recovered in respect of costs and any interest or repayment supplement received in respect of the sum recovered); and

 

  (b)

the amount paid by Peabody to the Buyer as referred to above.

 

7.4

If Peabody has yet to pay the relevant amount (as described in paragraph 7.2(b)), the amount recovered (including sums recovered in respect of costs and any interest or repayment supplement received in respect of the sum recovered) will be set-off against any payment which Peabody would otherwise be liable to make to the Buyer in respect of the matter giving rise to the payment.

 

8.

OVERPROVISIONS

 

8.1

If, on or before the fifth anniversary of SMC Completion, it is determined that there is an Overprovision (and the Buyer shall, at Peabody’s written request, provide Peabody with such information and access to the Buyer’s personnel and advisors as Peabody may reasonably require in order to determine whether there is an Overprovision):


  (a)

the amount of any Overprovision will first be set-off against any payment then due from Peabody under this Schedule or for breach of the Tax Warranties;

 

  (b)

to the extent that there is an excess, a refund will be made to Peabody of any previous payment or payments made by Peabody under this Schedule or for breach of the Back to Back Tax Warranties (and not previously refunded) up to the amount of that excess; and

 

  (c)

to the extent that the excess referred to in paragraph 8.1(b) is not exhausted under that paragraph, the remainder of that excess will be carried forward to offset any further payment that may become due from Peabody under this Schedule or for breach of any of the Back to Back Tax Warranties.

 

9.

TAX REFUNDS

 

9.1

If, on or before the fifth anniversary of SMC Completion, the Buyer or any Group Company becomes aware that a Group Company is entitled to:

 

  (a)

a repayment of Tax which:

 

  (i)

arises in respect of a period ending on or before SMC Completion;

 

  (ii)

is not reflected in the SMC SPA Completion Accounts; and

 

  (iii)

does not arise as a result of:

 

  (A)

a change in legislation (or a change in interpretation on the basis of case law), a change in the published practice of any Tax Authority, a change in generally accepted accounting principles or a change in the rates of Tax, in each case announced and taking effect after the date of this Deed;

 

  (B)

a voluntary act of the Buyer or the relevant Group Company after SMC Completion (other than any administrative action required to obtain the repayment in question);

 

  (C)

any change after SMC Completion of accounting policy, method or basis of a Group Company or the date to which a Group Company makes up its accounts; or

 

  (D)

the use of a Buyer’s Relief; or

 

  (b)

any interest or repayment supplement received in relation to a repayment of Tax falling with paragraph 9.1(a),

(in each case a “Tax Refund”), the Buyer shall notify Peabody in writing of the existence of, and any other available details relating to, the entitlement to the Tax Refund as soon as reasonably practicable and must take all reasonable steps to obtain such Tax Refund. The Buyer shall procure that the relevant Group Company pays to Peabody an amount equal to the Tax Refund within five Business Days of receiving it.

 

10.

ACCESS TO DOCUMENTS AND INFORMATION

 

  (a)

The Buyer undertakes that it will procure that each Group Company preserves, and affords to Peabody reasonable access to, all documents, records, correspondence, accounts and other information in respect of or relevant for the purpose of determining the liability of each Group Company to Tax until such time as Peabody ceases to have any liability or contingent liability under the terms of this Schedule or under the Back to Back Tax Warranties (other than in circumstances where it would give rise to a waiver of legal professional privilege).


  (b)

Peabody undertakes that it will preserve, and afford to the Buyer reasonable access to, all documents, records, correspondence, accounts and other information that it holds in respect of or relevant for the purpose of determining the liability of each Group Company to Tax until such time as the Buyer ceases to have any liability or contingent liability under the terms of this Deed (other than in circumstances where it would give rise to a waiver of legal professional privilege).


Schedule 15

Dawson JVA Asset Sale

 

1.

Definitions and Interpretation

In this Schedule 15, unless the context otherwise requires:

Dawson Coal Inventory” means all coal from the Dawson Joint Venture Tenements listed in Clause 1.1 of Schedule 8; which is in stockpiles at any mine site or at any port, or in the course of transit to or between these places or on board ship or delivered to customers, and which Anglo Dawson legally or beneficially owns immediately before Completion;

Dawson Joint Venture Interest” means:

 

  (a)

the Dawson Participating Interest;

 

  (b)

to the extent not included in paragraph (a) of this definition, Anglo Dawson’s right, title and interest in:

 

  (i)

the Joint Venture Assets (as defined under the Dawson JVA) including the Dawson Joint Venture Tenement Interest;

 

  (ii)

the Dawson Coal Inventory;

 

  (iii)

any cash contributed by Anglo Dawson in accordance with the Dawson JVA and held in bank accounts on its behalf;

 

  (iv)

any asset of a Peabody Group member located at the mine or site to which the Dawson Joint Venture relates, and which is required for the operation of the Dawson Joint Venture, at Completion; and

 

  (v)

any other agreements entered into for the purpose of the Dawson Joint Venture (including the Assumed Contracts and the Specific Contracts) but excluding the Coal Sales Agreements; and

 

  (c)

Dawson Joint Venture Liabilities;

Dawson Joint Venture Liabilities” means all of Anglo Dawson’s liabilities and obligations in relation to the Dawson Joint Venture or the Dawson JVA (whether arising before, on or after Completion), including any obligation to pay a ‘Call’ (as defined in the Dawson JVA) or other called sum (however described) pursuant to the Dawson JVA;

Dawson Joint Venture Tenement Interest” means:

 

  (a)

the percentage interest held by Anglo Dawson in each of the mining tenements listed in Appendix A to this Schedule 15);

 

  (b)

to the extent in the possession or control of Anglo Dawson, the interest of Anglo Dawson in all geological, drill core, metallurgical studies and development data and analysis, wraps, samples and technical reports prepared solely in relation to each of the mining tenements listed in Appendix A to this Schedule 15;

 

  (c)

any agreements entered for the purpose of the mining tenements listed in Appendix A to this Schedule 15; and

 

  (d)

the liabilities and obligations of Anglo Dawson in respect of the mining tenements listed in Appendix A to this Schedule 15 and any agreements entered into for the purpose of the mining tenements listed in Appendix A to this Schedule 15 as referred to in limb (c) of this definition; and


Mining Tenement Transfers” means, in respect of each of the Dawson Joint Venture Tenement Interests, documents to transfer (subject to the Minister’s approval under the Resources Acts, the impression of transfer duty or other taxes of a similar nature and registration of the transfer) the Dawson Joint Venture Tenement Interest to the Buyer in form required under the Resources Act (being, as at the date of this Deed, the Department of Resource’s Form MMOL-05).

 

2.

Sale of Dawson Joint Venture Assets

 

2.1

On the terms set out in this Deed, and on the exercise of the Put Option or the Call Option in accordance with Clause 8.4(b), Peabody must procure Anglo Dawson to sell, and the Buyer shall purchase, the assets listed below (the “Dawson Joint Venture Assets”), with effect from Completion, with full title guarantee, free from all Encumbrances:

 

  (a)

the entire issued share capital of each of

 

  (i)

Dawson Coal Processing Pty Ltd;

 

  (ii)

Anglo Coal (Dawson Services) Pty Ltd; and

 

  (iii)

the Dawson Manager;

 

  (b)

all of the issued share capital in Dawson Sales Pty Ltd held by Anglo Dawson;

 

  (c)

the Dawson Joint Venture Interest; and

 

  (d)

Anglo Dawson’s right title and interest in the Coal Sales Agreements.

 

2.2

Title to and risk in the Dawson Joint Venture Assets remains solely with Anglo Dawson until Completion, and subject to the terms of this Deed, passes to the Buyer on Completion.

 

2.3

Anglo Dawson irrevocably waives any right of pre-emption or other restriction on transfer in respect of the Dawson Joint Venture Assets conferred on it under any agreement or otherwise in connection with the sale of the Dawson Joint Venture Assets pursuant to this Deed.

 

3.

Allocation and Adjustment of the Consideration

 

3.1

The parties agree that to the extent necessary, the amount of the Consideration allocated to the Dawson Participating Interest in Schedule 2 will be re-allocated (as necessary) to the Dawson Joint Venture Assets as agreed between the Parties (acting reasonably).

 

4.

Additional Conditions to the Exercise of Call Option or Put Option

 

4.1

The Conditions will also include:

Pre-emption rights and related rights

 

  (g)

one of the following occurring in respect of the Dawson Joint Venture:

 

  (i)

receipt of a written, unconditional and irrevocable waiver by the applicable Joint Venture Participant of its right to give a Pre-emption Acceptance Notice and of the other additional requirements (including delivery of relevant certifications) under the Dawson JVA;

 

  (ii)

receipt of a Pre-emption Acceptance Notice by Anglo Dawson and completion of the sale of the Dawson Participating Interest required upon receipt of the Pre-emption Acceptance Notice; or


  (iii)

the expiry of the Pre-emption Exercise Period applicable to the relevant Joint Venture Participant, without such Joint Venture Participant giving a Pre-emption Acceptance Notice and the satisfaction or waiver of any additional requirements (including delivery of relevant certifications) under the Dawson JVA;

JV documents, contracts and consents

 

  (h)

Peabody and the Buyer obtaining signed counterparts of:

 

  (i)

a ‘Deed of Assumption’ (as defined in the Dawson JVA) in substantially the same form as the form set out in annexure “A” of the Dawson JVA where Anglo Dawson is the ‘Transferor’ and the Buyer is the ‘Transferee’;

 

  (ii)

a Deed of Cross Charge (as defined in the Dawson JVA) granted by the Buyer;

in the case of (ii) to the extent not covered by the Deed of Assumption referred to in paragraph (i) above, and in each case subject to Completion and duly executed by all parties other than Anglo Dawson and the Buyer;

Regulatory – Mining Tenements

 

  (i)

the Resources Minister or relevant Authority providing (and Peabody receiving) indicative approval under the Resources Acts to the effect that, subject to compliance with the Resources Acts and with any conditions specified in such approval, the Resources Minister will approve the transfer to the Buyer of the Dawson Joint Venture Tenements, and such indicative approval is either not subject to any conditions or, if it imposes any conditions, those conditions must be acceptable to Peabody and the Buyer (each acting reasonably), and such indicative approval remaining valid for no less than 10 Business Days after the Scheduled Completion Date;

 

5.

Completion obligations

 

5.1

At or before Completion, Peabody shall procure:

 

  (a)

Anglo Dawson to deliver or make available to the Buyer:

 

  (i)

such parts of the Dawson Joint Venture Interest as are capable of passing by delivery at the places where they are located;

 

  (ii)

in respect of each Encumbrance over the Dawson Joint Venture Assets which is registered on the PPS Register immediately before Completion, evidence satisfactory to the Buyer (acting reasonably) that the Encumbrance has been released, or will be released, with effect from Completion; and

 

  (iii)

all documents of title (if any) relating to the Dawson Joint Venture Tenement Interest and the Land (as defined in the Dawson JVA);

 

  (b)

completed, executed and registrable Mining Tenement Transfers required for the transfer of the Dawson Joint Venture Tenement Interests (except for the impression of transfer duty or other Taxes of a similar nature) duly executed by Anglo Dawson;

 

  (c)

duly executed, registrable (except for stamping) transfer forms for the Properties (excluding Term Leases);

 

  (d)

duly executed, registrable (except for stamping) transfer forms to effect the Term Lease Transfers;


  (e)

the Deed of Assumption (as defined in the Dawson JVA), duly executed by Anglo South;

 

  (f)

signed counterparts of the deeds of assignment (or deeds of novation) for the Coal Sales Agreements, duly executed by the relevant third parties and Anglo Dawson;

 

  (g)

a notice in writing revoking the appointment of Anglo Dawson’s nominated Representative to the Operating Committee (as defined in the Dawson JVA);

 

  (h)

if applicable and where required by Law, transfer of ownership and registration certificates (and roadworthiness certificates) for all motor vehicles included in the Joint Venture Assets (as defined in the Dawson JVA) that are registered in the name of Anglo Dawson;

 

  (i)

signed counterparts of the deeds of assignment (or deeds of novation) for the Specific Contracts and the Assumed Contracts to which Anglo Dawson is party, duly executed by the relevant third party and Anglo Dawson;

 

  (j)

duly executed instruments of transfer or assignment required to transfer the Environmental Authorisations, capable of transfer, to the Buyer (in the form prescribed by the relevant law); and

 

  (k)

executed assignments of any Intellectual Property owned by Anglo Dawson.

 

6.

Buyer’s Obligations

 

6.1

At or before Completion, the Buyer will deliver to Peabody or procure the delivery to Peabody of:

 

  (a)

the Deed of Assumption (as defined in the Dawson JVA), duly executed by the Buyer; and

 

  (b)

a Deed of Cross Charge (as defined in the Dawson JVA) duly executed; and

 

7.

Going Concern

 

7.1

The Parties agree that the sale of the Dawson Joint Venture Interest and Anglo Dawson’s right title and interest in the Coal Sales Agreements constitutes the supply of a going concern for the purposes of the GST Act.


Schedule 16

Reporting Accountant Determination

 

1.

APPLICATION

 

1.1

This Schedule 16 applies in the circumstances described in Clauses 6.3, 13.5 and 15 or where the parties otherwise agree (the “Relevant Dispute”).

 

2.

APPOINTMENT OF REPORTING ACCOUNTANTS

 

2.1

The parties must attempt in good faith to reach agreement in respect of the Relevant Dispute and, if they are unable to do so within 15 Business Days following the Relevant Dispute being referred to determination under this Schedule 16, the Relevant Dispute may be referred by either Peabody or the Buyer to:

 

  (a)

an individual of at least ten years’ relevant experience at an independent firm of internationally recognised chartered accountants, where ‘independent’ means that such individual and firm has not provided:

 

  (i)

audit advice or audit services in the last five years to Peabody, the Buyer Group or a Group Company; or

 

  (ii)

advice to Peabody, the Buyer or a Group Company in connection with the Transaction,

to be agreed upon by Peabody and the Buyer within five Business Days of a notice by one to the other requiring such agreement; or

 

  (b)

failing such agreement, such independent firm of internationally recognised chartered accountants nominated:

 

  (i)

by or on behalf of the President for the time being of the Institute of Chartered Accountants in England and Wales pursuant to a joint application of Peabody and the Buyer (and the Buyer and Peabody must cooperate and do all things necessary to promptly make such joint application); or

 

  (ii)

if a joint application is not made within five Business Days of a notice, by either Peabody or the Buyer to the other requiring a joint application to be made by the ICC International Centre for ADR in accordance with the Rules for Appointment of Experts and Neutrals of the International Chamber of Commerce (or any other appointing authority of similar repute which accepts unilateral applications to nominate Reporting Accountants) pursuant to an application by either the Buyer or Peabody,

(the “Reporting Accountants”).

 

2.2

If paragraph 2.1 applies, Peabody and the Buyer must provide such reasonable cooperation to promptly agree the terms of appointment for the Reporting Accountants, which will (unless otherwise agreed in writing between Peabody and the Buyer) be on the following basis:

 

  (a)

a joint appointment on behalf of both the Buyer and Peabody on the Reporting Accountants’ standard terms and conditions for such an appointment; and

 

  (b)

otherwise in accordance with the terms set out in this Schedule 16.

 

2.3

If the terms of engagement of the Reporting Accountants are not agreed within 10 Business Days following the identity of the Reporting Accountants being determined (or such longer period as Peabody and the Buyer may agree), the terms of appointment may be unilaterally approved by the appointing party, acting reasonably, and the party unilaterally approving the terms must ensure that the appointment is in accordance with paragraphs 2.2(a) to 2.2(b). Each party agrees that the other party may sign and deliver, on that party’s behalf, any documents, including engagement letters, necessary to expedite the appointment of the Reporting Accountants.

 


2.4

The Reporting Accountants’ fees and expenses (including GST) will be borne equally between the Buyer and Peabody at the time the final determination is made in accordance with paragraph 3.2(j), except in the following cases:

 

  (a)

without prejudice to paragraph 2.4(b), if a party unilaterally appoints the Reporting Accountants pursuant to paragraph 2.3 but the appointment is not in accordance with paragraphs 2.2(a) to 2.2(b), such party must bear all of the Reporting Accountants’ fees and expenses (including GST) (provided any failure of the appointment to be in accordance paragraphs 2.2(a) to 2.2(b) will (subject to paragraph 3.2(j)) not undermine the final and binding nature of the Reporting Accountants’ findings pursuant to this Schedule 16); or

 

  (b)

if the Reporting Accountants, exercising their sole discretion, are of the opinion that a party has been disruptive to the process set out in this Schedule 16 or materially breached an express provision set out in this Schedule 16, the Reporting Accountants may determine that the disruptive party should be responsible for 75% of the Reporting Accountants’ fees and expenses (including GST) (and for the avoidance of doubt, the balance of the Reporting Accountants’ fees and expenses (including GST) must be borne by the Buyer where the disruptive party is Peabody or by Peabody where the disruptive party is the Buyer).

 

2.5

If the appointed Reporting Accountants become unwilling or incapable of acting or do not deliver their determination within the period required paragraph 3.2(j):

 

  (a)

the Buyer and Peabody must use reasonable endeavours to agree the identity and terms of appointment of replacement Reporting Accountants in accordance with paragraphs 2.1 to 2.4; and

 

  (b)

paragraph 3 will apply in relation to each and any replacement Reporting Accountants as if they were the first Reporting Accountants appointed.

 

3.

REPORTING ACCOUNTANTS’ DETERMINATION PROCESS

 

3.1

Peabody and the Buyer must each co-operate in good faith with the Reporting Accountants and each grant the Reporting Accountants, if appointed, reasonable access, at reasonable times and on reasonable notice, to the books and records of the Group held by Peabody or its Affiliates (in the case of Peabody and to the extent held) or the Buyer Group (in the case of the Buyer) and any other information of the Group held by the Peabody or its Affiliates (in the case of Peabody and to the extent held) or the Buyer Group (in the case of the Buyer) which may reasonably be required to enable them to determine the Relevant Dispute. The Reporting Accountants will have the right to take copies of any documents that they reasonably require and will be provided with such access to the relevant personnel of Peabody or its Affiliates (in the case of Peabody) or the Buyer Group (in the case of the Buyer) as they reasonably require to enable them to determine the Relevant Dispute.

 

3.2

Except to the extent that the Buyer and Peabody agree otherwise, the Reporting Accountants shall determine their own procedure, subject to the following:

 

  (a)

the Buyer, Peabody and / or their respective accountants (on a party’s behalf) shall promptly (and in any event within 20 Business Days following a relevant appointment) submit a written statement on the matters which remain in dispute (together with relevant supporting documents) to the Reporting Accountants for determination (each parties’ written statement (together with relevant supporting documents) an “Objection Notice Written Statement”);


  (b)

on the earlier of (i) the Reporting Accountant’s receipt of both the Buyer’s Objection Notice Written Statement and Peabody’s Objection Notice Written Statement; and (ii) the expiry of the 20-Business Day period in paragraph 3.2(a), the Reporting Accountants will promptly deliver a copy of the Buyer’s Objection Notice Written Statement to Peabody and Peabody’s Objection Notice Written Statement to the Buyer (in each case to the extent received);

 

  (c)

following receipt from the Reporting Accountants of a party’s respective Objection Notice Written Statement, the Buyer and Peabody will have the opportunity to comment once only (but nothing in this sub-paragraph will prevent the parties from responding to any requests from the Reporting Accountants under paragraph 3.1) on the other’s Objection Notice Written Statement (to the extent such party submitted an Objection Notice Written Statement to the Reporting Accountant) by written comment delivered to the Reporting Accountants not later than 15 Business Days after the Objection Notice Written Statement was received from the Reporting Accountants;

 

  (d)

the Reporting Accountants will promptly deliver a copy of the Buyer’s comments on Peabody’s Objection Notice Written Statement to Peabody and Peabody’s comments on the Buyer’s Objection Notice Written Statement to the Buyer on the earlier of (i) the Reporting Accountant’s receipt of both the Buyer’s comments on Peabody’s Objection Notice Written Statement and Peabody’s comments on the Buyer’s Objection Notice Written Statement pursuant to paragraph 3.2(c); and (ii) the expiry of the 15-Business Day period referred to in paragraph 3.2(c);

 

  (e)

apart from procedural matters and / or as otherwise set out in this Deed, the Reporting Accountants shall determine only:

 

  (i)

if the Relevant Dispute is under Clause 13.5, the final SMC SPA Completion Accounts to the extent they relate to the Dawson Sale Interest;

 

  (ii)

if the Relevant Dispute is under Clause 15, the Dawson Working Capital Target; or

 

  (iii)

if the Relevant Dispute is under Clause 6.4(g), the amount of the SMC SPA Dawson Duty;

 

  (f)

the Reporting Accountants will not be entitled to determine the scope of their own jurisdiction;

 

  (g)

the Reporting Accountants will not be entitled to determine an amount that is higher than the highest value, or lower than the lowest value, in each case for any particular item in the Draft Completion Accounts or the Objection Notice, and subject thereto, in the parties’ respective Objection Notice Written Statements;

 

  (h)

the Reporting Accountants will act as experts (and not as arbitrators) in making their determination, and their determination of any matter falling within their jurisdiction will be final and binding on Peabody and the Buyer save for manifest error (when the relevant part of their determination will be void and the matter will be resubmitted to the Reporting Accountants by either party for correction as soon as reasonably practicable); and

 

  (i)

the Reporting Accountants will make their determination pursuant to paragraph 3.2(h) within 20 Business Days after the expiry of the 20-Business Day period referred to in paragraph 3.2(c) or as soon after as is reasonably possible, and such determination will be provided to Peabody and the Buyer and will (unless otherwise agreed by Peabody and the Buyer) include reasons for each relevant determination.

 

3.3

Any determination of the Reporting Accountants under paragraph 3.2(j) above will be deemed to be determine the Relevant Dispute and the final SMC SPA Completion Accounts to the extent they relate to the Dawson Sale Interest, the Dawson Working Capital Target, or the amount of the SMC SPA Dawson Duty (as relevant) will be final and binding on Peabody and the Buyer.


3.4

Nothing in this Schedule 16 will entitle a party or the Reporting Accountants access to any information or document which is protected by legal professional privilege or which has been prepared by the other party or its accountants and other professional advisers with a view to assessing the merits of any claim or argument, but a party will not be entitled by reason of this paragraph 3.4 to refuse to supply such part or parts of documents as contain only the facts on which the relevant claim or argument is based.

 

3.5

Each party shall, and shall procure that its accountants and other advisers shall, and shall instruct the Reporting Accountants to, keep all accountants’ working papers or information and documents provided to them pursuant to this Schedule 16 confidential and shall not use them for any purpose except for disclosure or use in connection with the determination of the Relevant Dispute, the proceedings of the Reporting Accountants or any other matter arising out of this Deed or in defending any claim or argument or alleged claim or argument relating to this Deed or its subject matter.


This Deed has been entered into on the date stated at the beginning of it.

 

EXECUTED as a DEED by PEABODY SMC PTY LTD in accordance with section 127(1) of the Corporations Act   

/s/ Sean Kendall Allen

  

/s/ Michael James Carter

Signature of director

 

Sean Kendall Allen

  

Signature of director / secretary

 

Michael James Carter

Name of director (print)    Name of director / secretary (print)


EXECUTED as a DEED by PEABODY AUSTRALIA HOLDCO PTY LTD in accordance with section 127(1) of the Corporations Act   

/s/ Darren Ronald Yeates

  

/s/ Ferdinand Kruger

Signature of director

 

Darren Ronald Yeates

  

Signature of director / secretary

 

Ferdinand Kruger

Name of director (print)    Name of director / secretary (print)


SIGNED, SEALED AND DELIVERED as a DEED by PT Bukit Makmur Internasional in the presence of:   

/s/ Wendy William

  

/s/ Iwan Fuad Salim

Signature of witness

 

Wendy William

  

Signature of authorised signatory

 

Iwan Fuad Salim

Name of witness (print)    Name of authorised signatory (print)


SIGNED, SEALED AND DELIVERED as a DEED by PT Delta Dunia Makmur Tbk in the presence of:   

/s/ Wendy William

  

/s/ Iwan Fuad Salim

Signature of witness

 

Wendy William

  

Signature of authorised signatory

 

Iwan Fuad Salim

Name of witness (print)    Name of authorised signatory (print)

Exhibit 2.4

CERTAIN INFORMATION HAS BEEN EXCLUDED FROM THIS EXHIBIT BECAUSE

IT IS NOT MATERIAL AND IS THE TYPE THAT THE REGISTRANT TREATS AS

PRIVATE OR CONFIDENTIAL. THE OMITTED PORTIONS OF THIS DOCUMENT

ARE INDICATED BY [***].

Dawson Loan Note Deed

Peabody SMC Pty Ltd

PT Bukit Makmur Internasional


Contents

 

1.  

Definitions and Interpretation

     1  
2.  

Loan Notes

     8  
3.  

Nature and Status of Loan Notes

     12  
4.  

Interest and Repayment

     12  
5.  

Representations and warranties

     13  
6.  

Undertakings

     14  
7.  

Event of Default

     16  
8.  

Guarantee and Indemnity

     16  
9.  

Additional Guarantors

     18  
10.  

Register of Loan Notes

     19  
11.  

General

     20  
SCHEDULE 1  

FORM OF ACCESSION DEED

  
SCHEDULE 2  

FORM OF GENERAL SECURITY DEED

  
SCHEDULE 3  

FORM OF SPECIFICL SECURITY DEED

  


Dawson Loan Note Deed

THIS DEED is made on 25 November 2024.

BETWEEN

 

(1)

Peabody SMC Pty Ltd ACN 682 277 587 of Level 14, 31 Duncan Street, Fortitude Valley QLD 4006, Australia (“Issuer”)

 

(2)

PT Bukit Makmur Internasional of South Quarter Tower A, Penthouse Floor Unit A-1, Jl. RA. Kartini Kav. 8, Cilandak Barat, Jakarta, 12430 – Indonesia(“Subscriber”)

RECITALS

 

A.

On or about the date of this Deed, Issuer has entered into the SMC SPA, pursuant to which Issuer may acquire, among other assets, the Shares and the Dawson Assets.

 

B.

On or about the date of this Deed, Issuer and the Subscriber entered into the Dawson Option Deed pursuant to which the Subscriber may acquire the Shares and the Dawson Assets.

 

C.

The Subscriber has agreed to subscribe for Loan Notes issued by the Issuer to fund the Issuer’s acquisition of the Shares and the Dawson Assets and, to the extent necessary, any deferred consideration, Calls, consideration adjustments amounts and duty payable by the Issuer in respect of the Shares and the Dawson Assets.

 

D.

The Guarantors are party, or will become party, to this Deed for the purpose of entering into the guarantee and indemnity set out in Clause 8.

IT IS AGREED THAT

 

1.

Definitions and Interpretation

 

1.1

Definitions

In this Deed, unless the context otherwise requires:

Accession Deed means a deed substantially in the form of Schedule 1;

Anglo American Steelmaking means Anglo American Steelmaking Coal Pty Ltd (ACN 081 022 246);

Available Cash means [***];

Call has the meaning, in respect of a Joint Venture Agreement, as set out in that Joint Venture Agreement.

Cash Call Loan Notes means the Dawson Main Cash Call Loan Notes, the Dawson South Cash Call Loan Notes, the Dawson South Exploration Cash Call Loan Notes and the Theodore South Cash Call Loan Notes.

Coupon Payment Date means each 31 March, 30 June, 30 September and 31 December in each year.

Coupon Rate means a rate of 10% per annum.

Dawson Adjustment Amount Loan Notes means the Loan Notes issued by the Issuer to the Subscriber under clause 2.5.

 

Page 1


Dawson Main Cash Call Amount means the amount of any Call made under the Dawson JVA from time to time.

Dawson Main Cash Call Loan Notes means the Loan Notes issued by the Issuer to the Subscriber under clause 2.4(a)(i).

Dawson Main Deferred Consideration Amount means the amount of the Dawson Deferred Consideration set out in in Schedule 2 of the Dawson Option Deed in relation to the Dawson Participating Interest.

Dawson Main Deferred Consideration Loan Notes means the Loan Notes issued by the Issuer to the Subscriber under clause 2.3(a)(i).

Dawson Main Deposit Amount means the amount of the Dawson Deposit set out in Schedule 2 of the Dawson Option Deed in relation to the Dawson Participating Interest.

Dawson Main Deposit Loan Notes means the Loan Notes issued by the Issuer to the Subscriber under clause 2.1(a)(i).

Dawson Main Duty Amount means the SMC SPA Duty that is attributable to the transfer of the Dawson Participating Interest or the Group Company that directly holds the Dawson Participating Interest, as determined in accordance with the Dawson Option Deed.

Dawson Main Duty Loan Notes means the Loan Notes issued by the Issuer to the Subscriber under clause 2.6(a)(i).

Dawson Main Loan Notes means the Dawson Main Deposit Loan Notes, the Dawson Main Upfront Consideration Loan Notes, Dawson Main Deferred Consideration Loan Notes, the Dawson Main Duty Loan Notes and the Dawson Main Cash Call Loan Notes.

Dawson Main Upfront Consideration Amount means the amount of the Completion Payment set out in Schedule 2 of the Dawson Option Deed in relation to the Dawson Participating Interest.

Dawson Main Upfront Consideration Loan Notes means the Loan Notes issued by the Issuer to the Subscriber under clause 2.2(a)(i).

Dawson Option Deed means the document titled ‘Dawson Option Deed in respect of certain rights and interests relating to the Dawson Main, Dawson South, Dawson South Exploration and Theodore South Joint Ventures in Queensland, Australia’ dated on or about the date of this Deed and entered into between, amongst others, Issuer and Subscriber.

Dawson South Cash Call Amount means the amount of any Call made under the Dawson South Joint Venture Agreement.

Dawson South Cash Call Loan Notes means the Loan Notes issued by the Issuer to the Subscriber under clause 2.4(a)(ii).

Dawson South Deferred Consideration Amount means the amount of the Dawson Deferred Consideration set out in in Schedule 2 of the Dawson Option Deed in relation to the Dawson South Participating Interest.

Dawson South Deferred Consideration Loan Notes means the Loan Notes issued by the Issuer to the Subscriber under clause 2.3(a)(ii).

Dawson South Deposit Amount means the amount of the Dawson Deposit set out in Schedule 2 of the Dawson Option Deed in relation to the Dawson South Participating Interest.

Dawson South Deposit Loan Notes means the Loan Notes issued by the Issuer to the Subscriber under clause 2.1(a)(ii).

 

Page 2


Dawson South Duty Amount means the SMC SPA Duty that is attributable to the transfer of the Dawson South Participating Interest or the Group Company that directly holds the Dawson South Participating Interest, as determined in accordance with the Dawson Option Deed.

Dawson South Duty Loan Notes means the Loan Notes issued by the Issuer to the Subscriber under clause 2.6(a)(ii).

Dawson South Exploration Cash Call Amount means the amount of any Call made under the Dawson South Exploration Joint Venture Agreement.

Dawson South Exploration Cash Call Loan Notes means the Loan Notes issued by the Issuer to the Subscriber under clause 2.4(a)(iii).

Dawson South Exploration Deferred Consideration Amount means the amount of the Dawson Deferred Consideration set out in Schedule 2 of the Dawson Option Deed in relation to the Dawson South Exploration Participating Interest.

Dawson South Exploration Deferred Consideration Loan Notes means the Loan Notes issued by the Issuer to the Subscriber under clause 2.3(a)(iii).

Dawson South Exploration Deposit Amount means the amount of the Dawson Deposit set out in Schedule 2 of the Dawson Option Deed in relation to the Dawson South Exploration Participating Interest.

Dawson South Exploration Deposit Loan Notes means the Loan Notes issued by the Issuer to the Subscriber under clause 2.1(a)(iii).

Dawson South Exploration Deferred Consideration Amount means the amount of the Dawson Deferred Consideration set out in Schedule 2 of the Dawson Option Deed in relation to the Dawson South Exploration Participating Interest.

Dawson South Exploration Deferred Consideration Loan Notes means the Loan Notes issued by the Issuer to the Subscriber under clause 2.3(a)(iii).

Dawson South Exploration Duty Amount means the SMC SPA Duty that is attributable to the transfer of the Dawson South Exploration Participating Interest or the Group Company that directly holds the Dawson South Exploration Participating Interest, as determined in accordance with the Dawson Option Deed.

Dawson South Exploration Duty Loan Notes means the Loan Notes issued by the Issuer to the Subscriber under clause 2.6(a)(iii).

Dawson South Exploration Loan Notes means the Dawson South Exploration Deposit Loan Notes, the Dawson South Exploration Upfront Consideration Loan Notes, the Dawson South Exploration Deferred Consideration Loan Notes, the Dawson South Exploration Duty Loan Notes and the Dawson South Exploration Cash Call Loan Notes.

Dawson South Exploration Upfront Consideration Amount means the amount of the Completion Payment set out in Schedule 2 of the Dawson Option Deed in relation to the Dawson South Exploration Participating Interest.

Dawson South Exploration Upfront Consideration Loan Notes means the Loan Notes issued by the Issuer to the Subscriber under clause 2.2(a)(iii).

Dawson South Loan Notes means the Dawson South Deposit Loan Notes, the Dawson South Upfront Consideration Loan Notes, the Dawson South Deferred Consideration Loan Notes, the Dawson South Duty Loan Notes and the Dawson South Cash Call Loan Notes.

 

Page 3


Dawson South Upfront Consideration Amount means the amount of the Completion Payment set out in Schedule 2 of the Dawson Option Deed in relation to the Dawson South Participating Interest.

Dawson South Upfront Consideration Loan Notes means the Loan Notes issued by the Issuer to the Subscriber under clause 2.2.

Deferred Consideration Loan Notes means the Dawson Main Deferred Consideration Loan Notes, the Dawson South Deferred Consideration Notes, the Dawson South Exploration Deferred Consideration Loan Notes and the Theodore South Deferred Consideration Loan Notes.

Deposit Loan Notes means the Dawson Main Deposit Loan Notes, the Dawson South Deposit Loan Notes, the Dawson South Exploration Deposit Loan Notes and the Theodore South Deposit Loan Notes.

Distribution means an amount equal to any distribution or other amount declared or paid by a Group Company party to a Joint Venture Agreement.

Duty Amount means the Dawson Main Duty Amount, the Dawson South Duty Amount, the Dawson South Exploration Duty Amount and the Theodore South Duty Amount.

Duty Loan Notes means the Dawson Main Duty Loan Notes, the Dawson South Duty Loan Notes, the Dawson South Exploration Duty Loan Notes and the Theodore South Duty Loan Notes.

Event of Default means any event or circumstance specified as such in Clause 7.

Fair Market Value means, in respect of a Participating Interest, the amount determined in accordance with clause 4.4.

Finance Document means:

 

  (a)

this Deed;

 

  (b)

each Security Document; and

 

  (c)

any other document which the Subscriber and Issuer agree to be a Finance Document; and

 

  (d)

any document or agreement entered into, given under or in connection with, or for the purpose of, amending or novating any of the above.

General Security Deeds means each first ranking general security deed titled ‘General Security Deed’ (in substantially the form set out in Schedule 2) entered into in accordance with clause 9 by the Subscriber as secured party and each of the following as grantor:

 

  (a)

Anglo Coal (Dawson South) Pty Ltd (ACN 008 713 791)

 

  (b)

Anglo Coal (Dawson South Management) Pty Ltd;

 

  (c)

Anglo Coal (Theodore South) Pty Limited (ACN 081 022 353);

 

  (d)

Anglo Coal (Dawson) Holdings Pty Limited (ACN 100 197 699) ;

 

  (e)

Anglo Coal (Dawson) Limited (ACN 100 155 342);

 

  (f)

Anglo Coal (Dawson Management ) Pty Ltd (ACN 006 746 701);

 

  (g)

Anglo Coal (Dawson Services) Pty Ltd (ACN 087 886 593); and

 

Page 4


  (h)

Dawson Coal Processing Pty Ltd (ACN 121 419 403).

Guarantor means each entity which accedes as a Guarantor in accordance with clause 9.

Insolvency Event means, in respect of a person, any of the following occurring:

 

  (a)

it becomes insolvent within the meaning of section 95A, or is taken to have failed to comply with a statutory demand under section 459F(1), or must be presumed by a court to be insolvent under section 459C(2), or is the subject of a circumstance specified in section 461 (whether or not an application to court has been made under that section) or, if the person is a Part 5.7 body, is taken to be unable to pay its debts under section 585, of the Corporations Act;

 

  (b)

it is the subject of, or an order or an application is made for, or an effective resolution is passed or meeting summoned or convened to consider a resolution for:

 

  (i)

its winding up, deregistration, liquidation, provisional liquidation, administration, bankruptcy or other proceeding for which an administrator, controller or managing controller (each as defined in the Corporations Act), trustee, provisional liquidator, liquidator or any other person (however described) holding or appointed to an analogous office or acting or purporting to act in an analogous capacity is appointed, or an analogous or equivalent event or proceeding in any jurisdiction; or

 

  (ii)

an arrangement, moratorium, assignment or composition with or for the benefit of its creditors or any class or group of them;

 

  (c)

an administrator, controller or managing controller (each as defined in the Corporations Act), trustee, provisional liquidator, liquidator or any other person (however described) holding or appointed to an analogous office or acting or purporting to act in an analogous capacity is appointed to it or any of its assets or a step is taken to do so;

 

  (d)

a step is taken under section 601AA, 601AB or 601AC of the Corporations Act to cancel its registration;

 

  (e)

it stops or suspends payment to creditors generally; or

 

  (f)

an analogous or equivalent event to any listed above occurs in any jurisdiction.

Issuer Party means each Obligor and each Limited Security Provider.

Limited Security Provider means Anglo American Steelmaking and Anglo American Steelmaking Coal Assets Eastern Australia Limited (ACN 009 727 851).

Loan Notes means the loan notes issued by the Issuer to the Subscriber under Clause 2.

Net Proceeds means, in connection with a disposal (directly or indirectly) of a Participating Interest, the consideration received by the Issuer or any other Peabody Group member for that Participating Interest after deducting:

 

  (a)

GST;

 

  (b)

statutory outgoings;

 

  (c)

conveyancing costs, reasonable sales and marketing costs, commissions;

 

  (d)

any other out of pocket costs and expenses which are properly incurred by a Peabody Group member with respect to the disposal of that Participating Interest; and

 

Page 5


  (e)

where the disposal is a direct disposal of the Participating Interest (rather than the shares in the relevant Peabody Group member which holds the Participating Interest), the amount of any outstanding Liabilities owed by the relevant Peabody Group member as the holder of the Participating Interest (including the Liability for any unpaid Call) to the extent these are not assumed by the person acquiring the Participating Interest to the satisfaction of Peabody acting reasonably.

Obligor means the Issuer and each Guarantor.

Principal Outstanding means, in respect of any Loan Notes at any time, the total of the principal outstanding of those Loan Notes issued at that time (including any interest capitalised under clause 4.1(d)(i)).

Redemption Amount means, in respect of a class of Loan Notes, the amount determined in accordance with clause 4.3.

Redemption Date in respect of the relevant Loan Note means, as applicable:

 

  (a)

in respect of the Deposit Loan Notes, three Business Days after the date on which any Peabody Group member is refunded (or otherwise credited to the benefit of any Peabody Group member) any part of the Dawson Deposit attributable to the relevant Loan Notes;

 

  (b)

in respect of any Dawson Main Loan Notes outstanding, three Business Days after the date on which the Dawson Participating Interest is disposed of (directly or indirectly) by a Peabody Group member;

 

  (c)

in respect of any Dawson South Loan Notes outstanding, three Business Days after the date on which the Dawson South Participating Interest is disposed of (directly or indirectly) by a Peabody Group member;

 

  (d)

in respect of any Dawson South Exploration Loan Notes outstanding, three Business Days after the date on which the Dawson South Exploration Participating Interest is disposed of (directly or indirectly) by a Peabody Group member;

 

  (e)

in respect of any Theodore South Loan Notes outstanding, three Business Days after the date on which the Theodore South Participating Interest is disposed of (directly or indirectly) by a Peabody Group member;

 

  (f)

in respect of any Dawson Adjustment Amount Loan Notes outstanding, three Business Days after the date on which the relevant Joint Venture to which the Dawson Adjustment Amount Loan Notes relate is disposed of (directly or indirectly) by a Peabody Group member; or

 

  (g)

in respect of all of the Loan Notes, the date of disposal (directly or indirectly) of the relevant Participating Interest following termination of the Dawson Option Deed,

or, in each case, if earlier, the date falling 9 years and 6 months from the date of issuance of the relevant Loan Note.

Register means the register maintained by the Issuer in accordance with clause 10.

Secured Property means all of the assets of the Obligors which from time to time are, or are expressed to be, the subject of the Security Documents.

Security Documents means the Specific Security Deeds and the General Security Deeds.

Specific Security Deeds means each first ranking specific security deed titled ‘Specific Security and Featherweight Deed’ (in substantially the form set out in Schedule 3) entered

 

Page 6


into in accordance with clause 6.5 by the Subscriber as secured party and each of the following as grantor:

 

  (a)

Anglo American Steelmaking Coal Assets Eastern Australia Limited (ACN 009 727 851) in respect of the shares in Anglo Coal (Dawson South) Pty Ltd (ACN 008 713 791) owned by Anglo American Steelmaking Coal Assets Eastern Australia Limited (ACN 009 727 851) and related rights;

 

  (b)

Anglo American Steelmaking in respect of the shares in Anglo Coal (Theodore South) Pty Limited (ACN 081 022 353) owned by Anglo American Steelmaking and related rights;

 

  (c)

Anglo American Steelmaking in respect of the shares in Anglo Coal (Dawson) Holdings Pty Limited (ACN 100 197 699) owned by Anglo American Steelmaking and related rights.

Theodore South Deposit Amount means the amount of the Dawson Deposit set out in Schedule 2 of the Dawson Option Deed in relation to the Theodore South Participating Interest.

Theodore South Deposit Loan Notes means the Loan Notes issued by the Issuer to the Subscriber under clause 2.1(a)(iv).

Theodore South Loan Notes means the Theodore South Deposit Loan Notes, the Theodore South Upfront Consideration Loan Notes, the Theodore South Deferred Consideration Loan Notes, the Theodore South Duty Loan Notes and the Theodore South Cash Call Loan Notes.

Theodore South Cash Call Loan Notes means the Loan Notes issued by the Issuer to the Subscriber under clause 2.4(a)(iv).

Theodore South Cash Call Amount means the amount of any Call made under the Theodore South Joint Venture Agreement.

Theodore South Deferred Consideration Amount means the amount of the Deferred Consideration Amount set out in Schedule 2 of the Dawson Option Deed in relation to the Theodore South Participating Interest.

Theodore South Deferred Consideration Loan Notes means the Loan Notes issued by the Issuer to the Subscriber under clause 2.3(a)(iv).

Theodore South Duty Amount means the SMC SPA Duty that is attributable to the transfer of the Theodore South Participating Interest or the Group Company that directly holds the Theodore South Participating Interest, as determined in accordance with the Dawson Option Deed.

Theodore South Duty Loan Notes means the Loan Notes issued by the Issuer to the Subscriber under clause 2.6(a)(iv).

Theodore South Upfront Consideration Amount means the amount of the Dawson Completion Payment set out in Schedule 2 of the Dawson Option Deed in relation to the Theodore South Participating Interest.

Theodore South Upfront Consideration Loan Notes means the Loan Notes issued by the Issuer to the Subscriber under clause 2.2(a)(iv).

Upfront Consideration Loan Notes means the Dawson Main Upfront Consideration Loan Notes, the Dawson South Upfront Consideration Loan Notes, the Dawson South Exploration Upfront Consideration Loan Notes and the Theodore South Upfront Consideration Loan Notes.

 

Page 7


1.2

Terms defined in the Dawson Option Deed

Unless otherwise defined in this Deed, terms defined in the Dawson Option Deed (including by incorporation) have the same meaning when used in this Deed.

 

1.3

Related Loan Notes

For the purposes of this Deed, the following Shares, Group Companies, Participating Interests, Joint Ventures, Joint Venture Agreements and classes of Loan Notes will be taken to be related:

 

  (a)

Anglo Dawson Holdings, Anglo Dawson Holding Shares, Anglo Dawson, the Dawson Joint Venture Assets, the Dawson JVA, the Dawson Joint Venture, and the Dawson Main Loan Notes;

 

  (b)

the Anglo Dawson South Shares, Anglo Dawson South and:

 

  (i)

the Dawson South Participating Interest, the Dawson South JVA, the Dawson South Joint Venture and the Dawson South Loan Notes; and

 

  (ii)

the Dawson South Exploration Participating Interest, the Dawson South Exploration JVA, the Dawson South Exploration Joint Venture and the Dawson South Exploration Loan Notes; and

 

  (c)

the Anglo Theodore South Shares, Anglo Theodore South, Theodore South Participating Interest, the Theodore South JVA, the Theodore South Joint Venture and the Theodore South Loan Notes.

 

1.4

Interpretation

Clauses 1.2 to 1.5 (Definitions and Interpretation) of the Dawson Option Deed are incorporated into this Deed as if set out in full with all necessary amendments.

 

2.

Loan Notes

 

2.1

Creation of Deposit Loan Notes

On the date of this Deed:

 

  (a)

the Issuer shall create and enter into the Register the Deposit Loan Notes in favour of the Subscriber with a principal amount equal to:

 

  (i)

in respect of the Dawson Main Deposit Loan Notes, the Dawson Main Deposit Amount;

 

  (ii)

in respect of the Dawson South Loan Notes, the Dawson South Deposit Amount;

 

  (iii)

in respect of the Dawson South Exploration Deposit Loan Notes, the Dawson South Exploration Deposit Amount; and

 

  (iv)

in respect of the Theodore South Deposit Loan Notes, the Theodore South Deposit Amount;

 

  (b)

the Subscriber shall subscribe for the Deposit Loan Notes referred to in clause 2.1(a) by paying to the Issuer a subscription price of 100 per cent of the principal amount of such Deposit Loan Notes.

 

2.2

Creation of Upfront Consideration Loan Notes

On the date falling three Business Days before SMC Completion:

 

Page 8


  (a)

the Issuer shall create and enter into the Register the Upfront Consideration Loan Notes in favour of the Subscriber with a principal amount equal to:

 

  (i)

in respect of the Dawson Main Upfront Consideration Loan Notes, the Dawson Main Upfront Consideration Amount;

 

  (ii)

in respect of the Dawson South Upfront Consideration Notes, the Dawson South Upfront Consideration Amount;

 

  (iii)

in respect of the Dawson South Exploration Upfront Consideration Loan Notes, the Dawson South Exploration Upfront Consideration Amount; and

 

  (iv)

in respect of the Theodore South Upfront Consideration Loan Notes, the Theodore South Upfront Consideration Amount;

 

  (b)

the Subscriber shall subscribe for the Upfront Consideration Loan Notes referred to in Clause 2.2(a) by paying to the Issuer a subscription price of 100 per cent of the principal amount of such Upfront Consideration Loan Notes.

 

2.3

Creation of the Deferred Consideration Loan Notes

On the date falling six Business Days before any portion of the Dawson Deferred Consideration is due to be paid under the SMC SPA, the Issuer shall notify the Subscriber of the amount (DDC Amount) (if any) by which the amounts previously deducted from Available Cash in respect of a Participating Interest to pay the Dawson Deferred Consideration in respect of the relevant Participating Interest and which amounts are still retained as cash by the relevant Group Company are insufficient to pay in full the relevant portion of the Dawson Deferred Consideration attributable to that Participating Interest. If the Issuer notifies the Subscriber of a DDC Amount in accordance with this clause, then on the date falling three Business Days before the relevant portion of the Dawson Deferred Consideration is due to be paid under the SMC SPA:

 

  (a)

the Issuer shall create and enter into the Register the Deferred Consideration Loan Notes in favour of the Subscriber with a principal amount equal to (as applicable):

 

  (i)

in respect of the Dawson Main Deferred Consideration Loan Notes, the DDC Amount attributable to the portion of the Dawson Main Deferred Consideration Amount then due to be paid under the SMC SPA;

 

  (ii)

in respect of the Dawson South Deferred Consideration Loan Notes, the DDC Amount attributable to the portion of the Dawson South Deferred Consideration Amount then due to be paid under the SMC SPA;

 

  (iii)

in respect of the Dawson South Exploration Deferred Consideration Loan Notes, the DDC Amount attributable to the portion of the Dawson South Exploration Deferred Consideration Amount then due to be paid under the SMC SPA; and

 

  (iv)

in respect of the Theodore South Deferred Consideration Loan Notes, the DDC Amount attributable to the portion of the Theodore South Deferred Consideration Amount then due to be paid under the SMC SPA;

 

  (b)

the Subscriber shall subscribe for the Deferred Consideration Loan Notes referred to in clause 2.3(a) by paying to the Issuer a subscription price of 100 per cent of the principal amount of such Deferred Consideration Loan Notes.

 

Page 9


2.4

Creation of the Cash Call Loan Notes

On the date falling six Business Days before any Call is required to be paid by any Group Company under the relevant Joint Venture Agreement, the Issuer shall notify the Subscriber of the amount (CC Amount) (if any) by which the amounts retained by a Group Member which is party to a Joint Venture Agreement to pay Call amounts in respect of the relevant Participating Interest are insufficient to pay in full the relevant Call amount. If the Issuer notifies the Subscriber of a CC Amount in accordance with this clause, then on the date falling three Business Days before the relevant Call is due to be paid under the relevant Joint Venture Agreement:

 

  (a)

the Issuer shall create and enter into the Register the Cash Call Loan Notes in favour of the Subscriber with a principal amount equal to (as applicable):

 

  (i)

in respect of the Dawson Main Cash Call Loan Notes, the CC Amount attributable to the Dawson Main Cash Call Amount then due to be paid under the Dawson JVA;

 

  (ii)

in respect of the Dawson South Cash Call Loan Notes, the CC Amount attributable to the Dawson South Cash Call Amount then due to be paid under the Dawson South JVA;

 

  (iii)

in respect of the Dawson South Exploration Cash Call Loan Notes, the CC Amount attributable to the Dawson South Exploration Cash Call Amount then due to be paid under the Dawson South Exploration JVA; and

 

  (iv)

in respect of the Theodore South Cash Call Loan Notes, the CC Amount attributable to the Theodore South Cash Call Amount then due to be paid under the Theodore South JVA;

 

  (b)

the Subscriber shall subscribe for the Cash Call Loan Notes referred to in clause 2.4(a) by paying a subscription price of 100 per cent of the principal amount of such Cash Call Loan Notes.

 

2.5

Creation of the Dawson Adjustment Amount Loan Notes

Subject to SMC Completion occurring, if the purchase price adjustment mechanism under the SMC SPA results in a positive purchase price adjustment in favour of the SMC Seller and there is a component of that adjustment that relates to the Dawson Sale Interest (Dawson Adjustment Amount), on the date falling three Business Days before the Dawson Adjustment Amount is due under the SMC SPA:

 

  (a)

the Issuer shall create and enter into the Register the Dawson Adjustment Amount Loan Notes in favour of the Subscriber with a principal amount equal to the Dawson Adjustment Amount; and

 

  (b)

the Subscriber shall subscribe for the Dawson Adjustment Amount Loan Notes referred to in Clause 2.5(a) by paying a subscription price of 100 per cent of the principal amount of such Loan Notes.

 

2.6

Creation of Duty Loan Notes

On the date falling three Business Days before a Duty Amount is payable to the Queensland Revenue Office:

 

  (a)

the Issuer shall create and enter into the Register the relevant Duty Loan Notes in favour of the Subscriber with a principal amount equal to:

 

  (i)

in respect of the Dawson Main Duty Loan Notes, the Dawson Main Duty Amount;

 

Page 10


  (ii)

in respect of the Dawson South Duty Loan Notes, the Dawson South Duty Amount;

 

  (iii)

in respect of the Dawson South Exploration Duty Loan Notes, the Dawson South Exploration Duty Amount; and

 

  (iv)

in respect of the Theodore South Duty Loan Notes, the Theodore South Duty Amount;

 

  (b)

the Subscriber shall subscribe for the Duty Loan Notes referred to in Clause 2.6(a) by paying to the Issuer a subscription price of 100 per cent of the principal amount of such Duty Loan Notes.

 

2.7

Purpose

The Issuer may only use the proceeds of the Loan Notes to fund the payment by the Issuer, or a related body corporate of Issuer of:

 

  (a)

in respect of the Deposit Loan Notes, the Upfront Consideration Loan Notes, the Deferred Consideration Loan Notes and the Dawson Adjustment Amount Loan Notes, the SMC Dawson Purchase Price under the SMC SPA;

 

  (b)

in respect of the Duty Loan Notes, payment of the relevant Duty Amount; and

 

  (c)

in respect of the Cash Call Loan Notes, payment of the relevant Call under the relevant Joint Venture Agreement.

 

2.8

Conditions of subscription

The Subscriber’s obligation to subscribe and pay for the Loan Notes under Clauses 2.1 to 2.6 is conditional on:

 

  (a)

the Dawson Option Deed being entered into between, amongst others, the Issuer and the Subscriber,

 

  (b)

the SMC SPA being entered into between, amongst others, the SMC Seller and the Issuer;

 

  (c)

the Dawson Option Deed and (up until SMC Completion) the SMC SPA remaining in full force and effect at the relevant time;

 

  (d)

in respect of the Deposit Loan Notes and the Upfront Consideration Loan Notes, an Insolvency Event not subsisting in respect of the Issuer at the relevant time;

 

  (e)

other than in respect of the Deposit Loan Notes and the Upfront Consideration Loan Notes, no Event of Default subsisting at the relevant time; and

 

  (f)

in respect of any Dawson Deferred Consideration Loan Notes and Cash Call Loan Notes, the Obligors having complied with clause 6.5.

 

2.9

Acknowledgement of Debt

The Issuer:

 

  (a)

agrees to pay principal and interest in respect of each Loan Note in accordance with this Deed; and

 

  (b)

acknowledges that it is indebted to the Subscriber for the Principal Outstanding from time to time.

 

Page 11


3.

Nature and Status of Loan Notes

 

3.1

Constitution and title

The Loan Notes are constituted by this Deed and inscription in the Register. Title to them is conclusively evidenced for all purposes by inscription in the Register subject to rectification for fraud or error. No certificate or other evidence of title to a Loan Note will be issued by or on behalf of the Issuer unless requested by the Subscriber or the Issuer is required to do so by law.

 

3.2

Status

The Loan Notes are secured by first-ranking (subject only to the Deed of Priority) Encumbrances under the Security Documents. The Loan Notes rank equally among themselves and at least equally with all other unsecured, unsubordinated debt of the Issuer, except for obligations mandatorily preferred by law.

 

4.

Interest and Repayment

 

4.1

Interest

 

  (a)

In the event that SMC Completion does not occur or the Issuer or any member of the Buyer Group does not acquire any part of the Dawson Sale Interest, the amount of interest that the Subscriber will be entitled to in respect of any Loan Notes issued in respect of the Dawson Deposit will be equal to nil.

 

  (b)

Subject to clause 4.1(a), interest accrues at the Coupon Rate on a daily basis on the Principal Outstanding of each Loan Note (including, if SMC Completion occurs or the Issuer or any member of the Buyer Group acquires any part of the Dawson Sale Interest, any outstanding Deposit Loan Note) during the period from the issue of that Loan Note to its redemption in full.

 

  (c)

Accrued interest on each Loan Note is payable by the Issuer to the Subscriber on each Coupon Payment Date.

 

  (d)

[***].

 

4.2

Repayment

 

  (a)

The Issuer shall redeem the Loan Notes on the relevant Redemption Date for those Loan Notes by paying to the Subscriber on that Redemption Date the applicable Redemption Amount in respect of the relevant Loan Notes and any other amounts accrued but unpaid in respect of the relevant Loan Notes under the Finance Documents.

 

  (b)

The Subscriber and the Issuer acknowledge and agree that if Completion occurs in respect of:

 

  (i)

the Anglo Dawson Holdings Shares or the Dawson Joint Venture Assets, then the Redemption Amount in respect of the Dawson Main Loan Notes will be deemed to have been fully and finally repaid by way of set-off against the consideration payable by the Subscriber under the Dawson Option Deed for the Anglo Dawson Holdings Shares or the Dawson Joint Venture Assets;

 

  (ii)

the Anglo Dawson South Shares, then:

 

  (A)

the Redemption Amount in respect of the Dawson South Loan Notes will be deemed to have been fully and finally repaid by way of set-off against the consideration payable by the Subscriber; and

 

Page 12


  (B)

the Redemption Amount in respect of the Dawson South Exploration Loan Notes will be deemed to have been fully and finally repaid by way of set-off against the consideration payable by the Subscriber,

 

 

under the Dawson Option Deed for the Anglo Dawson South Shares; and

 

  (iii)

the Theodore South Shares, then the Redemption Amount in respect of the Theodore South Loan Notes will be deemed to have been fully and finally repaid by way of set-off against the consideration payable by the Subscriber under the Dawson Option Deed for the Theodore South Shares; and

 

  (iv)

a Joint Venture in respect of which Dawson Adjustment Amount Loan Notes have been issued, the Redemption Amount in respect of those Dawson Adjustment Amount Loan Notes will be deemed to have been fully and finally repaid by way of set-off against the consideration payable by the Subscriber under the Dawson Option Deed for the Participating Interest in the relevant Joint Venture.

 

4.3

Redemption Amount

 

  (a)

The redemption amount (Redemption Amount) in respect of a class of Loan Notes (the Relevant Loan Notes) will be equal to [***].

 

  (b)

[***].

 

  (c)

[***].

 

4.4

Fair Market Value

 

  (a)

The fair market value of a Participating Interest (Fair Market Value) will be the amount in cash agreed between the Issuer and the Subscriber on or before the date falling 60 days before the Put Option Exercise Period Commencement Date as determined by the Subscriber (acting reasonably and in consultation with the Issuer) or, if agreement is not reached by that date, the fair market value of that Relevant Participating Interest as determined at the request of the Subscriber by a suitably qualified independent expert nominated by the Subscriber, except where required in clause 7.1(b) in which case the parties will agree a suitably qualified independent expert and if not agreed within 10 Business Days, either party may request that the Resolution Institute ABN 69 008 651 232 appoint a suitably qualified independent expert (Expert).

 

  (b)

The Expert may call such other experts and consultants to advise them as they think fit, however the Expert shall consult at least one firm of consultants which has a reputation for expertise in mining project valuation.

 

  (c)

The Expert may accept submissions in such form as they think fit as to the Fair Market Value and will be required to use best endeavours to state their determination (for which they need not give reasons) in writing within 21 days of appointment.

 

5.

Representations and warranties

 

5.1

General representations and warranties

Each Party represents and warrants, to the benefit of the other Party, that:

 

  (a)

it is validly incorporated, in existence and duly registered under the laws of its country of incorporation;

 

Page 13


  (b)

it has taken all necessary action and has all requisite power and authority to enter and perform this Deed and the other Finance Documents;

 

  (c)

each Finance Document (to which it is a party) constitutes (or will constitute when executed) valid, legal and binding obligations on it in accordance with their terms; and

 

  (d)

the execution and delivery of this Deed and the other Finance Documents by it and the performance of and compliance with their terms and provisions will not conflict with or result in a breach of, or constitute a default under, it’s constitutional documents, any agreement or instrument to which it is a party or by which it is bound, or any Law, order or judgment that applies to or binds the Issuer or any of its property.

 

5.2

Obligor representations and warranties

Each Obligor represents and warrants, to the benefit of the Subscriber, that:

 

  (a)

subject to any stamping and registration requirements, applicable equitable principles and laws generally affecting creditors’ rights, each Security Document when executed will be valid and effective security over the Secured Property under the relevant Security Document with the priority and ranking expressed in the relevant Specific Security Deed;

 

  (b)

there is no Encumbrance over any of its Secured Property other than a Permitted Encumbrance; and

 

  (c)

its payment obligations under the Finance Documents to which it is a party 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.

 

5.3

Repetition of representations and warranties

Each Party makes the representations and warranties set out in this Clause 5 on:

 

  (a)

the date of this Deed;

 

  (b)

the date an additional Guarantor accedes to this Deed; and

 

  (c)

on each date on which Loan Notes are created in accordance with the terms of this Deed,

in each case, by reference to the facts and circumstances existing at the date the representation or warranty is deemed to be made.

 

6.

Undertakings

The undertakings in this Clause 6 remain in force from the date of this Deed for so long as any amount is outstanding under the Finance Documents.

 

6.1

Compliance with laws

Subject to the Option Deed, each Obligor must comply in all respects with all laws and other obligations, including under the Joint Venture Agreements, to which it is subject.

 

6.2

Authorisations

Each Obligor must promptly:

 

Page 14


  (a)

obtain, comply with and do all that is necessary to maintain in full force and effect; and

 

  (b)

on written request, supply certified copies to the Subscriber of,

any authorisation of any Authority which is required 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 and any material authorisation of any Authority required for it to carry on its business.

 

6.3

Negative pledge; disposals

Each Obligor must not:

 

  (a)

create or permit to subsist any Encumbrance in or over any Secured Property, other than a Permitted Encumbrance; or

 

  (b)

dispose of all or any party of its Secured Property.

 

6.4

No winding up

Each Obligor must not apply to the court for its winding up or similar order, make or join in making any application to any court for administration, winding up, receivership or similar order in relation to itself.

 

6.5

Security

The Issuer must ensure that within 21 days of SMC Completion:

 

  (a)

each Limited Security Provider enters into the relevant Specific Security Deed in favour of the Subscriber and has delivered to the Subscriber:

 

  (i)

the relevant Specific Security Deed for that Limited Security Provider, duly executed by that Limited Security Provider;

 

  (ii)

any notices or documents required to be given or executed under the terms of the relevant Specific Security Deed, including without limitation title documents and transfers in blank in respect of any marketable securities the subject of the relevant Specific Security Deed;

 

  (iii)

evidence that any other step then required to be taken under the terms of the relevant Specific Security Deed have been taken;

 

  (iv)

evidence that the provisions of Part 2J.3 of the Corporations Act have been complied with in relation to the relevant Specific Security Deed and the transactions contemplated under them;

 

  (v)

a copy of any Authorisation or other document, opinion or assurance which the Subscriber considers to be necessary or desirable in connection with the entry into and performance of the transactions contemplated by the relevant Specific Security Deed or for the validity and enforceability of any Finance Document; and

 

  (b)

each entity which is expressed to be a party to a Security Document (other than a Limited Security Provider) accedes to this Deed as a guarantor and enters into the relevant Security Document in favour of the Subscriber, in each case in accordance with clause 9.

 

Page 15


7.

Event of Default

 

7.1

Events of Default

Each of the following events or circumstances is an Event of Default, whether or not within the control of any Obligor:

 

  (a)

subject to the Buyer not being in default under the Dawson Option Deed, an Obligor fails to comply with its obligations that it is required to satisfy at Completion under clause 18 of the Dawson Option Deed and, if applicable, Schedule 3 of the Dawson Option Deed, and the Buyer gives notice to terminate the Dawson Option Deed in accordance with clause 18.7(c) of the Dawson Option Deed;

 

  (b)

an Obligor fails to comply with its obligations under the Dawson Option Deed, including in respect of conduct between SMC Completion and Completion, which failure has a material impact on the Fair Market Value of the Dawson Sale Interest (excluding the extent to which such impact is related to any decision of any Group Company at any time after such Group Company has a majority of directors who have been nominated by or on behalf of the Subscriber in accordance with the Consultancy Services Agreements or Secondment Agreements), and the Buyer terminates the Dawson Option Deed; and

 

  (c)

an Insolvency Event occurs in relation to an Obligor.

 

7.2

Consequences of Event of Default

On and at any time after the occurrence of the Event of Default which is continuing, the Subscriber may, by notice to the Issuer:

 

  (a)

suspend its subscription of Loan Notes pursuant to Clause 2.1;

 

  (b)

declare that all or part of the Loan Notes, together with all other amounts accrued or outstanding under the Finance Documents (except the amount of any interest capitalised under clause 4.1(d)(i) which will remain payable in accordance with clause 4), be immediately due and payable, at which time they will become immediately due and payable; and/or

 

  (c)

exercise any or all of its rights, remedies, powers or discretions under the Finance Documents.

 

8.

Guarantee and Indemnity

 

  (a)

Each Obligor irrevocably and unconditionally:

 

  (i)

guarantees, as a primary obligation to the Subscriber, the due and punctual performance by each Issuer Party of all the obligations of each Issuer Party under the Finance Documents (Issuer Guaranteed Obligations) in accordance with this clause 8;

 

  (ii)

undertakes to the Subscriber that:

 

  (A)

whenever an Issuer Party does not pay any amount when due under or in connection with the Issuer Guaranteed Obligations, it shall immediately on demand and without deduction or withholding pay that amount as if that Guarantor was the principal obligor; and

 

  (B)

whenever an Issuer Party fails to perform any other Issuer Guaranteed Obligation, it shall immediately on demand perform (or

 

Page 16


  procure the performance of) and satisfy (or procure the satisfaction of) that Issuer Guaranteed Obligation,

 

 

so that the same benefits are conferred on the Subscriber as they would have received if such Issuer Guaranteed Obligations had been performed and satisfied by the Issuer Party (as relevant); and

 

  (iii)

indemnifies each of the Subscriber, all of its Affiliates and Representatives and each officer, employee and agent of such persons on demand (on a dollar for dollar basis) against all Liabilities which the Subscriber may suffer or incur (whether directly or indirectly) as a result or any claim relating to:

 

  (A)

the failure of an Issuer Party to perform any of the Issuer Guaranteed Obligations; or

 

  (B)

any Issuer Guaranteed Obligation becoming unenforceable, invalid or illegal.

 

  (b)

The guarantee in this clause 8 is a continuing guarantee and will extend to the ultimate balance of sums payable by each Issuer Party in respect of the Issuer Guaranteed Obligations, regardless of any intermediate payment or discharge in whole or in part.

 

  (c)

If any payment by any Issuer Party or any discharge of any obligations of an Issuer Party or any security for those obligations or otherwise is avoided or reduced because of insolvency or any similar event:

 

  (i)

the liability of each Issuer Party will continue as if the payment discharge, avoidance or reduction had not occurred; and

 

  (ii)

the Subscriber will be entitled to recover the value or amount of that security or payment from each Obligor as if the payment, discharge, avoidance or reduction had not occurred.

 

  (d)

The obligations of each Obligor under this clause 8 will not be affected by any act, omission, matter or thing which, but for this clause 8(d), would reduce, release or prejudice any of its obligations under this clause (whether or not known to the Subscriber, the Issuer Party or an Obligor) including:

 

  (i)

any time, waiver or consent granted to, or composition with, an Issuer Party or any other person;

 

  (ii)

the release of an Issuer Party or any other person under the terms of any composition or arrangement with any creditor;

 

  (iii)

the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, an Issuer Party or any other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;

 

  (iv)

any incapacity or lack of power, authority or legal personality of or dissolution, amalgamation, reconstruction or change in the members or status of the Subscriber or any other person;

 

  (v)

any amendment (however fundamental) or replacement of any of the Issuer Guaranteed Obligations or any other document or security;

 

  (vi)

any unenforceability, illegality or invalidity of any obligation of any person under this Deed or any other document or security; or

 

Page 17


  (vii)

any insolvency or similar proceedings.

 

  (e)

Each Obligor waives any right it may have of first requiring the Subscriber to proceed against or enforce any other rights or security or claim payment from any person before claiming from that Obligor under this clause 8. This waiver applies irrespective of any law or any provision of this Deed to the contrary.

 

  (f)

Until all amounts which may be or become payable by each Issuer Party under or in connection with the Issuer Guaranteed Obligations have been irrevocably paid in full:

 

  (i)

the Subscriber may refrain from applying or enforcing any other money, security or rights held or received by the Subscriber in respect of those amounts or apply and enforce the same in such manner and order as they see fit (whether against those amounts or otherwise), and no Issuer Party shall be entitled to the benefit of the same;

 

  (ii)

the Subscriber may hold in an interest-bearing suspense account any money received from an Issuer Party or on account of an Issuer Party’s liability under this clause 8;

 

  (iii)

no Issuer Party shall exercise any rights which it may have by reason of performance by it of the Issuer Guaranteed Obligations to be indemnified by an Issuer Party or to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of an Issuer Party in respect of the Issuer Guaranteed Obligations or of any other guarantee or security taken pursuant to, or in connection with, the Issuer Guaranteed Obligations by the Subscriber; and

 

  (iv)

no Issuer Party shall claim from another Issuer Party any sums which may be owing to it from the other Issuer Party or have the benefit of any set-off or counter claim or proof against, or dividend, composition or payment by, the other Issuer Party.

 

  (g)

Each Issuer Party undertakes to hold any security taken from another Issuer Party in connection with this guarantee in trust for the Subscriber pending discharge in full of all the Issuer Parties’ obligations under this clause 8.

 

  (h)

This guarantee is in addition to and is not in any way prejudiced by any other guarantee or security now or subsequently held by the Subscriber.

 

9.

Additional Guarantors

 

9.1

Requirements of Additional Guarantors

The Issuer may procure that each entity referred to in clause 6.5 becomes a Guarantor by delivering to the Subscriber:

 

  (a)

an Accession Deed in respect of the relevant entity, duly completed and executed by the Issuer and the relevant entity;

 

  (b)

subject to clause 9.2, the Security Document for the relevant entity, duly executed by the relevant entity;

 

  (c)

any notices or documents required to be given or executed under the terms of that Security Document, including without limitation title documents and transfers in blank in respect of any marketable securities the subject of that Security Document;

 

  (d)

evidence that any other step then required to be taken under the terms of that Security Document have been taken;

 

Page 18


  (e)

evidence that the provisions of Part 2J.3 of the Corporations Act have been complied with in relation to the Security Document, the Accession Deed, and the transactions contemplated under them;

 

  (f)

in the case of a party to a General Security Deed which is a party to a Joint Venture Agreement, a Deed of Priority (as defined in the relevant Joint Venture Agreement) duly executed by the Buyer; and

 

  (g)

a copy of any Authorisation or other document, opinion or assurance which the Subscriber considers to be necessary or desirable in connection with the entry into and performance of the transactions contemplated by the Security Document or the Accession Deed or for the validity and enforceability of any Finance Document.

 

9.2

General Security Deed

 

  (a)

The parties acknowledge and agree that the requirement of Guarantor which is a party to a Joint Venture Agreement to provide security over a Participating Interest under the General Security Deed is subject to satisfaction of the requirements of the relevant Joint Venture Agreement, including execution of a Deed of Priority by the Subscriber.

 

  (b)

The parties will use reasonable endeavours to seek to obtain the execution of a Deed of Priority by the parties to each of the relevant Joint Venture Agreements.

 

10.

Register of Loan Notes

 

10.1

Maintain Register of Loan Notes

The Issuer shall establish and maintain or procure the establishment and maintenance of a register of Loan Notes in Queensland.

 

10.2

The Register

 

  (a)

The Issuer shall record or cause to be recorded the following information in the Register in respect of each Loan Note:

 

  (i)

its issue date and Principal Outstanding from time to time;

 

  (ii)

the name and address of the holder of the Loan Note;

 

  (iii)

the account or address in Australia to which payments to the holder of the Loan Note are to be made; and

 

  (iv)

details of all repayments, prepayments and redemption of all or part of that Loan Note.

 

  (b)

The Issuer shall update the Register to note any changes or as otherwise required to rectify any errors in the Register of which it becomes aware or of which it has been notified.

 

10.3

Register of Loan Notes is paramount

Save in the case of manifest error, the Issuer shall recognise the person named in the Register as the owner of a Loan Note as the absolute owner of the Loan Note inscribed in its name on the Register without regard to any other record or instrument.

 

Page 19


10.4

Inspection of Register

A holder of a Loan Note may inspect the Register during normal business hours in the place where the Register is kept with prior reasonable notice to the Issuer.

 

10.5

Certified extracts from Register

If requested by holder of a Loan Note, the Issuer shall promptly provide to that holder a certified extract of the particulars entered in the Register.

 

11.

General

 

11.1

General

Clauses 38 (Entire Agreement and Remedies), 40 (Waiver and Variation), 41 (Invalidity), 42 (Assignment), 43 (Payments, Set-Off and Default Interest), 46 (Costs) and 48 (Counterparts) of the Dawson Option Deed are incorporated into this Deed as if set out in full with all necessary amendments, including that a reference to:

 

  (a)

“Buyer”, “Buyer Guarantor” and “Buyer Group member” is deemed to be a reference to the Subscriber; and

 

  (b)

“Peabody” and “Peabody Group member” is deemed to be a reference to the Issuer and its subsidiaries; and

 

  (c)

A reference to “this Agreement” is deemed to be a reference to this “Deed”.

 

11.2

Third party security

The Obligors acknowledge and agree that the Subscriber may grant an Encumbrance in favour of its Financing Sources over its rights in respect of and under the Finance Documents.

 

11.3

Further Assurances

Whenever the Subscriber reasonably requests the Issuer to do anything:

 

  (a)

to ensure any Finance Document (or any security interest (as defined in the PPSA) or other Encumbrance under any Finance Document) is fully effective, enforceable and perfected with the contemplated priority;

 

  (b)

for more satisfactorily assuring or securing to the Subscriber the property the subject of any such security interest or other Encumbrance in a manner consistent with the Finance Documents; or

 

  (c)

for aiding the exercise of any power in any Finance Document,

the Issuer must do it promptly at its own cost. This may include obtaining consents, signing documents, getting documents completed and signed and supplying information, delivering documents and evidence of title and executed blank transfers, or otherwise giving possession or control with respect to any property the subject of any security interest or Encumbrance.

 

11.4

Notices

 

  (a)

Any notice or other communication given under this Deed or in connection with the matters contemplated in this Deed will, except where otherwise specifically provided, be in writing in the English language, addressed as provided in Clause 8.3(b) and served:

 

  (i)

by hand to the relevant address, in which case it will be deemed to have been given upon delivery to that address, but any notice delivered outside

 

Page 20


  Working Hours will be deemed given at the start of the next period of Working Hours;

 

  (ii)

by courier (or if from any place outside the country where the relevant address is located, by air courier) to the relevant address, in which case it will be deemed to have been given three Business Days after its delivery to a representative of the courier; or

 

  (iii)

by e-mail to the relevant e-mail address, in which case it will, subject to no automated notification of delivery failure being received by the sender, be deemed to have been given when sent, but any e-mail sent outside Working Hours will be deemed given at the start of the next period of Working Hours.

 

  (b)

Notices under this Deed must be sent for the attention of the person and to the address or e-mail address, subject to Clause 11.4(c), as set out below:

 

 

For the Issuer:

 

Name:    Peabody SMC Pty Ltd
For the attention of:    [***] and [***]
Address:    Level 14, 31 Duncan Street, Fortitude Valley QLD 4006
E-mail address:    [***]@peabodyenergy.com; [***]@peabodyenergy.com; [***]@peabodyenergy.com
with a copy (which will not constitute notice) to:
Name:    Jones Day
For the attention of:    [***] and [***]
Address:    Level 31, 123 Eagle Street, Brisbane, QLD, Australia 4000
E-mail address:    [***]@jonesday.com; [***]@jonesday.com
For the Subscriber:
Name:    PT Bukit Makmur Internasional
For the attention of:    [***] and [***]
Address:    Level 11/199, Grey Street, South Brisbane, QLD, Australia 4101
E-mail address:    [***]@tigainvestments.com [***]@deltadunia.com
with a copy (which will not constitute notice) to:   
Name:    Corrs Chambers Westgarth
For the attention of:    [***] and [***]
Address:    Level 25, 567 Collins Street, Melbourne, VIC, Australia 3000
E-mail address:    [***]@corrs.com.au; [***]@corrs.com.au

 

Page 21


  (c)

Any notice or other communication under this Deed will not be invalid by reason that a copy is not delivered to any addressee nominated to receive a copy.

 

  (d)

Each party to this Deed may notify each other party of any change to its address or other details specified in clause 11.4(b), but such notification will only be effective on the date specified in such notice or five Business Days after the notice is given, whichever is later.

 

11.5

Governing Law and Jurisdiction

 

  (a)

This Deed and any non-contractual rights or obligations arising out of or in connection with it is governed by and must be construed in accordance with the laws of Queensland.

 

  (b)

The Issuer irrevocably submits to the non-exclusive jurisdiction of the courts of Queensland.

 

  (c)

The Issuer irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.

 

  (d)

The Issuer irrevocably waives any immunity in respect of its obligations under this Deed that it may acquire from the jurisdiction of any court or any legal process for any reason including the service of notice, attachment before judgment, attachment in aid of execution or execution.

 

11.6

Language

To the extent required to be in compliance with the Law No. 24 of 2009 on National Flag, Language, Coat of Arms and National Anthem and Presidential Regulation No. 63 of 2019 on the Use of Indonesia Language, the parties agree that this Deed is executed in both the English language and Indonesian languages. For the avoidance of doubt, the existence of two languages of this Deed is not to be construed by any party as creating different rights and obligations, or duplication or multiplication of the rights and obligations, of the parties under any version of this Deed. The parties agree that the English language version and the Indonesian language version of this Deed shall be equally authentic, and that in the event of any inconsistency or different interpretation between the Indonesian language version and the English version of this Deed, the English language version shall prevail.

 

Page 22


SCHEDULE 2

FORM OF GENERAL SECURITY DEED

 


 

Agreed Form

General Security Deed

Each entity listed in Schedule 1

[insert BUMA entity]

 


Contents

 

1.  Definitions and interpretation      1  
 1.1  

Definitions

     1  
 1.2  

Interpretation

     5  
 1.3  

Interpretation of inclusive expressions

     7  
 1.4  

Business Day

     7  
 1.5  

Incorporated definitions from Loan Note Deed

     7  
 1.6  

PPSA definitions apply

     7  
 1.7  

Deed components

     8  
 1.8  

Inconsistency

     8  
 1.9  

Finance Document

     8  
 1.10  

Joint and Several Liability

     8  
2.  Grant of Security      8  
 2.1  

Security interest in Secured Property

     8  
 2.2  

Priority

     9  
 2.3  

Collection of proceeds of debts

     9  
 2.4  

Proceeds

     9  
 2.5  

Authorisation

     10  
 2.6  

Attachment

     10  
3.  Discharge of the Security      10  
 3.1  

Discharge – Satisfaction Date

     10  
 3.2  

Final discharge

     11  
 3.3  

Discharge – power of sale under Dawson Option Deed

     11  
4.  Representations and Warranties      11  
 4.1  

Representations and warranties

     11  
 4.2  

Survival of representations and warranties

     12  
 4.3  

Reliance

     13  
5.  Representations and Warranties, Undertakings      13  
 5.1  

Performance under the Finance Documents

     13  
 5.2  

Notices to the Secured Party

     13  
 5.3  

Permitted dealings

     14  
 5.4  

Revolving Assets

     14  
 5.5  

Conversion to Revolving Assets

     14  
 5.6  

Inventory

     14  
 5.7  

No dealing with assets - Secured Property

     14  
 5.8  

Title Documents and Chattel Paper

     15  
 5.9  

Undertakings in respect of Marketable Securities

     15  
 5.10  

Notification of change of details

     16  
 5.11  

Perfection, registration and protection of security

     16  
 5.12  

Registration on the PPSR

     17  
 5.13  

Controlled Account

     18  

 

i


 5.14  

Distributions

     18  
 5.15  

Term of undertakings

     19  
6.  Enforcement      19  
 6.1  

When enforceable

     19  
 6.2  

No dealing with assets

     19  
 6.3  

Assistance in realisation

     19  
 6.4  

Postponing or delaying realisation or enforcement

     19  
7.  Receiver      20  
 7.1  

Appointment of Receiver

     20  
 7.2  

Agency of Receiver

     20  
 7.3  

Powers of Receiver

     20  
 7.4  

Nature of Receiver’s Powers

     22  
 7.5  

Status of Receiver after commencement of winding up

     22  
 7.6  

Powers exercisable by the Secured Party

     23  
 7.7  

Set-off

     23  
 7.8  

Notice of exercise of rights

     23  
 7.9  

Termination of receivership and possession

     23  
8.  Application and Receipts of Money      23  
 8.1  

Order of application

     23  
 8.2  

Money actually received

     24  
 8.3  

Amounts contingently due

     24  
 8.4  

Notice of a Security Interest

     25  
 8.5  

Secured Party’s statement of indebtedness

     25  
 8.6  

Secured Party’s receipts

     25  
 8.7  

Conversion of currencies on application

     26  
 8.8  

Amounts payable on demand

     26  
9.  Power of Attorney      26  
 9.1  

Appointment of Attorney

     26  
 9.2  

Purposes of appointment

     26  
 9.3  

Exercise after Event of Default or Enforcement Event

     27  
 9.4  

Delegation and substitution

     27  
10.  Protection      27  
 10.1  

Protection of third parties

     27  
 10.2  

Protection of the Secured Party, Receiver and Attorney

     27  
11.  Saving Provisions      28  
 11.1  

Statutory powers

     28  
 11.2  

No notice required unless mandatory

     28  
 11.3  

Appointment of nominee for PPSR registration

     28  
 11.4  

Continuing security

     28  
 11.5  

No merger of security

     29  
 11.6  

Exclusion of moratorium

     29  
 11.7  

Exclusion of PPSA provisions

     29  

 

ii


 11.8  

Conflict

     29  
 11.9  

Consent of Secured Party

     30  
 11.10  

Completion of blank securities

     30  
 11.11  

Principal obligations

     30  
 11.12  

No obligation to marshal

     30  
 11.13  

Non-avoidance

     30  
 11.14  

Increase in financial accommodation

     31  
12.  Third Party Provisions      31  
 12.1  

Suspense account

     31  
 12.2  

Independent obligations

     31  
 12.3  

Unconditional nature of obligations

     31  
 12.4  

No competition

     33  
13.  General      34  
 13.1  

General

     34  
 13.2  

Confidential information

     34  
 13.3  

Performance by Secured Party of a Grantor’s obligations

     35  
 13.4  

Grantor to bear cost

     35  
 13.5  

Notices

     35  
 13.6  

Governing law and jurisdiction

     35  
 13.7  

Waivers

     35  
 13.8  

Variation

     36  
 13.9  

Cumulative rights

     36  
 13.10  

Attorneys

     36  

Schedule 1 – Grantors

  

Signing page

  

 

iii


General Security Deed

 

Date   

[#] 2024

 

Parties   
Grantor   

THE ENTITIES listed in Schedule 1 (together, the “Grantors”)

Secured Party   

[insert BUMA buyer]

 

It is agreed as follows:

 

1.

Definitions and interpretation

 

1.1

Definitions

Subject to clause 1.4, in this deed:

Additional Rights” means all present and future rights and property interests attaching to or arising out of or otherwise in respect of the holding of an interest in the Shares including:

 

  (a)

any Distributions paid or payable, any bonus shares or other Marketable Securities issued, and any rights to take up Marketable Securities, in respect of the Shares;

 

  (b)

any proceeds of, or from the disposal of or other dealing with, any Shares;

 

  (c)

any rights or Marketable Securities resulting from the conversion, consolidation, subdivision, redemption, cancellation, reclassification or forfeiture of any Share;

 

  (d)

any in specie distribution in respect of any Shares; and

 

  (e)

rights consequent upon a reduction of capital, buy-back, liquidation or scheme or arrangement,

and any present or future rights and property interests attaching to or arising out of or otherwise in respect of any interest in any of the property specified in items (a) to (e) inclusive of this definition.

Administration Enforcement Event” means the appointment of an administrator to a Grantor pursuant to section 436A, 436B or 436C of the Corporations Act.

Attorney” means an attorney appointed under this deed.

Certificated Security” means a Marketable Security title to which is evidenced by a Title Document.

 

Page 1


Charged Property” means in respect of a Grantor, all of that Grantor’s present and after-acquired property, including anything in respect of which that Grantor has at any time sufficient right, interest or power to grant a security interest, but excluding:

 

  (a)

all accounts and chattel paper of that Grantor to the extent transferred in accordance with clauses 2.1(b)(i); and

 

  (b)

any Mortgaged Property of that Grantor.

Collateral Security” means any present or future Security Interest, Guarantee or other document or agreement created or entered into by a Transaction Party or any other person as security for, or to credit enhance, the payment of any of the Secured Moneys.

Control Event” means:

 

  (a)

in respect of any Secured Property of any Grantor, that is, or would have been, a Revolving Asset:

 

  (i)

that Grantor:

 

  (A)

creates or permits to subsist a Security;

 

  (B)

makes a disposal; or

 

  (C)

enters into an arrangement,

in respect of the Secured Property, in breach of the Finance Documents, or takes any step which would result in it doing so; or

 

  (ii)

a person takes a step (including signing a notice or direction) which would be reasonably likely to result in Taxes or an amount owing to a Governmental Agency, ranking ahead of the Security; or

 

  (iii)

distress is levied or a judgment, order or Security Interest is enforced; or

 

  (iv)

the Secured Party gives a notice to that Grantor that the Secured Property is not a Revolving Asset. (However, the Secured Party may only give a notice if an Event of Default is continuing); or

 

  (b)

in respect of all Secured Property of any Grantor, that is or would have been Revolving Assets or Restricted Collateral:

 

  (i)

an administrator, liquidator or provisional liquidator is appointed in respect of that Grantor or the winding up of that Grantor begins; or

 

  (ii)

a receiver, receiver and manager or Controller is appointed to any of that Grantor’s property; or

 

  (iii)

something having a substantially similar effect to the above 2 paragraphs or either of them happens under any law.

Controlled Account” means in respect of any Grantor, a bank account opened by that Grantor in accordance with clause 5.13.

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

debt” includes debts owing by a bank or other financial institution, including in relation to a current trading account.

 

Page 2


Designated Bank” means the bank with which a Controlled Account is maintained.

Distribution” means any money owing now or in the future in respect of the Secured Property and includes a cash dividend, charge, interest, or payment or other monetary distribution whether of an income or capital nature.

Dollars, A$ and $” means the lawful currency of the Commonwealth of Australia.

Enforcement Event” means:

 

  (a)

an Administration Enforcement Event; or

 

  (b)

whilst an Event of Default is continuing, an event or reason described in section 415D(1), 434J(1) or 451E(1) of the Corporations Act in respect of a Grantor.

Future Shares” means, in respect of a Grantor, that Grantor’s right, title and interest in any shares, stock, stock units, interests in a managed investment scheme or other securities issued by a Relevant Corporation which, after the date of this deed, become owned beneficially by that Grantor or by anyone (including a trustee, nominee, broker or agent) for that Grantor.

Guarantee” means any guarantee, suretyship, letter of credit, letter of comfort or any other obligation:

 

  (a)

to provide funds (whether by the advance or payment of money, the purchase of or subscription for shares or units in a trust or other securities, the purchase of assets or services, or otherwise) for the payment or discharge of;

 

  (b)

to indemnify any person against the consequences of default in the payment of; or

 

  (c)

to be responsible for,

any debt or monetary liability or obligation (whether or not it involves the payment of money) of another person or the assumption of any responsibility or obligation in respect of the insolvency or the financial condition of any other person.

Intellectual Property Rights” means all patents, trade marks, service marks, designs, copyrights, business names, trade secrets, know how and other intellectual property rights and interests (in each case whether registered under any statute or not).

Loan Note Deed” means the deed entered into on or about the date of this deed entitled “Dawson Loan Note Deed” between Peabody SMC Pty Ltd (ACN 682 277 587) as the issuer and the Secured Party as the subscriber.

Marketable Securities” means:

 

  (a)

marketable securities as defined in section 9 of the Corporations Act;

 

  (b)

any option or right in respect of an unissued share;

 

  (c)

any convertible note; and

 

  (d)

any instrument or security which is a combination of any of the above.

Mortgaged Property” means in respect of a Grantor, all of that Grantor’s present and future interest in:

 

  (a)

the Relevant Corporation Debt;

 

Page 3


  (b)

the Shares;

 

  (c)

the Additional Rights; and

 

  (d)

the Controlled Account and any chose in action in respect of the Controlled Account.

Permitted Security” means any Security Interest which is permitted to subsist over property of a Grantor under the Finance Documents, including each “Permitted Encumbrance” (as defined in the Dawson Option Deed).

Power” means any right, power, authority, discretion or remedy conferred on the Secured Party, a Receiver or an Attorney by any Finance Document or any applicable law.

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

PPSA Security Interest” means a security interest as defined in the PPSA.

Present Shares” means, in relation to a Grantor, any shares in each Relevant Corporation registered in the name of that Grantor.

Receiver” means a receiver or receiver and manager appointed under this deed.

Related Corporation” means a related body corporate as defined in section 9 of the Corporations Act.

Relevant Corporation” means any corporation, body corporate or other entity whose Marketable Securities form part of the Mortgaged Property.

Relevant Corporation Debt” means, in respect of a Grantor, all monetary obligations and all other financial indebtedness now or in the future actually or contingently owing by each Relevant Corporation to that Grantor, including all documents and agreements creating, relating to or evidencing any of those obligations, and all rights and remedies relating to them.

Restricted Collateral” means, in respect of a Grantor, any of that Grantor’s:

 

  (a)

assets of, or Marketable Securities in, any joint ventures where a joint venture contract would be breached or give a counterparty a right of termination if the consent of a person other than that Grantor was not obtained or action taken prior to the creation of any Security over such assets or Marketable Securities in accordance with the underlying document; or

 

  (b)

rights under or to any contract, license, lease, permit, Authorisation, or similar which would be breached or give a counterparty a right of termination if the consent of a person other than that Grantor was not obtained prior to the creation of any Security over such rights in accordance with the underlying document.

Revolving Asset” means in respect of a Grantor, any Secured Property of that Grantor:

 

  (a)

which is:

 

  (i)

accounts;

 

  (ii)

chattel paper;

 

  (iii)

inventory;

 

  (iv)

a negotiable instrument;

 

Page 4


  (v)

machinery, plant, or equipment which (in each case) is not inventory and has a value of less than $1,000 or its equivalent; or

 

  (vi)

money (including money withdrawn or transferred to a third party from an account of a Grantor with a bank or other financial institution); and

 

  (b)

in relation to which no Control Event has occurred, subject to clause 5.5.

Secured Moneys” means all money which the Issuer (whether alone or not) is or at any time may become actually or contingently liable to pay to or for the account of the Secured Party (whether alone or not) for any reason whatever under or in connection with a Finance Document (as amended, novated, supplemented, extended, replaced or restated) whether or not currently contemplated).

It includes money by way of principal, interest, fees, costs, indemnities, charges, duties or expenses or payment of liquidated or unliquidated damages under or in connection with a Finance Document, or as a result of a breach of or default under or in connection with a Finance Document.

Where the Issuer would have been liable but for its deregistration, or a compromise, deed of arrangement, amalgamation, administration, reconstruction, winding up, dissolution, assignment for the benefit of creditors, arrangement or compromise with creditors or bankruptcy or a set-off claimed by it, it will be taken still to be liable.

Secured Property” means in respect of a Grantor, the Mortgaged Property, the Charged Property and all of that Grantor’s other present and after-acquired property, including anything in respect of which that Grantor has at any time sufficient right, interest or power to grant a security interest.

Security” means in respect of a Grantor, the security created or expressed to be created by that Grantor by this deed.

Security Interest” means a mortgage, charge, pledge, lien or other security interest securing any obligation of any person or any other agreement, notice or arrangement having a similar effect, including any “security interest” as defined in sections 12(1) or (2) of the PPSA.

Shares” means in respect of a Grantor, its Present Shares and its Future Shares.

Title Document” means any original, duplicate or counterpart certificate or document evidencing title or ownership of an asset including any contract note, entitlement notice, marked transfer, share certificate or certificate evidencing an investment instrument or negotiable instrument.

Transaction Party” means the Issuer, each Grantor and any Limited Security Provider, now or in the future.

 

1.2

Interpretation

In this deed:

 

  (a)

Headings and bold type are for convenience only and do not affect the interpretation of this deed.

 

  (b)

The singular includes the plural and the plural includes the singular.

 

  (c)

Words of any gender include all genders.

 

  (d)

Other parts of speech and grammatical forms of a word or phrase defined in this deed have a corresponding meaning.

 

Page 5


  (e)

An expression importing a person or entity includes any body corporate, partnership, trust, joint venture or other association, or any Governmental Agency as well as an individual.

 

  (f)

A reference to any thing (including any right) includes a part of that thing but nothing in this clause 1.2(f) implies that performance of part of an obligation constitutes performance of the obligation.

 

  (g)

A reference to a clause, party, schedule, attachment or exhibit is a reference to a clause of, and a party, schedule, attachment or exhibit to, this deed.

 

  (h)

A reference to any legislation includes all delegated legislation made under it and amendments, consolidations, replacements or re-enactments of any of them.

 

  (i)

A reference to a document includes all amendments or supplements to, or replacements or novations of, that document.

 

  (j)

A reference to a party to a document includes that party’s successors and permitted assignees.

 

  (k)

A promise on the part of 2 or more persons binds them jointly and severally.

 

  (l)

A reference to an agreement other than this deed includes a deed and any legally enforceable undertaking, agreement, arrangement or understanding, whether or not in writing.

 

  (m)

A reference to property or an asset includes any real or personal, present or future, tangible or intangible property, asset or undertaking (including Intellectual Property Rights) and any right, benefit, interest or revenue in, under or derived from the property or asset.

 

  (n)

A reference to liquidation or insolvency includes appointment of an administrator, compromise, arrangement, merger, amalgamation, reconstruction, winding-up, dissolution, deregistration, assignment for the benefit of creditors, scheme, composition or arrangement with creditors, insolvency, bankruptcy, or any similar procedure or, where applicable, changes in the constitution of any partnership or person, or death.

 

  (o)

A reference to a document includes any agreement in writing, or any certificate, notice, deed, instrument or other document of any kind.

 

  (p)

No provision of this deed will be construed adversely to a party because that party was responsible for the preparation of this deed or that provision.

 

  (q)

A reference to a body, other than a party to this deed (including an institute, association or authority), whether statutory or not:

 

  (i)

which ceases to exist; or

 

  (ii)

whose powers or functions are transferred to another body,

is a reference to the body which replaces it or which substantially succeeds to its powers or functions.

 

  (r)

References to time are to Brisbane, Queensland time.

 

  (s)

Where this deed confers any power or authority on a person that power or authority may be exercised by that person acting personally or through an agent or attorney.

 

Page 6


  (t)

A reference to drawing, accepting, endorsing or other dealing with a bill refers to drawing, accepting, endorsing or dealing within the meaning of the Bills of Exchange Act 1909 (Cth).

 

  (u)

An Event of Default or Default is “continuing” if it has occurred and is continuing under the terms of the Finance Document which sets out the Event of Default or Default. If the Finance Document does not specify when an Event of Default or Default is continuing, it is “continuing” if it has not been remedied to the satisfaction of the Secured Party or waived in writing by the Secured Party under the Finance Document.

 

  (v)

A requirement for a person to use its “reasonable endeavours” in relation to any matter includes an obligation for that person to provide, on request, information regarding the progress of the matter.

 

1.3

Interpretation of inclusive expressions

Specifying anything in this deed after the words ‘includes’ or ‘for example’ or similar expressions does not limit what else is included unless there is express wording to the contrary.

 

1.4

Business Day

Where the day on or by which any thing is to be done is not a Business Day, that thing must be done on or by the next Business Day.

 

1.5

Incorporated definitions from Loan Note Deed

A word or phrase (other than one defined in clause 1.1) defined in the Loan Note Deed (including by incorporation) has the same meaning in this deed unless that term or expression is defined in this deed or the context otherwise indicates.

 

1.6

PPSA definitions apply

Unless the context requires otherwise, the following words used in this deed have the same meanings given to the PPSA or the PPS Regulations:

 

  (a)

account;

 

  (b)

attach;

 

  (c)

after-acquired property;

 

  (d)

chattel paper;

 

  (e)

financing statement;

 

  (f)

financing change statement;

 

  (g)

investment instrument;

 

  (h)

negotiable instrument;

 

  (i)

personal property; and

 

  (j)

serial number.

 

Page 7


1.7

Deed components

This deed includes any schedule.

 

1.8

Inconsistency

If there is any inconsistency between this deed and the Loan Note Deed, the Loan Note Deed prevails to the extent of that inconsistency.

 

1.9

Finance Document

This deed is a Finance Document for the purposes of the Loan Note Deed.

 

1.10

Joint and Several Liability

 

  (a)

Each agreement, warranty, representation or obligation made, given or incurred by a Grantor binds all of the persons named as a Grantor in this deed jointly and each of them severally.

 

  (b)

No Grantor is discharged from its obligations under this deed if:

 

  (i)

the obligations of any other Grantor are or become invalid or unenforceable; or

 

  (ii)

the liability of any other Grantor under this deed ceases for any reason including by any release or discharge by the Secured Party or by law or in any other way.

 

  (c)

The Secured Party may enforce its rights under this deed and proceed against any one or more of the persons named as a Grantor in the manner, order and at the times the Secured Party determines in its discretion. The Secured Party is not required to enforce its rights or proceed against all of the persons named as a Grantor.

 

  (d)

As against any one Grantor, a reference to any Grantor or to any Security includes a reference to the other Grantor and its relevant Security and to this deed to the extent it affects them respectively.

 

  (e)

This deed binds each of the persons who execute this deed as a Grantor even if:

 

  (i)

any one or more of the other persons named as a Grantor do not execute this deed; or

 

  (ii)

execution by one or more of those other persons is or becomes void, voidable, illegal or unenforceable.

 

2.

Grant of Security

 

2.1

Security interest in Secured Property

 

  (a)

Subject to clause 2.5, each Grantor as beneficial owner grants a security interest in its Secured Property to the Secured Party to secure payment of the Secured Moneys.

 

  (b)

Without limiting clause 2.1(a), the security interest created by a Grantor under clause 2.1(a) is:

 

  (i)

a transfer by way of security of all its Secured Property consisting of:

 

  (A)

Relevant Corporation Debt; and

 

Page 8


  (B)

accounts or chattel paper which are not, or cease to be, Revolving Assets;

 

  (ii)

to the extent that any of its Mortgaged Property does not consist of the Relevant Corporation Debt, a mortgage; and

 

  (iii)

in respect of all its Charged Property and all of its other Secured Property that is not a transfer by way of security in accordance with clause 2.1(b)(i) or a mortgage in accordance with clause 2.1(b)(ii), a charge.

 

  (c)

If for any reason it is necessary to determine the nature of the charge granted in accordance with clause 2.1(b)(iii), the charge is:

 

  (i)

a floating charge over Revolving Assets; and

 

  (ii)

a fixed charge over all other Secured Property.

 

2.2

Priority

 

  (a)

In respect of the Secured Property:

 

  (i)

the parties intend that the Security take priority over all other Security Interests and other interests in the Secured Property at any time other than any Security Interest mandatorily preferred by law; and

 

  (ii)

nothing in this deed will be construed as an agreement by the Secured Party to subordinate the Security to any other Security Interest or interest affecting the Secured Property at any time.

 

2.3

Collection of proceeds of debts

Each Grantor may collect as agent for the Secured Party for this purpose the proceeds of any debts or other amounts now or in the future payable to that Grantor subject to using those proceeds as permitted under the Finance Documents.

 

2.4

Proceeds

 

  (a)

If a Control Event occurs in respect of any proceeds, each Grantor must immediately and until notified otherwise by the Secured Party or until the Control Event ceases deposit in the Controlled Account of that Grantor any proceeds that Grantor receives in respect of any book debt, insurance policy in relation to its Secured Property or any other debts or other amounts now or in the future payable to that Grantor.

 

  (b)

Clause 2.4(a) does not apply to proceeds received from any workers’ compensation or public liability policy or reinstatement policy to the extent that the proceeds are paid to a person:

 

  (i)

entitled to be compensated under the workers’ compensation or public liability policy; or

 

  (ii)

under a contract for the reinstatement of the Secured Property of a Grantor.

 

  (c)

Each Grantor must give all notices and directions and execute all necessary documents as requested by the Secured Party to ensure clause 2.4(a) is complied with.

 

  (d)

A Power created under this clause 2.4 is not waived by any failure or delay in exercise, or by the partial exercise, of that Power.

 

Page 9


2.5

Authorisation

 

  (a)

Subject to clause 5.4, if an asset is, or would form part of, the Secured Property and it is Restricted Collateral, whether in respect of that asset only or otherwise, then that asset is excluded from the Security of the relevant Grantor, but only for so long as that effect prevails.

 

  (b)

If the Security could be granted in respect of the Restricted Collateral referred to in clause 2.5(a) if an Authorisation was obtained or other action taken, the relevant Grantor must:

 

  (i)

in relation to any Authorisation to be granted by, or action to be taken by, an Affiliate of the Issuer or that Grantor, as soon as reasonably practicable after the date of this deed promptly obtain that Authorisation or take that action; and

 

  (ii)

in relation to any other Authorisation or other action, use its reasonable endeavours for a period not exceeding 60 days from the date of this deed to promptly obtain that Authorisation or take that action.

 

  (c)

A Grantor will be taken to have satisfied the reasonable endeavours obligations in respect of Restricted Collateral under clause 2.5(b)(ii) if, after having requested consent, the counterparty or lessor (as applicable) has refused to provide it and if, in that Grantor’s reasonable opinion, there is no reasonable prospect that the counterparty will give such consent or that any further attempt to comply would unduly prejudice its commercial negotiating position with that counterparty or lessor (as applicable).

 

  (d)

With respect to its obligations under clause 2.5(b) and, notwithstanding anything in that clause, each Grantor will not be required to act to its commercial detriment in seeking such consent (including without limitation, being required to pay any fee (other than reasonable legal or professional adviser costs and expenses) or other material amount to a counterparty or lessor, or to make any material amendment to a contract or arrangement in order to obtain such consent).

 

  (e)

Despite clause 2.5(a), if an event described in item (b)(i) or (b)(ii) of the definition of Control Event occurs, then all Restricted Collateral shall cease to be excluded from the Security.

 

2.6

Attachment

Each Security Interest granted under this deed attaches to the relevant Secured Property in accordance with the PPSA and the parties to this deed confirm that they have not agreed that any Security Interest granted under this deed attaches at any later time (other than such time as any Restricted Collateral forms part of the Secured Property pursuant to clause 2.5).

 

3.

Discharge of the Security

 

3.1

Discharge – Satisfaction Date

Subject to clause 3.2, at the written request of a Grantor, the Secured Party must:

 

  (a)

promptly discharge the Security of that Grantor; and

 

  (b)

retransfer to that Grantor its right and interest in all accounts and chattel paper transferred under clause 2.1(b)(i) or clause 5.4(c),

following the Satisfaction Date.

 

Page 10


3.2

Final discharge

 

  (a)

The Secured Party is not obliged to discharge the Security under clause 3.1 if, at the time the requirements of clause 3.1 are satisfied, the Secured Party is of the opinion that:

 

  (i)

a Grantor or any other Transaction Party owes further Secured Moneys contingently or otherwise to the Secured Party; or

 

  (ii)

a Grantor or any other Transaction Party will owe further Secured Moneys to the Secured Party within a reasonable time after the date the Secured Moneys have been paid in full.

 

  (b)

Clause 3.2(a)overrides any other clause to the contrary in this deed.

 

  (c)

The parties intend that clause 3.2(a)(ii) be severed from clause 3.2(a) if clause 3.2(a)(ii) is void or unenforceable under applicable law.

 

  (d)

The parties do not intend clause 3.2(c) to exclude the general law of severance from applying to this deed.

 

3.3

Discharge – power of sale under Dawson Option Deed

At the written request of the Grantors, if a Grantor or a Peabody Group Member has exercised its rights under clause [12] (Power of Sale) of the Dawson Option Deed (Power of Sale Rights) the Secured Party must, on completion of the disposal of the relevant Participating Interest:

 

  (a)

promptly discharge the Security;

 

  (b)

execute and deliver or enter into any release of the Security; and

 

  (c)

enter into any consent to dealing,

in each case, that the Grantors in their discretion (acting reasonably) considers necessary or desirable for a Grantor or a Peabody Group Member (as applicable) to exercise its Power of Sale Rights.

 

4.

Representations and Warranties

 

4.1

Representations and warranties

Each Grantor represents and warrants to and for the benefit of the Secured Party that:

 

  (a)

representations true: each of its representations and warranties contained in the Finance Documents is correct and not misleading when made or repeated;

 

  (b)

legal and beneficial owner:

 

  (i)

it is the legal and beneficial owner of the Secured Property; and

 

  (ii)

on it acquiring any property forming part of the Secured Property, it will be the legal and beneficial owner of that property;

 

  (c)

no other interests:

 

  (i)

there is no Security Interest over any of the Secured Property other than a Security Interest created by a Finance Document and a Permitted Security;

 

Page 11


  (ii)

no person other than the Secured Party holds or has the benefit of a Security Interest or other interest in its Secured Property other than under a Permitted Security; and

 

  (iii)

there is no agreement, filing or registration that would enable another person to obtain a priority over its Security which is inconsistent with the priority contemplated by this Security;

 

  (d)

Security:

 

  (i)

this deed creates the Security Interest purported to be created by it over the assets purported to be encumbered by it;

 

  (ii)

its Security has been, or in the case of after-acquired property subject to the Security on its acquisition, will be perfected (other than perfection by registration that can only be carried out by the Secured Party); and

 

  (iii)

its Security has the priority contemplated by this deed;

 

  (e)

serial numbers: there is no Secured Property, other than as disclosed to the Secured Party in writing from time to time:

 

  (i)

which the PPS Regulations require to be described by serial number in a registration under the PPSA; and

 

  (ii)

with a value greater than $100,000 which the PPS Regulations permit to be described by serial number in a registration under the PPSA;

 

  (f)

location of assets: none of its Secured Property is located outside Australia;

 

  (g)

securities fully paid: all Marketable Securities forming part of the Secured Property are, or upon acquisition will be, fully paid;

 

  (h)

registers: the share register and any branch register for each Relevant Corporation that is incorporated in Australia:

 

  (i)

is located in Australia on the date of this deed; and

 

  (ii)

will be located in Australia on the date on which the security interest created under this deed attaches to the Mortgaged Property;

 

  (i)

no further securities: the equity capital in each Relevant Corporation is fully represented by the Title Documents delivered to the Secured Party pursuant to clause 5.8(a) (Title Documents and Chattel Paper) and there is no agreement, arrangement or understanding under which further Marketable Securities with rights of conversion to shares in any Relevant Corporation may be issued to any person.

 

4.2

Survival of representations and warranties

The representations and warranties in clause 4.1:

 

  (a)

are made on the date of this deed;

 

  (b)

survive the execution of this deed and the other Finance Documents and the provision of financial accommodation under them; and

 

  (c)

are repeated on each day on which:

 

  (i)

the representations and warranties in the Loan Note Deed are repeated; and

 

Page 12


  (ii)

a Grantor acquires, or has an interest, in any Mortgaged Property,

in each case, on the basis of the facts and circumstances then subsisting.

 

4.3

Reliance

 

  (a)

Each Grantor acknowledges that it has not entered into this deed or any other Finance Document in reliance on any representation, warranty, promise or statement made by or on behalf of the Secured Party or of any person on behalf of the Secured Party.

 

  (b)

Each Grantor acknowledges that the Secured Party has entered into this deed and each other Finance Document in reliance on the representations and warranties given by that Grantor under this deed.

 

5.

Representations and Warranties, Undertakings

 

5.1

Performance under the Finance Documents

 

  (a)

Each Grantor must fully and punctually perform its obligations under each Finance Document.

 

  (b)

Without limiting clause 5.1(a), each Grantor must pay the Secured Moneys to the Secured Party in accordance with this deed, each other Finance Document and each other obligation under which the Secured Moneys are payable.

 

  (c)

Each Grantor must ensure that no Event of Default occurs. Without affecting the liability of the Grantors or the Powers in any other respect (including where a breach of this clause 5.1(c) is also a breach of another provision of a Finance Document), each Grantor is not liable in damages for breach of this clause 5.1(c) but the Secured Party may exercise its Powers consequent upon or following that Event of Default (which is continuing).

 

5.2

Notices to the Secured Party

In addition to its obligations in any other Finance Document, a Grantor must notify the Secured Party as it becomes aware of any of the following:

 

  (a)

the acquisition by it of:

 

  (i)

any Marketable Securities or other property in relation to which the Security may be perfected by control;

 

  (ii)

any motor vehicles or other property with a value greater than $100,000 which the PPS Regulations provide may or must be described by serial number in a registration under the PPSA;

 

  (iii)

any property with a value greater than $100,000 which is situated outside Australia;

 

  (b)

any change of the jurisdiction in which any of its Secured Property with a value greater than $100,000 is situated; and

 

  (c)

any data contained in a registration under the PPSA with respect to the Security being or becoming incorrect,

provided that that Grantor will be deemed to have provided notice to the Secured Party under this clause 5.2 if such information has been provided by that Grantor under another Finance Document.

 

Page 13


5.3

Permitted dealings

Each Grantor may do any of the following in the ordinary course of that Grantor’s ordinary business unless it is prohibited from doing so by another provision in a Finance Document or the Dawson Option Deed:

 

  (a)

create or allow another interest in, or dispose or part with possession of, any Secured Property of that Grantor which is a Revolving Asset; or

 

  (b)

withdraw or transfer money from an account of that Grantor with a bank or other financial institution.

 

5.4

Revolving Assets

If a Control Event occurs in respect of any Secured Property of any Grantor then automatically:

 

  (a)

that Secured Property is not (and immediately ceases to be) a Revolving Asset;

 

  (b)

any floating charge over that Secured Property immediately operates as a fixed charge;

 

  (c)

if the Secured Property is accounts or chattel paper it is transferred to the Secured Party by way of security; and

 

  (d)

that Grantor may no longer deal with the Secured Property under clause 5.3.

 

5.5

Conversion to Revolving Assets

If any Secured Property is not or ceases to be a Revolving Asset, and becomes subject to a fixed charge or transfer under clause 5.4, the Secured Party may give the relevant Grantor a notice stating that, from a date specified in the notice, the Secured Property specified in the notice is a Revolving Asset, or becomes subject to a floating charge or is transferred back to that Grantor. This may occur any number of times.

 

5.6

Inventory

Any inventory which is not, or ceases to be, a Revolving Asset is specifically appropriated to a security interest under this deed. Each Grantor may not remove it without obtaining the specific and express authority of the Secured Party to do so.

 

5.7

No dealing with assets - Secured Property

 

  (a)

No Grantor must do, or agree to do, any of the following without the prior written consent of the Secured Party, unless it is permitted to do so by clause 5.3 or another provision under the Finance Documents or the Dawson Option Deed:

 

  (i)

create or allow another interest (including any Security Interest) in any of its Secured Property which is not a Permitted Security Interest; or

 

  (ii)

sell, assign, transfer, dispose, or otherwise part with possession, of any of its Secured Property.

 

  (b)

Each Grantor agrees to do everything necessary to ensure that a third person cannot acquire an interest in any Secured Property free of, or having priority over, the Security Interests granted under this deed, except as permitted under the Finance Documents or the Dawson Option Deed.

 

Page 14


5.8

Title Documents and Chattel Paper

 

  (a)

To the extent they are available, each Grantor must deposit with the Secured Party, or as the Secured Party directs, all the Title Documents in respect of any of its Secured Property (including all Title Documents in respect of the Mortgaged Property which has a Certificated Security) together with, blank transfers in a form and of substance acceptable to the Secured Party in respect of its Secured Property to which the Title Documents relate, and all chattel paper forming part of its Secured Property with a value greater than $100,000:

 

  (i)

in respect of its Secured Property existing as at the date of this deed, immediately on the Grantor’s execution of this deed; and

 

  (ii)

following the acquisition of any asset which forms part of its Secured Property, as soon as practicable and in any event within five Business Days of, the date of such acquisition.

 

  (b)

At any time after an Event of Default occurs and is continuing, if required by the Secured Party, each Grantor must deposit with the Secured Party all chattel paper which forms part of its Secured Property regardless of value and which has not already been deposited under clause 5.8(a).

 

  (c)

Subject to clause 5.8(d), the Secured Party may retain the Title Documents and chattel paper deposited with the Secured Party until this Security is discharged under clause 3.

 

  (d)

If the Security is enforced by the Secured Party, the Secured Party, Receiver or Attorney is entitled:

 

  (i)

to deal with the Title Documents and the chattel paper and to complete any transfer as if it was the absolute and unencumbered owner of the Secured Property to which the Title Documents relate and of the chattel paper; and

 

  (ii)

in exercising a power of sale, to deliver any Title Document, transfers or chattel paper to a purchaser of the Secured Property to which the Title Document relates or of the chattel paper.

 

  (e)

While any Title Documents for Mortgaged Property are, or in accordance with this deed, should be lodged with the Secured Party, each Grantor must not elect to convert evidence of the Mortgaged Property from certificates to an uncertificated mode for the purposes of any automated transfer system operated by ASX limited or for any other purpose.

 

  (f)

If the Grantor makes any election referred to in clause 5.8(e), the Secured Party may treat it as having no effect.

 

  (g)

Each Grantor must ensure that the share register and any branch register for each Relevant Corporation incorporated in Australia is located in Australia.

 

5.9

Undertakings in respect of Marketable Securities

 

  (a)

Unless it is otherwise permitted to do so under the Finance Documents or the Dawson Option Deed, no Grantor must do or omit to do anything which might render any Mortgaged Property or any Title Document in respect of any Mortgaged Property liable to forfeiture, cancellation, avoidance or loss or might otherwise materially affect the value of the Mortgaged Property or the interest of the Secured Party.

 

  (b)

Each Grantor must ensure that the terms of the constituent documents of any Company forming part of the Mortgaged Property do not restrict the transfer of any

 

Page 15


  Security on enforcement of the Security Interests granted under this deed or give the directors of any Relevant Corporation any discretion in relation to the registration of any such transfer in the share register of that Relevant Corporation.

 

  (c)

Subject to clause 5.9(e), each Grantor may receive all Distributions and exercise all voting powers in respect of the Mortgaged Property without the need for any consent or direction from the Secured Party, and the Secured Party must not exercise any voting power in respect of that Mortgaged Property without that Grantor’s consent.

 

  (d)

Unless it is otherwise permitted to do so under the Finance Documents or the Dawson Option Deed, no Grantor must exercise any voting powers under paragraph (c) in respect of any Mortgaged Property in a way which is reasonably likely to adversely affect the value of the Mortgaged Property or the interests of the Secured Party.

 

  (e)

Following the occurrence of an Event of Default which is continuing, upon written notice from the Secured Party, the rights of a Grantor under paragraph (c) cease and the Secured Party, a Receiver or Attorney (as applicable) is entitled to receive all Distributions and exercise all voting powers in respect of the Mortgaged Property to the exclusion of the Grantors. The Secured Party, a Receiver or Attorney (as applicable) is entitled to exercise its rights in respect of the Mortgaged Property in its absolute discretion and is not responsible for any loss as a result of any failure to act or any delay in so acting.

 

5.10

Notification of change of details

Each Grantor must notify the Secured Party in writing:

 

  (a)

at least 14 days before it changes its name, ACN or ABN, or if it becomes a trustee of a trust or a partner in a partnership; and

 

  (b)

promptly, if:

 

  (i)

any ABN, ARBN or ARSN is allocated to it; or

 

  (ii)

any ABN, ARBN or ARSN is allocated, or otherwise starts to apply, to it, a trust of which it is a trustee or partnership of which it is a partner.

 

5.11

Perfection, registration and protection of security

 

  (a)

Each Grantor must, on request by the Secured Party, assist the Secured Party with:

 

  (i)

ensuring that:

 

  (A)

its Security is perfected in relation to all of its Secured Property in all jurisdictions; and

 

  (B)

this deed and its Security are registered and filed in all registers in all jurisdictions in which it must be perfected, registered and filed, to ensure its enforceability, validity, perfection and priority against all persons and to be effective as a security; and

 

  (ii)

aiding the exercise of any Power,

with such assistance including (without limitation) doing the following at its own cost:

 

  (iii)

doing anything to make, procure, facilitate or obtain any Authorisation (including registration) in respect of anything;

 

Page 16


  (iv)

creating, procuring or executing any document, including any notice, consent or agreement, or legal or statutory mortgage or transfer;

 

  (v)

delivering documents or evidence of title or chattel paper and executing and delivering blank transfers;

 

  (vi)

delivering possession of any Secured Property to the Secured Party;

 

  (vii)

enabling the Secured Party to have possession or control of any Secured Property for the purposes of the PPSA;

 

  (viii)

registering or consenting to the registration on any applicable register, including by way of a financing statement or a financing change statement on the PPSR, in respect of a Security Interest created under this deed;

 

  (ix)

providing any details necessary to enable the registrations in paragraph (viii) to be made;

 

  (x)

enabling the Secured Party to register the power of attorney under clause 9; or

 

  (xi)

doing anything to show whether that Grantor is complying with this deed.

 

  (b)

Whenever the Secured Party directs that the Security be perfected in a particular way in relation to any part of the Secured Property, each Grantor must ensure that its Security is perfected in that way.

 

  (c)

Each Grantor will not be in breach of its obligation under this clause 5.11 and its representation and warranty under clause 4.1(d)(ii) will not be incorrect or misleading if the Secured Party fails to take any action which can only be taken by the Secured Party to enable the Security to be perfected as required under this clause 5.11, after written request from that Grantor to take that action.

 

  (d)

Whenever any part of its Secured Property is transferred to or retained in a place where this deed or the Security, because of an increase in the Secured Moneys or otherwise, bears insufficient stamp duty or is not registered or recorded, or for any other reason is of limited or of no force or effect, unenforceable, inadmissible in evidence or of reduced priority, each Grantor must within 14 days after it becomes aware of such requirement to do so ensure that:

 

  (i)

this deed is stamped to the satisfaction of the Secured Party;

 

  (ii)

this deed is in full force and effect, enforceable, perfected, admissible in evidence and not of reduced priority; and

 

  (iii)

this deed and its Security are registered in that place, or that part of its Secured Property is removed from that place.

 

5.12

Registration on the PPSR

Each Grantor consents to the Secured Party effecting a registration on the PPSR (in any manner the Secured Party considers appropriate, or giving any notification, in relation to any Security Interest granted under or in connection with this document. Each Grantor agrees not to make any amendment demand.

 

Page 17


5.13

Controlled Account

 

  (a)

If an Event of Default occurs which is continuing, the Secured Party may require a Grantor to open and maintain a bank account at a bank and branch approved by the Secured Party on terms that:

 

  (i)

nominated Authorised Officers of the Secured Party must be signatories to the Controlled Account;

 

  (ii)

no withdrawals can be made from the Controlled Account without the signature of one of those Authorised Officers;

 

  (iii)

funds may be disposed of from the Controlled Account at the direction of the Secured Party without further consent by that Grantor; and

 

  (iv)

depositing an amount in the Controlled Account will not result in any person coming under a present liability (within the meaning of section 341(3)(d) of the PPSA) to pay:

 

  (A)

that Grantor; or

 

  (B)

a Related Corporation of that Grantor.

 

  (b)

If the Secured Party is not the Designated Bank, that Grantor must cause the Designated Bank to enter into an agreement between the Designated Bank, that Grantor and the Secured Party in form and substance satisfactory to the Secured Party in which the Designated Bank agrees that:

 

  (i)

it will comply with and give effect to the terms set out in clause 5.13(a);

 

  (ii)

it has no Security Interest or other interest in the Controlled Account and it waives all rights of set-off and combination in respect of the Controlled Account;

 

  (iii)

if despite clause 5.13(b)(ii) it has any Security Interest or other interest in the Controlled Account, that Security Interest or other interest is subordinated in right and priority of payment to the Secured Party’s Security Interest or other interest and will not be exercised without the Secured Party’s consent; and

 

  (iv)

it agrees that the laws specified in clause 13.6(b) will govern the Secured Party’s security interest in the Controlled Account.

 

5.14

Distributions

 

  (a)

Subject to the terms of the Loan Note Deed and the Dawson Option Deed, if an Event of Default occurs and is continuing, each Grantor must deposit, or cause to be deposited, all Distributions in its Controlled Account.

 

  (b)

Each Grantor must give all notices and directions and execute all necessary documents as requested by the Secured Party to ensure clause 5.14(a) is complied with.

 

  (c)

A Power created under this clause 5.14 is not waived by any failure or delay in exercise, or by the partial exercise, of that Power.

 

Page 18


5.15

Term of undertakings

Each Grantor’s undertakings in this clause 5 continue in full force and effect from the date of this deed until the Security in respect of all the Secured Property is discharged under clause 3.

 

6.

Enforcement

 

6.1

When enforceable

 

  (a)

If an Event of Default occurs and is continuing:

 

  (i)

in respect of the Secured Property, the Security and each Collateral Security are immediately enforceable without the need for any demand or notice to be given to any Grantor or any other person;

 

  (ii)

the Secured Moneys are immediately due and payable without the need for any demand or notice to be given to the Grantor or any other person other than a notice expressly required by a Finance Document.

 

  (b)

The Secured Party agrees that it will not exercise any Power to enforce the Security under Chapter 4 of the PPSA until an Event of Default occurs (and only for so long as it is continuing).

 

6.2

No dealing with assets

Any right of any Grantor to deal, for any purpose, with any asset which forms part of the Secured Property (including under clause 2.3), other than by or through a Receiver appointed under this deed, immediately ceases if:

 

  (a)

the Secured Party declares that the Secured Moneys are immediately due and payable in accordance with the Finance Documents; or

 

  (b)

the Secured Party takes any step to enforce the Security in accordance with the Finance Documents; or

 

  (c)

subject to clause 5.5, a Control Event occurs in relation to the asset.

 

6.3

Assistance in realisation

After the Security has become enforceable under clause 6.1, each Grantor must take all action required by the Secured Party, Receiver or Attorney to assist any of them to realise the Secured Property and exercise any Power including:

 

  (a)

executing all transfers, conveyances, assignments and assurances of any of that Secured Property;

 

  (b)

doing anything necessary or desirable under the law in force in any place where that Secured Property is situated; and

 

  (c)

giving all notices, orders, directions and consents which the Secured Party, Receiver or Attorney thinks expedient.

 

6.4

Postponing or delaying realisation or enforcement

The Secured Party, a Receiver or Attorney may postpone or delay the exercise of any Power for such period as the Secured Party, Receiver or Attorney may in its absolute discretion decide.

 

Page 19


7.

Receiver

 

7.1

Appointment of Receiver

If:

 

  (a)

an Event of Default occurs and is continuing; or

 

  (b)

an Enforcement Event occurs,

the Secured Party may:

 

  (c)

appoint any person or any 2 or more persons jointly, or severally, or jointly and severally to be a receiver or a receiver and manager of all of the Secured Property;

 

  (d)

remove any Receiver and on the removal, retirement or death of any Receiver, appoint another Receiver; and

 

  (e)

fix the remuneration and direct payment of that remuneration and any costs, charges and expenses of the Receiver out of the proceeds of any realisation of the Secured Property.

 

7.2

Agency of Receiver

 

  (a)

Subject to clause 7.5, each Receiver is the agent of the relevant Grantor.

 

  (b)

Each Grantor is responsible for the acts, defaults and remuneration of the Receiver which has been appointed in respect of its Secured Property.

 

7.3

Powers of Receiver

Subject to any express exclusion by the terms of the Receiver’s appointment, a Receiver appointed in respect of any Secured Property of a Grantor has, in addition to any powers conferred on the Receiver by applicable law, and whether or not in possession of that Secured Property or any part of it, the following powers:

 

  (a)

manage, possession or control: to manage, enter into possession or assume control of any of that Secured Property;

 

  (b)

lease or licence: to accept the surrender of, determine, grant or renew any lease or licence in respect of the use or occupation of any of that Secured Property:

 

  (i)

on any terms or special conditions that the Secured Party or Receiver thinks fit; and

 

  (ii)

in conjunction with the sale, lease or licence of any other property by any person;

 

  (c)

sale: to sell or concur in selling any of that Secured Property to any person:

 

  (i)

by auction, private treaty or tender;

 

  (ii)

on such terms and special conditions as the Secured Party or the Receiver thinks fit;

 

  (iii)

for cash or for a deferred payment of the purchase price, in whole or in part, with or without interest or security;

 

  (iv)

in conjunction with the sale of any property by any other person; and

 

Page 20


  (v)

in one lot or in separate parcels;

and to complete a share transfer in favour of the Secured Party, or any other person designated by the Secured Party;

 

  (d)

grant options to purchase: to grant to any person an option to purchase any of that Secured Property;

 

  (e)

acquire property: to acquire any interest in any property, in the name or on behalf of that Grantor, which on acquisition forms part of that Secured Property;

 

  (f)

carry on business: to carry on or concur in carrying on any business of that Grantor in respect of the Secured Property;

 

  (g)

borrowings and security:

 

  (i)

to raise or borrow any money, in its name or the name or on behalf of that Grantor, from the Secured Party or any person approved by the Secured Party in writing; and

 

  (ii)

to secure money raised or borrowed under clause 6.3(g)(i) by a Security Interest over any of that Secured Property, ranking in priority to, equal with, or after, the Security of any Grantor or any Collateral Security;

 

  (h)

maintain or improve Secured Property: to do anything to maintain, protect or improve any of that Secured Property including completing, repairing, erecting a new improvement on, demolishing or altering any of that Secured Property;

 

  (i)

income and bank accounts: to do anything to manage or obtain income or revenue from any of that Secured Property including operating any bank account which forms part of that Secured Property or opening and operating a new bank account;

 

  (j)

access to Secured Property: to have access to any of that Secured Property, the premises at which the business of that Grantor is conducted and any of the administrative services of the business of that Grantor;

 

  (k)

insure Secured Property: to insure any of that Secured Property;

 

  (l)

sever fixtures: to sever fixtures in respect of any of that Secured Property;

 

  (m)

compromise: to make or accept any compromise or arrangement;

 

  (n)

surrender Secured Property: to surrender or transfer any of that Secured Property to any person;

 

  (o)

exchange Secured Property: to exchange with any person any of that Secured Property for any other property whether of equal value or not;

 

  (p)

employ or discharge: to employ or discharge any person as an employee, contractor, agent or professional advisor for any of the purposes of this deed;

 

  (q)

delegate: to delegate to any person any Power of the Receiver;

 

  (r)

perform or enforce documents: to observe, perform, enforce, exercise or refrain from exercising any right, power, authority, discretion or remedy of that Grantor under, or otherwise obtain the benefit of:

 

  (i)

any document, agreement or right which attaches to or forms part of that Secured Property; and

 

Page 21


  (ii)

any document or agreement entered into in exercise of any Power by the Receiver;

 

  (s)

receipts: to give receipts for all moneys and other assets which may come into the hands of the Receiver;

 

  (t)

take proceedings: to commence, discontinue, prosecute, defend, settle or compromise in its name or the name or on behalf of that Grantor, any proceedings including proceedings in relation to any insurance in respect of any of that Secured Property;

 

  (u)

insolvency proceedings: in respect of the Secured Property, to make any debtor bankrupt, wind-up any company, corporation or other entity and do all things in relation to any bankruptcy or winding-up which the Receiver thinks necessary or desirable including attending and voting at creditors’ meetings and appointing proxies for those meetings;

 

  (v)

execute documents: in respect of the Secured Property, to enter into and execute any document or agreement in the name of the Receiver or the name or on behalf of that Grantor for any of the purposes of this deed;

 

  (w)

rights: to exercise any right, power, authority, discretion or remedy in respect of the Secured Property including:

 

  (i)

any voting right or power;

 

  (ii)

the acceptance of any rights issue or other Additional Right;

 

  (iii)

proving in any liquidation, scheme of arrangement or other composition for or arrangement with a member or any secured or unsecured creditor and whether or not under an order of the court;

 

  (iv)

consenting on behalf of a Grantor in respect of the proof referred to in clause 7.3(w)(iii); and

 

  (v)

receiving all Distributions;

 

  (x)

ability of Grantor: to do anything that Grantor could do in relation to the Secured Property; and

 

  (y)

incidental power: to do anything necessary or incidental to the exercise of any Power of the Receiver.

 

7.4

Nature of Receiver’s Powers

The Powers of the Receiver must be construed independently and no one Power limits the generality of any other Power. Any dealing under any Power of the Receiver will be on the terms and conditions the Receiver thinks fit.

 

7.5

Status of Receiver after commencement of winding up

 

  (a)

The power to appoint a Receiver under clause 7.1 may be exercised even if, at the time an Event of Default or Enforcement Event occurs or at the time when a Receiver is appointed, an order has been made or a resolution has been passed for the winding-up of the relevant Grantor.

 

  (b)

If for any reason, including operation of law, a Receiver:

 

  (i)

appointed in the circumstances described in clause 7.5(a); or

 

Page 22


  (ii)

appointed at any other time,

ceases to be the agent of a Grantor upon or by virtue of, or as a result of, an order being made or a resolution being passed for the winding-up of that Grantor, then the Receiver immediately becomes the agent of the Secured Party.

 

7.6

Powers exercisable by the Secured Party

 

  (a)

Whether or not a Receiver is appointed under clause 7.1, the Secured Party may, while an Event of Default is continuing (in respect of the Secured Property only) or following the occurrence of an Enforcement Event (in respect of all of the Secured Property) and without giving notice to any person, exercise any Power that could be conferred on a Receiver in addition to any Power of the Secured Party.

 

  (b)

The exercise of any Power by the Secured Party, Receiver or Attorney does not cause or deem the Secured Party, Receiver or Attorney:

 

  (i)

to be a mortgagee in possession;

 

  (ii)

to account as mortgagee in possession; or

 

  (iii)

to be answerable for any act or omission for which a mortgagee in possession is liable.

 

7.7

Set-off

If any Event of Default occurs and is continuing, the Secured Party may apply any credit balance in any currency in any account of any Grantor with the Secured Party in and towards satisfaction of any of the Secured Moneys.

 

7.8

Notice of exercise of rights

The Secured Party, Receiver or Attorney is not required:

 

  (a)

to give notice of a Security or any Collateral Security to any debtor or creditor of any Grantor or to any other person;

 

  (b)

to enforce payment of any money payable to any Grantor including any of the debts or monetary liabilities charged by this deed or by any Collateral Security; or

 

  (c)

to obtain the consent of any Grantor to any exercise of a Power.

 

7.9

Termination of receivership and possession

The Secured Party may, at any time, terminate the appointment of a Receiver and may, at any time, give up, or re-take, possession of the Secured Property.

 

8.

Application and Receipts of Money

 

8.1

Order of application

 

  (a)

At any time after the Security of a Grantor is enforceable, all money received by the Secured Party, Receiver, Attorney or any other person acting on their behalf under this deed or any Collateral Security may be appropriated and applied towards any amount and in any order that the Secured Party, Receiver, Attorney or that other person determines in its absolute discretion, to the extent permitted by the Finance Documents and not prohibited by law.

 

Page 23


  (b)

Subject to the Finance Documents, failing a determination under clause 8.1(a), the money must be applied in the following manner and order:

 

  (i)

first, in payment of all costs, charges and expenses (including any GST) of the Secured Party, Receiver or Attorney incurred in or incidental to the exercise or performance or attempted exercise or performance of any Power;

 

  (ii)

second, in payment of any other outgoings the Secured Party, Receiver or Attorney thinks fit to pay;

 

  (iii)

third, in payment to the Receiver of his or her remuneration;

 

  (iv)

fourth, in payment and discharge, in order of their priority, of any Security Interests of which the Secured Party, Receiver or Attorney is aware and which have priority to the Security of the relevant Grantor;

 

  (v)

fifth, in payment to the Secured Party towards satisfaction of the Secured Moneys and applied against interest, principal or any other amount the Secured Party, Receiver or Attorney thinks fit;

 

  (vi)

sixth, in payment only to the extent required by law, in order of their priority, of other Security Interests in respect of the Secured Property of the relevant Grantor of which the Secured Party, Receiver or Attorney is aware and which are due and payable in accordance with their terms; and

 

  (vii)

seventh, in payment of the surplus, if any, without interest to the relevant Grantor, and the Secured Party, Receiver or Attorney may pay the surplus to the credit of an account in the name of the relevant Grantor in the books of any bank carrying on business within Australia and having done so is under no further liability in respect of that surplus.

 

  (c)

Any amount required by law to be paid in priority to any amount specified in clause 8.1(b) must be paid before any money is applied in payment of the amount specified in clause 8.1(b).

 

8.2

Money actually received

In applying any money towards satisfaction of the Secured Moneys, a Grantor is to be credited only with so much of the money which is available for that purpose (after deducting any GST imposed) and which is actually received by the Secured Party, Receiver or Attorney. The credit dates from the time of receipt.

 

8.3

Amounts contingently due

 

  (a)

If at the time of a distribution of any money under clause 8.1 any part of the Secured Moneys is contingently owing to the Secured Party, the Secured Party, Receiver or Attorney may retain an amount equal to the amount contingently owing or any part of it.

 

  (b)

If the Secured Party, Receiver or Attorney retains any amount under clause 8.3(a) it must place that amount on short-term interest bearing deposit until the amount contingently owing becomes actually due and payable or otherwise ceases to be contingently owing at which time the Secured Party, Receiver or Attorney must:

 

  (i)

pay to the Secured Party the amount which has become actually due to it; and

 

  (ii)

apply the balance of the amount retained, together with any interest on the amount contingently owing, in accordance with clause 8.1.

 

Page 24


8.4

Notice of a Security Interest

 

  (a)

If the Secured Party receives actual or constructive notice of a Security Interest over the Secured Property or of the perfection of a Security Interest in respect of the Secured Property of a Grantor, the Secured Party:

 

  (i)

may open a new account in the name of that Grantor in its books; or

 

  (ii)

is regarded as having opened a new account in the name of that Grantor in its books,

on the date it received or was regarded as having received notice of the Security Interest or perfection.

 

  (b)

From the date on which that new account is opened or regarded as opened:

 

  (i)

all payments made by that Grantor to the Secured Party; and

 

  (ii)

all financial accommodation and advances by the Secured Party to that Grantor,

are or are regarded as credited and debited, as the case may be, to the new account unless otherwise specified by the Secured Party.

 

  (c)

The payments by that Grantor under clause 8.4(b) must be applied in the manner determined by the Secured Party or, failing a determination:

 

  (i)

first, in reduction of the debit balance, if any, in the new account; and

 

  (ii)

second, if there is no debit balance in the new account, in reduction of the Secured Moneys which have not been debited or regarded as debited to the new account.

 

8.5

Secured Party’s statement of indebtedness

A certificate signed by any Authorised Officer of the Secured Party stating:

 

  (a)

the amount of the Secured Moneys due and payable; or

 

  (b)

the amount of the Secured Moneys, whether currently due and payable or not,

is sufficient evidence of that amount as at the date stated on the certificate, or failing that as at the date of the certificate, unless the contrary is proved.

 

8.6

Secured Party’s receipts

 

  (a)

The receipt of any Authorised Officer of the Secured Party for any money payable to or received by the Secured Party under this deed exonerates the payer from all liability to enquire whether any of the Secured Moneys have become payable.

 

  (b)

Every receipt of an Authorised Officer of the Secured Party effectually discharges the payer from:

 

  (i)

any future liability to pay the amount specified in the receipt; and

 

  (ii)

being concerned to see to the application of, or being answerable or accountable for any loss or misapplication of, the amount specified in the receipt.

 

Page 25


8.7

Conversion of currencies on application

In making an application under clause 8.1, the Secured Party, Receiver or Attorney may itself, or through its bankers, purchase one currency with another, whether or not through an intermediate currency, whether spot or forward, in the manner and amounts and at the time it thinks fit.

 

8.8

Amounts payable on demand

If an amount payable under a Finance Document is not expressed to be payable on a specified date, that amount is payable by a Grantor on demand by the Secured Party.

 

9.

Power of Attorney

 

9.1

Appointment of Attorney

In consideration of the Secured Party entering into the Finance Documents and for other consideration received, each Grantor irrevocably appoints the Secured Party and each Receiver severally its Attorney for the purposes set out in clause 9.2.

 

9.2

Purposes of appointment

The Attorney may, in its name or in the name of any Grantor, Secured Party or Receiver, do any of the following:

 

  (a)

do any thing which ought to be done by that Grantor under this deed or any other Finance Document;

 

  (b)

exercise any right, power, authority, discretion or remedy of that Grantor under:

 

  (i)

this deed;

 

  (ii)

any other Finance Document; or

 

  (iii)

any agreement forming part of the Secured Property ;

 

  (c)

do any thing which in the opinion of the Secured Party, Receiver or Attorney is necessary or expedient for securing or perfecting the Security of that Grantor and any Collateral Security;

 

  (d)

execute in favour of the Secured Party any legal mortgage, transfer, assignment and any other assurance of any of the Secured Property of that Grantor;

 

  (e)

execute deeds of assignment, composition or release;

 

  (f)

do all things necessary to enable a transfer to be registered in favour of the Secured Party, its nominee or any other person as the Secured Party directs and deliver any Title Documents or chattel paper as the Secured Party directs;

 

  (g)

sell or otherwise part with the possession of any of the Secured Property of that Grantor; and

 

  (h)

generally, do any other thing, whether or not of the same kind as those set out in clause 9.2(a) to (f), which in the opinion of the Secured Party, Receiver or Attorney is necessary or expedient:

 

  (i)

to more satisfactorily secure to the Secured Party the payment of the Secured Moneys; or

 

Page 26


  (ii)

in relation to any of the Secured Property of that Grantor.

 

9.3

Exercise after Event of Default or Enforcement Event

 

  (a)

An Attorney must not exercise any Power under clause 9.2 unless:

 

  (i)

an Event of Default is continuing; or

 

  (ii)

an Enforcement Event has occurred.

 

  (b)

Each Grantor must ratify anything done by an Attorney under this clause 9.

 

9.4

Delegation and substitution

The Attorney may appoint a substitute attorney.

 

10.

Protection

 

10.1

Protection of third parties

 

  (a)

No person dealing with the Secured Party, Receiver or Attorney is bound to enquire whether:

 

  (i)

a Security has become enforceable;

 

  (ii)

the Receiver or Attorney is duly appointed; or

 

  (iii)

any Power has been properly or regularly exercised.

 

  (b)

No person dealing with the Secured Party, the Receiver or Attorney is affected by express notice that the exercise of any Power was unnecessary or improper.

 

  (c)

The irregular or improper exercise of any Power is, as regards the protection of any person, regarded as authorised by each Grantor and this deed, and is valid.

 

10.2

Protection of the Secured Party, Receiver and Attorney

 

  (a)

The Secured Party, Receiver or Attorney is not liable for any loss or damage including consequential loss or damage, arising directly or indirectly from:

 

  (i)

any omission or delay in the exercise or non-exercise of any Power; or

 

  (ii)

the neglect, default or dishonesty of any manager, Authorised Officer, employee, agent, accountant, auctioneer or solicitor of a Grantor, the Secured Party, Receiver or Attorney.

 

  (b)

Clause 10.2(a) does not apply:

 

  (i)

in respect of the Secured Party, to any loss or damage which arises from the wilful default, fraud or gross negligence of the Secured Party; and

 

  (ii)

in respect of a Receiver or Attorney, to any loss or damage which arises from the wilful default, fraud or gross negligence of the Receiver or Attorney.

 

Page 27


11.

Saving Provisions

 

11.1

Statutory powers

 

  (a)

Subject to clause 11.1(b), the powers of the Secured Party under this deed or any Collateral Security are in addition to any powers the Secured Party has under applicable law.

 

  (b)

If the Secured Party exercises a Power in connection with this deed, that exercise is taken not to be an exercise of a Power under the PPSA unless the Secured Party states otherwise at the time of exercise. However, this clause 11.1(b) does not apply to a right, power or remedy which can only be exercised under the PPSA.

 

11.2

No notice required unless mandatory

To the extent the law permits, each Grantor waives:

 

  (a)

its rights to receive any notice that is required by:

 

  (i)

any provision of the PPSA (including a notice of a verification statement); or

 

  (ii)

any other law, before a secured party or Receiver exercises a right, power or remedy; and

 

  (b)

any time period that must otherwise lapse under any law before a secured party or receiver exercises a right, power or remedy.

If the law which requires a period of notice or a lapse of time cannot be excluded, but the law provides that the period of notice or lapse of time may be agreed, that period or lapse is one day or the minimum period the law allows to be agreed (whichever is the longer).

However, nothing in this clause prohibits the Secured Party or any Receiver from giving a notice under the PPSA or any other law.

 

11.3

Appointment of nominee for PPSR registration

For the purposes of section 153 of the PPSA, the Secured Party appoints each Grantor as its nominee, and authorises each Grantor to act on its behalf, in connection with a registration under the PPSA of any security interest in favour of that Grantor which is:

 

  (a)

evidenced or created by chattel paper;

 

  (b)

perfected by registration under the PPSA; and

 

  (c)

transferred to the Secured Party under this deed.

This authority ceases when the registration is transferred to the Secured Party.

 

11.4

Continuing security

The Security is a continuing security despite:

 

  (a)

any settlement of account; or

 

  (b)

the occurrence of any other thing,

and remains in full force and effect until the Secured Party has given a discharge of that Security in respect of all the Secured Property subject to that Security under clause 3.

 

Page 28


11.5

No merger of security

 

  (a)

Nothing in this deed merges, extinguishes, postpones, lessens or otherwise prejudicially affects:

 

  (i)

any Guarantee, Security Interest or indemnity in favour of the Secured Party contained in any Finance Document; or

 

  (ii)

any Power.

 

  (b)

No other Security Interest or Finance Document which the Secured Party has the benefit of in any way prejudicially affects any Power.

 

11.6

Exclusion of moratorium

Without limiting clause 11.7, to the extent not excluded by law, a provision of any legislation (other than a provision of the PPSA mentioned in section 115(1) of the PPSA) which directly or indirectly:

 

  (a)

lessens, varies or affects in favour of a Grantor any obligations under this deed or any Finance Document;

 

  (b)

stays, postpones or otherwise prevents or prejudicially affects the exercise by the Secured Party, Receiver or Attorney of any Power; or

 

  (c)

confers any right on a Grantor or imposes any obligation on the Secured Party or a Receiver or Attorney in connection with the exercise of any Power,

is negatived and excluded from this deed and any Finance Document and all relief and protection conferred on a Grantor by or under that legislation is also negatived and excluded.

 

11.7

Exclusion of PPSA provisions

To the extent the law permits:

 

  (a)

the provisions of the PPSA specified in section 115(1) of that Act (except sections 123 (right to seize collateral), 128 (secured party may dispose of collateral), 129 (disposal by purchase), 130 (notice of disposal), 134 (retention of collateral), 135 (notice of retention)) are excluded in full and will not apply to the Security;

 

  (b)

in the circumstances permitted under section 115(7) of the PPSA, sections 132 (secured party to give statement of account) and 137(3) (obligation to sell) of the PPSA are also excluded and will not apply to the Security;

 

  (c)

if the PPSA is amended after the date of this deed to permit a Grantor and the Secured Party to agree to not comply with or to exclude other provisions of the PPSA, the Secured Party may notify each Grantor that any of these provisions are excluded or that the Secured Party need not comply with any of these provisions as notified to a Grantor by the Secured Party; and

 

  (d)

each Grantor agrees not to exercise its rights to make any request of the Secured Party under section 275 of the PPSA, to authorise the disclosure of any information under that section or to waive any duty of confidence that would otherwise permit non-disclosure under that section.

 

11.8

Conflict

Where any right, power, authority, discretion or remedy of the Secured Party, Receiver or an Attorney under this deed or any Finance Document is inconsistent with the powers conferred by applicable law then, to the extent not prohibited by that law, the powers conferred by applicable law are regarded as negatived or varied to the extent of the inconsistency.

 

Page 29


11.9

Consent of Secured Party

 

  (a)

Whenever the doing of any thing by a Grantor is dependent upon the consent of the Secured Party, the Secured Party may withhold its consent or give it conditionally or unconditionally in its absolute discretion unless expressly stated otherwise in a Finance Document.

 

  (b)

Any conditions imposed on a Grantor under clause 11.9(a) must be complied with by that Grantor.

 

11.10

Completion of blank securities

 

  (a)

The Secured Party, a Receiver, Attorney or any Authorised Officer of the Secured Party may complete, in favour of the Secured Party, any appointee of the Secured Party or any purchaser, any instrument executed in blank by or on behalf of a Grantor and deposited with the Secured Party as security under this deed or under any Collateral Security.

 

  (b)

The Secured Party, a Receiver, Attorney or any Authorised Officer of the Secured Party must not exercise any Power under clause 11.10(a) until an Event of Default occurs and is continuing but a breach of this clause 11.10(b) does not affect the validity of the act of the Secured Party, Receiver, Attorney or Authorised Officer of the Secured Party.

 

11.11

Principal obligations

The Security and each Collateral Security is:

 

  (a)

a principal obligation and is not ancillary or collateral to any other Security Interest (other than another Collateral Security) or other obligation; and

 

  (b)

independent of, and unaffected by, any other Security Interest or other obligation which the Secured Party may hold at any time in respect of the Secured Moneys.

 

11.12

No obligation to marshal

Before the Secured Party enforces the Security, it is not required, to marshal or to enforce or apply under, or appropriate, recover or exercise:

 

  (a)

any Security Interest or Collateral Security held, at any time, by the Secured Party; or

 

  (b)

any moneys or assets which the Secured Party, at any time, holds or is entitled to receive.

 

11.13

Non-avoidance

If any payment by any Grantor to the Secured Party is at any time avoided for any reason including any legal limitation, disability or incapacity of or affecting that Grantor or any other thing, and whether or not:

 

  (a)

any transaction relating to the Secured Moneys was illegal, void or substantially avoided; or

 

  (b)

any thing was or ought to have been within the knowledge of the Secured Party,

 

Page 30


that Grantor:

 

  (c)

as an additional, separate and independent obligation, indemnifies the Secured Party against that avoided payment; and

 

  (d)

acknowledges that any liability of that Grantor under the Finance Documents and any Power is the same as if that payment had not been made.

 

11.14

Increase in financial accommodation

The Secured Party may, subject to the Finance Documents, at any time increase the financial accommodation provided under any Finance Document or otherwise provide further financial accommodation.

 

12.

Third Party Provisions

 

12.1

Suspense account

 

  (a)

The Secured Party may apply to the credit of a suspense account:

 

  (i)

any amounts received under this deed;

 

  (ii)

any dividends, distributions or other amounts received in respect of the Secured Moneys in any liquidation;

 

  (iii)

any other amounts received from any Transaction Party or any other person in respect of the Secured Moneys.

 

  (b)

The Secured Party may retain the amounts in the suspense account for as long as it determines and is not obliged to apply them in or towards satisfaction of the Secured Moneys.

 

12.2

Independent obligations

This deed is enforceable against each Grantor:

 

  (a)

without first having recourse to any Collateral Security;

 

  (b)

whether or not the Secured Party or any other person has:

 

  (i)

made demand on any Transaction Party other than that Grantor;

 

  (ii)

given notice to any Transaction Party (other than that Grantor) or any other person in respect of any thing; or

 

  (iii)

taken any other steps against any Transaction Party (other than that Grantor) or any other person;

 

  (c)

whether or not any Secured Moneys is then due and payable; and

 

  (d)

despite the occurrence of any event described in clause 12.3.

 

12.3

Unconditional nature of obligations

 

  (a)

The Security and the obligations of each Grantor under the Finance Documents are absolute, binding and unconditional in all circumstances and are not released or discharged or otherwise affected by anything which but for this provision might have that effect, including:

 

  (i)

the grant to any Transaction Party or any other person of any time, waiver, covenant not to sue or other indulgence;

 

Page 31


  (ii)

the release (including a release as part of any novation) or discharge of any Transaction Party or any other person;

 

  (iii)

the cessation of the obligations, in whole or in part, of any Transaction Party or any other person under any Finance Document or any other document or agreement;

 

  (iv)

the liquidation of any Transaction Party or any other person;

 

  (v)

any arrangement, composition or compromise entered into by the Secured Party, any Transaction Party or any other person;

 

  (vi)

any Finance Document or any other document or agreement being in whole or in part illegal, void, voidable avoided, unenforceable or otherwise of limited force or effect;

 

  (vii)

any extinguishment, failure, loss, release, discharge, abandonment, impairment, compounding, composition or compromise, in whole or in part of any Finance Document or any other document or agreement;

 

  (viii)

any Collateral Security being given to the Secured Party or any other person by any Transaction Party or any other person;

 

  (ix)

any alteration, amendment, variation, supplement, renewal or replacement of any Finance Document or any other document or agreement or any increase in the limit or maximum principal amount available under the Finance Documents;

 

  (x)

any moratorium or other suspension of any Power;

 

  (xi)

the Secured Party, Receiver or Attorney exercising or enforcing, delaying or refraining from exercising or enforcing, or being not entitled or unable to exercise or enforce any Power;

 

  (xii)

the Secured Party obtaining a judgment against any Transaction Party or any other person for the payment of any of the Secured Moneys;

 

  (xiii)

any transaction, agreement or arrangement that may take place with the Secured Party, any Transaction Party or any other person;

 

  (xiv)

any payment to the Secured Party, Receiver or Attorney, including any payment which at the payment date or at any time after the payment date is, in whole or in part, illegal, void, voidable, avoided or unenforceable;

 

  (xv)

any failure to give effective notice to any Transaction Party or any other person of any default under any Finance Document or any other document or agreement;

 

  (xvi)

any legal limitation, disability or incapacity of any Transaction Party or of any other person;

 

  (xvii)

any breach of any Finance Document or any other document or agreement;

 

  (xviii)

the acceptance of the repudiation of, or termination of, any Finance Document or any other document or agreement;

 

Page 32


  (xix)

any Secured Moneys being irrecoverable for any reason;

 

  (xx)

any disclaimer by any Transaction Party or any other person of any Finance Document or any other document or agreement;

 

  (xxi)

any assignment, novation, assumption or transfer of, or other dealing with, any Powers or any other rights or obligations under any Finance Document or any other document or agreement;

 

  (xxii)

the opening of a new account of any Transaction Party with the Secured Party or any transaction on or relating to the new account;

 

  (xxiii)

any prejudice (including material prejudice) to any person as a result of any thing done, or omitted by the Secured Party, any Transaction Party or any other person;

 

  (xxiv)

any prejudice (including material prejudice) to any person as a result of the Secured Party, Receiver, Attorney or any other person selling or realising any property the subject of a Collateral Security at less than the best price;

 

  (xxv)

any prejudice (including material prejudice) to any person as a result of any failure or neglect by the Secured Party, Receiver, Attorney or any other person to recover the Secured Moneys from any Transaction Party or by the realisation of any property the subject of a Collateral Security;

 

  (xxvi)

any prejudice (including material prejudice) to any person as a result of any other thing;

 

  (xxvii)

the receipt by the Secured Party of any dividend, distribution or other payment in respect of any liquidation;

 

  (xxviii)

the capacity in which a Transaction Party executed a Finance Document not being the capacity disclosed to the Secured Party before the execution of the Finance Document;

 

  (xxix)

the failure of any other Transaction Party or any other person who is intended to become a co-surety or co-indemnifier of that Transaction Party to execute any Finance Document or any other document; or

 

  (xxx)

any other act, omission, matter or thing whether negligent or not.

 

  (b)

Clause 12.3(a) applies irrespective of:

 

  (i)

the consent or knowledge or lack of consent or knowledge, of the Secured Party, any Transaction Party or any other person of any event described in clause 12.3(a) (and each Grantor irrevocably waives any duty on the part of the Secured Party to disclose such information); or

 

  (ii)

any rule of law or equity to the contrary.

 

12.4

No competition

 

  (a)

Until the Secured Moneys have been fully paid and the Security has been finally discharged under clause 3, no Grantor is entitled to:

 

  (i)

be subrogated to the Secured Party;

 

  (ii)

claim or receive the benefit of any Security Interest, Guarantee (including any Finance Document) or other document or agreement of which the Secured Party has the benefit or of any moneys held by the Secured Party or of any Power;

 

Page 33


  (iii)

either directly or indirectly prove in, claim or receive the benefit of any distribution, dividend or payment arising out of or relating to the liquidation of any Transaction Party except in accordance with clause 12.4(b);

 

  (iv)

make a claim or exercise or enforce any right, power or remedy (including under a Security Interest or Guarantee or by way of contribution) against any Transaction Party liable to pay the Secured Moneys or against any asset of any such Transaction Party, whether such right, power or remedy arises under or in connection with this deed, any other Finance Document or otherwise;

 

  (v)

accept, procure the grant of, or allow to exist any Security Interest in favour of that Grantor from any Transaction Party liable to pay the Secured Moneys;

 

  (vi)

exercise or attempt to exercise any right of set-off against, nor realise any Security Interest taken from, any Transaction Party liable to pay the Secured Moneys; or

 

  (vii)

raise any defence or counterclaim in reduction or discharge of its obligations under the Finance Documents.

 

  (b)

If required by the Secured Party, a Grantor must prove in any liquidation of a Transaction Party liable to pay the Secured Moneys for all moneys owed to that Grantor.

 

  (c)

All moneys recovered by any Grantor from any Transaction Party liable to pay the Secured Moneys from any liquidation or under any Security Interest or Guarantee (whether the Security Interest or Guarantee is a Finance Document or otherwise) must be received and held in trust by that Grantor for/paid to the Secured Party to the extent of the unsatisfied liability of that Grantor under the Finance Documents.

 

  (d)

No Grantor must do or seek, attempt or purport to do anything referred to in clause 12.4(c).

 

13.

General

 

13.1

General

Clauses [38] (Entire Agreement and Remedies), [41] (Invalidity), [42] (Assignment) and [48] (Counterparts) of the Dawson Option Deed are incorporated into this Deed as if set out in full with all necessary amendments, including that a reference to:

 

  (a)

“Buyer”, “Buyer Guarantor” and “Buyer Group member” is deemed to be a reference to the Secured Party; and

 

  (b)

“Peabody” and “Peabody Group member” is deemed to be a reference to a Grantor; and

 

  (c)

a reference to “this Agreement” is deemed to be a reference to this “deed”.

 

13.2

Confidential information

The Secured Party must not disclose to any person:

 

  (a)

this deed; or

 

Page 34


  (b)

any information about any Grantor,

except as permitted under the Finance Documents.

 

13.3

Performance by Secured Party of a Grantor’s obligations

If a Grantor defaults in fully and punctually performing any obligation contained or implied in any Finance Document and an Event of Default has occurred and is continuing, the Secured Party may, without prejudice to any Power, do all things necessary or desirable, in the opinion of the Secured Party, to make good or attempt to make good that default to the satisfaction of the Secured Party.

 

13.4

Grantor to bear cost

Any thing which must be done by a Grantor under this deed, whether or not at the request of the Secured Party, must be done at the cost of that Grantor.

 

13.5

Notices

Any notice or other communication including any request, demand, consent or approval, to or by a party to this deed must be given in accordance with the notice requirements of the Loan Note Deed.

 

13.6

Governing law and jurisdiction

 

  (a)

This deed is governed by the laws of Queensland.

 

  (b)

Without limiting clause 13.6(a), for the purposes of section 237 of the PPSA, the law of the Commonwealth of Australia as that law applies in the jurisdiction specified in clause 13.6(a) governs the Security to the extent it is permitted to apply to the Secured Property under that section.

 

  (c)

Each Grantor irrevocably submits to the non-exclusive jurisdiction of the courts of Queensland.

 

  (d)

Each Grantor irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.

 

  (e)

Each Grantor irrevocably waives any immunity in respect of its obligations under this deed that it may acquire from the jurisdiction of any court or any legal process for any reason including the service of notice, attachment before judgment, attachment in aid of execution or execution.

 

13.7

Waivers

 

  (a)

Waiver of any right arising from a breach of this deed or of any Power arising upon default under this deed or upon the occurrence of an Event of Default must be in writing and signed by the party granting the waiver.

 

  (b)

A failure or delay in exercise, or partial exercise, of:

 

  (i)

a right arising from a breach of this deed or the occurrence of an Event of Default or Enforcement Event (as applicable); or

 

  (ii)

a Power created or arising upon default under this deed or upon the occurrence of an Event of Default or Enforcement Event (as applicable),

does not result in a waiver of that right or Power.

 

Page 35


  (c)

A party is not entitled to rely on a delay in the exercise or non-exercise of a right or Power arising from a breach of this deed or on a default under this deed or on the occurrence of an Event of Default or Enforcement Event (as applicable) as constituting a waiver of that right or Power.

 

  (d)

A party may not rely on any conduct of another party as a defence to exercise of a right or Power by that other party.

 

  (e)

This clause may not itself be waived except by writing.

 

13.8

Variation

A variation of any term of this deed must be in writing and signed by the parties.

 

13.9

Cumulative rights

The Powers are cumulative and do not exclude any other right, power, authority, discretion or remedy of the Secured Party, Receiver or Attorney.

 

13.10

Attorneys

Each of the attorneys executing this deed states that the attorney has no notice of the revocation of the power of attorney appointing that attorney.

 

13.11

Language

To the extent required to be in compliance with the Law No. 24 of 2009 on National Flag, Language, Coat of Arms and National Anthem and Presidential Regulation No. 63 of 2019 on the Use of Indonesia Language, the parties agree that this Deed is executed in both the English language and Indonesian languages. For the avoidance of doubt, the existence of two languages of this Deed is not to be construed by any party as creating different rights and obligations, or duplication or multiplication of the rights and obligations, of the parties under any version of this Deed. The parties Deed that the English language version and the Indonesian language version of this Deed shall be equally authentic, and that in the event of any inconsistency or different interpretation between the Indonesian language version and the English version of this Deed, the English language version shall prevail.

 

Page 36


Signing page

Executed as a deed.

[Execution blocks to be inserted]


SCHEDULE 3

FORM OF SPECIFIC SECURITY DEED

 


 

Agreed Form

 

Specific Security and Featherweight Deed

[insert parties]

 

Jones Day

Riverside Centre, Level 31

123 Eagle Street

Brisbane QLD 4000, Australia

Tel: 61 7 3085 7000

Fax: 61 7 3085 7099

www.jonesday.com


Contents

 

1.  Definitions and interpretation      1  
 1.1   

Definitions

     1  
 1.2   

Interpretation

     4  
 1.3   

Interpretation of inclusive expressions

     6  
 1.4   

Business Day

     6  
 1.5   

Incorporated definitions from Loan Note Deed

     6  
 1.6   

PPSA definitions apply

     6  
 1.7   

Deed components

     6  
 1.8   

Inconsistency

     6  
 1.9   

Finance Document

     6  
2.  Grant of Security      7  
 2.1   

Security interest in Mortgaged Property

     7  
 2.2   

Security interest in Featherweight Property

     7  
 2.3   

Priority

     7  
 2.4   

Floating charge over property not subject to PPSA

     7  
 2.5   

Featherweight Property amount recoverable

     7  
 2.6   

Authorisation

     8  
 2.7   

Attachment

     8  
3.  Discharge of the Mortgage      8  
 3.1   

Discharge – Satisfaction Date

     8  
 3.2   

Final discharge

     8  
 3.3   

Discharge – power of sale under Dawson Option Deed

     8  
4.  Representations and Warranties      9  
 4.1   

Representations and warranties

     9  
 4.2   

Survival of representations and warranties

     9  
 4.3   

Reliance

     10  
5.  Undertakings of the Grantor      10  
 5.1   

Performance under the Finance Documents

     10  
 5.2   

Notices to the Secured Party

     10  
 5.3   

Dealing with Featherweight Property

     11  
 5.4   

No dealing with assets – Featherweight Property

     11  
 5.5   

No dealing with assets – Mortgaged Property

     11  
 5.6   

Title Documents for Certificated Securities

     11  
 5.7   

Undertakings in respect of Marketable Securities

     12  
 5.8   

Notification of change of details

     13  
 5.9   

Perfection, registration and protection of security

     13  
 5.10   

Registration on the PPSR

     14  
 5.11   

Controlled Account

     14  
 5.12   

Distributions

     15  
 5.13   

Term of undertakings

     15  

 

i


6.  Enforcement      15  
 6.1   

When enforceable

     15  
 6.2   

Enforcement of Featherweight Property

     16  
 6.3   

Assistance in realisation

     16  
 6.4   

Postponing or delaying realisation or enforcement

     16  
7.  Receiver      17  
 7.1   

Appointment of Receiver

     17  
 7.2   

Agency of Receiver

     17  
 7.3   

Powers of Receiver

     17  
 7.4   

Nature of Receiver’s Powers

     19  
 7.5   

Status of Receiver after commencement of winding up

     19  
 7.6   

Powers exercisable by the Secured Party

     19  
 7.7   

Set-off

     20  
 7.8   

Notice of exercise of rights

     20  
 7.9   

Termination of receivership and possession

     20  
8.  Application and Receipts of Money      20  
 8.1   

Order of application

     20  
 8.2   

Money actually received

     21  
 8.3   

Amounts contingently due

     21  
 8.4   

Notice of a Security Interest

     21  
 8.5   

Secured Party’s statement of indebtedness

     22  
 8.6   

Secured Party’s receipts

     22  
 8.7   

Conversion of currencies on application

     22  
 8.8   

Amounts payable on demand

     22  
9.  Power of Attorney      23  
 9.1   

Appointment of Attorney

     23  
 9.2   

Purposes of appointment

     23  
 9.3   

Exercise after Event of Default or Enforcement Event

     23  
 9.4   

Delegation and substitution

     24  
10.  Protection      24  
 10.1   

Protection of third parties

     24  
 10.2   

Protection of the Secured Party, Receiver and Attorney

     24  
11.  Saving Provisions      24  
 11.1   

Statutory powers

     24  
 11.2   

No notice required unless mandatory

     24  
 11.3   

Continuing security

     25  
 11.4   

No merger of security

     25  
 11.5   

Exclusion of moratorium

     25  
 11.6   

Exclusion of PPSA provisions

     26  
 11.7   

Conflict

     26  
 11.8   

Consent of Secured Party

     26  
 11.9   

Completion of blank securities

     26  

 

ii


 11.10   

Principal obligations

     26  
 11.11   

No obligation to marshal

     27  
 11.12   

Non-avoidance

     27  
 11.13   

Increase in financial accommodation

     27  
12.  Third Party Provisions      27  
 12.1   

Suspense account

     27  
 12.2   

Independent obligations

     28  
 12.3   

Unconditional nature of obligations

     28  
 12.4   

No competition

     30  
13.  General      31  
 13.1   

General

     31  
 13.2   

Confidential information

     31  
 13.3   

Performance by Secured Party of the Grantor’s obligations

     31  
 13.4   

Grantor to bear cost

     31  
 13.5   

Notices

     31  
 13.6   

Governing law and jurisdiction

     31  
 13.7   

Waivers

     32  
 13.8   

Variation

     32  
 13.9   

Cumulative rights

     32  
 13.10   

Attorneys

     32  
Signing page      34  

 

iii


Specific Security and Featherweight Deed

 

Date

     [#] 2024

 

 

 

Parties

    

Grantor

     [Anglo American Steelmaking Coal Assets Eastern Australia Limited (ACN 009 727 851) / Anglo American Steelmaking Coal Assets Pty Ltd (ACN 081 022 246)]

Secured Party

     [insert BUMA buyer]

 

 

It is agreed as follows:

 

1.

Definitions and interpretation

 

1.1

Definitions

Subject to clause 1.5, in this deed:

“Additional Rights” means all present and future rights and property interests attaching to or arising out of or otherwise in respect of the holding of an interest in the Shares including:

 

  (a)

any Distributions paid or payable, any bonus shares or other Marketable Securities issued, and any rights to take up Marketable Securities, in respect of the Shares;

 

  (b)

any proceeds of, or from the disposal of or other dealing with, any Shares;

 

  (c)

any rights or Marketable Securities resulting from the conversion, consolidation, subdivision, redemption, cancellation, reclassification or forfeiture of any Share;

 

  (d)

any in specie distribution in respect of any Shares; and

 

  (e)

rights consequent upon a reduction of capital, buy-back, liquidation or scheme or arrangement,

and any present or future rights and property interests attaching to or arising out of or otherwise in respect of any interest in any of the property specified in items (a) to (e) inclusive of this definition.

Administration Enforcement Event” means the appointment of an administrator to the Grantor pursuant to section 436A, 436B or 436C of the Corporations Act.

Attorney” means an attorney appointed under this deed.

 

Page 1


Certificated Security” means a Marketable Security title to which is evidenced by a Title Document.

Collateral Security” means any present or future Security Interest, Guarantee or other document or agreement created or entered into by a Transaction Party or any other person as security for, or to credit enhance, the payment of any of the Secured Moneys.

Company” means [Anglo Coal (Dawson South) Pty Ltd (ACN 008 713 791) / each of Anglo Coal (Theodore South) Pty Limited (ACN 081 022 353) and Anglo Coal (Dawson) Holdings Pty Limited (ACN 100 197 699)].

Controlled Account” means a bank account opened by the Grantor in accordance with clause 5.11.

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

Debt” means all monetary obligations and all other financial indebtedness now or in the future actually or contingently owing by each Company to the Grantor, including all documents and agreements creating, relating to or evidencing any of those obligations, and all rights and remedies relating to them.

Decision Period” means in respect of this Security and the Grantor, has the meaning in section 9 of the Corporations Act.

Designated Bank” means the bank with which the Controlled Account is maintained.

Distribution” means any money owing now or in the future in respect of the Mortgaged Property and includes a cash dividend, charge, interest, or payment or other monetary distribution whether of an income or capital nature.

Dollars, A$ and $” means the lawful currency of the Commonwealth of Australia.

Enforcement Event” means:

 

  (a)

an Administration Enforcement Event; or

 

  (b)

whilst an Event of Default is continuing, an event or reason described in section 415D(1), 434J(1) or 451 E(1) of the Corporations Act in respect of the Grantor.

Featherweight Property” means all the Grantor’s present and after-acquired property excluding the Mortgaged Property. It includes anything in respect of which the Grantor has at any time sufficient right, interest or power to grant a Security Interest.

Featherweight Security” means the security created or expressed to be created by this deed in respect of the Featherweight Property.

Fixed Amount” means at any time, the lesser of:

 

  (a)

$1,000; and

 

  (b)

the amount of the Secured Moneys at that time.

Future Shares” means, in respect of the Grantor, the Grantor’s right, title and interest in any shares, stock, stock units, interests in a managed investment scheme or other securities issued by the Company which, after the date of this deed, become owned beneficially by the Grantor or by anyone (including a trustee, nominee, broker or agent) for the Grantor.

Guarantee” means any guarantee, suretyship, letter of credit, letter of comfort or any other obligation:

 

Page 2


  (a)

to provide funds (whether by the advance or payment of money, the purchase of or subscription for shares or units in a trust or other securities, the purchase of assets or services, or otherwise) for the payment or discharge of;

 

  (b)

to indemnify any person against the consequences of default in the payment of; or

 

  (c)

to be responsible for,

any debt or monetary liability or obligation (whether or not it involves the payment of money) of another person or the assumption of any responsibility or obligation in respect of the insolvency or the financial condition of any other person.

Loan Note Deed” means the deed entered into on or about the date of this deed entitled “Dawson Loan Note Deed” between Peabody SMC Pty Ltd (ACN 682 277 587) as the issuer and the Secured Party as the subscriber.

Marketable Securities” means:

 

  (a)

marketable securities as defined in section 9 of the Corporations Act;

 

  (b)

any option or right in respect of an unissued share;

 

  (c)

any convertible note; and

 

  (d)

any instrument or security which is a combination of any of the above.

Mortgage” means the security created or expressed to be created by this deed in respect of the Mortgaged Property.

Mortgaged Property” means all of the Grantor’s present and future interest in:

 

  (a)

the Debt;

 

  (b)

the Shares;

 

  (c)

the Additional Rights; and

 

  (d)

the Controlled Account and any chose in action in respect of the Controlled Account.

Permitted Security” any Security Interest which is permitted to subsist over property of the Grantor under the Finance Documents, including each “Permitted Encumbrance” (as defined in the Dawson Option Deed).

Power” means any right, power, authority, discretion or remedy conferred on the Secured Party, a Receiver or an Attorney by any Finance Document or any applicable law.

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

Present Shares” means any shares in each Company registered in the name of the Grantor.

Receiver” means a receiver or receiver and manager appointed under this deed.

Related Corporation” means a related body corporate as defined in section 9 of the Corporations Act.

Relevant Corporation” means each Company and any corporation, body corporate or other entity whose Marketable Securities form part of the Mortgaged Property.

 

Page 3


Satisfaction Date” means the date that the Secured Moneys have been paid in full and the Grantor and each other Transaction Party has fully observed and performed its respective obligations under this deed and each other Finance Document.

Secured Moneys” means all money which the Issuer (whether alone or not) is or at any time may become actually or contingently liable to pay to or for the account of the Secured Party (whether alone or not) for any reason whatever under or in connection with a Finance Document (as amended, novated, supplemented, extended, replaced or restated) whether or not currently contemplated).

It includes money by way of principal, interest, fees, costs, indemnities, charges, duties or expenses or payment of liquidated or unliquidated damages under or in connection with a Finance Document, or as a result of a breach of or default under or in connection with a Finance Document.

Where the Issuer would have been liable but for its deregistration, or a compromise, deed of arrangement, amalgamation, administration, reconstruction, winding up, dissolution, assignment for the benefit of creditors, arrangement or compromise with creditors or bankruptcy or a set-off claimed by it, it will be taken still to be liable.

Secured Property” means the Mortgaged Property and the Featherweight Property.

Security” means the Mortgage and the Featherweight Security.

Security Interest” means a mortgage, charge, pledge, lien or other security interest securing any obligation of any person or any other agreement, notice or arrangement having a similar effect, including any “security interest” as defined in sections 12(1) or (2) of the PPSA.

Shares” means the Present Shares and the Future Shares.

Title Document” means any original, duplicate or counterpart certificate or document evidencing title or ownership of an asset including any contract note, entitlement notice, marked transfer or share certificate.

Transaction Party” means the Issuer, the Grantor, any Limited Security Provider and Guarantor, now or in the future.

 

1.2

Interpretation

In this deed:

 

  (a)

Headings and bold type are for convenience only and do not affect the interpretation of this deed.

 

  (b)

The singular includes the plural and the plural includes the singular.

 

  (c)

Words of any gender include all genders.

 

  (d)

Other parts of speech and grammatical forms of a word or phrase defined in this deed have a corresponding meaning.

 

  (e)

An expression importing a person or entity includes any body corporate, partnership, trust, joint venture or other association, or any Governmental Agency as well as an individual.

 

  (f)

A reference to any thing (including any right) includes a part of that thing but nothing in this clause 1.2(f) implies that performance of part of an obligation constitutes performance of the obligation.

 

Page 4


  (g)

A reference to a clause, party, schedule, attachment or exhibit is a reference to a clause of, and a party, schedule, attachment or exhibit to, this deed.

 

  (h)

A reference to any legislation includes all delegated legislation made under it and amendments, consolidations, replacements or re-enactments of any of them.

 

  (i)

A reference to a document includes all amendments or supplements to, or replacements or novations of, that document.

 

  (j)

A reference to a party to a document includes that party’s successors and permitted assignees.

 

  (k)

A promise on the part of 2 or more persons binds them jointly and severally.

 

  (l)

A reference to an agreement other than this deed includes a deed and any legally enforceable undertaking, agreement, arrangement or understanding, whether or not in writing.

 

  (m)

A reference to property or an asset includes any real or personal, present or future, tangible or intangible property, asset or undertaking and any right, benefit, interest or revenue in, under or derived from the property or asset.

 

  (n)

A reference to liquidation or insolvency includes appointment of an administrator, compromise, arrangement, merger, amalgamation, reconstruction, winding-up, dissolution, deregistration, assignment for the benefit of creditors, scheme, composition or arrangement with creditors, insolvency, bankruptcy, or any similar procedure or, where applicable, changes in the constitution of any partnership or person, or death.

 

  (o)

A reference to a document includes any agreement in writing, or any certificate, notice, deed, instrument or other document of any kind.

 

  (p)

No provision of this deed will be construed adversely to a party because that party was responsible for the preparation of this deed or that provision.

 

  (q)

A reference to a body, other than a party to this deed (including, an institute, association or authority), whether statutory or not:

 

  (i)

which ceases to exist; or

 

  (ii)

whose powers or functions are transferred to another body,

is a reference to the body which replaces it or which substantially succeeds to its powers or functions.

 

  (r)

References to time are to Brisbane, Queensland time.

 

  (s)

Where this deed confers any power or authority on a person that power or authority may be exercised by that person acting personally or through an agent or attorney.

 

  (t)

A reference to drawing, accepting, endorsing or other dealing with a bill refers to drawing, accepting, endorsing or dealing within the meaning of the Bills of Exchange Act 1909 (Cth).

 

  (u)

An Event of Default or Default is “continuing” if it has occurred and is continuing under the terms of the Finance Document which sets out the Event of Default or Default. If the Finance Document does not specify when an Event of Default or Default is continuing, it is “continuing” if it has not been remedied to the satisfaction of the Secured Party or waived in writing by the Secured Party under the Finance Document.

 

Page 5


1.3

Interpretation of inclusive expressions

Specifying anything in this deed after the words ‘includes’ or ‘for example’ or similar expressions does not limit what else is included unless there is express wording to the contrary.

 

1.4

Business Day

Where the day on or by which any thing is to be done is not a Business Day, that thing must be done on or by the next Business Day.

 

1.5

Incorporated definitions from Loan Note Deed

A word or phrase (other than one defined in clause 1.1) defined in the Loan Note Deed (including by incorporation) has the same meaning in this deed unless that term or expression is defined in this deed or the context otherwise indicates.

 

1.6

PPSA definitions apply

Unless the context requires otherwise, the following words used in this deed have the same meanings given to the PPSA or the PPS Regulations:

 

  (a)

account;

 

  (b)

advance;

 

  (c)

attach;

 

  (d)

after-acquired property;

 

  (e)

chattel paper;

 

  (f)

financing statement;

 

  (g)

financing change statement;

 

  (h)

perfected;

 

  (i)

personal property; and

 

  (j)

verification statement.

 

1.7

Deed components

This deed includes any schedule.

 

1.8

Inconsistency

If there is any inconsistency between this deed and the Loan Note Deed, the Loan Note Deed prevails to the extent of that inconsistency.

 

1.9

Finance Document

This deed is a Finance Document for the purposes of the Loan Note Deed.

 

Page 6


2.

Grant of Security

 

2.1

Security interest in Mortgaged Property

 

  (a)

The Grantor as beneficial owner grants a security interest in the Mortgaged Property to the Secured Party to secure payment of the Secured Moneys.

 

  (b)

Without limiting clause 2.1(a), the security interest created under clause 2.1(a) is:

 

  (i)

a transfer by way of security of all Mortgaged Property consisting of the Debts; and

 

  (ii)

to the extent that any Mortgaged Property does not consist of the Debts, a mortgage.

 

  (c)

To the extent any Debts are not transferred under clause 2.1(b)(i), the security interest is a fixed charge.

 

2.2

Security interest in Featherweight Property

 

  (a)

The Grantor as beneficial owner also grants a security interest in the Featherweight Property to the Secured Party to secure payment of the Secured Moneys.

 

  (b)

This security interest is a charge. If for any reason it is necessary to determine the nature of this charge, it is a floating charge over the Featherweight Property.

 

2.3

Priority

 

  (a)

In respect of the Mortgaged Property:

 

  (i)

the parties intend that the Mortgage take priority over all other Security Interests and other interests in the Mortgaged Property at any time other than any Security Interest mandatorily preferred by law; and

 

  (ii)

nothing in this deed will be construed as an agreement by the Secured Party to subordinate the Mortgage to any other Security Interest or interest affecting the Mortgaged Property at any time.

 

  (b)

In respect of the Featherweight Property, the Secured Party acknowledges that the Security of the Grantor in respect of the Featherweight Property ranks behind all other Permitted Securities of the Grantor in respect of the Featherweight Property.

 

2.4

Floating charge over property not subject to PPSA

 

  (a)

The Security is a floating charge over each item of Featherweight Property which is not personal property subject to a security interest to which the PPSA applies.

 

  (b)

The floating charge immediately crystallises and becomes fixed in relation to all property subject to it on the occurrence of an Enforcement Event.

 

2.5

Featherweight Property amount recoverable

 

  (a)

Notwithstanding any other provision of this deed, the amount recoverable under the Security in respect of the Featherweight Property is limited to the Fixed Amount.

 

  (b)

Clause 2.5(a) in no way affects or limits the actual amount of the Secured Moneys.

 

Page 7


2.6

Authorisation

The Grantor must ensure that it obtains all Authorisations necessary to permit the grant of the Security in respect of any asset before it acquires any rights in that asset.

 

2.7

Attachment

Each Security Interest granted under this deed attaches to the relevant Secured Property in accordance with the PPSA and the parties to this deed confirm that they have not agreed that any Security Interest granted under this deed attaches at any later time.

 

3.

Discharge of the Mortgage

 

3.1

Discharge – Satisfaction Date

Subject to clause 3.2, at the written request of the Grantor, the Secured Party must promptly discharge the Security following the Satisfaction Date.

 

3.2

Final discharge

 

  (a)

The Secured Party is not obliged to discharge the Security under clause 3.1 if, at the time the requirements of clause 3.1 are satisfied, the Secured Party is of the opinion that:

 

  (i)

the Grantor or any other Transaction Party owes further Secured Moneys contingently or otherwise to the Secured Party; or

 

  (ii)

the Grantor or any other Transaction Party will owe further Secured Moneys to the Secured Party within a reasonable time after the date the Secured Moneys have been paid in full.

 

  (b)

Clause 3.2(a) overrides any other clause to the contrary in this deed.

 

  (c)

The parties intend that clause 3.2(a)(ii) be severed from clause 3.2(a) if clause 3.2(a)(ii) is void or unenforceable under applicable law.

 

  (d)

The parties do not intend clause 3.2(c) to exclude the general law of severance from applying to this deed.

 

3.3

Discharge – power of sale under Dawson Option Deed

At the written request of the Grantor, if the Grantor or a Peabody Group Member has exercised its rights under clause [12] (Power of Sale) of the Dawson Option Deed (Power of Sale Rights) the Secured Party must, on completion of the disposal of the relevant Participating Interest:

 

  (a)

promptly discharge the Security;

 

  (b)

execute and deliver or enter into any release of the Security; and

 

  (c)

enter into any consent to dealing,

in each case, that the Grantor in its discretion (acting reasonably) considers necessary or desirable for the Grantor or a Peabody Group Member (as applicable) to exercise its Power of Sale Rights.

 

Page 8


4.

Representations and Warranties

 

4.1

Representations and warranties

The Grantor represents and warrants to and for the benefit of the Secured Party that:

 

  (a)

representations true: each of its representations and warranties contained in the Finance Documents is correct and not misleading when made or repeated;

 

  (b)

legal and beneficial owner:

 

  (i)

it is the legal and beneficial owner of the Secured Property; and

 

  (ii)

on it acquiring any property forming part of the Secured Property, it will be the legal and beneficial owner of that property;

 

  (c)

no other interests:

 

  (i)

there is no Security Interest over any of the Mortgaged Property other than a Security Interest created by a Finance Document;

 

  (ii)

no person other than the Secured Party holds or has the benefit of a Security Interest or other interest in the Mortgaged Property; and

 

  (iii)

there is no agreement, filing or registration that would enable another person to obtain a priority over the Security which is inconsistent with the priority contemplated by this Security;

 

  (d)

Security:

 

  (i)

this deed creates the Security Interest purported to be created by it over the assets purported to be encumbered by it;

 

  (ii)

the Security has been or, in the case of after-acquired property subject to the Security on its acquisition, will be perfected; and

 

  (iii)

the Security has the priority contemplated by this deed;

 

  (e)

securities fully paid: all Marketable Securities forming part of the Mortgaged Property are, or upon acquisition will be, fully paid;

 

  (f)

registers: the share register and any branch register for each Relevant Corporation:

 

  (i)

is located in Australia on the date of this deed; and

 

  (ii)

will be located in Australia on the date on which the security interest created under this deed attaches to the Mortgaged Property;

 

  (g)

no further securities: the equity capital in each Relevant Corporation is fully represented by the Title Documents delivered to the Secured Party pursuant to clause 5.5 (Title Documents for Certificated Securities) and there is no agreement, arrangement or understanding under which further Marketable Securities with rights of conversion to shares in any Relevant Corporation may be issued to any person.

 

4.2

Survival of representations and warranties

The representations and warranties in clause 4.1:

 

  (a)

are made on the date of this deed;

 

Page 9


  (b)

survive the execution of this deed and the other Finance Documents and the provision of financial accommodation under them; and

 

  (c)

are repeated on each day on which:

 

  (i)

the representations and warranties in the Loan Note Deed are repeated; and

 

  (ii)

the Grantor acquires, or has an interest, in any Mortgaged Property,

in each case, on the basis of the facts and circumstances then subsisting.

 

4.3

Reliance

 

  (a)

The Grantor acknowledges that it has not entered into this deed or any other Finance Document in reliance on any representation, warranty, promise or statement made by or on behalf of the Secured Party or of any person on behalf of the Secured Party.

 

  (b)

The Grantor acknowledges that the Secured Party has entered into this deed and each other Finance Document in reliance on the representations and warranties given by the Grantor under this deed.

 

5.

Undertakings of the Grantor

 

5.1

Performance under the Finance Documents

 

  (a)

The Grantor must fully and punctually perform its obligations under each Finance Document.

 

  (b)

Without limiting clause 5.1(a), the Grantor must pay the Secured Moneys to the Secured Party in accordance with this deed, each other Finance Document and each other obligation under which the Secured Moneys are payable, provided that:

 

  (i)

the Grantor’s liability to pay any amount under the Finance Documents and the maximum amount the Secured Party can recover from the Grantor is limited to and may only be discharged from amounts recovered from enforcement of this deed with respect to the Mortgaged Property; and

 

  (ii)

the Secured Party may not seek to recover any shortfall in the Secured Money or amounts owing to the Secured Party by bringing proceedings against the Grantor or otherwise claim against the Grantor or any of the Grantor’s assets not comprising of the Mortgaged Property (and the Secured Party irrevocably waives any such right or claim).

 

  (c)

The Grantor must ensure that no Event of Default occurs. Without affecting the liability of the Grantor or the Powers in any other respect (including where a breach of this clause 5.1(c) is also a breach of another provision of a Finance Document), the Grantor is not liable in damages for breach of this clause 5.1(c) but the Secured Party may exercise its Powers consequent upon or following that Event of Default (which is continuing).

 

5.2

Notices to the Secured Party

In addition to its obligations in any other Finance Document, the Grantor must notify the Secured Party as soon as the Grantor becomes aware of any data contained in a registration under the PPSA with respect to the Security being or becoming incorrect, provided that the Grantor will be deemed to have provided notice to the Secured Party under this clause 5.2 if such information has been provided by the Grantor under another Finance Document.

 

Page 10


5.3

Dealing with Featherweight Property

 

  (a)

Subject to clause 5.4, the Grantor may:

 

  (i)

dispose, or part with possession, of all or any part of the Featherweight Property; or

 

  (ii)

create or allow another interest or Security Interest over or in respect of all or any part of the Featherweight Property.

 

  (b)

If the Grantor creates or allows to exist an interest of Security Interest over or in respect of all or any part of the Featherweight Property at any time while the Grantor has the right to deal with the Featherweight Property under clause 5.3(a), that Security Interest will rank ahead of the Featherweight Security but must not be on terms that restrict or limit in any way the Secured Party, a Receiver or an Attorney from enforcing during or after the Decision Period for this Featherweight Security or any other Collateral Security granted by the Grantor.

 

5.4

No dealing with assets - Featherweight Property

 

  (a)

Any right of the Grantor under clause 5.3 or otherwise to deal for any purpose with any asset which forms part of the Featherweight Property, other than by or through a Receiver appointed under this deed, immediately ceases on the occurrence of an Enforcement Event.

 

  (b)

At any time after the Grantor’s right to deal with the Featherweight Property under clause 5.3 has ceased in accordance with clause 5.4(a), the Grantor must not:

 

  (i)

dispose, or part with possession, of all or any part of the Featherweight Property; or

 

  (ii)

create or allow another interest or Security Interest over or in respect of all or any part of the Featherweight Property,

except with the Secured Party’s prior written consent.

 

5.5

No dealing with assets - Mortgaged Property

 

  (a)

The Grantor must not do, or agree to do, any of the following without the prior written consent of the Secured Party, unless it is permitted to do so under the Finance Documents or the Dawson Option Deed:

 

  (i)

create or allow another interest (including any Security Interest) in any of its Mortgaged Property; or

 

  (ii)

sell, assign, transfer, dispose, or otherwise part with possession, of any of its Mortgaged Property.

 

  (b)

The Grantor agrees to do everything necessary to ensure that a third person cannot acquire an interest in any Mortgaged Property free of, or having priority over, the Security Interests granted under this deed, except as permitted under the Finance Documents or the Dawson Option Deed.

 

5.6

Title Documents for Certificated Securities

 

  (a)

The Grantor must deposit with the Secured Party, or as the Secured Party directs, all the Title Documents in respect of any of the Mortgaged Property which has a Certificated Security, together with transfers in a form and of substance acceptable to the Secured Party, of such Mortgaged Property executed by the Grantor with the

 

Page 11


  name of the transferee, the consideration and the date of transfer and execution left blank:

 

  (i)

in respect of Mortgaged Property existing as at the date of this deed , immediately on the Grantor’s execution of this deed; and

 

  (ii)

following the acquisition of any asset which forms part of the Mortgaged Property, as soon as practicable and in any event within five Business Days of the date of such acquisition.

 

  (b)

Subject to clause 5.6(c), the Secured Party may retain the Title Documents and transfers deposited with the Secured Party until this Mortgage is discharged under clause 3.

 

  (c)

If the Mortgage is enforced by the Secured Party, the Secured Party, a Receiver or Attorney is entitled:

 

  (i)

to deal with the Title Documents and to complete any transfers as if it was the absolute and unencumbered owner of the Mortgaged Property to which the Title Documents relate; and

 

  (ii)

in exercising a power of sale, to deliver any Title Document or transfers to a purchaser of the Mortgaged Property to which it relates.

 

  (d)

While Title Documents for Mortgaged Property are, or in accordance with this deed, should be lodged with the Secured Party, the Grantor must not elect to convert evidence of the Mortgaged Property from certificates to an uncertificated mode for the purposes of any automated transfer system operated by ASX Limited or for any other purpose.

 

  (e)

If the Grantor makes any election referred to in clause 5.6(d), the Secured Party may treat it as having no effect.

 

  (f)

The Grantor must ensure that the share register and any branch register for each Relevant Corporation is located in Australia.

 

5.7

Undertakings in respect of Marketable Securities

 

  (a)

Unless it is otherwise permitted to do so under the Finance Documents or the Dawson Option Deed, the Grantor must not do or omit to do anything which might render any Mortgaged Property or any Title Document in respect of any Mortgaged Property liable to forfeiture, cancellation, avoidance or loss or might otherwise materially affect the value of the Mortgaged Property or the interest of the Secured Party.

 

  (b)

The Grantor must ensure that the terms of the constituent documents of any Company forming part of the Mortgaged Property do not restrict the transfer of any Security on enforcement of the Security Interests granted under this deed or give the directors of any Company any discretion in relation to the registration of any such transfer in the share register of the Company.

 

  (c)

Subject to clause 5.7(e), the Grantor may receive all Distributions and exercise all voting powers in respect of the Mortgaged Property without the need for any consent or direction from the Secured Party, and the Secured Party must not exercise any voting power in respect of that Mortgaged Property without the Grantor’s consent.

 

  (d)

Unless it is otherwise permitted to do so under the Finance Documents or the Dawson Option Deed, the Grantor must not exercise any voting powers under paragraph (c) in respect of any Mortgaged Property in a way which is reasonably likely to adversely affect the value of the Mortgaged Property or the interests of the Secured Party.

 

Page 12


  (e)

Following the occurrence of an Event of Default which is continuing, upon written notice from the Secured Party, the rights of a Grantor under paragraph (c) cease and the Secured Party, a Receiver or Attorney (as applicable) is entitled to receive all Distributions and exercise all voting powers in respect of the Mortgaged Property to the exclusion of the Grantor. The Secured Party, a Receiver or Attorney (as applicable) is entitled to exercise its rights in respect of the Mortgaged Property in its absolute discretion and is not responsible for any loss as a result of any failure to act or any delay in so acting.

 

5.8

Notification of change of details

The Grantor must notify the Secured Party in writing:

 

  (a)

at least 14 days before it changes its name, ACN or ABN, or if it becomes a trustee of a trust or a partner in a partnership; and

 

  (b)

promptly, if:

 

  (i)

any ABN, ARBN or ARSN is allocated to it; or

 

  (ii)

any ABN, ARBN or ARSN is allocated, or otherwise starts to apply, to it, a trust of which it is a trustee or partnership of which it is a partner.

 

5.9

Perfection, registration and protection of security

 

  (a)

The Grantor must, on request by the Secured Party, assist the Secured Party with:

 

  (i)

ensuring that:

 

  (A)

the Security is perfected in relation to all the Secured Property in all jurisdictions; and

 

  (B)

this deed and the Security are registered and filed in all registers in all jurisdictions in which it must be perfected, registered and filed, to ensure its enforceability, validity, perfection and priority against all persons and to be effective as a security; and

 

  (ii)

aiding the exercise of any Power,

with such assistance including (without limitation) doing the following at its own cost:

 

  (iii)

doing anything to make, procure, facilitate or obtain any Authorisation (including registration) in respect of anything;

 

  (iv)

creating, procuring or executing any document, including any notice, consent or agreement, or legal or statutory mortgage or transfer;

 

  (v)

delivering documents or evidence of title or chattel paper and executing and delivering blank transfers;

 

  (vi)

delivering possession of any Mortgaged Property to the Secured Party;

 

  (vii)

enabling the Secured Party to have possession or control of any Mortgaged Property for the purposes of the PPSA;

 

Page 13


  (viii)

registering or consenting to the registration on any applicable register, including by way of a financing statement or a financing change statement on the PPSR, in respect of a Security Interest created under this deed;

 

  (ix)

providing any details necessary to enable the registrations in paragraph (viii) to be made;

 

  (x)

enabling the Secured Party to register the power of attorney under clause 10; or

 

  (xi)

doing anything to show whether the Grantor is complying with this deed.

 

  (b)

Whenever the Secured Party directs that the Security be perfected in a particular way in relation to any part of the Secured Property, the Grantor must ensure that the Security is perfected in that way.

 

  (c)

The Grantor will not be in breach of its obligation under this clause 5.8 and its representation and warranty under clause 4.1(d)(ii) will not be incorrect or misleading if the Secured Party fails to take any action which can only be taken by the Secured Party to enable the Security to be perfected as required under this clause 5.8, after written request from the Grantor to take that action.

 

  (d)

Whenever any part of the Secured Property is transferred to or retained in a place where this deed or the Security, because of an increase in the Secured Moneys or otherwise, bears insufficient stamp duty or is not registered or recorded, or for any other reason is of limited or of no force or effect, unenforceable, inadmissible in evidence or of reduced priority, the Grantor must within 14 days after it becomes aware of such requirement to do so ensure that:

 

  (i)

this deed is stamped to the satisfaction of the Secured Party;

 

  (ii)

this deed is in full force and effect, enforceable, perfected, admissible in evidence and not of reduced priority; and

 

  (iii)

this deed and the Security are registered in that place, or that part of the Secured Property is removed from that place.

 

5.10

Registration on the PPSR

The Grantor consents to the Secured Party effecting a registration on the PPSR (in any manner the Secured Party considers appropriate, or giving any notification, in relation to any Security Interest granted under or in connection with this document. The Grantor agrees not to make any amendment demand.

 

5.11

Controlled Account

 

  (a)

If an Event of Default occurs which is continuing, the Secured Party may require the Grantor to open and maintain a bank account at a bank and branch approved by the Secured Party on terms that:

 

  (i)

nominated Authorised Officers of the Secured Party must be signatories to the Controlled Account;

 

  (ii)

no withdrawals can be made from the Controlled Account without the signature of one of those Authorised Officers;

 

  (iii)

funds may be disposed of from the Controlled Account at the direction of the Secured Party without further consent by the Grantor; and

 

Page 14


  (iv)

depositing an amount in the Controlled Account will not result in any person coming under a present liability (within the meaning of section 341(3)(d) of the PPSA) to pay:

 

  (A)

the Grantor; or

 

  (B)

a Related Corporation of the Grantor.

 

  (b)

If the Secured Party is not the Designated Bank, the Grantor must cause the Designated Bank to enter into an agreement between the Designated Bank, the Grantor and the Secured Party in form and substance satisfactory to the Secured Party in which the Designated Bank agrees that:

 

  (i)

it will comply with and give effect to the terms set out in clause 5.11(a);

 

  (ii)

it has no Security Interest or other interest in the Controlled Account and it waives all rights of set-off and combination in respect of the Controlled Account; and

 

  (iii)

if despite clause 5.11(b)(ii) it has any Security Interest or other interest in the Controlled Account, that Security Interest or other interest is subordinated in right and priority of payment to the Secured Party’s Security Interest or other interest and will not be exercised without the Secured Party’s consent; and

 

  (iv)

it agrees that the laws specified in clause 13.6(b) will govern the Secured Party’s security interest in the Controlled Account.

 

5.12

Distributions

 

  (a)

Subject to the terms of the Loan Note Deed and the Dawson Option Deed, if an Event of Default occurs and is continuing, the Grantor must deposit, or cause to be deposited, all Distributions in the Controlled Account.

 

  (b)

The Grantor must give all notices and directions and execute all necessary documents as requested by the Secured Party to ensure clause 5.12(a) is complied with.

 

  (c)

A Power created under this clause 5.12 is not waived by any failure or delay in exercise, or by the partial exercise, of that Power.

 

5.13

Term of undertakings

Each of the Grantor’s undertakings in this clause 5 continue in full force and effect from the date of this deed until the Security in respect of all the Secured Property is discharged under clause 3.

 

6.

Enforcement

 

6.1

When enforceable

 

  (a)

If an Event of Default occurs and is continuing:

 

  (i)

the Mortgage and each Collateral Security are immediately enforceable without the need for any demand or notice to be given to the Grantor or any other person;

 

  (ii)

the Secured Moneys are immediately due and payable without the need for any demand or notice to be given to the Grantor or any other person other than a notice expressly required by a Finance Document; and

 

Page 15


  (iii)

the right of the Grantor to deal, for any purpose, with any of the Mortgaged Property, other than by or through a Receiver appointed under this deed, immediately ceases without the need for any demand or notice to be given to the Grantor or any other person.

 

  (b)

The Secured Party agrees that it will not exercise any Power to enforce the Mortgage under Chapter 4 of the PPSA until an Event of Default occurs (and only for so long as it is continuing).

 

6.2

Enforcement of Featherweight Property

 

  (a)

The Secured Party may only enforce the Security in respect of the Featherweight Property by exercising any of its Powers under clauses 5.4, 7 and 9 only:

 

  (i)

if an Enforcement Event occurs; and

 

  (ii)

in conjunction with the enforcement of its rights under the Security in respect of the Mortgaged Property of the Grantor and any other Collateral Security granted by the Secured Party.

 

  (b)

Clause 6.2(a) does not in any way limit or restrict the ability of the Secured Party to exercise any of its Powers under any other Finance Document in relation to all or any part of the Mortgaged Property.

 

  (c)

The parties acknowledge and agree that any enforcement action taken by the Secured Party in accordance with clause 6.2(a) in respect of all the Featherweight Property constitutes an enforcement of the Security in respect of the Featherweight Property for the purposes of section 441A and the definition of ‘enforce’ in section 9 of the Corporations Act.

 

6.3

Assistance in realisation

After the Security:

 

  (a)

in respect of the Mortgaged Property, has become enforceable under clause 6.1; or

 

  (b)

in respect of the Featherweight Property, has become enforceable under clause 6.2,

the Grantor must take all action required by the Secured Party, Receiver or Attorney to assist any of them to realise the Mortgaged Property or Featherweight Property (as applicable) and exercise any Power including:

 

  (c)

executing all transfers, conveyances, assignments and assurances of any of the Mortgaged Property or Featherweight Property (as applicable);

 

  (d)

doing anything necessary or desirable under the law in force in any place where the Mortgaged Property or Featherweight Property (as applicable) is situated; and

 

  (e)

giving all notices, orders, directions and consents which the Secured Party, Receiver or Attorney thinks expedient.

 

6.4

Postponing or delaying realisation or enforcement

The Secured Party, a Receiver or Attorney may postpone or delay the exercise of any Power for such period as the Secured Party, Receiver or Attorney may in its absolute discretion decide.

 

Page 16


7.

Receiver

 

7.1

Appointment of Receiver

If:

 

  (a)

an Event of Default occurs and is continuing; or

 

  (b)

an Enforcement Event occurs,

the Secured Party may:

 

  (c)

appoint any person or any 2 or more persons jointly, or severally, or jointly and severally to be a receiver or a receiver and manager of:

 

  (i)

in the case of an Event of Default, the Mortgaged Property;

 

  (ii)

in the case of an Enforcement Event, all of the Mortgaged Property and the Featherweight Property;

 

  (d)

remove any Receiver and on the removal, retirement or death of any Receiver, appoint another Receiver; and

 

  (e)

fix the remuneration and direct payment of that remuneration and any costs, charges and expenses of the Receiver out of the proceeds of any realisation of the Mortgaged Property or the Featherweight Property (as applicable).

 

7.2

Agency of Receiver

 

  (a)

Subject to clause 7.5, each Receiver is the agent of the Grantor.

 

  (b)

The Grantor is responsible for the acts, defaults and remuneration of the Receiver which has been appointed in respect of its Mortgaged Property or Featherweight Property (as applicable).

 

7.3

Powers of Receiver

Subject to any express exclusion by the terms of the Receiver’s appointment, a Receiver appointed in respect of any Mortgaged Property or Featherweight Property (as applicable) has, in addition to any powers conferred on the Receiver by applicable law, and whether or not in possession of the Mortgaged Property or the Featherweight Property (as applicable) or any part of it, the following powers:

 

  (a)

manage, possession or control: to manage, take possession of Title Documents or assume control of any of the Mortgaged Property or the Featherweight Property (as applicable);

 

  (b)

sale: to sell or concur in selling any of the Mortgaged Property or the Featherweight Property (as applicable) to any person:

 

  (i)

by auction, private treaty or tender;

 

  (ii)

on such terms and special conditions as the Secured Party or the Receiver thinks fit;

 

  (iii)

for cash or for a deferred payment of the purchase price, in whole or in part, with or without interest or security;

 

  (iv)

in conjunction with the sale of any property by any other person; and

 

Page 17


  (v)

in one lot or in separate parcels,

and to complete a share transfer in favour of the Secured Party, or any other person designated by the Secured Party;

 

  (c)

grant options to purchase: to grant to any person an option to purchase any of the Mortgaged Property or the Featherweight Property (as applicable);

 

  (d)

acquire property: to acquire any interest in any property, in the name or on behalf of the Grantor, which on acquisition forms part of the Mortgaged Property;

 

  (e)

borrowings and security:

 

  (i)

to raise or borrow any money, in its name or the name, or on behalf of the Grantor, from the Secured Party or any person approved by the Secured Party in writing; and

 

  (ii)

to secure money raised or borrowed under clause 7.3(e)(i) by a Security Interest over any of the Mortgaged Property, ranking in priority to, equal with, or after, the Mortgage or any Collateral Security;

 

  (f)

income and bank accounts: to do anything to manage or obtain income from any of the Mortgaged Property or the Featherweight Property (as applicable) including operating any bank account which forms part of the Mortgaged Property or the Featherweight Property (as applicable) or opening and operating a new bank account;

 

  (g)

compromise: to make or accept any compromise or arrangement;

 

  (h)

surrender Mortgaged Property: to surrender or transfer any of the Mortgaged Property or the Featherweight Property (as applicable)to any person;

 

  (i)

exchange Mortgaged Property: to exchange with any person any of the Mortgaged Property or the Featherweight Property (as applicable) for any other property whether of equal value or not;

 

  (j)

employ or discharge: to employ or discharge any person as an employee, contractor, agent or professional advisor for any of the purposes of this deed;

 

  (k)

delegate: to delegate to any person any Power of the Receiver;

 

  (l)

perform or enforce documents: to observe, perform, enforce, exercise or refrain from exercising any right, power, authority, discretion or remedy of the Grantor under, or otherwise obtain the benefit of:

 

  (i)

any document, agreement or right which attaches to or forms part of the Mortgaged Property or the Featherweight Property (as applicable); and

 

  (ii)

any document or agreement entered into in exercise of any Power by the Receiver;

 

  (m)

receipts: to give receipts for all moneys and other assets which may come into the hands of the Receiver;

 

  (n)

take proceedings: to commence, discontinue, prosecute, defend, settle or compromise in its name or the name or on behalf of the Grantor, any proceedings including proceedings in relation to any insurance in respect of any of the Mortgaged Property or the Featherweight Property (as applicable);

 

Page 18


  (o)

insolvency proceedings: in respect of the Mortgaged Property, to make any debtor bankrupt, wind-up any company, corporation or other entity and do all things in relation to any bankruptcy or winding-up which the Receiver thinks necessary or desirable including attending and voting at creditors’ meetings and appointing proxies for those meetings;

 

  (p)

execute documents: in respect of the Mortgaged Property, to enter into and execute any document or agreement in the name of the Receiver or the name or on behalf of the Grantor for any of the purposes of this deed;

 

  (q)

rights: to exercise any right, power, authority, discretion or remedy in respect of the Mortgaged Property or the Featherweight Property (as applicable) including:

 

  (i)

any voting right or power;

 

  (ii)

the acceptance of any rights issue or other Additional Right;

 

  (iii)

proving in any liquidation, scheme of arrangement or other composition for or arrangement with a member or any secured or unsecured creditor and whether or not under an order of the court;

 

  (iv)

consenting on behalf of the Grantor in respect of the proof referred to in clause 7.3(q)(iii); and

 

  (v)

receiving all Distributions;

 

  (r)

ability of Grantor: to do anything the Grantor could do in relation to the Mortgaged Property or the Featherweight Property (as applicable); and

 

  (s)

incidental power: to do anything necessary or incidental to the exercise of any Power of the Receiver.

 

7.4

Nature of Receiver’s Powers

The Powers of the Receiver must be construed independently and no one Power limits the generality of any other Power. Any dealing under any Power of the Receiver will be on the terms and conditions the Receiver thinks fit.

 

7.5

Status of Receiver after commencement of winding up

 

  (a)

The power to appoint a Receiver under clause 7.1 may be exercised even if, at the time an Event of Default or Enforcement Event occurs or at the time when a Receiver is appointed, an order has been made or a resolution has been passed for the winding-up of the Grantor.

 

  (b)

If for any reason, including operation of law, a Receiver:

 

  (i)

appointed in the circumstances described in clause 7.5(a); or

 

  (ii)

appointed at any other time,

ceases to be the agent of the Grantor upon or by virtue of, or as a result of, an order being made or a resolution being passed for the winding-up of the Grantor, then the Receiver immediately becomes the agent of the Secured Party.

 

7.6

Powers exercisable by the Secured Party

 

  (a)

Whether or not a Receiver is appointed under clause 7.1, the Secured Party may while an Event of Default is continuing (in respect of the Mortgaged Property only) or following the occurrence of an Enforcement Event (in respect of all of the Mortgaged Property and the Featherweight Property) and without giving notice to any person, exercise any Power that could be conferred on a Receiver in addition to any Power of the Secured Party.

 

Page 19


  (b)

The exercise of any Power by the Secured Party, Receiver or Attorney does not cause or deem the Secured Party, Receiver or Attorney:

 

  (i)

to be a mortgagee in possession;

 

  (ii)

to account as mortgagee in possession; or

 

  (iii)

to be answerable for any act or omission for which a mortgagee in possession is liable.

 

7.7

Set-off

If any Event of Default occurs and is continuing, the Secured Party may apply any credit balance in any currency in any account of the Grantor with the Secured Party in and towards satisfaction of any of the Secured Moneys.

 

7.8

Notice of exercise of rights

The Secured Party, Receiver or Attorney is not required:

 

  (a)

to give notice of the Security or any Collateral Security to any debtor or creditor of the Grantor or to any other person;

 

  (b)

to enforce payment of any money payable to the Grantor including any of the debts or monetary liabilities charged by this deed or by any Collateral Security; or

 

  (c)

to obtain the consent of the Grantor to any exercise of a Power.

 

7.9

Termination of receivership and possession

The Secured Party may, at any time, terminate the appointment of a Receiver and may, at any time, give up, or re-take, possession of the Mortgaged Property or the Featherweight Property (as applicable).

 

8.

Application and Receipts of Money

 

8.1

Order of application

 

  (a)

At any time after the Security is enforceable, all money received by the Secured Party, Receiver, Attorney or any other person acting on their behalf under this deed or any Collateral Security may be appropriated and applied towards any amount and in any order that the Secured Party, Receiver, Attorney or that other person determines in its absolute discretion, to the extent permitted by the Finance Documents and not prohibited by law.

 

  (b)

Subject to the Finance Documents, failing a determination under clause 8.1(a), the money must be applied in the following manner and order:

 

  (i)

first, in payment of all costs, charges and expenses (including any GST) of the Secured Party, Receiver or Attorney incurred in or incidental to the exercise or performance or attempted exercise or performance of any Power;

 

  (ii)

second, in payment of any other outgoings the Secured Party, Receiver or Attorney thinks fit to pay;

 

Page 20


  (iii)

third, in payment to the Receiver of his or her remuneration;

 

  (iv)

fourth, in payment and discharge, in order of their priority, of any Security Interests of which the Secured Party, Receiver or Attorney is aware and which have priority to the Security;

 

  (v)

fifth, in payment to the Secured Party towards satisfaction of the Secured Moneys and applied against interest, principal or any other amount the Secured Party, Receiver or Attorney thinks fit;

 

  (vi)

sixth, in payment only to the extent required by law, in order of their priority, of other Security Interests in respect of the Secured Property of which the Secured Party, Receiver or Attorney is aware and which are due and payable in accordance with their terms;

 

  (vii)

seventh, in payment of the surplus, if any, without interest to the Grantor, and the Secured Party, Receiver or Attorney may pay the surplus to the credit of an account in the name of the Grantor in the books of any bank carrying on business within Australia and having done so is under no further liability in respect of that surplus.

 

  (c)

Any amount required by law to be paid in priority to any amount specified in clause 8.1(b) must be paid before any money is applied in payment of the amount specified in clause 8.1(b).

 

8.2

Money actually received

In applying any money towards satisfaction of the Secured Moneys the Grantor is to be credited only with so much of the money which is available for that purpose (after deducting any GST imposed) and which is actually received by the Secured Party, Receiver or Attorney. The credit dates from the time of receipt.

 

8.3

Amounts contingently due

 

  (a)

If at the time of a distribution of any money under clause 8.1 any part of the Secured Moneys is contingently owing to the Secured Party, the Secured Party, Receiver or Attorney may retain an amount equal to the amount contingently owing or any part of it.

 

  (b)

If the Secured Party, Receiver or Attorney retains any amount under clause 8.3(a), it must place that amount on short-term interest bearing deposit until the amount contingently owing becomes actually due and payable or otherwise ceases to be contingently owing at which time the Secured Party, Receiver or Attorney must:

 

  (i)

pay to the Secured Party the amount which has become actually due to it; and

 

  (ii)

apply the balance of the amount retained, together with any interest on the amount contingently owing, in accordance with clause 8.1.

 

8.4

Notice of a Security Interest

 

  (a)

If the Secured Party receives actual or constructive notice of a Security Interest over the Mortgaged Property or of the perfection of a Security Interest, the Secured Party:

 

  (i)

may open a new account in the name of the Grantor in its books; or

 

  (ii)

is regarded as having opened a new account in the name of the Grantor in its books,

 

Page 21


on the date it received or was regarded as having received notice of the Security Interest or perfection.

 

  (b)

From the date on which that new account is opened or regarded as opened:

 

  (i)

all payments made by the Grantor to the Secured Party; and

 

  (ii)

all financial accommodation and advances by the Secured Party to the Grantor,

are or are regarded as credited and debited, as the case may be, to the new account unless otherwise specified by the Secured Party.

 

  (c)

The payments by the Grantor under clause 8.4(b) must be applied in the manner determined by the Secured Party or, failing a determination:

 

  (i)

first, in reduction of the debit balance, if any, in the new account; and

 

  (ii)

second, if there is no debit balance in the new account, in reduction of the Secured Moneys which have not been debited or regarded as debited to the new account.

 

8.5

Secured Party’s statement of indebtedness

A certificate signed by any Authorised Officer of the Secured Party stating:

 

  (a)

the amount of the Secured Moneys due and payable; or

 

  (b)

the amount of the Secured Moneys, whether currently due and payable or not,

is sufficient evidence of that amount as at the date stated on the certificate, or failing that as at the date of the certificate, unless the contrary is proved.

 

8.6

Secured Party’s receipts

 

  (a)

The receipt of any Authorised Officer of the Secured Party for any money payable to or received by the Secured Party under this deed exonerates the payer from all liability to enquire whether any of the Secured Moneys have become payable.

 

  (b)

Every receipt of an Authorised Officer of the Secured Party effectually discharges the payer from:

 

  (i)

any future liability to pay the amount specified in the receipt; and

 

  (ii)

being concerned to see to the application of, or being answerable or accountable for any loss or misapplication of, the amount specified in the receipt.

 

8.7

Conversion of currencies on application

In making an application under clause 8.1, the Secured Party, Receiver or Attorney may itself, or through its bankers, purchase one currency with another, whether or not through an intermediate currency, whether spot or forward, in the manner and amounts and at the times it thinks fit.

 

8.8

Amounts payable on demand

If an amount payable under a Finance Document is not expressed to be payable on a specified date, that amount is payable by the Grantor on demand by the Secured Party.

 

Page 22


9.

Power of Attorney

 

9.1

Appointment of Attorney

In consideration of the Secured Party entering into the Finance Documents and for other consideration received, the Grantor irrevocably appoints the Secured Party and each Receiver severally its Attorney for the purposes set out in clause 9.2.

 

9.2

Purposes of appointment

The Attorney may, in its name or in the name of the Grantor, Secured Party or Receiver, do any of the following:

 

  (a)

do any thing which ought to be done by the Grantor under this deed or any other Finance Document;

 

  (b)

exercise any right, power, authority, discretion or remedy of the Grantor under:

 

  (i)

this deed;

 

  (ii)

any other Finance Document; or

 

  (iii)

any agreement forming part of the Secured Property;

 

  (c)

do any thing which in the opinion of the Secured Party, Receiver or Attorney is necessary or expedient for securing or perfecting the Security and any Collateral Security;

 

  (d)

execute in favour of the Secured Party any legal mortgage, transfer, assignment and any other assurance of any of the Secured Property;

 

  (e)

execute deeds of assignment, composition or release;

 

  (f)

do all things necessary to enable a transfer to be registered in favour of the Secured Party, its nominee or any other person as the Secured Party directs and deliver any Title Documents as the Secured Party directs;

 

  (g)

sell or otherwise part with the possession of any of the Secured Property; and

 

  (h)

generally, do any other thing, whether or not of the same kind as those set out in clauses 9.2(a) to (g), which in the opinion of the Secured Party, Receiver or Attorney is necessary or expedient:

 

  (i)

to more satisfactorily secure to the Secured Party the payment of the Secured Moneys; or

 

  (ii)

in relation to any of the Secured Property.

 

9.3

Exercise after Event of Default or Enforcement Event

 

  (a)

An Attorney must not exercise any Power under clause 9.2 unless:

 

  (i)

in respect of the Mortgaged Property, an Event of Default is continuing; and

 

  (ii)

in respect of all of the Mortgaged Property and the Featherweight Property, an Enforcement Event has occurred.

 

  (b)

The Grantor must ratify anything done by an Attorney under this clause 9.

 

Page 23


9.4

Delegation and substitution

The Attorney may appoint a substitute attorney.

 

10.

Protection

 

10.1

Protection of third parties

 

  (a)

No person dealing with the Secured Party, Receiver or Attorney is bound to enquire whether:

 

  (i)

the Security has become enforceable;

 

  (ii)

the Receiver or Attorney is duly appointed; or

 

  (iii)

any Power has been properly or regularly exercised.

 

  (b)

No person dealing with the Secured Party, Receiver or Attorney is affected by express notice that the exercise of any Power was unnecessary or improper.

 

  (c)

The irregular or improper exercise of any Power is, as regards the protection of any person, regarded as authorised by the Grantor and this deed, and is valid.

 

10.2

Protection of the Secured Party, Receiver and Attorney

 

  (a)

The Secured Party, Receiver or Attorney is not liable for any loss or damage, including consequential loss or damage, arising directly or indirectly from:

 

  (i)

any omission or delay in the exercise or non-exercise of any Power; or

 

  (ii)

the neglect, default or dishonesty of any manager, Authorised Officer, employee, agent, accountant, auctioneer or solicitor of the Grantor, the Secured Party, the Receiver or Attorney.

 

  (b)

Clause 10.2(a) does not apply:

 

  (i)

in respect of the Secured Party, to any loss or damage which arises from the wilful default, fraud or gross negligence of the Secured Party; and

 

  (ii)

in respect of a Receiver or Attorney, to any loss or damage which arises from the wilful default, fraud or gross negligence of the Receiver or Attorney.

 

11.

Saving Provisions

 

11.1

Statutory powers

 

  (a)

Subject to clause 11.1(b), the powers of the Secured Party under this deed or any Collateral Security are in addition to any powers the Secured Party has under applicable law.

 

  (b)

If the Secured Party exercises a Power in connection with this deed, that exercise is taken not to be an exercise of a Power under the PPSA unless the Secured Party states otherwise at the time of exercise. However, this clause 11.1(b) does not apply to a right, power or remedy which can only be exercised under the PPSA.

 

11.2

No notice required unless mandatory

To the extent the law permits, the Grantor waives:

 

Page 24


  (a)

its rights to receive any notice that is required by:

 

  (i)

any provision of the PPSA (including a notice of a verification statement); or

 

  (ii)

any other law, before a secured party or Receiver exercises a right, power or remedy; and

 

  (b)

any time period that must otherwise lapse under any law before a secured party or receiver exercises a right, power or remedy.

If the law which requires a period of notice or a lapse of time cannot be excluded, but the law provides that the period of notice or lapse of time may be agreed, that period or lapse is one day or the minimum period the law allows to be agreed (whichever is the longer).

However, nothing in this clause prohibits the Secured Party or any Receiver from giving a notice under the PPSA or any other law.

 

11.3

Continuing security

The Security is a continuing security despite:

 

  (a)

any settlement of account; or

 

  (b)

the occurrence of any other thing,

and remains in full force and effect until the Secured Party has given a discharge of the Security in respect of all the Secured Property under clause 3.

 

11.4

No merger of security

 

  (a)

Nothing in this deed merges, extinguishes, postpones, lessens or otherwise prejudicially affects:

 

  (i)

any Guarantee, Security Interest or indemnity in favour of the Secured Party contained in any Finance Document; or

 

  (ii)

any Power.

 

  (b)

No other Security Interest or Finance Document which the Secured Party has the benefit of in any way prejudicially affects any Power.

 

11.5

Exclusion of moratorium

Without limiting clause 11.6 to the extent not excluded by law, a provision of any legislation (other than a provision of the PPSA mentioned in section 115(1) of the PPSA) which directly or indirectly:

 

  (a)

lessens, varies or affects in favour of the Grantor any obligations under this deed or any Finance Document;

 

  (b)

stays, postpones or otherwise prevents or prejudicially affects the exercise by the Secured Party, Receiver or Attorney of any Power; or

 

  (c)

confers any right on the Grantor or imposes any obligation on the Secured Party or a Receiver or Attorney in connection with the exercise of any Power,

is negatived and excluded from this deed and any Finance Document and all relief and protection conferred on the Grantor by or under that legislation is also negatived and excluded.

 

Page 25


11.6

Exclusion of PPSA provisions

To the extent the law permits:

 

  (a)

the provisions of the PPSA specified in section 115(1) of that Act (except sections 123 (right to seize collateral), 128 (secured party may dispose of collateral), 129 (disposal by purchase), 130 (notice of disposal), 134 (retention of collateral), 135 (notice of retention)) are excluded in full and will not apply to the Security;

 

  (b)

in the circumstances permitted under section 115(7) of the PPSA, sections 132 (secured party to give statement of account) and 137(3) (obligation to sell) of the PPSA are also excluded and will not apply to the Security;

 

  (c)

if the PPSA is amended after the date of this deed to permit the Grantor and the Secured Party to agree to not comply with or to exclude other provisions of the PPSA, the Secured Party may notify the Grantor that any of these provisions are excluded or that the Secured Party need not comply with any of these provisions as notified to the Grantor by the Secured Party; and

 

  (d)

the Grantor agrees not to exercise its rights to make any request of the Secured Party under section 275 of the PPSA, to authorise the disclosure of any information under that section or to waive any duty of confidence that would otherwise permit non-disclosure under that section.

 

11.7

Conflict

Where any right, power, authority, discretion or remedy of the Secured Party, Receiver or an Attorney under this deed or any Finance Document is inconsistent with the powers conferred by applicable law then, to the extent not prohibited by that law, the powers conferred by applicable law are regarded as negatived or varied to the extent of the inconsistency.

 

11.8

Consent of Secured Party

 

  (a)

Whenever the doing of any thing by the Grantor is dependent upon the consent of the Secured Party, the Secured Party may withhold its consent or give it conditionally or unconditionally in its absolute discretion unless expressly stated otherwise in a Finance Document.

 

  (b)

Any conditions imposed on the Grantor under clause 11.8(a) must be complied with by the Grantor.

 

11.9

Completion of blank securities

 

  (a)

The Secured Party, a Receiver, Attorney or any Authorised Officer of the Secured Party may complete, in favour of the Secured Party, any appointee of the Secured Party or any purchaser, any instrument executed in blank by or on behalf of the Grantor and deposited with the Secured Party as security under this deed or under any Collateral Security.

 

  (b)

The Secured Party, a Receiver, Attorney or any Authorised Officer of the Secured Party must not exercise any Power under clause 11.9(a) until an Event of Default occurs and is continuing but a breach of this clause 11.9(b) does not affect the validity of the act of the Secured Party, Receiver, Attorney or Authorised Officer of the Secured Party.

 

11.10

Principal obligations

The Security and each Collateral Security is:

 

Page 26


  (a)

a principal obligation and is not ancillary or collateral to any other Security Interest (other than another Collateral Security) or other obligation; and

 

  (b)

independent of, and unaffected by, any other Security Interest or other obligation which the Secured Party may hold at any time in respect of the Secured Moneys.

 

11.11

No obligation to marshal

Before the Secured Party enforces the Security, it is not required, to marshal or to enforce or apply under, or appropriate, recover or exercise:

 

  (a)

any Security Interest or Collateral Security held, at any time, by the Secured Party; or

 

  (b)

any moneys or assets which the Secured Party, at any time, holds or is entitled to receive.

 

11.12

Non-avoidance

If any payment by the Grantor to the Secured Party is at any time avoided for any reason including any legal limitation, disability or incapacity of or affecting the Grantor or any other thing, and whether or not:

 

  (a)

any transaction relating to the Secured Moneys was illegal, void or substantially avoided; or

 

  (b)

any thing was or ought to have been within the knowledge of the Secured Party,

the Grantor:

 

  (c)

as an additional, separate and independent obligation, indemnifies the Secured Party against that avoided payment; and

 

  (d)

acknowledges that any liability of the Grantor under the Finance Documents and any Power is the same as if that payment had not been made.

 

11.13

Increase in financial accommodation

The Secured Party may, subject to the Finance Documents, at any time increase the financial accommodation provided under any Finance Document or otherwise provide further financial accommodation.

 

12.

Third Party Provisions

 

12.1

Suspense account

 

  (a)

The Secured Party may apply to the credit of a suspense account:

 

  (i)

any amounts received under this deed;

 

  (ii)

any dividends, distributions or other amounts received in respect of the Secured Moneys in any liquidation;

 

  (iii)

any other amounts received from any Transaction Party or any other person in respect of the Secured Moneys.

 

  (b)

The Secured Party may retain the amounts in the suspense account for as long as it determines and is not obliged to apply them in or towards satisfaction of the Secured Moneys.

 

Page 27


12.2

Independent obligations

This deed is enforceable against the Grantor:

 

  (a)

without first having recourse to any Collateral Security;

 

  (b)

whether or not the Secured Party or any other person has:

 

  (i)

made demand on any Transaction Party other than the Grantor;

 

  (ii)

given notice to any Transaction Party (other than the Grantor) or any other person in respect of any thing; or

 

  (iii)

taken any other steps against any Transaction Party (other than the Grantor) or any other person;

 

  (c)

whether or not any Secured Moneys is then due and payable; and

 

  (d)

despite the occurrence of any event described in clause 12.3.

 

12.3

Unconditional nature of obligations

 

  (a)

The Security and the obligations of the Grantor under the Finance Documents are absolute, binding and unconditional in all circumstances and are not released or discharged or otherwise affected by anything which but for this provision might have that effect, including:

 

  (i)

the grant to any Transaction Party or any other person of any time, waiver, covenant not to sue or other indulgence;

 

  (ii)

the release (including a release as part of any novation) or discharge of any Transaction Party or any other person;

 

  (iii)

the cessation of the obligations, in whole or in part, of any Transaction Party or any other person under any Finance Document or any other document or agreement;

 

  (iv)

the liquidation of any Transaction Party or any other person;

 

  (v)

any arrangement, composition or compromise entered into by the Secured Party, any Transaction Party or any other person;

 

  (vi)

any Finance Document or any other document or agreement being in whole or in part illegal, void, voidable avoided, unenforceable or otherwise of limited force or effect;

 

  (vii)

any extinguishment, failure, loss, release, discharge, abandonment, impairment, compounding, composition or compromise, in whole or in part of any Finance Document or any other document or agreement;

 

  (viii)

any Collateral Security being given to the Secured Party or any other person by any Transaction Party or any other person;

 

  (ix)

any alteration, amendment, variation, supplement, renewal or replacement of any Finance Document or any other document or agreement or any increase in the limit or maximum principal amount available under the Finance Documents;

 

  (x)

any moratorium or other suspension of any Power;

 

Page 28


  (xi)

the Secured Party, Receiver or Attorney exercising or enforcing, delaying or refraining from exercising or enforcing, or being not entitled or unable to exercise or enforce any Power;

 

  (xii)

the Secured Party obtaining a judgment against any Transaction Party or any other person for the payment of any of the Secured Moneys;

 

  (xiii)

any transaction, agreement or arrangement that may take place with the Secured Party, any Transaction Party or any other person;

 

  (xiv)

any payment to the Secured Party, Receiver or Attorney, including any payment which at the payment date or at any time after the payment date is, in whole or in part, illegal, void, voidable, avoided or unenforceable;

 

  (xv)

any failure to give effective notice to any Transaction Party or any other person of any default under any Finance Document or any other document or agreement;

 

  (xvi)

any legal limitation, disability or incapacity of any Transaction Party or of any other person;

 

  (xvii)

any breach of any Finance Document or any other document or agreement;

 

  (xviii)

the acceptance of the repudiation of, or termination of, any Finance Document or any other document or agreement;

 

  (xix)

any Secured Moneys being irrecoverable for any reason;

 

  (xx)

any disclaimer by any Transaction Party or any other person of any Finance Document or any other document or agreement;

 

  (xxi)

any assignment, novation, assumption or transfer of, or other dealing with, any Powers or any other rights or obligations under any Finance Document or any other document or agreement;

 

  (xxii)

the opening of a new account of any Transaction Party with the Secured Party or any transaction on or relating to the new account;

 

  (xxiii)

any prejudice (including material prejudice) to any person as a result of any thing done, or omitted by the Secured Party, any Transaction Party or any other person;

 

  (xxiv)

any prejudice (including material prejudice) to any person as a result of the Secured Party, Receiver, Attorney or any other person selling or realising any property the subject of a Collateral Security at less than the best price;

 

  (xxv)

any prejudice (including material prejudice) to any person as a result of any failure or neglect by the Secured Party, Receiver, Attorney or any other person to recover the Secured Moneys from any Transaction Party or by the realisation of any property the subject of a Collateral Security;

 

  (xxvi)

any prejudice (including material prejudice) to any person as a result of any other thing;

 

  (xxvii)

the receipt by the Secured Party of any dividend, distribution or other payment in respect of any liquidation;

 

Page 29


  (xxviii)

the capacity in which a Transaction Party executed a Finance Document not being the capacity disclosed to the Secured Party before the execution of the Finance Document;

 

  (xxix)

the failure of any other Transaction Party or any other person who is intended to become a co-surety or co-indemnifier of that Transaction Party to execute any Finance Document or any other document; or

 

  (xxx)

any other act, omission, matter or thing whether negligent or not.

 

  (b)

Clause 12.3(a) applies irrespective of:

 

  (i)

the consent or knowledge or lack of consent or knowledge, of the Secured Party, any Transaction Party or any other person of any event described in clause 12.3(a) (and the Grantor irrevocably waives any duty on the part of the Secured Party to disclose such information); or

 

  (ii)

any rule of law or equity to the contrary.

 

12.4

No competition

 

  (a)

Until the Secured Moneys have been fully paid and the Security has been finally discharged under clause 3, the Grantor is not entitled to:

 

  (i)

be subrogated to the Secured Party;

 

  (ii)

claim or receive the benefit of any Security Interest, Guarantee (including any Finance Document) or other document or agreement of which the Secured Party has the benefit or of any moneys held by the Secured Party or of any Power;

 

  (iii)

either directly or indirectly prove in, claim or receive the benefit of any distribution, dividend or payment arising out of or relating to the liquidation of any Transaction Party except in accordance with clause 12.4(b);

 

  (iv)

make a claim or exercise or enforce any right, power or remedy (including under a Security Interest or Guarantee or by way of contribution) against any Transaction Party liable to pay the Secured Moneys or against any asset of any such Transaction Party, whether such right, power or remedy arises under or in connection with this deed, any other Finance Document or otherwise;

 

  (v)

accept, procure the grant of, or allow to exist any Security Interest in favour of the Grantor from any Transaction Party liable to pay the Secured Moneys;

 

  (vi)

exercise or attempt to exercise any right of set-off against, nor realise any Security Interest taken from, any Transaction Party liable to pay the Secured Moneys; or

 

  (vii)

raise any defence or counterclaim in reduction or discharge of its obligations under the Finance Documents.

 

  (b)

If required by the Secured Party, the Grantor must prove in any liquidation of a Transaction Party liable to pay the Secured Moneys for all moneys owed to the Grantor.

 

  (c)

All moneys recovered by the Grantor from any Transaction Party liable to pay the Secured Moneys from any liquidation or under any Security Interest or Guarantee (whether the Security Interest or Guarantee is a Finance Document or otherwise) must be received and held in trust by the Grantor for/paid to the Secured Party to the extent of the unsatisfied liability of the Grantor under the Finance Documents.

 

Page 30


  (d)

The Grantor must not do or seek, attempt or purport to do anything referred to in clause 12.4(c).

 

13.

General

 

13.1

General

Clauses [38] (Entire Agreement and Remedies), [41] (Invalidity), [42] (Assignment) and [48] (Counterparts) of the Dawson Option Deed are incorporated into this Deed as if set out in full with all necessary amendments, including that a reference to:

 

  (a)

“Buyer”, “Buyer Guarantor” and “Buyer Group member” is deemed to be a reference to the Secured Party; and

 

  (b)

“Peabody” and “Peabody Group member” is deemed to be a reference to the Grantor; and

 

  (c)

a reference to “this Agreement” is deemed to be a reference to this “deed”.

 

13.2

Confidential information

The Secured Party must not disclose to any person:

 

  (a)

this deed; or

 

  (b)

any information about the Grantor,

except as permitted under the Finance Documents.

 

13.3

Performance by Secured Party of the Grantor’s obligations

If the Grantor defaults in fully and punctually performing any obligation contained or implied in any Finance Document and an Event of Default has occurred and is continuing, the Secured Party may, without prejudice to any Power, do all things necessary or desirable, in the opinion of the Secured Party, to make good or attempt to make good that default to the satisfaction of the Secured Party.

 

13.4

Grantor to bear cost

Any thing which must be done by the Grantor under this deed, whether or not at the request of the Secured Party, must be done at the cost of the Grantor.

 

13.5

Notices

Any notice or other communication including any request, demand, consent or approval, to or by a party to this deed must be given in accordance with the notice requirements of the Loan Note Deed.

 

13.6

Governing law and jurisdiction

 

  (a)

This deed is governed by the laws of Queensland.

 

  (b)

Without limiting clause 13.5(a), for the purposes of section 237 of the PPSA, the law of the Commonwealth of Australia as that law applies in the jurisdiction specified in clause 13.5(a) governs the Security to the extent it is permitted to apply to the Secured Property under that section.

 

Page 31


  (c)

The Grantor irrevocably submits to the non-exclusive jurisdiction of the courts of Queensland.

 

  (d)

The Grantor irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.

 

  (e)

The Grantor irrevocably waives any immunity in respect of its obligations under this deed that it may acquire from the jurisdiction of any court or any legal process for any reason including the service of notice, attachment before judgment, attachment in aid of execution or execution.

 

13.7

Waivers

 

  (a)

Waiver of any right arising from a breach of this deed or of any Power arising upon default under this deed or upon the occurrence of an Event of Default must be in writing and signed by the party granting the waiver.

 

  (b)

A failure or delay in exercise, or partial exercise, of:

 

  (i)

a right arising from a breach of this deed or the occurrence of an Event of Default or Enforcement Event (as applicable); or

 

  (ii)

a Power created or arising upon default under this deed or upon the occurrence of an Event of Default or Enforcement Event (as applicable),

does not result in a waiver of that right or Power.

 

  (c)

A party is not entitled to rely on a delay in the exercise or non-exercise of a right or Power arising from a breach of this deed or on a default under this deed or on the occurrence of an Event of Default or Enforcement Event (as applicable) as constituting a waiver of that right or Power.

 

  (d)

A party may not rely on any conduct of another party as a defence to exercise of a right or Power by that other party.

 

  (e)

This clause may not itself be waived except by writing.

 

13.8

Variation

A variation of any term of this deed must be in writing and signed by the parties.

 

13.9

Cumulative rights

The Powers are cumulative and do not exclude any other right, power, authority, discretion or remedy of the Secured Party, Receiver or Attorney.

 

13.10

Attorneys

Each of the attorneys executing this deed states that the attorney has no notice of the revocation of the power of attorney appointing that attorney.

 

13.11

Language

To the extent required to be in compliance with the Law No. 24 of 2009 on National Flag, Language, Coat of Arms and National Anthem and Presidential Regulation No. 63 of 2019 on the Use of Indonesia Language, the parties agree that this Deed is executed in both the English language and Indonesian languages. For the avoidance of doubt, the existence of two languages of this Deed is not to be construed by any party as creating different rights and obligations, or duplication or multiplication of the rights and obligations, of the parties under

 

Page 32


any version of this Deed. The parties Deed that the English language version and the Indonesian language version of this Deed shall be equally authentic, and that in the event of any inconsistency or different interpretation between the Indonesian language version and the English version of this Deed, the English language version shall prevail.

 

Page 33


Signing page

Executed as a deed.

 

 Executed by [Anglo American Steelmaking

Coal Assets Eastern Australia Limited ACN

009 727 851 / Anglo American Steelmaking

Coal Assets Pty Ltd ACN 081 022 246] in

 accordance with section 127(1) of the

 Corporations Act 2001 (Cth):

 

  

 

  

 

 Company Secretary/Director     Director

 

  

 

 Name of Company Secretary/Director (print)     Name of Director (print)


[Secured Party execution block to be inserted]


Signing page

Executed as a Deed.

Executed by Peabody SMC Pty Ltd ACN 682

277 587 in accordance with section 127 of the

Corporations Act 2001 (Cth):

 

/s/ Sean Kendall Allen

Signature of Director

    

/s/ Michael James Carter

Signature of Director/Secretary

Sean Kendall Allen

Name of Director

    

Michael James Carter

Name of Director/Secretary

SIGNED, SEALED AND DELIVERED as a

DEED by PT Bukit Makmur Internasional in

the presence of:

 

/s/ Wendy William

Signature of witness

    

/s/ Iwan Fuad Salim

Signature of authorised signatory

Wendy William

Name of witness (print)

    

Iwan Fuad Salim

Name of authorised signatory (print)

v3.24.3
Document and Entity Information
Nov. 25, 2024
Cover [Abstract]  
Entity Registrant Name PEABODY ENERGY CORP
Amendment Flag true
Entity Central Index Key 0001064728
Document Type 8-K/A
Document Period End Date Nov. 25, 2024
Entity Incorporation State Country Code DE
Entity File Number 1-16463
Entity Tax Identification Number 13-4004153
Entity Address, Address Line One 701 Market Street
Entity Address, City or Town St. Louis
Entity Address, State or Province MO
Entity Address, Postal Zip Code 63101-1826
City Area Code (314)
Local Phone Number 342-3400
Written Communications false
Soliciting Material false
Pre Commencement Tender Offer false
Pre Commencement Issuer Tender Offer false
Security 12b Title Common Stock, par value $0.01 per share
Trading Symbol BTU
Security Exchange Name NYSE
Entity Emerging Growth Company false
Amendment Description This Amendment No. 1 to Current Report on Form 8-K is being filed to add Exhibit 2.1, Exhibit 2.2, Exhibit 2.3 and Exhibit 2.4 to the Current Report on Form 8-K filed by the registrant on November 25, 2024 (the “Original 8-K”), and to reflect these additions in Items 1.01 and 9.01. The registrant indicated in the Original 8-K that Exhibit 2.1, Exhibit 2.2, Exhibit 2.3 and Exhibit 2.4 would be filed by amendment.

1 Year Peabody Energy Chart

1 Year Peabody Energy Chart

1 Month Peabody Energy Chart

1 Month Peabody Energy Chart

Your Recent History

Delayed Upgrade Clock