CORVU AUSTRALASIA PTY LTD
ACN 050 043 699
("Approved Borrower")
AND
CORVU NORTH AMERICA INC
(FIN 00-0000000)
and CORVU PIC
(CRN 03096249)
("Security Provider")
AND
INTEGRAL BUSINESS FINANCE PTY LIMITED
ACN 007 559 749
("Integral Business")
LOAN AGREEMENT
XXXXXX TOUT
Solicitors
Xxxxx 00, XXX Xxxxxx
00-00 Xxxxxx Xxxxx
XXXXXX 0000
DX: 129
TEL: 0000 0000
FAX: 0000 0000
REF: RHT
TABLE OF CONTENTS
Page
1. INTERPRETATION 1
1.1 Definitions 1
1.2 Other expressions 6
2. LOANS 6
2.1 Agreement to make Loans 6
2.2 Purpose 6
2.3 Amount and maturity date of each Loan 7
3. CONDITIONS PRECEDENT 7
3.1 Things to be received by Integral Business 7
3.2 Conditions precedent to each Loan 8
3.3 Other conditions precedent 9
3.4 How a copy must be certified 9
4. DRAWDOWN AND INTEREST 9
4.1 Drawdown 9
4.2 Interest Periods 9
4.3 Calculation of interest on Outstanding Amount 10
4.4 Payment of interest on Outstanding Amount 10
4.5 Default interest 10
4.6 Interest following judgment 10
5. FEES 11
5.1 Establishment Fee 11
5.2 Line Fee 11
5.3 Fees not refundable 11
6. REPAYMENT 11
6.1 Repayment 11
6.2 Early repayment and redrawing 11
6.3 Repayment of excess over Facility Limit 12
7. INDEMNITIES AND COSTS AND EXPENSES 12
7.1 Costs and expenses 12
7.2 Indemnity following Event of Default 12
7.3 Indemnity for failed drawing 12
7.4 Indemnity for early or late payment 13
7.5 Example of loss 13
8. GENERAL AND FINANCIAL OBLIGATIONS 13
8.1 Positive obligations 13
8.2 Negative obligations 14
8.3 Insurance Obligations 15
8.4 Security Coverage 17
8.5 Valuation 17
8.6 Advising of defaults 17
8.7 Procedures on Default 18
8.8 Approved Borrower and Security Provider to comply with directions18
9. REPORTING OBLIGATIONS AND ACCESS 18
9.1 Notices to Integral Business 18
9.2 Other information 18
9.3 Giving access to records and land 19
9.4 Financial statements 19
10. REPRESENTATIONS AND WARRANTIES 20
10.1 Representations and warranties 20
10.2 Representations and warranties repeated 21
10.3 Representations and warranties modified 22
11. PAYMENTS TO INTEGRAL BUSINESS 22
11.1 Payment to be on Business Day 22
11.2 Manner of payment 22
11.3 Deduction or withholding required 22
12. DEFAULT 23
12.1 Events of Default 23
12.2 Consequences of Event of Xxxxxxx 00
00. INCREASED COSTS 26
14. ILLEGALITY 26
15. PRESERVING INTEGRAL BUSINESS'RIGHTS, POWERS AND REMEDIES 26
15.1 Preservation 26
15.2 Moratorium legislation 27
15.3 Reinstating or replacing rights 27
15.4 Effect of release 27
15.5 Indemnities continuing 27
16. ASSIGNMENT 28
16.1 By Approved Borrower 28
16.2 By Integral Business 28
16.3 Effect of assignment 28
17. NOTICES 28
18. MISCELLANEOUS 29
18.1 No obligation to exercise rights or give consent 29
18.2 Consent must be in writing 29
18.3 Notification from Approved Borrower or Security Provider 30
18.4 Integral Business may set off 30
18.5 Approved Borrower must not set off 30
18.6 Applying receipts 30
18.7 Certain notices or demands 30
18.8 Severability 30
18.9 Entire agreement 31
18.10 Variation of agreement 31
18.11 Counterparts 31
18.12 Integral Business may disclose information 31
18.13 Governing law and jurisdiction 31
LOAN AGREEMENT
AGREEMENT dated 26th day of February, 1998
BETWEEN CORVU AUSTRALASIA PTY LTD ACN 050 043 699 of Xxxxx 0, 0 Xxxxx Xxxxx,
Xxxxx Xxxxxx XXX 0000 ("Approved Borrower")
AND CORVU NORTH AMERICA INC (FIN 00-0000000) and CORVU PIC (Company Number
03096249) X/- Xxxxx 0, x Xxxxx Xxxxx, Xxxxx Xxxxxx NEW 2060
(collectively and individually "Security Provider")
AND INTEGRAL BUSINESS FINANCE PTY LIMITED ACN 077 559 749 of Xxxxx 0, 00
Xxxxxxxxxxx Xxxxxx, Xxxxxx XXX 0000 ("Integral Business")
1. INTERPRETATION
1.1 Definitions
In this document:
'Accounts' includes:
(a) profit and loss accounts and balance sheets; and
(b) statements, reports and notes attached to, or intended to be
read with, any document referred to in paragraph (a),
including auditors' reports and directors' reports.
'Approved Trade Debtor' means a trade debtor approved by Integral
Business.
'Approved Trade Debtor Limit' means at any time in respect of an
Approved Trade Debtor, the maximum amount of money which Integral
Business is prepared at that time to provide as Loans to the Approved
Borrower on the security of Designated Debts, as may be varied from
time to time in the absolute discretion of Integral Business.
'Australian Accounting Standards' means:
(a) accounting standards as defined in section 9 of the
Corporations Law; and
(b) the requirements of the Corporations Law for the preparation
and content of accounts; and
(c) generally accepted accounting principles and practices
consistently applied in Australia, except principles and
practices that are inconsistent with (a) or (b).
'Authorised Officer' means a person holding or acting in the office of
director, chief executive or secretary, or whose title includes the
word `Manager' or `Director'.
'Availability Period' means the period commencing on the date of this
document and expiring on the Termination Date, subject to the
provisions of Clause 6.3.
'Base Rate' for a particular Interest Period or other period means the
sum of the Margin and:
(a) the average bid rate (expressed as a percentage yield per
annum to maturity) (and rounded upwards if necessary to four
decimal places) displayed at or about 10.00 a.m. on the first
day of the Interest Period on the Reuters Monitor System on
the page designated `BBSY' for Bills having a tenor
approximately equal to the Interest Period or other period; or
(b) if Integral Business reasonably determines that the rate
specified in paragraph (a) cannot be readily determined, the
rate Integral Business determines is the appropriate
equivalent rate having regard to prevailing market conditions.
'Book Debts' means:
(a) book debts including, without limitation, all of the Approved
Borrower's or Security Provider's (as the case requires)
right, title and interest in the Invoices and the proceeds of
collection or realisation of the Invoices;
(b) debts other than book debts; and
(c) Collection Proceeds,
but excludes Cash Assets.
'Business Day' means a day on which banks (as defined in the Banking
Xxx 0000 (Cth)) are open for general banking business in Sydney,
excluding Saturdays and Sundays and public holidays in that place.
"Cash Assets" means:
(a) Collection Proceeds when credited to or paid into the
Designated Bank Account;
(b) moneys, funds or sums for the time being standing to the
credit of the Designated Bank Account;
(c) any indebtedness or liability in respect of any credit balance
for the time being in the Designated Bank Account of the bank
or financial institution where that account is held; and
(d) moneys, funds or assets withdrawn from, debited to or paid out
of the Designated Bank Account;
'Collateral Security' means a Guarantee, Security Interest or
negotiable instrument held or given, whether before or after this
document is executed, as security for or otherwise in connection with
the Money Owing.
"Collection Proceeds" means the proceeds of collection or realisation
of book and other debts comprising any form of property, including
without limitation cash, cheques, payment, money or credit orders,
transfers or transmissions of any kind by any means, bills of exchange
or promissory notes but excludes the proceeds of collection or
realisation of the Invoices.
'Commencement Date' means the date a Loan is first made to or at the
request of the Approved Borrower.
'CorVu Group' means the Approved Borrower, each Security Provider and
any related Corporation to any of the foregoing, and each of them.
'Designated Bank Account' means each of the accounts specified in
Schedule 1 and such other accounts of the Approved Borrower or Security
Provider with a bank or financial institution as nominated by Integral
Business and notified to the Approved Borrower and Security Provider
from time to time.
'Designated Debt' means any debt in respect of an Invoice which is the
subject of a Drawdown Notice under this document.
'Drawdown Notice' means the notice given by the Approved Borrower to
Integral Business in accordance with Clause 4.
'Event of Default' means each event listed in Clause 12.1.
'External Administrator' means an administrator, receiver, receiver and
manager, trustee, provisional liquidator, liquidator, inspector or any
other person (however described) holding or appointed to an analogous
office or acting or purporting to act in an analogous capacity.
'Facility Limit' means A$1,100,000.00 (one million one hundred thousand
dollars Australian).
'Facility Rate' means the aggregate of 5.0% per annum and the Base
Rate.
'Guarantee' means a guarantee, indemnity, letter of credit, letter of
comfort or any other obligation (whatever it is called and whatever its
nature) by which a person is responsible for another person's
obligation or debt.
'Interest Payment Date' means:
(a) the following dates:
Payment No. Date of Payment Payment No. Date of Payment
----------- --------------- ----------- ---------------
1 7
----------- --------------- ----------- ---------------
2 8
----------- --------------- ----------- ---------------
3 9
----------- --------------- ----------- ---------------
4 10
----------- --------------- ----------- ---------------
5 11
----------- --------------- ----------- ---------------
6 12
----------- --------------- ----------- ---------------
and
(b) the Termination Date; and
(c) after the Termination Date, the last day of each month.
'Interest Period' means an interest period determined under Clause 4.2.
'Invoice' means the invoice (which must be in a form acceptable to
Integral Business) given by either the Approved Borrower or the
Security Provider to an Approved Trade Debtor in respect of goods or
services or both supplied by the Approved Borrower or the Security
Provider (as the case requires) to the Approved Trade Debtor.
'Invoice Amount' means the total amount payable by an Approved Trade
Debtor on an Invoice.
'Loan' means each cash advance made by Integral Business to the
Approved Borrower under Clause 2.
'Loan Amount' means in relation to an Invoice, 80% of the Invoice
Amount for that Invoice.
'Margin' means 3.0 % per annum.
'Money Owing' means the amount determined for any day by Integral
Business to be the aggregate of all money owing or remaining unpaid by
the Approved Borrower to Integral Business on that day under this
document, whether the liability is actual or contingent.
'Outstanding Amount' means the aggregate amount of all outstanding
Loans less the aggregate of all principal repaid by the Approved
Borrower under this document, as calculated by Integral Business for
any day at 5.00 p.m. on that day.
'Public Authority' means the Crown, a government, a minister of a
government, a government department, a statutory corporation, or a
semi-government or judicial entity.
'Related Party' means:
(a) a person related to the Approved Borrower under section 50 of
the Corporations Law, and
(b) a person providing Collateral Security.
'Relevant Agreement' means:
(a) this document; and
(b) a Collateral Security; and
(c) an agreement between Integral Business and the Approved
Borrower; and
(d) a document (including a letter):
(i) that relates to the Money Owing or another Relevant
Agreement (other than a letter from the Approved
Borrower); or
(ii) that the Approved Borrower and Integral Business
agree is a Relevant Agreement; and
(e) the Securities.
'Securities' means:
(a) a first registered fixed and floating charge over all the
assets and undertaking of the Approved Borrower including a
fixed charge over the present and future Book Debts of the
Approved Borrower (encompassing its right and interest to
proceeds from invoices given to Approved Trade Creditors) and
a fixed charge over the trading bank accounts used to receive
deposits being the proceeds of goods and or services sold by
the Approved Borrower and any of its subsidiaries; and
(b) a first registered fixed and floating charge over all the
assets and undertaking of CorVu North America Inc (FIN
00-0000000) including a fixed charge over the present and
future Book Debts of CorVu Corporation (encompassing its right
and interest to proceeds from invoices given to Approved Trade
Creditors) and a fixed charge over the trading bank accounts
used to receive deposits being the proceeds of goods and or
services sold by CorVu North America Inc (FIN 00-0000000) and
any of its subsidiaries; and
(c) a first registered fixed and floating charge over all the
assets and undertaking of CorVu PIC (CRN 03096249) including a
fixed charge over the present and future Book Debts of CorVu
Plc (encompassing its right and interest to proceeds from
invoices given to Approved Trade Creditors) and a fixed charge
over the trading bank accounts used to receive deposits being
the proceeds of goods and or services sold by CorVu PIC (CRN
03096249) and any of its subsidiaries; and
(d) guarantees from all existing and future subsidiaries of the
Approved Borrower and the Security Provider; and
(e) covenants that the proceeds of goods and services sold by the
Approved Borrower and the Security Provider and any of their
subsidiaries are to be deposited into nominated accounts.
'Security Interest' means a mortgage, charge, lien, pledge,
hypothecation, encumbrance, assignment or trust of, over or in respect
of an asset or any other right by way of security (including, without
limitation, under any agency, hire purchase, title retention, sale and
repurchase or `flawed asset' or set-off arrangement) of a creditor to
have its claims satisfied prior to other creditors with or from the
proceeds of any asset and includes any agreement or document conferring
such a right.
'Security Provider' means CorVu North America Inc (FIN 00-0000000) and
CorVu PIC (CRN 03096249) and each of them.
'Security Trustee' means P.T. Limited ACN 004 454 666.
'Subsidiary' has the meaning given to it in section 46 of the
Corporations Law.
'Tax' includes a tax, levy, duty or charge (and associated penalty or
interest) imposed or withheld by a Public Authority. It does not
include income tax except tax deducted or withheld from a payment (such
as withholding tax).
'Termination Date' means the day three hundred and sixty five (365)
days after the date of this document or any earlier date on which the
Money Owing becomes payable under this document.
'Winding Up' includes:
(a) dissolution, liquidation, provisional liquidation and
bankruptcy; and
(b) a procedure which is equivalent or analogous in any
jurisdiction.
1.2 Other expressions
in this document, unless the contrary intention appears:
(a) the singular includes the plural and vice versa;
(b) other grammatical forms of defined words or expressions have
corresponding meanings;
(c) a reference to a party to this document includes that party's
successors and permitted assigns;
(d) a reference to a document or agreement includes that document
or agreement as novated, altered or replaced;
(e) when two or more persons are named as Approved Borrower:
(i) the term 'Approved Borrower' is a reference to each
of them alone and also to any two or more of them
together; and
(ii) this document binds them severally and jointly;
(f) a reference to any thing includes the whole or any part of
that thing and a reference to a group of things or persons
includes each thing or person in that group;
(g) 'dollars' and '$' refer to Australian currency;
(h) words implying natural persons include partnerships, bodies
corporate, associations and Public Authorities;
(i) a reference to any legislation or statutory instrument or
regulation is construed in accordance with the Acts
Interpretation Xxx 0000 (Cth) or the equivalent State
legislation, as applicable.
2. LOANS
2.1 Agreement to make Loans
Integral Business agrees to make multiple cash advances to the Approved
Borrower on the first day of each Interest Period during the
Availability Period.
2.2 Purpose
The purpose of each Loan is to provide the Approved Borrower with
working capital for its business as disclosed to Integral Business. A
Loan must not be used for any other purpose.
2.3 Amount and maturity date of each Loan
(a) Each Loan must be for an amount not greater than the Loan
Amount.
(b) No Loan may be made which has a maturity date later than the
Termination Date.
3. CONDITIONS PRECEDENT
3.1 Things to be received by Integral Business
Integral Business need not make a Loan unless Integral Business
receives all of the following things at least two Business Days before
the Commencement Date, and is satisfied in its absolute discretion with
both their form and substance:
(a) a certified copy of the memorandum and articles of association
and the certificate of incorporation of the Approved Borrower
and the Security Provider;
(b) a certified copy of the resolutions or approvals of the board
of directors of the Approved Borrower:
(i) approving the Approved Borrower Entering into and
executing each Relevant Agreement to which it is a
party; and
(ii) authorising an appropriate person or persons to
execute or take any action contemplated by this
document;
(c) a certified copy of the resolutions or approvals of the board
of directors of each Security Provider and each relevant
Related Party:
(i) approving the entering into and executing each
Security to which it is a party; and
(ii) authorising an appropriate person or persons to
execute or take any action contemplated by those
Securities;
(d) specimen signatures of the authorised signatories referred to
in Clauses 3.1(b)(ii) and 3.1 (c)(ii);
(e) evidence that any Public Authority approvals which are
necessary to authorise the transactions contemplated by ]his
document have been obtained;
(f) the Approved Borrower's and Security Provider's most recent
audited Accounts;
(g) each of the Securities properly executed and, if applicable,
in registrable form, as prepared by Integral Business or its
solicitors and containing the terms required by Integral
Business;
(h) satisfactory replies to all Integral Business's enquiries
about the property subject to the Securities;
(i) any documents of title to the property subject to the
Securities which Integral Business requests;
(j) any document ancillary to this document or the Securities
which Integral Business reasonably requests;
(k) the other information which Integral Business or its
solicitors reasonably request about the Approved Borrower, the
Securities or any property subject to the Securities; and
(l) a trade credit insurance policy satisfactory to Integral
Business in respect of the Facility at the cost and expense of
the Approved Borrower, with the interest of Integral Business
noted on the policy.
3.2 Conditions precedent to each Loan
Integral Business need not make available any Loan to the Approved
Borrower unless:
(a) it receives all of the following things in connection with the
applicable Approved Trade Debtor and that Loan at least five
(5) Business Days before the Commencement Date, and is
satisfied in its absolute discretion with both their form and
substance:
(i) a certified copy of the ledger of the Approved Trade
Debtors of each of the Approved Borrower and the
Security Provider and the Invoice (but Integral
Business may agree (in its absolute discretion) to
waive the requirement for the receipt by it of the
Invoice before the Commencement Date if once a
request is made by it, the Invoice is delivered to it
within two (2) days of the request being made);
(ii) evidence that the insurance cover extends to the
Approved Trade Debtor's debt to the Approved Borrower
or Security Provider, as the case requires.
(b) it is satisfied in its discretion that:
(i) the applicable Approved Trade Debtor Limit will not
be exceeded by Integral Business providing the Loan;
and
(ii) the Approved Borrower has a 'Dynamic Risk Score' from
Xxxx & Bradstreet (Australia) Pty Limited of 64 or
higher;
(iii) the Facility Limit will not be exceeded by Integral
Business providing the Loan;
(iv) the Loan, if drawn down, would not and would not be
likely in the opinion of Integral Business to cause
the Approved Borrower or the Security Provider to
breach the undertakings given under Clauses 8.4 (a),
(b), (c) or (d); and
(v) no event has occurred which in the opinion of
Integral Business may have a material adverse effect
on the Approved Borrower or the Security Provider; or
(c) it is satisfied with the trade credit arrangements and
documents used or to be used by the Approved Borrower and the
Security Provider in connection with the Loan and the
applicable Approved Trade Debtor.
3.3 Other conditions precedent
Integral Business need not make available any Loan unless it is
satisfied that:
(a) the representations and warranties made and given by the
Approved Borrower and the Security Provider in Clause 10 are
correct and not misleading by omission or otherwise, as if
they had been made and given on the Commencement Date about
the facts existing at that time;
(b) no Event of Default has occurred (that has not been remedied
or waived) nor has any event occurred which with the giving of
notice, lapse of time or any determination could constitute an
Event of Default;
(c) Integral Business has received the fees due to it under Clause
5; and
(d) Integral Business has obtained an amount of money equivalent
to the amount of the Loan pursuant to its funding
arrangements.
3.4 How a copy must be certified
Where Clause 3.1 requires a copy of a document to be certified, the
certification must:
(a) be by a director or secretary of the relevant company;
(b) confirm that the copy is a true and complete copy;
(c) confirm that the document has not been amended or revoked; and
(d) unless Integral Business otherwise agrees, be given no earlier
than the date of this document.
4. DRAWDOWN AND INTEREST
4.1 Drawdown
Subject to this document, the Approved Borrower may draw down the first
Loan on any Business Day during the Availability Period and may draw
down subsequent Loans on any Interest Payment Date, in each case by
giving Integral Business at least 5 Business Days' notice of its
intention to draw down in the form set out in Schedule 2.
4.2 Interest Periods
(a) Interest for a Loan is calculated by reference to successive
Interest Periods. The first Interest Period for that Loan
starts on this Commencement Date for that Loan. Each other
Interest Period starts on the day after the last day of the
preceding Interest Period. Interest shall be payable in
arrears on the day three (3) days prior to the last day of
each Interest Period.
(b) The duration of all of the Interest Periods for a Loan will be
one (1) month.
However, after the Termination Date or the occurrence of an
Event of Default, the term of each Interest Period may be
determined by Integral Business in its absolute discretion. If
Integral Business fails to make a determination, the term of
any new Interest Period will be seven days unless Integral
Business otherwise agrees.
(c) Integral Business may, without the consent of the Approved
Borrower, adjust the term of any Interest Period to ensure
that:
(i) the first and last days of the Interest Period are
Business Days; and
(ii) the Interest Period does not end after the
Termination Date.
4.3 Calculation of interest on Outstanding Amount
Interest accrues daily on each Outstanding Amount at the Facility Rate
reducing to the Base Rate if interest is paid when due and there is no
subsisting Event of Default. Interest is calculated on a 365 day year
and the number of days elapsed since the Commencement Date or the last
date (as the case may be) for the applicable Loan.
4.4 Payment of interest on Outstanding Amount
The Approved Borrower must pay to Integral Business all accrued but
unpaid interest on each Outstanding Amount in arrears on each Interest
Payment Date for that Loan until the Money Owing in respect of that
Loan has been fully paid.
5.5 Default interest
If the Approved Borrower does not pay any amount payable under this
document (`Unpaid Amount') on the day on which it is due and as
required by Clause 12.2:
(a) the Approved Borrower must pay on demand interest on the
Unpaid Amount at the Facility Rate for each day the Unpaid
Amount remains unpaid and based on a 365 day year and an
Interest Period of 30 days; and
(b) any interest under paragraph (a) which has not been paid is
capitalised on each Interest Payment Date (or such other dates
as Integral Business determines). It then bears interest
itself under this Clause at the Facility Rate.
5.6 Interest following judgment
If the Approved Borrower's liability under this document is the subject
of a judgment or order:
(a) the Approved Borrower must pay interest to Integral Business
at the higher of the rate payable under that judgment or order
and the Facility Rate;
(b) the obligation to pay interest under this Clause is an
obligation separate from the judgment or order and will apply
despite the making of the judgment or order; and
(c) the interest which accrues under this Clause may be
capitalised on each Interest Payment Date (or such other dates
as Integral Business determines). It then bears interest
itself under this Clause at the Facility Rate.
5. FEES
5.1 Establishment Fee
The Approved Borrower must pay an establishment fee of $11,000.00 (and
disbursements incurred by Integral Business' legal representatives in
the preparation, signature and registration of this deed arid ancillary
documents) to Integral Business on or before the first Commencement
I)ate under this document.
5.2 Line Fee
The Approved Borrower must pay to Integral Business a line fee
calculated on a daily basis on the amount of the Facility Limit on each
day, at the rate of one point two five percent (1.25%) per annum. The
line fee applies whether or not a Loan has been drawn down. The first
line fee payment must t)e made on the date of this document. Subsequent
line fees must be paid in advance quarterly thereafter for the duration
of the Facility.
5.2 Fees not refundable
None of the fees referred to in this Clause is refundable or
rebateable.
6. REPAYMENT
6.1 Repayment
The Approved Borrower must pay the Money Owing in full to Integral
Business on the Termination Date, unless required earlier under Clauses
6.3 or 12.2.
6.2 Early repayment and redrawing
The Approved Borrower may repay all or part of a Loan before the
Repayment Date for that Loan only if:
(a) the Approved Borrower gives Integral Business at least 5
Business Days' notice in writing that it intends to repay, and
specifies the amount of the repayment and the date for
repayment.
That date must be the first day of the next Interest Period;
(b) it. repays the Loan in full, or the amount the Approved
Borrower wants to pay is:
(i) at least $20,000; and
(ii) a whole number multiple of $10,000;
(c) the Approved Borrower pays on the day specified in the notice.
If the Approved Borrower gives a notice contemplated by paragraph (a),
the Approved Borrower must make the payment specified in that notice
and must not revoke or purport to revoke that notice. A repayment made
under this Clause 6.2 does not reduce the Facility Limit and any amount
so repaid is available to be redrawn as a Loan subject to the terms of
this document.
6.3 Repayment of excess over Facility Limit
The Approved Borrower must upon demand in writing by Integral Business
repay to Integral Business the amount by which the Outstanding Amount
exceeds the Facility Limit at any time.
7. INDEMNITIES AND COSTS AND EXPENSES
7.1 Costs and expenses
The Approved Borrower indemnities Integral Business against, and must
pay on demand to Integral Business, all Taxes, costs and expenses
(including, but not limited to, legal costs and expenses on a full
indemnity basis) which Integral Business pays, or is liable to pay, in
connection with:
(a) a Relevant Agreement, or negotiating, preparing, completing,
registering or stamping a Relevant Agreement; or
(b) obtaining payment of the Money Owing; or
(c) protecting, enforcing or exercising a right, power or remedy
of Integral Business or a receiver or an attorney appointed
under a Relevant Agreement; or
(d) an Event of Default; or
(e) obtaining advice (including, but not limited to, legal advice)
from a professional person or consultant about any matter of
concern to Integral Business in connection with a Relevant
Agreement; or
(f) Integral Business providing financial accommodation to or at
the request of the Approved Borrower; or
(g) a receipt or payment of money under, or a transaction
contemplated by, a Relevant Agreement,
whether or not a Loan is drawn or Integral Business's obligations are
cancelled.
7.2 Indemnity following Event of Default
The Approved Borrower indemnities Integral Business against any loss,
foregone profit or expense Integral Business incurs or suffers as et
result of the occurrence of an Event of Default.
7.3 Indemnity for failed drawing
The Approved Borrower indemnities Integral Business against any loss,
foregone profit or expense that Integral Business incurs or suffer,,;
as a result of a drawdown not proceeding for any reason (except default
by Integral Business) following the issue of a drawdown notice under
Clause 4.
7.4 Indemnity for early or late payment
The Approved Borrower indemnities Integral Business against any loss,
foregone profit or expense Integral Business incurs or suffers as a
result of the Money Owing or any part of the Money Owing:
(a) being paid or repaid to Integral Business before the
Termination Date; or
(b) being paid or repaid to Integral Business after the date on
which it is due; or
(c) becoming payable to Integral Business early as a result of an
Event of Default.
7.5 Example of loss
The indemnity in Clause 7.4 includes loss, foregone profit and expense
incurred or suffered:
(a) in connection with Integral Business:
(i) changing, rearranging or ending any financial
arrangements entered into by it in connection with
the Money Owing (even if the financial arrangements
were entered into for a large pool of funds); or
(ii) redeploying or reinvesting the money paid or repaid
to Integral Business; and
(b) because Integral Business has lost the benefit of the
agreement that the Money Owing should be at a fixed rate or
outstanding for a fixed time or both. In this case, the amount
of the loss, foregone profit and expense is to be determined
by comparison with an available replacement loan at the time
of the payment or repayment.
8. GENERAL AND FINANCIAL OBLIGATIONS
8.1 Positive obligations
From the date of this document until the Money Owing is paid in full
the Approved Borrower and the Security Provider must:
(a) carry on its business in a proper and efficient way and
obtain, renew and maintain all licences, consents and
approvals advisable in connection with the Approved Borrower's
or Security Provider's business, as the case requires;
(b) maintain proper and adequate books and records in accordance
with applicable accounting standards;
(c) pay when due the Taxes assessed, levied or imposed on the
Approved Borrower or Security Provider (as the case requires)
or on assets held by it in any capacity;
(d) comply with the terms of each lease and mater al contract to
which it is a party;
(e) comply with all laws and with the mandatory requirements of
any Public Authority;
(f) do everything necessary to ensure that no Event of Default
occurs;
(g) ensure that no Loan made in connection with an Approved Trade
Debtor exceeds the Approved Trade Debtor Limit for that
Approved Trade Debtor; and
(h) promptly give notice to Integral Business of the occurrence of
any dispute in connection with an Approved Trade Debtor or any
event which would or would be likely to have a material
adverse effect on the business or financial condition of an
Approved Trade Debtor of which the Approved Borrower or the
Security Provider (as the case requires) is aware; and
(i) keep or cause to be kept proper books of account, in which it
will make true and perfect entries of all dealings and
transactions now or in the future conducted by it, including,
in respect of its business; and .
(j) credit or pay all Collection Proceeds immediately following
receipt by the Approved Borrower or the Security Provider (as
the case requires), or cause the Collection Proceeds to be
credited or paid directly, to or into the Designated Bank
Account, except where Integral Business has previously
directed or consented to a contrary arrangement.
8.2 Negative obligations
The Approved Borrower and the Security Provider must not, without
Integral Business's consent:
(a) materially change the nature of its business from the way it
is at the Commencement Date; or
(b) allow anything to be done to lessen Integral Business's
rights, powers or remedies under a Relevant Agreement; or
(c) provide financial accommodation to or at the request of a
Related Party or any person who would be a `related party' of
the Approved Borrower under section 243F of the Corporations
Law (as if that section applies to all companies and not just
public companies); or
(d) declare or pay a dividend if:
(i) it would have a material adverse effect on the
ability of the Approved Borrower or the Security
Provider, as the case requires to meet its
obligations under a Relevant Agreement; or
(ii) an Event of Default has occurred and has not been
remedied; or
(e) permit a Security Interest to affect any of the property or
assets of the Approved Borrower or the Security Provider, as
the case requires, except in favour of Integral Business; or
(f) acquire or dispose of an asset, or incur a liability, except
in the ordinary course of the Approved Borrower's or the
Security Provider's ( as the case requires) ordinary business
and on `arm's length' terms; or
(g) dispose of any of its book debts, monetary claims or revenue,
except to Integral Business.
8.3 Insurance Obligations
(a) Positive obligations
The Approved Borrower and the Security Provider must:
(i) maintain, with underwriters and on terms acceptable
to Integral Business:
(A) insurance over each Designated Debt for such
amount as Integral Business specified
against the risks Integral Business
specifies;
(B) worker's compensation, public risk, business
interruption, loss of rent insurance and the
other insurance which a prudent person would
have if involved in a business similar to
the Approved Borrower's or the Security
Provider's, as the case requires; and
(C) the other insurance which Integral Business
specifies;
(ii) ensure that this insurance:
(A) has the interest of Integral Business as
chargee or mortgagee endorsed on the policy;
or
(B) if Integral Business directs, is in both the
names of the Approved Borrower or the
Security Provider (as the case requires) and
Integral Business for their respective
rights and interests;
and, in the case of insurance in respect of
Designated Debts, has Integral Business and the
Security Trustee named as loss payee.
(iii) deliver to Integral Business:
(A) the insurance policies relating to this
insurance (`Insurance Policies'); and
(B) all alterations and additions to the
Insurance Policies, immediately after they
are issued; and
(iv) on request, give Integral Business Certificates of
currency for the Insurance Policies;
(v) punctually pay the sums (including stamp duty)
necessary to maintain every Insurance Policy arid
give Integral Business promptly on request the
receipt for this premium sum paid; and
(vi) notify Integral Business immediately of anything
which might give rise to a claim or right to claim
under an Insurance Policy.
(b) Negative obligations
The Approved Borrower and the Security Provider must not:
(i) do or allow anything to be done which might cause an
Insurance Policy to be prejudiced; or
(ii) without the consent of Integral Business, take steps
to bring about a material change to the cover under
an Insurance Policy; or
(iii) implement insurance other than as specified in Clause
8.3(a); or
(iv) make, enforce, settle or compromise a claim or do
anything inconsistent with the powers of Integral
Business under Clause 8.3(c).
(c) Insurance claims
Integral Business alone may:
(i) make, enforce, settle and compromise insurance or
compensation claims in connection with any property
which is the subject of a Security (including without
limitation any Designated Debt); and
(ii) xxx for, recover, receive and give discharges for
money payable in connection with the Insurance
Policies.
(d) Insurance proceeds
(i) Integral Business may apply money payable under an
Insurance Policy either:
(A) in or towards payment of the Money Owing,
whether due or not; or
(B) in replacing, rebuilding or repairing, under
the supervision of Integral Business, or
Integral Business's builder or architect,
the property destroyed or damaged.
(ii) If the Approved Borrower or the Security Provider (
as the case requires) receives money payable under an
Insurance Policy before all the Money Owing has been
repaid and this document comes to an end, the
Approved Borrower or the Security Provider (as the
case requires) must pay it to Integral Business
immediately.
(e) Insurance cover for Debts
The Approved Borrower or the Security Provider (as the case
requires) must on demand by Integral Business irrevocably
direct the insurer in respect of an Insurance Policy for
Designated Debts to pay all money payable under any such
policy direct to the Designated Bank Account, or as Integral
Business otherwise specifies from time to time.
8.4 Security Coverage
The Approved Borrower and the Security Provider undertakes to Integral
Business that:
(a) where the Securities do not include a real property mortgage
in favour of Integral Business, the Outstanding Amount will
not at any time exceed 80% of the aggregate Face Value of all
outstanding Designated Debts from Approved Trade Debtors held
by Integral Business;
(b) subject to paragraph (c), where the Securities include a real
property mortgage given in favour of Integral Business, the
Outstanding Amount will not at any time exceed the amount
which is the aggregate of:
(i) 75% of the aggregate Face Value of all outstanding
Designated Debts from Approved Trade Debtors held by
Integral Business, plus
(ii) 67% of the Agreed Value of the real property
mortgaged in favour of Integral Business;
(c) where the Securities include a real property mortgage given in
favour of Integral Business, that amount which is 75% of the
Face Value of all outstanding Designated Debts from Approved
Trade Debtors held by Integral Business will be not less than
70% of the Outstanding Amount; and
(d) the Approved Borrower and the Security Provider will ensure
that at all times sufficient outstanding Designated Debts from
Approved Trade Debtors are held by Integral Business to ensure
that no breach of paragraphs (a), (b) or (c) of this clause
ever occurs.
8.5 Valuation
Integral Business may, in its absolute discretion, at any time appoint
and instruct a valuer to provide a valuation of all or part of the
Property.
The Approved Borrower indemnities Integral Business against, and must
pay on demand to Integral Business, all costs and expenses which
Integral Business pays, or is liable to pay, in connection with
obtaining valuations under this Clause.
8.6 Advising of defaults
The Approved Borrower and the Security Provider must promptly give
notice to Integral Business upon becoming aware of:
(a) the failure by an Approved Trade Debtor to pay any moneys due
under an Invoice the subject of a Designated Debt; or
(b) the occurrence of any other event which would be likely to
cause (a) to happen.
The events referred to in (a) and (b) are called "Non-Payment Events".
8.7 Procedures on Default
The Approved Borrower and the Security Provider must take such action
following the occurrence of a Non-Payment Event that Integral Business
requires it to take so as to:
(a) cause that Non-Payment Event to be remedied;
(b) recover the money the subject of the Non-Payment Event; and
(c) protect and preserve all of the rights of Integral Business in
respect of any applicable Invoice or Designated Debt.
8.8 Approved Borrower and Security Provider to comply with directions
Integral Business may (but is not obliged to) give directions and
instructions to the Approved Borrower or the Security Provider (as the
case requires) as to:
(a) the action to be taken pursuant to Clause 8.7;
(b) any other matter which Integral Business (acting reasonably)
believes may affect its rights under this document or the
Securities,
and the Approved Borrower or the Security Provider (as the case
requires) must comply with any such directions and instructions.
9. REPORTING OBLIGATIONS AND ACCESS
9.1 Notices to Integral Business
The Approved Borrower or the Security Provider (as the case requires)
must notify Integral Business as soon as it becomes aware of:
(a) an Event of Default or any other circumstance which could
become an Event of Default which with the giving of notice,
lapse of time or any determination could constitute an Event
of Default; or
(b) a representation or warranty in Clause 10, or in another
Relevant Agreement, becoming false or misleading (giving full
details); or
(c) the Approved Borrower or the Security Provide, acquiring or
intending to acquire a Subsidiary.
9.2 Other information
The Approved Borrower and the Security Provider must:
(a) give Integral Business copies of:
(i) its consolidated audited annual Accounts and those of
its Subsidiaries as soon as possible after its annual
balance date (and, at the latest, 120 days after that
date);
(ii) its consolidated semi-annual Accounts and those of
its Subsidiaries as soon as possible after six months
expires after its annual balance date (and, at the
latest, 90 days after that six months expires);
(iii) monthly management accounts including whatever
information Integral Business requires (in its
absolute discretion) within 30 days after the end of
each month;
(iv) monthly cashflow statements profit and loss accounts
and balance sheets and projections by geographic
location and business division within 30 days after
the end of each month; and
(v) aged debtors reports in the form and containing the
information required by Integral Business within 20
days after the end of each month;
(b) give Integral Business copies of the reports, accounts,
notices and circulars which the Approved Borrower or the
Security Provider (as the case requires) issues to its
members, as soon as they are issued;
(c) give Integral Business, in writing, promptly on request,
whatever other information it requires;
(d) as and when required by Integral Business, furnish Integral
Business with a statutory declaration made by two of its
director stating to the best of the knowledge of such
directors whether or not an Event of Default has occurred and,
if it has, setting out the details and the steps (if any)
taken to remedy or cure the same; and
(e) make available for inspection by Integral Business or any
person authorised by it, during normal business hours and upon
reasonable notice all books, board papers, board minutes and
records maintained by it under or for the purposes of this
document including, without limitation, all Invoices and other
documents in connection with Approved Trade Debtors.
9.3 Giving access to records and land
The Approved Borrower and the Security Provider must:
(a) ensure that its business and financial records arid those of
its Subsidiaries are available for inspection at reasonable
times by Integral Business and persons acting on Integral
Business's behalf; and
(b) allow Integral Business and persons acting on Integral
Business's behalf to inspect and to take copies of or extracts
from it and its Subsidiaries' business and financial records
and give reasonable assistance to them; and
(c) allow, or obtain for Integral Business and persons acting on
Integral Business's behalf, full access at all times to any
land or building occupied by it or its Subsidiaries.
9.4 Financial statements
All financial statements given to Integral Business must be:
(a) prepared and, if relevant, audited in accordance with
Australian Accounting Standards; and
(b) certified by two directors of the relevant company as an
accurate and complete statement of the financial position of
that company.
10. REPRESENTATIONS AND WARRANTIES
10.1 Representations and warranties
The Approved Borrower and the Security Provider each represent and
warrant to Integral Business that:
(a) the Approved Borrower, each Subsidiary of the Approved
Borrower and each Related Party that is a corporation was
properly incorporated and validly exists;
(b) the Approved Borrower and each Related Party has the power to
enter into each Relevant Agreement to which it is a party and
to carry out any transaction or obligation contemplated by it;
(c) all necessary action has been taken to make each Relevant
Agreement to which it is a party valid and binding on the
Approved Borrower or the Security Provider (as the case
requires) and to enable the Approved Borrower and the Security
Provider (as the case requires) to carry out any transaction
or obligation contemplated by them;
(d) the Approved Borrower and the Related Parties have observed
and performed the requirements of all laws, documents and
arrangements, where failure to do so may have a material
adverse effect on the Approved Borrower or a Related Party;
(e) executing and performing this document and the other Relevant
Agreements to which the Approved Borrower or a Related Party
is a party does not:
(i) conflict with any document or arrangement that binds
the Approved Borrower or a Related Party; or
(ii) result in a Security Interest (other than under a
Relevant Agreement) being created on, or a charge
crystallising over, an asset of the Approved Borrower
or a Related Party;
(f) neither the Approved Borrower nor any Relevant Party is a
trustee of any trust or settlement;
(g) the assets of the Approved Borrower and Related Parties are
free of any Security Interest other than the Collateral
Securities;
(h) no Event of Default has occurred;
(i) no other circumstance exists which could become an Event of
Default if a notice is given, a period of time lapses or
another requirement is fulfilled;
(j) the Accounts of the Approved Borrower and the :Security
Provider and their Subsidiaries which have been given to
Integral Business:
(i) are an accurate statement of their respective
financial positions for the period ending on the date
to which they are prepared;
(ii) disclose all actual and contingent liabilities; and
(iii) have been prepared in accordance with Australian
Accounting Standards, except for any departures from
those standards which are disclosed in the Accounts;
(k) there has been no change in the financial position of the
Approved Borrower, the Security Provider or their Subsidiaries
since the date to which the last Accounts given to Integral
Business were prepared, which could have a material adverse
effect on them or their Subsidiaries;
(1) all information provided to Integral Business by or on behalf
of the Approved Borrower or a Related Party is accurate and
not misleading by omission or otherwise (including, but not
limited to, information in a financial statement);
(m) all information contained in the Drawdown Notice is correct
and accurate;
(n) neither the Approved Borrower nor any Related Party has
entered into a Relevant Agreement because of any promise,
representation, statement or information given or offered by
or on behalf of Integral Business, even if in answer to an
enquiry by or for the Approved Borrower or Related Party;
(o) the Approved Borrower and each Related Party has relied on its
own investigations and enquiries regarding the nature of the
transactions contemplated by the Relevant Agreements and has
not relied on any information, advice or opinion (including
information, advice or opinions regarding interest rates or
currency exchanges) given or offered by or on behalf of
Integral Business, even if in answer to any enquiry by or for
the Approved Borrower or Related Party; and
(p) there is no dispute between the Approved Borrower or the
Security Provider (as the case requires) and an Approved Trade
Debtor in respect of an Invoice or Designated Debt that
relates to the supply of goods or services by the Approved
Borrower or the Security Provider (as the case requires) to
the Approved Trade Debtor, when the applicable Designated Debt
is endorsed in favour of Integral Business; and
(q) the Approved Borrower and the Security Provider are solvent
and there are no grounds to suspect that, on execution of each
Relevant Agreement to which the Approved Borrower is a party,
the Approved Borrower or the Security Provider (as the case
requires) will not be able to pay all its debts as and when
they become due and payable; and
(r) no Approved Trade Debtor is resident or incorporated in
Tasmania.
10.2 Representations and warranties repeated
The representations and warranties in this Clause are repeated on the
Commencement Date and on the last day of each Interest Period:
(a) with reference to the facts and circumstances at the time; and
(b) reading the Accounts referred to in Clause 10.1(j) as a
reference to the most recent financial statements given to
Integral Business under Clause 9.2.
10.3 Representations and warranties modified
The representations and warranties in this Clause apply unless:
(a) the Approved Borrower or the Security Provider (as the case
requires) makes a contrary written statement to Integral
Business in the seven days before they are made or repeated;
and
(b) Integral Business accepts the statement in writing.
11. PAYMENTS TO INTEGRAL BUSINESS
11.1 Payment to be on Business Day
If a payment under this document falls due on a day that is not a
Business Day, it must be paid on the previous Business Day.
11.2 Manner of payment
Payments must be made:
(a) to Integral Business, or as directed by it;
(b) to the credit of such account as notified by Integral Business
to the Approved Borrower);
(c) at or before 12 noon on the due date in the place where the
payment is to be made;
(d) in immediately available funds; and
(e) free of any set-off, deduction or counterclaim.
11.3 Deduction or withholding required
If the Approved Borrower must deduct or withhold Taxes from a payment
to Integral Business it must:
(a) make those deductions or withholdings (or both);
(b) pay the full amount deducted or withheld as required by the
relevant law;
(c) give Integral Business a receipt for each payment; and
(d) increase its payment to Integral Business to an amount which
will result in Integral Business receiving the full amount
which would have been received if no deduction or withholding
had been required.
12. DEFAULT
12.1 Events of Default
An Event of Default occurs if:
(a) (non-payment) the Approved Borrower does not pay the whole or
any part of the Money Owing when due; or
(b) (obligation not compiled with) the Approved Borrower or a
Related Party does not comply with an obligation (other than
an obligation to pay money referred to in Clause 12.1 (a))
under a Relevant Agreement or an event of default (however
described) occurs under a Relevant Agreement; or
(c) (security coverage) the Approved Borrower or the Security
Provider (or both) does not comply with clause 8.4; or
(d) (incorrect statement or representation) a statement or
representation:
(i) made to Integral Business by or on behalf of the
Approved Borrower or a Related Party; or
(ii) made in a certificate, report or opinion given to
Integral Business,
proves to be incorrect or misleading in any way which Integral
Business considers material; or
(e) (undertaking not complied with) an undertaking given to
Integral Business or Integral Business's solicitors by or on
behalf of the Approved Borrower or any Related Party is not
complied with promptly and, unless otherwise specified, within
30 days of giving the undertaking; or
(f) (funding applied for other purpose) a Loan is applied for a
purpose other than the purpose specified in Clause 2.2; or
(g) (cross default - repayment) indebtedness of the Approved
Borrower or a Related Party:
(i) becomes payable before its normal maturity because of
actual or potential default, or an event of default
(however described); or
(ii) is not paid when due after taking into account any
applicable grace period; or
(h) (cross default - cancellation) as a result of actual or
potential default, or an event of default (however described):
(i) a facility available to the Approved Borrower or a
Related Party is cancelled or terminated before its
normal expiry date; or
(ii) the Approved Borrower or a Related Party ceases to be
entitled to use a facility or undrawn financial
accommodation which was previously available; or
(i) (creditors) the Approved Borrower or a Related Party stops
payment to creditors generally or enters into an arrangement,
assignment or composition with its creditors (except with the
consent of Integral Business) or proposes to do so; or
(j) (business stopped) without the consent of Integral Business
the Approved Borrower or a Related Party stops or threatens to
stop carrying on its business; or
(k) (External Administrator):
(i) an External Administrator is appointed; or
(ii) the Approved Borrower, its liquidator, a secured
creditor, a Related Party or any person on their
behalf requests the appointment of an External
Administrator, `
to the Approved Borrower, a Related Party or any of their
assets; or
(l) (enforcement proceedings) execution or distress takes place or
is attempted or an order to execute a judgment (however
described) is made against the Approved Borrower or a Related
Party or any of their assets; or
(m) (Security Interest enforceable) a Collateral Security or a
Security Interest created or entered into by the Approved
Borrower or a Related Party becomes enforceable and any step
is taken to enforce it; or
(n) (prior trust not disclosed) the Approved Borrower did not
disclose to Integral Business in writing, before or at the
time this document was executed, the fact that:
(i) it was entering into the transactions contemplated by
this document as a trustee or in a trust capacity; or
(ii) all or any part of the assets held by it are held in
trust for or on behalf of any other person; or
(o) (Winding Up):
(i) an order is made for the Winding Up of the Approved
Borrower or a Related Party; or
(ii) proceedings are commenced or an application is made
for the Winding Up of the Approved Borrower or a
Related Party and not withdrawn or dismissed within
seven days; or
(iii) an effective resolution is passed or a meeting is
summoned or convened to consider a resolution for the
Winding Up of the Approved Borrower or a Related
Party, except with the consent of Integral Business
and for the purpose of amalgamation or
reconstruction; or
(p) (grounds for Winding Up) a circumstance specified in section
461 of the Corporations Law occurs to the Approved Borrower or
a Related Party; or
(q) (deregistration) a step is taken under section 572 or 574 of
the Corporations Law to cancel the registration of the
Approved Borrower or a Related Party; or
(r) (change in constituent documents) the Approved Borrower or a
Related Party alters its memorandum or articles of association
or other constituent documents without the consent of Integral
Business; or
(s) (business changed) the Approved Borrower or a Related Party
substantially changes the nature of its business without the
consent of Integral Business; or
(t) (capital reduction) the Approved Borrower or a Related Party:
(i) attempts to redeem its shares, to reduce its share
capital or to buy or to acquire shares in itself; or
(ii) passes a resolution of the type referred to in
section 188(2) of the Corporations Law,
without the consent of Integral Business; or
(u) (financial assistance) the Approved Borrower or a Related
Party passes a resolution under section 205(10) of the
Corporations Law without the consent of Integral Business; or
(v) (change in control) the control of the Approved Borrower or a
Related Party or the composition of the board of directors of
the Approved Borrower or a Related Party changes in any way
which Integral Business thinks is detrimental to its interests
under a Relevant Agreement, without the consent of Integral
Business; or
(w) (power of attorney) an Approved Trade Debtor or the Approved
Borrower or the Security Provider (or all) or any person on
their behalf for any reason claims that a power of attorney
under which it purports to execute any document did not give
full authority for the applicable attorney to sign that
document for and on behalf of the Approved Trade Debtor or
Approved Borrower or the Security Provider (as the case may
be); or
(x) (unenforceability) anyone finds, or the Approved Borrower or a
Related Party says that, a Relevant Agreement or a provision
of a Relevant Agreement is void, voidable or unenforceable, or
anyone becomes entitled to terminate or rescind all or any
part of a Relevant Agreement; or
(y) (creating Security Interest) the Approved Borrower or a
Related Party attempts to create a Security Interest on or in
connection with its assets or undertaking without the consent
of Integral Business; or
(z) (material adverse change) an event occurs which, in the
opinion of Integral Business, has a material adverse effect on
the Approved Borrower, a Related Party or property the subject
of a Collateral Security.
12.2 Consequences of Event of Default
After an Event of Default Integral Business may:
(a) declare the Money Owing payable. If so, the Money Owing
becomes immediately payable; or
(b) give notice to the Approved Borrower that the facility under
this document is cancelled. If so, all the obligations of
Integral Business under this document are immediately at an
end; or
(c) do both (a) and (b).
13. INCREASED COSTS
If Integral Business decides that:
(a) the cost to it of providing, funding or maintaining a Loan is
increased; or
(b) an amount payable or the effective return to it under this
document is reduced; or
(c) it must pay money (other than income tax on its overall net
income) or forgo interest or any other benefit in connection
with a Relevant Agreement,
because of any law or regulation or Public Authority directive or
request (including, but not limited to, those relating to taxation,
capital adequacy or reserve requirements or banking or monetary
controls) or any change in the way they are interpreted or applied,
then the Approved Borrower:
(d) indemnities Integral Business against that increased cost,
reduction, payment, foregone interest or other benefit; and
(e) must pay to Integral Business on demand whatever amount
Integral Business certifies is necessary to indemnify it.
14. ILLEGALITY
If Integral Business decides that it is unlawful to allow the
Outstanding Amount to remain outstanding:
(a) Integral Business must notify the Approved Borrower of that
decision promptly; and
(b) if Integral Business requires it, the Approved Borrower must
pay the Money Owing in full to Integral Business on the date
specified by Integral Business.
15. PRESERVING INTEGRAL BUSINESS' RIGHTS, POWERS AND REMEDIES
15.1 Preservation
(a) The fact that Integral Business does not exercise, or delays
the exercise of, any right, power or remedy does not affect
any of its other rights, powers or remedies.
(b) The fact that Integral Business delays the exercise of any
right, power or remedy does not constitute a waiver of that
right, power or remedy.
(c) The fact that Integral Business exercises a right, power or
remedy does not prevent Integral Business from exercising that
right, power or remedy again.
(d) This document does not operate to extinguish or prejudice any
right, power or remedy of Integral Business under a Relevant
Agreement or a negotiable instrument.
15.2 Moratorium legislation
A moratorium does not apply to a Relevant Agreement or the recovery of
the Money Owing except if:
(a) Integral Business agrees in writing that it does; or
(b) it cannot be excluded by law.
15.3 Reinstating or replacing rights
If any payment made to Integral Business in reduction of the Money
Owing is repaid or conceded to be void, voidable or repayable for any
reason, then, despite any release, settlement or discharge in
connection with the Money Owing:
(a) that payment has not discharged the relevant liability;
(b) Integral Business may recover the amount of that payment from
the Approved Borrower; and
(c) the Approved Borrower must:
(i) immediately do all acts and things Integral Business
requires to replace or reinstate this document and
any Collateral Security which has been released in
connection with that payment; and
(ii) indemnify Integral Business against and pay on demand
all costs and expenses in connection with replacing
or reinstating this document and any Collateral
Securities.
15.4 Effect of release
A full or partial release of this document by Integral Business does
not release the Approved Borrower from personal liability under this
document until Integral Business receives the Money Owing, regardless
of any:
(a) receipt given, payout figure quoted or other form of account
stated; or
(b) error or miscalculation by Integral Business.
15.5 Indemnities continuing
Each indemnity given by the Approved Borrower to Integral Business
under this document is a continuing indemnity. A full or partial
release of this document does not release the Approved Borrower from
liability under an indemnity unless the release is specifically of that
indemnity.
16. ASSIGNMENT
16.1 By Approved Borrower
The Approved Borrower may not assign or otherwise deal with its rights
under this document without Integral Business's consent.
16.2 By Integral Business
Integral Business may assign or otherwise deal with its rights and
benefits under this document.
16.3 Effect of assignment
If the rights and benefits of Integral Business under this document are
assigned, a reference in this document to:
(a) a rate of interest quoted or published by or for Integral
Business is a reference to whatever rate the person taking the
assignment decides is an approximately equivalent quoted or
published rate; and
(b) an increase in the cost to Integral Business of providing a
Loan is a reference to the increased cost to the person taking
the assignment of providing a Loan,
even if the interest rate or the cost to the person taking the
assignment is higher than it was before.
17. NOTICES
A notice, approval, consent or other communication in connection with
this agreement:
(a) must be given by an Authorised Officer of the relevant party;
(b) must be in writing; and
(c) must be left at the address of the addressee, or sent by
prepaid ordinary post (airmail if posted to or from a place
outside Australia) to the address of the addressee or sent by
facsimile to the facsimile number of the addressee at:
(i) in the case of the Approved Borrower and the Security
Provider
Address: Xxxxx 0, 0 Xxxxx Xxxxx
XXXXX XXXXXX XXX 0000
Attention: Xxxxxx Xxxxxxxxx
Facsimile: 1 02 9959 3583
(ii) in the case of Integral Business:
Address: Xxxxx 0
00 Xxxxxxxxxxx Xxxxxx
XXXXXX XXX 0000
Attention: Xxxxxx Xxxxxx
Facsimile: 02 9231 6200
or if the addressee notifies another address or facsimile
number, then to that address or facsimile number.
17.2 Unless a later time is specified in it, a notice, approval, consent or
other communication takes effect from the time it is received.
17.3 A letter or facsimile is taken to be received:
(a) in the case of personal delivery, when delivered to the
addressee;
(b) in the case of a posted letter, on the third Business Day
after posting; and
(c) in the case of facsimile, on production of a transmission
report by the machine from which the facsimile was sent which
indicates that the facsimile was sent in its entirety to the
facsimile number of the recipient notified for the purpose of
this Clause,
but if the delivery or receipt is on a day which is not a Business Day
or is after 4:00 p.m. (addressee's time), it is taken to be received at
the commencement of business on the next Business Day.
18. MISCELLANEOUS
18.1 No obligation to exercise rights or give consent
Integral Business may:
(a) exercise or not exercise any right, power or remedy;
(b) give or not give consent; and
(c) make or not make a decision,
under this document, in its absolute discretion without giving a reason
and without being liable or accountable for the consequences.
18.2 Consent must be in writing
A consent given or a right, power or remedy waived by Integral Business
is effective only if given or waived in writing.
18.3 Notification from Approved Borrower or Security Provider
If the Approved Borrower or the Security Provider is required under
this document to notify Integral Business about anything, the Approved
Borrower or the Security Provider (as the case requires) must do so in
writing.
18.4 Integral Business may set off
Without any demand or notice, Integral Business may set off and apply
indebtedness it owes to the Approved Borrower (whatever the currency)
against the Money Owing:
(a) whether or not the indebtedness is owed alone or with any
other person; and
(b) whether or not the Money Owing is immediately payable.
18.5 Approved Borrower must not set off
The Approved Borrower must not claim, exercise or attempt to exercise a
right of set-off or any other right which might reduce or discharge the
Money Owing.
18.6 Applying receipts
Integral Business may apply or appropriate money received to reduce the
Money Owing in the order, and to satisfy whatever part of the Money
Owing, Integral Business sees fit.
18.7 Certain notices or demands
A notice from or demand by Integral Business stating:
(a) that a specified sum of money is owing or payable (or both)
under a Relevant Agreement; or
(b) that an Event of Default has occurred; or
(c) something relevant to the rights or obligations of Integral
Business or the Approved Borrower under a Relevant Agreement,
is admissible in proceedings and is conclusive evidence of the matters
stated except if there is manifest error.
18.8 Severability
(a) A construction of this document that results in all provisions
being enforceable is to be preferred to a construction that
does not so result.
(b) If, despite the application of paragraph (a), a provision of
this document is illegal or unenforceable:
(i) and it would be legal and enforceable if a word or
words were omitted, that word or those words are
severed; and
(ii) in any other case, the whole provision is severed,
and the remainder of this document continues in force.
18.9 Entire agreement
This document and the Collateral Security contain all the terms on
which a Loan is or will be provided and remain outstanding and
supersedes all prior communications about any Loan. If the terms of
this document conflict with the Collateral Security, the terms of this
document prevail.
18.10 Variation of agreement
A variation of this document must be in writing and signed by or for
Integral Business and by or for the Approved Borrower or the Security
Provider.
18.11 Counterparts
This document may be executed in any number of counterparts.
18.12 Integral Business may disclose information Integral Business may
disclose to:
(a) a potential assignee or participant; or
(b) a person contemplating entering into an agreement with
integral Business in connection with the Approved Borrower, a
Related Party or a Relevant Agreement,
any information about the Approved Borrower, a Related Party or a
Relevant Agreement which it considers appropriate.
18.13 Governing law and jurisdiction
This document is governed by the law applicable in New South Wales and
the Approved Borrower and the Security Provider submit to the
non-exclusive jurisdiction of the courts of New South Wales and courts
of appeal from them.
SCHEDULE 1
DESIGNATED BANK ACCOUNTS
SCHEDULE 2
DRAWDOWN NOTICE
To: Integral Business Finance Pty Limited
ACN 077 559 749
Xxxxx 0
00 Xxxxxxxxxxx Xxxxxx
XXXXXX XXX 0000
We refer to the Loan Agreement dated August 1997 (the `Loan
Agreement;).
1. We give you irrevocable notice that CorVu Australasia Pty Ltd wishes to
draw down a Loan under the Loan Agreement as follows:
(a) the drawdown date is 1998;
(b) the amount of the Loan is $
2. We provide the following details:
------------ ------------- ------------- -------- ----------- ------------
Name of Approved Invoice Date Invoice Repayment Other
Approved Trade Amount Date Information
Trade Debtor Limit
Debtor (including
this Loan)
------------ ------------- ------------- -------- ----------- ------------
------------ ------------- ------------- -------- ----------- ------------
3. Please confirm the Base Rate for the Loan in due course.
4. Please pay the Loan to the credit of [account details].
5. We confirm that the representations and warranties in Clause 10 of the
Loan Agreement will be true on the date specified above.
6. Attached is:
(a) a certified copy of the ledger of Approved Trade Debtors of
the Approved Borrower; and
(b) the Invoice to which the Drawdown Notice relates.
DATED 1998
SIGNED for and on behalf of )
CORVU AUSTRALASIA PTY LTD )
ACN 050 043 699 by an authorised signatory in the )
presence of:
.............................. ...................................
Signature of witness Signature of authorised signatory
.............................. ...................................
Name in full (print) Name in full (print)
EXECUTED as an agreement.
THE COMMON SEAL of )
CORVU AUSTRALASIA PTY LTD )
ACN 050 043 699 is affixed in accordance )
with its articles of association in the )
presence of:
/s/ Xxxxxx X. XxxXxxxxx
.............................. ..................................
Secretary/Director Director
Xxxxxx X. XxxXxxxxx
.............................. ..................................
Full name (please print) Full name (please print)
THE COMMON SEAL of CORVU PIC )
(Company Number 03096249) )
is affixed in accordance with its articles of )
association in the presence of: )
/s/ Ode Longue /s/ Xxxx Xxxxxxxx
.............................. ...................................
Secretary Director
Ode Longue Xxxx Xxxxxxxx
.............................. ...................................
Full name (please print) Full name (please print)
SIGNED for and on behalf of CORVU )
NORTH AMERICA INC (FIN 00-0000000) )
by an authorised signatory in the )
presence of: )
/s/ Xxxxx Xxxxxxx
.............................. ...................................
Signature of Witness Signature of authorised signatory
Xxxxx Xxxxxxx
.............................. ...................................
Name in full (print) Name in full (print)
SIGNED for and on behalf of INTEGRAL )
BUSINESS FINANCE PTY LIMITED )
ACN 077 559 749 - by an authorised )
signatory in the presence of: )
.............................. ....................................
Signature of Witness Signature of authorised signatory
.............................. ....................................
Name in full (print) Name in full (print)
