Common use of Rationing arrangements Clause in Contracts

Rationing arrangements. The Parties acknowledge and agree that: (a) the available assets of the Trustee, including as a result of payments made under this deed and earnings on the Compensation Funds’ assets from time to time, may or may not be sufficient to meet in full all Operating Expenses, Proven Claims, Claims Legal Costs and other SPF Funded Liabilities as and when they fall due for payment; (b) if the Trustee considers that it is reasonably likely that it does not or will not have sufficient funds to pay the amounts described in clause 9.15(a) as and when they fall due for payment, it may become necessary, in accordance with Division 5 of Part 4 of the Transaction Legislation, for the Trustee to ration the timing or amount of payments made with respect to Proven Claims or Payable Liabilities in order to achieve the foregoing; (c) if it is reasonably foreseeable that the available assets of the Trustee and the Liable Entities from time to time (including without limitation the JHISE Contributions and earnings of the Compensation Funds from time to time) are likely to be insufficient to fund the payment of all reasonably foreseeable SPF Funded Liabilities: (i) the Trustee may Notify the NSW Government and JHISE that the circumstances described in this clause 9.15(c) are reasonably foreseeable and provide reasonable details of such circumstances and the prospective shortfall, and following the giving of such a Notice, the Parties agree that for so long as the Trustee: (A) is seeking and thereafter engaging in or is ready, willing and able to enter into and pursue bona fide discussions with the NSW Government and JHISE in relation to a proposed scheme under section 35 of the Transaction Legislation (“Rationing Scheme”); or (B) is proceeding with reasonable expedition to design, prepare, seek approval of the Minister for an application to the Court, approval of the Court of and implement the Rationing Scheme, from the time such a Notice is given until such time as the Supreme Court of New South Wales has made final orders in respect of the Rationing Scheme, the Trustee may defer payment of Proven Claims in whole or in part if and to the extent the Trustee has determined this to be reasonably immediately necessary (and prior to the Rationing Scheme being approved by the Court) to avoid Persons with earlier Proven Claims receiving greater proportionate payments than Persons with expected later Proven Claims, provided that any such deferral shall accord with principles set out in section 35(4) of the Transaction Legislation and provided further that the rights of such Persons to payment of their Proven Claims shall not be prejudiced except to the extent of such deferral and by the Rationing Scheme following approval by the Court; and (ii) no member of the JHISE Group has or shall have any liability for such a shortfall other than as expressly provided in this deed and none of the Parties shall impose any liability on any member of the JHISE Group in respect of that shortfall but nothing in this clause 9.15(c)(ii) shall relieve JHISE or the Performing Subsidiary from any of their obligations under the Transaction Documentation. (d) For the avoidance of doubt, nothing in this clause 9.15 operates to prevent or limit the making of payments in connection with an Authorised Loan Facility including without limitation: (i) repayment of any part of the principal payable under an Authorised Loan Facility; (ii) payment of any interest (whether or not capitalised) payable under an Authorised Loan Facility; and (iii) payment of any other amounts that are payable under or in connection with an Authorised Loan Facility.

Rationing arrangements. The Parties acknowledge and agree that: (a) the available assets of the Trustee, including as a result of payments made under this deed and earnings on the Compensation Funds’ assets from time to time, may or may not be sufficient to meet in full all Operating Expenses, Proven Claims, Claims Legal Costs and other SPF Funded Liabilities as and when they fall due for payment; (b) if the Trustee considers that it is reasonably likely that it does not or will not have sufficient funds to pay the amounts described in clause 9.15(a) as and when they fall due for payment, it may become necessary, in accordance with Division 5 of Part 4 of the Transaction Legislation, for the Trustee to ration the timing or amount of payments made with respect to Proven Claims or Payable Liabilities in order to achieve the foregoing; (c) if it is reasonably foreseeable that the available assets of the Trustee and the Liable Entities from time to time (including without limitation the JHISE JHINV Contributions and earnings of the Compensation Funds from time to time) are likely to be insufficient to fund the payment of all reasonably foreseeable SPF Funded Liabilities: (i) the Trustee may Notify the NSW Government and JHISE JHINV that the circumstances described in this clause 9.15(c) are reasonably foreseeable and provide reasonable details of such circumstances and the prospective shortfall, and following the giving of such a Notice, the Parties agree that for so long as the Trustee: (A) is seeking and thereafter engaging in or is ready, willing and able to enter into and pursue bona fide discussions with the NSW Government and JHISE in relation to a proposed scheme under section 35 of the Transaction Legislation (“Rationing Scheme”); or (B) is proceeding with reasonable expedition to design, prepare, seek approval of the Minister for an application to the Court, approval of the Court of and implement the Rationing Scheme, from the time such a Notice is given until such time as the Supreme Court of New South Wales has made final orders in respect of the Rationing Scheme, the Trustee may defer payment of Proven Claims in whole or in part if and to the extent the Trustee has determined this to be reasonably immediately necessary (and prior to the Rationing Scheme being approved by the Court) to avoid Persons with earlier Proven Claims receiving greater proportionate payments than Persons with expected later Proven Claims, provided that any such deferral shall accord with principles set out in section 35(4) of the Transaction Legislation and provided further that the rights of such Persons to payment of their Proven Claims shall not be prejudiced except to the extent of such deferral and by the Rationing Scheme following approval by the Court; and (ii) no member of the JHISE Group has or shall have any liability for such a shortfall other than as expressly provided in this deed and none of the Parties shall impose any liability on any member of the JHISE Group in respect of that shortfall but nothing in this clause 9.15(c)(ii) shall relieve JHISE or the Performing Subsidiary from any of their obligations under the Transaction Documentation. (d) For the avoidance of doubt, nothing in this clause 9.15 operates to prevent or limit the making of payments in connection with an Authorised Loan Facility including without limitation: (i) repayment of any part of the principal payable under an Authorised Loan Facility; (ii) payment of any interest (whether or not capitalised) payable under an Authorised Loan Facility; and (iii) payment of any other amounts that are payable under or in connection with an Authorised Loan Facility.

Rationing arrangements. The Parties acknowledge and agree that: (a) the available assets of the Trustee, including as a result of payments made under this deed and earnings on the Compensation Funds’ Fund assets from time to time, may or may not be sufficient to meet in full all Operating Expenses, Proven Claims, Claims Legal Costs and other SPF Funded Liabilities as and when they fall due for payment; (b) if the Trustee considers that it is reasonably likely that it does not or will not have sufficient funds to pay the amounts described in clause 9.15(a) as and when they fall due for payment, it may become necessary, in accordance with Division 5 of Part 4 of the Transaction Legislation, for the Trustee to ration the timing or amount of payments made with respect to Proven Claims or Payable Liabilities in order to achieve the foregoing; (c) if it is reasonably foreseeable that the available assets of the Trustee and the Liable Entities from time to time (including without limitation the JHISE JHINV Contributions and earnings of the Compensation Funds Fund from time to time) are likely to be insufficient to fund the payment of all reasonably foreseeable SPF Funded Liabilities: (i) the Trustee may Notify the NSW Government and JHISE JHINV that the circumstances described in this clause 9.15(c) are reasonably foreseeable and provide reasonable details of such circumstances and the prospective shortfall, and following the giving of such a Notice, the Parties agree that for so long as the Trustee: (A) is seeking and thereafter engaging in or is ready, willing and able to enter into and pursue bona fide discussions with the NSW Government and JHISE JHINV in relation to a proposed scheme under section 35 of the Transaction Legislation (“Rationing Scheme”); or (B) is proceeding with reasonable expedition to design, prepare, seek approval of the Minister for an application to the Court, approval of the Court of and implement the Rationing Scheme, from the time such a Notice is given until such time as the Supreme Court of New South Wales has made final orders in respect of the Rationing Scheme, the Trustee may defer payment of Proven Claims in whole or in part if and to the extent the Trustee has determined this to be reasonably immediately necessary (and prior to the Rationing Scheme being approved by the Court) to avoid Persons with earlier Proven Claims receiving greater proportionate payments than Persons with expected later Proven Claims, provided that any such deferral shall accord with principles set out in section 35(4) of the Transaction Legislation and provided further that the rights of such Persons to payment of their Proven Claims shall not be prejudiced except to the extent of such deferral and by the Rationing Scheme following approval by the Court; and (ii) no member of the JHISE JHINV Group has or shall have any liability for such a shortfall other than as expressly provided in this deed and none of the Parties shall impose any liability on any member of the JHISE JHINV Group in respect of that shortfall but nothing in this clause 9.15(c)(ii) shall relieve JHISE JHINV or the Performing Subsidiary from any of their obligations under the Transaction Documentation. (d) For the avoidance of doubt, nothing in this clause 9.15 operates to prevent or limit the making of payments in connection with an Authorised Loan Facility including without limitation: (i) repayment of any part of the principal payable under an Authorised Loan Facility; (ii) payment of any interest (whether or not capitalised) payable under an Authorised Loan Facility; and (iii) payment of any other amounts that are payable under or in connection with an Authorised Loan Facility.