EXHIBIT (B)
▇▇▇▇▇▇ MATERIALS CORPORATION
(Borrower)
[***]
(Lender)
US$[____________]
REVOLVING
LOAN FACILITY AGREEMENT
364 DAYS
---------
* Pursuant to Item 1007(d) of Regulation M-A, the name, address,
facsimile number and other identifying information of the bank have been
omitted from this filing. The name of the bank has been filed separately with
the Secretary of the Securities and Exchange Commission. The symbol "[***]" is
used throughout this exhibit to indicate where such identifying information has
been omitted.
2
CONTENTS
Clause Page
------ ----
1 DEFINITIONS AND INTERPRETATION.......................................................................1
2 COMMITMENT AND CANCELLATION..........................................................................4
3 PURPOSE..............................................................................................5
4 DRAWDOWN.............................................................................................5
5 SELECTION NOTICE.....................................................................................5
6 PRINCIPAL AMOUNT OF SEGMENTS.........................................................................5
7 SELECTION OF FUNDING PERIODS.........................................................................6
8 REPAYMENT............................................................................................6
9 INTEREST.............................................................................................7
10 PAYMENTS.............................................................................................8
11 TAXATION.............................................................................................9
12 CHANGES IN LAW......................................................................................10
13 CONDITIONS PRECEDENT................................................................................13
14 REPRESENTATIONS AND WARRANTIES......................................................................14
15 UNDERTAKINGS........................................................................................16
16 EVENTS OF DEFAULT...................................................................................19
17 INTEREST ON OVERDUE AMOUNTS.........................................................................21
18 FEES................................................................................................22
19 INDEMNITIES.........................................................................................22
20 CURRENCY INDEMNITY..................................................................................22
3
21 EXPENSES............................................................................................23
22 STAMP DUTIES........................................................................................23
23 SET-OFF.............................................................................................23
24 WAIVERS, REMEDIES CUMULATIVE........................................................................23
25 SEVERABILITY OF PROVISIONS..........................................................................24
26 SURVIVAL OF REPRESENTATIONS AND INDEMNITIES.........................................................24
27 MORATORIUM LEGISLATION..............................................................................24
28 ASSIGNMENTS.........................................................................................24
29 NOTICES.............................................................................................25
30 AUTHORISED OFFICERS.................................................................................26
31 GOVERNING LAW AND JURISDICTION......................................................................27
32 COUNTERPARTS........................................................................................27
33 AMENDMENTS..........................................................................................27
EXECUTION PAGES........................................................................................27
ANNEXURE A - DRAWDOWN NOTICE...........................................................................28
ANNEXURE B - SELECTION NOTICE..........................................................................29
ANNEXURE C - REPAYMENT NOTICE..........................................................................30
ANNEXURE D - CSR GUARANTEE.............................................................................31
ANNEXURE E - OPINION OF ALLENS ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇.........................................................50
1
THIS AGREEMENT is made the day of July 2002
BETWEEN ▇▇▇▇▇▇ MATERIALS CORPORATION of ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of America
(the "Borrower")
AND [***] of [***], United States of America (the "Lender")
WHEREAS:
The Borrower has requested the Lender to provide the Borrower with a facility
under which financial accommodation may be made available to the Borrower.
NOW IT IS AGREED as follows.
1 DEFINITIONS AND INTERPRETATION
1.1 Definitions
When used in this Agreement the following terms shall have the
following meanings unless the context otherwise requires.
"Authorisation" includes:
(a) any consent, authorisation, registration, filing, agreement,
notarisation, certificate, permission, licence, approval,
authority or exemption from, by or with a Governmental
Agency; or
(b) the expiry of the specified period during which a
Governmental Agency by law may intervene or act, but does not
do so, to prohibit or restrict in whole or part anything in
respect of this Agreement.
"Authorised Officer" means:
(a) in respect of the Borrower, any person who is a secretary,
president, vice president, treasurer or assistant treasurer
of the Borrower or any person from time to time nominated as
an Authorised Officer by the Borrower by notice to the Lender
signed by two Authorised Officers, such notice to be
accompanied by certified copies of the signatures of all
persons so appointed; and
(b) in respect of the Lender, any person whose title of office
includes the word "Senior Vice President" or "Vice President"
or cognate expressions (including any person acting in any
such office) or any secretary or director, and the Borrower
shall be entitled to assume that any person purporting to
hold such office does hold such office.
"Business Day" means a day, other than a Saturday or Sunday or
gazetted public holidays, on which banks are open for business in New
York City and London.
"Commitment" means US$[__________] as reduced or cancelled under the
terms of this Agreement.
2
"CSR Guarantee" means the guarantee dated on or about the date of this
agreement given by the Guarantor in favour of the Lender in the form
set out in Annexure D.
"Default Rate" means [ ] per cent ([ ]%) per annum above the Interest
Rate.
"Drawdown Date" means the date (being a Business Day) on which any
Segment under this Agreement is or is to be drawn.
"Drawdown Notice" means a notice given in accordance with Clause 4.
"ERISA" means the Employee Retirement Income Security Act of 1974 of
the United States of America and the regulations promulgated and
rulings issued thereunder as amended from time to time and any
successor statute thereto.
"Event of Default" means any of the events specified in Clause 16.
"Excluded Tax" means any Tax imposed by any jurisdiction on the net
income or capital gains of the Lender as a consequence of the Lender
being a resident of or organised or doing business in that
jurisdiction, but excludes any Tax:
(a) which is calculated on or by reference to the gross amount of
any payment (without the allowance of any deduction) under
this Agreement; or
(b) which is imposed as a result of the Lender being considered a
resident of or organised or doing business in that
jurisdiction solely as a result of it being a party to this
Agreement.
"Facility" means the facility made available under Clause 2.1 of this
agreement.
"Financial Indebtedness" means any indebtedness (other than trade
credit in the ordinary course of business) in respect of moneys
borrowed or raised or any financial accommodation whatsoever including
(without limiting the generality of the foregoing) under or in respect
of any ▇▇▇▇, acceptance, endorsement, bond, note, debenture or other
similar debt security, guarantee, redeemable share (where such share
is redeemable prior to the Repayment Date), discounting arrangement,
finance or capital lease, hire purchase of any asset or service, any
obligation to deliver goods or provide services paid for in advance by
any financier or in relation to any other financing transaction.
"Funding Period" means, in respect of a Segment, a period for which
interest rates are fixed and the Segment funded, such period to
commence on and include the Drawdown Date or the last day of the
previous Funding Period and have a duration selected under Clause 7
and end on but exclude the last day of such period.
"Governmental Agency" means any government or any governmental,
semi-governmental or judicial entity, authority or agency.
"Guarantor" means CSR Limited ABN 90 ▇▇▇ ▇▇▇ ▇▇▇.
"Interest Rate" means the Reference Rate plus the Margin.
3
"Lending Office" means the office of the Lender described above or
such other branch, office or agency to which the Lending Office is
changed in accordance with Clause 28.4.
"LIBOR" means the offered rates displayed on the Reuters screen
LIBOR01 page (or any equivalent successor thereof) for a term
equivalent to the relevant Funding Period at or about 11.00 a.m.
(London time) on the day on which rates are displayed for the value
date which is the first day of that Funding Period.
"Margin" means, for any day during a Funding Period:
(a) where the Rating is [ ] or above, [ ]% per annum; and
(b) where the Rating is below [ ], [ ]% per annum.
"Material Adverse Effect" means a material adverse effect upon the
ability of the Borrower to perform its obligations to pay principal
and interest under this Agreement.
"Principal Outstanding" means the aggregate principal amount advanced
under this Agreement and outstanding from time to time.
"Rating" means the rating of the long-term senior unsecured debt of
the Borrower (guaranteed by the Guarantor), or where the Borrower's
long-term senior unsecured debt (guaranteed by the Guarantor) is not
rated, the Guarantor, published from time to time by ▇▇▇▇▇'▇ Investor
Service Inc..
"Reference Banks" means Mizuho International Plc, JPMorgan Chase & Co,
Deutsche Bank AG and UBS AG.
"Reference Rate" means, subject to Clause 9.5, LIBOR.
"Related Body Corporate" has the meaning given in the Corporations ▇▇▇
▇▇▇▇ of Australia.
"Repayment Date" means the date which is 364 days after the date of
this agreement or such other date as the parties may agree under
Clause 8.2 of this agreement and if the Repayment Date is not a
Business Day, the immediately preceding Business Day.
"Repayment Notice" means a notice given in accordance with Clause 8.3.
"Security Interest" includes any mortgage, pledge, lien (other than
one arising in the ordinary course of business or by operation of law)
or charge or any security or preferential interest or arrangement of
any kind, or any other right of or arrangement with any creditor to
have its claims satisfied prior to other creditors (other than
priority accorded by statute or a right of set-off) with, or from the
proceeds of, any asset and any deposit of money by way of security but
excluding any charge or lien arising in favour of any Governmental
Agency by operation of statute.
"Segment" means a sum advanced or to be advanced under this Agreement
having a principal amount and Funding Period as specified in a
Drawdown Notice or Selection Notice.
4
"Selection Notice" means a notice given in accordance with Clause 5.
"Subsidiary" has the meaning given in the Corporations ▇▇▇ ▇▇▇▇ of
Australia.
"Tax" includes any tax, levy, impost, deduction, charge, rate, duty,
compulsory loan or withholding which is levied or imposed by a
Governmental Agency, together with any interest, penalty (other than a
penalty incurred as a result of the delay or default of the Lender),
charge, fee or other amount imposed or made on or in respect of any of
the foregoing, and "Taxation" shall be construed accordingly.
"Undrawn Commitment" means the Commitment less the Principal
Outstanding.
"US$" means the lawful currency of the United States of America.
1.2 Interpretation
In this Agreement headings are for convenience only and shall not
affect interpretation and except to the extent that the context
otherwise requires:
(a) references to any legislation or to any provision of any
legislation include any modification or re-enactment of, or
any legislative provision substituted for, and all statutory
instruments issued under, such legislation or such provision;
(b) words denoting the singular include the plural and vice
versa;
(c) words denoting individuals include corporations and vice
versa;
(d) words denoting any gender include all genders;
(e) references to Clauses, Annexures and Schedules are references
to clauses, annexures and schedules of this Agreement;
(f) references to any document or agreement (including this
Agreement) include references to such document or agreement
as amended, novated, supplemented or replaced from time to
time;
(g) references to any party to this Agreement or any other
document or agreement include its successors or permitted
substitutes or assigns; and
(h) "writing" and cognate expressions include all means of
reproducing words in a tangible and permanently visible form.
2 COMMITMENT AND CANCELLATION
2.1 On the terms and subject to the conditions of this Agreement the
Lender, through its Lending Office, shall make available to the
Borrower a revolving loan facility in the amount of the Commitment,
but so that the Principal Outstanding will not at any time exceed the
Commitment.
2.2 On the giving of not less than ten Business Days prior written notice
to the Lender, the Borrower may cancel all or part of the Commitment
which is not drawn as at the expiry of the notice and the Commitment
shall be reduced accordingly. If part, unless
5
the Lender otherwise agrees, such part shall be a minimum of
US$5,000,000 and an integral multiple of US$1,000,000.
3 PURPOSE
The Borrower shall use the net proceeds of all Segments provided under
this Agreement for general funding purposes including, without
limitation, the acquisition of any company, assets or business.
4 DRAWDOWN
4.1 Drawdown Notice
Whenever the Borrower wishes to make a drawing it shall give to the
Lender an irrevocable Drawdown Notice substantially in the form of
Annexure A, to be received by the Lender not later than 11.00 a.m. New
York City time on the third Business Day prior to the proposed
Drawdown Date (which shall be a Business Day).
4.2 Advance of Segment
On the terms and subject to the conditions of this Agreement, whenever
the Borrower requests a Segment under a Drawdown Notice, the Lender
shall through its Lending Office make available the Segment to the
Borrower's account as specified in the relevant Drawdown Notice on the
relevant Drawdown Date in same day funds not later than 1.00pm New
York time PROVIDED THAT the aggregate Principal Outstanding shall not
exceed the Commitment.
5 SELECTION NOTICE
5.1 When Notice to be given
Not later than 11.00 a.m. New York City time on the third Business Day
before the last day of each Funding Period the Borrower may give to
the Lender an irrevocable Selection Notice substantially in the form
of Annexure B.
5.2 Failure to give Selection Notice
If the Borrower fails to give a Selection Notice in accordance with
this Clause in respect of any Segment and fails to give notice of its
intention to repay that Segment on that last day in accordance with
Clause 8.3 of this Agreement, it shall be deemed to have served a
Selection Notice electing to continue the Segment with a Funding
Period of one month.
6 PRINCIPAL AMOUNT OF SEGMENTS
The principal amount of each Segment shall be a minimum of
US$5,000,000 and an integral multiple of US$1,000,000.
6
7 SELECTION OF FUNDING PERIODS
(a) Subject to the subsequent provisions of this Clause, Funding
Periods selected by the Borrower shall be of one, two, three,
four, five or six months or of such other term as may be
agreed between the Borrower and the Lender.
(b) Should a Funding Period end on a day which is not a Business
Day, that Funding Period shall be extended to the next
Business Day in the same calendar month or, if none, the
preceding Business Day.
(c) If a Funding Period commences on a date in a month and there
is no corresponding date in the month in which it is to end,
it shall end on the last Business Day in that latter month.
(d) No Funding Period shall extend beyond the Repayment Date.
(e) Subject to Clause 5.2, if the Borrower fails to select a
Funding Period complying with this Clause the Lender shall
promptly notify the Borrower thereof and in consultation with
the Borrower may vary any Drawdown Notice or Selection Notice
to ensure compliance.
8 REPAYMENT
8.1 Subject to Clause 8.2, the Borrower must repay the Principal
Outstanding on the Repayment Date.
8.2 (a) At any time prior to one month before the then current
Repayment Date the Borrower may with the prior consent of the
Guarantor request in writing the Lender to extend the
Repayment Date by up to 364 days.
(b) The Lender may, in its absolute discretion, agree to the
extension of the Repayment Date on such terms and conditions
as may be agreed upon between the parties. Any such agreement
shall take effect in accordance with its terms and those
terms shall be notified to the Borrower and the Guarantor by
the Lender in writing.
8.3 (a) If the Borrower wishes to repay a Segment on the last day
of the Funding Period of that Segment, it shall give the
Lender no later than 12.00 noon New York City time on the
fifth Business Day prior to that day an irrevocable Repayment
Notice substantially in the form of Annexure C and that
Segment shall become repayable on the last day of the
relevant Funding Period of that Segment.
(b) Subject to this Agreement, Segments repaid under paragraph
(a) may be redrawn.
7
9 INTEREST
9.1 Notification of rates
The Lender shall notify the Borrower of the Interest Rate for each
Funding Period as soon as it is ascertained and this shall be prima
facie evidence of that Interest Rate. If the Borrower has reasonable
grounds to believe that the Lender has made an error in calculating
the amount of the Interest Rate for a Funding Period, it may by notice
to the Lender query the calculation of the Interest Rate notified by
the Lender.
9.2 Interest
Interest shall accrue from day to day on each Segment for each Funding
Period at the Interest Rate applicable to that day.
9.3 Basis of calculation of interest
Interest shall be computed on the basis of the actual number of days
elapsed and a year of 360 days.
9.4 Payment of interest
Except where this Agreement provides otherwise, interest shall be
payable by the Borrower in arrears on the last day of the relevant
Funding Period in respect of each Segment.
9.5 Alternative Reference Rate
(a) If for any reason in respect of any Funding Period only one
or no rates are displayed on the LIBOR01 page of the Reuters
screen for a term equivalent to that Funding Period or that
page of the screen is not available, then the Reference Rate
for that Funding Period shall be the simple average (rounded
if necessary to the nearest five decimal places) of the rates
quoted to the Lender by each of the Reference Banks as the
rate at which that bank, at approximately 11.00 a.m. on the
day on which the relevant LIBOR rates would otherwise have
been displayed for the relevant value date, would offer prime
banks in the London interbank market a deposit in a principal
amount and term substantially equal to the principal amount
and Funding Period of the relevant Segment.
(b) If in respect of a Segment:
(i) the Lender is unable to determine LIBOR for the
relevant Funding Period by reason of the failure of
at least two of the Reference Banks to supply the
quotations necessary to enable such determination to
be made; or
(ii) by reason of circumstances affecting the London
interbank market, LIBOR materially differs from the
Lender's cost of funding that Segment,
then:
8
(iii) the Lender shall promptly give notice to the
Borrower:
(iv) the Lender and the Borrower shall negotiate in good
faith with a view to agreeing on a reasonably
comparable reference rate for that Segment having
regard, inter alia, to the rates (if any) at which
the Reference Banks would offer prime banks in the
London interbank market a deposit in a principal
amount and term substantially equal to the principal
amount and Funding Period of that Segment;
(v) if the Lender and the Borrower so agree within ten
Business Days of the date of the notice referred to
in paragraph (iii), then the Reference Rate applying
retroactively to that Segment shall be the reference
rate so agreed;
(vi) if the Lender and the Borrower fail so to agree, the
Reference Rate applying retroactively in respect of
that Segment shall be the rate that the Lender in
its reasonable opinion immediately determines to be
a rate which represents its cost of funding that
Segment for the relevant Funding Period and the
Lender shall notify the Borrower immediately of that
rate; and
(vii) at any time within twenty Business Days after
receiving a notice pursuant to paragraph (vi), the
Borrower may, upon giving five Business Days' notice
to the Lender, prepay that Segment together with
accrued interest thereon and an amount (if any)
which reasonably compensates the Lender for any
losses or expenses of liquidating or re-employing
the funds.
10 PAYMENTS
10.1 Time and place
The Borrower shall make all payments under this Agreement in US$ in
same day funds on the due date to the Lender's account as notified in
writing by the Lender to the Borrower.
The Lender shall make all payments under this Agreement in US$ in same
day funds on the due date to the Borrower's account:
At: Bank One N.A.
▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
Account of: ▇▇▇▇▇▇ Materials Corporation
Account no.: [***]
or such other account from time to time notified in writing by the
Borrower.
10.2 No deduction
The Borrower shall make all payments required under this Agreement
without set-off or counterclaim and without deduction, whether on
account of Taxes (except to the
9
extent that the Borrower is required by law to deduct Taxes, but
without prejudice to Clause 11 (Taxation)) or otherwise.
10.3 Payment to be made on a Business Day
Whenever any payment shall become due on a day which is not a Business
Day, the due date shall be the next Business Day in the same calendar
month or, if none, the last preceding Business Day, and interest shall
be adjusted accordingly.
11 TAXATION
11.1 Additional Payments
Whenever the Borrower is required by law to make a deduction or
withholding in respect of Tax from any payment to be made under this
Agreement, then it shall:
(a) promptly pay the amount deducted or withheld on the date that
Tax is due to be paid to the appropriate Governmental Agency;
(b) if requested by the Lender, within twenty Business Days of
that request deliver to the Lender official receipts, if any,
received by the Borrower or other documentation of the
Borrower evidencing payment of that amount; and
(c) if and to the extent that such Tax is not an Excluded Tax,
pay the Lender such additional amounts as necessary to ensure
that the Lender receives when due a net amount (after payment
of any Taxes in respect of such additional amounts) in US$
equal to the full amount which it would have received had a
deduction or withholding not been made;
provided however that if the Borrower is required, or is likely to be
required, to make payment to the Lender pursuant to paragraph (c), the
Lender and the Borrower shall negotiate in good faith with a view to
determining whether there is any action which may be taken to avoid or
minimise the Borrower's obligation to make such deduction or
withholding in such a manner as will not increase the cost to the
Lender of making, funding or maintaining the Commitment or any Segment
or reduce the return on the capital employed to fund the Commitment or
any Segment.
11.2 Tax Credits
If the Borrower is required by law to pay any additional amount
pursuant to Clause 11.1 and the Lender, in its reasonable opinion, is
able to apply for or otherwise to take advantage of any offsetting tax
credit, rebate or other similar tax benefit arising out of or in
connection with the deduction or withholding giving rise to the
obligation to pay such additional amount, the Lender shall give notice
thereof to the Borrower and the Lender shall take steps as it may in
its reasonable discretion determine to obtain that credit, rebate or
benefit and will, upon receipt thereof, reimburse to the Borrower the
amount of that credit, rebate or benefit as it in its reasonable
opinion determines is allocable to that deduction or withholding.
Nothing in this Clause shall require the Lender to disclose to the
Borrower any information regarding its tax affairs.
10
11.3 Tax Forms
(a) The Lender will provide or file by the due date with the
Borrower or any relevant Governmental Agency any form,
certificate or other document required by the Internal
Revenue Code, Regulations or other administrative
pronouncements by the Treasury or the Internal Revenue
Service of the United States of America to be filed in
respect of this Agreement or the transactions contemplated by
this Agreement.
(b) The Lender is required to furnish Form W-9 to be provided to
the Borrower on or before the date of this Agreement.
12 CHANGES IN LAW
12.1 Increased Costs
If any change in, any making of, or any change in the interpretation
or application by any Governmental Agency of, or compliance with, any
law, regulation, official directive or request with which it is
customary for banks to comply (including, without limitation, with
respect to Taxation (other than an Excluded Tax) or reserve,
liquidity, capital adequacy, special deposit or similar requirements)
affects the Lender (such change, making, interpretation, application
or compliance occurring after the date of this Agreement and not being
ordinarily within the knowledge of prudent banks in the ordinary
course of business as at the date of this Agreement (and, without
limitation, the matters set out in the statement on Banking
Regulations and Supervisory Practices dated July 1988 and entitled
"International Convergence of Capital Measurement and Capital
Standards" ("the Statement") are to be so regarded as within the
knowledge of prudent banks) and as a result:-
(a) the effective cost to the Lender of making, funding or
maintaining any Segment or the Commitment is in any way
increased;
(b) any amount paid or payable to or received or receivable by
the Lender under or in respect of this Agreement is in any
way reduced; or
(c) the return (the basis of calculation of which shall be
certified in writing by the Lender and notified to the
Borrower as soon as practicable after the signing of this
Agreement) of the Lender on the capital employed to fund the
Commitment or any Segment is in any way reduced (such
reduction not resulting from the implementation by the
applicable authorities having jurisdiction over the Lender or
its Lending Office of the matters set out in the Statement),
in any such case by or in an amount which is not on account of
Excluded Tax and which the Lender reasonably considers is material,
then:
(d) the Lender shall promptly notify the Borrower of the
occurrence of that event, providing reasonable details of the
event and the nature and amount of such increased cost or
reduction; and
(e) the Lender and the Borrower shall negotiate in good faith
with a view to avoiding the imposition of such increased cost
or reduction in such a manner
11
which does not increase the cost to the Lender of making,
funding or maintaining the Commitment or any Segment or reduce
the return on the capital employed to fund the Commitment or
any Segment and if the Borrower and the Lender cannot come to
an agreement within twenty (20) Business Days of notice given
under Clause 12.1(d) then on demand from time to time the
Borrower shall pay to the Lender the amount certified in good
faith by an Authorised Officer of the Lender which shall
reasonably compensate the lender for such increased cost or
reduction.
This Clause applies with respect to official directives or requests
whether or not having the force of law and, if not having the force of
law, the observance of which is in accordance with the practice of
prudent banks in the country concerned.
12.2 Minimisation of cost
The Lender shall use reasonable endeavours to avoid or, if avoidance
is not possible, to minimise any such cost, reduction or payment
referred to in Clause 12.1 and the effect of any unlawfulness referred
to in Clause 12.5.
12.3 Survival of obligations
The Borrower's and Lender's obligations under this Clause shall
survive the repayment of the Principal Outstanding and the termination
of this Agreement.
12.4 Prepayment on increased costs
If:
(a) the Borrower receives a notice under Clause 12.1(d); or,
(b) as a result of the making of, or a change in the
interpretation or application by any Governmental Agency of,
any law or treaty the Borrower is or will become obliged to
make any additional payment under Clause 11 (Taxation),
the Borrower, at any time within forty (40) Business Days of receiving
that notice or becoming so obliged, may upon notice to the Lender
immediately prepay the Principal Outstanding, together with accrued
interest thereon and the amount (if any) payable by the Borrower under
Clause 12.7.
12.5 Lender Illegality
If the making of, or a change in the interpretation or application by
any Governmental Agency of, any law or treaty makes it unlawful for
the Lender to make, fund or maintain the accommodation required under
this Agreement then the Lender immediately upon becoming so aware
shall notify the Borrower of the unlawfulness with evidence certified
by an Authorised Officer of the Lender of that unlawfulness and:
(a) the Lender shall consult in good faith with the Borrower with
a view to finding an alternative, including, without
limitation, changing its Lending Office to another
jurisdiction provided that such alternative or change does
not subject
12
the Borrower or the Guarantor to any increase in costs, Taxes
or expenses which are a direct or indirect consequence of
that alternative or change,
and if an alternative or change cannot be agreed upon:
(b) the Lender may by notice to the Borrower reduce the
Commitment or require the Borrower to reduce the Principal
Outstanding to the extent that it is unlawful;
(c) if required by the law or treaty, or if necessary to prevent
or remedy a breach of the law or treaty, the Borrower will
prepay the Principal Outstanding or the reduction therein
referred to in paragraph (b) as the case may be, together
with accrued interest thereon and all fees and other amounts
due and payable as at that date under this Agreement and the
amount (if any) payable under Clause 12.7; and
(d) that prepayment shall be made immediately after receipt of
the notice referred to in paragraph (b), but if delay in
prepayment is permitted by, or will not cause a breach of,
the law or treaty, it shall be made on the latest permitted
day and until such day, the Borrower shall remain entitled to
give the Lender Selection Notices in relation to the Segment
or Segments in question provided that in no case shall the
Borrower select a Funding Period which expires after the
latest day permitted by the relevant law or treaty for
repayment.
12.6 Borrower or Guarantor Illegality
If it becomes unlawful for the Borrower to perform or comply with its
obligations under this Agreement or for the Guarantor to perform or
comply with any of its obligations under the CSR Guarantee, then the
Borrower immediately upon becoming so aware shall give notice of the
unlawfulness to the Lender with evidence certified by an Authorised
Officer of the Borrower of that unlawfulness and:
(a) the Borrower shall consult in good faith with the Lender and
the Guarantor with a view to finding an alternative,
including without limitation, changing the Lending Office to
another jurisdiction provided that such alternative or change
does not subject the Lender, Borrower or the Guarantor to any
increase in costs, Taxes or expenses which are a direct or
indirect consequence of that alternative or change,
and if an alternative cannot be agreed upon:
(b) the Lender may by notice to the Borrower reduce the
Commitment or require the Borrower to reduce the Principal
Outstanding to the extent that it is unlawful;
(c) if required by the law or treaty, or if necessary to prevent
or remedy a breach of the law or treaty, the Borrower will
prepay the Principal Outstanding or the reduction therein
referred to in paragraph (b) as the case may be, together
with accrued interest thereon and all fees and other amounts
due and payable as at that date under this Agreement and the
amount (if any) payable under Clause 12.7; and
13
(d) that prepayment shall be made immediately after receipt of
the notice referred to in paragraph (b), but if delay in
prepayment is permitted by, or will not cause a breach of,
the law or treaty, it shall be made on the latest permitted
day and until such day, the Borrower shall remain entitled to
give the Lender Selection Notices in relation to the Segment
or Segments in question provided that in no case shall the
Borrower select a Funding Period which expires after the
latest day permitted by the relevant law or treaty for
repayment.
12.7 Break Costs
If the Borrower prepays any amount ("the Amount Prepaid") pursuant to
this Agreement otherwise than on the last day of a Funding Period
then, if the amount determined as follows ("the Break Amount") is
negative, the Borrower shall pay to the Lender the Break Amount, and
if the Break Amount is positive, the Lender shall pay to the Borrower
the Break Amount:
AP x [MR - IR] x RD
Break Amount = -------------------
360
Where:
AP means the Amount Prepaid.
MR means the rate of interest (expressed as a percentage per
annum) which would have been payable to the Lender in respect
of a deposit in an amount equal to the Amount Prepaid as if
it had been placed by the Lender, for the period defined as
RD below, with a prime bank in the London interbank market.
IR means the Interest Rate (expressed as a percentage per annum)
determined in accordance with Clause 9 which would otherwise
have been applicable to the Amount Prepaid.
RD means the number of days from and including the date of
prepayment to but excluding the last day of the relevant
Funding Period.
13 CONDITIONS PRECEDENT
13.1 Conditions precedent to Initial Drawdown Notice
The right of the Borrower to give the initial Drawdown Notice and the
obligations of the Lender under this Agreement are subject to the
Lender having received:-
(a) certified true copies of the certificate of incorporation and
the constitution of the Guarantor and of the certificate of
incorporation and by-laws of the Borrower;
(b) a certified true copy of the resolutions of the board of
directors of the Borrower approving the entry into this
transaction and the execution of documents evidencing it;
14
(c) certified true copies of the power of attorney of the
Guarantor under which it has executed the CSR Guarantee and
of the resolution of the board of directors of the Guarantor
authorising the execution of that power of attorney; and
(d) the CSR Guarantee duly executed by the Guarantor;
(e) a certified copy of a specimen signature of each Authorised
Officer of the Borrower and the Guarantor;
(f) a legal opinion substantially in the form of Annexure E from
Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ as to the CSR Guarantee.
13.2 Conditions precedent to Drawdown
The obligation of the Lender to make funds available on a Drawdown
Date is subject to the further conditions precedent that:
(a) (representations true): the representations and warranties by
the Borrower in this Agreement and by the Guarantor in the
CSR Guarantee are true in all material respects as at the
date of the relevant Drawdown Notice and the Drawdown Date as
though they had been made at that date, in each case by
reference to the facts and circumstances then subsisting;
(b) (no default): no Event of Default or event which with lapse
of time and/or giving of notice would be an Event of Default
shall be subsisting and unwaived at the date of the relevant
Drawdown Notice and the Drawdown Date or will result from the
provision of the Segment; and
(c) (Authorisation): all necessary Authorisations for the
provision of that Segment (if any) have been obtained.
14 REPRESENTATIONS AND WARRANTIES
14.1 Representations and warranties
The Borrower makes the following representations and warranties for
the benefit of the Lender.
(a) (Status): It is a corporation duly incorporated and validly
existing in good standing under the laws of the State of
Georgia.
(b) (Corporate power): It has the corporate power to enter into
and perform its obligations under this Agreement and to carry
out the transactions contemplated by this Agreement.
(c) (Corporate authorisations): It has taken all necessary
corporate action to authorise the entry into and performance
of this Agreement and the transactions contemplated by this
Agreement.
(d) (Agreement binding): This Agreement constitutes its valid and
binding obligation enforceable in accordance with its terms,
subject to applicable
15
bankruptcy, insolvency, liquidation or similar laws of
general application and equitable principles and remedies.
(e) (Transactions permitted): Neither the execution and
performance by it of this Agreement nor any transaction
contemplated by or under this Agreement will violate in any
respect any provision of:
(i) any law or treaty or any judgment, ruling, order or
decree of any Governmental Agency binding on it;
(ii) its certificate of incorporation and by-laws;
(iii) any other document or agreement which is binding
upon it or its assets,
and, except as may be provided by this Agreement, to its
knowledge and belief, did not and will not result in:
(iv) the creation or imposition of any Security Interest
on any of its assets under any of the foregoing
which would have a Material Adverse Effect; or
(v) the acceleration of any obligation or the
cancellation of any right of it with respect to any
Financial Indebtedness, or anything which
constitutes (or which, with the giving of notice
and/or lapse of time would constitute) an event of
default under any agreement relating to Financial
Indebtedness, in each case to an extent which would
have a Material Adverse Effect.
(f) (Accounts):
(i) Its most recent audited accounts present fairly, in
all material respects, its financial position and
the results of its operations as at the date and for
the period to which they relate.
(ii) Those accounts have been prepared in accordance with
accounting principles and practices generally
accepted in Australia consistently applied, except
to the extent of departures disclosed in those
accounts and the notes thereto or in the auditor's
report attached to those accounts.
(g) (No litigation): Subject to matters disclosed in its accounts
and the notes thereto and information in press releases
issued or notifications given to any stock exchange by the
Borrower or the Guarantor and any other information notified
in writing to the Lender by the Borrower or the Guarantor
from time to time no litigation, arbitration, tax claim,
dispute or administrative proceeding is presently current or
pending or, to its knowledge, threatened, which, if adversely
determined, would have a Material Adverse Effect.
(h) (No default): It is not in default for non-payment (subject
to any grace period, waiver or any indulgence whatsoever) of
any Financial Indebtedness in an amount in excess of
US$20,000,000 (or an equivalent amount in another currency)
under any document or agreement binding on it or it is
contesting in
16
good faith its liability for such Financial Indebtedness and
to its knowledge nothing has occurred which is or would with
the giving of notice and/or lapse of time constitute an event
of default under any such document or agreement in
circumstances where such default for non-payment or
occurrence, as the case may be, would have a Material Adverse
Effect.
(i) (Authorisations): All Authorisations, if any, obtainable and
required in connection with the execution, delivery or
performance by it and the validity and enforceability of this
Agreement and the transactions contemplated by this Agreement
have been obtained or effected and are in full force and
effect.
(j) (Material adverse changes): Since the date of its latest
audited accounts there has been no change in its financial
position and operations which would have a Material Adverse
Effect on both it and the Guarantor (and in respect of the
Guarantor, Material Adverse Effect shall have the meaning
given in the CSR Guarantee).
(k) (ERISA): It has not:
(i) voluntarily terminated any employee pension benefit
plan covered by Title IV of ERISA where such
termination has resulted in a liability of the
Borrower to the Pension Benefit Guaranty Corporation
which would have a Material Adverse Effect;
(ii) entered into any prohibited transaction (as defined
in Section 4975 of the Internal Revenue Code or in
Section 406 of ERISA) involving any employee benefit
plan covered by Title 1 of ERISA which has resulted
in any liability for Tax under Section 4975 of the
Internal Revenue Code or Section 502 of ERISA which
would have a Material Adverse Effect; or
(iii) caused or permitted the occurrence of any reportable
event (as defined in Section 4043 of ERISA) other
than any such event with respect to which the 30-day
notice requirement has been waived in relation to
any employee benefit plan covered by Title 1 of
ERISA which has resulted in a liability to the
Borrower which would have a Material Adverse Effect.
14.2 Deemed Repeated
Each of the representations and warranties contained in this Agreement
shall be deemed to be repeated by the Borrower at the date of each
Drawdown Notice and Selection Notice by reference to the facts and
circumstances then subsisting.
15 UNDERTAKINGS
15.1 General undertakings
The Borrower undertakes to the Lender as follows, except to the extent
that the Lender otherwise consents in writing.
(a) (Corporate reporting and information): It will furnish to the
Lender:
17
(i) (annual accounts): as soon as practicable (and in
any event not later than 120 days) after the close
of each of its financial years copies of its audited
consolidated and unconsolidated statement of
financial position and statement of financial
performance;
(ii) (semi-annual accounts): as soon as practicable (and
in any event not later than 90 days) after the first
half of each of its financial years a copy of its
unaudited accounts in respect of that half year as
prepared by it for incorporation into the
semi-annual accounts of the Guarantor referred to in
Clause 4.1(a)(ii) of the CSR Guarantee; and
(iii) (other information): such other information (other
than information which in its reasonable opinion it
requires to keep confidential) in relation to its
financial condition or business as the Lender may
reasonably request.
(b) (Accounting principles): It will ensure that each statement
of financial position and statement of financial performance
furnished by it to the Lender under paragraph (a) shall:
(i) be prepared in accordance with accounting principles
and practices generally accepted in Australia
consistently applied except to the extent of
departures disclosed in those accounts and the notes
thereto or in the auditor's report attached to those
accounts; and
(ii) present fairly, in all material respects, its
financial position and the results of its operations
as at the date and for the period to which they
relate.
(c) (Authorisations): It will use all reasonable endeavours to
ensure that all Authorisations obtainable and required for
the validity, enforceability and performance of its
obligations under this Agreement are obtained and maintained
in full force and effect.
(d) (Notice to Lender): It will give notice to the Lender as soon
as it becomes aware of the occurrence of any Event of
Default.
(e) (Negative pledge): It will not create, permit or suffer to
exist, without the prior consent of the Lender, which consent
shall not be unreasonably withheld or delayed, any Security
Interest over all or any of its assets if the aggregate
amount from time to time outstanding thereunder represents
more than ten per cent (10%) of the value of its total assets
(as disclosed in its latest audited accounts), disregarding:
(i) liens arising by operation of law in the ordinary
course of business;
(ii) any Security Interest existing at the time of
acquisition on any asset acquired by it after the
date of this Agreement and not created in
contemplation of the acquisition provided that there
is no increase in the amount of the principal moneys
secured by that Security Interest;
18
(iii) any Security Interest created on any asset or group
of associated assets acquired by it at arms' length
from an unrelated party or developed by it after the
date of this Agreement:
(A) for the sole purpose of financing or
refinancing that acquisition or
development; and
(B) securing principal moneys not exceeding one
hundred per cent (100%) of the cost of that
acquisition or development;
(iv) any Security Interest on an asset in substitution
for an existing Security Interest on that asset in
connection with the refinancing of the borrowed
money secured on that asset provided there is no
increase in the amount of the principal moneys
secured by that Security Interest;
(v) any Security Interest in the nature of a project
cross-charge to secure only the performance of its
obligations to the other joint venturers in the
project;
(vi) any Security Interest existing at the date of this
Agreement provided there is no increase in the
amount of the principal moneys secured by that
Security Interest;
(vii) any rights by way of reservation or retention of
title which are required by the supplier of any
property to the Borrower in the ordinary course of
business;
(viii) any rights of set-off arising in the ordinary course
of business or by operation of law;
(ix) any lien in respect of a judgment debt against the
Borrower provided that stay of execution in respect
thereof has been obtained or adequate reserves have
been provided in respect thereof;
(x) any Security Interest which the Borrower is required
to create by any applicable law or is required or
considers it necessary or expedient to create in
order to obtain any governmental or regulatory
consent, approval, authority, licence, permission or
exemption; and
(xi) any statutory charge in favour of any Governmental
Agency,
and without in any such case at the same time extending to
the Lender equally and rateably, the same such Security
Interest (or its equivalent as the Lender shall reasonably
require).
(f) (Corporate existence): It will do all things necessary to
maintain its corporate existence.
(g) (Pari Passu): It will ensure that its obligations under this
Agreement rank and will continue to rank at least pari passu
with all of its other unsecured and unsubordinated
obligations, other than obligations preferred by operation of
law.
19
15.2 Term of undertakings
Each undertaking in this Clause shall continue from the date of this
Agreement until all moneys payable by the Borrower under this
Agreement are fully and finally repaid.
16 EVENTS OF DEFAULT
Upon the occurrence of any of the following (whether or not within the
control of the Borrower):
(a) (non-payment): the Borrower fails to pay any amount of
principal payable by it under this Agreement when due and
that amount remains unpaid for a period of five Business Days
after the due date or the Borrower fails to pay any interest
or other amount payable by it under this Agreement (other
than principal) and that amount remains unpaid for a period
of five Business Days from the date of notice of that
non-payment by the Lender to the Borrower;
(b) (other obligations):
(i) the Borrower fails to observe or perform any of its
other material obligations under this Agreement or
the Guarantor fails to observe or perform any of its
material obligations under the CSR Guarantee and
such failure is not waived by the Lender; and
(ii) if such failure is capable of remedy, it is not
remedied to the reasonable satisfaction of the
Lender within twenty Business Days of the Lender
notifying the Borrower or the Guarantor (as the case
may be) of such failure (or such longer period as
the Lender shall agree);
(c) (misrepresentation): any representation, warranty or
statement made or deemed to be made by the Borrower in this
Agreement or the Guarantor in the CSR Guarantee proves to
have been untrue in any material adverse respect when made or
deemed to be repeated;
(d) (cross default): the Borrower or the Guarantor is in default
for non-payment (subject to any grace period, waiver or any
indulgence whatsoever) of any Financial Indebtedness in an
amount in excess of US$20,000,000 (or an equivalent amount in
another currency) under any document or agreement binding on
it, or any Financial Indebtedness in an amount in excess of
US$20,000,000 (or an equivalent amount in another currency)
under any document or agreement binding on it, is validly
declared to be or otherwise validly becomes due and payable
prior to its specified maturity by reason of an event of
default (unless in any case the Borrower or the Guarantor, as
the case may be, is contesting in good faith its liability
for the Financial Indebtedness in question);
(e) (winding up):
(i) in respect of the Borrower, an application, petition
or proceeding is made, filed or instituted with any
court or tribunal seeking an order for relief under
the United States Federal Bankruptcy Code or seeking
to adjudicate it bankrupt or insolvent or seeking
dissolution, winding up,
20
liquidation, reorganisation, arrangement, adjustment
or composition of it or its debts under any
bankruptcy, insolvency or other similar law and, in
the event that such application, petition or
proceeding was not made, filed or commenced
voluntarily by the Borrower or the Guarantor, such
application, petition or proceeding remains
undismissed or unstayed for a period of forty
Business Days; or
(ii) in respect of the Guarantor, an application (other
than one which is frivolous or vexatious or which is
in respect of indebtedness which is not in excess of
US$20,000,000 (or an equivalent amount in another
currency)) is made for its winding up or
dissolution, and the Guarantor cannot, within forty
Business Days, or such longer period as the Lender
shall agree, reasonably satisfy the Lender that it
will be able to prevent the making of an order in
respect of such application; or
(iii) an order is made for the winding up or dissolution
of the Borrower or the Guarantor; or
(iv) a resolution is passed in respect of, or other
corporate action is taken to authorise or effect any
of the foregoing by, the Borrower or the Guarantor,
otherwise than for the purposes of reconstruction or
amalgamation on terms approved by the Lender (such
approval not to be unreasonably withheld or
delayed);
(f) (receiver): a receiver or receiver and manager, official
manager, trustee, or similar officer is appointed over all or
any substantial part of the assets or undertaking of the
Borrower or the Guarantor and the Borrower or the Guarantor
(as the case may be) cannot reasonably satisfy the Lender
within twenty Business Days, or such longer period as the
Lender shall agree, that such appointment is frivolous or
vexatious or has been or will be stayed or withdrawn or
discharged;
(g) (Security Interests): any Security Interest over any of the
assets of the Borrower or the Guarantor becomes enforceable
or is enforced, in each case, in respect of an amount which
is in excess of US$20,000,000 (or an equivalent amount in
another currency) and is not discharged or satisfied within
twenty Business Days (or such longer period as the Lender may
agree) of becoming enforceable or being enforced;
(h) (execution): a distress, attachment or other execution (other
than one which is frivolous or vexatious) is levied or
enforced upon or against any asset of the Borrower or the
Guarantor in respect of an amount which is in excess of
US$20,000,000 (or an equivalent amount in another currency)
and is not paid out or satisfied or stayed within twenty
Business Days of its levy or enforcement or such longer
period as the Lender may agree;
(i) (cessation of business): the Borrower or the Guarantor ceases
or threatens to cease to carry on business or stops payment
generally;
21
(j) (reduction of capital): the Borrower or the Guarantor reduces
or attempts to reduce its issued share capital (excluding
reserves) otherwise than as permitted by law;
(k) (insolvency): the Borrower or the Guarantor is unable to pay
its debts when they fall due;
(l) (arrangement with creditors): the Borrower or the Guarantor
enters into or resolves to enter into any arrangement,
composition or compromise with or assignment for the benefit
of its creditors generally or any class of its creditors or
proceedings are commenced to sanction any such arrangement,
composition or compromise other than for the purposes of a
reconstruction or amalgamation on terms approved by the
Lender (such approval not to be unreasonably withheld or
delayed);
(m) (revocation of Authorisation): any Authorisation of a
Governmental Agency which is essential to the performance by
the Borrower or the Guarantor of its obligations under this
Agreement or the CSR Guarantee (as the case may be) or for
the validity and enforceability of this Agreement is
repealed, revoked or terminated or expires and is not
replaced by another sufficient Authorisation within twenty
Business Days or such later period as the Lender may agree;
(n) (subsidiary): the Borrower ceases to be a Subsidiary of the
Guarantor; or
(o) (CSR Guarantee): the CSR Guarantee is not, or at any time
ceases to be, the valid and binding obligation of the
Guarantor,
then in any such event, and at any time subsequently and while such
event is subsisting, the Lender may by notice to the Borrower:
(A) declare all moneys owing under this Agreement to be
immediately due and payable whereupon such moneys shall be
deemed to be due and payable and the Borrower shall
immediately repay the Principal Outstanding together with
accrued interest and fees and all such other moneys due under
this Agreement; and/or
(B) cancel the Commitment.
17 INTEREST ON OVERDUE AMOUNTS
17.1 The Borrower shall on demand by the Lender from time to time pay
interest on all amounts due and payable by it under or in relation to
this Agreement and unpaid (including interest payable under this
Clause) in US$.
17.2 Such interest shall accrue from day to day from the due date up to but
excluding the date of actual payment, before and (as a separate and
independent obligation) after judgment at the Default Rate, and the
Clause 9.3 basis of calculation of interest shall apply.
22
18 FEES
18.1 Commitment fee
(a) The Borrower will pay to the Lender a commitment fee of [ ]%
per annum on the daily amount of the Undrawn Commitment (if
any).
(b) The commitment fee shall be calculated on the actual number
of days elapsed and on the basis of a year of 360 days.
(c) Accrued commitment fees shall be payable in arrears on the
last Business Day of each calendar quarter and in any case on
the Repayment Date.
18.2 Establishment fee
On the date of execution of this Agreement, the Borrower will
pay to the Lender an establishment fee of US$[ ].
19 INDEMNITIES
The Borrower shall indemnify the Lender against any reasonable loss,
cost or expense the Lender may sustain or incur as a consequence of:
(a) the occurrence of any Event of Default;
(b) a Segment requested in a Drawdown Notice not being borrowed
for any reason (including, without limitation, failure to
fulfil any condition precedent) other than any default by the
Lender; or
(c) the Lender receiving payments of principal in respect of any
Segment other than on the last day of a Funding Period
relating to that Segment for any reason within the reasonable
control of the Borrower other than as a result of prepayment
in accordance with this Agreement and default by the Lender.
20 CURRENCY INDEMNITY
Whenever:
(a) any amount payable by the Borrower under or in respect of
this Agreement is received or recovered by the Lender in a
currency (the "Payment Currency") other than US$ for any
reason (including without limitation as a result of any
judgment or order or the liquidation of the Borrower or any
proof or claim in connection with that liquidation); and
(b) the amount actually received by the Lender in accordance with
its normal practice by converting the Payment Currency into
US$ is less than the relevant amount of US$,
then the Borrower shall as an independent obligation indemnify the
Lender on demand against the deficiency.
23
21 EXPENSES
The Borrower shall on demand reimburse the Lender:
(a) for its reasonable legal expenses in connection with the
review and execution of this Agreement and the CSR Guarantee
up to a maximum amount of A$ (Australian Dollars) 5,000; and
(b) for the reasonable expenses of the Lender in connection with
the enforcement of, or the preservation of any rights under,
this Agreement and the CSR Guarantee, including in each case
reasonable legal costs and expenses.
22 STAMP DUTIES
22.1 The Borrower shall pay and indemnify the Lender against all stamp,
transaction, registration and similar Taxes payable in Australia or
the United States of America (including fines and penalties other than
fines and penalties incurred as a result of delay or default by the
Lender), except those which would not otherwise have been payable in
relation to the execution of this Agreement or the CSR Guarantee and
for which liability to pay arises by reason of any act or omission of
the Lender (other than the bringing of this Agreement into New York or
the bringing of the CSR Guarantee into New South Wales for the
purposes of enforcing or preserving the Lender's rights thereunder or
if required by the law of those respective jurisdictions), which may
be payable or determined to be payable in connection with the
execution, delivery, performance or enforcement of this Agreement or
the CSR Guarantee or any payment or receipt or any other transaction
contemplated by this Agreement or the CSR Guarantee.
22.2 The Borrower shall indemnify the Lender on demand against any
liabilities resulting from the Borrower's delay or omission to pay the
Taxes required to be paid by the Borrower under Clause 22.1.
23 SET-OFF
23.1 If the Borrower fails to pay following a declaration under Clause
16(A), the Borrower authorises the Lender (but without obligation on
the part of the Lender) to apply any credit balance in any currency
(whether or not matured) in any of its accounts with any branch of the
Lender in or towards satisfaction of the amount due and payable by it
to the Lender under that clause and the Lender shall promptly notify
the Borrower of the details of any such set-off.
23.2 The Lender may effect such currency exchanges as are appropriate to
implement such set-off.
24 WAIVERS, REMEDIES CUMULATIVE
24.1 No failure to exercise and no delay in exercising any right, power or
remedy under this Agreement by the Lender or the Borrower shall
operate as a waiver, nor shall any single or partial exercise of any
right, power or remedy preclude any other or further exercise of that
or any other right, power or remedy.
24
24.2 The rights, powers and remedies provided to the Lender and to the
Borrower in this Agreement are cumulative and not exclusive of any
rights, powers or remedies provided by law.
25 SEVERABILITY OF PROVISIONS
Any provision of this Agreement which is prohibited or unenforceable
in any jurisdiction shall, as to that jurisdiction, be ineffective to
the extent of that prohibition or unenforceability but that shall not
invalidate the remaining provisions of this Agreement or affect that
provision in any other jurisdiction.
26 SURVIVAL OF REPRESENTATIONS AND INDEMNITIES
26.1 All representations and warranties in this Agreement shall survive the
execution and delivery of this Agreement and the provision of Segments
under this Agreement.
26.2 Each indemnity in this Agreement shall:
(a) be a continuing obligation;
(b) constitute a separate and independent obligation of the party
giving the indemnity from its other obligations under this
Agreement; and
(c) survive termination of this Agreement.
27 MORATORIUM LEGISLATION
To the full extent permitted by law, all legislation which at any time
directly or indirectly:
(a) lessens or otherwise varies or affects in favour of the
Borrower or the Guarantor any obligation under this
Agreement; or
(b) delays or otherwise prevents or prejudicially affects the
exercise by the Lender of any right, power or remedy
conferred by this Agreement.
is negatived and excluded from this Agreement.
28 ASSIGNMENTS
28.1 Assignment by Borrower
The Borrower may assign or transfer all or any of its rights or
obligations under this Agreement to a Related Body Corporate with the
prior written consent of the Lender, which consent shall not be
unreasonably withheld or delayed but may not otherwise assign or
transfer to any other party.
28.2 Assignment by Lender
The Lender at any time may assign or transfer all or any of its rights
or obligations under this Agreement to a Related Body Corporate with
the prior written consent of the Borrower and the Guarantor, which
consent shall not be unreasonably withheld or delayed, or, subject to
the Lender notifying the Borrower prior to any approach to a
25
potential assignee or transferee, to another bank or financial
institution with the prior written consent of the Borrower and the
Guarantor, but in each such case any such assignment or transfer shall
not release the Lender from any obligations or liabilities arising
under this Agreement or the CSR Guarantee prior to the date of such
assignment or transfer. In no event may the Lender sub-participate its
interest in any Segment or in this Agreement without the prior written
consent of the Borrower and the Guarantor.
28.3 Disclosure
The Lender may with the prior consent of the Borrower or the Guarantor
(as appropriate) (which shall not unreasonably be withheld or delayed)
disclose to a proposed assignee, or transferee or sub-participant
information relating to the Borrower or the Guarantor or furnished in
connection with this Agreement provided that the Lender procures that
any such person shall have first delivered to the Borrower and the
Guarantor a confidentiality undertaking in form and substance
reasonably acceptable to the Borrower and the Guarantor, provided
further that the provisions of this Clause 28.3 shall not apply to any
information in the public domain, otherwise than as a result of a
breach by the Lender of this Clause 28.3.
28.4 Change of Lending Office
The Lender may change its Lending Office with the prior written
consent of the Borrower and the Guarantor, which consent shall not be
unreasonably withheld or delayed.
28.5 No increased costs
Notwithstanding anything to the contrary in this Agreement, if the
Lender assigns or transfers its rights or obligations under this
Agreement or changes its Lending Office, the Borrower shall not be
required to pay any increase in the aggregate amount of costs, Taxes,
fees or charges which is a direct or indirect consequence of the
assignment or transfer or change of its Lending Office, including,
without limitation, any stamp duty or other Taxes referred to in
Clause 22 (Stamp Duties).
29 NOTICES
All notices, notifications, requests, demands, consents, approvals,
agreements or other communications to or by a party to this Agreement
shall:
(a) if to the Lender or the Borrower, be copied to the Guarantor;
(b) be in writing addressed to the recipient as follows or as
otherwise may be notified to the sender:
(i) if to the Borrower, at:
▇▇▇▇▇▇ Materials Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ OF AMERICA
26
Attention: Chief Financial Officer
Facsimile: ▇▇ (▇▇▇) ▇▇▇ ▇▇▇▇
cc the Guarantor
(ii) if to the Lender, at:
[***]
Attention: [***]
Facsimile: [***]
cc the Guarantor
(iii) if to the Guarantor, at:
CSR Limited
▇▇▇▇▇ ▇, ▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇
Attention: The Treasurer
Facsimile: ▇▇▇ (▇) ▇▇▇▇ ▇▇▇▇
(c) be signed by an Authorised Officer of the sender; and
(d) be deemed to be duly given or made:
(i) (in the case of delivery in person or by post) when
delivered to the recipient at such address; or
(ii) (in the case of facsimile transmission) on receipt
by the sender of the OK transmission report showing
the correct number of pages as having been
transmitted,
but if such delivery or receipt is later than 5.00 p.m.
(local time) on a day on which business is generally carried
on in the place to which such communication is sent, it shall
be deemed to have been given or made at the commencement of
business on the next such day in that place.
30 AUTHORISED OFFICERS
In absence of written notice to the contrary, each party authorises
the other to rely on a certificate by any person purporting to be a
director or secretary of the other as to the identity and signatures
of its Authorised Officers and warrants that those persons have been
authorised to give notices and communications under or in connection
with this Agreement.
27
31 GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by, and construed in accordance with,
the laws of the State of New York applicable to agreements made and to
be performed entirely within that State. The Borrower agrees that any
action or proceeding against it relating in any way to this Agreement
or any of the transactions contemplated hereby may be brought and
enforced in the courts of the State of New York or of the United
States for the Southern District of New York and the Borrower
irrevocably submits to the non-exclusive jurisdiction of each such
court in respect of any such action or proceeding. Nothing herein is
intended to be, or shall be deemed to constitute, a general submission
to the jurisdiction of any such court or a submission to such
jurisdiction in any action or proceeding except as expressly set forth
in the immediately preceding sentence.
32 COUNTERPARTS
This Agreement may be executed in any number of counterparts. All of
such counterparts taken together shall be deemed to constitute the one
instrument. Exchange by facsimile of executed counterparts thereof
shall be effective for all purposes.
33 AMENDMENTS
This Agreement may not be amended varied or modified in any respect
except by written instrument signed by each party.
IN WITNESS the parties have executed this Agreement
SIGNED for and on behalf of
▇▇▇▇▇▇ MATERIALS CORPORATION by
its duly authorised signatories
in the presence of:
-------------------------------------------
Authorised Signatory
---------------------------------- -------------------------------------------
Witness Authorised Signatory
SIGNED for and on behalf of
[***] by its duly authorised
signatory in the presence of:
---------------------------------- -------------------------------------------
Witness Authorised Signatory
28
ANNEXURE A
DRAWDOWN NOTICE
To: [ ]
cc CSR Limited Fax No. + ▇▇ (▇) ▇▇▇▇ ▇▇▇▇
364 DAY COMMITTED LOAN FACILITY - DRAWDOWN NOTICE
We refer to the Loan Facility Agreement dated ______July 2002 (the
"Agreement").
Pursuant to Clause 4 of the Agreement:
(1) we give you irrevocable notice that we wish to draw on ___________
20__ (the "Drawdown Date".
(2) the aggregate principal amount to be drawn is [ ]
(3) particulars of each Segment are as follows:
Principal Drawdown Funding
Amount Date Period
(4) we request that the proceeds of the same be remitted to account number
_______ at _______.
Expressions defined in the Agreement have the same meaning when used in this
Drawdown Notice.
For and on behalf of
▇▇▇▇▇▇ MATERIALS CORPORATION
By: [Authorised Officer]
Dated: , 20__ .
NB THE LENDER SHALL NOTIFY THE BORROWER AND THE GUARANTOR OF THE INTEREST RATE
FOR EACH FUNDING PERIOD AS SOON AS IT IS ASCERTAINED.
29
ANNEXURE B
SELECTION NOTICE
To: [ ]
cc CSR Limited Fax No. + ▇▇ (▇) ▇▇▇▇ ▇▇▇▇
364 DAY COMMITTED LOAN FACILITY - SELECTION NOTICE
We refer to the Loan Facility Agreement dated _______July 2002 (the
"Agreement").
Pursuant to Clause 5 of the Agreement:
(1) we give you irrevocable notice that we wish to continue [a
Segment/Segments] on _______, 20______;
(2) particulars of [each/the] Segment requested are as follows:
Principal Selection Funding
Amount Date Period
Expressions defined in the Agreement have the same meaning when used in this
Selection Notice.
For and on behalf of
▇▇▇▇▇▇ MATERIALS CORPORATION
By: [Authorised Officer]
Dated: ____________, 20__.
NB THE LENDER SHALL NOTIFY THE BORROWER AND THE GUARANTOR OF THE INTEREST RATE
FOR EACH FUNDING PERIOD AS SOON AS IT IS ASCERTAINED.
30
ANNEXURE C
REPAYMENT NOTICE
To: [ ]
cc CSR Limited Fax No. + ▇▇ (▇) ▇▇▇▇ ▇▇▇▇
364 DAY COMMITTED LOAN FACILITY - REPAYMENT NOTICE
We refer to the Loan Facility Agreement dated ________ July 2002 (the
"Agreement").
Pursuant to Clause 8.3 of the Agreement we give you irrevocable notice that we
wish to repay the following [Segment/Segments] on the following [date/dates]:
Principal Last Day of Funding
Amount Period
Expressions defined in the Agreement have the same meaning when used in this
Repayment Notice.
For and on behalf of
▇▇▇▇▇▇ MATERIALS CORPORATION
By: [Authorised Officer]
Dated: ____________, 20__.
31
ANNEXURE D
CSR GUARANTEE
CSR LIMITED
ABN 90 ▇▇▇ ▇▇▇ ▇▇▇
(Guarantor)
and
[***]
(Lender)
CSR GUARANTEE
GIVEN IN RELATION TO A
US$[ ]
REVOLVING
LOAN FACILITY AGREEMENT
364 DAYS
FOR
▇▇▇▇▇▇ MATERIALS CORPORATION
32
CONTENTS
Clause Page
------ ----
1 DEFINITIONS AND INTERPRETATIONS 33
2 GUARANTEE 36
3 REPRESENTATIONS AND WARRANTIES 40
4 UNDERTAKINGS 42
5 CURRENCY INDEMNITY 44
6 SET OFF 44
7 WAIVERS, REMEDIES CUMULATIVE 45
8 SEVERABILITY OF PROVISIONS 45
9 SURVIVAL OF REPRESENTATIONS AND INDEMNITIES 45
10 MORATORIUM LEGISLATION 45
11 TAXATION 45
12 ASSIGNMENTS 46
13 NOTICES 47
14 AUTHORISED OFFICERS 48
15 GOVERNING LAW AND JURISDICTION 48
16 COUNTERPARTS 48
17 AMENDMENTS 48
18 GOODS AND SERVICES TAX 48
33
CSR GUARANTEE
THIS AGREEMENT is made the day of July, 2002
BETWEEN CSR LIMITED (ABN 90 ▇▇▇ ▇▇▇ ▇▇▇) of ▇▇▇▇▇ ▇, ▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ (the "Guarantor")
AND [***] of [***], United States of America (the "Lender")
WHEREAS
The Borrower (as defined below) requested the Lender to provide it with
financial accommodation. The Lender agreed to do so. The Borrower is a
Subsidiary of the Guarantor. In consideration of the Lender agreeing to provide
financial accommodation to the Borrower, the Guarantor agrees to guarantee the
obligations of the Borrower to the Lender.
NOW IT IS AGREED as follows:
1 DEFINITIONS AND INTERPRETATIONS
1.1 Definitions
When used in this Agreement the following terms shall have the
following meanings unless the context otherwise requires:
"Authorisation" includes:
(a) any consent, authorisation, registration, filing, agreement,
notarisation, certificate, permission, licence, approval,
authority or exemption from, by or with a Governmental
Agency; or
(b) the expiry of the specified period during which a
Governmental Agency by law may intervene or act, but does not
do so, to prohibit or restrict in whole or part anything in
respect of this Agreement.
"Authorised Officer" means:
(a) in respect of the Guarantor, any person who is a director,
principal executive officer, secretary, assistant secretary,
general manager corporate strategy, treasurer or attorney of
the Guarantor or any person from time to time nominated as an
Authorised Officer by the Guarantor by notice to the Lender
signed by two Authorised Officers, such notice to be
accompanied by certified copies of signatures of all persons
so appointed; and
(b) in respect of the Lender, any person whose title of office
includes the word "Senior Vice President" or "Vice President"
or cognate expressions (including any person acting in any
such office) or any secretary or director and the Guarantor
shall be entitled to assume that any person purporting to
hold such office does hold such office.
34
"Borrower" means ▇▇▇▇▇▇ Materials Corporation.
"Business Day" means a day, other than a Saturday or a Sunday or
gazetted public holidays, on which banks are open for business New
York City and Sydney.
"Drawdown Notice" means a notice given or to be given in accordance
with Clause 4 of the Loan Facility Agreement.
"Event of Default" means any of the events specified in Clause 16 of
the Loan Facility Agreement.
"Excluded Tax" means any Tax imposed by any jurisdiction on the net
income or capital gains of the Lender as a consequence of the Lender
being a resident of or organised or doing business in that
jurisdiction, but excluding any Tax:
(a) which is calculated on or by reference to the gross amount of
any payment (without the allowance of any deduction) under
this Agreement; or
(b) which is imposed as a result of the Lender being considered a
resident of or organised or doing business in that
jurisdiction solely as a result of it being a party to this
Agreement.
"Financial Indebtedness" means any indebtedness (other than trade
credit in the ordinary course of business) in respect of moneys
borrowed or raised or any financial accommodation whatsoever including
(without limiting the generality of the foregoing) under or in respect
of any ▇▇▇▇, acceptance, endorsement, bond, note, debenture or other
similar debt security, guarantee, redeemable share (where such share
is redeemable prior to the Repayment Date as that term is defined in
the Loan Facility Agreement), discounting arrangement, finance or
capital lease, hire purchase of any asset or service, any obligation
to deliver goods or provide services paid for in advance by any
financier or in relation to any other financing transaction.
"Governmental Agency" means any government or any governmental,
semi-governmental or judicial entity, authority or agency.
"GST" has the meaning given to it in A New Tax System (Goods and
Services Tax) ▇▇▇ ▇▇▇▇ of Australia.
"Guarantee" means any guarantee, indemnity, letter of credit, letter
of comfort giving rise to legal liabilities of suretyship, or any
other legal obligation;
(a) to pay or provide funds for the payment or discharge of; or
(b) to indemnify against the consequences of default in the
payment of;
any obligation or indebtedness of any other person.
"Guaranteed Moneys" means all moneys which the Borrower is or at any
time becomes actually liable to pay to or for the account of the
Lender on any account whatsoever under or in relation to the Loan
Facility Agreement including, without limitation, by way of principal,
interest, fees, costs, indemnities, charges, duties or expenses under
or in relation to the Loan Facility Agreement.
35
"Liquidation" means official management, winding up and dissolution,
assignment for the benefit of creditors or scheme of arrangement or
compromise with creditors or anything analogous under the laws of the
United States of America or any state or territory thereof.
"Loan Facility Agreement" means the Loan Facility Agreement dated on
or about the date of this Agreement between the Borrower and the
Lender.
"Material Adverse Effect" means a material adverse effect upon the
ability of the Guarantor to perform its obligations under Clause 2.1
of this Agreement.
"Related Body Corporate" has the meaning given in the Corporations ▇▇▇
▇▇▇▇ of Australia.
"Repayment Date" has the meaning given to that term in the Loan
Facility Agreement.
"Security Interest" includes any mortgage, pledge, lien (other than
one arising in the ordinary course of business or by operation of law)
or charge or any security or preferential interest or arrangement of
any kind, or any other right of or arrangement with any creditor to
have its claims satisfied prior to other creditors (other than
priority accorded by statute or a right of set-off) with, or from the
proceeds of, any asset and any deposit of money by way of security but
excluding any charge or lien arising in favour of any Governmental
Agency by operation of statute.
"Selection Notice" means a notice given in accordance with Clause 5 of
the Loan Facility Agreement.
"Subsidiary" has the meaning given in the Corporations ▇▇▇ ▇▇▇▇ of
Australia.
"Tax" includes any tax, levy, impost, deduction, charge, rate, duty,
compulsory loan or withholding which is levied or imposed by a
Governmental Agency, together with any interest, penalty (other than a
penalty incurred as a result of the delay or default of the Lender),
charge, fee or other amount imposed or made on or in respect of any of
the foregoing, and "Taxation" shall be construed accordingly.
"US$" means the lawful currency of the United States of America.
1.2 Interpretation
In this Agreement headings are for convenience only and shall not
affect interpretation and except to the extent that the context
otherwise requires:
(a) references to any legislation or to any provision of any
legislation include any modification or re-enactment of, or
any legislative provision substituted for, and all statutory
instruments issued under, such legislation or such provision;
(b) words denoting the singular include the plural and vice
versa;
(c) words denoting individuals include corporations and vice
versa;
(d) words denoting any gender include all genders;
36
(e) references to Clauses, Annexures and Schedules are references
to clauses, annexures and schedules of this Agreement;
(f) references to any document or agreement (including this
Agreement) include references to such document or agreement
as amended, novated, supplemented or replaced from time to
time;
(g) references to any party to this Agreement or any other
document or agreement include its successors or permitted
substitutes or assigns; and
(h) "writing" and cognate expressions include all means of
reproducing words in a tangible and permanently visible form.
2 GUARANTEE
2.1 Guarantee
The Guarantor unconditionally and irrevocably guarantees that if the
Lender makes a declaration under Clause 16A of the Loan Facility
Agreement, the Guarantor will pay the Lender, immediately following
receipt of written demand for such payment by the Lender to the
Guarantor, an amount equal to the Guaranteed Moneys due and payable as
at the date of the payment by the Guarantor in the same manner and
currency as the Borrower is required to pay that amount under the Loan
Facility Agreement.
2.2 Unconditional nature of obligation
The liability of the Guarantor under Clause 2.1 shall not be affected
by anything which but for this provision might operate to release or
otherwise exonerate it from its obligations in whole or in part,
including, without limiting the generality of the foregoing:
(a) the grant to the Borrower of any time, waiver or other
indulgence, or the discharge or release of the Borrower but
the Guarantor shall have the benefit of any such waiver or
indulgence;
(b) any transaction or arrangement that may take place between
the Lender and the Borrower;
(c) the Liquidation of the Borrower;
(d) the Lender making or not making any demand on the Borrower or
exercising or refraining from exercising its rights under any
other Security Interest or Guarantee in respect of the
Guaranteed Moneys or any rights, powers or remedies against
the Borrower;
(e) the extinguishment, unenforceability, failure, loss, release,
discharge, abandonment or transfer either in whole or in part
and either with or without consideration of the Loan Facility
Agreement or of any other Security Interest or Guarantee in
respect of the Guaranteed Moneys now or in the future held by
the Lender from the Borrower or by the taking of or failure
to take any such Security Interest or Guarantee;
37
(f) the failure or omission by the Borrower or the Lender to give
notice to the Guarantor of any default by the Borrower under
the Loan Facility Agreement or of any of the foregoing;
(g) the Lender obtaining a judgment against the Borrower for the
payment of any of the Guaranteed Moneys; or
(h) any legal limitation, disability, incapacity or other
circumstances related to the Borrower,
(i) whether with or without the consent of the Guarantor.
2.3 Independent obligation
This Clause 2 shall be an independent obligation and shall not be
treated as ancillary or collateral to any other right or obligation.
2.4 No marshalling
The Lender shall not be under any obligation to ▇▇▇▇▇▇▇▇ or
appropriate in favour of the Guarantor or to exercise, apply or
recover any Security Interest or Guarantee (including without
limitation this Agreement) now or in the future held by it or any of
the funds or assets that it may be entitled to receive or have a claim
upon.
2.5 No competition
Until the Guaranteed Moneys have been irrevocably paid and discharged
in full, the Guarantor:
(a) shall not be entitled on any grounds whatsoever:
(i) to claim the benefit of any Security Interest or
Guarantee now or in the future held by the Lender
for the payment of all or part of the Guaranteed
Moneys;
(ii) to make a claim or enforce a right (including a
Security Interest) against the Borrower; or
(iii) either directly or indirectly to prove in, claim or
receive the benefit of any distribution, dividend or
payment arising out of or relating to the
Liquidation of the Borrower, and the receipt of any
distribution, dividend or other payment by the
Lender out of or relating to such Liquidation shall
not prejudice the right of the Lender to recover the
Guaranteed Moneys from the Borrower and the
Guarantor provided that the aggregate of the amounts
so received or recovered does not exceed the amount
of the Guaranteed Moneys; and
(b) waives its rights to be subrogated to the Lender.
38
2.6 Suspense account
In the event of the Liquidation of the Borrower, and until the Lender
has been paid in full in respect of the Guaranteed Moneys, the Lender:
(a) may prove for all moneys which the Guarantor shall have paid
under this Clause for the account of the Lender in relation
to the Borrower; and
(b) shall retain and carry into a suspense account and
appropriate in payment of the Guaranteed Moneys any dividends
received in the Liquidation of the Borrower and all other
moneys received in respect of the Guaranteed Moneys
including, without limitation, those received under this
Clause),
and any amount received by the Lender in excess of the Guaranteed
Moneys shall be repaid to the Guarantor.
2.7 Rescission of payment
Whenever, during the currency of this Agreement, a claim that all or
part of any payment by the Borrower under the Loan Facility Agreement
or by the Guarantor under this Agreement is void or voidable is upheld
by a court of competent jurisdiction or is conceded by the Lender in
its reasonable discretion and in respect thereof the Lender has
demanded payment from the Borrower and the Borrower has failed to pay
by the due date;
(a) the Lender shall upon written demand to the Guarantor become
entitled against the Guarantor to all rights in respect of
those moneys as it would have had if all or that part of the
payment as is upheld or conceded to be void or voidable had
not taken place;
(b) the Guarantor shall forthwith take such reasonable steps
including signing such documents as may be necessary to
restore to the Lender any rights held by it under this
Agreement in respect of those moneys immediately prior to
such void or voidable payment; and
(c) in addition to the other moneys recoverable by it from the
Guarantor under this Agreement, the Lender shall be entitled
to recover from the Guarantor all reasonable costs and
expenses whatsoever (including legal costs and expenses)
reasonably incurred by it in relation to any proceedings
relating to any such claim.
2.8 Variation
This guarantee shall extend to cover the Loan Facility Agreement as
amended, varied, extended, replaced, novated or assigned:
(a) in respect of the parties, principal amount (including,
without limitation, an increase in the limit or maximum
principal amount), interest rate, term, representations and
warranties, undertakings or events of default, if with the
prior written consent of the Guarantor; and
(b) in any other case, whether with or without the consent of the
Guarantor.
39
2.9 Continuing guarantee
This Agreement:
(a) shall be a continuing guarantee and indemnity and shall
remain in full force and effect until the Guaranteed Moneys
have been paid in full; and
(b) shall not be considered as wholly or partially discharged by
the payment at any time of any of the Guaranteed Moneys or by
any settlement of account in respect of the Guaranteed Moneys
until the Guaranteed Moneys have been paid in full; and
(c) shall be reinstated if at any time any payment to the Lender
by the Borrower under the Loan Facility Agreement or by the
Guarantor under this Agreement is rescinded or must otherwise
be returned, in whole or in part, upon the insolvency,
bankruptcy or reorganisation of the Borrower or the Guarantor
or otherwise, all as though such payment had not been made.
2.10 Indemnity against avoidance of Guaranteed Moneys
(a) If any of the Guaranteed Moneys (or any moneys which, if
recoverable from the Borrower under the Loan Facility
Agreement, would have formed part of the Guaranteed Moneys)
are irrecoverable from the Borrower and those moneys are not
recoverable from the Guarantor by the Lender on the footing
of this Agreement, then and in each such case:
(i) the Guarantor as a separate and additional liability
shall indemnify the Lender in respect of those
moneys;
(ii) the Guarantor shall pay for the account of the
Lender, immediately following written demand for
such payment by the Lender, a sum equal to the
amount of those moneys; and
(iii) for the purposes of this indemnity this Clause shall
be construed as if those moneys were recoverable.
(b) Paragraph (a) applies to any of the Guaranteed Moneys (or any
moneys which, if recoverable from the Borrower under the
terms of the Loan Facility Agreement, would have formed part
of the Guaranteed Moneys) which are irrecoverable from the
Borrower:
(i) whether by reason of any legal limitation,
disability or incapacity of or affecting the
Borrower;
(ii) whether or not any of the relevant matters or facts
were or ought to have been within the knowledge of
the Lender;
(iii) whether the transactions or any of them relating to
those moneys were void or illegal or have been
subsequently avoided; and
(iv) whether by reason of any other fact or circumstance
whatsoever other than delay or default by the
Lender.
40
2.11 Judgment
Any judgment against the Borrower in respect of the Loan Facility
Agreement shall be conclusive as against the Guarantor, subject to any
appeal.
2.12 Lender's obligations
The Lender agrees to perform its obligations under the Loan Facility
Agreement in respect of the Guarantor provided that nothing in this
Clause affects the obligations of the Guarantor under this Agreement,
including, without limitation, its unconditional obligations under
Clause 2.1.
2.13 Certificate
A certificate signed by an Authorised Officer of the Lender and
delivered by the Lender to the Guarantor certifying the amount due
from the Borrower under the Loan Facility Agreement as at the date of
that certificate shall be prima facie evidence of the amount due from
the Borrower thereunder as at that date.
3 REPRESENTATIONS AND WARRANTIES
3.1 Representations and warranties
The Guarantor makes the following representations and warranties for
the benefit of the Lender.
(a) (Status): It is a corporation validly existing under the
Corporations ▇▇▇ ▇▇▇▇ of Australia.
(b) (Corporate power): It has the corporate power to enter into
and perform its obligations under this Agreement and to carry
out the transactions contemplated by this Agreement.
(c) (Corporate authorisations): It has taken all necessary
corporate action to authorise the entry into and performance
of this Agreement and the transactions contemplated by this
Agreement.
(d) (Agreement binding): This Agreement constitutes its valid and
binding obligation enforceable in accordance with its terms,
subject to applicable bankruptcy, insolvency, liquidation or
similar laws of general application and equitable principles
and remedies.
(e) (Transactions permitted): Neither the execution and
performance by it of this Agreement nor any transaction
contemplated by or under this Agreement will violate in any
respect any provision of:
(i) any law or treaty or any judgment, ruling, order or
decree of any Governmental Agency binding on it;
(ii) its constitution; or
(iii) any other document or agreement which is binding
upon it or its assets,
41
and, except as may be provided by this Agreement, to its
knowledge and belief, did not and will not result in:
(iv) the creation or imposition of any Security Interest
on any of its assets under any of the foregoing
which would have a Material Adverse Effect; or
(v) the acceleration of any obligation or cancellation
of any right of it with respect to any Financial
Indebtedness, or anything which constitutes (or
which, with the giving of notice and/or lapse of
time would constitute) an event of default under any
agreement relating to Financial Indebtedness, in
each case to an extent which would have a Material
Adverse Effect.
(f) (Accounts):
(i) Its most recent audited accounts and the notes
thereto give a true and fair view of its state of
affairs and results as at the date and for the
period to which they relate;
(ii) Those accounts have been prepared in accordance with
accounting principles and practices generally
accepted in Australia, consistently applied, except
to the extent of departures disclosed in those
accounts and notes thereto or in the auditor's
report attached to those accounts.
(g) (No litigation): Subject to matters disclosed in its accounts
and the notes thereto and information in press releases
issued or notifications given to any stock exchange by the
Borrower or the Guarantor and any other information notified
in writing to the Lender by the Borrower or the Guarantor
from time to time, no litigation, arbitration, tax claim,
dispute or administrative proceeding is presently current or
pending or, to its knowledge, threatened, which, if adversely
determined, would have a Material Adverse Effect.
(h) (No default): It is not in default for non-payment (subject
to any grace period, waiver or any indulgence whatsoever) of
any Financial Indebtedness in an amount in excess of
US$20,000,000 (or an equivalent amount in another currency)
under any document or agreement binding on it or it is
contesting in good faith its liability for such Financial
Indebtedness and to its knowledge nothing has occurred which
is or would with the giving of notice and/or lapse of time
constitute an event of default under any such document or
agreement in circumstances where such default for non-payment
or occurrence, as the case may be, would have a Material
Adverse Effect.
(i) (Authorisations): All Authorisations, if any, obtainable and
required in connection with the execution, delivery or
performance by it and the validity and enforceability of this
Agreement and the transactions contemplated by this Agreement
have been obtained or effected and are in full force and
effect.
(j) (Subsidiary): The Borrower is a Subsidiary of the Guarantor.
42
(k) (Material adverse changes): Since the date of its latest
audited accounts there has been no change in its state of
affairs and results which would have a Material Adverse
Effect.
3.2 Deemed Repeated
Each of the representations and warranties contained in this Clause
shall be deemed to be repeated by the Guarantor at the date of any
Drawdown Notice or Selection Notice by reference to the facts and
circumstances then subsisting.
4 UNDERTAKINGS
4.1 General undertakings
The Guarantor undertakes to the Lender as follows, except to the
extent that the Lender otherwise consents in writing:
(a) (Corporate reporting and information): It will furnish to the
Lender:
(i) (annual accounts): as soon as practicable (and in
any event not later than 120 days) after the close
of each of its financial years copies of its audited
consolidated and unconsolidated statement of
financial position and statement of financial
performance;
(ii) (semi-annual accounts): as soon as practicable (and
in any event not later than 90 days) after the first
half of each of its financial years a copy of its
unaudited accounts in respect of that half year as
delivered to the Australian Stock Exchange; and
(iii) (other information): such other information (other
than information which in its reasonable opinion it
requires to keep confidential) in relation to its
financial condition or business as the Lender may
reasonably request.
(b) (Accounting principles): It will ensure that each statement
of financial position and statement of financial performance
furnished by it to the Lender under paragraph (a)(i) shall:
(i) be prepared in accordance with accounting principles
and practices generally accepted in Australia
consistently applied except to the extent of
departures disclosed in those accounts or in the
auditor's report attached to those accounts; and
(ii) give a true and fair view of its state of affairs
and results as at the date and for the period to
which they relate.
(c) (Authorisations): It will use all reasonable endeavours to
ensure that all Authorisations obtainable and required for
the validity, enforceability and performance of its
obligations under this Agreement are obtained and maintained
in full force and effect.
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(d) (Notice to Lender): It will give notice to the Lender as soon
as it becomes aware of the occurrence of any Event of
Default.
(e) (Negative pledge): It will not create, permit or suffer to
exist, without the prior consent of the Lender, which consent
shall not be unreasonably withheld or delayed, any Security
Interest over all or any of its assets if the aggregate
amount from time to time outstanding thereunder represents,
more than ten per cent (10%) of the value of its total assets
(as disclosed in its latest audited accounts), disregarding:
(i) liens arising by operation of law in the ordinary
course of business;
(ii) any Security Interest existing at the time of
acquisition on any asset acquired by it after the
date of this Agreement and not created in
contemplation of the acquisition provided that there
is no increase in the amount of the principal moneys
secured by that Security Interest;
(iii) any Security Interest created on any asset or group
of associated assets acquired by it at arms' length
from an unrelated party or developed by it after the
date of this Agreement:
(A) for the sole purpose of financing or
refinancing that acquisition or
development; and
(B) securing principal moneys not exceeding one
hundred per cent (100%) of the cost of that
acquisition or development;
(iv) any Security Interest on an asset in substitution
for an existing Security Interest on that asset in
connection with the refinancing of the borrowed
money secured on that asset provided there is no
increase in the amount of the principal moneys
secured by that Security Interest;
(v) any Security Interest in the nature of a project
cross-charge to secure only the performance of its
obligations to the other joint venturers in the
project;
(vi) any Security Interest existing at the date of this
Agreement provided there is no increase in the
amount of the principal moneys secured by that
Security Interest;
(vii) any rights by way of reservation or retention of
title which are required by the supplier of any
property to the Guarantor in the ordinary course of
business;
(viii) any rights of set-off arising in the ordinary course
of business or by operation of law;
(ix) any lien in respect of judgment debt against the
Guarantor provided that stay of execution in respect
thereof has been obtained or adequate reserves have
been provided in respect thereof;
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(x) any Security Interest which the Guarantor is
required to create by any applicable law or is
required or considers it necessary or expedient to
create to obtain any governmental or regulatory
consent, approval, authority, licence, permission or
exemption; and
(xi) any statutory charge in favour of any Governmental
Agency,
and without in any such case at the same time extending to
the Lender equally and rateably, the same such Security
Interest (or its equivalent as the Lender shall reasonably
require).
(f) (Corporate existence): It will do all things necessary to
maintain its corporate existence.
(g) (Pari Passu): It will ensure that its obligations under this
Agreement rank and will continue to rank at least pari passu
with all its other unsecured and unsubordinated obligations,
other than obligations preferred by operation of law.
4.2 Term of undertakings
Each undertaking in this Clause shall continue from the date of this
Agreement until the Guaranteed Moneys are fully and finally repaid.
5 CURRENCY INDEMNITY
Whenever:
(a) any amount payable by the Guarantor under or in respect of
this Agreement is received or recovered by the Lender in a
currency (the "Payment Currency") other than US$ for any
reason (including without limitation as a result of any
judgment or order or the liquidation of the Guarantor or any
proof or claim in connection with that liquidation); and
(b) the amount actually received by the Lender in accordance with
its normal practice by converting the Payment Currency into
US$ is less than the relevant amount of US$,
then the Guarantor shall, as an independent obligation, indemnify the
Lender on demand against the deficiency.
6 SET OFF
6.1 If the Guarantor fails to pay following a demand in accordance with
Clause 2.1 of this Agreement, the Guarantor authorises the Lender (but
without obligation on the part of the Lender) to apply any credit
balance in any currency (whether or not matured) in any of its
accounts with any branch of the Lender in or towards satisfaction of
the amount due and payable by it to the Lender under that clause and
the Lender shall promptly notify the Guarantor of the details of any
such set-off.
6.2 The Lender may effect such currency exchanges as are appropriate to
implement such set-off.
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7 WAIVERS, REMEDIES CUMULATIVE
7.1 No failure to exercise and no delay in exercising any right, power or
remedy under this Agreement by the Lender or the Guarantor shall
operate as a waiver, nor shall any single or partial exercise of any
right, power or remedy preclude any other or further exercise of that
or any other right, power or remedy.
7.2 The rights, powers and remedies provided to the Lender and to the
Guarantor in this Agreement are cumulative and not exclusive of any
rights, powers or remedies provided by law.
8 SEVERABILITY OF PROVISIONS
Any provision of this Agreement which is prohibited or unenforceable
in any jurisdiction shall, as to that jurisdiction, be ineffective to
the extent of that prohibition or unenforceability but that shall not
invalidate the remaining provisions of this Agreement or affect that
provision in any other jurisdiction.
9 SURVIVAL OF REPRESENTATIONS AND INDEMNITIES
9.1 All representations and warranties in this Agreement shall survive the
execution and delivery of this Agreement.
9.2 Each indemnity in this Agreement shall:
(a) be a continuing obligation;
(b) constitute a separate and independent obligation of the party
giving the indemnity from its other obligations under this
Agreement; and
(c) survive termination of this Agreement.
10 MORATORIUM LEGISLATION
To the full extent permitted by law, all legislation which at any time
directly or indirectly:
(a) lessens or otherwise varies or affects in favour of the
Guarantor any obligation under this Agreement; or
(b) delays or otherwise prevents or prejudicially affects the
exercise by the Lender of any right, power or remedy
conferred by this Agreement,
is negatived and excluded from this Agreement.
11 TAXATION
11.1 Additional Payments
Whenever the Guarantor is required by law to make a deduction or
withholding in respect of Tax from any payment to be made under this
Agreement, then it shall:
46
(a) promptly pay the amount deducted or withheld on the date that
Tax is due to be paid to the appropriate Governmental Agency;
(b) if requested by the Lender, within twenty Business Days of
that request deliver to the Lender official receipts, if any,
received by the Guarantor or other documentation of the
Guarantor evidencing payment of that amount; and
(c) if and to the extent that such Tax is not an Excluded Tax,
pay the Lender such additional amounts as necessary to ensure
that the Lender receives when due a net amount (after payment
of any Taxes in respect of such additional amounts) in US$
equal to the full amount which it would have received had a
deduction or withholding not been made;
provided however that if the Guarantor is required, or is likely to be
required, to make payment to the Lender pursuant to paragraph (c), the
Lender and the Guarantor shall negotiate in good faith with a view to
determining whether there is any action which may be taken to avoid or
minimise the Guarantor's obligation to make such deduction in such
manner as will not increase the cost to the Lender.
11.2 Tax Credits
If the Guarantor is required by law to pay any additional amount
pursuant to Clause 11.1 and the Lender in its reasonable opinion, is
able to apply for or otherwise to take advantage of any offsetting tax
credit, rebate or other similar tax benefit arising out of or in
connection with the deduction or withholding giving rise to the
obligation to pay such additional amount, the Lender will give notice
thereof to the Guarantor and the Lender shall take such steps as it
may in its reasonable discretion determine to obtain that credit,
rebate or benefit and will, upon receipt thereof, reimburse to the
Guarantor the amount of that credit, rebate or benefit as it in its
reasonable opinion determines is allocable to that deduction or
withholding. Nothing in this Clause shall require the Lender to
disclose to the Guarantor any information regarding its tax affairs.
12 ASSIGNMENTS
12.1 Assignment by Guarantor
The Guarantor shall not assign or transfer all or any of its rights or
obligations under this Agreement without the prior written consent of
the Lender.
12.2 Assignment by Lender
The Lender at any time may assign or transfer all or any of its rights
or obligations under this Agreement to a Related Body Corporate with
the prior written consent of the Guarantor, which consent shall not be
unreasonably withheld or delayed, or, subject to the Lender notifying
the Guarantor prior to any approach to a potential assignee or
transferee, to another bank or financial institution with the prior
written consent of the Guarantor, but any such assignment or transfer
will not release the Lender from any obligations or liabilities under
this Agreement or the Loan Facility Agreement arising prior to the
date of such assignment or transfer.
47
12.3 Disclosure
The Lender may with the prior consent of the Guarantor (which shall
not unreasonably be withheld or delayed) disclose to a proposed
assignee, or transferee or sub-participant information relating to the
Guarantor or furnished in connection with this Agreement provided that
the Lender procures that any such person shall have first delivered to
the Borrower and the Guarantor a confidentiality undertaking in form
and substance reasonably acceptable to the Borrower and the Guarantor,
provided further that the provisions in this Clause 12.3 shall not
apply to any information in the public domain, otherwise than as a
result of a breach by the Lender of this Clause 12.3.
12.4 No increased costs
Notwithstanding anything to the contrary in this Agreement, if the
Lender assigns or transfers its rights or obligations under this
Agreement, neither the Guarantor nor the Borrower shall be required to
pay any increase in the aggregate amount of costs, Taxes, fees or
charges which is a direct or indirect consequence of the assignment or
transfer, including, without limitation, any stamp duty or other Taxes
referred to in Clause 22 (Stamp Duties) of the Loan Facility
Agreement.
13 NOTICES
All notices, notifications, requests, demands, consents, approvals,
agreements or other communications to or by a party to this Agreement
shall:
(a) be in writing addressed to the recipient as follows or as
otherwise notified to the sender:
(i) if to the Lender, at
[***]
United States of America
Attention: [***]
Facsimile: [***]
(ii) if to the Guarantor, at
CSR Limited
▇▇▇▇▇ ▇
▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇
Attention: The Treasurer
Facsimile: (▇▇ ▇) ▇▇▇▇ ▇▇▇▇
(b) be signed by an Authorised Officer of the sender; and
48
(c) be deemed to be duly given or made:
(i) (in the case of delivery in person or by post) when
delivered to the recipient at such address; or
(ii) (in the case of facsimile transmission) on receipt
by the sender of the OK transmission report showing
the correct number of pages as having been
transmitted,
but if such delivery or receipt is later than 5.00 pm (local
time) on a day on which business is generally carried on in
the place to which such communication is sent, it shall be
deemed to have been given or made at the commencement of
business on the next such day in that place.
14 AUTHORISED OFFICERS
In absence of written notice to the contrary, each party authorises
the other to rely on a certificate by any person purporting to be a
director, principal executive officer, secretary, assistant secretary,
general manager corporate strategy, treasurer or attorney of the
Guarantor or by any person purporting to be a director or secretary of
the Lender as to the identity and signatures of its Authorised
Officers and warrants that those persons have been authorised to give
notices and communications under or in connection with this Agreement.
15 GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by the laws of New South Wales and
each of the Lender and the Guarantor submits to the non-exclusive
jurisdiction of its courts.
16 COUNTERPARTS
This Agreement may be executed in any number of counterparts. All of
such counterparts taken together shall be deemed to constitute the one
instrument. Exchange by facsimile or executed counterparts thereof
shall be effective for all purposes.
17 AMENDMENTS
This Agreement may not be amended varied or modified in any respect
except by written instrument signed by each party.
18 GOODS AND SERVICES TAX
If GST applies to any supply made under or in connection with this
Agreement the supplier may, subject to providing a valid tax invoice
identifying the GST on each component of the goods and/or services
and/or things supplied, adjust the amount payable for the goods and/or
services and/or things to recover from the recipient an additional
amount on account of GST, such amount not to exceed the amount of the
supplier's liability for GST in respect of the goods and/or services
and/or things supplied and to be recoverable from the recipient at the
same time as the amount payable for the goods and/or services and/or
things.
49
IN WITNESS the parties have executed this Agreement.
SIGNED by CSR LIMITED CSR LIMITED by its Attorneys who
by its Attorneys: respectively state that at the date of
their execution hereof they have had no
notice of the revocation of the Power of
and Attorney dated 9 September, 1999
Registered No. 229 Book 4253 under the
authority of which they have executed
in my presence this instrument
---------------------------------- -------------------------------------------
Witness Attorney
-------------------------------------------
Attorney
SIGNED for and on behalf of [***]
by its duly authorised signatory
in the presence of:
-------------------------------------------
Authorised Signatory
----------------------------------
Witness
50
ANNEXURE E
OPINION OF ALLENS ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
[date]
To [***]
Dear
CSR GUARANTEE
We have acted for [***] in connection with the CSR Guarantee dated [ ]
between CSR Limited (the GUARANTOR) and [***] (the GUARANTEE).
Definitions in the Guarantee apply in this opinion but DOCUMENT means a
document listed in paragraph 1(a), (b) or (c) below and RELEVANT JURISDICTION
means the Commonwealth of Australia or New South Wales.
No assumption or qualification in this opinion limits any other assumption or
qualification in it.
1. DOCUMENTS
We have examined the following documents:
(a) an executed counterpart dated [ ] of the Guarantee;
(b) a certified copy of the constitution of the Guarantor; and
(c) executed powers of attorney in connection with the execution
of the Guarantee by the Guarantor.
2. ASSUMPTIONS
For the purposes of giving this opinion we have assumed the following.
(a) The authenticity of all seals and signatures and of any duty
stamp or marking.
(b) The completeness, and the conformity to original instruments,
of all copies submitted to us, and that any document (other
than a Document) or Authorisation submitted to us continues
in full force and effect.
(c) The Documents are within the capacity and powers of, and have
been validly authorised, executed and delivered by and are
binding on, the parties to them other than the Guarantor.
(d) The Guarantor enters each Document to which it is a party and
carries out the transactions contemplated in the Documents
for its benefit and for the purposes of its business.
51
(e) No entity has engaged or will engage in misleading or
unconscionable conduct or is or will be involved in or a
party to any relevant transaction or any associated activity
in a manner or for a purpose not evident on the face of the
Documents which might render the Documents or any relevant
transaction or associated activity in breach of law, void or
voidable.
(f) Each Document will be duly stamped in each jurisdiction where
stamp duty is payable.
3. QUALIFICATIONS
Our opinion is subject to the following qualifications.
(a) We express no opinion as to any laws other than the laws of
each Relevant Jurisdiction as in force at the date of this
opinion.
(b) Our opinion that an obligation or document is enforceable
means that the obligation or document is of a type and form
which courts in the Relevant Jurisdictions enforce. It does
not mean that the obligation or document can necessarily be
enforced in accordance with its terms in all circumstances.
In particular:
(i) equitable remedies, such as injunction and specific
performance, are discretionary; and
(ii) the enforceability of an obligation, document or
Security Interest may be affected by statutes of
limitation, by estoppel, waiver and similar
principles, by the doctrine of frustration, by laws
concerning insolvency, bankruptcy, liquidation,
administration, enforcement of Security Interests or
reorganisation, or by other laws generally affecting
creditors' or counterparties' rights or duties.
(c) We have relied on a search of public records of the
Australian Securities and Investments Commission on [***]. We
note that records disclosed by such search may not be
complete or up to date.
(d) We have relied on the assumptions specified in s129 of the
Corporations ▇▇▇ ▇▇▇▇ and note that you may do so unless you
knew or suspected that the assumption was incorrect.
(e) Any provision that certain calculations, determinations or
certificates will be conclusive and binding will not apply if
those calculations, determinations or certificates are
fraudulent or manifestly inaccurate.
52
(f) Any clause providing for severability may not be enforceable
in accordance with its terms, as a court may reserve to
itself a decision as to whether any provision is severable.
(g) The obligation of a party under a Document to pay interest on
overdue amounts at a rate higher than the rate applying
before the amount fell due may be held to constitute a
penalty and be unenforceable.
(h) We express no opinion on any provision in any Document
requiring written amendments and waivers insofar as it
suggests that oral or other modifications, amendments or
waivers could not be effectively agreed on or granted between
or by the parties.
(i) The courts might not give full effect to an indemnity for
legal costs or for penalties on Taxes.
(j) A judgment by a court may be given in some cases only in
Australian dollars.
(k) Purported waivers of statutory rights or agreements not to
▇▇▇ or agreements to agree or negotiate or consult may not be
enforceable.
4. OPINION
Based on the assumptions and subject to the qualifications set out
above we are of the following opinion.
(a) The Guarantor is incorporated in Australia.
(b) The Guarantor has the corporate power to enter into and
perform its obligations under the Guarantee.
(c) The execution, delivery and performance by the Guarantor of
the Guarantee did not and will not violate in any respect any
existing provision of:
(i) any law of any Relevant Jurisdiction; or
(ii) its constitution.
(d) The Guarantee constitutes legal, valid and binding
obligations of the Guarantor enforceable in competent courts
of the Relevant Jurisdictions.
(e) All Authorisations under the laws of any Relevant
Jurisdiction now obtainable and required in connection with
the execution, delivery, performance, validity or
enforceability of the Guarantee have been obtained or
effected and are in full force and effect.
(f) No stamp or registration or similar taxes or charges are
payable under the laws of any Relevant Jurisdiction in
connection with the execution, delivery,
53
performance and enforcement of the Guarantee or any
transaction contemplated by them other than nominal duty and
debits tax.
(g) It is not necessary under the laws of any Relevant
Jurisdiction to file, register or record the Guarantee.
This opinion is addressed to you for your sole benefit. It is not to
be relied on by any other person or for any other purpose. It is not
to be quoted or referred to in any public document or filed with or
disclosed to any Government Agency or other person other than:
(a) to the extent required by law or an official directive;
(b) in connection with any litigation relating to a Document or
this opinion; or
(c) with our consent, which we will not withhold unreasonably.
Yours faithfully