DEPOSIT AGREEMENT
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This Deposit Agreement (this "Agreement"), is entered into on this third
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day of August, 2000, between the Commonwealth of Australia (the "Lender"),
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Syntroleum Australia Credit Corporation (the "Borrower") and Westpac Banking
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Corporation ABN 33 007 457 141 (the "Bank").
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WHEREAS, the Lender and the Borrower have entered into a certain A$ Loan
Agreement dated August 3, 2000 (the "Loan Agreement").
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WHEREAS, under the terms of the Loan Agreement, it is proposed that the amount
of the facility to be provided under it will be made available in tranches.
WHEREAS, under the terms of the Loan Agreement, if certain conditions to the
drawdown of a tranche are not satisfied during the period that the tranche is
available for drawdown, the amount of the tranche is to be deposited with the
Bank into a segregated interest-bearing account.
NOW, THEREFORE, for and in consideration of the mutual benefits and obligations
of the parties herein stated, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by the parties, the
Lender, the Borrower and the Bank hereby agree as follows:
Account. The Bank has established a segregated interest-bearing account in
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Australia in the name of the Lender, account number BSB036000 Account Number
399052 (the "Account"). The Bank acknowledges that the Lender may from time to
time remit funds to the Bank for deposit into the Account; and, in such case,
the Bank shall deposit such funds into the Account and maintain such funds in
the Account, or disburse such funds from the Account, solely on the terms and
conditions of this Agreement.
Release and Delivery of Funds. The Bank shall release and transfer any funds on
deposit in, or credited to, the Account as follows:
Promptly upon the Bank's receipt of a written notice from the Lender and
the Borrower substantially in the form of the attached Exhibit A, that appears
on its face to be genuine, the Bank will comply with the instructions to
transfer the amount specified in such notice to the order of the Borrower (to
the account specified in such notice).
Promptly upon the Bank's receipt of a written notice from the Lender
substantially in the form of the attached Exhibit B or substantially in the form
of the attached Exhibit C, that appears on its face to be genuine, the Bank will
comply with the instructions to transfer the amount specified in such notice to
the order of the Lender (to the account specified in such notice).
The Bank agrees not to permit any funds on deposit or credited to the Account to
be transferred to any person or entity other than (i) as expressly set forth in
clauses (a) and (b) of this Section 2 or (ii) upon express written instructions
jointly signed by the Lender and the Borrower and containing a representation by
each of the Lender and the Borrower that the person signing the same is
authorized to do so in accordance with the terms of this Agreement. The Lender
and the Borrower hereby agree that in the event that the Borrower is liquidated
as a result of an involuntary proceeding brought against it under any applicable
bankruptcy, insolvency, reorganization or other similar law, the Lender shall be
entitled to all amounts then on deposit in the Account.
The Lender agrees not to provide to the Bank (i) any notice contemplated by
Exhibit B prior to March 1, 2002 and (ii) any notice to the Bank contemplated by
Exhibit C prior 5:00 pm August 31, 2004. In the event that the Bank
nevertheless receives (i) any notice contemplated by Exhibit B prior to March 1,
2002, or (ii) any notice contemplated by Exhibit C prior to September 1, 2004,
or (iii) the Bank shall not withdraw or transfer funds or take any action on the
basis of any such notice.
Interest. Credit balances in the Account shall bear interest, which will
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be calculated daily and paid monthly to the Account. Interest will be set at
the weekly average 30-day Bank Bill Offer Rate less 75 basis points (0.75%
p.a.), resulting in a current rate of approximately 5.36% p.a. (as at 13 July
2000). The 30-Day Bank Bill Offer Rate is published each day in the Australian
Financial Review newspaper and can be monitored via Reuters BBSY screen. This
rate is published daily and the average weekly rate can be calculated internally
from the published rate. Interest earned on funds that are on deposit in or
credited to the Account shall, in all events be deemed earned by the Borrower
and shall be added to the funds on deposit in the Account or paid to the
Borrower upon request by the Borrower; provided, however, that if the Bank at
any time receives a written notice from the Lender substantially in the form of
the attached Exhibit D that appears on its face to be genuine (the "Major
Default Notice"), then the Borrower shall not be entitled to receive any amount
of interest accrued from the date specified in the Major Default Notice and the
Bank shall not pay such amount of interest to the Borrower until such time as
the Bank receives from the Lender a written notice substantially in the form of
the attached Exhibit E that appears on its face to be genuine.
Extent of Bank's Responsibilities. The Bank's liabilities and obligations are
limited to those specifically set forth in this Agreement. The Bank shall not
be liable for any act or omission by it in good faith in connection with this
Agreement; provided, however, that the Bank shall be liable for any negligence
or willful misconduct on its part.
No Set-off.The Bank agrees that it will not obtain (by agreement, operation of
law or otherwise) a lien on or other charge over the Account or any funds on
deposit in or credited to the Account; and that such funds will not be subject
to deduction, set-off, banker's lien, or any other right in favor of any person
or entity other than the Lender or the Borrower; provided that the Bank may set
off amounts due to it in respect of fees and expenses customarily charged for
its performance of the services described in this Agreement only against accrued
interest.
Expenses of Bank. All taxes (other than taxes on its overall net income) costs
and expenses incurred by the Bank in carrying out the Bank's obligations under
this Agreement or in opening, operating, or closing the Account shall be paid or
reimbursed by the Borrower as incurred and the Bank may debit those costs and
expenses to the Account (but only against accrued interest) when they are
incurred.
Indemnification of Bank. The Borrower hereby agrees to indemnify, defend and
hold the Bank harmless for all losses, costs and expenses (including reasonable
attorneys' fees) suffered or incurred by the Bank and arising out of documents
entered into by the Bank, or matters, things and activities (acts and omissions)
of the Bank relating to or under this Agreement, provided that such activities
were performed by the Bank in good faith and without any negligence or willful
misconduct on the part of the Bank. This indemnification obligation shall
survive the termination of this Agreement.
Notices. All notices, requests, claims, demands or other communications
hereunder must be in writing and must be given by delivery in person, by prepaid
post (airmail, if appropriate) or by facsimile to the respective parties as
follows:
If to the Lender, to:
Commonwealth of Australia
represented by Department of Industry Science
and Resources (Invest Australia)
Level 6, 20 Allara Street
Canberra ACT 2601
Australia
Facsimile: (61 2) 6213 7843
Telephone: (61 2) 6213 7560
Attention: General Manager, Invest Australia
If to the Borrower, to:
Syntroleum Australia Credit Corporation
1350 S. Boulder, Suite 1100
Tulsa, Oklahoma 74119-3295
United States of America
Facsimile: (918) 592-7979
Telephone: (918) 592-7900
Attention: Carla Covey
If to the Bank, to:
Westpac Banking Corporation
Level 14, 109 St George's Terrace,
Perth, Western Australia 6000
Facsimile: (61 8) 9426 2866
Attention: Mr. Tony Lofthouse
Or such other address and/or facsimile as is furnished in writing by any party
to the others in accordance herewith, except that notices of change of address
are only effective upon receipt. Communications hereunder will be deemed to
have been received:
(i) immediately upon delivery in person;
(ii) if sent by post, they are taken to be received three days after posting
(or seven days after posting if sent to or from a place outside Australia).
(iii) if sent by fax, they are taken to be received at the time shown in the
transmission report as the time that the whole fax was sent.
Despite clauses 8(ii) and 8(iii) if notices are received after 5:00 p.m. in
the place of receipt or on a non-business day, they are taken to be received at
9:00 a.m. in the place of receipt on the next business day. For the purposes of
this clause 8, "business day" means a day on which banks are open for general
banking business in the place where the notice is sent. All notices, requests,
claims, demands or other communications hereunder furnished by the Borrower must
be executed by one of the authorized signatories with respect to the Account.
The Borrower may, at any time, designate new or replacement authorized
signatories with respect to the Account, by providing written notice to the
Bank. All notices, requests, claims, demands or other communications hereunder
furnished by the Lender must be executed by one of the authorized signatories
agreed upon by the Lender and the Bank. The Lender may, at any time, designate
new or replacement authorized signatories with respect to the Account, by
providing written notice to the Bank.
Miscellaneous.
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(a) This Agreement is the final expression of the parties hereto with
respect to the subject matter described herein and supersedes any and all other
agreements and understandings between the parties hereto, both written and oral;
(b) This Agreement may be amended, modified, supplemented, replaced and/or
assigned only by a written agreement signed by all of the parties hereto and in
accordance with the terms and conditions hereof;
(c) This Agreement shall not be assigned without the prior written consent
of the Bank, which consent will not be unreasonably withheld;
(d) This Agreement shall be governed by, and construed in accordance with,
the laws of the Australian Capital Territory. Each party irrevocably and
unconditionally submits to the non-exclusive jurisdiction of the courts of the
Australian Capital Territory and courts of appeal from them. Each party waives
any right it has to object to an action being brought in those courts,
including, without limitation, by claiming that the action has been brought in
an inconvenient forum or that those courts do not have jurisdiction;
(e) Without preventing any other mode of service, any document in an action
(including, without limitation, any writ of summons or other originating process
or any third or other party notice) may be served on any party by being
delivered to or left for that party at its address for service of notices under
clause 9.
(f) This Agreement may be executed in any number of counterparts and by each
party as separate counterparts, each of which when so executed shall be deemed
to be an original and all of which, when taken together, shall constitute one
and the same instrument;
(g) This Agreement shall be binding upon, and inure to the benefit of, the
successors and assigns of the parties hereto;
(h) If, at any time, any provision hereof is or becomes illegal, invalid or
unenforceable in any respect under the law of any jurisdiction, neither the
legality, validity or enforceability of the remaining provisions hereof nor the
legality, validity or enforceability of such provision under the law of any
other jurisdiction shall in any way be affected or impaired thereby;
(i) Each of the Lender and the Borrower separately represent and warrant to
the Bank that any direction or request given by them to the Bank relating to the
payment of any amount from the Account:
will be a correct and accurate direction or request in conformity with the
provisions of this Agreement; and
will have been validly authorized, executed and able to be relied upon by the
Bank in accordance with its terms.
(i) The Parties agree and acknowledge that under this Agreement the Bank is
acting only in the capacity of a banker and not in any other capacity whatsoever
including, without limitation, as trustee or as escrow agent; provided that
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this clause 5(i) is not intended to reduce, limit or otherwise affect the Bank's
responsibility for its negligence, willful misconduct, bad faith or breach of
its obligations in this Agreement.
The Bank is not required to verify or ensure that the Account funds once
paid by the Bank as required by this Agreement are used in any manner and is not
liable for any loss or damage suffered by any person in relation to their use.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
COMMONWEALTH OF AUSTRALIA
By: /s/
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Name: Mike Holthuyzen
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Title: Deputy CEO
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"LENDER"
SYNTROLEUM AUSTRALIA CREDIT CORPORATION
By: /s/
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Name: Randall M. Thompson
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Title: Chief Financial Officer
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"BORROWER"
WESTPAC BANKING CORPORATION
as the Bank
By: /s/
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Name: Leith Lyon Wintour
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Title: Manager Legal
ACT Legal Unit
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"BANK"
EXHIBIT A
to Deposit Agreement
NOTICE OF INSTRUCTION TO TRANSFER FUNDS TO BORROWER
[Date]
Westpac Banking Corporation
Level 14, 109 St George's Terrace,
Perth,
Western Australia 6000
Facsimile: (61 8) 9426 2866
Attention: Mr. Tony Lofthouse
Re: Account No. BSB036000 Account Number 399052 (the "Account")
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Ladies and Gentlemen:
We refer to the Deposit Agreement, dated as of August __, 2000 (the
"Deposit Agreement") between you, Syntroleum Australia Credit Corporation (the
"Borrower") and the Commonwealth of Australia (the "Lender").
The Lender hereby gives you notice that the Borrower is entitled to receive
AUD$_________ of the funds in the Account; and, accordingly, you may transfer
all or a portion of AUD$_________ upon the order of the Borrower.
The Borrower hereby instructs you to transfer [all] [SPECIFY AMOUNT IF LESS THAN
ALL] of the funds in the Account, by electronic delivery of funds, to [SPECIFY
BANK OR INSTITUTION TO WHICH FUNDS ARE TO BE WIRED], account number [_______].
Each of the undersigned represents for your benefit that it is authorized to
execute and deliver this notice to you in accordance with the terms of the
Deposit Agreement.
Very truly yours,
Commonwealth of Australia Syntroleum Australia Credit Corporation
By: By:
Name: Name:
Title: Title:
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EXHIBIT B
to Deposit Agreement
[Letterhead of the Lender]
[Date - AFTER FEB. 28, 2002]
NOTICE OF INSTRUCTION TO TRANSFER CERTAIN FUNDS TO LENDER
Westpac Banking Corporation
Level 14, 109 St George's Terrace,
Perth,
Western Australia 6000
Facsimile: (61 8) 9426 2866
Attention: Mr. Tony Lofthouse
Re: Account No. BSB036000 Account Number 399052 (the "Account")
Ladies and Gentlemen:
We refer to the Deposit Agreement, dated as of August __, 2000 (the
"Deposit Agreement") between you, Syntroleum Australia Credit Corporation (the
"Borrower") and the Commonwealth of Australia (the "Lender").
The Lender has previously remitted for deposit into the Account, among other
amounts, an amount equal to AUD$________ (such deposit and such amount, the
"Tranche C Facility Limit"). The Tranche C Facility Limit is no longer
available to the Borrower. Accordingly, the Lender hereby requests that you
transfer the amount equal to the Tranche C Facility Limit from the Account to
[SPECIFY BANK OR INSTITUTION TO WHICH FUNDS ARE TO BE WIRED], account number
[_______].
The undersigned represents for your benefit that it is authorized to execute and
deliver this notice to you in accordance with the terms of the Deposit Agreement
and further represents for the benefit of the Borrower that it is authorized to
execute and deliver this notice in accordance with the terms of the Loan
Agreement referred to in the Deposit Agreement.
Very truly yours,
Commonwealth of Australia
By:
Name:
Title:
cc: Syntroleum Australia Credit Corporation
EXHIBIT C
to Deposit Agreement
[Letterhead of the Lender]
[Date - AFTER AUG. 31, 2004]
NOTICE OF INSTRUCTION TO TRANSFER ALL FUNDS TO LENDER
Westpac Banking Corporation
Level 14, 109 St George's Terrace,
Perth,
Western Australia 6000
Facsimile: (61 8) 9426 2866
Attention: Mr. Tony Lofthouse
Re: Account No. BSB036000 Account Number 399052 (the "Account")
Ladies and Gentlemen:
We refer to the Deposit Agreement, dated as of August __, 2000 (the
"Deposit Agreement") between you, Syntroleum Australia Credit Corporation (the
"Borrower") and the Commonwealth of Australia (the "Lender").
The Lender has previously remitted for deposit into the Account an aggregate
amount equal to AUD$________. The amounts in the Account are no longer
available to the Borrower. Accordingly, the Lender hereby requests that you
transfer all of the funds on deposit in the Account (after deducting all accrued
and unpaid interest earned thereon) to [SPECIFY BANK OR INSTITUTION TO WHICH
FUNDS ARE TO BE WIRED], account number [_______]. The accrued and unpaid
interest referred to in the preceding sentence is to be paid to the Borrower or
upon its order. [IF A NOTICE IN THE FORM OF EXHIBIT D HAD BEEN GIVEN UPON THE
OCCURRENCE OF A "MAJOR EVENT OF DEFAULT" AND THE SAME IS STILL IN EXISTENCE,
THEN REPLACE THE LAST SENTENCE WITH: "The accrued and unpaid interest referred
to in the preceding sentence is to be paid to the Lender at [INSTRUCTIONS FOR
PAYMENT]].
The undersigned represents for your benefit that it is authorized to execute and
deliver this notice to you in accordance with the terms of the Deposit Agreement
and further represents for the benefit of the Borrower that it is authorized to
execute and deliver this notice in accordance with the terms of the Loan
Agreement referred to in the Deposit Agreement.
Very truly yours,
Commonwealth of Australia
By:
Name:
Title:
cc: Syntroleum Australia Credit Corporation
EXHIBIT D
to Deposit Agreement
[Letterhead of the Lender]
[Date]
NOTICE OF MAJOR DEFAULT -- INSTRUCTION TO FREEZE INTEREST
Westpac Banking Corporation
Level 14, 109 St George's Terrace,
Perth,
Western Australia 6000
Facsimile: (61 8) 9426 2866
Attention: Mr. Tony Lofthouse
Re: Account No. BSB036000 Account Number 399052 (the "Account")
Ladies and Gentlemen:
We refer to the Deposit Agreement, dated as of August __, 2000 (the
"Deposit Agreement") between you, Syntroleum Australia Credit Corporation (the
"Borrower") and the Commonwealth of Australia (the "Lender").
The Lender hereby notifies you that a "Major Event of Default" has occurred and
is continuing under the Loan Agreement (as defined in the Deposit Agreement).
Accordingly, the Lender hereby instructs you not to pay to the Borrower any
amount of interest earned on the Account from and after [INSERT DATE OF
DEFAULT], which is the date of the occurrence of such "Major Event of Default",
and until such date as we may specify to you in writing in substantially the
form of Exhibit E to the Deposit Agreement. All such amounts of interest are to
be added to the Account.
The undersigned represents for your benefit that it is authorized to execute and
deliver this notice to you in accordance with the terms of the Deposit Agreement
and further represents for the benefit of the Borrower that it is authorized to
execute and deliver this notice in accordance with the terms of the Loan
Agreement referred to in the Deposit Agreement.
Very truly yours,
Commonwealth of Australia
By:
Name:
Title:
cc: Syntroleum Australia Credit Corporation
EXHIBIT E
to Deposit Agreement
[Letterhead of the Lender]
[Date]
NOTICE OF END OF MAJOR DEFAULT -- INSTRUCTION TO UNFREEZE INTEREST
Westpac Banking Corporation
Level 14, 109 St George's Terrace,
Perth,
Western Australia 6000
Facsimile: (61 8) 9426 2866
Attention: Mr. Tony Lofthouse
Re: Account No. BSB036000 Account Number 399052 (the "Account")
Ladies and Gentlemen:
We refer to the Deposit Agreement, dated as of August __, 2000 (the
"Deposit Agreement") between you, Syntroleum Australia Credit Corporation (the
"Borrower") and the Commonwealth of Australia (the "Lender").
The Lender has previously delivered to you a written notice in substantially the
form of Exhibit E to the Deposit Agreement, notifying you that a "Major Event of
Default" had occurred and was continuing under the Loan Agreement (as defined in
the Deposit Agreement) and instructing you not to pay to the Borrower (and
instead, to add to the amount on deposit in the Account) any amount of interest
earned on the Account from and after the date specified in that notice. The
Lender hereby notifies you that the "Major Event of Default" specified in that
notice no longer exists (or the Lender otherwise waives its rights with respect
thereto), and, accordingly, the Lender hereby instructs you to pay to the
Borrower (at the Borrower's request) all amounts of interest earned on the
Account at any time.
The undersigned represents for your benefit that it is authorized to execute and
deliver this notice to you in accordance with the terms of the Deposit Agreement
and further represents for the benefit of the Borrower that it is authorized to
execute and deliver this notice in accordance with the terms of the Loan
Agreement referred to in the Deposit Agreement.
Very truly yours,
Commonwealth of Australia
By:
Name:
Title:
cc: Syntroleum Australia Credit Corporation