EXHIBIT 10.2
ASIS BANK LIMITED
FACILITY AGREEMENT
Dated 1997
BETWEEN:
1. ASB BANK LIMITED (the "Bank"); and
2. PRESTIGE MARKETING LIMITED (the "Customer").
1. Facilities: The Bank and the Customer agree that this Facility Agreement
records the terms on which the Bank makes the following facilities
available to the Customer
(a) Overdraft Facility - see attached Schedule 1 - and
(b) Short Term Loan Facility - see attached Schedule 2.
These terms are subject to the General Terms and Conditions.
2. Interpretation:
(a) This is a Facility Agreement within the meaning of the General Terms
and Conditions relating to credit facilities in force from time to
time. Accordingly those General Terms and Conditions apply to this
Facility Agreement.
(b) Words and expressions defined and references construed in the General
Terms and Conditions and not otherwise defined or construed in this
Facility Agreement have the same meanings and constructions where used
in this Facility Agreement, unless the context otherwise requires.
(c) A party to this Facility Agreement or another agreement includes its
successors and, in the case of the Bank, its assignees and
transferees.
(d) Headings are to be ignored in interpreting this Facility Agreement.
SIGNED for and an behalf of )
the Bank by ) ________________________________
(Authorised Signatory)
PRESTIGE MARKETING LIMITED
by:
/s/ ▇. ▇▇▇▇▇
------------------------
Director
/s/ ▇. ▇▇▇▇▇▇
------------------------
Director
Witness to signatures:
Name: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Address: Auckland
Occupation: Solicitor
Signature: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
SCHEDULE 1
OVERDRAFT FACILITY
This Schedule sets out the terms specific to the Overdraft Facility, being a
facility for debit drawings on current account up to the Facility Limit (in this
Schedule called the "Facility"). These terms are subject to the General Terms
and Conditions.
FINANCIAL DETAILS.
1. Facility Limit: The Facility Limit is $1,000,000 less the face value of all
documentary letters of credit issued pursuant to a trade
services/letter of credit facility agreement dated on or
about the date hereof between the Customer and the Bank.
2. Overdraft Interest Rate: The Overdraft Interest Rate will be the ASB Bank
Business Banking Base Rate from time to time plus
a margin of 1.0% per annum. The Overdraft Interest
Rate will change from time to time to reflect any
change to the ASB Bank Business Banking Base Rate.
The Overdraft Interest Rate is initially 12.5% per annum.
3. ASB Bank Banking Business
Base Rate: The ASB Bank Banking Business Base Rate is 11.5%
per annum as at the date of this Facility
Agreement.
The ASB Bank Banking Business Base Rate may be altered by the
Bank at any time by:
(a) notice in writing to the Customer, or
(b) at the Bank's election, advertising the amended rate in
such local newspapers as the Bank deems appropriate.
4. Fees: The Customer will pay to the Bank such bank and transaction charges
for the Overdraft Account as the Bank may charge in accordance with
its usual practice.
AVAILABILITY
5. Conditions Precedent: This Facility will only become available once the
Bank has received and found satisfactory (in form
and substance) the following items:
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(a) the Facility Agreement and General Terms and Conditions
as executed by the Customer;
(b) a Certificate from a director of the Customer in favor
of the Bank and its solicitors;
(c) Unqualified audit confirmation dated 31 March 1997 in
relation to the Customer;
(d) the following security and guarantee documents:
(i) Debenture from the Customer, together
with Companies Office Registration
Certificate;
(ii) Letter of Comfort from National Media
Corporation;
(e) legal opinion from the Bank's solicitors;
(f) insurance confirmation;
(g) payment of all fees (including reasonable legal fees).
6. Termination Date: The initial Termination Date is 15 February 1998.
The Bank may (at its absolute discretion) notify
the Customer in writing that it offers to extend
the Termination Date by a further one year from
its then current Termination Date.
An extended Termination Date will not become
operative until accepted by the Customer in
writing.
PAYMENTS
7. Repayment: The Facility is on demand, so that the Bank may at
any time by notice in writing to the Customer
cancel the Facility. if not canceled earlier, then
the Facility is automatically canceled on the
Termination Date. On cancellation:
(a) the Facility Unit will be immediately reduced
to zero; and
(b) the debit balance of the Overdraft Account,
together with all accrued interest and fees,
will be immediately payable.
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8. Interest Payments: Interest will accrue on daily debit balances in
the Overdraft Account at the Overdraft Interest
Rate (provided that the Bank may elect to charge
interest on any debit balance of the Overdraft
Account in excess of the Facility Unit at the
default rate specified in paragraph 7.2 of the
General Terms and Conditions). Interest will be
payable on demand and pending demand will be
debited to the Overdraft Account monthly on such
day of the month as the Bank from time to time
determines.
9. Method of Payment: The Bank may debit any payment or other amount due
under the Facility to the Overdraft Account, even
though the account may become overdrawn in excess
of the Facility Limit.
10. Overdraft Account: [Intentionally left blank]
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SCHEDULE 2
Short Term Loan Facility
This SCHEDULE sets out the terms specific to the Short Term Loan Facility (in
this SCHEDULE called the "Facility". These terms are subject to the GENERAL
TERMS AND CONDITIONS.
Financial Details
1. Loan: An amount of $4,400,000.
2. Ordinary Interest Rate: The Bank ▇▇▇▇ Rate plus a margin of 2% per annum.
The Bank ▇▇▇▇ Rate will change an each Specified
Date.
3. Bank ▇▇▇▇ Rate: The Bank ▇▇▇▇ Rate will be the Bank's buying rate
for bank accepted bills of exchange having a tenor
of 90 days (expressed as a percentage yield per
annum).
The Bank ▇▇▇▇ Rate will be determined by the Bank
an the date the Loan is advanced (the "Drawdown
Date") and redetermined an 30 June, 30 September,
30 December and 30 March of each year ("Specified
Dates"). However where a Specified Date falls an a
day which is not a business day, the Bank ▇▇▇▇
Rate will be determined on the following business
day (but will be effective from the Specified
Date).
The Bank will notify the Customer of each
determination of the Ordinary Interest Rate.
4. Drawdown: The Customer may draw the Loan in one amount by
giving not less than 2 business days' written
notice of the Drawdown Date to the Bank (or such
shorter term as the Bank may agree).
5. Conditions Precedent to
Drawdown: This Facility will only become available once the
Bank has received and found satisfactory (in form
and substance) the items set out in paragraph 5 of
Schedule I.
6. Fees: The Customer will pay to the Bank a facility fee
of $12,500.00 payable on or before the date of
this Facility Agreement.
7. Termination of Offer: If the Customer does not drawdown the Loan in full
by 31 July 1997, the Bank may in its absolute
discretion:
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(a) require the Customer to (and the Customer
will be obliged to) pay to the Bank on demand
a fee equal to the amount of interest which
would have accrued on the Loan (if drawn
down) in the period from that date through to
the date an which either the Loan is actually
drawn down or this Facility is canceled under
paragraph (b) below; and/or
(b) cancel the Facility either immediately or at
any time afterwards and retain any fee
charged in relation to it.
Payments
8. Payment of Interest: The Customer will pay interest on the Loan in
arrears. The first payment will be due on the date
one month following the Drawdown Date and
subsequent payments due monthly thereafter
("Payment Date"). This interest will accrue at the
Ordinary Interest Rate from time to time and
(subject to paragraph 10 below) will be calculated
on the daily balance of the Loan.
9. Repayment Schedule: The Customer will repay the Loan by making one
principal repayment of $4,400,000 on the earlier
of:
(a) the date six months from the drawdown date,
or
(b) 15 February 1998.
10. Early Repayment: The Customer may prepay the Loan in full or in
part (a part payment to be in a multiple of
$10,000) on any Payment Date, or such other date
as the Bank may agree in writing.
The Customer must give the Bank at least 2
business days written notice of its intention to
prepay. This notice is irrevocable, and is to
specify the prepayment date and the amount to be
prepaid. The Customer will be obliged to make the
prepayment specified on that date.
If an amount is prepaid on a date which is not a
Payment Date interest will continue to accrue on
that amount until the next Payment Date.
11. Deduction Account: The Customer nominates the following account as
the account from which payments due under the
Facility
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may be deducted.
[Intentionally left blank]
The Customer acknowledges that this nomination is
not to prejudice the Bank's rights under the
Facility and the General Terms and Conditions to
debit any amount due from the Customer to the Bank
to any account of the Customer with the Bank.
11. Bills: At the request of the Bank, the Customer will draw
bills in the following form:
Drawer : Customer
Acceptor : Bank
Payee and Endorser : Bank
Such bills shall have face values and maturities
specified by the Bank provided that the aggregate
face value of all bills outstanding at any time
will not exceed the amount outstanding under the
Loan (including interest due), and no ▇▇▇▇ shall
mature after the final repayment date of the Loan.
The Customer shall not be required to pay any such
bills on maturity.
The Bank is irrevocably authorised by the Customer
to sign (by its authorised signatory) as drawer,
complete and deliver bills on behalf of the
Customer in accordance with this clause if the
Customer fails to do so in accordance with this
Facility Agreement.
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ASB BANK LIMITED
General Terms and conditions
BETWEEN:
1. ASB BANK LIMITED (the "Bank"): and
2. PRESTIGE MARKETING LIMITED (the "Customer")
IT IS AGREED:
These General Terms and Conditions (the "Terms") apply to all Facilities (as
defined in paragraph 1.1 of these Terms).
If there is any conflict between these Terms and the terms of any Facility
Agreement (as defined in paragraph 1.1 of these Terms), the terms of that
Facility Agreement will prevail.
DATED THE DAY OF 1997
SIGNED for and on behalf )
of the Bank by ) _____________________________
(Authorised Signatory)
Initial Address for Notices:
Address:
Fax No:
Phone No:
Attention:
Reference:
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EXECUTED by the Customer )
by /s/ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ )
) /s/ ▇▇▇▇ ▇▇▇▇▇
) ---------------------
and /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ) Director
each being a director of )
the Customer in the presence ) /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
of: ) ---------------------
) Director
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------
Name of Witness
▇▇▇▇▇▇▇ ▇▇▇▇▇, Auckland
--------------------------
Address
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1. INTERPRETATION
1.1 Definitions: In these Terms, unless the context otherwise requires,
capitalised terms defined an the front page have the meanings so given to
them, and:
"Bank" means ASB Bank Limited and its successors, assigns and transferees;
"Cancellation Event" means any of the events specified in paragraph 5 of
these Terms and any other event or circumstance which, with the giving of
notice, lapse of time or fulfilment of any other requirement, would
constitute such an event;
"Debenture" means a debenture of even date between the Customer and the
Bank;
"Distribution" means a distribution as defined in section 2 of the
Companies Act 1993 (but as though a company under the Companies ▇▇▇ ▇▇▇▇
was included within the meaning of a "company" as used in that section),
and includes any reduction of capital, any acquisition by a company of any
share in itself or in its holding company, and any financial assistance
provided by a company to enable another person to acquire any such share;
"Documents" means these Terms, any Facility Agreement, any Security
Document and any other agreement, present or future, required by or
relating to a Facility;
"Facility" means:
(a) a credit facility; or
(b) any other facility for financial accommodation which expressly
incorporates these Terms,
which the Bank provides or has agreed to provide to the Customer,
"Facility Agreement" means any agreement in writing signed by the Bank and
the Customer relating to one or more Facilities;
"Group Member" means a subsidiary of the Customer,
"Relevant Party" means the Customer and each of the other parties to the
Documents (other than the Bank);
"Security Documents" means the Debenture and each agreement at any time
executed or delivered to secure the Customer's indebtedness under a
Facility (whether or not it secures other obligations as well); and
"Solvency Test" has the meaning ascribed to that term by section 4 of the
Companies ▇▇▇ ▇▇▇▇.
1.2 Construction of Certain References: In these Terms, unless the context
otherwise requires any reference to:
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the provision or making available of "accommodation" includes the
making of a loan, the discounting of bills, the provision of overdraft
accommodation on current account or the provision of any other banking
or financial services or accommodation; an "agreement" also includes a
contracts deed, licence, franchise, undertaking or other document (in
each case, oral and written) and includes that agreement as modified,
supplemented, novated or substituted from time to time;
"assets" also includes the whole and any part of the relevant person's
business, undertaking, property, revenues and rights (in each case,
present and future), and reference to an asset includes any legal or
equitable interest in it;
a "business day" means a day on which registered banks are open for
general banking business in New Zealand;
a "directive" includes a present or future directive, regulation or
requirement of any agency of state or other regulatory, monetary or
accounting authority (whether or not having the force of law but, if
not having the force of law, the compliance with which is in accordance
with the general practice of persons to whom the directive relates or
is addressed);
the "dissolution" of a person also includes the winding-up, bankruptcy
or liquidation of that person and an equivalent and analogous procedure
under the law of any jurisdiction in which that person is incorporated,
domiciled, resident, carried an business or has assets;
"Indebtedness" includes an obligation (whether present or future,
actual or contingent, secured or unsecured, joint or several, as
principal, surety or otherwise) relating to the payment of money;
something having a "material adverse effect" on a person is a reference
to it having a material adverse effect on that person's commercial or
financial prospects or on its ability to comply with its obligations
under a Facility or a Document and references to "material adverse
change" shall be construed accordingly;
a "person" includes an individual, a body corporate, an association of
persons (whether corporate or not), a trust, a state and an agency of a
state (in each case, whether or not having a separate legal
personality);
a "security interest" includes a mortgage, pledge, charge, lien,
hypothecation, encumbrance, deferred purchase, title retention, or
other security arrangement of any kind, the practical effect of which
is to secure a creditor;
a "statement" includes a representation or warranty;
a "subsidiary" of a person includes;
(a) a subsidiary as defined in the Companies ▇▇▇ ▇▇▇▇; and
(b) any other person to be treated as a subsidiary in terms of any
statement of accounting practice issued from time to time by
the Now Zealand Society of Accountants;
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a gender includes each other gender and a reference to "its" includes a
reference to "his or "her" as the context requires;
the singular includes the plural and vice versa;
any legislation includes a modification and re-enactment of,
legislation enacted in substitution for and a regulation,
order-in-council and other instrument from time to time issued or made
under, that legislation; and
a party to these Terms or to any other agreement includes its
successors and. in the case of the Bank, its assignees and transferees.
indebtedness which is payable "on demand" is due and payable an the
date an which demand is made (or, if a later date is specified in the
demand, on that date).
Headings are to be ignored in construing these Terms,
1.3 Consent/Opinion: Where the consent of the Bank is required under a
Facility or these Terms, such consent will not be arbitrarily or
unreasonably withheld. If the Bank is to exercise an opinion under a
Facility or these Terms, such opinion will be exercised reasonably.
1.4 Conflict: In the event of any conflict between the terms of a Facility
or these Terms and the terms of the Debenture, the following order of
priority shall apply:
(a) the Facility:
(b) these Terms;
(c) the Debenture.
2. AVAILABILITY AND REPAYMENT
2.1 Availability of Accommodation: The Bank is not obliged to provide
accommodation under a Facility if:
(a) Cancellation Event: a Cancellation Event has occurred, or will
occur as a result of the accommodation being provided; or
(b) Statements: any statement made in or in connection with a
Facility or a Document is untrue, inaccurate or misleading in
any material respect.
2.2 Purpose: The Customer agrees to use each Facility for the purpose (if
any) set out in the relevant Facility Agreement and, until so used, the
Customer will hold the proceeds of the Facility on trust for the Bank.
2.3 Repayment: Unless otherwise agreed in writing (including, without
limitation, under a Facility Agreement), all indebtedness of the
Customer to the Bank is payable on demand made by the Bank (which
demand may be made by the Bank at any time at its absolute discretion).
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3. REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of Customer: The Customer represents and
warrants that:
(a) Obligations Binding:
(i) each Relevant Party has full power and authority to enter into
and comply with its obligations under each Facility or Document
to which it is expressed to be a party and has obtained all
consents needed to enable it to do so,
(ii) each Document has been (or when executed will have been) duly
authorised and entered into by each Relevant Party expressed to
be party to it; and
(iii) the Documents are (or when executed will be) legal, valid,
binding and enforceable against each Relevant Party:
(b) No Cancellation Event: other than as disclosed to the Bank in writing,
no Cancellation Event has occurred;
(c) Information: all information provided by any Relevant Party to the
Bank in connection with a Facility or a Document was true and accurate
when provided and except as disclosed to and accepted in writing by
the Bank remains so, and there are no facts or circumstances which
have not been disclosed to the Bank which would make that information
untrue, inaccurate or misleading;
(d) Accounts: its latest financial statements (and, if it has
subsidiaries, its latest consolidated financial statements) as
delivered to the Bank:
(i) were, except as stated in the notes to them, prepared in
accordance with generally accepted accounting practice as defined
in section 4 of the Financial Reporting ▇▇▇ ▇▇▇▇;
(ii) give a true and fair view of its financial position and the
consolidated financial position of it and its subsidiaries as at
the date and for the period to which they relate in accordance
with generally accepted accounting practice; and
(iii) include a true and complete copy of any auditors' report;
(e) No Security Interest: except as disclosed to and accepted in writing
by the Bank, no security interest exists over or affects, nor is there
any agreement to give or permit to exist any security interest over or
affecting, any assets of the Customer or any Group Member, and
(f) Solvency: the Customer satisfies the Solvency Test.
3.2 Representations and Warranties Continuing: Each of the statements in
paragraph 3.1 will be deemed to be repeated continuously so long as any
Facility is available to the Customer or the Customer is indebted to the
Bank, by reference to the facts and circumstances then existing.
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4. UNDERTAKINGS
4.1 General Undertakings: The Customer undertakes to the Bank that it will:
(a) Cancellation Events: notify the Bank of the occurrence of any
Cancellation Event and any event or circumstance which may have a
material adverse effect on it, immediately upon becoming aware of it;
(b) Information to be True: ensure that all information provided to the
Bank in Connection with a Facility or a Document is true and accurate
when provided, and does not omit to state anything which would make
that information materially untrue, inaccurate or misleading;
(c) Insurance. ensure that it and each of its subsidiaries:
(i) keeps insured with reputable insurers all its assets of an
insurable nature which are customarily insured against loss or
damage by fire, earthquake and war damage, and other risks
normally insured against by persons carrying on the same class of
business as that carried on by it (and any other risks which the
Bank may from time to time reasonably require) for their full
insurable value and, if requested by the Bank, ensure that the
Bank is named as co-insured for its interest an all such
policies; and
(ii) promptly pays all premiums and does all other things necessary to
maintain the insurances required by this clause; and
(d) Compliance with Laws: duly and promptly comply with all laws,
directives and consents the non-compliance with which might adversely
affect the rights or security of the Bank in any respect which the
Bank considers material.
4.2 Reporting and Financial Undertakings: The Customer undertakes to the Bank
that it will:
(a) Accounts: as soon as available and, in any event, within 90 days after
the end of each financial year and, if accounts are prepared for each
half year, for each half-year, deliver to the Bank its financial
statements and, if it has subsidiaries, its consolidated financial
statements as at the end of that financial year or half-year, and
(b) Other Information: promptly deliver to the Bank within 7 days of
request, any other information relating to the business affairs,
financial condition or operations of the Customer or any Group Member
which the Bank may, from time to time, reasonably request
4.3 Negative Undertakings: The Customer undertakes to the Bank that it will
not, and will ensure that each of its subsidiaries will not, without the
prior written consent of thBank:
(a) Change of Business. make or threaten to make a substantial change in
the nature or scope of its business; nor
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(b) Security Interest: create or permit to exist any security interest
over or affecting any of its assets except any created or permitted by
the Documents or securing indebtedness of not more than $250,000: nor
(c) Loans and Guarantees: lend money to another person or give a guarantee
except, in the case of a non-related company, in the ordinary course
of business, and then only on proper commercial terms and other than
the loan to National Media Corporation; nor
(d) Subsidiaries: form or acquire any subsidiary unless such subsidiary
guarantees all the Customer's obligations to the Bank (such guarantee
to be in a form acceptable to the Bank and provided within one month
of the formation or acquisition of that Subsidiary); nor
(e) Distribution: make or attempt to make a Distribution (other than by a
subsidiary to the Customer); nor
(f) Further Borrowing, borrow or raise money from any shareholder or other
person unless:
(i) its indebtedness in respect of the money borrowed or raised is
subordinated to the prior payment in full of all indebtedness to
the Bank by means of a deed of subordination in a form acceptable
to the Bank; or
(ii) immediately after incurring that indebtedness, the Customer
complies with the financial ratios set out in paragraph 4.4
below.
(g) Disposals:
(i) either by a single transaction or series of transactions, whether
related or not and whether voluntary or involuntary, dispose of
all or a substantial part of its assets except that the disposals
in the ordinary course of business are not to be taken into
account;
(ii) dispose of any shares in a subsidiary of the Customer, nor
(h) Amalgamation: pass any resolution for or in contemplation of the
amalgamation of the Company with, or involving, any other company then
existing or yet to be formed; nor
(i) Re-issue of Securities: re-issue any debenture or security redeemed by
it.
In this paragraph 4.3 a "disposal" of an asset includes the grant of an
option in respect of it and the payment of money and an agreement for any
of these, but excludes the creation of a security interest (and references
to "dispose" are to be construed accordingly).
4.4 Financial Covenants: The Customer undertakes to the Bank that it will
ensure that:
(a) Total Borrowed Moneys will at no time exceed 50% of Tangible Net
Worth;
(b) Tangible Net Worth will at no time be less than 40% of Total Tangible
Assets;
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(c) Total Borrowed Moneys will at no time exceed the Aggregate of Debtors
and Inventory;
(d) Current Assets are at least two times Current Liabilities, in each
case on the last day of each calendar month.
4.5 Directors' Report: at the same time as delivering the financial statements
required under paragraph 4.2. deliver to the Bank a report signed by two
directors of the Customer setting out calculations of the amounts of:
(i) Tangible Net Worth;
(ii) Total Borrowed Moneys:
(iii) Total Tangible Assets;
(iv) Current Assets and Current Liabilities; and
(v) Aggregate of Debtors and Inventory;
as at the end of that financial year or half-year and each report is also
to include calculations of the financial ratios referred to in paragraph
4.4 as at the end of, or for, that period; and
4.6 Definitions, In clause 4:
"Aggregate of Debtors and Inventory" means, on any day, the aggregate
amount of all Inventory and Debtors of the Group Members scaled at 60%.
"Balance Sheet" means a consolidated balance sheet of the Group Members
prepared as at any date, or in respect of any period, which complies with
the Financial Reporting ▇▇▇ ▇▇▇▇;
"Borrowed Money" means indebtedness for or in respect of money borrowed or
raised by any means including without limitation acceptances, deposits,
debt factoring with recourse, sale and repurchase arrangements and
redeemable preference shares or for the deferred purchase price of assets
or services but for the avoidance of doubt excluding:
(a) indebtedness under bona fide operating leases; and
(b) indebtedness to trade creditors and others in respect of assets and
services obtained in the ordinary course of ordinary business on
normal trade terms;
"Current Assets" means all assets which are considered by GAAP to be
current assets:
"Current Liabilities" means all assets which are considered by GAAP to be
current liabilities;
"GAAP" means generally accepted accounting practices within the meaning of
the Financial Reporting ▇▇▇ ▇▇▇▇;
"Inventory" means, on any day, the aggregate of all stock held by the Group
Members on that day (including all stock on the water on that day);
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"Subordinated Advances" means, at any time, the then current principal
amount of any Borrowed Money of the Customer which is to the satisfaction
of the Bank effectively subordinated to all indebtedness of the Customer to
the Bank;
"Tangible Assets" means all assets except:
(a) future tax benefits, patents, trade names, trademarks, goodwill; and
(b) all other assets which should, according to GAAP, be regarded as
intangible assets;
"Tangible Net Worth" means, at any time, the total on a consolidated basis
of:
(a) the paid up share capital (excluding minority interests) and reserves
of the Group Members as would be disclosed in a Balance Sheet if such
balance sheet was then prepared; and
(b) Subordinated Advances,
adjusted by deducting the aggregate amount on a consolidated basis of all
future tax benefits, patents, trademarks, goodwill and other assets of the
Group Members which should, according to GAAP, be regarded as intangible
assets;
"Total Borrowed Moneys" means the aggregate amount an a consolidated basis
of all Borrowed Money of the Group Members, including, without limitation:
(a) money borrowed or raised from any shareholder of the Customer.
(b) money utilised pursuant to the Facilities,
and capitalised interest thereon but excluding all Subordinated Advances;
"Total Tangible Assets" means, at any time, the aggregate amount on a
consolidated basis of the Tangible Assets of the Group Members as would be
disclosed in a Balance Sheet if such balance sheet was then prepared.
4.7 Privacy Act Authority. The Customer authorises the Bank during the term
hereof to discuss its financial statements and financial affairs at any
time with:
(a) its accountants and auditors , and irrevocably authorises and requests
its accountants, auditors and solicitors to provide to the Bank during
the term hereof any information regarding the Customer upon request by
the Bank; and
(b) any guarantor of any indebtedness or other obligation of the Customer
to the Bank.
Nothing in this clause shall oblige the Bank to provide any information
concerning the financial statements, financial affairs (including, without
limitation, details of any indebtedness) or any other matter concerning the
Customer to a guarantor or any other person.
5. CANCELLATION EVENTS
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5.1 Cancellation Events: If at any time and for any reason, whether or not
within the control of a party;
(a) Non-Payment: the Customer fails to pay within two days of its due date
any amount payable under a Facility or a Document; or
(b) Breach of Undertaking: the Customer does not perform or comply with
any of its obligations under a Facility or a Document in any respect
which the Bank considers material; or
(c) Statements Incorrect: any statement by the Customer made in, or in
connection with, a Facility or a Document is not true, accurate and
complied with in a material respect when made or repeated; or
(d) Insolvency: the Customer is insolvent or unable to pay its
indebtedness as it falls due or proceedings are commenced (and not
dismissed within 30 days) or an order is made or any step is taken for
the dissolution of the Customer,- or
(e) Enforcement: any legal process for an amount in excess of $150,000 is
levied or enforced against the Customer or its assets, and is not
discharged or stayed within 5 days or a receiver, trustee, statutory
manager or similar officer is appointed in respect of it or any of its
assets; or
(f) Cross Default: any indebtedness of the Customer exceeding $150,000 is
not paid when due or any security interest affecting any of its assets
becomes enforceable; or
(g) Material Adverse Change: in the opinion of the Bank, a material
adverse change occurs in relation to the Customer; or
(h) Avoidance or Repudiation: the enforceability of any Document is
contested by any person or it becomes unlawful for the Customer to
comply with any of its obligations under any Document; or
(i) Relevant Parties: any event specified in sub-paragraphs (c) or (b) of
this paragraph 5 occurs with respect to a Group Member or another
Relevant Party (as if references in those sub-paragraphs to the
Customer were references to each Group Member or other Relevant
Party); or
(j) Documents: an event of default or termination event (however
described) occurs under a Facility or any other Document; or
(k) Change in Control: without the prior written consent of the Bank there
is any change in the control of the Customer or any person controlling
the Customer; or
(l) Minority Buy Out: the Customer agrees to purchase all or any of the
shares of a shareholder following receipt by the Customer of a notice
by that shareholder pursuant to section 111(1) of the Companies ▇▇▇
▇▇▇▇.
then the Bank may, at any time, by notice to the Customer:
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(m) cancel each or any Facility; and/or
(n) declare any or all indebtedness of the Customer to the Bank which is
repayable other than on demand to be, and that indebtedness will be
due and payable either immediately or at such later date as the Bank
may specify and/or
(o) require the Customer to pay (and the Customer will pay) to the Bank
either immediately or upon demand or at a later date as the Bank may
specify an amount equal to the aggregate face values of all bills of
exchange outstanding under any ▇▇▇▇ Facility (or any lesser amount
which the Bank may specify in writing).
5.2 Review Event:
(a) Review Event: If at any time a Relevant Party is insolvent or unable
to pay its indebtedness as it falls due or proceedings are commenced
(and not dismissed within 30 days) or an order is made or any step is
taken for the dissolution of the Customer (or any similar or
equivalent step or procedure is taken or occurs in any other
jurisdiction) then the Bank may, by notice to the Customer (a "review
notice"), advise the Customer that it wishes to review any Facility.
(b) Bank may Refuse: Following its issue of a review notice in respect of
a Facility, the Bank may, notwithstanding any other provision of any
Document, at its absolute discretion refuse to provide accommodation
under the Facility unless and until:
(i) it has agreed with the Customer the terms on which the Bank will
continue with the Facility, and
(ii) those terms are given effect to (to the satisfaction of the
Bank).
(c) Consultations: Following its issue of a review notice in respect of a
Facility, the Bank will consult with the Customer with a view to
determining whether or not the parties can agree on the terms on which
the Bank will continue with the Facility. it is specifically
acknowledged and agreed that the Bank is under no obligation
whatsoever to continue with the Facility an the existing terms beyond
the expiry of 30 days after the date of issue of a review notice or to
agree to any amended terms.
(d) Termination: If the Bank has issued a review notice in respect of a
Facility and either.
(i) the Customer has declined or failed to so consult with the Bank
within the period of 30 days following the date of issue of that
review notice, or
(ii) having so consulted with the Customer, the Bank at the end of the
period of 30 days commencing on the date of issue of that review
notice wishes to cancel the Facility (notwithstanding any terms
proposed or the status of any negotiations); or
(iii) although the Bank and the Customer have negotiated the terms on
which the Bank will continue with the Facility, those terms are
not given effect to (to the satisfaction of the Bank) within such
time as the Bank may stipulate,
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then the Bank may, at any time thereafter, by notice to the
Customer (a "cancellation notice"):
(iv) cancel the Facility; and
(v) to the extent that any indebtedness of the Customer to the Bank
under the Facility does not fall due for payment earlier, declare
such indebtedness to be, and that Indebtedness will be, due and
payable an such date as nominated by the Bank, but not earlier
than 60 days after the date of issue of the review notice.
6. CHANGE IN CIRCUMSTANCES
6.1 Illegality: If, at any time, the Bank determines that it is or may become
unlawful to provide a Facility or allow all or part of the accommodation
under a Facility to remain outstanding, or to discount bills, or to receive
interest or to comply with any of its obligations or exercise any of its
rights under any Document then the Bank may, at any time, by notice to the
Customer
(a) cancel each Facility; and/or
(b) declare all indebtedness of the Customer to the Bank which is
repayable other then an demand and If the Bank directs the aggregate
face values of all bills of exchange outstanding under any ▇▇▇▇
Facility to be, and that indebtedness and other amounts outstanding
will be, due and payable either immediately or at such later date as
the Bank may specify.
6.2 Increased Costs: if, as a result of:
(a) the introduction of, or a change in, a law or directive or a change in
its interpretation, application or administration; or
(b) compliance by the Bank with a directive,
the Bank determines that:
(c) the cost to the Bank of making, funding or maintaining a Facility is
increased; or
(d) any amount payable to the Bank or the effective return to the Bank
under a Facility is reduced; or
(e) there is a reduction in the Bank's effective rate of return on its
overall capital which, in its view, is attributable to either of
paragraphs (a) or (b) applying in relation to its obligations under a
Facility or to any class of obligations of which they form part; or
(f) the Bank makes any payment or forgoes any interest or other return on
or calculated by reference to any sum received or receivable by it
from the Customer in an amount which the Bank considers material,
then, upon demand from time to time by the Bank, the Customer will pay to
the Bank the amount certified by the Bank to be necessary to compensate it
for that increased cost, reduction,
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payment or forgone interest or other return (or that portion of it as
in the Bank's opinion is attributable to the relevant Facility).
7. INDEMNITY AND DEFAULT INTEREST
7.1 General Indemnity: The Customer will on demand indemnify and hold the Bank
harmless against each loss, expense and liability sustained or incurred by
the Bank as a result of:
(a) the occurrence or continuation of a Cancellation Event, or a Relevant
Party not complying with its obligations under a Facility or a
Document;
(b) an amount payable to the Bank under a Facility or a Document not being
paid when due;
(c) any accommodation not being drawn on the intended date for drawing; or
(d) any indebtedness being paid earlier than originally due (even if that
prepayment is permitted by the Documents or is required by the Bank),
by payment to the Bank of the amount the Bank certifies is required to
indemnify it for that loss, expense or other liability,
7.2 Default Interest: If the Bank does not receive, when due (in the case of
principal) or within five business days (in the case of any other amount),
an amount payable to it by the Customer then the Customer shall pay
interest on that overdue amount calculated from its due date to the date of
its receipt by the Bank (after as well as before judgment) compounded and
payable at intervals selected by the Bank at its discretion. This
obligation to pay default interest is to arise without the need for a
notice or demand. The rate of default interest is to be the rate 2% per
annum above the rate certified by the Bank to be the cost of funding the
overdue amount from time to time.
8. PAYMENTS AND SET-OFF
8.1 Mode of Payments: Each payment by the Customer to the Bank is to be made by
3.00 p.m. on the due date in immediately available freely transferable
funds in the manner and to the account which the Bank specifies from time
to time.
8.2 Payments to be Free and Clear: Each payment by the Customer to the Bank is
to be unconditional and is to be in full, without any deduction or
withholding whatsoever (whether in respect of tax, set-off, counterclaim,
charges or otherwise) unless such deduction or withholding is required by
law. If any deduction or withholding is required by law, the Customer will
pay to the Bank an additional amount so that the net amount actually
received and retained by the Bank an the due date (free from any liability
in respect of any deduction or withholding, and ignoring any amount which
the Bank is deemed to have received by reason of any legislation) equals
the full amount which the Bank would have received and retained had no such
deduction or withholding been made or required.
8.3 Set Off: The Customer authorises the Bank to apply (without prior notice or
demand) any credit balance of the Customer on any account in any currency
and at any of the Bank's offices, in or towards satisfaction of any
indebtedness of the Customer then due to the Bank and unpaid- If
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at any time after a Cancellation Event has occurred an amount is
contingently due to the Bank or an amount due is not quantified, the Bank
may retain and withhold repayment of any such credit balance and the
payment of interest or other moneys pending that amount becoming due or
being quantified and may set off the maximum liability which may at any
time be or become owing to the Bank by the Customer and in each case
without prior notice or demand. The Bank:
(a) may use any credit balance to buy other currencies and may break any
term deposit to effect that application; and
(b) need not exercise its rights under this paragraph, which are without
prejudice and in addition to the rights of the Bank under any other
Document and any right of set-off, combination of accounts, lien or
other right to which it is at any time otherwise entitled (whether by
law or contract).
The Bank's rights under this paragraph are contractual rights affecting
the terms upon which a credit balance is held and the creation of those
rights does not constitute the creation of a security interest in that
credit balance.
8.4 Authority to Debit: The Bank is authorised to debit any account of the
Customer with any amount of indebtedness then due to the Bank from time to
time. The Bank may exercise this right even if the account concerned is
already in debit, and even if the amount debited takes the debit balance of
the account over any approved limit. The Bank may debit any amount due on
any day on or after the due date.
8.5 Deposits with Bank: Each credit balance of the Customer with the Bank will
be held on the following basis;
(a) the credit balance, and all the Customer's rights in relation to it,
are incapable of assignment or of being the subject of a security
interest (other than in favor of, or with the prior written consent
of, the Bank): and
(b) if at any time a Cancellation Event has occurred and has not been
remedied, the Customer will have no right to withdraw (and the Bank
will have no obligation to repay) any moneys from that credit balance
(other than with the prior written consent of the Bank).
9. CALCULATIONS AND EVIDENCE
9.1 Basis of Calculation: Unless otherwise agreed in writing, all interest will
be calculated an the basis of the number of days elapsed and a 365 day
year.
9.2 Conclusive Evidence: A certificate by the Bank of an amount payable, under
a Facility or a Document is to be conclusive evidence for all purposes
including for any proceedings.
10. ASSIGNMENT
10.1 The Bank: The Bank may not assign or transfer all or part of its rights or
obligations under a Facility or a Document without the consent of the
Customer (not to be unreasonably withheld). Each assignee or transferee is
to have the same rights against the Customer under each relevant
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Facility or Document (or relevant portion of those rights if it is the
assignee or transferee of part only) as if it were the Bank.
10.2 Disclosure of Information: The Bank may disclose, on a confidential basis,
to a potential assignee, transferee or other person with whom contractual
relations in connection with a Facility are contemplated, any information
about the Customer whether or not that information was obtained in
confidence and whether or not that information is publicly available.
10.3 The Customer The Customer may not assign or transfer any of its rights or
obligations under any Facility or Document without the prior written
consent of the Bank.
11. NOTICES
11.1 Addresses and References: Each notice or other communication is to be made
in writing and sent by facsimile, personal delivery or by post to the
addressee at the facsimile number or address, and marked for the attention
of the person (if any), from time to time designated for that purpose.
11.2 Deemed Delivery: No communication will be effective until received.
Communications to the Customer, however, will be deemed to be received:
(a) in the case of a letter, on the third business day after posting; and
(b) in the case of a facsimile, on the business day on which it is
despatched or, if received after 5.00 p.m. in the place of receipt, on
the next business day after the date of despatch.
12. EXPENSES AND TAXES
12.1 Expenses: The Customer will pay each cost and expense (including all legal
expenses on a solicitor and own client basis) sustained or incurred by the
Bank in connection with:
(a) the preparation, negotiation and entry into of each Facility and
Document, and each other transaction required or contemplated thereby;
(b) each amendment to a Facility or Document or any other transaction
required or contemplated by a Facility or Document; and
(c) the exercise of, or in protecting or enforcing or otherwise in
connection with, the Bank's rights under a Facility or Document or
another transaction required or contemplated by a Facility or
Document, in each case on demand and an a full indemnity basis and, in
the case of (a) and (b), to the extent such costs or expenses are
reasonable.
12.2 Taxes: The Customer will pay promptly any stamp or similar duty and any tax
(including GST) and registration fee payable in connection with:
(a) the entry into, performance, registration, enforcement or
admissibility in evidence of any Facility or Document: and
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(b) an amendment to, or waiver in respect of, any Facility or Document,
and will indemnify and hold the Bank harmless against any liability
resulting from any failure to pay any duty, tax or fee when due.
13. MISCELLANEOUS
13.1 Rights: Time is of the essence in respect of all dates and times for
performance by the Customer of its obligations under each Facility and
Document. The rights of the Bank under the Documents are cumulative, may be
exercised as often as it considers appropriate and are in addition to any
other contractual rights it may have against the Customer and its rights
provided by law.
13.2 Amendments: No amendment to a Document will be effective unless it is in
writing signed by all the parties to that Document.
13.3 Partial Invalidity: The illegality, invalidity or unenforceability of a
provision of a Document under any law will not affect the legality,
validity or enforceability of that provision under another law or the
legality, validity or enforceability of another provision.
13.4 Further Assurance: The Customer irrevocably appoints the Bank as its
attorney to do any act which may be done by the Customer, or which ought to
be done by the Customer, under any Document.
13.5 Waivers: No failure to exercise, and no delay in exercising, any right
under a Document will operate as a waiver of that right, nor will a single
or partial exercise of a right preclude another or further exercise of that
right or the exercise of another right. No waiver by the Bank of its rights
under a Document will be effective unless it is in writing signed by the
Bank.
13.6 Governing Law: Each Document is governed by and is to be construed in
accordance with New Zealand law.
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