EXHIBIT 10.77
FACILITY AGREEMENT
RABO AUSTRALIA LIMITED
(CAN 060 452 217)
THE FIRST NATIONAL BANK OF CHICAGO
(ARBN 065 752 918)
AND
PENRICE SODA PRODUCTS PTY LTD
(CAN 008 206 942)
AND
PENRICE HOLDINGS PTY
(CAN 008 125 835)
AND
IMC GLOBAL AUSTRALIA PTY LTD
(CAN 072 639 902)
AND
IMC GLOBAL INC.
XXXXX XXXXXXXX
Lawyers
000 Xxxxxxxx Xxxxxx
Xxxxxxxx XX 00000
Xxxxxxxxx
Telephone: (00) 0000-0000
Facsimile: (00) 0000-0000
TABLE OF CONTENTS
Page No.
1. INTERPRETATION 2
1.1 Definitions 2
1.2 Construction 6
2. THE FACILITY 8
3. ACCOMMODATION LIMIT 8
4. PURPOSE OF THE FACILITY 8
5. DRAWDOWN8 7
5.1 Time of Drawdown Notice 8
5.2 Drawdown Notice 8
5.3 Term Loan 9
5.4 Liability for Drawdown 9
5.5 Minimum Drawn 9
5.6 Provision of Funds 9
5.7 Payment to Borrower 9
6. INTEREST 9
7. FEES, EXPENSES & CHARGES 11
7.1 Establishment Fee 11
7.2 Line Fee 11
7.3 Agency Fee 12
7.4 Expenses 12
7.5 Government Charges 12
7.6 Increase in Costs by Government Action 13
7.7 Gross Up 14
8. REPAYMENTS 15
8.1 Payment of Principal 15
8.2 Redrawing 16
8.3 Early Repayment of Advances 16
8.4 Manner of Payment 17
8.5 Distribution by Administrative Agent 17
8.6 Non-receipt of funds by the Administrative
Agent from the Borrower 17
9. TERMINATION OF FACILITY 18
10. CONDITIONS PRECEDENT 18
10.1 To the Facility 18
10.2 To A Drawdown 19
11. REPRESENTATIONS AND WARRANTIES 19
11.1 Status 19
11.2 This Agreement 19
11.3 Third Party Rights 19
11.4 Authorities 20
11.5 Other Commitments 20
11.6 Litigation 20
11.7 Taxation 20
11.8 Unsecured Liabilities 20
11.9 Trusts 21
11.10 Insurance Policies 21
11.11 Adverse Circumstances 21
11.12 Year 2000 Compliance 21
11.13 No Misrepresentation 21
12. GENERAL OBLIGATIONS 22
12.1 Authorities 22
12.2 Notice of Default 22
12.3 Law 22
12.4 Access 22
12.5 Negative Pledge 23
12.6 Inspection 23
12.7 Public Information 24
13. FINANCIAL INFORMATION 24
14. EVENTS OF DEFAULT 24
15. INDEMNITIES 27
16. GUARANTEE 27
17. GENERAL INDEMNITY 27
18. INDEMNITY FOR AVOIDANCE OF GUARANTEED MONEY 28
19. PAYMENT OF GUARANTEED MONEY 28
20. ACKNOWLEDGMENT 28
21. PRINCIPAL OBLIGATION 28
22. CONTINUING GUARANTEE AND INDEMNITY 29
23. AMOUNT OF GUARANTEED MONEY 29
24. UNCONDITIONAL NATURE OF OBLIGATIONS 29
25. NO COMPETITION 31
26. PROOF BY LENDER 31
27. AVOIDANCE OF PAYMENTS 32
28. RETENTION OF AGREEMENT 32
29. EXCLUSION OF MORATORIUM 32
30. NON-EXERCISE OF GUARANTOR'S RIGHTS 33
31. PAYMENTS IN GROSS 33
32. SUSPENSE ACCOUNT 33
33. APPOINTMENT OF ADMINISTRATIVE AGENT 33
34. POWERS AND DUTIES OF ADMINISTRATIVE AGENT 34
35. GENERAL IMMUNITY 34
36. NO RESPONSIBILITY FOR LOANS ETC 34
37. ACTING ON INSTRUCTIONS OF LENDER 35
38. ADMINISTRATIVE AGENT AND LEGAL ADVISERS 35
39. RELIANCE ON DOCUMENTS AND LEGAL ADVICE 35
40. AGENT'S INDEMNIFICATION 35
41. LENDER CREDIT DECISIONS 36
42. RESIGNATION OF ADMINISTRATIVE AGENT 36
43. CERTIFICATIONS 37
44. UNLAWFULNESS 37
45. AUTHORITY TO DEBIT ACCOUNTS 38
46. NO WAIVER 38
47. MERGER 38
48. TIME OF THE ESSENCE 38
49. SET OFF 39
50. APPROPRIATION 40
51. SUCCESSORS 40
52. ASSIGNMENT 40
53. NOTICES 40
54. OTHER DOCUMENTS 41
55. AMENDMENT 41
56. GOVERNING LAW AND JURISDICTION 42
57. SEVERANCE 42
58. COUNTERPARTS 42
59. ENTIRE AGREEMENT 42
AGREEMENT made the 23 day of September 1998
BETWEEN: RABO AUSTRALIA LIMITED (ACN 060 452 217) of Xxxxx
0,000 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx (Xxxxxx)
AND: THE FIRST NATIONAL BANK OF CHICAGO (ARBN 065 752 918)
of 00 Xxxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxx Xxxxxxxxx
(Administrative Agent)
AND: PENRICE SODA PRODUCTS PTY LTD (ACN 008 206 942) of
Xxxxxx Xxxx, Xxxxxxx, Xxxxx Xxxxxxxxx 0000 (Soda)
AND: PENRICE HOLDINGS PTY (ACN 008 125 835) of Xxxxxx Xxxx,
Xxxxxxx, Xxxxx Xxxxxxxxx 0000 (Holdings)
AND: IMC GLOBAL AUSTRALIA PTY LTD (ACN 072 639 902) of
Xxxxxx Xxxx, Xxxxxxx, Xxxxx Xxxxxxxxx 0000 (IMC)
AND: IMC GLOBAL INC, a Delaware Corporation of 0000 Xxxxxxx
Xxxx, Xxxxxxxxxx, Xxxxxxxx 00000, 6142 (Guarantor)
INTRODUCTION
A. The Borrower and the Guarantor have requested that the Lender
provide or continue to provide certain financial accommodation
to the Borrower.
B. The Lender desires to provide or to continue to provide such
financial accommodation to the Borrower upon and subject to the
terms and conditions of this Agreement.
OPERATIVE PROVISIONS
SECTION A
1. INTERPRETATION
1.1 Definitions
In this Agreement unless the context otherwise requires:
"Accommodation Limit" means:
(a) in respect of the Revolving Credit Facility,
A$16,66.666.67;
(b) in respect of the Term Loan Facility
A$8,333.333,33;
or such other amounts (expressed in Australian dollars)
which the Lender and the Borrower may agree upon in
writing from time to time.
"Administrative Agent" means The First National Bank of
Chicago (ARBN 065 752 918) or any other person appointed
as Administrative Agent for the purposes of this
Agreement.
"Advance" means any cash advance drawn under this
Facility (including a Term Loan).
"this Agreement" means this Agreement and any other
agreement expressed to be supplemental to this Agreement
to which the parties to this Agreement are parties and
any amendments to any such document.
"Announcement Date" means the date on which Standard and
Poors Rating Agency announces a rating change of the
long term unsecured debt of the Guarantor.
"Approved Purposes" means the refinancing of borrowings
of the Borrower at the date of this Agreement and
general working capital requirements.
"Authorized Officer" means:
(a) in relation to the Borrower each director and
secretary of the Borrower and each person from
time to time notified in writing by the Borrower
to the Administrative Agent to be an Authorized
Officer;
(b) in relation to the Lender and the Administrative
Agent each director and secretary and each
employee of the Lender or the Administrative
Agent (as the case may be) whose title includes
the word "Manager" or "Director" and includes
any person acting in any such capacity; and
(c) in relation to the Guarantor each person whose
title is Chairman, President, Chief Executive
Officer, Chief Financial Officer Senior or
Treasurer and includes any person acting in any
such capacity.
"BBSY Rate" means in respect of any day and in respect
of any Interest Period the rate per centum per annum
quoted on the page numbered "BBSY" of the Reuters
Monitor System under the heading "Average Bid Rate" for
such Interest Period at or about 10:00 am (Sydney time)
on such day or on the first day of such Interest Period
(rounded up, if necessary, to the nearest two decimal
places) PROVIDED THAT if in respect of any Interest
Period the Average Bid Rate cannot be determined in
accordance with the foregoing procedures then "Average
Bid Rate" for that Interest Period shall mean such rate
as is agreed between the Administrative Agent and the
Borrower having regard to comparable indices then
available and in the absence of any such agreement shall
be the rate stipulated by the Administrative Agent
having regard to such comparable indices.
"Xxxx" has the same meaning as in the Bills of Exchange
Act 1909 (Cwth) (but does not include a cheque).
"the Borrower" means Soda, Holdings and IMC and includes
each of their successors and permitted assigns.
"Business Day" means a day on which Australian trading
banks are open for a full range of banking business in
the metropolitan area of Adelaide, South Australia,
Melbourne, Victoria and Sydney, New South Wales.
"Drawdown" means an Advance made by the Lender to the
Borrower pursuant to this Agreement.
"Drawdown Date" means a date upon which an Advance is
made by the Lender to the Borrower pursuant to this
Agreement.
"Drawdown Notice" means a notice of intention of the
Borrower to borrow or redraw hereunder being a notice in
the form or the effect of the form in Schedule 1.
"Event of Default" means any of the events designated as
such in this Agreement.
"Facility" means the Revolving Credit Facility and the
Term Loan Facility made available under this Agreement
and each of them separately.
"Financial Year" means the period from 1 January to the
next following 31 December or such other period of one
(1) year as the Borrower and the Administrative Agent
may agree in writing from time to time.
"Guarantor" means IMC Global Inc, a Delaware
Corporation.
"the Lender" means [insert name of lending bank] and its
successors and assigns
"Interest Period" means each period of each Advance
being a period of 30, 60, 90, 120, 150, or 180 days or
such other period as the Lender and the Borrower may
agree provided that such period shall not extend beyond
the Repayment Date.
"Law" means the Corporations Law or the relevant
corresponding legislation applicable to companies
incorporated outside of the Commonwealth of Australia.
"Loans" means the aggregate of all Principal Moneys
which are from time to time owing (including
contingently owing) or unpaid to the Lender and all
other monies from time to time owing (including
contingently owing) and unpaid to the Lender or the
Administrative Agent under this Agreement.
"Overdraft Rate" means the rate of interest equal to 2%
above the rate of interest referred to in clause
6.1.1(a).
"Permitted Security" means a Security Interest which:
(a) has been approved by or is in favour of the
Lender;
(b) is a statutory charge on any property in
relation to taxes while those taxes are not due
for payment unless the Lender is satisfied that
the amount of or obligation to pay those taxes
is being contested in good faith and on
reasonable grounds;
(c) secures the purchase price of goods, plant or
equipment purchased by the Borrower from a third
party on arms length terms and used by it in the
ordinary course of its business, is in favour of
such third party and is over such goods, plant
or equipment;
(d) is over property of a person who, after the date
of this document becomes a Subsidiary of the
Borrower provided:
(i) it existed at the time that person
became a Subsidiary of the Borrower;
(ii) it was not created in anticipation of or
in connection with that person becoming
a Subsidiary of the Borrower; and
(iii) the financial indebtedness outstanding
and actually secured by it at the time
that person became a Subsidiary of the
Borrower is not increased and the date
for repayment of that financial
indebtedness is not extended;
(e) secures or is an operating or finance lease hire
purchase or rental purchase agreement in respect
of plant and equipment with unrelated third
parties in the ordinary course of its business
and on commercial terms provided that the total
commitment of the Borrower (including any option
for purchase) for the whole of the terms of such
leases or hire purchase or rental purchase
agreements shall not exceed A$3,500,000 at any
one time.
"Principal Moneys" means the aggregate of the Advances
outstanding.
"Quarter" means each quarter period ending on the last
days of March, June, September and December in each
year.
"Repayment Date" means:
(a) in respect of the Revolving Credit Facility the
date being two years from the date of this
Agreement; and
(b) in respect of the Term Loan Facility the date
being five years from the date of this
Agreement;
or such later dates as may be agreed in writing between
the Lender and the Borrower.
"Revolving Credit Facility" means the cash advance
revolving credit facility made available under this
Agreement.
"Security, Interest" means any security or preferential
interest or arrangement of any kind in any asset or
other right of or arrangement of any kind with any
creditor to have its claim satisfied before other
creditors with or from the proceeds of any asset and any
deposit of money by way of security but does not include
a Permitted Security.
"Subsidiary" means:
(a) a subsidiary as defined in the Law; or
(b) in respect of a person any entity of which that
person owns or controls, or is in a position to
own or control whether directly or indirectly,
more than fifty per cent (50%) of the capital or
voting rights;
and includes any subsidiary formed or acquired after the
date of this Agreement.
"Term Loan" means any term loan drawn under the Term
Loan Facility.
"Term Loan Facility" means the term loan facility made
available under this Agreement;
"Year 2000 Problem" means the risk that computer
applications used by the Borrower or the Guarantor or
any of their Subsidiaries, suppliers or customers may be
unable to recognise and perform properly date-sensitive
functions involving certain dates prior to and any date
after 31 December 1999.
1.2 Construction
In this Agreement unless the context otherwise requires:
(a) A reference to any Act of Parliament or to any
section or provision thereof shall be read as if
the words "or any statutory modification or re-
enactment thereof or any statutory provision
substituted therefore" were added to such
reference.
(b) A reference to winding up shall when applied to
individuals be deemed to refer to bankruptcy.
(c) A reference to an accounting term or "Accounting
Standards" is to be interpreted in accordance
with approved accounting standards and practices
under the Law, and, where not inconsistent with
those accounting standards and practices
generally accepted principles and practices in
the jurisdiction under which the relevant
accounts are prepared consistently applied to a
body corporate or as between bodies corporate
and over time. A reference to "consolidated" in
relation to accounts or other financial
information, data or statistics with respect to
a person means treated for accounting purposes
as if accounting standards and generally
accepted accounting principles for the creation
of consolidated accounts applicable to a holding
company and its subsidiaries applied to the
person.
(d) References to sub-clauses, clauses and schedules
are references to sub-clauses, clauses and
schedules of this Agreement.
(e) References to any agreement, licence or other
instrument shall be deemed to include references
to such agreement, licence or other instrument
as varied or replaced from time to time.
(f) Words importing any gender shall include all
other genders; words importing individuals shall
include partnerships and corporations and vice
versa; words importing the singular number shall
include the plural and vice versa; the index (if
any) and headings are for convenience and shall
not affect the interpretation of this Agreement.
(g) Where under or pursuant to this Agreement or
anything done under this Agreement the day on or
by which any act, matter or thing is to be done
is not a Business Day such act, matter or thing
may be done on the next succeeding day which is
a Business Day (except with respect to the
payment of monies payable under this Agreement
which shall be made on the immediately preceding
day which is a Business Day).
(h) An agreement, representation or warranty on the
part of two or more persons binds them jointly
and each of them severally.
(i) (subject to clause 5.4) where there are two or
more persons included in the expression "the
Borrower" a reference to "the Borrower" shall
where the context so permits include a reference
to each of such persons separately and any two
or more or such persons together.
SECTION B
2. THE FACILITY
2.1 In consideration of the premises the Lender agrees to
furnish to the Borrower the Facility as a committed
facility upon and subject to the terms and conditions in
this Agreement.
2.2 The Facility will be made available in Australian
currency.
3. ACCOMMODATION LIMIT
3.1 At any one time the aggregate amount of Advances
outstanding shall not exceed the Accommodation Limit.
3.2 the Lender shall not be obliged to make any Advance to
the Borrower if to so do would result in the aggregate
amount of Advances outstanding exceeding the
Accommodation Limit.
3.3 In the event that the Borrower is at any time in breach
of clause 3.1 the Borrower will make payment to the
Lender on demand of any amount necessary to remedy such
breach.
4. PURPOSE OF THE FACILITY
Financial accommodation granted by the Lender to the Borrower
under this Agreement shall be used solely for the Approved
Purposes and the Borrower shall not use the same for any other
purpose except with the prior written approval of the Lender to
do otherwise. Neither the Lender nor the Administrative Agent
shall have any responsibility to see to the application of the
financial accommodation by the Borrower.
5. DRAWDOWN
5.1 Time of Drawdown Notice
Whenever the Borrower intends to borrow or redraw
hereunder it shall give the Administrative Agent a
Drawdown Notice not later than 2:00 pm (Melbourne Time)
two (2) Business Days before the proposed date of such
borrowing, redrawing or issuing.
5.2 Drawdown Notice
A Drawdown Notice shall be under the common seal of the
Borrower or under the hand of an Authorised Officer of
the Borrower.
5.3 Term Loan
The Term Loan Facility shall be drawndown in full within
seven days of the date of this Agreement.
5.4 Liability for Drawdown
The only party liable as principal debtor under this
Agreement in relation to any Advance is the party that
draws or obtains that Advance.
5.5 Minimum Drawn
Each Drawdown under the Revolving Credit Facility shall
be a minimum of A$1,000,000 and shall be in multiples of
A$250,000.
5.6 Provision of Funds
If the Borrower gives a Drawdown Notice then, pursuant
to this Agreement, the Lender must provide to the
Administrative Agent in same day funds in not later than
12 noon (Melbourne time) on the specified drawdown date
and in accordance with that Drawdown Notice.
5.7 Payment to Borrower
On receipt of the amounts paid to it by the Lender under
clause 5.5, the Administrative Agent must pay the same
in same day funds to the Borrower or as directed by that
Borrower.
6. INTEREST
6.1 The Borrower shall pay to the Administrative Agent for
the account of the Lender interest as follows:
6.1.1 Interest Rate
(a) Interest on each Advance pursuant to the
Revolving Credit Facility (not being an
advance under the Overdraft Facility)
for each Interest Period at the rate per
centum per annum determined by the
Lender to be the aggregate of:
(i) a margin of point three per
centum (.3 %) per annum; and
(ii) the BBSY Rate.
(b) Interest on each Advance being a Term
Loan for each Interest Period at the
rate per centum per annum determined by
the Lender to be the aggregate of:
(i) a margin of point three five
per centum (.35%) per annum;
and
(ii) the BBSY Rate.
6.1.2 Calculation
(a) Interest shall accrue from day to day
and be payable on so much as the
Lender may have advanced to the
Borrower, and which remains owing to
the Lender from time to time.
(b) All sums falling due hereunder by way
of interest or fees on a per annum
percentage basis shall be calculated
on the basis of a 365 day year for
Advances or fees payable in Australian
currency and a 360 day year for all
other currencies for the actual number
of days elapsed.
6.1.3 Payment
Interest shall be paid at the end of each
Interest Period (and at the expiration of each
90 day period during such Interest Period if
any Interest Period is greater than 90 days)
save that the last interest payment shall be
made on the Repayment Date.
6.2 The Borrower shall pay interest on all monies due and
unpaid by the Borrower under or pursuant to this
Agreement at the rate of two (2%) per cent above the
Overdraft Rate which applies as at the date such monies
become due and payable. All interest which accrues
under this sub-clause during any calendar month shall
become due and payable on the last Business Day of that
calendar month.
6.3 All interest due and unpaid at the option of the Lender
shall be capitalized on a monthly basis and bear
interest accordingly.
6.4 The Borrower shall on the expiration of each Interest
Period in respect of a Term Loan provide to the
Administrative Agent an Interest Period Notice in the
form of Schedule 2 and if it shall fail to provide such
Notice to the Administrative Agent, the Interest Period
shall be ninety (90) days.
7. FEES, EXPENSES & CHARGES
7.1 Establishment Fee
The Borrower shall pay to the Administrative Agent for
the account of the Lender an establishment fee of
A$12,500 such fee to be paid on the date of this
Agreement and not to be refundable to the Borrower in
any event.
7.2 Line Fee
7.2.1 The Borrower shall pay to the Administrative
Agent for the account of the Lender:-
(a) a line fee of the percentage per annum
set out hereunder on the Accommodation
Limit in respect of the Revolving
Credit Facility; and
(b) a line fee of the percentage per annum
set out hereunder on the Accommodation
Limit in respect of the Term Loan
Facility.
Rating, by Standard and
Poors Rating Agency of
the long term unsecured
debt of the Guarantor Percentage
BBB+ .25%
BBB .3%
BBB- .35%
7.2.2 The adjustments to line fee percentage rates
prescribed in clause 7.2.1 resulting from
changes, if any, to the ratings by Standard
Poors Rating Agency shall be effective and
payable from and including the Announcement
Date. If an adjustment is required because
the Administrative Agent was not immediately
aware of an announced change such adjustment
shall be made by the Administrative Agent and
shall be retroactive to the Announcement Date.
The Borrower agrees to pay to the
Administrative Agent for the account of the
Lender its due share of, and the Lender agrees
to fund the Administrative Agent and the
Administrative Agent agrees to repay to the
Borrower its due share of, any adjustment
resulting from a retroactive adjustment of
ratings which shall be paid by the
Administrative Agent or the Borrower, as the
case may be, on or before the fifth day
following the Administrative Agent's
calculation of and advice to the Borrower of
the amount to be adjusted.
7.2.3 The line fee shall be payable Quarterly in
advance and shall accrue from the date hereof.
7.3 Agency Fee
The Borrower shall pay to the Administrative Agent such
agency fees as are agreed upon between the
Administrative Agent and the Borrower.
7.4 Expenses
Whether or not the Borrower shall draw down under this
Agreement the Borrower shall forthwith reimburse the
Lender and the Administrative Agent for the reasonable
charges and expenses incurred by the Lender and the
Administrative Agent:
7.4.1 in connection with the negotiation preparation
or execution of this Agreement; and
7.4.2 in connection with the enforcement of, or the
exercise or (except to the extent proved
groundless and unreasonable) the purported or
attempted exercise of any right, authority or
remedy conferred on the Lender or the
Administrative Agent under or by virtue of this
Agreement;
including in each case the fees and expenses of legal
advisers on a solicitor and own client basis, financial
institutions duty and duty passed on to the Lender or
the Administrative Agent by any bank or financial
institution and all stamp duty levied on or in
connection with this Agreement or any payment or the
receipt of any payment under this Agreement except for
those incurred or payable due to delay or negligence on
the part of the Lender or the Administrative Agent or
any of their servants and agents.
7.5 Government Charges
The Borrower shall forthwith pay any and all taxes or
charges (other than taxes on the net overall income of
the Lender) imposed by governmental authorities in any
jurisdiction which may have been paid or may be payable
or determined to be payable in connection with:
7.5.1 the execution, delivery, performance or
enforcement of this Agreement;
7.5.2 on or in respect of any transaction
contemplated by this Agreement;
7.5.3 any other matter or thing done or arising out
of or in connection with this Agreement; or
7.5.4 any transaction related to this Agreement;
(including, without limiting the generality of the
foregoing, stamp duty and financial institutions duty)
and shall indemnify the Lender and the Administrative
Agent against any and all liabilities with respect to or
resulting from delay or omission to pay such taxes or
charges including any fines or penalties (save those due
to delay or negligence on the part of the Lender or the
Administrative Agent).
7.6 Increase in Costs by Government Action
If any law, regulation or regulatory requirement or
judgment, order or direction of any court, tribunal or
authority binding on the Lender in any jurisdiction not
in force at the date of this Agreement, or if compliance
by the Lender with any direction, request or requirement
(whether or not having the force of law but which if not
having the force of law it is the practice of
responsible financial institutions to observe) of any
competent governmental or other authority, or if
observation by the Lender of any reasonable practice of
commercial lenders in Australia or the United States
shall:
7.6.1 subject the Lender to taxes or change the basis
of taxation of the Lender with respect to any
payment under this Agreement; or
7.6.2 impose, modify or deem applicable any reserve
or prudential or capital adequacy requirements
or require the making or the varying of terms
of any special deposits against or in respect
of any assets or liabilities (whether
contingent or otherwise) of, deposits with or
for the account of, or loans by, the Lender; or
7.6.3 impose on the Lender any other conditions with
respect to this Agreement or its obligations
under this Agreement,
and if, as a result of any of the foregoing:
7.6.4 the cost to the Lender of making or keeping the
Facility available or otherwise performing its
obligations under this Agreement or allocating
its capital resources is increased; or
7.6.5 the amount payable or the effective rate of
return on its overall capital to the Lender
under this Agreement is reduced; or
7.6.6 the Lender makes a payment or foregoes or
suffers a reduction in a return on or
calculated by reference to any amount payable
to it under this Agreement;
then, and in each such case, the Lender shall notify the
Borrower and give the Borrower the option exercisable by
notice in writing to the Lender within ten (10) Business
Days of receipt of notice of the Lender of:
7.6.7 paying an amount or amounts to the Lender from
time to time on demand to compensate the Lender
in full for any cost or reduction of the kind
referred to effective from the date on which
the cost or reduction is actually incurred by
the Lender; or
7.6.8 terminating this Agreement on the first to
occur of the expiration of sixty days from the
date of the notice of option given by the
Lender to the Borrower pursuant to this Clause
7.6 and the Repayment Date by paying to the
Lender the debt owing to it on that date with
accrued interest and all other monies payable
under this Agreement, together with an amount
determined by the Lender to compensate it up to
that date for any actual cost or reduction of
the type referred to.
If the Borrower fails to make an election the Borrower
shall be deemed to have made the election in sub-
paragraph .7 of this clause. The Lender's certificate
in respect of any cost or reduction of the kind referred
to shall be prima facie evidence of the incurring of any
such cost or reduction, except in the case of manifest
error.
Without prejudice to the Lender's rights under clause
7.6 the Lender will at the request of the Borrower
negotiate in good faith with the Borrower with a view to
finding a way of minimising any increased cost.
7.7 Gross Up
7.7.1 if at any time any applicable law, regulation
or regulatory requirement of any government
authority, monetary agency or central bank in
Australia requires the Borrower or the
Guarantor to make any deduction or withholding
in respect of taxes (excluding payments made by
the Borrower pursuant to notices received by
the Borrower under Section 218 or 255 of the
Income Tax Assessment Act or Section 74 of the
Sales Tax Act or other analogous legislation
relating to default by the Lender in payment of
taxes due by the Lender) from any payment due
under this Agreement:
(a) the sum due from the Borrower or the
Guarantor in respect of the payment
shall be increased to the extent
necessary to ensure that, after the
making of the deduction or withholding,
the Lender receives a net sum equal to
the sum which it would have received had
no such deduction or withholding been
required to be made; and
(b) the Borrower and the Guarantor shall
indemnify the Lender against any losses
or costs incurred by the Lender by
reason of any failure of the Borrower or
the Guarantor to make any such deduction
or withholding.
The Borrower and the Guarantor shall promptly
deliver to the Administrative Agent any
receipts, certificates or other proof evidencing
the amounts (if any) paid or payable in respect
of any such deduction or withholding, together
with any other information which the
Administrative Agent may reasonably require.
7.7.2 If the Lender or any person on its behalf is
required by any applicable law regulation or
regulatory requirement of any government
authority, monetary agency or central bank to
make any deduction or withholding from, or any
payment on or calculated by reference to, any
amount received or receivable under this
Agreement (other than taxes payable on the
overall net income of the Lender) then (without
prejudice to sub-paragraph .1 of this clause)
the Borrower and the Guarantor shall upon
demand indemnify and hold harmless the Lender
against any such deduction, withholding or
payment together with any related cost, loss,
expense, interest, penalties or other liability
by payment to each such person of such amounts
and in such currencies as the person concerned
may certify are required to compensate it for
any such deduction, withholding or payment
together with any related cost, loss, expense,
interest, penalties or other liability.
8. REPAYMENTS
8.1 Payment of Principal
8.1.1 The Borrower shall repay to the Administrative
Agent each Advance (other than a Term Loan) at
the end of the term of each Interest Period or
on the Repayment Date (whichever first occurs)
together with interest to the day of repayment
provided always that:
(a) the Lender may, in its sole discretion
and without prejudice to its rights
contained in this Agreement, at any time
and from time to time elect to extend the
term of such Advance or Advances; and/or
(b) in the event that the Borrower does not
nominate an Interest Period the Interest
Period shall be as determined by the
Lender or in the absence of any such
determination by the Lender that Interest
Period shall be ninety (90) days.
8.1.2 The Borrower shall repay to the Administrative
Agent the Term Loan by four equal annual
installments of $2,083,333.33 each, the first
of such installments to be paid on the date
being two years from the date of this Agreement
and thereafter on each anniversary of the date
of this Agreement.
8.2 Redrawing
8.2.1 Any part of the Facility repaid at the
conclusion of the Interest Period relative
thereto shall (except in the event of any Term
Loan) be available to be redrawn in whole or in
part by the Borrower at any time prior to the
Repayment Date subject always to the provisions
of this Agreement.
8.2.2 No repayment of the Term Loan shall be
available for redrawing.
8.3 Early Repayment of Advances
8.3.1 The Borrower may repay an Advance in whole (but
not in part) before its due date if, but only
if:
(a) the Borrower gives the Administrative
Agent at least 5 Business Days
irrevocable notice in writing of the
Borrower's intention to repay;
(b) the Advance together with all interest
accrued thereon to the date of repayment
are paid in full;
(c) the Borrower makes payment of all moneys
payable pursuant to sub-clause .3.2 of
this clause;
(d) the Borrower makes payment on the day of
payment specified in the notice;
8.3.2 In the event that the Borrower wishes to make
early repayment pursuant to sub-clause .3.1 of
this clause or if by reason of an Event of
Default or for any other reason early repayment
of an Advance in whole or in part is made by a
Borrower or is demanded by the Lender the
Borrower shall pay to the Lender in addition to
all other moneys then payable an amount
sufficient to compensate and to indemnify the
Lender for and against all losses (including
loss of profits), costs, damages and expenses
which the Lender determines that the Lender
will or is likely to suffer or incur as a
result of such early repayment. Without in any
way limiting or modifying the operation of the
foregoing, the Borrower acknowledges that the
Lender may endeavour to arrange or enter into
an interest rate swap agreement or other
commitment (either in relation to an Advance in
particular or generally in relation to the
business of the Lender) and may as a
consequence of this (whether directly or
indirectly) suffer or incur loss of
opportunity, losses, costs, damages or expenses
in the event that early repayment of an Advance
is made.
8.3.3 It is acknowledged by the Lender that no moneys
shall be payable to the Lender pursuant to
clause 8.3.2 in respect of payment of an
Advance if such payment is made on the last day
of an Interest Period in respect of such
Advance.
8.4 Manner of Payment
8.4.1 All payments by the Borrower under this
Agreement must be made:
(a) in same day funds;
(b) in Australian currency;
(c) not later than 2.00pm (Melbourne time)
on the due date,
to the account of the Administrative Agent specified to
the relevant Borrower or in such other manner as the
Administrative Agent directs from time to time.
8.5 Distribution by Administrative Agent
8.5.1 Except to the extent otherwise expressly
provided in this Agreement, or unless payment
is made to the Administrative Agent for its own
account, each payment received by the
Administrative Agent under this Agreement is
received by the Agent on account of the Lender.
8.5.2 The Administrative Agent must within two (2)
Business Days of receipt distribute in same day
funds amounts received on account of the Lender
to the Lender.
8.6 Non-receipt of funds by the Administrative Agent from
the Borrower
8.6.1 Unless the Administrative Agent has received
written notice from the Borrower at least 1
Business Day before the date on which any
payment is due under this Agreement that the
Borrower does not intend to make that payment
in full on the due date, the Administrative
Agent may (but is not obliged to) assume that
the Borrower has made that payment when due,
and in reliance on that assumption, may make
available to the Lender on that due date an
amount equal to the assumed payment.
8.6.2 If the Borrower has not in fact made that
payment to the Administrative Agent, and does
not make that payment, together with interest,
promptly on demand, the Lender must, on demand,
repay to the Administrative Agent the amount so
made available to the Lender on that due date
an amount equal to it, together with interest
on such amount accrued for each day from and
including the due date but excluding the date
of such repayment, at the rate per centum per
annum which is determined by the Administrative
Agent to be the Administrative Agent's cost of
funding such payment for such period.
8.6.3 Without limiting its obligations under this
Agreement, the Borrower indemnifies the
Administrative Agent and the Lender against any
damage, loss or expense incurred by the Lender
or the Administrative Agent by reason of any
failure or delay by the Borrower in making any
payments referred to in this clause 8.6.
9. TERMINATION OF FACILITY
The Facility shall terminate on the Repayment Date and the
Borrower shall pay to the Administrative Agent the Loans
forthwith.
SECTION C
10. CONDITIONS PRECEDENT
10.1 To the Facility
The obligations of the Lender under this Agreement are
subject to the fulfillment of the conditions precedent
that the Administrative Agent shall receive prior to
the giving of the first Drawdown Notice all of the
following in the form and substance satisfactory to the
Lender:
10.1.1 A copy of each of the constituent documents
of the Borrower and the Guarantor certified
by an Authorized Officer thereof as being
complete true and up-to-date.
10.1.2 A duly signed verification certificate in
the form of the certificate in Schedule 3.
10.1.3 A copy of this Agreement duly executed by
the Borrower and the Guarantor.
10.1.4 Evidence that all necessary filings and
registrations have been completed and that
all stamp duties and registration and other
fees have been paid in order to ensure that
this Agreement is valid, binding and
enforceable.
10.1.5 The Establishment Fee and the first Line Fee
payment (which first payment shall be
calculated from the date of this Agreement
to the commencement of the first Quarter
after the date of this Agreement) and the
first administration fee payment.
10.1.6 A legal opinion from the attorneys of the
Guarantor in respect of the Guarantor and
this Agreement, addressed to the Lender and
the Administrative Agent.
10.1.7 A duly signed indemnity in the form of
Schedule 4.
10.2 To A Drawdown
The obligation of the Lender to make any Advance is
subject to the fulfillment (to the reasonable
satisfaction of the Administrative Agent) of the
following conditions precedent:
10.2.1 The Administrative Agent has duly received from
the Borrower a request for a Drawdown in the
form of a Drawdown Notice.
10.2.2 No event has occurred which constitutes or with
the passing of time or the giving of notice or
both would constitute an Event of Default.
10.2.3 The Lender has received such other information
as it may reasonably require.
11. REPRESENTATIONS AND WARRANTIES
The Borrower and the Guarantor each represents and warrants to
the Lender and the Administrative Agent except to the extent
disclosed in writing to the Lender prior to the date of this
Agreement or prior to the date on which they are deemed made or
repeated:
11.1 Status
It has been duly incorporated in accordance with the
laws of the place of its incorporation.
11.2 This Agreement
This Agreement constitutes a legal valid and immediately
binding obligation on it the Borrower and the Guarantor
and is enforceable in accordance with its express terms
subject only to laws relating to insolvency and the
enforcement of creditors rights generally and the
discretionary notice of equitable remedies.
11.3 Third Party Rights
Its execution, delivery and Performance of this
Agreement does not violate in any respect any provision
of:
11.3.1 any law or regulation or any order or decree or
any government authority, agency or court or;
11.3.2 its constitution ; or
11.3.3 any mortgage, contract or other undertaking or
instrument to which it is party or which is
binding upon it.
11.4 Authorities
All authorizations, approvals, consents, licenses,
filings, registrations, notarizations and other
requirements of any governmental judicial or public
body, authority, bureau or agency now obtainable and
required in connection with its execution, delivery,
performance, validity or enforceability of this
Agreement have been obtained or effected and are in full
force and effect and true copies thereof (where
applicable) have been delivered to the Lender and all
fees payable in connection therewith have been paid and
there has been no default in the performance of any of
the terms or conditions of any of the same.
11.5 Other Commitments
It is not in default under any agreement undertaking or
instrument to which it is a party or by which it is
bound, such default being material in the context of
this Agreement and no event has occurred which with the
giving of notice or lapse of time or both would
constitute such a default.
11.6 Litigation
No litigation or governmental proceeding is pending or,
to its knowledge threatened against it which could have
a material adverse effect on its ability to comply with
its obligations under this Agreement.
11.7 Taxation
It and each of its Subsidiaries have duly filed all
taxation returns required to be filed (none of which are
so far as it is aware likely to be the subject of any
dispute) and have paid all taxation levied or assessed
upon it (except where the amount of or the obligation to
pay those taxes is being contested in good faith and
upon reasonable grounds and has complied with all
assessments and notices in respect thereof or have
established adequate reserves for payment thereof
11.8 Unsecured Liabilities
Its obligations under this Agreement rank at least
equally with all other of its unsecured and
unsubordinated indebtedness except any liabilities
mandatorily preferred by law.
11.9 Trusts
In entering into this Agreement it is not acting as a
trustee of any trust or settlement.
11.10 Insurance Policies
All risks usually insured against according to sound
commercial practice by persons carrying on activities
similar to the Borrower's are fully insured against in
amounts representing the present full replacement or
reinstallation values or market values and in the name
of and for the benefit of the Borrower absolutely.
11.11 Adverse Circumstances
It is not aware of any fact or circumstance which would
reasonably be expected to affect in any material adverse
way its financial position, operations, profitability or
prospects of or its business or the value of its
property or affecting as a whole the industry in which
it participates.
11.12 Year 2000 Compliance
It:-
11.12.1 has initiated a review of all areas with its
and its Subsidiaries operations that could be
adversely effected by the Year 2000 Problem;
11.12.2 has developed a plan and time line for
addressing the Year 2000 Problem on a timely
basis and to date has and will hereafter
implement such plan;
11.12.3 will use its best endeavours to ensure that the
Year 2000 Problem will not have any material
adverse impact on its financial position
operations, profitability, prospects, business
or the value of its property.
11.13 No Misrepresentation
All information provided by it whether prior to or after
the date of this Agreement to the Lender or the
Administrative Agent is true and correct and is not, by
the omission of information or otherwise, misleading and
all projections contained therein were arrived at after
the due and careful consideration and were based on the
best information available and on fair assumptions.
The representations and warranties in this clause shall
be deemed to be repeated by the Borrower and the
Guarantor on and as of the date of each Advance as if
made with reference to the facts and circumstances
existing at such date.
The Borrower and the Guarantor acknowledge that the
Lender and the Administrative Agent rely on the
representations and warranties made or given in this
Agreement by the Borrower and the Guarantor and that the
Lender and the Administrative Agent are induced by each
such representation and warranty to enter into this
Agreement and the rights of the Lender and the
Administrative Agent in respect of a breach of any such
representation or warranty shall not be affected by
investigation (if any) made by the Lender or the
Administrative Agent into the affairs of the Borrower or
the Guarantor.
12. GENERAL OBLIGATIONS
The Borrower and the Guarantor each agree that on and from the
date of this Agreement and so long as any amount payable under
this Agreement is outstanding:
12.1 Authorities
The Borrower and the Guarantor shall take all action
necessary to obtain and promptly renew from time to time
all authorizations, approvals, consents, licenses and
exemptions as may be required under any applicable law
or regulation to enable the Borrower and the Guarantor
to perform their obligations under this Agreement or
required for the validity or enforceability of this
Agreement or any transaction contemplated by this
Agreement.
12.2 Notice of Default
The Borrower and the Guarantor shall promptly notify the
Lender or the Administrative Agent in writing of the
occurrence or pending or threatened occurrence of any
event which would cause or constitute a breach of any of
the representations or warranties or agreements of the
Borrower and the Guarantor in this Agreement including
any event which would result in a material change in the
business of the Borrower and the Guarantor and any other
event which constitutes or which would with the giving
of notice or lapse of time or both or other conditions
constitute an Event of Death.
12.3 Law
The Borrower and the Guarantor shall comply with all
requirements of the Law where a failure to do so is
likely to have a material adverse effect on its ability
to meet its obligations under this Agreement.
12.4 Access
The Borrower and the Guarantor shall permit
representatives of the Lender or the Administrative
Agent (or any accountants or other experts designated by
it) during normal business hours and upon reasonable
notice and upon reasonable grounds to visit and inspect
and examine the books of account, records (excluding
company minute books), reports and other papers (and to
make copies and to take extracts therefrom) of the
Borrower and the Guarantor and to discuss its affairs,
finances and accounts with its officers, accountants and
auditors, all at such times and as often as may be
reasonably requested by the Lender or the Administrative
Agent but only in so far as such matters relate to
information as may reasonably be required by the Lender
or the Administrative Agent for any purpose connected
with this Agreement.
12.5 Negative Pledge
Except as permitted in this Agreement neither the
Borrower nor any of its Subsidiaries shall without the
prior written consent of the Lender either borrow
further money from any lender (other than where that the
lender is one of the companies included in the
expression "the Borrower" or is the Guarantor) or create
or assume or permit to exist or arise any Security
Interest whatsoever over any part of its present or
future undertakings, property, assets uncalled capital
or revenues. The Borrower represents and warrants to
the Lender that there will be no such Security Interest
over any part its or its Subsidiaries present or future
undertakings, property, assets, uncalled capital or
revenues in existence as at the date of the first
drawdown under the Facility.
12.5.2 For the purposes of Clause 12.5.1 the Lender
agrees that the Borrower is entitled to enter
into an agreement on or about even date herewith
with The First National Bank of Chicago (ARBN
065 752 918) ("FNBC") pursuant to what FNBC
agrees to provide facilities to the Borrower
with accommodation limits totaling A$30,000,000
and an agreement on or about even date herewith
with Banque Nationale de Paris ARBN 000 000 117
("BNP") pursuant to which BNP agrees to provide
facilities to the Borrower with accommodation
limits totaling A$25,000,000.
12.6 Inspection
The Borrower shall permit the Lender or the
Administrative Agent upon, written request of the Lender
or the Administrative Agent to from time to time inspect
the register of the members of the Borrower where the
register or any branch register is so kept at any time
during regular business hours and the Borrower shall
furnish the Lender or the business hours and the
Borrower shall furnish the Lender or the Administrative
Agent with any information which the Lender may consider
reasonably necessary to enable it to determine whether
or not there has been at any time after the date of this
Agreement a transfer of the effective management and
control of the Borrower or the Guarantor.
12.7 Public Information
12.7.1 Subject to sub-clause .2 of this clause, the
Borrower and the Guarantor shall furnish to the
Administrative Agent copies of all such
accounts, documents, reports, notices,
circulars, particulars and certificates
("Documents") which are required to be
furnished by the Borrower or the Guarantor to
any stock exchange, corporate affairs office
(or analogous office) or shareholder at the
same time as they are furnished to that stock
exchange, corporate affairs (or analogous
office) or shareholder and when requested by
the Administrative Agent copies of Documents
required under the provision of any trust deed
to which the Borrower or the Guarantor is a
party to be furnished to the trustee thereunder
from time to time.
12.7.2 Unless the Lender shall specifically request a
particular Document or class of Documents, the
Borrower and the Guarantor shall only be
obliged to provide the Administrative Agent
with those Documents which relate to matters
which may have a material effect on the
business or financial obligations of either the
Borrower or the Guarantor.
13. FINANCIAL INFORMATION
The Borrower and the Guarantor shall from time to time supply
the Lender with all financial or other information regarding
the Borrower and the Guarantor as the Lender may reasonably
request in writing always including the following without
request:
13.1 As soon as possible but in any event within 120 days of
the end of each Financial Year copies of the audited
annual profit and loss statement and balance sheet of
the Guarantor and the audited consolidated annual profit
and loss statement and balance sheet of the Guarantor
and the unaudited annual profit and loss statement and
balance sheet of the Borrower.
13.2 As soon as possible but in any event within 60 days of
the end of each Quarter a copy of the management
accounts and of the unaudited balance sheet and profit
and loss statement of the Borrower and the Guarantor and
the unaudited consolidated profit and loss statement and
balance sheet of the Borrower and the Guarantor.
All of the financial information referred to above shall be
prepared in accordance with Accounting Standards.
14. EVENTS OF DEFAULT
If any of the following events occur ("Events of Default") the
Loans and all other moneys owing to the Lender by the Borrower
shall at the option of the Lender and notwithstanding any delay
or previous waiver of the right to exercise such option become
immediately due and payable upon written demand by the Lender
to the Borrower and the obligations of the Lender under this
Agreement shall be cancelled:
14.1 If the Borrower fails to observe or perform any
obligations to be observed or performed by it under this
Agreement or in connection with any transaction
contemplated by this Agreement and if such default shall
in the opinion of the Lender be capable of prompt
remedy, the Borrower shall not have remedied such
default within seven (7) days after notification by the
Lender to the Borrower requiring remedy of such default.
14.2 Any representation or statement made or deemed to be
made by the Borrower or the Guarantor in this Agreement
or in writing pursuant to this Agreement shall not be
complied with or shall prove to be untrue in any respect
which materially adversely affects the interests of the
Lender on any date as of which it was made or deemed
made.
14.3 If all or any part of this Agreement becomes void,
illegal, invalid, unenforceable, or of limited or
reduced force or effect which is likely to adversely
affect the ability of the Borrower to carry out its
obligations under this Agreement.
14.4 Any other present or future indebtedness of the Borrower
for borrowed money in excess of A$2,000,000 shall become
due and payable prior to the stated maturity thereof as
a result of a default or any such indebtedness shall not
be paid on the due date thereof.
14.5 If the Borrower is wound up or if a petition is
presented or an order is made for the winding up of the
Borrower and is not withdrawn within fourteen (14) days
or if a resolution is passed for the winding up of the
Borrower otherwise than for the purpose of
reconstruction or amalgamation the terms of which have
previously been approved in writing by the Lender such
approval not to be unreasonably withheld.
14.6 If a receiver or receiver and manager is appointed in
respect of any part of the assets of the Borrower or an
encumbrancer takes possession of the undertaking or the
property of the Borrower or any part thereof.
14.7 If the Borrower makes default under any charge or
security in favour of any person other than the Lender
and the holder of that charge or security elects to
enforce that charge or security.
14.8 If a compromise or arrangement is proposed between the
Borrower or the Guarantor and their creditors or any
class of them or if an application is made to a court
for an order summoning a meeting of creditors or any
class of them of the Borrower or the Guarantor.
14.9 If without the prior written consent of the Lender the
Borrower reduces or attempts to reduce its capital or
buy back any of its shares.
14.10 If the Borrower is placed under administration pursuant
to Part 5.3A of the Corporations Law or causes or
proposes to cause a meeting of its creditors to be
summoned for the purposes of placing the Borrower under
administration pursuant to Part 5.3A of the Corporations
Law.
14.11 If any of the property of the Borrower, the ownership of
which is in the opinion of the Lender material to the
ability of the Borrower to perform its obligations under
this Agreement, is seized or otherwise expropriated,
nationalized, confiscated or acquired through any
governmental action or intervention or if custody or
control of such property shall be assumed by any
government or government agency.
14.12 If a meeting of the Borrower or the Guarantor is called
for the purpose of considering and if thought fit
passing any resolution the passing of which would
constitute or give rise to an Event of Default.
14.13 If in the reasonable opinion of the Lender there is a
change in the ownership control or management of the
Borrower which is likely to adversely affect the ability
of the Borrower to conduct its business in a proper
manner and to carry out its obligations under this
Agreement.
14.14 If the Borrower defaults in the performance or
observance of any provision of any other indebtedness to
or security of the Lender and the Borrower whether the
indebtedness or security is collateral to this Agreement
or whether it is a separate agreement between the Lender
and the Borrower and such default continues for more
than seven (7) days after notification by the Lender to
the Borrower requiring remedy of such default.
14.15 If the Borrower shall at any time not have an auditor
appointed pursuant to the provision of the Law.
14.16 If the Borrower makes any material change to the
business it carries on which in the reasonable opinion
of the Lender is likely to materially adversely affect
the interests of the Lender without the prior written
consent of the Lender or if the Borrower or the
Guarantor ceases or threatens to cease to carry on its
business.
14.17 If the Borrower or the Guarantor suffers any material
adverse change in their financial condition which is
likely, to materially affect the interest of the Lender
unless such change is agreed to in writing by the
Lender.
14.18 If the Borrower ceases to be a wholly owned subsidiary
of the Guarantor.
14.19 If any event occurs that results in acceleration of
payments under the Credit Agreement dated December 15,
1997 between the Guarantor, the Banks listed therein
Royal Bank of Canada as Documentation Agent, The Chase
Manhattan Bank and Nations Bank N.A. as Co-Syndication
Agents and Xxxxxx Guaranty Trust Company of New York as
Administrative Agent (or any other credit agreement in
replacement thereof) provided that such acceleration has
not been rescinded within five (5) days.
14.20 The cancellation or elimination by the Guarantor of the
credit agreement specified in clause 14.19 and failure
to replace such credit agreement with a facility
substantially, similar in form and substance.
15. INDEMNITIES
The Borrower indemnifies the Lender and the Administrative
Agent from and against all actions, suits, claims, demands,
losses, liabilities, damages, costs and expenses which may be
made or brought against or suffered or incurred by the Lender
or the Administrative Agent arising, out of or in connection
with:
15.1 any Event of Default ; or
15.2 any failure by the Borrower to take an Advance in
accordance with any request for a Drawdown.
SECTION D
16. GUARANTEE
The Guarantor unconditionally and irrevocably guarantees to the
Lender and the Administrative Agent the payment of all moneys
payable by the Borrower to the Lender or the Administrative
Agent pursuant to this Agreement ("the Guaranteed Money") and
the due observance and performance of all the covenants, terms,
conditions and agreements to be observed or performed by the
Borrower under this Agreement.
17. GENERAL INDEMNITY
As an additional separate and independent obligation the
Guarantor indemnifies the Lender and the Administrative Agent
against any claim, action, damage, loss, liability, cost,
charge, expense, outgoing or payment which the Lender or the
Administrative Agent suffers, pays or incurs in respect of:
17.1 a failure by the Borrower to pay any Guaranteed Money
when due; or
17.2 a failure by the Borrower or the Guarantor to observe,
perform or comply with this Agreement: or
17.3 an Event of Default.
18. INDEMNITY FOR AVOIDANCE OF GUARANTEED MONEY
18.1 If any Guaranteed Money (or money which would be
Guaranteed Money were it not irrecoverable) is
irrecoverable from the Borrower, and is not recoverable
by the Lender or the Administrative Agent from the
Guarantor on the footing of the guarantee, the Guarantor
as an additional separate and independent obligation:
18.1.1 indemnifies the Lender and the Administrative
Agent against any claim, action, damage, loss,
liability, cost, charge, expense, outgoing or
payment which the Lender suffers, pays or
incurs in respect of the non-payment of that
Guaranteed Money; and
18.1.2 must pay the Lender the amount of that
Guaranteed Money.
18.2 This Clause applies to the Guaranteed Money (or money
which would be Guaranteed Money were it not
irrecoverable) whether or not:
18.2.1 it is or may be irrecoverable by reason of any
event described in Clause 24 by reason of any
other similar or dissimilar fact or
circumstance;
18.2.2 any transaction in respect of that money is
void, avoided, illegal or unenforceable; and
18.2.3 any thing, in respect of the Guaranteed Money is
or should be known to the Lender.
19. PAYMENT OF GUARANTEED MONEY
The Guarantor must pay to the Lender any Guaranteed Money not
paid by the Borrower when due immediately on demand from the
Lender or the Administrative Agent (which may be made at any
time and from time to time).
20. ACKNOWLEDGMENT
The Guarantor acknowledges that it has not entered into this
Agreement in reliance on any representation, warranty, promise
or statement made by the Lender or any person on behalf of the
Lender or the Administrative Agent.
21. PRINCIPAL OBLIGATION
21.1 This Agreement is enforceable against the Guarantor:
21.1.1 without first enforcing any security held by
the Lender or the Administrative Agent;
21.1.2 whether or not the Lender or the Administrative
Agent has:
(i) made demand upon the Borrower;
(ii) given notice to the Borrower or the
Guarantor; or
(iii) taken any other steps against the
Borrower or the Guarantor, or any other
person;
21.1.3 despite the occurrence of any event described in
Clause 24.
22. CONTINUING GUARANTEE AND INDEMNITY
22.1 Each guarantee and indemnity in this Agreement is a
continuing obligation of the Guarantor despite any
settlement of account or the occurrence of any other
thing and remains in full force and effect until all
money owing, contingently or otherwise, under this
Agreement is paid in full and this Agreement is finally
discharged by the Lender.
22.2 Each guarantee and each indemnity in this Agreement is an
additional, separate and independent obligation of the
Guarantor.
23. AMOUNT OF GUARANTEED MONEY
The obligations of the Guarantor under this Agreement extend to
any increase in the Guaranteed Money as a result of any
alteration, variation, supplement, renewal or replacement of
this Agreement made with the Guarantor's express written
consent.
24. UNCONDITIONAL NATURE OF OBLIGATIONS
This Agreement and the liability of the Guarantor under this
Agreement are not released, discharged or otherwise affected by
anything which but for this provision may have that effect
including, without limitation:
24.1 the grant of any time, waiver, covenant not to xxx or
other indulgence to the Borrower, the Guarantor, or any
other person;
24.2 the discharge or release (including without limitation a
release as part of a novation) of the Borrower, or any
other person;
24.3 the liquidation of the Borrower, the Guarantor, or any
other person:
24.4 the Lender or the Administrative Agent;
24.4.1 exercising or enforcing;
24.4.2 failing to exercise or enforce; or
24.4.3 delaying the exercise or enforcement of; any
other security or power;
24.5 the alteration, variation, supplement, replacement,
extinguishment, failure, loss, release, discharge,
abandonment, impairment, assignment or transfer of or
other dealing in respect of, or the failure of any
person to enter into any document or agreement;
24.6 this Agreement or any other document or agreement being
at any time void, voidable, avoided or unenforceable;
24.7 failure by the Borrower, the Lender or the
Administrative Agent to give notice to the Guarantor of
any default by the Borrower under this Agreement or any
other document or agreement;
24.8 a judgment against the Borrower, the Guarantor or any
other person;
24.9 any legal limitation, disability, incapacity or other
circumstances related to the Borrower, the Guarantor or
any other person;
24.10 acceptance by the Lender or the Administrative Agent of
a repudiation or termination of this Agreement or any
other document or agreement;
24.11 failure of any party to properly execute this Agreement;
24.12 any Guaranteed Money being irrecoverable for any reason;
24.13 the assignment, novation or assumption by the Lender,
the Administrative Agent, the Borrower or any other
person of any rights or obligations under this Agreement
or any other document or agreement;
24.14 any prejudice (including material prejudice) to the
Guarantor as a result of any thing done, or omitted to
be done by the Lender or the Administrative Agent or any
other person or any other thing: or
24.15 the receipt by the Lender of any dividend distribution
or other payment in respect of any liquidation.
This Clause applies whether or not the Lender, the
Administrative Agent, the Borrower, the Guarantor or any other
person, consents to, has knowledge of, fails to consent to, or
have knowledge of, any event described above, or whether or not
there is any rule of law or equity to the contrary.
25. NO COMPETITION
25.1 While any guarantee or indemnity in this Agreement is in
effect the Guarantor may not:
25.1.1 be subrogated to the Lender or the
Administrative Agent;
25.1.2 claim the benefit of any security, guarantee or
other document or agreement, or any money held
by the Lender or any power;
25.1.3 subject to the further provisions of this
Clause either directly or indirectly prove in,
claim or receive the benefit of any
distribution, dividend or payment in respect of
the liquidation of the Borrower or any other
guarantor of the Guaranteed Money ("Surety");
25.1.4 make a claim or exercise or enforce any right
power or remedy against the Borrower or any
Surety;
24.1.5 accept or procure the grant of any security
from the Borrower or any Surety; or
24.1.6 raise any set-off (including, without
limitation any set-off in respect of amounts
due by the Lender to the Borrower) available to
the Guarantor, the Borrower, any Surety or
other person in reduction or discharge of its
obligations under this Agreement.
25.2 If required by the Lender or the Administrative Agent,
the Guarantor must:
25.2.1 prove in any liquidation of the Borrower or any
Surety for all moneys owed to the Guarantor;
and
25.2.2 not exercise or attempt to exercise any right
of set-off against or realize any security
taken from the Borrower or any Surety.
25.3 All moneys recovered by the Guarantor from any
liquidation (or under any security from the Borrower or
any Surety) must be held in trust by the Guarantor for
the Lender to the extent of the unsatisfied liability of
the Guarantor under this Agreement.
26. PROOF BY LENDER
In the event of the liquidation of the Borrower or any Surety,
the Guarantor authorizes the Lender to prove for all money
which the Guarantor has paid or is or may be obliged to pay
under this Agreement, other document or agreement or otherwise
in respect of the Guaranteed Money.
27. AVOIDANCE OF PAYMENTS
If any payment, conveyance, transfer or other transaction in
respect of or affecting the Guaranteed Money is:
27.1 void, voidable or unenforceable: or
27.2 is claimed to be void, voidable or unenforceable and that
claim is upheld, conceded or compromised;
the liability of the Guarantor under this Agreement is the same
as if:
27.3 that payment, conveyance, transfer or transaction; and
27.4 any release, settlement or discharge made in reliance on
any thing referred to above;
had not been made and the Guarantor must immediately do
everything necessary or required by the Lender or the
Administrative Agent to restore to the Lender or the
Administrative Agent this Agreement and any security held by the
Lender immediately prior to the payment, conveyance, transfer or
transaction.
28. RETENTION OF AGREEMENT
The Lender and the Administrative Agent may retain this
Agreement for seven (7) months after full payment of the
Guaranteed Money or if anything in the previous Clause has
occurred or in the opinion of the Lender may occur, such longer
period as the Lender determines.
29. EXCLUSION OF MORATORIUM
To the extent permitted by law, a provision of any legislation
which at any time directly or indirectly:
29.1 lessens or otherwise varies or affects in favour of the
Guarantor any of its obligations under or any provision
of this Agreement; or
29.2 stays, postpones or otherwise prevents or prejudicially
affects the exercise by the Lender of any power;
is negatived and excluded from this Agreement and all relief and
protection conferred on the Guarantor by or under that
legislation is also negatived and excluded.
30. NON-EXERCISE OF GUARANTOR'S RIGHTS
The Guarantor must not exercise any rights it has inconsistent
with this Agreement.
31. PAYMENTS IN GROSS
All payments which the Guarantor is required to make under this
Agreement must be made to the Lender to an address or account in
Australia directed by the Lender or the Administrative Agent
from time to time.
32. SUSPENSE ACCOUNT
32.1 The Lender may apply to the credit of an interest bearing
suspense account:
32.1.1 any amounts received from the Guarantor under
this Agreement;
32.1.2 any dividends, distributions or other amounts
received in respect of the Guaranteed Money in
any liquidation;
32.1.3 any other amounts received from the Guarantor,
the Borrower, any other guarantor or any other
person in respect of the Guaranteed Money.
32.2 The Lender may retain the amounts in the suspense account
and may, but is not obliged to, apply them in or towards
satisfaction of the Guaranteed Money.
32.3 In the event that the Lender is satisfied that it has
received all of the Guaranteed Money in full and that it
will not be required to repay any such moneys under any
laws relating to insolvency it will refund the moneys in
the suspense account and any interest accrued thereon
(less any financial institution duty or debits tax
payable in respect of any deposits or debits in respect
of the suspense account) to the Borrower or the Guarantor
or any such other person as the case may be.
SECTION E
33. APPOINTMENT OF ADMINISTRATIVE AGENT
33.1 The Lender irrevocably appoints the Administrative Agent
as its agent, with the rights and duties expressed in
this Agreement.
33.2 In acting as agent, the Administrative Agent:
33.2.1 does not assume any fiduciary duties to the
Lender;
33.2.2 is an independent contractor.
33.3 The Lender waives any claim which may arise against the
Administrative Agent under the law of agency or for
breach of fiduciary duty.
33.4 The Administrative Agent agrees to act as Administrative
Agent of the Lender on these terms.
34. POWERS AND DUTIES OF ADMINISTRATIVE AGENT
34.1 The Administrative Agent may exercise any powers which
this Agreement expressly delegates to Administrative
Agent, and any powers reasonably incidental thereto.
34.2 The Administrative Agent must take any action which this
Agreement specifically requires the Administrative Agent
to take. The Administrative Agent need not take any
other action and does not have any implied duties to the
Lender.
34.3 The Administrative Agent must forward to the Lender a
copy of each Drawdown Notice and each Interest Period
Notice under the Term Loan Facility it receives it from
the Borrower.
35. GENERAL IMMUNITY
Neither the Administrative Agent nor any of its directors,
officers, agents or employees are liable to the Borrower, the
Guarantor, or the Lender for any act or omission by any of them
in respect of this Agreement, except to the extent that the act
or omission arises from gross negligence or willful misconduct.
36. NO RESPONSIBILITY FOR LOANS ETC
36.1 Neither the Administrative Agent nor any of its
directors, officers, agents or employees need ascertain,
enquire into or verify:
36.1.1 any statement, warranty or representation made
in connection with this Agreement or any
borrowing under this Agreement;
36.1.2 the performance of any term of this Agreement
including any obligation to pay proof or any
term requiring the provision of information
directly to the Lender;
36.1.3 the enforceability, sufficiency or genuineness
of this Agreement or any other writing in
connection therewith;
36.1.4 the existence or possible existence of any
Event of Default;
36.1.5 the financial condition of any Borrower or the
Guarantor.
36.2 The Administrative Agent need not disclose to the Lender
information volunteered by the Borrower or the Guarantor
to the Administrative Agent (either in its capacity as
agent or in its individual capacity).
37. ACTING ON INSTRUCTIONS OF LENDER
37.1 The Administrative Agent need not take any action under
this Agreement unless:
37.1.1 the Lender instructs it to do so in writing;
and
37.1.2 the Lender indemnifies the Administrative Agent
to the Administrative Agent's satisfaction
against all liability, costs and expenses it
incurs in taking or continuing any action.
38. ADMINISTRATIVE AGENT AND LEGAL ADVISERS
38.1 The Administrative Agent may perform any of its duties
under this Agreement by its employees, agents and legal
advisers.
38.2 If the Administrative Agent selects those agents and
legal advisers with reasonable care, the Administrative
Agent is not liable to the Lender for any default or
misconduct by those agents or legal advisers, except as
to money or securities received by the Administrative
Agent or its agents or legal advisers.
38.3 The Administrative Agent may obtain legal advice about
this Agreement or any matter relating to or arising out
of this Agreement.
39. RELIANCE ON DOCUMENTS AND LEGAL ADVICE
The Administrative Agent may rely on:
39.1 any notice, consent, certificate, affidavit, letter,
facsimile, statement, paper or document if the
Administrative Agent believes it to be genuine and
correct and to have been signed or sent by the proper
person; and
39.2 in respect of legal matters, the opinion of its legal
advisers (who may be employees of the Administrative
Agent).
40. AGENT'S INDEMNIFICATION
40.1 The Lender indemnifies the Administrative Agent for all
losses, and all costs, liability and expenses incurred by
the Administrative Agent in respect of or in any way
related to or arising out of this Agreement and other
related documents or any actions taken or omitted by the
Administrative Agent. This may include costs which the
Borrower or the Guarantor fails to pay, administration
costs, agency fees, enforcement costs, and costs of a
dispute between the Administrative Agent and the Lender.
However, it does not include losses, costs, liability and
expenses resulting from the gross negligence or willful
misconduct of the Administrative Agent (as found by a
court of competent jurisdiction in a final non-appealable
judgment).
40.2 This obligation survives payment of all moneys payment
pursuant to this Agreement and termination of this
Agreement.
40.3 This section E of this Agreement does not limit the
obligations of the Borrower or the Guarantor under this
Agreement.
41. LENDER CREDIT DECISIONS
The Lender has made its own credit analysis and decision to
enter into the Agreement independently and without relying on
First Chicago.
42. RESIGNATION OF ADMINISTRATIVE AGENT
42.1 The Administrative Agent may resign at any time by giving
a written notice thereof to the Lender. Upon
resignation, the Lender shall have the right to appoint a
successor Administrative Agent with the written approval
of the Borrower (that approval not to be unreasonably
withheld). If no successor Administrative Agent has been
appointed by the Lender and accepted that appointment
within thirty days after the retiring Administrative
Agent gives notice of its resignation, then the retiring
Administrative Agent may, on behalf of the Lender and
with the written approval of the Borrower (that approval
not to be unreasonably withheld), appoint a successor
agent.
42.2 If no successor Administrative Agent has been appointed
pursuant to the clause 42.1 within the thirty days
following the giving of notice of resignation by the
retiring Administrative Agent, the resignation shall
nonetheless then become effective and the Lender shall
perform the duties and be entitled to the rights of the
Administrative Agent hereunder until it appoints a
successor agent (which it shall not be under any
obligation to so do).
42.3 Upon the acceptance of any appointment as Administrative
Agent by a successor Administrative Agent, the successor
Administrative Agent shall thereupon succeed to and
become vested with all the rights, powers, privileges and
duties of the retiring Administrative Agent.
42.4 Whether or not a successor Administrative Agent has been
appointed, the retiring Administrative Agent shall be
discharged from its duties and obligations under this
Agreement upon its resignation becoming effective. After
any person's resignation under this Agreement as the
agent, the provisions of this Agreement shall continue in
effect for its benefit and for the benefit of the Lender
in respect of any actions taken or omitted to be taken by
the person while it was acting as the Administrative
Agent.
42.5 During any period in which a successor agent is not
appointed the agency fee referred to in clause 7.3 shall
be payable by the Borrower to the Lender.
SECTION F
43. CERTIFICATIONS
43.1 Any document or thing required to be certified by the
Borrower or the Guarantor shall be certified an
Authorized Officer of the Borrower or the Guarantor or in
such other manner as the Lender may approve.
43.2 A certificate signed by an Authorized Officer of the
Lender or the Administrative Agent stating any amount or
rate for the purpose of this Agreement shall in the
absence of manifest error be conclusive and binding on
the Borrower.
44. UNLAWFULNESS
If:
44.1 any law, regulation or regulatory requirement or
judgment, order or direction of any court, tribunal or
authority binding upon the Lender or its ultimate parent
company in the jurisdiction in which the Lender or its
ultimate parent company is formed or has its principal or
lending office or in which any action is required to be
performed by it for the purposes of this Agreement, or
44.2 any change in the interpretation of any such law,
regulation or regulatory requirement or judgment, order
or direction of any court, tribunal or authority by any
government or governmental agency charged with the
administration thereof or by a court of competent
jurisdiction or compliance by the Lender with any request
or direction (whether or not having the force of law) of
the Reserve Bank of Australia or any government or other
governmental agency in accordance with whose requests or
directions the Lender is accustomed to act;
renders it unlawful for the Lender to meet any of its
obligations under the Facility, the Lender shall promptly notify
the Borrower and the following provisions shall apply:
44.3 the Borrower and the Lender shall negotiate in good faith
for a period not exceeding thirty (30) days (or such
longer period as is required) with a view to the Lender
making arrangements to be able to meet the relevant
obligations under the Facility in whole or in part in a
manner which is not unlawful; and
44.4 if no such arrangements have been made by the end of such
period, thereupon the Lender shall be released from its
obligations under this Agreement, the Facility shall be
cancelled and the Borrower shall pay to the Lender the
Loans under this Agreement prior to the date on which it
becomes unlawful for the Lender to meets its obligations
under the Facility.
45. AUTHORITY TO DEBIT ACCOUNTS
The Borrower and the Guarantor irrevocably authorize and direct
the Lender and the Administrative Agent to debit any account or
accounts of the Borrower or the Guarantor with the Lender or the
Administrative Agent in respect of any amounts that are from
time to time due and payable under this Agreement by the
Borrower or the Guarantor respectively. The Lender will notify
the Borrower and the Guarantor (as the case may be) of such
amounts so debited other than fees charged in accordance with
this Agreement and other than debits in accordance with prior
arrangements between the Lender and the Borrower or the
Guarantor.
46. NO WAIVER
No failure to exercise and no delay in exercising on the part of
the Lender any right, power or privilege under this Agreement
shall operate as a waiver thereof, nor shall, any single or
partial exercise of any right power or privilege preclude any
other or further exercise thereof, or the exercise of any other
right, power or privilege. The rights and remedies of the
Lender provided in this Agreement are cumulative and not
exclusive of any rights or remedies provided by law or equity or
legislation or regulation.
47. MERGER
47.1 The representations and warranties of the Borrower and
the Guarantor in this Agreement shall survive the
execution of this Agreement and the making of any Advance
under this Agreement and shall enure for the benefit of
the Lender and the Administrative Agent until the Loans
have been paid in full by the Borrower to the Lender.
47.2 If the liability of the Borrower or the Guarantor to pay
to the Lender or the Administrative Agent any moneys
payable under this Agreement becomes merged in any deed,
judgment, order or other thing the Borrower or the
Guarantor (as the case may be) shall pay interest on the
amount owing from time to time under that deed, judgment,
order or other thing at the higher of the rate payable
under this Agreement and that fixed by or payable under
that deed, judgment, order or other thing.
48. TIME OF THE ESSENCE
Time shall be of the essence as regards any date or period
determined under this Agreement save only to the extent that any
such date or period may be altered by mutual agreement between
the parties whereupon time shall be of the essence as regards
such altered date or period.
49. SET OFF
49.1 The Borrower and the Lender do expressly acknowledge and
agree that:
49.1.1 Where the Lender now or at any time in the
future is indebted on any account to the
Borrower pursuant to arrangements made between
them such arrangements are hereinafter referred
to as the "Arrangements".
49.1.2 Notwithstanding the Arrangements and any other
provision of this Agreement (and without
prejudice to the Lender's other rights and
remedies) any monies (whether by way of
principal interest or otherwise and whether
present future actual or contingent) which the
Lender may now or may hereafter owe to the
Borrower under the Arrangements may be applied
to and set off by the Lender as and when the
same may become due and payable pro rata against
the Loans as and when they become due and
payable to the intent and effect:
(i) first that the Lender may at any time and
from time to time deduct from and retain
out of the monies otherwise payable by the
Lender to the Borrower pursuant to the
Arrangements such amounts as the Lender
may think fit and apply or set off such
amounts in or toward or against
satisfaction of the Loans; and
(ii) secondly that upon default by the Borrower
hereunder the Lender shall not be obliged
to pay any monies to the Borrower under
the Arrangements until the obligations of
the Borrower to the Lender to pay any
monies to the Lender hereunder are paid
and satisfied in full.
49.2 The contractual rights of set off conferred on the Lender
under sub-clause .1 of this clause are in addition to,
and not in substitution for, any rights of set off
otherwise conferred on or available to the Lender at law
or in equity including (without limitation) any banker's
rights of set off or right of combination of accounts or
banker's lien.
49.3 For the avoidance of doubt the Lender and the Borrower
further declare and acknowledge that the debts and
liabilities arising or created hereunder and pursuant
hereto and under and pursuant to the Arrangements are
mutual debts within the meaning of Section 86(l) of the
Bankruptcy Act 1966 (Cwth) (as incorporated in the
Corporations Law) and that upon the liquidation or
bankruptcy of the Borrower the provisions of Section 86
of the said Bankruptcy Act shall apply so that any sum
due from the Borrower to the Lender hereunder shall be
set off against any sum due from the Lender to the
Borrower under the Arrangements.
49.4 The Borrower acknowledges and agrees that it will not and
will not attempt to prevent the Lender from exercising
its rights of set off as aforesaid in the circumstances
contemplated in respect thereof.
50. APPROPRIATION
The Lender or the Administrative Agent may appropriate any
payment towards the satisfaction of any moneys due by the
Borrower in any way that the Lender or the Administrative Agent
thinks fit and notwithstanding any purported appropriation by
the Borrower.
51. SUCCESSORS
This Agreement shall bind the parties and their respective heirs
executors administrators successors and assigns.
52. ASSIGNMENT
52.1 The Lender may not at any time assign the benefits and
obligations on its part to be enjoyed or performed under
this Agreement without the consent in writing of the
Borrower which shall not be unreasonably delayed or
withheld. Neither the Borrower nor the Guarantor shall
assign or purport to assign any of the benefits or
obligations on its part to be enjoyed or performed under
this Agreement without the consent in writing of the
Lender.
52.2 The Lender may (subject to prior notification to the
Borrower) disclose to any prospective assignee, on a
confidential basis, such information concerning the
Borrower as it considers appropriate without incurring
any liability for any breach of the duty of banker-
customer confidentiality.
53. NOTICES
Any notice demand consent or other communication to be given
under or in connection with this Agreement shall be in writing
or if it is to be given by the Lender or the Administrative
Agent may be signed by any Authorized Officer of the Lender or
the Administrative Agent or any solicitor for the time being
acting for the Lender or the Administrative Agent and if it is
to be given by the Borrower shall be under the common seal of
the Borrower or the hand of an Authorized Officer of the
Borrower and may be served either:
53.1 personally; or
53.2 by posting the same by registered or certified mail to
the party to whom the notice is directed at its address
appearing in this Agreement or at any other address of
which prior notification shall have been given by the
addressee prior to the dispatch of the said notice and
any notice given by post shall be deemed to have been
received by the party to whom it is addressed at the
expiration of forty eight (48) hours (ten Business Days
where the addressee is the Guarantor) after the same has
been properly posted; or
53.3 by facsimile transmission:
To the Lender: (00) 0000 0000
Attention: Credit Administrator
To the Administrative
Agent: (00) 0000 0000
Attention: Loan Administrator
To the Borrower: (00) 0000 0000
Attention: Treasurer
To the Guarantor: 0 (000) 000 0000
Attention: Treasurer
or any other facsimile number of which prior notification
shall have been given to the sender prior to the
transmission of the facsimile and any facsimile
transmission shall be deemed to have been served on the
date of transmission by the sender if the sender shall
receive confirmation of receipt of the notice in its
entirety from the recipient. The original of any
facsimile transmission shall be posted in accordance with
sub-clause .2 of this clause on the date of transmission
or if transmitted after usual posting hours the next
Business Day.
If the date of dispatch is not a Business Day in the place to
which such notice, request demand or other communication is sent
it shall be deemed to have been received at the commencement of
business on the next following Business Day in such place.
Notice given to any one or more of the persons (if more than
one) comprised in the expressions "the Borrower" shall be deemed
notice to all such persons. Signatures may be manuscript or may
be printed or reproduced by other mechanical means.
54. OTHER DOCUMENTS
The Borrower and the Guarantor shall either before or after the
making of any Advance under this Agreement do all such acts
matters and things and shall sign or execute and deliver all
such documents or writing or assurances as may in the reasonable
opinion of the Lender or the Administrative Agent be necessary
or expedient to further and more effectually carry into full
effect the provisions of this Agreement and for conferring the
full benefit thereof upon the Lender and the Administrative
Agent.
55. AMENDMENT
No amendment of this Agreement shall bind the parties unless
made in writing expressed to be supplemental to or in
substitution for the whole or part of this Agreement.
56. GOVERNING LAW AND JURISDICTION
This Agreement and the rights and obligations of the parties
shall be governed by and construed in accordance with the laws
in force in the State of South Australia and the parties agree
by the execution of this Agreement to irrevocably submit to the
non-exclusive jurisdiction of the Courts in the State of South
Australia in respect of all matters arising under or in
connection with this Agreement provided always that the Lender
may proceed in the Courts of any Territory State or country
having or claiming jurisdiction in respect of the matter which
is the subject of the proceedings.
57. SEVERANCE
An provision of this Agreement which is or becomes prohibited
invalid unlawful void or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective and capable of
severance without affecting the remaining provisions of this
Agreement or affecting the validity or enforceability of such
provision in any other jurisdiction.
58. COUNTERPARTS
This Agreement may be executed in any number of counterparts and
all of such counterparts taken together shall be deemed to
constitute one and the same instrument.
59. ENTIRE AGREEMENT
This Agreement contains all of the terms and conditions upon
which the Lender will provide financial accommodation to the
Borrower and supersedes any previous or extant arrangements with
respect to the same.
EXECUTED AS AN AGREEMENT
SIGNED for and on behalf of )RABO AUSTRALIA LIMITED
RABO AUSTRALIA LIMITED )by its Attorneys who state that at the
time
by )of executing this instrument they have
)no notice of the revocation of the Power
and )of Attorney dated 4 July 1997
)under the authority of which they have
its Attorneys )executed this instrument
) /s/ Xxxxxx Xxxxxxx
---------------------------------
Attorney
Xxxxxx Xxxxxxx
State Manager Corporate Banking, Victoria
---------------------------------
Name/Position
/s/ R.B. Agg
---------------------------------
Attorney
R.B. Agg
Manager Corporate Banking, Victoria
---------------------------------
Name/Position
SIGNED for and on behalf of ) /s/ Xxxxxxx Xxxxxxxxx
THE FIRST NATIONAL BANK )--------------------------------
OF CHICAGO by its Authorized ) Authorized Officer
Officers ) Xxxxxxx Xxxxxxxxx/Vice President
--------------------------------
Name/Position
/s/ X.X. Xxxxx
--------------------------------
Authorized Officer
X.X. Xxxxx/Associate Underwriter
--------------------------------
Name/Position
THE COMMON SEAL of )
PENRICE SODA PRODUCTS PTY LTD )
was hereunto affixed )
in the presence of: )
/s/ X.X. Xxxx
---------------------------
Director
Xxxxx Xxxx
---------------------------
Print name of Director
/s/ Henrik Michael Alhsnis
---------------------------
Director or Secretary
Henrik Michael Alhsnis
---------------------------
Print name of Director or Secretary
THE COMMON SEAL of )
PENRICE HOLDINGS PTY )
was hereunto affixed )
in the presence of: )
/s/ X.X. Xxxx
---------------------------
Director
Xxxxx Xxxx
---------------------------
Print name of Director
Henrik Michael Alhsnis
---------------------------
Director or Secretary
Henrik Michael Alhsnis
---------------------------
Print name of Director or Secretary
THE COMMON SEAL of )
IMC GLOBAL AUSTRALIA PTY LTD )
was hereunto affixed )
in the presence of: )
------------------------------
Director
------------------------------
Print name of Director
------------------------------
Secretary
------------------------------
Print name of Director or Secretary
SIGNED for and on behalf of )
IMC GLOBAL INC )
By: /s/ E. Xxxx Xxxx, Jr.
----------------------------
Name: E. Xxxx Xxxx, Jr.
-------------------------
Title: Vice President & Treasurer
----------------------------
THE COMMON SEAL of )
IMC GLOBAL AUSTRALIA PTY LTD )
was hereunto affixed )
in the presence of: )
/s/ X.X. Xxxx
---------------------------------
Director
Xxxxx Xxxx
---------------------------------
Print name of Director
/s/ Henrik Michael Alhsnis
---------------------------------
Director or Secretary
Henrik Michael Alhsnis
---------------------------------
Print name of Director or Secretary
SIGNED for and on behalf of )
IMC GLOBAL INC )
By
--------------------------------
Name
------------------------------
Title
-----------------------------
SCHEDULE I
FORM OF DRAWDOWN NOTICE
NOTICE
TO: THE FIRST NATIONAL BANK OF CHICAGO
00 Xxxxxxxxx Xxxxxx
XXXXXXXX XX 0000
Facility Agreement dated 1998 ("the Agreement"). The
undersigned refers to the above Agreement and irrevocably gives you
notice of drawdown under the Facility as follows:
CASH ADVANCE/TERM LOAN
1. Drawdown Date: 19
------------------- --
2. Amount to be drawn: $ (Australian Dollars)
-------------------
3. Period of the borrowing: days
----------
4. Payment Account:
-------------------
5. Interest Period: days
The Borrower by its execution of this Notice reaffirms and
reconstitutes all representations and warranties or agreements of the
Borrower in the Agreement as if made at the date of this Notice (except
to the extent disclosed in writing to the Lender prior to the date of
this Drawdown Notice) and certifies that no Event of Default (as
defined in the Agreement) has occurred or is continuing or is likely to
result from this transaction.
DATED this day of 19
SIGNED by )
an Authorized Officer of ) ------------------------------
)
--------------------------------
SCHEDULE 2
INTEREST PERIOD
NOTICE
TO: THE FIRST NATIONAL BANK OF CHICAGO
Facility Agreement dated 1998 ("the Agreement") [insert name
of relevant borrower] refers to the above Agreement and irrevocably
gives you notice of the required Interest Period under the Term Loan
Facility as follows:
Interest Period: commencing on
--------------------
SIGNED by )
an Authorized Officer of )
[insert name of relevant )
borrower] )--------------------------------
Authorized Officer
SCHEDULE 3
VERIFICATION CERTIFICATE
TO: RABO AUSTRALIA LIMITED ("the Lender")
I, of
am a director/company secretary of PENRICE SODA PRODUCTS PTY LIMITED
(ACN 008 206 942), PENRICE HOLDINGS PTY (ACN 008 125 835) and IMC
GLOBAL AUSTRALIA PTY LIMITED (ACN 072 6-39 902) (each separately
hereafter referred to as "the Company") CERTIFY as follows:-
I certify that:
1. The company is not the trustee of any trust fund or settlement and
all its assets are legally and beneficially owned by it.
2. The Company is not a subsidiary of, or controlled by, an
Australian public company.
3. The assets of the Company are or will at the time of first
drawdown under the Agreement be free of any Security Interest
other than as consented to by the Lender in writing.
4. No meeting has been called to consider a resolution, no resolution
has been passed, no application is pending and no order has been
made for the winding up or administration of the Company.
5. The Company is not insolvent and it is not aware of any
circumstances, and has not received any demand which remains
unsatisfied, which is likely to lead to the winding up of the
Company under the Corporations Law.
6. No receiver, receiver and manager or administrator has been
appointed to the Company or any of its assets and the Company is
not a party to any current legal proceedings which is likely to
adversely affect the ability of the Borrower to carry out its
obligations under the Agreement.
7. A resolution of the directors of the Company:
(a) authorizing the acceptance and execution of the facility
agreement ("Agreement") governing the terms and conditions
of a 2 year revolving credit facility and a 5 year term loan
facility ("Facility") agreed to be provided by the Lender to
the Company; and
(b) appointing each of the persons set out in Annexure "A" as an
authorized officer of the Company to prepare, complete and
sign letters and notices on behalf of the Company for the
purposes of the Agreement and to do everything else that may
be necessary for the purposes of the Agreement or the
Facility including agreeing any amendments to the provisions
of the Agreement including the amount and term,
was passed in accordance with the Articles of Association of the
Company and an extract thereof is set out in Annexures "B, C and
D".
8. Set out in Annexure "A" are the normal signatures of each of the
authorized officers referred to above.
9. Neither the execution of the Agreement nor the passing of the
resolution referred to above has infringed or will infringe the
constitution of the Company or contravene any obligation to which
it is a party.
10. I am aware the Lender will rely on this certificate in providing
the Facility to the Company.
11. A word or phrase defined in the Agreement has the same meaning in
this certificate.
12. A current and up to date copy of the Constitution of the company
is attached hereto as Annexures E, F and G.
DATED the day of 1998
----------------------------------
Signature
----------------------------------
Position
"A"
This is Annexure "A" referred to in the attached Verification
Certificate
AUTHORISED OFFICERS OF PENRICE SODA PRODUCTS PTY LIMITED
(ACN 008 206 942), PENRICE HOLDINGS PTY (ACN 008 125 835) AND IMC
GLOBAL AUSTRALIA PTY LIMITED (ACN 072 639 902)
("the Company")
The following are the names and signatures of the authorized officers
of the Company.
NAME SIGNATURE
(Please print)
"B"
EXTRACT OF RESOLUTIONS OF THE BOARD OF DIRECTORS OF
PENRICE SODA PRODUCTS PTY LTD (ACN 008 206 942) ("the Company")
The Chairman noted that a quorum was present at the meeting comprising
Directors entitled to vote on the proposed resolutions and noted that
each Director disclosed that director's interest, if any, in the
subject matter of the proposed resolutions, without limitation, each
directorship, if any, in every company concerned in or by the subject
matter of the proposed resolutions.
Drafts of the following documents (the "Documents" ) were tabled at the
meeting:
Facility Agreement between Penrice Soda Products Pty Ltd, Penrice
Holdings Pty and IMC Global Australia Pty Ltd (together,
"Borrowers") as borrowers, The First National Bank of Chicago
("Bank") as administrative agent Banque Nationale de Paris as
lender and IMC Global Inc ("IMC") as guarantor;
Facility Agreement between the Borrowers as borrowers, the Bank as
lender and IMC as guarantor; and
Facility Agreement between the Borrowers as borrowers, the Bank as
administrative agent, Rabo Australia Limited as lender and IMC as
guarantor.
The Chairman reported in detail on the nature of the transactions
evidenced by the Documents and on the rights conferred on and
obligations assumed by the Company.
RESOLVED THAT:
13. the Company unconditionally execute and delivery the Documents in
the form of the drafts tabled together with all ancillary
documents and perform each of its obligations under each Document
and each ancillary document;
14. the common seal of the Company be affixed to such of the Documents
and ancillary documents requiring execution under the Company's
common seal and that each director be authorized to execute any
Document, ancillary document or other document considered
necessary or desirable by that Director; and
15. [*] be appointed as Authorized Officers of the Company for the
purposes of the Documents and that they each be authorised to
execute any notices and communications under or in connection with
the Documents.
CERTIFIED to be a true copy of the extract of the Minutes of Meeting of
the Board of Directors of the Company (the "Meeting") duly convened and
held and that all procedural and formal requirements under the Articles
of Association of the Company and the Corporations Law in respect of
the Meeting, the resolutions and appointment of directors of the
Company have been complied with in full and that such resolutions have
not been amended, modified or revoked and are in full force and effect.
-----------------------------------
Chairman
-----------------------------------
Print Name
"C"
EXTRACT OF RESOLUTIONS OF THE BOARD OF DIRECTORS OF
PENRICE HOLDINGS PTY (ACN 008 125 835) ("the Company")
The Chairman noted that a quorum was present at the meeting comprising
Directors entitled to vote on the proposed resolutions and noted that
each Director disclosed that director's interest, if any, in the
subject matter of the proposed resolutions, without limitation, each
directorship, if any, in every company concerned in or by the subject
matter of the proposed resolutions.
Drafts of the following documents (the "Documents") were tabled at the
meeting:
Facility Agreement between Penrice Soda Products Pty Ltd, Penrice
Holdings Pty and IMC Global Australia Pty Ltd (together,
"Borrowers") as borrowers, The First National Bank of Chicago
("Bank") as administrative agent Banque Nationale de Paris as
lender and IMC Global Inc ("IMC") as guarantor;
Facility Agreement between the Borrowers as borrowers, the Bank as
lender and IMC as guarantor; and
Facility Agreement between the Borrowers as borrowers, the Bank as
administrative agent, Rabo Australia Limited as lender and IMC as
guarantor.
The Chairman reported in detail on the nature of the transactions
evidenced by the Documents and on the rights conferred on and
obligations assumed by the Company.
RESOLVED THAT:
1. the Company unconditionally execute and delivery the Documents in
the form of the drafts tabled together with all ancillary
documents and perform each of its obligations under each Document
and each ancillary document;
2. the common seal of the Company be affixed to such of the Documents
and ancillary documents requiring execution under the Company's
common seal and that each director be authorized to execute any
Document. ancillary document or other document considered
necessary or desirable by that Director; and
3. [*] be appointed as Authorized Officers of the Company for the
purposes of the Documents and that they each be authorized to
execute any notices and communications under or in connection with
the Documents.
CERTIFIED to be a true copy of the extract of the Minutes of Meeting of
the Board of Directors of the Company (the "Meeting") duly convened and
held and that all procedural and formal requirements under the Articles
of Association of the Company and the Corporations Law in respect of
the Meeting, the resolutions and appointment of directors of the
Company have been complied with in full and that such resolutions have
not been amended, modified or revoked and are in full force and effect.
----------------------------
Chairman
----------------------------
Print Name
"D"
EXTRACT OF RESOLUTIONS OF THE BOARD OF DIRECTORS OF
IMC GLOBAL AUSTRALIA PTY LTD (ACN 072 6-39 902) ("the Company")
The Chairman noted that a quorum was present at the meeting comprising
Directors entitled to vote on the proposed resolutions and noted that
each Director disclosed that director's interest, if any, in the
subject matter of the proposed resolutions, without limitation, each
directorship, if any, in every company concerned in or by the subject
matter of the proposed resolutions.
Drafts of the following documents (the "Documents") were tabled at the
meeting:
Facility Agreement between Penrice Soda Products Pty Ltd, Penrice
Holdings Pty and IMC Global Australia Pty Ltd (together,
"Borrowers") as borrowers, The First National Bank of Chicago
("Bank") as administrative agent Banque Nationale de Paris as
lender and IMC Global Inc ("IMC") as guarantor;
Facility Agreement between the Borrowers as borrowers, the Bank as
lender and IMC as guarantor; and
Facility Agreement between the Borrowers as borrowers, the Bank as
administrative agent, Rabo Australia Limited as lender and IMC as
guarantor.
The Chairman reported in detail on the nature of the transactions
evidenced by the Documents and on the rights conferred on and
obligations assumed by the Company.
RESOLVED THAT:
1. the Company unconditionally execute and delivery the Documents in
the form of the drafts tabled together with all ancillary
documents and perform each of its obligations under each Document
and each ancillary document;
2. the common seal of the Company be affixed to such of the Documents
and ancillary documents requiring execution under the Company's
common seal and that each director be authorized to execute any
Document, ancillary document or other document considered
necessary or desirable by that Director; and
3. [*] be appointed as Authorized Officers of the Company for the
purposes of the Documents and that they each be authorised to
execute any notices and communications under or in connection with
the Documents.
CERTIFIED to be a true copy of the extract of the Minutes of Meeting of
the Board of Directors of the Company (the "Meeting") duly convened and
held and that all procedural and formal requirements under the Articles
of Association of the Company and the Corporations Law in respect of
the Meeting, the resolutions and appointment of directors of the
Company have been complied with in full and that such resolutions have
not been amended, modified or revoked and are in full force and effect.
-------------------------------
Chairman
-------------------------------
Print Name
SCHEDULE 4
FACSIMILE INDEMNITY
TO: RABO AUSTRALIA LIMITED
(the Financier)
FROM: PENRICE SODA PRODUCTS PTY LTD ACN 008 206 942
PENRICE HOLDINGS PTY ACN 008 125 835
IMC GLOBAL AUSTRALIA PTY LTD ACN 072 639 902
(each separately referred to as "the Customer")
IN CONSIDERATION of the Financier (which expression includes its
successors and assigns) agreeing to act on the basis of instructions
given by the Customer by Electronic Means, the Customer agrees as
follows:
1. In this indemnity "Electronic Means" means telephone, telex,
facsimile or any other electronic means.
2. The Customer agrees:
(a) that the Customer, and not the Financier, will bear all risks
in relation to any unauthorized or fraudulent notice or
communication given to the Financier by Electronic Means;
(b) that the Financier may, without further enquiry or reference
to the Customer, act on that notice or communication if it
includes a reference to the Customer and on its face purports
to be signed or given by an authorized signatory of the
Customer being a person notified as such in writing by the
Customer to the Financier from time to time;
(c) that the Financier, despite any other term of this indemnity,
may, in its absolute discretion, defer acting in accordance
with the whole or any part of a notice or communication
received by it pending further enquiry to and/or confirmation
by the Customer, but the Customer expressly agrees that the
Financier will not be under any responsibility to so defer in
any case.
3. The Customer:
(a) release the Financier from all actions and claims in
connection with the Financier in good faith acting on
instructions given by Electronic Means or deferring to act
under paragraph 2(c) above; and
(b) indemnifies the Financier against all losses, costs and
expenses suffered as a result of any actions or claims in
connection with the Financier in good faith acting on
instructions given by Electronic Means, except where it is
conclusively proven that the Financier or its employees acted
negligently or fraudulently.
Date 1998
THE COMMON SEAL of )
PENRICE SODA )
PRODUCTS PTY LTD )
is affixed in the presence of: )
-------------------------- ------------------------------------
Signature of Director Signature of Director/Company Secretary
-------------------------- ------------------------------------
Print Name Print Name
THE COMMON SEAL of )
PENRICE HOLDINGS )
PTY is affixed in the presence )
of: )
-------------------------- ------------------------------------
Signature of Director Signature of Director/Company Secretary
-------------------------- ------------------------------------
Print Name Print Name
THE COMMON SEAL of )
IMC GLOBAL AUSTRALIA )
PTY LTD is affixed in the )
presence of: )
-------------------------- ------------------------------------
Signature of Director Signature of Director/Company Secretary
-------------------------- ------------------------------------
Print Name Print Name
