lock-up and restructuring agreement - … - further revised - 14 04... · lock-up and restructuring...
TRANSCRIPT
Dated ___________ 2015
LOCK-UP AND RESTRUCTURING AGREEMENT
between
PT BERAU COAL ENERGY TBK.
as the Company
BERAU CAPITAL RESOURCES PTE. LTD.
as BCR
ASIA RESOURCE MINERALS PLC
as the Parent
NR HOLDINGS LIMITED as the Subscriber
and
THE INITIAL CONSENTING CREDITORS
Table of Contents
Page
1. DEFINITIONS AND INTERPRETATION ................................................................................ 1
2. PURPOSE OF THIS AGREEMENT ......................................................................................... 12
3. EFFECTIVENESS OF THIS AGREEMENT .......................................................................... 12
4. CONSENT FEE AND ADDITIONAL CONSENT FEE .......................................................... 12
5. RELATIONSHIP WITH OTHER DOCUMENTS .................................................................. 13
6. PARTY’S RIGHTS AND OBLIGATIONS ............................................................................... 13
7. THE RESTRUCTURING ........................................................................................................... 13
8. UNDERTAKINGS ....................................................................................................................... 14
9. CONSENT SOLICITATION ..................................................................................................... 18
10. ACCESSION ................................................................................................................................ 23
11. TRANSFERS ................................................................................................................................ 23
12. REPRESENTATIONS OF THE CONSENTING CREDITORS ............................................ 24
13. REPRESENTATIONS OF THE COMPANY, BCR AND THE PARENT ............................ 25
14. REPRESENTATIONS OF THE SUBSCRIBER ...................................................................... 26
15. REPRESENTATIONS OF EACH PARTY .............................................................................. 26
16. ACKNOWLEDGEMENTS ........................................................................................................ 27
17. TERMINATION .......................................................................................................................... 27
18. NOTICES ..................................................................................................................................... 30
19. PARTIAL INVALIDITY ............................................................................................................ 31
20. AMENDMENTS AND WAIVERS............................................................................................. 32
21. PUBLICITY ................................................................................................................................. 32
22. PURCHASE OF EXISTING NOTES ........................................................................................ 32
23. GOVERNING LAW .................................................................................................................... 33
24. ENFORCEMENT ........................................................................................................................ 33
25. COUNTERPARTS ...................................................................................................................... 33
26. LANGUAGE ................................................................................................................................ 34
SCHEDULE 1 THE INITIAL CONSENTING CREDITORS ............................................................. 35
SCHEDULE 2 RESTRUCTURING TERMS ........................................................................................ 36
SCHEDULE 3 RESTRUCTURING STEPS .......................................................................................... 48
SCHEDULE 4 ACCESSION DEED ....................................................................................................... 51
SCHEDULE 5 LOCKED-UP NOTES NOTICE ................................................................................... 54
SIGNATURE PAGES .............................................................................................................................. 56
THIS AGREEMENT (the “Agreement”) is dated ______________ 2015 and made between:
(1) PT BERAU COAL ENERGY TBK., a public company incorporated under the laws of
Indonesia with its head office and principal place of business at Wisma GKBI 38th floor, Jl.
Jend Sudirman No. 28, Jakarta 10210, Indonesia (the “Company”);
(2) BERAU CAPITAL RESOURCES PTE. LTD., a private company incorporated under
the laws of Singapore with its registered office at 10 Anson Road, #03-05 International
Plaza, Singapore 079903 (“BCR”);
(3) ASIA RESOURCE MINERALS PLC, a public company incorporated under the laws of
England and Wales with its registered office at Atlas House, 3rd Floor, 173 Victoria Street,
London SW1E 5NH, United Kingdom (the “Parent”);
(4) NR HOLDINGS LIMITED, a private company incorporated under the laws of England
and Wales with its registered office at Trafalgar Court, 2nd Floor, East Wing, Admiral Park,
St Peter Port, Guernsey GY1 3EL (the “Subscriber”); and
(5) THE INITIAL CONSENTING CREDITORS (as defined in this Agreement);
(together with any Additional Consenting Creditor, each a “Party”).
RECITALS:
(A) The Company and the Parent have been in negotiations with: (i) the Subscriber with the
objective of reaching agreement on the terms of the Open Offer (as defined below) to be
implemented pursuant to the Open Offer Documents (as defined below); and (ii) the Initial
Consenting Creditors with the objective of reaching an agreement on the terms of a
restructuring of the Existing Notes (as defined below) to be implemented pursuant to the
Restructuring Documents (as defined below).
(B) The Parties have agreed to the terms of the Open Offer and the Restructuring (each as
defined below) and agreed to enter into this Agreement in order to facilitate their
implementation.
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Agreement:
“2015 Event of Default” means an event of default as defined under section 6.01 (Events
of Default) of the 2015 Indenture.
“2017 Event of Default” means an event of default as defined under section 6.01 (Events
of Default) of the 2017 Indenture.
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“2015 Global Notes” means the Global Notes as defined in section 2.04(c) of the 2015
Indenture.
“2017 Global Notes” means the Global Notes as defined in section 2.04(c) of the 2017
Indenture.
“2015 Indenture” means the indenture dated 8 July 2010 pursuant to which the 2015
Notes were constituted.
“2015 Supplemental Indenture” means the supplemental indenture dated 24 August
2010 relating to the 2015 Indenture.
“2017 Indenture” means the indenture dated 13 March 2012 pursuant to which the 2017
Notes were constituted.
“2015 Notes” means the US$450 million 12.5% guaranteed senior secured notes due 2015
issued by BCR pursuant to the 2015 Indenture.
“2017 Notes” means the US$500 million 7.25% guaranteed senior secured notes due 2017
issued by the Company pursuant to the 2017 Indenture.
“2015 Note Creditors” means the persons holding an economic or beneficial interest as
principal in the 2015 Notes.
“2017 Note Creditors” means the persons holding an economic or beneficial interest as
principal in the 2017 Notes.
“Accession Deed” means a deed pursuant to which a person becomes a Party as an
Additional Consenting Creditor, in the form set out in Schedule 4 (Accession Deed).
“Account Holder” means, in relation to a Note Creditor, a person who is recorded in the
books and records of the relevant Clearing System as being the holder of a book-entry
interest in the Existing Notes in an account with that Clearing System on behalf of that
Note Creditor.
“Account Holder Letter” means an account holder letter substantially in the form set out
in the Explanatory Statement.
“ACRA” means the Accounting and Corporate Regulatory Authority of the Republic of
Singapore.
“Act” means the Companies Act (Chapter 50; 2006 Revised Edition) of the Republic of
Singapore.
“Additional Consent Fee” means, with respect to a Consenting Creditor, an amount equal
to 0.2% of the aggregate principal amount of the 2015 Notes and/or the 2017 Notes (as
applicable) which were Locked-up Notes in which that Consenting Creditor (or any fund or
other entity advised or managed by that Note Creditor and on whose behalf that Note
Creditor is acting) held an economic or beneficial interest as principal at the Record Time.
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“Additional Consent Fee Creditor” means an Initial Consenting Creditor or a Note
Creditor that became an Additional Consenting Creditor in accordance with the terms of
this Agreement on or before the Early Bird Date.
“Additional Consenting Creditor” means a Note Creditor (or any fund or other entity
advising or managing a Note Creditor that is acting on behalf of that Note Creditor) which
has agreed to be bound by the terms of this Agreement as a Consenting Creditor in
accordance with Clause 10 (Accession), but excluding any Additional Consenting Creditor
that has exercised its right to terminate this Agreement in accordance with its terms.
“Advisers” means, collectively, Kirkland & Ellis and Moelis & Company Asia Limited in
their capacities as advisers to certain Note Creditors.
“Business Day” means a day (other than a Saturday or Sunday) on which banks are open
for general business in Hong Kong, Jakarta, London, New York and Singapore.
“CAMA” means the cash and accounts management agreement dated 20 July 2010
between, among others, the Company, BCR, PT Berau Coal and the Common Security
Agent.
“CCOW” means means the Coal Contract of Work No. J2/J1.DU/12/83 dated 26 April
1983 between PT Berau Coal and Perusahaan Negara Tambang Batubara, a state-owned
company in the Republic of Indonesia with the authority to grant coal mining concessions.
“Chapter 15 Filing” means a petition for recognition of the Scheme under Chapter 15 of
the U.S. Bankruptcy Code.
“Chapter 15 Hearing” means the hearing before the U.S. Bankruptcy Court to attain
recognition of the Scheme as a ‘foreign proceeding’ pursuant to the Chapter 15 Filing.
“Chapter 15 Order” means an order for the recognition of the Scheme as a ‘foreign
non-main proceeding’ under Chapter 15 of the U.S. Bankruptcy Code.
“Chapter 15 Representative” means a representative appointed by the Company for the
purpose of recognition proceedings under Chapter 15 of the U.S. Bankruptcy Code.
“Clearing Systems” means each or all of DTC, Euroclear and Clearstream and any other
system designed for similar or analogous purposes, as appropriate.
“Clearstream” means Clearstream Banking, société anonyme.
“Common Security Agent” means Credit Suisse AG, Singapore Branch.
“Conditions Precedent” means:
(a) delivery to the Initial Consenting Creditors of:
(i) this Agreement duly executed by each of the Company, BCR, the Parent
and the Subscriber; and
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(ii) written consent to the implementation of the Restructuring and each
Restructuring Step from Sojitz,
in form and substance satisfactory to the Initial Consenting Creditors; and
(b) payment in full by the Company of all outstanding invoices issued prior to the date
of this Agreement by the Advisers, in accordance with the applicable fee letters
between the Advisers and the Company.
“Confidentiality Agreement” means the confidentiality agreement dated 25 February
2015 entered into between certain Initial Consenting Creditors, Moelis & Company Asia
Limited and the Company.
“Consent Fee” means, with respect to a Consenting Creditor, an amount equal to 0.2% of
the aggregate principal amount of the 2015 Notes and/or the 2017 Notes (as applicable)
which were Locked-up Notes in which that Consenting Creditor (or any fund or other
entity advised or managed by that Note Creditor and on whose behalf that Note Creditor is
acting) held an economic or beneficial interest as principal at the Record Time.
“Consenting Creditor” means an Initial Consenting Creditor or an Additional Consenting
Creditor, but excludes any Initial Consenting Creditor or Additional Consenting Creditor
that has exercised its right to terminate this Agreement in accordance with its terms.
“Court” means the High Court of the Republic of Singapore.
“DTC” means the Depository Trust Company.
“Early Bird Date” means 15 April 2015 or such later date as may be specified by the
Company in:
(a) a notice posted on its website; and
(b) providing the information to the Clearing Systems for dissemination to Note
Creditors.
“Effective Date” means the date on which the Initial Consenting Creditors (or an Adviser
acting on their behalf) confirm in writing to the Company, BCR and the Parent that each of
the Conditions Precedent has been delivered and/or fulfilled to their satisfaction.
“Encumbrance” means any mortgage, pledge, lien, charge, or other security interest.
“Enforcement Action” means, in relation to any Existing Finance Document or any other
right, power, privilege or remedy arising howsoever as matter of applicable law::
(a) the acceleration of any sum payable under the Existing Notes or the making of any
declaration that any sum payable under the Existing Notes is due and payable or
payable on demand;
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(b) the making of any demand against any Obligor under any guarantee or surety
provided by that Obligor;
(c) the suing for, commencing, or joining of any legal or arbitration proceedings
against any Obligor to recover any sums payable under the Existing Notes or under
any guarantee or surety provided by any Obligor in respect of the Existing Notes;
(d) the taking of any steps to enforce or require the enforcement of any security granted
by any Obligor;
(e) the petitioning, applying, or voting for any Insolvency Proceedings in relation to
any Obligor;
(f) directing any trustee or agent to do any of the foregoing;
(g) joining any other entity or person in the exercise of any of the foregoing rights; or
(h) exercising any right, power, privilege or remedy in connection with the foregoing,
except that the following shall not constitute Enforcement Action:
(i) the taking of any action which is necessary to preserve the validity,
existence, or priority of claims in respect of the Existing Notes before any
court or government authority and the bringing, supporting, or joining of
proceedings to prevent any loss of the right to bring, support, or join
proceedings by reason of any applicable limitation periods;
(ii) a Consenting Creditor (or any trustee or agent acting on its behalf) bringing
Proceedings against any person solely for the purpose of:
(A) obtaining injunctive relief (or analogous remedy outside England
and Wales) to restrain any actual or putative breach of the Existing
Finance Documents;
(B) obtaining specific performance (other than specific performance of
an obligation to make a payment) with no claim for damages; or
(C) requesting judicial interpretation of any provision of the Existing
Finance Documents; and
(iii) a Consenting Creditor (or any trustee or agent acting on its behalf) taking
any step required to ensure that such Consenting Creditor (or any such
trustee or agent) is able and/or entitled to participate and/or submit any
proof of claim or vote in respect of the Existing Notes in any Indonesian
Bankruptcy Process in respect of an Obligor, including (but not limited to)
the commencing or joining of any legal proceedings in the Republic of
Indonesia or elsewhere in connection with the foregoing.
“Escrow Account” means a designated bank account held by Messrs Gibson, Dunn &
Crutcher LLP on behalf of the Subscriber.
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“Euroclear” means Euroclear Bank, S.A./N.V.
“Existing Finance Documents” means the Existing Notes, the Existing Indentures, the
CAMA, the Intercreditor Agreement and any related guarantee or security documents.
“Existing Indentures” means, collectively, the 2015 Indenture, the 2015 Supplemental
Indenture and the 2017 Indenture.
“Existing Notes” means, collectively, the 2015 Notes and the 2017 Notes.
“Explanatory Statement” means the explanatory statement required to be provided to the
Scheme Creditors pursuant to section 211 of the Act.
“Global Notes” means, collectively, the 2015 Global Notes and the 2017 Global Notes.
“Group” means the Parent and its Subsidiaries (each a “Group Company”).
“Indonesian Bankruptcy Process” means any suspension of payments, bankruptcy or
other proceedings commenced pursuant to Law Number 37 of 2004 of the Republic of
Indonesia on Bankruptcy and Suspension of Payments.
“Initial Consenting Creditor” means a Note Creditor (or any fund or other entity advising
or managing a Note Creditor that is acting on behalf of that Note Creditor) that is an
original party to this Agreement as listed in Schedule 1 (The Initial Consenting Creditors).
“Initial Locked-up Notes Notices” means the Locked-up Notes Notices to be provided by
the Initial Consenting Creditors pursuant to Clause 10.1 (Accession).
“Insolvency Proceeding” means any Indonesian Bankruptcy Process and any corporate
action, legal proceedings or other procedure or step taken in relation to:
(a) the suspension of payments, a moratorium of any indebtedness, winding-up,
bankruptcy, liquidation, dissolution, administration, receivership, administrative
receivership, judicial composition, or reorganisation (by way of voluntary
arrangement, scheme of arrangement, or otherwise) of any person;
(b) the appointment of a liquidator, receiver, administrator, administrative receiver,
compulsory manager, or other similar officer in respect of any person or any of its
assets;
(c) enforcement of any security over any assets of any person; or
(d) any procedure or step in any jurisdiction analogous to those set out in paragraphs (a)
to (c) above,
provided that the Scheme, the Chapter 15 Filing and the Chapter 15 Order (or any other
steps taken pursuant to the Restructuring Documents) shall each not constitute an
Insolvency Proceeding.
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“Intercreditor Agreement” means the intercreditor agreement dated 19 July 2010
between, among others, the Company, BCR and the Common Security Agent.
“Listing Rules” means the listing rules of the United Kingdom Financial Conduct
Authority, as amended from time to time.
“Locked-up Notes” means, at any time, with respect to a Consenting Creditor, the
aggregate amount of its claims against the Company and/or BCR, as applicable (or, if
applicable, the claims of a Note Creditor which that Consenting Creditor advises or
manages), with respect to:
(a) all Existing Notes held or controlled by that Consenting Creditor (or, if applicable,
by a Note Creditor which it advises or manages) as specified in the relevant Initial
Locked-up Notes Notice (in respect of an Initial Consenting Creditor) or the
relevant Accession Deed (in respect of an Additional Consenting Creditor);
(b) plus any additional Existing Notes purchased or otherwise acquired by it (or, if
applicable, by a Note Creditor which it advises or manages) after the date of the
Initial Locked-up Notes Notice or Accession Deed (as applicable);
(c) less the aggregate amount of any Existing Notes sold, transferred, assigned, or
otherwise disposed of by that Consenting Creditor (or, if applicable, by a Note
Creditor which it advises or manages) in accordance with Clause 11 (Transfers) of
this Agreement,
which shall include Existing Notes held or controlled by that Consenting Creditor (or, if
applicable, by a Note Creditor which it advises or manages) or otherwise acquired by that
Consenting Creditor’s broker dealer business unit on its own account, but shall exclude: (i)
Existing Notes held in custody for a third party; and (ii) any Existing Notes held or
controlled by one or more of its proprietary trading desks when acting as a market maker.
“Locked-up Notes Notice” means a notice substantially in the form set out in Schedule 5
(Locked-up Notes Notice).
“Longstop Date” means 31 July 2015.
“Majority Consenting Creditors” means Consenting Creditors who hold, or advise or
manage one or more Note Creditors and act on behalf of Note Creditors who hold, Existing
Notes with an aggregate principal amount of more than 50% of the Existing Notes held by
all Consenting Creditors.
“Material Adverse Effect” means any event or circumstance, which has a material
adverse effect on the business, assets, or financial condition of the Group.
“Note Creditors” means, collectively, the 2015 Note Creditors and the 2017 Note
Creditors.
“Obligors” means, collectively, the Company, BCR and the Subsidiary Guarantors.
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“Open Offer” means the issuance, on a pre-emptive basis and at a price of £0.25 per share,
of such number of ordinary shares in the capital of the Parent as is required to ensure that
US$100,000,000 is raised by the Parent as a result thereof, and which shall be fully
underwritten by the Subscriber.
“Open Offer Documents” means this Agreement, the Subscription Agreement, the
Relationship Agreement and all other documents, agreements, and instruments necessary
or desirable to implement and consummate the Open Offer in accordance with this
Agreement and the Restructuring Terms (including, without limitation, the necessary
circular and prospectus).
“Party” has the meaning ascribed to it in the Preamble of this Agreement.
“Permitted Transferee” means any person to whom a Consenting Creditor transfers, sells,
assigns, or otherwise disposes of any interest in some or all of its Existing Notes in
accordance with Clause 11 (Transfers) of this Agreement.
“Proceedings” means any form of proceeding in any jurisdiction or forum including any
process, suit, action demand, legal or Insolvency Proceedings, arbitration, alternative
dispute resolution, adjudication, mediation, seizure, distraint, forfeiture, re-entry,
execution or enforcement of judgment or any step taken for the purpose of creating or
enforcing a lien or taking any other Enforcement Action.
“Qualified Market-maker” means an entity that:
(a) holds itself out to the public or the applicable private markets as standing ready in
the ordinary course of business to purchase from customers, and sell to customers,
Existing Notes (or enter with customers into long and short positions in respect of
the Existing Notes), in its capacity as a dealer or market maker in the Existing
Notes; and
(b) is, in fact, regularly in the business of making a two-way market in the Existing
Notes.
“Record Time” means the time at which the Note Creditors are recorded as holding an
economic or beneficial interest as principal in the Global Notes held through the Clearing
Systems for the purposes of the Scheme.
“Relationship Agreement” means a relationship agreement to be entered into between the
Parent and the Subscriber to govern the relationship between the Parent and the Subscriber
following completion of the Open Offer.
“Restructuring” means the financial restructuring of the Existing Notes in accordance
with the Restructuring Terms and as implemented through the Restructuring Documents.
“Restructuring Conditions Precedent” means the conditions precedent to be set out in
the Restructuring Documents and satisfied or waived in accordance with their terms.
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“Restructuring Documents” means, collectively, this Agreement and all material
documents, agreements, and instruments necessary or desirable to implement or
consummate the Restructuring in accordance with this Agreement and the Restructuring
Terms including, without limitation, the Scheme.
“Restructuring Effective Date” means the date on which each of the Restructuring
Conditions Precedent has been satisfied or waived (if applicable).
“Restructuring Period” means the period from and including the date of this Agreement
to the Termination Date.
“Restructuring Steps” has the meaning given to it in Schedule 3 (Restructuring Steps).
“Restructuring Terms” means the terms of the Restructuring set out in the term sheet
attached at Schedule 2 (Restructuring Terms).
“Scheme” means a scheme of arrangement under section 210 of the Act to be proposed by
the Company to implement the Restructuring.
“Scheme Creditors” means the creditors of the Company whose claims against the
Company are the subject of the Scheme.
“Scheme Directions Application” means the Company’s application to the Court for
permission to convene the Scheme Meeting.
“Scheme Directions Hearing” means a hearing of the Court for the purpose of
considering the Scheme Directions Application, including any adjournment thereof.
“Scheme Lodgement Date” has the meaning given to it in Schedule 3 (Restructuring
Steps).
“Scheme Meeting” means the meeting of the Scheme Creditors to vote on the Scheme
convened pursuant to an order of the Court (and any adjournment of such meeting).
“Scheme Sanction Hearing” means a hearing of the Court for the purpose of sanctioning
the Scheme, including any adjournment thereof.
“Scheme Sanction Order” means the order of the Court sanctioning the Scheme under
section 210(3) of the Act.
“Sojitz” means Sojitz Corporation, a company incorporated under the laws of Japan with
its registered office at 1-20, 6-chome, Aksaka, Minato-ku, Tokyo, 107-8655, Japan.
“Subscription Agreement” means an agreement to be entered into between the Parent and
the Subscriber, in which the Subscriber irrevocably agrees to underwrite the Open Offer in
full.
“Subsidiary” means, in relation to any person, any second person over which that first
person has “control”, where “control” means either:
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(a) direct or indirect ownership of more than 50% of the voting or economic ownership
of such second person; or
(b) the ability (through any means) to influence or direct the composition of the board
of directors or the day to day affairs of such second person.
“Subsidiary Guarantors” means each of:
(a) PT Armadian Tritunggal;
(b) PT Berau Coal;
(c) Empire Capital Resources Pte. Ltd.;
(d) Winchester Investment Holdings PLC;
(e) Aries Investments Limited;
(f) Seacoast Offshore Inc.;
(g) Maple Holdings Limited;
(h) PT Energi Bara Sarana; and
(i) PT Banua Karsa Mitra.
“Super Majority Consenting 2015 Note Creditors” means Consenting Creditors who
hold, or advise or manage one or more 2015 Note Creditors and act on behalf of 2015 Note
Creditors who hold, 2015 Notes with an aggregate principal amount of more than 90% of
the 2015 Notes held by all Consenting Creditors.
“Super Majority Consenting 2017 Note Creditors” means Consenting Creditors who
hold, or advise or manage one or more 2017 Note Creditors and act on behalf of 2017 Note
Creditors who hold, 2017 Notes with an aggregate principal amount of more than 90% of
the 2017 Notes held by all Consenting Creditors.
“Super Majority Consenting Creditors” means Consenting Creditors who hold, or
advise or manage one or more Note Creditors and act on behalf of Note Creditors who hold,
Existing Notes with an aggregate principal amount of more than 90% of the Existing Notes
held by all Consenting Creditors.
“Termination Date” means:
(a) in respect of an individual Consenting Creditor, the date upon which this
Agreement is terminated in accordance with Clause 17.2 (Individual Noteholder
Termination);
(b) in respect of the Subscriber, the date upon which this Agreement is terminated in
accordance with Clause 17.3 (Subscriber Termination); and
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(c) if not so terminated, in respect of all Parties, the date upon which this Agreement is
terminated in accordance with Clause 17.1 (Voluntary Termination) or 17.4
(Automatic Termination).
“Transfer” has the meaning given to it in Clause 11 (Transfers).
“Trustee” means The Bank of New York Mellon.
“U.S. Bankruptcy Court” means the United States Bankruptcy Court for the Southern
District of New York or other appropriate forum in a case filed under Chapter 15 of the U.S.
Bankruptcy Code.
1.2 Construction
(a) The headings in this Agreement and the Schedules are for convenience only and
shall not affect its or their construction or interpretation.
(b) Unless the context otherwise requires:
(i) words denoting the singular shall include the plural and vice versa;
(ii) the masculine gender shall include the feminine gender and vice versa;
(iii) a “Clause”, “paragraph”, “Schedule” or “recital” shall, subject to any
contrary indication, be construed as a reference to a clause, paragraph,
schedule or recital, as the case may be, in or to, and form part of, this
Agreement;
(iv) a reference to any enactment or treaty or provision of law shall include a
reference to such enactment or provision as re-enacted, amended, or
extended;
(v) the term “including” shall be deemed to mean “including without
limitation”;
(vi) a reference to a “person” means any natural person, corporation, limited or
unlimited liability company, trust, joint venture, association, corporation,
partnership, governmental entity or other entity whatsoever;
(vii) a reference to an agreement or other document is a reference to such
agreement or other document as amended, varied, supplemented, restated or
novated or replaced from time to time;
(viii) “£” means the lawful currency for the time being of the United Kingdom;
and
(ix) “$” or “US$” means the lawful currency for the time being of the United
States of America.
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(c) References to the Parties include their respective transferees, permitted assignees,
and/or the respective successors in title to substantially the whole of their
respective undertakings.
1.3 Third Party Rights
(a) Except for the Subsidiary Guarantors, who shall each have the right to enforce or
enjoy the benefit of any term of this Agreement, a person who is not a Party has no
right under the Contracts (Rights of Third Parties) Act 1999 to enforce or enjoy the
benefit of any term of this Agreement, unless expressly provided to the contrary in
this Agreement.
(b) Notwithstanding any term of this Agreement, the consent of any person not a Party
is not required to rescind or vary this Agreement at any time.
2. PURPOSE OF THIS AGREEMENT
This Agreement sets out the basis upon which the Parties shall facilitate the
implementation of the Open Offer and the Restructuring, in each case in accordance with
the terms and conditions of this Agreement.
3. EFFECTIVENESS OF THIS AGREEMENT
This Agreement shall take effect on and from the Effective Date.
4. CONSENT FEE AND ADDITIONAL CONSENT FEE
4.1 The Company shall pay the Consent Fee and the Additional Consent Fee, on the
Restructuring Effective Date.
4.2 The Consent Fee shall be payable to each Consenting Creditor who:
(a) held Locked-up Notes at the Record Time; and
(b) has not breached any provision of this Agreement, in any material respect, unless
the failure to comply is capable of remedy and is remedied within three Business
Days of a notice by the Company or BCR to that Consenting Creditor.
4.3 Subject to Clause 4.4 below, the Additional Consent Fee shall be payable to each
Consenting Creditor who:
(a) held Locked-up Notes at the Record Time;
(b) is an Additional Consent Fee Creditor; and
(c) has not breached any provision of this Agreement, in any material respect, unless
the failure to comply is capable of remedy and is remedied within three Business
Days of a notice by the Company or BCR to that Consenting Creditor.
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4.4 If an Additional Consent Fee Creditor (or any fund or entity advised or managed by that
Additional Consent Fee Creditor and on whose behalf such Additional Consent Fee
Creditor is acting) transfers any part of its economic or beneficial interest as principal in
any Existing Notes to any person prior to the Record Time, the relevant Additional Consent
Fee Creditor shall not be entitled to receive the Additional Consent Fee payable in respect
of the principal amount of Existing Notes so transferred and such Additional Consent Fee
shall instead be payable to the relevant transferee, provided that such transferee accedes to
this Agreement as an Additional Consenting Creditor in accordance with Clause 10
(Accession) prior to the Record Time.
5. RELATIONSHIP WITH OTHER DOCUMENTS
5.1 Notwithstanding the terms of this Agreement, the Existing Finance Documents shall
continue in full force and effect, subject to the terms of this Agreement.
5.2 This Agreement sets out the Parties’ entire understanding of the Restructuring and
supersedes any previous agreement between any of the Parties with respect to the
Restructuring (and any such previous agreement shall cease to be binding on the relevant
Parties) without prejudice to any of the Existing Finance Documents.
6. PARTY’S RIGHTS AND OBLIGATIONS
6.1 The obligations of each Party under this Agreement are several. Failure by a Party to
perform its obligations under this Agreement does not affect the obligations of any other
Party under this Agreement. No Party is responsible for the obligations of any other Party
under this Agreement.
6.2 The rights of each Party under or in connection with this Agreement are separate and
independent rights. A Party may separately enforce its rights under this Agreement.
6.3 The liability of the Consenting Creditors for their obligations under this Agreement shall
be several and extend only to any loss or damage arising out of their own breaches of this
Agreement and failure by a Consenting Creditor to perform its obligations under this
Agreement shall not prejudice the rights or obligations of any other Consenting Creditor.
7. THE RESTRUCTURING
The Parties agree (subject only to the terms and conditions of this Agreement) that, if the
Termination Date has not occurred, each Party shall use all reasonable endeavours to
ensure that the Restructuring shall be implemented in accordance with the Restructuring
Documents and this Agreement.
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8. UNDERTAKINGS
Company, BCR and Parent Undertakings
8.1 During the Restructuring Period, each of the Company, BCR and the Parent undertakes, for
the benefit of each of the other Parties, to:
(a) progress the Open Offer and the Restructuring as soon as possible in accordance
with the terms set out in this Agreement;
(b) negotiate or prepare, in each case, in good faith, the Open Offer Documents and
Restructuring Documents and the Restructuring Conditions Precedent, so that the
Restructuring may be implemented as soon as is reasonably practicable after the
Scheme Sanction Order is delivered to ACRA;
(c) proceed with the Open Offer and use all reasonable endeavours to seek the approval
of the Open Offer by the requisite majority of the shareholders of the Parent such
that: (i) each shareholder of the Parent that validly takes up its rights to subscribe
for new shares in the capital of the Parent under the Open Offer is bound to deposit
its share of the net proceeds of the Open Offer in accordance with the terms of the
prospectus approved by the United Kingdom Listing Authority and published in
connection with the Open Offer and the admission of such new shares; and (ii) the
net proceeds of the Open Offer from the Subscriber will be deposited into the
Escrow Account on the Scheme Lodgement Date, subject to and in accordance with
the terms of the Subscription Agreement, to be released to the Parent immediately
following the admission of the new shares in the capital of the Parent issued
pursuant to the Open Offer to trading (which is expected to occur within seven
Business Days after the Scheme Lodgement Date), for utilization in accordance
with the terms of the Scheme;
(d) propose the Scheme and use all reasonable endeavours to seek the approval of the
Scheme by the Scheme Creditors and sanction of the Scheme by the Court;
(e) use all reasonable endeavours to seek the approval of the independent shareholders
of the Parent to a whitewash vote for the purposes of Rule 9 of the United Kingdom
City Code on Takeovers and Mergers;
(f) if applicable, use all reasonable endeavours to include the undertakings specified
by United Kingdom Listing Rule 6.1.4D in the Relationship Agreement;
(g) apply to the Court at the Scheme Directions Hearing for an order that the Obligors
be granted appropriate protection pursuant to section 210(10) of the Act and ensure
that it is an express term of such order that this protection end immediately on any
date on which this Agreement is terminated pursuant to Clause 17.4 (Automatic
Termination);
(h) use all reasonable endeavours to procure that the Restructuring Effective Date
occurs as soon as reasonably practicable;
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(i) use all reasonable endeavours to procure that the Scheme shall include provisions
providing for the termination of the Scheme:
(i) if all of the Restructuring Conditions Precedent have not been satisfied or
the relevant majority of Scheme Creditors reasonably determines that a
Restructuring Condition Precedent cannot be satisfied and will not be
waived prior to the Longstop Date;
(ii) if the net proceeds of the Open Offer from the Subscriber are not deposited
into the Escrow Account on the Scheme Lodgement Date or if the net
proceeds of the Open Offer from the Subscriber and from the other
shareholders of the Parent that have validly taken up their respective rights
to subscribe for new shares in the capital of the Parent pursuant to the terms
of the prospectus approved by the United Kingdom Listing Authority and
published in connection with the Open Offer are not released to the Parent
for utilization in accordance with the terms of the Scheme on or prior to the
date falling seven Business Days after the Scheme Lodgement Date; or
(iii) if the Scheme has not become fully effective in accordance with its terms on
or before the Longstop Date;
(j) comply with the Restructuring Terms and Restructuring Steps at the time and in the
manner set out therein;
(k) convene all meetings of the shareholders and/or creditors of the Parent, the
Company and/or BCR (as applicable) which are required to consider any
resolutions and/or decisions in relation to the Open Offer and the Restructuring;
(l) make all securities and other filings and announcements and publish all documents
and make all submissions required in connection with the matters contemplated by
this Agreement as and when necessary to comply with all applicable laws;
(m) use all reasonable endeavours to provide such assistance as may reasonably be
required by the Consenting Creditors for the purpose of any regulatory or statutory
clearance in connection with the Restructuring;
(n) promptly notify the Consenting Creditors if, since the date of this Agreement, there
have been any changes, events, or circumstances which could adversely affect the
business, operations, or condition (financial or otherwise) of the Group such that
the Group may not be able to perform its material obligations in accordance with
the Restructuring Terms and the Restructuring Steps, whether before or after the
Restructuring Effective Date;
(o) execute and/or deliver, within any applicable time period, all documents,
agreements, instructions, proxies, directions, and consents, and file all notices, and
take such other action that is consistent with or reasonably required to implement
the Open Offer and the Restructuring;
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(p) other than pursuant to the Restructuring Terms and the Restructuring Steps, refrain
from taking any steps to do or in relation to supporting, negotiating or preparing:
(i) any proposed restructuring, reorganisation, arrangement, composition, or
other restructuring procedure or issuance of equity or any right or
instrument with an equivalent effect in respect of the Group;
(ii) any attempt by any person to acquire all or substantially all the assets of the
Group; and/or
(iii) any petitions, applications or other documents in relation to any Insolvency
Proceedings;
(q) upon request by the Advisers, promptly supply to the Advisers:
(i) the aggregate number of Consenting Creditors and the aggregate amount of
Locked-up Notes which together they represent; and
(ii) updates regarding the status of the events set out in paragraph (b) of Clause
17.1 (Voluntary Termination) below;
(r) to the extent necessary and/or desirable in connection with the Restructuring, use
reasonable efforts to procure that each of their Subsidiaries take all necessary steps
required to support, and refrain from taking any action which would conflict with,
the Restructuring; and
(s) to continue to comply with all obligations under the Existing Notes including, but
not limited to, the obligation to pay interest and all amounts that fall due in respect
of the Existing Notes under the terms of the Existing Indentures, except as
otherwise contemplated in this Agreement.
Consenting Creditor Undertakings
8.2 During the Restructuring Period, each Consenting Creditor undertakes, for the benefit of
the Company, to:
(a) to the extent applicable, comply with the Restructuring Terms and the
Restructuring Steps at the time and in the manner set out therein;
(b) to the extent reasonably required or requested by the Company and/or BCR (as
applicable) to do so, enter into negotiations in good faith in order to agree the terms
of any Restructuring Documents in form and substance consistent with the
Restructuring Terms, in order to implement and consummate the Restructuring;
(c) support any application, filing and/or petition to the courts of any jurisdiction to
implement the Restructuring Terms, including (but not limited to) the application,
filing and/or petition for recognition and sanction of the Scheme, the Chapter 15
Filing and any other application, filing and/or petition in relation to the Chapter 15
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Order or any other restructuring procedure that is consistent with, or required to
implement, the Restructuring;
(d) support any application made to the Court for protection under section 210(10) of
the Act, provided that it is an express term of any related order issued by the Court
that this protection end immediately on any date on which this Agreement is
terminated pursuant to Clause 17.4 (Automatic Termination);
(e) vote and deliver within any applicable time periods any proxies, instructions,
directions, or consents in respect of the Existing Notes held by it, including
(without limitation) voting in favour of and taking all steps necessary to vote in
favour of the Scheme, in such manner as is reasonably required to implement the
Restructuring; and
(f) notify the Company and/or BCR (as applicable) of any change (whether an increase
or decrease) to the aggregate principal amount of its Locked-up Notes as soon as
reasonably practicable, and in any event within five Business Days from the date of
such change, by sending a Locked-up Notes Notice by email to the Company
and/or BCR (as applicable) at the email address specified pursuant to Clause 18.2
(Addresses);
(g) to refrain from taking any Enforcement Action;
(h) to accept the inclusion as a term of the Scheme, the Chapter 15 Filing and the
Chapter 15 Order of a standard and customary full and mutual release from liability
by and from the Company, BC, the Subsidiary Guarantors, the holders of the
Existing Notes and their respective Subsidiaries and all current and former direct
and indirect affiliates, equity-holders, members, managing members, officers,
directors, employees, advisors, principals, attorneys, professional advisors,
accountants, investment bankers, consultants, agents, and other representatives
(including their respective affiliates), in favor of each other, from any and all claims
or causes of action, known or unknown, relating to any acts or omissions arising on
or prior to the Restructuring Effective Date with respect or relating to the Existing
Notes. For the avoidance of doubt, such releases shall extend to any inter-company
liabilities and general liabilities of the Company, BC and the Subsidiary Guarantors
to the extent relating to the Existing Notes, including (but not limited to) any
guarantees issued by the Company and the Subsidiary Guarantors in respect of the
Existing Notes; and
(i) not to formulate, encourage, procure or otherwise support any alternative proposal
or alternate offer for the implementation of the Restructuring or to otherwise
engage in any discussions or take any action which would delay or impede any
approvals for the Restructuring.
Subscriber Undertakings
8.3 During the Restructuring Period, the Subscriber undertakes, for the benefit of each of the
other Parties, to:
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(a) progress and implement the Open Offer and the Restructuring as soon as possible in
accordance with the terms set out in this Agreement and the Subscription
Agreement;
(b) to the extent permitted by law or regulation, execute and/or deliver, within any
applicable time period, all documents, agreements, instructions, proxies, directions,
and consents, and file all notices, and take such other action that is reasonably
required to vote in favour of the Open Offer at any general meeting of the Parent
convened for such purpose; and
(c) if applicable, use all reasonable endeavours to include the undertakings specified
by United Kingdom Listing Rule 6.1.4D in the Relationship Agreement.
No Obligation
8.4 Nothing in this Agreement shall:
(a) require any Party (or any director, manager, or officer of that Party) to take action
which is prohibited or otherwise restricted by applicable law or regulation or
direction of any governmental authority or to waive or forego the benefit of any
applicable legal professional privilege;
(b) restrict any director, manager, or officer of the Company or BCR or the Parent from
complying with any legal obligations, legal and/or fiduciary duties or obligations
including, without limitation in relation to the commencement of Insolvency
Proceedings;
(c) restrict any Consenting Creditor from complying with any legal obligations;
(d) require any Consenting Creditor, in its capacity as a Note Creditor (or as adviser to
or manager of a Note Creditor) or otherwise, to incur or take any action that would
result in it incurring any out-of-pocket expense or other financial obligation;
(e) oblige any Consenting Creditor to incur any liability other than as expressly
contemplated by this Agreement; and
(f) require any Consenting Creditor to become restricted, receive any material
non-public information, or enter into a non-disclosure agreement with the
Company or any other Party.
9. CONSENT SOLICITATION
9.1 Each Consenting Creditor hereby agrees and consents to the amendment of the Existing
Finance Documents as follows:
(a) sections 14.07(a), 14.07(b) and 14.07(c) of the 2015 Indenture will each be deleted
and replaced as follows:
"SECTION 14.07. Governing Law, Consent to Jurisdiction; Waiver of
Immunities. (a) Each of the Notes, the Parent Guarantee, the Subsidiary
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Guarantees and this Indenture shall be governed by, and construed in accordance
with, the laws of the Republic of Singapore without giving effect to applicable
principles of conflicts of law to the extent that the application of the law of another
jurisdiction would be required thereby.
(b) The Company, the Parent Guarantor and each of the Subsidiary
Guarantors hereby irrevocably and unconditionally submits to the non-exclusive
jurisdiction of the Singapore courts over any suit, action or proceeding arising out
of or relating to this Indenture, any Note, the Parent Guarantee, or any Subsidiary
Guarantee or any transaction contemplated thereby. The Company, the Parent
Guarantor and each of the Subsidiary Guarantors irrevocably and unconditionally
waives, to the fullest extent permitted by applicable law, any objection which it
may now or hereafter have to the laying of the venue of any such suit, action or
proceeding brought in such a court and any claim that any such suit, action or
proceeding brought in such a court has been brought in an inconvenient forum. To
the extent that the Company, the Parent Guarantor or any Subsidiary Guarantor, as
the case may be, has or hereafter may acquire any sovereign or other immunity
from jurisdiction of any court or from any legal process with respect to itself or its
property, the Company, the Parent Guarantor or such Subsidiary Guarantor, as the
case may be, irrevocably waives such immunity in respect of its obligations
hereunder or under any Note, the Parent Guarantee or any Subsidiary Guarantee, as
applicable. The Company, the Parent Guarantor and each of the Subsidiary
Guarantors agree that final judgment in any such suit, action or proceeding brought
in such a court shall be conclusive and binding upon the Company, the Parent
Guarantor or the Subsidiary Guarantor, as the case may be, and, to the extent
permitted by applicable law, may be enforced in any court to the jurisdiction of
which the Company, the Parent Guarantor or any of the Subsidiary Guarantors, as
the case may be, is subject by a suit upon such judgment or in any manner provided
by law, provided that service of process is effected upon the Company, the Parent
Guarantor or any of the Subsidiary Guarantors, as the case may be, in the manner
specified in the following subsection or as otherwise permitted by applicable law.
(c) As long as any of the Notes remain Outstanding, the Company, the
Parent Guarantor and each of the Subsidiary Guarantors will at all times have an
authorized agent in Singapore, upon whom process may be served in any legal
action or proceeding arising out of or relating to this Indenture, any Note, the Parent
Guarantee or any Subsidiary Guarantee. Service of process upon such agent and
written notice of such service mailed or delivered to the Company, the Parent
Guarantor or any Subsidiary Guarantor, as the case may be, shall to the fullest
extent permitted by applicable law be deemed in every respect effective service of
process upon the Company, the Parent Guarantor or such Subsidiary Guarantor, as
the case may be, in any such legal action or proceeding. The Company, the Parent
Guarantor and each of the Subsidiary Guarantors hereby appoints the Company as
its agent for such purpose, and covenants and agrees that service of process in any
suit, action or proceeding may be made upon it at the office of the Company at 10
Anson Road, #03-05 International Plaza, Singapore 079903. Notwithstanding the
foregoing, the Company, the Parent Guarantor or any Subsidiary Guarantor may,
with prior written notice to the Trustee, terminate the appointment of the Company
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and appoint another agent for the above purposes so that the Company, the Parent
Guarantor and each of the Subsidiary Guarantors shall at all times have an agent for
the above purposes in Singapore."
(b) section 4 of the 2015 Supplemental Indenture will be deleted and replaced as
follows:
"SECTION 3. This Supplemental Indenture shall be governed by and
construed in accordance with the laws of the Republic of Singapore."
(c) sections 13.07(a), 13.07(b) and 13.07(c) of the 2017 Indenture will each be deleted
and replaced as follows:
SECTION 13.07. Governing Law, Consent to Jurisdiction; Waiver of
Immunities. (a) Each of the Notes and the Subsidiary Guarantees (other than the
Indonesian Law Guarantees) and this Indenture shall be governed by, and
construed in accordance with, the laws of the Republic of Singapore without giving
effect to applicable principles of conflicts of law to the extent that the application of
the law of another jurisdiction would be required thereby.
(b) The Company and each of the Subsidiary Guarantors hereby irrevocably
and unconditionally submits to the non-exclusive jurisdiction of the Singapore
courts over any suit, action or proceeding arising out of or relating to this Indenture,
any Note, any Subsidiary Guarantee or any transaction contemplated thereby. The
Company and each of the Subsidiary Guarantors irrevocably and unconditionally
waives, to the fullest extent permitted by applicable law, any objection which it
may now or hereafter have to the laying of the venue of any such suit, action or
proceeding brought in such a court and any claim that any such suit, action or
proceeding brought in such a court has been brought in an inconvenient forum. To
the extent that the Company or any Subsidiary Guarantor, as the case may be, has or
hereafter may acquire any sovereign or other immunity from jurisdiction of any
court or from any legal process with respect to itself or its property, the Company or
such Subsidiary Guarantor, as the case may be, irrevocably waives such immunity
in respect of its obligations hereunder or under any Note or any Subsidiary
Guarantee, as applicable. The Company and each of the Subsidiary Guarantors
agree that final judgment in any such suit, action or proceeding brought in such a
court shall be conclusive and binding upon the Company or the Subsidiary
Guarantor, as the case may be, and, to the extent permitted by applicable law, may
be enforced in any court to the jurisdiction of which the Company or any of the
Subsidiary Guarantors, as the case may be, is subject by a suit upon such judgment
or in any manner provided by law, provided that service of process is effected upon
the Company or any of the Subsidiary Guarantors, as the case may be, in the
manner specified in the following subsection or as otherwise permitted by
applicable law.
(c) As long as any of the Notes remain Outstanding, the Company and each
of the Subsidiary Guarantors will at all times have an authorized agent in Singapore,
upon whom process may be served in any legal action or proceeding arising out of
or relating to this Indenture, any Note or any Subsidiary Guarantee. Service of
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process upon such agent and written notice of such service mailed or delivered to
the Company or any Subsidiary Guarantor, as the case may be, shall to the fullest
extent permitted by applicable law be deemed in every respect effective service of
process upon the Company or such Subsidiary Guarantor, as the case may be, in
any such legal action or proceeding. The Company and each of the Subsidiary
Guarantors hereby appoints Berau Capital Resources as its agent for such purpose,
and covenants and agrees that service of process in any suit, action or proceeding
may be made upon it at the office of Berau Capital Resources at 10 Anson Road,
#03-05 International Plaza, Singapore 079903. Notwithstanding the foregoing, the
Company or any Subsidiary Guarantor may, with prior written notice to the Trustee,
terminate the appointment of Berau Capital Resources and appoint another agent
for the above purposes so that the Company and each of the Subsidiary Guarantors
shall at all times have an agent for the above purposes in Singapore."
(d) clauses 33.1, 33.2(a), 33.2(b) and 33.3(a) of the CAMA will each be deleted and
replaced as follows:
"33.1. Governing Law
This Agreement and any non-contractual obligations arising out of or in connection
with it are governed by the laws of the Republic of Singapore.
33.2 Jurisdiction
(a) The Singapore courts have exclusive jurisdiction to settle any dispute
relating to any non-contractual obligation arising out of or in connection
with this Agreement.
(b) The Singapore courts are the most appropriate and convenient courts to
settle any such dispute in connection with this Agreement. Each Obligor
and each Account Bank agrees not to argue to the contrary and waives
objection to those courts on the grounds of inconvenient forum or otherwise
in relation to proceedings in connection with this Agreement.
33.3 Service of Process
(a) Each Obligor hereby irrevocably appoints Berau Capital Resources Pte.
Ltd., 10 Anson Road, #03-05 International Plaza, Singapore 079903 as its agent
under this Agreement for service of process in any proceedings before the
Singapore courts in connection with this Agreement."
(e) clauses 27, 28.1(a), 28.1(b) and 28.2(a)(i) of the Intercreditor Agreement will each
be deleted and replaced as follows:
"27. GOVERNING LAW
This Agreement and any non-contractual obligations arising out of or in connection
with it are governed by the laws of the Republic of Singapore.
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28. ENFORCEMENT
28.1 Jurisdiction
(a) The courts of Singapore have exclusive jurisdiction to settle any dispute
arising out of or in connection with this Agreement (including a dispute
relating to the existence, validity or termination of this Agreement or any
non-contractual obligation arising out of or in connection with this
Agreement) (a Dispute).
(b) The Parties agree that the courts of Singapore are the most appropriate and
convenient courts to settle Disputes and accordingly no Party will argue to
the contrary.
28.2 Service of Process
(a) Without prejudice to any other mode of service allowed under any relevant
law each Debtor (unless incorporated in Singapore):
(i) irrevocably appoints Berau Capital Resources Pte. Ltd.,10 Anson
Road, #03-05 International Plaza, Singapore 079903 as its agent for service
of process in relation to any proceedings before the Singapore courts in
connection with this Agreement; and"
(f) clause 8 of the reverse of the Global Notes will be deleted and replaced as follows:
“This Note shall be governed by, and construed in accordance with, the laws of the
Republic of Singapore.”
9.2 Each of the Parent, BCR and the Consenting Creditors acknowledges and confirms that,
except to the extent expressly supplemented, varied or amended by Clause 9.1 above, the
terms and conditions of each of the Existing Indentures, the CAMA, the Intercreditor
Agreement and the Global Notes are hereby confirmed and shall remain in full force and
effect.
9.3 The amendment to the Existing Finance Documents provided for in Clause 9.1 above shall
(to the extent effective in accordance with the terms of the Existing Finance Documents) be
effective from the Effective Date, but shall automatically cease to apply or have any further
force or effect on and from any date on which this Agreement is terminated pursuant to
Clause 17.1 (Voluntary Termination), Clause 17.3 (Subscriber Termination) or Clause
17.4 (Automatic Termination). For the avoidance of doubt, on and from any date on which
this Agreement is so terminated, the provisions of the Existing Finance Documents
purported to be amended pursuant to Clause 9.1 above shall continue in full force and
effect in the form in which they existed immediately prior to the Effective Date.
9.4 Each of the Parties shall promptly execute and deliver all such other documents or
agreements and take such other action as may be reasonably necessary or desirable for the
implementation of this Clause 9 (including any amendment to an Existing Finance
Document intended to conform any provision of such Existing Finance Document with the
23
amendments made pursuant to Clause 9.1 above), but provided always that any document
or agreement to be executed by any Consenting Creditor must be in a form and substance
which is reasonably satisfactory to that Consenting Creditor.
10. ACCESSION
10.1 Each Initial Consenting Creditor shall provide a Locked-up Notes Notice to the Company
and/or BCR (as applicable) on or before the date falling one Business Day after the date of
this Agreement.
10.2 A Note Creditor (or any fund or other entity advising or managing a Note Creditor and that
is acting on its behalf) who is not a Party to this Agreement may accede to this Agreement
as an Additional Consenting Creditor by delivering to the Company and/or BCR a properly
completed and executed Accession Deed.
10.3 Each Party and any Additional Consenting Creditor agrees that any Additional Consenting
Creditor that executes an Accession Deed shall be:
(a) a Party to this Agreement; and
(b) bound by, and entitled to enforce, the terms of this Agreement as if they were an
original party to this Agreement,
in each case, on and from the date of its Accession Deed.
10.4 The Company and/or BCR may request, and the relevant Consenting Creditor shall
(subject to any confidentiality undertakings by which such Consenting Creditor is bound)
deliver such evidence as may reasonably be required by the Company and/or BCR to prove
(to the reasonable satisfaction of the Company and/or BCR) beneficial ownership of the
relevant Existing Notes in relation to which a Consenting Creditor claims it has signed the
Accession Deed and in respect of which a Consent Fee and/or an Additional Consent Fee
has accrued.
10.5 The Company and/or BCR shall treat all information that it receives from Consenting
Creditors for the purpose of reconciling their positions or entitlement to the Consent Fee
and/or the Additional Consent Fee as confidential information.
11. TRANSFERS
11.1 No Consenting Creditor may assign or otherwise transfer all or any part of its legal or
beneficial interests, rights, benefits or obligations under or in respect of any of the Existing
Notes held by it or implement any transaction of a similar or equivalent economic effect
(collectively, a “Transfer”) other than in accordance with Clause 11.2 below.
11.2 During the Restructuring Period, a Transfer will only be effective if the relevant transferee
is either a Consenting Creditor or has first agreed to be bound by the terms of this
Agreement as a Consenting Creditor by acceding to this Agreement in accordance with
Clause 10.2 (Accession) above.
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11.3 An Accession Deed will take effect on and from the date on which it is delivered to the
Company, in the manner contemplated in the Accession Deed and Clause 10.2 (Accession)
above, and with effect from that date:
(a) any Party transferring the Existing Notes shall be discharged from all its
obligations towards the other Parties under this Agreement in respect of those
Existing Notes and their respective rights against one another in respect of those
Existing Notes shall be cancelled (except in each case for those rights which arose
prior to that date); and
(b) the replacement or new Note Creditor, if it is not already a Consenting Creditor,
shall become a Party to this Agreement as an Additional Consenting Creditor and
shall assume the same obligations and become entitled to the same rights and shall
be entitled to enforce the terms of this Agreement, as if it had been an original party
to this Agreement in that capacity.
11.4 Without prejudice to Clauses 11.2 and 11.3 above, if any Consenting Creditor purports to
effect a Transfer before the relevant transferee is bound by the terms of this Agreement in
accordance with this Clause 11, that Consenting Creditor shall remain liable as a
Consenting Creditor in respect of its obligations and liabilities under this Agreement, in
respect of the relevant Locked-up Notes, until the relevant transferee is bound by the terms
of this Agreement in accordance with this Clause 11.
11.5 Notwithstanding any term of this Agreement:
(a) this Clause 11 shall not preclude any Consenting Creditor from transferring or
delivering any Existing Notes to settle any confirmed transaction pending at the
date of such Consenting Creditor’s entry into this Agreement and Clauses 11.2 and
11.4 above shall not apply to any such transfer or delivery; and
(b) a Qualified Market-maker that acquires an interest in the Existing Notes with the
purpose and intent of acting as a Qualified Market-maker in respect of the Existing
Notes, shall not be required to execute and deliver an Accession Deed in
accordance with Clause 10 (Accession) or this Clause 11 or otherwise agree to be
bound by the terms and conditions set forth in this Agreement if such Qualified
Market-maker transfers such interest in the Existing Notes (by purchase, sale,
assignment, participation, or otherwise) within five Business Days of its acquisition
to a Consenting Creditor or to a transferee who accedes to this Agreement as an
Additional Consenting Creditor in accordance with Clause 10 (Accession).
12. REPRESENTATIONS OF THE CONSENTING CREDITORS
Each Consenting Creditor makes the following representations and warranties to each of
the other Parties: (i) on the date of this Agreement (or the date of its Accession Deed, in
respect of each Additional Consenting Creditor); and (ii) on the date of each Locked-up
Notes Notice it delivers:
(a) it is duly incorporated (if a corporate person) or duly established (in any other case)
and validly existing under the laws of its jurisdiction of incorporation or
25
formulation (as applicable) and has the power to enter into this Agreement and
perform its obligations hereunder;
(b) the entry into and performance by it of this Agreement does not conflict in any
material respect with any law or regulation applicable to it or its constitutional
documents or any agreement or instrument binding on it or any of its assets;
(c) it has complied with all necessary formalities required in connection with, and has
the power and authority to enter into and comply with, its obligations under this
Agreement;
(d) it is either: (A) the holder of its Locked-up Notes; or (B) a fund, investment
manager or other entity advising or managing a Note Creditor; and, in each case, it
is authorised and legally entitled and able to control the exercise of votes in relation
to its Locked-up Notes (or, in the case of sub-paragraph (B) above, the Locked-up
Notes of the Note Creditor it advises or manages) in order to comply with the terms
of this Agreement; and
(e) the aggregate principal amount of its Locked-up Notes is as set out in its Initial
Locked-up Notes Notice or Accession Deed (as applicable) or any further
Locked-up Notes Notices provided to the Company and/or BCR (as appropriate).
13. REPRESENTATIONS OF THE COMPANY, BCR AND THE PARENT
Each of the Company, BCR and the Parent makes the following representations and
warranties on the date of this Agreement to the Consenting Creditors:
(a) it is duly incorporated and validly existing under the laws of its jurisdiction of
incorporation and has the power to own its material assets and carry on business in
all material respects as currently conducted;
(b) the entry into of this Agreement will not conflict in any material respect with:
(i) any laws or regulations applicable to it; or
(ii) its or any of the Subsidiary Guarantors’ constitutional documents;
(c) it has complied with all necessary corporate formalities required in connection with,
and has the power and authority to enter into and comply with, its obligations under
this Agreement; and
(d) as far as it is aware, no Insolvency Proceeding has been instituted against any
Group Company; and
(e) the implementation of the Restructuring and each Restructuring Step does not
require any consent or approval from any person that has made credit facilities
available to any member of the Group and will not result in any breach of the terms
of any document or understanding pursuant to which any such credit facilities were
made available.
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14. REPRESENTATIONS OF THE SUBSCRIBER
The Subscriber makes the following representations and warranties on the date of this
Agreement to the Consenting Creditors:
(a) it is duly incorporated and validly existing under the laws of its jurisdiction of
incorporation and has the power to own its material assets and carry on business in
all material respects as currently conducted;
(b) the entry into of this Agreement will not conflict in any material respect with:
(i) any laws or regulations applicable to it; or
(ii) its constitutional documents;
(c) it has complied with all necessary corporate formalities required in connection with,
and has the power and authority to enter into and comply with, its obligations under
this Agreement; and
(d) as far as it is aware, no Insolvency Proceeding has been instituted against it.
15. REPRESENTATIONS OF EACH PARTY
Each Party makes the following representations and warranties on the date of this
Agreement to each other Party that:
(a) it has been represented by counsel (or had the opportunity to and waived its right to
do so) in connection with this Agreement and the Restructuring Terms;
(b) the execution, delivery, and performance by it of this Agreement do not require any
registration or filing with, consent or approval of, or notice to, or other action to,
with, or by, any federal, state, or other governmental authority or regulatory body,
except for:
(i) such filings as may be necessary and/or required for disclosure by the U.S.
Securities and Exchange Commission and applicable state securities or
“blue sky” laws in the United States;
(ii) any filings required in connection with the Scheme, the Chapter 15 Filing
and/or the Chapter 15 Order; and
(iii) in the case of the Company, BC and/or the Subsidiary Guarantors only:
(A) the filing of any necessary amended articles of association or
formation or other organizational documents with applicable
incorporation authorities; and
(B) other registrations, filings, consents, approvals, notices, or other
actions that are reasonably necessary to maintain permits, licenses,
qualifications, and governmental approvals to carry on the
27
respective businesses of the Company, BC and/or the Subsidiary
Guarantors.
16. ACKNOWLEDGEMENTS
Each of the Parties confirms and acknowledges that:
(a) this Agreement and the Restructuring Terms are the product of negotiations among
the Parties, together with their respective representatives and financial and legal
advisors. This Agreement is not, and shall not be deemed to be, a solicitation of
votes for the acceptance of the Chapter 15 Filing or the Chapter 15 Order or any
plan of reorganization for the purposes of the U.S. Bankruptcy Code or otherwise.
The Company, BC and the Subsidiary Guarantors will not solicit acceptances of the
Scheme and/or the Chapter 15 Filing from any Consenting Creditor until such
Consenting Creditor has, in accordance with the terms of this Agreement, been
provided with a copy of the Explanatory Statement for the Scheme in the form
approved by the Court for distribution to Scheme Creditors;
(b) nothing contained in this Agreement shall be deemed to be an admission of any
kind. In connection with the Chapter 15 Filing and the Chapter 15 Order, pursuant
to Federal Rule of Evidence 408 and any applicable state rules of evidence, this
Agreement shall not be admissible into evidence in any proceeding other than a
proceeding to enforce the terms of this Agreement;
(c) no consideration shall be due or paid to the Consenting Creditors for their
agreement to support or not interfere with the Scheme, the Chapter 15 Filing or the
Chapter 15 Order in accordance with the terms and conditions of this Agreement,
other than the Consent Fee and (where applicable) the Additional Consent Fee and
otherwise as expressly set out in this Agreement; and
(d) any custodian, depositary, agent or management company that executes this
Agreement or any Accession Deed for and on behalf of any Consenting Creditor, in
circumstances where the relevant Consenting Creditor is or becomes a party to this
Agreement and such custodian, depositary, agent or management company merely
executes this Agreement or the relevant Accession Deed on its behalf, shall have no
obligations or liability under this Agreement or the relevant Accession Deed.
17. TERMINATION
17.1 Voluntary Termination
This Agreement shall be terminated, in respect of all Parties:
(a) at the election of the Company and BCR if one or more Consenting Creditor(s)
which hold(s) (or advises or manages one or more Note Creditor(s) which hold(s))
25% or more of the aggregate claims against the Company and BCR in respect of
the 2015 Notes and/or the 2017 Notes do (does) not comply with any provision of
this Agreement in any material respect, and in a manner reasonably likely to cause
the Restructuring not to become effective on substantially the same terms or
28
timetable as contemplated by the Restructuring Terms, unless the failure to comply
is capable of remedy and is remedied within three Business Days of a notice by the
Company and BCR to the relevant Consenting Creditor(s) pursuant to this Clause
17;
(b) by the delivery of a notice of termination to the Company and other Parties:
(i) by the Majority Consenting Creditors, if the Company and/or BCR and/or
the Subscriber does not comply with any provisions in this Agreement in
any material respect, unless the failure to comply is capable of remedy and
is remedied within five Business Days of that notice;
(ii) by the Majority Consenting Creditors or the Company or BCR, if the Parties
have not agreed the final form Restructuring Documents on or before 30
April 2015;
(iii) by the Majority Consenting Creditors or the Company or BCR, if the Court
fails to grant an order convening the Scheme Meeting on or before 30 May
2015;
(iv) by the Majority Consenting Creditors or the Company or BCR if the
extraordinary general meeting of the Parent fails to approve the Open Offer
by 30 May 2015;
(v) by the Majority Consenting Creditors or the Company or BCR, if the net
proceeds of the Open Offer from the Subscriber are not received into the
Escrow Account on the Scheme Lodgement Date;
(vi) by the Super Majority Consenting Creditors or the Company or BCR if,
after the date of this Agreement, an event occurs which has a Material
Adverse Effect;
(vii) by the Super Majority Consenting 2015 Note Creditors, if a 2015 Event of
Default occurs after the date of this Agreement;
(viii) by the Super Majority Consenting 2017 Note Creditors, if a 2017 Event of
Default occurs after the date of this Agreement; and
(ix) by the Majority Consenting Creditors or the Company or BCR, if any
Enforcement Action is taken in respect of the 2017 Notes or the 2015 Notes.
17.2 Individual Noteholder Termination
This Agreement shall be terminated, in respect of a Consenting Creditor (but shall continue
in full force and effect in respect of the other Parties):
(a) at the election of the Company and BCR, by the delivery of a written notice of
termination to a Consenting Creditor, if that Consenting Creditor does not comply
with any undertaking in this Agreement in any material respect, unless the failure to
29
comply is capable of remedy and is remedied within five Business Days of the
Company and BCR delivering a notice to the relevant Consenting Creditor alleging
such failure to comply;
(b) at the election of an Initial Consenting Creditor only, by the delivery of a written
notice of termination to the Company, if the Company has not paid any fees and
expenses of the Advisers agreed with the Company in accordance with the
applicable fee letters for such Advisers; or
(c) if that Consenting Creditor sells, transfers, assigns or otherwise disposes of all of its
Locked-up Notes in accordance with Clause 11 (Transfers).
17.3 Subscriber Termination
This Agreement shall be terminated, in respect of the Subscriber only and not any other
Party, at the election of the Majority Consenting Creditors, by the delivery of a written
notice of termination to the Subscriber, if the Subscriber does not comply with any
undertaking in this Agreement in any material respect, unless the failure to comply is
capable of remedy and is remedied within five Business Days of the Majority Consenting
Creditors delivering a notice to the Subscriber alleging such a failure to comply.
17.4 Automatic Termination
Without prejudice to any prior termination in respect of all Parties in accordance with
Clause 17.1 (Voluntary Termination), this Agreement shall terminate, in respect of all
Parties, upon the occurrence of any of the following events:
(a) the termination of the Subscription Agreement;
(b) the Restructuring Effective Date;
(c) the Longstop Date;
(d) at the Scheme Meeting, in the event that a vote takes place and the Scheme is not
approved by the requisite majorities of the Note Creditors specified in section
210(2) of the Act;
(e) at the Scheme Sanction Hearing, in the event that the Scheme Sanction Order is not
granted by the Court;
(f) at the extraordinary general meeting of the Parent convened for the purpose of
approving the Open Offer in the event that the Open Offer is not so approved; or
(g) Insolvency Proceedings, other than the Scheme, the Chapter 15 Filing and the
Chapter 15 Order, occur in relation to any Group Company.
17.5 Effect of Termination
30
Upon any termination in accordance with this Clause 17, the relevant Party(ies) shall be
immediately released from all their obligations and shall have no rights under this
Agreement, provided that such termination and release:
(a) shall be without limitation to, and does not in any way affect, the obligations of the
Company and BCR to, or rights of the Company and BCR against, any Permitted
Transferee with respect to the Existing Notes which the relevant Consenting
Creditor has sold, transferred, assigned or otherwise disposed of to that Permitted
Transferee;
(b) shall not limit or prejudice the rights of any Party against any other Party which
have accrued or relate to breaches of the terms of this Agreement at the time or
prior to termination;
(c) in the case of a right of termination expressed to apply solely in respect of a Party,
shall not affect the rights, obligations, and liabilities of the other Parties;
(d) shall not limit the effect of Clauses 17 (Termination), 18 (Notices), 19 (Partial
Invalidity), 20 (Amendments and Waivers), 21 (Publicity), 23 (Governing Law) and
24 (Enforcement), which shall continue to apply; and
(e) shall be without limitation to and does not in any way affect the obligations of the
Company and BCR to bear all costs, fees and expenses incurred in connection with
the negotiation, preparation and implementation of the Restructuring (including,
but not limited to, the fees and expenses of the Advisers).
17.6 No Termination for Own Breach
Notwithstanding any other Clause in this Agreement, nothing in this Agreement shall allow
any Party to terminate this Agreement as a result of its own breach of this Agreement.
18. NOTICES
18.1 Communications in Writing
Any communication to be made under or in connection with this Agreement shall be made
in writing and, unless otherwise stated, may be made by fax or letter or (in accordance with
Clause 18.3 (Delivery) below) by email.
18.2 Addresses
The address, fax number, and electronic communication details (and the department or
officer, if any, for whose attention the communication is to be made) of each Party for any
communication or document to be made or delivered under or in connection with this
Agreement is:
(a) in the case of the Company, BCR, the Parent, the Subscriber and each Initial
Consenting Creditor, that identified with its name below; and
31
(b) in the case of each Additional Consenting Creditor, that notified in writing to the
Company and BCR on or prior to the date on which it becomes a Party, or any
substitute address, email address or fax number or department or officer as any
Party may notify to the Company and BCR by not less than five Business Days’
notice.
18.3 Delivery
(a) Any communication or document made or delivered by one person to another
under or in connection with this Agreement will only be effective:
(i) if by way of fax, when received in legible form;
(ii) if by way of letter, when it has been left at the relevant address or five
Business Days after being couriered by a reputable courier service (courier
prepaid) in an envelope addressed to it at that address; or
(iii) if by way of electronic communication, only when actually received in
readable form,
and, if a particular department or officer is specified as part of its address details
provided under Clause 18.2 (Addresses), if addressed to that department or officer.
(b) Any communication or document made or delivered to the Company and/or BCR
in accordance with this Clause 18.3 will be deemed to have been made or delivered
to each of the Obligors.
18.4 Notification of Address and Fax Number
Promptly upon receipt of notification of an address or fax number or change of address or
fax number pursuant to Clause 18.2 (Addresses) or changing its own address or fax number,
the Company and/or BCR (as applicable) shall notify the other Parties.
18.5 English language
Any communication to be made or document to be given under or in connection with this
Agreement must be:
(a) in English; or
(b) if not in English, accompanied by a certified English translation and, in this case,
the English translation will prevail unless the document is a constitutional,
statutory or other official document.
19. PARTIAL INVALIDITY
If, at any time, any provision of this Agreement is or becomes illegal, invalid or
unenforceable in any respect under any law of any jurisdiction, neither the legality, validity
or enforceability of the remaining provisions nor the legality, validity or enforceability of
32
such provision under the law of any other jurisdiction will in any way be affected or
impaired.
20. AMENDMENTS AND WAIVERS
20.1 Subject to Clause 20.2, any term of this Agreement may be amended or waived in writing
by the Majority Consenting Creditors, the Company, BCR and the Subscriber.
20.2 Any amendment or waiver which has the effect of: (i) changing the definition of Majority
Consenting Creditors or the definition of Super Majority Consenting Creditors; or (ii)
modifying the Restructuring Terms in a manner that has (or might reasonably be expected
to have) a material adverse effect on the economic terms of the Restructuring; may only be
made in writing and with the consent of the Super Majority Consenting Creditors, the
Company, BCR and the Subscriber.
20.3 Any amendment or waiver (as applicable) made in accordance with Clause 20.1 or Clause
20.2 above shall be binding on all Parties.
21. PUBLICITY
All Parties agree to this Agreement and its Schedules being publicly disclosed by the
Company (except for Schedule 1 (The Initial Consenting Creditors), which shall not be
disclosed to any person other than the Consenting Creditors). The Company may not
disclose the identity of any Consenting Creditor or the amount of any Consenting
Creditor’s Locked-up Notes to any other person without the prior written consent of that
Consenting Creditor, provided that:
(a) the Company may disclose, at any time, the aggregate number of Consenting
Creditors and the aggregate principal amount of Locked-up Notes;
(b) the Company may disclose a copy of this Agreement (and any Accession Deeds
and/or notices served hereunder) to the Trustee and Common Security Agent;
(c) the Company may disclose the terms of this Agreement to the Court as part of the
evidence to be submitted in respect of the Scheme and in support of any application
to the courts of any jurisdiction for recognition of the Scheme; and
(d) the Company may publish the Cleansing Announcement in accordance with and as
defined in the Confidentiality Agreement.
22. PURCHASE OF EXISTING NOTES
Nothing in this Agreement will prevent a Consenting Creditor (or any fund or other entity
advised or managed by such Consenting Creditor) from purchasing Existing Notes
(including Existing Notes which are not subject to this Agreement) and any such Existing
Notes will, upon that purchase becoming effective, automatically become Locked-up
Notes, unless and to the extent that such Existing Notes are: (i) held in custody for a third
party; or (ii) held or otherwise acquired by one or more of a Consenting Creditor’s
proprietary trading desks when acting as a market maker.
33
23. GOVERNING LAW
This Agreement and all non-contractual obligations arising from or connected with it are
governed by English law.
24. ENFORCEMENT
24.1 Arbitration
Any dispute arising out of or in connection with this Agreement, including any question
regarding its existence, validity, or termination, or the interpretation or enforcement of any
provision hereof, shall be referred to and finally resolved by arbitration under the rules of
arbitration of the Singapore International Arbitration Centre, which rules are deemed
incorporated into this clause.
(a) The seat of arbitration shall be Singapore.
(b) The number of arbitrators shall be three. Two of the arbitrators shall be nominated
by the respective parties and the third, who shall be the Chairman of the tribunal,
shall be appointed by the Chairman of the Singapore International Arbitration
Centre. It is hereby expressly agreed that if there is more than one claimant party
and/or more than one respondent party, the claimant parties shall together nominate
one arbitrator and the respondent parties shall together nominate one arbitrator.
(c) The language to be used in the arbitral proceedings shall be English.
24.2 Waiver of Immunity
Each of the Company, BCR and the Parent waives all immunity, whether from suit, against
execution of any judgment or otherwise, that it or its property may have. In particular, but
without limitation, each of the Company, BCR and the Parent consents to:
(a) the giving of any relief by way of injunction or order for specific performance or for
the recovery of land or other property; and
(b) the issue of any process against its property for the enforcement of a judgment.
24.3 Specific Performance
The Parties agree that damages would not be a sufficient remedy for the breach by any
Party of any terms of this Agreement. Accordingly, any non-breaching Party may seek
specific performance and injunctive or other equitable relief as a remedy for any such
breach. Such remedies shall, however, be cumulative and not exclusive and shall be in
addition to any remedies which any Party may be entitled under this Agreement or
otherwise.
25. COUNTERPARTS
This Agreement may be executed in any number of counterparts, and this has the same
effect as if the signatures on the counterparts were on a single copy.
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26. LANGUAGE
The Company will prepare and execute, within 10 Business Days of the date hereof, a
Bahasa Indonesia translation of this Agreement in accordance with Law Number 24 of
2009 of the Republic of Indonesia regarding Flag, Language, Coat of Arms and National
Anthem, which will be executed by each of the other Parties. For the avoidance of doubt,
the existence of two versions of this Agreement is not to be construed by any Party to
create duplication or multiplication of the rights and obligations of the Parties under the
English version. Each Party agrees, for the benefit of each other Party, that: (i) the English
version of this Agreement shall prevail for all purposes (including, but not limited to,
interpretation and determination of the terms and conditions of this Agreement) in the
event of any discrepancy between the English version of this Agreement and the Bahasa
Indonesia version; and (ii) the Bahasa Indonesia version of this Agreement shall be
interpreted in the same manner as the English version of this Agreement.
This Agreement has been entered into on the date stated at the beginning of this Agreement.
35
SCHEDULE 1
THE INITIAL CONSENTING CREDITORS
[To be inserted]
36
SCHEDULE 2
RESTRUCTURING TERMS
PROJECT BIRCH
TERM SHEET
31 March 2015
Restructuring The following notes (the “Old Notes”) will be exchanged for
New Notes (defined below) by way of a Singapore scheme of
arrangement (the “Scheme”) on or before 31 July 2015 (the
“Notes Exchange”):
US$450,000,000 12.5% guaranteed senior secured notes
due 2015 (the “2015 Notes”) issued by Berau Capital
Resources Pte. Ltd.; and
US$500,000,000 7.25% guaranteed senior secured notes
due 2017 (the “2017 Notes”) issued by PT Berau Coal
Energy Tbk. (“BCE”).
The Notes Exchange and the Equity Contribution (defined
below) are referred to collectively as the “Restructuring”. As
a result of the Scheme (and any related recognition under
Chapter 15 of the U.S. Bankruptcy Code), the Notes
Exchange will be binding on all persons holding an economic
or beneficial interest as principal in the Old Notes (each a
“Noteholder”).
Restructuring Support Agreement and
Consent Fees
Each Noteholder will be asked to execute an agreed form of
restructuring support agreement (the “RSA”), to which this
Term Sheet will be appended. Each Noteholder that executes
or accedes to the RSA will be paid a consent fee equal to 0.2%
of the face amount of the Old Notes held by such Noteholder
at the record date for the Scheme. An additional early-bird fee
of 0.2% of such face amount will be paid to any Noteholder
that takes such action on or prior to 15 April 2015 (the
“Early-Bird Date”). BCE may at its discretion extend the
Early-Bird Date by posting the extended date on its website
and providing the information to the clearing agencies for
dissemination to Noteholders.
Conditions Precedent The Notes Exchange will be conditional upon: (i) the RSA
being executed by Noteholders representing such face amount
of the Old Notes as may be agreed by Asia Resource Minerals
PLC, the indirect parent company of BCE (“ARMS”), and
NR Holdings (acting reasonably); (ii) negotiation of
definitive documentation in relation to the Scheme and the
New Notes; (iii) completion of the Equity Contribution and
the Scheme; and (iv) all necessary consents and approvals,
including (but not limited to) the consent of Sojitz
37
Corporation (“Sojitz”), to the Notes Exchange and the
Scheme being obtained.
Equity Contribution NR Holdings will fully underwrite new equity in ARMS via
an open offer of ARMS’ shares at a price of £0.25 per share
such that US$100,000,000 will be raised thereunder as part of
the restructuring (the “Equity Contribution”).
ARMS will use the net proceeds from the Equity Contribution
to make a US$95,000,000 shareholder loan to BCE that:
(1) is subordinated to the New Notes, any RCF (defined
below) and any other debt that accedes to the New
Intercreditor Agreement (defined below), pursuant to an
agreed form subordination deed;
(2) will bear interest at an anticipated rate of approximately
10% per annum (subject to confirmation from appropriate
tax advisers that this is the lowest rate possible given
transfer pricing constraints);
(3) will accrue interest on a payment-in-kind basis; and
(4) will not be repaid prior to full repayment of the New
Notes.
Prepayment of Old Notes
On the New Issue Date (defined below) and prior to issuance
of the New Notes, the Old Notes will be partly prepaid as
follows:
US$62,470,000 of the proceeds from the Equity
Contribution and other BCE cash will be applied in
prepayment of the 2015 Notes, without premium; and
US$56,280,000 of the proceeds from the Equity
Contribution and other BCE cash will be applied in
prepayment of the 2017 Notes, without premium.
Interest on Old Notes Accrued but unpaid interest in respect of the Old Notes will be
paid in cash on the New Issue Date.
New Notes The following notes (the “New Notes”) will be issued
pursuant to the Restructuring and the Scheme:
US$387,530,000 aggregate principal amount of step-up
rate guaranteed senior secured notes due 2019 (the “2019
Notes”), to be issued in exchange for the 2015 Notes; and
US$443,720,000 aggregate principal amount of step-up
rate guaranteed senior secured notes due 2020 (the “2020
Notes”), to be issued in exchange for the 2017 Notes.
New Issuer The New Notes will be issued by Berau Capital Resources II
Pte. Ltd. (“BCR”), a special purpose vehicle incorporated in
Singapore that is a wholly-owned subsidiary of BCE.
Following issuance of the New Notes, BCE will have the
38
option to cause a Netherlands special purpose vehicle that is a
wholly-owned subsidiary of BCE to become the issuer of the
New Notes by assuming the rights and obligations of BCR.
BCE shall ensure that any New Notes issued by BCR
constitute “Qualifying Debt Securities” under applicable
Singapore legislation.
Prepayment of New Notes
Guarantors
2.5% of the original principal amount of the New Notes
(totaling US$23,750,000) will be prepaid, together with
accrued and unpaid interest to the prepayment date, following
one or more Guarantors (defined below) obtaining revolving
credit facility (“RCF”) commitments in an aggregate amount
of US$50,000,000. In the event that a lower RCF
commitment is received, a proportionate principal amount of
the New Notes will be prepaid (together with accrued and
unpaid interest to the prepayment date). Any such
prepayments will be allocated between the New Notes on a
pari passu and pro rata basis.
The New Notes will be guaranteed by BCE (the “Parent
Guarantor”) and the following subsidiaries of BCE (the
“Subsidiary Guarantors”):
PT Berau Coal (“Berau Coal”);
PT Armadian Tritunggal;
Empire Capital Resources Pte. Ltd.;
Winchester Investment Holdings PLC;
Aries Investments Limited;
Seacoast Offshore Inc.;
Maple Holdings Limited;
PT Banua Karsa Mitra; and
PT Energi Bara Sarana.
“Guarantors” means, collectively, the Parent Guarantor and
the Subsidiary Guarantors.
Restricted Subsidiaries
Unrestricted Subsidiaries
Each subsidiary of the Parent Guarantor that is not an
Unrestricted Subsidiary.
PT Mutiara Tanjung Lestari, PT Pelayaran Sanditia Perkasa
Maritim, PT Manira Mitra and PT Kirana Berau.
New Maturity Dates The 2019 Notes will mature on 31 July 2019.
The 2020 Notes will mature on 31 December 2020.
New Interest Rates The New Notes will bear interest from and including the date
of their issuance (the “New Issue Date”) at the following
39
rates per annum, payable monthly in arrears in cash or by
issuance of additional New Notes (“PIK”) as specified
below:
T + 0-18 months 6.75% (3.0% cash, 3.75% PIK)
T + 19-30 months 7.5% (3.5% cash, 4% PIK)
T + 31-42 months 8% (4.5% cash, 3.5% PIK)
T + 43-54 months 8.25% cash
Thereafter 9% cash
At its option, the New Issuer will be entitled to pay any PIK
interest amounts in cash instead.
New Interest Payment Dates Interest on the New Notes will be due and payable on the last
day of each calendar month, commencing on the first such
day falling at least one month after the New Issue Date.
Cash Waterfall Under the New CAMA (defined below), with certain limited
exceptions set out in the Old CAMA (defined below), all of
the cash receipts of the Guarantors, including all the coal sales
revenues of Berau Coal, will be deposited into designated
accounts (collectively, the “Collection Accounts”) and
subsequently applied towards the following:
(1) recurring and non-recurring taxes of the Guarantors (with
the account holding funds for this purpose referred to as
the “Tax Reserve Account”);
(2) budgeted operating and capital expenses of the
Guarantors (with the accounts holding funds for this
purpose referred to as the “Operational Accounts” and
“Operating Reserve Accounts”);
(3) (a) payments to Sojitz as the 10% shareholder of Berau
Coal (with the account holding funds for this purpose
referred to as the “Sojitz Reserve Account”); and
(b) required interest service under the New Notes (with
the accounts holding funds for this purpose referred
to as the “2019 Notes Debt Service Account” and
the “2020 Notes Debt Service Account” and,
collectively, as the “New Debt Service Accounts”);
and
(4) for any sums remaining after the foregoing application
(“Remaining Cash”), remittance to a reserve account
(the “Berau Energy Reserve Account”).
For the avoidance of doubt, restricted cash on BCE’s balance
sheet on the New Issue Date (which includes IPO proceeds
and customer guarantees) will not be included in the cash
waterfall or treated as Remaining Cash.
Cash Sweep For a period of two years following the first anniversary of the
New Issue Date, a cash sweep mechanism will apply pursuant
40
to which: (i) 50% of any Excess Cash will be transferred
semi-annually from the Berau Energy Reserve Account to a
new reserve account (the “Notes Repurchase Account”);
and (ii) proceeds in the Notes Repurchase Account will be
used as often as possible, but no less than twice in each
calendar year, for deleveraging (e.g. making tender offers or
conducting Dutch auctions in relation to the New Notes).
“Excess Cash” means any Remaining Cash in excess of
US$75,000,000.
Detailed drafting for the cash sweep mechanism and the
related provisions of the New CAMA will be agreed between
the parties, with the agreed language to reconcile with BCE’s
filed accounts.
Asset Sale Proceeds All net after-tax cash proceeds received by the Guarantors
from asset sales, litigation or other dispute resolution
proceedings and other non-recurring sources will be
deposited into the relevant proceeds account (the “Berau
Coal Asset Sale Proceeds Account” for cash received by
Berau Coal and its subsidiaries and “Berau Energy Asset
Sale Proceeds Account” for cash received by all other
Guarantors) and subsequently applied as follows:
For cash in the Berau Coal Asset Sale Proceeds Account:
(1) 10% of such cash will be transferred to the Sojitz
Reserve Account for payments to Sojitz as the 10%
shareholder of Berau Coal; and
(2) the remaining 90% of such cash will be transferred
to the Berau Energy Reserve Account as Remaining
Cash and further applied pursuant to the cash sweep
mechanism described above, together with other
Remaining Cash.
For cash in the Berau Energy Asset Sale Proceeds
Account, 100% of such cash will be transferred to the
Berau Energy Reserve Account as Remaining Cash and
further applied pursuant to the cash sweep mechanism
described above, together with other Remaining Cash.
New Cash and Accounts Management
Agreement
On July 20, 2010, the issuers of the Old Notes and others
entered into a Cash and Accounts Management Agreement
(the “Old CAMA”), pursuant to which a series of domestic
and offshore bank accounts were established with designated
account banks. The Old CAMA will be amended (such
agreement, as so amended, the “New CAMA”) to reflect the
Cash Waterfall, Cash Sweep and Asset Sale Proceeds
provisions summarized above and such that:
(1) funds on deposit in the Collection Accounts, the
Operational Accounts and the Operating Reserve
Accounts will be released daily;
41
(2) the interest reserve accounts and debt service accounts for
the Old Notes will become inoperative;
(3) the funds in the interest reserve accounts for the Old
Notes on the New Issue Date will be released for general
corporate purposes;
(4) the New Debt Service Accounts will be established for
interest service as described above, and will initially be
funded with transfers of sums on deposit in the existing
debt service accounts and subsequently filled up linearly
(i.e. with bi-weekly payments of a pro rata portion of the
monthly coupon payment on the New Notes);
(5) funds will be deposited in the Tax Reserve Account to
cover non-recurring tax liabilities as well as recurring tax
liabilities;
(6) budgets may be submitted twice in each calendar year;
and
(7) the New CAMA may be amended with the approval of
80% of the holders of the New Notes.
Ranking The New Notes will:
be general obligations of the New Issuer;
be senior in right of payment to any existing and future
obligations of the New Issuer expressly subordinated in
right of payment to the New Notes;
rank at least pari passu in right of payment with all
unsubordinated indebtedness of the New Issuer (subject
to any priority rights of such unsubordinated
indebtedness pursuant to applicable law);
be guaranteed by the Guarantors on an unsubordinated
basis; and
be secured by first priority liens on the Collateral.
Guarantees The Guarantors will guarantee the due and punctual payment
of the principal of, premium, if any, and interest on, and all
other amounts payable under the New Notes (the
“Guarantees”).
Each Guarantee will:
be a general obligation of the relevant Guarantor;
be effectively subordinated to secured obligations of the
relevant Guarantor, in relation to and only to the extent of
the value of the assets (other than the Common Security
(defined below)) serving as security therefor;
be senior in right of payment to all future obligations of
the relevant Guarantor expressly subordinated in right of
payment to that Guarantee;
rank at least pari passu in right of payment with all
42
unsecured, unsubordinated indebtedness of the relevant
Guarantor (subject to any priority rights of such
unsecured, unsubordinated indebtedness pursuant to
applicable law); and
be secured by first priority liens on the Collateral.
The Guarantees will be contained in the Indentures (defined
below). Each Guarantor that is incorporated in Indonesia will
also enter into a separate Indonesian law guarantee (an
“Indonesian Guarantee”) in the Indonesian language and
notarial deed form.
Subsidiary Guarantees The Parent Guarantor will:
(i) cause each of its future Restricted Subsidiaries (other
than a finance subsidiary), immediately upon the Parent
Guarantor becoming the direct or indirect holder of more
than 80% of the voting stock of such Restricted
Subsidiary;
(ii) use its best efforts to cause each of its other future
Restricted Subsidiaries (other than a finance subsidiary),
immediately upon becoming a Restricted Subsidiary;
and
(iii) use its best efforts to cause each of its Restricted
Subsidiaries that is a finance subsidiary, immediately
upon ceasing to be a finance subsidiary,
to execute and deliver to the Trustee (defined below): (a) a
supplemental indenture to the relevant indenture for the New
Notes (each an “Indenture”) pursuant to which such
Restricted Subsidiary will guarantee the payment of the New
Notes; and (b) if such Restricted Subsidiary is an Indonesian
company, an Indonesian Guarantee.
Collateral The obligations of the New Issuer and the Guarantors under
and in respect of the New Notes, the Guarantees and the
Indentures will be secured by the Notes Collateral and the
Common Security.
Notes Collateral The Notes Collateral shall consist of a security interest in the
relevant New Debt Service Account.
Common Security The common security (“Common Security”) shall consist of
the following:
pledges of the capital stock owned by any Guarantor in
any person that is a Restricted Subsidiary (other than a
finance subsidiary (except the New Issuer)) as of the New
Issue Date on a first priority basis;
pledges of the capital stock owned by any Guarantor in
any person that becomes a Restricted Subsidiary (other
than a finance subsidiary (except the New Issuer)) or is a
43
Restricted Subsidiary that ceases to be a finance
subsidiary after the New Issue Date, immediately upon
such person becoming a Restricted Subsidiary or ceasing
to be a finance subsidiary;
security to be provided by Berau Coal, including:
(1) fiduciary security in respect of all material assets; and
(2) assignments of all key contracts and related
receivables;
assignments of any intercompany advances made by the
New Issuer and any Guarantor;
appropriate security interests in respect of all bank
accounts as provided for under the New CAMA; and
appropriate security interests in respect of any other
assets that form part of the collateral package for the Old
Notes.
The Common Security will be granted in favour of the
Common Security Agent (defined below) and held in
accordance with the terms of the New Intercreditor
Agreement (defined below).
New Intercreditor Agreement The Trustee and Common Security Agent, on behalf of the
holders of New Notes, will enter into a new intercreditor
agreement (the “New Intercreditor Agreement”) to replace
the existing Intercreditor Agreement dated 19 July 2010. The
New Intercreditor Agreement will govern the relationship
among the holders of the New Notes and the holders of any
other permitted pari passu secured indebtedness.
Optional Redemption of New Notes Subject to the cash sweep requirements described above, the
New Notes may be redeemed at the option of the New Issuer
as follows:
At any time and from time to time on and after the New
Issue Date and prior to the relevant New Maturity Date,
the New Issuer may redeem the New Notes in whole or in
part at a redemption price equal to applicable percentage
of the principal amount of the New Notes set forth below
plus accrued and unpaid interest (if any) to the
redemption date:
2019 Notes 2020 Notes
T + 0-12 months 104% 105%
T + 13-24 months 103% 104%
T + 25-36 months 102% 103%
T + 37-48 months 101% 102%
T + 49-60 months -- 101%
Thereafter -- 100%
At any time and from time to time after the New Issue
44
Date and prior to the relevant New Maturity Date, the
New Issuer may redeem up to 35% of the aggregate
principal amount of the New Notes with the net cash
proceeds of one or more equity offerings at a redemption
price of 101% of the principal amount of the New Notes
(or the redemption price set forth in the preceding
paragraph if lower) plus accrued and unpaid interest (if
any) to the redemption date; provided that at least 65% of
the original principal amount of the New Notes remains
outstanding after each such redemption and any such
redemption takes place within 60 days after the closing of
the related equity offering.
Notwithstanding the foregoing, none of the following will
constitute a redemption of the New Notes for such purpose or
otherwise carry any redemption premium:
any assignment, assumption, exchange, transfer or
refinancing of the New Issuer’s obligations under the
New Notes to or with Berau Coal;
any application of Excess Cash in redemption of New
Notes as described under “Cash Sweep” above; or
any prepayment of the New Notes with the net proceeds
of an RCF.
Repurchase of New Notes upon a
Change of Control Triggering Event
Not later than 30 days following a Change of Control
Triggering Event, the New Issuer or the Parent Guarantor will
make an offer to purchase all outstanding New Notes at a
purchase price equal to 101% of the principal amount thereof
plus accrued and unpaid interest, if any, to the applicable
payment date. A “Change of Control Triggering Event”
would occur upon, among other things: (a) ARMS or its
affiliates individually or collectively owning less than 50.1%
of the voting stock of the Parent Guarantor; or (b) a
substantial change to the board of directors of the Parent
Guarantor.
Redemption for Taxation Reasons Subject to certain exceptions, the New Issuer may redeem the
New Notes, in whole but not in part, at a redemption price
equal to 100% of the principal amount thereof, together with
accrued and unpaid interest (including any Additional
Amounts (defined below)), if any, to the date fixed by the
New Issuer for redemption, if, as a result of certain changes in
tax law, the New Issuer, the Parent Guarantor or any
surviving person (as the case may be) would be required to
pay certain Additional Amounts (or, in the case of any
payment with respect to an intercompany loan, would be
required to withhold or deduct any taxes, duties, assessments
or governmental charges of whatever nature); provided that
where any such requirement to pay Additional Amounts (or
withhold or deduct an amount from any payment with respect
45
to an intercompany loan) is due to Indonesian taxes, the New
Notes may be redeemed only if the rate of withholding or
deduction in respect of which Additional Amounts are
required (or in respect of which withholding is required on
payments on an intercompany loan) is in excess of 20%.
Withholding Tax; Additional Amounts Payments with respect to the New Notes and the Guarantees
will be made without withholding or deduction for, or on
account of, taxes imposed by the jurisdictions in which the
New Issuer or Guarantors are organized or resident for tax
purposes or through which payments are made, except as
required by law. Where such withholding or deduction is
required by law, the New Issuer or relevant Guarantor will
make such deduction or withholding and will pay such
additional amounts (“Additional Amounts”) as will result in
receipt by the holders of New Notes of such amounts as
would have been received by such holders had no such
withholding or deduction been required.
Continuing Covenants The Indentures for the 2019 Notes and the 2020 Notes will
contain covenants that are substantially the same as those
contained in the indentures for the 2015 Notes and the 2017
Notes, respectively. Among other things, those covenants will
limit the ability of the New Issuer and the Guarantors to take
the following actions, subject to certain limitations,
exceptions and qualifications:
incur additional indebtedness;
make investments or other specified restricted payments;
declare dividends on capital stock or purchase or redeem
capital stock;
enter into agreements that restrict the Restricted
Subsidiaries’ ability to pay dividends and transfer assets
or make inter-company loans;
issue or sell capital stock of Restricted Subsidiaries;
have Restricted Subsidiaries issue guarantees;
enter into transactions with equity holders or affiliates;
create any lien;
enter into sale and leaseback transactions;
sell or otherwise dispose of assets;
engage in different business activities; or
effect a consolidation or merger.
Modified Covenants
As part of the Restructuring, certain terms of the 2019 Notes
will be modified so that they conform to the corresponding
terms of the 2017 Notes (as reflected in the terms of the 2020
Notes). Those conformed terms will be:
46
a US$50,000,000 working capital basket to enable
incurrence of the RCF;
permitted liens to secure the debt described in the
preceding bullet point;
a US$40,000,000 capex basket, subject to a minimum
unlevered free cash flow internal rate of return threshold
of 15%, as approved by BCE's auditors;
a revised Change of Control definition that refers to
current BCE shareholders and affiliates;
a revised permitted reorganisations formulation;
permitted subordinated shareholder loans to BCE; and
re-setting of the restricted payment baskets at 31
December 2015, but provided that BCE will only be
permitted to make restricted payments (including paying
dividends) where: (a) fixed charge coverage ratio is
greater than 3x; (b) BCE has a positive retained earnings
balance; (c) payment is required or permitted under
Indonesian law; and (d) no interest has been capitalized
and added to the principal amount of the New Notes
during the preceding 12 month period.
Selling and Transfer Restrictions The New Notes will not be registered under the U.S.
Securities Act or under any state securities law of the United
States and will be subject to customary restrictions on transfer
and resale.
Form, Denomination and Registration The New Notes will be issued only in fully registered form,
without coupons, in denominations of US$200,000 and
integral multiples of US$1,000 in excess thereof and will be
initially represented by Global Notes registered in the name of
a nominee of DTC.
Book-Entry Only The New Notes will be issued in book-entry form through the
facilities of DTC for the accounts of its participants, including
Euroclear and Clearstream.
Governing Law The New Notes, the Guarantees (other than any Indonesian
Guarantee), the Indentures, the New CAMA and the New
Intercreditor Agreement will be governed by, and construed
in accordance with, the laws of the State of New York. The
Trustee, Common Security Agent and (where applicable) the
holders of the New Notes will have the option to commence
proceedings in the New York courts or elect SIAC arbitration.
Each Indonesian Guarantee will be governed by, and
construed in accordance with, the laws of the Republic of
Indonesia. The collateral documents will be governed by
applicable local law.
47
Trustee The Bank of New York Mellon.
Principal Paying Agent, Transfer Agent
and Registrar
The Bank of New York Mellon.
Common Security Agent Credit Suisse AG, Singapore Branch
Listing Approval-in-principle will be sought for the listing of the
New Notes on the SGX-ST by the time of delivery of the
offering memorandum for the issuance of the New Notes. If
they are listed, the New Notes will be traded on the SGX-ST
in a minimum board lot size of US$200,000.
48
SCHEDULE 3
RESTRUCTURING STEPS
It is anticipated that the following principal steps (details of which will be more fully explained in
the Explanatory Statement) will occur as part of the Restructuring and shall take effect in
substantially the following order (the “Restructuring Steps”):
1.1 As soon as possible after the execution of this Agreement but, in any event, by no later than
15 June 2015, the Parent will:
(a) solicit and obtain from the United Kingdom Listing Authority an approval of the
form of all Open Offer Documents that require such approval (including, without
limitation, the necessary circular and prospectus);
(b) convene an extraordinary general meeting of the Parent to approve all steps
required or desirable in relation to the Open Offer; and
(c) ensure that: (i) each shareholder of the Parent that takes up its right to subscribe for
new shares in the capital of the Parent is bound to deposit its share of the net
proceeds of the Open Offer in accordance with the terms of the prospectus
registered with the United Kingdom Listing Authority and issued in connection
with the Open Offer; and (ii) the Subscriber is bound to deposit its share of the net
proceeds of the Open Offer into the Escrow Account on the Scheme Lodgement
Date, subject to the terms of the Subscription Agreement.
1.2 As soon as possible after the execution of this Agreement but, in any event, by no later than
30 April 2015, the Company will:
(a) convene a meeting of the Company’s board of directors to:
(i) approve making an application to the Court under section 210 of the Act to
obtain leave to convene the Scheme Meeting and obtain other directions
required in connection with the Scheme; and
(ii) appoint the Chapter 15 Representative and approve the Chapter 15
Representative filing the Chapter 15 Filing with the U.S. Bankruptcy Court,
in the event that the Company elects (in its sole discretion) to proceed with
the Chapter 15 Filing; and
(b) file the Scheme Directions Application with the Court.
1.3 As soon as reasonably practicable:
(a) after the Scheme Directions Application is filed, the Company will proceed with
the Scheme Directions Hearing and apply to the Court for an order that, amongst
other things, the Scheme Meeting be summoned to consider the Scheme and the
Obligors be granted appropriate protection pursuant to section 210(10) of the Act;
and
49
(b) after the Scheme Directions Hearing:
(i) the Company will make the Explanatory Statement (which will include the
Scheme) available to all Scheme Creditors in accordance with the directions
of the Court at the Scheme Directions Hearing;
(ii) the Company will publicly advertise the Scheme Meeting to all Scheme
Creditors in accordance with the directions of the Court at the Scheme
Directions Hearing;
(iii) each Consenting Note Creditor will procure that its Account Holder
executes and delivers to the Company a completed Account Holder Letter
voting in favour of the Scheme in accordance with the procedure for
submission of Account Holder Letters outlined in the Explanatory
Statement; and
(iv) in the event that the Company elects (in its sole discretion) to proceed with
the Chapter 15 Filing, the Company will file the Chapter 15 Filing such that
the Chapter 15 Hearing will be held as soon as possible thereafter.
1.4 As soon as reasonably practicable after the Scheme Directions Hearing, the Company will
convene the Scheme Meeting and, assuming that the relevant consent thresholds are
reached, file the result with the Court and proceed with the Scheme Sanction Hearing,
requesting that the Scheme Sanction Order be granted.
1.5 On the Business Day on which the Scheme Sanction Order has been granted by the Court,
or as soon as possible thereafter, the Company will:
(a) file the Scheme Sanction Order with ACRA (the “Scheme Lodgement Date”); and
(b) to the extent authorised by the Scheme, sign the Restructuring Documents and
procure that each of the Subsidiary Guarantors and any other relevant Group
Company signs the Restructuring Documents.
1.6 The proceeds of the Open Offer to be contributed by the Subscriber will be deposited into
the Escrow Account on the Scheme Lodgement Date.
1.7 The net proceeds of the Open Offer contributed by the Subscriber shall be released from
the Escrow Account to the Parent immediately following the admission of the new shares
in the capital of the Parent issued pursuant to the Open Offer to trading (which is expected
to occur within seven Business Days after the Scheme Lodgement Date), for utilization by
the Parent in accordance with the terms of the Scheme.
1.8 In the event that the Company elects (in its sole discretion) to proceed with the Chapter 15
Filing, the Company will as soon as possible after the Scheme Lodgement Date,
represented by the Chapter 15 Representative, attend the Chapter 15 Hearing to seek the
Chapter 15 Order.
50
1.9 Upon obtaining the Chapter 15 Order (if applicable) and satisfaction of all other conditions
to the Restructuring Documents and the Scheme, the Restructuring Documents shall
become immediately effective in accordance with their terms and the Company shall apply
the net proceeds of the Open Offer, which shall include the net proceeds from the
Subscriber that were deposited into the Escrow Account and the net proceeds from the
other shareholders of the Parent that have validly taken up their respective rights to
subscribe for new shares in the capital of the Parent pursuant to the terms of the prospectus
registered with the United Kingdom Listing Authority and issued in connection with the
Open Offer, in accordance with the terms of the Scheme and in any event prior to the
Restructuring Effective Date.
1.10 The Company shall publicly announce completion of the Restructuring.
51
SCHEDULE 4
ACCESSION DEED
To: PT Berau Coal Energy Tbk. and Berau Capital Resources Pte. Ltd.
From: [Additional Consenting Creditor]
Date: [●]
Dear Sirs,
Lock-Up and Restructuring Agreement
dated [●] 2015 (the “Agreement”)
1. We refer to the Agreement. This is an Accession Deed as defined in the Agreement. Except
as otherwise defined herein, terms defined in the Agreement have the same meaning when
used in this Accession Deed.
2. We agree, for the benefit of each Party, to be a Consenting Creditor under the Agreement
and to be bound by the terms of the Agreement as a Consenting Creditor.
3. We agree, represent and warrant to each other Party on the date of this Accession Deed that
(subject to any Transfers effected in accordance with Clause 11 (Transfers) of the
Agreement), we or the entity that we represent (if applicable) are the beneficial owner of
and have full power to vote in respect of, deal with, approve changes to, dispose of and
transfer (free and clear of any and all Encumbrances) (or are able to direct the legal and
beneficial owner of) the Existing Notes as set out below:
Existing
Notes
ISIN
Number
Principal amount
of Existing Notes
held or controlled
at the date of this
Accession Deed
Clearing System
through which the
Existing Notes are
held
Clearing
System Account
Number
through which
the Existing
Notes are held
US$450
million
12.5%
guaranteed
senior
secured notes
due 2015
issued by
BCR
pursuant to
the 2015
USY1004W
AA46
US083518A
A82
52
Indenture
US$500
million
7.25%
guaranteed
senior
secured notes
due 2017
issued by the
Company
pursuant to
the 2017
Indenture
USY711AQ
AA43
US69369L
AA17
Please specify the name of the Note Creditor if different from the Consenting Creditor: [●]
Name of Clearing System Account Holder: [●]
4. The contact details of [Additional Consenting Creditor] for any communication or
document to be made or delivered under or in connection with the Agreement are as
follows:
Address: [●]
Fax number: [●]
Email: [●]
For the attention of: [●]
Bank account details for Consent Fee and/or Additional Consent Fee (as applicable): [●]
5. This Accession Deed and any non-contractual obligations arising out or in connection with
it are governed by English law.
6. We would request that you treat the existence and contents of this Accession Deed with the
utmost confidence and that you do not disclose these to any person without our prior
written consent.
Executed and delivered as a deed by:
[The Additional Consenting Creditor]
53
………………………………………......
Name:
54
SCHEDULE 5
LOCKED-UP NOTES NOTICE
BY EMAIL
Date:
To: PT Berau Coal Energy Tbk. and Berau Capital Resources Pte. Ltd.
Attention: [●]
Email: [●]
FROM: [Name of Consenting Creditor and Address]
1. We refer to the lock-up and restructuring agreement dated [●] 2015 between, among others,
PT Berau Coal Energy Tbk., Berau Capital Resources Pte. Ltd. and the Initial Consenting
Creditors (the “Agreement”). Capitalised terms in the Agreement have the same meaning
as in this notice.
2. This is a Locked-up Notes Notice. We hereby notify you that, as at the date of this notice,
the aggregate principal amount of our Locked-up Notes is as follows:
Existing Notes ISIN Number Principal
amount of
Existing Notes
held or
controlled at the
date of
Locked-up
Notes Notice
Clearing
System
through which
the Existing
Notes are held
Clearing
System
Account
Number
through which
the Existing
Notes are held
US$450 million
12.5% guaranteed
senior secured notes
due 2015 issued by
BCR pursuant to the
2015 Indenture
USY1004W
AA46
US083518A
A82
55
US$500 million
7.25% guaranteed
senior secured notes
due 2017 issued by
the Company
pursuant to the 2017
Indenture
USY711AQ
AA43
US69369LA
A17
Please specify the name of the Note Creditor if different from the Consenting Creditor: [●]
3. This Locked-up Notes Notice and any non-contractual obligations arising out of or in
connection with it are governed by English law.
4. We would request that you treat the existence and contents of this Locked-up Notes Notice
with the utmost confidence and that you do not disclose these to any person without our
prior written consent.
Yours faithfully,
[The Consenting Creditor]
………………………………………......
Name:
SIGNATURE PAGES
PT BERAU COAL ENERGY TBK.
By: ______________________________
Name: Paul Fenby
Title: Director
Notices
Address: Sampoerna Strategic Square North Tower, 15th Floor, Jl. Jend Sudirman Kav
45-46, Jakarta, Indonesia
Fax: +62 21-57951444
Attention: Paul Fenby
Email: [email protected]
with copies to:
DLA Piper Singapore Pte. Ltd.
80 Raffles Place
48-01 UOB Plaza 1
Singapore
048624
FAO: Joe Bauerschmidt
Fax: +65 6512 9500
Email: [email protected]
Houlihan Lokey
83 Pall Mall
London
SW1Y 5ES
FAO: Joseph Swanson / Christopher Foley / Brandon Gale
Fax: +44 (0) 20 7839 5566
Email: [email protected] / [email protected] / [email protected]
57
BERAU CAPITAL RESOURCES PTE. LTD.
By: ______________________________
Name: Gamal H Wanengpati
Title: Director
Notices
Address: 10 Anson Road, #03-05 International Plaza, Singapore 079903
Fax: +65 6323 3959
Attention: Gamal H Wanengpati
Email: [email protected]
58
ASIA RESOURCE MINERALS PLC
By: ______________________________
Name: Hamish Tyrwhitt
Title: Chief Executive Officer
Notices
Address: Atlas House, 3rd Floor, 173 Victoria Street, London SW1E 5NE
Fax: +44 (0) 20 7201 7501
Attention: Company Secretary
Email: [email protected]
59
NR HOLDINGS LIMITED
By: ______________________________
Name: Artemis Corporate Services Limited
Title: Director
Notices
Address: Gibson, Dunn & Crutcher LLP, Telephone House, 2-4 Temple Avenue, London
EC4Y OHB
Fax: +44 (0)20 7070 9221
Attention: Nigel Stacey
Email: [email protected]
60
THE INITIAL CONSENTING CREDITORS
[Signature blocks to be inserted]