A$ LOAN AGREEMENT
Details
INTERPRETATION - Definitions are at the end of this agreement before the
schedules.
PARTIES COMPANY and LENDER, each as described below.
COMPANY Name SYNTROLEUM AUSTRALIA CREDIT CORPORATION
0000 Xxxxx Xxxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxxx 00000-0000
Address United States of America
Fax (000) 000-0000
Telephone (000) 000-0000
Attention Xxxxxxx X. Xxxxxxxx,
Vice-President and Chief Financial Officer
LENDER Name COMMONWEALTH OF AUSTRALIA REPRESENTED BY THE DEPARTMENT OF
INDUSTRY SCIENCE AND RESOURCES (INVEST AUSTRALIA)
Xxxxx 0, 00 Xxxxxx Xxxxxx
Xxxxxxxx XXX 0000
Address Australia
Fax (00 0) 0000 0000
Telephone (00 0) 0000 0000
Attention General Manager, Invest Australia
FACILITIES
Tranche A Facility Limit A$12,000,000, as reduced by the
total of all cancellations prepayments and repayments under this agreement.
Tranche A Availability Period Subject to clause 7, the period from the
date of this agreement to 30 September 2000.
Tranche A Maturity Date The 25th anniversary of the date the Tranche A
Facility is drawndown.
Tranche B Facility Limit A$8,000,000, as reduced by the total of all
cancellations prepayments and repayments under this agreement.
Tranche B Availability Period Subject to clause 7, the period from the
Business Day after the Tranche A Facility is drawndown to 30 June 2001.
Tranche B Maturity Date The 25th anniversary of the date the Tranche B
Facility is drawndown.
Tranche C Facility Limit A$20,000,000, as reduced by the total of all
cancellations prepayments and repayments under this agreement.
Tranche C Availability Period Subject to clause 7, the period from the
Business Day after the Tranche B Facility is drawndown to 30 June 2002.
Tranche C Maturity Date The 25th anniversary of the date the Tranche C
Facility is drawndown.
PURPOSE The proceeds from each Drawing are to be provided to the Parent
to be applied by it (directly or indirectly) for facilitating the further
research development and demonstration of the Parent's gas-to-liquids technology
directed to the production in Australia of synthetic fuel products for the
Australian market.
TRANSACTION DOCUMENTS
Include:
- this agreement
- any Drawdown Notice
- the Escrow Agreement
BUSINESS DAY PLACE(S) Canberra, ACT, Australia and Tulsa, Oklahoma,
USA.
TIME A time of day is a reference to Canberra time.
GOVERNING LAW Australian Capital Territory
DATE OF AGREEMENT See Signing page
THE FACILITIES AND FACILITY LIMITS
LENDER TO FUND
The Lender agrees to provide the financial accommodation requested by the
Company under this agreement, and has all necessary approvals to obtain the
appropriations necessary to do so.
MAXIMUM ACCOMMODATION - TRANCHE A
The maximum total amount of financial accommodation available to the Company
under the Tranche A Facility is the Tranche A Facility Limit.
MAXIMUM ACCOMMODATION - TRANCHE B
The maximum total amount of financial accommodation available to the Company
under the Tranche B Facility is the Tranche B Facility Limit.
MAXIMUM ACCOMMODATION - TRANCHE C
The maximum total amount of financial accommodation available to the Company
under the Tranche C Facility is the Tranche C Facility Limit.
CURRENCY OF DRAWING
Each drawing is to be made available in Australian Dollars.
USING THE TRANCHE A FACILITY
DRAWING DOWN
The Company need not use the Tranche A Facility. However, if the Company wants
to use the Tranche A Facility, it may do so by a single drawdown.
REQUESTING A DRAWDOWN
If the Company wants to drawdown the Tranche A Facility, it agrees to give a
Drawdown Notice to the Lender one month before the day it wants the drawdown,
accompanied by a certificate signed by an Authorised Officer of the Company
identifying each condition in schedule 2 and, with respect to each condition:
(a) stating that the condition has been satisfied; and
(b) providing such evidence as is necessary in the Company's opinion to
support its conclusion that the condition has been satisfied.
MAKING AVAILABLE TRANCHE A FACILITY
Subject to this agreement, the Lender agrees to make available the amount of the
Tranche A Facility Limit according to the Drawdown Notice.
TRANCHE A CONDITIONS PRECEDENT
The Lender need not provide any financial accommodation under the Tranche A
Facility unless it is satisfied that the conditions in schedule 2 have been met
or it has waived them in writing. If the Company complies with clause 2.2, but
the Lender is not satisfied that those conditions have been met (and does not
waive them), the Lender must no later than the requested Drawdown Date, notify
the Company (TRANCHE A NON-SATISFACTION NOTICE):
(a) that it is not satisfied; and
(b) why it is not satisfied.
NON-RESPONSE
Where the Lender does not provide a Tranche A Non-Satisfaction Notice to the
Company under clause 2.4, the Lender must make the amount of the Tranche A
Facility Limit available according to the Drawdown Notice.
DISAGREEMENT
If after receiving a Tranche A Non-satisfaction Notice the Company still
maintains that the conditions in schedule 2 have been met, the Company and the
Lender must determine on a process by which their disagreement can be resolved.
In determining that process and implementing it, the Company and the Lender must
act promptly in good faith and in a reasonable manner. Where the disagreement
is not resolved before the end of the availability period for the Tranche A
Facility, the Lender must deposit an amount equal to the Tranche A Facility
Limit into escrow according to clause 7.
ESCROW NOTICE
Where the Company has not given a Drawdown Notice to the Lender by the date
(THAT DATE) which is 15 days prior to the end of the availability period for the
Tranche A Facility, the Company must, on that date, give to the Lender a notice
signed by an Authorised Officer of the Company identifying with respect to each
condition in schedule 2:
(a) progress made in satisfying the condition;
(b) the reason for any delay in satisfying the condition;
(c) the steps the Company is taking or proposes to take to satisfy the
condition; and
(d) the date by which the Company believes that the condition will be
satisfied,
and the Lender must deposit an amount equal to the Tranche A Facility Limit into
escrow according to clause 7.
USING THE TRANCHE B FACILITY
DRAWING DOWN
The Company need not use the Tranche B Facility. However, if the Company wants
to use the Tranche B Facility, it may do so by a single drawdown.
REQUESTING A DRAWDOWN
If the Company wants to drawdown the Tranche B Facility, it agrees to give a
Drawdown Notice to the Lender one month before the day it wants the drawdown,
accompanied by a certificate signed by an Authorised Officer of the Company
identifying each condition in schedule 3 and, with respect to each condition:
(a) stating that the condition has been satisfied; and
(b) providing such evidence as is necessary in the Company's opinion to
support its conclusion that the condition has been satisfied.
MAKING AVAILABLE TRANCHE B FACILITY
Subject to this agreement, the Lender agrees to make available the amount of the
Tranche B Facility Limit according to the Drawdown Notice.
CONDITIONS PRECEDENT
The Lender need not provide any financial accommodation under the Tranche B
Facility unless it is satisfied that the conditions in schedule 3 have been met
or it has waived them in writing. If the Company complies with clause 3.2, but
the Lender is not satisfied that those conditions have been met (and does not
waive them), the Lender must no later than the requested Drawdown Date, notify
the Company (TRANCHE B NON-SATISFACTION NOTICE):
(a) that it is not satisfied; and
(b) why it is not satisfied.
NON-RESPONSE
Where the Lender does not provide a Tranche B Non-Satisfaction Notice to the
Company under clause 3.4, the Lender must make the amount of the Tranche B
Facility Limit available according to the Drawdown Notice.
DISAGREEMENT
If after receiving a Tranche B Non-satisfaction Notice the Company still
maintains that the conditions in schedule 3 have been met, the Company and the
Lender must determine a process by which their disagreement can be resolved. In
determining that process and implementing the agreed process, the Company and
the Lender must act promptly, in good faith and in a reasonable manner. Where
the disagreement is not resolved before the end of the availability period for
the Tranche B Facility the Lender must deposit an amount equal to the Tranche B
Facility Limit into escrow according to clause 7.
ESCROW NOTICE
Where the Company has not given a Drawdown Notice to the Lender by the date
(THAT DATE) which is one month prior to the end of the availability period for
the Tranche B Facility, the Company must, on that date, give to the Lender a
notice signed by an Authorised Officer of the Company identifying with respect
to each condition in schedule 3:
(a) progress in satisfying the condition;
(b) the reason for any delay in satisfying the condition;
(c) the steps the Company is taking or proposes to take to satisfy the
condition; and
(d) the date by which the Company believes that the condition will be
satisfied,
and the Lender must deposit an amount equal to the Tranche B Facility Limit into
escrow according to clause 7.
USING THE TRANCHE C FACILITY
DRAWING DOWN
The Company need not use the Tranche C Facility. However, if the Company wants
to use the Tranche C Facility, it may do so by a single drawdown.
REQUESTING A DRAWDOWN
If the Company wants to drawdown the Tranche C Facility, it agrees to give a
Drawdown Notice to the Lender one month before the day it wants the drawdown,
accompanied by a certificate signed by an Authorised Officer of the Company
identifying each condition in schedule 4 and, with respect to each condition:
(a) stating that the condition has been satisfied; and
(b) providing such evidence as is necessary in the Company's opinion to
support its conclusion that the condition has been satisfied.
MAKING AVAILABLE TRANCHE C FACILITY
Subject to this agreement, the Lender agrees to make available the amount of the
Tranche C Facility Limit according to the Drawdown Notice.
CONDITIONS PRECEDENT
The Lender need not provide any financial accommodation under the Tranche C
Facility unless it is satisfied that the conditions in schedule 4 have been met
or it has waived them in writing. If the Company complies with clause 4.2, but
the Lender is not satisfied that those conditions have been met (and does not
waive them), the Lender must no later than the requested Drawdown Date, notify
the Company (TRANCHE C NON-SATISFACTION NOTICE):
(a) that it is not satisfied; and
(b) why it is not satisfied.
NON-RESPONSE
Where the Lender does not provide a Tranche C Non-satisfaction Notice to the
Company under clause 4.4, the Lender must make available the amount of the
Tranche C Facility Limit according to the Drawdown Notice.
DISAGREEMENT
If after receiving a Tranche C Non-satisfaction Notice the Company still
maintains that the conditions in schedule 4 have been met, the Company and the
Lender must determine a process by which that disagreement can be resolved. In
determining that process and implementing it, the Company and the Lender must
act promptly, in good faith and in a reasonable manner. Where the disagreement
is not resolved before the end of the availability period for the Tranche C
Facility, the Lender must deposit an amount equal to the Tranche C Facility
Limit into escrow according to clause 7.
ESCROW NOTICE
Where the Company has not given a Drawdown Notice to the Lender by the date
(THAT DATE) which is one month prior to the end of the availability period for
the Tranche C Facility, the Company must, on that date, give to the Lender a
notice signed by an Authorised Officer of the Company identifying with respect
to each condition in schedule 4:
(a) the progress in satisfying the condition;
(b) the reason for any delay in satisfying the condition;
(c) the steps the Company is taking or proposes to take to satisfy the
condition; and
(d) the date by which the Company believes that that condition will be
satisfied,
and the Lender must deposit an amount equal to the Tranche C Facility Limit into
escrow in accordance with clause 7.
EFFECT OF A DRAWDOWN NOTICES, AND CONDITIONS TO DRAWDOWNS
EFFECT OF A DRAWDOWN NOTICE
A Drawdown Notice is effective when the Lender actually receives it in legible
form. An effective Drawdown Notice is irrevocable.
CONDITIONS TO ALL DRAWDOWNS
Without limiting any other condition precedent identified in this agreement, the
Lender need not provide any financial accommodation unless:
(a) the Lender has received every item listed in schedule 1 ("Conditions
precedent") in form and substance satisfactory to the Lender. Any item required
to be certified must be certified by a secretary or a director of the Company as
being true and complete as at a date no earlier than the date of this agreement;
and
(b) subject to clause 7, the accommodation is to be provided during the
availability period for the relevant Facility as set out in the Details; and
(c) after providing the accommodation the Facility Limit for the relevant
Facility will not be exceeded; and
(d) the Lender has received a Drawdown Notice in respect of it; and
(e) the Lender is satisfied that the representations and warranties in
clause 11 ("Representations and warranties") and in the Drawdown Notice, and the
statements in the Drawdown Notice, are true and correct and not misleading at
the date of the Drawdown Notice and at the date the accommodation is provided;
and
(f) the Lender is satisfied that no Event of Default or Potential Event of
Default exists or would result from the accommodation being provided.
BENEFIT OF CONDITIONS
Each condition to drawdown of a Facility is for the sole benefit of the Lender
and may be waived by it, but only in writing.
INTEREST
Except as provided in clause 15 no interest is payable by the Company on a
Drawing.
ACCOMMODATION AT END OF AVAILABILITY PERIOD
NON-SATISFACTION OF CONDITIONS
Where at the end of the availability period for a Facility (as set out in the
Details):
(a) the conditions to that Facility in schedule 2, 3 or 4 (as applicable)
have not been satisfied (CONDITIONS); or
(b) there is a disagreement about whether or not those Conditions have been
satisfied,
and either:
(c) the Company has given a Drawdown Notice (with an accompanying
certificate) under clause 2.2, 3.2 or 4.2 (as applicable); or
(d) the Company has given the Lender an Escrow Notice in respect to the
Conditions to the relevant Facility,
then subject to clause 7.2 the Lender agrees on the last day of the availability
period for that Facility, to deposit an amount equal to the Facility Limit for
that Facility into the Escrow Account to be held in escrow by the Escrow Agent
on the terms of the Escrow Agreement.
NON-SATISFACTION OF CONDITIONS
The Company agrees that if on 28 February 2002 the Conditions to the Tranche A
Facility have not been satisfied, the Lender may elect:
(a) where on that date:
(i) a Drawdown Notice (and an accompanying certificate) has not been given
under clause 4.2; or
(ii) that notice having been given, the Tranche C Facility has not been
drawndown,
to terminate its obligation to make the Tranche C Facility available; or
(b) where on that date an amount equal to the Tranche C Facility has been
placed in escrow, to terminate any obligation to make that amount available to
the Company, and to direct the Escrow Agent to release those moneys (less any
accrued interest on them) to the Lender by sending the Escrow Agent a notice
substantially in the form of Exhibit B to the Escrow Agreement.
SUBSEQUENT SATISFACTION OF CONDITIONS
Subject to clauses 7.2 and 7.6, at any time after an amount equal to the
Facility Limit for a Facility has been deposited into the Escrow Account
according to clause 7.1, the Company may give to the Lender:
(a) a Drawdown Notice for the amount of the Facility Limit (and if more than
one Facility is held in escrow, for the amount of the Facility Limits of each of
those Facilities) (ESCROW AMOUNT)); and
(b) a certificate (ESCROW SATISFACTION CERTIFICATE) signed by an Authorised
Officer of the Company identifying that Condition or those Conditions the
non-satisfaction of which resulted in the Escrow Amount being placed in escrow,
and with respect to that Condition, or each of those Conditions:
(i) stating that the Condition or Conditions has or have been satisfied;
and
(ii) providing such evidence as is necessary in the Company's opinion to
support its conclusion that the Condition or Conditions has or have been
satisfied.
RESPONSE
Unless the Lender, within one month after receiving a Drawdown Notice and Escrow
Satisfaction Certificate under clause 7.3, notifies the Company
(NON-SATISFACTION ESCROW NOTICE) that the Lender is not satisfied that the
Condition or Conditions has or have been satisfied and the reason or reasons for
its or their non-satisfaction, the Lender must procure the Facility Limit of the
relevant Facility be paid by the Escrow Agent to the Company out of the Escrow
Account on the date which is one month after receipt of the Drawdown Notice and
the Escrow Satisfaction Certificate, according to the Drawdown Notice (including
by signing and sending to the Escrow Agent a notice substantially in the form of
Exhibit A to the Escrow Agreement (countersigned by the Company), and signing
any other direction required by the Escrow Agent). Each amount paid by the
Escrow Agent according to this clause 7.4 constitutes a Drawing on the relevant
Facility.
DISAGREEMENT
If after receiving a Non-satisfaction Escrow Notice in accordance with clause
7.4 the Company still maintains that the relevant Condition or Conditions is or
are satisfied, and the parties are unable in good faith to settle the dispute
within 21 days after the Company receives a Non-satisfaction Escrow Notice, the
dispute is to be referred to the Australian Commercial Disputes Centre (ACDC).
The Company and the Lender must act promptly in good faith and in a reasonable
manner with the ACDC to agree on and implement a suitable dispute resolution
process for the dispute.
NO DRAWDOWN PENDING RESOLUTION
The Company may not give the Lender a Drawdown Notice or an Escrow Satisfaction
Certificate where a Condition to the release of the Escrow Amount is subject to
disagreement as to whether the Condition has been satisfied until they have
agreed, or they are bound by a decision of a third party, that the Condition is
satisfied.
ACKNOWLEDGEMENTS
Subject to clause 7.8, the Company agrees that:
(a) the Facilities are not available to the Company after 31 August 2004;
(b) if any amount is held by the Escrow Agent at 5.00 pm on 31 August 2004:
if there is no Major Event of Default then continuing, the Lender is entitled to
that amount (less any interest accrued on it) and to direct the Escrow Agent to
release that amount to the Lender by sending the Escrow Agent a notice
substantially in the form of Exhibit C to the Escrow Agreement; but
if there is a Major Event of Default then continuing, the Lender is entitled to
that amount (plus all interest accrued on it since the date on which the Lender
gave the Escrow Agent a notice in respect of that Major Event of Default in the
form of Exhibit D to the Escrow Agreement) and to direct the Escrow Agent to
release that amount and that interest by sending the Escrow Agent a notice
substantially in the form of Exhibit C to the Escrow Agreement,
(c) the Lender shall not send the Escrow Agent any notice substantially in
the form of Exhibit C to the Escrow Agreement before 5.00 pm on 31 August 2004;
and
(d) the Lender shall not send the Escrow Agent any notice substantially in
the form of Exhibit B to the Escrow Agreement before 28 February 2002.
RETENTION PENDING RESOLUTION
Where on 31 August 2004, an amount held in escrow is subject to a dispute
pursuant to clause 7.5 (DISPUTED AMOUNT), then notwithstanding clause 7.7, the
Disputed Amount is to be retained in escrow until the dispute is resolved (in
which case it is to be released accordingly) or an Event of Default occurs (in
which case it is to be released to the Lender).
INTEREST
Subject to clause 7.7(b)(ii), the Lender assigns to the Company the Lender's
rights to all interest which accrues on amounts from time to time standing to
the credit of the Escrow Account. Except as otherwise expressly provided in the
Escrow Agreement, the Company may withdraw from the Escrow Account from time to
time any interest to which it is entitled under this clause 7.9, including any
interest to which it is entitled on moneys released to the Lender.
PURPOSE
Any interest paid to the Company according to clause 7.9 must be applied by the
Company for the Purpose and the Company will, at the request of the Lender,
cause an Authorised Officer of the Company to certify to the Lender that the
interest has been applied for that Purpose.
FEES
The Company agrees that it is responsible for any Taxes payable in respect of
interest on funds held in escrow, and for the fees and expenses payable to the
Escrow Agent in respect of the Escrow Account or as a consequence of or arising
out of funds being held in escrow, the opening, the keeping, the operation or
the closing of the Escrow Account.
REPAYING AND PREPAYING
REPAYMENT OF TRANCHE A FACILITY
The Company agrees to repay the Drawing under the Tranche A Facility on the
Tranche A Maturity Date.
REPAYMENT OF TRANCHE B FACILITY
The Company agrees to repay the Drawing under the Tranche B Facility on the
Tranche B Maturity Date.
REPAYMENT OF TRANCHE C FACILITY
The Company agrees to repay the Drawing under the Tranche C Facility on the
Tranche C Maturity Date.
DISCRETIONARY PREPAYMENT
The Company may prepay a Drawing without incurring Break Costs, as follows:
(a) the prepayment amount must be at least A$100,000 and a whole multiple of
A$100,000; and
(b) the Company must notify the proposed prepayment to the Lender by 11.00
am on the fourth Business Day before the prepayment (Once given, a notice of
prepayment is irrevocable and the Company is obliged to prepay in accordance
with the notice.)
MANDATORY PREPAYMENT
The Company will be taken to have prepaid a Drawing or part of it as the case
may be (without incurring Break Costs) if and to the extent to which at any time
after the tenth anniversary of the date of this agreement:
(a) if the Lender is then the licensee under the Licence Agreement, the
Lender elects to pay (according to Section 5.05(b) of the Licence Agreement) all
or any part of the Licence Fee by forgiving the Company's obligation to repay
all or a corresponding part of that Drawing; or
(b) if the Lender is not then the licensee under the Licence Agreement, the
Lender agrees to the payment (according to Section 5.05(b) of the Licence
Agreement) of all or any part of the Licence Fee by forgiving the Company's
obligation to repay all or a corresponding part of that Drawing.
OTHER PREPAYMENT
If the Company prepays other than as set out in clause 8.4 or 8.5, it may be
liable for Break Costs according to clause 14.2 ("Indemnity").
PREPAYMENT AND THE FACILITY LIMIT
The Facility Limit of the Facility to which the prepayment relates is reduced by
amounts prepaid.
PAYMENTS
MANNER OF PAYMENT
The Company agrees to make payments (including by way of reimbursement) under
this agreement:
(a) on the due date (or, if that is not a Business Day, on the next Business
Day unless that day falls in the following month or after the particular
Maturity Date for the relevant Facility, in which case, on the previous Business
Day); and
(b) not later than 10.00 am; and
(c) in Australian dollars in immediately available funds; and
(d) in full without set-off or counterclaim and without any deduction in
respect of Taxes unless prohibited by law; and
(e) to the Lender by payment into the account nominated by the Lender, or by
payment as the Lender otherwise directs.
If the Lender directs the Company to pay a particular party or in a particular
manner, the Company is taken to have satisfied its obligation to the Lender by
paying according to the direction.
The Company satisfies a payment obligation only when the Lender or the person to
whom it has directed payment receives the amount.
CURRENCY OF PAYMENT
The Company waives any right it has in any jurisdiction to pay an amount other
than in Australian Dollars. However, if the Lender receives an amount in a
currency other than Australian Dollars:
(a) it may convert the amount received into Australian Dollars (even though
it may be necessary to convert through a third currency to do so) on the day and
at such rates (including spot rate, same day value rate or value tomorrow rate)
as it reasonably considers appropriate. It may deduct its usual Costs in
connection with the conversion; and
(b) the Company satisfies its obligation to pay in Australian Dollars only
to the extent of the amount of Australian Dollars obtained from the conversion
after deducting the Costs of the conversion.
WITHHOLDING TAX
PAYMENTS BY COMPANY
If a law requires the Company to deduct an amount in respect of Taxes from a
payment under this agreement such that the Lender would not actually receive on
the due date the full amount provided for under this agreement, then:
(a) the Company agrees to deduct the amount for the Taxes (and any further
deduction applicable to any further payment due under paragraph (c) below); and
(b) the Company agrees to pay the amount deducted to the relevant authority
in accordance with applicable law and give the original receipts to the Lender;
and
(c) if the amount deducted is in respect of Accountable Taxes, the amount
payable is increased so that, after making the deduction and further deductions
applicable to additional amounts payable under this clause, the Lender is
entitled to receive (at the time the payment is due) the amount it would have
received if no deductions had been required.
PAYMENTS BY LENDER
If a law requires the Lender to deduct an amount in respect of Taxes from a
payment under this agreement (including a Drawing), the Company acknowledges
that:
(a) the relevant payment will be reduced by that amount; and
(b) the Lender is not obliged to increase the payment to the Company so that
the Company receives the payment it would have received had no deduction been
made for Taxes.
CONTEST
Nothing in this clause prohibits the Company from contesting the application of
any law purporting to require the deduction or withholding of any amount in
respect of Taxes. However, no such contest in any way affects the Company's
obligations under clause 10.1 or the Lender's obligations under clause 10.2.
10.4 GST
The payments specified in this agreement have been calculated without taking GST
into account.
10.5 WARRANTIES
If any GST is payable on a taxable supply by the Company under or in connection
with this agreement:
(a) the Company warrants that, at the time of entry into this agreement and
unless and until otherwise notified in writing to the Lender:
(i) it is a non-resident; and
(ii) it does not make the supply through an enterprise that it carries on in
Australia or through a resident agent;
(b) the Lender warrants that, at the time of entry into this agreement and
unless and until otherwise notified in writing to the Company, it is registered
for GST purposes; and
(c) the parties hereby agree that the GST on the taxable supply by the
Company will be payable by the Lender in accordance with Section 83-5(1) of the
GST Law.
10.6 NON-SATISFACTION
If the requirements of Section 83-5(1) of the GST Law are not satisfied, either
because:
(a) the Company provides notice to the Lender in accordance with clause
10.5(a); or
(b) for any other reason,
the provisions of clause 10.7 will apply to the taxable supply.
10.7 CONSEQUENCE OF NON-SATISFACTION
If GST is imposed on any supply by a party (SUPPLIER) to the other party
(RECIPIENT) under or in connection with this agreement, the Recipient must pay
to the Supplier, subject to the receipt of a valid tax invoice, the amount of
GST imposed at the same time as and in addition to the amount the Recipient is
required to pay the Supplier for the supply in question (and without setoff), or
on demand.
10.8 DEFINITIONS
In this clause 10:
GST LAW means the A New Tax System (Goods and Services Tax) Xxx 0000 together
with all associated regulations and legislation.
GST, ENTERPRISE, TAXABLE SUPPLY, TAX INVOICE, NON-RESIDENT, CARRIED ON IN
AUSTRALIA and RESIDENT AGENT have the meaning given to them in the GST Law.
10.9 EFFECT OF BREACH OF WARRANTY
The Lender and the Company acknowledge and agree that the warranties contained
in clause 10.5 are intended solely for the purposes of this clause 10, and that,
accordingly, notwithstanding anything to the contrary in this agreement, any
breach of such warranty shall not constitute a default, an Event of Default or a
Potential Event of Default under this agreement or any other of the Transaction
Documents and shall not otherwise have any consequences for the purposes of this
agreement and the other Transaction Documents, except as expressly provided in
clauses 10.6 and 10.7.
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants (except in relation to matters disclosed to
the Lender by the Company and accepted by the Lender in writing) that:
(a) (INCORPORATION AND EXISTENCE) it has been incorporated as a company
according to the laws of the State of Delaware in the United States of America,
is validly existing under those laws and has power and authority to carry on its
business as it is now being conducted; and
(b) (POWER) it has power to enter into the Transaction Documents to which it
is a party and comply with its obligations under them; and
(c) (NO CONTRAVENTION OR EXCEEDING POWER) the Transaction Documents and the
transactions under them which involve it do not contravene its constituent
documents (if any) or any law or obligation by which it is bound or to which any
of its assets are subject or cause a limitation on its powers or the powers of
its directors to be exceeded; and
(d) (AUTHORISATIONS) it has in full force and effect the authorisations
necessary for it to enter into the Transaction Documents to which it is a party,
to comply with its obligations and exercise its rights under them and to allow
them to be enforced; and
(e) (VALIDITY OF OBLIGATIONS) its obligations under the Transaction
Documents, when executed and delivered by it, are valid and binding and are
enforceable against it according to their terms except as their enforceability
may be limited by:
(i) applicable bankruptcy, insolvency and other similar laws affecting
creditors' rights generally; and
(ii) general equitable principles regardless of whether the issue of
enforceability is considered in a proceeding in equity or at law; and
(f) (BENEFIT) it benefits by entering into the Transaction Documents to
which it is a party; and
(g) (SOLVENCY) there are no reasonable grounds to suspect that it or its
Parent is unable to pay its debts as and when they become due and payable; and
(h) (NOT A TRUSTEE) it does not enter into any Transaction Document as
trustee; and
(i) (OWNERSHIP OF PROPERTY) it is the beneficial owner of and has good title
to all property held by it or on its behalf and all undertakings carried on by
it free from Encumbrances except for Permitted Encumbrances; and
(j) (LITIGATION) there is no pending or threatened proceeding affecting it
or any of its Material Subsidiaries or the Parent before a court, governmental
agency, commission or arbitrator except those in which a decision against it or
a Material Subsidiary or the Parent (either alone or together with other
decisions) would not be likely to be a Material Adverse Event; and
(k) (EVENT OF DEFAULT) no Event of Default or Potential Event of Default
continues unremedied; and
(l) (DEFAULT UNDER LAW - MATERIAL ADVERSE EVENT) none of it or any of its
Material Subsidiaries or the Parent is in breach of a law affecting any of them
or their assets in a way which is likely to be a Material Adverse Event; and
(m) (NO MATERIAL CHANGE) there is no likely change in its financial position
which is likely to be a Material Adverse Event; and
(n) (NO IMMUNITY) none of it or any of its Material Subsidiaries or the
Parent has immunity from the jurisdiction of a court or from legal process; and
(o) (ACCURACY OF FORMS) the last Form 10K and 10Q filed by the Parent with
the Securities and Exchange Commission is accurate in all material respects (the
Form 10K and 10Q last filed before the date of this agreement being annexed and
marked "A").
CONTINUATION OF REPRESENTATIONS AND WARRANTIES
The Company agrees to notify the Lender on each Drawdown Date of anything that
happens which would mean it could not truthfully repeat all its representations
and warranties in this clause 11 on that date by reference to the then current
circumstances. A notification under this clause 11.2 does not limit the
Lender's rights under clause 13.2 ("Consequences of default").
UNDERTAKINGS
GENERAL UNDERTAKINGS
The Company undertakes:
(a) (ACCOUNTING RECORDS) to keep accounting records according to generally
accepted accounting principles applied on a consistent basis in the United
States of America and to ensure that each of its Material Subsidiaries does the
same; and
(b) (CONDUCT OF BUSINESS) to conduct its business (including collecting
debts owed to it) in the ordinary course; and
(c) (NO CESSATION OF BUSINESS) not, without the Lender's consent, to cease
conducting any of its business, if that cessation is or is likely to be a
Material Adverse Event, and not to significantly change the general character of
any business it conducts; and
(d) (INFORMATION) to give the Lender any document or other information that
the Lender reasonably requests from time to time; and
(e) (STATUS CERTIFICATES) on request from the Lender, to give the Lender a
certificate signed by two of its directors which states whether an Event of
Default or Potential Event of Default continues unremedied; and
(f) (MAINTAIN AUTHORISATIONS) to obtain, renew on time and comply with the
terms of each authorisation necessary for it to enter into the Transaction
Documents to which it is a party, to comply with its obligations and exercise
its rights under them and to allow them to be enforced; and
(g) (NOT GIVE FINANCIAL ACCOMMODATION) not, without the Lender's consent
(and except as contemplated by the Purpose), to:
(i) provide financial accommodation other than to its Parent; or
(ii) permit financial accommodation to remain owing to the Company other
than from its Parent; or
(iii) satisfy any financial accommodation the Company now or in the future
owes; and
(h) (NOT DEPOSIT MONEY AS SECURITY) not to deposit money with a person in
circumstances where the money is not repayable unless the Company performs
obligations (including to pay money) to that person; and
(i) (NOT REDUCE CAPITAL) to ensure that the Company's capital is not reduced
or made capable of being called up only in certain circumstances. For the
purposes of this clause 12.1(i), the provision by the Company to the Parent for
the Purpose of the proceeds of any Drawing does not constitute a reduction of
the Company's capital;
(j) (NOTIFY INTERESTS IN LAND) to give the Lender details about all land and
interests in land (such as leases) the Company acquires; and
(k) (ANNUAL ACCOUNTS) to give its Financial Statements for each financial
year to the Lender within 90 days after the end of that financial year; and
(l) (ANNUAL CONSOLIDATED ACCOUNTS) to give the audited consolidated
Financial Statements of the economic entity constituted by it and the entities
which the Parent controls for each financial year to the Lender within 90 days
after the end of that year; and
(m) (QUARTERLY CONSOLIDATED ACCOUNTS) to give the unaudited consolidated
Financial Statements of the economic entity constituted by the Parent and the
entities which the Parent controls for each quarter of each financial year to
the Lender within 60 days after the end of that quarter; and
(n) (INCORRECT REPRESENTATION OR WARRANTY) to notify the Lender if any
representation or warranty made by it or on its behalf in connection with a
Transaction Document is found to have been incorrect or misleading when made;
and
(o) (NOTIFY DETAILS OF EVENT OF DEFAULT OR POTENTIAL EVENT OF DEFAULT) if an
Event of Default or Potential Event of Default occurs, to notify the Lender
within 60 days after the event, giving full details of the event, the Company's
view of the event's impact on the Project, any step taken or proposed to remedy
the event and estimated time to remedy the event; and
(p) (PURPOSE) to use the Facilities only for the purpose set out in the
Details; and
(q) (ASSIGNMENT OF REPRESENTATIVE) by 28 February 2001, to assign an
experienced and appropriately qualified business development representative to
assist the Lender, or its designate, to promote and attract further
gas-to-liquids (GTL) development in Australia; and
(r) (FEASIBILITY STUDY) by 31 August 2003, in consultation with the Lender,
to complete or cause to be completed a feasibility study having the detail
agreed between the Company and the Lender (at a cost of not more than A$500,000
to be paid by the Company) on the development of a GTL fuels plant in Australia.
The Company agrees that the Lender is authorised to use any financial, business
or technical information with respect to GTL technology contained in the
feasibility study pursuant to the provisions of the Licence Agreement; and
(s) (COMPLETE SURVEY) to complete, and provide to the Lender in writing the
results of a survey of GTL technology, development capability and interest
within Australian universities and research institutions on or before the date
which is 6 months from the date of this agreement.
(t) (PARTNERING OPPORTUNITY) to work with the Lender to explore and identify
research and development partnering opportunities to further the development
and commercialisation of the Parent's GTL technology, including the possible
development of a Cooperative Research Centre or other joint venture research and
development structures and other projects related to natural gas conversion,
utilisation and the application of gas derived products. The Company must
prepare and deliver to the Lender detailed semi-annual reports of these
activities following completion of the survey referred to in clause 12.1(s).
The Lender acknowledges that the undertakings of the Company in this clause
12.1(t) are subject to the Company being satisfied as to the protection of its
intellectual property and confidentiality and that of its Parent and
Subsidiaries.
NEGATIVE PLEDGE
The Company agrees:
(a) (NO ENCUMBRANCES) without the Lender's consent, not to create an
Encumbrance or allow one to exist on the whole or any part of its present or
future property other than Permitted Encumbrances. The Lender agrees that the
provision by the Company to the Parent of the proceeds of any Drawing does not
breach this clause 12.2(a); and
(b) (NO DISPOSAL) without the Lender's consent, not to dispose of (or agree
to dispose of) all or a substantial part of its property (either in a single
transaction or in a series of transactions whether related or not and whether
voluntarily or involuntarily) except:
(i) disposals made with the Lender's consent; or
(ii) disposals made in the ordinary course of its business for arm's length
consideration; or
(iii) disposals of cash raised or borrowed for the purpose for which the
cash was raised or borrowed; or
(iv) disposals of investments dealt in or listed on a securities exchange or
over-the-counter market, for arm's length consideration; or
(v) disposals of property in exchange for other property of comparable type
and value.
The Lender agrees that the provision by the Company to the Parent of the
proceeds of any Drawing does not breach this clause 12.2(b); and
(c) (GUARANTEES RESTRICTED) to ensure that no guarantee (or other assurance
against financial loss) is granted or outstanding in connection with money
borrowed or raised by or at the request of the Company, except:
(i) if the Lender has consented; or
(ii) for drawings, acceptances and endorsements of Bills in the ordinary
course of its business; or
(iii) if the Company's obligations under the Transaction Documents are
equally and ratably secured by a guarantee (or other assurance) in form and
substance satisfactory to the Lender.
DEFAULT
EVENTS OF DEFAULT
Each of the following is an Event of Default:
(a) (NON-PAYMENT - TRANSACTION DOCUMENT) the Company does not pay on time
the principal amount of any Facility or does not pay within three Business Days
of a notice to it that it has failed to pay on time any other amount payable by
it under any Transaction Document in the manner required under it; or
(b) (CROSS DEFAULT) any present or future monetary obligations of the
Company or any of its Material Subsidiaries or the Parent for:
(i) in the case of the Company or any of its Material Subsidiaries, an
amount of, or amounts totaling, more than $US250,000;
(ii) in the case of the Parent an amount of, or amounts totaling, more than
$US2,000,000,
are not satisfied on time (or at the end of their period of grace) or become
prematurely payable.
In this clause 13.1(b), a "monetary obligation" means a monetary obligation in
connection with:
(i) money borrowed or raised; or
(ii) any hiring arrangement, redeemable preference share, letter of credit
or financial markets transaction (including a swap, option or futures contract),
performance bond or guarantee facility; or
(iii) a guarantee or indemnity in connection with anything referred to in
paragraphs (i) or (ii)); or
(c) (ENFORCEMENT AGAINST ASSETS) distress is levied or a judgment, order or
Encumbrance is enforced, or becomes enforceable, against any property of the
Company or any of its Material Subsidiaries or the Parent for:
(i) in the case of the Company or any of its Material Subsidiaries, an
amount of or amounts totaling, more than $US250,000;
(ii) in the case of the Parent, an amount of or amounts totaling, more than
$US2,000,000,
are not satisfied on time (or at the end of their period of grace) or become
prematurely payable;
(d) (INCORRECT CERTIFICATE) a certificate given under clause 5.2(a) is
incorrect or misleading; or
(e) (INCORRECT REPRESENTATION OR WARRANTY)
(i) a representation or warranty made by or for the Company in connection
with a Transaction Document is found to have been incorrect or misleading when
made; or
(ii) the Company notifies the Lender in accordance with clause 11.2
("Continuation of representations and warranties") or does not do so when it
should; or
(f) (INSOLVENCY) the Company or any of its Material Subsidiaries or the
Parent is or becomes Insolvent; or
(g) (CEASING BUSINESS) the Company (or any of its Material Subsidiaries or
the Parent) stops payment, ceases to carry on its business or a material part of
it, or threatens to do either of those things except to reconstruct or
amalgamate while solvent on terms approved by the Lender; or
(h) (VOIDABLE TRANSACTION DOCUMENT) a Transaction Document or a transaction
in connection with it is or becomes (or is claimed to be) wholly or partly void,
voidable or unenforceable ("claimed" in this paragraph means claimed by the
Company or any of its Subsidiaries or the Parent or anyone authorized to act on
behalf of any of them); or
(i) (CHANGE OF CONTROL) the persons who at the date of this agreement have
Control of the Company cease to have Control of the Company or one or more
persons acquire Control of the Company after the date of this agreement; or
(j) (CHANGE IN GROUP STRUCTURE) the Company ceases to be a subsidiary of the
Parent, or a company that is subsidiary of the Company ceases to be its
subsidiary; or
(k) (REDUCTION OF CAPITAL) without the consent of the Lender, the Company or
any of its Material Subsidiaries takes action to reduce its capital or buy back
any of its ordinary shares; or
(l) (APPOINTMENT OF MANAGER) a person is appointed under bankruptcy,
insolvency or similar legislation to manage any part of the affairs of the
Company or any of its Material Subsidiaries or the Parent; or
(m) (MATERIAL ADVERSE EVENT) an event occurs which is (or a series of events
occur which, together, are) a Material Adverse Event; or
(n) (BREACH OF UNDERTAKING) subject to clause 13.4, an undertaking given to
the Lender by the Company or its Parent or another person authorized to act on
its behalf in connection with a Transaction Document (including the Side Letter)
is breached or not wholly performed within any period specified in the
undertaking or, where no period is specified and the undertaking is not an
ongoing undertaking, within seven days after the date of the undertaking and
such breach or non-performance is not remedied within thirty days of a notice
from the Lender to the Company specifying the breach or non-performance; or
(o) (DEFAULT UNDER OTHER TRANSACTION DOCUMENT) an event occurs which is
called an 'event of default' on the part of the Company under any Transaction
Document other than this agreement; or
(p) (NON-COMPLIANCE WITH OTHER OBLIGATIONS) subject to clause 13.4:
(i) the Company does not comply with any other material obligation under any
Transaction Document; or
(ii) the Parent does not comply with its obligations under the Side Letter,
and, if the non-compliance can be remedied, does not remedy the non-compliance
within 30 days after a notice from the Lender to the Company specifying the
non-compliance.
CONSEQUENCES OF DEFAULT
If an Event of Default occurs, then subject to clause 13.4 the Lender may
declare at any time by notice to the Company that:
(a) an amount equal to the Amount Owing is either:
(i) payable on demand; or
(ii) immediately due for payment;
(b) any amount deposited into, and held in escrow, by the Escrow Agent, may
not be released to or withdrawn by the Company until the Lender:
(i) is satisfied (acting reasonably) that the Event of Default has been
remedied; or
(ii) waives the Event of Default in writing,
(c) the Lender's obligations specified in the notice are terminated.
The Lender may make any or all of these declarations. The making of either of
them gives immediate effect to its provisions.
INVESTIGATION OF DEFAULT
If the Lender reasonably believes that there is or may be an Event of Default,
the Lender may appoint a person to investigate this. The Company agrees to
co-operate (and procure each of its Material Subsidiaries and the Parent to
co-operate) with the person and comply with every reasonable request they make.
If there is or was an Event of Default, the Company agrees to pay all Costs in
connection with the investigation.
SPECIAL REMEDY
The Company agrees that where the feasibility study identified in clause 12.1(r)
has not been completed by 31 August 2003, the Company must on or before 15
September 2003 pay the Lender A$500,000. The Lender agrees that that payment is
the Lender's sole remedy for the Company's failure to comply with clause
12.1(r).
ELECTION ON DEFAULT
The Lender may elect, where an Event of Default has occurred and is continuing,
to satisfy all of its rights in respect of that Event of Default by applying the
outstanding principal part of the Amount Owing or any part of it against or in
satisfaction of the Licence Fee then due or to become due under the Licence
Agreement (and whether or not the Lender is then the licensee under the Licence
Agreement). Where that election is made the Company must procure that an amount
equal to the amount applied is so credited by the licensor under the Licence
Agreement. To the extent that an amount is so credited, the Company's
obligation to repay it is satisfied.
NON-RECOURSE
The Lender may not enforce any of its rights against the Company under or in
connection with this agreement by seeking to enforce those rights against, or by
bringing proceedings or by taking any other action against, or proving in the
liquidation of:
(a) the Parent; or
(b) any other subsidiary of the Parent, or any owner, officer, director or
employee of the Parent
(ASSOCIATED PERSON), and the Lender agrees that it does not and will not have
any claim under any Transaction Document against the Parent or any Associated
Person except;
(c) in respect of the fraudulent act or omission of an Associated Person;
or
(d) against an Associated Person in their role as an officer, director or
employee of the Company.
The Lender acknowledges that each Associated Person may rely on and enforce the
terms of this clause 13.6 notwithstanding the Parent is not a party to this
agreement and for that purpose the Company holds the benefit of this clause 13.6
on trust for each Associated Person.
COSTS AND INDEMNITIES
WHAT THE COMPANY AGREES TO PAY
The Lender and the Company are each solely responsible for and shall bear their
own respective Costs (including, legal, accounting and other advisory expenses)
incurred at any time in closing this transaction (including the preparation of
the Transaction Documents). Subject to the foregoing, the Company agrees to pay
or reimburse:
(a) the Lender's Costs in connection with exercising, enforcing or
preserving rights under this agreement; and
(b) Taxes and fees (including registration fees) and fines and penalties in
respect of fees paid in connection with any Transaction Document or a payment or
receipt or any other transaction contemplated by any Transaction Document.
However, the Company need not pay a fine or penalty in connection with Taxes or
fees to the extent that it has placed the Lender in sufficient cleared funds for
the Lender to be able to pay the Taxes or fees by the due date.
The Company agrees to pay amounts due under this clause within 5 Business Days
after a written demand from the Lender.
The Lender may debit any of these amounts to the Company's account if the
Company has not paid that amount within 5 Business Days of the written demand.
INDEMNITY
The Company indemnifies the Lender against any liability or loss arising from,
and any Costs (other than costs described in clause 14.1 as being payable by the
Lender) incurred in connection with:
(a) financial accommodation requested under a Transaction Document not being
provided in accordance with the request for any reason except default of the
Lender or the Escrow Agent; or
(b) financial accommodation under a Transaction Document being repaid,
discharged or made payable other than at its maturity except a prepayment under
clauses 8.4 or 8.5; or
(c) the Lender acting in connection with a Transaction Document in good
faith on fax instructions purporting to originate from the offices of the
Company or to be given by an Authorised Officer of the Company; or
(d) an Event of Default; or
(e) the Lender exercising or attempting to exercise a right or remedy in
connection with a Transaction Document after an Event of Default; or
(f) any indemnity the Lender gives a Receiver, or anyone in possession or
who has control of the property of the Company for the purpose of enforcing an
Encumbrance or an administrator of the Company.
The Company agrees to pay amounts due under this indemnity on demand from the
Lender.
ITEMS INCLUDED IN LOSS, LIABILITY AND COSTS
The Company agrees that:
(a) the Costs referred to in clause 13.3 ("Investigation of default") and in
clause 14.1 ("What the Company agrees to pay"), and the liability, loss or Costs
referred to in clause 14.2 ("Indemnity") include where payable by the Company
legal Costs in accordance with any written agreement as to legal costs (whether
or not the Company is a party to the agreement) or, if no agreement, on
whichever is the higher of a full indemnity basis or solicitor and own client
basis; and
(b) the Costs referred to in clause 14.1(a) and (b) ("What the Company
agrees to pay"), include where payable by the Company those paid, or that the
Lender has received an invoice for, to persons engaged by the Lender in
connection with the Transaction Documents (such as consultants); and
(c) loss or liability and any Costs in any indemnity under the Transaction
Documents may include Break Costs.
PAYMENT OF THIRD PARTY LOSSES
The Company agrees to pay an amount equal to any liability or loss and any Costs
of the kind referred to in clause 14.2 ("Indemnity") suffered or incurred by any
employee, officer, agent or contractor of the Lender.
CURRENCY CONVERSION ON JUDGMENT DEBT
If a judgment, order or proof of debt for an amount in connection with a
Transaction Document is expressed in a currency other than Australian Dollars,
then the Company indemnifies the Lender against:
(a) any difference arising from converting the other currency if the rate of
exchange used by the Lender under clause 9.2 ("Currency of payment") for
converting currency when it receives a payment in the other currency is less
favourable to the Lender than the rate of exchange used for the purpose of the
judgment, order or acceptance of proof of debt; and
(b) the Costs of conversion.
The Company agrees to pay amounts due under this indemnity on demand from the
Lender.
INTEREST ON OVERDUE AMOUNTS
OBLIGATION TO PAY
If the Company does not pay any amount under this agreement on the due date for
payment, the Company agrees to pay interest on that amount at the Default Rate.
The interest accrues daily from (and including) the due date to (but excluding)
the date of actual payment and is calculated on actual days elapsed and a year
of 365 days.
The Company agrees to pay interest under this clause on demand from the Lender.
INTEREST FOLLOWING JUDGMENT
If a liability becomes merged in a judgment, the Company agrees to pay interest
on the amount of that liability as an independent obligation. This interest:
(a) accrues daily from (and including) the date the liability becomes due
for payment both before and after the judgment up to (but excluding) the date
the liability is paid; and
(b) is calculated at the judgment rate or the Default Rate (whichever is
higher).
The Company agrees to pay interest under this clause on demand from the Lender.
APPLICATION OF PAYMENTS
The Lender may apply amounts paid by the Company towards satisfaction of the
Company's obligations under the Transaction Documents in the manner it sees fit,
unless the Transaction Documents expressly provide otherwise. This
appropriation overrides any purported appropriation by the Company or any other
person.
DEALING WITH INTERESTS
NO DEALING BY COMPANY
The Company may not assign or otherwise deal with its rights under any
Transaction Document or allow any interest in them to arise or be varied, in
each case, without the Lender's consent.
DEALINGS BY LENDER
Until the funding of each Facility in accordance with this agreement, (or the
date on which the Lender is no longer obliged to provide funding under this
agreement) the Lender may not assign or otherwise deal with its rights under any
Transaction Document, without the Company's consent. Thereafter, the Lender may
assign or otherwise deal with its rights under the Transaction Documents
(including by assignment or participation) without the consent of any person.
NOTICES
FORM
Unless expressly stated otherwise in the Transaction Document, all notices,
certificates, consents, approvals, waivers and other communications in
connection with a Transaction Document must be in writing, signed by an
Authorised Officer of the sender and marked for attention as set out or referred
to in the Details or, if the recipient has notified otherwise, then marked for
attention in the way last notified.
DELIVERY
They must be:
(a) left at the address set out or referred to in the Details; or
(b) sent by prepaid post (airmail, if appropriate) to the address set out or
referred to in the Details; or
(c) sent by fax to the fax number set out or referred to in the Details.
However, if the intended recipient has notified a changed postal address or
changed fax number, then the communication must be to that address or number.
WHEN EFFECTIVE
They take effect from the time they are received unless a later time is
specified in them.
DEEMED RECEIPT - POSTAL
If sent by post, they are taken to be received three days after posting (or
seven days after posting if sent to or from a place outside Australia).
DEEMED RECEIPT - FAX
If sent by fax, they are taken to be received at the time shown in the
transmission report as the time that the whole fax was sent.
DEEMED RECEIPT - GENERAL
Despite clauses 18.4 ("Deemed receipt - postal") and 18.5 ("Deemed receipt -
fax"), if they are received after 5.00 pm in the place of receipt or on a
non-Business Day, they are taken to be received at 9.00 am in the place of
receipt on the next Business Day.
WAIVER OF NOTICE PERIOD
The Lender may waive a period of notice required to be given by the Company
under this agreement.
GENERAL
APPLICATION TO TRANSACTION DOCUMENTS
If anything in this clause 19 ("General") is inconsistent with a provision in
another Transaction Document, then the provision in the other Transaction
Document prevails for the purposes of that Transaction Document.
PROMPT PERFORMANCE
If a Transaction Document specifies when the Company agrees to perform an
obligation, the Company agrees to perform it by the time specified. The Company
agrees to perform all other obligations promptly.
CONSENTS
The Company agrees to comply with all conditions in any consent the Lender gives
in connection with a Transaction Document.
CERTIFICATES
The Lender may give the Company a certificate about an amount payable or other
matter in connection with a Transaction Document. The certificate is sufficient
evidence of the amount or matter, unless it is proved to be incorrect.
SET-OFF
At any time after an Event of Default, the Lender may set off any amount due for
payment by the Lender to the Company against any amount due for payment by the
Company to the Lender under the Transaction Document.
DISCRETION IN EXERCISING RIGHTS
The Lender may exercise a right or remedy or give or refuse its consent under a
Transaction Document in any way it reasonably considers appropriate (including
by imposing conditions).
PARTIAL EXERCISING OF RIGHTS
If the Lender does not exercise a right or remedy under a Transaction Document
fully or at a given time, the Lender may still exercise it later.
NO LIABILITY FOR LOSS
The Lender is not liable for loss caused by the exercise or attempted exercise
of, failure to exercise, or delay in exercising, a right or remedy under a
Transaction Document.
CONFLICT OF INTEREST
The Lender's rights and remedies under any Transaction Document may be exercised
even if this involves a conflict of duty or the Lender has a personal interest
in their exercise.
REMEDIES CUMULATIVE
The rights and remedies of the Lender under any Transaction Document are in
addition to other rights and remedies given by law independently of the
Transaction Document.
INDEMNITIES
Any indemnity in a Transaction Document is a continuing obligation, independent
of the Company's other obligations under that Transaction Document and continues
after the Transaction Document ends. It is not necessary for the Lender to
incur expense or make payment before enforcing a right of indemnity under a
Transaction Document provided that the Lender is, at the time of enforcing a
right of indemnity liable to make the payment.
RIGHTS AND OBLIGATIONS ARE UNAFFECTED
Rights given to the Lender under a Transaction Document and the Company's
liabilities under it are not affected by anything which might otherwise affect
them at law.
INCONSISTENT LAW
To the extent permitted by law, each Transaction Document prevails to the extent
it is inconsistent with any law.
SUPERVENING LEGISLATION
Any present or future legislation which operates to vary the obligations of the
Company in connection with a Transaction Document with the result that the
Lender's rights, powers or remedies are adversely affected (including by way of
delay or postponement) is excluded except to the extent that its exclusion is
prohibited or rendered ineffective by law.
TIME OF THE ESSENCE
Time is of the essence in any Transaction Document in respect of an obligation
of the Company to pay money.
VARIATION AND WAIVER
A provision of a Transaction Document, or right created under it, may not be
waived or varied except in writing signed by the party or parties to be bound.
CONFIDENTIALITY
Each party agrees not to disclose information provided by the other party that
is not publicly available (including the existence or contents of any
Transaction Document) except:
(a) to any person in connection with an exercise of rights or a dealing with
rights or obligations under a Transaction Document, provided that any person to
whom disclosure is made in accordance with this paragraph is under an obligation
of confidence in substantially the same terms as this clause 19.17; or
(b) to a person considering entering into (or who enters into) a credit swap
with the Lender involving credit events relating to the Company or its Parent
provided that any person to whom disclosure is made in accordance with this
paragraph is under an obligation of confidence in substantially the same terms
as this clause 19.17; or
(c) to officers, employees, legal and other advisers and auditors of the
Company or the Lender, provided that any person to whom disclosure is made in
accordance with this paragraph is under an obligation of confidence in
substantially the same terms as this clause 19.17; or
(d) in the case of the Company to the Parent, provided the Parent agrees to
act consistently with this clause 19; or
(e) with the consent of the party who provided the information (such consent
not to be unreasonably withheld); or
(f) as required by any law or stock exchange; or
(g) in the case of the Company, to a third party who has expressed an
interest in participating in the Project, provided that any person to whom
disclosure is made in accordance with this paragraph is under an obligation of
confidence in substantially the same terms as this clause 19.17.
Each party consents to disclosures made according to this clause 19.17.
COUNTERPARTS
This agreement may consist of a number of copies, each signed by one or more
parties to the agreement. If so, the signed copies are treated as making up the
one document.
APPLICABLE LAW
Each Transaction Document is governed by the law in force in the place specified
in the Details and the Company and the Lender submit to the non-exclusive
jurisdiction of the courts of that place.
SERVING DOCUMENTS
Without preventing any other method of service, any document in a court action
may be served on a party by being delivered to or left at that party's address
for service of notices under clause 18 ("Notices").
INTERPRETATION
DEFINITIONS
These meanings apply unless the contrary intention appears:
ACCOUNTABLE TAXES means any Taxes imposed by a Relevant Country other than
those:
(a) imposed on, or calculated having regard to, the net income of the
Lender, or
(b) which would not be required to be deducted by the Company if the Lender
provided the Company with any of its name, address, registration number or
similar details or any relevant tax exemption or similar details.
AMOUNT OWING means the total of all amounts which are then due for payment, or
which will or may become due for payment, in connection with any Transaction
Document (including transactions in connection with them) to the Lender.
AUSTRALIAN DOLLARS and $A means the lawful currency of Australia.
AUTHORISED OFFICER MEANS:
(a) in the case of the Lender, a director or secretary, or an officer whose
title contains the word "director", "chief", "head" or "manager" or a person
performing the functions of any of them, or any other person nominated by the
Lender as an Authorised Officer for the purposes of the Transaction Documents;
and
(b) in the case of the Company, a person appointed by the Company to act as
an Authorised Officer under the Transaction Documents to which it is a party.
XXXX has the meaning it has in the Bills of Exchange Act 1909 (CWLTH) and a
reference to the drawing, acceptance or endorsement of, or other dealing with, a
Xxxx is to be interpreted in accordance with that Act.
BREAK COSTS mean any costs incurred by the Lender in terminating any agreement
to fund amounts the Lender is obligated to fund under this agreement, as a
consequence either of failure of the Company to make a drawdown after giving an
irrevocable Drawdown Notice or a prepayment of a Facility.
BUSINESS DAY means a day on which banks are open for general banking business in
the place or places set out in the Details under "Business Day place(s)" (not
being a Saturday, Sunday or public holiday in that place).
COMPANY means the person so described in the Details.
CONSTITUENT DOCUMENTS means the articles of incorporation, by-laws, partnership
agreements or such other documents or instruments which are required to be
registered or lodged in the place of incorporation or organisation of a person
and which establish the legal existence of such person.
CONTROL of a corporation includes the direct or indirect power to directly or
indirectly:
(a) direct the management or policies of the corporation; or
(b) control the membership of the board of directors,
whether or not the power has statutory, legal or equitable force or is based on
statutory, legal or equitable rights and whether or not it arises by means of
trusts, agreements, arrangements, understandings, practices, the ownership of
any interest in shares or stock of the corporation or otherwise.
COSTS includes costs, charges and expenses, including those incurred in
connection with advisers.
DEFAULT RATE means 2% above the ten year indicator rate for Commonwealth Bonds
as published in the Australian Financial Review on the date the Default Rate is
being calculated. If that rate ceases to be published or available for any
reason, the Default Rate is the rate that most closely approximates the ten year
indicator rate for Commonwealth Bonds as determined by the Lender acting in good
faith.
DETAILS means the section of this agreement headed "Details".
DRAWDOWN DATE means the date on which a drawdown is or is to be made.
DRAWDOWN NOTICE means a completed notice containing the information and
representations and warranties set out in schedule 5.
DRAWING means the outstanding principal amount of a drawdown made under a
Facility.
ENCUMBRANCE means any:
(a) security for the payment of money or performance of obligations,
including a mortgage, charge, lien, pledge, trust, power or title retention
arrangement; or
(b) right of set-off, assignment of income, garnishee order or monetary
claim; or
(c) right that a person (other than the registered proprietor) has to remove
something from land (known as a profit prendre), easement, public right of
way, restrictive or positive covenant, lease, or licence to use or occupy; or
(d) equity, interest or writ of execution,
or any agreement to create any of them or allow them to exist.
ENVIRONMENT means the physical factors of the surroundings of persons including
the land, water, atmosphere, climate, sound, odours, taste, the biological
factors of animals and plants and the social factor of aesthetics.
ENVIRONMENTAL LAW means a law regulating or otherwise relating to the
Environment, including but not limited to any law relating to land use planning,
pollution or air or water, soil or ground water contamination, chemicals, waste,
use of dangerous goods or to any other aspect of protection of the Environment.
ESCROW ACCOUNT means the account established pursuant to the Escrow Agreement.
ESCROW AGENT means Westpac Banking Corporation.
ESCROW AGREEMENT means the agreement in schedule 6.
ESCROW NOTICE means the notice given under clause 2.7, 3.7 or 4.7.
EVENT OF DEFAULT means an event so described in clause 13 ("Default").
FACILITIES means the Tranche A Facility, the Tranche B Facility and the Tranche
C Facility made available under this agreement, and FACILITY means any of them.
FINANCIAL STATEMENTS means:
(a) a profit and loss statement; and
(b) a balance sheet; and
(c) a statement of cash flows,
together with any notes to those documents and any other information necessary
to give a true and fair view.
HEAD LICENCE means the licence agreement dated as of 2 August 2000 between
Syntroleum Corporation as licensor and Syntroleum Australian Licensing
Corporation as licensee.
A person is INSOLVENT if:
(a) an involuntary proceeding is commenced against them (and is not stayed,
withdrawn or dismissed within 90 days) under any applicable U.S. Federal or
State bankruptcy, insolvency, reorganization or other similar law:
(i) seeking that they be wound up or liquidated;
(ii) seeking that they be adjudged bankrupt or insolvent;
(iii) seeking reorganisation, arrangement, adjustment or composition of or
in respect of them under any applicable law;
(iv) seeking the appointment of a Receiver, liquidator, custodian, assignee,
trustee, sequestrator (or other similar official) of them or of any substantial
part of their property or other assets;
(v) seeking any relief under any other law affecting creditors' rights that
is similar to a bankruptcy or insolvency or reorganization law; or
(b) they:
(i) commence a voluntary case or proceeding under any applicable U.S.
Federal or State bankruptcy, insolvency, reorganization or other similar law or
of any other case or proceedings to be adjudicated a bankrupt or insolvent;
(ii) consent to the entry of a decree or order for relief in an involuntary
case or proceeding under any applicable U.S. Federal or State bankruptcy,
insolvency, reorganization or other similar law; or
(iii) file a petition or answer or consent seeking reorganization or relief
under any applicable U.S. Federal or State law, or the consent by it to the
filing of such petition;
(iv) consent to the appointment of or taking possession by a custodian,
Receiver, liquidator, assignee, trustee, suquestrator or other similar official
to it or any substantial part of its property;
(v) make an assignment for the benefit of their creditors generally;
(vi) admit in writing their inability to pay their debts generally as they
become due; or
(vii) take any action for the purpose of doing any of those things; or
(c) a court having jurisdiction enters:
(i) a decree or order for relief in respect of them in an involuntary case
or proceeding under any applicable U.S. Federal or State bankruptcy, insolvency,
reorganization or other similar law; or
(ii) a decree or order adjudging them a bankrupt or insolvent, or approving
as properly filed a petition seeking reorganization, arrangement, adjustment or
composition of or in respect of them under any applicable U.S. Federal or State
law, or appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official to them or of any substantial part of
their property or ordering the winding up or liquidation of their affairs,
and the continuance of any such decree or order for relief or any such other
decree or order unstayed and in effect for a period of 90 consecutive days.
LENDER means the person so described in the Details.
LICENCE AGREEMENT means:
(a) the licence agreement dated 3 August 2000 between Syntroleum Australia
Licensing Corporation as licensor and the Lender as licensee; and
(b) any licence agreement issued in substitution for that original licence
agreement, irrespective of the parties to it.
LICENCE FEE means the amounts payable as such under the Licence Agreement or any
Site Licence Agreement.
MAJOR EVENT OF DEFAULT means an Event of Default arising under any of clauses
13.1(a), 13.1(f), 13.1(i), 13.1(j), 13.1(l) and 13.1(p)(ii).
MATERIAL ADVERSE EVENT means something which materially adversely affects:
(a) the Company's ability to comply with its obligations under any
Transaction Document or to carry on its business as it is being conducted at the
time immediately before the event; or
(b) the rights of the Lender under a Transaction Document.
MATERIAL SUBSIDIARY means an entity that :
(a) is a Subsidiary of another entity; and
(b) the value of that other entity's interest in the first entity
constitutes more than 5 percent of the net assets of such other entity
MATURITY DATE means the maturity date set out in the Details for a Facility, but
if that is not a Business Day, then the preceding Business Day.
PARENT means Syntroleum Corporation, a Delaware corporation.
PERMITTED ENCUMBRANCES means:
(a) Encumbrances imposed by law for Taxes or fees imposed as a matter of law
that are not yet due or are being contested in good faith;
(b) Encumbrances securing indebtedness that is approved by the Lender;
(c) carriers', warehousemen's, mechanics', materialmen's and repairmen's
Encumbrances, and other like Encumbrances imposed by law, arising in the
ordinary course of business and securing obligations that are not overdue by
more than ninety days unless being contested (provided that any such Encumbrance
in dispute is bonded in full or adequate cash reserves have been provided);
(d) pledges and deposits and other Encumbrances made in the ordinary course
of business in compliance with workers' compensation, unemployment insurance and
other social security laws or regulations; and
(e) easements, zoning restrictions, rights-of-way, reservations,
restrictions and other similar Encumbrances on real property imposed by law or
arising in the ordinary course of business that do not secure any monetary
obligations and do not materially detract from the value of the affected
property or interfere with the ordinary conduct of business of the Company.
POTENTIAL EVENT OF DEFAULT means an event which, with the giving of notice,
lapse of time or fulfillment of any condition, would be likely to become an
Event of Default.
PROJECT means the construction of a facility in Australia to be used to
demonstrate the commercial feasibility of the Parent's GTL technology directed
to the production of synthetic fuel products, and which will be designed to
allow for future testing of GTL fuel reactors on the site.
RECEIVER includes a receiver or receiver and manager.
RELEVANT COUNTRY means any country, or political subdivision of one or more
countries, or any federation or association of countries in which the Company is
either incorporated or is resident or domiciled for any tax purpose or in which
the Company carries on business or owns or leases property or from which, or
through which, any payment under a Transaction Document is made.
SECURITIES AND EXCHANGE COMMISSION means the United States Securities and
Exchange Commission.
SIDE LETTER means the letter dated on or about the date of this agreement from
the Parent addressed to the Lender and expressed to be the "Side Letter" for the
purposes of this agreement.
SITE LICENCE AGREEMENT has the same meaning as in the Licence Agreement.
SUBSIDIARY means an entity that:
(a) another entity:
(i) controls the composition of the first entity's board;
(ii) is in a position to cast, or control the casting of, more than one-half
of the maximum number of votes that might be cast at a general meeting of the
first entity; or
(iii) holds more than one-half of the issued share capital of the first
entity (excluding any part of that issued share capital that carries no right to
participate beyond a specified amount in a distribution of either profits or
capital) or
(b) the first entity is a subsidiary of a subsidiary of the other
entity.
TAXES means taxes, levies, imposts, charges and duties (including stamp and
transaction duties) imposed by any authority together with any related interest,
penalties, fines and expenses in connection with them.
TRANSACTION DOCUMENTS means the documents described as such in the Details.
REFERENCES TO CERTAIN GENERAL TERMS
Unless the contrary intention appears, a reference in this agreement to:
(a) a group of persons is a reference to any two or more of them jointly and
to each of them individually;
(b) an agreement, representation or warranty in favour of two or more
persons is for the benefit of them jointly and each of them individually;
(c) an agreement, representation or warranty by two or more persons binds
them jointly and each of them individually but an agreement, representation or
warranty by the Lender binds the Lender individually only;
(d) anything (including an amount) is a reference to the whole and each part
of it;
(e) a document (including this agreement) includes any variation or
replacement of it;
(f) law means common law, principles of equity, and laws made by parliament
(and laws made by parliament include State, Territory and Commonwealth laws and
regulations and other instruments under them, and consolidations, amendments,
re-enactments or replacements of any of them);
(g) an accounting term is a reference to that term as it is used in
accounting principles and practices generally accepted in Australia;
(h) the word "person" includes an individual, a firm, a body corporate, an
unincorporated association and an authority;
(i) a particular person includes a reference to the person's executors,
administrators, successors, substitutes (including persons taking by novation)
and assigns;
(j) the words "including", "for example" or "such as" when introducing an
example, do not limit the meaning of the words to which the example relates to
that example or examples of a similar kind.
NUMBER
The singular includes the plural and vice versa.
HEADINGS
Headings (including those in brackets at the beginning of paragraphs) are for
convenience only and do not affect the interpretation of this agreement.
EXECUTED as an agreement.
Schedule 1 - Conditions precedent (clause 5.2(a))
CONDITIONS TO FIRST DRAWDOWN
- Each item must be in form and substance satisfactory to the Lender.
- Certification is to be by a director or secretary of the Company, that the
item is true and complete as at a date no earlier than the date of this
agreement
- United States of America includes any state of the United States of
America.
ITEM FORM REQUIRED FOR
1 Certificate annexing and confirming Constituent Documents Original
Company
2 Certificate of registration Certified copy Company
Extract of minutes of a meeting of the Company's board of directors which
evidences the resolutions:
(a) authorising the signing and delivery of the Transaction Documents to
which it is a party and the observance of obligations under those documents;
and
(b) appointing Authorised Officers of the Company; and Company
3 (c) which acknowledge that the Transaction Documents (to which it is a
party) will benefit the Company. Certified copy
Company
4 Each document which evidences any other necessary corporate or other
action of the Company in connection with the Transaction Documents to which it
is a party. Certified copy
Company
5 Each authorisation of the Company necessary to enter into the Transaction
Documents to which it is a party and to comply with obligations under those
documents and enforce those documents. Certified copy
Company
6 Each power of attorney under which a person signs a Transaction Document
for the Company showing evidence of stamping and registration. Original
Specimen signature of
(a) each Authorised Officer of the Company; and Company
7 (b) each other person who is authorised to sign a Transaction Document
for the Company. Original
This agreement
(a) fully signed; and
8 (b) evidence of stamping; Original Not applicable
An opinion from the Company's United States legal adviser addressed to the
Lender, on terms satisfactory to the Lender, stating that:
A. the Company is incorporated under the laws of the place of its
incorporation stated in the Transaction Documents;
9 B. the Company has the corporate power to enter into and perform its
obligations under each Transaction Document to which it is a party;
Original Company
C. the execution, delivery and performance by the Company of each
Transaction Document to which it is a party did not and will not violate in any
respect any existing provision of:
I. the corporate law of Delaware, the United States of America;
II. its Constituent Documents;
D. all authorisations under the corporate law of Delaware and the United
States of America now obtainable and required in connection with the execution,
delivery, performance, validity or enforceability of the Transaction Documents
have been obtained or effected and are in full force and effect;
E. no stamp or registration or similar taxes or charges are payable under
the corporate law of Delaware or the United States of America in connection with
the execution, delivery, performance and enforcement of the Transaction
Documents or any transaction contemplated by them;
F. it is not necessary or advisable under the corporate law of Delaware or
the United States of America to file, register or record any Transaction
Document;
G. neither the Company nor any of its properties or assets has any
immunity from the jurisdiction of any court or from legal process under the
corporate law of Delaware or the laws of the United States of America;
H. Delaware corporate law does not preclude the Company from selecting the
laws of the Australian Capital Territory as governing law for the Transaction
Documents; and
I. Under the laws of New York, the stated choice by the parties of the
laws of the Australian Capital Territory as the governing law of the Transaction
Documents would be honored by a New York Court having jurisdiction.
A$ LOAN AGREEMENT
Schedule 2 - Tranche A Conditions Precedent
One or more certificates delivered to the Lender by a director or secretary of
the Company, in form and substance satisfactory to the Lender, certifying as to:
(a) the issuance of all permits, approvals and consents for the development,
construction, installation, operation and maintenance of the Project (as
required by any applicable Environmental Law);
(b) Final Closing of the debt and equity financing for the Project to the
satisfaction of the Lender, "FINAL CLOSING" means that all debt and equity
financing for the Project is available to the Company subject only to
construction loan conditions which are usual for a financing of that kind; and
(c) the Company obtaining all material real property rights or interests
which are reasonably required (as determined by the Lender) for the development,
construction, installation, operation and maintenance of the Project, including
the Lender being satisfied that all native title agreements sufficient for:
commencement of the Project; and
Final Closing of debt and equity financing for the Project, and required to be
in place under the terms of that financing prior to first drawdown, have been
finalised.
A$ LOAN AGREEMENT
Schedule 3 - Tranche B Conditions Precedent
The Lender being satisfied that an order in terms satisfactory to the Lender has
been placed by a third party (satisfactory to the Lender) for the use of the
auto-thermal reformer or other essential comparable equipment (as determined by
the Lender) for the Project.
A$ LOAN AGREEMENT
Schedule 4 - Tranche C Condition Precedent
The Project having been fully constructed and feed gas introduced in material
quantities, and the production of evidence satisfactory to the Lender of the
conversion of gas into synthesis gas by the Project in quantities reasonably
satisfactory to the Lender.
A$ LOAN AGREEMENT
Schedule 5 - Drawdown Notice
To: Commonwealth of Australia
Department of Industry, Science and Resources
Xxxxx 0, 00 Xxxxxx Xxxxxx
Xxxxxxxx XXX 0000
Xxxxxxxxx
Attention: GENERAL MANAGER, INVEST AUSTRALIA
[DATE]
DRAWDOWN NOTICE - LOAN AGREEMENT BETWEEN SYNTROLEUM AUSTRALIA CREDIT
CORPORATION, AND THE COMMONWEALTH OF AUSTRALIA DATED 3 AUGUST 2000 ("LOAN
AGREEMENT")
Under clause [2/3/4 (DELETE TWO)] of the Loan Agreement, the Company gives
notice as follows:1
The Company wants to borrow under the [Tranche A/Tranche B/Tranche C (DELETE
TWO)] Facility. 2
- The requested Drawdown Date is [ ].3
- The amount of the proposed drawdown is A$[ ].4
- The proposed drawdown is to be paid to:
Account number: [ ]
Account name: [ ]
Bank: [ ]
Branch: [ ]
Branch number: [ ]
The Company attaches a certificate according to clause [2.2/3.2/4.2 (DELETE
TWO)].
The Company represents and warrants that the representations and warranties in
the A$ Loan Agreement are correct and not misleading on the date of this notice
and that each will be correct and not misleading on the Drawdown Date, except as
disclosed below.
The "Interpretation" clause of the A$ Loan Agreement applies to this notice as
if it was fully set out in this notice.
DISCLOSURE
[NAME OF PERSON] being
an Authorised Officer of
[NAME OF COMPANY]
INSTRUCTIONS FOR COMPLETION
1 Insert for relevant facility - Tranche A 2.2, Tranche B 3.2, Tranche C
4.2.
2 All items must be completed.
3 Must be a Business Day within the availability period.
4 Must be for the Facility Limit of the particular Facility.
A$ LOAN AGREEMENT
Schedule 6 - Escrow Agreement
Signing Page
DATED: 3 August 2000
SIGNED for and on behalf of THE COMMONWEALTH OF AUSTRALIA by Xxxx
---------
Holthuyzen as its duly authorised representative in the presence of:
----------
/s/
----------------
)
Xxxxxx Xxxxx
----------------
Name of witness (block letters)
Canberra
---------
Address of witness
)
General Manager
-----------------
Occupation of witness
/s/
----
By executing this agreement the signatory warrants that the signatory
is duly authorised to execute this agreement on behalf of the Commonwealth of
Australia
SIGNED for and on behalf of SYNTROLEUM AUSTRALIA CREDIT CORPORATION by
Xxxxxxx X. Xxxxxxxx
----------------------
as its duly authorised representative in the presence of:
/s/
----
Signature of witness
)
Xxxx Xxxxxxx Xxxxxxxx
------------------------
Name of witness (block letters)
x/x 00 Xxxxxx Xxxxxx, Xxxxxxxx
-----------------------------------
Address of witness )
Solicitor
----------
Occupation of witness
/s/
----
By executing this agreement the signatory warrants that the signatory
is duly authorised to execute this agreement on behalf of Syntroleum Australia
Credit Corporation
A$ LOAN AGREEMENT
Dated
SYNTROLEUM AUSTRALIA CREDIT CORPORATION (COMPANY)
COMMONWEALTH OF AUSTRALIA (LENDER)
MALLESONS XXXXXXX XXXXXX
Solicitors
Ref: CANBERRA/258912.01
