Exhibit 10(kk)
Working Capital Facility Agreement
Dated: 26 February 2004
TXU Australia Holdings Pty Ltd
("Borrower")
Australia and New Zealand Banking Group Limited
and Commonwealth Bank of Australia
("Financiers")
Mallesons Xxxxxxx Xxxxxx
Rialto
000 Xxxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
Telephone (00 0) 0000 0000
Fax (00 0) 0000 0000
DX 101 Melbourne
xxx.xxxxxxxxx.xxx
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Ref: MLB/JLC
7036706_10
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1 The Facility and Facility Limit 4
1.1 Financiers to fund 4
1.2 Maximum accommodation 4
1.3 Several Obligations 4
1.4 Several Interests 4
1.5 Financiers' interest in the Deed of Common Terms 4
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2 Using the Facility 4
2.1 Drawing down 4
2.2 Requesting a Drawing 4
2.3 Effect of a Drawdown Notice 5
2.4 Conditions to first drawdown 5
2.5 Conditions to all drawdowns 5
2.6 Benefit of conditions 5
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3 Interest 5
3.1 Interest charges 5
3.2 Notification of Interest Period 6
3.3 When Interest Period begins and ends 6
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4 Money Market Drawings 6
4.1 Request for Money Market Drawings 6
4.2 Interest for Money Market Drawings 7
4.3 Automatic rollover and repayment 7
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5 Repaying and prepaying 8
5.1 Repayment 8
5.2 Voluntary early prepayment 8
5.3 Prepayments 8
5.4 Prepayments and the Facility Limit 8
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6 Reliquifying Bills 8
6.1 Obligation to draw Bills 8
6.2 Financier as attorney 9
6.3 Termination 9
6.4 Indemnity by Financier 9
6.5 Deemed application 9
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7 Payments 9
7.1 Manner of payment 9
7.2 Currency of payment 10
7.3 Total Amount Owing 10
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8 Cancellation 10
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9 Fees 10
9.1 Establishment fee 10
9.2 Commitment Fee 10
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10 Withholding tax 11
10.1 Payments by Borrower 11
10.2 Tax credit 11
10.3 Exclusions 12
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(c)Mallesons Xxxxxxx Xxxxxx Working Capital Facility Agreement 1
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11 Increased costs 12
11.1 Compensation 12
11.2 Substantiating Costs 13
11.3 Negotiations 13
11.4 Prepayment 13
11.5 No compensation 13
11.6 Retrospective costs 14
11.7 Change of Funding Office 14
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12 Illegality or impossibility 14
12.1 Financier's right to suspend or cancel 14
12.2 Extent and duration 14
12.3 Notice requiring prepayment under Facility 15
12.4 Financier to seek alternative funding method 15
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13 Representations and warranties 15
13.1 Representations and warranties 15
13.2 Continuation of representations and warranties 15
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14 Undertakings 16
14.1 Undertakings 16
14.2 Purpose undertaking 16
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15 Default 16
15.1 Events of Default 16
15.2 Effect of Event of Default 16
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16 Costs and indemnities 16
16.1 What the Borrower agrees to pay 16
16.2 Indemnity 17
16.3 Items included in loss, liability and Costs 18
16.4 Payment of third party losses 18
16.5 Currency conversion on judgment debt 18
16.6 GST 19
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17 Interest on overdue amounts 19
17.1 Obligation to pay 19
17.2 Compounding 20
17.3 Interest following judgment 20
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18 Application of payments 20
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19 Dealing with interests 20
19.1 No dealing by Borrower 20
19.2 Dealings by Financier 20
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20 Notices 21
20.1 Form 21
20.2 Delivery 21
20.3 When effective 21
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Mallesons Xxxxxxx Xxxxxx Working Capital Facility Agreement 2
26 February 2004
20.4 Deemed receipt - postal 21
20.5 Deemed receipt - fax 21
20.6 Deemed receipt - general 21
20.7 Waiver of notice period 22
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21 General 22
21.1 Application to Bank Finance Documents 22
21.2 Prompt performance 22
21.3 Consents 22
21.4 Certificates 22
21.5 Set-off 22
21.6 Discretion in exercising rights 22
21.7 Partial exercising of rights 22
21.8 No liability for loss 23
21.9 Conflict of interest 23
21.10 Remedies cumulative 23
21.11 Indemnities 23
21.12 Rights and obligations are unaffected 23
21.13 Inconsistent law 23
21.14 Supervening legislation 23
21.15 Time of the essence 23
21.16 Variation and waiver 23
21.17 Confidentiality 24
21.18 Further steps 24
21.19 Counterparts 24
21.20 Applicable law 25
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22 Interpretation 25
22.1 Definitions 25
22.2 References to certain general terms 30
22.3 Number 31
22.4 Headings 31
22.5 Senior Finance Document 31
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23 IPO 31
23.1 IPO Effective Date and New Borrower 31
23.2 ("IPO Effective Date and IPO issuing entity is the Borrower") 31
23.3 Acknowledgments 31
Schedule 1 - Conditions precedent (clause 2.4) 33
Schedule 2 - Drawdown Notice (clauses 2 and 4.1) 36
Schedule 3 - Interest Period Notice (clause 3.2) 38
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Mallesons Xxxxxxx Xxxxxx Working Capital Facility Agreement 3
26 February 2004
Exhibit 10(jj)
Working Capital Facility Agreement
Details
Interpretation - Definitions are at the end of this agreement before the
schedules.
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Parties Borrower and Financiers, each as described below.
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Borrower Name TXU Australia Holdings Pty Ltd
ABN 97 086 006 859
Incorporated in Australia
Address Xxxxx 00, 000 Xxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxx
Fax (00 0) 0000 0000
Telephone (00 0) 0000 0000
Attention Assistant Treasurer
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Financiers
Name Australia and New Zealand Banking
Group Limited
ABN 11 005 357 522
Lending Office Xxxxx 00, 000 Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxx
Fax (00 0) 0000 0000
Attention Xx Xxxx Xxxxxxxx
Name Commonwealth Bank of Australia
ABN 48 123 123 124
Lending Office Xxxxx 00, 000 Xxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxx
Fax (00 0) 0000 0000
Attention Xx Xxxx Xxxxxx
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Facility Facility Limit A$75,000,000, as reduced by the total
of all cancellations under this
agreement.
Commitment A$37,500,000 for each Financier.
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(c)Mallesons Xxxxxxx Xxxxxx Working Capital Facility Agreement 1
26 February 2004
Availability The period from the Debt
Period Refinance Date until the
Maturity Date.
Maturity Date 364 days from the Debt Refinance Date.
Interest Rate In relation to an Interest
Period for an Advance Drawing,
means the aggregate of the Bank
Xxxx Rate plus the Applicable
Margin for that Financier.
In relation to an Interest Period
for a Money Market Drawing means
the Interest Rate as agreed between
the Borrower and the Financier.
Interest Period In relation to an Advance Drawing, 30
(clause 3.2 ) days unless otherwise agreed.
Purpose To refinance the existing working
capital facility (tranche F) which
was provided to TXU Australia
Holdings (Partnership) Limited
Partnership and to provide for
general working capital purposes.
Drawdowns Minimum A$1,000,000 and a whole
multiple of A$500,000.
Prepayment (clause Prepayments of at least A$1,000,000
5.2) and a whole multiple of A$1500,000 are
permitted without penalty,
on the last Business Day of the
Interest Period of the relevant
Drawing if notice is given by
11:00am on the third Business Day
before the prepayment.
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Fees Establishment As separately agreed for each Financier in
(also see fee its Fee Letter.
clause 9)
Commitment fee 40% of the Applicable Margin
for each Financier calculated on
the daily balance of the Undrawn
Commitment of the Financier using a
365 day year.
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(c)Mallesons Xxxxxxx Xxxxxx Working Capital Facility Agreement 2
26 February 2004
Bank Finance Documents include:
o this agreement
o any Drawdown Notice;
o any Interest Period Notice;
o the Deed of Common Terms;
o the Guarantees;
o each Fee Letter; and
o the Amending Deed.
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Business Day place(s) Melbourne and Sydney
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Governing law Victoria
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Date of agreement See Signing page
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(c)Mallesons Xxxxxxx Xxxxxx Working Capital Facility Agreement 3
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Working Capital Facility Agreement
General terms
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1 The Facility and Facility Limit
1.1 Financiers to fund
Subject to the Bank Finance Documents, each Financier agrees to provide
the financial accommodation requested by the Borrower from that
Financier in accordance with this agreement.
1.2 Maximum accommodation
The maximum total amount of financial accommodation available to the
Borrower under this agreement is the Facility Limit. 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.
1.3 Several Obligations
The obligations of each Financier under this agreement are several. The
failure of a Financier to perform its obligations under this agreement
will not relieve the other Financier or the Borrower of any of its
respective obligations under this agreement. A Financier will not be
responsible for the obligations of the other Financier.
1.4 Several Interests
The interests of each Financier under this agreement and the other Bank
Finance Documents are several. Subject to the provisions of the Bank
Finance Documents, each Financier may separately enforce its rights
under any Bank Finance Document.
1.5 Financiers' interest in the Deed of Common Terms
Each Financier accepts that it acquires an interest in the Guarantees
held by the Trustee and agrees to be bound by the Deed of Common Terms.
2 Using the Facility
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2.1 Drawing down
The Borrower need not use the Facility. However, if the Borrower wants
to use the Facility, it may do so by one or more Drawings from the
Financiers. A Drawing is provided by a single Financier, and not by the
Financiers together.
2.2 Requesting a Drawing
(a) If the Borrower wants an Advance Drawing, it agrees to give a
Drawdown Notice to a Financier by 11:00am on the second
Business Day before the day it wants the Advance Drawing to be
drawn down; and
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26 February 2004
(b) if the Borrower wants a Money Market Drawing, it agrees to
follow the procedures set out in clause 4 ("Money Market
Drawings").
2.3 Effect of a Drawdown Notice
A Drawdown Notice for an Advance Drawing is effective when a Financier
actually receives it in legible form in accordance with clause 20
("Notices"). An effective Drawdown Notice is irrevocable.
2.4 Conditions to first drawdown
The Borrower agrees not to request the first drawdown whether an
Advance Drawing or a Money Market Drawing until the Financiers have
received every item listed in schedule 1 ("Conditions precedent") in
form and substance satisfactory to each Financier. Any item required to
be certified must be certified by a secretary or a director of the
relevant entity as being true and complete as at a date no earlier than
the date of this agreement. Each Financier agrees to notify the
Borrower promptly after the Financier receives the final item listed in
Schedule 1 in form and substance satisfactory to the Financier.
2.5 Conditions to all drawdowns
A Financier need not provide any financial accommodation unless:
(a) it is to be provided during the Availability Period; and
(b) the Financier is satisfied that after providing the
accommodation the Facility Limit would not be exceeded and its
Drawn Commitment would not exceed its Commitment; and
(c) in respect of an Advance Drawing, the Financier has received a
Drawdown Notice in accordance with clause 20 in respect of it;
and
(d) the representations and warranties in clause 5 of the Deed of
Common Terms and in the Drawdown Notice and the statements in
the Drawdown Notice are correct and not misleading at the date
of the Drawdown Notice and on the Drawdown Date; and
(e) no Event of Default or Potential Event of Default subsists or
would result from the accommodation being provided.
2.6 Benefit of conditions
Each condition to drawdown is for the sole benefit of the Financiers
and may be waived by them.
3 Interest
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3.1 Interest charges
The Borrower agrees to pay interest on each Drawing for each of its
Interest Periods at the applicable Interest Rate. Interest:
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Mallesons Xxxxxxx Xxxxxx Working Capital Facility Agreement 5
26 February 2004
(a) accrues daily from and including the first day of an Interest
Period to but excluding the last day of the Interest Period;
and
(b) is payable in arrears on each Interest Payment Date; and
(c) is calculated on actual days elapsed and a year of 365 days.
3.2 Notification of Interest Period
The first Interest Period for an Advance Drawing is the period
specified in the Drawdown Notice. Each subsequent Interest Period is a
period specified by the Borrower to the Financier in an Interest Period
Notice, which has provided that Advance Drawing by 11:00am on the
second Business Day before the last day of the current Interest Period.
However, in each case, the specified period must be one that is set out
in the Details provided that if a Review Event has occurred and the
Trustee has notified the Borrower of the Option, the Interest Period
must end on or before the last day of the Option Period. If the
Borrower does not give correct notice, the subsequent Interest Period
for an Advance Drawing 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).
3.3 When Interest Period begins and ends
The first Interest Period for a Drawing begins on its Drawdown Date.
Each subsequent Interest Period begins on the day when the preceding
Interest Period for the Drawing ends. An Interest Period which would
otherwise end on a day which is not a Business Day ends on the next
Business Day (unless that day falls in the following month, in which
case the Interest Period ends on the previous Business Day). However,
an Interest Period which would otherwise end after the Maturity Date
ends on the Maturity Date.
4 Money Market Drawings
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4.1 Request for Money Market Drawings
(a) The Borrower may on any Business Day before 11:00am
discuss by telephone with a Financier in respect of a
Money Market Drawing which the Borrower may request
the Financier to provide:
(i) the principal amount of that Drawing;
(ii) the interest rate at which the Financier is prepared
to make available that Drawing;
(iii) the Interest Period for that Drawing (subject to the
period being not less than 1 and not more than 28
days and ending on or before the Maturity Date); and
(iv) the settlement procedures for that Drawing.
(b) The discussions must be conducted on the Borrower's
behalf by one of its Authorised Officers.
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Mallesons Xxxxxxx Xxxxxx Working Capital Facility Agreement 6
26 February 2004
(c) If an agreement is reached by the Borrower and the
Financier in relation to the matters referred to in
paragraph (a) above, then:
(i) subject to this agreement, the Financier will be
obliged to provide the Money Market Drawing on the
agreed terms; and
(ii) the Borrower will send to the Financier a
confirmation substantially in the form of schedule 2
("Drawdown Notice") accurately reflecting those terms
by no later than 12 noon on the Drawdown Date and
signed by an Authorised Officer of the Borrower.
4.2 Interest for Money Market Drawings
If the Interest Rate applicable to a Money Market Drawing is to be
determined daily, then the Financier must determine and notify the
Borrower of the applicable Interest Rate to apply on that day. The
notification must be made by no later than 12 noon on that day.
4.3 Automatic rollover and repayment
(a) Notwithstanding clause 5 ("Repaying and Prepaying") but
without limiting paragraphs (b) or (c) of this clause, the
Borrower may elect to prepay any Money Market Drawing by
giving the Financier a notice by no later than 11:00am on the
Business Day on which it has elected to prepay the Money
Market Drawing. The notice must be signed by one Authorised
Officer of the Borrower and is irrevocable.
(b)
(i) Money Market Drawings which have an Interest Period of one
day will be automatically rolled over at 11:00am on the
first Business Day after that day with a new Interest
Period of one day unless the Borrower has repaid that Money
Market Drawing under paragraph (c). The Interest Rate for
each Interest Period after the initial Interest Period will
be determined by the Financier in accordance with clause
4.2 ("Interest for Money Market Drawings").
(ii) A Money Market Drawing will cease to be rolled over under
sub-paragraph (i) above on the twenty eighth day from and
including the first Drawdown Date for that Drawing. The
Borrower will repay the Money Market Drawing in accordance
with clause 4.3(c) on that day.
(iii) On the date that the Money Market Drawing is rolled over,
the Borrower will be taken to have made the representations
and warranties in paragraph 3 of the notice in schedule 2
("Drawdown Notice") without qualification.
(c) Each Money Market Drawing shall be repaid by the Borrower by
12 noon on the last day of its Interest Period unless it has
been rolled over under paragraph (b)(i) above.
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Mallesons Xxxxxxx Xxxxxx Working Capital Facility Agreement 7
26 February 2004
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5 Repaying and prepaying
5.1 Repayment
The Borrower agrees to repay the total of the Drawings on the Maturity
Date.
5.2 Voluntary early prepayment
The Borrower may prepay a Drawing or Drawings in whole or in part
without incurring break costs, as follows:
(a) the prepayment amount must be at least A$1,000,000 and a whole
multiple of A$500,000 (unless the Financiers otherwise agree);
and
(b) the Borrower must notify the proposed prepayment to the
Financiers by 11:00am on the third Business Day before the
prepayment (once given, a notice of prepayment is irrevocable
and the Borrower is obliged to prepay in accordance with the
notice); and
(c) the prepayment must be applied in accordance with clause 5.3
("Prepayments"); and
(d) the prepayment of each Drawing must be made on the last day of
the Interest Period for each Drawing.
If the Borrower prepays other than as set out in this clause 5.2, they
may be liable for break costs - see clause 16.2 ("Indemnity").
5.3 Prepayments
Prepayments under this clause 5 ("Repaying and Prepaying") of a Drawing
made available by a Financier will be applied in reduction of that
Financier's Drawn Commitment. Prepayments do not need to be applied
rateably to both Financiers.
5.4 Prepayments and the Facility Limit
Neither the Facility Limit, nor a Financier's Commitment, is reduced by
the amount of an early prepayment under clause 5.2 ("Voluntary early
prepayment").
6 Reliquifying Bills
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6.1 Obligation to draw Bills
The Borrower agrees to draw Bills when and in the form required by a
Financier. However:
(a) the discounted value of those Bills, when added to the total
of the discounted value of all other Bills drawn as required
by the Financier under this clause 6 ("Reliquifying Bills")
and which are outstanding, may not exceed the amount of the
Drawing from that Financier to which the Bills relate; and
(b) no Xxxx is to be drawn which would mature after the Maturity
Date.
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Mallesons Xxxxxxx Xxxxxx Working Capital Facility Agreement 8
26 February 2004
6.2 Financier as attorney
The Borrower irrevocably appoints each Financier and each Authorised
Officer of each Financier individually as its attorney to draw, accept
or endorse the Bills on its behalf and agrees to ratify all action
taken by an attorney under this clause 6.2.
6.3 Termination
The Borrower's obligation to draw Bills ceases, and the appointment of
a Financier and its Authorised Officers as attorney for this purpose is
revoked, on payment by the Borrower of the Amount Owing to that
Financier under this agreement.
6.4 Indemnity by Financier
Each Financier unconditionally and irrevocably indemnifies the Borrower
against liability or loss arising from, and any Costs (including duty)
incurred in connection with, any Xxxx having recourse to the Borrower
drawn at the Financier's request under this clause 6 ("Reliquifying
Bills"). Each Financier agrees to pay amounts due from it under this
indemnity to the Borrower on demand.
6.5 Deemed application
If a reliquification Xxxx is presented to the Borrower and the Borrower
discharges it by payment, the amount of that payment will be deemed to
have been applied against the moneys outstanding under this agreement
to the Financier which required the Borrower to draw the Xxxx.
7 Payments
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7.1 Manner of payment
Unless a provision of a Bank Finance Document expressly states
otherwise, the Borrower agrees to make payments (including by way of
reimbursement) under each Bank Finance Document:
(a) on the due date (or, if that is not a Business Day, on the
next Business Day unless that day falls in the following month
or after the Maturity Date, in which case, on the previous
Business Day); and
(b) not later than 12 noon in the place for payment; and
(c) in Australian dollars in immediately available funds; and
(d) in full without set-off or counterclaim and without any
deduction in respect of Taxes unless prohibited by law; and
(e) to each Financier by payment into the account nominated by the
Financier, or by payment as each Financier otherwise directs.
If a Financier directs the Borrower to pay a particular party or in a
particular manner, the Borrower is taken to have satisfied its
obligation to that Financier by paying in accordance with the
direction.
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Mallesons Xxxxxxx Xxxxxx Working Capital Facility Agreement 9
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The Borrower satisfies a payment obligation only when each Financier or
the person to whom it has directed payment receives the amount.
7.2 Currency of payment
The Borrower waives any right they have in any jurisdiction to pay an
amount other than in the currency in which it is due. However, if a
Financier receives an amount in a currency other than that in which it
is due:
(a) it may convert the amount received into the due currency (even
though it may be necessary to convert through a third currency
to do so) on the day and at such rates (including spot rate,
same day value rate or value tomorrow rate) as it reasonably
considers appropriate. It may deduct its usual Costs in
connection with the conversion; and
(b) the Borrower satisfies its obligation to pay in the due
currency only to the extent of the amount of the due currency
obtained from the conversion after deducting the Costs of the
conversion.
7.3 Total Amount Owing
Subject to the provisions of any Bank Finance Document, the Borrower
agrees to pay the total Amount Owing to each Financier on the Maturity
Date for the Facility.
8 Cancellation
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The Borrower may cancel the Undrawn Commitment of a Financier in whole
or in part by notifying each Financier on or before the third Business
Day before the cancellation is to take effect. The Borrower agrees
that, to the extent that it is reasonably practical, it will cancel
Undrawn Commitments so that the Commitments and Drawn Commitments of
each Financier are equal. A partial cancellation must be at least
A$3,000,000 and a whole multiple of A$1,000,000. Once given, the notice
is irrevocable. The Facility Limit reduces by the amount of any
cancellation. Each Financier's Commitment reduces by the amount by
which its Undrawn Commitment is cancelled in accordance with this
clause 8.
9 Fees
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9.1 Establishment fee
The Borrower agrees to pay each Financier the Establishment Fee in
accordance with the Fee letter with that Financier.
9.2 Commitment Fee
The Borrower agrees to pay to each Financier quarterly in arrears (the
first quarter ending three months after the date of this agreement) and
on the last day of the Availability Period for the Facility the
Commitment Fee for the relevant Financier.
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Mallesons Xxxxxxx Xxxxxx Working Capital Facility Agreement 10
26 February 2004
If the Borrower cancels any of the Undrawn Commitment, it agrees to pay
the Commitment Fee in respect of the cancelled amount up to and
including the date on which any Undrawn Commitment is cancelled.
The Commitment Fee is calculated:
(a) on actual days elapsed using a 365 day year;
(b) if the Fee Letter for a Financier specifies that the
Applicable Margin is to be calculated on the basis of
a ratings grid:
(i) as if the first day of the relevant quarter is the
first day of an Interest Period for the purposes of
determining the Applicable Margin; and
(ii) on the basis that the Applicable Margin changes from
the date of any change in, or the loss of, the
corporate rating of the Borrower issued by Standard &
Poor's (Australia) Pty Ltd.
10 Withholding tax
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10.1 Payments by Borrower
If a law requires the Borrower to deduct an amount in respect of Taxes
from a payment under any Bank Finance Document such that a Financier
("Indemnified Party") would not actually receive on the due date the
full amount provided for under the Bank Finance Document, then:
(a) subject to clause 10.3 ("Exclusions"), the Borrower agrees to
deduct the amount for the Taxes (and any further deduction
applicable to any further payment due under paragraph (c)
below); and
(b) the Borrower agrees to pay the amount deducted to the relevant
authority in accordance with applicable law and give the
original receipts to the Financier; and
(c) if the amount deducted is in respect of Accountable Taxes, the
amount payable is increased so that, after making the
deduction and further deductions applicable to additional
amounts payable under this clause, the Financier is entitled
to receive (at the time the payment is due) the amount it
would have received if no deductions had been required.
10.2 Tax credit
This clause 10.2 applies if the Borrower complies with clause 10.1(c)
("Payments by Borrower") and, as a result, the Financier receives a tax
credit, tax rebate or similar benefit for any tax payable by it that in
the Financier's sole opinion (without requiring it or its professional
advisers to expend a material amount of time or incur a material cost
in forming that opinion) is referable to the amount deducted and paid
to the relevant authority.
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Mallesons Xxxxxxx Xxxxxx Working Capital Facility Agreement 11
26 February 2004
In that case, the Financier agrees to notify the Borrower and reimburse
to the Borrower an amount equal to the amount that the Financier
considers in its sole opinion but in good faith to be the proportion of
the credit, rebate or benefit as will leave the Financier (after the
reimbursement) in no worse position than it would have been in had no
increase been required under clause 10.1(c) ("Payments by Borrower").
However, the Financier need pay only to the extent it can do so in its
sole opinion without prejudicing the retention of the amount of the
credit, rebate or other benefit. In complying with this clause 10.2,
the Financier need not disclose to the Borrower information about their
tax affairs or order them in a particular way.
10.3 Exclusions
The Borrower is not required to pay an additional amount under clause
10.1(c) ("Payments by Borrower") in relation to a deduction in respect
of Accountable Taxes, if the deduction in respect of Accountable Taxes
is as a result of the Indemnified Party being a resident of, or
organised or doing business in or having a connection with, the
jurisdiction imposing the Accountable Taxes, other than where the
Indemnified Party is considered a resident of, or as being organised or
doing business in the jurisdiction solely as a result of it being a
party to the Bank Finance Documents or any transaction contemplated by
the Bank Finance Documents.
11 Increased costs
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11.1 Compensation
The Borrower agrees to compensate a Financier on demand if the
Financier determines that:
(a) any new Directive or change in Directive, in either case
applying for the first time after the date of this agreement;
or
(b) a change in a Directive's interpretation or administration by
an authority after the date of this agreement; or
(c) compliance by the Financier or any Holding Company with any
such Directive, changed Directive or changed interpretation or
administration
directly or indirectly:
(i) increases the cost of the Facility to the Financier
or a Holding Company of the Financier; or
(ii) reduces any amount received or receivable by the
Financier or a Holding Company of the Financier, or
its effective return, in connection with the
Facility; or
(iii) reduces the Financier's return or its Holding
Company's return on capital allocated to the
Facility, or its overall return on capital.
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Mallesons Xxxxxxx Xxxxxx Working Capital Facility Agreement 12
26 February 2004
In this clause 11.1, a reference to a Directive does not include a
Directive imposing or changing the basis of a Tax on the overall net
income of the Financier or a Holding Company.
Compensation need not be in the form of a lump sum and may be demanded
as a series of payments.
11.2 Substantiating Costs
If a Financier makes a demand under clause 11.1("Compensation"), it
agrees to provide the Borrower with reasonably detailed calculations
showing how the amount demanded has been ascertained. However, nothing
in this clause 10.2 obliges the Financier to provide details of its
business or tax affairs, which it considers in good faith to be
confidential.
11.3 Negotiations
Without prejudice to clause 11.4 ("Prepayment"), a Financier affected
by a circumstance specified in clause 11.1 ("Compensation") must, at
the request of the Borrower, negotiate in good faith with the Borrower
with a view to finding a means of avoiding the effect of the relevant
circumstance, including by changing its lending office or transferring
its rights and obligations to another financial institution acceptable
to the Borrower provided such means of avoiding the effect of the
relevant circumstance can be achieved free of cost to the Financier (or
the Financier is indemnified or put in funds to its satisfaction by the
Borrower) and nothing in this clause 11.3 obliges the Financier to take
any action or refrain from taking any action apart from negotiating in
good faith with the Borrower.
11.4 Prepayment
If the Borrower has received a demand from a Financier under clause
11.1 ("Compensation") and that notice has not been withdrawn by the
Financier and provided that the Borrower has not given the Financier a
Drawdown Notice which has not yet been funded by the Financier, the
Borrower, by notice given to the Financier, may:
(a) terminate the Financier's obligation to make its Commitment
under the Facility available; and
(b) elect to prepay the Drawings provided by the Financier under
the Facility together with all accrued interest and any other
amounts (including, without limitation, any break costs)
payable by the Borrower to the Financier in connection with
the Facility, within 10 Business Days of receiving that
notice.
Once given, a notice of early prepayment is irrevocable and the
Borrower is obliged to prepay in accordance with that notice.
11.5 No compensation
A Financier may not require the Borrower to make a payment under clause
11.1 ("Compensation") if, at the date of this agreement:
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Mallesons Xxxxxxx Xxxxxx Working Capital Facility Agreement 13
26 February 2004
(a) the Directive was known to the Financier; and
(b) it was both reasonably certain that the Directive would become
law or take effect and it was unreasonable for that Financier
not to take that change into account in determining its likely
overall return under this agreement.
11.6 Retrospective costs
A Financier may only require the Borrower to make a payment under
clause 11.1 ("Compensation") in respect of increased costs incurred by
it up to the then current Interest Period or 90 days, whichever is the
greater, prior to the date on which the Financier became aware of the
circumstance giving rise to the increased costs unless the increased
cost is payable or incurred by the Financier or a Holding Company of
the Financier retrospectively, in which case the full amount of the
increased cost is payable by the Borrower to the Financier or the
Holding Company of that Financier.
11.7 Change of Funding Office
A Financier may not require the Borrower to make a payment under clause
11.1 ("Compensation") if the increased cost arises directly and only as
a result of and immediately following the change of the lending office
of the Financier unless that change was the result of negotiations
under clause 11.3 ("Negotiations") or clause 12.4 ("Financier to seek
alternative funding method").
12 Illegality or impossibility
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12.1 Financier's right to suspend or cancel
This clause 12 ("Illegality or impossibility") applies if a Financier
determines that:
(a) a change in a Directive; or
(b) a change in the interpretation or administration of a Directive
by an authority; or
(c) a new Directive,
applying for the first time after the date of this agreement, makes it
(or will make it) illegal or impossible for the Financier to fund,
provide, or continue to fund or provide, financial accommodation under
this agreement. In these circumstances, the Financier may after
becoming aware of such circumstances by promptly giving a notice to the
Borrower, suspend or cancel some or all of the Financier's obligations
under this agreement as indicated in the notice.
12.2 Extent and duration
The suspension or cancellation:
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Mallesons Xxxxxxx Xxxxxx Working Capital Facility Agreement 14
26 February 2004
(a) must apply only to the extent necessary to avoid the illegality or
impossibility; and
(b) in the case of suspension, may continue only for so long as the
illegality or impossibility continues.
12.3 Notice requiring prepayment under Facility
If the illegality or impossibility relates to a Drawing, the Financier
by giving a notice to the Borrower may require prepayment of all or
part of that Drawing to that Financier. The Borrower agrees to prepay
to the Financier the amount specified on the earlier of the date the
illegality or impossibility arises or the Business Day following 30
days after the delivery of the notice.
12.4 Financier to seek alternative funding method
If a notice is given under clause 12.3 ("Notice requiring prepayment
under Facility"), then the Financier agrees to use reasonable
endeavours for a period of 20 Business Days (or, if earlier, the date
of cancellation of the relevant financial accommodation) to make the
relevant financial accommodation available by some alternative means
(including changing its lending office to another then existing lending
office or making the financial accommodation available through a
Related Entity of the Financier) provided this can be achieved free of
cost to the Financier and nothing in this clause 12.4 obliges the
Financier to take any action or refrain from taking any action.
13 Representations and warranties
-------------------------------------------------------------------------------
13.1 Representations and warranties
The Borrower makes the representations and warranties set out in clause
5 of the Deed of Common Terms.
13.2 Continuation of representations and warranties
The representations and warranties made under clause 13.1
("Representations and warranties") will be deemed to be also made on
the date of each Drawdown Notice and each Drawdown Date and on the date
of delivery of a compliance certificate in accordance with clause
6.1(h) of the Deed of Common Terms by reference to the then current
circumstances. The Borrower agrees to notify each Financier of anything
that happens that would mean that it could not truthfully repeat all of
its representations and warranties on the date of each Drawdown Notice,
on each Drawdown Date and on the date of delivery of a compliance
certificate in accordance with clause 6.1(h) of the Deed of Common
Terms by reference to the then current circumstances.
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Mallesons Xxxxxxx Xxxxxx Working Capital Facility Agreement 15
26 February 2004
14 Undertakings
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14.1 Undertakings
The Borrower makes the undertakings given by it in clause 6 of the Deed
of Common Terms.
14.2 Purpose undertaking
The Borrower undertakes to use the Facility only for its purpose set
out in the Details.
15 Default
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15.1 Events of Default
Each of the events specified in clause 7.1 of the Deed of Common Terms
will be an Event of Default under this agreement (whether or not it is
within the Borrower's (or anyone else's) power to prevent it).
15.2 Effect of Event of Default
In addition to any other rights provided by law or any Bank Finance
Document but subject to the Deed of Common Terms, if an Event of
Default occurs, a Financier may declare at any time by written notice
to the Borrower:
(a) an amount equal to the Amount Owing to that Financier is either:
(i) payable on demand; or
(ii) immediately due for payment to that Financier;
(b) the Financier's obligations specified in the notice are terminated.
A Financier may make either or both of these declarations. The making
of either of them gives immediate effect to its provisions. Upon
receipt of a notice under this clause 15.2, the Borrower must pay the
Amount Owing to the Financier which has provided the notice in
accordance with that notice.
16 Costs and indemnities
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16.1 What the Borrower agrees to pay
The Borrower agrees to pay or reimburse:
(a) each Financier's reasonable Costs in connection with:
(i) the negotiation, preparation, execution and registration
of and payment of Taxes on any Bank Finance Document; and
(ii) it being satisfied that conditions to drawdown have been
met; and
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Mallesons Xxxxxxx Xxxxxx Working Capital Facility Agreement 16
26 February 2004
(iii) giving and considering consents, waivers, variations,
discharges and releases; and
(iv) a Review Event; and
(b) each Financier's Costs in otherwise acting in connection with
the Bank Finance Documents, such as exercising, enforcing or
preserving rights (or considering doing so), or doing anything
in connection with any enquiry by an authority involving the
Borrower or any of its Related Entities; and
(c) Taxes and fees (including registration fees) and fines and
penalties in respect of fees paid, or that a Financier
reasonably believes are payable, in connection with any Bank
Finance Document or a payment or receipt or any other
transaction contemplated by any Bank Finance Document.
However, the Borrower need not pay a fine or penalty in
connection with Taxes or fees to the extent that it has placed
a Financier in sufficient cleared funds for the Financier to
be able to pay the Taxes or fees by the due date.
The Borrower agrees to pay amounts due under this clause 16.1 on demand
from the Financier. The Financier may debit any of these amounts to the
Borrower's account (together with interest on any overdue amount) after
asking the Borrower to pay, if the Borrower has failed to pay the
amount requested within 2 Business Days of the demand.
16.2 Indemnity
The Borrower indemnifies each Financier against any liability or loss
arising from, and any Costs incurred in connection with:
(a) financial accommodation requested under a Bank Finance
Document not being provided in accordance with the request for
any reason except default of that Financier; or
(b) financial accommodation under a Bank Finance Document being
repaid, discharged or made payable other than at its stated
maturity or on an Interest Payment Date applicable to it; or
(c) the Financier acting in connection with a Bank Finance
Document in good faith on fax, electronic mail or telephone
instructions purporting to originate from the offices of the
Borrower or to be given by an Authorised Officer of the
Borrower and which it reasonably believes to be genuine and
correct; or
(d) an Event of Default; or
(e) the Financier exercising or attempting to exercise a right or
remedy in connection with a Bank Finance Document after an
Event of Default occurs and for so long as it subsists; or
(f) any indemnity the Financier properly gives a Controller or
administrator of the Borrower.
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Mallesons Xxxxxxx Xxxxxx Working Capital Facility Agreement 17
26 February 2004
The Borrower agrees to pay amounts due under this indemnity on demand
from the Financier.
16.3 Items included in loss, liability and Costs
The Borrower agrees that:
(a) the Costs referred to in clause 16.1 ("What the Borrower
agrees to pay"), and the liability, loss or Costs referred to
in clause 16.2 ("Indemnity") include legal Costs in accordance
with any written agreement as to legal costs or, if no
agreement, on whichever is the higher of a full indemnity
basis or solicitor and own client basis; and
(b) the Costs referred to in clause 16.1(a) and (b) ("What the
Borrower agrees to pay") include those paid, or that the
Financier reasonably believes are payable, to persons engaged
by the Financier in connection with the Bank Finance Documents
(such as consultants); and
(c) loss or liability and any Costs in any indemnity under the
Bank Finance Documents may include an amount called "break
costs". These may be calculated by any method the Financier
reasonably chooses including by reference to any loss it
incurs because the Financier terminates arrangements it has
made with others to fund (or to maintain its funding of)
financial accommodation under the Bank Finance Documents.
16.4 Payment of third party losses
The Borrower agrees to pay an amount equal to any liability or loss and
any Costs of the kind referred to in clause 16.2 ("Indemnity") suffered
or incurred by any attorney, employee, officer, agent or contractor of
the Financier except to the extent caused by that person's gross
negligence.
16.5 Currency conversion on judgment debt
If a judgment, order or proof of debt for an amount in connection with
a Bank Finance Document is expressed in a currency other than that in
which the amount is due under the Bank Finance Document, then the
Borrower indemnifies each Financier against:
(a) any difference arising from converting the other currency if
the rate of exchange used by the Financier under clause 7.2
("Currency of payment") for converting currency when it
receives a payment in the other currency is less favourable to
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.
The Borrower agrees to pay amounts due under this indemnity on demand
from a Financier.
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Mallesons Xxxxxxx Xxxxxx Working Capital Facility Agreement 18
26 February 2004
16.6 GST
(a) Despite any other provision of the Bank Finance Documents, in
the event that GST has application to any
supply made by a Financier to the Borrower under or in
connection with the Bank Finance Documents, the Financier may,
in addition to any amount or consideration payable under the
Bank Finance Documents, recover from the Borrower an
additional amount on account of GST, such amount to be
calculated by multiplying the relevant amount or
consideration payable by the Borrower for the relevant supply
by the prevailing GST rate. Any additional amount on account
of GST recoverable from the Borrower pursuant to this clause
16.6 shall be calculated without any deduction or set-off of
any other amount and is payable by the Borrower upon demand
by the Financier whether such demand is by means of an invoice
or otherwise.
(b) In relation to any taxable supplies under or in connection
with the Bank Finance Documents, the Financier will provide
the Borrower with valid tax invoices, as a precondition to
recovery by it of the relevant additional amount on account of
GST under clause 16.6(a) , in a form that will enable the
Borrower to claim any refund or credit of GST permitted by the
GST law.
(c) If at any time an adjustment is made as between the Financier
and the relevant taxing authority of an amount paid on account
of GST on any supply made by the Financier under the Bank
Finance Documents, a corresponding adjustment must be made as
between the Financier and the Borrower and any payments
required to give effect to the adjustment must be made. If the
Financier is entitled to an adjustment by way of refund, the
Financier must apply for the refund if requested in writing to
do so by the Borrower.
(d) Nothing in this clause 16.6 requires the Borrower to pay an
amount on account of a fine, penalty, interest or other amount
for which the Financier is liable, to the extent that the
liability arises as a consequence of wilful misconduct or
gross negligence by the Financier, its employees or agents.
17 Interest on overdue amounts
-------------------------------------------------------------------------------
17.1 Obligation to pay
If the Borrower does not pay any amount under this agreement on the due
date for payment, the Borrower agrees to pay interest on that amount at
the Default Rate. The interest accrues daily from (and including) the
due date to (but excluding) the date of actual payment and is
calculated on actual days elapsed and a year of 365 days.
The Borrower agrees to pay interest under this clause 17.1 on demand
from a Financier.
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Mallesons Xxxxxxx Xxxxxx Working Capital Facility Agreement 19
26 February 2004
17.2 Compounding
Interest payable under clause 17.1 ("Obligation to pay") which is not
paid when due for payment may be added to the overdue amount by the
Financier at intervals which the Financier determines from time to time
or, if no determination is made, every 30 days. Interest is payable on
the increased overdue amount at the Default Rate in the manner set out
in clause 17.1 ("Obligation to pay").
17.3 Interest following judgment
If a liability becomes merged in a judgment, the Borrower agrees to pay
interest on the amount of that liability as an independent obligation.
This interest:
(a) accrues daily from (and including) the date the liability
becomes due for payment both before and after the judgment up
to (but excluding) the date the liability is paid; and
(b) is calculated at the judgment rate or the Default Rate
(whichever is higher).
The Borrower agrees to pay interest under this clause 17.3 on demand
from a Financier.
18 Application of payments
-------------------------------------------------------------------------------
Each Financier may apply amounts paid by the Borrower towards
satisfaction of the Borrower's obligations under the Bank Finance
Documents in the manner it sees fit, unless the Bank Finance Documents
expressly provide otherwise. This appropriation overrides any purported
appropriation by the Borrower or any other person.
19 Dealing with interests
-------------------------------------------------------------------------------
19.1 No dealing by Borrower
Subject to clause 23, the Borrower may not assign or otherwise deal
with its rights under any Bank Finance Document or allow any interest
in them to arise or be varied, in each case, without the consent of all
of the Financiers.
19.2 Dealings by Financier
A Financier may assign or otherwise deal with its rights under the Bank
Finance Documents (including by assignment or participation) or change
its lending office without the consent of any person. However, the
Borrower is not required to pay any net increase in the aggregate
amount of costs, Taxes, fees or charges or to make any additional
payment under clause 10 ("Withholding tax") or clause 11 ("Increased
costs") which:
(a) are a consequence of the assignment or other dealing or a
change to the Financier's Lending Office set out in the
Details; and
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Mallesons Xxxxxxx Xxxxxx Working Capital Facility Agreement 20
26 February 2004
(b) the Financier or its assignee was aware of, or ought
reasonably to have been aware of, at the time of the
assignment or other dealing or change. (For this purpose,
"awareness" is to be assessed on the basis of any published
information reasonably available to the Financier at the time
of assignment dealing or change).
-------------------------------------------------------------------------------
20 Notices
20.1 Form
Unless expressly stated otherwise in the Bank Finance Document, all
notices, certificates, consents, approvals, waivers and other
communications in connection with a Bank Finance Document must be in
writing, signed by an Authorised Officer of the sender and marked for
attention as set out or referred to in the Details or, if the recipient
has notified otherwise, then marked for attention in the way last
notified.
However, a waiver by a Financier (other than a waiver relating to a
matter under clause 15 ("Default")) may be oral.
20.2 Delivery
They must be:
(a) left at the address set out or referred to in the Details; or
(b) sent by prepaid post (airmail, if appropriate) to the address set
out or referred to in the Details; or
(c) sent by fax to the fax number set out or referred to in the
Details.
However, if the intended recipient has notified a changed postal
address or changed fax number, then the communication must be to that
address or number.
20.3 When effective
They take effect from the time they are received unless a later time is
specified in them.
20.4 Deemed receipt - postal
If sent by post, they are taken to be received three days after posting
(or seven days after posting if sent to or from a place outside
Australia).
20.5 Deemed receipt - fax
If sent by fax, they are taken to be received at the time shown in the
transmission report as the time that the whole fax was sent.
20.6 Deemed receipt - general
Despite clauses 20.4 ("Deemed receipt - postal") and 20.5 ("Deemed
receipt - fax"), if they are received after 4:00pm in the place of
receipt or on a non-Business Day, they are taken to be received at
9:00am on the next Business Day.
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Mallesons Xxxxxxx Xxxxxx Working Capital Facility Agreement 21
26 February 2004
20.7 Waiver of notice period
The Financiers may waive a period of notice required to be given by the
Borrower under this agreement.
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21 General
21.1 Application to Bank Finance Documents
If anything in this clause 21 ("General") is inconsistent with a
provision in another Bank Finance Document, then the provision in the
other Bank Finance Document prevails for the purposes of that Bank
Finance Document.
21.2 Prompt performance
If a Bank Finance Document specifies when the Borrower agrees to
perform an obligation, the Borrower agrees to perform it by the time
specified. The Borrower agrees to perform all other obligations
promptly.
21.3 Consents
The Borrower agrees to comply with all conditions in any consent a
Financier gives in connection with a Bank Finance Document.
21.4 Certificates
A Financier may give the Borrower a certificate about an amount payable
or other matter in connection with a Bank Finance Document. The
certificate is sufficient evidence of the amount or matter, unless it
is proved to be incorrect.
21.5 Set-off
At any time after an Event of Default and for so long as it subsists, a
Financier may set off any amount due for payment by the Financier to
the Borrower against any amount due for payment by the Borrower to the
Financier under the Bank Finance Document.
21.6 Discretion in exercising rights
A Financier may exercise a right or remedy or give or refuse its
consent under a Bank Finance Document in any way it considers
appropriate (including by imposing conditions), unless a Bank Finance
Document expressly states otherwise.
21.7 Partial exercising of rights
If a Financier does not exercise a right or remedy under a Bank Finance
Document fully or at a given time, the Financier may still exercise it
later.
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Mallesons Xxxxxxx Xxxxxx Working Capital Facility Agreement 22
26 February 2004
21.8 No liability for loss
A Financier is not liable for loss caused by the exercise or attempted
exercise of, failure to exercise, or delay in exercising, a right or
remedy under a Bank Finance Document.
21.9 Conflict of interest
A Financier's rights and remedies under any Bank Finance Document may
be exercised even if this involves a conflict of duty or the Financier
has a personal interest in their exercise.
21.10 Remedies cumulative
The rights and remedies of a Financier under any Bank Finance Document
are in addition to other rights and remedies given by law independently
of the Bank Finance Document.
21.11 Indemnities
Any indemnity in a Bank Finance Document is a continuing obligation,
independent of the Borrower's other obligations under that Bank Finance
Document and continues after the Bank Finance Document ends. It is not
necessary for a Financier to incur expense or make payment before
enforcing a right of indemnity under a Bank Finance Document.
21.12 Rights and obligations are unaffected
Rights given to a Financier under a Bank Finance Document and the
Borrower's liabilities under it are not affected by anything which
might otherwise affect them at law.
21.13 Inconsistent law
To the extent permitted by law, each Bank Finance Document prevails to
the extent it is inconsistent with any law.
21.14 Supervening legislation
Any present or future legislation which operates to vary the
obligations of the Borrower in connection with a Bank Finance Document
with the result that a Financier's rights, powers or remedies are
adversely affected (including by way of delay or postponement) is
excluded except to the extent that its exclusion is prohibited or
rendered ineffective by law.
21.15 Time of the essence
Time is of the essence in any Bank Finance Document in respect of an
obligation of the Borrower to pay money.
21.16 Variation and waiver
Unless this agreement expressly states otherwise, a provision of a Bank
Finance Document, or right created under it, may not be waived or
varied except in writing signed by the party or parties to be bound.
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Mallesons Xxxxxxx Xxxxxx Working Capital Facility Agreement 23
26 February 2004
21.17 Confidentiality
Each Financier agrees not to disclose information provided by any other
party that is not publicly available (including the existence or
contents of any Bank Finance Document) except:
(a) to any person in connection with an exercise of rights or a
dealing with rights or obligations under a Bank Finance
Document (including when a Financier consults other Financiers
after a Potential Event of Default, an Event of Default or
Review Event) or in connection with preparatory steps such as
negotiating with any potential assignee or potential
sub-participant or other person who is considering contracting
with a Financier in connection with a Bank Finance Document or
to any ratings agency for the purpose of securitisation; or
(b) to officers, employees, legal and other advisers and auditors
of the Borrower or a Financier; or
(c) to any party to this agreement or any Related Entity of any
party to this agreement, provided the recipient agrees to act
consistently with this clause 21.17; or
(d) with the consent of the party who provided the information
(such consent not to be unreasonably withheld); or
(e) as required by any law, stock exchange or regulatory
authority; or
(f) to a person considering entering into (or who enters into) a
credit swap with a Financier involving credit events relating
to the Borrower or any of its Related Entities.
Each party consents to disclosures made in accordance with this clause
21.17.
21.18 Further steps
The Borrower agrees to do anything a Financier reasonably asks (such as
obtaining consents, signing and producing documents and getting
documents completed and signed):
(a) to bind the Borrower and any other person intended to be bound
under the Bank Finance Documents; and
(b) to show whether the Borrower is complying with this agreement.
21.19 Counterparts
This agreement may consist of a number of copies, each signed by one or
more parties to the agreement. If so, the signed copies are treated as
making up the one document.
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Mallesons Xxxxxxx Xxxxxx Working Capital Facility Agreement 24
26 February 2004
21.20 Applicable law
Each Bank Finance Document (other than the Deed of Common Terms and the
Guarantees) is governed by the law in force in the place specified in
the Details and the Borrower and each Financier submit to the
non-exclusive jurisdiction of the courts of that place.
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22 Interpretation
22.1 Definitions
Terms defined in the Deed of Common Terms have the same meaning when
used in this agreement and these meanings apply unless the contrary
intention appears:
Accountable Taxes means any Taxes imposed by a Relevant
Country other than those which would not be required to be deducted by
the Borrower if a Financier provided the Borrower with any of its name,
address, registration number or similar details or any relevant tax
exemption or similar details.
Advance Drawing means the outstanding principal amount of a
drawdown having an Interest Period of 30 days or such other period as
may be agreed.
Amending Deed means the Amendment and Restatement Deed dated on or
about 26 February 2004 between, amongst others, the Borrower, the
Obligors, the Senior Creditors specified in it, the Junior Creditors
specified in it, National Australia Bank Limited and ANZ Fiduciary
Services Pty Ltd.
Amount Owing means, at any time for a Financier, the total of
all amounts which are then due for payment, or which will or may become
due for payment, in connection with any Bank Finance Document
(including transactions in connection with them) to that Financier.
Applicable Margin means, for a Drawing provided by a
Financier, the percentage rate per annum margin as separately agreed in
the Fee Letter for that Financier. If the Fee Letter for a Financier
specifies that the Applicable Margin is to be calculated on the basis
of a ratings grid, the Applicable Margin for that Financier for an
Interest Period is the margin set out in the table specified in the Fee
Letter which is on the same row of the table as the most recent
corporate rating in respect of the Borrower issued by Standard and
Poor's (Australia) Pty Ltd and applying on the first day of that
Interest Period.
Authorised Officer means:
(a) in the case of a Financier, a director or secretary, or an
officer whose title contains the word "director", "chief",
"head", "manager" or "counsel" or "president" or a person
performing the functions of any of them, or any other person
nominated by the Financier as an Authorised Officer for the
purposes of the Bank Finance Documents; and
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Mallesons Xxxxxxx Xxxxxx Working Capital Facility Agreement 25
26 February 2004
(b) in the case of the Borrower, a person appointed by the
Borrower to act as an Authorised Officer under the Bank
Finance Documents to which it is a party.
Availability Period means the period so described in the Details.
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 and which expires in the same relevant
maturity period as the last day of the Interest Period. However, if the
average bid rate is not displayed by 10:30am on the first day of the
Interest Period or if it is displayed but there is an obvious error in
that rate, Bank Xxxx Rate means with respect to a Financier:
(a) the rate the Financier which has provided the relevant
Drawing calculates as the average of the bid rates quoted to
the Financier at approximately 10:30am on that day by each of
four or more institutions chosen by the Financier which
provide rates for display on the "BBSW" page of the Reuters
Monitor System for Bills of that tenor which are accepted by
that institution (after excluding the highest and the lowest,
or in the case of equality, one of the highest and one of the
lowest bid rates); or
(b) where the Financier 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 Financier in good faith
at approximately 10:30am on that day, 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 Financier must be expressed as a
percentage rate per annum and be rounded up to the nearest fourth
decimal place.
A Financier may calculate a rate under paragraph (a) or (b) before
11:00am on the first day of the Interest Period, but if the average bid
rate appears on the "BBSY" page by 11:00am and there is no obvious
error in it, the "BBSY" page rate applies as the Bank Xxxx Rate under
this agreement despite any calculation by the Financier under paragraph
(a) or (b).
Bank Finance Documents means the documents described as such
in the Details, any document which the Borrower acknowledges in writing
to be a Bank Finance Document, and any other document connected with
any of them.
Xxxx has the meaning it has in the Bills of Exchange Act 1909
(C'th) and a reference to the drawing, acceptance or endorsement of, or
other dealing with, a Xxxx is to be interpreted in accordance with that
Act.
Borrower means the person so described in the Details.
Business Day means a day on which banks are open for general
banking business in the place or places set out in the Details under
"Business Day place(s)" (not being a Saturday, Sunday or public holiday
in that place).
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Mallesons Xxxxxxx Xxxxxx Working Capital Facility Agreement 26
26 February 2004
Commitment means, for a Financier, the amount set out as such
for that Financier in the Details as reduced by the total of all
cancellations in respect of that Financier.
Commitment Fee means the commitment fee set out in the
Details.
Controller has the meaning it has in the Corporations Xxx 0000
(C'th).
Costs includes costs, charges and expenses, including those
incurred in connection with advisers.
Deed of Common Terms means the deed previously known as the
security trust deed dated 24 February 1999 executed by the Borrower,
TXU Australia Holdings (Partnership) Limited Partnership, TXU (No. 8)
Pty Ltd, TXU (No. 9) Pty Ltd, TXU Australia Pty Ltd, TXU Networks (Gas)
Pty Ltd (formerly known as Westar Pty Ltd), TXU Pty Ltd (formerly known
as Kinetik Energy Pty Ltd), TXU Electricity Limited (formerly known as
Eastern Energy Limited), TXU Corp. (formerly known as Texas Utilities
Company), Citibank, N.A. and National Australia Bank Limited as amended
by a deed dated 22 February 2000, 31 October 2001, 8 December 2003 and
the Amending Deed.
Debt Refinance Date has the meaning given to it in the
Amending Deed.
Default Rate means the Interest Rate plus 2% per annum. For
the purpose of this definition, the Interest Rate is calculated as if
the overdue amount is a Drawing with Interest Periods of 90 days (or
another period chosen from time to time by the Financiers) with the
first Interest Period starting on and including the due date.
Details means the section of this agreement headed "Details".
Directive means:
(a) a treaty or a law;
(b) an official directive, request, guideline or policy (whether
or not having the force of law) with which responsible
financiers generally comply in carrying on their business.
Drawdown Date means the date on which a drawdown is or is to be made.
Drawdown Notice means a completed notice containing the
information and representations and warranties set out in schedule 2
("Drawdown Notice").
Drawing means either an Advance Drawing or a Money Market Drawing.
Drawn Commitment means, for a Financier, the total of the
Drawings provided by the Financier to the Borrower under this
agreement.
Establishment Fee has the meaning given to it in the Details.
Event of Default has the meaning given to that term in clause
15.1 ("Events of Default").
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Mallesons Xxxxxxx Xxxxxx Working Capital Facility Agreement 27
26 February 2004
Facility means the facility made available under this
agreement.
Facility Limit means the amount set out as such in the Details as
reduced by the total of all cancellations.
Financier means each of the persons so described in the Details.
Fee Letter means, for a Financier, the fee letter dated on or
about the date of this agreement relating to the fees and margin
payable under this Facility from that Financier to the Borrower and
accepted by the Borrower.
Financier means each of the persons so described in the
Details.
GST has the meaning given to it in section 195-1 of the A New
Tax System (Goods and Services) Xxx 0000 (C'th).
Guarantees means each of:
(a) the Original Guarantee; and
(b) the New Guarantee.
Holding Company has the meaning given to it in the
Corporations Xxx 0000 (C'th).
Indemnified Party has the meaning given to it in clause 10.1
("Payments by Borrower").
Interest Payment Date means:
(a) in the respect of an Advance Drawing, the last day of
an Interest Period; and
(b) in respect of a Money Market Drawing:
(i) the last Business Day of the month in which the last
day of the Interest Period for that Money Market
Drawing falls; or
(ii) in the case of any Money Market Drawings having an
Interest Period the last day of which is in the same
month as the Maturity Date, the Maturity Date.
Interest Period means each period selected in accordance with clause
3.2 ("Notification of Interest Period") or clause 4.1 ("Request for
Money Market Drawings") as the case may be.
Interest Period Notice means a completed notice in relation to
an Advance Drawing containing the information, representations and
warranties set out in schedule 3.
Interest Rate means the interest rate for the Facility set out
in the Details.
IPO Effective Date means the date upon which Annexure B to the
Amending Deed becomes effective.
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Mallesons Xxxxxxx Xxxxxx Working Capital Facility Agreement 28
26 February 2004
Lending Office has the meaning given to it in the Details.
Maturity Date means the maturity date set out in the Details for the
Facility, but if that is not a Business Day, then the preceding
Business Day.
Money Market Drawing means the outstanding principal amount of a
drawdown having an Interest Period of not less than one and not more
than 28 days.
New Guarantee means the Guarantee and Indemnity dated 11
December 2003 made between TXU Australia Holdings (Partnership) Limited
Partnership, TXU (No. 8) Pty Ltd and National Australia Bank Limited,
the benefit of which was or will be assigned to ANZ Fiduciary Services
Pty Ltd in accordance with the Amending Deed.
Option has the meaning given to that term in clause 8 of the
Deed of Common Terms after the IPO Effective Date.
Option Period has the meaning given to that term in clause 8
of the Deed of Common Terms after the IPO Effective Date.
Original Guarantee means the Guarantee and Indemnity dated 24
February 1999 made between the TXU Australia Holdings (Partnership)
Limited Partnership, the Borrower, TXU (No. 8) Pty Ltd and TXU (No. 9)
Pty Ltd in favour of National Australia Bank Limited as amended by a
deed and an agreement each dated 22 February 2000, the benefit of which
was or will be assigned to ANZ Fiduciary Services Pty Ltd in accordance
with the Amending Deed.
Partnership means the TXU Australia Holdings (Partnership) Limited
Partnership.
Potential Event of Default means an event which with the
giving of notice or lapse of time would become an Event of Default.
Related Entity has the meaning it has in the Corporations Xxx
0000 (C'th).
Relevant Country means any country, or political sub-division
of one or more countries, or any federation or association of countries
in which the Borrower is either incorporated or is resident or
domiciled for any tax purpose or in which the Borrower carries on
business or owns or leases property or from which, or through which,
any payment under a Bank Finance Document is made.
Taxes means taxes, levies, imposts, charges and duties
(including stamp and transaction duties) imposed by any authority
together with any related interest, penalties, fines and expenses in
connection with them, except if imposed on, or calculated having regard
to, the net income of a Financier.
Undrawn Commitment means, in respect of a Financier, the
Financier's Commitment less the total of the Drawings provided by that
Financier.
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Mallesons Xxxxxxx Xxxxxx Working Capital Facility Agreement 29
26 February 2004
22.2 References to certain general terms
Unless the contrary intention appears, a reference in this agreement
to:
(a) a group of persons is a reference to any two or more of them
jointly and to each of them individually;
(b) an agreement, representation or warranty in favour of two or
more persons is for the benefit of them jointly and each of
them individually;
(c) subject to the Deed of Common Terms, an agreement,
representation or warranty by two or more persons binds them
jointly and each of them individually but an agreement,
representation or warranty by a Financier binds the Financier
individually only;
(d) anything (including an amount) is a reference to the whole and
each part of it;
(e) a document (including this agreement) includes any variation
or replacement of it;
(f) law means common law, principles of equity, and laws made by
Parliament (and laws made by Parliament include State,
Territory and Commonwealth laws and regulations and other
instruments under them, and consolidations, amendments,
re-enactments or replacements of any of them);
(g) an accounting term is a reference to that term as it is used
in accounting standards under the Corporations Xxx 0000
(C'th), or, if inconsistent with those standards, in
accounting principles and practices generally accepted in
Australia;
(h) Australian dollars, dollars, $ or A$ is a reference to the
lawful currency of Australia;
(i) a time of day is a reference to Melbourne time;
(j) the word "person" includes an individual, a firm, a body
corporate, an unincorporated association and an authority;
(k) a particular person includes a reference to the person's
executors, administrators, successors, substitutes (including
persons taking by novation) and assigns;
(l) the words "including", "for example" or "such as" when
introducing an example, do not limit the meaning of the words
to which the example relates to that example or examples of a
similar kind';
(m) a Review Event and any rights or obligations of a party in
connection with a Review Event occurring shall only apply from
the IPO Effective Date.
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Mallesons Xxxxxxx Xxxxxx Working Capital Facility Agreement 30
26 February 2004
22.3 Number
The singular includes the plural and vice versa.
22.4 Headings
Headings (including those in brackets at the beginning of paragraphs)
are for convenience only and do not affect the interpretation of this
agreement.
22.5 Senior Finance Document
The Borrower and each Financier agree and acknowledge that this
agreement is a Senior Finance Document for the purposes of the Deed of
Common Terms.
23 IPO
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23.1 IPO Effective Date and New Borrower
Each party to this agreement agrees that:
(i) if the Borrower requests no later than 40 Business Days prior
to the proposed IPO Effective Date that a Subsidiary of the
TXUA Parent (other than the Borrower) ("New Borrower") be
novated for all of the obligations and rights of the Borrower
under the Bank Finance Documents; and
(ii) the Borrower notifies the Financiers in writing that the New
Borrower is required in connection with the proposed IPO then,
each party agrees to negotiate in good faith to amend the Bank Finance
Documents so that as at the IPO Effective Date, amongst other things,
the New Borrower will assume all of the obligations of the Borrower
under this agreement and shall become and be deemed to be a party to
the Bank Finance Documents in the capacity of the Borrower with all the
rights and obligations of the Borrower under the Banking Finance
Documents as if it was named as a party to and had executed the Bank
Finance Documents.
23.2 ("IPO Effective Date and IPO issuing entity is the Borrower")
Each party to this agreement agrees that if the Borrower informs the
Financiers in writing no later than 40 Business Days prior to the
proposed IPO Effective Date that it will be the IPO issuing entity then
each party agrees to negotiate to amend the Bank Finance Documents at
that time so that, amongst other things, TXU Australia Group Pty Ltd is
not required to be an Obligor under the Deed of Common Terms.
23.3 Acknowledgments
(a) The Borrower acknowledges and confirms that on and from the IPO
Effective Date:
(i) except as expressly provided by clause 23.1 ("IPO
Effective Date and New Borrower") or clause 23.2
("IPO Effective Date and IPO issuing entity is the
Borrower"), nothing in this agreement prejudices or
adversely affects any right, power, authority,
discretion or remedy of the Financiers arising under
the Bank Finance Documents;
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Mallesons Xxxxxxx Xxxxxx Working Capital Facility Agreement 31
26 February 2004
(ii) the Borrower's obligations under the Bank Finance
Documents are not discharged or released as a result
of the IPO Effective Date;
(iii) except as expressly provided by clause 23.1 ("IPO
Effective Date and New Borrower") or clause 23.2
("IPO Effective Date and IPO issuing entity is the
Borrower") , the obligations of the Borrower under
the Bank Finance Documents are not changed or varied
as a result of the matters contemplated by clause
23.1 ("IPO Effective Date and New Borrower") or
clause 23.2 ("IPO Effective Date and IPO issuing
entity is the Borrower"); and
(iv) references to the Guarantees will be taken to mean
the IPO Guarantee (as that term is defined in the
Amending Deed).
(b) Each of the parties to this agreement acknowledges and agrees
that solely, as a result of the IPO Effective Date occurring
the identity or the Commitment of a Financier is not changed.
EXECUTED as an agreement.
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Mallesons Xxxxxxx Xxxxxx Working Capital Facility Agreement 32
26 February 2004
Working Capital Facility Agreement
Schedules
Schedule 1 - Conditions precedent (clause 2.4)
Conditions to first drawdown
o Each item must be in form and substance satisfactory to the Financiers.
o Certification is to be by a director or secretary of the relevant
entity, that the item is true and complete as at a date no earlier
than the date of this agreement.
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Item Form Required for
1 Constitution (or equivalent). Certified copy Borrower
2 Certificate of registration. Certified copy Borrower
3 Extract of minutes of a meeting of the Certified copy Borrower
entity's board of directors which
evidences the resolutions:
(a) authorising the signing and
delivery of the Bank Finance
Documents to which the entity
is a party and the observance
of obligations under those
documents; and
(b) appointing Authorised Officers
of the entity; and
(c) which acknowledge that the Bank
Finance Documents (to which the
entity is a party) will benefit
that entity.
4 Each document which evidences any other Certified copy Borrower
necessary corporate or other action of
the entity in connection with the Bank
Finance Documents to which it is a
party.
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(c) Mallesons Xxxxxxx Xxxxxx Working Capital Facility Agreement 33
26 February 2004
5 Each authorisation of the entity Certified copy Borrower
necessary to enter into the Bank
Finance Documents to which it is a
party and to comply with obligations
under those documents and enforce those
documents.
6 Each power of attorney under which a Certified copy Borrower
person signs a Bank Finance Document
for the entity showing evidence of
stamping and evidence of registration
if required by the Financiers.
7 Specimen signature of: Certified copy Borrower
(a) each Authorised Officer of the
entity; and
(b) each other person who is authorised
to sign and signs a Bank
Finance Document for the entity.
8 This agreement and the Amending Deed: Original
(a) fully signed;
(b) evidence of stamping; and
(c) evidence of registration.
9 Legal opinions dealing with validity Original
and enforceability of the Bank Finance
Documents from:
(a) Xxxxx & XxXxxxxx; and
(b) Mallesons Xxxxxxx Xxxxxx.
10 All fees and expenses payable by the N/A
Borrower on or before the
Drawdown Date have been paid.
11 The commitments of the lenders under N/A Borrower
the existing working capital facility
have been cancelled and all moneys
owing under those facilities will be
fully repaid contemporaneously with the
first Drawdown.
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Mallesons Xxxxxxx Xxxxxx Working Capital Facility Agreement 34
26 February 2004
12 Confirmation that no person contravenes N/A Borrower
or will contravene section 260A or 260D
of the Corporations Xxx 0000 (C'th) by
entering into the transactions
contemplated by the Bank Finance
Documents.
13 Nomination of this agreement under the Original
Deed of Common Terms in a New
Creditor Accession Deed or otherwise.
14 The Deed of Common Terms will be Original
amended immediately after the
first Drawdown Date and will be in a
satisfactory form and substance
afterwards.
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Mallesons Xxxxxxx Xxxxxx Working Capital Facility Agreement 35
26 February 2004
Working Capital Facility Agreement
Schedules
Schedule 2 - Drawdown Notice (clauses 2 and 4.1)
To: [Name and address of each Financier]
Attention: [Insert]
[Date]
Drawdown Notice - Working Capital Facility Agreement between TXU Australia
Holdings Pty Ltd, Australia and New Zealand Banking Group Limited and
Commonwealth Bank of Australia dated [ ] ("Working Capital
Facility Agreement")
Under clause 2.2 ("Requesting a drawdown") of the Working Capital Facility
Agreement, the Borrower gives notice as follows.
The Borrower wants to borrow under the Facility.
o The requested Drawdown Date is [ ]2.
o The amount of the proposed drawdown is A$[ ]3.
o The proposed drawdown is on [Advance/Money Market] Drawing.
o The requested [first] Interest Period is [ ]4.
o The proposed drawdown is to be paid to:
Account number: [ ]
Account name: [ ]
Bank: [ ]
Branch: [ ]
BSB: [ ]
The Borrower represents and warrants that the representations and warranties in
the Working Capital Facility Agreement are correct and not misleading on the
date of this notice and that each will be correct and not misleading on the
Drawdown Date.
The "Interpretation" clause of the Working Capital Facility Agreement applies to
this notice as if it was fully set out in this notice.
.........................................
[Name of person] being
an Authorised Officer of TXU Australia Holdings Pty Ltd
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(c) Mallesons Xxxxxxx Xxxxxx Working Capital Facility Agreement 36
26 February 2004
Instructions for completion
1 All items must be completed.
2 Must be a Business Day within the Availability Period.
3 Must be A$1,000,000 or a whole multiple of A$500,000.
4 Must be an Interest Period set out in the Details for the type of Drawing.
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Mallesons Xxxxxxx Xxxxxx Working Capital Facility Agreement 37
26 February 2004
Working Capital Facility Agreement
Schedule 3 - Interest Period Notice (clause 3.2)
To: [Name and Address of Financier]
Attention: [Insert]
[Date]
Interest Period Notice - Advance Drawing - Working Capital Facility Agreement
between the Borrower, Australia and New Zealand Banking Group Limited and
Commonwealth Bank of Australia dated [ ] ("Working Capital
Facility Agreement")
Under clause 3.2 ("Notification of Interest Period") of the Working Capital
Facility Agreement, the Borrower gives notice as follows:
o the amount of the Advance Drawing is A$[ ].
o Maturing Interest Payment Date is [ ].
o The requested next Interest Period is [ ].1
The Borrower represents and warrants that the representations and warranties in
the Working Capital Facility Agreement are correct and not misleading on the
date of this notice and that each will be correct and not misleading on the
first day of an Interest Period.
The "Interpretation" clause of the Working Capital Facility Agreement applies to
this notice as if it was fully set out in this notice.
..........................................
[Name of person] being
an Authorised Officer of
TXU Australia Holdings Pty Ltd
Instructions for completion
1 Must be an Interest Period set out in the details.
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(c) Mallesons Xxxxxxx Xxxxxx Working Capital Facility Agreement 38
26 February 2004
Working Capital Facility Agreement
Signing Page
DATED: 26 February 2004
SIGNED by )
Xxxx Xxxxxx Xxxxx )
as attorney for TXU AUSTRALIA HOLDINGS )
PTY LIMITED under power of attorney )
dated 23/2/04 )
)
)
in the presence of: )
)
)
)
/s/Theo Kindynis )
------------------------------------------ )
)
Signature of witness )
)
Theo Kindynis )
------------------------------------------ )
Name of witness (block letters) )
) /s/Xxxx Xxxxxx Xxxxx
00/000 Xxxxxxx Xx., Xxxx. ) By executing this agreement
------------------------------------------ ) the attorney states that the
attorney has
Address of witness ) received no notice of
revocation of the
) power of attorney
)
Solicitor )
------------------------------------------ )
)
Occupation of witness (block letters) )
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(c)Mallesons Xxxxxxx Xxxxxx Working Capital Facility Agreement 39
26 February 2004
SIGNED by )
Xxxxxx X. Xxxxxxx )
as attorney for AUSTRALIA AND NEW )
ZEALAND BANKING GROUP )
LIMITED under power of attorney dated )
9 October 1992 )
in the presence of: )
)
) /s/Xxxxxx X. Xxxxxxx
/s/Xxxxxxx Keep ) By executing this agreement
----------------------------------------------- ) the attorney states that the
Signature of witness ) attorney has received no
) notice of revocation of the
) power of attorney
Xxxxxxx Keep )
----------------------------------------------- )
Name of witness (block letters) )
)
)
00/000 Xxxxxxx Xx., Xxxxxxxxx XXX 0000 )
----------------------------------------------- )
Address of witness )
)
)
Solicitor )
----------------------------------------------- )
Occupation of witness )
SIGNED by )
Xxxxxxxx Xxxxxx )
as attorney for COMMONWEALTH BANK OF AUSTRALIA )
under power of attorney dated 17/11/97 )
in the presence of: )
)
)
/s/Xxxxxxx Keep ) /s/Xxxxxxxx Xxxxxx
----------------------------------------------- ) ------------------
Signature of witness ) By executing this agreement
) the attorney states that the
) attorney has ) received no
) notice of revocation of
Xxxxxxx Keep ) the power of attorney
----------------------------------------------- )
Name of witness (block letters) )
)
)
00/000 Xxxxxxx Xx., Xxxxxxxxx XXX 0000 )
----------------------------------------------- )
Address of witness )
)
)
Solicitor )
-----------------------------------------------
Occupation of witness )
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(c) Mallesons Xxxxxxx Xxxxxx Working Capital Facility Agreement 40
26 February 2004
