EXHIBIT 10.44
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CLAYTON UTZ
Loan Agreement
Australian Railroad Group Pty Ltd
Borrower
Sumitomo Mitsui Finance Australia 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..................................... 3
1.3 Margin............................................. 3
1.4 Finance Document................................... 5
2. THE FACILITIES............................................. 5
2.1 Commitments........................................ 5
2.2 Purpose............................................ 6
2.3 Termination........................................ 6
3. ADDITIONAL ADVANCE AND ACKNOWLEDGMENT OF DEBT.............. 6
4. DRAWDOWN................................................... 6
4.1 Notice............................................. 6
4.2 Contents of Drawdown Notice........................ 6
4.3 Requirements of Drawdown Notice.................... 7
4.4 Maximum Number of Revolving Advances............... 7
5. CONDITIONS PRECEDENT....................................... 7
5.1 Conditions precedent to the first Advance.......... 7
5.2 Conditions precedent to all Advances............... 7
6. REPAYMENT AND PREPAYMENTS.................................. 8
6.1 Repayment of Revolving Advances.................... 8
6.2 Repayment of Term Advances......................... 8
6.3 Other Repayments and Prepayments................... 8
7. INTEREST................................................... 8
7.1 Interest Periods................................... 8
7.2 Calculation of interest............................ 9
7.3 Payment of interest................................ 9
7.4 Default interest................................... 9
8. FEES....................................................... 10
8.1 Establishment fee.................................. 10
8.2 Commitment Fee..................................... 10
9. PAYMENTS................................................... 10
10. LENDER'S RIGHTS ON EVENT OF DEFAULT........................ 10
11. PUBLIC OFFER............................................... 11
11.1 Borrower's representations......................... 11
11.2 Lenders' representations and warranties............ 11
11.3 Information........................................ 11
11.4 Legal Restrictions................................. 11
i.
12. ASSIGNMENTS................................................ 11
12.1 Assignments by the Lender.......................... 11
12.2 Assignments by the Borrower........................ 12
13. GOVERNING LAW AND ENFORCEMENT.............................. 12
14. NO REPRESENTATION BY OR RELIANCE ON THE LENDER............. 12
SCHEDULE 1 ..................................................... 13
ii.
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LOAN AGREEMENT MADE ON 2003
PARTIES AUSTRALIAN RAILROAD GROUP PTY LTD ABN 68 080 579 308 ("BORROWER")
SUMITOMO MITSUI FINANCE AUSTRALIA LIMITED, ABN 16 000 866 526
("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:
"ADVANCE" means a Revolving Advance, a Tranche A Term Advance or a
Tranche B Term Advance.
"AVAILABILITY PERIOD" means:
(a) 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
(b) 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.
Rates will be expressed as a yield percent per annum to maturity.
"COMMITMENT" means 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
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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 an Advance 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.
"FACILITY" means the Revolving Facility, the Tranche A Term Facility or
the Tranche B Term Facility.
"FIRST PERIOD" means the period from and including the date of this
Agreement to and including the date which is the fifth anniversary of
Financial Close.
"INTEREST RATE" for each Interest Period means the aggregate of the
applicable Base Rate and the Margin.
"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.
"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.
"REVOLVING FACILITY COMMITMENT" means $27,000,000 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
(b) any date on which the Revolving Facility is terminated or
cancelled in accordance with the Finance Documents.
"SECOND PERIOD" means the period from and including the date
immediately after the expiry of the First Period to and including the
date which is the seventh anniversary of Financial Close.
"SELECTION NOTICE" means a notice given under clause 7.1(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 Revolving Termination Date, the Tranche A
Term Termination Date or the Tranche B Term Termination Date.
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"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(b).
"TRANCHE A TERM FACILITY COMMITMENT" means $16,000,000 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(c).
"TRANCHE B TERM FACILITY COMMITMENT" means $27,000,000 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.
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:
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MOODY'S LONG TERM DEBT S&P'S LONG TERM
CREDIT RATING DEBT CREDIT RATING MARGIN (PERCENTAGE PER ANNUM)
- ----------------------------------------------------------------------------------------
INTEREST PERIODS INTEREST PERIODS
COMMENCING DURING COMMENCING DURING
THE FIRST PERIOD THE SECOND PERIOD
- ----------------------------------------------------------------------------------------
> or = A3 > or = A- [ *** ]% [ *** ]%
- ----------------------------------------------------------------------------------------
> or = Baa1 and <A3 > or = BBB+ and < A- [ *** ]% [ *** ]%
- ----------------------------------------------------------------------------------------
> or = Baa2 and < Baa1 > or = BBB and < [ *** ]% [ *** ]%
BBB+
- ----------------------------------------------------------------------------------------
> or = Baa3 and < Baa2 >or = BBB- and < BBB [ *** ]% [ *** ]%
- ----------------------------------------------------------------------------------------
< Baa3 < BBB- [ *** ]% [ *** ]%
- ----------------------------------------------------------------------------------------
(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
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Interest Period or last issued prior to that date in
accordance with the following table:
INTEREST COVER RATIO MARGIN (PERCENTAGE PER ANNUM)
- ----------------------------------------------------------------------
INTEREST INTEREST
PERIODS PERIODS
COMMENCING COMMENCING
DURING THE DURING THE
FIRST PERIOD SECOND PERIOD
- ----------------------------------------------------------------------
> or = 4.5:1 [ *** ]% [ *** ]%
- ----------------------------------------------------------------------
> 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 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 [ *** ]% 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.
2. THE FACILITIES
2.1 COMMITMENTS
Subject to the terms of the Finance Documents, the Lender agrees to
make available to the Borrower:
(a) a dollar revolving loan facility in an aggregate amount equal
to the Revolving Facility Commitment;
(b) a dollar 5 year term loan facility in an aggregate amount
equal to the Tranche A Term Facility Commitment; and
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(c) a dollar 7 year term loan facility in an aggregate amount
equal to the Tranche B Term Facility Commitment.
2.2 PURPOSE
(a) 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.
(b) 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.
(c) The Lender is not bound to monitor or verify the application
of any amount borrowed pursuant to this Agreement.
2.3 TERMINATION
(a) The Revolving Facility terminates on the Revolving Termination
Date.
(b) The Tranche A Term Facility terminates on the Tranche A Term
Termination Date.
(c) 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 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:
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(a) the Facility to be utilised;
(b) the amount of the Advance (which 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;
(d) in the case of an Advance under 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 7; and
(e) payment instructions.
Only one Advance 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 an Advance have
been satisfied; and
(e) not be given if the making of the Advance requested would
cause the aggregate of the Advances 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
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.
5. CONDITIONS PRECEDENT
5.1 CONDITIONS PRECEDENT TO THE FIRST ADVANCE
The obligation of the Lender to make the first Advance is subject to
Financial Close occurring.
5.2 CONDITIONS PRECEDENT TO ALL ADVANCES
The obligation of the Lender to make all Advances 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
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(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 Advance.
6. REPAYMENT AND PREPAYMENTS
6.1 REPAYMENT OF REVOLVING ADVANCES
(a) Subject to clause 6.1(b), the Borrower will repay each
Revolving Advance on the last day of its Interest Period.
(b) If on the last day of an Interest Period for a Revolving
Advance (the "MATURING ADVANCE") a new Revolving Advance (the
"NEW ADVANCE") is to be made to the Borrower in accordance
with the terms of this Agreement, then only an amount 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.
6.2 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.
6.3 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.
7. INTEREST
7.1 INTEREST PERIODS
(a) The Borrower will select an Interest Period for a Revolving
Advance and the initial Interest Period for a Tranche A Term
Advance or a Tranche B Term Advance in the
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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 7.1, 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 is the period
commencing on the Drawdown Date for that Revolving Advance and
each Revolving 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 7.1(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.
7.2 CALCULATION OF INTEREST
(a) The rate of interest for each Advance for each Interest Period
is the Interest Rate applicable to its Facility.
(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 7.4 of this Agreement or clause 10 of the Common
Terms Deed.
7.3 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.
7.4 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
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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 by the Lender
for successive Interest Periods, each of a duration selected
by the Lender (acting reasonably). Any interest accruing under
this clause 7.4 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.
8. FEES
8.1 ESTABLISHMENT FEE
The Borrower will pay to the Lender a non-refundable establishment fee
equal to [ *** ]% of the aggregate of the Revolving Facility
Commitment, the Tranche A Term Facility Commitment and the Tranche B
Term Facility Commitment on Financial Close.
8.2 COMMITMENT FEE
(a) The Borrower will pay to the Lender a commitment fee in
dollars computed at the rate of [ *** ]% of the Margin per
annum on the daily unutilised balance of the Revolving
Facility Commitment during the Availability Period for the
Revolving Facility.
(b) The accrued commitment fee is payable quarterly in arrears
from the date of this Agreement and also on any date on which
the Revolving Facility Commitment is terminated.
9. 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.
10. 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; or
(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.
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11. PUBLIC OFFER
11.1 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 11.1(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 11.1(a) to
parties whom it knows or had reasonable grounds to suspect are
Offshore Associates of the Borrower.
11.2 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.
11.3 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.
11.4 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.
12. ASSIGNMENTS
12.1 ASSIGNMENTS BY THE LENDER
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.
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12.2 ASSIGNMENTS BY THE BORROWER
The Borrower may not assign any of its rights or transfer any of its
rights or obligations under this Agreement.
13. GOVERNING LAW AND ENFORCEMENT
(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 13(b).
14. 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 the Lender or by or on
behalf of any Obligor otherwise than as set out in the Finance
Documents.
SIGNED as an agreement.
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CONFIDENTIAL TREATMENT REQUESTED
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 an Advance on the following terms:
Facility to be utilised: Revolving Facility/Tranche A Term
Facility/Tranche B Term Facility*
Amount: [ ]**
Proposed Drawdown Date: [ ]
Interest Period: [ ]
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 Advance.
5. The proceeds of the Advance are to be used in accordance with clause
2.2 of the Loan Agreement.
6. The proceeds of this Advance should [be credited to [account]/insert
alternative payment instructions].
7. This Drawdown Notice is irrevocable.
Yours faithfully
...................................
Authorised Officer of
Australian Railroad Group Pty Ltd
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CONFIDENTIAL TREATMENT REQUESTED
* 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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CONFIDENTIAL TREATMENT REQUESTED
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
...................................
Authorised Officer of
Australian Railroad Group Pty Ltd
- -------------------------------
* Delete as appropriate.
** Insert details of 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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CONFIDENTIAL TREATMENT REQUESTED
SIGNED for and on behalf of AUSTRALIAN
RAILROAD GROUP PTY LTD by its Attorney under a
Power of Attorney dated 3 December 2003, /s/ Angela Flannery
and the Attorney declares that the Attorne --------------------------
has not received any notice of the revocation Signature of Attorney
of such Power of Attorney, in the presence of:
/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 SUMITOMO MITSUI
FINANCE AUSTRALIA LIMITED by its Attorney under
a Power of Attorney dated 26 November 2003, and
the Attorney declares that the Attorney has not /s/ Norio Hushita
received any notice of the revocation of such ---------------------------
Power of Attorney, in the presence of: Signature of Attorney
/s/ Richard Cooper Norio Hushita
- -------------------------------------------- ---------------------------
Signature of Witness Name of Attorney in full
Richard Cooper
- --------------------------------------------
Name of Witness in full
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