EXHIBIT 4(K)
CONFORMED COPY
AMENDED & RESTATED SUBORDINATED FACILITY
AGREEMENT
TXU AUSTRALIA HOLDINGS (PARTNERSHIP)
LIMITED PARTNERSHIP
(BORROWER)
CITIBANK, N.A.
(ARRANGER)
CITISECURITIES LIMITED
(ADMINISTRATIVE AGENT)
and
THE FINANCIERS SPECIFIED IN THE DETAILS AS FINANCIERS
(FINANCIERS)
XXXXXXXX
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HOLLINGDALE
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& PAGE
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000 Xxxxxxx Xxxxxx Xxxxxxxxx Xxxxxxxx 0000 Xxxxxxxxx
XXX Xxx 000X Xxxxxxxxx 0000
Telephone (00) 0000 0000 Facsimile (00) 0000 0000 DX 240 Melbourne
Reference: PWS:SKC:20870612
MELBOURNE SYDNEY PERTH CANBERRA BRISBANE SINGAPORE HANOI HO CHI MINH CITY
CORRESPONDENT OFFICES IN JAKARTA AND KUALA LUMPUR
Liability is limited by the Solicitors Scheme under the Professional
Standards Xxx 0000 (NSW)
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TABLE OF CONTENTS
Clause Page
1 THE FACILITY AND FACILITY LIMIT 14
Original Facility 14
Amendment and Restatement of Original Facility 14
Maximum accommodation 15
Several Obligations 15
Several Interests 15
Termination 16
Performance of Deed Poll 16
2 ISSUE OF LOAN NOTES UNDER THE FACILITY 16
Dealings with Loan Notes 16
Relationship between Loans under the Deed Poll 17
Location of Deed Poll 17
Minimum Amount of Loan Notes and the Corporations Law 17
3 INTEREST 18
Notification of Interest Period 18
When Interest Periods begin and end 18
Notice of Interest Rate 18
4 FEES 18
Agency Fee 18
Arranger Fee 18
Participation Level Fees 18
5 REPRESENTATIONS AND WARRANTIES 19
6 GENERAL UNDERTAKINGS 21
7 EVENTS OF DEFAULT 22
8 COSTS AND INDEMNITIES 24
What the Borrower agrees to pay 24
Indemnity 24
Payment of employees' losses 25
Currency conversion on judgment debt 25
9 REGISTRATION 26
Registered form 26
Issue of Loan Notes by inscription in Register 26
Effect of inscription 26
Appointment of Xxxxxxxxx 00
Register 27
Entries in, and rectification of, Register 27
Certified extracts from Register available 27
Register is paramount 28
Inspection of Register 28
Change of Xxxxxxxxx 00
Discharge of retiring Xxxxxxxxx 00
00 OBLIGATIONS AND RESTRICTIONS 29
No prospectus 29
Financiers to observe laws 29
Restrictions on offer and sales of Loan Notes 29
11 SCOPE OF AGENCY 29
Appointment 29
Extent of authority and obligations 29
Acceptance by Administrative Agent 29
Binding nature of agency 30
Excluded roles and duties 30
The Arranger's and the Financiers' interest in Deed of Common Terms 30
12 HOW AND WHEN THE ADMINISTRATIVE AGENT ACTS 30
After consultation and instructions 30
Matters requiring instructions from all Financiers 31
Matters requiring instructions from a Majority of Financiers 31
Overriding instructions 32
Without consultation or instructions 32
Administrative Agent's actions 32
Financier's instructions 32
13 ADMINISTRATIVE AGENT'S OBLIGATIONS TO GIVE NOTICES AND COPIES 33
Administrative Agent's obligations 33
Administrative Agent's awareness of certain events 33
Administrative Agent may assume compliance 33
Confidentiality 33
Limit on obligations 33
14 ADMINISTRATIVE AGENT'S RELATIONSHIP WITH FINANCIERS 34
Individual responsibility of Financiers 34
Exoneration of Administrative Agent 34
Administrative Agent in capacity of a Financier 35
Administrative Agent dealing in different capacities 35
Administrative Agent to act on Financier's request 35
Restriction on Financiers exercising rights 35
Notice of transfer 36
Financier to pay over amounts received directly 36
Pro-rata refunds 36
Proceeds of litigation 36
Amendment to Transaction Documents 36
15 FUNDING OF ADMINISTRATIVE AGENT 37
Financiers to indemnify against non-payment 37
The Borrower's back-to-back indemnity 37
Funds before acting 37
If a Financier does not fund 37
Borrower's costs obligation not affected 38
16 ADMINISTRATIVE AGENT'S RELATIONSHIP WITH THE BORROWER 38
Compliance may be assumed 38
Administrative Agent is not responsible for Financier's breach 38
17 CHANGE OF ADMINISTRATIVE AGENT 38
Retirement 38
Removal 39
When retirement or removal takes effect 39
Permitted successor Administrative Agent 39
Obligations of retiring and successor Administrative Agent 39
Manner of appointment 39
18 MISCELLANEOUS PROVISIONS RELATING TO AGENCY 40
Delegation by Administrative Agent 40
Duties when delegating 40
Responsibility for delegates 40
Administrative Agent may rely on communications and opinions 40
Force majeure 40
No responsibility for force majeure 40
19 ENTITLEMENTS TO PAYMENTS 41
Entitlement to payments 41
Standing Payment Instructions 41
Direction to pay 41
20 DISTRIBUTION OF PAYMENTS 42
How Administrative Agent is to distribute 42
Excess distributions - contingencies 42
Postponement of non-funding Financiers 42
Manner of distribution 42
Distributions made in error 43
Application of payments 43
21 TRANSFERS AND SUBSTITUTIONS BY FINANCIERS 43
Dealings of rights under Loan Notes by Financiers 43
Syndication - Deed Poll 43
Transfer and Substitution by Financiers 44
Transfer Certificates 44
Assignments and Transfers on the Borrower's Request 45
22 DEALING WITH INTERESTS 46
No dealing by the Borrower 46
Dealings by Financiers 46
Dealings by Administrative Agent 46
23 NOTICES 46
Form 46
24 GENERAL 47
Set-off 47
Certificates 47
Conflict of interest 47
Exercise of rights 47
Supervening legislation 48
Approvals and consent 48
Remedies cumulative 48
Indemnities 48
Time of the essence 48
Further assurances 48
Variation and waiver 48
Confidentiality 49
Inconsistent law 49
Counterparts 49
Applicable law 49
Serving documents 50
25 INTERPRETATION 50
Definitions 50
References to certain general terms 57
Number 57
Headings 58
Deed of Common Terms 58
Partnership 58
SCHEDULE 1 - FINANCIAL CLOSE NOTICE
SCHEDULE 2 - FORM OF TRANSFER CERTIFICATE
SCHEDULE 3 - DEED POLL
SCHEDULE 4 - CONDITIONS PRECEDENT
AMENDED AND RESTATED SUBORDINATED FACILITY AGREEMENT AS OF 30 JUNE 2000
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DETAILS
INTERPRETATION
Definitions are at the end of the General Terms before the schedules.
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BORROWER, ADMINISTRATIVE AGENT, ARRANGER, FINANCIERS,
PARTIES and, subject to the provisions of clause 2 (Issue of Loan
Notes under the Facility), the ADDITIONAL FINANCIERS each
as described below.
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BORROWER TXU Australia Holdings (Partnership) Limited Partnership a
limited partnership formed and registered under the
Partnership Xxx 0000 of Victoria, the general partner of
which is:
Name: TXU Australia Holdings (AGP) Pty Ltd
ACN: 086 014 931
Incorporated in: Victoria
and the limited partners of which are:
Name: TXU Australia (LP) No. 1 Limited
(previously known as TU Australia
Holdings No. 1 Limited)
ARBN: 086 406 733
Incorporated in: England and Wales
and:
Name: TXU Australia (LP) No. 2 Limited
(previously known as TU Australia
Holdings No. 2 Limited)
ARBN: 086 406 724
Incorporated in: England and Wales
Address: Xxxxx 00
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx
Fax: (00) 0000 0000
Telephone: (00) 0000 0000
Attention: Treasurer
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ADMINISTRATIVE AGENT
Name: Citisecurities Limited
ACN: 000 000 000
Address: Xxxxx 00, 0 Xxxxxxxx Xxxxxx, Xxxxxx, Xxx
Xxxxx Xxxxx 0000
Fax: (00) 0000 0000
Telephone: (00) 0000 0000
Attention: Ms Celle Raguine
Standing
Payment
Instructions:
Account Name: Citibank Limited/I/O Account
Account 9522550008
Number:
Bank: Citibank Limited
BSB Number: 242-000
Address: Xxxxx 00, 0 Xxxxxxxx Xxxxxx, Xxxxxx, Xxx
Xxxxx Xxxxx 0000
SWIFT Address: XXXXXX0X
Reference: Citisecurities Limited/TXU/Celle Raguine
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ARRANGER: Name: Citibank, N.A.
ARBN: 072 814 058
Address: Xxxxx 00, 000 Xxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxx 0000
Fax: (00) 0000 0000
Telephone: (00) 0000 0000
Attention: Xxx Xxxxx
Standing
Payment
Instructions:
Account Name: Citibank Corporate Loans
Account 9522640007
Number:
Bank: Citibank Limited
BSB Number: 243-000
Swift Address: XXXXXX0X
Reference: Xxxxxx Xxxxxx - TXU
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FINANCIERS
See last page of these Details
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FACILITY DESCRIPTION: 364 - day guaranteed, subordinated cash
advance facility.
FACILITY A$413,000,000.00, as may be reduced by the
LIMIT: total of all prepayments and repayments
under this agreement and the Deed Poll.
FINANCIAL Means 30 June 2000 or such other date as
CLOSE: may be agreed between the Borrower and the
Arranger.
MATURITY DATE: 364 days from Financial Close.
INTEREST RATE: Bank Xxxx Rate plus the Margin.
INTEREST From Financial Close, 1 month, 2 months, 3
PERIODS: months or 6 months, at the option of the
Borrower or for such periods as may be
agreed between the Borrower and the
Administrative Agent.
PURPOSE: To extend the maturity of the Facility that
was originally intended:
(a) to fund the completion of the purchase
of the assets of Westar Assets, Westar
and Kinetik under the Sale Agreement
(each as defined in the Deed of Common
Terms); and
(b) for the payment of fees and expenses
associated with that purchase, this
agreement and the Deed of Common Terms
and the financing arrangements
contemplated under the Deed of Common
Terms.
DRAWINGS: Single advance not exceeding the Facility
Limit.
PREPAYMENT: Prepayments of at least A$10,000,000 or a
whole multiple of A$1,000,000 are permitted
on 3 Business Days' notice expiring on the
last day of an Interest Period.
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FEES (also see PARTICIPATION As set out in clause 4 (Fees).
clause 4 (Fees)) FEES:
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AGENCY FEE: As separately agreed in writing between
the Administrative Agent and the Borrower in
the Agency Fee Letter.
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ARRANGER FEE: As separately agreed in writing between
the Arranger and the Borrower in the
Arranger Mandate Letter.
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TRANSACTION
DOCUMENTS include:
o this agreement
o the Financial Close Notice
o any Transfer Certificate
o the Texas Guarantee
o the Deed of Common Terms
o the Arranger Mandate Letter
o the Agency Fee Letter
o each New Creditor Accession Deed
o the Deed Poll
o each Loan Note
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BUSINESS DAY PLACE
Melbourne and Sydney
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GOVERNING LAW
New South Wales
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DATE OF AGREEMENT
as of 30 June 2000
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FINANCIERS:
ORIGINAL FINANCIERS
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NAME AND DETAILS ORIGINAL COMMITMENT
COMMITMENT
A$
A$
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Citibank, N.A. 213,000,000 50,000,000
ARBN: 072 814 058
Address and Lending Office:
Xxxxx 00, 000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 0000
Fax: (00) 0000 0000
Telephone: (00) 0000 0000
Attention: Xxx Xxxxx- Vice
President
Standing Payment Instructions:
Account Number: 9522640007
Bank: Citibank Limited
BSB Number: 243-000
Swift Address: XXXXXX0X
Reference: Xxxxxx Xxxxxx -
TXU
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BA Australia Limited 100,000,000 50,000,000
ACN: 004 617 341
Address and Lending Office:
Xxxxx 00,
XXX Xxxxxx
00-00 Xxxxxx Xxxxx, Xxxxxx
XXX 0000
Fax: (00) 0000 0000
Telephone: (00) 0000 0000
Attention: Xxxx Xxxxxxx - Senior
Vice President, Portfolio
Management, Global Project Finance
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Standing Payment Instructions:
Account Name: Bank of America NT &
SA
Account Number: 00000000
Bank: National Australia Bank
BSB Number: 232-001
Swift Address: XXXXXXXX
Reference: TXU
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Westpac Banking Corporation 100,000,000 89,000,000
ARBN: 007 457441
Address and Lending Office:
Xxxxx 00, 000 Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxx 0000
Fax: (00) 0000 0000
Telephone: (00) 0000 0000
Attention: Xxxxxxx Xxxxxxxx,
Relationship Officer
Standing Payment Instructions:
Account Name: Suspense Account
Manager - Project & Syndications
Account Number: 10-2099
Bank: Westpac Banking Corporation
BSB Number: 032-001
Swift Address: XXXXXX0X
Reference: TXU Australia
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ADDITIONAL FINANCIERS
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NAME AND DETAILS COMMITMENT
A$
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The Toronto - Dominion Bank,
Australia Branch 89,000,000
ARBN: 082 818 175
Address and Lending Office:
Xxxxx 00, 000 Xxxxxxx Xxxxxx,
Xxxxxx Xxxxx Xxxxx,
Xxxxxxxxx, Xxxxxxxx 0000
Fax: (00) 0000 0000
Telephone: (00) 0000 0000
Attention: Xxxxxx XxXxx -Vice
President & Director, Energy &
Utilities
Standing Payment Instructions:
Account Name: The
Toronto-Dominion Bank, Melbourne
Branch
Account Number: 000000
Bank: The Toronto-Dominion Bank
BSB Number: 933-001
Swift Address: XXXXXX0X
Reference: Xxx Xxxxxx (TXU)
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Australia and New Zealand Banking 50,000,000
Group Limited
ACN: 005 357 522
Address and Lending Office:
Xxxxx 00, 000 Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxx 0000
Fax: (00) 0000 0000
Telephone: (00) 0000 0000
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Attention: Xxxxxxx Xxxxxx,
Analyst, Utilities &
Infrastructure
Standing Payment Instructions:
Account Name: Manager Account -
TXU Australia Holdings
(Partnership) Limited Partnership
Account Number: 836921598
Bank: Australia and New Zealand
Banking Group Limited
BSB Number: 013-056
Swift Address: XXXXXX0X
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Royal Bank of Canada
50,000,000
ARBN: 076 940 880
Address and Lending Office: Xxxxx
00, 000 Xxxxxxxxx Xxxxxx, Xxxxxx
Xxx Xxxxx Xxxxx 0000
Fax: (00) 0000 0000
Telephone: (00) 0000 0000
Attention: Xxxxx Xxxxxx -
Director, Global Banking
Standing Payment Instructions:
Account Name: Royal Bank of
Canada Sydney
Account Number: Direct via RTGS
Bank: Royal Bank of Canada
BSB Number: 935-001
Swift Address: XXXXXX0X
Reference: TXU Australia Holdings
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United Overseas Bank Limited, 35,000,000
Sydney Branch
ARBN: 060 785 284
Address and Lending Office:
Xxxxx 0, 00 Xxxxxx Xxxxx,
Xxxxxx XXX 0000
Fax: (00) 0000 0000
Telephone: (00) 0000 0000
Attention: Xxxxx Xxxx - General
Manager
Standing Payment Instructions:
Account Name: TXU Australia
Holdings
Account Number: 703200
Bank: United Overseas Bank
Limited, Sydney Branch
BSB Number: 922-001
Swift Address: XXXXXX0X
Reference: TXU - STA
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GENERAL TERMS
1 THE FACILITY AND FACILITY LIMIT
ORIGINAL FACILITY
1.1 Citibank, N.A. had granted to the Borrower and Eastern a facility
under this agreement executed on 24 February 1999, as subsequently
amended by the Amending Agreements and in respect of which Citibank,
N.A., with the prior consent of the Guarantor, assigned a portion of
its rights under such facility on 24 December 1999 to BA Australia
Limited and a portion of its rights under such facility on 30 December
1999 to Westpac Banking Corporation.
1.2 The Original Facility was subordinated in a partnership corporate
structure of the Borrower and Eastern to other Senior Creditors (as
defined in the Deed of Common Terms).
1.3 A guarantee entitled "Guaranty" dated 24 February 1999 had been
granted by the Guarantor in relation to the Original Facility in
favour of Citibank, N.A. and, pursuant to the assignments referred to
in clause 1.1, BA Australia Limited and Westpac Banking Corporation.
AMENDMENT AND RESTATEMENT OF ORIGINAL FACILITY
1.4 Pursuant to the Amendment and Restatement Agreement, the following
events occurred in the order set out below:
(a) each of the Borrower and Eastern paid the Original Administrative
Agent on 30 June 2000 for the account of the Original Financiers
an amount equal to the total amount of interest accrued but
unpaid on their respective drawings provided to it under the
Original Facility for the period up to but excluding 30 June
2000;
(b) notwithstanding the terms of the Original Facility, the Original
Financiers consented to the making of a drawing under the
Original Facility on 30 June 2000 to the Borrower of an amount
equal to the aggregate amount of all drawings provided to Eastern
under the Original Facility in their respective proportions which
their Original Commitment bears to the Facility Limit;
(c) on 30 June 2000, Eastern repaid the aggregate amount of all
drawings provided to it under the Original Facility and the
Original Financiers directed Eastern to make a direct payment on
30 June 2000 to the Borrower (or at its direction) of an amount
equal to such amount repaid by Eastern;
(d) Eastern, the Borrower, the Original Administrative Agent and the
Original Financiers agreed that the payment made by Eastern to
the Borrower (or at its direction) referred to in clause 1.4(c)
was:
(1) in full and final payment of Eastern's liabilities and
obligations to the Original Financiers in relation to the
Original Facility; and
(2) construed as the making available of the drawing to the
Partnership on 30 June 2000 referred to in clause 1.4(b) by
the Original Financiers.
(e) the interest accrued on the Principal Outstanding as at and up to
the date of Financial Close was paid in full by each of Eastern
and the Borrower;
(f) the rights, liabilities and obligations of Eastern in relation to
the Original Facility was assigned and transferred to, and
assumed by, the Borrower;
(g) the Original Administrative Agent of the Original Facility
retired;
(h) the Administrative Agent was appointed in accordance with the
terms of this agreement as amended and restated in its current
form;
(i) this agreement was amended and restated in its current form;
(j) the Deed Poll was executed on or about the date of Financial
Close;
(k) the guarantee referred to in clause 1.3 was replaced and
expressed to be in favour of the Administrative Agent, the
Arranger and the Financiers in relation to the Facility;
(l) each of the Original Financiers accepted a Loan Note (by
inscription in the Register) in respect of its Original
Commitment and:
(1) such Loan Note was registered under the Deed Poll; and
(2) its Original Commitment was deemed to be provided
through its Lending Office.
1.5 The Facility is subordinated in a partnership corporate structure of
the Borrower to other Senior Creditors (as defined in the Deed of
Common Terms).
MAXIMUM ACCOMMODATION
1.6 The maximum total amount of financial accommodation available to the
Borrower under this agreement is the Facility Limit.
1.7 Despite anything in this agreement, a Financier need not provide
financial accommodation under this agreement to the extent by which
its Drawn Commitment after providing that financial accommodation
would exceed its Commitment.
1.8 Subject to the terms of clause 12.2(a) (Matters requiring instructions
from all Financiers) and to the prior written consent of the
Guarantor, the parties to this agreement may agree to an increase to
the Facility Limit.
SEVERAL OBLIGATIONS
1.9 The obligations of each Financier under this agreement and each
Transaction Document are several. The failure of a Financier to
perform its obligations under a Transaction Document will not relieve
any other Financier, the Administrative Agent or the Borrower of any
of their respective obligations under a Transaction Document. The
Administrative Agent will not be responsible for the obligations of
any Financier (except for its own obligations, if any, as a Financier)
nor will any Financier be responsible for the obligations of any other
Financier.
SEVERAL INTERESTS
1.10 The interests of the Administrative Agent and each Financier under
this agreement and each Transaction Document are several. Subject to
the provisions of the Transaction Documents, each Financier may
separately enforce its rights under any Transaction Document.
TERMINATION
1.11 The Facility terminates on the Maturity Date.
PERFORMANCE OF DEED POLL
1.12 Each Financier and the Administrative Agent undertakes to do
everything the Deed Poll provides that it is to do and agrees to be
bound by the Deed Poll.
2 ISSUE OF LOAN NOTES UNDER THE FACILITY
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DEALINGS WITH LOAN NOTES
2.1 Subject to the confirmations from the Arranger and the Administrative
Agent to the Borrower of the receipt of the following documents in
form and substance satisfactory to the Arranger and the Administrative
Agent:
(a) all of the documents referred to in Schedule 4 (Conditions
Precedent);
(b) the Financial Close Notice duly completed by the Borrower; and
(c) all the Additional Financier Transfer Certificates duly executed
by the Additional Financiers and the Original Financiers;
on the date of Financial Close:
(1) the Administrative Agent must execute all the Additional
Financier Transfer Certificates and whereupon each Original
Financier assigns and transfers to each Additional Financier
a part of its rights and obligations in the Original
Commitment such that each Additional Financier has the
rights and obligations to the Borrower in respect of such
Additional Financier's Commitment and each Additional
Financier accepts such assignment and transfer by paying an
amount equal to the Commitment of such Additional Financier
to the Administrative Agent in accordance with the Standing
Payment Instructions of the Administrative Agent for the
account of the Original Financiers; and
(2) upon receipt of an amount equal to the aggregate of the
Commitments of the Additional Financiers, the Administrative
Agent shall notify the Borrower and:
(A) each Additional Financier must execute a New Creditor
Accession Deed; and
(B) the Borrower must then issue a Loan Note to each
Financier by instructing the Administrative Agent to
inscribe the issue in the Register, such instruction to
be deemed to have been duly given by the Borrower
(without any requirement for a written notice to that
effect from the Borrower) upon the execution of all the
New Creditor Accession Deeds by the Additional
Financiers where each Loan Note is for:
(i) a maximum principal amount which may be outstanding
from time to time under it equal to the Financier's
Commitment; and
(ii) a principal amount outstanding equal to the Financier's
Proportion of the Drawings from time to time
outstanding.
2.2 The Administrative Agent must then pay to each Original Financier in
accordance with the applicable Standing Payment Instructions an amount
which is equal to the difference between its Original Commitment and
its Commitment whereupon the Original Financiers will be deemed to
have surrendered their existing Loan Notes to the Borrower and the
Borrower must cancel such Loan Notes by instructing the Administrative
Agent to inscribe such cancellation in the Register, such instruction
to be deemed to have been duly given by the Borrower (without any
requirement for a written notice to that effect from the Borrower upon
such payments by the Administrative Agent).
2.3 Anything required to be certified under clause 2.1 must be certified
by:
(a) the secretary or a director of the General Partner; or
(b) the secretary or assistant secretary or treasurer or assistant
treasurer of the Guarantor,
as appropriate, as being true and correct as at a date no earlier than
the date of Financial Close.
RELATIONSHIP BETWEEN LOANS UNDER THE DEED POLL
2.4 The Borrower shall repay or prepay amounts between the Loan Notes
rateably according to the participation in the Principal Outstanding
of the Financiers who hold them, except where the Borrower is
expressly permitted to repay or prepay a Loan to an individual
Financier under the Transaction Documents.
LOCATION OF DEED POLL
2.5 The Administrative Agent shall at all times retain the Deed Poll in
New South Wales.
MINIMUM AMOUNT OF LOAN NOTES AND THE CORPORATIONS LAW
2.6 The Borrower must ensure that the total principal amount drawn on the
date of Financial Close is an amount that will ensure that each Loan
Note has an outstanding principal amount of at least A$500,000 or the
Loan Notes issued on the date of Financial Close are issued in a
manner which does not require disclosure under Chapter 6D under the
Corporations Law.
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3 INTEREST
NOTIFICATION OF INTEREST PERIOD
3.1 The first Interest Period for a Loan is the period specified in the
Financial Close Notice. Each subsequent Interest Period is a period
notified by the Borrower to the Administrative Agent by 11am on the
second Business Day before the last day of the current Interest
Period. However, in each case, the specified period must be one that
is set out in the Details. If the Borrower does not give notice or
correct notice, the subsequent Interest Period is the same length as
the Interest Period which immediately precedes it (or it is the period
until the Maturity Date, if that is shorter than the preceding
Interest Period).
WHEN INTEREST PERIODS BEGIN AND END
3.2 The first Interest Period for a Loan begins on the date of Financial
Close. Each subsequent Interest Period begins on the day when the
preceding Interest Period for the Loan ends. An Interest Period which
would otherwise end on a day which is not a Business Day ends on the
next Business Day unless that next Business Day would fall in a new
calendar month in which case the Interest Period ends on the
immediately preceding Business Day and an Interest Period which would
otherwise end after the Maturity Date ends on the Maturity Date.
NOTICE OF INTEREST RATE
3.3 The Administrative Agent shall notify the Borrower of the Interest
Rate applicable to an Interest Period in respect of a Loan promptly
following a request in writing from the Borrower.
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4 FEES
AGENCY FEE
4.1 The Borrower agrees to pay the Administrative Agent for itself an
agency fee in accordance with the terms separately agreed in an agency
fee letter between the Borrower and the Administrative Agent.
ARRANGER FEE
4.2 The Borrower agrees to pay the Arranger for itself an arranging fee in
accordance with the terms separately agreed in an arranger mandate
letter between the Borrower and the Arranger.
PARTICIPATION LEVEL FEES
4.3 The Borrower agrees to pay to the Administrative Agent for the account
of each of the Original Financiers and the Additional Financiers on
the date of Financial Close a participation level fee equal to an
amount calculated by multiplying:
(a) the Commitment of each Financier as at the date of Financial
Close;
by
(b) the fee which corresponds to the proposed participation level of
that Financier offered in its commitment letter to the Arranger
as follows:
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FEE (BASIS POINTS
PARTICIPATION LEVEL FLAT)
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From A$35,000,000 to < A$50,000,000 17.5
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From A$50,000,000 to < A$75,000,000 20.0
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From A$75,000,000 22.5
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5 REPRESENTATIONS AND WARRANTIES
5.1 The Borrower represents and warrants that:
(a) the Partnership has been duly formed and registered under the
Partnership Xxx 0000 of Victoria as a limited partnership, is
validly existing under the laws of Victoria and has power and
authority to carry on its business as it is now being conducted;
and
(b) the General Partner is the only general partner of the
Partnership and the Limited Partners are the only limited
partners of the Partnership; and
(c) the General Partner has been duly incorporated as a company
limited by shares in accordance with the laws of Victoria, is
validly existing under those laws and has power and authority to
carry on its business as it is now being conducted; and
(d) the Borrower has power to enter into and observe its obligations
under the Transaction Documents; and
(e) the General Partner has power (including, without limitation,
under the Partnership Deed) to enter into the Transaction
Documents to which it is a party and to bind the Partnership
under, and as contemplated by, such Transaction Documents; and
(f) the Borrower has in full force and effect all authorisations
(including, without limitation, all authorisations under the
Partnership Deed) necessary to enter into the Transaction
Documents, observe obligations under them and allow them to be
enforced; and
(g) the General Partner has in full force and effect all
authorisations (including, without limitation, all authorisations
under the Partnership Deed) necessary to enter into the
Transaction Documents to which it is a party, to bind the
Partnership under, and as contemplated by, them and to allow them
to be enforced; and
(h) the obligations of the Borrower under the Transaction Documents
are valid and binding and are enforceable against the Borrower in
accordance with their terms except to the extent limited by
equitable principles and laws affecting creditors' rights
generally; and
(i) the Transaction Documents to which it is a party and the
transactions under them do not contravene:
(1) its constituent documents (if any); or
(2) the Partnership Deed; or
(3) any law, regulation or official directive or any of its
obligations or undertakings by which they or any of their
assets are bound or cause a limitation on their powers or
the powers of the General Partner's directors to be exceeded
which, in the case of the Licences or the Material Contracts
(each as defined in the Deed of Common Terms) to which it is
a party, is likely to have a Material Adverse Effect; and
(j) it has fully disclosed to the Financiers all facts relating to
the Borrower and its material Subsidiaries which are material to
the assessment of the nature and amount of the risk undertaken by
the Financiers in entering into the Transaction Documents and
doing anything in connection with them; and
(k) no Event of Default continues unremedied; and
(l) neither the Borrower nor any of its material Subsidiaries is in
default under a law, regulation, official directive, instrument,
undertaking or obligation affecting any of them or their
respective assets in a way which is likely to have a Material
Adverse Effect; and
(m) there is no pending or threatened action or proceeding affecting
the Borrower or any of its material Subsidiaries or any of their
respective assets before a court, governmental agency, commission
or arbitrator which is likely to have a Material Adverse Effect;
and
(n) neither the Borrower nor any of its material Subsidiaries has
immunity from the jurisdiction of a court or from legal process
(whether through service of notice, attachment prior to judgment,
attachment in aid of execution, execution or otherwise); and
(o) it does not enter into any Transaction Document in the capacity
of a trustee of any trust or settlement; and
(p) the Borrower, except to the extent the property and undertaking
of the Partnership are held in the name of the General Partner,
is the beneficial owner of and has good title to all property
held by it or on its behalf and all undertakings carried on by it
free from any Security Interest other than Permitted Security
Interests; and
(q) the Borrower benefits by executing the Transaction Documents to
which it is a party; and
(r) each certification given by the secretary or a director of the
General Partner under clause 2.3 (Dealings with Loan Notes) of
this agreement is true and complete; and
(s) there are no reasonable grounds to suspect that the Borrower is
unable to pay its debts as and when they become due and payable;
and
(t) it has not contravened nor will it contravene Chapter 2E or Part
2J.3 of the Corporations Law by entering into or participating in
any Transaction Document or any transaction contemplated by any
Transaction Document; and
(u) to the best of its knowledge and belief, having made due enquiry,
all historical information provided to each Financier or a
Related Entity of any of them by or on behalf of the Borrower or
the Guarantor in connection with the Transaction Documents is
true and accurate in all material respects as at the date when
such information was provided and, to the best of its knowledge,
there are no material facts or circumstances which have not been
disclosed to each Financier and which, if disclosed, might
reasonably be expected to significantly adversely affect the
decision of a person considering whether to provide financial
accommodation to the Borrower and all forecasts and projections
have been made in good faith; and
(v) each representation and warranty made or taken to be made by the
Core Borrowers (as defined in the Deed of Common Terms) in the
Deed of Common Terms is true and correct.
5.2 These representations and warranties are taken to be also made on the
date of Financial Close.
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6 GENERAL UNDERTAKINGS
The Borrower undertakes to:
(a) keep and ensure that each of its Subsidiaries keeps proper and
adequate books of account; and
(b) give the Administrative Agent (in sufficient number of copies for
all the Financiers) audited consolidated Financial Statements of
the Partnership for each financial year within 120 days of the
end of that year; and
(c) give the Administrative Agent (in sufficient number of copies for
all the Financiers) unaudited consolidated Financial Statements
of the Partnership for the first six months of each financial
year within 90 days of the end of that six months; and
(d) give promptly to the Administrative Agent any information and
supporting evidence that the Administrative Agent reasonably
requests from time to time; and
(e) notify the Administrative Agent promptly after the Borrower
becomes aware if any representation or warranty made or taken to
be made by or on behalf of the Borrower or the General Partner in
connection with a Transaction Document is found to be incorrect
or misleading in any material respect when made or taken to be
made; and
(f) do, and ensure that each of its Subsidiaries does, everything
within its power necessary to ensure that no Event of Default
occurs; and
(g) on reasonable request from the Administrative Agent if the
Administrative Agent considers in good faith (acting on
instructions of a Majority of Financiers) that an Event of
Default or Potential Event of Default may have occurred, provide
the Administrative Agent with a certificate signed by two
directors of the General Partner which states whether an Event of
Default or Potential Event of Default continues unremedied; and
(h) notify the Administrative Agent promptly after the Borrower
becomes aware of its occurrence of full details of an Event of
Default or a Potential Event of Default, and the steps taken to
remedy it;
(i) obtain, renew on time and comply with the terms of each
authorisation (including, without limitation, all authorisations
under the Partnership Deed) necessary to enter into the
Transaction Documents to which it is a party, observe obligations
under them and allow them to be enforced; and
(j) in the event that it incurs further Junior Finance Debt,
Qualifying Subordinated Debt or Subordinated Indebtedness (as
those terms are defined in the Deed of Common Terms) (referred to
in this agreement as "FURTHER SUBORDINATED DEBT") in addition to
the amounts owing under this Facility, select this Facility as
having the benefit of the terms of clause 6.6 of the Deed of
Common Terms in relation to payments of Interest (as that term is
defined in the Deed of Common Terms) under this Facility in
priority to that Further Subordinated Debt, provided that in the
event that the Borrower incurs any Further Subordinated Debt
which is used to repay or prepay any portion of Drawings owing
under this Facility, that portion of Further Subordinated Debt
used in this manner shall rank equally with this Facility in
respect of the benefit of the terms of clause 6.6 of the Deed of
Common Terms.
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7 EVENTS OF DEFAULT
7.1 An Event of Default occurs if:
(a) the Borrower or the Guarantor does not pay on time any money
payable under any Transaction Document in the manner required
under it; or
(b) any present or future monetary obligation of the Borrower for
sums in aggregate exceeding A$10,000,000:
(1) in connection with money borrowed or raised by any of them,
or any hiring arrangement, redeemable preference share,
letter of credit, financial markets transaction (including,
without limitation, a swap, option or futures contract) to
which any of them is party:
(A) is not satisfied on time or at the end of its period of
grace; or
(B) becomes prematurely payable and is not discharged when
due; or
(2) to guarantee or indemnify against loss in connection with
money borrowed or raised is not discharged at maturity or
when called; or
(c) distress is levied or a judgment, order or Security Interest is
enforced, or becomes enforceable against any property of the
Borrower or the General Partner for an amount exceeding
A$5,000,000; or
(d) a representation or warranty made or taken to be made by or on
behalf of the Borrower, the General Partner or the Guarantor in
connection with a Transaction Document is found or is notified by
the Borrower, the General Partner or the Guarantor to be
incorrect or misleading in a material respect when made or taken
to be made; or
(e) an Insolvency Event occurs in respect of the Borrower or the
General Partner; or
(f) a controller or administrator (as defined in the Corporations
Law) is appointed in respect of any part of the property of the
Borrower or the General Partner; or
(g) the Borrower or the General Partner stops payment, ceases to
carry on its business or a material part of it, or threatens to
do either of those things except to reconstruct or amalgamate
while solvent on terms approved by the Administrative Agent
(after consultation with and acting on the instructions of a
Majority of Financiers); or
(h) the Borrower or the General Partner takes action to reduce its
capital or buy back any of its ordinary shares or passes a
resolution referred to in section 254N of the Corporations Law,
in any case without the consent of the Administrative Agent
(after consultation with and acting on the instructions of a
Majority of Financiers); or
(i) a person is appointed under legislation to manage any part of the
affairs of the Borrower or the General Partner; or
(j) any party to a Transaction Document (other than the
Administrative Agent, the Arranger and the Financiers) or a
person on that party's behalf claims that a Transaction Document
or a material clause in a Transaction Document is wholly or
partly void, voidable or unenforceable; or
(k) a Transaction Document or a material clause in a Transaction
Document is or becomes wholly or partly void, voidable or
unenforceable, and, if, in the reasonable opinion of the
Administrative Agent (after consultation with a Majority of
Financiers), that state of affairs is remediable, and each of the
Borrower and Guarantor fails promptly to take all steps
reasonably requested by the Administrative Agent (acting on the
instructions of a Majority of Financiers) to remedy, in
co-operation with the Administrative Agent, the relevant defect;
or
(l) the Guarantor ceases to own and control, directly or indirectly,
all of the shares, stock or other ownership interests in the
General Partner and the Borrower; or
(m) the Borrower or the Guarantor does not observe any other
obligation under any Transaction Document (other than the Deed of
Common Terms) to which it is a party and, if, in the reasonable
opinion of the Administrative Agent (after consultation with a
Majority of Financiers), the non-observance can be remedied, does
not remedy the non-observance within 30 days; or
(n) the Partnership is wound up or dissolved or any step is taken or
any resolution is passed for the winding up or dissolution of the
Partnership; or
(o) any "Event of Default" as defined in the TUC Credit Agreement
occurs and is continuing and has not been waived under the TUC
Credit Agreement; or
(p) any "Event of Default" as defined in the Deed of Common Terms
occurs and is continuing and has not been waived under the Deed
of Common Terms.
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8 COSTS AND INDEMNITIES
WHAT THE BORROWER AGREES TO PAY
8.1 The Borrower agrees to pay or reimburse the Administrative Agent on
demand for:
(a) the reasonable Costs of the Administrative Agent and each
Financier in connection with:
(i) the negotiation, preparation, execution, stamping,
registration and completion of any Transaction Document
(other than any Transfer Certificates which do not relate to
transfers occurring under clause 21.5 (Assignments and
Transfers on the Borrower's Request)); and
(ii) any enquiry by any authority involving the Borrower, the
General Partner, the Guarantor or any of their Related
Entities; and
(iii) giving and considering consents, approvals, waivers,
discharges and releases and any variation or amendment of,
under, to or otherwise in connection with a Transaction
Document;
(b) the Costs of the Administrative Agent and each Financier in
connection with the contemplated or actual enforcement or
preservation of any rights under any Transaction Document; and
(c) Taxes and fees (including registration fees) and fines and
penalties in respect of fees paid, or that the Administrative
Agent reasonably believes are payable or determined to be payable
in connection with any Transaction Document or a payment or
receipt or any other transaction contemplated by any Transaction
Document. However, the Borrower need not pay a fine or penalty in
connection with Taxes or fees to the extent that it has placed
the Administrative Agent in sufficient cleared funds for the
Administrative Agent to be able to pay the Taxes or fees by the
due date
including in the case of clause 8.1(b), without limitation legal Costs
and expenses (incurred by the Administrative Agent or, as the case may
be, the Financier acting reasonably) on a full indemnity basis or
solicitor and own client basis, whichever is the higher.
The Administrative Agent may debit any of these amounts to the
Borrower's account after asking the Borrower to pay and the Borrower
has failed to pay the amount requested.
8.2 The Borrower agrees that the costs, charges and expenses referred to
in clauses 8.1(a)(ii) and (c) include, without limitation, those
payable to any independent consultant or other person appointed to
evaluate any matter of concern and the Administrative Agent and each
Financier's reasonable administration costs in connection with any
event referred to in such clauses.
INDEMNITY
8.3 The Borrower indemnifies the Administrative Agent and each Financier
against any liability or loss arising from, and any Costs incurred in
connection with:
(a) the payment, omission to make payment or delay in making payment
of an amount referred to in clause 8.1 (What the Borrower agrees
to pay); or
(b) an Event of Default; or
(c) financial accommodation required under a Transaction Document not
being made available in accordance with the request for any reason
except default of the Administrative Agent or the Financier; or
(d) all or any part of the Loans being repaid, prepaid or made payable for
any reason other than at its maturity in accordance with a Transaction
Document or any other payment required to be made under any
Transaction Document not being made on its due date. (Any part of the
Loans prepaid under clause 6 of the Deed Poll (Repaying and prepaying)
is not to be taken to have been repaid at its maturity in accordance
with the Transaction Document); or
(e) any indemnity the Administrative Agent or the Financier properly gives
a Controller or an administrator of the Borrower; or
(f) the Administrative Agent or the Financier acting in connection with a
Transaction Document in good faith on facsimile, 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 the Administrative Agent or, as the case may be, the Financier
believes to be genuine and correct,
including, without limitation, liability, loss, costs, charges or expenses
on account of funds borrowed, contracted for or used to fund any amount
payable under the Transaction Documents and including in each case, without
limitation, legal Costs and expenses (incurred by the Administrative Agent
or, as the case may be, the Financier acting reasonably) in accordance with
any written agreement as to legal costs or, if no agreement, on a full
indemnity basis or solicitor and own client basis, whichever is the higher,
except for such costs, charges and expenses resulting from the gross
negligence or wilful misconduct of the Administrative Agent or, as the case
may be, the Financier.
PAYMENT OF EMPLOYEES' LOSSES
8.4 The Borrower agrees to pay the Administrative Agent an amount equal to
any liability or loss and any Costs of the kind referred to in clause
8.3 (Indemnity) suffered or incurred by any employee, officer, agent
or contractor of the Administrative Agent or the Financier unless
caused by that person's gross negligence.
CURRENCY CONVERSION ON JUDGMENT DEBT
8.5 If a judgment, order or proof of debt for an amount in connection with
a Transaction Document is expressed in a currency other than that in
which the amount is due under the Transaction Document, then the
Borrower must indemnify the Administrative Agent and each Financier
against:
(a) any difference arising from converting the other currency if the
rate of exchange used by the Administrative Agent or the
Financier under clause 9.4 of the Deed Poll (Currency of payment)
for converting currency when it receives a payment in the other
currency is less favourable to the Administrative Agent or the
Financier 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.
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9 REGISTRATION
REGISTERED FORM
9.1 Each Loan Note is in registered form. No global or definitive
certificate will be issued in respect of it, unless required by law.
ISSUE OF LOAN NOTES BY INSCRIPTION IN REGISTER
9.2 The issue of each Loan Note is effected by the initial inscription of
the details of the Loan Notes in the Register by the Registrar as
agent of the Borrower.
EFFECT OF INSCRIPTION
9.3 Each inscription in the Register in respect of a Loan Note (whether
upon the initial subscription for that Loan Note or upon a transfer or
substitution in accordance with clause 21 (Transfers and Substitutions
by Financiers)) constitutes:
(a) the issue of the relevant Loan Note (in the case of the initial
inscription in the Register); and
(b) an acknowledgment to the relevant Financier by the Borrower of
the indebtedness of the Borrower to that Financier under the Deed
Poll; and
(c) an undertaking by the Borrower to the relevant Financier to make
all payments of principal and interest in respect of the Loan
Note in accordance with the terms of the Loan Note and the Deed
Poll; and
(d) an entitlement to the other benefits given to Financiers and the
Administrative Agent under the Deed Poll.
APPOINTMENT OF REGISTRAR
9.4 (a) (a) The Administrative Agent is appointed by the Borrower as its
agent to act as the Registrar of the Loan Notes on the terms and
conditions of this agreement and the Deed Poll and the Administrative
Agent accepts that appointment.
(b) The Registrar acts as agent on behalf of the Borrower and not as
trustee and has no fiduciary duties in its capacity as Registrar
and is not liable for its acts or omissions except in the case of
fraud, gross negligence or wilful misconduct.
(c) The Registrar agrees to act as agent of the Borrower in
maintaining the Register and making entries into the Register.
(d) The Registrar agrees to exercise the rights, remedies, powers and
discretions and perform the duties and obligations which are
specifically delegated to or conferred on it by the Transaction
Documents in accordance with this clause 9. The Registrar has no
obligations except those expressly set out or referred to in the
Transaction Documents.
REGISTER
9.5 The Registrar agrees to do the following things:
(a) establish and maintain the Register in New South Wales (or such
other place as the Borrower, the Registrar and the Administrative
Agent may agree) as agent of the Borrower;
(b) enter or cause to be entered in the Register in respect of each
Loan Note:
(i) the issue date (being the day on which the Loan Note is
issued by inscription in the Register);
(ii) the name and address of each Financier who is an initial
holder of a Loan Note and each Financier to whom the Loan
Note is subsequently transferred (which names and addresses
must be the same name and address specified for that
Financier in this agreement or a Transfer Certificate);
(iii) the Lending Office of each Financier;
(iv) the maximum principal amount (which must be an amount equal
to the Financier's Commitment);
(v) the principal amount outstanding from time to time (which
must be the same as the Principal Outstanding owing to the
relevant Financier under the relevant Loan Notes);
(vi) the redemption date (which must be the Maturity Date);
(vii) the date of all transfers;
(viii) the account of the Financier to which payments are to be
paid or the address to which those payments are to be
posted;
(ix) the Financier's tax file number or exemption details (if
provided);
(x) a record of each payment made;
(xi) each Interest Payment Date; and
(xii) such other information that the Borrower and the Registrar
consider necessary or desirable.
ENTRIES IN, AND RECTIFICATION OF, REGISTER
9.6 If:
(a) there is any error, omission, defect or misdescription in the
Register; or
(b) the Administrative Agent gives notice to the Registrar of any
change in any of the details recorded in respect of the Financier
pursuant to clause 9.5 (Register),
the Registrar must rectify the Register promptly on becoming
aware of it or following notification of it.
CERTIFIED EXTRACTS FROM REGISTER AVAILABLE
9.7 The Borrower agrees to procure that the Registrar provides (and the
Registrar agrees so to provide) to each Financier a certified extract
of the particulars as required by clause 9.5(b) (Register) entered in
the Register in relation to that Financier and the Loan Notes held by
it upon the issue of a Loan Note to that Financier.
REGISTER IS PARAMOUNT
9.8 (a) (a) The Borrower, the Administrative Agent and the Financiers
recognise the Financier whose name appears in the Register as the
absolute owner of the Loan Notes inscribed in its name in the Register
without regard to any other record or instrument subject to
rectification for fraud or error.
(b) No notice of any trust or other interest in any Loan Note will be
entered on the Register. The Borrower and the Administrative
Agent 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.
INSPECTION OF REGISTER
9.9 Each Financier and the Borrower may inspect the Register: (a) on prior
reasonable notice to the Registrar; and
(b) between 9.30am and 4.30pm on the day on which business is
generally carried on in the place where the Register is kept.
CHANGE OF REGISTRAR
9.10 The Registrar may retire as the Registrar by giving to the Borrower
and each Financier not less than 30 days' notice of its intention to
do so. No retirement takes effect unless there has been appointed as a
successor Registrar either:
(a) a Financier nominated by the Administrative Agent (acting on the
instructions of the Majority of Financiers); or
(b) a reputable and experienced bank or financial institution
nominated by the Registrar and approved by the Administrative
Agent (acting on the instructions of the Majority of Financiers),
and,
(c) provided no Event of Default or Potential Event of Default is
subsisting, who is approved by the Borrower (such approval not to
be unreasonably withheld or delayed).
DISCHARGE OF RETIRING REGISTRAR
9.11 When a successor Registrar is appointed, the retiring Registrar is
discharged (without prejudice to any accrued rights or obligations)
from any further obligations under this agreement and the Deed Poll.
The successor Registrar and each other party to the Transaction
Documents has the same rights and obligations among themselves as they
would have had if the successor Registrar had been a party to this
agreement and the Deed Poll.
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10 OBLIGATIONS AND RESTRICTIONS
NO PROSPECTUS
10.1 Each Financier acknowledges that no prospectus in relation to the Loan
Notes has been lodged with or registered by the Australian Securities
and Investments Commission.
FINANCIERS TO OBSERVE LAWS
10.2 Each Financier agrees to observe laws and regulations in any
jurisdiction in which it may offer, sell or deliver Loan Notes.
RESTRICTIONS ON OFFER AND SALES OF LOAN NOTES
10.3 Each Financier agrees that it will not:
(a) directly or indirectly offer, sell or deliver Loan Notes or
distribute any prospectus, circular, advertisement or other
offering material relating to the Loan Notes in any jurisdiction
except under circumstances that will result in compliance with
the laws and regulations of that jurisdiction; or
(b) make any offer or invitation in relation to the Loan Notes in
Australia in breach of the Corporations Law; or
(c) circulate or issue a prospectus or other offering material
relating to the Loan Notes in Australia in breach of the
Corporations Law.
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11 SCOPE OF AGENCY
APPOINTMENT
11.1 Each of the Arranger and the Financiers appoints the Administrative
Agent to act as its agent in connection with the Transaction
Documents.
EXTENT OF AUTHORITY AND OBLIGATIONS
11.2 Subject to the terms and conditions of this agreement, each of the
Arranger and the Financiers irrevocably authorises the Administrative
Agent to:
(a) enter into the Transaction Documents (other than this agreement);
and
(b) take action on behalf of the Arranger or the Financiers in
accordance with this agreement and the other Transaction
Documents; and
(c) exercise the rights and carry out the obligations of the
Administrative Agent expressly set out in the Transaction
Documents and rights, powers and discretions reasonably
incidental to them.
Each of the Arranger and the Financiers acknowledges that the
Administrative Agent has no obligations except those expressly set out
in the Transaction Documents.
ACCEPTANCE BY ADMINISTRATIVE AGENT
11.3 The Administrative Agent agrees to act as the agent of the Arranger
and the Financiers in connection with the Transaction Documents in
accordance with this agreement.
BINDING NATURE OF AGENCY
11.4 Without limiting the liability of the Administrative Agent under
clause 14.2 (Exoneration of Administrative Agent) each of the Arranger
and the Financiers agrees:
(a) to be bound by anything properly done or properly not done by the
Administrative Agent in accordance with this agreement, whether
or not on instructions, and whether or not the Arranger, or as
the case may be, a Financier, gave an instruction or approved of
the thing done or not done; and
(b) any instruction given to or action taken by the Administrative
Agent in accordance with this agreement is binding on each of the
Arranger and the Financiers and each of the Arranger and the
Financiers authorises the Administrative Agent to give any
consent and do any other matter or thing necessary or appropriate
to give effect to that instruction; and
(c) at the Borrower's request, to ratify anything properly done or
properly not done by the Administrative Agent in accordance with
this agreement.
EXCLUDED ROLES AND DUTIES
11.5 The appointment as agent does not mean that the Administrative 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, an Obligor or any other person, except as expressly set
out in any Transaction Document.
THE ARRANGER'S AND THE FINANCIERS' INTEREST IN DEED OF COMMON TERMS
11.6 Each of the Arranger and the Financiers accepts that it acquires an
interest in the Texas Guarantee and also agrees to be bound by the
Deed of Common Terms.
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12 HOW AND WHEN THE ADMINISTRATIVE AGENT ACTS
AFTER CONSULTATION AND INSTRUCTIONS
12.1 If the Administrative Agent proposes to act on any of the following
matters, it agrees to:
(a) consult the Financiers on the proposal; and
(b) take the action contemplated (including, without limitation,
Enforcement Action) if, and only if, it receives instructions to
do so from:
(i) all the Financiers - on matters listed in clause 12.2
(Matters requiring instructions from all Financiers); or
(ii) a Majority of Financiers - on matters listed in clause 12.3
(Matters requiring instructions from a Majority of
Financiers).
MATTERS REQUIRING INSTRUCTIONS FROM ALL FINANCIERS
12.2 The following matters require instructions from all Financiers:
(a) a change to the Facility Limit or a Commitment;
(b) a waiver of a default referred to in clause 7.1(a) (Events of
Default) in relation to a payment arising under a Transaction
Document;
(c) the discharge or release of the Guarantor or the termination of
the Texas Guarantee or the termination of the Guarantor's
obligations under the Texas Guarantee;
(d) a change to the due currency of any payment under a Transaction
Document;
(e) a change to the Maturity Date or the extension of a previously
determined payment date;
(f) a change to the amount or timing of any fee or other amount
payable to the Financiers;
(g) a change to the Margin or the method of calculating the Interest
Rate;
(h) a change to the definition of Majority of Financiers;
(i) any decision that would alter the entitlements in clause 19
(Entitlements to payments);
(j) a change to clauses 12.1 to 12.4 (How and when the Administrative
Agent acts);
(k) a change to clause 20 (Distribution of payments); and
(l) a consent under clause 22.1 (No dealing by the Borrower).
MATTERS REQUIRING INSTRUCTIONS FROM A MAJORITY OF FINANCIERS
12.3 The following matters require instructions from a Majority of
Financiers:
(a) the exercise of the Administrative Agent's rights in its capacity
as agent for the Financiers in connection with the operation of
clause 4 (Subordination) of the Deed of Common Terms in respect
of Junior Financiers (as defined in the Deed of Common Terms);
(b) the waiver of any breach or other non-performance of obligations
by the Borrower in connection with any Transaction Document
(other than, subject to clause 12.3(d), the Deed of Common Terms
or any obligation in the Deed of Common Terms incorporated by
reference in any other Transaction Document) other than a waiver
listed in clause 12.2 (Matters requiring instructions from all
Financiers);
(c) a variation of a Transaction Document (other than, subject to
clause 12.3(d), the Deed of Common Terms or any terms in the Deed
of Common Terms incorporated by reference in any other
Transaction Document) other than a variation listed in clause
12.2 (Matters requiring instructions from all Financiers); and
(d) any amendment, variation or modification to any provision of the
Deed of Common Terms which has an effect on the rights of the
Financiers as Junior Financiers (as defined in the Deed of Common
Terms).
OVERRIDING INSTRUCTIONS
12.4 In relation to all matters other than those under clause 12.2 (Matters
requiring instructions from all Financiers) and clause 14.5
(Administrative Agent to act on Financier's request) and subject to
the Deed of Common Terms, a Majority of Financiers may instruct the
Administrative Agent and, if they do, the Administrative Agent agrees
to act in accordance with the instructions.
WITHOUT CONSULTATION OR INSTRUCTIONS
12.5 Subject to clause 12.6 (Administrative Agent's actions), in any case
where the Administrative Agent does not require instructions under
clause 12.1 (After consultation and instructions) or does not receive
instructions or requests under clause 12.4 (Overriding instructions)
or clause 14.5 (Administrative Agent to act on Financier's request),
the Administrative Agent may exercise its rights in its capacity as
agent for the Financiers and observe its obligations in that capacity
as it sees fit. It need not consult any Financier before doing so.
ADMINISTRATIVE AGENT'S ACTIONS
12.6 Whenever the Administrative Agent:
(a) consults 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 in
accordance with this agreement; and
(c) exercises its rights in its capacity as agent of the Financiers
or takes any other action, subject to this agreement, it agrees
to act in the interests (in its absolute opinion based upon the
information which it has at the time) of the Financiers taken as
a whole.
FINANCIER'S INSTRUCTIONS
12.7 Whenever a Financier gives instructions:
(a) it must do so in accordance with this agreement and within any
time period specified by the Administrative Agent for giving
instructions; and
(b) it authorises the Administrative Agent to give any consent or do
any other thing appropriate to carry out the instructions.
If a Financier does not give instructions in relation to Action
proposed or recommended by the Administrative Agent within any time
period specified by the Administrative Agent, it is taken to have
instructed the Administrative Agent to take the proposed or
recommended Action.
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13 ADMINISTRATIVE AGENT'S OBLIGATIONS TO GIVE NOTICES AND COPIES
ADMINISTRATIVE AGENT'S OBLIGATIONS
13.1 The Administrative Agent agrees:
(a) (FINANCIAL CLOSE REQUIREMENTS) to notify each Financier of the
contents of the Financial Close Notice; and
(b) (DEFAULT AND REVIEW) to notify each Financier of an Event of
Default or Potential Event of Default promptly after the
Administrative Agent becomes aware of it; and
(c) (MATERIAL NOTICES RECEIVED) to give each Financier promptly after
receiving it a copy of each notice or other communication or
document which is received from an Obligor in connection with the
Transaction Documents and which the Administrative Agent
considers material; and
(d) (MATERIAL NOTICES GIVEN) to give each Financier promptly a copy
of any notice or other communication or document which the
Administrative Agent gives an Obligor in connection with the
Transaction Documents and which the Administrative Agent
considers material; and
(e) (ACTION TAKEN) to give each Financier promptly a report on
anything done after instructions from the Financiers under clause
12 (How and when the Administrative Agent acts).
ADMINISTRATIVE AGENT'S AWARENESS OF CERTAIN EVENTS
13.2 The Administrative Agent is taken not to be aware of an Event of
Default or Potential Event of Default until an Authorised Officer
of the Administrative Agent who is responsible for the
administration of the transactions contemplated by the
Transaction Documents has actual knowledge of sufficient facts to
ascertain that an Event of Default or Potential Event of Default
has occurred.
ADMINISTRATIVE AGENT MAY ASSUME COMPLIANCE
13.3 Until it becomes aware in accordance with clause 13.2
(Administrative Agent's awareness of certain events), the
Administrative Agent may assume that no Event of Default or
Potential Event of Default has occurred and that an Obligor is
observing all its obligations in connection with the Transaction
Documents and need not inquire whether that is, in fact, the
case.
CONFIDENTIALITY
13.4 Despite anything else in this agreement, this agreement does not
oblige the Administrative Agent to disclose information or
provide documents relating to an Obligor or any other person if
the Administrative Agent reasonably believes that to do so would
constitute a breach of law or duty of confidentiality.
LIMIT ON OBLIGATIONS
13.5 The Financiers agree that the Administrative Agent has no
obligations, other than those in clause 13.1 (Administrative
Agent's obligations), either initially or on a continuing basis:
(a) to keep itself informed, or to inform a Financier, about the
performance by an Obligor of its obligations under the
Transaction Documents; or
(b) to provide a Financier with any information or documents
with respect to an Obligor (whether coming into its
possession before or after accommodation is provided under
the Transaction Documents).
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14 ADMINISTRATIVE AGENT'S RELATIONSHIP WITH FINANCIERS
INDIVIDUAL RESPONSIBILITY OF FINANCIERS
14.1 Each of the Arranger and the Financiers acknowledges for the benefit
of the Administrative Agent and its Related Entities that it has:
(a) entered into the Transaction Documents; and
(b) made and will continue to make its own independent investigation
of the financial condition and affairs of each Obligor based on
documents and information which it considers appropriate; and
(c) made and will continue to make its own appraisal of the
creditworthiness of each Obligor; and
(d) made its own assessment and approval of the margin, fees and
other return to be obtained under the Transaction Documents,
without relying on the Administrative Agent (in whatever capacity) or
any Related Entity of the Administrative Agent or on any
representation made by any of them.
EXONERATION OF ADMINISTRATIVE AGENT
14.2 Neither the Administrative Agent nor any of its directors, officers,
employees, agents, attorneys or Related Entities is responsible or
liable to the Arranger or any of the Financiers:
(a) because an Obligor fails to perform its obligations under the
Transaction Documents; or
(b) for the financial condition of an Obligor; or
(c) because any statement, representation or warranty in a
Transaction Document is incorrect or misleading; or
(d) for the effectiveness, genuineness, validity, enforceability,
admissibility in evidence or sufficiency of the Transaction
Documents or any document signed or delivered in connection with
the Transaction Documents; or
(e) for acting or for refraining from acting in accordance with the
instructions of a Majority of Financiers or all the Financiers;
or
(f) for anything done or not done in connection with the Transaction
Documents by the Administrative Agent or its directors, officers,
employees, agents, attorneys or Related Entities,
except to the extent that the act or omission amounts to fraud, gross
negligence or wilful misconduct by the Administrative Agent or its
delegates or gross or wilful breach by it or its delegates of its or
their obligations in its capacity as agent of the Arranger and the
Financiers.
ADMINISTRATIVE AGENT IN CAPACITY OF A FINANCIER
14.3 If the Administrative Agent is also a Financier, then in its capacity
as a Financier it:
(a) has the same rights and obligations under the Transaction
Documents as the other Financiers; and
(b) may exercise those rights and agrees to observe those obligations
independently from its role as Administrative Agent as if it were
not the Administrative Agent.
ADMINISTRATIVE AGENT DEALING IN DIFFERENT CAPACITIES
14.4 The Administrative Agent may:
(a) engage in any kind of banking, trust or other business with an
Obligor or the Financiers or any of their Related Entities; and
(b) accept fees and other consideration from an Obligor or any of the
Obligor's Related Entities for services in connection with the
Transaction Documents or any other arrangement,
as if it were not the Administrative Agent and without having to
account to the Financiers for any income it derives in doing so.
The Financiers release the Administrative Agent from any obligation it
might otherwise have to them in relation to these matters.
ADMINISTRATIVE AGENT TO ACT ON FINANCIER'S REQUEST
14.5 The Administrative Agent agrees to:
(a) make a demand under clause 11 of the Deed Poll (Increased costs);
or
(b) give notices under clause 12 of the Deed Poll (Illegality); or
(c) make a demand under clause 13 of the Deed Poll (Interest on
overdue amounts),
promptly on request from a Financier. The other Financiers may not
countermand such a request.
RESTRICTION ON FINANCIERS EXERCISING RIGHTS
14.6 Subject to the Deed of Common Terms, a Financier may exercise a right
against an Obligor under any Transaction Document independently of the
Administrative Agent only if:
(a) the Administrative Agent has been instructed in accordance with
clause 12 (How and when the Administrative Agent acts) to
exercise the right; and
(b) the Administrative Agent has not done so within a reasonable time
(and then only if any request by the Administrative Agent under
clause 15.3 (Funds before acting) for funds in connection with
the exercise has been complied with).
NOTICE OF TRANSFER
14.7 The Administrative Agent may treat each Financier as the holder or
obligor of the rights and obligations of that Financier for all
purposes under the Transaction Documents until a Transfer Certificate
(or other notice of the assignment or transfer satisfactory to the
Administrative Agent) signed by the substitute, assignee or transferee
is given to the Administrative Agent.
FINANCIER TO PAY OVER AMOUNTS RECEIVED DIRECTLY
14.8 If a Financier receives or recovers an amount due to it under a
Transaction Document other than through distribution by the
Administrative Agent under this agreement, then it agrees to:
(a) notify the Administrative Agent promptly; and
(b) pay an amount equal to that amount to the Administrative Agent
within two Business Days after receiving it.
If the Financier receives the amount by applying a set-off, the
set-off occurs when the Financier records the set-off in its books of
account.
PRO-RATA REFUNDS
14.9 If a Financier who receives an amount referred to in clause 14.8
(Financier to pay over amounts received directly) is obliged to refund
any part of it under laws relating to Insolvency Events, then each
Financier to which that amount was distributed under clause 20
(Distribution of payments) agrees to pay to the Administrative Agent
(for payment to the Financier who has to make the refund) its pro rata
share of the amount required to be refunded.
PROCEEDS OF LITIGATION
14.10 Despite clause 14.8 (Financier to pay over amounts received
directly), where a Financier recovers an amount in legal proceedings
it has brought as permitted by clause 14.6 (Restriction on Financiers
exercising rights), the Financier may retain the recovered amount and
need not pay the recovered amount to the Administrative 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 Administrative Agent.
AMENDMENT TO TRANSACTION DOCUMENTS
14.11 Each Financier authorises the Administrative Agent to agree with the
other parties to a Transaction Document to a variation or change of
the Transaction Document if:
(a) all or a Majority of Financiers (as required under clauses 12.2
(Matters requiring instructions from all Financiers) and 12.3
(Matters requiring instructions from a Majority of Financiers)
have instructed, or are taken to have instructed, the
Administrative 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 12.2 (Matters requiring instructions from all
Financiers) and the Administrative 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 or technical nature.
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15 FUNDING OF ADMINISTRATIVE AGENT
FINANCIERS TO INDEMNIFY AGAINST NON-PAYMENT
15.1 Each Financier individually, in accordance with its Proportion,
indemnifies the Administrative Agent against the non-receipt of a
payment from an Obligor and the Costs incurred by the Administrative
Agent in funding the amount not paid, if the Administrative Agent:
(a) reasonably claims a payment from the Borrower under clause 8
(Costs and indemnities) or from any other Obligor under a
corresponding provision of any other Transaction Document; and
(b) does not receive it within seven days after the claim is made.
THE BORROWER'S BACK-TO-BACK INDEMNITY
15.2 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 15.1 (Financiers to indemnify against
non-payment), clause 15.3 (Funds before acting) or clause 15.4 (If a
Financier does not fund).
FUNDS BEFORE ACTING
15.3 If the Administrative Agent proposes to exercise a right arising in
its capacity as Administrative Agent of the Arranger and the
Financiers or take any Action (whether or not at the instruction of a
Majority of Financiers or all Financiers) and the Administrative Agent
reasonably considers this could result in the Borrower or any other
Obligor becoming obliged to pay to the Administrative Agent an amount
under clause 8 (Costs and indemnities) or under a corresponding
provision of any other Transaction Document, as the case may be, the
Administrative Agent:
(a) may request the Financiers to place it in funds at least equal to
the amount the Administrative Agent reasonably determines would
be the Borrower's liability; and
(b) need not act until the Financiers do so.
Each Financier agrees to fund the Administrative Agent rateably in
accordance with its Proportion.
IF A FINANCIER DOES NOT FUND
15.4 If a Financier does not fund the Administrative Agent under clause
15.3 (Funds before acting) within a period determined by the
Administrative Agent to be reasonable, then the Administrative 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 15.3 (Funds before acting) are taken to be satisfied.
Each Financier agrees that:
(a) a payment by a Financier to the Administrative Agent under this
clause 15.4 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
Administrative Agent.
The defaulting Financier agrees to pay to the Administrative Agent
(for the account of each funding Financier) on demand from the
Administrative Agent the loan principal and interest on each loan.
BORROWER'S COSTS OBLIGATION NOT AFFECTED
15.5 A payment by a Financier under this clause 15 does not relieve the
Borrower of its obligations under clause 8 (Costs and indemnities) or
clause 13 of the Deed Poll (Interest on overdue amounts) or any other
Obligor of its obligations under any corresponding provisions of any
other Transaction Document.
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16 ADMINISTRATIVE AGENT'S RELATIONSHIP WITH THE BORROWER
COMPLIANCE MAY BE ASSUMED
16.1 In relation to any act of the Administrative Agent, the Borrower need
not enquire:
(a) whether the Administrative Agent needed to consult or has
consulted the Financiers; or
(b) whether instructions have been given to the Administrative Agent
by a Majority of Financiers or all Financiers; or
(c) about the terms of any instructions.
As between the Administrative Agent and the Borrower, all action taken
by the Administrative Agent under the Transaction Documents is taken
to be authorised under this agreement unless the Borrower has actual
notice to the contrary.
ADMINISTRATIVE AGENT IS NOT RESPONSIBLE FOR FINANCIER'S BREACH
16.2 The Administrative Agent is not responsible to the Borrower if a
Financier does not observe its obligations under the Transaction
Documents.
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17 CHANGE OF ADMINISTRATIVE AGENT
RETIREMENT
17.1 The Administrative Agent may retire by giving the Borrower, the
Arranger and each Financier notice of its intention to do so,
specifying the date it proposes the retirement to take effect.
REMOVAL
17.2 A Majority of Financiers may end the appointment of the Administrative
Agent as Administrative Agent of each Financier by giving the
Administrative Agent at least 30 days' written notice (or such lesser
period as the Majority of Financiers may determine if the
Administrative Agent is in default of its obligations under the
Transaction Documents).
WHEN RETIREMENT OR REMOVAL TAKES EFFECT
17.3 The retirement or removal takes effect only when:
(a) a successor Administrative Agent approved by a Majority of
Financiers (which approval may not be delayed or withheld
unreasonably) has been appointed; and (b) the successor
Administrative 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.
PERMITTED SUCCESSOR ADMINISTRATIVE AGENT
17.4 The successor Administrative Agent may be:
(a) a Financier nominated by a Majority of Financiers; or
(b) in the absence of such a nomination, a reputable and experienced
bank or financial institution (or a Related Entity of either of
them) nominated (in the case of retirement) by the retiring
Administrative Agent or (in the case of removal) by a Majority of
Financiers.
OBLIGATIONS OF RETIRING AND SUCCESSOR ADMINISTRATIVE AGENT
17.5 When a successor Administrative Agent is appointed, the retiring
Administrative Agent is discharged from any further obligation under
the Transaction Documents. This discharge does not prejudice any
accrued right or obligation. The successor Administrative Agent and
each other party to the Transaction Documents have the same rights and
obligations among themselves as they would have had if the successor
Administrative Agent had been a party to the Transaction Documents at
the date of this agreement.
MANNER OF APPOINTMENT
17.6 The appointment of a successor Administrative Agent will be effected
by its execution of a deed poll. The retiring Administrative Agent is
authorised to sign that deed poll on behalf of the other parties. On
countersignature of that deed poll by the retiring Administrative
Agent, the successor Administrative Agent will have all the rights,
powers and obligations of the retiring Administrative Agent. The
retiring Administrative Agent will be discharged from its rights,
powers and obligations (other than liabilities under this clause
17.6).
After any retiring Administrative Agent's resignation or removal, this
clause will continue in effect in respect of anything done or omitted
to be done by it while it was acting as Administrative Agent.
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18 MISCELLANEOUS PROVISIONS RELATING TO AGENCY
DELEGATION BY ADMINISTRATIVE AGENT
18.1 The Administrative Agent may employ agents and attorneys and may
delegate any of its rights or obligations in its capacity as
Administrative Agent of the Financiers without notifying the
Financiers of the delegation.
DUTIES WHEN DELEGATING
18.2 The Administrative Agent agrees to exercise reasonable care in
selecting delegates and to supervise their actions.
RESPONSIBILITY FOR DELEGATES
18.3 The Administrative Agent is responsible for any loss arising due to
the fraud, gross negligence or wilful misconduct of a delegate or
gross or wilful breach by the delegate of their obligations.
ADMINISTRATIVE AGENT MAY RELY ON COMMUNICATIONS AND OPINIONS
18.4 In relation to the Facility and any Transaction Document, the
Administrative Agent may rely:
(a) on any communication or document it believes to be genuine and
correct and to have been signed or sent by the appropriate
person; and
(b) as to legal, accounting, taxation or other professional matters,
on opinions and statements of any legal, accounting, taxation or
professional advisers used by it.
FORCE MAJEURE
18.5 Despite any other provision of this agreement, the Administrative
Agent need not act (whether or not on instructions from one or more of
the Financiers) if it is impossible to act due to any cause beyond its
control (including war, riot, natural disaster, labour dispute, or law
taking effect after the date of this agreement). The Administrative
Agent agrees to notify each Financier promptly after it determines
that it is unable to act.
NO RESPONSIBILITY FOR FORCE MAJEURE
18.6 The Administrative 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 18.5 (Force
majeure) continues. However, the Administrative 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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19 ENTITLEMENTS TO PAYMENTS
ENTITLEMENTS TO PAYMENTS
19.1 Unless expressly stated otherwise, the Borrower agrees to pay all
amounts due under the Transaction Documents (other than the Deed of
Common Terms and the Texas Guarantee) to the Administrative Agent (in
accordance with the Standing Payment Instructions of the
Administrative Agent) for the account of each Financier except that an
amount paid in connection with:
(a) clause 4.1 (Agency Fee) is to be paid to the Administrative Agent
for its own account; and
(b) clause 11 of the Deed Poll (Increased costs) or clause 12 of the
Deed Poll (Illegality) is to be paid to the Administrative Agent
for the account of the affected Financier; and
(c) clause 13 of the Deed Poll (Interest on overdue amounts) is to be
paid to the Administrative Agent for the account of the party
entitled to the overdue amount; and
(d) clause 8.1 (Costs and indemnities - what the Borrower agrees to
pay) is to be paid to the Administrative Agent for the account of
the party that incurs the Costs, or pays the Taxes or fees; and
(e) clause 8.4 (Payment of employees' losses) is to be paid to the
Administrative Agent for the account of the party whose employee,
officer, agent or contractor suffers the liability, loss or
Costs; and
(f) an indemnity is to be paid to the Administrative Agent for the
account of the party entitled under the indemnity.
If the Borrower is to pay an amount to the Administrative Agent for
the account of a particular party, the Borrower is taken to have
satisfied its obligation to that party by paying the Administrative
Agent.
STANDING PAYMENT INSTRUCTIONS
19.2 Save as otherwise required by any Transaction Document:
(a) all payments to be made by the Administrative Agent under the
Transaction Documents for the account of the Arranger and the
Financiers must be made by the Administrative Agent in accordance
with the applicable Standing Payment Instructions; and
(b) all payments to be made to the Administrative Agent under the
Transaction Documents by the Arranger and each of the Financiers
must be made by such party in accordance with the Standing
Payment Instructions of the Administrative Agent.
DIRECTION TO PAY
19.3 If:
(a) the Borrower is to pay an amount to the Administrative Agent for
the account of a Financier; and
(b) both the Borrower and the Financier request the Administrative
Agent to do so,
the Administrative Agent may direct the Borrower to pay the amount to
the Financier.
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20 DISTRIBUTION OF PAYMENTS
HOW ADMINISTRATIVE AGENT IS TO DISTRIBUTE
20.1 Subject to clause 19.1 (Entitlement to payments), the Administrative
Agent agrees to distribute amounts paid to it or recovered by it under
the Transaction Documents as follows:
(a) first, to the Administrative Agent itself for all amounts due to
it in its capacity as Administrative Agent under any Transaction
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.
These proportions are to be expressed as percentages and rounded to
the nearest four decimal places. The Administrative Agent may exercise
discretion in rounding up or down resultant amounts to ensure that
over time, all Financiers are treated fairly.
EXCESS DISTRIBUTIONS - CONTINGENCIES
20.2 If a Financier receives a distribution under clause 20.1 (How
Administrative 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 Administrative Agent an amount
equal to the unclaimed portion of the distributed amount.
POSTPONEMENT OF NON-FUNDING FINANCIERS
20.3 Despite anything in clause 20.1 (How Administrative Agent is to
distribute), if the Administrative Agent recovers an amount through
exercising the Administrative Agent's rights in its capacity as
Administrative Agent of the Arranger and the Financiers as a result of
being placed in funds under clause 15.3 (Funds before acting), then
any Financier who did not fund the Administrative Agent is not
entitled to receive any part of the amount until each Financier who
funded the Administrative Agent receives an amount equal to the total
of:
(a) the Principal Outstanding for that funding Financier; and
(b) the amount of any loan principal and interest due to that funding
Financier under clause 15.4 (If a Financier does not fund).
MANNER OF DISTRIBUTION
20.4 The Administrative Agent agrees to distribute amounts to each
Financier promptly after receipt in immediately available funds to
that Financier in accordance with clause 19.2(a) (Standing Payment
Instructions).
DISTRIBUTIONS MADE IN ERROR
20.5 If the Administrative Agent is required to make a corresponding
payment to another party when it has received an amount under a
Transaction Document, the Administrative Agent agrees to do so as soon
as it establishes that it has actually received the amount.
If the Administrative Agent makes the corresponding payment and
subsequently discovers that it has not actually received the amount
due to be paid to it, then:
(a) the party who received the payment agrees to refund it to the
Administrative Agent on demand; and
(b) the party who should have paid the amount to the Administrative
Agent agrees to pay the Administrative Agent on demand the amount
and the Administrative Agent's costs in funding the corresponding
payment from the date when it was made until the date the
Administrative Agent receives the refund.
APPLICATION OF PAYMENTS
20.6 The Administrative Agent and each Financier may apply amounts
distributed to them towards satisfying obligations under the
Transaction Documents in the manner they see fit, unless the
Transaction Documents expressly provide otherwise.
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21 TRANSFERS AND SUBSTITUTIONS BY FINANCIERS
DEALINGS OF RIGHTS UNDER LOAN NOTES BY FINANCIERS
21.1 No Financier may deal with its rights or obligations under this
agreement without dealing with its rights under the Deed Poll and Loan
Note to an equivalent extent.
SYNDICATION - DEED POLL
21.2 (a) (a) Each Financier warrants that:
(i) it is and, at the time it acquired a Loan Note, will be acting in
the course of carrying on a business of providing finance, or
investing or dealing in securities in the course of operating in
financial markets;
(ii) except as disclosed to the Borrower, it is not and at the time it
acquired a Loan Note, so far as it has actual knowledge, an
Associate of any other Financier;
(iii) it:
(A) has not (directly or indirectly) offered for subscription or
purchase or issued invitations to subscribe for or buy nor
has it sold Loan Notes;
(B) will not (directly or indirectly) offer for subscription or
purchase or issue invitations to subscribe for or buy nor
will it sell the Loan Notes,
to anyone in respect of whom it has actual notice is an
Associate of the Borrower.
(b) Neither the Borrower nor the Administrative Agent have any
responsibility for, and each Financier must obtain, all
authorisations required by it for the subscription, offer, sale
or delivery by it of Loan Notes under applicable laws and
regulations in any jurisdiction to which the Financier is subject
or in which it makes any offer, sale or delivery of Loan Notes.
TRANSFER AND SUBSTITUTION BY FINANCIERS
21.3 A Financier may at any time, without being required to obtain the
Borrower's consent or to provide any prior notice to the Borrower,
assign any of its rights under the Transaction Documents, transfer by
novation any of its rights and obligations under the Transaction
Documents, sub-participate or otherwise deal with any part of its
benefits under the Transaction Documents to any person (including,
without limitation, a trustee of a trust or a corporate vehicle
established for the purposes of securitisation):
(a) if any necessary prior Authorisation is obtained;
(b) where the Financier is transferring by novation its rights and
obligations under any Transaction Document, the novation is
effected by a transfer or substitution in accordance with clause
21.4 (Transfer Certificates);
(c) where the Financier assigns, sub-participates or otherwise deals
with only part of its beneficial interest in the Transaction
Documents other than by way of a transfer by novation, the
Financier must remain the financier of record in respect of the
Transaction Documents and the Administrative Agent, the Arranger
and the Borrower are only obliged to deal with the Financier who
is the financier of record; and
(d) if the prior written consent of the Borrower is obtained where
the dealing is in respect of the entire Commitment of that
Financier or where the remaining Commitment of that Financier or
the resulting Commitment of the substitute or transferee after
such dealing will be less than A$10,000,000.
TRANSFER CERTIFICATES
21.4 Subject to clause 21.3 (Transfer and Substitution by Financiers):
(a) if a Transferor Financier wishes to transfer some or all of its
Loan Notes and substitute a new bank or financial institution for
all or part of its participation under this agreement:
(i) it must notify the Administrative Agent not less than 5
Business Days before the date on which such transfer and
substitution is intended to occur;
(ii) the Transferor Financier and the Transferee Financier shall
in New South Wales or outside Australia execute and deliver
to the Administrative Agent four counterparts of a
certificate substantially in the form of schedule 2; and
(iii) other than in respect of an assignment and transfer
pursuant to clause 21.5 (Assignments and Transfers on the
Borrower's Request), the Transferor Financier must pay an
administrative fee of A$3,500 to the Administrative Agent;
(b) on receipt of the certificate and the administrative fee, if the
Administrative Agent is satisfied that the substitution or
transfer complies with clause 21.3 (Transfer and Substitution by
Financiers), it shall promptly:
(i) notify the Borrower;
(ii) countersign the counterparts on behalf of all other parties
to this agreement;
(iii) notify the Registrar and request the Registrar to update
the Register accordingly (which will be conclusive) subject
to rectification for fraud or error; and
(iv) retain one counterpart and deliver the others to the
Transferor Financier, the Transferee Financier and the
Borrower;
(c) when the certificate is countersigned by the Administrative
Agent, the Transferor Financier will be relieved of its
obligations to the extent specified in the certificate and the
Transferee Financier will be bound by the Transaction Documents
as stated in the certificate; and
(d) each other party to this agreement irrevocably authorises the
Administrative Agent to sign each certificate on its behalf.
ASSIGNMENTS AND TRANSFERS ON THE BORROWER'S REQUEST
21.5 In the event that the Borrower:
(a) is obliged to increase any amount payable payment to clause 10.1
of the Deed Poll (Tax - Payments to Financiers); or
(b) has received a demand from a Financier under clause 11.1 of the
Deed Poll (Increased Costs - Compensation Payable by Borrower)
(which has not been withdrawn by the Financier); or
(c) has received a notice from a Financier under clause 12.1 of the
Deed Poll (Illegality),
the Borrower may request the Financier to assign and transfer all of
its rights and obligations under the Transaction Documents in
accordance with clause 21.3 (Transfer and Substitution by Financiers),
subject to the following conditions:
(i) no Event of Default or Potential Event of Default has
occurred and is continuing;
(ii) the Financier is satisfied that the Borrower is not in
breach of any of its obligations under the Transaction
Documents to that Financier; and
(iii) the Administrative Agent confirms to the Borrower and the
Financier that it has received an administrative fee of
A$3,500 from the Borrower where the proposed assignee and
transferee is not an existing Financier.
21.6 Subject to clause 21.3 (Transfer and Substitution by Financiers), each
assignee or transferee of a Financier must execute a New Creditor
Accession Deed pursuant to and in accordance with the terms of the
Deed of Common Terms and shall execute all such other documents and do
all such other acts as may be requested, and considered necessary, by
the Administrative Agent in connection with the transactions
contemplated by the Deed of Common Terms.
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22 DEALING WITH INTERESTS
NO DEALING BY THE BORROWER
22.1 The Borrower may not assign or otherwise deal with its rights under
any Transaction Document or allow any interest in them to arise or be
varied, in each case, without the Administrative Agent's consent.
22.2 The Borrower may not, without the consent of the Administrative Agent,
create or allow to exist a Security Interest over or an interest in
this agreement or assign or otherwise dispose of or deal with its
rights under this agreement.
DEALINGS BY FINANCIERS
22.3 Subject to clause 21 (Transfers and Substitutions by Financiers), a
Financier may deal with its rights under the Transaction Documents
(including by assignment or participation) at any time. The consent of
any other person, including the Borrower, is not required.
DEALINGS BY ADMINISTRATIVE AGENT
22.4 The Administrative Agent may assign or otherwise deal with its rights
under the Transaction 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.
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23 NOTICES
FORM
Unless expressly stated otherwise in the Transaction Document, all
notices, certificates, consents, approvals, waivers and other
communications in connection with a Transaction Document:
(a) must be in writing, signed by an Authorised Officer of the sender
and marked for attention as set out in the Details or, if the
recipient has notified otherwise, then marked for attention in
the way last notified; and
(b) must be:
(i) left at the address set out in the Details; or
(ii) sent by prepaid post (airmail, if posted to or from a place
outside Australia) to the address set out in the Details; or
(iii) sent by fax to the fax number set out in the Details,
but if the intended recipient has notified a changed postal
address or fax number, then the communication must be to that
address or number; and
(c) if sent by post, are taken to be received three Business Days
after posting (or seven Business Days after posting if sent to or
from a place outside Australia); and
(d) if sent by fax, on production of a transmission report by the
machine from which the facsimile was sent which indicates that
the facsimile was sent in its entirety to the facsimile number of
the recipient notified for the purpose of this clause; and
(e) take effect from the time they are received unless a later time
is specified in them provided that if the receipt is on a day
which is not a Business Day or is after 4:00pm (addressee's time)
it is taken to be received at 9.00am on the following Business
Day.
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24 GENERAL
SET-OFF
24.1 At any time after an Event of Default, the Administrative Agent or a
Financier may set off any amount due for payment by the Administrative
Agent or the Financier, respectively, to the Borrower against any
amount due for payment by the Borrower to the Administrative Agent or
the Financier, respectively, under the Transaction Documents. The
Borrower authorises the Administrative Agent and the Financier in the
name of the Borrower or the Financier to do anything (including,
without limitation, to execute any document) that is required for that
purpose.
CERTIFICATES
24.2 The Administrative Agent or a Financier or their respective solicitors
may give the Borrower a certificate about a matter (including, without
limitation, the rate of interest on the Loans) or about a sum payable
to the Financier in connection with a Transaction Document other than
under clause 11 of the Deed Poll (Increased costs). The certificate is
sufficient evidence of the matter or sum, unless it is proved to be
false.
CONFLICT OF INTEREST
24.3 The Administrative Agent's, the Arranger's or a Financier's rights and
remedies under this agreement may be exercised even if this involves a
conflict of duty or the Administrative Agent, the Arranger or the
Financier has a personal interest in their exercise.
EXERCISE OF RIGHTS
24.4 Each of the Administrative Agent, the Arranger and the Financiers may
exercise a right, power or remedy at its discretion, and separately or
concurrently with another right, power or remedy. A single or partial
exercise of a right, power or remedy by the Administrative Agent, the
Arranger or any of the Financiers does not prevent a further exercise
of that or an exercise of any other right, power or remedy. Failure by
the Administrative Agent, the Arranger or any of the Financiers to
exercise or delay in exercising a right, power or remedy does not
prevent its exercise. Each of the Administrative Agent, the Arranger
and the Financiers is not liable for any loss caused by the exercise
or attempted exercise of, failure to exercise, or delay in exercising
the right, power or remedy.
SUPERVENING LEGISLATION
24.5 Any present or future legislation which operates to vary the
obligations of the Borrower in connection with the Transaction
Documents with the result that the rights, powers or remedies of any
of the Administrative Agent, the Arranger and the Financiers are
adversely affected (including, without limitation, by way of delay or
postponement) is excluded except to the extent that its exclusion is
prohibited or rendered ineffective by law.
APPROVALS AND CONSENT
24.6 Any of the Administrative Agent, the Arranger and the Financiers may
give conditionally or unconditionally or withhold its approval or
consent in its absolute discretion unless this agreement expressly
provides otherwise.
REMEDIES CUMULATIVE
24.7 The rights, powers and remedies provided in this agreement are
cumulative with and not exclusive of the rights, powers or remedies
provided by law independently of this agreement.
INDEMNITIES
24.8 Each indemnity in this agreement is a continuing obligation, separate
and independent from the other obligations of the Borrower giving it
and survives termination of this agreement.
It is not necessary for any of the Administrative Agent, the Arranger
or the Financiers to incur expense or make payment before enforcing a
right of indemnity conferred by this agreement.
TIME OF THE ESSENCE
24.9 Time is of the essence of any Transaction Document in respect of an
obligation of an Obligor to pay money.
FURTHER ASSURANCES
24.10 At the Administrative Agent's request the Borrower must, at its own
expense:
(a) execute and cause its successors to execute documents and do
everything else necessary or appropriate to bind the Borrower and
its successors under the Transaction Documents; and
(b) use its best endeavours to cause relevant third parties(other
than the Financiers) to do likewise to bind every person intended
to be bound under the Transaction Documents.
VARIATION AND WAIVER
24.11 Unless this agreement expressly states otherwise, a provision of this
agreement, or right created under it, may not be waived or varied
except in writing signed by the party or parties to be bound. A
provision of the Deed Poll, or right created under it, may not be
waived or varied except in writing signed by the party or parties to
be bound and with the prior written consent of the Administrative
Agent (acting upon the instructions of the Majority of Financiers).
CONFIDENTIALITY
24.12 Each of the Administrative Agent, the Arranger and the Financiers
agrees not to disclose information provided by the Borrower that is
not publicly available except:
(a) in connection with any person exercising rights or dealing with
rights or obligations under a Transaction Document (including
when consulting other Financiers after a Potential Event of
Default or an Event of Default or in connection with preparatory
steps such as negotiating with any potential assignee or
potential participant of the Financier's rights or to any ratings
agency for the purposes of securitisation or other person who is
considering contracting with the Financier in connection with a
Transaction Document); or
(b) to a person considering entering into (or who enters into) a
credit swap with the Administrative 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 Administrative Agent, the Arranger or a Financier, as the
case may be ; or
(d) to any party to this agreement or any Related Entity of the
Administrative Agent, the Arranger or a Financier, as the case
may be, provided the recipient agrees to act consistently with
this clause 24.12; or
(e) with the Borrower's consent (not to be unreasonably withheld); or
(f) as allowed, requested or required by any law, stock exchange or
regulatory authority.
The Borrower consents to disclosures made in accordance with this
clause 24.12.
INCONSISTENT LAW
24.13 To the extent permitted by law, this agreement prevails to the extent
it is inconsistent with any law.
COUNTERPARTS
24.14 This agreement may consist of a number of copies of this agreement
each signed by one or more parties to the agreement. When taken
together, the signed copies are treated as making up the one document.
APPLICABLE LAW
24.15 This agreement is governed by the law in force in the place specified
in the Details. The Administrative Agent, the Arranger, the Borrower
and each Financier irrevocably and unconditionally submit to the
non-exclusive jurisdiction of the courts of that place and courts of
appeal from them. Each party waives any right it has to object to an
action being brought in those courts including, without limitation, by
claiming that the action has been brought in an inconvenient forum or
that those courts do not have jurisdiction.
SERVING DOCUMENTS
24.16 Without preventing any other method of service, any document in a
court action may be served on a party by being delivered to or left at
that party's address for service of notices under clause 23 (Notices).
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25 INTERPRETATION
DEFINITIONS
25.1 The following words have these meanings in this agreement unless the
contrary intention appears:
ACTION means action which may result in an amendment, waiver,
determination, consent, approval, release or discharge.
ADDITIONAL FINANCIER means each person so described in the Details.
ADDITIONAL FINANCIER TRANSFER CERTIFICATES means the Transfer
Certificates executed or to be executed in accordance with the
provisions of clause 21 (Transfer and Substitutions by Financiers) on
or about the date of Financial Close by the Additional Financiers.
AGENCY FEE LETTER means the letter referred to in clause 4.1 (Agency
Fee).
AMENDING AGREEMENTS means the first amending agreement relating to
this agreement dated 24 August 1999 and the second amending agreement
relating to this agreement dated 23 December 1999.
AMENDMENT AND RESTATEMENT AGREEMENT means the amendment and
restatement agreement dated on or about 30 June 2000 pursuant to which
this agreement was amended and restated.
ARRANGER MANDATE LETTER means the letter referred to in clause 4.2
(Arranger Fee).
ASSOCIATE has meaning given in section 128F(9) of the Tax Act.
AUSTRALIAN ACCOUNTING STANDARDS means the accounting standards within
the meaning of the Corporations Law and, where not inconsistent with
those accounting standards and the Corporations Law, generally
accepted accounting principles and practices in Australia consistently
applied by a body corporate or as between bodies corporate.
AUSTRALIAN DOLLARS and A$ means the lawful currency of Australia.
AUTHORISATION includes:
(a) any consent, registration, filing, agreement, notarisation,
certificate, licence, approval, permit, authority or exemption
from, by or with a Governmental Agency; or
(b) any consent or authorisation regarded as given by a Governmental
Agency due to the expiration of the period specified by a statute
within which the Governmental Agency should have acted if it
wished to proscribe or limit anything already lodged, registered
or notified under that statute.
AUTHORISED OFFICER means:
(a) in the case of the Administrative Agent and of a Financier, a
director, secretary or an officer whose title contains the word
"manager" "head of", "counsel" or "vice president" or a person
performing the functions of any of them; and
(b) in the case of an Obligor, a person appointed by the Obligor to
act as an Authorised Officer under the Transaction Documents to
which it is a party.
BANK XXXX RATE means, for an Interest Period, the average bid rate for
Bills having a tenor closest to the Interest Period as displayed on
the "BBSY" page of the Reuters Monitor System on the first day of that
Interest Period. However, if the average bid rate is not displayed by
10:30am on the first day of the Interest Period or if it is displayed
but there is an obvious error in that rate, Bank Xxxx Rate means:
(a) the rate the Administrative Agent calculates as the average of
the bid rates quoted to the Administrative Agent at approximately
10:30am on that date by at least three Reference Banks for Bills
of that tenor which are accepted by those institutions; or
(b) where the Administrative 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 Administrative Agent in
good faith at approximately 10:30am on that date, having regard,
to the extent possible, to the rates otherwise bid for Bills of
that tenor at or around that time.
The rate calculated or set by the Administrative Agent must be
expressed as a percentage rate per annum and be rounded up to the
nearest four decimal places.
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.
BUSINESS DAY means a day on which banks are open for general banking
business in the place or places set out in the Details under "Business
day place" (not being a Saturday, Sunday or public holiday in those
places).
COMMITMENT means, for a Financier, the amount set out as such for that
Financier in the Details as reduced by the total of all prepayments
and repayments (if any) in respect of that Financier.
COSTS includes costs, charges and expenses, including those incurred
in connection with advisers.
DEED OF COMMON TERMS means the deed previously known as the security
trust deed dated 24 February 1999 as amended by a deed dated on or
about 22 February 2000 executed by the parties defined therein as the
Core Borrowers, the parties defined therein as Obligors, TXU Corp.
(previously trading as Texas Utilities Company), each of the parties
defined therein as the Financiers, each of the parties defined therein
as the Hedge Counterparties, each of the parties defined therein as
the Junior Financiers and each of the parties defined therein as the
Facility A Agent, the Facility B Agent, the Facility D Agent and the
Trustee.
DEED POLL means a deed poll executed by the Borrower in or
substantially in the form of schedule 3.
DEFAULT RATE means the applicable Interest Rate plus 2% per annum. For
the purpose of this definition, the Interest Rate is calculated as if
the overdue amount is a Loan with Interest Periods of 90 days (or
another length chosen from time to time by the Administrative Agent)
with the first Interest Period starting on and including the due date.
DETAILS means the details which are set out at the beginning of this
agreement.
DIRECTIVE means any law, regulation, order, official policy,
directive, request, requirement or guideline of any central bank or
government or any governmental, fiscal, monetary, supervisory or other
authority, whether or not having the force of law (including, without
limitation, any form of reserve requirement, statutory reserve
deposit, special deposit, variable deposit ratio, capital adequacy
ratio, equity ratio, liquidity ratio, liabilities ratio or other
requirement or restriction).
DRAWINGS means the outstanding principal amount of the drawings made
under the Facility.
DRAWN COMMITMENT means, for a Financier, the principal amount actually
made available by that Financier to the Borrower under the Facility.
EASTERN means TXU Electricity Limited (previously known as Eastern
Energy Limited) (ACN 064 651 118) in its capacity as a borrower under
this agreement prior to the date of Financial Close .
EVENT OF DEFAULT has the meaning given to it in clause 7 (Events of
Default).
FACILITY means the loan facility granted by this agreement.
FACILITY LIMIT means A$413,000,000 as reduced by the aggregate of all
prepayments and repayments under this agreement and the Deed Poll and
as may be increased in accordance with clause 1.8 (Maximum
accommodation).
FINANCIAL CLOSE means the date determined in the manner set out in the
Details.
FINANCIAL CLOSE NOTICE means a completed notice containing the
information and representations and warranties set out in schedule 1
(Financial Close Notice).
FINANCIAL STATEMENTS means:
(a) a profit and loss statement;
(b) a balance sheet; and
(c) a statement of cash flows,
together with any notes to those documents and a directors'
declaration as required under the Corporations Law and any other
information necessary to give a true and fair view.
FINANCIER means:
(a) the Original Financiers;
(b) subject to the terms of clause 2 (Issue of Loan Notes under the
Facility), each Additional Financier; and
(c) any person who is named as a "Transferee Financier" under a
Transfer Certificate.
GENERAL PARTNER means TXU Australia Holdings (AGP) Pty Ltd (ACN 086
014 931).
GST means a goods and services tax or any similar tax imposed in
Australia.
GOVERNMENTAL AGENCY means any government or any governmental,
semi-governmental, administrative, fiscal or judicial body,
department, commission, authority, tribunal, agency or entity.
GUARANTOR means TXU Corp. (previously trading as Texas Utilities
Company), a Texas corporation having an office at Energy Plaza, 0000
Xxxxx Xxxxxx, Xxxxxx, Xxxxx 00000, Xxxxxx Xxxxxx of America.
INCREASED COSTS EVENT means:
(a) either:
(i) the introduction or commencement (after the date of this
agreement) of, or any change in, or in the interpretation,
application or administration of (taking effect after the
date of this agreement); or
(ii) the compliance by, or a change in the method of compliance
by, a Financier or any Holding Company (as defined in the
Corporations Law) of a Financier with,
any Directive; or
(b) the imposition of, or any change in the basis of, any Taxes.
INSOLVENCY EVENT means the happening of any of these events:
(a) an application is made to a court for an order that a body
corporate be wound up (and is not stayed, withdrawn or dismissed
within 14 days) unless the body corporate satisfies the
Administrative Agent (after consultation with a Majority of
Financiers) within 14 days of it being made that the application
is frivolous or vexatious; or
(b) an order is made that a body corporate be wound up;
(c) an application is made to a court for an order appointing a
liquidator or provisional liquidator in respect of a body
corporate (and is not stayed, withdrawn or dismissed within 14
days) unless the body corporate satisfies the Administrative
Agent (after consultation with a Majority of Financiers) within
14 days of it being made that the application is frivolous or
vexatious; or
(d) a liquidator or provisional liquidator is appointed in respect of
a body corporate, whether or not under a court order; or
(e) except to reconstruct or amalgamate while solvent on terms
approved by the Administrative Agent (after consultation with and
acting on the instructions of a Majority of Financiers), a body
corporate enters into, or resolves to enter into, a scheme of
arrangement, deed of arrangement or composition with, or
assignment for the benefit of, all or any class of its creditors,
or it proposes a reorganisation, moratorium or other
administration involving any of them; or
(f) a body corporate resolves to wind itself up, or otherwise
dissolve itself, or gives notice of intention to do so, except to
reconstruct or amalgamate while solvent on terms approved by the
Administrative Agent (after consultation with a Majority of
Financiers) or is otherwise wound up or dissolved; or
(g) a body corporate is or states that it is unable to pay its debts
when they fall due; or
(h) as a result of the operation of section 459F(1) of the
Corporations Law, a body corporate is taken to have failed to
comply with a statutory demand; or
(i) a body corporate is or makes a statement from which it may be
reasonably deduced by the Administrative Agent (after
consultation with a Majority of Financiers) that the body
corporate is, the subject of an event described in section
459C(2)(b) or section 585 of the Corporations Law; or
(j) a body corporate takes any step to obtain protection or is
granted protection from its creditors, under any applicable
legislation or an administrator is appointed to a body corporate;
or
(k) a person becomes an insolvent under administration as defined in
section 9 of the Corporations Law or action is taken which could
result in that event; or
(l) anything analogous or having a substantially similar effect to
any of the events specified above happens under the law of any
applicable jurisdiction.
INTEREST PAYMENT DATE means the last day of an Interest Period or if
an Interest Period is of a duration which exceeds 93 days:
(a) in respect of the interest accrued up to that day, the
ninety-third day during that Interest Period; and
(b) in respect of the balance of the interest accrued for that
Interest Period, the last day of that Interest Period.
INTEREST PERIOD means each period selected in accordance with clause
3.1 (Notification of Interest Period).
INTEREST RATE means the interest rate for the Facility set out in the
Details.
LENDING OFFICE means in the case of the initial Financiers, the
address shown in the Details as the lending office of each initial
Financier and, in the case of Financiers acquiring an interest under
clause 21 (Transfers and Substitutions of Financiers), the address
shown in the relevant Transfer Certificate as the Lending Office of
that Financier.
LIMITED PARTNERS means:
(a) TXU Australia (LP) No. 1 Limited, a company incorporated in
England and Wales with a registration number of 3679715; and
(b) TXU Australia (LP) No. 2 Limited, a company incorporated in
England and Wales with a registration number of 3679712.
LOAN means the outstanding principal amount of the Drawings made
available under the Facility which:
(a) has the same Interest Period; and
(b) ends on the same Interest Payment Date.
LOAN NOTE means a debt obligation of the Borrower owing under the Deed
Poll to a Financier.
MAJORITY OF FINANCIERS means at any time Financiers the total of whose
Commitments exceeds 66.67% of the total of all Financiers'
Commitments.
MARGIN means 0.875% per annum.
MATERIAL ADVERSE EFFECT means something which materially adversely
affects:
(a) the legality, validity or enforceability of a Transaction
Document; or
(b) the relevant entity's ability to observe its obligations under
the Transaction Documents; or
(c) the rights of any of the Financiers under the Transaction
Documents.
MATURITY DATE means the maturity date set out in the Details, but if
that is not a Business Day, then the preceding Business Day.
NEW CREDITOR ACCESSION DEED shall have the meaning it bears in the
Deed of Common Terms and executed or to be executed by each of the
Financiers party to this agreement and the Deed Poll from time to time
other than the Original Financiers.
OBLIGORS means the Borrower and the Guarantor and OBLIGOR means any of
them.
ORIGINAL ADMINISTRATIVE AGENT means Citibank, N.A., in its capacity as
"Administrative Agent" under this agreement prior to the date of
Financial Close.
ORIGINAL COMMITMENT means, for an Original Financier, the amount for
that Original Financier set out as such and so described in the
Details.
ORIGINAL FACILITY means the loan facility described in clause 1.1
(Original Facility).
ORIGINAL FINANCIER means each person so described in the Details.
PARTNERSHIP DEED means the Limited Partnership Deed made on 27 January
1999 as amended on 23 February 1999, 16 May 2000 and 31 May 2000
between the General Partner and the Limited Partners in order to form
the Borrower.
PERMITTED SECURITY INTEREST has the same meaning as in the Deed of
Common Terms.
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 in respect of the Facility or a
Loan, the proportion which its Commitment bears to the Facility Limit.
PRINCIPAL OUTSTANDING means, at any time or in respect of the
Administrative Agent or a Financier, the total principal amount of all
outstanding Drawings and all other amounts which are then due for
payment, or which will or may become due for payment in connection
with this agreement and/or the Deed Poll to the Administrative Agent,
the Arranger or any Financier or to the Administrative Agent for the
account of that Financier.
REFERENCE BANKS means Citibank, N.A., and two other Financiers
selected by the Borrower and the Administrative Agent.
REGISTER means the register of holders of Loan Notes established under
clause 9 (Registration).
REGISTRAR means the person appointed from time to time under clause
9.4 (Appointment of Registrar) as the Registrar.
RELATED ENTITY of an entity means another entity which is related to
the first within the meaning of section 50 of the Corporations Law or
is in any economic entity (as defined in any approved accounting
standard) which contains the first.
SECURITY INTEREST means any security for the payment of money or
performance of obligations including a mortgage, charge, lien, pledge,
trust or power.
STANDING PAYMENT INSTRUCTIONS means, in relation to any party, the
details of the bank account(s) of such party set out in the Details.
SUBSIDIARY of an entity means another entity which is a subsidiary of
the first within the meaning of part 1.2 division 6 of the
Corporations Law or is a subsidiary of or otherwise controlled by the
first within the meaning of any approved accounting standard.
TAX ACT means the Income Tax Assessment Xxx 0000 of Australia.
TAXES means taxes, levies, imposts, deductions, charges, withholdings
and duties imposed by any authority (including, without limitation,
stamp and transaction duties) (together with any related interest,
penalties, fines and expenses in connection with them), except if
imposed on the overall net income of a Financier.
TEXAS GUARANTEE means:
(a) for the period beginning on the date of this agreement and ending
on the date of Financial Close, the guarantee entitled "Guaranty"
dated as of 24 February 1999 in favour of Citibank, N.A. in
relation to this agreement in force prior to the date of
Financial Close and in respect of which Citibank, N.A., with the
prior consent of the Guarantor, assigned a portion of its rights
on 24 December 1999 to BA Australia Limited and a portion of its
rights on 30 December 1999 to Westpac Banking Corporation; and
(b) thereafter, a guarantee executed or to be executed by the
Guarantor dated on or about the date of Financial Close in favour
of the Administrative Agent, the Arranger and the Financiers in
replacement of the document referred to in (a) above.
TRANSACTION DOCUMENTS means the documents described as such in the
Details, any document which any Obligor acknowledges in writing to be
a Transaction Document, and any other document connected with any of
them.
TRANSFER CERTIFICATE means a certificate substantially in the form of
schedule 2, completed as stated in that schedule, or another document
approved by the Administrative Agent for the purpose of clause 21
(Transfers and Substitutions by Financiers).
TRANSFEREE FINANCIER means a person who is to assume some or all of
the obligations and become entitled to some or all of the rights of a
Transferor Financier under the Transaction Documents.
TRANSFEROR FINANCIER means a Financier which proposes to have some or
all of its obligations and rights under the Transaction Documents
assumed by and assigned to another person .
TUC CREDIT AGREEMENT means the Five-Year Second Amended and Restated
Competitive Advance and Revolving Credit Facility Agreement, dated as
of February 25, 2000 as amended or modified from time to time, among
the Guarantor, TXU Electric Company, TXU Gas Company and certain
lenders and agents named in that agreement.
REFERENCES TO CERTAIN GENERAL TERMS
25.2 Unless the contrary intention appears, a reference in a Transaction
Document to:
(a) a group of persons is a reference to any two or more of them
collectively and to each of them individually;
(b) an agreement, representation or warranty in favour of two or more
persons is for the benefit of them jointly and each of them
severally;
(c) an agreement, representation or warranty by two or more persons
binds them jointly and each of them severally but an agreement,
representation or warranty by a Financier binds the Financier
severally only;
(d) a reference to a statute, ordinance, code or other law includes
regulations and other instruments under it and consolidations,
amendments, re-enactments or replacements of any of them;
(e) a document (including this agreement) includes any variation or
replacement of it;
(f) law means common law, principles of equity, and laws made by
parliament (and laws made by parliament include regulations and
other instruments under them, and consolidations, amendments,
re-enactments or replacements of any of them);
(g) a reference to an accounting term is to be interpreted in
accordance with accounting standards under the Corporations Law
and, if not inconsistent with those accounting standards,
generally accepted principles and practices in Australia
consistently applied by a body corporate or as between bodies
corporate and over time;
(h) a time of day is a reference to Melbourne time;
(i) the word "person" includes an individual, a firm, a body
corporate, an unincorporated association and an authority;
(j) 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;
(k) the word "payable" in relation to an amount, means an amount
which is currently payable or will or may be payable in the
future; and
(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.
NUMBER
25.3 The singular includes the plural and vice versa.
HEADINGS
25.4 Headings are for convenience only and do not affect the interpretation
of this agreement.
DEED OF COMMON TERMS
25.5 This agreement, the Loan Notes and the Deed Poll are Transaction
Documents as defined in, and for the purposes of, the Deed of Common
Terms. The rights of the Financiers, and the obligations of the
Partnership, under this agreement, the Loan Notes and the Deed Poll
are subject to the terms of the Deed of Common Terms.
PARTNERSHIP
25.6 If this agreement requires or permits any act, matter or thing to be
done by the Borrower, that act, matter or thing must be done by the
General Partner and, once done, will be deemed to bind:
(a) the Partnership; and
(b) each of the partners in the Partnership in accordance with the
Partnership Deed.
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SCHEDULE 1 - FINANCIAL CLOSE NOTICE
(CLAUSE 2)
To: [NAME AND ADDRESS OF ADMINISTRATIVE AGENT]
FOR ITSELF AND ON BEHALF OF THE ARRANGER AND THE FINANCIERS
Attention: [INSERT]
[DATE]
FINANCIAL CLOSE NOTICE - AMENDED AND RESTATED SUBORDINATED FACILITY AGREEMENT
BETWEEN TXU AUSTRALIA HOLDINGS (PARTNERSHIP) LIMITED PARTNERSHIP AS BORROWER
CITISECURITIES LIMITED AS ADMINISTRATIVE AGENT, CITIBANK, N.A. AS ARRANGER AND
OTHERS AS FINANCIERS DATED 24 FEBRUARY 1999 AS AMENDED ON 24 AUGUST 1999 AND 23
DECEMBER 1999 AND AMENDED AND RESTATED ON [ ] JUNE 2000 ("FACILITY AGREEMENT")
This notice is given under clauses 2 and 3 of the Facility Agreement.
The Borrower requests that the first Interest Period commencing on the date
of Financial Close is [ ]1
The Borrower represents and warrants that the representations and warranties in
the Facility Agreement are correct and not misleading on the date of this notice
and that each will be correct and not misleading on the date of Financial Close.
The "Interpretation" clause of the Facility Agreement applies to this notice as
if it was fully set out in this notice.
..........................................
[NAME OF PERSON] being
an Authorised Officer of
THE BORROWER
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SCHEDULE 2 - FORM OF TRANSFER CERTIFICATE
for a Participation of [*]$[*]
relating to the Amended and Restated Subordinated Facility Agreement ("FACILITY
AGREEMENT") dated [ ] June 2000 between TXU AUSTRALIA HOLDINGS (PARTNERSHIP)
LIMITED PARTNERSHIP as Borrower and Citisecurities Limited as Administrative
Agent, Citibank, N.A. as Arranger and the Financiers named in that agreement
between:
1 [NAME] ("TRANSFEREE FINANCIER");
2 [NAME] ("TRANSFEROR FINANCIER); and
3 CITISECURITIES LIMITED (ACN 000 000 000) ("ADMINISTRATIVE AGENT") for
itself and on behalf of the other parties to the Facility Agreement,
and the Deed Poll dated [*] by the Borrower ("DEED POLL").
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OPERATIVE PROVISIONS
26 DEFINITIONS
26.1 In this Certificate definitions in the Deed Poll and the following
definitions apply.
TRANSFER DATE means the date of countersignature of this Certificate by the
Administrative Agent [or [*] whichever is the later]. [NOTE: Insert any
other date or dates as appropriate.]
TRANSFERRED PARTICIPATION means [* of] the Transferor Financier's
Commitment [and the participation in the Principal Outstanding under that
Commitment [in respect of the following Loans:]
INTEREST PERIOD LAST INTEREST AMOUNT OF LOAN PAYMENT DATE NOTE
amounting to a principal amount of A$[*].
26.2 The "General" and the "Interpretation" clauses of the Facility
Agreement apply to this Certificate as if they were fully set out in
this Certificate.
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27 TRANSFER AND SUBSTITUTION
TRANSFER
27.1 The Transferor Financier transfers Loan Notes with a maximum face
amount and a principal outstanding representing the Transferred
Participation with effect from and including the Transfer Date.
SUBSTITUTION
27.2 The Transferor Financier will cease to be entitled to and bound by its
rights and obligations as a Financier under the Transaction Documents
[relating to the Transferred Participation] [NOTE: Insert if only part
of commitment assumed.] with effect from and including the Transfer
Date. It will remain entitled to and bound by rights and obligations
which accrue up to the Transfer Date.
27.3 With effect from and including the Transfer Date:
(a) the Transferee Financier and each of the parties to the Facility
Agreement will assume obligations towards each other and acquire
rights against each other which are identical to the rights and
obligations which cease under clause 2.2, except to the extent
the obligations so assumed and rights so acquired relate to the
identity of or location of the Transferee Financier and not to
the identity of or location of the Transferor Financier; and
(b) the Transferee Financier will be taken to be a party to the
Facility Agreement as a Financier with a Commitment and
participation in the Principal Outstanding equal to the
Transferred Participation.
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28 INDEPENDENT ASSESSMENT BY TRANSFEREE FINANCIER
Without limiting the generality of clause 2 the Transferee Financier agrees
as specified in clause 14.1 (Individual responsibility of Financiers) and
clause 14.2 (Exoneration of Administrative Agent) of the Facility
Agreement. Those clauses apply (subject to any agreement to the contrary)
as if references to the Administrative Agent included the Transferor
Financier. This Certificate is a Transaction Document for the purposes of
the Facility Agreement.
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29 PAYMENTS
From and including the Transfer Date the Administrative Agent shall make
all payments due under the Transaction Documents in relation to the
Transferred Participation to the Transferee Financier in accordance with
the Standing Payment Instructions, the Facility Agreement and the Deed
Poll. The Transferor Financier and the Transferee Financier will make
directly between themselves those payments and adjustments which they agree
with respect to accrued interest, fees, costs and other amounts
attributable to the Transferred Participation before the Transfer Date.
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30 WARRANTY
The Transferor Financier and the Transferee Financier jointly and severally
represent and warrant to the other parties (including, without limitation,
to the Borrower) that clause 21 (Transfers and Substitutions by Financiers)
of the Facility Agreement has been complied with in relation to the
Transferee Financier.
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31 NOTICES
For the purpose of the Facility Agreement, the address for correspondence
of the Transferee Financier is the address set out below.
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32 LAW
This Certificate is governed by the laws of New South Wales.
Signed by the authorised representatives of the parties [in New South Wales
or outside of Australia].
THE TRANSFEROR FINANCIER
[NAME]
by: ...............................................................
THE TRANSFEREE FINANCIER
[NAME]
by: ...............................................................
[Fax No:]
[Tel No:]
[Attention:]
[Address for correspondence:]
[Standing Payment Instructions:]
Countersigned by an authorised representative of the Administrative Agent for
itself and for the other parties to the Facility Agreement.
THE ADMINISTRATIVE AGENT
Citisecurities Limited
by: ...............................................................
date: ..............................................................
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1 Must be an Interest Period set out in the Details.
