EXHIBIT 10.40
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CLAYTON UTZ
Loan Agreement
Australian Railroad Group Pty Ltd
Borrower
Australia and New Zealand Banking Group Limited
Lender
Clayton Utz Lawyers
Levels 22-35 No. 1 O'Connell Street Sydney NSW 2000 Australia
PO Box H3 Australia Square Sydney NSW 1215
T + 61 2 9353 4000 F + 61 2 8220 6700
WWW.CLAYTONUTZ.COM
Liability limited by the Solicitors Scheme, approved under the Professional
Standards Act 1994 (NSW) and by our Terms of Engagement
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TABLE OF CONTENTS
1. DEFINITIONS AND INTERPRETATION....................................................................... 1
1.1 Definitions.............................................................................. 1
1.2 Interpretation........................................................................... 4
1.3 Margin................................................................................... 4
1.4 Finance Document......................................................................... 6
2. THE FACILITIES....................................................................................... 7
2.1 Commitments.............................................................................. 7
2.2 Purpose.................................................................................. 7
2.3 Termination.............................................................................. 8
3. ADDITIONAL ADVANCE AND ACKNOWLEDGMENT OF DEBT........................................................ 8
4. DRAWDOWN............................................................................................. 8
4.1 Notice................................................................................... 8
4.2 Contents of Drawdown Notice.............................................................. 8
4.3 Requirements of Drawdown Notice.......................................................... 9
4.4 Maximum Number of Revolving Advances and Working Capital Advances........................ 9
5. LETTERS OF CREDIT.................................................................................... 10
5.1 Issue of Letters of Credit............................................................... 10
5.2 Counter-Indemnity from Borrower.......................................................... 10
5.3 Unconditional nature of Borrower's obligations........................................... 11
5.4 Cash Cover............................................................................... 12
6. CONDITIONS PRECEDENT................................................................................. 12
6.1 Conditions precedent to the first Utilisation............................................ 12
6.2 Conditions precedent to all Utilisation.................................................. 12
7. REPAYMENT AND PREPAYMENTS............................................................................ 12
7.1 Repayment of Revolving Advances and Working Capital Utilisations......................... 12
7.2 Repayment of Term Advances............................................................... 13
7.3 Pro-rata Repayments...................................................................... 13
7.4 Other Repayments and Prepayments......................................................... 14
8. INTEREST............................................................................................. 14
8.1 Interest Periods......................................................................... 14
8.2 Calculation of interest.................................................................. 14
8.3 Payment of interest...................................................................... 15
8.4 Default interest......................................................................... 15
9. FEES................................................................................................. 15
9.1 Establishment fee........................................................................ 15
9.2 Commitment Fee........................................................................... 15
9.3 Letter of Credit......................................................................... 16
i.
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10. PAYMENTS............................................................................................. 16
11. LENDER'S RIGHTS ON EVENT OF DEFAULT.................................................................. 16
12. PUBLIC OFFER......................................................................................... 17
12.1 Borrower's representations............................................................... 17
12.2 Lenders' representations and warranties.................................................. 17
12.3 Information.............................................................................. 17
12.4 Legal Restrictions....................................................................... 17
13. ASSIGNMENTS.......................................................................................... 17
13.1 Assignments by the Lender................................................................ 17
13.2 Assignments by the Borrower.............................................................. 18
14. GOVERNING LAW AND JURISDICTION....................................................................... 18
15. NO REPRESENTATION BY OR RELIANCE ON THE LENDER....................................................... 18
16. GENERAL.............................................................................................. 19
16.1 Collection of Borrower's information by the Lender....................................... 19
16.2 Borrower's information held by the Lender................................................ 19
16.3 Personal information about someone other than the Borrower............................... 19
16.4 Anti Money Laundering.................................................................... 20
SCHEDULE 1.................................................................................................. 21
SCHEDULE 2 - FORM OF LETTER OF CREDIT........................................................................ 25
SCHEDULE 3 - TRANSACTIONAL FACILITIES........................................................................ 27
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LOAN AGREEMENT MADE ON 2003
PARTIES AUSTRALIAN RAILROAD GROUP PTY LTD ABN 68 080 579 308
("BORROWER")
AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED, ABN 11 005
357 522 ("LENDER")
OPERATIVE PROVISIONS
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
For the purposes of this Agreement terms used in this Agreement will
have the meanings given in or for the purposes of the Common Terms Deed
unless otherwise defined below or specified in this Agreement and the
following definitions apply:
"2007 LETTER OF CREDIT" means the Letter of Credit with number
847629189-3 issued by the Lender, at the request of the Borrower, in
favour of ANZ Capel Court Limited having a face value of $1,429,727 and
an expiry date of 12 December 2007.
"ADVANCE" means a Working Capital Advance, a Revolving Advance, a
Tranche A Term Advance or a Tranche B Term Advance.
"AVAILABILITY PERIOD" means:
(a) in relation to the Working Capital Facility, the period from
and including the date of this Agreement to and including the
Working Capital Termination Date;
(b) in relation to the Revolving Facility, the period from and
including the date of this Agreement to and including the date
falling 30 days prior to the Revolving Termination Date; and
(c) in relation to the Tranche A Term Facility and the Tranche B
Term Facility, the period from and including the date of this
Agreement to and including 31 December 2003.
"BASE RATE" for a period means:
(a) the average bid rate displayed at or about 10.30 am (Sydney
time) on the first day of that period on the Reuters screen
BBSY page for a term equivalent to that period (or, where the
relevant period is an Interest Period, if that Interest Period
is subject to marginal adjustment, for a term equivalent to
that period prior to such adjustment); or
(b) if for any reason the rate referred to at paragraph (a) of
this definition is not displayed for a term equivalent to the
relevant period then the Base Rate will be the rate determined
by the Lender to be the average of the buying rates quoted to
the Lender by 3 leading banks in the Australian market, as
determined by the Lender, at or about that time on that date.
The buying rates must be for bills of exchange accepted by a
leading Australian bank and which have a term equivalent to
that period.
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Rates will be expressed as a yield percent per annum to maturity.
"COMMITMENT" means the Working Capital Commitment, the Revolving
Facility Commitment, the Tranche A Term Facility Commitment or the
Tranche B Term Facility Commitment.
"COMMON TERMS DEED" means the deed so entitled dated on or about the
date of this Agreement between the Borrower, the companies listed in
Part I of Schedule 1 as original guarantors, the financial institutions
listed in Part II of Schedule 1 as original lenders and ANZ Capel Court
Limited, as Security Trustee.
"DRAWDOWN DATE" means the date on which a Utilisation is made or, where
the context requires, is proposed to be made.
"DRAWDOWN NOTICE" means a notice given under clause 4.1 substantially
in the form set out in Part I of Schedule 1.
"EXPIRY DATE" in relation to a Letter of Credit means the earlier of:
(a) the date stated in the Letter of Credit to be its expiry date;
and
(b) the latest date on which demand may be made under the Letter
of Credit.
"FACILITY" means the Working Capital Facility, the Revolving Facility,
the Tranche A Term Facility or the Tranche B Term Facility.
"INTEREST RATE" for each Interest Period means the aggregate of the
applicable Base Rate and the applicable Margin.
"LETTER OF CREDIT" means a letter of credit issued or to be issued
under the Working Capital Facility.
"LONG TERM DEBT" means, in relation to any person, unsecured senior
debt (in dollars) issued by that person with a term of more than 12
months.
"MARGIN" has the meaning set out in clause 1.3.
"MOODY'S" means Moody's Investors Service Inc. or any of its
Subsidiaries and their successors.
"PRIVACY ACT" means the Privacy Act 1998 (Commonwealth).
"REVOLVING ADVANCE" means a loan made or to be made under the Revolving
Facility or the principal amount outstanding for the time being of that
loan.
"REVOLVING FACILITY" means the revolving loan facility made available
under this Agreement, as described in clause 2.1(a)(ii).
"REVOLVING FACILITY COMMITMENT" means $43,000,000 to the extent not
cancelled or reduced under the Finance Documents.
"REVOLVING TERMINATION DATE" means the earlier of:
(a) the date which is the fifth anniversary of Financial Close or
any other date agreed in writing between the Lender and the
Borrower; and
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(b) any date on which the Revolving Facility is terminated or
cancelled in accordance with the Finance Documents.
"SELECTION NOTICE" means a notice given under clause 8.1(a)
substantially in the form set out in Part II of Schedule 1.
"STANDARD & POOR'S" means Standard & Poor's Rating Services, a division
of The McGraw-Hill Companies, Inc., or any of its Subsidiaries and
their successors.
"TERMINATION DATE" means the Working Capital Termination Date, the
Revolving Termination Date, the Tranche A Term Termination Date or the
Tranche B Term Termination Date.
"TRANCHE A TERM ADVANCE" means a loan made or to be made under the
Tranche A Term Facility or the principal amount outstanding for the
time being of that loan.
"TRANCHE A TERM FACILITY" means the 5 year term loan facility made
available under this Agreement, as described in clause 2.1(a)(iii).
"TRANCHE A TERM FACILITY COMMITMENT" means $26,000,000 to the extent
not cancelled or reduced under the Finance Documents.
"TRANCHE A TERM TERMINATION DATE" means the earlier of:
(a) the date which is the fifth anniversary of Financial Close or
any other date agreed in writing between the Lender and the
Borrower; and
(b) any date on which the Tranche A Term Facility is terminated or
cancelled in accordance with the Finance Documents.
"TRANCHE B TERM ADVANCE" means a loan made or to be made under the
Tranche B Term Facility or the principal amount outstanding for the
time being of that loan.
"TRANCHE B TERM FACILITY" means the 7 year term loan facility made
available under this Agreement, as described in clause 2.1(a)(iv).
"TRANCHE B TERM FACILITY COMMITMENT" means $41,000,000 to the extent
not cancelled or reduced under the Finance Documents.
"TRANCHE B TERM TERMINATION DATE" means the earlier of:
(a) the date which is the seventh anniversary of Financial Close
or any other date agreed in writing between the Lender and the
Borrower; and
(b) any date on which the Tranche B Term Facility is terminated or
cancelled in accordance with the Finance Documents.
"UNFUNDED COMMITMENT" means the aggregate of the "Facility limits"
specified in Schedule 3, amended from time to time by agreement between
the parties.
"UTILISATION" means an Advance or Working Capital Utilisation by the
issue of a Letter of Credit.
"WORKING CAPITAL ADVANCE" means a loan made or to be made under the
Working Capital
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Facility or the principal amount outstanding for the time being of that
loan.
"WORKING CAPITAL FACILITY" means the working capital facility made
available under this Agreement, as described in clause 2.1(a)(i).
"WORKING CAPITAL COMMITMENT" means $10,000,000 to the extent not
cancelled or reduced under the Finance Documents.
"WORKING CAPITAL TERMINATION DATE" means the earlier of:
(a) the date which is the first anniversary of Financial Close or
any other date agreed in writing between the Lender and the
Borrower; and
(b) any date on which the Working Capital Facility is terminated
or cancelled in accordance with the Finance Documents.
"WORKING CAPITAL UTILISATION" means each utilisation under the Working
Capital Facility or, where the context requires, the principal amount
of that utilisation outstanding.
1.2 INTERPRETATION
Clause 1.2 of the Common Terms Deed applies in this Agreement as if all
references in that clause to "this Deed" were to "this Agreement".
1.3 MARGIN
(a) If, at any time the Long Term Debt of the Borrower or any
other Obligor is rated by Standard & Poor's, Moody's or
another reputable credit rating agency of similar standing
approved by the Lender, the Margin will be determined in
accordance with clauses 1.3(b) to 1.3(f).
(b) The Margin for any Interest Period will be determined on the
basis of the credit rating of the Borrower's Long Term Debt on
the first day of that Interest Period and in accordance with
the following table, provided that if the Borrower has
obtained a credit rating from either Standard & Poor's or
Moody's but not both, only that rating will be used to
determine the Margin or if ratings are obtained from both
Standard & Poor's and Moody's and those ratings are not
equivalent to one another, the Margin will be determined on
the basis of the lower rating:
MOODY'S LONG TERM DEBT S&P'S LONG TERM DEBT
CREDIT RATING CREDIT RATING MARGIN (PERCENTAGE PER ANNUM)
- ----------------------------------------------------------------------------------------------------------
FOR THE TRANCHE
A TERM FACILITY FOR THE WORKING
AND REVOLVING FOR THE TRANCHE CAPITAL
FACILITY B TERM FACILITY FACILITY
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> or = A3 > or = A- [ *** ]% [ *** ]% [ *** ]%
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> or = Baa1 and A3 > or = BBB+ and < A- [ *** ]% [ *** ]% [ *** ]%
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MOODY'S LONG TERM DEBT S&P'S LONG TERM DEBT
CREDIT RATING CREDIT RATING MARGIN (PERCENTAGE PER ANNUM)
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FOR THE TRANCHE
A TERM FACILITY FOR THE WORKING
AND REVOLVING FOR THE TRANCHE CAPITAL
FACILITY B TERM FACILITY FACILITY
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> or = Baa2 and Baa1 > or = BBB and < BBB+ [ *** ]% [ *** ]% [ *** ]%
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> or = Baa3 and Baa2 >or = BBB- and < BBB [ *** ]% [ *** ]% [ *** ]%
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< Baa3 < BBB- [ *** ]% [ *** ]% [ *** ]%
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(c) For the purposes of this clause 1.3, a rating will be taken to
have occurred on the date on which the relevant credit rating
agency publicly announces that rating. The Borrower will
promptly notify the Lender when a rating is publicly announced
as contemplated by this clause 1.3(c).
(d) If the Borrower has not obtained a credit rating from Standard
& Poor's or Moody's but has obtained a rating from another
reputable credit rating agency of similar standing approved by
the Lender at its absolute discretion, a reference to a credit
rating in clauses 1.3(b) to 1.3(f) will be taken to be an
equivalent rating by that other ratings agency, as determined
by the Lender, unless and until a credit rating is obtained
from either or both of Standard & Poor's and Moody's, in which
case the relevant rating will be that of Standard & Poor's or
Moody's or both as the case may be.
(e) If at any time the Long Term Debt of the Borrower is not rated
and at that time the Long Term Debt of another Obligor is
rated then references in clauses 1.3(b) to 1.3(d) to the
credit rating of the Long Term Debt of the Borrower will be
deemed to be references to the credit rating of the Long Term
Debt of that other Obligor.
(f) Nothing in this clause 1.3 imposes an obligation on the
Borrower to procure that any member of the Group obtains a
credit rating for their Long Term Debt.
(g) (i) At all times that the Long Term Debt of the Borrower
or any other Obligor is not rated by Standard &
Poor's, Moody's or another reputable credit rating
agency of similar standing approved by the Lender,
the Margin will be determined in accordance with this
clause 1.3(g).
(ii) Subject to clauses 1.3(g)(iii) and 1.3(g)(iv) the
Margin for any Interest Period will be determined on
the basis of the Interest Cover Ratio as specified in
the Compliance Certificate issued on the first date
of that Interest Period or last issued prior to that
date in accordance with the following table:
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INTEREST COVER RATIO MARGIN (PERCENTAGE PER ANNUM)
- ----------------------------------------------------------------------------
FOR THE TRANCHE
A TERM FACILITY FOR THE
AND REVOLVING TRANCHE B FOR THE WORKING
FACILITY TERM FACILITY CAPITAL FACILITY
- ----------------------------------------------------------------------------
> or = 4.5:1 [ *** ]% [ *** ]% [ *** ]%
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> or = 4.0:1 < 4.5:1 [ *** ]% [ *** ]% [ *** ]%
- ----------------------------------------------------------------------------
> or = 3.5:1 < 4.0:1 [ *** ]% [ *** ]% [ *** ]%
- ----------------------------------------------------------------------------
> or = 3.0:1 < 3.5:1 [ *** ]% [ *** ]% [ *** ]%
- ----------------------------------------------------------------------------
< 3.0:1 [ *** ]% [ *** ]% [ *** ]%
- ----------------------------------------------------------------------------
(iii) If a Compliance Certificate is not supplied within
the period required under the Common Terms Deed, the
Margin for the relevant Interest Period will be based
on an Interest Cover Ratio of <3.0:1.
(iv) For each Interest Period for the Tranche A Term
Facility, Tranche B Term Facility and Revolving
Facility commencing prior to the date on which the
first Compliance Certificate is issued in accordance
with clause 4.2 of the Common Terms Deed and for each
Interest Period for the Working Capital Facility
commencing prior to the date on which the Compliance
Certificate is issued for the Calculation Date of 30
June 2004 in accordance with clause 4.2 of the Common
Terms Deed the Margin will be:
A. for the Tranche A Term Facility and the
Revolving Facility, [ *** ]% per annum;
B. for the Tranche B Term Facility, [ *** ]%
per annum; and
C. for the Working Capital Facility, [ *** ]%
per annum.
1.4 FINANCE DOCUMENT
The Borrower and the Lender agree that this Agreement is a "Finance
Document" for the purposes of the Common Terms Deed and, without
limiting the other rights of the Lender, that the Lender, in entering
into this Agreement and performing its obligations under this
Agreement, has the benefit of the representations and warranties and
undertakings given by the Borrower and each other Obligor under the
Common Terms Deed.
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2. THE FACILITIES
2.1 COMMITMENTS
(a) Subject to the terms of the Finance Documents, the Lender
agrees to make available to the Borrower:
(i) a dollar working capital facility in an aggregate
amount equal to the Working Capital Commitment;
(ii) a dollar revolving loan facility in an aggregate
amount equal to the Revolving Facility Commitment;
(iii) a dollar 5 year term loan facility in an aggregate
amount equal to the Tranche A Term Facility
Commitment; and
(iv) a dollar 7 year term loan facility in an aggregate
amount equal to the Tranche B Term Facility
Commitment.
(b) (i) The Borrower may from time to time request, and the
Lender may in its discretion agree to provide, within
the Unfunded Commitment the transactional banking
facilities specified in Schedule 3, in accordance
with the terms and conditions for those transactional
banking facility referred to in Schedule 3, together
with such other transactional banking facilities from
time to time agreed between the parties.
(ii) On reaching agreement under clause 2.1(b)(i) in
respect of any transactional banking facility, the
terms and conditions on which that facility is
provided will be deemed to be incorporated into and
to form part of this Agreement.
(iii) Subject to clause 2.1(b)(iv), the Lender, in
providing transactional banking facilities on the
terms of this clause 2.1(b) and performing its
obligations in respect of them, has the benefit of
the representations and warranties and undertakings
given by the Borrower and each other Obligor under
the Common Terms Deed.
(iv) The parties agree that the Unfunded Commitment and
the obligations of the Borrower to the Lender from
time to time in respect of the transactional banking
facilities provided in accordance with this clause
2.1(b) will not be taken into consideration in making
any determination of the Majority Lenders for the
purposes of the Common Terms Deed.
2.2 PURPOSE
(a) The Borrower may only apply Working Capital Utilisations
towards financing the ongoing working capital and general
corporate funding requirements of the Group and the Excluded
Subsidiaries.
(b) The Borrower may only apply the amounts received by it under
the Revolving Facility towards refinancing the Project Finance
Facility, paying related fees and transaction costs and
financing the ongoing working capital and general corporate
funding requirements of the Group.
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(c) The Borrower may only apply the amounts received by it under
the Tranche A Term Facility and the Tranche B Term Facility
towards refinancing the Project Finance Facility and paying
related fees and transaction costs.
(d) The Lender is not bound to monitor or verify the application
of any amount borrowed pursuant to this Agreement.
2.3 TERMINATION
(a) The Working Capital Facility terminates on the Working Capital
Termination Date.
(b) The Revolving Facility terminates on the Revolving Termination
Date.
(c) The Tranche A Term Facility terminates on the Tranche A Term
Termination Date.
(d) The Tranche B Term Facility terminates on the Tranche B Term
Termination Date.
3. ADDITIONAL ADVANCE AND ACKNOWLEDGMENT OF DEBT
(a) Notwithstanding any other provision of any Finance Document,
the Lender agrees to advance to the Borrower $10.00 on the
date of this Agreement, receipt of which amount is
acknowledged by the Borrower. The parties agree that no
interest will be payable on this advance amount and that,
notwithstanding any other provision of any Finance Document,
this amount must not be repaid until the Lender has received
payment in full and final settlement of all other amounts owed
to it under the Finance Documents and the Lender has no
further actual or contingent obligations under the Finance
Documents.
(b) The Borrower acknowledges that it is indebted to the Lender
for the principal amount of the Advances and the Outstanding
Liability Amount from time to time and the principal amount
advanced in accordance with clause 3(a).
4. DRAWDOWN
4.1 NOTICE
Subject to the terms of the Finance Documents, the Borrower may draw
down a Facility by giving written notice, in the form of a Drawdown
Notice signed by an authorised officer of the Borrower, of its
intention to do so to the Lender.
4.2 CONTENTS OF DRAWDOWN NOTICE
Each Drawdown Notice will specify:
(a) the Facility to be utilised and where the Working Capital
Facility is to be utilised, whether the Working Capital
Utilisation is a Working Capital Advance or a Working Capital
Utilisation by the issue of a Letter of Credit;
(b) the amount of the Utilisation (which, in respect of Advances
only, will not be less than $1,000,000 and will be an integral
multiple of $1,000,000);
(c) the proposed Drawdown Date, which must be a Business Day
during the Availability Period applicable to the relevant
Facility;
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(d) in the case of an Advance under the Working Capital Facility
or the Revolving Facility, the proposed Interest Period of the
Advance and in the case of an Advance under the Tranche A Term
Facility or the Tranche B Term Facility, the proposed initial
Interest Period of the Advance, which must in each case comply
with clause 8;
(e) in the case of a Working Capital Utilisation by the issue of a
Letter of Credit:
(i) its Expiry Date (being a date before the Working
Capital Termination Date);
(ii) the name and address of the beneficiary;
(iii) the beneficiary's receiving bank account;
(iv) reasonable details of the liabilities payment of
which is to be assured by the Letter of Credit; and
(v) the name of the member of the Group or the Excluded
Subsidiary in respect of whose obligations the Letter
of Credit is to be issued; and
(f) in the case of an Advance, payment instructions.
Only one Utilisation may be requested in each Drawdown Notice.
4.3 REQUIREMENTS OF DRAWDOWN NOTICE
Each Drawdown Notice will:
(a) be received by the Lender 3 Business Days before the proposed
Drawdown Date;
(b) be signed by a duly authorised officer of the Borrower;
(c) be irrevocable;
(d) not be given until the conditions precedent to a Utilisation
have been satisfied; and
(e) not be given if the making of the Utilisation requested would
cause the aggregate of the Utilisations then outstanding under
the relevant Facility to exceed the Commitment for that
Facility or otherwise would not comply with any term of the
Finance Documents.
4.4 MAXIMUM NUMBER OF REVOLVING ADVANCES AND WORKING CAPITAL ADVANCES
(a) The Borrower may not deliver a Drawdown Notice for a Revolving
Advance if as a result of the proposed Drawdown more than four
Revolving Advances would be outstanding.
(b) The Borrower may not deliver a Drawdown Notice under the
Working Capital Facility if as a result of the proposed
Drawdown more than six Working Capital Advances or Letters of
Credit would be outstanding.
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5. LETTERS OF CREDIT
5.1 ISSUE OF LETTERS OF CREDIT
(a) (FORM): Letters of Credit will be in the form of Schedule 2 or
any other form as approved by the Lender, acting reasonably.
(b) (ISSUE): Subject to the terms of the Finance Documents, on the
proposed Drawdown Date for any Working Capital Utilisation by
the issue of a Letter of Credit the Lender will issue the
Letter of Credit specified in the relevant Drawdown Notice by
delivering the same to or to the order of the beneficiary.
5.2 COUNTER-INDEMNITY FROM BORROWER
(a) (COUNTER INDEMNITY): The Borrower will indemnify and keep the
Lender indemnified from and against all liabilities, losses,
damages, claims, costs, demands and actions which the Lender
may suffer or incur in connection with any Letter of Credit
and any payment made pursuant to it, except to the extent that
any liability, loss, damage, claim, cost, demand or action
results from the Lender's fraud, gross negligence or wilful
misconduct.
(b) (NO INVESTIGATION): The Borrower irrevocably directs the
Lender to pay without further confirmation or investigation
from or by it any demand appearing or purporting to be validly
made pursuant to any Letter of Credit. Where any Letter of
Credit requires certificates or other documents to be
delivered by or on behalf of the beneficiary of that Letter of
Credit, the Lender may assume, without investigation, that the
certificates or documents tendered are duly signed by the
person by whom they appear to be signed and are genuine and
correct.
(c) (REIMBURSEMENT): Without prejudice to the rights under the
Uniform Customs and Practice for Documentary Credits (1993
Revision) (ICC Publication No. 500) (which will apply in
relation to all Letters of Credit issued under this
Agreement), the Borrower agrees to reimburse the Lender
immediately on written demand for any amounts paid by the
Lender pursuant to any demand, in the currency paid by the
Lender.
(d) (NO IMPAIRMENT): The obligations of the Borrower under this
clause 5.2 will not be impaired by:
(i) any waiver or time granted to or by the Lender;
(ii) any release or dealings with any rights or security
by the Lender (including under the Finance
Documents); or
(iii) any invalidity of any Letter of Credit or any other
circumstances which might impair such obligations.
(e) (NO SUBROGATION ETC): So long as any amount is or is capable
of becoming outstanding by any Obligor to the Lender under any
of the Finance Documents or any Commitment of the Lender is in
force, the Borrower will not by virtue of any payment made by
it under this clause 5.2 or by virtue of any realisation of
security made in respect of its obligations under this clause
5.2, claim or exercise any right of subrogation, contribution
or indemnity against any Obligor or any member of the
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Group in competition with the Lender.
(f) (BORROWER ULTIMATELY LIABLE): Notwithstanding that the
Borrower and the Lender may each be liable in respect of
indemnities given in relation to a Letter of Credit, as
between the Borrower and the Lender the Borrower is ultimately
liable so that it will not be entitled to any right of
indemnity or contribution from the Lender.
5.3 UNCONDITIONAL NATURE OF BORROWER'S OBLIGATIONS
(a) The obligations of the Borrower under this clause 5 are
absolute and unconditional and are not released or discharged
or otherwise affected by anything which but for this provision
might have that effect, including but not limited to:
(i) any set-off, deduction, counterclaim, agreement,
defence, suspension, deferment or other claim which
the Borrower may have against the Lender or any
beneficiary;
(ii) any falsity, inaccuracy, insufficiency or forgery of
or in any communication which on its face purports to
be a communication signed or authorised under this
Agreement or a Letter of Credit;
(iii) any communication inaccurately transmitted or
received or sent by an unauthorised person;
(iv) any impossibility or illegality of performance of
this Agreement or a Letter of Credit;
(v) any act of any Governmental Agency, court or
arbitrator or application of any law (present or
future) in any jurisdiction affecting any of the
terms of this Agreement or a Letter of Credit;
(vi) any failure by any person to obtain any Authorisation
or other approval or consent necessary or appropriate
in connection with this Agreement or a Letter of
Credit;
(vii) any falsity, inaccuracy, insufficiency or forgery of
or in any document presented to the Lender as a
document against which the Lender is required to make
a payment under the Letter of Credit or otherwise in
respect of a Letter of Credit and which appears to
the Lender in its opinion to correspond to the
documents specified in the Drawdown Notice requesting
the relevant Letter of Credit or otherwise required
under the relevant Letter of Credit; or
(i) this Agreement or a Letter of Credit, which is wholly
or partly void, voidable, unenforceable or invalid.
(b) The Lender is not liable for any failure, and is not required
to make any enquiries, in respect of any matter listed in
clause 5.3(a).
(c) Clauses 5.3(a) and 5.3(b) apply irrespective of:
(i) the consent or knowledge, or lack of consent or
knowledge, of the Lender, the Borrower or any other
person of any event described in clause 5.3(b); or
(ii) any rule of law or equity to the contrary.
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5.4 CASH COVER
If the Borrower provides cash cover to the Lender in respect of any
Letter of Credit the Lender agrees as follows:
(a) to hold that cash cover in an interest bearing account and
that the Borrower will be entitled to all interest payable on
that account;
(b) if the Outstanding Liability Amount in respect of the Letter
of Credit for which the cash cover is provided is reduced at
any time, to immediately refund to the Borrower an amount
equal to the difference between the cash cover held by the
Lender and the Outstanding Liability Amount immediately after
that reduction;
(c) to first apply the cash cover to meet any claim made by the
Lender under this clause 5 in relation to the Letter of Credit
for which the cash cover is provided prior to making any claim
on the Borrower in relation to that Letter of Credit; and
(d) to promptly return the cash cover (to the extent not applied
in accordance with clause 5.4(c)) to the Borrower on the
termination or expiry of the Letter of Credit for which the
cash cover is provided.
6. CONDITIONS PRECEDENT
6.1 CONDITIONS PRECEDENT TO THE FIRST UTILISATION
The obligation of the Lender to make the first Utilisation is subject
to Financial Close occurring.
6.2 CONDITIONS PRECEDENT TO ALL UTILISATION
The obligation of the Lender to make all Utilisations is subject to the
further conditions precedent that:
(a) (REPRESENTATIONS AND WARRANTIES TRUE): the Repeating Representations
are true and correct in all material respects as of the date of the
relevant Drawdown Notice with reference to the facts and circumstances
then existing; and
(b) (NO EVENT OF DEFAULT): no Event of Default or event or circumstance
which with the giving of notice and/or the expiry of time would be an
Event of Default is subsisting at the date of the relevant Drawdown
Notice or will result from the provision of the Utilisation.
7. REPAYMENT AND PREPAYMENTS
7.1 REPAYMENT OF REVOLVING ADVANCES AND WORKING CAPITAL UTILISATIONS
(a) Subject to clause 7.1(b), the Borrower will repay each
Revolving Advance and each Working Capital Advance on the last
day of its Interest Period.
(b) If on the last day of an Interest Period for a Revolving
Advance or Working Capital Advance (the "MATURING ADVANCE") a
new Revolving Advance or Working Capital Advance, as
applicable (the "NEW ADVANCE") is to be made to the Borrower
in accordance with the terms of this Agreement, then only an
amount
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equal to:
(i) the amount of the Maturing Advance; less
(ii) the amount of the New Advance,
is required to be paid by the Borrower to the Lender (if the
amount is a positive number) or by the Lender to the Borrower
(if the amount is a negative number).
(c) The Borrower will repay all outstanding Revolving Advances
plus all accrued interest and fees relating to the Revolving
Advances on the Revolving Termination Date.
(d) The Borrower will repay all outstanding Working Capital
Utilisations plus all accrued interest and fees relating to
the Working Capital Utilisations on the Working Capital
Termination Date.
7.2 REPAYMENT OF TERM ADVANCES
(a) The Borrower will repay to the Lender all Tranche A Term
Advances plus all accrued interest on the Tranche A Term
Advances on the Tranche A Term Termination Date.
(b) The Borrower will repay to the Lender all Tranche B Term
Advances plus all accrued interest on the Tranche B Term
Advances on the Tranche B Term Termination Date.
(c) The Borrower may not reborrow any part of the Tranche A Term
Facility or the Tranche B Term Facility which is prepaid or
repaid.
7.3 PRO-RATA REPAYMENTS
If any member of the Group incurs any Financial Indebtedness and the
Borrower intends to apply, or procure the application of, all or any
part of that Financial Indebtedness ("APPLICATION AMOUNT") to prepay
any of the obligations of the Borrower under the Finance Documents
other than pursuant to a Replacement, the Borrower must apply an amount
equal the Relevant Percentage of the Application Amount (or such
greater amount as determined by the Borrower) to prepay the Tranche B
Term Advances or, if the Tranche B Term Advances have been repaid or
prepaid in full, such other Advances as are determined by the Borrower.
For the purposes of this clause:
"REPLACEMENT" means the replacement of a Lender (as defined in the
Common Terms Deed) by substitution under clause 19 of the Common Terms
Deed or by prepayment in full of that Lender from the proceeds of the
Financial Indebtedness incurred on terms substantially the same as the
terms of the Loan Agreement to which that Lender is a party.
"RELEVANT PERCENTAGE" means, at any time, the aggregate of the Tranche
B Term Advances of the Lender at that time divided by the aggregate of
all equivalent advances provided by any Lender (as defined in the
Common Terms Deed) to the Borrower as at that time, expressed as a
percentage.
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7.4 OTHER REPAYMENTS AND PREPAYMENTS
The Borrower will make all repayments and prepayments to the Lender
required in accordance with clauses 9.1, 9.3(b) and 9.4 of the Common
Terms Deed.
8. INTEREST
8.1 INTEREST PERIODS
(a) The Borrower will select an Interest Period for a Working
Capital Advance or a Revolving Advance and the initial
Interest Period for a Tranche A Term Advance or a Tranche B
Term Advance in the Drawdown Notice for that Advance or, in
the case of a Tranche A Term Advance or a Tranche B Term
Advance that has already been borrowed, in a Selection Notice
signed by an authorised officer of the Borrower.
(b) Each Selection Notice for a Tranche A Term Advance or a
Tranche B Term Advance is irrevocable and must be delivered to
the Lender by the Borrower not later than 2 Business Days
before the commencement of the relevant Interest Period.
(c) Subject to this clause 8.1, the Borrower may select Interest
Periods of 1, 2, 3 or 6 months' duration or such other
duration agreed between the Borrower and the Lender.
(d) Each Interest Period in relation to a Tranche A Term Advance
or a Tranche B Term Advance is the period commencing on the
Drawdown Date for that Advance (in the case of the initial
Interest Period) or on the last day of the immediately
preceding Interest Period for that Advance (in the case of any
subsequent Interest Period).
(e) The Interest Period for each Revolving Advance and Working
Capital Advance is the period commencing on the Drawdown Date
for that Revolving Advance or Working Capital Advance, as
applicable, and each Revolving Advance and Working Capital
Advance has one Interest Period only.
(f) If the Borrower does not deliver a Selection Notice for a
Tranche A Term Advance or a Tranche B Term Advance to the
Lender in accordance with clause 8.1(a), the relevant Interest
Period will be 3 months.
(g) The term of each Interest Period is subject to any marginal
adjustment as the Lender, acting reasonably, determines so
that:
(i) the last day of that Interest Period is a Business
Day; and
(ii) no Interest Period for an Advance extends beyond the
Termination Date applicable to its Facility.
8.2 CALCULATION OF INTEREST
(a) The rate of interest for each Advance for each Interest Period
is the Interest Rate applicable to its Facility.
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(b) The Lender will promptly notify the Borrower of each
determination of an Interest Rate under this Agreement and
each determination of a default interest rate by the Lender
under clause 8.4 of this Agreement or clause 10 of the Common
Terms Deed.
8.3 PAYMENT OF INTEREST
The Borrower will pay to the Lender the accrued interest in relation to
each Advance in arrears on the last day of each Interest Period.
8.4 DEFAULT INTEREST
(a) If the Borrower fails to pay to the Lender any amount payable
by it under a Finance Document on its due date, interest will
accrue on the overdue amount from the due date up to the date
of actual payment (both before and after judgment) at a rate 2
per cent higher than the rate which would have been payable if
the overdue amount had, during the period of non-payment,
constituted an Advance under the Tranche A Term Facility by
the Lender (except for overdue amounts relating to Advances
under the Tranche B Term Facility, where the overdue amounts
will be deemed to constitute an Advance under the Tranche B
Term Facility) for successive Interest Periods, each of a
duration selected by the Lender (acting reasonably). Any
interest accruing under this clause 8.4 will be immediately
payable by the Borrower on demand by the Lender.
(b) Default interest (if unpaid) arising on an overdue amount will
be compounded with the overdue amount at the end of each
Interest Period applicable to that overdue amount but will
remain immediately due and payable.
9. FEES
9.1 ESTABLISHMENT FEE
The Borrower will pay to the Lender a non-refundable establishment fee
equal to the sum of:
(a) [ *** ]% of the aggregate of the Revolving Facility
Commitment, the Tranche A Term Facility Commitment and the
Tranche B Term Facility Commitment; and
(b) [ *** ]% of the Working Capital Commitment,
on Financial Close.
9.2 COMMITMENT FEE
(a) The Borrower will pay to the Lender a commitment fee in
dollars computed at the rate of [ *** ]% of the Margin for the
Revolving Facility per annum on the daily unutilised balance
of the Revolving Facility Commitment during the Availability
Period for the Revolving Facility.
(b) The Borrower will pay to the Lender a commitment fee in
respect of the Working Capital Facility in dollars computed at
the rate of [ *** ]% of the Margin for the Working Capital
Facility per annum on the daily unutilised balance of the
Working Capital Commitment during the Availability Period for
the Working Capital Facility.
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(c) The accrued commitment fees are payable quarterly in arrears
from the date of this Agreement and also on any date on which
the Revolving Facility Commitment or the Working Capital
Commitment, as applicable, is terminated.
9.3 LETTER OF CREDIT
(a) The Borrower will pay to the Lender a fee equivalent to the
Margin for the Working Capital Facility applied on the face
amount of each Letter of Credit (other than the 2007 Letter of
Credit) in respect of the period between the date of issue of
such Letter of Credit and the earlier of its Expiry Date and
the date when the Outstanding Liability Amount under it has
been reduced to zero. The accrued fee is payable quarterly in
arrears from the date of this Agreement and also on any date
on which the Working Capital Commitment is terminated.
(b) The Borrower will pay to the Lender a fee equivalent to the
Margin for the Tranche A Term Facility applied on the face
amount of the 2007 Letter of Credit in respect of the period
between the date of issue of such Letter of Credit and the
earlier of its Expiry Date and the date when the Outstanding
Liability Amount under it has been reduced to zero. The
accrued fee is payable quarterly in arrears from the date of
this Agreement and also on any date on which the Working
Capital Commitment is terminated.
(c) The Borrower will pay to the Lender a Letter of Credit issue
fee of $120 at the time that it requests the Lender to issue a
Letter of Credit under a Drawdown Notice.
10. PAYMENTS
For the avoidance of doubt, the parties agree to make all payments
under this Agreement in accordance with clause 23 of the Common Terms
Deed.
11. LENDER'S RIGHTS ON EVENT OF DEFAULT
If the Majority Lenders issue a notice under:
(a) clause 7.13(a) of the Common Terms Deed, the Commitments are
cancelled; or
(b) clause 7.13(b) of the Common Terms Deed, the Borrower will
prepay all Advances, all accrued interest and all other
amounts accrued to the Lender under the Finance Documents;
(c) clause 7.13(c) of the Common Terms Deed, the Advances will be
immediately repayable on demand by the Lender together with
accrued interest and all other amounts accrued to the Lender
under the Finance Documents; or
(d) clause 7.13(d) of the Common Terms Deed, an amount equal to
the Outstanding Liability Amounts will become immediately due
and payable to the Lender (and, once paid, the Lender will
hold such amount in an interest bearing account for
application to reimburse the Lender for all payments made
under any Letter of Credit issued by it, with the balance, if
any, to be promptly returned to the Borrower after settlement
of such payments).
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12. PUBLIC OFFER
12.1 BORROWER'S REPRESENTATIONS
The Borrower represents as follows:
(a) it has made invitations for participation as a "Lender" under
this Agreement to at least ten persons, each of whom the
Borrower's officers involved in the transaction evidenced by
the Finance Documents on a day to day basis believe carries on
the business of providing finance or investing or dealing in
securities in the course of operating in financial markets for
the purposes of section 128F(3)(a)(i) of the Tax Act;
(b) at least 10 of the persons to whom it has made invitations
referred to in clause 12.1(a) are not known or suspected by it
to be Associates of any of the others of those 10 invitees;
and
(c) it has not made invitations referred to in clause 12.1(a) to
parties whom it knows or had reasonable grounds to suspect are
Offshore Associates of the Borrower.
12.2 LENDERS' REPRESENTATIONS AND WARRANTIES
The Lender represents and warrants to the Borrower that it is and, at
the time of Financial Close it will be, carrying on the business of
providing finance, or investing or dealing in securities, in the course
of operating in financial markets for the purposes of section
128F(3)(a)(i) of the Tax Act.
12.3 INFORMATION
The Lender will provide to the Borrower when requested by the Borrower,
acting reasonably, any factual information in its possession or which
it is reasonably able to provide to assist the Borrower to demonstrate
(based upon tax advice received by the Borrower) that the public offer
test under section 128F of the Tax Act has been satisfied in relation
to this Agreement, where to do so will not in the Lender's opinion
(acting reasonably) breach any law or any duty of confidence.
12.4 LEGAL RESTRICTIONS
The Lender undertakes to the Borrower that it will not directly or
indirectly offer or sell any interest under this Agreement or any other
Finance Document or distribute or circulate any offer document or other
material in connection with the Finance Documents in any jurisdiction
except under circumstances which would result in compliance with the
laws and regulations of that jurisdiction.
13. ASSIGNMENTS
13.1 ASSIGNMENTS BY THE LENDER
(a) The Lender may at any time assign or otherwise transfer all or
any part of its rights under any Finance Document in
accordance with the provisions of clause 19 of the Common
Terms Deed and not in any other manner, provided that each
Transfer Certificate executed by the Lender must be amended to
include the following paragraph:
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"The New Lender will indemnify the Existing Lender,
and keep the Existing Lender indemnified against, the
Existing Lender's liability in respect of Letters of
Credit issued by the Existing Lender until the
relevant Letter of Credit expires or is replaced by a
new Letter of Credit issued by the New Lender.".
(b) Where a Transfer Certificate has been entered into and
accepted in accordance with clause 19 of the Common Terms Deed
and clause 13.1(a) then:
(i) any liability which the Existing Lender (as defined
in the Transfer Certificate) may continue to have in
relation to any Letter of Credit issued under this
Agreement for which it is indemnified by the New
Lender (as defined in the Transfer Certificate) will
be ignored; and
(ii) any liability which the New Lender (as defined in the
Transfer Certificate) may have under any such
indemnity will be included,
for the purposes of determining the Lender's undrawn Working
Capital Commitment and under the definition of "Majority
Lenders" in clause 1.1 of the Common Terms Deed.
(c) The Lender in consultation with the Borrower will notify each
beneficiary of a Letter of Credit and will request the
beneficiary to accept a replacement Letter of Credit executed
by the New Lender (as defined in the Transfer Certificate).
13.2 ASSIGNMENTS BY THE BORROWER
The Borrower may not assign any of its rights or transfer any of its
rights or obligations under this Agreement.
14. GOVERNING LAW AND JURISDICTION
(a) This Agreement is governed by New South Wales law.
(b) The courts having jurisdiction in New South Wales have
non-exclusive jurisdiction to settle any dispute arising out
of or in connection with this Agreement (including a dispute
regarding the existence, validity or termination of this
Agreement).
(c) Each party irrevocably waives any objection it may now or in
the future have to the venue of any proceedings, and any
claims it may now or in the future have that any proceedings
have been brought in an inconvenient forum, where that venue
falls within clause 14(b).
15. NO REPRESENTATION BY OR RELIANCE ON THE LENDER
The Borrower acknowledges that:
(a) the Lender has no duty to supply the Borrower with information
in relation to or affecting the Borrower before the date of
this Agreement or during the currency of any Finance Document;
and
(b) it has not entered into any Finance Document in reliance on or
as a result of any representation, promise, statement, conduct
or inducement to it by or on behalf of
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the Lender or by or on behalf of any Obligor otherwise than as
set out in the Finance Documents.
16. GENERAL
16.1 COLLECTION OF BORROWER'S INFORMATION BY THE LENDER
The Lender may collect the Borrower's information:
(a) to assist in providing information about a product or service
to the Borrower;
(b) to consider the Borrower's request for a product or service;
(c) to enable the Lender to provide a product or service to the
Borrower;
(d) to tell the Borrower about other products or services that may
be of interest to the Borrower;
(e) to perform other administrative and operational tasks
(including risk management, systems development and testing,
credit scoring, staff training and market or borrower
satisfaction research);
(f) to prevent or investigate any fraud or crime (or a suspected
fraud or crime); and
(g) as required by relevant laws, regulations and external payment
systems.
16.2 BORROWER'S INFORMATION HELD BY THE LENDER
(a) Subject to the provisions of the Privacy Act (if applicable),
the Borrower may access the Borrower's information at any time
by contacting its relationship manager or asking to do so at
any Lender branch.
(b) If the Borrower can show to the Lender that information held
by the Lender about the Borrower is not accurate, complete and
up to date, the Lender will take reasonable steps to ensure it
is accurate, complete and up to date.
16.3 PERSONAL INFORMATION ABOUT SOMEONE OTHER THAN THE BORROWER
If the Borrower gives the Lender personal information about someone
else or directs someone else to give their personal information to the
Lender, the Borrower will tell that person that:
(a) the Lender is holding personal information about that person;
(b) personal information collected about that person will be used
for the primary purpose of the Lender providing the services
contemplated by this Agreement;
(c) the person can access their information at any time by
contacting its relationship manager or asking to do so at any
Lender branch and the Lender may charge that person a
reasonable fee for such access; and
(d) if the person can show to the Lender that information held by
the Lender about the person is not accurate, complete and up
to date, the Lender will take reasonable steps to ensure that
it is accurate, complete and up to date.
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16.4 ANTI MONEY LAUNDERING
(a) The Borrower must provide all information to the Lender which
the Lender reasonably requires to comply with any applicable
money laundering legislation of any jurisdiction and the
Borrower consents to the Lender disclosing any such
information provided this is required by the law of the
relevant jurisdiction.
(b) In addition to clause 9.1(b) of the Common Terms Deed, if the
Lender suspects on reasonable grounds that making available a
Utilisation may breach any applicable money laundering
legislation, rules or codes of any jurisdiction (to the extent
that, in the case of applicable rules or codes, such rules or
codes are legally binding or if not legally binding it is the
practice of responsible financial institutions in the relevant
jurisdiction to comply with such rules or codes), the Lender
may delay, block, or refuse to make available that Utilisation
and the Lender will incur no liability to the Borrower on
account of such action.
(c) In addition to the undertaking provided in clause 5.2 of the
Common Terms Deed, the Borrower declares and undertakes to the
Lender that the payment of monies by the Lender in accordance
with any instructions given by the Borrower under this
Agreement will not breach any applicable money laundering
legislation of any jurisdiction.
SIGNED as an agreement.
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SCHEDULE 1
PART I
DRAWDOWN NOTICE
From: Australian Railroad Group Pty Ltd
To: [Lender]
Dated:
Dear Sirs
AUSTRALIAN RAILROAD GROUP PTY LTD - LOAN AGREEMENT
DATED [ ] (THE "LOAN AGREEMENT")
1. We refer to the Loan Agreement. Terms defined in or for the purposes of
the Loan Agreement will have the same meaning in this Drawdown Notice.
2. We wish to borrow a Utilisation on the following terms:
Revolving Facility/Tranche A Term
Facility/Tranche B Term Facility/Working
Facility to be utilised: Capital Facility*
Amount: [ ]**
Proposed Drawdown Date: [ ]
If an Advance:
Interest Period: [ ]
Payment Instructions: [To be credited to [account]/insert
alternative payment instructions]
If a Letter of Credit:
Expiry Date: [ ]
Beneficiary Details: [ ]
Beneficiary Account Details: [ ]
Liability to be assumed: [ ]
Member of Group/Excluded Subsidiary: [ ]
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3. The Repeating Representations are true and correct in all material
respects as of the date of this Drawdown Notice with reference to the
facts and circumstances now existing.
4. No Event of Default or event or circumstance which with the giving of
notice and/or the expiry of time would be an Event of Default is
subsisting at the date of this Drawdown Notice or will result from the
provision of the Utilisation.
5. The Utilisation is to be used in accordance with clause 2.2 of the Loan
Agreement.
6. This Drawdown Notice is irrevocable.
Yours faithfully
........................................
Authorised Officer of
Australian Railroad Group Pty Ltd
* Delete as appropriate.
** Which will not be less than $1,000,000 and will be an integral multiple of
$1,000,000.
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PART II
SELECTION NOTICE
APPLICABLE TO A TRANCHE A TERM ADVANCE OR A TRANCHE B TERM ADVANCE
From: Australian Railroad Group Pty Ltd
To: [Lender]
Dated:
Dear Sirs
AUSTRALIAN RAILROAD GROUP PTY LTD - LOAN AGREEMENT
DATED [ ] (THE "LOAN AGREEMENT")
1. We refer to the Loan Agreement. Terms defined in or for the purposes of
the Loan Agreement will have the same meaning in this Selection Notice.
2. We refer to the following Tranche A Term Advance[s]/Tranche B Term
Advance[s]1 with an Interest Period ending on [ ]:
[ ] **
3. We request that the next Interest Period for the above Tranche A Term
Advance[s]/Tranche B Term Advance[s]* is [ ].
4. The Repeating Representations are true and correct in all material
respects as at the first date of the new Interest Period with reference
to the facts and circumstances then existing.
5. This Selection Notice is irrevocable.
Yours faithfully
___________________________
* Delete as appropriate
** Insert details all Tranche A Term Advances or Tranche B Term Advances (as
applicable) which have an Interest Period ending on the same date.
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......................................
Authorised Officer of
Australian Railroad Group Pty Ltd
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SCHEDULE 2 - FORM OF LETTER OF CREDIT
[LETTERHEAD OF AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED]
To: [ ]
(the "BENEFICIARY")
Attention: [ ]
Dear Sir
Australia and New Zealand Banking Group Limited ("ISSUER") issues this
irrevocable letter of credit (the "LETTER OF CREDIT") in the Beneficiary's
favour.
LETTER OF CREDIT NO.: [ ]
OBLIGOR: [ ]
ISSUED IN CONNECTION WITH: [ ]
("TRANSACTION")
MAXIMUM AMOUNT: Total maximum limit of liability
$[ ] (the
"MAXIMUM AMOUNT")
EXPIRY DATE: This Letter of Credit expires on the earliest of:
(a) written notification being received from the
Beneficiary that the Letter of Credit is no longer
required;
(b) the Issuer having paid an aggregate amount
equal to the Maximum Amount; and
(c) [INSERT DATE]
RETURNABLE TO: [LENDER DETAILS]
DRAFTS ON: [LENDER DETAILS]
PAYABLE AT: Sight at [insert name of issuing office]
ENFACED: Drawn under Irrevocable Letter of Credit No.
[ ] dated [ ].
Claims made under the Letter of Credit must be payable to the credit of an
account in the name of the Beneficiary and must be delivered to the address at
which this Letter of Credit is expressed to be available, not later than 4.00pm
on the Expiry Date specified above and be accompanied by a statutory declaration
stating that:
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(a) the declarants are 2 officers of the Beneficiary, making the
declaration on behalf of the Beneficiary;
(b) the declarants have authority to make the statutory
declaration on behalf of the Beneficiary;
(c) the statutory declaration is made under the terms of Letter of
Credit No. [ ] dated [ ];
(d) the amount claimed is not more than the maximum aggregate
amount available under Letter of Credit No.[ ] dated
[ ], being an amount equal to $[ ] minus the
aggregate of all claims previously made under the Letter of
Credit;
(e) the amount claimed represents an amount or amounts due and
payable by the Obligor to the Beneficiary under or in respect
of the Transaction and such amount remains unpaid at the date
of the Statutory Declaration; and
(f) the balance of the unclaimed amount of the Issuer's maximum
liability under the Letter of Credit (after taking account of
the claim being made) is $[ ].
The amount available for drawing under the Letter of Credit will automatically
reduce by the amount of all drawings under the Letter of Credit.
There is no responsibility on the part of the Issuer to investigate the
authenticity of any statutory declaration or the declarant's capacity or
entitlement to make any statutory declaration.
The terms of the Uniform Customs and Practice for Documentary Credits (1993
Revision) International Chamber of Commerce Brochure No 500 ("UCP") are
incorporated by reference into this Letter of Credit. If there is any
inconsistency between the terms of the UCP and of this Letter of Credit, the
terms of this Letter of Credit shall prevail. This Letter of Credit is governed
by the laws of New South Wales.
This Letter of Credit is not transferable.
Dated: [ ]
..................................................
Authorised Signatory
Australia and New Zealand Banking Group Limited
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CONFIDENTIAL TREATMENT REQUESTED
SCHEDULE 3 - TRANSACTIONAL FACILITIES
FACILITY 1: ANZ ONLINE FACILITY
BORROWER NAME AND ABN: Australian Railroad Group Pty Ltd ABN 68 080 579 308.
$130,000. This Facility limit represents the extent
FACILITY LIMIT: to which the Lender will assume pay away exposure on
any one day.
APPROVED PURPOSE: To facilitate processing of electronic payroll and
creditor payment files.
AVAILABILITY PERIOD: Subject to annual review.
TERMINATION DATE: 5 December 2004.
CONDITION PRECEDENT: The Borrower may only use this ANZ OnLine Facility
if:
(a) the Borrower completes an application for
the ANZ OnLine Service in terms acceptable
to the Lender; and
(b) the Borrower executes all documents required
by the Lender, including the "ANZ OnLine
Application" and "Borrower Agreement".
PAY AWAY EXPOSURE Any pay-away exposure under this ANZ OnLine Facility
will be against funds available in the Borrower's
account or, if there is insufficient funds, the
Lender will debit the Borrower's overdraft account
for the excess or if there is no available overdraft
facility limit, charge excess fees at the Lender's
"Excess/Overdraft Rate" for the amount outstanding
for so long as it remains unpaid.
FEES: As advised separately by the Lender (through its
"Cash Management and Transactional Services" area)
from time to time.
FACILITY 2: ENCASHMENT / PAYROLL FACILITY
BORROWER NAME AND ABN: Australian Railroad Group Pty Ltd ABN 68 080 579 308
FACILITY LIMIT: $20,000.
APPROVED PURPOSE: To accommodate the Borrower's cheque negotiation and
payroll/electronic payment requirements as follows:
A) Encashment
Arrangements established to accommodate
requests to cash the Borrower's cheques at
the Lender's points of representation other
than where the account is conducted.
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CONFIDENTIAL TREATMENT REQUESTED
B) Payroll/Electronic Payments
To accommodate letters of credit and / or
tape negotiation authorities established to
facilitate the acceptance of the Borrower's
cheques by armoured escort companies or
delivery and processing of magnetic tapes in
exchange for payrolls and / or direct
credits.
AVAILABILITY PERIOD: Subject to annual review.
TERMINATION DATE: 5 December 2004.
ESTABLISHMENT FEE: $80.00 for each encashment arrangement. This charge
is subject to variation at any time during the term
of this Encashment/Payroll Facility.
RENEWAL FEE: $120.00 per annum for each encashment arrangement.
This charge is subject to variation at any time
during the term of this Encashment/Payroll Facility.
FACILITY 3: INTEREST RATE SWAP FACILITY
BORROWER NAME AND ABN: Australian Railroad Group Pty Ltd ABN 68 080 579 308.
FACILITY LIMIT: $30,000,000.
APPROVED PURPOSE: To assist with the Borrower's interest rate
management including interest rate swaps and options
and the like. Transactions are for trade related
purposes and not arbitrating.
AVAILABILITY PERIOD: Subject to annual review.
TERMINATION DATE: 5 December 2004.
CONDITION PRECEDENT: The Borrower will only be entitled to use this
Facility if the Lender agrees with the terms of each
transaction and if the Borrower executes all
documents required by the Lender including but not
limited to an ISDA Master Agreement.
FEES: Market rates.
MAXIMUM CONTRACT TERMS: Up to 60 months.
INTEREST RATE SWAP Notwithstanding the terms of this Agreement or any
FACILITY NOT SUBJECT TO other Finance Document, the Lender and the Borrower
THE CONDITIONS OF THIS agree that the interest rate swaps entered into under
AGREEMENT this Interest Rate Swap Facility are not subject to
the terms of this Agreement (including for the
avoidance of doubt this Schedule 3) and are instead
subject only to the Hedging Agreements entered into
between the Lender and the Borrower.
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CONFIDENTIAL TREATMENT REQUESTED
FACILITY 4: CREDIT CARD FACILITY
BORROWER NAME AND ABN: Australian Railroad Group Pty Ltd ABN 68 080 579 308
(on behalf of itself or any other Obligor).
FACILITY LIMIT: $1,850,000.
CARD TYPE: Visa business card.
AVAILABILITY PERIOD: Subject to annual review.
TERMINATION DATE: 5 December 2004.
CONDITION PRECEDENT: The Borrower is only entitled to use the Credit Card
Facility if the Lender agrees with the terms of the
Borrower's application and if the Borrower executes
all documents required by the Lender.
Issue of any credit card is subject to the Lender's
standard terms and conditions applicable to the card.
CREDIT CARD FACILITY NOT Notwithstanding the terms of this Agreement or any
SUBJECT TO THE CONDITIONS other Finance OF Document, the Lender and the
THIS AGREEMENT Borrower agree that the Credit Card Facility is not
subject to the terms of this Agreement and are
instead subject only to the separate documentation
mentioned above.
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CONFIDENTIAL TREATMENT REQUESTED
sSIGNED for and on behalf of AUSTRALIAN
RAILROAD GROUP PTY LTD by its Attorney under
a Power of Attorney dated 3 December 2003,
and the Attorney declares that the Attorney /s/ Angela Flannery
has not received any notice of the revocation ----------------------------
of such Power of Attorney, in the presence of: Signature of Attorney
/s/ Richard Cooper Angela Flannery
- --------------------------------------- ----------------------------
Signature of Witness Name of Attorney in full
Richard Cooper
- ----------------------------------------
Name of Witness in full
SIGNED for and on behalf of AUSTRALIA AND NEW
ZEALAND BANKING GROUP LIMITED by its Attorney
under a Power of Attorney dated 18 November 2002,
and the Attorney declares that the Attorney has /s/ Cameron Dare Knight Whalley
not received any notice of the revocation of -------------------------------
such Power of Attorney, in the presence of: Signature of Attorney
/s/ Peter Zhang Cameron Dare Knight Whalley
- --------------------------------------- -------------------------------
Signature of Witness Name of Attorney in full
Peter Zhang
- ---------------------------------------
Name of Witness in full