EXHIBIT 99(bb)
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DATED 24 FEBRUARY 1999
SYNDICATED FACILITIES AGREEMENT
TU Australia Holdings (AGP) Pty Ltd
TU Australia Holdings No. 1 Limited
TU Australia Holdings No. 2 Limited
("CORE BORROWERS")
TUA (No. 10) Pty Ltd
TUA (No. 11) Pty Ltd
("WCF BORROWERS")
Bank of America National Trust and
Savings Association
Deutsche Bank AG
National Australia Bank Limited
Toronto Dominion Australia Limited
("JOINT LEAD BANKS")
National Australia Bank Limited
("WORKING CAPITAL BANK")
The financial institutions specified
in the Details as Hedge Counterparties
("HEDGE COUNTERPARTIES")
National Australia Bank Limited
("FACILITY AGENT")
National Australia Bank Limited,
Singapore Branch
("OFFSHORE PAYING AGENT")
The financiers specified in the
Details as Financiers
("FINANCIERS")
MALLESONS XXXXXXX XXXXXX
Solicitors
Rialto
000 Xxxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
Telephone (00 0) 0000 0000
Fax (00 0) 0000 0000
DX 101 Melbourne
Ref: JLC
MELBOURNE/29@V01!.DOC
CONTENTS SYNDICATED FACILITIES AGREEMENT
1 THE FACILITIES AND FACILITY LIMITS 11
Facilities 11
Financiers to fund by Loan Notes 11
Maximum accommodation 11
Several Obligations 11
Several Interests 12
Application of Proceeds 12
Limitation on Use 12
Termination 12
Reduction in Total Facility Limit 13
Performance of Deed Poll 13
2 USING THE FACILITIES 13
Drawings 13
Requesting a drawing 14
Effect of a Drawdown Notice 14
Conditions to first drawing 14
Conditions to all drawings 14
Benefit of conditions 14
Issue of Loan Notes 14
Relationship between Loans under the different
Deeds Poll 15
Location of Deeds Poll 16
First drawing 16
3 INTEREST 16
Notification of Interest Period 16
When Interest Periods begin and end 16
Notice of Interest Rate 16
4 WORKING CAPITAL FACILITY 16
5 CANCELLATION 17
6 FEES 17
Commitment fee 17
Cancellation and the commitment fee 17
Agent fees 17
Underwriting Fee 18
7 HEDGE COUNTERPARTIES 18
Accession of Hedge Counterparties 18
Undertaking of Hedge Counterparties 18
Execution of Hedge Counterparty Accession Agreement 19
Notification of Hedge Exposures 19
Consent 19
8 REPRESENTATIONS AND WARRANTIES 19
Representations and Warranties 19
Repetition 19
9 UNDERTAKINGS 20
10 EVENTS OF DEFAULT 20
Events of Default 20
11 COSTS AND INDEMNITIES 20
What the Borrower agrees to pay 20
Indemnity 21
Items included in loss, liability and Costs 21
Payment of employees'losses 22
Currency conversion on judgment debt 22
12 REGISTRATION 22
Registered form 22
Issue of Loan Notes by inscription in Register 22
Effect of inscription 22
Appointment of Xxxxxxxxx 00
Register 23
Entries in, and rectification of, Register 24
Certified extracts from Register available 24
13 OBLIGATIONS AND RESTRICTIONS 24
No prospectus 24
Financiers to observe laws 25
Restrictions on offer and sales of Loan Notes 25
14 SCOPE OF AGENCY 25
Appointment 25
Extent of authority and obligations 25
Acceptance by Facility Agent 25
Binding nature of agency 25
Excluded roles and duties 26
15 HOW AND WHEN THE FACILITY AGENT ACTS 26
After consultation and instructions 26
Matters requiring instructions from all Financiers 26
Matters requiring instruction from a Majority of
Financiers 27
Overriding instructions 27
Without consultation or instructions 28
Facility Agent's actions 28
Financier's instructions 28
16 FACILITY AGENT'S OBLIGATIONS TO GIVE NOTICES AND COPIES 28
Facility Agent's obligations 28
Facility Agent's awareness of certain events 29
Facility Agent may assume compliance 29
Confidentiality 29
Limit on obligations 29
17 AGENT'S RELATIONSHIP WITH FINANCE PARTIES 30
Individual responsibility of Finance Parties 30
Exoneration of Agent 30
Agent in capacity of a Financier 31
Agent dealing in different capacities 31
Facility Agent to act on Financier's request 31
Restriction on Finance Parties exercising rights 31
Notice of transfer 32
Financier to pay over amounts received directly 32
Pro-rata refunds 32
Proceeds of litigation 32
18 FUNDING OF FACILITY AGENT 33
Financiers to indemnify against non-payment 33
The Borrower's back-to-back indemnity 33
Funds before acting 33
If a Financier does not fund 33
Borrower's costs obligation not affected 34
19 FACILITY AGENT'S RELATIONSHIP WITH THE BORROWER 34
Compliance may be assumed 34
Facility Agent is not responsible for Finance Party's
breach 34
20 CHANGE OF AGENTS 34
Retirement 34
Removal 34
When retirement or removal takes effect 34
Permitted successor Agents 35
Obligations of retiring and successor Agents 35
Manner of appointment 35
21 MISCELLANEOUS PROVISIONS RELATING TO AGENCY 35
Security trust deed 35
Delegation by Agent 35
Duties when delegating 35
Responsibility for delegates 36
Facility Agent may rely on communications and opinions36
Force majeure 36
No responsibility for force majeure 36
22 ENTITLEMENTS TO PAYMENTS 36
Entitlement to payments 36
Direction to pay 37
23 DISTRIBUTION OF PAYMENTS 37
How Agent is to distribute 37
Excess distributions - contingencies 37
Postponement of non-funding Finance Parties 38
Manner of distribution 38
Distributions made in error 38
Application of payments 38
24 ASSIGNMENTS AND SUBSTITUTIONS BY FINANCIERS 38
Assignment by Financier 38
Syndication - Offshore Deed Poll 39
Assignment by Financiers 40
Substitution certificates 41
Methods of substitution by Domestic Financiers or
Offshore Financiers 42
25 DEALING WITH INTERESTS 46
No dealing by Borrower 46
Dealings by Financier 46
Dealings by Facility Agent 46
26 NOTICES 46
Form 46
Waiver of notice period 47
27 GENERAL 47
Set-off 47
Certificates 47
Prompt performance 47
Discretion in exercising rights 47
Consents 48
Partial exercising of rights 48
No liability for loss 48
Conflict of interest 48
Remedies cumulative 48
Rights and obligations are unaffected 48
Indemnities 48
Variation and waiver 48
Confidentiality 48
Further steps 49
Inconsistent law 49
Supervening legislation 49
Time of the essence 49
Counterparts 49
Applicable law 49
Serving documents 50
28 INTERPRETATION 50
Definitions 50
References to certain general terms 57
Number 58
Headings 58
Deutsche 59
SCHEDULE 1 - CONDITIONS PRECEDENT (CLAUSE 2.4) 60
SCHEDULE 2 - DRAWDOWN NOTICE (CLAUSE 2) 64
SCHEDULE 3 - FORM OF SUBSTITUTION CERTIFICATE 65
1 DEFINITIONS 65
2 TRANSFER AND SUBSTITUTION 65
Transfer 65
Substitution 66
3 INDEPENDENT ASSESSMENT BY SUBSTITUTE FINANCIER 66
4 PAYMENTS 66
5 WARRANTY 66
6 NOTICES 67
7 LAW 67
SCHEDULE 4 - HEDGE COUNTERPARTY ACCESSION AGREEMENT 68
SCHEDULE 5- OBLIGOR STRUCTURE CHART 70
SCHEDULE 6 - [DOMESTIC DEED POLL/OFFSHORE DEED POLL] 71
1 THE LOAN NOTES 72
Creation of Loan Notes 72
Core Borrowers'undertaking to pay 72
2 RIGHTS AND OBLIGATIONS OF FINANCIERS 72
Benefit and entitlement 72
Rights independent 72
Facility Agent and Financiers bound 72
Directions to hold Deed Poll 72
3 FORM, TITLE AND STATUS 72
Constitution under Loan Note Deed Poll 72
Independent obligations 73
Register conclusive 73
Holder absolutely entitled 73
Status of Loan Notes 73
4 TRANSFERS 73
Limit on transfer 73
Registration of transfer 73
5 INTEREST 73
Interest charges 73
Calculation of interest 73
6 REPAYING AND PREPAYING 74
Repayment 74
Voluntary prepayment 74
Apportionment 74
Prepayment and the Facility Limit 74
7 RELIQUIFYING BILLS 74
Obligation to draw Bills 74
Financier as attorney 75
Termination 75
Indemnity by Financier 75
Deemed application 75
8 EVENT OF DEFAULT 75
9 PAYMENT 76
Manner of payment 76
Currency of payment 76
10 TAX 77
Payments to Agents or Financiers 77
Tax credit 77
11 INCREASED COSTS 77
Compensation payable by Core Borrowers 77
Negotiations 78
Prepayment 78
Effect of notice 79
No compensation 79
Retrospective costs 79
Change of lending office 79
12 ILLEGALITY OR IMPOSSIBILITY 80
Financier's right to suspend or cancel 80
Extent and duration 80
Notice requiring prepayment under Facility 80
Financier to seek alternative funding method 80
13 INTEREST ON OVERDUE AMOUNTS 81
Obligation to pay 81
Compounding 81
Interest following judgment 81
14 GENERAL 81
15 DEFINITIONS 81
Incorporation of definitions 81
New definitions 81
EXECUTION PAGES 83
SYNDICATED FACILITIES AGREEMENT
DETAILS
INTERPRETATION
Definitions are at the end of the General Terms before the schedules.
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CORE BORROWERS, WCF BORROWERS, JOINT LEAD BANKS,
PARTIES WORKING CAPITAL BANK, HEDGE COUNTERPARTIES, FACILITY
AGENT, OFFSHORE PAYING AGENT and FINANCIERS, each as
described below.
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CORE BORROWERS
TU Australia Holdings (Partnership) Limited
Partnership a limited partnership formed and
registered under the Partnership Xxx 0000 of Victoria,
the general partner of which is:
Name: TU Australia Holdings (AGP) Pty
Ltd
ACN: 086 014 931
Incorporated in: Victoria
and the limited partners of which are:
Name: TU Australia Holdings No. 1
Limited
ARBN:
Incorporated in: England and Wales
and:
Name: TU Australia Holdings No. 2
Limited
ARBN:
Incorporated in: England and Wales
Address: Xxxxx 00
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx
Fax: 0000 0000
Attention: Xxx Xxxxxxx
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WCF BORROWERS Name: TUA (No. 10) Pty Ltd
ACN: 086 015 036
Address: Xxxxx 00
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx
Fax: 0000 0000
Attention: Xxx Xxxxxxx
Name: TUA (No. 11) Pty Ltd
ACN: 000 000 000
Address: Xxxxx 00
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx
Fax: 0000 0000
Attention: Xxx Xxxxxxx
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JOINT LEAD BANKS Name: Bank of America National Trust and Savings
Association
ARBN: 064 874 531
Address: Xxxxx 00, Xxxxxx Xxxxx Tower,
000 Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxx, 0000
Fax: (000) 0000 0000
Telephone: (000) 0000 0000
Attention: Vice President
Name: Deutsche Bank AG
ARBN: 064 164 162
and
Name: Deutsche Australia Limited
ACN: 006 385 593
Address: Xxxxx 00, 000 Xxxxxxx Xxxxxx
Xxxxxxxxx , Xxxxxxxx
Fax: (000) 0000 0000
Telephone: (000) 0000 0000
Attention: Manager, Loans Administration
Name: National Australia Bank Limited
ACN: 004 044 937
Address: Xxxxx 0
000 Xxxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
Fax: (000) 0000 0000
Telephone: (000) 0000 0000
Attention: Xx Xxxxx Xxxxxxxxxx
Name: Toronto Dominion Australia Limited
ACN: 004 858 020
Address: Xxxxx 00
000 Xxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
Fax: (000) 0000 0000
Telephone: (000) 0000 0000
Attention: Manager, Credit Administration
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WORKING CAPITAL BANK Name: National Australia Bank Limited
ACN: 004 044 937
Address: Xxxxx 0
000 Xxxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
Fax: (000) 0000 0000
Telephone: (000) 0000 0000
Attention: Xx Xxxxx Xxxxxxxxxx
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HEDGE COUNTERPARTIES Name: Bank of America National Trust and Savings
Association
ARBN: 064 874 531
Address: Xxxxx 00, Xxxxxx Xxxxx Tower,
000 Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxx, 0000
Fax: (000) 0000 0000
Telephone: (000) 0000 0000
Attention: Vice President
Name: Deutsche Bank AG
ARBN: 064 164 162
Address: Xxxxx 00
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx
Fax: (000) 0000 0000
Telephone: (000) 0000 0000
Attention: Global Markets, Settlements
Name: National Australia Bank Limited
ACN: 004 044 937
Address: Xxxxx 0
000 Xxxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
Fax: (000) 0000 0000
Telephone: (000) 0000 0000
Attention: Xx Xxxxx Xxxxxxxxxx
Name: The Toronto -Dominion Bank
ARBN: 082 818 175
Address: Xxxxx 00
000 Xxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
Fax: (000) 0000 0000
Telephone: (000) 0000 0000
Attention: Manager, Credit Administration
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FACILITY AGENT Name: National Australia Bank Limited
ACN: 004 044 937
Address: Xxxxx 0
000 Xxxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
Fax: (000) 0000 0000
Telephone: (000) 0000 0000
Attention: Head of Agency
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OFFSHORE PAYING AGENT Name: National Australia Bank Limited,
Singapore Branch
ACN: 004 044 937
Address: 0 Xxxxxxx Xxxxxxxxx,
#00-00, Xxxxxx Xxxx Xxxxx,
Xxxxxxxxx
Fax: (00) 000 0000
Telephone:
Attention: Corporate Banking
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FINANCIERS See last page of these Details
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TOTAL FACILITY LIMIT A$1,100,000,000, as reduced by any reductions in the
Facility Limits
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TRANCHE A FACILITY DESCRIPTION: 1 year non-revolving cash advance
facility.
FACILITY LIMIT: A$275,000,000, reduced by the total
of all cancellations, prepayments
and repayments under this agreement
including under clauses 1.13
(Reduction in Total Facility Limit)
and 1.14 (Reduction in Total
Facility Limit).
AVAILABILITY The period from the date of this
PERIOD: agreement to the earlier of the
close of business on Financial Close
and 15 March 1999.
MATURITY DATE: The anniversary of the date of
Financial Close.
INTEREST RATE: Bank Xxxx Rate plus the Margin.
INTEREST Not less than 30 and not more than
PERIODS: 180 days exceptin the initial 6
months from Financial Close, in
which case, 30 days.
PURPOSE: To fund the subscription by the Core
Borrowers of shares in Holdco.
DRAWINGS: Minimum A$10,000,000 and a whole
multiple of A$1,000,000.
PREPAYMENT: Prepayments of at least A$10,000,000
or a whole multiple of A$5,000,000
are permitted on 5 Business Days'
notice expiring on the last day of
the Interest Period of the relevant
Loan.
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TRANCHE B FACILITY DESCRIPTION: 3 year revolving cash advance
facility.
FACILITY LIMIT: A$220,000,000, reduced by the total
of all cancellations and repayments
under this agreement including under
clauses 1.13 (Reduction in Total
Facility Limit) and 1.14 (Reduction
in Total Facility Limit).
AVAILABILITY The period from the date of this
PERIOD: agreement to the close of business
on the Maturity Date.
MATURITY DATE: The third anniversary of the date of
Financial Close.
INTEREST RATE: Bank Xxxx Rate plus the Margin.
INTEREST Not less than 30 and not more than
PERIODS: 180 days except in the initial 6
months from Financial Close, in
which case, 30 days.
PURPOSE: To fund the subscription by the Core
Borrowers of shares in Holdco.
DRAWINGS: Minimum A$10,000,000 and a whole
multiple of A$1,000,000.
PREPAYMENT: Prepayments of at least
A$10,000,000 or a whole multiple of
A$5,000,000 are permitted on 5
Business Days' notice expiring on
the last day of the Interest Period
of the relevant Loan.
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TRANCHE C FACILITY DESCRIPTION: 3 year non-revolving cash advance
facility.
FACILITY LIMIT: A$605,000,000, reduced by the total
of all cancellations, prepayments and
repayments under this agreement
including under clauses 1.13
(Reduction in Total Facility Limit)
and 1.14 (Reduction in Total Facility
Limit).
AVAILABILITY The period from the date of this
PERIOD: agreement to the earlier of the
close of business on Financial Close
and 15 March 1999.
MATURITY DATE: The third anniversary of the date of
Financial Close.
INTEREST RATE: Bank Xxxx Rate plus the Margin.
INTEREST Not less than 30 and not more than
PERIODS: 180 days except in the initial 6
months from Financial Close, in
which case, 30 days.
PURPOSE: To fund the subscription by the Core
Borrowers of shares in Holdco.
DRAWINGS: Minimum A$10,000,000 and a whole
multiple of A$1,000,000.
PREPAYMENT: Prepayments of at least A$10,000,000
or a whole multiple of A$5,000,000
are permitted on 5 Business Days'
notice expiring on the last day of
the Interest Period of the relevant
Loan.
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WORKING CAPITAL FACILITY FACILITY LIMIT: A$5,000,000, as reduced by the total
of all cancellations.
MATURITY DATE: The second anniversary of the date of
Financial Close. See Working Capital
Terms and Conditions for further
details.
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FEES (also see clause 6) UNDERWRITING As separately agreed in writing
FEE: between the Core Borrowers and the
Joint Lead Banks.
COMMITMENT FEE: 40% of the applicable Margin,
calculated on the daily balance of
the Undrawn Facility Limit using a
365 day year from the earlier of the
date of Financial Close and 24
February 1999.
AGENCY FEE: As separately agreed in writing
between the Facility Agent and the
Core Borrowers.
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SECURITY includes:
o the Guarantee
o the Partnership Mortgage
o the Holdco Mortgage
o the BS1 Mortgage, Share Mortgage and Charge
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TRANSACTION include:
DOCUMENTS
o this agreement
o any Drawdown Notice
o any Substitution Certificate
o the Security
o the Security Trust Deed
o the Fee Letters
o the Working Capital Terms and Conditions
o each Hedge Agreement
o each Material Contract
o the Domestic Deed Poll
o the Offshore Deed Poll
o each Loan Note
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BUSINESS DAY PLACE
Melbourne and Sydney
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GOVERNING LAW
Victoria
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DATE OF AGREEMENT
See front page
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FINANCIERS
------------------------------------------------------------------------------------------------
NAME AND DETAILS TRANCHE A TRANCHE B TRANCHE C WORKING TOTAL
COMMITMENT COMMITMENT COMMITMENT CAPITAL COMMITMENT
A$ A$ A$ COMMITMENT A$
$A
------------------------------------------------------------------------------------------------
NAME:
BA Australia Limited
60,937,500 48,750,000 134,062,500 243,750,000
ACN: 000 000 000
ADDRESS AND LENDING OFFICE:
Xxxxx 00, Xxxxxx Xxxxx Xxxxx,
000 Xxxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
FAX: (000) 0000 0000
TELEPHONE: (000) 0000 0000
ATTENTION: Vice President
------------------------------------------------------------------------------------------------
NAME:
Deutsche Bank AG
60,937,500 48,750,000 134,062,500 243,750,000
ARBN: 064 164 162
and:
NAME:
Deutsche Australia Limited
ACN: 006 385 593
ADDRESS AND LENDING OFFICE:
Xxxxx 00
000 Xxxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
FAX: (000) 0000 0000
TELEPHONE: (000) 0000 0000
ATTENTION: Manager, Loans
Administration
------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------
NAME AND DETAILS TRANCHE A TRANCHE B TRANCHE C WORKING TOTAL
COMMITMENT COMMITMENT COMMITMENT CAPITAL COMMITMENT
A$ A$ A$ COMMITMENT A$
$A
------------------------------------------------------------------------------------------------
NAME:
National Australia Bank
Limited
60,937,500 48,750,000 134,062,500 5,000,000 248,750,000
ACN: 004 044 937
ADDRESS AND LENDING OFFICE:
Xxxxx 0
000 Xxxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
FAX: (000) 0000 0000
TELEPHONE: (000) 0000 0000
ATTENTION: Xx Xxxxx
Xxxxxxxxxx
------------------------------------------------------------------------------------------------
NAME:
Toronto Dominion Australia
Limited
60,937,500 48,750,000 134,062,500 243,750,000
ACN: 004 858 020
ADDRESS AND LENDING OFFICE:
Xxxxx 00
000 Xxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
FAX: (000) 0000 0000
TELEPHONE: (000) 0000 0000
ATTENTION:
Manager, Credit Administration
------------------------------------------------------------------------------------------------
NAME:
Paribas Group Australia
Limited
31,250,000 25,000,000 68,750,000 125,000,000
ACN: 002 174 843
ADDRESS AND LENDING OFFICE:
Xxxxx 00
0 Xxxxxx Xxxxxx
Xxxxxx XXX 0000
FAX:(00) 0000 0000
TELEPHONE: (00) 0000 0000
ATTENTION:
Relationship Manager
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GENERAL TERMS
1 THE FACILITIES AND FACILITY LIMITS
FACILITIES
1.1 The Financiers grant to the Core Borrowers:
(a) a non-revolving cash advance facility under the Tranche
A Facility during the Availability Period in an
aggregate amount not exceeding the Facility Limit;
(b) a revolving cash advance facility under the Tranche B
Facility during the Availability Period in an aggregate
amount not exceeding the Facility Limit; and
(c) a non-revolving cash advance facility under the Tranche
C Facility during the Availability Period in an
aggregate amount not exceeding the Facility Limit.
1.2 The Working Capital Bank grants to the WCF Borrowers the Working
Capital Facility on the terms of this agreement and the Working
Capital Terms and Conditions until the Maturity Date in an
aggregate amount not exceeding the Facility Limit.
FINANCIERS TO FUND BY LOAN NOTES
1.3 Each Financier agrees to provide its Proportion of Loans under a
Facility requested by a Core Borrower under this agreement:
(a) as a subscription for a Loan Note registered under a
Deed Poll;
(b) through its Lending Office; and
(c) up to an amount not exceeding its Commitment for the
relevant Facility.
MAXIMUM ACCOMMODATION
1.4 The maximum total amount of financial accommodation available to
the Borrowers under this agreement is the aggregate of the Total
Facility Limit and the Facility Limit for the Working Capital
Facility. That maximum applies to the Borrowers as a whole and
is not a limit applying to each Borrower individually.
1.5 Despite anything in this agreement, a Financier need not provide
financial accommodation under this agreement to the extent by
which its Drawn Commitment for a Facility after providing that
financial accommodation would exceed its Commitment for that
Facility.
SEVERAL OBLIGATIONS
1.6 The obligations of each Financier under this agreement and each
Bank Finance Document are several. The failure of a Financier to
perform its obligations under a Bank Finance Document will not
relieve any other Financier, an Agent or a Borrower of any of
their respective obligations under a Bank Finance Document. An
Agent will not be responsible for the obligations of any
Financier (except for its own obligations, if any, as a
Financier) nor will any Financier be responsible for the
obligations of any other Financier.
SEVERAL INTERESTS
1.7 The interests of each Agent and each Financier under this
agreement and each Bank Finance Document are several. Subject to
the provisions of the Bank Finance Documents, each Financier may
separately enforce its rights under any Bank Finance Document.
APPLICATION OF PROCEEDS
1.8 The Core Borrowers must apply the proceeds obtained from a
drawing under a Facility only for the purpose of financing the
subscription of shares in Holdco provided that the proceeds are
ultimately applied:
(a) in the case of the proceeds from the Tranche A Facility
and the Tranche C Facility, to pay the Total Purchase
Price and Acquisition Costs; and
(b) in the case of the proceeds from the Tranche B Facility,
to pay the Total Purchase Price and Acquisition Costs
and the working capital, Capital Expenditure and general
corporate requirements of the WCF Borrowers,
and the WCF Borrowers must apply the proceeds from the Working Capital
Facility, to fund the working capital requirements of the WCF
Borrowers.
LIMITATION ON USE
1.9 If the Core Borrowers wish to use a Facility they must do so
together and not individually. Subject to clause 11.5 of the
Security Trust Deed, each Core Borrower is jointly and severally
liable for all financial accommodation provided under this
agreement.
1.10 Subject to the terms of this agreement and unless otherwise
agreed by the Financiers, the first drawing under the Facilities
must be made on Financial Close.
TERMINATION
1.11 If:
(a) the Treasurer of the State of Victoria, Westar, Westar
Assets or Kinetik enters into an agreement with a person
other than the Purchasers for the purpose of the
disposal of all or any of the shares in or the assets of
Gascor, Westar, Westar Assets or Kinetik; or
(b) Financial Close has not occurred on or before 15 March
1999 (or such later date as all of the Financiers may
agree in writing),
then the Availability Period will automatically expire and all of the
Commitments will automatically be reduced to nil and the Facilities will
terminate.
1.12 Except as provided in clause 1.11 (Termination), a Facility
terminates on the Maturity Date for that Facility.
REDUCTION IN TOTAL FACILITY LIMIT
1.13
(a) On or before the date of Financial Close and after the
entry by the Core Borrowers into Hedge Agreements with
each Hedge Counterparty in compliance with the Security
Trust Deed, the Facility Agent must immediately update
the Original Base Case Model to reflect the actual
interest rates applying (or to apply) as from the date
of Financial Close under the Hedge Agreements. The
Facility Agent will agree with the Core Borrowers the
new assumptions with regard to interest rates and adjust
the Original Base Case Model to reflect the new
assumptions regarding interest rates.
(b) If, on the basis solely of that updated Base Case Model,
the projected Consolidated Interest Cover Ratio on any
Calculation Date prior to the tenth anniversary of
Financial Close is less than the projected ratio in the
Original Base Case Model on each relevant Calculation
Date then the Facility Limits for the Tranche A
Facility, Tranche B Facility and Tranche C Facility (and
the Commitments of each Financier on a pro rata basis)
may be reduced and cancelled at the sole discretion of
the Joint Lead Banks by such an amount as is required so
that the projected Consolidated Interest Cover Ratio
under the updated Base Case Model on each Calculation
Date prior to the tenth anniversary of Financial Close
is not less than the projected ratio in the Original
Base Case Model.
1.14 Prior to Financial Close, the Borrower must notify the Facility
Agent of the Total Purchase Price and Acquisition Costs. If the
Total Facility Limit on Financial Close is greater than 70% of
the aggregate of the Total Purchase Price and the Acquisition
Costs, then the Facility Limits for the Tranche A Facility,
Tranche B Facility and Tranche C Facility (and the Commitments
of each Financier on a pro rata basis) will be proportionally
reduced and cancelled by such amount as is required so that the
Total Facility Limit equals 70% of the aggregate of the Total
Purchase Price and the Acquisition Costs.
PERFORMANCE OF DEED POLL
1.15 Each Financier, the Facility Agent and the Offshore Paying Agent
undertakes to do everything a Deed Poll provides that it is to
do and agrees to be bound by the Deed Polls.
2 USING THE FACILITIES
DRAWINGS
2.1 If a Borrower wants to use:
(a) the Tranche A Facility or the Tranche C Facility, it may
only do so by a single drawing of a Loan under each
Facility on Financial Close;
(b) the Tranche B Facility, it may do so by no more than six
drawings of Loans; and
(c) the Working Capital Facility, it may do so in accordance
with the Working Capital Terms and Conditions. Clauses
2.2, 2.3, 2.5 and 3 do not apply to the Working Capital
Facility.
REQUESTING A DRAWING
2.2 If the Core Borrowers want a drawing, they agree to give a
Drawdown Notice to the Facility Agent by 11am on the third
Business Day before the day it wants the drawing. The Agent must
promptly inform the Financiers of the receipt of a Drawdown
Notice.
EFFECT OF A DRAWDOWN NOTICE
2.3 A Drawdown Notice is effective when the Facility Agent actually
receives it in legible form. An effective Drawdown Notice is
irrevocable.
CONDITIONS TO FIRST DRAWING
2.4 Before a Borrower requests the first drawing or requests
financial accommodation under the Working Capital Facility, it
agrees to ensure that the Facility Agent receives every item
listed in schedule 1 (Conditions Precedent) in form and
substance satisfactory to the Facility Agent. Any item required
to be certified must be certified by a director of the relevant
Obligor as being true and complete as at a date no earlier than
7 days prior to the date of this agreement.
CONDITIONS TO ALL DRAWINGS
2.5 A Financier need not provide any financial accommodation unless:
(a) it is to be provided during the Availability Period set
out in the Details for the relevant Facility; and
(b) the Financier's Drawn Commitment for a Facility after
providing the accommodation would not be greater than
its Commitment for the Facility; and
(c) the Facility Agent has received a Drawdown Notice in
respect of it; and
(d) the representations and warranties in clause 5 of the
Security Trust Deed and in the Drawdown Notice and the
statements in the Drawdown Notice are correct and not
misleading at the date of the Drawdown Notice and at the
date the accommodation is provided; and
(e) no Event of Default or Potential Event of Default
subsists or would result from the accommodation being
provided.
BENEFIT OF CONDITIONS
2.6 Each condition to drawing is for the sole benefit of the
Financiers and may be waived by the Facility Agent.
ISSUE OF LOAN NOTES
2.7 On the Drawdown Date for a drawing of a Loan under a Facility:
(a) each Financier agrees to provide its Proportion of the
Loan requested (which shall constitute a subscription
for a Loan Note without any further action on the part
of the Financier) to the Facility Agent; and
(b) the Core Borrowers shall:
(i) in the case of the first Drawdown Date, deliver
to the Facility Agent (by release from escrow)
the Offshore Deed Poll outside Australia and the
Domestic Deed Poll in Victoria; and
(ii) issue (by inscription in the Register) either a
Domestic Loan Note or an Offshore Loan Note to
each Financier with:
(A) a maximum principal amount which may be
outstanding from time to time under it
equal to the Financier's Commitment for
the relevant Facility; and
(B) a principal amount outstanding equal to
the Financier's Proportion of the Loans
under that Facility from time to time
outstanding.
The Core Borrowers will before the first Drawdown Date
sign and seal each Deed Poll in the jurisdiction in
which it is to be delivered and provide them to the
Facility Agent in escrow, for release on receipt of the
money referred to in this clause to be delivered and
dated by the Facility Agent on the date of that receipt.
2.8 On receipt of the amount referred to in clause 2.7, the Facility
Agent shall:
(a) pay that amount in the manner specified in the Drawdown
Notice;
(b) in the case of the first Drawdown Date, deliver and date
the Deeds Poll; and
(c) enter the Loan Notes to be issued under clause 2.7 in
the relevant Register. That entry will constitute the
issue of the Loan Notes.
2.9 In the case of amounts received under or in relation to the
Offshore Deed Poll or Offshore Loan Notes, payments and accounts
under this agreement must be outside Australia unless the IWT
Amending Legislation has become law.
RELATIONSHIP BETWEEN LOANS UNDER THE DIFFERENT DEEDS POLL
2.10 The Core Borrowers shall drawdown and repay or prepay amounts
between the Loan Notes rateably according to the participation
in the Principal Outstanding of the Financiers who hold them,
except where the Core Borrowers are expressly permitted to repay
or prepay a Loan or an individual Financier under the Bank
Finance Documents.
LOCATION OF DEEDS POLL
2.11 The Facility Agent shall at all times:
(a) retain the Domestic Deed Poll in Victoria; and
(b) until the IWT Amending Legislation has become law,
retain the Offshore Deed Poll outside Australia and,
afterwards, outside Australia or in Victoria.
FIRST DRAWING
2.12 The Core Borrowers must ensure that the total principal amount
drawn on the first Drawdown Date is an amount that will ensure
that each Domestic Loan Note has an outstanding principal amount
of at least A$500,000 or the Domestic Loan Notes issued on the
first Drawdown Date are issued in a manner which otherwise
constitutes an "excluded issue" within the meaning of the
Corporations Law.
3 INTEREST
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NOTIFICATION OF INTEREST PERIOD
3.1 The first Interest Period for a Loan is the period specified in
the Drawdown Notice. Each subsequent Interest Period is a period
notified by the Core Borrowers to the Facility Agent by 11am on
the second Business Day before the last day of the current
Interest Period. However, in each case, the specified period
must be one that is set out in the Details. If the Core
Borrowers do not give notice or correct notice, the subsequent
Interest Period is the same length as the Interest Period which
immediately precedes it (or it is the period until the Maturity
Date, if that is shorter than the preceding Interest Period).
WHEN INTEREST PERIODS BEGIN AND END
3.2 The first Interest Period for a Loan begins on its Drawdown
Date. Each subsequent Interest Period begins on the day when the
preceding Interest Period for the Loan ends. An Interest Period
which would otherwise end on a day which is not a Business Day
ends on the next Business Day unless that next Business Day
would fall in a new calendar month in which case the Interest
Period ends on the immediately preceding Business Day and an
Interest Period which would otherwise end after a Maturity Date
for a Facility ends on the Maturity Date for that Facility.
NOTICE OF INTEREST RATE
3.3 The Facility Agent shall notify the Core Borrowers of the
Interest Rate applicable to an Interest Period in respect of a
Loan promptly following a request in writing from the Core
Borrowers.
4 WORKING CAPITAL FACILITY
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4.1 The Working Capital Bank will, save as provided for in this
clause, provide the Working Capital Facility on the terms and
conditions of the Working Capital Terms and Conditions.
4.2 A copy of the Working Capital Terms and Conditions must, on
request by the Agent, be provided by the Working Capital Bank to
the Facility Agent and the WCF Borrowers consent to the same.
4.3 The WCF Borrowers and the Working Capital Bank agree with and
for the benefit of each other Financier that the principal
amount outstanding under the Working Capital Facility provided
by the Working Capital Bank will not exceed the Facility Limit
for the Working Capital Facility.
4.4 The Working Capital Bank may not, until a notice has been served
by the Security Trustee under and in accordance with clause 8.2
of the Security Trust Deed, demand repayment of any moneys owing
to it in respect of the Working Capital Facility.
4.5 Except as provided in clause 4.4, to the extent of any
inconsistency between the provisions of the Working Capital
Terms and Conditions and the provisions of this agreement (other
than in respect of drawdown mechanics, pricing, fees,
availability and required payments), the provisions of this
agreement will prevail.
4.6 On request from the Facility Agent, the Working Capital Bank
will provide to the Facility Agent details of all moneys owing
under the Working Capital Facility and the WCF Borrowers consent
to such information being so provided.
5 CANCELLATION
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The Borrowers may cancel the Undrawn Facility Limit of a Facility in
whole or in part by giving the Agent at least five Business Days'
notice. A partial cancellation must be at least A$5,000,000 and a whole
multiple of A$5,000,000. Once given, the notice is irrevocable. The
Facility Limit for the Facility reduces by the amount of any
cancellation. Each Financier's Commitment for the Facility also reduces
by its Proportion of the cancelled amount.
6 FEES
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COMMITMENT FEE
6.1 The Borrowers agree to pay to the Facility Agent quarterly in
arrears (the first quarter ending three months after the earlier
of the date of Financial Close and 24 February 1999) and on the
Maturity Date for the Tranche B Facility, a commitment fee in
respect of each Facility as set out in the Details.
CANCELLATION AND THE COMMITMENT FEE
6.2 If a Borrower cancels any of the Undrawn Facility Limits, it
agrees to pay the commitment fee in respect of the cancelled
amount up to and including the cancellation date.
AGENT FEES
6.3 The Core Borrowers agree to pay the Facility Agent for itself an
agency fee in accordance with the terms separately agreed in an
agency fee letter between the Core Borrowers and the Facility
Agent.
UNDERWRITING FEE
6.4 The Core Borrowers agree to pay to the Joint Lead Banks an
underwriting fee in accordance with the terms separately agreed
in an underwriting fee letter between the Core Borrowers and the
Joint Lead Banks.
7 HEDGE COUNTERPARTIES
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ACCESSION OF HEDGE COUNTERPARTIES
7.1 No Financier providing hedging facilities but not party to this
agreement as a Hedge Counterparty will be entitled to share in
any of the security constituted by the Security in respect of
the Hedge Liabilities unless and until it has executed a Hedge
Counterparty Accession Agreement.
UNDERTAKING OF HEDGE COUNTERPARTIES
7.2 Except as the Majority of Financiers have previously consented
to in writing, no Hedge Counterparty will:
(a) demand (other than as may be necessary in order to
exercise a right to terminate or close out any hedging
transaction as provided in and permitted under clause
7.2(b)) or receive payment, prepayment or repayment of,
or any distribution in respect of, or on account of, any
Hedge Liabilities in cash or in kind, or apply any money
or property in or towards the discharge of any Hedge
Liabilities except:
(i) for scheduled payments arising under the
original terms of the Hedge Agreements (without
regard to any amendments made after the date of
those Hedge Agreements other than those
permitted by the Majority of Financiers); and/or
(ii) for the proceeds of enforcement of the Security
received and applied in accordance with the
terms of this agreement or any other Bank
Finance Document;
(b) exercise any right to terminate or close out any hedging
transaction under the Hedge Agreements prior to its
stated maturity unless:
(i) the Core Borrower has failed to make any payment
due under the Hedge Agreement after any grace
periods applicable thereto and such default is
not cured within 5 Business Days of notice of
such default being given to the Agent; or
(ii) the Security Trustee has made a declaration
under clause 8.2 of the Security Trust Deed; or
(iii) the Hedge Counterparty is entitled to exercise
such a right under section 5(b)(i) (Illegality)
of the Hedge Agreement; or
(iv) the Core Borrowers have fully paid all Amounts
Owing to the Financiers under this agreement or
the Facilities have been terminated or
cancelled; or
(c) discharge all or any part of the Hedge Liabilities by
set-off, any right of combination of accounts or
otherwise except if and to the extent that those Hedge
Liabilities are permitted to be paid under paragraph (a)
above; or
(d) permit to subsist or receive after the date of Financial
Close any Security Interest or any financial support
(including without limitation the taking of any
participation, the giving of any guarantee, indemnity or
other assurance against loss, or the making of any
deposit or payment) for, or in respect of, any of the
Hedge Liabilities other than under the Security or any
other Security Interest or support granted for the full
benefit (save to the extent otherwise required so as to
comply with applicable law) of the Finance Parties.
EXECUTION OF HEDGE COUNTERPARTY ACCESSION AGREEMENT
7.3 Each party to this agreement irrevocably authorises the Facility
Agent to sign each Hedge Counterparty Accession Agreement on its
behalf and acknowledges that upon the same being signed, it
shall have consented to such Hedge Counterparty becoming party
to this agreement.
NOTIFICATION OF HEDGE EXPOSURES
7.4 Each Hedge Counterparty must, on request by the Facility Agent,
give written notice to the Agent certifying its Hedge Exposure
as at the date of the notice.
CONSENT
7.5 To the extent that the terms of any Hedge Agreement prohibit the
Core Borrowers transferring any interest or obligation under a
Hedge Agreement to the Security Trustee without the consent of
the Hedge Counterparty, the Hedge Counterparty gives that
consent in relation to the Partnership Mortgage.
8 REPRESENTATIONS AND WARRANTIES
--------------------------------------------------------------------------------
REPRESENTATIONS AND WARRANTIES
8.1 Each Borrower makes the representations and warranties made by
it in clause 5 of the Security Trust Deed.
REPETITION
8.2 The representations and warranties made pursuant to clause 8.1
are taken also to be made on each Drawdown Date and on the date
of delivery of a compliance certificate in accordance with
clause 6.1(l) of the Security Trust Deed by reference to the
then current circumstances. Each Borrower agrees to notify the
Facility Agent of anything that happens that would mean it could
not truthfully repeat all of its representations and warranties
on each Drawdown Date and on the date of delivery of a
compliance certificate in accordance with clause 6.1(l) of the
Security Trust Deed by reference to the then current
circumstances.
9 UNDERTAKINGS
--------------------------------------------------------------------------------
9.1 Each Borrower makes the undertakings given by it in clause 6 of
the Security Trust Deed.
10 EVENTS OF DEFAULT
--------------------------------------------------------------------------------
EVENTS OF DEFAULT
10.1 Each of the events specified in clause 8.1 of the Security Trust
Deed will be an Event of Default under this agreement (whether
or not it is within the Borrowers' power to prevent it).
11 COSTS AND INDEMNITIES
--------------------------------------------------------------------------------
WHAT THE BORROWER AGREES TO PAY
11.1 The Borrowers agree to pay or reimburse the Facility Agent on
demand for:
(a) the reasonable Costs of the Facility Agent and each
Finance Party in connection with:
(i) the negotiation, preparation, execution and
registration of and payment of Taxes on any Bank
Finance Document (other than a Substitution
Certificate executed after the primary
syndication of the Facilities); and
(ii) their being satisfied that conditions to drawing
have been met; and
(iii) giving and considering consents, approvals,
agreements, waivers, discharges and releases and
any variation or amendment of, under, to or
otherwise in connection with a Bank Finance
Document; and
(b) the reasonable Costs of the Joint Lead Banks in
connection with the syndication of the Facilities for a
period of not more than six months from Financial Close;
and
(c) the Costs of the Agents and each Finance Party in
connection with the enforcing or preserving rights (or
considering, enforcing or preserving them) under any
Bank Finance Document, or doing anything in connection
with any enquiry by an authority involving the Obligor
or any of its Related Entities; and
(d) Taxes and fees (including registration fees) and fines
and penalties in respect of fees paid, or that the
Facility Agent reasonably believes are payable, in
connection with any Bank Finance Document or a payment
or receipt or any other transaction contemplated by any
Bank Finance Document. However, the Borrower need not
pay a fine or penalty in connection with Taxes or fees
to the extent that it has placed the Facility Agent in
sufficient cleared funds for the Facility Agent to be
able to pay the Taxes or fees by the due date.
The Facility Agent may debit any of these amounts to a
Borrower's account after asking the Borrower to pay and the
Borrower has failed to pay the amount requested.
INDEMNITY
11.2 The Borrowers indemnify each Agent and each Finance Party
against any liability or loss arising from, and any Costs
incurred in connection with:
(a) financial accommodation requested under a Bank Finance
Document not being provided in accordance with the
request for any reason except default of the Agent or
the Financier; or
(b) financial accommodation under a Bank Finance Document
being repaid, discharged or made payable other than at
its maturity or on an Interest Payment Date relevant to
that accommodation; or
(c) an Agent or the Finance Party acting in connection with
a Bank Finance Document in good faith on fax or
telephone instructions purporting to originate from the
offices of an Obligor or to be given by an Authorised
Officer of an Obligor and which it believes to be
genuine and correct; or
(d) an Event of Default; or
(e) an Agent or the Finance Party exercising or attempting
to exercise a right or remedy in connection with a Bank
Finance Document after an Event of Default and for so
long as it subsists; or
(f) any indemnity an Agent or the Finance Party properly
gives a Controller or an administrator of an Obligor or
to the Security Trustee in respect of an indemnity
properly given by the Security Trustee to such
Controller or administrator.
ITEMS INCLUDED IN LOSS, LIABILITY AND COSTS 11.3 The Borrowers agree that:
(a) the Costs referred to in clause 11.1 (What the Borrower
agrees to pay) and the liability, loss or Costs referred
to in clause 11.2 (Indemnity) include in relation to
clause 11.1(a) and (b), reasonable legal Costs and in
relation to clause 11.1(c) and 11.2, legal Costs in
accordance with any written agreement as to legal costs
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 11.1((a)) and (c) (What
the Borrower agrees to pay) include those paid, or that
the Agent or relevant Finance Party reasonably believes
are payable, to persons engaged by the Agent or a
Finance Party in connection with the Bank Finance
Documents (such as consultants); and
(c) loss or liability and any Costs in any indemnity under
the Bank Finance Documents may include "break costs".
These may be calculated by any method the Finance Party
reasonably chooses including by reference to any loss it
incurs because the Finance Party terminates arrangements
it has made with others to fund (or to maintain its
funding of) financial accommodation under the Bank
Finance Documents.
PAYMENT OF EMPLOYEES' LOSSES
11.4 The Borrowers agree to pay the Facility Agent an amount equal to
any liability or loss and any Costs of the kind referred to in
clause 11.2 (Indemnity) suffered or incurred by any employee,
officer, agent or contractor of an Agent or the Finance Party
unless caused by that person's gross negligence.
CURRENCY CONVERSION ON JUDGMENT DEBT
11.5 If a judgment, order or proof of debt for an amount in
connection with a Bank Finance Document is expressed in a
currency other than that in which the amount is due under the
Bank Finance Document, then the Borrowers indemnify each Agent
and each Finance Party against:
(a) any difference arising from converting the other
currency if the rate of exchange used by the Agent or
the Finance Party under clause 9.2 of the Deed Poll
(Currency of payment) for converting currency when it
receives a payment in the other currency is less
favourable to the Agent or the Finance Party 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.
12 REGISTRATION
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REGISTERED FORM
12.1 Each Loan Note is in registered form. No global or definitive
certificate will be issued in respect of it, unless required by
law.
ISSUE OF LOAN NOTES BY INSCRIPTION IN REGISTER
12.2 The issue of each Loan Note is effected by inscription of the
details of the Loan Notes in the Register.
EFFECT OF INSCRIPTION
12.3 Each inscription in the Register in respect of a Loan Note
constitutes:
(a) an acknowledgment to the relevant Financier by the Core
Borrowers of the indebtedness of the Core Borrowers to
that Financier under the relevant Deed Poll; and
(b) an undertaking by the Core Borrowers to the relevant
Financier to make all payments of principal and interest
in respect of the Loan Note in accordance with the terms
of the Loan Note and the relevant Deed Poll; and
(c) an entitlement to the other benefits given to Financiers
and the Agent under the relevant Deed Poll.
APPOINTMENT OF REGISTRAR
12.4 The Facility Agent (in respect of the Domestic Loan Notes) and
the Offshore Paying Agent (in respect of the Offshore Loan
Notes) are appointed by the Core Borrowers the registrars of the
Loan Notes on the terms and conditions of this agreement and the
relevant Deed Poll and the Facility Agent and Offshore Paying
Agent accept that appointment.
REGISTER
12.5 The Registrar agrees to do the following things:
(a) (in the case of the Facility Agent) establish and
maintain the Domestic Register in Victoria as agent of
the Core Borrowers;
(b) (in the case of the Offshore Paying Agent) establish and
maintain the Offshore Register in Singapore (or such
other place outside Australia as the Core Borrowers, the
Registrar and the Facility Agent may agree) as agent of
the Core Borrowers unless the IWT Amending Legislation
becomes law in which case the Core Borrowers, the
Facility Agent and each Registrar may agree alternate
arrangements for the location of the Offshore Register
which could, without limitation, involve merging it into
the Domestic Register;
(c) enter or cause to be entered in the relevant Register in
respect of each Loan Note under a Facility:
(i) the Facility in respect of which the Loan Note
is issued;
(ii) the issue date (being the day on which the Loan
Note is issued by inscription in the Register);
(iii) the name and address of each Financier who is an
initial holder of a Loan Note and each Financier
to whom the Loan Note is subsequently
transferred (which names and addresses must be
the same name and address specified for that
Financier in this agreement or a Substitution
Certificate);
(iv) the Lending Office of each Financier (for the
purpose of identifying the Financier as a
Domestic Financier or an Offshore Financier);
(v) the maximum principal amount (which must be an
amount equal to the Financier's Commitment for
the relevant Facility);
(vi) the principal amount outstanding from time to
time (which must be the same as the Principal
Outstanding owing to the relevant Financier
under the relevant Loan Notes);
(vii) the redemption date (which must be the Maturity
Date for the relevant Facility);
(viii) the date of all transfers;
(ix) the account of the Financier to which payments
are to be paid or the address to which those
payments are to be posted (which in the case of
an Offshore Financier must be an account or
address outside Australia, unless the IWT
Amending Legislation becomes law, in which case
the Core Borrowers, the Facility Agent and the
Registrar may agree that this account or address
could be located in Australia);
(x) (in the case of the Domestic Register), the
Financier's tax file number or exemption details
(if provided);
(xi) a record of each payment made;
(xii) each Interest Payment Date; and
(xiii) such other information that the Core Borrowers
and the Registrar consider necessary or
desirable.
ENTRIES IN, AND RECTIFICATION OF, REGISTER
12.6 If:
(a) there is any error, omission, defect or misdescription
in the Register; or
(b) the Facility Agent gives notice to the Registrar of any
change in any of the details recorded in respect of the
Financier pursuant to clause 12.5,
the Registrar must rectify the Register promptly on becoming aware of it
or following notification of it.
CERTIFIED EXTRACTS FROM REGISTER AVAILABLE
12.7 The Core Borrowers agree to procure that the Registrar provides
(and the Registrar agrees so to provide) to each Financier a
certified extract of the particulars as required by clause
12.5(c) entered in the Register in relation to that Financier
and the Loan Notes held by it upon the issue of a Loan Note to
that Financier.
13 OBLIGATIONS AND RESTRICTIONS
--------------------------------------------------------------------------------
NO PROSPECTUS
13.1 Each Financier acknowledges that no prospectus in relation to
the Loan Notes has been lodged with or registered by the
Australian Securities and Investments Commission.
FINANCIERS TO OBSERVE LAWS
13.2 Each Financier agrees to observe laws and regulations in any
jurisdiction in which it may offer, sell or deliver Loan Notes.
RESTRICTIONS ON OFFER AND SALES OF LOAN NOTES
13.3 Each Financier agrees that it will not:
(a) directly or indirectly offer, sell or deliver Loan Notes
or distribute any prospectus, circular, advertisement or
other offering material relating to the Loan Notes in
any jurisdiction except under circumstances that will
result in compliance with the laws and regulations of
that jurisdiction; or
(b) make any offer or invitation in relation to the Loan
Notes in Australia unless it is an excluded offer or
excluded invitation as those terms are defined in the
Corporations Law; or
(c) circulate or issue a prospectus or other offering
material relating to the Loan Notes in Australia which
requires lodging or registration under Division 2 of
part 7.12 of the Corporations Law.
14 SCOPE OF AGENCY
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APPOINTMENT
14.1 Each Finance Party (other than the Facility Agent) appoints the
Facility Agent to act as its agent in connection with the
Transaction Documents.
EXTENT OF AUTHORITY AND OBLIGATIONS
14.2 Each Finance Party irrevocably authorises the Facility Agent to:
(a) enter into the Bank Finance Documents (other than this
agreement); and
(b) take action on the Finance Party's behalf in accordance
with this agreement and the other Bank Finance
Documents; and
(c) exercise the rights and carry out the obligations of the
Facility Agent expressly set out in the Bank Finance
Documents and rights, powers and discretions reasonably
incidental to them.
The Finance Parties acknowledge that the Facility Agent has no
obligations except those expressly set out in the Bank Finance
Documents.
ACCEPTANCE BY FACILITY AGENT
14.3 The Facility Agent agrees to act as the agent of the Finance
Parties in connection with the Transaction Documents in
accordance with this agreement.
BINDING NATURE OF AGENCY 14.4 Each Finance Party agrees:
(a) to be bound by anything properly done or properly not
done by the Facility Agent in accordance with this
agreement, whether or not on instructions, and whether
or not the Finance Party gave an instruction or approved
of the thing done or not done; and
(b) at a Borrower's request, to ratify anything properly
done or properly not done by the Facility Agent in
accordance with this agreement.
EXCLUDED ROLES AND DUTIES
14.5 The appointment as agent does not mean that the Facility Agent:
(a) is a trustee for the benefit of; or
(b) is a partner of; or
(c) has a fiduciary duty to, or other fiduciary relationship
with,
any Finance Party, an Obligor or any other person, except as expressly
set out in any Bank Finance Document.
FINANCE PARTIES INTEREST IN SECURITIES
14.6 Each Finance Party accepts that it acquires an interest in any
Security taken by the Facility Agent or the Security Trustee and
agrees to be bound by the Security Trust Deed.
15 HOW AND WHEN THE FACILITY AGENT ACTS
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AFTER CONSULTATION AND INSTRUCTIONS
15.1 If the Facility Agent proposes to act on any of the following
matters, it agrees to:
(a) consult the Finance Parties on the proposal; and
(b) take Enforcement Action if, and only if, it receives
instructions to do so from:
(i) all the Financiers - on matters listed in clause
15.2 (Matters requiring instructions from all
Financiers); or
(ii) a Majority of Financiers - on matters listed in
clause 15.3 (Matters requiring instructions from
a Majority of Financiers).
MATTERS REQUIRING INSTRUCTIONS FROM ALL FINANCIERS
15.2 The following matters require instructions from all Financiers:
(a) a waiver under clause 2.6 (Benefit of conditions);
(b) a change to a Facility Limit or a Commitment;
(c) a change to an availability period set out in the
Details;
(d) a waiver of a default under clause 8.1(a) of the
Security Trust Deed (payment Transaction Document);
(e) a change to the due currency of any payment under a Bank
Finance Document;
(f) a change to a Maturity Date or the extension of a
previously determined payment date;
(g) a change to the amount or timing of any fee or other
amount payable to the Financiers;
(h) a change to the Margin or the method of calculating the
Interest Rate;
(i) a change to the definition of Majority of Financiers;
(j) any decision that would alter the entitlements in clause
22 (Entitlement to payments) from the entitlements set
out in the Security Trust Deed;
(k) a change to clauses 15.1 to 15.4 (How and when the
Facility Agent acts);
(l) a change to clauses 4, 6.3(a), 6.3(b), 6.3(c), 6.4 and
6.5 of the Security Trust Deed and the meaning of any
defined terms used in those clauses; and
(m) a consent under clause 25.1 (No dealing by Obligor).
MATTERS REQUIRING INSTRUCTION FROM A MAJORITY OF FINANCIERS
15.3 The following matters require instructions from a Majority of
Financiers:
(a) the exercise of the Facility Agent's rights in its
capacity as agent for the Finance Parties in connection
with clause 8.1 of the Security Trust Deed (Default)
(except clause 8.1(a) (payment Transaction Document) or
clause 25.1 (No dealing by Borrower);
(b) the exercise of the Facility Agent's rights in its
capacity as agent for the Finance Parties in connection
with any Security;
(c) the waiver of any breach or other non-performance of
obligations by the Obligor in connection with any Bank
Finance Document; and
(d) a variation of a Bank Finance Document other than a
variation listed in clause 15.2 (Matters requiring
instructions from all Financiers).
OVERRIDING INSTRUCTIONS
15.4 In relation to all matters other than those under clause 15.2
(Matters requiring instructions from all Financiers) and clause
17.5 (Facility Agent to act on Financier's request), a Majority
of Financiers may instruct the Facility Agent and, if they do,
the Agent agrees to act in accordance with the instructions.
WITHOUT CONSULTATION OR INSTRUCTIONS
15.5 Subject to clause 15.6 (Facility Agent's actions), in any case
where the Facility Agent does not require instructions under
clause 15.1 (After consultation and instructions) or does not
receive instructions or requests under clause 15.4 (Overriding
instructions) or clause 17.5 (Facility Agent to act on
Financier's request), the Facility Agent may exercise its rights
in its capacity as agent for the Finance Parties and observe its
obligations in that capacity as it sees fit. It need not consult
any Finance Parties before doing so.
FACILITY AGENT'S ACTIONS 15.6 Whenever the Facility Agent:
(a) consults Finance Parties to seek instructions, it agrees
to specify a reasonable period within which those
instructions are to be given; and
(b) receives instructions from a Majority of Financiers or
all of them, it agrees to follow them but only in so far
as they are in accordance with this agreement; and
(c) exercises its rights in its capacity as agent of the
Finance Parties or takes any other action, it agrees to
take into account the interests of the Finance Parties.
FINANCIER'S INSTRUCTIONS
15.7 Whenever a Finance Party gives instructions:
(a) it must do so in accordance with this agreement and
within any time period specified by the Facility Agent
for giving instructions; and
(b) it authorises the Facility Agent to give any consent or
do any other thing appropriate to carry out the
instructions.
If a Finance Party does not give instructions in relation to Action
proposed or recommended by the Facility Agent within any time period
specified by the Facility Agent, it is taken to have instructed the
Facility Agent to take the proposed or recommended Action.
16 FACILITY AGENT'S OBLIGATIONS TO GIVE NOTICES AND COPIES
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FACILITY AGENT'S OBLIGATIONS
16.1 The Facility Agent agrees:
(a) (CONDITIONS SATISFIED) to notify each Finance Party as
soon as practicable after it has received the last of
the items in schedule 1 (Conditions Precedent) in form
and substance satisfactory to it; and
(b) (DRAWDOWN REQUIREMENTS) to notify each Financier of the
contents of a Drawdown Notice and the Financier's
Proportion of the requested drawing as soon as
practicable after it receives the Drawdown Notice; and
(c) (DEFAULT AND REVIEW) to notify each Finance Party of an
Event of Default or Potential Event of Default promptly
after the Agent becomes aware of it; and
(d) (MATERIAL NOTICES RECEIVED) to give each Financier
promptly after receiving it a copy of each notice or
other communication or document which is received from
an Obligor in connection with the Bank Finance Documents
and which the Facility Agent considers material; and
(e) (MATERIAL NOTICES GIVEN) to give each Financier promptly
a copy of any notice or other communication or document
which the Agent gives the Borrowers in connection with
the Bank Finance Documents and which the Facility Agent
considers material; and
(f) (ACTION TAKEN) to give each Finance Party promptly a
report on anything done after instructions from the
Finance Parties under clause 15 (How and when the
Facility Agent acts).
FACILITY AGENT'S AWARENESS OF CERTAIN EVENTS
16.2 The Facility Agent is taken not to be aware of an Event of
Default or Potential Event of Default until either:
(a) an Authorised Officer of the Facility Agent who is
responsible for the administration of the transactions
contemplated by the Bank Finance Documents has actual
knowledge of sufficient facts to ascertain that an Event
of Default or Potential Event of Default has occurred;
or
(b) the Facility Agent receives a notice regarding an Event
of Default or Potential Event of Default under clause
6.1(p) of the Security Trust Deed (General
undertakings).
FACILITY AGENT MAY ASSUME COMPLIANCE
16.3 Until it becomes aware in accordance with clause 16.2 (Facility
Agent's awareness of certain events), the Facility Agent may
assume that no Event of Default or Potential Event of Default
has occurred and that an Obligor is observing all its
obligations in connection with the Bank Finance Documents and
need not inquire whether that is, in fact, the case.
CONFIDENTIALITY
16.4 Despite anything else in this agreement, this agreement does not
oblige the Facility Agent to disclose information or provide
documents relating to an Obligor or any other person if the
Facility Agent reasonably believes that to do so would
constitute a breach of law or duty of confidentiality.
LIMIT ON OBLIGATIONS
16.5 The Finance Parties agree that each Agent has no obligations,
other than those in clause 16.1 (Facility Agent's obligations),
either initially or on a continuing basis:
(a) to keep itself informed, or to inform a Finance Party,
about the performance by an Obligor of its obligations
under the Bank Finance Documents; or
(b) to provide a Finance Party with any information or
documents with respect to an Obligor (whether coming
into its possession before or after accommodation is
provided under the Bank Finance Documents).
17 AGENT'S RELATIONSHIP WITH FINANCE PARTIES
--------------------------------------------------------------------------------
INDIVIDUAL RESPONSIBILITY OF FINANCE PARTIES
17.1 Each Finance Party acknowledges for the benefit of each Agent
and each Joint Lead Bank and each of their respective Related
Entities that the Finance Party has:
(a) entered into the Bank Finance Documents; and
(b) made and will continue to make its own independent
investigation of the financial condition and affairs of
each Obligor based on documents and information which it
considers appropriate; and
(c) made and will continue to make its own appraisal of the
creditworthiness of each Obligor; and
(d) made its own assessment and approval of the margin, fees
and other return to be obtained under the Bank Finance
Documents,
without relying on the Agent (in whatever capacity) or Joint Lead Bank
or any Related Entity of the Agent or Joint Lead Bank or on any
representation made by any of them.
EXONERATION OF AGENT
17.2 Neither an Agent nor any Joint Lead Bank nor any of the
respective directors, officers, employees, agents, attorneys or
Related Entities is responsible or liable to any Finance Party:
(a) because an Obligor fails to perform its obligations
under the Bank Finance Documents; or
(b) for the financial condition of an Obligor; or
(c) because any statement, representation or warranty in a
Bank Finance Document or Information Memorandum is
incorrect or misleading; or
(d) for the effectiveness, genuineness, validity,
enforceability, admissibility in evidence or sufficiency
of the Bank Finance Documents or any document signed or
delivered in connection with the Bank Finance Documents;
or
(e) for acting or not acting in accordance with the
instructions of a Majority of Financiers or all the
Financiers.
Without limiting this clause 17.2, neither the Agent nor any Joint Lead
Bank is responsible or liable to any Finance Party for anything done or
not done in connection with the Bank Finance Documents by the Agent or a
Joint Lead Bank or their respective directors, officers, employees,
agents, attorneys or Related Entities except to the extent that the act
or omission amounts to fraud, gross negligence or wilful misconduct by
the Agent or its delegates or gross or wilful breach by it or its
delegates of its or their obligations in its capacity as agent of the
Financiers.
AGENT IN CAPACITY OF A FINANCIER
17.3 If an Agent is also a Financier or Hedge Counterparty, then in
its capacity as a Finance Party it:
(a) has the same rights and obligations under the Bank
Finance Documents as the other Finance Parties; and
(b) may exercise those rights and agrees to observe those
obligations independently from its role as Agent as if
it were not the Agent.
AGENT DEALING IN DIFFERENT CAPACITIES
17.4 An Agent may:
(a) engage in any kind of banking, trust or other business
with an Obligor or the Finance Parties or any of their
Related Entities; and
(b) accept fees and other consideration from an Obligor or
any of the Obligor's Related Entities for services in
connection with the Bank Finance Documents or any other
arrangement,
as if it were not an Agent and without having to account to the Finance
Parties for any income it derives in doing so.
The Financiers release each Agent from any obligation it might otherwise
have to them in relation to these matters.
FACILITY AGENT TO ACT ON FINANCIER'S REQUEST
17.5 The Facility Agent agrees to:
(a) make a demand under clause 11 of the Deed Polls
(Increased Costs); or
(b) give notices under clause 12 of the Deed Polls
(Illegality or impossibility); or
(c) make a demand under clause 13 of the Deed Polls
(Interest on Overdue Amounts),
promptly on request from a Financier. The other Financiers may not
countermand such a request.
RESTRICTION ON FINANCE PARTIES EXERCISING RIGHTS
17.6 A Finance Party may exercise a right against an Obligor under
any Bank Finance Document independently of the Facility Agent
only if:
(a) the Facility Agent has been instructed in accordance
with clause 15 (How and when the Facility Agent acts) to
exercise the right; and
(b) the Facility Agent has not done so within a reasonable
time (and then only if any request by the Facility Agent
under clause 18.3 (Funds before acting) for funds in
connection with the exercise has been complied with).
NOTICE OF TRANSFER
17.7 Each Agent may treat each Finance Party as the holder or obligor
of the rights and obligations of that Finance Party for all
purposes under the Bank Finance Documents until a Substitution
Certificate (or other notice of the assignment or transfer
satisfactory to the Facility Agent) signed by the substitute,
assignee or transferee is given to the Facility Agent.
FINANCIER TO PAY OVER AMOUNTS RECEIVED DIRECTLY
17.8 If a Financier receives or recovers an amount due to it under a
Bank Finance Document other than through distribution by the
Facility Agent under this agreement, then it agrees to:
(a) notify the Facility Agent promptly; and
(b) pay an amount equal to that amount to the Facility Agent
within two Business Days after receiving it.
If the Financier receives the amount by applying a set-off, the set-off
occurs when the Financier records the set-off in its books of account.
PRO-RATA REFUNDS
17.9 If a Financier who receives an amount referred to in clause 17.8
(Financier to pay over amounts received directly) is obliged to
refund any part of it under laws relating to Insolvency Events,
then each Financier to which that amount was distributed under
clause 23 (Distribution of payments) agrees to pay to the
Facility Agent (for payment to the Financier who has to make the
refund) its pro rata share of the amount required to be
refunded.
PROCEEDS OF LITIGATION
17.10 Despite clause 17.8 (Financier to pay over amounts received
directly), where a Finance Party recovers an amount in legal
proceedings it has brought as permitted by clause 17.6
(Restriction on Finance Parties exercising rights), the Finance
Parties may retain the recovered amount and need not pay the
recovered amount to the Facility Agent or share it with any
other party who could have joined in the proceedings (or could
have taken separate proceedings) but did not.
If more than one Finance Party takes proceedings, the recovered amount
is to be shared by each of those Finance Parties in the proportion that
the amount due for payment to it at that time bears to the total of the
amounts at that time due for payment to all the Finance Parties who take
proceedings.
In each case, any surplus is to be paid to the Facility Agent.
18 FUNDING OF FACILITY AGENT
--------------------------------------------------------------------------------
FINANCIERS TO INDEMNIFY AGAINST NON-PAYMENT
18.1 Each Financier individually, in accordance with its Proportion,
indemnifies the Facility Agent against the non-receipt of a
payment from a Borrower and the Costs incurred by the Facility
Agent in funding the amount not paid, if the Facility Agent:
(a) reasonably claims a payment from a Borrower under clause
8 (Costs and indemnities) or from any other Obligor
under a corresponding provision of any other Bank
Finance Document; and
(b) does not receive it within seven days after the claim is
made.
THE BORROWER'S BACK-TO-BACK INDEMNITY
18.2 The Borrowers indemnify each Financier against any liability or
loss arising from, and any Costs incurred in connection with,
the Financier making a payment under clause 18.1 (Financiers to
indemnify against non-payment) or clause 18.3 (Funds before
acting).
FUNDS BEFORE ACTING
18.3 If the Facility Agent proposes to exercise a right arising in
its capacity as Facility Agent of the Finance Parties or take
any Action (whether or not at the instruction of a Majority of
Financiers or all Financiers) and the Facility Agent reasonably
considers this could result in a Borrower or any other Obligor
becoming obliged to pay to the Facility Agent an amount under
clause 11 (Costs and indemnities) or under a corresponding
provision of any other Bank Finance Document, as the case may
be, the Facility Agent:
(a) may request the Financiers to place it in funds at least
equal to the amount the Facility Agent reasonably
determines would be the Borrower's liability; and
(b) need not act until the Financiers do so.
Each Financier agrees to fund the Facility Agent rateably in accordance
with its Proportion.
IF A FINANCIER DOES NOT FUND
18.4 If a Financier does not fund the Facility Agent under clause
18.3 (Funds before acting) within a period determined by the
Facility Agent to be reasonable, then the Facility Agent agrees
to promptly request each other Financier to fund the defaulting
Financier's share. If one or more other Financiers agree to fund
the defaulting Financier's share, then the obligations of the
Financiers under clause 18.3 (Funds before acting) are taken to
be satisfied. Each Financier agrees that:
(a) a payment by a Financier to the Facility Agent under
this clause 18.4 constitutes a loan by the Financier to
the defaulting Financier; and
(b) the loan accrues interest at the rate and in the manner
notified by the paying Financier to the defaulting
Financier and the Facility Agent.
The defaulting Financier agrees to pay to the Facility Agent (for the
account of each funding Financier) on demand from the Facility Agent the
loan principal and interest on each loan.
BORROWER'S COSTS OBLIGATION NOT AFFECTED
18.5 A payment by a Financier under this clause 18 does not relieve a
Borrower of its obligations under clause 11 (Costs and
indemnities) or clause 13 of the Deed Polls (Interest on overdue
amounts) or any other Obligor of its obligations under any
corresponding provisions of any other Bank Finance Document.
19 FACILITY AGENT'S RELATIONSHIP WITH THE BORROWER
--------------------------------------------------------------------------------
COMPLIANCE MAY BE ASSUMED
19.1 In relation to any act of the Facility Agent, the Borrowers need
not enquire:
(a) whether the Facility Agent needed to consult or has
consulted the Financiers; or
(b) whether instructions have been given to the Facility
Agent by a Majority of Financiers or all Financiers; or
(c) about the terms of any instructions.
As between the Facility Agent and the Borrowers, all action taken by the
Facility Agent under the Bank Finance Documents is taken to be
authorised under this agreement unless the Borrowers have actual notice
to the contrary.
FACILITY AGENT IS NOT RESPONSIBLE FOR FINANCE PARTY'S BREACH
19.2 The Facility Agent is not responsible to the Borrowers if a
Finance Party does not observe its obligations under the Bank
Finance Documents.
20 CHANGE OF AGENTS
--------------------------------------------------------------------------------
RETIREMENT
20.1 An Agent may retire by giving the Borrowers and each Finance
Party notice of its intention to do so, specifying the date it
proposes the retirement to take effect.
REMOVAL
20.2 A Majority of Financiers may end the appointment of the Facility
Agent as Facility Agent of each Finance Party or the Offshore
Paying Agent as paying agent under this agreement by giving the
relevant Agent at least 30 days' written notice (or such lesser
period as the Majority of Financiers may determine if the
relevant Agent is in default of its obligations under the Bank
Finance Documents).
WHEN RETIREMENT OR REMOVAL TAKES EFFECT
20.3 The retirement or removal takes effect only when:
(a) a successor Agent approved by the Borrowers (which
approval may not be delayed or withheld unreasonably)
has been appointed; and
(b) the successor Agent has obtained title to or obtained
the benefit of the Securities held by it in its capacity
as agent in a manner approved by all the Financiers.
PERMITTED SUCCESSOR AGENTS 20.4 The successor Agent may be:
(a) a Financier nominated by a Majority of Financiers; or
(b) in the absence of such a nomination, a reputable and
experienced bank or financial institution (or a Related
Entity of either of them) nominated (in the case of
retirement) by the retiring Agent or (in the case of
removal) by a Majority of Financiers.
OBLIGATIONS OF RETIRING AND SUCCESSOR AGENTS
20.5 When a successor Agent is appointed, the retiring Agent is
discharged from any further obligation under the Bank Finance
Documents. (This discharge does not prejudice any accrued right
or obligation.) The new Agent and each other party to the Bank
Finance Documents have the same rights and obligations among
themselves as they would have had if the new Agent had been a
party to the Bank Finance Documents at the date of this
agreement.
MANNER OF APPOINTMENT
20.6 The appointment of a successor Agent will be effected by its
execution of a deed poll. The retiring Agent is authorised to
sign that deed poll on behalf of the other parties. On
countersignature of that deed poll by the retiring Agent, the
successor Agent will have all the rights, powers and obligations
of the retiring Agent. The retiring Agent will be discharged
from its rights, powers and obligations (other than liabilities
under this clause 20.6).
After any retiring Agent's resignation or removal, this clause will
continue in effect in respect of anything done or omitted to be done by
it while it was acting as Agent.
21 MISCELLANEOUS PROVISIONS RELATING TO AGENCY
--------------------------------------------------------------------------------
SECURITY TRUST DEED
21.1 The Facility Agent must act in relation to the Security Trust
Deed in accordance with this agreement.
DELEGATION BY AGENT
21.2 The Facility Agent may employ agents and attorneys and may
delegate any of its rights or obligations in its capacity as
Facility Agent of the Finance Parties without notifying the
Finance Parties of the delegation.
DUTIES WHEN DELEGATING
21.3 The Facility Agent agrees to exercise reasonable care in
selecting delegates and to supervise their actions.
RESPONSIBILITY FOR DELEGATES
21.4 The Facility Agent is responsible for any loss arising due to
the fraud, gross negligence or wilful misconduct of a delegate
or gross or wilful breach by the delegate of their obligations.
FACILITY AGENT MAY RELY ON COMMUNICATIONS AND OPINIONS
21.5 In relation to the Facilities and any Bank Finance Document, the
Facility Agent may rely:
(a) on any communication or document it believes to be
genuine and correct and to have been signed or sent by
the appropriate person; and
(b) as to legal, accounting, taxation or other professional
matters, on opinions and statements of any legal,
accounting, taxation or professional advisers used by
it.
FORCE MAJEURE
21.6 Despite any other provision of this agreement, the Facility
Agent need not act (whether or not on instructions from one or
more of the Financiers) if it is impossible to act due to any
cause beyond its control (including war, riot, natural disaster,
labour dispute, or law taking effect after the date of this
agreement). The Facility Agent agrees to notify each Finance
Party promptly after it determines that it is unable to act.
NO RESPONSIBILITY FOR FORCE MAJEURE
21.7 The Facility Agent has no responsibility or liability for any
loss or expense suffered or incurred by any party as a result of
its not acting for so long as the impossibility under clause
21.6 (Force majeure) continues. However, the Facility Agent
agrees to make reasonable efforts to avoid or remove the causes
of non-performance and agrees to continue performance under this
agreement promptly when the causes are removed.
22 ENTITLEMENTS TO PAYMENTS
--------------------------------------------------------------------------------
ENTITLEMENT TO PAYMENTS
22.1 Unless expressly stated otherwise, the Borrowers agree to pay
all amounts due under the Bank Finance Documents (other than the
Hedge Agreements) to the Facility Agent for the account of each
Finance Party except that an amount paid in connection with:
(a) clause 4 (Working Capital Facility) is to be paid to the
Working Capital Bank; and
(b) clause 6.3 (Agent fees) is to be paid to the Facility
Agent for its own account; and
(c) clause 11 of the Deed Polls (Increased Costs) or clause
12 of the Deed Polls (Illegality or impossibility) is to
be paid to the Facility Agent for the account of the
affected Financier; and
(d) clause 13 of the Deed Polls (Interest on overdue
amounts) is to be paid to the Facility Agent for the
account of the party entitled to the overdue amount; and
(e) clause 11.1 (Costs and indemnities - what the Borrower
agrees to pay) is to be paid to the Facility Agent for
the account of the party that incurs the Costs, or pays
the Taxes or fees; and
(f) clause 11.4(Payment of employees' losses) is to be paid
to the Facility Agent for the account of the party whose
employee, officer, agent or contractor suffers the
liability, loss or Costs; and
(g) an indemnity is to be paid to the Facility Agent for the
account of the party entitled under the indemnity.
If a Borrower is to pay an amount to an Agent for the account of a
particular party, the Borrower is taken to have satisfied its obligation
to that party by paying the Agent.
DIRECTION TO PAY
22.2 If:
(a) a Borrower is to pay an amount to the Agent for the
account of a Financier; and
(b) both the Borrower and the Financier request the Agent to
do so,
the Agent may direct the Borrower to pay the amount to the Financier.
23 DISTRIBUTION OF PAYMENTS
--------------------------------------------------------------------------------
HOW AGENT IS TO DISTRIBUTE
23.1 Each Agent agrees to distribute amounts paid to it or recovered
by it under the Bank Finance Documents as follows: (a) first, to
the Agent itself for all amounts due to it in its capacity as
Agent under any Bank Finance Document; and
(b) secondly, to each Finance Party in the proportion that
the amount due for payment to it at that time bears to
the total of the amounts due for payment to all Finance
Parties at that time.
These proportions are to be expressed as percentages and rounded to the
nearest four decimal places. An Agent may exercise discretion in
rounding up or down resultant amounts to ensure that over time, all
Finance Parties are treated fairly.
EXCESS DISTRIBUTIONS - CONTINGENCIES
23.2 If a Finance Party receives a distribution under clause 23.1
(How Agent is to distribute) on account of an amount which may
become due for payment by the Finance Party to a third party and
the right of the third party to claim on the Finance Party ends
without a claim for the full distributed amount having been
made, then the Finance Party agrees to promptly pay the Facility
Agent an amount equal to the unclaimed portion of the
distributed amount.
POSTPONEMENT OF NON-FUNDING FINANCE PARTIES
23.3 Despite anything in clause 23.1 (How Agent is to distribute), if
an Agent recovers an amount through exercising the Agent's
rights in its capacity as Agent of the Finance Parties as a
result of being placed in funds under clause 18.3 (Funds before
acting), then any Finance Party who did not fund the Agent is
not entitled to receive any part of the amount until each
Finance Party who funded the Agent receives an amount equal to
the total of:
(a) the Amount Owing for that funding Finance Party; and
(b) the amount of any loan principal and interest due to
that funding Finance Party under clause 18.4 (If a
Finance Party does not fund).
MANNER OF DISTRIBUTION
23.4 Each Agent agrees to distribute amounts to each Finance Party
promptly after receipt in immediately available funds to that
Finance Party's office identified in the Details or another
office notified to the Agent by the Finance Party.
DISTRIBUTIONS MADE IN ERROR
23.5 If an Agent is required to make a corresponding payment to
another party when it has received an amount under a Bank
Finance Document, the Agent agrees to do so as soon as it
establishes that it has actually received the amount.
If the Agent makes the corresponding payment and subsequently discovers
that it has not actually received the amount due to be paid to it, then:
(a) the party who received the payment agrees to refund it
to the Agent on demand; and
(b) the party who should have paid the amount to the Agent
agrees to pay the Facility Agent on demand the amount
and the Agent's costs in funding the corresponding
payment from the date when it was made until the date
the Agent receives the refund.
APPLICATION OF PAYMENTS
23.6 The Facility Agent and each Finance Party may apply amounts
distributed to them towards satisfying obligations under the
Bank Finance Documents in the manner they see fit, unless the
Bank Finance Documents expressly provide otherwise.
24 ASSIGNMENTS AND SUBSTITUTIONS BY FINANCIERS
--------------------------------------------------------------------------------
ASSIGNMENT BY FINANCIER
24.1 No Financier may deal with its rights or obligations under this
agreement without dealing with its rights under the relevant
Deed Poll and Loan Note to an equivalent extent.
SYNDICATION - OFFSHORE DEED POLL
24.2
(a) Each Financier who is a Joint Lead Bank undertakes that:
(i) the Joint Lead Banks who are making offers of
participation in Loans to be drawn using the
Facilities and Offshore Loan Notes will together
make such offers:
(A) to at least ten persons whom they
reasonably believe will satisfy the
requirements in section 128F(3)(a)(i) of
the Tax Act so as to be a public offer
within the meaning of section 128F of
the Tax Act; or otherwise
(B) they will offer the Offshore Loan Notes
for sale in conjunction with each other
Joint Lead Bank offering Offshore Loan
Notes for sale in a way which they
reasonably believe satisfies one of the
public offer tests in section
128F(3)(b), (c) or (d) of the Tax Act;
(ii) it will not include in the ten persons to whom
the Joint Lead Banks are making an offer
pursuant to section 128F(3)(a)(i) of the Tax Act
any person who it has actual knowledge is an
Associate of any of the other persons covered by
section 128F(3)(a) of the Tax Act nor will it
make offers to persons who it has actual notice
are Associates of the Core Borrowers; and
(iii) it will provide any information relating to the
issue and sale of Offshore Loan Notes as may
reasonably be requested by the Core Borrowers in
order to assist the Core Borrowers in
demonstrating that the issue of any Offshore
Loan Note complies with the provisions of
section 128F of the Tax Act.
(b) The Core Borrowers must immediately advise the Joint
Lead Banks if the persons disclosed to them by a Joint
Lead Bank are known or suspected by them to be an
Associate of any other person to whom an offer is made
pursuant to section 128F(3)(a)(i) of the Tax Act or of
the Core Borrowers.
(c) Unless the IWT Amending Legislation has become law each
Financier who has an Offshore Loan Note warrants that it
is not a resident of Australia within the meaning of the
Tax Act and is not providing its participation in Loans
through a permanent establishment in Australia.
(d) Each Financier who is not a Joint Lead Bank warrants
that:
(i) it is and, at the time it acquired a Loan Note,
will be acting in the course of carrying on a
business of providing finance, or investing or
dealing in securities in the course of operating
in financial markets which are (in the case of
a Domestic Financier) in Australia and (in the
case of an Offshore Financier) outside
Australia;
(ii) except as disclosed to the Core Borrowers, it is
not and at the time it acquired a Loan Note, so
far as it has actual knowledge, an Associate of
any other Financier;
(iii) it:
(A) has not (directly or indirectly) offered
for subscription or purchase or issued
invitations to subscribe for or buy nor
has it sold Loan Notes;
(B) will not (directly or indirectly) offer
for subscription or purchase or issue
invitations to subscribe for or buy nor
will it sell the Loan Notes,
to anyone in respect of whom it has actual
notice is an Associate of the Core Borrowers.
(e) Neither the Borrowers, the Joint Lead Banks nor the
Agents have any responsibility for, and each Financier
must obtain, all authorisations required by it for the
subscription, offer, sale or delivery by it of Loan
Notes under applicable laws and regulations in any
jurisdiction to which the Financier is subject or in
which it makes any offer, sale or delivery of Loan
Notes.
(f) At the cost of the Core Borrowers, each Financier who is
a Joint Lead Bank will, so far as it is reasonably able
to do so, do or provide the other things the Core
Borrowers asks it to in connection with offers of
participation in Loans and Offshore Loan Notes, if the
Core Borrowers consider them practicable and necessary
to ensure the requirements of section 128F of the Tax
Act are satisfied.
ASSIGNMENT BY FINANCIERS
24.3 A Financier may substitute its participation or assign or
transfer all or any of its rights or obligations under the Bank
Finance Documents at any time if:
(a) any necessary prior Authorisation, consent or approval
is obtained;
(b) it complies with all laws (including securities laws)
and it does not require lodgement or registration of a
prospectus or any similar document;
(c) unless the substitution, assignment or transfer will not
result in Offshore Loan Notes being on issue with an
aggregate maximum principal amount of greater than
A$400,000,000, the Core Borrowers have given their prior
written consent which consent:
(i) shall not be unreasonably withheld unless the
Core Borrowers (acting reasonably) consider that
as a result of the substitution, assignment or
transfer they are reasonably likely to become
obliged to deduct an amount in respect of
interest withholding tax from payments of
interest under Loan Notes having an aggregate
maximum principal amount of greater than
A$400,000,000; and
(ii) will be taken to have been given if no response
is received within 15 days of the written
request for consent having been received by the
Core Borrowers;
(d) the substitute, transferee or assignee will be acting in
the course of carrying on a business of providing
finance, or investing or dealing in securities, in the
course of operating in financial markets either (in
respect of any proposed substitute, transferee, assignee
or novatee who will have the benefit of the Domestic
Deed Poll) within Australia or (otherwise) outside
Australia;
(e) the assignment, transfer or substitution is effected by
an assignment, transfer or substitution in accordance
with clause 24.4 or clause 24.5; (f) the substitute,
transferee or assignee will, after completion of all
substitutions, transfers or assignments to be effected
at the same time, have a minimum total Commitment of
A$10,000,000 unless otherwise agreed by the Core
Borrowers and the Facility Agent; and
(g) following any substitution, transfer or assignment in
part by any Financier, that Financier will, unless
otherwise agreed by the Core Borrowers and the Facility
Agent, continue to have a minimum total Commitment of
A$10,000,000.
SUBSTITUTION CERTIFICATES
24.4 Subject to clause 24.2 and clause 24.3:
(a) if a Retiring Financier wishes to substitute a new bank
or financial institution for all or part of its
participation under this agreement or transfer a Loan
Note, the Retiring Financier and the Substitute
Financier shall in Victoria or outside Australia execute
and deliver to the Facility Agent four counterparts of a
certificate substantially in the form of schedule 3 as
specified in clause 24.5;
(b) on receipt of the certificate, if the Facility Agent is
satisfied that the substitution, transfer or assignment
complies with clause 24.3 and clause 24.5, it shall
promptly:
(i) notify the Borrowers;
(ii) countersign the counterparts on behalf of all
other parties to this agreement;
(iii) update the relevant Register accordingly (which
will be conclusive); and
(iv) retain one counterpart and deliver the others to
the Retiring Financier, the Substitute Financier
and the Core Borrowers;
(c) when the certificate is countersigned by the Facility
Agent, the Retiring Financier will be relieved of its
obligations to the extent specified in the certificate
and the Substitute Financier will be bound by the Bank
Finance Documents as stated in the certificate;
(d) each other party to this agreement irrevocably
authorises the Facility Agent to sign each certificate
on its behalf; and
(e) unless the Facility Agent otherwise agrees, no
substitution transfer or assignment may be made while
any Drawdown Notice is current.
METHODS OF SUBSTITUTION BY DOMESTIC FINANCIERS OR OFFSHORE FINANCIERS
24.5 This clause is subject to clause 24.3.
(a) (OFFSHORE FINANCIERS) If a Financier which has an
Offshore Loan Note wishes to substitute, transfer or
assign all or part of its participation with a new bank
or financial institution:
(i) which is not a resident of Australia within the
meaning of the Tax Act, it may substitute,
assign or transfer all or part of its
participation and transfer or assign its
Offshore Loan Note to the Substitute Financier,
by completing a certificate substantially in the
form of schedule 3 with the Substitute Financier
in accordance with clause 24.4;
(ii) which is a resident of Australia within the
meaning of the Tax Act and which will not be
holding its proposed participation through a
permanent establishment outside of Australia:
(A) if the IWT Amending Legislation has
become law, then it may substitute,
assign or transfer all or part of its
participation and transfer or assign its
Offshore Loan Note to the Substitute
Financier by completing a certificate
substantially in the form of schedule 3
with the Substitute Financier in
accordance with clause 24.4; or
(B) if the IWT Amending Legislation has not
become law, then instead of substituting
the participation and transferring or
assigning the Offshore Loan Notes:
(1) the Retiring Financier will
complete with the Substitute
Financier a certificate
substantially in the form of
schedule 3 as provided in clause
24.4, but with clause 2.1 of
schedule 3 deleted; and
(2) that Substitute Financier will
subscribe for a Domestic Loan Note
and make a payment by way of Loan
to the Core Borrowers of an amount
equal to the principal amount of
the participation of the Retiring
Financier.
The Substitute Financier will make that payment
for the account of the Retiring Financier to be
applied in repayment of the principal amount of
the substituted participation against issue to
the Substitute Financier of a Domestic Loan
Note. The Core Borrowers shall issue a Domestic
Loan Note with a principal amount equal to the
substituted participation, against subscription
and payment by the Substitute Financier in the
manner described in the previous sentence.
(b) (DOMESTIC FINANCIERS) If a Financier which has a
Domestic Loan Note wishes to substitute, transfer or
assign all or part of its participation with a new bank
or financial institution:
(i) which is a resident of Australia within the
meaning of the Tax Act and which will not be
holding its proposed participation through a
permanent establishment outside of Australia, it
may substitute, assign or transfer all or part
of its participation and transfer or assign its
Domestic Loan Note to the Substitute Financier,
by completing a certificate substantially in the
form of schedule 3 with the Substitute Financier
in accordance with clause 24.4;
(ii) which is not a resident of Australia and has a
Lending Office outside of Australia, then:
(A) if the IWT Amending Legislation has
become law, then:
(1) it will notify the Core
Borrowers of its proposal and
provide any information
reasonably requested by the
Core Borrowers to assist in
determining whether the public
offer test in section 128F(3)
of the Tax Act has been
satisfied;
(2) the Core Borrowers (acting
reasonably) must notify it as
to whether it is satisfied
that the public offer test in
section 128F(3) of the Tax Act
has been satisfied in relation
to the Domestic Loan Note; and
(3) if the Core Borrowers are so
satisfied, the Retiring
Financier may substitute,
assign or transfer all or part
of its participation and
transfer or assign its
Domestic Loan Note to the
Substitute Financier, by
completing a certificate
substantially in the form of
schedule 3 with the Substitute
Financier in accordance with
clause 24.4; or
(B) if:
(1) the IWT Amending Legislation
has not become law; or
(2) the Core Borrowers (acting
reasonably) have notified the
Financier that it is not
satisfied that the Domestic
Loan Note was issued in
satisfaction of the public
offer test in section 128F(3)
of the Tax Act,
the following will apply:
(3) the Financier undertakes it
will make offers of
participation in Loans under
the Facilities and Offshore
Loan Notes:
(a) to at least ten persons
who it reasonably
believes will satisfy the
requirements in section
128F(3)(a)(i) of the Tax
Act so as to be a public
offer within the meaning
of section 128F of the
Tax Act; or otherwise
(b) it will offer the
Offshore Loan Notes for
sale in a way which it
reasonably believes
satisfies one of the
public offer tests in
section 128F(3)(b),
(c) or (d) of the Tax
Act.
(4) The Retiring Financier
undertakes that it will not
include in the ten persons to
who it is making an offer any
person who it has actual
knowledge is an Associate of
any of the other persons
covered by section 128F(3)(a)
of the Tax Act nor will it
make offers of participation
to persons who it has actual
notice are Associates of the
Core Borrowers.
(5) The Retiring Financier
undertakes it will provide any
information relating to the
issue and sale of Offshore
Loan Notes as may reasonably
be requested by the Core
Borrowers in order to assist
the Core Borrowers in
demonstrating that the issue
of any Offshore Loan Note
complies with the provisions
of section 128F of the Tax
Act.
(6) The Core Borrowers must
immediately advise the
Retiring Financier if the
persons disclosed to it by the
Retiring Financier are known
or suspected by it to be an
Associate of any other person
to whom the Retiring Financier
has made an offer pursuant to
section 128F(3)(a)(i) of the
Tax Act or the Core Borrowers.
(7) Unless the IWT Amending
Legislation has become law
each Substitute Financier who
has an Offshore Loan Note
warrants that it is not a
resident of Australia within
the meaning of the Tax Act and
is not providing its
participation in Loans through
a permanent establishment in
Australia.
(8) Each Substitute Financier
warrants that an offer was
made to it by the Retiring
Financier and that it is
carrying on a business of
providing finance or investing
or dealing in securities in
the course of operating in
financial markets.
(9) At the cost of the Core
Borrowers, each Financier
will, so far as it is
reasonably able to do so, do
or provide the other things
the Core Borrowers asks it to
in connection with offers of
participation and Offshore
Loan Notes, if the Core
Borrowers consider them
practicable and necessary to
ensure the requirements of
section 128F of the Tax Act
are satisfied.
(10) The Retiring Financier will
execute with each Substitute
Financier a certificate
substantially in the form of
schedule 3 as provided in
clause 24.4, but with clause
2.1 of schedule 3 deleted.
(11) That Substitute Financier will
subscribe for an Offshore Loan
Note and make a payment by way
of Loan to the Core Borrowers
for an amount equal to the
principal amount of the
participation of the Retiring
Financier which is being
substituted.
The Substitute Financier will make that
payment for the account of the Retiring
Financier outside of Australia, to be
applied in repayment of the principal
amount of the substituted participation
against issue to the Substitute
Financier of an Offshore Loan Note. The
Core Borrowers shall issue an Offshore
Loan Note outside Australia with a
principal amount equal to the
substituted participation, against
subscription and payment by the
Substitute Financier in the manner
described in the previous sentence.
25 DEALING WITH INTERESTS
--------------------------------------------------------------------------------
NO DEALING BY BORROWER
25.1 A Borrower may not assign or otherwise deal with its rights
under any Bank Finance Document or allow any interest in them to
arise or be varied, in each case, without the Facility Agent's
consent.
DEALINGS BY FINANCIER
25.2 Subject to clause 24 (Assignments and Substitutions by
Financiers), a Financier may deal with its rights under the Bank
Finance Documents (including by assignment or participation) at
any time. The consent of any other person, including the
Borrowers, is not required.
DEALINGS BY FACILITY AGENT
25.3 The Facility Agent may assign or otherwise deal with its rights
under the Bank Finance Documents to receive payments for its own
account, without the consent of any person. But it may not
otherwise deal with its rights except in accordance with this
agreement.
26 NOTICES
--------------------------------------------------------------------------------
FORM
26.1 Unless expressly stated otherwise in the Bank Finance Document,
all notices, certificates, consents, approvals, waivers and
other communications in connection with a Bank Finance Document:
(a) must be in writing, signed by an Authorised Officer of
the sender and marked for attention as set out in the
Details or, if the recipient has notified otherwise,
then marked for attention in the way last notified; and
(b) must be:
(i) left at the address set out in the Details; or
(ii) sent by prepaid post (airmail, if appropriate)
to the address set out in the Details; or
(iii) sent by fax to the fax number set out in the
Details,
but if the intended recipient has notified a changed
postal address or fax number, then the communication
must be to that address or number; and
(c) take effect from the time they are received unless a
later time is specified in them; and
(d) if sent by post, are taken to be received three days
after posting (or seven days after posting if sent to or
from a place outside Australia); and
(e) if sent by fax, are taken to be received at the time
shown in the transmission report as the time that the
whole fax was sent.
WAIVER OF NOTICE PERIOD
26.2 The Facility Agent may waive a period of notice required to be
given by a Borrower under this agreement.
27 GENERAL
--------------------------------------------------------------------------------
SET-OFF
27.1 At any time after an Event of Default and for so long as it
subsists, an Agent or a Financier may set off any amount due for
payment by the Agent or the Financier, respectively, to a
Borrower against any amount due for payment by that Borrower to
the Agent or the Financier, respectively, under the Bank Finance
Documents.
CERTIFICATES
27.2 An Agent or a Financier may give a Borrower a certificate about
an amount payable or other matter in connection with a Bank
Finance Document. The certificate is sufficient evidence of the
amount or other matter, unless it is proved to be incorrect.
PROMPT PERFORMANCE
27.3 If this agreement specifies when a Borrower agrees to perform an
obligation, the Borrower agrees to perform it by the time
specified. The Borrower agrees to perform all other obligations
promptly.
DISCRETION IN EXERCISING RIGHTS
27.4 An Agent or a Financier may exercise a right or remedy or give
or refuse its consent in any way it considers appropriate
(including by imposing conditions), unless a Bank Finance
Document expressly states otherwise.
CONSENTS
27.5 Each Borrower agrees to comply with all conditions in any
consent an Agent or a Financier gives in connection with a Bank
Finance Document.
PARTIAL EXERCISING OF RIGHTS
27.6 If an Agent or a Financier does not exercise a right or remedy
fully or at a given time, the Agent or the Financier can still
exercise it later.
NO LIABILITY FOR LOSS
27.7 Neither an Agent nor a Financier is liable for loss caused by
the exercise or attempted exercise of, failure to exercise, or
delay in exercising, a right or remedy.
CONFLICT OF INTEREST
27.8 An Agent's or a Financier's rights and remedies under this
agreement may be exercised even if this involves a conflict of
duty or the Agent or the Financier has a personal interest in
their exercise.
REMEDIES CUMULATIVE
27.9 The rights and remedies of an Agent or a Financier under this
agreement are in addition to other rights and remedies given by
law independently of this agreement.
RIGHTS AND OBLIGATIONS ARE UNAFFECTED
27.10 Rights given to an Agent and the Financier under this agreement
and the Borrower's liabilities under it are not affected by any
law that might otherwise affect them.
INDEMNITIES
27.11 The indemnities in this agreement are continuing obligations,
independent of the Borrower's other obligations under this
agreement and continue after this agreement ends. It is not
necessary for an Agent or a Financier to incur expense or make
payment before enforcing a right of indemnity under this
agreement.
VARIATION AND WAIVER
27.12 Unless this agreement expressly states otherwise, a provision of
this agreement, or right created under it, may not be waived or
varied except in writing signed by the party or parties to be
bound.
CONFIDENTIALITY
27.13 Each Agent and each Financier agree not to disclose information
provided by the Borrowers that is not publicly available except:
(a) in connection with any person exercising rights or
dealing with rights or obligations under a Bank Finance
Document (including when consulting other Financiers
after a Potential Event of Default or an Event of
Default or in connection with preparatory steps such as
negotiating with any potential assignee or potential
participant of the Financier's rights or other person
who is considering contracting with the Financier in
connection with a Bank Finance Document); or
(b) to a person considering entering into (or who enters
into) a credit swap with the Agent or a Financier
involving credit events relating to the Borrowers or any
of their Related Entities; or
(c) to officers, employees, legal and other advisers and
auditors of the Agent or the Financier; or
(d) to any party to this agreement or any Related Entity of
the Agent or a Financier, provided the recipient agrees
to act consistently with this clause 27.13; or
(e) with the Borrowers' consent (not to be unreasonably
withheld); or
(f) as allowed, requested or required by any law, stock
exchange or regulatory authority.
The Borrowers consent to disclosures made in accordance with this clause
27.13.
FURTHER STEPS
27.14 The Borrowers agree to do anything the Facility Agent asks (such
as obtaining consents, signing and producing documents and
getting documents completed and signed) to bind the Borrowers
and any other person intended to be bound under the Bank Finance
Documents.
INCONSISTENT LAW
27.15 To the extent permitted by law, this agreement prevails to the
extent it is inconsistent with any law.
SUPERVENING LEGISLATION
27.16 Any present or future legislation which operates to vary the
obligations of the Borrowers in connection with a Bank Finance
Document with the result that an Agent's or a Financier'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
27.17 Time is of the essence in any Bank Finance Document in respect
of an obligation of a Borrower to pay money.
COUNTERPARTS
27.18 This agreement may consist of a number of copies of this
agreement each signed by one or more parties to the agreement.
When taken together, the signed copies are treated as making up
the one document.
APPLICABLE LAW
27.19 This agreement is governed by the law in force in the place
specified in the Details. Each Agent, the Borrowers and each
Financier submit to the non-exclusive jurisdiction of the courts
of that place. Each Offshore Financier irrevocably appoints the
Facility Agent as its agent for service of process in Australia
and the Facility Agent accepts that appointment.
SERVING DOCUMENTS
27.20 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
26 (Notices). TU Australia Holdings No. 1 Limited and TU
Australia Holdings No. 2 Limited irrevocably appoint TU
Australia Holdings (AGP) Pty Ltd to receive any document
referred to in this clause. If, for any reason, TU Australia
Holdings (AGP) Pty Ltd ceases to be able to act as agent, TU
Australia Holdings No. 1 Limited and TU Australia Holdings No. 2
Limited must immediately appoint another person within Victoria
to receive any such document and notify the Facility Agent.
28 INTERPRETATION
--------------------------------------------------------------------------------
DEFINITIONS
28.1 Terms defined in the Security Trust Deed have the same meaning
when used in this agreement and these meanings apply unless the
contrary intention appears:
ACQUISITION COSTS means all costs, fees and expenses incurred by the
Obligors in connection with the negotiation, preparation and execution of
the Bank Finance Documents and Sale Agreement and the transactions
contemplated by the Sale Agreement as agreed in the Base Case Model or as
otherwise agreed between the Core Borrowers and the Facility Agent.
AGENT means the Facility Agent or the Offshore Paying Agent or both of
them, as the case may require.
AMOUNT OWING means, at any time for or in respect of a Finance Party, the
total of all amounts which are then due for payment, or which will or may
become due for payment in connection with any Bank Finance Document
(including transactions in connection with them) to that Finance Party or
to an Agent for the account of that Finance Party.
ASSETS means all of the assets acquired by the Purchasers in accordance
with, or contemplated by, the Sale Agreement.
ASSOCIATE has meaning given in section 128F(9) of the Tax Act.
AUSTRALIAN ACCOUNTING STANDARDS means the accounting standards within the
meaning of the Corporations Law and, where not inconsistent with those
accounting standards and the Corporations Law, generally accepted
accounting principles and practices in Australia consistently applied by a
body corporate or as between bodies corporate.
AVAILABILITY PERIOD for a Facility means the period so described in the
Details for that Facility.
BANK XXXX RATE means, for an Interest Period, the average bid rate for
Bills having a tenor closest to the Interest Period as displayed on the
"BBSY" page of the Reuters Monitor System on the first day of that Interest
Period. However, if the average bid rate is not displayed by 10:30am on the
first day of the Interest Period or if it is displayed but there is an
obvious error in that rate, BANK XXXX RATE means:
(a) the rate the Facility Agent calculates as the average of
the bid rates quoted to the Facility Agent at
approximately 10:30am on that date by each of five or
more institutions chosen by the Facility Agent which
provide rates for display on the "BBSW" page of the
Reuters Monitor System for Bills of that tenor which are
accepted by that institution (after excluding the
highest and the lowest, or in the case of equality, one
of the highest and one of the lowest bid rates); or
(b) where the Facility Agent is unable to calculate a rate
under paragraph (a) because it is unable to obtain the
necessary number of quotes, the rate set by the Facility
Agent in good faith at approximately 10:30am on that
date, having regard, to the extent possible, to the
rates otherwise bid for Bills of that tenor at or around
that time.
The rate calculated or set by the Facility Agent must be expressed as a
percentage rate per annum and be rounded up to the nearest third decimal
place.
BANK FINANCE DOCUMENTS means this agreement, the Domestic Deed Poll, the
Offshore Deed Poll, each Loan Note, each Security, the Security Trust Deed,
the Working Capital Terms and Conditions, each Hedge Agreement and any
other document which a Borrower and the Agent agree is to be a Bank Finance
Document and any other instrument connected with any of them.
BASE CASE MODEL means the Original Base Case Model as updated by the
Facility Agent and the Borrowers on or before Financial Close.
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.
BORROWER means:
(a) in the case of the Tranche A Facility, the Tranche B
Facility and the Tranche C Facility, the Core Borrowers;
and
(b) in the case of the Working Capital Facility, the WCF
Borrowers.
BS1 means TUA (No. 8) Pty Ltd (ACN 085 235 776).
BS1 MORTGAGE AND CHARGE means the mortgage made or to be made between BS1
and the Security Trustee over the interest's of BS1 in the loan agreements
between BS1 and BS2 the shares held by BS1 in BS2 and the charge over all
the assets and undertaking of BS1.
BS2 means TUA (No. 9) Pty Ltd (ACN 085 235 801).
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" (not being a Saturday, Sunday or public holiday in those places).
COMMITMENT means, for a Financier and a Facility, the amount set out as
such for that Financier in the Details as varied pursuant to clauses 1.13
(Reduction in Total Facility Limit) and 1.14 (Reduction in Total Facility
Limit) and as reduced by the total of all cancellations in respect of that
Financier and that Facility.
CORE BORROWERS means the persons so described in the Details and CORE
BORROWER means each of them separately.
COSTS includes costs, charges and expenses, including those incurred in
connection with advisers.
DEED POLL means the Domestic Deed Poll or the Offshore Deed Poll, as the
case may require.
DEFAULT RATE means the applicable Interest Rate plus 2% per annum. For the
purpose of this definition, the Interest Rate is calculated as if the
overdue amount is a Loan with Interest Periods of 90 days (or another
length chosen from time to time by the Facility Agent) with the first
Interest Period starting on and including the due date.
DETAILS means the details which are set out at the beginning of this
agreement.
DIRECTIVE means a treaty, a law, an official directive or request having
the force of law, and an official directive, request, guideline or policy
not having the force of law but with which a prudent financier in the
relevant jurisdiction would comply.
DOMESTIC DEED POLL means a deed poll executed by the Core Borrowers in or
substantially in the form of schedule 6.
DOMESTIC FINANCIER means a Financier that funds its participation in the
Facilities through a Lending Office in Australia.
DOMESTIC LOAN NOTE means a debt obligation of the Core Borrowers owing
under the Domestic Deed Poll in respect of a Facility to a Domestic
Financier.
DOMESTIC REGISTER means the register of holders of Domestic Loan Notes
established under clause 12 (Registration).
DRAWDOWN DATE means the date on which a drawing is or is to be made.
DRAWDOWN NOTICE means a completed notice containing the information and
representations and warranties set out in schedule 2.
DRAWN COMMITMENT means, for a Financier and a Facility, the principal
amount actually made available by that Financier to the Core Borrowers
under that Facility.
FACILITY means each or all of the Tranche A Facility, Tranche B Facility,
Tranche C Facility and Working Capital Facility, as the context requires.
FACILITY LIMIT means, for a Facility, the amount set out as such for that
Facility in the Details.
FEE LETTERS means each of the underwriting fee letter and the agency fee
letter referred to in clause 6 (Fees).
FINANCE PARTY means each Financier, each Agent and each Hedge Counterparty.
FINANCIAL CLOSE means the date on which the last condition precedent in
schedule 1 (Conditions precedent) is satisfied (or waived by the
Financiers).
FINANCIER means each person so described in the Details (including, the
Working Capital Bank and if applicable, the Facility Agent in its role as a
Financier) and any person who is named as a "Substitute Financier" under a
Substitution Certificate.
GASCOR means Gascor Holdings No. 2 Pty Ltd.
GUARANTEE means the guarantee and indemnity made or to be made between the
Core Borrowers, Holdco, BS1 and BS2 in favour of the Security Trustee.
HEDGE AGREEMENT means each interest rate hedging document (including any
restatement of any earlier document) entered into between the Core
Borrowers and any Hedge Counterparty on or before the date of Financial
Close .
HEDGE COUNTERPARTY means each person so described in the Details and any
person who becomes a Hedge Counterparty pursuant to a Hedge Counterparty
Accession Agreement.
HEDGE COUNTERPARTY ACCESSION AGREEMENT means an agreement substantially in
the form of schedule 4.
HEDGE EXPOSURE means in respect of a Hedge Counterparty at the applicable
date the amount which is H in the following formula:
H = M to M + Unpaid Amounts
where:
M TO M is the result of the xxxx to market calculation of the
obligations under the Hedge Agreements provided that M to M will
be a positive number if it represents a liability of the Core
Borrowers to the Hedge Counterparty and a negative number if it
represents a liability of the Hedge Counterparty to the Core
Borrowers.
UNPAID AMOUNTS is any amount owing under the Hedge Agreements
provided that Unpaid Amounts will be a positive number if it
represents amounts owing by the Core Borrowers to the Hedge
Counterparty and a negative number if it represents amounts
owing by the Hedge Counterparty to the Core Borrowers,
provided that if H is a negative number it shall be deemed to be equal to
zero.
HEDGE LIABILITIES means all present and future liabilities (actual or
contingent) payable or owing by the Core Borrowers to a Hedge Counterparty
or any of them under or in connection with the Hedge Agreements, whether or
not matured and whether or not liquidated, together in each case with:
(a) any novation, deferral or extension of any of those
liabilities permitted by the terms of this agreement;
(b) any claim for damages or restitution arising out of, by
reference to or in connection with any of the Hedge
Agreements;
(c) any claim flowing from any recovery by the Core
Borrowers or a receiver or liquidator thereof or any
other person of a payment or discharge in respect of any
of those liabilities on grounds of any insolvency
provision or otherwise; and
(d) any amounts (such as post-insolvency interest) which
would be included in any of the above but for any
discharge, non-provability, unenforceability or
non-allowability of the same as a result of any
insolvency provisions.
HOLDCO means TU Australia Holdings Pty Ltd (ACN 086 006 859).
HOLDCO MORTGAGE means the mortgage made or to be made between Holdco and
the Security Trustee over Holdco's interests in the loan agreements between
TUA and Holdco and the loan agreements between Holdco and the Core
Borrowers.
INFORMATION MEMORANDUM means any information memorandum issued in relation
to the Facilities.
INTEREST PAYMENT DATE means the last day of an Interest Period.
INTEREST PERIOD means each period selected in accordance with clause 3.1
(Notification of Interest Period).
INTEREST RATE means, in respect of a Facility, the interest rate for that
Facility set out in the Details.
IWT AMENDING LEGISLATION means legislation in or substantially in the form
of the Taxation Amendment Xxxx (No. 4) of 1998 which was introduced into
Federal Parliament in December 1998 for the purpose of amending, amongst
other things, the interest withholding tax exemption available under
section 128F of the Tax Act.
JOINT LEAD BANKS means each person so described in the Details.
LENDING OFFICE means in the case of the initial Financiers, the address
shown in the Details as the lending office of each initial Financier and,
in the case of Financiers acquiring an interest under clause 24 (Assignment
and Substitution of Financiers), the address shown in the relevant
Substitution Certificate as the Lending Office of that Financier.
LOAN means the outstanding principal amount of a drawing made available
under the Tranche A Facility, the Tranche B Facility or the Tranche C
Facility which:
(a) has the same Interest Period; and
(b) ends on the same Interest Payment Date.
LOAN NOTE means a Domestic Loan Note or an Offshore Loan Note.
MAJORITY OF FINANCIERS means at any time:
(a) if no Event of Default subsists, Financiers the total of
whose Commitments exceeds 66% of the total of all
Financiers' Commitments; and
(b) if an Event of Default subsists, Financiers and Hedge
Counterparties:
(i) the total of whose Commitments; and
(ii) the total of whose Hedge Exposures at such time,
as determined by such Hedge Counterparties,
exceeds 66% of the total:
(iii) of all Financiers Commitments; and
(iv) Hedge Exposure of all Hedge counterparties at
such time.
MARGIN means:
(a) in respect of the Tranche A Facility, 0.90% per annum;
(b) in respect of the Tranche B Facility and the Tranche C
Facility, 1.10% per annum but subject to reduction in
respect of any Interest Period commencing after the
anniversary of Financial Close if the Most Recent
Facility Rating on the first day of that Interest Period
is "BBB" or higher, in which case the Margin for such
Interest Period shall be reduced to the amount indicated
in the table below:
--------------------------- -------------------------
MOST RECENT FACILITY MARGIN
RATING
--------------------------- -------------------------
BBB 0.90% pa
--------------------------- -------------------------
BBB + or higher 0.80% pa
--------------------------- -------------------------
MATURITY DATE means, for a Facility, the maturity date set out in the
Details for that Facility, but if that is not a Business Day, then the
preceding Business Day.
MOST RECENT FACILITY RATING means, at any time, the then most recent rating
issued by Standard & Poor's (Australia) Pty Ltd for the Facilities.
OBLIGOR means each Borrower, Guarantor, TUA and Purchaser.
OFFSHORE DEED POLL means a deed poll executed by the Core Borrowers in or
substantially in the form of schedule 6.
OFFSHORE FINANCIER means a Financier that funds its participation in the
Facilities through a Lending Office outside Australia.
OFFSHORE LOAN NOTE means a debt obligation of the Core Borrowers owing
under the Offshore Deed Poll in respect of a Facility to an Offshore
Financier.
OFFSHORE PAYING AGENT means the person so described in the Details.
OFFSHORE REGISTER means the register of holders of Offshore Loan Notes
established under clause 12 (Registration).
ORIGINAL BASE CASE MODEL means the computer model agreed on or prior to the
date of this agreement between the Core Borrowers and the Facility Agent
to, among other things, enable calculations of the financial undertakings
in clause 6.4 of the Security Trust Deed (Financing Undertakings), as
initialled by the Agent.
PARTNERSHIP means the TU Australia Holdings (Partnership) Limited
Partnership being a limited partnership formed and registered under the
Partnership Xxx 0000 of Victoria.
PARTNERSHIP DEED means the deed dated 27 January 1999 establishing the
Partnership as amended by a deed dated on or about the date of this
agreement.
PARTNERSHIP MORTGAGE means the mortgage made or to be made between the Core
Borrowers and the Security Trustee over the Core Borrowers' interests in
the loan agreements between the Core Borrowers (as borrowers) and Holdco
(as lender) and the Hedge Agreements.
PROPORTION means, for a Financier:
(a) in respect of a Facility or a Loan under a
Facility, the proportion which its Commitment
bears to the Facility Limit for that Facility;
and
(b) in respect of the Facilities generally, the
proportion which the total of its Commitments
bears to the aggregate of the Total Facility
Limit and the Facility Limit for the Working
Capital Facility.
PRINCIPAL OUTSTANDING means at any time the total principal amount of all
outstanding Loans.
REGISTER means the Domestic Register or the Offshore Register.
REGISTRAR means the person appointed from time to time under clause 12.4
(Appointment of Registrar) as the Registrar.
RETIRING FINANCIER means a Financier which proposes to have some or all of
its obligations and rights under the Bank Finance Documents assumed by and
assigned to another person .
SECURITY means each security described as such in the Details and any other
document or Security Interest collateral to any of them.
SECURITY TRUST DEED means the security trust deed executed by, the Security
Trustee, the Agent, the Obligors, Eastern Energy Limited, Texas and the
Junior Financier (as defined in that deed).
SECURITY TRUSTEE means, as at the date of this agreement, National
Australia Bank Limited and any successor appointed under the Security Trust
Deed.
SUBSTITUTE FINANCIER means a person who is to assume some or all of the
obligations and become entitled to some or all of the rights of a Retiring
Financier under the Bank Finance Documents.
SUBSTITUTION CERTIFICATE means a certificate substantially in the form of
schedule 3, completed as stated in that schedule, or another document
approved by the Facility Agent for the purpose of clause 24 (Substitution
of Financiers).
TAX ACT means the Income Tax Assessment Xxx 0000 of Australia.
TAXES means taxes, levies, imposts, charges and duties imposed by any
authority (including stamp and transaction duties) together with any
related interest, penalties, fines and expenses in connection with them,
except if imposed on the overall net income of a Financier.
TEXAS means Texas Utilities Company, a corporation incorporated under the
laws of the State of Texas, United States of America.
TOTAL FACILITY LIMIT means the aggregate Facility Limit for each of the
Tranche A Facility, the Tranche B Facility and the Tranche C Facility.
TOTAL PURCHASE PRICE means the total purchase price payable by the
Purchasers for the Assets under the terms of the Sale Agreement.
TRANCHE A FACILITY means the facility described as such in the Details.
TRANCHE B FACILITY means the facility described as such in the Details.
TRANCHE C FACILITY means the facility described as such in the Details.
TRANSACTION DOCUMENTS means the documents described as such in the Details,
any document which an Obligor acknowledges in writing to be a Transaction
Document, and any other document connected with any of them.
TUA MORTGAGE means the mortgage made or to be made between Holdco and TUA
over TUA's interests in the loan agreements between TUA and BS1.
UNDRAWN FACILITY LIMIT means, for the Tranche A Facility, the Tranche B
Facility or the Tranche C Facility, the Facility Limit less the total
Principal Outstanding for that Facility.
WCF BORROWER means the person so described in the Details and WCF BORROWER
means each of them separately and both of them jointly.
WESTAR means Westar Pty Ltd (ACN 079 089 008).
WESTAR ASSETS means Westar (Assets) Pty Ltd (ACN 079 089 062).
WORKING CAPITAL BANK means:
(a) at the date of this agreement, National
Australia Bank Limited; and
(b) thereafter, a Financier to which the obligations
to provide the Working Capital Facility are
transferred or which assumes the rights and/or
obligations of the Working Capital Bank pursuant
to a Substitution Certificate.
WORKING CAPITAL FACILITY means the facility described as such in the
Details.
WORKING CAPITAL TERMS AND CONDITIONS means any agreement in force between
the WCF Borrowers and the Working Capital Bank setting out the terms and
conditions applicable to the Working Capital Facility.
REFERENCES TO CERTAIN GENERAL TERMS
28.2 Unless the contrary intention appears, a reference in a
Transaction Document to:
(a) a group of persons is a reference to any two or more of
them collectively 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 severally;
(c) an agreement, representation or warranty by two or more
persons binds them jointly and each of them severally
but an agreement, representation or warranty by a
Financier binds the Financier severally 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
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 Australian Accounting Standards;
(h) Australian dollars, dollars, $ or A$ is a reference to
the lawful currency of Australia;
(i) a time of day is a reference to Melbourne time;
(j) the word "person" includes an individual, a firm, a body
corporate, an unincorporated association and an
authority;
(k) a particular person includes a reference to the person's
executors, administrators, successors, substitutes
(including persons taking by novation) and assigns and
includes a new partner in the Partnership;
(l) the word "payable" in relation to an amount, means an
amount which is currently payable or will or may be
payable in the future; and
(m) 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
28.3 The singular includes the plural and vice versa.
HEADINGS
28.4 Headings are for convenience only and do not affect the
interpretation of this agreement.
DEUTSCHE
28.5 The parties acknowledge and agree that despite clause 1.6:
(a) this agreement is entered into by Deutsche Bank AG and
Deutsche Australia Limited in their capacities as
Financiers jointly and severally;
(b) where Deutsche Bank AG and Deutsche Australia Limited
are obliged to do anything under this agreement as a
Financier which of them actually does it will be
determined by Deutsche Bank AG in its absolute
discretion;
(c) a payment to Deutsche Bank AG in respect of an
obligation to pay Deutsche Australia Limited as a
Financier shall satisfy, to the extent of that payment,
the obligation to pay Deutsche Australia Limited;
(d) a payment to Deutsche Australia Limited in respect of an
obligation to pay Deutsche Bank AG as a Financier shall
satisfy, to the extent of that payment, the obligation
to pay Deutsche Bank AG;
(e) a consent from, communication to or by, or the exercise
of a discretion by, one of Deutsche Bank AG or Deutsche
Australia Limited in its capacity as a Financier, shall
bind the other of them as a Financier;
(f) a reference to "Financier" is a reference to either or
both of Deutsche Bank AG or Deutsche Australia Limited
as the case requires; and
(g) the Borrower is not required to pay Deutsche Bank AG or
Deutsche Australia Limited or both any amount otherwise
payable under this agreement or under any Bank Finance
Document to which Deutsche Bank AG and Deutsche
Australia Limited are both a party (whether for Costs,
indemnities or otherwise) which is in total greater than
the amount the Borrower would have been required to pay
Deutsche Bank AG if Deutsche Bank AG had itself
satisfied its obligations and performed its rights under
this agreement or such other Bank Finance Document to
which Deutsche Bank AG and Deutsche Australia Limited
are both a party and Deutsche Australia Limited had not
entered this agreement or such other Bank Finance
Document.
EXECUTED as an agreement.
SCHEDULE 1 - CONDITIONS PRECEDENT (CLAUSE 2.4)
--------------------------------------------------------------------------------
CONDITIONS TO FIRST DRAWING
EACH ITEM MUST BE IN FORM AND SUBSTANCE SATISFACTORY TO THE FACILITY AGENT.
CERTIFICATION IS TO BE BY A DIRECTOR OR SECRETARY OF THE RELEVANT OBLIGOR THAT
THE ITEM IS TRUE AND COMPLETE AS AT A DATE NO EARLIER THAN 7 DAYS PRIOR TO THE
DATE OF THIS AGREEMENT.
----------------------------------------------------- ------------------ -----------------
ITEM FORM REQUIRED FOR
----------------------------------------------------- ------------------ -----------------
1 Constitution or a certificate confirming that Certified copy Borrower
there is no constitution
---------------
Guarantor
---------------
---------------
TUA
---------------
Purchaser
------------------------------------------------------- ------------------ ---------------
2 Certificate of registration Certified copy Borrower
---------------
Guarantor
---------------
TUA
---------------
Purchaser
------------------------------------------------------- ------------------ ---------------
3 Extract of minutes of a meeting of the entity's Certified copy Borrower
board of directors which evidences the resolutions:
---------------
(a) authorising the signing and delivery of the Guarantor
Transaction Documents to which the entity is
a
---------------
party and the observance of obligations
under those documents; and TUA
---------------
(b) appointing Authorised Officers of the Purchaser
entity; and
(c) which acknowledge that the Transaction Documents
(to which the entity is a party) will benefit
that entity and which set out the reasoning
behind that conclusion.
------------------------------------------------------- ------------------ ---------------
4 Each Authorisation under section 260A of the Certified copy Borrower
Corporations Law necessary for each Obligor to
enter into the Transaction Documents to which
it is a party and to observe obligations under
those documents and enforce those documents.
---------------
Guarantor
---------------
TUA
---------------
Purchaser
------------------------------------------------------- ------------------ ---------------
----------------------------------------------------- ------------------ -----------------
ITEM FORM REQUIRED FOR
----------------------------------------------------- ------------------ -----------------
5 Each power of attorney under which a person signs Original Borrower
a Transaction Document for the entity showing
evidence of stamping and registration if
applicable.
---------------
Guarantor
---------------
TUA
---------------
Purchaser
------------------------------------------------------- ------------------ ---------------
6 Specimen signature of: Original Borrower
(a) each Authorised Officer of the entity; and
---------------
Guarantor
---------------
(b) each other person who is authorised to sign a
TUA
---------------
Transaction Document for the entity.
Purchaser
------------------------------------------------------- ------------------ ---------------
7 Each of the Fee Letters, the Deed Polls, the Original Not applicable
Security and the Security Trust Deed:
(a) fully signed; and
(b) the Facility Agent has received funds to
pay the estimated stamp duty and any
documents required by the Facility Agent
to stamp and register those documents.
------------------------------------------------------- ------------------ ---------------
8 Certified copies of each of the following Certified copy Not Applicable
documents:
(a) the Sale Agreement;
(b) the Equity Subscription Agreement;
(c) the Intercompany Loan Agreements;
(d) the Eastern Loan Agreement;
(e) the Subordinated Facility Agreement; and
(f) the Partnership Deed.
.
------------------------------------------------------- ------------------ ---------------
------------------------------------------------------- ------------------ ---------------
9 Extract of minutes of an extraordinary general
meeting of the shareholders of each Guarantor Certified copy Each Guarantor
which evidences the unanimous resolutions of those
shareholders authorising:
(a) the signing and delivery of the Transaction
Documents to which that Guarantor is a
party; and
(b) the observance of obligations under those documents.
------------------------------------------------------- ------------------ ---------------
10 Evidence of the payment of all Qualifying Certified copy Not applicable.
Subordinated Debt and any equity subscriptions to enable the acquisition
of the Assets by the Purchasers for the Total Purchase Price.
------------------------------------------------------- ------------------ ---------------
11 Evidence that all of the conditions precedent set Certificate from Not applicable
out in the Sale Agreement have been or will on the Purchasers
Financial Close be satisfied in accordance with
their terms and that completion of the acquisition
of the Assets will occur on that date.
------------------------------------------------------- ------------------ ---------------
12 Legal opinions from Xxxxx & XxXxxxxx and Xxxxxx Original Not applicable
Rose dealing with the validity and enforceability
of the Bank Finance Documents and the Material
Contracts and from Xxxxx & XxXxxxxx dealing with
the entry into and observance of obligations under
the Sale Agreement by the State of Victoria.
------------------------------------------------------- ------------------ ---------------
13 A legal opinion from Mallesons Xxxxxxx Xxxxxx Original Not applicable
dealing with the enforceability of the Bank
Finance Documents.
------------------------------------------------------- ------------------ ---------------
15 Certified copy Each Purchaser
(a) A certificate from the Borrowers' insurance
brokers confirming the currency of the
insurance policies required to be maintained
by the Purchasers under the Bank Finance
Documents.
(b) A certificate from the Financiers' insurance
consultant confirming that the insurance
policies have been placed in accordance with
the consultant's report on insurances and the
wording of the relevant policies is effective
to implement the programme.
------------------------------------------------------- ------------------ ---------------
16 Evidence that the Core Borrowers have complied Certified copy Borrower
with their obligations under the Security Trust
Deed in relation to hedging.
------------------------------------------------------- ------------------ ---------------
------------------------------------------------------- ------------------ ---------------
17 All fees and expenses payable by the Borrowers on Borrower or before the
first Drawdown Date have been paid.
------------------------------------------------------- ------------------ ---------------
18 Evidence that all rights and assets of Westar, Certificate Purchasers
Westar Assets and Kinetik will on Financial Close
be transferred and assigned to the Purchasers
including, without limitation, the Licences and
all Authorisations.
------------------------------------------------------- ------------------ ---------------
19 The ownership and funding and security structure Borrower
of the Core Borrowers and their Subsidiaries is as
set out in the diagram in schedule 5.
------------------------------------------------------- ------------------ ---------------
20 The syndicated facilities agreement dated 29 Borrowers
January 1999 has been cancelled upon terms satisfactory to the Financiers.
------------------------------------------------------- ------------------ ---------------
SCHEDULE 2 - DRAWDOWN NOTICE (CLAUSE 2)
--------------------------------------------------------------------------------
To: [NAME AND ADDRESS OF FACILITY AGENT]
Attention: [INSERT]
[DATE]
DRAWDOWN NOTICE - SYNDICATED FACILITIES AGREEMENT BETWEEN [NAME OF BORROWER],
[NAME OF AGENT] AND OTHERS DATED [INSERT] ("SYNDICATED FACILITIES AGREEMENT")
Under clause 2.2 (Requesting a drawing) of the Syndicated Facilities Agreement,
the Core Borrowers give notice as follows.1
DRAWING UNDER THE TRANCHE [ ] FACILITY2
The Core Borrowers want to borrow under the Tranche [ ] Facility2.
() The requested Drawdown Date is [ ]3.
() The amount of the proposed drawing is A$[ ] 4.
() The requested first Interest Period is [ ]5.
() The proposed drawing is to be paid to:[ ]
The Core Borrowers represent and warrant that the representations and warranties
in the Security Trust Deed are correct and not misleading on the date of this
notice and that each will be correct and not misleading on the Drawdown Date .
[The Core Borrowers request the Facility Agent to notify it of the applicable
Interest Rate promptly following the Drawdown Date.]
The "Interpretation" clause of the Syndicated Facilities Agreement applies to
this notice as if it was fully set out in this notice.
........................................
[NAME OF PERSON] being
an Authorised Officer of
[NAME OF CORE BORROWER]
INSTRUCTIONS FOR COMPLETION
1 All items must be completed for the relevant Facility. Delete sections
relating to any inapplicable Facility.
2 Here clearly identitfy the relevant Facility.
3 Must be a Business Day within the Availability Period.
4 Must be $10,000,000 or a whole multiple of A$1,000,000.
5 Must be an Interest Period set out in the Details.
SCHEDULE 3 - FORM OF SUBSTITUTION CERTIFICATE
--------------------------------------------------------------------------------
for a Participation of [*]$[*]
relating to the Syndicated Facilities Agreement ("FACILITY AGREEMENT") dated [*]
1999 between [ ] and National Australia Bank Limited as
Facility Agent and the Financiers named in that agreement between:
1 [NAME] ("SUBSTITUTE FINANCIER");
2 [NAME] ("RETIRING FINANCIER); and
3 NATIONAL AUSTRALIA BANK LIMITED (ACN 004 044 937)) ("FACILITY AGENT")
for itself and on behalf of the other parties to the Facility Agreement,
and the Domestic*/Offshore* Deed Poll dated [*] by the Core Borrowers
("DEED POLL").
OPERATIVE PROVISIONS:
1 DEFINITIONS
--------------------------------------------------------------------------------
1.1 In this Certificate definitions in the Deed Poll and the
following definitions apply.
SUBSTITUTED PARTICIPATION means [*of] the Retiring Financier's Commitment
[and the participation in the Principal Outstanding under [those/that]
Commitment[s]] [in respect of the following Loans:]
LOAN NOTE FACILITY INTEREST LAST AMOUNT OF LOAN
[Domestic/ PERIOD DRAWDOWN NOTE
Offshore] DATE OR
INTEREST
PAYMENT
DATE
amounting to a principal amount of A$[*].
SUBSTITUTION DATE means the date of countersignature of this Certificate by
the Facility Agent [or [*] whichever is the later]. [NOTE: Insert any other
date or dates as appropriate.]
1.2 The "General" and the "Interpretation" clauses of the Facility
Agreement apply to this Certificate as if they were fully set
out in this Certificate.
2 TRANSFER AND SUBSTITUTION
--------------------------------------------------------------------------------
TRANSFER
2.1 The Retiring Financier transfers [Domestic/Offshore] Loan Notes
with a maximum face amount and a principal outstanding
representing the Substituted Participation with effect from and
including the Substitution Date.] [Delete if clause
24.5(a)(ii)(B) (Restriction of substitution by Offshore
Financiers) or clause 24.5(b)(ii)(B) applies]
SUBSTITUTION
2.2 The Retiring Financier will cease to be entitled to and bound by
its [other] [delete if 2.1 deleted] rights and obligations as a
Financier under the Transaction Documents [relating to the
Substituted Participation] [NOTE: Insert if only part of
commitment assumed.] with effect from and including the
Substitution Date. It will remain entitled to and bound by
rights and obligations which accrue up to the Substitution Date.
2.3 With effect from and including the Substitution Date:
(a) the Substitute Financier and each of the parties to the
Facility Agreement will assume obligations towards each
other and acquire rights against each other which are
identical to the rights and obligations which cease
under clause [2.2.], except to the extent the
obligations so assumed and rights so acquired relate to
the identity of or location of the Substitute Financier
and not to the identity of or location of the Retiring
Financier; and
(b) the Substitute Financier will be taken to be a party to
the Facility Agreement as a Financier with a Commitment
and participation in the Principal Outstanding equal to
the Substituted Participation.
3 INDEPENDENT ASSESSMENT BY SUBSTITUTE FINANCIER
--------------------------------------------------------------------------------
Without limiting the generality of clause 2 the Substitute Financier
agrees as specified in clause 17.1 (Individual responsibility of
Financiers) and clause 17.2 (Exoneration of Agent) of the Facility
Agreement. Those clauses apply (subject to any agreement to the
contrary) as if references to the Facility Agent included the Retiring
Financier. This Certificate is a Bank Finance Document and Transaction
Document for the purposes of the Facility Agreement.
4 PAYMENTS
--------------------------------------------------------------------------------
From and including the Substitution Date the Facility Agent shall make
all payments due under the Bank Finance Documents in relation to the
Substituted Participation to the Substitute Financier. The Retiring
Financier and the Substitute Financier will make directly between
themselves those payments and adjustments which they agree with respect
to accrued interest, fees, costs and other amounts attributable to the
Substituted Participation before the Substitution Date.
5 WARRANTY
--------------------------------------------------------------------------------
The Retiring Financier and the Substitute Financier jointly and
severally represent and warrant to the other parties (including, without
limitation, to the Core Borrowers) that clause 24 (Assignments and
substitutions by Financiers) of the Facility Agreement has been complied
with in relation to the Substitute Financier.
6 NOTICES
--------------------------------------------------------------------------------
For the purpose of the Facility Agreement, the address for
correspondence of the Substitute Financier is the address set out below.
7 LAW
--------------------------------------------------------------------------------
This Certificate is governed by the laws of Victoria.
Signed by the authorised representatives of the parties [in Victoria or
outside of Australia].
THE RETIRING FINANCIER
[NAME]
by:
------------------------------------------------------------
THE SUBSTITUTE FINANCIER
[NAME]
by:
------------------------------------------------------------
[Fax No.]
[Address for correspondence:]
Countersigned by an authorised representative of the Facility Agent for itself
and for the other parties to the Facility Agreement.
THE FACILITY AGENT
NATIONAL AUSTRALIA BANK LIMITED
by:
--------------------------------------------------------------
date:
------------------------------------------------------------
SCHEDULE 4 - HEDGE COUNTERPARTY ACCESSION AGREEMENT
--------------------------------------------------------------------------------
THIS ACCESSION AGREEMENT is made the day of by [ ] (the
"Hedge Counterparty") and [ ] for itself and as agent for each party under
the Facility Agreement ("AGENT").
RECITALS
A. Pursuant to an agreement entitled Syndicated Facilities Agreement dated
[ ] 1999 between [ ] (the "Facility Agreement"), the
Financiers agreed to make certain facilities available to the Core
Borrowers.
B. The Hedge Counterparty has obtained the consent of the Facility Agent
and the Finance Parties to becoming a Hedge Counterparty.
THE PARTIES AGREE:
1 INTERPRETATION
Terms defined or given a meaning in the Facility Agreement have the same
meaning in this agreement.
2 BANK FINANCE DOCUMENT
This agreement is a Bank Finance Document.
3 ACCESSION
(a) The Hedge Counterparty hereby agrees with each other party or
person who is to become party to the Facility Agreement that with
effect on and from the date of this agreement, it will be bound
by the Facility Agreement as a Hedge Counterparty as if it had
been party originally to the Facility Agreement in that capacity.
(b) Each party agrees with the Hedge Counterparty that with effect
from the cate of this agreement, the Hedge Counterparty will have
the benefit of the Facility Agreement as if it were a party
originally to the Facility Agreement.
4 HEDGING AGREEMENTS
The following are the Hedge Agreements to which the Hedge Counterparty
is a party with the Core Borrowers.
[DESCRIBE HEDGING FACILITIES AND IDENTIFY HEDGING DOCUMENTS]
5 NOTICE
The address for notice of the Hedge Counterparty for the purposes of the
Facility Agreement is:
[ ]
6. GOVERNING LAW
This agreement is governed by the laws of Victoria.
[To be signed by Hedge Counterparty and Agent].
SCHEDULE 5- OBLIGOR STRUCTURE CHART
--------------------------------------------------------------------------------
SCHEDULE 6 - [DOMESTIC DEED POLL/OFFSHORE DEED POLL]
--------------------------------------------------------------------------------
DETAILS
INTERPRETATION
Definitions are at the end of the General Terms.
------------------------------------------------------
PARTIES CORE BORROWERS, as described below.
------------------------------------------------------
------------------------------------------------------
BENEFICIARIES Each person who is from time to time a Financier.
---------------- -------------------------------------
---------------- -------------------------------------
CORE BORROWERS TU AUSTRALIA HOLDINGS (PARTNERSHIP) LIMITED
PARTNERSHIP a limited partnership formed and
registered under the Partnership Xxx 0000 of Victoria,
the general partner of which is TU Australia Holdings
(AGP) Pty Ltd (ACN 086 014 931) and the limited
partners of which are TU Australia Holdings No. 1
Limited (ARBN )and TU Australia Holdings No. 2 Limited
(ARBN ).
------------------------------------------------------
------------------------------------------------------
AGENT [THE FACILITY AGENT/THE OFFSHORE PAYING AGENT]
[delete as appropriate]
------------------------------------------------------
------------------------------------------------------
FACILITY AGREEMENT The syndicated facilities agreement between the Core
Borrowers, the WCF Borrowers, the Joint Lead Banks,
the Working Capital Bank, the Hedge Counterparties,
the Facility Agent, the Offshore Paying Agent and the
Financiers dated [ ] 1999
------------------------------------------------------
------------------------------------------------------
GOVERNING LAW Victoria
------------------------------------------------------
------------------------------------------------------
DATE OF DEED 1999
------------------------------------------------------
NOTE:
This form of Deed Poll needs to be adapted for use as the Offshore Deed Poll or
the Domestic Deed Poll. Amend as marked.
GENERAL TERMS
1 THE LOAN NOTES
--------------------------------------------------------------------------------
CREATION OF LOAN NOTES
1.1 The obligations of the Core Borrowers under the Loan Notes are
constituted by, and specified in, this deed.
CORE BORROWERS' UNDERTAKING TO PAY
1.2 The Core Borrowers undertake with each Financier to pay, in
respect of each Loan Note held by the Financier, the Amount
Owing in respect of each Loan, in accordance with the provisions
of this deed.
2 RIGHTS AND OBLIGATIONS OF FINANCIERS
--------------------------------------------------------------------------------
BENEFIT AND ENTITLEMENT
2.1 This deed is executed as a deed poll. Accordingly, the Facility
Agent [, the Offshore Paying Agent] [delete in Domestic Deed
Poll] and each Financier has the benefit of, and is entitled to
enforce, this deed even though it is not a party to, or is not
in existence at the time of execution and delivery of, this deed
subject to the Bank Finance Documents.
RIGHTS INDEPENDENT
2.2 The Facility Agent [, the Offshore Paying Agent] [delete in
Domestic Deed Poll] and each Financier may enforce its rights
under this deed independently from the Registrar and each other
Financier, subject to the Bank Finance Documents.
FACILITY AGENT AND FINANCIERS BOUND
2.3 The Facility Agent [, the Offshore Paying Agent] [delete in
Domestic Deed Poll] and each Financier (and any person claiming
through or under a Financier) is bound by this deed. The Loan
Notes will be issued subject to and on the basis that the
Facility Agent [, the Offshore Paying Agent] [delete in Domestic
Deed Poll] and each Financier is deemed to have notice of, and
be bound by, all the provisions of this deed and the Facility
Agreement.
DIRECTIONS TO HOLD DEED POLL
2.4 The Facility Agent [, the Offshore Paying Agent] [delete in
Domestic Deed Poll] and each Financier is taken to have
irrevocably instructed the Core Borrowers that this deed is to
be delivered to and held by the Registrar and appointed and
authorised the Registrar to hold this deed on its behalf.
3 FORM, TITLE AND STATUS
--------------------------------------------------------------------------------
CONSTITUTION UNDER LOAN NOTE DEED POLL
3.1 The Loan Notes are debt obligations of the Core Borrowers owing
under this deed poll and take the form of entries in the
Register. Each entry in the Register constitutes a separate and
individual acknowledgment to the relevant Financier of the
indebtedness of the Core Borrowers to the relevant Financier
under this deed.
INDEPENDENT OBLIGATIONS
3.2 Subject to the terms of the Facility Agreement and the other
Bank Finance Documents, the obligations of the Core Borrowers in
respect of each Loan Note constitute separate and independent
obligations which the Financier to whom those obligations are
owed is entitled to enforce without having to join any other
Financier or any predecessor in title of a Financier.
REGISTER CONCLUSIVE
3.3 Entries in the Register in relation to a Loan Note constitute
conclusive evidence that the person so entered is the registered
owner of the Loan Note subject to rectification for fraud or
error.
HOLDER ABSOLUTELY ENTITLED
3.4 Upon a person acquiring title to any Loan Note by virtue of
becoming registered as the owner of that Loan Note, all rights
and entitlements arising by virtue of this deed in respect of
that Loan Note vest absolutely in the registered owner of the
Loan Note. Any person who has previously been registered as the
owner of the Loan Note does not have, and is not entitled to
assert against the Core Borrowers or the Registrar or the
registered owner of the Loan Note for the time being and from
time to time, any rights, benefits or entitlements in respect of
the Loan Note.
STATUS OF LOAN NOTES
3.5 The Loan Notes are direct, unsubordinated and secured
obligations of the Core Borrowers and rank at least equally with
all other unsecured and unsubordinated obligations of the Core
Borrowers except liabilities mandatorily preferred by law.
4 TRANSFERS
--------------------------------------------------------------------------------
LIMIT ON TRANSFER
4.1 Loan Notes may only be transferred in accordance with the
Facility Agreement.
REGISTRATION OF TRANSFER
4.2 The transferor of a Loan Note is deemed to remain the holder of
that Loan Note until the name of the transferee is entered in
the Register in respect of that Loan Note.
5 INTEREST
--------------------------------------------------------------------------------
INTEREST CHARGES
5.1 The Core Borrowers agree to pay interest on each Loan for each
of its Interest Periods at the applicable Interest Rate.
CALCULATION OF INTEREST
5.2 Interest:
(a) accrues daily from and including the first day of an
Interest Period to but excluding the last day of an
Interest Period; and
(b) is payable on each Interest Payment Date; and
(c) is calculated on actual days elapsed and a year of 365
days.
6 REPAYING AND PREPAYING
--------------------------------------------------------------------------------
REPAYMENT
6.1 The Core Borrowers agree to repay the Principal Outstanding for
a Facility on the Maturity Date for that Facility.
VOLUNTARY PREPAYMENT
6.2 The Core Borrowers may prepay a Loan, as follows:
(a) unless the Facility Agent otherwise agrees, prepayment
of part only of the Principal Outstanding may only be
made if the total Principal Outstanding in respect of
Loans prepaid on that day is at least $10,000,000 and a
whole multiple of $5,000,000 or the balance of the
Principal Outstanding;
(b) the Core Borrowers must notify the proposed prepayment
to the Facility Agent by 11am on the fifth Business Day
before the prepayment (once given, a notice of
prepayment is irrevocable and the Core Borrowers are
obliged to prepay to the Facility Agent in accordance
with the notice.); and
(c) the prepayment must be made on the last day of the
Interest Period for the Loan.
If the Core Borrowers prepay they may be liable for break costs under a
Hedge Agreement and if they prepay other than as set out in this clause
6.2, they may be liable for break costs - see clause 11.2 (Indemnity) of
the Facility Agreement.
APPORTIONMENT
6.3 Prepayments under clause 6.2 (Voluntary prepayment) will be
applied rateably in reduction of the respective participation of
all the Financiers according to their respective Commitments.
PREPAYMENT AND THE FACILITY LIMIT
6.4 The Facility Limit for the Tranche A Facility and the Tranche C
Facility is reduced by amounts prepaid. The Facility Limit for
the Tranche B Facility is not reduced by amounts prepaid.
7 RELIQUIFYING BILLS
--------------------------------------------------------------------------------
OBLIGATION TO DRAW BILLS
7.1 A Financier may, on behalf of the Core Borrowers draw Bills on
itself. However:
(a) the face value of those Bills, when added to the total
of the face value of all other Bills drawn by the
Financier under this clause 7 and which are outstanding,
may not exceed the Financier's proportion of the Loan to
which the Bills relate plus interest to the end of the
then current Interest Period; and
(b) no Xxxx is to be drawn which would mature after the next
Interest Payment Date for the Loan in respect of which
the Xxxx is to be drawn.
In addition, the total face value of Bills which a Substitute Financier is
entitled to have drawn with recourse to the Core Borrowers is reduced by
the total discounted value of outstanding Bills drawn in respect of the
relevant Retiring Financier which relate to the obligations assumed by the
Substituted Financier and which are drawn with recourse to the Core
Borrowers. Any other Xxxx drawn in respect of the Substitute Financier must
expressly state that it is drawn without recourse to the Core Borrowers.
FINANCIER AS ATTORNEY
7.2 The Core Borrowers irrevocably appoint each Financier and each
Authorised Officer of each Financier individually as its
attorney to draw, accept or endorse the Bills and agrees to
ratify all action taken by an attorney under this clause 7.2.
TERMINATION
7.3 A Financier's ability to draw Bills on behalf of the Core
Borrowers ceases, and the appointment of a Financier and its
Authorised Officers as attorney for this purpose is revoked, on
payment by the Core Borrowers to the Facility Agent of all
amounts owing to that Financier under this deed.
INDEMNITY BY FINANCIER
7.4 Each Financier indemnifies the Core Borrowers against liability
or loss arising from, and any Costs (including duty) incurred in
connection with, any holder in due course of a Xxxx having
recourse to the Core Borrowers in respect of a Xxxx drawn by the
Financier under this clause 7.
DEEMED APPLICATION
7.5 If a reliquefication Xxxx is presented to the Core Borrowers and
the Core Borrowers discharges it by payment, the amount of that
payment will be deemed to have been applied against the moneys
outstanding under this deed to that Financier.
8 EVENT OF DEFAULT
--------------------------------------------------------------------------------
In addition to any other rights provided by law or any Bank Finance
Document if an Event of Default occurs, then the Facility Agent may
declare at any time by notice to the Core Borrowers that:
(a) an amount equal to the total of the Amount Owing for all
Financiers is either:
(i) payable to the Facility Agent for the account of
the Financiers on demand; or
(ii) immediately due for payment to the Facility
Agent for the account of the Financiers;
(b) the Financiers' obligations specified in the notice are
terminated.
The Facility Agent may make either or both of these declarations. The
making of either of them gives immediate effect to its provisions. The Core
Borrowers must pay the Amount Owing as demanded by the Facility Agent in
accordance with the demand.
9 PAYMENT
--------------------------------------------------------------------------------
MANNER OF PAYMENT
9.1 Unless a provision of a Bank Finance Document expressly states
otherwise, the Core Borrowers agree to make payments under each
Bank Finance Document (other than a Hedge Agreement):
(a) on the due date (or, if that is not a Business Day, on
the next Business Day in the same calendar month or, if
none, the preceding Business Day); and
(b) not later than 12.00 noon in the place for payment; and
(c) in immediately available funds; and
(d) in Australian Dollars; and
(e) in full without set-off or counterclaim and without any
deduction in respect of Taxes unless prohibited by law;
and
(f) [to the Agent at the account in Australia nominated by
the Agent/to the Agent at the account outside Australia
nominated by the Agent. This account may be in Australia
if the IWT Amending Legislation becomes law]. [delete as
appropriate]
Subject to clause 7.5 of this deed, the Core Borrowers satisfy a payment
obligation only when the Agent receives the amount (even if the Core
Borrowers pay the amount directly to a Financier or a Financier receives
the amount by way of set-off).
CURRENCY OF PAYMENT
9.2 The Core Borrowers waive any right they have in any jurisdiction
to pay an amount other than in the currency in which it is due.
However, if the Agent or a Financier receives an amount in a
currency other than that in which it is due:
(a) it may convert the amount received into the due currency
(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 Core Borrowers satisfy their obligation to pay in
the due currency only to the extent of the amount of the
due currency obtained from the conversion after
deducting the Costs of the conversion.
10 TAX
--------------------------------------------------------------------------------
PAYMENTS TO AGENTS OR FINANCIERS
10.1 If a law requires a Core Borrower or the Agent to deduct an
amount in respect of Taxes from a payment under any Bank Finance
Document such that the Agent or a Financier would not actually
receive on the due date the full amount provided for under the
Bank Finance Document; then:
(a) the amount payable by the Core Borrower is increased so
that, after making the deduction and further deductions
applicable to additional amounts payable under this
clause 10.1 including any Tax on the additional amount,
the Agent or the Financier receives (at the time the
payment is due) the amount it would have received if no
deductions had been required; and
(b) the Core Borrower (or the Agent as the case may be)
agrees to make the deductions; and
(c) the Core Borrower (or the Agent as the case may be)
agrees to pay the amounts deducted to the relevant
authority in accordance with applicable law and give the
original receipts to the relevant Financier (through the
Agent).
10.2 Notwithstanding clause 10.1, a Core Borrower shall have no
obligations under clause 10.1 to a Financier if that Financier
is in breach of a warranty under clause 24.2 of the Facility
Agreement.
TAX CREDIT
10.3 If a Core Borrower or an Agent complies with clause 10.1
(Payments to Agents or Financiers) and, as a result, the Agent
or a Financier receives a tax credit, tax rebate or similar tax
benefit that in the Agent's or Financier's sole opinion (without
requiring it or its professional advisers to expend a material
amount of time or incur a material cost in forming that opinion)
is referable to the amount deducted and paid to the relevant
authority, the Agent or the Financier, as applicable, agrees to
notify the Core Borrower and pay the Core Borrower an amount
which the Agent or Financier, as applicable, determines in its
sole opinion but in good faith to be equal to the benefit.
However, the Agent or Financier need pay only to the extent that
the payment leaves the Agent or Financier in no worse position
than it would have been had there been no requirement for the
Core Borrower or the Agent to deduct amounts under clause 10.1
(Payments to Agent or Financiers). Neither the Agent nor any
Financier need disclose to the Core Borrowers information about
their tax affairs or order them in a particular way.
11 INCREASED COSTS
--------------------------------------------------------------------------------
COMPENSATION PAYABLE BY CORE BORROWERS
11.1 The Core Borrowers agree to compensate a Financier on demand if
a Financier determines that:
(a) any new Directive or change in Directive taking effect
after the date of this deed; or
(b) a change in any Directive's interpretation or
administration by an authority after the date of this
deed; or
(c) compliance by the Financier or any Holding Company (as
defined in the Corporations Law) with any such
Directive, changed Directive or changed interpretation
or application,
directly or indirectly:
(i) increases the cost of a Facility to the
Financier or a Holding Company of the Financier;
or
(ii) reduces any amount received or receivable by the
Financier or a Holding Company of the Financier,
or its effective return, in connection with a
Loan Note; or
(iii) reduces the Financier's return or its Holding
Company's return on capital allocated to a Loan
Note, or its overall return on capital.
Compensation need not be demanded in the form of a lump sum and may be
demanded as a series of payments.
Any demand under this clause 11.1 is to be made by the Facility Agent and
must contain reasonable details of the basis of computation of the amount
demanded (but need not disclose information about the Financier's or any
Related Entity's tax affairs). The Core Borrowers agree to pay amounts due
under this clause 11.1 to the Facility Agent.
NEGOTIATIONS
11.2 Without prejudice to clause 11.3 (Prepayment), a Financier
affected by a circumstance specified in clause
11.1(Compensation) must, at the request of the Core Borrowers
made to the Facility Agent, negotiate in good faith with the
Core Borrowers with a view to finding a means of avoiding the
effect of the relevant circumstance, including by changing its
lending office or transferring its rights and obligations to
another financial institution acceptable to the Core Borrowers
provided such means of avoiding the effect of the relevant
circumstance can be achieved free of cost to the Financier and
nothing in this clause obliges a Financier to take any action or
refrain from taking any action apart from negotiating in good
faith with the Core Borrowers.
PREPAYMENT
11.3 If a Core Borrower has received a demand from the Facility Agent
under clause 11.1 (Compensation payable by Core Borrowers) and
that notice has not been withdrawn by the Facility Agent (acting
on the direction of the relevant Financier) and provided that
the Core Borrower has not given the Facility Agent a Drawdown
Notice which has not been funded by the Financiers, the Core
Borrower, by notice given to the Facility Agent, may:
(a) terminate the Financier's obligation to make its
Commitment under the affected Facility available; and
(b) elect to prepay the Financier's participation in the
Loan under the affected Facility together with all
accrued interest and any other amounts (including,
without limitation, any break costs) payable by the Core
Borrower to the Facility Agent on behalf of the
Financier in connection with the affected Facility,
within 10 Business Days of receipt of the demand from
the Facility Agent.
EFFECT OF NOTICE
11.4 Any notice given by a Core Borrower under clause 11.3
(Prepayment):
(a) takes effect when given to the Facility Agent;
(b) is irrevocable; and
(c) binds the Core Borrower to act in accordance with any
election made in that notice.
NO COMPENSATION
11.5 A Financier may not require the Core Borrowers to make a payment
under clause 11.1 (Compensation payable by Core Borrowers) if,
at the time the Financier became a party to this deed:
(a) the Directive was known to the Financier; and
(b) it was both reasonably certain that the Directive would
become law or take effect and unreasonable for that
Financier not to take that change into account in
determining its likely overall return under this deed.
The parties acknowledge that this clause 11.5 does not apply to the
introduction of a tax on goods or services in Australia after the date of
this deed.
RETROSPECTIVE COSTS
11.6 A Financier may only require a Core Borrower to make a payment
under clause 11.1(Compensation payable by Core Borrowers) in
respect of increased costs incurred by it up to an Interest
Period or 90 days, whichever is the greater, prior to the date
on which the Financier became aware of the circumstance giving
rise to the increased costs unless the increased cost is payable
or incurred by the Financier retrospectively, in which case the
full amount of the increased cost is payable by the Core
Borrower to the Financier.
CHANGE OF LENDING OFFICE
11.7 A Financier may not require a Core Borrower to make a payment
under clause 11.1 (Compensation payable by Core Borrowers) if
the increased cost arises directly and only as a result of and
immediately following the change of the lending office of the
Financier unless that change was the result of negotiations
under clause 12.2 (Negotiations) or clause 12.4 (Financier to
seek alternative funding method).
12 ILLEGALITY OR IMPOSSIBILITY
--------------------------------------------------------------------------------
FINANCIER'S RIGHT TO SUSPEND OR CANCEL
12.1 This clause 12 applies if a Financier determines that:
(a) a change in a Directive; or
(b) a change in the interpretation or administration of a
Directive by an authority; or
(c) a new Directive,
in each case taking effect after the date of this deed, makes it (or will
make it) illegal or impossible for the Financier to fund, provide, or
continue to fund or provide, financial accommodation under this deed. In
these circumstances, the Financier must notify the Facility Agent promptly
after becoming aware of such circumstances and, in turn, the Facility
Agent, by promptly giving a notice to the Core Borrowers, may suspend or
cancel some or all of the Financier's obligations under this deed as
indicated in the notice.
EXTENT AND DURATION 12.2 The suspension or cancellation:
(a) must apply only to the extent necessary to avoid the
illegality or impossibility; and
(b) in the case of suspension, may continue only for so long
as the illegality or impossibility continues.
NOTICE REQUIRING PREPAYMENT UNDER FACILITY
12.3 If the illegality or impossibility relates to a Loan, the
Financier, through the Facility Agent, by giving a notice to the
Core Borrowers, may require prepayment of all or part of the
affected Financier's Amount Owing. The Core Borrowers agree to
prepay to the Facility Agent the amount specified on the earlier
of the last day before the illegality or impossibility arises or
the Business Day following 30 days after the delivery of the
notice.
FINANCIER TO SEEK ALTERNATIVE FUNDING METHOD
12.4 If a notice is given under clause 12.1 (Financier's right to
suspend or cancel), then:
(a) the relevant Financier agrees to use reasonable
endeavours for a period of 30 days (or, if earlier, the
date of cancellation of the relevant financial
accommodation) to make the relevant financial
accommodation available by some alternative means
(including changing its lending office to another then
existing lending office or making the financial
accommodation available through a Related Entity of the
Financier) provided this can be achieved free of cost to
the Financier and nothing in this clause obliges a
Financier to take any action or refrain from taking any
action; and
(b) if the Financier advises the Facility Agent that no
alternative means are available, the Facility Agent must
use reasonable endeavours to arrange a transfer of the
relevant Financier's rights and obligations (either to
another Financier or another transferee).
13 INTEREST ON OVERDUE AMOUNTS
--------------------------------------------------------------------------------
OBLIGATION TO PAY
13.1 If a Core Borrower does not pay any amount under this deed or a
Loan Note on the due date for payment, the Core Borrower agrees
to pay to the Facility Agent on demand interest on that amount
at the Default Rate. The interest accrues daily from and
including the due date up to but excluding the date of actual
payment and is calculated on actual days elapsed and a year of
365 days.
COMPOUNDING
13.2 Interest payable under clause 13.1 (Obligation to pay) which is
not paid when due for payment may be added to the overdue amount
by the Facility Agent at intervals which the Facility Agent
determines from time to time or, if no determination is made,
every 30 days. Interest is payable on the increased overdue
amount at the Default Rate in the manner set out in clause 13.1
(Obligation to pay).
INTEREST FOLLOWING JUDGMENT
13.3 If a liability to a party becomes merged in a judgment, the Core
Borrower agrees to pay the Facility Agent on demand 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).
14 GENERAL
--------------------------------------------------------------------------------
The "General" and "Interpretation" clauses of the Facility
Agreement apply to this deed poll as if they were fully set
out in this deed poll.
15 DEFINITIONS
--------------------------------------------------------------------------------
INCORPORATION OF DEFINITIONS
15.1 Words and expressions which have a defined meaning in the
Facility Agreement have the same meaning when used in this deed
poll, unless expressly specified to the contrary.
NEW DEFINITIONS
15.2 In addition:
FACILITY AGREEMENT means the agreement so described in the Details.
EXECUTED as a deed [in Victoria] [specify location outside Australia]
[delete as appropriate]
EXECUTION PAGES
--------------------------------------------------------------------------------
CORE BORROWERS
SIGNED by X.X. Xxxxxxx )
for TU AUSTRALIA HOLDINGS (PARTNERSHIP) )
LIMITED PARTNERSHIP by being SIGNED by an )
attorney for TU AUSTRALIA HOLDINGS (AGP) )
PTY LTD, the general partner of the TU )
Australia Holdings (Partnership) Limited )
Partnership under power of attorney dated )
23/2/99 )
in the presence of: )
)
Xxxxxx X Xxxxxx (signed) )
---------------------------------- )
Signature of witness )
) X.X. Xxxxxxx (signed)
Xxxxxx X Xxxxxx ) ------------------------
---------------------------------- ) By executing this agreement the
Name of witness (block letters) ) attorney states that the attorney
has received no notice of
00/000 Xxxxxxx Xxxxxx, Xxxxxxxxx ) revocation of the power of
Address of witness ) attorney
)
)
Business Manager )
---------------------------------- )
Occupation of witness )
WCF BORROWERS
SIGNED by X.X. Xxxxxxx )
as attorney for TUA (NO. 10) PTY LTD )
under power of attorney dated 23/2/99 )
in the presence of: )
)
Xxxxxx X Xxxxxx (signed) )
----------------------------------. )
Signature of witness )
)
Xxxxxx X Xxxxxx )
----------------------------------. )
Name of witness (block letters) ) X.X. Xxxxxxx (signed)
) --------------------------------.
) By executing this agreement the
00/000 Xxxxxxx Xxxxxx, ) attorney states that the attorney
Melbourne ) has received no notice of
Address of witness ) revocation of the power of
) attorney
Business Manager )
---------------------------------. )
Occupation of witness )
SIGNED by X.X. Xxxxxxx )
as attorney for TUA (NO. 11) PTY LTD )
under power of attorney dated 23/2/99 )
in the presence of: )
)
Xxxxxx X Xxxxxx (signed) )
----------------------------------. )
Signature of witness )
)
Xxxxxx X Xxxxxx )
---------------------------------. )
Name of witness (block letters) ) X.X. Xxxxxxx (signed)
) ---------------------------------
) By executing this agreement the
00/000 Xxxxxxx Xxxxxx, Xxxxxxxxx ) attorney states that the attorney
---------------------------------. ) has received no notice of
Address of witness ) revocation ofthe power of attorney
)
Business Manager )
---------------------------------. )
Occupation of witness )
JOINT LEAD BANKS AND FINANCIERS
SIGNED by Xxxxx Xxxxx )
as attorney for BANK OF AMERICA NATIONAL )
TRUST AND SAVINGS ASSOCIATION under power )
of attorney dated 22/2/99 )
in the presence of: )
)
Xxxxxxx Xxxxxxx )
(signed) . )
Signature of witness )
)
Xxxxxxx X Xxxxxxx )
--------------------------------------. )
Name of witness (block letters) )
) Xxxxx Xxxxx (signed)
) --------------------------------
Xxxxx 00, 000 Xxxxxxx Xxxxxx, Xxxxxxxxx )
----------------------------------------. )
Address of witness ) By executing this agreement the
attorney states that the attorney
Solicitor has received no notice of
----------------------------------------. revocation of the power of
Occupation of witness attorney
SIGNED by Xxxxx Xxxxx )
as attorney for BA AUSTRALIA LIMITED )
under power of attorney dated )
22/2/99 )
in the presence of: )
)
Xxxxxxx Xxxxxxx (signed) )
---------------------------------. )
Signature of witness )
)
Xxxxxxx X Xxxxxxx )
---------------------------------. )
Name of Witness (block letters) )
) Xxxxx Xxxxx
) (signed)
Xxxxx 00, 000 Xxxxxxx Xxxxxx, Xxxxxxxxx )
----------------------------------------. )
Address of witness ) By executing this agreement the
) attorney states that the attorney
Solicitor ) has received no notice of
---------------------------------------. ) revocation of the power of
Occupation of witness ) attorney
SIGNED by P Xxxxxxxx and )
A Xxxxxxxxxxxx )
as attorney for DEUTSCHE BANK AG under )
power of attorney dated 20/11/98 )
in the presence of: )
)
Xxxxx Xxxxx (signed) )
-------------------------------------. )
Signature of witness ) P Xxxxxxxx (signed)
) -------------------------------.
Xxxxx Xxxxx )
-------------------------------------. )
Name of witness (block letters) )
) A Xxxxxxxxxxxx (signed)
00/000 Xxxxxxx Xxxxxx, Xxxxxxxxx ) -------------------------------.
-------------------------------------. ) By executing this agreement the
Address of witness ) attorney states that the attorney
) has received no notice of
Banker ) revocation of the power of
-------------------------------------. ) attorney
Occupation of witness )
SIGNED by P Xxxxxxxx and )
A Xxxxxxxxxxxx )
as attorney for DEUTSCHE AUSTRALIA )
LIMITED under power of attorney dated )
20/9/89 )
in the presence of: )
)
Xxxxx Xxxxx (signed) )
-------------------------------------. )
Signature of witness ) P Xxxxxxxx (signed)
) --------------------------------.
Xxxxx Xxxxx )
-------------------------------------. )
Name of witness (block letters) )
) A Xxxxxxxxxxxx (signed)
00/000 Xxxxxxx Xxxxxx, Xxxxxxxxx ) --------------------------------.
-------------------------------------. ) By executing this agreement the
Address of witness ) attorney states that the attorney
) has received no notice of
Banker ) revocation of the power of
-------------------------------------. ) attorney
Occupation of witness
SIGNED by Xxxxx Xxxxxxxx )
as attorney for NATIONAL AUSTRALIA BANK )
LIMITED under power of attorney dated 28 )
February 1991 in the presence of: )
)
Xxxxxxx Xxxxxxx )
---------------------------------. )
Signature of witness )
)
Xxxxxxx X Xxxxxxx )
---------------------------------. )
Name of witness (block letters) )
) Xxxxx Xxxxxxxx
Xxxxx 00, 000 Xxxxxxx Xxxxxx, Xxxxxxxxx ) (signed) .
----------------------------------------. )
Address of witness ) By executing this agreement the
) attorney states that the attorney
Solicitor ) has received no notice of
----------------------------------------. ) revocation of the power of
Occupation of witness ) attorney
SIGNED by Xxxxxxx Xxxxx )
as attorney for PARIBAS GROUP AUSTRALIA )
LIMITED under power of attorney dated )
22/2/99 )
in the presence of: )
)
Xxxxxxx Xxxxxxx )
---------------------------------. )
Signature of witness )
)
Xxxxxxx L )
---------------------------------. )
Name of witness (block letters) ) Xxxxxxx Xxxxx (signed)
) ------------------------------.
Xxxxx 00, 000 Xxxxxxx Xxxxxx, Xxxxxxxxx ) By executing this agreement the
----------------------------------. ) attorney states that the attorney
Address of witness ) has received no notice of
) revocation of the power of
Solicitor ) attorney
-----------------------------------. )
Occupation of witness )
SIGNED by )
Xxxx Xxxxxxx Xxxxxxxx )
as attorney for TORONTO DOMINION )
AUSTRALIA LIMITED under power of attorney )
dated 17 July 1987 )
in the presence of: )
)
Xxxxxxx Xxxxxxx (signed) )
----------------------------------------. )
Signature of witness )
)
Xxxxxxx X Xxxxxxx )
----------------------------------------. )
Name of witness (block letters) ) Xxxx Xxxxxxxx (signed)
) --------------------------------.
Xxxxx 00, 000 Xxxxxxx Xxxxxx, Xxxxxxxxx ) By executing this agreement the
----------------------------------------. ) attorney states that the attorney
Address of witness ) has received no notice of
) revocation of the power of
Solicitor ) attorney
----------------------------------------. )
Occupation of witness )
WORKING CAPITAL BANK
SIGNED by Xxxxx Xxxxxxxx )
as attorney for NATIONAL AUSTRALIA BANK )
LIMITED under power of attorney dated 28 )
February 1991 in the presence of: )
)
Xxxxxxx Xxxxxxx (signed) )
----------------------------------------. )
Signature of witness )
)
Xxxxxxx X Xxxxxxx )
----------------------------------------. )
Name of witness (block letters) )
) Xxxxx Xxxxxxxx (signed)
Xxxxx 00, 000 Xxxxxxx Xxxxxx, Xxxxxxxxx ) --------------------------------.
----------------------------------------. ) By executing this agreement the
Address of witness ) attorney states that the attorney
has received no notice of
Solicitor revocation of the power of
----------------------------------------. attorney
Occupation of witness
HEDGE COUNTERPARTIES
SIGNED by Xxxxx Xxxxx )
as attorney for BANK OF AMERICA NATIONAL )
TRUST AND SAVINGS ASSOCIATION under power )
of attorney dated 22/2/99 )
in the presence of: )
)
Xxxxxxx Xxxxxxx (signed) )
---------------------------------------. )
Signature of witness )
)
Xxxxxxx X Xxxxxxx )
---------------------------------------. )
Name of witness (block letters) ) Xxxxx Xxxxx (signed)
) --------------------------------.
Xxxxx 00, 000 Xxxxxxx Xxxxxx, Xxxxxxxxx ) By executing this agreement the
----------------------------------------. ) attorney states that the attorney
Address of witness has received no notice of
revocation of the power of
Solicitor attorney
----------------------------------------.
Occupation of witness
SIGNED by P Xxxxxxxx and )
A Xxxxxxxxxxxx )
as attorney for DEUTSCHE BANK AG under )
power of attorney dated 20/11/98 )
in the presence of: )
)
Xxxxx Xxxxx (signed) )
----------------------------------------. )
Signature of witness )
) P Xxxxxxxx (signed)
Xxxxx Xxxxx ) --------------------------------.
----------------------------------------. )
Name of witness (block letters) )
) A Xxxxxxxxxxxx (signed)
00/000 Xxxxxxx Xxxxxx, Xxxxxxxxx ) --------------------------------.
----------------------------------------. ) By executing this agreement the
Address of witness attorney states that the attorney
has received no notice of
Banker revocation of the power of
----------------------------------------. attorney
Occupation of witness
SIGNED by Xxxxx Xxxxxxxx )
as attorney for NATIONAL AUSTRALIA BANK )
LIMITED under power of attorney dated 28 )
February 1991 in the presence of: )
)
Xxxxxxx Xxxxxxx (signed) )
--------------------------------------. )
Signature of witness )
)
Xxxxxxx X Xxxxxxx )
--------------------------------------. )
Name of witness (block letters) )
) Xxxxx Xxxxxxxx (signed)
Xxxxx 00, 000 Xxxxxxx Xxxxxx, Xxxxxxxxx ) --------------------------------.
---------------------------------------. ) By executing this agreement the
Address of witness ) attorney states that the attorney
has received no notice of
Solicitor revocation of the power of
---------------------------------------. attorney
Occupation of witness
SIGNED by )
Xxxx Xxxxxxx Xxxxxxxx )
as attorney for THE TORONTO- DOMINION )
BANK under power of attorney dated 22 )
February 1999 )
in the presence of: )
)
Xxxxxxx Xxxxxxx (signed) )
---------------------------------------. )
Signature of witness )
)
Xxxxxxx X Xxxxxxx )
---------------------------------------. )
Name of witness (block letters) ) Xxxx Xxxxxxxx (signed)
) --------------------------------.
Xxxxx 00, 000 Xxxxxxx Xxxxxx, Xxxxxxxxx ) By executing this agreement the
--------------------------------------- . ) attorney states that the attorney
Address of witness ) has received no notice of
) revocation of the power of
Solicitor ) attorney
--------------------------------------- .
Occupation of witness
FACILITY AGENT
SIGNED by Xxxxx Xxxxxxxx )
as attorney for NATIONAL AUSTRALIA BANK )
LIMITED under power of attorney dated 28 )
February 1991 in the presence of: )
)
Xxxxxxx Xxxxxxx (signed) )
---------------------------------------. )
Signature of witness )
)
Xxxxxxx X Xxxxxxx )
---------------------------------------. )
Name of witness (block letters) )
) Xxxxx Xxxxxxxx (signed)
Xxxxx 00, 000 Xxxxxxx Xxxxxx, Xxxxxxxxx ) --------------------------------.
----------------------------------------. ) By executing this agreement the
Address of witness ) attorney states that the attorney
) has received no notice of
Solicitor ) revocation of the power of
--------------------------------------- . ) attorney
Occupation of witness )
OFFSHORE PAYING AGENT
SIGNED by Xxxxx Xxxxxxxx )
as attorney for NATIONAL AUSTRALIA BANK )
LIMITED, SINGAPORE BRANCH under power of )
attorney dated 28 February 1991 in the )
presence of: )
)
Xxxxxxx Xxxxxxx (signed) )
----------------------------------------. )
Signature of witness )
)
Xxxxxxx X Xxxxxxx )
----------------------------------------. )
Name of witness (block letters) ) Xxxxx Xxxxxxxx (signed)
) --------------------------------.
Xxxxx 00, 000 Xxxxxxx Xxxxxx, Xxxxxxxxx ) By executing this agreement the
----------------------------------------. ) attorney states that the attorney
Address of witness ) has received no notice of
) revocation of the power of
Solicitor ) attorney
----------------------------------------. )
Occupation of witness )
