Mallesons Xxxxxxx Xxxxxx
Exhibit 10(ii)
Loan Note Subscription Agreement
Dated 26 February 2004
TXU Australia Holdings Pty Ltd
("Borrower")
Australia and New Zealand Banking Group Limited
Citibank, N.A.
Commonwealth Bank of Australia
Westpac Banking Corporation
and other
Financiers listed in the Details
("Financiers")
Australia and New Zealand Banking Group Limited
("Facility Agent")
Mallesons Xxxxxxx Xxxxxx
Rialto
000 Xxxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
(00 0) 0000 0000
(00 0) 0000 0000
Email xxx@xxxxxxxxx.xxx
DX 101 Melbourne
xxx.xxxxxxxxx.xxx
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Loan Note Subscription Agreement 8
Details 8
General terms 14
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Part 1 The Facilities 14
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1 The Facilities and Facility Limits 14
1.1 Facilities 14
1.2 Financiers to subscribe for Loan Notes 14
1.3 Maximum accommodation 14
1.4 Financiers' interest in the Deed of Common Terms 14
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2 Utilisation of the Facilities 14
2.1 Number of issues 14
2.2 Requesting issue of Loan Notes 15
2.3 Effect of a Utilisation Notice 15
2.4 Conditions to first issue 15
2.5 Conditions to all issues 15
2.6 Benefit of conditions 16
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3 Loan Notes 16
3.1 Subscription and issue 16
3.2 Facility Agent's and Registrar's obligations 16
3.3 Excluded issue 16
3.4 Relationship between Loans under the Deed Poll 16
3.5 Location of Deed Poll 16
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4 Interest 17
4.1 Interest charges 17
4.2 Notification of Interest Period 17
4.3 When Interest Periods begin and end 17
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5 Redemption and early redemption 17
5.1 Final redemption 17
5.2 Voluntary early redemption 17
5.3 Early redemption and the Facility Limit 18
5.4 Break costs 18
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6 Reliquifying Bills 18
6.1 Obligation to draw Bills 18
6.2 Financier as attorney 19
6.3 Termination 19
6.4 Indemnity by Financier 19
6.5 Deemed application 19
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Part 3 Standard terms - all Facilities 19
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7 Payments 19
7.1 Manner of payment 19
7.2 Currency of payment 20
7.3 Total Amount Owing 20
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8 Cancellation 20
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9 Fees 20
9.1 Commitment fee 20
9.2 Other fees 21
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10 Withholding tax 21
10.1 Payments by the Borrower 21
10.2 Payments by Facility Agent to Financier 22
10.3 Exclusions 22
10.4 Tax credit 23
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11 Increased costs 24
11.1 Compensation 24
11.2 Substantiating costs 24
11.3 Negotiations 24
11.4 Prepayment 25
11.5 Retrospective Costs 25
11.6 No compensation 25
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12 Illegality or impossibility 26
12.1 Financier's right to suspend or cancel 26
12.2 Extent and duration 26
12.3 Notice requiring early redemption 26
12.4 Financier to seek alternative funding method 26
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13 Representations and warranties 27
13.1 Representations and warranties 27
13.2 Continuation of representations and warranties 27
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14 Undertakings 27
14.1 Undertakings 27
14.2 Purpose undertaking 27
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15 Default 27
15.1 Events of Default 27
15.2 Consequences of default 28
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16 Costs and indemnities 28
16.1 What the Borrower agrees to pay 28
16.2 Indemnity 29
16.3 Items included in loss, liability and Costs 29
16.4 Payment of third party losses 30
16.5 Currency conversion on judgment debt 30
16.6 GST 30
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17 Interest on overdue amounts 31
17.1 Obligation to pay 31
17.2 Compounding 32
17.3 Interest following judgment 32
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(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 3
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Part 5 Obligations in relation to Loan Notes 32
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18 Register 32
18.1 Appointment of Xxxxxxxxx 00
18.2 Establishment and maintenance of Register 32
18.3 Location of Register 32
18.4 Information required in Register 32
18.5 Register is paramount 33
18.6 Update and correction of Register 33
18.7 Inspection of Register 33
18.8 Certified extracts from Register available 34
18.9 Retirement or removal of Xxxxxxxxx 00
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19 Obligations in relation to offer or sale of Loan Notes 34
19.1 No disclosure document 34
19.2 Restrictions on offer and sales of Loan Notes 34
19.3 Financiers to observe laws 34
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20 Obligations in relation to initial public offer 35
20.1 Mandated Lead Arranger and Underwriter representations 35
20.2 Borrower's representations and obligations 35
20.3 Financier representations 35
20.4 Each Finance Party to provide further information 36
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Part 6 Syndication provisions 36
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21 Scope of relationships 36
21.1 Appointment 36
21.2 Extent of authority and obligations 36
21.3 Acceptance by Facility Agent 36
21.4 Binding nature of relationship 36
21.5 Excluded roles and duties 37
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22 How and when the Facility Agent acts 37
22.1 After consultation and instructions 37
22.2 Matters requiring instructions from all Financiers 37
22.3 Matters requiring instructions from a Majority of Financiers 38
22.4 Overriding instructions 39
22.5 Without consultation or instructions 39
22.6 Facility Agent's actions 39
22.7 Financier's instructions 39
22.8 Amendments 40
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23 Facility Agent's obligations to give notices and copies 40
23.1 Facility Agent's obligations 40
23.2 Awareness of certain events 41
23.3 Assuming compliance 41
23.4 Limit on disclosure obligations 41
23.5 No further obligations 41
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24 Facility Agent's relationship with Financiers 42
24.1 Individual responsibility of Financiers 42
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24.2 Exoneration 42
24.3 Facility Agent in capacity of a Financier 43
24.4 Dealing in different capacities 43
24.5 Facility Agent to act on Financier's request 44
24.6 Restriction on Financiers exercising rights 44
24.7 Notice of transfer 44
24.8 Facility Agent and Financier's role 44
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25 Funding of Facility Agent 45
25.1 Financiers to indemnify against non-payment 45
25.2 The Borrower's back-to-back indemnity 45
25.3 Funds before acting 45
25.4 If a Financier does not fund 45
25.5 Borrower's costs obligation not affected 46
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26 Change of Facility Agent 46
26.1 Retirement 46
26.2 Removal 46
26.3 When retirement or removal of Facility Agent takes effect 46
26.4 Permitted successors 47
26.5 Obligations of retiring and successor Facility Agents 47
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27 Miscellaneous provisions relating to agency 47
27.1 Delegation by Facility Agent 47
27.2 Duties when delegating 47
27.3 Responsibility for delegates 47
27.4 Facility Agent may rely on communications and opinions 47
27.5 Force majeure 48
27.6 No responsibility for force majeure 48
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28 Entitlements to payments 48
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29 Distribution of payments 49
29.1 How Facility Agent is to distribute 49
29.2 Excess distributions - contingencies 49
29.3 Postponement of non-funding Financiers 49
29.4 Manner of distribution 50
29.5 Distributions relying on assumed receipt 50
29.6 Financier to pay over amounts received directly 50
29.7 Pro-rata refunds 51
29.8 Proceeds of litigation 51
29.9 Application of payments 51
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30 Substitution of Financiers and transfer of Loan Notes 51
30.1 Procedure for substitution and transfer 51
30.2 Facility Agent authorised to sign Substitution Agreement 52
30.3 Delivery of copies 52
30.4 When a Substitution Agreement may not be given 53
30.5 Borrower not liable on substitution or changed payment office 53
30.6 Prohibition on transfer of Loan Notes 53
30.7 Substitution fee 53
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(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 5
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Part 7 General 53
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31 Relationships between parties 53
31.1 Borrower may assume parties have complied 53
31.2 Facility Agent is not responsible for Financier's breach 54
31.3 No responsibility for other's obligations 54
31.4 Several interests 54
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32 Dealing with interests 54
32.1 No dealing by Borrower 54
32.2 Dealings by Financier 54
32.3 Dealings by Facility Agent 55
32.4 Financiers and credit derivatives 55
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33 Notices 55
33.1 Form 55
33.2 Delivery 55
33.3 When effective 56
33.4 Receipt - postal 56
33.5 Receipt - fax 56
33.6 Receipt - eAgency 56
33.7 Receipt - general 56
33.8 Waiver of notice period 56
33.9 ANZIB eAgency website 56
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34 General 57
34.1 Application to Bank Finance Documents 57
34.2 Prompt performance 57
34.3 Consents 57
34.4 Certificates 57
34.5 Set-off 57
34.6 Discretion in exercising rights 57
34.7 Partial exercising of rights 58
34.8 No liability for loss 58
34.9 Conflict of interest 58
34.10 Remedies cumulative 58
34.11 Indemnities 58
34.12 Rights and obligations are unaffected 58
34.13 Inconsistent law 58
34.14 Supervening legislation 58
34.15 Time of the essence 59
34.16 Variation and waiver 59
34.17 Confidentiality 59
34.18 Further steps 59
34.19 Counterparts 60
34.20 Governing law 60
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35 Interpretation 60
35.1 Definitions 60
35.2 References to certain general terms 67
35.3 Number 68
35.4 Headings 68
35.5 Senior Finance Document 68
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36 IPO 68
36.1 IPO Effective Date and New Borrower 68
36.2 IPO Effective Date and IPO issuing entity is the Borrower 69
36.3 Acknowledgments 69
Schedule 1 - Commitments (clause 35.1) 70
Schedule 2 - Conditions precedent (clause 2.4) 72
Schedule 3 - Utilisation Notice (clause 2) 75
Schedule 4 - Form of Loan Note Deed Poll 77
Schedule 5 - Form of Substitution Agreement (clause 30) 82
Schedule 6 - Interest Period Notice (clause 4) 89
Signing page 90
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(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 7
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Loan Note Subscription Agreement
Details
Interpretation - Definitions are at the end of this agreement before the
schedules.
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Parties Borrower, Facility Agent and Financiers, each as described
below.
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Borrower Name TXU Australia Holdings Pty Ltd
ABN 97 086 006 859
Incorporated in Australia
Address Xxxxx 00, 000 Xxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxx, 0000
Fax (00 0) 0000 0000
Telephone (00 0) 0000 0000
Attention Assistant Treasurer
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Facility Agent Name Australia and New Zealand Banking Group
Limited
ABN 11 005 357 522
Address Xxxxx 00, 000 Xxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxx, 0000.
Fax (0 00) 0000 0000
Telephone (0 00) 0000 0000
Attention Transaction
Management and Execution Credit
Origination and Sales
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Financiers See last pages of these Details
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Total of Facility $1,100,000,000
Limits
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Facilities
Tranche A Description Revolving Loan Note subscription facility.
Facility
Facility Limit A $550,000,000 as reduced by
all cancellations under this
agreement.
Availability The period from the Debt
period Refinance Date to the close of
business on the Final Redemption
Date.
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(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 8
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Final Redemption Five years from the date of this
Date agreement.
Interest Rate Bank Xxxx Rate plus the Margin.
Margin The Margin for an Interest Period
is the rate set out in the table
below which is on the same row of
the table below as that Most Recent
Corporate Rating applying on the
first day of an Interest Period.
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Most Recent Margin
Corporate Rating
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A- or above 0.55% per annum
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BBB+ 0.70% per annum
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BBB 0.80% per annum
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BBB- 0.95% per annum
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Below BBB- or 1.30% per annum
unrated
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Interest Periods 1, 2, 3, 4, 5 or 6 months (or as agreed
(clause 4) between the Borrower and the Facility
Agent).
Purpose To refinance the existing
syndicated bank debt of the
Partnership and for general
corporate purposes.
Aggregate Minimum A$10,000,000 and a whole
minimum issue multiple of A$5,000,000.
amount
Early redemption Early redemptions are permitted under
(clause 5) clause 5.2 ("Voluntary early
redemption").
Tranche B Facility Description Revolving Loan Note subscription
facility.
Facility A$550,000,000, as reduced by
Limit the total of all cancellations
under this agreement.
Availability The period from the Debt
period Refinance Date to the close of
business on the Final Redemption
Date.
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(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 9
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Final Redemption Three years from the date of this
Date agreement.
Interest Rate Bank Xxxx Rate plus the Margin.
Margin The Margin for an Interest Period
is the rate set out in the table
below which is on the same row of
the table below as that Most Recent
Corporate Rating applying on the
first day of an Interest Period.
Most Recent Margin
Corporate
Rating
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A- or above 0.45% per annum
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BBB+ 0.575% per annum
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BBB 0.675% per annum
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BBB- 0.85% per annum
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Below BBB- or 1.10% per annum
unrated
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Interest Periods 1, 2, 3, 4, 5 or 6 months (or as agreed
(clause 4) between the Borrower and the Facility
Agent).
Purpose To refinance the existing
syndicated bank debt of the
Partnership and for general
corporate purposes.
Aggregate Minimum A$10,000,000 and a whole
minimum issue multiple of A$5,000,000.
amount
Early Early redemptions are permitted under
redemption clause 5.2 ("Voluntary early
(clause 5) redemption").
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Fees Agency Fee: As separately agreed in writing between
(also see clause 9) the Facility Agent and the Borrower in
the Facility Agent Fee Letter.
Arrangement Fee As separately agreed in writing between
for arranging the Financiers described as Mandated
syndication: Lead Arrangers and Underwriters in the
Details and the Borrower in the
Underwriting and Arrangement Fee
Letter.
Underwriting Fee As separately agreed between the
and Establishment Financiers described as Mandated Lead
Fee for the Arrangers and Underwriters in the
provision of Details and the Borrower in the
finance Underwriting and Arrangement Fee
Letter.
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(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 10
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Commitment Fee: For each Facility, 40% of the Margin
applying to the Facility calculated
on the daily balance of the
Unutilised Facility Limit of the
Facility.
Participation As separately agreed between
Fee: the Mandated Lead Arrangers and
Underwriters in the Details and the
Borrower and set out in the
Underwriting and Arrangement Fee
Letter and advised by the Mandated
Lead Arrangers and Underwriters to
the Financiers as at the date of
this agreement.
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Bank Finance include:
Documents
o this agreement;
o each Utilisation Notice;
o each Interest Period Notice;
o each Loan Note;
o the Loan Note Deed Poll;
o any Substitution Agreement;
o the Deed of Common Terms;
o the Amending Deed;
o the Guarantees; and
o each Fee Letter.
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Register Victoria
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Business Day
place(s) Melbourne and Sydney
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Governing law Victoria
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Date of agreement See Signing page
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Financiers
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Mandated Name Australia and
New Zealand Banking
Group Limited
Lead ABN 11 005 357 522
Arrangers and Lending Office Xxxxx 00, 000 Xxxxxxx Xxxxxx,
Xxxxxxxxxxxx Xxxxxxxxx, Xxxxxxxx
Fax (0 00) 0000 0000
Telephone (0 00) 0000 0000
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(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 11
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Attention Xxxxxx Xxxxxxx
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Name Citibank, N.A.
ABN 34 072 814 058
Lending Office Xxxxx 00, 000 Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxx
Fax (0 00) 0000 0000
Telephone (0 00) 0000 0000
Attention Xx Xxxxx Xxxxx
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Name Commonwealth Bank of Australia
ABN 48 123 123 124
Lending Office Xxxxx 00, 000 Xxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxx
Fax (00 0) 0000 0000
Telephone (00 0) 0000 0000
Attention Xx Xxxx Xxxxxx
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Name Westpac Banking Corporation
ABN 33 007 457 141
Lending Office Xxxxx 00, 000 Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxx
Fax (0 00) 0000 0000
Telephone (0 00) 0000 0000
Attention Mr Xxxxxxx Xxxxxxxx
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Financiers Name BNP PARIBAS
ABN 23 000 000 117
Lending Office 00 Xxxxxxxxxxx Xxxxxx, Xxxxxx,
XXX, 0000
Fax (0 00) 0000 0000
Telephone (0 00) 0000 0000 or (00 0) 0000 0000
Attention Mr Xxxx Xxxxxxx or Xx Xxxxx Xxxxx
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Name Credit Suisse First Boston
ABN 17 061 700 712
Lending Office Xxxxx 00, 000 Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxx, 0000
Fax (00 0) 0000 0000
Telephone (00 0) 0000 0000
Attention Xx Xxxx Xxxxxx
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Name ING Bank N.V (Sydney Branch)
ABN 32 080 178 196
Lending Office Xxxxx 0, 0 Xxxxxxxxx Xxxxx, Xxxxxx,
XXX, 0000
Fax (00 0) 0000 0000
Telephone (00 0) 0000 0000
Attention Xx Xxxxxx Xxxxxxxx, Legal and
Compliance Manager
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Name JPMorgan Chase Bank
ABN 43 074 112 011
Lending Office Xxxxx 00, Xxxxxxxxx Xxxxx, 000 Xxxxxx
Xxxxxx, Xxxxxx, XXX, 0000
Fax (00 0) 0000 0000
Telephone (00 0) 0000 0000
Attention Xx Xxxx Xxxx, Associate
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Name Mizuho Corporate Bank, Ltd
ABN 83 099 031 106
Lending Office Xxxxx 00, 00 Xxxxxxxx Xxxxxx,
Xxxxxx, XXX, 0000
Fax (00 0) 0000 0000
Telephone (00 0) 0000 0000
Attention Xx Xxxxxx Xxxxxxxx, Manager,
Corporate Finance
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Name National Australia Bank Limited
ABN 12 004 044 937
Lending Office Xxxxx 00, 000 Xxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxx, 0000
Fax (00 0) 0000 0000
Telephone (00 0) 0000 0000
Attention Xx Xxxxxxx Xxxxx
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Name The Bank of Tokyo - Mitsubishi, Ltd.
Melbourne Branch
ABN 75 103 418 882
Lending Office Xxxxx 00, 000 Xxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxx, 0000
Fax (00 0) 0000 0000
Telephone (00 0) 0000 0000
Attention Xx Xxxxxx Xxxxxxxx, Chief Manager
Corporate and
Project Finance
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Name UBS AG, Australia Branch
ABN 47 000 000 000
Lending Office Xxxxx 00, Xxxxxxxx Xxxxxxx Xxxxx,
0 Xxxxxx Xxxxx,
Xxxxxx, XXX, 0000
Fax (0 00) 0000 0000
Telephone (0 00) 0000 0000
Attention Ms Celle Raguine, Associate Director
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Name United Overseas Bank Limited
ABN 56 060 785 284
Lending Office Xxxxx 0, 00 Xxxxxx Xxxxx, Xxxxxx,
XXX, 0000
Fax (00 0) 0000 0000
Telephone (00 0)0000 0000
Attention Xx Xxxxxx X Xxxxxxx, Vice President
and Head of Project Finance and
Syndications
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(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 13
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General terms
Interpretation - Definitions are at the end of this agreement before the
schedules.
Part 1 The Facilities
1 The Facilities and Facility Limits
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1.1 Facilities
The Financiers grant to the Borrower:
(a) the Tranche A Facility for use during the Availability Period
for that Facility in an aggregate amount not exceeding the
Facility Limit for that Facility; and
(b) the Tranche B Facility for use during the Availability Period
for that Facility in an aggregate amount not exceeding the
Facility Limit for that Facility.
1.2 Financiers to subscribe for Loan Notes
Subject to the Bank Finance Documents, each Financier agrees to provide
its Proportion of financial accommodation requested by the Borrower
under this agreement in relation to the Facilities by subscribing for
Loan Notes to be issued by the Borrower under the Loan Note Deed Poll.
Each Financier and the Facility Agent agrees to be bound by the Loan
Note Deed Poll.
1.3 Maximum accommodation
The maximum aggregate principal amount of the Loan Notes to be
subscribed by the Financiers under this agreement is the total of the
Facility Limits.
1.4 Financiers' interest in the Deed of Common Terms
Each Financier accepts that it acquires an interest in the Guarantees
held by the Trustee and agrees to be bound by the Deed of Common Terms.
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2 Utilisation of the Facilities
2.1 Number of issues
The Borrower need not use any Facility. If the Borrower wants to use:
(a) the Tranche A Facility, it may do so by issuing Loan Notes
under that Facility during the Availability Period for that
Facility; and
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(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 14
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(b) the Tranche B Facility, it may do so by issuing Loan Notes
under that Facility during the Availability Period for that
Facility.
Loan Notes in respect of no more than 5 issues under a Facility may be
outstanding at any time. Each issue is made as a result of the Offer
(irrespective of when the Loan Notes are issued).
2.2 Requesting issue of Loan Notes
If the Borrower wants to issue Loan Notes, it agrees to give a
Utilisation Notice to the Facility Agent by 11am on the third Business
Day before the day it wants to issue the Loan Notes.
2.3 Effect of a Utilisation Notice
A Utilisation Notice is effective when the Facility Agent actually
receives it in legible form. An effective Utilisation Notice is
irrevocable.
2.4 Conditions to first issue
The Borrower agrees not to request the first issue of Loan Notes until
the Facility Agent has received every item listed in schedule 2
("Conditions precedent") in form and substance satisfactory to all
Financiers or the Facility Agent (as indicated in that schedule
alongside the relevant item). Any item required to be certified must be
certified by a secretary or a director of the relevant entity as being
true and complete as at a date no earlier than the date of this
agreement. The Facility Agent agrees to notify the Borrower promptly
after the Facility Agent receives the final item in form and substance
satisfactory to all Financiers or the Facility Agent (as the case
requires).
2.5 Conditions to all issues
A Financier need not provide any financial accommodation unless:
(a) the Loan Notes are to be issued during the Availability Period
for the relevant Facility; and
(b) the Financier's Utilised Commitment for a Facility after
subscribing for the Loan Notes would not be greater than its
Commitment for the Facility; and
(c) the Facility Agent has received a Utilisation Notice in
respect of it; and
(d) the representations and warranties in clause 5 of the Deed of
Common Terms and in the Utilisation Notice and the statements
in the Utilisation Notice are correct and not misleading at
the date of the Utilisation 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.
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(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 15
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2.6 Benefit of conditions
Each condition to issue is for the sole benefit of the Financiers and
may be waived by the Facility Agent.
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3 Loan Notes
3.1 Subscription and issue
Each Financier, the Borrower and the Facility Agent agrees that on each
Utilisation Date with respect to a Facility:
(a) each Financier will subscribe for Loan Notes by providing its
Proportion for that Facility of the total amount of the
proposed subscription price specified in the relevant
Utilisation Notice; and
(b) the Borrower will issue to each Financier Loan Notes which
have an aggregate principal amount outstanding equal to the
Financier's Proportion for that Facility of the amount of the
proposed subscription price specified in the relevant
Utilisation Notice. Each Loan Note is issued on the conditions
set out in the Loan Note Deed Poll by the Registrar entering
the Loan Notes in the Register.
3.2 Facility Agent's and Registrar's obligations
On receipt of any payment from a Financier under this clause 3 ("Loan
Notes"), the Facility Agent must:
(a) pay that amount in the manner specified in the Utilisation
Notice; and
(b) as Registrar, issue the Loan Notes referred to in clause 3.1
("Subscription and issue") by entering them in the Register.
That entry will constitute the issue of the Loan Notes.
3.3 Excluded issue
The Borrower must ensure that each Loan Note is issued in a manner
which does not require disclosure to investors under Part 6D.2 of the
Corporations Xxx 0000 (C'th).
3.4 Relationship between Loans under the Deed Poll
The Borrower agrees to issue and redeem the Loan Notes under a Facility
rateably according to the Proportion of each Financier who holds them
for that Facility, except where the Borrower is expressly permitted to
redeem a Loan Note of an individual Financier under the Bank Finance
Documents.
3.5 Location of Deed Poll
The Facility Agent must at all times retain the Loan Note Deed Poll in
Victoria (unless the Borrower agrees otherwise).
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(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 16
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4 Interest
4.1 Interest charges
The Borrower agrees to pay interest on each Loan Note for each of its
Interest Periods at the applicable Interest Rate. Interest:
(a) accrues daily from (and including) the first day of an
Interest Period to (but excluding) the last day of the
Interest Period; and
(b) is payable in arrears on each Interest Payment Date; and
(c) is calculated on actual days elapsed and a year of 365 days.
4.2 Notification of Interest Period
The first Interest Period for a Loan Note is the period specified in
the Utilisation Notice. Each subsequent Interest Period is a period
specified by the Borrower to the Facility Agent in an Interest Period
Notice 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 provided that if a Review
Event has occurred and the Trustee has notified the Borrower of the
Option, the Interest Period must end on or before the last day of the
Option Period. If the Borrower does not give 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 Final
Redemption Date, if that is shorter than the preceding Interest
Period).
4.3 When Interest Periods begin and end
The first Interest Period for a Loan Note begins on its Utilisation
Date. Each subsequent Interest Period begins on the day when the
preceding Interest Period for the Loan Note 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 day falls in the following month, in
which case the Interest Period ends on the previous Business Day).
However, an Interest Period for Loan Notes issued under a Facility
which would otherwise end after the Final Redemption Date for that
Facility ends on the Final Redemption Date.
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5 Redemption and early redemption
5.1 Final redemption
The Borrower agrees to redeem the Loan Notes issued under a Facility by
redeeming all the Loan Notes issued under that Facility on their Final
Redemption Date.
5.2 Voluntary early redemption
The Borrower may redeem a Loan Note issued under a Facility before its
Final Redemption Date as follows:
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(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 17
26 February 2004
(a) if not all Loan Notes issued under that Facility are being
redeemed early, the aggregate principal amount of the Loan
Notes to be redeemed early must be at least A$10,000,000 and a
whole multiple of A$5,000,000 (unless the Facility Agent
otherwise agrees); and
(b) the Borrower must notify the proposed early redemption to the
Facility Agent by 11am on the third Business Day before the
early redemption. The notice must state the Facility under
which the Loan Notes are being redeemed early. (Once given, a
notice of early redemption is irrevocable and the Borrower is
obliged to prepay in accordance with the notice).
5.3 Early redemption and the Facility Limit
The Facility Limit of:
(a) the Tranche A Facility is not reduced by the amount of any
early redemption of that Facility under clause 5.2
("Voluntary early redemption"); and
(b) the Tranche B Facility is not reduced by the amount of any
early redemption of that Facility under clause 5.2 ("Voluntary
early redemption").
5.4 Break costs
If an early redemption under clause 5.2 ("Voluntary early redemption")
is made on the last day of the Interest Period for the Loan Notes to be
redeemed, no break costs are payable. However, if the Borrower redeems
the Loan Notes early on a day other than the last day of the Interest
Period for the Loan Notes to be redeemed, it may be liable for break
costs under clause 16.2 ("Indemnity").
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6 Reliquifying Bills
6.1 Obligation to draw Bills
The Borrower agrees to draw Bills when and in the form required by the
Facility Agent on behalf of a Financier. However:
(a) the discounted value of those Bills, when added to the total
of the discounted value of all other Bills drawn as required
by the Facility Agent on behalf of the Financier under this
clause 6 ("Reliquifying Bills") and which are unmatured or
unpresented, may not exceed the Financier's Utilised
Commitment under the Facility in respect of which the Bills
are to be drawn; and
(b) no Xxxx is to be drawn which would mature after the Final
Redemption Date for the Facility in respect of which the Xxxx
is to be drawn.
In addition, the total discounted value of Bills which a Substitute
Financier is entitled to have drawn with recourse to the Borrower for
the purpose of this clause 6 ("Reliquifying Bills") is reduced by the
total discounted value of all unmatured or unpresented Bills drawn in
respect of the relevant Retiring Financier which relate to the
obligations assumed by the Substitute Financier and which are drawn
with recourse to the Borrower. Any other Xxxx drawn in respect of the
Substitute Financier must expressly state that it is drawn without
recourse to the Borrower.
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(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 18
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6.2 Financier as attorney
The Borrower irrevocably appoints each Financier and each Authorised
Officer of each Financier individually as its attorney to draw Bills on
its behalf and agrees to ratify all action taken by an attorney under
this clause 6.2.
6.3 Termination
The Borrower's obligation to draw Bills ceases, and the appointment of
a Financier and its Authorised Officers as attorney for this purpose is
revoked, on payment by the Borrower of all amounts owing to that
Financier under this agreement.
6.4 Indemnity by Financier
Each Financier unconditionally and irrevocably indemnifies the Borrower
against liability or loss arising from, and any Costs and Taxes
incurred in connection with, any Xxxx having recourse to the Borrower
drawn at the Financier's request under this clause 6 ("Reliquifying
Bills"). Each Financier agrees to pay amounts due from it under this
indemnity to the Borrower on demand.
6.5 Deemed application
If a reliquification Xxxx is presented to the Borrower and the Borrower
discharges it by payment, the amount of that payment will be deemed to
have been applied against the Amount Owing to the Financier which
required the Borrower to draw the Xxxx.
Part 3 Standard terms - all Facilities
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7 Payments
7.1 Manner of payment
Unless a provision of a Bank Finance Document expressly states
otherwise, the Borrower agrees to make payments (including by way of
reimbursement) under each Bank Finance Document:
(a) on the due date (or, if that is not a Business Day, on the
next Business Day unless that day falls in the following
calendar month or after the Final Redemption Date, in which
case, on the previous Business Day); and
(b) not later than 12 noon in the place for payment; and
(c) in Australian dollars in immediately available funds; and
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(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 19
26 February 2004
(d) in full without set-off or counterclaim, and without any
deduction in respect of Taxes unless prohibited by law; and
(e) to the Facility Agent by payment into the account nominated by
the Facility Agent.
The Borrower satisfies a payment obligation only when the Facility
Agent receives the amount (even if the Borrower pays the amount
directly to a Financier or a Financier receives the amount by way of
set-off ).
7.2 Currency of payment
The Borrower waives any right it has in any jurisdiction to pay an
amount other than in the currency in which it is due. However, if the
Facility 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 Borrower satisfies the 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.
7.3 Total Amount Owing
Subject to the provisions of any Bank Finance Document, the Borrower
agrees to pay the Total Amount Owing on the last Final Redemption Date
to occur in respect of any Facility under this agreement.
--------------------------------------------------------------------------------
8 Cancellation
The Borrower may cancel the Unutilised Facility Limit of a Facility in
whole or in part by notifying the Facility Agent on or before the third
Business Day before the cancellation is to take effect. 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
for that Facility of the cancelled amount.
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9 Fees
9.1 Commitment fee
The Borrower agrees to pay for each Facility quarterly in arrears (the
first quarter ending three months after the date of this agreement) and
on the last day of the Availability Period for the relevant Facility, a
Commitment Fee for the relevant Facility.
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(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 20
26 February 2004
If the Borrower cancels any of the Unutilised Facility Limits, it
agrees to pay the Commitment Fee in respect of the cancelled amount up
to and including the cancellation date.
The Commitment Fee is calculated:
(a) on actual days elapsed using a 365 day year;
(b) as if the first day of the relevant quarter is the first day
of an Interest Period for the purposes of determining the
Margin; and
(c) on the basis that the Margin changes from the date of any
change in, or loss of, the corporate rating of the Borrower
issued by Standard & Poor's (Australia) Pty Ltd.
9.2 Other fees
The Borrower agrees to pay:
(a) the Agency Fee to the Facility Agent in accordance with the
terms of the Facility Agent Fee Letter; and
(b) the Mandated Lead Arrangers and Underwriters the Arrangement
Fee, Underwriting Fee and Establishment Fee in accordance with
the terms of the Underwriting and Arrangement Fee Letter; and
(c) to the Financiers, a Participation Fee for the amount of and
in accordance with the terms of the Underwriting and
Arrangement Fee Letter and as separately advised to the
Financiers by the Mandated Lead Arrangers and Underwriters.
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10 Withholding tax
10.1 Payments by the Borrower
Subject to clause 10.3 ("Exclusions") if a law requires the Borrower to
deduct an amount in respect of Taxes from a payment under any Bank
Finance Document such that the Facility Agent or a Financier, as the
case may be, ("Indemnified Party") would not actually receive on the
due date the full amount provided for under the Bank Finance Document,
then:
(a) the Borrower agrees to deduct the amount for the Taxes (and
any further deduction applicable to any further payment due
under paragraph (c) below); and
(b) the Borrower agrees to pay an amount equal to the amount
deducted to the relevant authority in accordance with
applicable law and give the original receipts to the relevant
Financier (through the Facility Agent); and
(c) if the amount deducted is in respect of Accountable Taxes, the
amount payable is increased so that, after making the
deduction and further deductions applicable to additional
amounts payable under this clause, the Indemnified Party, is
entitled to receive (at the time the payment is due) the
amount it would have received if no deductions had been
required.
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(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 21
26 February 2004
10.2 Payments by Facility Agent to Financier
Subject to clause 10.3 ("Exclusions") if a law requires the Facility
Agent to deduct an amount in respect of Taxes from a payment by the
Facility Agent to a Financier under any Bank Finance Document such that
the Financier would not actually receive on the due date the full
amount provided for under the Bank Finance Document, then:
(a) the Facility Agent agrees to deduct the amount for the Taxes
(and any further deduction applicable to any further payment
due under paragraph (c) below); and
(b) the Facility Agent agrees to pay an amount equal to the amount
deducted to the relevant authority in accordance with
applicable law and give the original receipts to the relevant
Financier; and
(c) if the amount deducted is in respect of Accountable Taxes, the
amount payable is increased so that, after making the
deduction and further deductions applicable to additional
amounts payable under this clause, the Financier is entitled
to receive (at the time the payment is due) the amount it
would have received if no deductions had been required; and
(d) the Borrower agrees to pay to the Facility Agent an amount
equal to any deduction which the Facility Agent is required to
make under this clause 10.2.
10.3 Exclusions
The Borrower is not required to pay an additional amount under clause
10.1(c) ("Payments by the Borrower") or clause 10.2(d) ("Payments by
Facility Agent to Financier") to or for the account of an Indemnified
Party, if the obligation to do so arises as a result of any or more of
the following:
(a) the deduction in respect of Accountable Taxes is as a result
of the Indemnified Party being a resident of, or organised or
doing business in or having a connection with, the
jurisdiction imposing the Accountable Taxes (other than where
the Indemnified Party is considered a resident of, or as being
organised or doing business in the jurisdiction, solely as a
result of it being a party to the Bank Finance Documents or
any transaction contemplated by the Bank Finance Documents);
(b) the deduction being required as a result of a breach by the
Indemnified Party of any of its obligations under clause 20
("Obligations in relation to initial public offer") other than
as a result of the Borrower breaching its obligations under
that clause;
(c) the deduction being required as a result of any representation
or warranty given by the Indemnified Party under clause 20
("Obligations in relation to initial public offer") being
untrue in respect of a Loan Note;
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(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 22
26 February 2004
(d) the existence of, or any amount paid in connection with, a
Xxxx drawn under clause 6 ("Reliquifying Bills") at the
request of the Indemnified Party; or
(e) the deduction is in respect of Australian IWT and is as a
result of the Indemnified Party being an Associate of the
Borrower for the purposes of section 128F(6)
of the Tax Act. If an Indemnified Party asks, the Borrower
agrees to confirm to the Indemnified Party whether or not a
proposed third party is or is not an Associate of the
Borrower. If the Borrower does not respond to this request or
states that the proposed third party is not an Associate
(whether or not it is in fact an Associate), within 10
Business Days and the third party is an Associate of the
Borrower, then this clause 10.3(e) does not apply).
10.4 Tax credit
This clause 10.4 applies if:
(a) the Borrower complies with clause 10.1(c) ("Payments by the
Borrower"); or
(b) the Facility Agent complies with clause 10.2 (b) ("Payments by
Facility Agent to Financier") and the Borrower complies with
clause 10.2(d) ("Payments by Facility Agent to Financier"),
and, as a result, the Facility Agent or a Financier receives a tax
credit, tax rebate or similar benefit for any tax payable by it that in
the Facility 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.
In that case, the Facility Agent or Financier, as applicable, agrees to
notify and reimburse to the Borrower an amount equal to the amount that
the Facility Agent or Financier considers to be in its sole opinion but
acting in good faith, the proportion of the credit, rebate or benefit
as will leave the Facility Agent or Financier (after the reimbursement)
in no worse position than it would have been in if the circumstances
had been that no deduction was required under clause 10.1 ("Payments by
the Borrower") or clause 10.2 ("Payments by Facility Agent to
Financier"). However, the Facility Agent or Financier need pay only to
the extent it can do so in its opinion without prejudicing the
retention of the amount of the credit, rebate or other benefit. In
complying with this clause 10.4, neither the Facility Agent nor any
Financier need disclose to the Borrower information about their tax
affairs or order them in a particular way. If, subsequent to claiming a
tax credit, rebate or benefit, an amount is reimbursed to the Borrower
but the tax credit, rebate or benefit is disallowed or becomes
unavailable to the Facility Agent or Financier, the Borrower will repay
to the Facility Agent or Financier that amount that had been disallowed
or unavailable.
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(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 23
26 February 2004
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11 Increased costs
11.1 Compensation
The Borrower agrees to compensate a Financier on demand if the
Financier determines that:
(a) a new Directive, or change in Directive, in either case
applying for the first time after the date of this agreement;
or
(b) a change in a Directive's interpretation or administration by
an authority after the date of this agreement; or
(c) compliance by the Financier or any Holding Company with any
such Directive, changed Directive or changed interpretation or
administration
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, or the
effective return to, the Financier or a Holding
Company of the Financier, in connection with a
Facility; or
(iii) reduces the return on capital allocated to a
Facility, or the overall return on capital of the
Financier (or a Holding Company of the Financier).
In this clause 11.1, a reference to a Directive does not include a
Directive imposing or changing the basis of a Tax on the overall net
income of the Financier or a Holding Company.
Compensation need not be 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.
11.2 Substantiating costs
If the Facility Agent makes a demand under clause 11.1 ("Compensation")
on behalf of a Financier, the Financier agrees to provide the Borrower
with reasonably detailed calculations showing how the amount demanded
has been ascertained. However, nothing in this clause 11.2 obliges the
Financier to provide details of its business or tax affairs which it
considers in good faith to be confidential.
11.3 Negotiations
Without prejudice to clause 11.4 ("Prepayment"), a Financier affected
by a circumstance specified in clause 11.1 ("Compensation") must, at
the request of the Borrower made to the Facility Agent, negotiate in
good faith with the Borrower with a view to finding a means of avoiding
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(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 24
26 February 2004
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 Borrower provided such means of
avoiding the effect of the relevant circumstance can be achieved free
of cost to the Financier (or the Financier is indemnified or put in
funds to its satisfaction by the Borrower) and nothing in this clause
11.3 obliges a Financier to take any action or refrain from taking any
action apart from negotiating in good faith with the Borrower.
11.4 Prepayment
If the Borrower has received the demand from the Facility Agent under
clause 11.1 ("Compensation") and that notice is not being withdrawn by
the Facility Agent (acting on the direction of the relevant Financier)
and provided that the Borrower has not given the Facility Agent a
Utilisation Notice which has not yet been funded by the Financiers, the
Borrower, by notice given to the Facility Agent, may:
(a) terminate the Financier's obligation to make its Commitment
under the Facilities available; and
(b) redeem the Financier's Proportion of issued Loan Notes under
the Facilities and all other Amounts Owing to that Financier
(including any break costs) by the Borrower within 10 Business
Days of receiving that notice.
Once given, a notice of early redemption is irrevocable and the
Borrower is obliged to redeem in accordance with that notice.
11.5 Retrospective Costs
A Financier may only require the Borrower to make a payment under
clause 11.1 ("Compensation") in respect of the 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
circumstances giving rise to the increased costs. However, if the
increased cost is payable or incurred by the Financier or a Holding
Company of the Financier retrospectively, the full amount of the
increased costs is payable by the Borrower to the Financier.
11.6 No compensation
A Financier may not require the Borrower to make a payment under clause
11.1 ("Compensation") if, at the time the Financier became a party to
this agreement:
(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 it was unreasonable for the Financier
not to take that change into account in determining its likely
overall return from this agreement.
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(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 25
26 February 2004
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12 Illegality or impossibility
12.1 Financier's right to suspend or cancel
This clause 12 ("Illegality or impossibility") 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,
applying for the first time after the date of this agreement, 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 agreement. 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
Borrower, may suspend or cancel some or all of the Financier's
obligations under this agreement as indicated in the notice.
12.2 Extent and duration
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.
12.3 Notice requiring early redemption
If the illegality or impossibility relates to an issue of Loan Notes
under a Facility, the Financier through the Facility Agent, by giving a
notice to the Borrower, may require early redemption of all or part of
the affected Financier's Proportion of that issue of Loan Notes under
that Facility and the payment of interest accrued on those Loan Notes.
The Borrower agrees to redeem the Loan Notes in the amount specified
before the Business Day following 30 days after receiving the notice
(or, if earlier, on the date the illegality or impossibility arises).
12.4 Financier to seek alternative funding method
If a notice is given under clause 12.3 ("Notice requiring early
redemption"), then:
(a) the relevant Financier agrees to use reasonable endeavours for a
period of 20 Business 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 that
his can be achieved free of cost to the Financier and nothing in
this clause 12.4 obliges a Financier to take any action or refrain
from taking any action; and
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(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 26
26 February 2004
(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 to another transferee).
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13 Representations and warranties
13.1 Representations and warranties
The Borrower makes the representations and warranties made by it in
clause 5 of the Deed of Common Terms.
13.2 Continuation of representations and warranties
The representations and warranties made under clause 13.1 are also
taken to be made on the date of each Utilisation Notice, on each
Utilisation Date and on the date of delivery of a compliance
certificate in accordance with clause 6.1(h) of the Deed of Common
Terms (or clause 6.1(h) of the Deed of Common Terms following an IPO)
by reference to the then current circumstances. The Borrower agrees to
notify the Facility Agent of anything that happens that would mean that
it could not truthfully repeat all of their representations and
warranties on the date of each Utilisation Notice, on each Utilisation
Date and on the date of delivery of a compliance certificate in
accordance with clause 6.1(h) of the Deed of Common Terms (or clause
6.1(h) of the Deed of Common Terms following an IPO) by reference to
the then current circumstances.
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14 Undertakings
14.1 Undertakings
The Borrower makes the undertakings given by it in clause 6 of the Deed
of Common Terms.
14.2 Purpose undertaking
The Borrower undertakes to use each Facility only for its purpose set
out in the Details.
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15 Default
15.1 Events of Default
Each of the events specified in clause 7.1 of the Deed of Common Terms
will be an Event of Default under this agreement (whether or not it is
within the Borrower's (or anyone else's) power to prevent it).
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(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 27
26 February 2004
15.2 Consequences of default
If an Event of Default occurs, then the Facility Agent may declare at
any time by notice to the Borrower that:
(a) an amount equal to the Total Amount Owing is either:
(i) payable on demand; or
(ii) immediately due for payment;
(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 these provisions.
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16 Costs and indemnities
16.1 What the Borrower agrees to pay
The Borrower agrees to pay or reimburse:
(a) the reasonable Costs of each Finance Party in connection with:
(i) the negotiation, preparation, execution and registration
of and payment of Taxes on, any Bank Finance Document
(but in the case of a Substitution Agreement, the Borrower
agrees to pay only for the Costs of legal counsel acting
on behalf of all Financiers); and
(ii) their being satisfied that conditions to issue have been
met or the conditions precedent to the IPO Effective Date
have been met; and
(iii) giving and considering consents, waivers, variations,
discharges and releases; and
(iv) a Review Event; and
(b) the Costs of the Finance Party in otherwise acting in
connection with the Bank Finance Documents, such as
exercising, enforcing or preserving rights (or considering
doing so), or doing anything in connection with any enquiry by
an authority involving an Obligor, a Guarantor or any of its
Related Entities; and
(c) 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 needs not pay a fine or penalty in
connection with Taxes or fees to the extent that they have
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.
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(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 28
26 February 2004
The Borrower agrees to pay amounts due under this clause 16.1 on demand
from the Facility Agent. The Facility Agent may debit any of these
amounts to the Borrower's account (together with interest on any
overdue amount) after asking the Borrower to pay and the Borrower has
failed to pay the amount requested within 2 Business Days of the
demand.
16.2 Indemnity
The Borrower indemnifies 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 Facility Agent or Financier;
or
(b) financial accommodation under a Bank Finance Document being
repaid, discharged or made payable other than at its stated
maturity or on an Interest Payment Date applicable to it; or
(c) a Finance Party acting in connection with a Bank Finance
Document in good faith on fax, electronic mail or telephone
instructions purporting to originate from the offices of the
Borrower or to be given by an Authorised Officer of the
Borrower and which it reasonably believes to be genuine and
correct; or
(d) an Event of Default; or
(e) a Finance Party exercising or attempting to exercise a right
or remedy in connection with a Bank Finance Document after an
Event of Default occurs and for so long as it subsists; or
(f) any indemnity a Finance Party gives a Controller or
administrator of the Borrower in respect of an indemnity
properly given by the Trustee to that Controller or
administrator.
The Borrower agrees to pay amounts due under this indemnity on demand
from the Facility Agent.
16.3 Items included in loss, liability and Costs
The Borrower agrees that:
(a) the Costs referred to in clause 16.1 ("What the Borrower
agrees to pay"), and the liability, loss or Costs referred to
in clause 16.2 ("Indemnity"), include 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 16.1(a) and (b) ("What the
Borrower agrees to pay") include those paid, or that the
relevant Finance Party reasonably believes are payable, to
persons engaged by the Finance Party in connection with the
Bank Finance Documents (such as consultants); and
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(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 29
26 February 2004
(c) loss or liability and any Costs in any indemnity under the
Bank Finance Documents may include an amount called "break
costs". These may be calculated by any method the Financier
reasonably chooses including by reference to any loss it
incurs because the Financier terminates arrangements it has
made with others to fund (or to maintain its funding of)
financial accommodation under the Bank Finance Documents.
16.4 Payment of third party losses
The Borrower agrees to pay an amount equal to any liability or loss and
any Costs of the kind referred to in clause 16.2 ("Indemnity") suffered
or incurred by:
(a) any attorney; or
(b) any employee, officer, agent or contractor of the Finance
Party,
except to the extent caused by that person's gross negligence.
16.5 Currency conversion on judgment debt
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
Borrower indemnifies each Finance Party against:
(a) any difference arising from converting the other currency if
the rate of exchange used by the Finance Party under clause
7.2 ("Currency of payment") for converting currency when it
receives a payment in the other currency is less favourable to
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.
The Borrower agrees to pay amounts due under this indemnity on demand
from the Facility Agent.
16.6 GST
(a) Despite any other provisions of the Bank Finance Documents, in
the event that GST has application to any supply made by a
Finance Party under or in connection with
the Bank Finance Documents, the Finance Party may, in addition
to any amount or consideration payable under the Bank Finance
Documents, recover from the Borrower an additional amount on
account of GST, such amount to be calculated by multiplying
the relevant amount or consideration payable by the Borrower
for the relevant supply by the prevailing GST rate. Any
additional amount on account of GST recoverable from the
Borrower pursuant to this clause 16.6 shall be calculated
without any deduction or set-off of any other amount and
is payable by the Borrower upon demand by the Facility Agent
whether such demand is by means of an invoice or otherwise.
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(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 30
26 February 2004
(b) In relation to any taxable supplies under or in connection
with the Bank Finance Documents, the relevant Finance Party
will provide the Borrower with valid tax invoices, as a
precondition to recovery by it of the relevant additional
amount on account of GST under clause 16.6(a), in a form that
will enable the Borrower to claim any refund or credit of GST
permitted by the GST law.
(c) If at any time an adjustment is made as between the Finance
Party and the relevant taxing authority of an amount paid on
account of GST on any supply made by the Finance Party under
the Bank Finance Documents, a corresponding adjustment must be
made as between the Finance Party and the Borrower and any
payments required to give effect to the adjustment must be
made. If the Finance Party is entitled to an adjustment by
way of refund, the Finance Party must apply for the refund if
requested in writing to do so by the Borrower.
(d) If a Finance Party is unable to claim a full Input Tax Credit
for GST paid by it in respect of a supply acquired by it from
another Finance Party in connection with the Bank Finance
Documents, the Borrower agrees to reimburse the Finance
Party for the difference between the Input Tax Credit claimed
by the Finance Party and the amount of GST paid. The Borrower
agrees to pay this on demand by the Facility Agent. If a
Finance Party makes a claim for the difference
between the Input Tax Credit and the amount of GST paid, it
agrees to provide the Borrower with reasonably detailed
calculations showing how the amount demanded has been
ascertained. However, nothing obliges a Finance Party to
provide details of its business or tax affairs which it
considers in good faith to be confidential.
(e) Nothing in this clause 16.6 requires the Borrower to pay an
amount on account of a fine, penalty, interest or other amount
for which a Finance Party is liable, to the extent that the
liability arises as a consequence of wilful misconduct or
gross negligence by the Finance Party, its employees or agent.
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17 Interest on overdue amounts
17.1 Obligation to pay
If the Borrower does not pay any amount under this agreement on the due
date for payment, the Borrower agrees to pay interest on that amount at
the Default Rate. The interest accrues daily from (and including) the
due date to (but excluding) the date of actual payment and is
calculated on actual days elapsed and a year of 365 days.
The Borrower agrees to pay interest under this clause 17.1 on demand
from the Facility Agent.
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17.2 Compounding
Interest payable under clause 17.1 ("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 17.1 ("Obligation to pay").
17.3 Interest following judgment
If a liability becomes merged in a judgment, the Borrower agrees to pay
interest on the amount of that liability as an independent obligation.
This interest:
(a) accrues daily from (and including) the date the liability
becomes due for payment both before and after the judgment up
to (but excluding) the date the liability is paid; and
(b) is calculated at the judgment rate or the Default Rate
(whichever is higher).
The Borrower agrees to pay interest under this clause 17.3 on demand
from the Facility Agent.
Part 5 Obligations in relation to Loan Notes
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18 Register
18.1 Appointment of Registrar
The Borrower appoints the Facility Agent as the Registrar of the Loan
Notes on the terms and conditions of this agreement and the Loan Note
Deed Poll and the Facility Agent accepts that appointment.
18.2 Establishment and maintenance of Register
The Registrar agrees to establish, maintain and make entries into the
Register as agent of the Borrower in accordance with this agreement and
the Loan Note Deed Poll. However, the Registrar is not a trustee and
has no fiduciary duties in its capacity as Registrar nor is the
Registrar liable for its acts or omissions except to the extent of its
gross negligence or wilful misconduct.
18.3 Location of Register
The Register must be established and maintained in the place set out in
the Details under "Register" (unless the Borrower agrees another
place).
18.4 Information required in Register
The Registrar must enter the following information in the Register, to
the extent it has been notified of such information:
(a) the number of Loan Notes held by a Financier; and
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(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 32
26 February 2004
(b) the Facility in respect of which each Loan Note is issued; and
(c) the issue date of each Loan Note (being the day on which the
Loan Note is issued by entering it in the Register); and
(d) the name and address of each Financier who is an initial
holder of a Loan Note and each Financier to whom each Loan
Note is subsequently transferred (which must be the same as
specified for that Financier in this agreement or a
Substitution Agreement); and
(e) the Final Redemption Date for the Facility in respect of which
each Loan Note was issued; and
(f) details of all transfers, assignments or substitutions
(including date, amount and parties); and
(g) the Financier's tax file number(if provided); and
(h) each Interest Payment Date for each Loan Note; and
(i) any other information which the Borrower and the Registrar
consider necessary or desirable.
18.5 Register is paramount
No notice of any trust or other interest in any Loan Note will be
entered in the Register. The Borrower, the Facility Agent and the
Registrar (if the Facility Agent is not the Registrar) need not take
notice of any other interest in, or claim to, a Loan Note, except as
ordered by a court of competent jurisdiction or required by law.
18.6 Update and correction of Register
The Registrar agrees to:
(a) update the Register when it is notified of any change in any
of the details recorded in respect of a Financier under clause
18.4 ("Information required in Register"); and
(b) correct the Register if it becomes aware that any details in
the Register are incorrect or incomplete.
18.7 Inspection of Register
Each Financier and the Borrower may inspect the Register:
(a) on prior reasonable notice to the Registrar; and
(b) between 9.30 am and 4.30 pm on the day on which business is
generally carried on in the place where the Register is kept.
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26 February 2004
18.8 Certified extracts from Register available
If a Financier asks, the Registrar agrees to provide to the Financier a
certified extract of the information entered in the Register in
relation to the Financier and the Loan Notes held by it.
18.9 Retirement or removal of Registrar
The Facility Agent may not retire as Registrar, and the Borrower may
not remove the Registrar unless the Facility Agent has retired, or been
removed, and a successor Facility Agent has been appointed in
accordance with this agreement. Upon appointment of the successor
Facility Agent,
(a) the Registrar is taken to have retired; and
(b) the successor Facility Agent is taken to have been appointed
by the Borrower as the successor Registrar.
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19 Obligations in relation to offer or sale of Loan Notes
19.1 No disclosure document
Each Financier acknowledges that no disclosure document in relation to
the Loan Notes has been lodged with the Australian Securities and
Investments Commission.
19.2 Restrictions on offer and sales of Loan Notes
Each Financier agrees that it will not:
(a) directly or indirectly offer, sell or transfer a Loan Note or
distribute any disclosure document, prospectus, circular,
advertisement or other offering material relating to the Loan
Note in any jurisdiction except under circumstances that will
result in compliance with the laws of that jurisdiction; or
(b) make any offer or invitation for the sale or transfer a Loan
Note in Australia unless such offer or invitation does not
require disclosure to investors under Part 6D.2 of the
Corporations Xxx 0000 (C'th); or
(c) circulate or issue a disclosure document, prospectus or other
offering material relating to a Loan Note in Australia which
requires lodging under Chapter 6D of the Corporations Xxx 0000
(C'th).
19.3 Financiers to observe laws
Each Financier agrees to comply with laws in any jurisdiction in which
it may subscribe for, offer, sell or transfer Loan Notes. Neither the
Borrower nor the Facility Agent has any responsibility for obtaining
any authorisations a Financier requires in connection with the
subscription, offer, sale or transfer of Loan Notes.
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(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 34
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20 Obligations in relation to initial public offer
20.1 Mandated Lead Arranger and Underwriter representations
Each Mandated Lead Arranger and Underwriter represents and warrants
that:
(a) on behalf of the Borrower, it made offers for the subscription
of Loan Notes and corresponding participations to offerees,
each of whom the officers of the Mandated Lead Arranger and
Underwriter involved in the day-to-day syndication process
reasonably believed after making reasonable enquiries, at the
time of the offer, was carrying on a business of providing
finance, or investing or dealing in securities, in the course
of operating in financial markets; and
(b) together with offers made by the other Mandated Lead Arrangers
and Underwriters, those offers were made to at least 10
persons; and
(c) the officers of the Mandated Lead Arranger and Underwriter
involved in the day-to-day syndication process reasonably
believed after making reasonable enquiries each offeree was
not an Associate of any of the other offerees, the other
Mandated Lead Arrangers and Underwriters, the Facility Agent
or the Borrower.
20.2 Borrower's representations and obligations
The Borrower represents and warrants that none of the offerees referred
to in clause 20.1(a) (as disclosed to it by the Mandated Lead Arranger
and Underwriter) was an Associate of the Borrower and agrees to:
(a) provide the Facility Agent and the Mandated Lead Arrangers and
Underwriters with the names of each of its Associates; and
(b) notify the Facility Agent and the Mandated Lead Arrangers and
Underwriters immediately if any proposed transferee of Loan
Notes or Substitute Financier disclosed to it is known or
suspected by it to be an Associate of the Borrower.
20.3 Financier representations
Each initial Financier (being a Financier who is initially a party to
this agreement (other than the Mandated Lead Arrangers and
Underwriters) or who enters into a Substitution Agreement before the
end of general syndication of the Facilities) represents and warrants
that:
(a) an offer to participate in the Facility and to subscribe for
the Loan Notes in accordance with this agreement was made to
it by a Mandated Lead Arranger and Underwriter on behalf of
the Borrower; and
(b) it was at the time of the offer, and will be at the time of
issue to it of a Loan Note, carrying on a business of
providing finance, or investing or dealing in securities, in
the course of operating in financial markets; and
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(c) except as disclosed to the Borrower, it is not, and at the
time it acquires a Loan Note it will not be, so far as the
relevant employees of the Financier who are involved in the
day to day origination or administration of the Loan Notes
have actual knowledge, an Associate of any other person which
was offered a Loan Note, a Mandated Lead Arranger and
Underwriter, the Facility Agent or the Borrower.
20.4 Each Finance Party to provide further information
At the cost of the Borrower, each Finance Party will, so far as it is
reasonably able to do so, do or provide the things (including
information) which the Borrower asks it to do or provide in connection
with the offer made to it to participate in the Facility and subscribe
for Loan Notes in accordance with this agreement, if the Borrower
considers them practicable and necessary to ensure that the
requirements of section 128F of the Tax Act are satisfied, provided
that nothing in this clause requires a Finance Party to disclose
information or details of its business or tax affairs which it
reasonably considers to be confidential. The obligations of each
Finance Party to provide information pursuant to this clause shall
cease in accordance with section 262A of the Tax Act.
Part 6 Syndication provisions
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21 Scope of relationships
21.1 Appointment
Each Financier appoints the Facility Agent to act as its agent in
connection with the Bank Finance Documents.
21.2 Extent of authority and obligations
Each Financier irrevocably authorises the Facility Agent to:
(a) enter into the Bank Finance Documents (other than this
agreement); and
(b) take action on the Financier's behalf in accordance with this
agreement and the other Bank Finance Documents.
The Financiers acknowledge that the Facility Agent has no obligations
except those expressly set out in the Bank Finance Documents.
21.3 Acceptance by Facility Agent
The Facility Agent agrees to act as the agent of the Financiers in
connection with the Bank Finance Documents in accordance with this
agreement.
21.4 Binding nature of relationship
Each Financier agrees:
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(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 36
26 February 2004
(a) to be bound by anything properly done or properly not done by
the Facility Agent in accordance with the Bank Finance
Documents, and whether or not the Financier gave an
instruction or approved of the thing done or not done; and
(b) at the Borrower's request, to ratify anything properly done or
properly not done by the Facility Agent in accordance with
this agreement.
21.5 Excluded roles and duties
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 Financier, the Borrower or any other person, except as expressly
set out in any Bank Finance Document.
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22 How and when the Facility Agent acts
22.1 After consultation and instructions
If the Facility Agent proposes to act on any of the matters referred to
or listed in this clause 22.1, it agrees to:
(a) consult the Financiers on the proposal; and
(b) take action (including Enforcement Action) if, and
only if, it receives instructions to do so from:
(i) all the Financiers - on matters listed in clause 22.2
("Matters requiring instructions from all
Financiers"); and
(ii) a Majority of Financiers - on matters listed in
clause 22.3 ("Matters requiring instructions from a
Majority of Financiers").
22.2 Matters requiring instructions from all Financiers
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 (other than a
change in a Financier's Commitment arising from a substitution
under clause 30 ("Substitution of Financiers and transfer of
Loan Notes"));
(c) a change to an Availability Period;
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(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 37
26 February 2004
(d) a waiver of a default referred to in clause 7.1(a) of the Deed
of Common Terms (payment - Transaction Document) in relation
to a payment arising under a Bank Finance Document;
(e) a change to the definition of "Interest Rate" (including any
Margin) or a change to the definition of "Default Rate";
(f) a change to the due currency of any payment under a Bank
Finance Document;
(g) a change to a Final Redemption Date or the extension of a
previously determined payment date;
(h) a change to the amount or timing of any fee or other amount
payable to the Financiers;
(i) a change to the definition of Majority of Financiers;
(j) the exercise of any discretion in distributing amounts under
clause 29.1 ("How Facility Agent is to distribute");
(k) a change to clauses 22.1 to 22.4 ("How and when the Facility
Agent acts"), clause 29 ("Distributions of payments") and
clause 32.1 ("No dealing by Borrower"); and
(l) the exercise of any right, power or discretion under a Bank
Finance Document that expressly requires the approval of all
Financiers.
22.3 Matters requiring instructions from a Majority of Financiers
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 Financiers in connection with clause 3.8 of the
Deed of Common Terms;
(b) the waiver of any breach or other non-performance of
obligations by the Borrower in connection with any Bank
Finance Document (other than the Deed of Common Terms and the
Guarantees or any obligation in the Deed of Common Terms
incorporated by reference in any other Bank Finance Document)
other than a waiver listed in clause 22.2 ("Matters requiring
instructions from all Financiers");
(c) a variation of a Bank Finance Document (other than the Deed of
Common Terms or the Guarantees or any terms of the Deed of
Common Terms incorporated by reference in any other Bank
Finance Document) other than a variation listed in clause 22.2
("Matters requiring instructions from all Financiers"); or
(d) the exercise of any right, power or discretion under a Bank
Finance Document that expressly requires the approval of a
Majority of Financiers.
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(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 38
26 February 2004
22.4 Overriding instructions
In relation to all matters other than those under clause 22.2 ("Matters
requiring instructions from all Financiers") and clause 24.5 ("Facility
Agent to act on Financier's request") and subject to the Deed of Common
Terms, a Majority of Financiers may instruct the Facility Agent and, if
they do, the Facility Agent agrees to act in accordance with the
instructions.
22.5 Without consultation or instructions
In any case where the Facility Agent does not require instructions
under clause 22.1 ("After consultation and instructions") or does not
receive instructions or requests under clause 22.4 ("Overriding
instructions") or clause 24.5 ("Facility Agent to act on Financier's
request"), the Facility Agent may exercise its rights in its capacity
as agent for the Financiers and comply with its obligations in that
capacity as it sees fit. It need not consult any Financiers before
doing so.
22.6 Facility Agent's actions
Whenever the Facility Agent:
(a) consults the Financiers 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
lawful and in accordance with this agreement; and
(c) exercises its rights in its capacity as agent of the
Financiers or takes any other action, it agrees subject to
clause 22.6(b), to take into account the interests (in its
absolute opinion based upon the information which it has at
the time) of the Financiers taken as a whole.
22.7 Financier's instructions
Whenever a Financier 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.
Whenever a Financier gives instructions which are inconsistent with the
instructions of the Majority of Financiers, the Financier consents to
the Facility Agent acting in accordance with the instructions of the
Majority of Financiers, despite the Financier's instructions, except in
relation to matters under clause 22.2 ("Matters requiring instructions
from all Financiers") or clause 24.5 ("Facility Agent to act on
Financier's request") or where a Bank Finance Document otherwise
provides.
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(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 39
26 February 2004
If the Facility Agent specifies in its notice seeking instructions that
a failure to respond will be taken to be a consent to the proposed
action and if a Financier does not give instructions in relation to the
proposed action within any time period specified by the Facility Agent,
the Financier is taken to have instructed the Facility Agent to take
the proposed action.
22.8 Amendments
Each Finance Party authorises the Facility Agent to agree with the
other parties to a Bank Finance Document to a variation or change of
the Bank Finance Document if:
(a) all Financiers (as required under clause 22.2) ("Matters
requiring instructions from all Financiers") or a Majority of
Financiers (as required under clause 22.3) ("Matters requiring
instructions from a Majority of Financiers") have instructed,
or are taken to have instructed, the Facility Agent that they
consent to, or approve of, the variation or change; or
(b) the variation or change does not relate to anything referred
to in clause 22.2 ("Matters requiring instructions from all
Financiers"), or clause 22.3 ("Matters requiring instruction
from a Majority of Financiers") and the Facility Agent is
satisfied that the variation or change is made to correct a
manifest error or an error of a minor nature or that the
variation or change is only of a formal technical nature.
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23 Facility Agent's obligations to give notices and copies
23.1 Facility Agent's obligations
The Facility Agent agrees:
(a) (conditions satisfied) to notify each Financier promptly after
it has received the last of the items in schedule 2
("Conditions precedent") in form and substance satisfactory to
the Financiers; and
(b) (subscription requirements) to notify each Financier of the
contents of a Utilisation Notice in relation to a Facility and
the Financier's Proportion of the requested subscription price
of Loan Notes under that Facility promptly after it receives
the Utilisation Notice. However, the Facility Agent does not
have to notify any Financier who does not have any Commitment
in relation to that Facility; and
(c) (default and review) to notify each Financier of an Event of
Default, Potential Event of Default or Review Event promptly
after the Facility Agent becomes aware of it; and
(d) (material notices received) to give the Financier promptly
after receiving it a copy of each notice or other
communication or document which is received from an Obligor or
a Guarantor in connection with a Bank Finance Document (other
than the Deed of Common Terms and the Guarantees) and which
the Facility Agent considers material; and
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(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 40
26 February 2004
(e) (material notices given) to give the Financier promptly a copy
of any notice or document which the Facility Agent gives the
Borrower in connection with the Bank Finance Documents and
which the Facility Agent considers material; and
(f) (action taken) to give the Financier promptly a report on
anything done after receiving instructions from the Financiers
under clause 22 ("How and when the Facility Agent acts").
23.2 Awareness of certain events
The Facility Agent is taken not to be aware of an Event of Default,
Potential Event of Default or Review Event 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, Potential Event of Default or Review Event has
occurred; or
(b) the Facility Agent receives a notice from the Borrower
regarding an Event of Default, Potential Event of Default or
Review Event.
23.3 Assuming compliance
Until it becomes aware in accordance with clause 23.2 ("Awareness of
certain events"), the Facility Agent may assume that no Event of
Default, Potential Event of Default or Review Event has occurred and
that the Obligors and Guarantors are observing all their obligations in
connection with the Bank Finance Documents and need not inquire whether
that is, in fact, the case.
23.4 Limit on disclosure obligations
Despite anything else in the Bank Finance Documents, the Facility Agent
is not obliged to disclose information or provide documents relating to
the Obligors, the Guarantors or any other person if the Facility Agent
reasonably believes that to do so would constitute a breach of law or
duty of confidentiality.
23.5 No further obligations
The Financiers agree that the Facility Agent has no other obligations,
other than those in clause 23.1 ("Facility Agent's obligations")
respectively, either initially or on a continuing basis:
(a) to keep itself informed, or to inform a Financier, about the
performance by the Obligors and the Guarantors of their
obligations under the Bank Finance Documents; or
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(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 41
26 February 2004
(b) to provide a Financier with any information or documents with
respect to the Obligors and the Guarantors (whether coming
into its possession before or after accommodation is provided
under the Bank Finance Documents).
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24 Facility Agent's relationship with Financiers
24.1 Individual responsibility of Financiers
Each Financier acknowledges for the benefit of the Facility Agent and
each party who is a Financier at the date of this agreement (in this
clause 24, the "underwriters") and their respective Related Entities
that the Financier has:
(a) entered into the Bank Finance Documents and subscribed for, or
taken a transfer of, a Loan Note; and
(b) made and will continue to make its own independent
investigation of the financial condition and affairs of the
Obligors and the Guarantors based on documents and information
which it considers appropriate; and
(c) made its own appraisal of the creditworthiness of the Obligors
and Guarantors; 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 Facility Agent or any underwriter (in whatever
capacities) or any of their Related Entities or on any representation
made by any of them.
24.2 Exoneration
Neither the Facility Agent, an underwriter nor any of their directors,
officers, employees, agents, attorneys or Related Entities is
responsible or liable to any Financier:
(a) because an Obligor or a Guarantor does not perform its
obligations under the Bank Finance Documents; or
(b) for the financial condition of an Obligor or a Guarantor; or
(c) because any statement, representation or warranty in a Bank
Finance Document or the 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
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(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 42
26 February 2004
(e) for acting or not acting in accordance with the instructions
of a Majority of Financiers or all the Financiers, or in
accordance with the Facility Agent's directions, as the case
may be.
Without limiting this clause 24.2, neither the Facility Agent nor any
underwriter is responsible or liable to any Financier for anything done
or not done in connection with the Bank Finance Documents by the
Facility Agent, an underwriter, or their directors, officers,
employees, agents, attorneys or Related Entities except, in the case of
the Facility Agent, to the extent that the act or omission amounts to
gross negligence or wilful misconduct by the Facility Agent, or a gross
or wilful breach by it of its obligations in the capacity of agent of
the Financiers.
24.3 Facility Agent in capacity of a Financier
If the Facility Agent or an underwriter is also a Financier, then in
its capacity as a Financier it:
(a) has the same rights and obligations under the Bank Finance
Documents as the other Financiers; and
(b) may exercise those rights and agrees to comply with those
obligations independently from its role as Facility Agent or
an underwriter as if it were not the Facility Agent or an
underwriter.
24.4 Dealing in different capacities
The Facility Agent may:
(a) engage in any kind of banking, trust or other business with an
Obligor or a Guarantor or the Financiers or any of their
Related Entities; and
(b) accept fees and other consideration from an Obligor, a
Guarantor or any of their Related Entities for services in
connection with the Bank Finance Documents or any other
arrangement; and
(c) act as Registrar, in accordance with this agreement and the
Loan Note Deed Poll,
as if it were not the Facility Agent and without having to account to
the Financiers for any income it derives in doing so.
The Financiers release the Facility Agent from any obligation the
Facility Agent might otherwise have to the Financiers in relation to
these matters.
In acting as agent for the Financiers, the Facility Agent is to be
regarded as acting through its agency division which is to be treated
as a separate entity from any other of its divisions or departments.
If information is received by another division or department of the
Facility Agent, it may be treated as confidential to that division or
department and the Facility Agent is not taken to have notice of it.
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(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 43
26 February 2004
24.5 Facility Agent to act on Financier's request
The Facility Agent agrees to:
(a) make a demand under clause 11 ("Increased costs"); or
(b) give notices under clause 12 ("Illegality or impossibility");
or
(c) make a demand under clause 16 ("Costs and indemnities"); or
(d) make a demand under clause 17 ("Interest on overdue amounts");
or
(e) make a demand under clause 25.2 ("The Borrower's back-to-back
indemnity")
promptly on request from a Financier. The other Financiers may not
countermand such a request.
24.6 Restriction on Financiers exercising rights
Subject to the Deed of Common Terms, a Financier may exercise a right
(including enforcing rights) against an Obligor or a Guarantor under
any Bank Finance Document independently of the Facility Agent only if:
(a) the Facility Agent has been instructed in accordance with
clause 22 ("How and when the Facility Agent acts") to exercise
the right; and
(b) the Facility Agent has not done so within a reasonable time,
if relevant, after being put in funds under clause 25.3
("Funds before acting").
24.7 Notice of transfer
The Facility Agent may treat each Financier as the holder or obligor of
the rights and obligations of that Financier for all purposes under the
Bank Finance Documents until a Substitution Agreement (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.
24.8 Facility Agent and Financier's role
(a) The Facility Agent will be agent for the Financiers except as
described in clause 24.8(c).
(b) Each Financier authorises the Facility Agent to exercise the
rights, powers, authorities and discretions specifically given
to the Facility Agent under or in connection with the Bank
Finance Documents together with any other incidental rights,
powers, authorities and discretions.
(c) Where the Facility Agent provides services in connection with
the administration of the Loan Notes, that is when it
calculates rates and amounts, keeps records, receives and
distributes payments and information and receives and deals
with Utilisation Notices and Interest Payment Notices, it does
not provide those services as agent for the Financiers.
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(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 44
26 February 2004
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25 Funding of Facility Agent
25.1 Financiers to indemnify against non-payment
Each Financier individually, in accordance with its Proportion,
indemnifies the Facility Agent against the non-receipt of a payment
from the 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 the Borrower under clause 16
("Costs and indemnities"); and
(b) does not receive it within seven days after the claim is made.
Each Financier agrees to pay amounts due under this indemnity to the
Facility Agent on demand from the Facility Agent.
25.2 The Borrower's back-to-back indemnity
The Borrower indemnifies each Financier against any liability or loss
arising from, and any Costs incurred in connection with, the Financier
making a payment under clause 25.1 ("Financiers to indemnify against
non-payment").
The Borrower agrees to pay amounts due under this indemnity on demand
from the Facility Agent.
25.3 Funds before acting
This clause 25.3 applies if the Facility Agent proposes to exercise a
right arising in its capacity as agent of the Financiers or take any
other action (whether or not at the instruction of a Majority of
Financiers or all Financiers) in connection with the Bank Finance
Documents, and the Facility Agent reasonably considers this could
result in the Borrower becoming obliged to pay an amount under clause
16 ("Costs and indemnities"). In that case, the Facility Agent:
(a) may request the Financiers to pay to the Facility Agent, an
amount 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 under this clause 25.3 rateably in
accordance with its Proportion.
25.4 If a Financier does not fund
If a Financier does not fund the Facility Agent under clause 25.3
("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
25.3 ("Funds before acting") are taken to be satisfied. Each Financier
agrees that:
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(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 45
26 February 2004
(a) a payment by a Financier to the Facility Agent under this
clause 25.4 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.
25.5 Borrower's costs obligation not affected
A payment by a Financier under this clause 25 ("Funding of Facility
Agent") does not relieve the Borrower of its obligations under clause
16 ("Costs and indemnities") or clause 17 ("Interest on overdue
amounts") or any other Obligor or Guarantor of its obligations under
any corresponding provisions of any Bank Finance Document.
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26 Change of Facility Agent
26.1 Retirement
The Facility Agent may retire by giving the Borrower and each Financier
notice of its intention to do so, specifying the date it proposes the
retirement to take effect.
26.2 Removal
A Majority of Financiers may end the appointment of the Facility Agent
as agent of each Financier under this agreement by giving the Facility
Agent at least 30 days' written notice. If the Facility Agent breaches
any material obligation under a Bank Finance Document and does not
correct the breach within a reasonable time, a Majority of Financiers
may end the appointment on a lessor period of notice determined by
them.
26.3 When retirement or removal of Facility Agent takes effect
The retirement or removal of the Facility Agent takes effect only when:
(a) a successor Facility Agent approved by the Borrower (which
approval may not be delayed or withheld unreasonably) has been
appointed; and
(b) the successor Facility Agent has obtained title to or obtained
the benefit of any Security Interest held by it in its
capacity as agent in a manner approved by all the Financiers.
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(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 46
26 February 2004
26.4 Permitted successors
The successor Facility Agent may be:
(a) a Financier or a Related Entity of 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 Facility Agent or (in the case of removal) by a
Majority of Financiers.
26.5 Obligations of retiring and successor Facility Agents
When a successor Facility Agent is appointed, the retiring Facility
Agent is discharged from any further obligation under the Bank Finance
Documents. This discharge does not prejudice any accrued right or
obligation. The new Facility 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 Facility Agent had been a party to
the Bank Finance Documents at the dates of those documents.
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27 Miscellaneous provisions relating to agency
27.1 Delegation by Facility Agent
The Facility Agent may employ agents and attorneys and may delegate any
of its rights or obligations in the capacity as agent of the
Financiers, without notifying any person of the delegation.
27.2 Duties when delegating
The Facility Agent agrees to exercise reasonable care in selecting
delegates and to supervise their actions.
27.3 Responsibility for delegates
The Facility Agent, is responsible for any loss arising due to the
gross negligence or wilful misconduct by the delegate or gross or
wilful breach by the delegate of their obligations, if it has appointed
a delegate (without instructions from Financiers).
27.4 Facility Agent may rely on communications and opinions
In relation to the Facilities and any Bank Finance Document, the
Facility Agent may rely:
(a) on any communication or document they believe 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.
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(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 47
26 February 2004
27.5 Force majeure
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 or as directed by the Facility Agent) 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 Financier promptly
after it determines that it is unable to act.
27.6 No responsibility for force majeure
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 27.5 ("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.
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28 Entitlements to payments
Unless expressly stated otherwise, the Borrower agrees to pay all
amounts due under the Bank Finance Documents (other than the Deed of
Common Terms and the Guarantees) to the Facility Agent for the account
of all Financiers except that an amount payable in connection with:
(a) clause 9.2(a) ("Other fees") is to be paid for the account of
the Facility Agent; and
(b) clauses 9.2(b) ("Other Fees") is to be paid for the account of
the Mandated Lead Arrangers and Underwriters ; and
(c) clause 10.1(c) ("Payments by the Borrower") is to be paid for
the account of the relevant Indemnified Party; and
(d) clause 10.2 (c) ("Withholding tax - Payments by Facility Agent
to Financier"), clause 11.1 ("Compensation") or clause 12
("Illegality or impossibility") is to be paid for the account
of the affected Financier; and
(e) clause 10.2(d) ("Withholding tax - Payments by Facility Agent
to Financier") is to be paid for the account of the Facility
Agent; and
(f) clause 16.1 ("Costs and indemnities - What the Borrower agrees
to pay") is to be paid to for the account of the party that
incurs the Costs, or pays the Taxes or fees; and
(g) clause 16.4 ("Payment of third party losses") is to be paid
for the account of the party whose employee, officer, agent or
contractor suffers the liability, loss or Costs; and
(h) clause 16.6 ("GST") is to be paid for the account of the
relevant Finance Party; and
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(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 48
26 February 2004
(i) clause 17 ("Interest on overdue amounts") is to be paid for
the account of the party entitled to the overdue amount; and
(j) an indemnity is to be paid for the account of the party
entitled under the indemnity.
If the Borrower is to pay an amount for the account of a particular
party, the Borrower is taken to have satisfied their obligation to that
party by paying the Facility Agent (or its nominee).
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29 Distribution of payments
29.1 How Facility Agent is to distribute
Subject to clause 28 ("Entitlement to payments"), the Facility Agent
agrees to distribute amounts paid to it under the Bank Finance
Documents as follows:
(a) first, to the Facility Agent itself for all amounts due to it
in its capacity as agent under any Bank Finance Document; and
(b) secondly, to each Financier 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 Financiers at that time
(proportions are to be expressed as percentages and rounded to
the nearest four decimal places),
or in such other manner as the Facility Agent determines.
29.2 Excess distributions - contingencies
If a Financier receives a distribution under clause 29.1 ("How Facility
Agent is to distribute") on account of an amount which may become due
for payment by the Financier to a third party and the right of the
third party to claim on the Financier ends without a claim for the full
distributed amount having been made, then the Financier agrees to
promptly pay the Facility Agent an amount equal to the unclaimed
portion of the distributed amount.
29.3 Postponement of non-funding Financiers
This clause 29.3 applies despite anything in clause 29.1 ("How Facility
Agent is to distribute") if the Facility Agent recovers an amount
through exercising the Facility Agent's rights in its capacity as agent
of the Financiers as a result of being placed in funds under clause
25.3 ("Funds before acting"). In that case, any Financier who did not
fund the Facility Agent is not entitled to receive any part of the
recovered amount until each Financier who funded receives an amount
equal to the total of:
(a) the Amount Owing for that funding Financier; and
(b) the amount of any loan principal and interest due to that
funding Financier under clause 25.4 ("If a Financier does not
fund").
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(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 49
26 February 2004
In giving effect to this clause 29.3, the Facility Agent is to be taken
to have made a determination under clause 29.1 ("How Facility Agent is
to distribute"). By signing this agreement or a Substitution Agreement,
each Financier is taken to have instructed the Facility Agent under
clause 22.2 ("Matters requiring instructions from all Financiers") to
make the determination.
29.4 Manner of distribution
The Facility Agent agrees to distribute amounts to each Financier
promptly after receipt in immediately available funds to that
Financier's office identified in the Details or another office notified
to the Facility Agent by the Financier.
29.5 Distributions relying on assumed receipt
If a payment is due to be made by a party (in this clause "party
liable") to the Facility Agent (in this clause "payer"), the payer:
(a) may assume that the party liable will make the payment, unless
the party liable notifies the payer at least one Business Day
before the due date that the payment will not be made; and
(b) in reliance on the assumption in this clause 29.5, may (but
need not) make a corresponding payment on the due date to
another party (in this clause the "recipient").
If the payer makes the corresponding payment and does not actually
receive the amount due to be paid to it, then:
(a) the recipient agrees to refund it to the payer on demand; and
(b) the party liable agrees to pay the payer on demand the amount
and the payer's Costs (including interest) in funding the
corresponding payment from the date when it was made until the
date the payer receives the refund.
This clause 29.5 does not affect any rights the payer and the recipient
may have against the party liable.
29.6 Financier to pay over amounts received directly
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.
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(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 50
26 February 2004
The amount paid by the Financier to the Facility Agent under this
clause 29.6 is to be taken to have been received by the Facility Agent
and not by the Financier who receives it (and the Amount Owing to the
Financier is to continue to include that amount).
If the Financier is obliged to make a payment under this clause 29.6,
the Borrower indemnifies the Financier against loss suffered by the
Financier if the liability of the entity which makes a payment to the
Financier is held to have been discharged despite the operation of this
clause 29.6.
29.7 Pro-rata refunds
If a Financier who receives an amount referred to in clause 29.6
("Financier to pay over amounts received directly") is obliged to
refund any part of it under laws relating to an Insolvency Event of an
entity, then each Financier to which that amount was distributed under
this clause 29 ("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.
29.8 Proceeds of litigation
Despite clause 29.6 ("Financier to pay over amounts received
directly"), where a Financier recovers an amount in legal proceedings
it has brought as permitted by clause 24.6 ("Restriction on Financiers
exercising rights"), the Financier 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 Financier takes proceedings, the recovered amount is
to be shared by each of those Financiers 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 Financiers who take
proceedings.
In each case, any surplus is to be paid to the Facility Agent.
29.9 Application of payments
The Facility Agent and each Financier may apply amounts distributed to
them for their own account towards satisfying obligations under the
Bank Finance Documents in the manner they see fit, unless the Bank
Finance Documents expressly provide otherwise. This appropriation
overrides any purported appropriation by an Obligor, a Guarantor or any
other person.
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30 Substitution of Financiers and transfer of Loan Notes
30.1 Procedure for substitution and transfer
A Financier may:
(a) effect a novation of some or all of its obligations under the
Bank Finance Documents (other than the Loan Notes); and
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(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 51
26 February 2004
(b) transfer a corresponding number of Loan Notes (if any).
A novation and transfer under this clause 30 ("Substitution of
Financiers and transfer of Loan Notes") may only be made on the
conditions that:
(i) the novation and transfer is effected together; and
(ii) the Financier ("Retiring Financier") transfers the number of
Loan Notes which have an aggregate principal amount
outstanding equal to the Utilised Commitment being novated;
and
(iii) the Retiring Financier notifies the Borrower of the person who
proposes to assume the obligations and acquire the Loan Notes
("Substitute Financier"); and
(iv) the Borrower consents. The Borrower may only withhold its
consent if it knows or suspects that the Substitute Financier
is an Associate of the Borrower. If the Borrower does not
respond within 10 Business Days (or a lesser period specified
by the Facility Agent to apply before the end of general
syndication of the Facilities) after receiving notice under
paragraph (iii), it is taken to have consented; and
(v) the Retiring Financier and the Substitute Financier enter into
a Substitution Agreement. Four counterparts of the
Substitution Agreement must be signed by the Retiring
Financier and the Substitute Financier and given to the
Facility Agent on or before the sixth Business Day before the
substitution is to take effect.
30.2 Facility Agent authorised to sign Substitution Agreement
The Facility Agent is irrevocably authorised by all parties to this
agreement other than the Retiring Financier to:
(a) execute the Substitution Agreement on their behalf;
(b) as Registrar, update the Register; and
(c) do anything else the Facility Agent considers appropriate to
effect the substitution.
30.3 Delivery of copies
When the Facility Agent receives an appropriately completed
Substitution Agreement under clause 30.1 ("Procedure for substitution
and transfer"), it agrees to:
(a) sign all the counterparts on behalf of all the parties to this
agreement other than the Retiring Financier; and
(b) retain one counterpart and deliver the other counterparts to
the Borrower, the Retiring Financier and the Substitute
Financier; and
(c) notify the other Financiers of the substitution; and
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(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 52
26 February 2004
(d) update the Register.
30.4 When a Substitution Agreement may not be given
A Retiring Financier may not give a Substitution Agreement during the
period from when a Utilisation Notice has been given until the day
after the Utilisation Date under that Utilisation Notice.
30.5 Borrower not liable on substitution or changed payment office
If a Financier enters into a Substitution Agreement, assigns or
transfers its rights under the Bank Finance Documents or changes its
lending office identified in the Details or a Substitution Agreement,
the Borrower is not required to pay any additional amount (by way of
Costs (except additional amounts payable under clause 10 ("Withholding
Tax")), Taxes (except Accountable Taxes), fees or charges) which arises
as a consequence of the substitution, assignment, transfer or change
and of which the Financier or Substitute Financier was aware or ought
reasonably to have been aware. For this purpose, "awareness" is to be
assessed on the basis of any published proposals current and reasonably
available to the Financier at the date of the substitution or change.
30.6 Prohibition on transfer of Loan Notes
Loan Notes may not be transferred except in accordance with this clause
30 ("Substitution of Financiers and transfer of Loan Notes").
30.7 Substitution fee
The Substitute Financier agrees to pay the Facility Agent a fee of
A$1500 on entering into the Substitution Agreement after the end of
general syndication (as determined by the Facility Agent).
Part 7 General
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31 Relationships between parties
31.1 Borrower may assume parties have complied
In relation to any act of the Facility Agent, the Borrower 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 Borrower, all action taken by the
Facility Agent under the Bank Finance Documents is taken to be
authorised under this agreement unless the Borrower has actual notice
to the contrary.
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(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 53
26 February 2004
31.2 Facility Agent is not responsible for Financier's breach
The Facility Agent is not responsible to the Borrower if a Financier
(except a Financier that is also the Facility Agent) does not comply
with its obligations under the Bank Finance Documents .
31.3 No responsibility for other's obligations
If a Financier does not comply with its obligations under a Bank
Finance Document, this does not relieve any other Finance Party or the
Borrower of any of their respective obligations. No Finance Party is
responsible for the obligations of another Finance Party and no
Financier is responsible for the obligations of any other Financier.
31.4 Several interests
The interests of the Facility 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.
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32 Dealing with interests
32.1 No dealing by Borrower
Subject to clause 36, the 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.
32.2 Dealings by Financier
Subject to clause 30 ("Substitution of Financiers and transfer of Loan
Notes"), a Financier may deal with its rights under the Bank Finance
Documents (including by assignment or participation) without the
consent of any other person. However, subject to clause 32.4
("Financiers and credit derivatives") and to clause 30 ("Substitution
of Financier's and transfer of Loan Notes") and provided an Event of
Default or a Potential Event of Default is not then subsisting, the
Borrower's consent is required if the following conditions are not
satisfied:
(a) the Financier will remain the financier of record in respect
of the Bank Finance Documents;
(b) the Financier will continue to conduct all administrative
activities (including collection of moneys owed and the
conduct of all negotiations and communications) in respect of
the Bank Finance Documents as agent; and
(c) the Financier will continue to have the same legal and
commercial relationship with the Borrower as before the
dealing and will be entitled and obliged to operate that
relationship in accordance with its ordinary business
practices as if the dealing had never occurred.
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(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 54
26 February 2004
32.3 Dealings by Facility Agent
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.
32.4 Financiers and credit derivatives
The Borrower acknowledges that a Financier may enter into credit
derivatives in managing its portfolio and agrees:
(a) that the Financier may disclose information relating to this
agreement, the Loan Notes and any agreements between a
Financier and the Borrower for the purpose of entering into or
exercising its rights under any such credit derivative
instruments; and
(b) to any related assignment by the Financier of any of its
rights under this agreement, the Loan Notes or any credit
derivative.
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33 Notices
33.1 Form
Unless expressly stated otherwise in the Bank Finance Document and
subject to clause 33.2 (d), all notices, certificates, consents,
approvals, waivers and other communications in connection with that
Bank Finance Document must be in writing, signed by an Authorised
Officer of the sender and marked for attention as set out or referred
to in the Details or, if the recipient has notified otherwise, marked
for attention in the way last notified.
33.2 Delivery
They must be:
(a) left at the address set out or referred to in the Details; or
(b) sent by prepaid post (airmail, if appropriate) to the address
set out or referred to in the Details; or
(c) sent by fax to the fax number set out or referred to in the
Details; or
(d) if by the Facility Agent, may be given by means of the ANZIB
eAgency website, access to which is restricted to the parties
to the Bank Finance Documents established by the Facility
Agent or other electronic means in a manner and subject to
rules established by the Facility Agent and agreed with the
Borrower as set out in this agreement.
However, if the intended recipient has notified a changed postal
address or changed fax number, then the communication must be to that
address or number.
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(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 55
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33.3 When effective
They take effect from the time they are received unless a later time is
specified in them.
33.4 Receipt - postal
If sent by post, they are taken to be received three days after posting
(or seven days after posting if sent to or from a place outside
Australia).
33.5 Receipt - fax
If sent by fax, they are taken to be received at the time shown in the
transmission report as the time that the whole fax was sent.
33.6 Receipt - eAgency
If sent by means of the ANZIB eAgency website, they are taken to be
received on the later of:
(a) a notice being posted on the ANZIB eAgency website; and
(b) receipt by the Facility Agent of a delivery receipt in respect
of an e-mail the Facility Agent has sent to the relevant
party's Nominated E-Mail Address notifying that the notice has
become available on the ANZIB eAgency website.
33.7 Receipt - general
Despite clauses 33.4 ("Receipt - postal"), 33.5 ("Receipt - fax") and
33.6 ("Receipt eAgency"), if they are received after 5pm in the place
of receipt or on a non-Business Day, they are taken to be received at
9am on the next Business Day.
33.8 Waiver of notice period
The Facility Agent may waive a period of notice required to be given by
the Borrower under this agreement.
33.9 ANZIB eAgency website
(a) The Borrower consents to the inclusion in the ANZIB
eAgency website of:
(i) the name of the Borrower;
(ii) a link to the web site of the Borrower.
(b) The Borrower and the Financiers acknowledge that the
Facility Agent will issue user identifiers, passwords
and other information necessary for access to the
ANZIB eAgency website to the Borrower and the
Financiers.
(c) Each of the Borrower and the Financiers undertake:
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(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 56
26 February 2004
(i) to ensure that all Access Information issued to it by
the Facility Agent is kept secure and confidential;
(ii) that it will only disclose Access Information to its
officers or employees who are involved in the
administration of the Facilities; and
(iii) agrees that the Facility Agency is not liable for any
liability, loss, damage, costs or expenses incurred
or suffered by them as a result of their access or
use of the ANZIB eAgency website or inability to
access or use the ANZIB eAgency website.
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34 General
34.1 Application to Bank Finance Documents
If anything in this clause 34 ("General") is inconsistent with a
provision in another Bank Finance Document, then the provision in the
other Bank Finance Document prevails for the purposes of that Bank
Finance Document.
34.2 Prompt performance
If a Bank Finance Document specifies when the 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.
34.3 Consents
The Borrower agrees to comply with all conditions in any consent the
Facility Agent or a Financier gives in connection with a Bank Finance
Document.
34.4 Certificates
The Facility Agent or a Financier may give the 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 matter, unless it is proved to be incorrect.
34.5 Set-off
At any time after an Event of Default and for so long as it subsists,
the Facility Agent or a Financier may set off any amount due for
payment by the Facility Agent or the Financier, respectively, to the
Borrower against any amount due for payment by the Borrower to the
Facility Agent or the Financier, respectively, under the Bank Finance
Document.
34.6 Discretion in exercising rights
The Facility Agent or a Financier may exercise a right or remedy or
give or refuse its consent under a Bank Finance Document in any way it
considers appropriate (including by imposing conditions), unless a Bank
Finance Document expressly states otherwise.
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(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 57
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34.7 Partial exercising of rights
If the Facility Agent or a Financier does not exercise a right or
remedy under a Bank Finance Document fully or at a given time, the
Facility Agent or the Financier may still exercise it later.
34.8 No liability for loss
Neither the Facility 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 under a Bank Finance Document.
34.9 Conflict of interest
The Facility Agent's or a Financier's rights and remedies under any
Bank Finance Document may be exercised even if this involves a conflict
of duty or the Facility Agent or Financier has a personal interest in
their exercise.
34.10 Remedies cumulative
The rights and remedies of the Facility Agent or a Financier under any
Bank Finance Document are in addition to other rights and remedies
given by law independently of the Bank Finance Document.
34.11 Indemnities
Any indemnity in a Bank Finance Document is a continuing obligation,
independent of the Borrower's other obligations under that Bank Finance
Document and continues after the Bank Finance Document ends. It is not
necessary for the Facility Agent or a Financier to incur expense or
make payment before enforcing a right of indemnity under a Bank Finance
Document.
34.12 Rights and obligations are unaffected
Rights given to the Facility Agent or a Financier under a Bank Finance
Document and the Borrower's liabilities under it are not affected by
anything which might otherwise affect them at law.
34.13 Inconsistent law
To the extent permitted by law, each Bank Finance Document prevails to
the extent it is inconsistent with any law.
34.14 Supervening legislation
Any present or future legislation which operates to vary the
obligations of the Borrower in connection with a Bank Finance Document
with the result that the Facility 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.
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(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 58
26 February 2004
34.15 Time of the essence
Time is of the essence in any Bank Finance Document in respect of an
obligation of the Borrower to pay money.
34.16 Variation and waiver
Unless this agreement expressly states otherwise, a provision of a Bank
Finance Document, or right created under it, may not be waived or
varied except in writing signed by the party or parties to be bound.
34.17 Confidentiality
Each Finance Party agrees not to disclose information provided by any
other party, that is not publicly available (including the existence of
or contents of any Bank Finance Document) except:
(a) to any person in connection with an exercise of rights or a
dealing with rights or obligations under a Bank Finance
Document (including when the Facility Agent or a Financier
consults other Financiers after a Potential Event of Default,
an Event of Default or Review Event or in connection with
preparatory steps such as negotiating with any potential
assignee or potential sub-participant or other person who is
considering contracting with the Financier in connection with
a Bank Finance Document or to any ratings agency for the
purposes of securitisation); or
(b) to a person considering entering into (or who enters into) a
credit swap with the Facility Agent or a Financier involving
credit events relating to the Borrower or any of its Related
Entities; or
(c) to officers, employees, legal and other advisers and auditors
of the Borrower, the Facility Agent or a Financier; or
(d) to any party to this agreement or any Related Entity of any
party to this agreement, provided the recipient agrees to act
consistently with this clause 34.17; or
(e) with the consent of the party who provided the information
(such consent not to be unreasonably withheld); or
(f) as required to be in compliance with any Directive or stock
exchange or regulatory authority.
Each party consents to disclosures made in accordance with this clause
34.17.
34.18 Further steps
The Borrower agrees to do anything the Facility Agent reasonably asks
(such as obtaining consents, signing and producing documents and
getting documents completed and signed):
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(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 59
26 February 2004
(a) to bind the Borrower and any other person intended to be bound
under the Bank Finance Documents;
(b) to enable the Facility Agent to register any power of attorney
in this agreement; or
(c) to show whether the Borrower is complying with this agreement.
34.19 Counterparts
This agreement may consist of a number of copies, each signed by one or
more parties to the agreement. If so, the signed copies are treated as
making up the one document.
34.20 Governing law
Each Bank Finance Document (other than the Deed of Common Terms and the
Guarantees) is governed by the law in force in the place specified in
the Details and the Facility Agent, the Borrower and each Financier
submit to the non-exclusive jurisdiction of the courts of that place.
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35 Interpretation
35.1 Definitions
Terms defined in the Deed of Common Terms have the same meaning when
used in this agreement and these meanings apply unless the contrary
intention appears:
Access Information means all user identifiers, passwords or other
information necessary for access to the ANZIB eAgency website.
Accountable Taxes means Taxes imposed by a Relevant Country other than
those which would not be required to be deducted by the Borrower if the
Facility Agent or relevant Financier provided the Borrower with any of
its name, address, registration number or similar details or any
relevant tax exemption or similar details.
Agency Fee has the meaning given to it in the Details.
Amending Deed means the Amendment and Restatement Deed dated 26
February 2004 between, amongst others, the Borrower, the Obligors, the
Partnership, the Senior Creditors specified in it, TXU Corp., and ANZ
Fiduciary Services Pty Ltd.
Amount Owing means, at any time for a Financier, 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 the Financier.
ANZIB eAgency website means the website maintained by the
Facility Agent from time to time for the purpose of providing certain
agency services. In respect of the Bank Finance Documents, access to
the ANZIB eAgency website is restricted so that the parties to the Bank
Finance Documents have access only to those web pages of the ANZIB
eAgency website applicable to the Bank Finance Documents.
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(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 60
26 February 2004
Arrangement Fee has the meaning given to it in the Details.
Associate has the meaning given in section 128F(9) of the Tax
Act.
Australian IWT means any Australian Taxes required to be
withheld or deducted from any interest payment under Division
11A of Part III of the Tax Act.
Authorised Officer means:
(a) in the case of a Finance Party, a director or secretary of the
Finance Party or an officer of that party whose title contains
the word "director", "chief", "head", "manager", "executive"
or "counsel" or "president" or a person performing the
functions of any of them, or any other person appointed by
that party as an Authorised Officer for the purposes of the
Bank Finance Documents; and
(b) in the case of the Borrower, a person appointed by the
Borrower as an Authorised Officer for the purposes of the Bank
Finance Documents.
Availability Period for a Facility has the meaning given to it
in the Details for that Facility.
Bank Finance Documents means the documents described as such
in the Details, any document which the Borrower acknowledges in writing
to be a Bank Finance Document and any other document connected with any
of them.
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 the 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 day by each of four or more institutions
chosen by the Facility Agent which provides 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 day, having regard, to
the extent possible, to the bid rates otherwise bid for Bills
of that tenor at or around that time.
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(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 61
26 February 2004
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 fourth
decimal place.
The Facility Agent may calculate a rate under paragraph (a) or (b)
before 11am on the first day of the Interest Period, but if the average
bid rate appears on the "BBSY" page by 11am and there is no obvious
error in it, the "BBSY" page rate applies as the Bank Xxxx Rate under
this agreement despite any calculation by the Facility Agent under
paragraph (a) or (b).
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 the person so described in the Details.
Business Day means a day on which banks are open for general
banking business in the place or places set out in the Details under
"Business Day place(s)" (not being a Saturday, Sunday or public holiday
in that place).
Commitment means, for a Financier and a Facility, the amount
set out as such for that Financier and that Facility in schedule 1
("Commitments") as reduced by the total of all cancellations in respect
of that Financier and that Facility.
Commitment Fee has the meaning given to it in the Details.
Commitment Letter means the letter from Westpac Banking
Corporation, Commonwealth Bank of Australia, Australia and New Zealand
Banking Group Limited and Citibank, N.A. to the Borrower dated 23
December 2003.
Controller has the meaning it has in the Corporations Xxx 0000
(C'th).
Costs includes costs, charges and expenses, including those
incurred in connection with advisers (including legal counsel).
Debt Refinance Date has the meaning given to it in the
Amending Deed.
Deed of Common Terms means the deed previously known as the
security trust deed dated 24 February 1999 executed by the TXU
Australia Holdings (Partnership) Limited Partnership, the Borrower, TXU
(No. 8) Pty Ltd, TXU (No. 9) Pty Ltd, TXU Australia Pty Ltd, TXU
Networks (Gas) Pty Ltd (formerly known as Westar Pty Ltd), TXU Pty Ltd
(formerly known as Kinetik Energy Pty Ltd), TXU Electricity Limited
(formerly known as Eastern Energy Limited), TXU Corp. (formerly known
as Texas Utilities Company), Citibank, N.A. and National Australia Bank
Limited as amended by a deed dated 22 February 2000, a deed dated 31
October 2001, a deed dated 8 December 2003 and the Amending Deed.
Default Rate means the Interest Rate plus 2% per annum.
For the purpose of this definition, the Interest Rate is
calculated as if the overdue amount were Loan Notes with Interest
Periods of 30 days (or another period chosen from time to time by the
Facility Agent) with the first Interest Period starting on and
including the due date.
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(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 62
26 February 2004
Details means the section of this agreement headed "Details".
Directive means:
(a) a law or treaty; or
(b) an official directive, request, guideline or policy (whether
or not having the force of law) with which responsible
financiers generally comply in carrying on their business.
Establishment Fee has the meaning given to it in the Details.
Event of Default has the meaning given to that term in clause
15 ("Default").
Facility means the Tranche A Facility and the Tranche B
Facility, or both of them as the context requires.
Facility Agent means the person so described in the Details.
Facility Agent Fee Letter means the letter dated on or about the date
of this agreement from the Facility Agent to the Borrower.
Facility Limit means, for a Facility, the amount set out as such for
that Facility in the Details as reduced by the total of all
cancellations in respect of that Facility.
Fee Letter means each of the Facility Agent Fee Letter and the
Underwriting and Arrangement Fee Letter and any fee letter in relation
to the working capital facility agreement dated on or about the date of
this agreement between Australia and New Zealand Banking Group Limited,
Commonwealth Bank of Australia and the Borrower.
Final Redemption Date means, for a Facility, the final
redemption date set out in the Details for that Facility, but if that
is not a Business Day, then the preceding Business Day.
Finance Party means the Facility Agent, the Registrar, a
Financier (including, if applicable, a Financier in its role as a
Mandated Lead Arranger and Underwriter).
Financier means each person so described in the Details
(including, if applicable, the Facility Agent in its role as a
Financier) and any person who is named as a "Substitute Financier"
under a Substitution Agreement and an assignee of a Financier's rights
under clause 32 ("Dealings with Interests").
GST has the meaning given to it in section 195-1 of the A New
Tax System (Goods and Services Tax) Xxx 0000 (C'th).
Guarantees means each of:
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(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 63
26 February 2004
(a) the Original Guarantee; and
(b) the New Guarantee.
Holding Company has the meaning given to it in the
Corporations Xxx 0000 (C'th).
Indemnified Party means a party referred to in clause 10.1.
Information Memorandum means the information memorandum
(including all attachments) dated January 2004 in relation to the
Facilities prepared for the Borrower.
Input Tax Credit has the meaning given to it in section 195-1
of the A New Tax System (Goods and Services Tax) Xxx 0000 (C'th).
Insolvency Event has the meaning given to it in the Deed of
Common Terms.
Interest Payment Date means the last day of an Interest
Period.
Interest Period means, for the Loan Notes issued under a
Facility, each period selected in accordance with clause 4.2
("Notification of Interest Period").
Interest Period Notice means, for the Loan Notes issued under
a Facility, a notice containing the information and representations and
warranties set out in Schedule 6 ("Interest Period Notice (clause 4)").
Interest Rate means, for the Loan Notes issued under a
Facility, the interest rate for that Facility set out in the Details.
IPO means an initial public offering of shares by an entity
within the Group undertaken following the Debt Refinance Date.
IPO Effective Date means the date upon which Annexure B to the
Amending Deed becomes effective.
Loan Note means a loan note:
(a) having a principal amount outstanding of $1.00; and
(b) issued for a subscription price of 100% of its principal
amount under this agreement and the Loan Note Deed Poll,
and, in this agreement, references to a Loan Note include a
reference to the corresponding interest in the Loan Note Deed Poll.
Loan Note Deed Poll means a deed poll executed by the Borrower
substantially in the form of schedule 4 ("Form of Loan Note Deed
Poll").
Majority of Financiers means Financiers the total of whose
Commitments exceeds 662/3% of the total of all Financiers' Commitments.
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(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 64
26 February 2004
Mandated Lead Arrangers and Underwriters means each person so
described in the Details for so long as the person remains a Financier.
Margin means, for a Facility, the Margin set out in the
Details for that Facility.
Most Recent Corporate Rating means the most recent corporate rating in
respect of the Borrower issued by Standard & Poor's (Australia) Pty Ltd
and applying on the first day of an Interest Period.
New Guarantee means the Guarantee and Indemnity dated 11
December 2003 made between the Partnership, TXU8 and National Australia
Bank Limited, the benefit of which was or will be assigned to ANZ
Fiduciary Services Pty Ltd in accordance with the Amending Deed.
Nominated E-Mail Address means the e-mail address notified to
the Facility Agent in writing at least 5 days before any e-mail is sent
by the Facility Agent or notice posted on the ANZIB eAgency website.
Offer means the offers made by the Mandated Lead Arrangers and
Underwriters on behalf of the Borrower as described in clause 20.1
("Mandated Lead Arrangers and Underwriter representations").
Option has the meaning given to that term in clause 8 of the
Deed of Common Terms after the IPO Effective Date.
Option Period has the meaning given to that term in clause 8
of the Deed of Common Terms after the IPO Effective Date.
Original Guarantee means the Guarantee and Indemnity dated 24
February 1999 made between the Partnership, Holdco, TXU8 and TXU9 in
favour of National Australia Bank Limited as amended by a deed and an
agreement each dated 22 February 2000, the benefit of which was or will
be assigned to ANZ Fiduciary Services Pty Ltd in accordance with the
Amending Deed.
Partnership means the TXU Australia Holdings (Partnership)
Limited Partnership being a limited partnership formed and registered
under the Partnership Xxx 0000 of Victoria.
Participation Fee has the meaning given to it in the Details.
Potential Event of Default means an event which with the
giving of notice or lapse of time would become an Event of Default.
Proportion means, for a Financier:
(a) in respect of a Facility, the proportion which its Commitment
for that Facility 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 total of the
Facility Limits.
Receiver includes a receiver or receiver and manager.
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(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 65
26 February 2004
Register means the register of Financiers to be established
and maintained under clause 18 ("Register").
Registrar means the person appointed under clause 18.1
("Appointment of Registrar") as the Registrar.
Related Entity has the meaning it has in the Corporations Xxx
0000 (C'th).
Relevant Country means any country, or political sub-division
of one or more countries, or any federation or association of countries
in which the Borrower is either incorporated or is resident or
domiciled for any tax purpose or in which the Borrower carry on
business or own or leases property or from which, or through which, any
payment under a Bank Finance Document is made.
Retiring Financier means a Financier that proposes to effect a
novation of some or all of its obligations under the Bank Finance
Documents (see clause 30 "Substitution of Financiers").
Substitute Financier means a person who is to:
(a) assume some or all of the obligations of a Retiring
Financier under the Bank Finance Documents; and
(b) acquire the Loan Notes relating to that assumption,
(see clause 30 ("Substitution of Financiers and transfer of
Loan Notes")).
Substitution Agreement means an agreement substantially in the
form of schedule 5 ("Form of Substitution Agreement (clause 30)"),
completed as stated in that schedule and executed by each person
expressed to be a party to it, or another document approved by the
Facility Agent for the purpose of clause 30 ("Substitution of
Financiers and transfer of Loan Notes").
Tax Act means the Income Tax Assessment Xxx 0000 and the
Income Tax Assessment Xxx 0000 (C'th).
Taxes means taxes, levies, imposts, charges and duties
(including stamp and transaction duties) imposed by any authority
together with any related interest, penalties, fines and expenses in
connection with them, except if imposed on, or calculated having regard
to, the net income of the Facility Agent or a Financier.
Total Amount Owing means, at any time,
(a) the total of all Amounts Owing; plus
(b) all amounts which are then due for payment, or which will or
may become due for payment, to the Facility Agent for its own
account,
in connection with any Bank Finance Document (including transactions in
connection with them).
Tranche A Facility means the facility described as such in the
Details.
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(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 66
26 February 2004
Tranche B Facility means the facility described as such in the
Details.
TXU means TXU Corp.
Underwriting and Arrangement Fee Letter means the fee letter
of that name dated on or about the date of this agreement between the
Mandated Lead Arrangers and Underwriters and the Borrower.
Underwriting Fee has the meaning given to it in the Details.
Unutilised Facility Limit means, for a Facility, the Facility
Limit for that Facility less the aggregate principal amount of the
outstanding Loan Notes issued under that Facility.
Utilisation Date means the date on which an issue of Loan
Notes is or is to be made.
Utilisation Notice means a completed notice containing the
information and representations and warranties set out in schedule 3
("Utilisation Notice (clause 2)").
Utilised Commitment means, for a Financier, that Financier's
Proportion of the aggregate principal amount of the outstanding Loan
Notes issued under a Facility.
35.2 References to certain general terms
Unless the contrary intention appears, a reference in a Bank Finance
Document to:
(a) a group of persons is a reference to any two or more of them
jointly and to each of them individually;
(b) an agreement, representation or warranty in favour of two or
more persons is for the benefit of them jointly and each of
them individually;
(c) an agreement, representation or warranty by two or more
persons binds them jointly and each of them individually, but
an agreement, representation or warranty by a Finance Party
binds the Finance Party individually only;
(d) anything (including an amount) is a reference to the whole and
each part of it;
(e) a document (including this agreement) includes any variation
or replacement of it;
(f) law means common law, principles of equity, and laws made by
Parliament (and laws made by Parliament include State,
Territory and Commonwealth laws and regulations and other
instruments under them, and consolidations, amendments,
re-enactments or replacements of any of them);
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(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 67
26 February 2004
(g) an accounting term is a reference to that term as it is used
in accounting standards under the Corporations Xxx 0000
(C'th), or, if not inconsistent with those standards, in
accounting principles and practices generally accepted in
Australia;
(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 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;
(m) a Review Event and any rights or obligations of a party in
connection with a Review Event occurring shall only apply from
the IPO Effective Date.
35.3 Number
In a Bank Finance Document, the singular includes the plural and vice
versa.
35.4 Headings
In a Bank Finance Document, headings (including those in brackets at
the beginning of paragraphs) are for convenience only and do not affect
the interpretation of the Bank Finance Document.
35.5 Senior Finance Document
The Borrower and each Finance Party agree that this agreement is a
Senior Finance Document for the purposes of the Deed of Common Terms.
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36 IPO
36.1 IPO Effective Date and New Borrower
Each party to this agreement agrees that:
(i) if the Borrower requests no later than 40 Business Days prior
to the proposed IPO Effective Date that a Subsidiary of the
TXUA Parent (other than the Borrower) ("New Borrower") be
novated for all of the obligations and rights of the Borrower
under the Bank Finance Documents; and
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(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 68
26 February 2004
(ii) the Borrower notifies the Facility Agent in writing that the
New Borrower is required in connection with the proposed IPO
then,
each party agrees to negotiate in good faith to amend the Bank Finance
Documents so that as at the IPO Effective Date, amongst other things,
the New Borrower will assume all of the obligations of the Borrower
under the Bank Finance Documents and shall become and be deemed to be a
party to the Bank Finance Documents in the capacity of the Borrower
with all the rights and obligations of the Borrower under the Bank
Finance Documents as if it was named as a party to and had executed the
Bank Finance Documents.
36.2 IPO Effective Date and IPO issuing entity is the Borrower
Each party to this agreement agrees that if the Borrower informs the
Facility Agent in writing no later than 40 Business Days prior to the
proposed IPO Effective Date that it will be the IPO issuing entity then
each party agrees to negotiate to amend the Bank Finance Documents at
that time so that, amongst other things, TXU Australia Group Pty Ltd is
not required to be an Obligor under the Deed of Common Terms.
36.3 Acknowledgments
(a) The Borrower acknowledges and confirms that on and from the IPO
Effective Date:
(i) except as expressly provided by clause 36.1 ("IPO
Effective Date and New Borrower") or 36.2 ("IPO
Effective Date and IPO issuing entity is the
Borrower"), nothing in this agreement prejudices or
adversely affects any right, power, authority,
discretion or remedy of the Finance Parties arising
under the Bank Finance Documents; and
(ii) the Borrower's obligations under the Bank Finance
Documents are not discharged or released as a result
of the IPO Effective Date; and
(iii) except as expressly provided by clause 36.1("IPO
Effective Date and New Borrower") and clause 36.2
("IPO Effective Date and IPO issuing entity is the
Borrower"), the obligations of the Borrower under the
Bank Finance Documents are not changed or varied as a
result of the matters contemplated by clause 36.1
("IPO Effective Date and New Borrower") or clause
36.2 ("IPO Effective Date and IPO issuing entity is
the Borrower"); and
(iv) references to the Guarantees will be taken to mean
the IPO Guarantee (as that term is defined in the
Amending Deed).
(b) Each of the parties to this agreement acknowledges and agrees
that solely as a result of the IPO Effective Date occurring,
the identity or the Commitment of a Financier is not changed.
EXECUTED as an agreement.
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(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 69
26 February 2004
Loan Note Subscription Agreement
Schedule 1 - Commitments (clause 35.1)
Financier - Tranche A Facility Tranche B Facility
Australia and New Zealand $92,500,000 $92,500,000
Banking Group Limited
Citibank, N.A. $57,500,000 $57,500,000
Commonwealth Bank of $92,500,000 $92,500,000
Australia
Westpac Banking $57,500,000 $57,500,000
Corporation
BNP Paribas $28,125,000 $28,125,000
Credit Suisse First $20,000,000 $20,000,000
Boston
ING Bank N.V. (Sydney $28,125,000 $28,125,000
Branch)
JPMorgan Chase Bank $20,000,000 $20,000,000
Mizuho Corporate Bank Ltd $28,125,000 $28,125,000
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(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 70
26 February 2004
National Australia Bank $57,500,000 $57,500,000
Limited
The Bank of $28,125,000 $28,125,000
Tokyo-Mitsubishi, Ltd.
Melbourne Branch
UBS AG, Australia Branch $20,000,000 $20,000,000
United Overseas Bank $20,000,000 $20,000,000
Limited
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(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 71
26 February 2004
Loan Note Subscription Agreement
Schedule 2 - Conditions precedent (clause 2.4)
Conditions to first issue
o Each item must be in form and substance satisfactory to all the
Financiers (if that item is marked with an "*"),or the Facility Agent (if
that item is not marked).
o Certification is to be by a director or secretary of the relevant entity
that the item is true and complete as to the date no earlier than the
date of this agreement.
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Item Form Required for
1 Constitution (or equivalent). Certified copy Borrower
2 Certificate of registration. Certified copy Borrower
3 Extract of minutes of a meeting of the Certified copy Borrower
entity's board of directors which
evidences the resolutions:
(a) authorising the signing and delivery
of the Bank Finance Document to which
the entity is a party and the observance
of obligations under those documents; and
(b) appointing Authorised Officers of the
entity; and
(c) which acknowledge that the Bank Finance
Document (to which the entity is a party)
will benefit that entity.
4 Each document which evidences any other Certified copy Borrower
necessary corporate or other action of the
entity in connection with the Bank Finance
Document to which it is a party.
5 Each authorisation of the entity Certified copy Borrower
necessary to enter into the Transaction
Documents to which it is a party and to
comply with obligations under those
documents and enforce those documents.
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(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 72
26 February 2004
6 Each power of attorney under which a Certified copy Borrower
person signs a Transaction Document for
the entity showing evidence of stamping
and evidence of registration if
required by the Facility Agent.
7 Specimen signature of: Certified copy Borrower
(a) each Authorised Officer of the entity;
and
(b) each other person who is authorised to
sign and signs a Bank Finance Document
for the entity.
8 *This agreement, the Loan Note Deed Original
Poll and the Amending Deed:
(a) fully signed;
(b) evidence of stamping.
9 *Legal opinions dealing with validity Original
and enforceability of the Bank Finance
Documents from:
(a) Xxxxx & XxXxxxxx; and
(b) Mallesons Xxxxxxx Xxxxxx.
10 Evidence that all fees and expenses N/A
payable by the Borrower on or
before the date of first issue of
Loan Notes have been paid.
11 Evidence that the commitments of the N/A Borrower
lenders under the existing facilities
have been cancelled and all moneys
owing under those facilities will be
fully repaid contemporaneously with the
first issue of Loan Notes.
12 Evidence that no person contravenes or Certificate Borrower
will contravene section 260A or 260D of
the Corporations Xxx 0000 (C'th) by
entering into the transactions
contemplated by the Bank Finance
Documents.
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(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 73
26 February 2004
13 Nomination of this document as a Bank Original
Finance Document in the Amending Deed.
14 Evidence that the Deed of Common Terms Original
will be amended as contemplated in the
Amending Deed on the Debt Refinance Date
contemporaneously with the first issue of
Loan Notes.
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(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 74
26 February 2004
Loan Note Subscription Agreement
Schedule 3 - Utilisation Notice (clause 2)
To: Australia and New Zealand Banking Group Limited
Xxxxx 00
000 Xxxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
("Facility Agent")
Attention: Transaction, Management & Execution Credit Origination and Sales
[Date]
Utilisation Notice - Loan Note Subscription Agreement between the Borrower,
Australia and New Zealand Banking Group Limited as Facility Agent, the
Financiers and others dated [ ] ("Subscription Agreement")
Under clause 2.2 ("Requesting an issue") of the Subscription Agreement, the
Borrower gives notice as follows.1
Issue under Facility2
The Borrower wants to issue Loan Notes under the Facility2.
o The requested Utilisation Date is [ ]3.
o The aggregate principal amount of the proposed issue of Loan Notes is
A$[ ]4.
o The requested first Interest Period is [ ] ending on [insert
maturity date]5.
o The subscription price payable for the proposed Loan Notes is to be
paid to:
Account number: [ ]
Account name: [ ]
Bank: [ ]
Branch: [ ]
BSB: [ ]
The Borrower represents and warrants that the representations and warranties in
the Subscription Agreement are correct and not misleading on the date of this
notice and that each will be correct and not misleading on the Utilisation Date.
The "Interpretation" clause of the Subscription Agreement applies to this notice
as if it was fully set out in this notice.
.........................................
[Name of person] being
an Authorised Officer of
TXU Australia Holdings Pty Ltd
Instructions for completion
1 All items must be completed for the relevant Facility.
2 Here clearly identify the relevant Facility.
-------------------------------------------------------------------------------
(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 75
26 February 2004
3 Must be a Business Day within the availability period.
4 Must be A$10,000,000 or a whole multiple of A$5,000,000 (unless the
Details specify otherwise).
5 Must be an Interest Period set out in the Details.
-------------------------------------------------------------------------------
(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 76
26 February 2004
Loan Note Subscription Agreement
Schedule 4 - Form of Loan Note Deed Poll
Loan Note Deed Poll
Interpretation - Definitions are at the end of this deed before the schedules.
------------------------------------------------------------------------------
Parties Borrower
-------------------------------------------------------------------------------
Borrower Name TXU Australia Holdings Pty Ltd
ABN 97 086 006 859
Incorporated in: Australia
Address:
Xxxxx 00, 000 Xxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxx
Fax: (00 0) 0000 0000
Telephone: (00 0) 0000 0000
Attention: Assistant Treasurer
-------------------------------------------------------------------------------
Beneficiaries Each person who from time to time is a Financier and
the Facility Agent.
-------------------------------------------------------------------------------
Subscription Agreement Loan Note Subscription Agreement between Borrower,
the Facility Agent and the Financiers dated [ ].
Date of deed See Signing page.
-------------------------------------------------------------------------------
1 The Loan Notes
1.1 Creation of Loan Notes
The obligations of the Borrower under the Loan Notes are constituted
by, and are set out in, this deed.
1.2 Undertakings and acknowledgment of debt
The Borrower:
(a) agrees to pay principal and interest in respect of each Loan
Note issued to a Financier in accordance with the Subscription
Agreement, the Loan Note and this deed; and
-------------------------------------------------------------------------------
(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 77
26 February 2004
(b) acknowledges that it is indebted to each Financier for an
amount equal to the aggregate outstanding principal amount of
that Financier's Loan Notes.
1.3 Effect of payment of interest or redemption
The obligations of the Borrower under clause 1.2 ("Undertakings and
acknowledgments of debt") are discharged to the extent interest is paid
on, or a Loan Note is redeemed in accordance with the Subscription
Agreement.
-------------------------------------------------------------------------------
2 Rights and Obligations Of Financiers
2.1 Benefit and entitlement
This deed is executed as a deed poll. The Loan Notes are issued on the
condition that the Facility Agent and each Financier has the benefit
of, and is entitled to enforce, this deed subject to the Bank Finance
Documents even though it is not a party to, or is not in existence at
the time of execution and delivery of, this deed.
2.2 Rights independent
The Facility Agent and each Financier may enforce its rights under this
deed independently from the Registrar and each other Financier, subject
to the Bank Finance Documents.
2.3 Facility Agent and Financiers bound
Each of the Facility Agent and each Financier (and any person claiming
through or under a Financier) is bound by this deed. The Loan Notes are
issued on the condition that the Facility Agent and each Financier is
taken to have notice of, and be bound by this deed and the Subscription
Agreement.
2.4 Directions to hold Deed Poll
Each of the Facility Agent and each Financier is taken to have
irrevocably instructed the Borrower that this deed is to be held by the
Facility Agent as Registrar on its behalf.
2.5 Bank Finance Documents
The Loan Notes are issued on the condition that each Financier is bound
by the provisions of the Bank Finance Documents binding on the
Financiers.
2.6 Loan Notes issued as a result of Offer
Each Loan Note is issued as a result of the Offer. This is the case
regardless of the time of issue.
-------------------------------------------------------------------------------
(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 78
26 February 2004
-------------------------------------------------------------------------------
3 Form, title and status
3.1 Registered form
Each Loan Note takes the form of an entry in the Register. No
certificate will be issued in respect of it, unless required by law.
3.2 Issue of Loan Notes by entry in Register
A Loan Note is:
(a) issued when details of the Loan Note are first entered in the
Register; and
(b) transferred when the details of the transfer are entered in
the Register.
3.3 Effect of entries in Register
Each entry in the Register in respect of a Loan Note constitutes:
(a) an acknowledgment to the Financier registered as the holder
the Loan Note by the Borrower of the indebtedness of the
Borrower to that Financier under this deed;
(b) an undertaking by the Borrower to the Financier registered as
the holder of the Loan Note to make all payments of principal
and interest in respect of the Loan Note in accordance with
the terms of the Loan Note and this deed; and
(c) an entitlement to the other benefits given to the Financiers
and the Facility Agent under the Bank Finance Documents in
respect of the relevant Loan Note.
3.4 Independent obligations
Subject to the terms of the Subscription Agreement and the other Bank
Finance Documents, the obligations of the Borrower 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.
3.5 Register conclusive as to ownership
Entries in the Register in relation to a Loan Note constitute
conclusive evidence that the person so entered is the absolute owner of
the Loan Note subject to correction for fraud or error.
3.6 Holder absolutely entitled
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 free of all
equities. 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
Borrower 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.
------------------------------------------------------------------------------
(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 79
26 February 2004
3.7 Status of Loan Notes
The Loan Notes are direct, unsubordinated and unsecured obligations of
the Borrower and rank at least equally among themselves with all other
unsecured and unsubordinated obligations of the Borrower except for
liabilities mandatorily preferred by law.
4 Transfers
------------------------------------------------------------------------------
4.1 Limit on transfer
Each Loan Note may only be transferred in accordance with clause 30 of
the Subscription Agreement ("Substitution of Financiers and transfer of
Loan Notes") and this deed.
4.2 Transfer of all of Loan Note
Each Loan Note may only be transferred in whole.
4.3 Registration of transfer
The transferor of a Loan Note is taken 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 Final redemption and early redemption
-------------------------------------------------------------------------------
The Borrower agrees to redeem each Loan Note issued under a Facility in
accordance with clause 5 of the Subscription Agreement ("Final
redemption and early redemption").
6 Interest
-------------------------------------------------------------------------------
The Borrower agrees to pay interest on each Loan Note issued under a
Facility in accordance with the Subscription Agreement.
7 Payments
-------------------------------------------------------------------------------
The Borrower agrees to make all payments under a Loan Note in
accordance with Clause 7 of the Subscription Agreement ("Payments").
------------------------------------------------------------------------------
(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 80
26 February 2004
-------------------------------------------------------------------------------
8 Governing law
This deed poll and the Loan Notes are governed by the law in force in
the place specified in the "Details" section of the Subscription
Agreement. The Borrower submits to the non-exclusive jurisdiction of
the courts of that place.
-------------------------------------------------------------------------------
9 Interpretation
The "Interpretation" clause of the Subscription Agreement described
above applies to this deed poll as if it was fully set out in this deed
poll.
DATED
EXECUTED as a deed poll.
SIGNED, SEALED AND DELIVERED for TXU AUSTRALIA )
HOLDINGS (PTY LTD by )
)
under power of attorney dated )
)
in the presence of: )
)
.................................................)
Signature of witness )
)
.................................................)
Name of witness (block letters) )
)
.................................................) ............................
Address of witness ) By executing this deed the
attorney states that the
.................................................) attorney has received no
Occupation of witness ) notice of revocation of the
power of attorney
------------------------------------------------------------------------------
(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 81
26 February 2004
Loan Note Subscription Agreement
Schedule 5 - Form of Substitution Agreement (clause 30)
Substitution Agreement
Details
Interpretation - Definitions are at the end of this agreement.
------------------------------------------------------------------------------
Parties Borrower, Financiers, Facility Agent, Retiring
Financier and Substitute Financier, as described below
or in the Subscription Agreement described above.
------------------------------------------------------------------------------
Borrower Name TXU Australia Holdings Pty Ltd:
ABN 97 086 006 859
Incorporated in Australia
Address:
Xxxxx 00, 000 Xxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxx
Fax: (00 0) 0000 0000
Telephone: (00 0) 0000 0000
Attention: Assistant Treasurer
-------------------------------------------------------------------------------
Retiring Financier Name:
ABN/ACN/ARBN:
------------------------------------------------------------------------------
Substitute Financier Name:
Lending office:
ABN/ACN/ARBN:
Fax:
Telephone:
Attention:
------------------------------------------------------------------------------
Facility Agent Name: Australia and New Zealand Banking Group Limited
ABN: 11 005 357 522
------------------------------------------------------------------------------
Subscription Agreement Loan Note Subscription Agreement between Borrower, the
Facility Agent and the Financiers dated [ ].
-------------------------------------------------------------------------------
------------------------------------------------------------------------------
(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 82
26 February 2004
Substituted Facility Retiring Retiring Substitute Substitute Transferred
Commitment name Financier's Financier's Financier's Financier's Loan Notes 2
Commitment Utilised Substitution Substitution
Commitment Commitment1 Amount
----------------------------------------------------------------------------------------------------
Tranche A Facility < $ $ $
-------------------------------------------------------------------
Tranche B Facility < $ $ $
-----------------------------------------------------------------------------------------------------
Substitution Date3
-----------------------------------------------------------------------------------------------------
Governing law Victoria
-----------------------------------------------------------------------------------------------------
Date of Substitution Agreement See Signing page.
-----------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------
(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 83
26 February 2004
Instructions for completion
1 Must not be less than $5,000,000 unless all of the Retiring Financier's
Commitment is being substituted, or unless the Facility Agent agrees
otherwise.
2 As each Loan Note has a principal amount of $1.00, the number of Loan
Notes transferred must equal the Substitution Amount.
3 Must be an Interest Payment Date unless the Facility Agent otherwise
agrees.
------------------------------------------------------------------------------
(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 84
26 February 2004
General terms
Interpretation - Definitions are at the end of this agreement.
-------------------------------------------------------------------------------
1 Substitution
1.1 Payments to be made
The Substitute Financier agrees to pay to the Retiring Financier the
total of the Substitution Amount for each Facility.
These payments are to be made on the Substitution Date.
1.2 Substitution effected
A substitution in respect of a Facility, and the corresponding transfer
of Loan Notes, takes effect when the Substitute Financier pays the
Retiring Financier the Substitution Amount for that Facility and the
Registrar enters the details of the transfer in the Register. The
Facility Agent, as Registrar, agrees to enter the details of the
transfer on the date the payment of the Substitution Amount is made.
By paying the Retiring Financier, the Substitute Financier is taken to
have advanced the Substitution Amount to the Borrower on the terms of
the Subscription Agreement.
-------------------------------------------------------------------------------
2 Rights and obligations of parties
2.1 Substitution and transfer of Loan Notes
With effect on and from the time the substitution takes effect:
(a) no party to the Bank Finance Documents has any further
obligation to the Retiring Financier in relation to the
Substituted Commitment; and
(b) the Retiring Financier has no further obligations to any other
party to the Bank Finance Documents in relation to the
Substituted Commitment; and
(c) the Substitute Financier has rights which are identical to the
rights which the Retiring Financier had in respect of the
Substituted Commitment; and
(d) the Substitute Financier assumes obligations towards each of
the parties to the Bank Finance Documents which are identical
to the obligations which the Retiring Financier had in respect
of the Substituted Commitment; and
(e) the Substitute Financier is taken to be a party to the
Subscription Agreement and is bound by its terms; and
------------------------------------------------------------------------------
(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 85
26 February 2004
(f) a reference in the Subscription Agreement to "Financier"
includes a reference to the Substitute Financier; and
(g) the Substitute Financier is taken to have a Commitment for
each Facility equal to its Substitution Commitment for that
Facility; and
(h) the Substitute Financier is taken to have had, at the time the
substitution takes effect, a Utilised Commitment for each
Facility equal to its Substitution Amount for that Facility;
and
(i) the Retiring Financier is taken to have a Commitment for each
Facility equal to its Commitment for that Facility immediately
before the substitution takes effect less the Substitution
Commitment for that Facility; and
(j) the Retiring Financier is taken to have had, at the time the
substitution takes effect, a Utilised Commitment for each
Facility equal to its Utilised Commitment for that Facility
immediately before the substitution takes effect less the
Substitution Amount for that Facility; and
(k) the Substitute Financier is taken to be the holder of the
Transferred Loan Notes; and
(l) the Substitute Financier is taken to have appointed the
Facility Agent to act as its agent in connection the Bank
Finance Documents in accordance with the Bank Finance
Documents.
In paragraphs (c) and (d) a reference to "identical" rights or
obligations is a reference to rights or obligations substantially
identical in character to those rights or obligations rather than
identical as to the person entitled to them or obliged to perform them.
2.2 Other rights and obligations not affected
Despite anything contained in this agreement, the Facility Agent, the
Retiring Financier and all other parties to the Subscription Agreement
remain entitled to their rights and bound by their obligations in
respect of a Substituted Commitment which have accrued up to and
including when the substitution takes effect. This includes accrued
interest and amounts in the nature of interest and fees due in respect
of the Substituted Commitment up to that time. The expression
"Financier" in the Bank Finance Documents includes a Retiring Financier
who remains entitled to any amount under this clause 2.2.
-------------------------------------------------------------------------------
3 Acknowledgments
3.1 Receipt of documents
The Substitute Financier acknowledges that it has received a copy of
the Bank Finance Documents together with the other information which it
has required in connection with this agreement.
------------------------------------------------------------------------------
(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 86
26 February 2004
3.2 Withholding tax
The Substitute Financier acknowledges that it is not an Associate of
the Borrower and if it is, it will not be entitled to any additional
payments referable to Australian IWT which may be deducted from
interest paid to it.
-------------------------------------------------------------------------------
4 Payments
From when a substitution takes effect, the Facility Agent agrees to
make all payments due under the Bank Finance Documents in connection
with the Substituted Commitment to the Substitute Financier without
having any further responsibility to the Retiring Financier in respect
of it.
The Retiring Financier and the Substitute Financier agree to make
between themselves the payments and adjustments which they agree with
respect to accrued interest and amounts in the nature of interest,
fees, Costs and other amounts attributable to the Substituted
Commitment which accrue before the substitution.
-------------------------------------------------------------------------------
5 Notices
The address particulars of the Substitute Financier for the purpose of
the "Details" section of the Subscription Agreement are set out in the
Details.
-------------------------------------------------------------------------------
6 General
The "Interpretation" clause of the Subscription Agreement applies to
this agreement as if it was fully set out in this agreement.
-------------------------------------------------------------------------------
7 Definitions
These meanings apply unless the contrary intention appears:
Facility means a facility referred to in the "Substituted Commitment"
item of the "Details" section of this agreement.
Retiring Financier means the person so described in the "Details"
section of this agreement.
Substituted Commitment for a Facility means that part of the Retiring
Financier's Commitment and Utilised Commitment for that Facility equal
to the Substitution Commitment and Substitution Amount for that
Facility.
Substitution Amount for a Facility and a Substitute Financier means the
amount so described in the "Details" section of this agreement under
"Substituted Commitment".
Substitution Commitment for a Facility and a Substitute Financier means
the amount so described in the "Details" section of this agreement
under "Substituted Commitment".
------------------------------------------------------------------------------
(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 87
26 February 2004
Substitution Date is set out in the "Details" section of this
agreement.
Substitute Financier means the person so described in the "Details"
section of this agreement.
Subscription Agreement means the agreement so described in the
"Details" section of this agreement.
Transferred Loan Notes means the Loan Notes to be transferred to the
Substitute Financier as described in the Details sections of this
agreement.
EXECUTED as an agreement.
Signed by the Facility Agent on behalf of
all parties to this agreement other than
the Substitute Financier and the Retiring
Financier.
[Insert execution clauses for Facility Agent,
Retiring Financier and Substitute
Financier]
------------------------------------------------------------------------------
(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 88
26 February 2004
Loan Note Subscription Agreement
Schedule 6 - Interest Period Notice (clause 4)
To: Australia and New Zealand Banking Group Limited
Xxxxx 00
000 Xxxxxxx Xxxxxx
Xxxxxxxxx Xxx 3000("Facility Agent")
Attention: Transaction, Management and Execution Credit Origination and Sales
[Date]
Interest Period Notice - Loan Note Subscription Agreement between the Borrower,
Australia and New Zealand Banking Group Limited as Facility Agent, the
Financiers and others dated [ ] ("Subscription Agreement")
Under clause 4.2 ("Notification of Interest Period") of the Subscription
Agreement, the Borrower gives notice as follows:
o Principal amount of Loan Notes is A$[ ].
o Maturing Interest Payment Date is [ ].
o The requested next Interest Period is [ ].1
The Borrower represents and warrants that the representations and warranties in
the Subscription Agreement are correct and not misleading on the date of this
notice and that each will be correct and not misleading on the first day of an
Interest Period.
The "Interpretation" clause of the Subscription Agreement applies to this notice
as if it was fully set out in this notice.
..........................................
[Name of person] being
an Authorised Officer of
TXU Australia Holdings Pty Ltd
Instructions for completion
1 Must be an Interest Period set out in the details.
------------------------------------------------------------------------------
(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 89
26 February 2004
Loan Note Subscription Agreement
Signing page
DATED: 26 February 2004
Borrower
SIGNED for TXU AUSTRALIA )
HOLDINGS PTY LTD by )
Xxxx Xxxxxx Xxxxx )
under power of attorney dated )
23 February 2004 )
in the presence of: )
)
)
/s/Theo Kindynis )
----------------------------------------
Signature of witness )
)
Theo Kindynis )
----------------------------------------
)
Name of witness (block letters) )
)
00/000 Xxxxxxx Xx. Xxxx. ) /s/Xxxx Xxxxxx Xxxxx
----------------------------------------) ---------------------------
) 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 )
)
)
)
------------------------------------------------------------------------------
(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 90
26 February 2004
Financiers
SIGNED by Xxxxxx X. Xxxxxxx )
)
as attorney for AUSTRALIA AND NEW )
ZEALAND BANKING GROUP )
LIMITED under power of attorney dated )
9 October 1992 )
in the presence of: )
)
/s/Xxxxxxx Keep )
------------------------------------------------ )
)
Signature of witness )
)
Xxxxxxx Keep )
------------------------------------------------ )
)
Name of witness (block letters) )/s/Xxxxxx X. Xxxxxxx
Xxxxx 00, 000 Xxxxxxx Xx. )-------------------------
Xxxxxxxxx XXX 0000 )By executing this agreement
)the attorney states that the
)attorney has received no
------------------------------------------------ )notice of revocation of the
Address of witness )power of attorney
)
Solicitor
------------------------------------------------
Occupation of witness
SIGNED by Xxxx Xxxxxx )
and Xxxxxx Xxxxxxx )
as attorneys for CITIBANK, N.A. under power of )
attorney dated 20 August 1996 )
)
in the presence of: )
)
/s/Xxxxxxx Keep )
------------------------------------------------ )
)
Signature of witness )
) /s/Xxxx Xxxxxx
Xxxxxxx Keep )
------------------------------------------------ )
)
Name of witness (block letters) ) /s/Xxxxxx Xxxxxxx
) -----------------
Xxxxx 00, 000 Xxxxxxx Xx. ) By executing this
Xxxxxxxxx XXX 0000 ) agreement the attorneys
------------------------------------------------ ) state that the attorneys
) have received no notice
of revocation of the
Address of witness power of attorney
Solicitor
------------------------------------------------
Occupation of witness
------------------------------------------------------------------------------
(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 91
26 February 2004
SIGNED by )
Xxxxxxxx Xxxxxx )
as attorney for COMMONWEALTH BANK OF AUSTRALIA )
under power of attorney dated 17/11/97 )
)
in the presence of: )
)
/s/Xxxxxxx Keep )
------------------------------------------------
)
Signature of witness )
)
Xxxxxxx Keep )
------------------------------------------------
)
Name of witness (block letters) ) /s/Xxxxxxxx Xxxxxx
------------------
Xxxxx 00, 000 Xxxxxxx Xx. ) By executing this
Xxxxxxxxx XXX 0000 ) agreement the attorney
------------------------------------------------ ) states that the attorney
has received no
notice of revocation of
the power of attorney
Address of witness
Solicitor
-------------------------------------------------- )
Occupation of witness
SIGNED by )
Xxxxxxx Xxxxxxxx )
as attorney for WESTPAC BANKING CORPORATION under )
power of attorney dated 23 December 2003 )
)
in the presence of: )
)
)
/s/Xxxxxxx Keep )
------------------------------------------------
)
Signature of witness )
)
Xxxxxxx Keep )
------------------------------------------------ )
Name of witness (block letters) )/s/Xxxxxxx Xxxxxxxx
Xxxxx 00, 000 Xxxxxxx Xx. )-------------------
Xxxxxxxxx XXX 0000 )By executing this agreement
)the attorney states that the
)attorney has received no
------------------------------------------------ )notice of revocation of
Address of witness )the power of attorney
)
Solicitor )
------------------------------------------------
Occupation of witness )
------------------------------------------------------------------------------
(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 92
26 February 2004
SIGNED by )
)
as attorney for BNP PARIBAS under power of )
attorney dated 24 February 2004 )
)
in the presence of: )
)
)
/s/Xxxx Xxxxxxxxxx )
------------------------------------------------
)
Signature of witness )
)
Xxxx Xxxxxxxxxx )
------------------------------------------------
Name of witness (block letters) ) /s/Xxxxxxx Xxxxx
) ----------------
) By executing this
agreement the attorney
00/000 Xxxxxxx Xx. Xxxxxxxxx XXX 0000 ) states that the attorney
------------------------------------------------ ) has received no
Address of witness ) notice of revocation of
) the power of attorney
Articled Clerk )
------------------------------------------------ )
Occupation of witness )
)
SIGNED by )
)
as attorney for CREDIT SUISSE FIRST BOSTON under )
power of attorney dated )
25 February 2004 )
)
in the presence of: )
)
)
/s/Xxxx Xxxxxxxxxx )
------------------------------------------------
)
Signature of witness )
)
Xxxx Xxxxxxxxxx ) /s/Xxxxxxx Xxxxx
------------------------------------------------ ----------------
Name of witness (block letters) ) By executing this
) agreement the attorney
00/000 Xxxxxxx Xx. Xxxxxxxxx XXX 0000 ) states that the attorney
------------------------------------------------ ) has received no notice of
Address of witness ) revocation of the power of
) attorney
Articled Clerk )
------------------------------------------------ )
Occupation of witness )
------------------------------------------------------------------------------
(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 93
26 February 2004
SIGNED by )
)
as attorney for ING BANK N.V. SYDNEY BRANCH under )
power of attorney dated 26 February 2004 )
)
in the presence of: )
)
)
/s/Xxxx Xxxxxxxxxx )
------------------------------------------------
)
Signature of witness )
)
Xxxx Xxxxxxxxxx )
------------------------------------------------ )
Name of witness (block letters) )/s/Xxxxxxx Xxxxx
----------------
) By executing this
) agreement the attorney
00/000 Xxxxxxx Xx. Xxxxxxxxx XXX 0000 ) states that the attorney
------------------------------------------------ ) has received no notice of
Address of witness ) revocation of the power of
) attorney
Articled Clerk )
------------------------------------------------ )
Occupation of witness )
)
SIGNED by )
)
as attorney for JPMORGAN CHASE BANK under power of )
attorney dated )
25 February 2004 )
)
in the presence of: )
)
)
/s/Xxxx Xxxxxxxxxx )
------------------------------------------------ )
)
Signature of witness )
)
Xxxx Xxxxxxxxxx )/s/Xxxxxxx Xxxxx
------------------------------------------------ )----------------
Name of witness (block letters) )By executing this agreement
)the attorney states that
00/000 Xxxxxxx Xx. Xxxxxxxxx XXX 0000 )the attorney has received
------------------------------------------------ )no notice of revocation of
Address of witness )the power of attorney
)
Articled Clerk )
------------------------------------------------ )
Occupation of witness )
------------------------------------------------------------------------------
(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 94
26 February 2004
SIGNED by )
)
as attorney for MIZUHO CORPORATE BANK, LTD under )
power of attorney dated 24 February 2004 )
)
in the presence of: )
)
)
/s/Xxxx Xxxxxxxxxx )
------------------------------------------------ )
)
Signature of witness )
)
Xxxx Xxxxxxxxxx )
------------------------------------------------ )
Name of witness (block letters) )/s/Xxxxxxx Xxxxx
)----------------
) By executing this
) agreement the attorney
00/000 Xxxxxxx Xx. Xxxxxxxxx XXX 0000 ) states that the attorney
------------------------------------------------ ) has received no notice of
Address of witness ) revocation of the power of
) attorney
Articled Clerk )
------------------------------------------------ )
Occupation of witness )
)
)
SIGNED by )
)
as attorney for NATIONAL AUSTRALIA BANK LIMITED )
under power of attorney dated 28/2/91 )
)
in the presence of: )
)
)
/s/Xxxxxxx Keep )
------------------------------------------------ )
)
Signature of witness )
)
Xxxxxxx Keep )
------------------------------------------------ )
Name of witness (block letters) ) /s/Xxxx Xxxxx
) -------------
Xxxxx 00, 000 Xxxxxxx Xx. ) By executing this
Xxxxxxxxx XXX 0000 ) agreement the attorney
------------------------------------------------ ) states that the attorney
Address of witness ) has received no notice of
) revocation of the power of
) attorney
Solicitor )
------------------------------------------------ )
Occupation of witness )
)
------------------------------------------------------------------------------
(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 95
26 February 2004
SIGNED by )
)
as attorney for THE BANK OF TOKYO - MITSUBISHI, )
LTD. MELBOURNE BRANCH under power of attorney )
dated )
31 October 2003 )
)
in the presence of: )
)
)
/s/Xxxxxxx Keep )
------------------------------------------------ )
)
Signature of witness )
)/s/Saburo Xxx
Xxxxxxx Keep )-------------------------
------------------------------------------------ )By executing this
Name of witness (block letters) )agreement the attorney
Xxxxx 00, 000 Xxxxxxx Xx. )states that the attorney
Xxxxxxxxx XXX 0000 )has received no notice of
------------------------------------------------ )revocation of the power of
Address of witness )attorney
)
Solicitor )
------------------------------------------------ )
Occupation of witness
SIGNED by )
Xxxxxxx Xxxxx )
as attorney for UBS AG, AUSTRALIA BRANCH under )
power of attorney dated )
24 February 2004 )
)
in the presence of: )
)
)
/s/Xxxx Xxxxxxxxxx )
------------------------------------------------ )
)
Signature of witness )
)
Xxxx Xxxxxxxxxx ) /s/Xxxxxxx Xxxxx
------------------------------------------------ ) ----------------
Name of witness (block letters) ) By executing this
) agreement the attorney
00/000 Xxxxxxx Xx Xxxxxxxxx XXX 0000 ) states that the attorney
------------------------------------------------ ) has received no notice of
Address of witness ) revocation of the power
) of attorney
)
Articled Clerk )
------------------------------------------------
Occupation of witness )
------------------------------------------------------------------------------
(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 96
26 February 2004
SIGNED by )
Xxxxxxx Xxxxx )
as attorney for UNITED OVERSEAS BANK LIMITED under )
power of attorney dated 25 February 2004 )
)
in the presence of: )
)
)
/s/Xxxx Xxxxxxxxxx )
------------------------------------------------ )
)
Signature of witness )
)
Xxxx Xxxxxxxxxx )
------------------------------------------------ )
Name of witness (block letters) )/s/Xxxxxxx Xxxxx
) ----------------
) By executing this
) agreement the attorney
00/000 Xxxxxxx Xx Xxxxxxxxx XXX 0000 ) states that the attorney
------------------------------------------------ ) has received no notice
Address of witness ) of revocation of the
) power of attorney
Articled Clerk )
------------------------------------------------ )
Occupation of witness )
Facility Agent
SIGNED by )
)
as attorney for AUSTRALIA AND NEW )
ZEALAND BANKING) GROUP )
LIMITED under power of attorney dated )
9 October 1992 )
in the presence of: )
)
)
/s/Xxxxxxx Keep )
------------------------------------------------ )
)
Signature of witness )
)
Xxxxxxx Keep )
------------------------------------------------ )
)/s/Xxxx Xxxxxx
)--------------
Name of witness (block letters) ) By executing this
Xxxxx 00, 000 Xxxxxxx Xx. ) agreement the attorney
Xxxxxxxxx XXX 0000 ) states that the attorney
------------------------------------------------ ) has received no notice
) of revocation of
) the power of attorney
Address of witness )
)
Solicitor )
------------------------------------------------ )
)
Occupation of witness
------------------------------------------------------------------------------
(c) Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement 97
26 February 2004
Loan Note Subscription Agreement
Contents
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(C)Mallesons Xxxxxxx Xxxxxx Loan Note Subscription Agreement
26 February 2004
