EXHIBIT 4(J)
SUBORDINATED FACILITY AGREEMENT
TU AUSTRALIA HOLDINGS
(PARTNERSHIP) LIMITED PARTNERSHIP
EASTERN ENERGY LIMITED
and
CITIBANK, ▇.▇.
▇▇▇▇▇▇▇▇
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HOLLINGDALE
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& PAGE
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▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Telephone (▇▇) ▇▇▇▇ ▇▇▇▇ Facsimile (▇▇) ▇▇▇▇ ▇▇▇▇ DX 240 Melbourne
Reference: NG:WAG:20796885
MELBOURNE SYDNEY PERTH CANBERRA BRISBANE SINGAPORE HANOI HO CHI MINH CITY
CORRESPONDENT OFFICE IN JAKARTA
Liability is limited by the Solicitors Scheme under the Professional
Standards ▇▇▇ ▇▇▇▇ (NSW)
SUBORDINATED FACILITY AGREEMENT
DATE:
PARTIES: TU AUSTRALIA HOLDINGS (PARTNERSHIP) LIMITED PARTNERSHIP a limited
partnership formed and registered under the Partnership ▇▇▇ ▇▇▇▇
of Victoria, the general partner of which is:
TU AUSTRALIA HOLDINGS (AGP) PTY LTD (ACN 086 014 931) having
an office at ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇
and the limited partners of which are:
TU AUSTRALIA HOLDINGS NO. 1 LIMITED a company incorporated
in England and Wales with the registration number 3679715
and having an office at ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇; and
TU AUSTRALIA HOLDINGS NO. 2 LIMITED a company incorporated
in England and Wales with the registration number 3679712
and having an office at ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
("PARTNERSHIP")
EASTERN ENERGY LIMITED (ACN 064 651 118) of ▇▇▇▇▇ ▇▇, ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ("EASTERN")
CITIBANK, N.A. (ARBN 072 814 058) of ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ("FINANCIER" and "ADMINISTRATIVE
AGENT")
1 INTERPRETATION
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1.1 The obligations of each Borrower under this agreement are
several.
1.2 The following words have these meanings in this agreement
unless the contrary intention appears.
A$ EQUIVALENT on a day of a United States Dollar amount means the
Australian Dollar amount (as determined by the Administrative Agent) which
the Administrative Agent could purchase in the spot market at approximately
10.30 am (Sydney time) on that day for that United States Dollar amount
using its usual procedures for purchases of that type.
ADJUSTED FACILITY LIMIT means the A$ Equivalent of the Facility Limit as
determined in accordance with clause 2.1 and as reduced by the aggregate of
all cancellations under this agreement.
AUSTRALIAN DOLLARS and A$ means the lawful currency of Australia.
AUTHORISED OFFICER means:
(a) in the case of the Financier, a director, secretary or an
officer whose title contains the word "manager" or "vice
president" or a person performing the functions of any of
them; and
(b) in the case of a Borrower or the Guarantor, a person
appointed by the relevant Borrower or the Guarantor to act
as an Authorised Officer under the Transaction Documents to
which it is a party.
AVAILABILITY PERIOD means the period commencing on the date of this
agreement and ending on the earlier of:
(a) the day 45 days after the date of this agreement; and
(b) the date on which the Facility Limit or Adjusted Facility
Limit is cancelled in full.
▇▇▇▇ has the same meaning as in the Bills of Exchange Act 1909 (Cwlth) and
a reference to the drawing or acceptance or endorsement of, or other
dealing with, a ▇▇▇▇ is to be interpreted in accordance with that act.
BORROWER means:
(a) the Partnership; or
(b) Eastern,
and BORROWERS means both of them;
BUSINESS DAY means a day (not being a Saturday or a Sunday) on which banks
are open for general banking business in Melbourne and Sydney.
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).
DRAWDOWN DATE means the date on which a drawing is or is to be made under
the Facility.
DRAWDOWN NOTICE means a notice given in accordance with clause 4.
DRAWING means the outstanding principal amount of a drawing made under the
Facility.
EVENT OF DEFAULT has the meaning given to it in clause 15.
FACILITY means the loan facility granted by this agreement.
FACILITY LIMIT means US$350,000,000 as reduced by the aggregate of all
cancellations under this agreement.
FINANCIAL STATEMENTS means:
PAGE 2
(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.
GENERAL PARTNER means TU Australia Holdings (AGP) Pty Ltd (ACN 086 014
931).
GUARANTOR means Texas Utilities Company, a Texas corporation having an
office at Energy Plaza, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇ 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, the Financier or any Holding Company (as
defined in the Corporations Law) of the 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 (and is not
stayed, withdrawn or dismissed within 14 days) unless the
body corporate satisfies the Financier 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 Financier
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 Financier, a body corporate enters into, or
resolves to enter into, a scheme of arrangement, deed of
arrangement or composition with, or assignment for the
PAGE 3
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 Financier 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 Financier 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.
INTEREST PERIOD means each period stipulated in clause 5.
INTEREST 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 10:30 am
(Sydney time) on the first day of the Interest Period or if it is displayed
but there is an obvious error in that rate, INTEREST RATE means:
(a) the rate the Administrative Agent calculates as the average
of the bid rates quoted to the Administrative Agent at
approximately 10:30 am (Sydney time) on that date by at
least four Reference Banks selected by the Administrative
Agent for Bills of that tenor which are accepted by that
institution; 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 10:30 am
(Sydney time) on that date, having regard, to the extent
PAGE 4
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 third decimal place.
LIMITED PARTNERS means:
(a) TU Australia Holdings No. 1 Limited, a company incorporated
in England and Wales with a registration number of 3679715;
and
(b) TU Australia Holdings No. 2 Limited, a company incorporated
in England and Wales with a registration number of 3679712.
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 the Financier under the Transaction Documents.
PARTNERSHIP DEED means the Limited Partnership Deed made on 27 January 1999
between the General Partner and the Limited Partners in order to form the
Partnership.
PERMITTED SECURITY INTEREST has the same meaning as in the Security Trust
Deed.
POTENTIAL EVENT OF DEFAULT means an event which with the giving of notice
or lapse of time would become an Event of Default.
PRINCIPAL OUTSTANDING means the aggregate of the Drawings.
REFERENCE BANKS means Citibank, N.A., National Australia Bank Limited,
Commonwealth Bank of Australia, Westpac Banking Corporation and Australia
and New Zealand Banking Group Limited.
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.
REPAYMENT DATE means the day which is six months after the date of this
agreement.
SECURITY INTEREST means any security for the payment of money or
performance of obligations including a mortgage, charge, lien, pledge,
trust or power.
SECURITY TRUST DEED means the deed so entitled dated on or about the date
of this agreement establishing the TU Australia Holdings Trust between
National Australia Bank Limited as Security Trustee and Agent and the other
parties defined therein as the Core Borrower, Guarantor, TUA, Purchaser,
Eastern, Texas and Junior Financier.
PAGE 5
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.
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 the Financier.
TEXAS GUARANTEE means the instrument entitled "Guaranty" dated on or about
the date of this agreement by the Guarantor in favour of the Financier
relating to this agreement.
TRANSACTION DOCUMENTS means this agreement, the Texas Guarantee, the
Security Trust Deed, the fee letter referred to in clause 8.1, any document
which a Borrower or the Guarantor acknowledges to be a Transaction Document
and any other document connected with any of them.
TUC CREDIT AGREEMENT means the US$3,600,000,000 Amended and Restated
Competitive Advance and Revolving Credit Facility Agreement, dated as of
May 28, 1998, among the Guarantor, Texas Utilities Electric Company,
Enserch Corporation and certain lenders and agents named in that agreement.
UNDRAWN FACILITY LIMIT means, at any time, the Adjusted Facility Limit at
that time less the Principal Outstanding at that time.
UNITED STATES DOLLARS and US$ means the lawful currency of the United
States of America.
GENERAL INTERPRETATION
1.3 In this agreement unless the contrary intention appears:
(a) a reference to this agreement or another instrument includes
any variation or replacement of any of them;
(b) 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;
(c) the singular includes the plural and vice versa;
(d) the word "person" includes a firm, body corporate, an
unincorporated association or an authority;
(e) a reference to a person includes a reference to the person's
executors, administrators, successors, substitutes
(including, without limitation, persons taking by novation)
and assigns;
(f) an agreement, representation or warranty in favour of two or
more persons is for the benefit of them jointly and
severally;
(g) an agreement, representation or warranty on the part of two
or more persons binds them jointly and severally but an
agreement, representation or warranty of the Financier binds
the Financier severally only;
PAGE 6
(h) 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;
(i) a reference to any thing (including, without limitation, any
amount) is a reference to the whole and each part of it and
a reference to a group of persons is a reference to all of
them collectively, to any two or more of them collectively
and to each of them individually;
(j) if an act prescribed under this agreement to be done by a
party on or by a given day is done after 5.30pm on that day,
it is to be taken to be done on the following day.
1.4 Headings are inserted for convenience and do not affect the
interpretation of this agreement.
1.5 This agreement is a Transaction Document as defined in, and for
the purposes of, the Security Trust Deed. The rights of the
Financier, and the obligations of the Partnership, under this
agreement are subject to the terms of the Security Trust Deed.
1.6 If this agreement requires or permits any act, matter or thing to
be done by the Partnership, 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.
2 THE FACILITY
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2.1 The Financier grants to the Borrowers a loan facility in
Australian Dollars of an amount not exceeding the A$ Equivalent
of the Facility Limit as determined by the Administrative Agent
on the day prior to the first Drawdown Date.
2.2 If a Borrower wants to use the Facility, then it may do so by up
to three requests made in accordance with clause 4.
2.3 Each Borrower shall ensure that the proceeds of the Facility are
ultimately applied for the purposes of:
(a) completing the purchase of the assets of Westar Assets,
Westar and Kinetik under the Sale Agreement (each as defined
in the Security Trust Deed); and
(b) paying fees and expenses associated with that purchase, this
agreement and the Security Trust Deed and the financing
arrangements contemplated under the Security Trust Deed.
PAGE 7
3 CONDITIONS PRECEDENT
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3.1 The Financier need not make the first drawing available until the
Administrative Agent has received the following in form and
substance satisfactory to the Administrative Agent:
(a) a certified copy of the certificate of registration of each
Borrower and the General Partner; and
(b) a certified copy of the Partnership Deed and the
constitution of the General Partner and Eastern or a
certificate from a director or secretary of the relevant
entity confirming that the relevant entity does not have a
constitution; and
(c) a certified copy of the certificate of incorporation and
by-laws of the Guarantor; and
(d) a certified copy of:
(i) an extract of the minutes of a meeting of the board of
directors of the General Partner, Eastern and the
Guarantor which evidences the resolutions authorising
the signing and delivery of and observance of
obligations under the Transaction Documents to which it
is a party, and the appointment of Authorised Officers
of each Borrower and which acknowledges that the
Transaction Documents will benefit that entity; and
(ii) each instrument which evidences any other necessary
corporate action, action under the Partnership Deed or
other action in connection with those Transaction
Documents; and
(e) a certified copy of each authorisation (including, without
limitation, each authorisation under the Partnership Deed)
necessary to enter into, observe obligations under and
enforce the Transaction Documents; and
(f) without limiting clause 3.1(e), a certified copy of each
corporate, governmental or semi-governmental authorisation,
consent or approval necessary for the Guarantor to enter
into and perform its obligations under the Transaction
Documents to which it is a party; and
(g) a certified copy of each power of attorney under which a
person signs and delivers a Transaction Document for a
Borrower and, if required by the Administrative Agent,
evidence of its registration and stamping (or, if the
Administrative Agent permits, sufficient immediately
available funds or other provision to meet all liabilities
to stamp duty on them); and
(h) a certified specimen signature of:
PAGE 8
(i) each Authorised Officer of each Borrower and the
Guarantor; and
(ii) each other person who is authorised to sign and deliver
a Transaction Document for a Borrower or the Guarantor;
and
(i) each Transaction Document signed and delivered and, if
required by the Financier, evidence of its stamping and
registration; and
(j) a legal opinion from each of:
(i) ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ as Australian counsel to each Borrower
and the General Partner;
(ii) ▇▇▇▇▇▇ ▇▇▇▇ as English counsel to the Limited Partners;
(iii) ▇▇▇▇▇▇ ▇▇▇▇ & Priest, LLP as United States counsel to
the Guarantor;
(iv) ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇, L.L.P. as general
United States counsel to the Guarantor;
(v) King & Spalding as United States counsel to the
Financier; and
(vi) ▇▇▇▇▇▇▇▇ Hollingdale & Page as Australian counsel to
the Financier.
3.2 Anything required to be certified under clause 3.1 must be
certified by:
(a) the secretary or a director of the General Partner or
Eastern; or
(b) the secretary or assistant secretary of the Guarantor, as
appropriate, as being true and complete.
3.3 The Financier need not make any proposed drawing available
unless:
(a) the Financier has received a Drawdown Notice in respect of
the proposed drawing; and
(b) the proposed Drawdown Date is a Business Day during the
Availability Period; and
(c) the amount of the proposed drawing does not exceed the
Undrawn Facility Limit on the date of the Drawdown Notice or
on the Drawdown Date; and
(d) the Financier is satisfied that the statements contained in
the Drawdown Notice are true at the date of the Drawdown
Notice and at the Drawdown Date; and
(e) the representations and warranties in clause 13 and in the
Drawdown Notice are correct and not misleading at the date
of the Drawdown Notice and at the Drawdown Date; and
PAGE 9
(f) no Event of Default or Potential Event of Default continues
unremedied or would result from the provision of the
proposed drawing.
4 DRAWINGS
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4.1 A Borrower is not obliged to use the Facility. If a Borrower
wants to use the Facility, then it must give a notice to the
Financier meeting the requirements of clause 4.2 by 11.00 am
(Sydney time) on a day which is at least one Business Day before
the day it requires the proposed drawing (or such shorter period
as the Financier may agree).
4.2 A notice given under clause 4.1 must be in or substantially in
the form of schedule 2 and:
(a) be signed by an Authorised Officer of the relevant Borrower;
and
(b) specify the Borrower; and
(c) specify the Drawdown Date which must be a Business Day
during the Availability Period; and
(d) specify the amount of the proposed drawing which must be a
minimum of A$1,000,000 and must not be greater than the
Undrawn Facility Limit; and
(e) specify the account into which the proposed drawing is to be
paid; and
(f) contain a representation and warranty that the
representations and warranties set out in clause 13 are
correct and not misleading on the date of the Drawdown
Notice and that each will be correct and not misleading on
the Drawdown Date.
4.3 A Drawdown Notice is effective on actual receipt in legible form
by the Financier and is irrevocable.
4.4 Subject to this agreement, the Financier agrees to make available
each proposed drawing in accordance with the relevant Drawdown
Notice. The Financier need not make a proposed drawing available
if, as a result on that day, the Principal Outstanding would
exceed the Adjusted Facility Limit.
4.5 No more than three Drawings may be made under the Facility by
each Borrower.
4.6 After the Administrative Agent has determined the Interest Rate
for each Interest Period and the Adjusted Facility Limit it shall
promptly notify the Borrowers of its determinations.
PAGE 10
5 INTEREST PERIODS
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The Interest Period for a Drawing will be the period commencing
on the Drawdown Date for the Drawing and expiring on the
Repayment Date.
6 INTEREST
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INTEREST ON DRAWINGS
6.1 Each Borrower agrees to pay interest on the daily balance of each
Drawing made by it from and including its Drawdown Date until the
Drawing is repaid in full at a rate for the Interest Period for
the Drawing equal to the aggregate of the applicable Interest
Rate for that Interest Period plus 0.75% per annum. Interest is
to be calculated from and including the first day of an Interest
Period to but excluding the last day of the Interest Period.
Interest accrues from day to day, is payable on each Interest
Payment Date and is to be calculated on actual days elapsed and a
365 day year.
INTEREST ON OVERDUE AMOUNTS
6.2 Each Borrower agrees to pay interest on any amount payable by it
under this agreement from when it becomes due for payment during
the period that it remains unpaid. Interest is payable at a rate
for each Interest Period equal to the aggregate of the applicable
Interest Rate for that Interest Period plus 2.75% per annum, with
the Interest Periods for the purposes of this clause 6.2 being 90
days or such other shorter or longer periods as the Financier
selects from time to time. The first of these Interest Periods
commences on the day when the outstanding amount becomes due for
payment and each subsequent Interest Period commences on the day
when the preceding Interest Period expires.
6.3 Interest payable under clause 6.2 which is not paid when due for
payment may be capitalised by the Financier at intervals which
the Financier determines from time to time or, if no
determination is made, then on the first day of each month.
Interest is payable on capitalised interest at the rate and in
the manner referred to in clause 6.2.
6.4 Each Borrower's obligation to pay the outstanding amount on the
date it becomes due for payment is not affected by clauses 6.2
and 6.3.
INTEREST FOLLOWING JUDGMENT OR ORDER
6.5 If a liability of a Borrower under this agreement becomes merged
in a judgment or order, then the relevant Borrower agrees to pay
interest to the Financier on the amount of that liability as an
independent obligation. This interest accrues from the date the
liability becomes due for payment both before and after the
judgment or order until it is paid, at a rate that is the higher
of the rate payable under the judgment or order and the rate
referred to in clause 6.2.
PAGE 11
7 REPAYMENT
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Each Borrower agrees to repay on the Repayment Date the aggregate amount of
all Drawings provided to it.
8 FEES
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ARRANGEMENT FEE
8.1 The Borrowers agree to pay to the Administrative Agent on the
date of this agreement an arrangement fee in an amount, and on
the terms, contained in a letter dated on or about the date of
this agreement from the Administrative Agent to the Borrowers.
COMMITMENT FEE
8.2 The Borrowers agree to pay to the Financier on the last day of
the Availability Period a commitment fee of 0.375% per annum on
the daily balances of the Undrawn Facility Limit or, if the
Adjusted Facility Limit has not been determined, the Facility
Limit. The commitment fee will be computed in respect of each day
from and including the date of this agreement, to and including
the last day of the Availability Period.
9 CANCELLATION AND PREPAYMENT
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9.1 A Borrower may, during the Availability Period, cancel the
Undrawn Facility Limit in whole or in part on giving at least 2
Business Days' notice to the Administrative Agent. If only part
of the Undrawn Facility Limit is cancelled it must be at least
A$5,000,000 and a whole multiple of A$1,000,000. The notice is
irrevocable.
9.2 The Financier need not make any drawing available to a Borrower
after the last day of the Availability Period.
9.3 A Borrower may prepay a Drawing provided to it in whole or in
part on any Business Day on giving at least ten Business Days'
notice to the Financier.
9.4 If only part of a Drawing is prepaid it must be at least
A$10,000,000 and a whole multiple of A$5,000,000. The notice is
irrevocable and constitutes an obligation to prepay in accordance
with the notice.
9.5 A prepaid amount may not be redrawn.
10 PAYMENTS AND TAXES
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MANNER OF PAYMENT
10.1 Each Borrower agrees to make payments to the Financier under each
Transaction Document not later than 12 noon local time in the
place of payment on the due date in immediately available funds
to the account of the Financier at the bank which the Financier
designates by notice to the Borrowers.
PAGE 12
10.2 If a payment becomes due for payment on a day which is not a
Business Day, then the date for payment is the next succeeding
Business Day unless the date for payment would occur after the
Repayment Date, in which case the date for payment will be the
preceding Business Day.
10.3 Each Borrower agrees to make payments under each Transaction
Document without set-off or counterclaim and free and clear of
any withholding or deduction for Taxes unless prohibited by law.
CURRENCY OF PAYMENT
10.4 Each Borrower waives any right which it has in any jurisdiction
to pay an amount other than in Australian dollars.
TAXES
10.5 If a law requires a Borrower to withhold or deduct Taxes from a
payment so that the Financier would not actually receive for its
own benefit on the due date the full amount provided for under a
Transaction Document, then:
(a) the amount payable is increased so that, after making that
deduction and deductions applicable to additional amounts
payable under this clause, the Financier is entitled to
receive the amount it would have received if no deductions
had been required; and
(b) the Borrower must make the deductions; and
(c) the Borrower must pay the full amount deducted to the
relevant authority in accordance with applicable law and
deliver the original receipts to the Financier.
10.6 If a Borrower complies with clause 10.5 and, as a result, the
Financier receives a tax credit, tax rebate or similar tax
benefit 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, the Financier agrees to notify the relevant Borrower
and pay the relevant Borrower an amount which the Financier
determines in its sole opinion but in good faith to be equal to
the benefit. However, the Financier need pay only to the extent
that the payment leaves the Financier in no worse position than
it would have been had there been no requirement for the relevant
Borrower to deduct amounts under clause 10.5. The Financier need
not disclose to a Borrower information about its tax affairs or
order them in a particular way.
11 INCREASED COSTS
--------------------------------------------------------------------------------
11.1 If, as a result of an Increased Costs Event, the Financier
determines that:
PAGE 13
(a) there is any direct or indirect increase in the cost to the
Financier of providing, agreeing to provide, maintaining its
commitment to provide, funding or maintaining financial
accommodation under the Transaction Documents; or
(b) there is any direct or indirect reduction in any amount
received or receivable by the Financier or in the effective
return to the Financier in connection with financial
accommodation provided or to be provided under the
Transaction Documents (including, without limitation, the
return on the Financier's overall capital which could have
been achieved but for the occurrence of the Increased Costs
Event); or
(c) the Financier is required to make a payment or to forgo
interest or other return on or calculated by reference to an
amount received or receivable under the Transaction
Documents,
then each Borrower agrees to pay the Financier on demand additional amounts
which the Financier certifies are necessary to compensate the Financier for
the increased cost, reduction, payment or forgone interest or other return.
Any demand by the Financier under this clause 11.1 must contain reasonable
details of the basis of computation of the amount demanded (but need not
disclose information about the Financier's or any Related Entity's tax
affairs).
11.2 If the increased cost, reduction, payment or forgone interest or
other return is indirect, each Borrower agrees to pay the
Financier the proportion of it which the Financier determines to
be fairly attributable to the financial accommodation made under
the Transaction Documents.
11.3 Without prejudice to clause 11.4, if the Financier is affected by
a circumstance specified in clause 11.1 it must, at the request
of the Borrowers made to the Financier, negotiate in good faith
with the Borrowers with a view to finding a means of avoiding the
effect of the relevant circumstance, including by changing its
lending office provided such means of avoiding the effect of the
relevant circumstance can be achieved free of cost to the
Financier and nothing in this clause obliges the Financier to
take any action or refrain from taking any action apart from
negotiating in good faith with the Borrowers.
11.4 If the Borrowers have received a demand from the Financier under
clause 11.1 and that notice has not been withdrawn by the
Financier and provided that a Borrower has not given the
Financier a Drawdown Notice which has not been funded by the
Financier, the Borrowers, by notice given to the Financier, may:
(a) terminate the Financier's obligation to make its lending
commitment under the Facility available; and
(b) elect to prepay the Principal Outstanding together with all
accrued interest and any other amounts (including, without
limitation, any break costs) payable by each of the
PAGE 14
Borrowers to the Financier, within 10 Business Days of
receipt of the demand from the Financier.
11.5 Any notice given by the Borrowers under clause 11.4:
(a) takes effect when given to the Financier;
(b) is irrevocable; and
(c) binds the Borrowers to act in accordance with any election
made in that notice.
11.6 A Financier may not require a Borrower to make a payment under
clause 11.1 if, at the time the Financier became a party to this
agreement:
(a) the Directive giving rise to the Increased Costs Event was
known to the Financier; and
(b) it was both reasonably certain that the Directive giving
rise to the Increased Costs Event would become law or take
effect and unreasonable for the Financier not to take that
change into account in determining its likely overall return
under this agreement.
The parties acknowledge that this clause 11.6 does not apply to
the introduction of a tax on goods or services in Australia after
the date of this agreement.
11.7 The Financier may not require a Borrower to make a payment under
clause 11.1 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 or clause 12.2.
11.8 The Financier may only require a Borrower to make a payment under
clause 11.1 in respect of increased costs incurred by it up to an
Interest Period or 90 days, whichever is the greater, prior to
the date on which the Financier became aware of the circumstance
giving rise to the increased costs unless the increased cost is
payable or incurred by the Financier retrospectively, in which
case the full amount of the increased cost is payable by the
Borrower to the Financier.
11.9 A certificate signed by the Financier as to an amount payable by
either or both Borrowers under this clause 11 is conclusive
evidence of the amount stated in it in the absence of manifest
error. In determining additional amounts payable under this
clause 11 the Financier may use averaging and attribution methods
commonly used by the Financier or any other reasonable averaging
or attribution method.
12 ILLEGALITY
--------------------------------------------------------------------------------
12.1 If as a result of any change in a Directive which has the force
of law or compliance with which is in accordance with the
PAGE 15
practice of responsible bankers in the jurisdiction concerned, or
in its interpretation or administration after the date of this
agreement, the Financier determines that it is or has become
apparent that it will become contrary to that Directive,
impossible or illegal for:
(a) the Financier to fund, provide or maintain financial
accommodation or otherwise observe its obligations under the
Transaction Documents; or
(b) a person from whom the Financier has raised or proposes to
raise money in connection with financial accommodation under
the Transaction Documents to fund, provide or maintain that
money,
then each of the Borrowers, within five Business Days of receipt of a
notice from the Financier to do so, must prepay so much of the Principal
Outstanding as the Financier specifies in the notice, together with accrued
interest and other amounts payable by each of the Borrowers to the
Financier under any Transaction Document. The Financier's obligations to
each of the Borrowers under the Transaction Documents terminate on the
giving of the notice.
12.2 If a notice is given under clause 12.1, then the Financier agrees
to use reasonable endeavours for a period of 30 days (or, if
earlier, the date of cancellation of the relevant financial
accommodation) to make the relevant financial accommodation
available by some alternative means (including changing its
lending office to another then existing lending office or making
the financial accommodation available through a Related Entity of
the Financier) provided this can be achieved free of cost to the
Financier and nothing in this clause obliges the Financier to
take any action or refrain from taking any action.
13 REPRESENTATIONS AND WARRANTIES
--------------------------------------------------------------------------------
13.1 Each Borrower represents and warrants (subject to clause 13.3)
that:
(a) the Partnership has been duly formed and registered under
the Partnership ▇▇▇ ▇▇▇▇ 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) each of Eastern and 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) each of the Borrowers has power to enter into and observe
its obligations under the Transaction Documents; and
PAGE 16
(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) each of the Borrowers 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 each of the Borrowers under the
Transaction Documents are valid and binding and are
enforceable against each of the Borrowers 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:
(i) its constituent documents (if any); or
(ii) the Partnership Deed; or
(iii) 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 Security
Trust Deed) to which it is a party, is likely to have a
Material Adverse Effect; and
(j) it has fully disclosed to the Financier all facts relating
to the Borrowers and their material Subsidiaries which are
material to the assessment of the nature and amount of the
risk undertaken by the Financier in entering into the
Transaction Documents and doing anything in connection with
them; and
(k) no Event of Default continues unremedied; and
(l) none of the Borrowers or 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
PAGE 17
(m) there is no pending or threatened action or proceeding
affecting a 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) none of the Borrowers or 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) each of the Borrowers, 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) each of the Borrowers 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 3.2 is true and complete;
and
(s) there are no reasonable grounds to suspect that a 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 section 243H,
section 243ZE or section 260A of the Corporations Law by
entering into or participating in any Transaction Document
or any transaction contemplated by any Transaction Document;
and
(u) each representation and warranty made or taken to be made by
a Core Borrower (as defined in the Security Trust Deed) in
the Security Trust Deed is true and correct.
13.2 These representations and warranties are taken to be also made on
each Drawdown Date.
13.3 In relation to the representations and warranties in clause 13.1:
(a) no representation or warranty is made in relation to matters
disclosed to the Administrative Agent by the Borrowers and
accepted by the Administrative Agent in writing;
(b) no representation or warranty is made by Eastern Energy in
relation to the Partnership, the General Partner or the
Limited Partners or any of their respective Subsidiaries;
and
PAGE 18
(c) no representation or warranty is made by the Partnership in
relation to Eastern Energy or any of its Subsidiaries.
14 GENERAL UNDERTAKINGS
--------------------------------------------------------------------------------
Each 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 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 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 a 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 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 each of the General Partner and Eastern
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; and
(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.
PAGE 19
15 EVENTS OF DEFAULT
--------------------------------------------------------------------------------
15.1 An Event of Default occurs if:
(a) a 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 a Borrower for
sums in aggregate exceeding A$10,000,000:
(i) 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
(ii) 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
a 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 a Borrower, the General Partner or the
Guarantor in connection with a Transaction Document is found
or is notified by a 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 a Borrower or the
General Partner; or
(f) a controller (as defined in the Corporations Law) is
appointed in respect of any part of the property of a
Borrower or the General Partner; or
(g) a 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; or
(h) a Borrower or the General Partner takes action to reduce its
capital or buy back any of its ordinary shares or passes a
PAGE 20
resolution referred to in section 254N of the Corporations
Law, in any case without the consent of the Financier; or
(i) a person is appointed under legislation to manage any part
of the affairs of a Borrower or the General Partner; or
(j) any party to a Transaction Document (other than the
Financier) 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 that state of affairs is remediable,
and each of the Borrowers and Guarantor fails promptly to
take all steps reasonably requested by the Financier to
remedy, in co-operation with the Financier and 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 each Borrower; or
(m) any Security Interest granted by a Borrower or the General
Partner which secures over A$5,000,000 is enforced; or
(n) a Borrower or the Guarantor does not observe any other
obligation under any Transaction Document (other than the
Security Trust Deed) to which it is a party and, if the
non-observance can be remedied, does not remedy the
non-observance within 30 days; or
(o) 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
(p) any "Event of Default" as defined in the TUC Credit
Agreement occurs and is continuing; or
(q) any "Event of Default" as defined in the Security Trust Deed
occurs and is continuing.
15.2 If an Event of Default occurs, then (subject to the Security
Trust Deed) the Financier may declare at any time by notice to
the Borrowers that:
(a) the Principal Outstanding, interest on it, and all other
amounts payable under the Transaction Documents, are either:
(i) payable on demand; or
(ii) immediately due and payable;
(b) the Financier's obligations specified in the notice are
terminated.
PAGE 21
The Financier may make either or both of these declarations. The making of
either of them gives immediate effect to its provisions.
16 COSTS, CHARGES, EXPENSES AND INDEMNITIES
--------------------------------------------------------------------------------
16.1 Each Borrower agrees to pay or reimburse the Financier on demand
for:
(a) the reasonable costs, charges and expenses of the Financier
in connection with the negotiation, preparation, execution,
stamping, registration and completion of any Transaction
Document; and
(b) the costs, charges and expenses of the Financier in
connection with any consent, approval, exercise or
non-exercise of rights (including, without limitation, in
connection with the contemplated or actual enforcement or
preservation of any rights under any Transaction Document),
waiver, variation, release or discharge in connection with
any Transaction Document; and
(c) Taxes and fees (including, without limitation, registration
fees) and fines and penalties in respect of fees, which may
be 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;
and
(d) the reasonable costs, charges and expenses of the Financier
in connection with any enquiry by any authority involving a
Borrower, the General Partner, the Guarantor or any of their
Related Entities,
including in each case, without limitation legal costs and expenses
(incurred by the Financier acting reasonably) on a full indemnity basis or
solicitor and own client basis, whichever is the higher.
16.2 Each Borrower agrees that the costs, charges and expenses
referred to in clauses 16.1(b) and (d) include, without
limitation, those payable to any independent consultant or other
person appointed to evaluate any matter of concern and the
Financier's reasonable administration costs in connection with
any event referred to in clauses 16.1(b) or (d).
16.3 Each Borrower indemnifies the Financier against any liability or
loss arising from, and any costs, charges and expenses incurred
in connection with:
(a) the payment, omission to make payment or delay in making
payment of an amount referred to in clause 16.1; or
(b) an Event of Default; or
(c) a proposed drawing not being made available in accordance
with the request for any reason except default of the
Financier; or
PAGE 22
(d) all or any part of a Drawing being repaid, prepaid or made
payable for any reason other than at its maturity in
accordance with this agreement or any other payment required
to be made under any Transaction Document not being made on
its due date. (A Drawing prepaid under clause 9.3 is not to
be taken to have been repaid at its maturity in accordance
with this agreement); or
(e) any indemnity the Financier gives a controller (as defined
in the Corporations Law) or an administrator of a Borrower;
or
(f) the Financier acting in connection with a Transaction
Document in good faith on facsimile or telephone
instructions purporting to originate from the offices of a
Borrower or to be given by an Authorised Officer of a
Borrower and which 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 Financier acting
reasonably) 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 Financier.
16.4 Each Borrower agrees to pay to the Financier an amount equal to
any liability, loss, costs, charges or expenses of the kind
referred to in clause 16.3 suffered or incurred by any employee,
officer, agent or contractor of the Financier.
17 APPLICATION OF MONEY
--------------------------------------------------------------------------------
The Financier may apply amounts paid by a Borrower towards satisfaction of
a Borrower's obligations under the Transaction Documents in the manner the
Financier sees fit, unless the Transaction Documents expressly provide
otherwise.
18 NOTICES
--------------------------------------------------------------------------------
18.1 A notice, approval, consent or other communication in connection
with a Transaction Document:
(a) may be given by an Authorised Officer of the relevant party;
and
(b) must be in writing; and
(c) must be left at the address of the addressee or sent by
prepaid ordinary post (airmail if posted to or from a place
outside Australia) to the address of the addressee or sent
by facsimile to the facsimile number of the addressee which
is specified in schedule 1 or if the addressee notifies
another address or facsimile number then to that address or
facsimile number.
PAGE 23
18.2 Unless a later time is specified in it a notice, approval,
consent or other communication takes effect from the time it is
received.
18.3 A letter or facsimile is taken to be received:
(a) in the case of a posted letter, on the third (seventh, if
posted to or from a place outside Australia) day after
posting; and
(b) in the case of a facsimile, 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.
19 SECURITY INTERESTS AND ASSIGNMENT
--------------------------------------------------------------------------------
19.1 A Borrower may not, without the consent of the Financier, 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.
19.2 The Financier at any time may do anything mentioned in clause
19.1 as the Financier sees fit.
19.3 Without limiting the generality of clause 19.2, the Financier
may, without being required to obtain a Borrower's consent or to
provide any prior notice to a Borrower, assign, transfer,
sub-participate or otherwise deal with all or any part of its
benefit under this Agreement to any person (including, without
limitation, a trustee of a trust or a corporate vehicle
established for the purposes of securitisation) , provided the
Financier will remain the Financier of record in respect of this
agreement.
19.4 The Financier may disclose to any assignee or potential assignee
under this clause 19 any information in relation to this
agreement or in relation to a Borrower or the General Partner as
that assignee or potential assignee reasonably requires without
being required to obtain a Borrower's or General Partner's
consent or to provide any prior notice to a Borrower.
20 MISCELLANEOUS
--------------------------------------------------------------------------------
CERTIFICATE
20.1 A certificate signed by the Administrative Agent or its
solicitors about a matter (including, without limitation, the
rate of interest on a Drawing) or about a sum payable to the
Financier in connection with a Transaction Document (other than
under clause 11) is sufficient evidence of the matter or sum
stated in the certificate unless the matter or sum is proved to
be false.
EXERCISE OF RIGHTS
20.2 The Financier 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
PAGE 24
or remedy by the Financier does not prevent a further exercise of
that or an exercise of any other right, power or remedy. Failure
by the Financier to exercise or delay in exercising a right,
power or remedy does not prevent its exercise. The Financier 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.
WAIVER AND VARIATION
20.3 A provision of or a right created under this agreement may not be
waived or varied except in writing signed by the party or parties
to be bound.
SUPERVENING LEGISLATION
20.4 Any present or future legislation which operates to vary the
obligations of a Borrower in connection with this agreement with
the result that the Financier's rights, powers or remedies 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
20.5 The Financier may give conditionally or unconditionally or
withhold its approval or consent in its absolute discretion
unless this agreement expressly provides otherwise.
REMEDIES CUMULATIVE
20.6 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.
SET-OFF
20.7 At any time after the occurrence of an Event of Default, the
Financier may apply (without notice) any credit balance in any
currency in any account of a Borrower with the Financier towards
satisfaction of any amount then payable by a Borrower to the
Financier under this agreement. Each Borrower authorises 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.
INDEMNITIES
20.8 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 the Financier to incur expense or make payment
before enforcing a right of indemnity conferred by this agreement.
TIME OF THE ESSENCE
20.9 Time is of the essence of this agreement in respect of an
obligation of a Borrower to pay money.
FURTHER ASSURANCES
20.10 At the Financier's request each Borrower must, at its own
expense:
PAGE 25
(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 to
do likewise to bind every person intended to be bound under
the Transaction Documents.
21 RELIQUIFYING BILLS
--------------------------------------------------------------------------------
21.1 Each Borrower agrees to draw Bills in the manner required by the
Administrative Agent whenever requested by the Administrative
Agent to do so except that the discounted value of those Bills
when added to the aggregate discounted value of all other Bills
drawn under this clause and which are outstanding may not exceed
the Principal Outstanding.
21.2 Each Borrower irrevocably appoints the Administrative Agent as
its attorney to draw Bills in its name or on its behalf under
clause 21.1 and agrees to ratify all action taken by the
Administrative Agent as its attorney under this clause 21.2.
21.3 The requirement to draw Bills under clause 21.1 and the
appointment under clause 21.2 will cease and be revoked without
necessity for notice on payment by each Borrower of all amounts
owing to the Administrative Agent under this agreement. Nothing
in clauses 21.1 or 21.2 requires a Borrower or authorises the
Administrative Agent as attorney to draw a ▇▇▇▇ which matures
after the Repayment Date.
21.4 The Financier indemnifies each Borrower against liability on any
▇▇▇▇ drawn by the Borrower at the request of the Financier under
clause 21.1 or by the Financier under clause 21.2. The Financier
agrees to pay the costs of preparation of and all stamp duty on
each ▇▇▇▇ drawn under this clause 21.
21.5 If a reliquefication ▇▇▇▇ is presented to a 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 and owing by
that Borrower.
22 GOVERNING LAW, JURISDICTION AND SERVICE OF PROCESS
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22.1 This agreement is governed by the law in force in Victoria.
22.2 Each party irrevocably and unconditionally submits to the
non-exclusive jurisdiction of the courts of Victoria 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.
22.3 Without preventing any other mode of service, any document in an
action (including, without limitation, any writ of summons or
PAGE 26
other originating process or any third or other party notice) may
be served on any party by being delivered to or left for that
party at its address for service of notices under clause 18.
23 COUNTERPARTS
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This agreement may consist of a number of counterparts and the counterparts
taken together constitute one and the same instrument.
EXECUTED as an agreement
PAGE 27
SCHEDULE 1 FACILITY PARTICULARS
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(clause 18)
ADDRESS FOR SERVICE:
BORROWERS AND GENERAL PARTNER:
Address: ▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Facsimile No: (▇▇) ▇▇▇▇ ▇▇▇▇
ADMINISTRATIVE AGENT:
Address: ▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Facsimile No: (▇▇) ▇▇▇▇ ▇▇▇▇
FINANCIER:
Address: ▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Facsimile No: (▇▇) ▇▇▇▇ ▇▇▇▇
PAGE 28
SCHEDULE 2 (CLAUSE 4) DRAWDOWN NOTICE
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To: Citibank, N.A.
▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
[DATE]
Dear Sirs
SUBORDINATED FACILITY AGREEMENT
We refer to the Subordinated Facility Agreement dated [ ]
between TU Australia Holdings (Partnership) Limited
Partnership, Eastern Energy Limited and Citibank, N.A.
("LOAN AGREEMENT")
The Borrower gives you notice under clause 4.1 of the Loan
Agreement that it wants to borrow under the Facility.
The particulars required to be given under clause 4.2 of the
Loan Agreement are as follows:
(a) the Borrower is [ ];
(b) the proposed Drawdown Date is [ ];
(c) the amount of the proposed drawing is A$[ ];
(d) the account into which the proposed drawing is to be
paid is Account Number [ ] in the name of [ ]
at the [ ] branch of [name of Bank].
The Borrower represents that the representations and
warranties set out in clause 13.1 of the Loan Agreement are
correct and not misleading on the date of this Drawdown
Notice and warrants that each will be correct and not
misleading on the Drawdown Date.
The Borrower acknowledges that a term which has a defined
meaning in the Loan Agreement has the same meaning as in the
Loan Agreement when used in this Drawdown Notice.
Yours faithfully
.............................
[name of person]
being an Authorised Officer of
[TU Australia Holdings (Partnership) Limited
Partnership/Eastern Energy Limited]
PAGE 29
EXECUTION PAGE
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SIGNED for TU AUSTRALIA HOLDINGS )
(PARTNERSHIP) LIMITED PARTNERSHIP by )
being signed by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ )
--------------- )
an attorney for TU AUSTRALIA HOLDINGS )
(AGP) PTY LTD the general partner of the )
TU Australia Holdings (Partnership) )
Limited Partnership under power of )
attorney dated 23 February,1999 )
)
in the presence of: )
)
▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇ )
--------------- )
Signature of witness )
)
▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇ )
--------------- )
Name of witness (block letters) )
)
▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, )
▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Address of witness ) By executing this agreement the
) attorney states that the attorney
BUSINESS RELATIONS MANAGER ) has received no notice of
Occupation of witness ) revocation of the power of
) attorney
SIGNED by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ )
-------------- )
as attorney for EASTERN ENERGY LIMITED )
under power of attorney )
dated 23 February, 1999 )
in the presence of: )
)
▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇ )
--------------- )
Signature of witness )
)
▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇ )
--------------- )
Name of witness (block letters) )
) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ) By executing this agreement the
▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ) attorney states that the attorney
Address of witness ) has received no notice of
) revocation of the power of
BUSINESS RELATIONS MANAGER ) attorney
Occupation of witness )
PAGE 30
SIGNED by ▇▇▇▇▇▇ ▇▇▇▇▇▇ VICE PRESIDENT )
------------- )
and ▇▇▇▇ ▇▇▇▇▇▇ VICE PRESIDENT as )
------------ )
attorneys for CITIBANK, N.A. under power )
of attorney dated 20 August 1996 )
in the presence of: )
) J ▇▇▇▇▇▇▇
WA ▇▇▇▇▇▇ ) By executing this agreement the
--------- ) attorney states that the attorney
Signature of witness ) has received no notice of
) revocation of the power of
WA ▇▇▇▇▇▇ ) attorney
--------- )
Name of witness (block letters) )
)
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ) ▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ) By executing this agreement the
Address of witness ) attorney states that the attorney
) has received no notice of
SOLICITOR ) revocation of the power of
Occupation of witness ) attorney
PAGE 31
CONTENTS SUBORDINATED FACILITY AGREEMENT
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1 INTERPRETATION 1
General interpretation 6
2 THE FACILITY 7
3 CONDITIONS PRECEDENT 8
4 DRAWINGS 10
5 INTEREST PERIODS 11
6 INTEREST 11
Interest on Drawings 11
Interest on overdue amounts 11
Interest following judgment or order 11
7 REPAYMENT 12
8 FEES 12
Arrangement fee 12
Commitment fee 12
9 CANCELLATION AND PREPAYMENT 12
10 PAYMENTS AND TAXES 12
Manner of payment 12
Currency of payment 13
Taxes 13
11 INCREASED COSTS 13
12 ILLEGALITY 15
13 REPRESENTATIONS AND WARRANTIES 16
14 GENERAL UNDERTAKINGS 19
15 EVENTS OF DEFAULT 20
16 COSTS, CHARGES, EXPENSES AND INDEMNITIES 22
17 APPLICATION OF MONEY 23
18 NOTICES 23
19 SECURITY INTERESTS AND ASSIGNMENT 24
20 MISCELLANEOUS 24
Certificate 24
Exercise of rights 24
Waiver and variation 25
Supervening legislation 25
Approvals and consent 25
Remedies cumulative 25
Set-off 25
Indemnities 25
Time of the essence 25
Further assurances 25
21 RELIQUIFYING BILLS 26
22 GOVERNING LAW, JURISDICTION AND SERVICE OF PROCESS 26
23 COUNTERPARTS 27
SCHEDULE 1 FACILITY PARTICULARS 28
SCHEDULE 2 (CLAUSE 4) DRAWDOWN NOTICE 29