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This is a Bill, not an Act. For current law, see the Acts databases.
Payment Plan Deed set out in
the tabled text for
Payroll Tax Deferral
(BiueScope Steel) Bill 2015
This is the Payroll Tax Structured Payment Plan Deed set out in the
tabled text referred to in the Payroll Tax Deferral (BlueScope Steel)
Bill 2015 that was tabled on 12 November 2015 in the Legislative
Assembly of New South Wales by or on behalf of the Minister
introducing the Bill.
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Ronda Miller
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Clerk of the Legislative Assembly of New South Wales
DATED
The Treasurer of New South Wales for and on behalf of the Crown in right
of the State of New South Wales
("State")
and
BlueScope Steel Limited
("BiueScope")
Payroll Tax Structured Payment Plan Deed
Lea Armstrong
Crown Solicitor
60-70 Elizabeth Street
SYDNEY NSW 2000
DX 19 SYDNEY
Tel: (02) 9224-5000
Fax: (02) 9224-5244
Ref: 201503129
T08 H. Henner-Cwirn I A. Stanizzo
TABLE OF CONTENTS
1. Definitions and Interpretation ......................................................................................1
2. Conditions precedent ..................................................................................................3
3. Deferrals ...................................................................................................................3
Grant of Deferrals and Payments .................................................................................3
Payment on cessation of Steelworks operations ............................................................ 3
4. Default ......................................................................................................................4
5. Further assurances .....................................................................................................4
6. Media comment .........................................................................................................4
7. Notices ......................................................................................................................4
8. Miscellaneous .............................................................................................................5
Writing ......................................................................................................................5
Non-waiver ................................................................................................................5
Entire agreement .......................................................................................................5
Inconsistency ............................................................................................................ .5
Legal advice and costs ................................................................................................5
Severability ................................................................................................................5
Representations .........................................................................................................6
Counterparts ..............................................................................................................6
Applicable law ............................................................................................................6
Governing jurisdiction .................................................................................................6
Schedule
1
Parties
This Deed is made between:
1. The Treasurer of New South Wales for and on behalf of the Crown in right of the
State of New South Wales ("State"); and
2. BlueScope Steel Limited A.B.N 16 000 011 058 of Level 11, 120 Collins Street,
Melbourne in the State of Victoria ("BiueScope").
Background
A. BlueScope has sought the State's assistance to support its operations at the Port
Kembla Steelworks so that they remain viable and continue to operate.
B. The State has agreed, subject to the Conditions Precedent and all other terms of this
Deed, to assist BlueScope by allowing BlueScope and other BlueScope Taxpayer
Entities to defer certain Payroll Tax payments.
Operative provisions
1. Definitions and Interpretation
1.1 In this Deed, unless the contrary intention appears:
"BiueScope Taxpayer Entity" or "BTE" means any of the following entities
responsible for the payment of payroll tax to the State:
(a) BlueScope Steel (AIS) Pty Ltd (ABN 19 000 019 625);
(b) BlueScope Solutions Holdings Pty Ltd (ABN 30 070 874 538);
(c) Metalcorp Steel Pty Ltd (ABN 13 002 581 213);
(d) BlueScope Steel Limited (ABN 16 000 011 058);
(e) BlueScope Water Australia Pty Ltd (ABN 83 009 387 660);
(f) BlueScope Distribution Pty Ltd (ABN 88 096 380 068);
(g) Lysaght Building Solutions Pty Ltd (ABN 61 103 232 444);
(h) Fielders Manufacturing Pty Ltd (ABN 73 165 350 621); and
(i) Orrcon Distribution Pty Ltd (ABN 89 006 702 067).
"Ceases Operation" means ceasing the production of commodity hot rolled coil at
the Port Kembla Steelworks.
"Conditions Precedent" means the condition set out in clause 2.
2
"Deferrals" means those Payroll Tax amounts the payment of which is deferred
pursuant to this Deed, as further set out in the Payroll Tax structured payment plan
in the schedule to this Deed (the "Schedule").
"Deed" means this deed and includes all schedules and annexures.
"Event of Default" means any of the following in relation to any BTE:
(a) the BTE becoming unable to pay its debts as and when they fall due;
(b) an application for winding up is made regarding the BTE and not stayed within
14 days;
(c) a winding up order is made against the BTE;
(d) a controller, administrator, receiver and manager, provisional liquidator or
liquidator is appointed to the BTE;
(e) a mortgagee enters into the possession of any property of the BTE, whether or
not such property is part of the Port Kembla Steelworks;
(f) notice is given of a meeting of creditors of the BTE for the purposes of a deed of
arrangement; or
(g) any actions of a similar effect as set out in (a) to (f) are taken.
"Payments" means the payment of the Deferrals in the instalments as set out in
the Payroll Tax structured payment plan in the Schedule.
"Payroll Tax" has the meaning given to that term in the Payroll Tax Act.
"Payroll Tax Act" means the Payroll Tax Act 2007(NSW).
"Port Kembla Steelworks" means the blast furnace and all associated operations,
for example coke ovens and Sinter plant, pertaining to the production of commodity
hot rolled coil.
"Taxation Administration Act" means the Taxation Administration Act 1996
(NSW).
1.2 Except where the context otherwise requires:
(a) Reconstitution of a party. A reference to a person which has ceased to
exist or has been reconstituted, amalgamated or merged, or other functions of
which have become exercisable by any other person or body in its place, shall
be taken to refer to the person or body established or constituted in its place
by which its said functions have become exercisable.
(b) Rules of construction. No rule of construction operates to the detriment of
a party only because that party was responsible for the preparation of this
Deed or any part of it.
(c) Headings. The headings and index in this Deed are for convenience only
and do not affect the interpretation of this Deed.
3
(d) References to gender. Words importing a gender include any other
gender.
(e) References to persons. Persons will be taken to include any natural or
legal person.
(f) Grammatical forms. Where a word or phrase is given a defined meaning in
this Deed, any other part of speech or other grammatical form in respect of
such word or phrase shall unless the context otherwise requires have a
corresponding meaning.
(g) Legislation. A reference to a statute, regulation, ordinance or by-law
("Law") will be deemed to extend to include a reference to all statutes,
regulations, ordinances or by-Jaws amending, consolidating or replacing that
Law from time to time.
(h) Currency. A reference to dollars or to"$" is a reference to Australian dollars.
2. Conditions precedent
2.1 The grant of Deferrals under this Deed is conditional and subject to the enactment
of the Payroll Tax Deferral (BiueScope Steel) Bill 2015 by the New South Wales
Parliament and the commencement of that Bill to authorise the entry by the State
into, and performance of the obligations of the State under, this Deed.
3. Deferrals
Grant of Deferrals and Payments
3.1 The State agrees to grant BlueScope and the BTEs the Deferrals set out in the
Schedule.
3.2 Subject to clause 3.5 BlueScope must ensure that each BTE makes payment of all
Payroll Tax the subject of the Deferrals in accordance with the Payroll Tax
structured payment plan set out in the Schedule.
3.3 In the event that the Conditions Precedent are not satisfied by 1 December 2015,
the Payroll Tax structured payment plan set out in the Schedule will be recalculated
such that the Deferrals apply for a total of 36 months as from the date on which the
Conditions Precedent are satisfied, with Payments commencing 48 months as from
the date on which the Conditions Precedent are satisfied.
3.4 BlueScope must continue to lodge monthly Payroll Tax returns at all times in
compliance with the Payroll Tax Act, the Taxation Administration Act and any other
Law applicable to Payroll Tax.
Payment on cessation of Steelworks operations
3.5 In the event that BlueScope Ceases Operation of the Port Kembla Steelworks,
BlueScope must ensure that each BTE pays its respective proportion of the total
amount of the Deferrals outstanding, as at the date the Port Kembla Steelworks
Ceases Operation, to the State in 24 equal monthly instalments commencing on the
date of such operations ceasing until paid in full.
4
4. Default
4.1 On the occurrence of an Event of Default in respect of a BTE, BlueScope must
ensure that the total amount of the Deferrals then outstanding in respect of that
BTE will, within 30 days of the Event of Default being notified to BlueScope in
writing by the State, either:
(i) be assumed by one of the other BTEs and then paid by that BTE in
accordance with the Payroll Tax structured payment plan as set out
in the Schedule; or
(ii) be paid in full.
4.2 In the event that clause 4.1 is not complied with, the total amount of the Deferrals
then outstanding becomes a debt immediately due and payable by BlueScope to the
State and the State will be entitled to recover such amount from:
(i) BlueScope; or
(ii) any BTE,
including without limitation, in accordance with the Payroll Tax Act and the Taxation
Administration Act.
4.3 A failure by BlueScope or any other BTE to make a Payment in accordance with the
terms of this Deed is a "tax default" for the purposes of the Taxation Administration
Act.
5. Further assurances
5.1 BlueScope agrees to ensure that the BTEs do everything necessary to give full effect
to the terms of this Deed including, without limitation, the fulfilment of the payment
obligations in respect of the Deferrals in accordance with clause 3 of this Deed. If a
BTE fails to make a payment in accordance with clause 3 of this Deed, without
limiting any other rights of recovery which may be available at law, including
without limitation under the Payroll Tax Act and the Taxation Administration Act,
BlueScope is liable to make such payment to the State.
6. Media comment
6.1 Each of the State (including any Minster of the Crown) and BlueScope may, at its
discretion, make a public announcement or media comments about this Deed.
7. Notices
7.1 A notice under this Deed must be in writing and forwarded to the address, of the
intended recipient as specified in this Deed or the address last notified by the
intended recipient to the sender.
7.2 A notice under this Deed will be deemed to be served:
(a) in the case of delivery in person -when delivered to the recipient's address for
service and a signature received as evidence of delivery;
(b) in the case of delivery by post- within 3 business days of posting.
5
7.3 Notwithstanding the preceding clause 7.2, if delivery or receipt of a communication
is on a day which is not a business day in the place to which the communication is
sent or is later than 5 pm (local time in that place) it will be deemed to have been
duly given or made at 9 am (local time at that place) on the next business day in
that place.
8. Miscellaneous
Writing
8.1 All amendments to this Deed and all consents, approvals, waivers and agreements
made under or pursuant to this Deed must be evidenced in writing.
Non-waiver
8.2 No failure or delay by the State in exercising any right, power or remedy under this
Deed and no course of dealing or grant by the State to BlueScope of any time or
other consideration, will operate as a waiver of any breach or a default by
BlueScope under this Deed. Any waiver by the State of a breach of this Deed will
not be construed as a waiver of any further breach of the same or any other
provision.
Entire agreement
8.3 This Deed constitutes the entire agreement and understanding between the parties
as to the subject matter of this Deed. Any prior arrangements, representations or
undertakings as to the subject matter of this Deed are superseded.
Inconsistency
8.4 In the event of an inconsistency between the terms of this Deed, for the purpose
only of resolving the inconsistency, the documents that comprise this Deed are to
be considered in the following order of decreasing priority:
(a) the operative provisions of this Deed;
(b) the Schedule.
Legal advice and costs
8.5 Each party acknowledges that in relation to this Deed:
(a) it has received legal advice or has had the opportunity to obtain legal advice;
and
(b) it will bear its own costs incurred in relation to this Deed.
Severability
8.6 If any part of this Deed is prohibited, void, voidable, illegal or unenforceable, then
that part is severed from this Deed but without affecting the continued operation of
the remainder of the Deed.
6
Representations
8.7 BlueScope represents and warrants, and it is a condition of this Deed, that to the
best of its knowledge and belief:
(a) all information provided by BlueScope to the State including information
provided in connection with the Port Kembla Steelworks, was true and correct
as at the time it was provided;
(b) BlueScope is not aware of any circumstances which adversely affect or might
adversely affect BlueScope's ability to fulfil its obligations under this Deed; and
(c) BlueScope has full power and authority to enter into this Deed.
Counterparts
8.8 This Deed may be executed by counterparts by the respective parties, which
together will constitute one agreement.
Applicable law
8.9 This Deed is governed by, and must be construed in accordance with, the laws in
force in the State of New South Wales.
Governing jurisdiction
8.10 Each party submits to the exclusive jurisdiction of the Courts exercising jurisdiction
in the State of New South Wales and the courts of appeal therefrom.
7
Execution by the State:
Signed as a deed for and on behalf of the )
Crown in right of the State of New South Wales )
)
)
by the Hon. Gladys Berejiklian MP, New South )
Wales Treasurer, ) (signature of the Treasurer)
)
)
in the presence of..................................... )
(Insert name of witness) ) (signature of witness)
)
)
Execution by BlueScope:
Signed as a deed for and on behalf of )
BlueScope Steel Limited A.B.N 16 000 011 058 )
)
)
by....................................................... )
(insert name of person signing on behalf of BlueScope) ) (signature of BlueScope's representative)
)
)
in the presence of..................................... )
(insert name of witness) ) (signature of witness)
)
)
8
SCHEDULE
PAYROLL TAX STRUCTURED PAYMENT PLAN
Deferrals
In this Schedule:
(a) "2016 Year" means the period from 1 December 2015 to 30 November 2016;
(b) "2017 Year" means the period from 1 December 2016 to 30 November 2017;
(c) "2018 Year" means the period from 1 December 2017 to 30 November 2018; and
(d) "Year" means each of the 2016 Year, 2017 Year and 2018 Year as the context requires.
The Payroll Tax to be deferred per Year will be as follows:
• 2016 Year: Lower of $25m or total Payroll Tax payable by the BTEs for that Year at
the applicable rate;
• 2017 Year: Lower of $20m or total Payroll Tax payable by the BTEs for that Year at
the applicable rate; and
• 2018 Year: Lower of $15m or total Payroll Tax payable by the BTEs for that Year at
the applicable rate.
For each Year BlueScope will ensure that the BTEs commence making monthly Payroll Tax
payments only after the deferred threshold amount for that Year (as set out above) has
been reached.
For example, if in the 2016 Year the BTEs were to have a collective monthly Payroll Tax
liability of $3m, then for December 2015 to July 2016, there would be no Payroll Tax
payable; for August 2016 the total Payroll Tax payable would be $2m; for September 2016
to November 2016 the total Payroll Tax payable in each month would be $3m.
As from 1 December 2018 Payroll Tax shall be payable by the BTEs at 100% of the
applicable rate. All Payroll Tax shall then continue to be payable by the BTEs on a monthly
basis.
9
Payments
The total amount of Deferrals shall be paid in monthly instalments commencing from 1
January 2020 until such time as the total amount of Deferrals is repaid in full.
The following table sets out the Payments by reference to calendar year.
*Payments are to be made in monthly instalments of $0.5 million in arrears (or part thereof
in the case of the final monthly instalment if the total amount of Deferrals is less than $60
million) until the total amount of Deferrals is paid in full.
Calendar Year Payments
$'million
2020 6*
2021 6*
2022 6*
2023 6*
2024 6*
2025 6*
2026 6*
2027 6*
2028 6*
2029 6*
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