CONFORMED COPY
EX-10.26
A$200,000,000
SYNDICATED SENIOR SECURED DEBT FACILITY
AGREEMENT
DATE: 31 July 1997
AUSTAR ENTERTAINMENT PTY LIMITED
Borrower
EACH COMPANY SPECIFIED AS A GUARANTOR IN SCHEDULE 1
Guarantor
EACH FINANCIAL INSTITUTION SPECIFIED AS A BANK IN SCHEDULE 2
Bank
CHASE SECURITIES AUSTRALIA LIMITED
Facility Agent
CHASE SECURITIES AUSTRALIA LIMITED
Security Agent
TABLE OF CONTENTS
CLAUSE PAGE
1. DEFINITIONS AND INTERPRETATION 1
1.1 DEFINITIONS 1
1.2 INTERPRETATION 13
1.3 JOINT AND SEVERAL LIABILITY 14
1.4 DEBENTURE STOCK TRUST DEED 15
1.5 SPECIFIED RATE 15
2. THE FACILITY 15
2.1 FACILITIES 15
2.2 BANKS' COMMITMENTS 15
2.3 SEVERAL OBLIGATIONS 15
2.4 SEVERAL INTERESTS 16
2.5 PURPOSE 16
2.6 TERMINATION 16
2.7 NATURE OF BORROWER'S RIGHTS AND OBLIGATIONS HEREUNDER 16
2.8 VOTING 17
3. CONDITIONS PRECEDENT 17
3.1 CONDITIONS PRECEDENT TO THE FIRST UTILISATION 17
3.2 CONDITIONS PRECEDENT TO ALL UTILISATIONS 17
3.3 WAIVER 18
3.4 CONDITIONS PRECEDENT TO ALL TRANCHE 2 UTILISATIONS 18
3.5 CONDITIONS PRECEDENT TO ALL TRANCHE 3 UTILISATIONS 18
3.6 AGENT NOT LIABLE 19
3.7 AGENT SATISFIED 19
4. UTILISATIONS 19
4.1 NOTICE 19
4.2 CONTENTS OF UTILISATION NOTICE 19
4.3 REQUIREMENTS OF UTILISATION NOTICE 19
4.4 AGENT NOTIFY BANKS 20
4.5 MAKING OF ADVANCES 20
4.6 DISBURSEMENT 20
4.7 FACILITY AGENT'S RIGHT TO VARY 20
5. COMMITMENTS 20
5.1 TRANCHE 1 COMMITMENTS 20
5.2 TRANCHE 2 COMMITMENTS 20
5.3 TRANCHE 3 COMMITMENTS 21
5.4 FIRST TRANCHE 3 UTILISATION 21
5.5 VOLUNTARY CANCELLATION 21
5.6 REDUCTION CONSEQUENT ON REPAYMENT OR PREPAYMENT 21
5.7 LIMITATIONS 21
6. REPAYMENT AND PREPAYMENTS 22
6.1 REPAYMENT OF TRANCHE 1 UTILISATIONS 22
6.2 REPAYMENT OF TRANCHE 2 ADVANCES AND TRANCHE 3 ADVANCES 22
6.3 RECALCULATION OF REPAYMENTS 23
6.4 REPAYMENT INSTRUCTIONS 23
6.5 VOLUNTARY PREPAYMENT 23
6.6 FACILITY AGENT TO NOTIFY BANKS 23
6.7 MANDATORY PREPAYMENT 23
6.8 EXCESS CASH FLOW ELECTION 24
6.9 ORDER OF APPLICATION 24
6.10 DATE FOR PREPAYMENT 25
6.11 GENERAL PROVISIONS RELATING TO PREPAYMENT 25
7. INTEREST 25
7.1 INTEREST PERIODS 25
7.2 RESTRICTIONS ON SELECTION 26
7.3 CALCULATION OF INTEREST 26
7.4 PAYMENT OF INTEREST 26
8. INTEREST ON OVERDUE AMOUNTS 26
8.1 PAYMENT OF INTEREST 26
8.2 ACCRUAL OF INTEREST 27
9. XXXX RELIQUIFICATION 27
9.1 DRAWING OF BILLS 27
9.2 ATTORNEY 27
9.3 APPOINTMENT REVOKED 27
9.4 INDEMNITY 27
9.5 NOTICE 28
10. FEES 28
10.1 COMMITMENT FEE 28
10.2 ARRANGEMENT/UNDERWRITING FEE 28
10.3 ESTABLISHMENT FEE 28
10.4 AGENCY FEES 28
10.5 RATIO RANGE 28
11. PAYMENTS 29
11.1 PAYMENT TO SECURITY AGENT 29
11.2 TIME AND PLACE 29
11.3 MERGER 29
11.4 CONVERSION OF FOREIGN CURRENCY RECEIPTS TO DOLLARS 29
11.5 COSTS OF CONVERSION 30
11.6 APPLICATION 30
11.7 FOREIGN CURRENCY INDEMNITY 30
11.8 INSUFFICIENT PAYMENT 31
11.9 ANTICIPATORY PAYMENTS 31
11.10 ROUNDING 31
12. TAXES 31
12.1 NO DEDUCTION FOR TAXES AND NO SET-OFF OR COUNTERCLAIM 31
12.2 PAYMENT NET OF TAXES 31
12.3 FUNDING 33
12.4 TERMINATION 33
12.5 RIGHT TO PREPAY INDIVIDUAL BANK 33
13. ILLEGALITY 33
14. INCREASED COST 34
14.1 OBLIGATION TO INDEMNIFY 34
14.2 RIGHT TO PREPAY INDIVIDUAL BANK 34
15. MITIGATION 35
15.1 MITIGATION 35
15.2 REPLACEMENT OF BANK 35
15.3 COSTS AND EXPENSES 35
16. REPRESENTATIONS AND WARRANTIES 35
16.1 GENERAL REPRESENTATIONS AND WARRANTIES 35
16.2 INFORMATION REPRESENTATIONS AND WARRANTIES 37
16.3 CORPORATE REPRESENTATIONS AND WARRANTIES 38
16.4 REPRESENTATIONS AND WARRANTIES REPEATED 39
17. UNDERTAKINGS 39
17.1 DURATION AND BENEFIT 39
17.2 INFORMATION 39
17.3 SECURITY VALUE 41
17.4 LIABILITIES 43
17.5 USE OF FUNDS 44
17.6 DIVIDENDS AND SHARE CAPITAL 44
17.7 INTELLECTUAL PROPERTY RIGHTS 45
17.8 INSURANCE 46
17.9 LICENCES 46
17.10 MATERIAL CONTRACTS 47
17.11 SECURITY PROPERTY 48
17.12 GENERAL UNDERTAKINGS 48
18. FINANCIAL RATIOS 50
18.1 FINANCIAL COVENANTS 50
18.2 COMPLIANCE CERTIFICATE 51
18.3 STAMP DUTY CERTIFICATE 51
19. DEFAULT AND TERMINATION 51
19.1 EVENTS OF DEFAULT 51
19.2 FACILITY AGENT'S RIGHTS UPON EVENT OF XXXXXXX 00
00.0 XXXXXXXX XXX XXXXX 00
00. GUARANTEE AND INDEMNITY 55
20.1 GUARANTEE 55
20.2 INDEMNITY 55
20.3 PERFORMANCE OF OBLIGATIONS 55
20.4 LIABILITY AS GUARANTOR AND INDEMNIFIER 55
20.5 PRINCIPAL OBLIGATION 56
20.6 ABSOLUTE LIABILITY 56
20.7 UNCONDITIONAL LIABILITY 56
20.8 NO OBLIGATION TO GAIN CONSENT 58
20.9 NO MARSHALLING 58
20.10 VOID OR VOIDABLE TRANSACTIONS 58
20.11 INSOLVENCY 59
20.12 NO SET-OFF, COUNTERCLAIM, ETC. 59
20.13 RESTRICTION ON GUARANTOR'S DEALINGS 59
20.14 RELEASE OF RELEVANT PERSON 60
20.15 CONDITIONS PRECEDENT 60
20.16 CLAIM ON THE GUARANTORS 60
20.17 SUBROGATION 60
20.18 GENERAL WAIVER BY GUARANTORS 60
20.19 JUDGMENT 61
21. ADDITIONAL GUARANTORS AND SECURITY 61
21.1 ADDITIONAL GUARANTORS 61
21.2 SECURITY 61
21.3 ADDITIONAL SECURITY 62
22. RELEASE OF GUARANTORS AND SECURITY 62
22.1 GUARANTORS 62
22.2 ASSETS 62
22.3 CONDITIONS FOR RELEASE 62
22.4 RELEASE OF GROUP MEMBERS 63
23. INDEMNITY 63
24. AGENTS 64
24.1 APPOINTMENT 64
24.2 RELATIONSHIPS 64
24.3 COMMUNICATIONS 64
24.4 INSTRUCTIONS OF MAJORITY 64
24.5 AMENDMENTS 65
24.6 NO NEED FOR INQUIRIES 65
24.7 DELEGATION 65
24.8 AGENT NOT BOUND TO ENQUIRE 66
24.9 DEFAULT 66
24.10 AGENTS AS BANKS 66
24.11 AGENT'S DEALINGS 66
24.12 NOTICES AND REPORTS 66
24.13 NOT RESPONSIBLE 67
24.14 INDEMNITY 67
24.15 OBSERVE LAWS 68
24.16 REPLACEMENT 68
24.17 NO AUTHORITY 68
24.18 SECURITY AGENT AS TRUSTEE 69
25. SET-OFF 69
26. PRO RATA SHARING 69
27. EXPENSES AND STAMP DUTIES 70
27.1 EXPENSES 70
27.2 STAMP DUTIES 71
28. ASSIGNMENTS AND CONFIDENTIALITY 71
28.1 SUCCESSORS AND ASSIGNS 71
28.2 ASSIGNMENTS BY THE BORROWER 71
28.3 BANKS 71
28.4 SUBSTITUTION 72
28.5 INCREASED COSTS AND ILLEGALITY 72
28.6 SUB-PARTICIPATIONS 73
28.7 STOCK CERTIFICATES 73
28.8 CONFIDENTIALITY 73
29. GOVERNING LAW AND JURISDICTION 74
29.1 GOVERNING LAW 74
29.2 JURISDICTION 74
30. MISCELLANEOUS 74
30.1 CERTIFICATE OF AGENT 74
30.2 NOTICES 74
30.3 CONTINUING OBLIGATION 75
30.4 SETTLEMENT CONDITIONAL 75
30.5 FURTHER ASSURANCE 75
30.6 ATTORNEY 75
30.7 SEVERABILITY OF PROVISIONS 76
30.8 REMEDIES CUMULATIVE 76
30.9 WAIVER 76
30.10 CONSENTS AND APPROVALS 76
30.11 WRITTEN WAIVER, CONSENT AND APPROVAL 76
30.12 TIME OF ESSENCE 76
30.13 CONSULTANTS FEES 76
30.14 MORATORIUM LEGISLATION 77
30.15 BINDING ON EACH SIGNATORY 77
30.16 COUNTERPARTS 77
30.17 PROCEEDS ACCOUNT 77
31. NO REPRESENTATION BY OR RELIANCE ON THE BANK OR AGENT 77
SCHEDULE 1 - ORIGINAL GUARANTORS 78
SCHEDULE 2 - BANKS 80
SCHEDULE 3 - LICENCES 81
SCHEDULE 4 - DOCUMENTARY CONDITIONS PRECEDENT 84
SCHEDULE 5 - FORMS OF UTILISATION NOTICE 86
SCHEDULE 6 - ACCESSION AGREEMENT 87
SCHEDULE 7 - SUBSTITUTION CERTIFICATE 89
SCHEDULE 8 - NOTICE FROM UIH 94
SCHEDULE 9 - COMPLIANCE CERTIFICATE 95
SCHEDULE 10 - FORM OF STAMP DUTY CERTIFICATE 97
FACILITY AGREEMENT made at Sydney on 31 July 1997 at 3.30 pm
BETWEEN AUSTAR ENTERTAINMENT PTY LIMITED, ACN 068 104 530 of Xxxxx 00, 000
Xxxx Xxxxxx, Xxxxxx, Xxx Xxxxx Xxxxx (the "BORROWER")
AND EACH COMPANY SPECIFIED AS A GUARANTOR IN SCHEDULE 1 (each an
"ORIGINAL GUARANTOR")
AND EACH FINANCIAL INSTITUTION SPECIFIED AS A BANK IN SCHEDULE 2 (each
a "BANK")
AND CHASE SECURITIES AUSTRALIA LIMITED, ACN 002 888 011 of Xxxxx 00,
AAP Centre, 000 Xxxxxx Xxxxxx, Xxxxxx, Xxx Xxxxx Xxxxx as facility
agent for the Banks (in this capacity the "FACILITY AGENT")
AND CHASE SECURITIES AUSTRALIA LIMITED, ACN 002 888 011 of Xxxxx 00,
AAP Centre, 000 Xxxxxx Xxxxxx, Xxxxxx, Xxx Xxxxx Xxxxx as security
agent and trustee for the Banks (in this capacity the "SECURITY
AGENT")
RECITALS
At the request of the Borrower and the Guarantors the Banks have agreed, subject
to the terms of this Agreement, to provide the facilities described herein to
the Borrower.
THE PARTIES AGREE:
1. DEFINITIONS AND INTERPRETATION
1. Definitions
In this Agreement:
"ACCESSION AGREEMENT" means an agreement substantially in the form of
Schedule 6 made pursuant to clause 21.1.
"ACCOUNTS" means from time to time:
(a) the latest audited consolidated annual accounts of CTV and STV;
(b) the latest audited notionally consolidated annual accounts of the
Group;
(c) the latest audited consolidated semi-annual accounts of CTV and
STV;
(d) the latest audited notionally consolidated semi-annual accounts of
the Group;
(e) the latest unaudited consolidated monthly management accounts of
the Group; and
(f) any other audited or unaudited consolidated or unconsolidated
accounts (if any) of the Group or any member thereof, delivered or
required to be delivered to the Facility Agent pursuant to this
Agreement, or such of those accounts as the context requires.
"ADDITIONAL GUARANTOR" means any entity which becomes a party hereto as a
Guarantor pursuant to an Accession Agreement.
"ADVANCE" means:
(a) when designated "XXXXXXX 0", "XXXXXXX 0" or "TRANCHE 3" the
principal amount of each borrowing under this Agreement from the
Tranche 1 Commitments, the Tranche 2 Commitments or the Tranche 3
Commitments respectively or the principal amount of such borrowing
outstanding from time to time, as the context requires
(collectively the "TRANCHE 1 ADVANCES", the "TRANCHE 2 ADVANCES"
and the "TRANCHE 3 ADVANCES");
(b) without any such designation, a Tranche 1 Advance, a Tranche 2
Advance or a Tranche 3 Advance as the context requires, and
"ADVANCES" without any such designation means some or all of the
Tranche 1 Advances and/or the Tranche 2 Advances and/or the
Tranche 3 Advances as the context requires.
"ADVERSE TITLE RETENTION ARRANGEMENT" means any title retention
arrangement entered into with any person in connection with the
acquisition of goods in the course of business on terms that the vendor=s
title is or may be retained in respect of any goods which have been paid
for in full.
"AGENT" means:
(a) when designated "FACILITY AGENT", Chase Securities Australia
Limited or any of its successors pursuant to clause 24.16;
(b) when designated "SECURITY AGENT", Chase Securities Australia
Limited or any of its successors pursuant to any relevant
provision of any of the Securities; and
(c) without any such designation, the Facility Agent or the Security
Agent, as the context requires, and "AGENTS" without any such
designation means one or more of the Facility Agent and the
Security Agent, as the context requires.
"AMORTISATION SCHEDULE" means the schedule of dates and payments set out
in clause 6.2
"AUSTRALIS" means Australis Media Limited, ACN 059 741 178.
"AUSTRALIS SETTLEMENT AGREEMENT" means:
(a) the CTV Franchise Agreement letter dated 19 June 1996 from
Australis to UIH Australia/Pacific, Inc. and the attached Schedule
of Terms;
(b) the STV Franchise Agreement letter dated 19 June 1996 from
Australis to UIH Australia/Pacific, Inc. and the attached Schedule
of Terms;
(c) Narrowcast letter dated 19 June 1996 from STV to Australis;
(d) Narrowcast letter dated 19 June 1996 from CTV to Australis;
(e) Joint Venture Clarification Letter dated 19 June 1996 from
Australis to UIH Australia/Pacific, Inc. and CTV;
(f) Waiver and Release Letter dated 19 June 1996 from Australis to
CTV, STV and UIH Australia/Pacific, Inc.; and
(g) Letter dated 19 June 1996 from UIH Australia/Pacific, Inc. to STV
and CTV.
"AVAILABILITY PERIOD" means the period from the date of this Agreement
to:
(a) when designated "TRANCHE 1", close of business in Sydney on 30
June 2000;
(b) when designated "TRANCHE 2", close of business in Sydney on 30
June 2000 or the date of the initial Tranche 3 Advance (if any)
whichever occurs first;
(c) when designated "TRANCHE 3", close of business in Sydney on 30
June 2000, or such later date as all the Banks may agree in
writing on or after the date hereof.
"BANK" means each of the following:
(a) each bank or other financial institution whose name is set out in
Schedule 2;
(b) each bank or other financial institution to which rights and/or
obligations under this Agreement are assigned or transferred
pursuant to clause 28;
(c) any successor or successors in title to any of the foregoing,
provided that upon (i) termination in full of all the Commitments
of any Bank, and (ii) irrevocable payment in full of all amounts
which may be or become payable to such Bank under the Transaction
Documents, such Bank shall not be regarded as being a Bank for the
purposes of determining whether any
provision of any of the Transaction Documents requiring consultation with
or the consent or approval of or instructions from the Banks or the
Majority Banks has been complied with (together the "BANKS").
"BANKING DAY" means a day on which trading banks are open for business
generally in Sydney and Melbourne.
"XXXX" means a xxxx of exchange within the meaning given to the
expression "XXXX OF EXCHANGE" in the Bills of Xxxxxxxx Xxx 0000 of the
Commonwealth of Australia, but does not include a cheque or payment
order, and any reference to the drawing, acceptance, indorsement or other
dealing of or with a Xxxx refers to a drawing, acceptance, indorsement or
other dealing within the meaning of that Act.
"XXXX RATE" in relation to each Interest Period means the rate (expressed
as a percentage per annum) which is the average of the bid rates shown at
approximately 11.00 am on page "BBSY" on the Reuters Monitor System on
the first day of that Interest Period for a term equal to the duration of
that Interest Period (or if that Interest Period is subject to marginal
adjustment, for a term equal to the duration of the Interest Period
prior to such adjustment) provided that if such rate is no longer
available or, in the opinion of the Facility Agent such rate becomes
inappropriate, unfair or incapable of application, the Xxxx Rate shall
mean the rate reasonably determined by the Facility Agent to be the
appropriate equivalent rate having regard to prevailing market
conditions.
"BRIDGE FINANCING FACILITY AGREEMENT" means the agreement so entitled
dated 2 April 1997 between the Borrower, the Original Guarantors, the
Facility Agent and Chase.
"BUSINESS PLAN" means the financial model prepared by the Borrower dated
7 February 1997 and entitled "LRP3", or any revised version of such
model, agreed by the Facility Agent acting on instructions from the
Majority Banks to be the Business Plan for the purposes of the Facility.
"CHASE" means The Chase Manhattan Bank, ARBN 074 112 011.
"CHIPPAWA" means Chippawa Pty. Limited, ACN 068 943 635.
"COMMITMENT" in relation to a Bank means:
(a) when designated "XXXXXXX 0", "XXXXXXX 0" or " TRANCHE 3", the
amount appearing and designated as such against that Bank's name
in Schedule 2 or in the Substitution Certificate or other document
by which it became a party to or acquired rights under this
Agreement (collectively the "TRANCHE 1 COMMITMENTS", the "TRANCHE
2 COMMITMENTS" and the "TRANCHE 3 COMMITMENTS");
(b) without any such designation, a Bank's Tranche 1 Commitment,
Tranche 2 Commitment or Tranche 3 Commitment, as the context
requires,
in each case as reduced or increased pursuant to clause 5.4 or by
substitution or transfer pursuant to clause 28 and any Substitution
Certificates to which such Bank is party, and to the extent not
cancelled, reduced or terminated under this Agreement (collectively the
"TOTAL COMMITMENTS").
"COMPLIANCE CERTIFICATE" means a certificate in the form of Schedule 9
signed by two members of the Board of Directors of the Borrower stating
that the financial covenants listed in clause 18.1 and the
representations and warranties listed in clause 16 are true and correct
and, when given at the end of the financial year, will be based on
audited Accounts.
"CONTROLLER" has the meaning given in section 419(1) of the Corporations
Law.
"CTV" means CTV Pty. Limited, ACN 064 416 128.
"CTV FRANCHISE AGREEMENT" means the Franchise Agreement dated 12 October
1994 between CTV and Australis as varied by agreement dated 19 June 1996.
"DEBENTURES" means the perpetual, subordinated, convertible debentures
issued by CTV or STV, as the case may be.
"DEBENTURE STOCK TRUST DEED" means the deed so entitled dated 2 April
1997 entered into by, amongst others, the Security Agent and the
Borrower.
"DOLLAR" or "$" means the lawful currency for the time being of the
Commonwealth of Australia.
"EBITDA" means, on a consolidated basis for any period, cash revenue
minus:
(a) all corporate overhead;
(b) all scheduled licence and service fees and programming payments;
(c) all operating expenses except depreciation, amortisation
(including programming amortisation), interest expenses, other
non-cash charges, income taxes accrued for such period,
extraordinary abnormal and non recurring gains or losses, and
gains or losses from the sale of assets to the extent such items
are included in operating expenses; and
(d) for customers who have been disconnected and represent
disconnections in excess of 3% of Total Subscribers per month
during the relevant period the aggregate installation costs
associated with replacing those customers (which have not already
been included as an operating expense), less the cost of
recoverable Equipment but including the costs associated with the
recovery of that Equipment (which have not already been included
as an operating expense).
"ENCUMBRANCE" means any mortgage, charge, pledge, lien, encumbrance,
security interest, title retention, preferential right, security trust
arrangement, contractual right of set-off or any other security
agreement or arrangement in favour of any person.
"EQUIPMENT" means receiving equipment consisting of antennae, down
converters, satellite dishes, set-top boxes, ancillary equipment and
installation costs.
"EQUITY CONTRIBUTION" means the amount contributed as cash to CTV and/or
STV by UIH Australia/Pacific, Inc. or a Related Body Corporate of UIH
Australia/Pacific, Inc. (in the form of equity, Subordinated Debt or
other type of financial accommodation acceptable to the Facility Agent)
which has been used or which is available to be used for the purpose of
purchasing Equipment and for working capital purposes since 1 January
1997 less $25,000,000 and any management and/or other fees paid to UIH
Australia/Pacific, Inc. or a Related Body Corporate.
"EVENT OF DEFAULT" means any of the events set out or referred to in
clause 19 as an Event of Default.
"EVENT OF INSOLVENCY" means:
(a) a receiver, manager, receiver and manager, trustee, administrator,
Controller or similar officer is appointed in respect of a
Relevant Person or any asset of a Relevant Person;
(b) a liquidator or provisional liquidator is appointed in respect of
any Relevant Person;
(c) any application (not being an application withdrawn or dismissed
within 7 days or an application which the Facility Agent agrees is
frivolous or vexatious and will be dismissed) is made to a court
for an order, or an order is made, or a meeting is convened, or a
resolution is passed, for the purpose of:
(i) appointing a person referred to in paragraphs (a) or (b);
(ii) winding up a Relevant Person; or
(iii) proposing or implementing a scheme of arrangement in
respect of a Relevant Person;
(d) a moratorium of any debts of a Relevant Person or an official
assignment or a composition or an arrangement (formal or informal)
with a Relevant Person's creditors or any similar proceeding or
arrangement by which the assets of a Relevant Person are subjected
conditionally or unconditionally to the control of a Relevant
Person's creditors is ordered, declared or agreed to, or is
applied for and the application is not withdrawn or dismissed
within 7 days;
(e) a Relevant Person becomes, or admits in writing that it is, or is
declared to be, is deemed under any applicable law to be,
insolvent or unable to pay its debts;
(f) any writ of execution, garnishee order, mareva injunction or
similar order, attachment, distress or other process is made,
levied or issued against or in relation to any asset of a Relevant
Person in respect of a claim greater than $100,000.
"EXCESS CASH FLOW" means, for any specified period, all cash inflows
during that period of the Group from whatever source (not including cash
proceeds from new equity and Subordinated Debt issues, other than those
due in accordance with clause 3), less all cash outflows during that
period of the Group (including debt amortisation in accordance with the
Amortisation Schedule but excluding any payments made pursuant to clause
17.6), determined on a consolidated basis and based on audited accounts.
"EXCLUDED TAXES" means any Taxes imposed by any jurisdiction on the
overall net income of a Bank but not Taxes:
(a) which are calculated on or by reference to the gross amount of any
payments (without the allowance of any deduction) derived under
this Agreement or any Transaction Document or any other document
referred to in this Agreement or a Transaction Document by the
Bank; or
(b) which are imposed as a result of the Bank being considered a
resident of or organised or doing business in that jurisdiction
solely as a result of it being a party to this Agreement or a
Transaction Document or any transaction contemplated by this
Agreement or a Transaction Document.
"FACILITY" means:
(a) when designated "TRANCHE 1 FACILITY", the revolving working
capital facility referred to in clause 2.1(a);
(b) when designated "TRANCHE 2 FACILITY", the amortising cash advance
facility referred to in clause 2.1(b);
(c) when designated "TRANCHE 3 FACILITY", the amortising term loan
facility referred to in clause 2.1(c); and
(d) without any such designation, the Tranche 1 Facility, the Tranche
2 Facility or the Tranche 3 Facility as the context requires, and
"THE FACILITIES" means the Tranche 1 Facility, the Tranche 2
Facility and the Tranche 3 Facility taken together.
"FINANCIAL LIABILITY" means present or future, actual or contingent
indebtedness in respect of financial accommodation, credit or hedging
arrangements, finance leases or hire purchase arrangements or any
guarantee or other assurance in respect of any such indebtedness.
"FINANCIAL YEAR" means a calendar year ending on 31 December.
"FOREIGN CURRENCY" means the currency for the time being of any country
other than the Commonwealth of Australia.
"FUNDING BANK" means Chase.
"FUNDING AND LC BANK AGREEMENT" means each document so named entered into
between the Funding Bank and an LC Bank.
"GROUP" means the Borrower, CTV and STV and each Subsidiary of the
Borrower, CTV and STV.
"GUARANTOR" means each entity identified as an Original Guarantor in
Schedule 1 and each Additional Guarantor (together the "GUARANTORS").
"HEDGING AGREEMENTS" means any interest rate or currency hedging
agreement entered into between the Borrower and a Bank (or its
affiliate).
"XXXXX" means Xxxxx Investments Pty. Limited, ACN 068 943 626.
"INFORMATION MEMORANDUM" means the memorandum dated May 1997 prepared by
the Facility Agent on the basis of information supplied by the Obligors
to assist the Facility Agent in obtaining persons to provide financial
accommodation pursuant to the Facility and containing information,
financial and otherwise, regarding Obligors.
"INSOLVENCY PROVISION" means any law relating to insolvency,
sequestration, liquidation or bankruptcy (including any law relating to
the avoidance of conveyances in fraud of creditors or of preferences and
any law under which a liquidator or trustee in bankruptcy may set aside
or avoid transactions) and any provision of any agreement, arrangement or
scheme, formal or informal, relating to the administration of any of the
assets of any person.
"INTENDED OBLIGATIONS" means any payment or other act the making or doing
of which would have formed part of the Obligations but for a circumstance
referred to in clause 20.7(c).
"INTEREST EXPENSE" means all Senior Debt interest and financing costs,
whether paid as cash or accrued as a liability on all direct, contingent
(including imputed interest on capital equipment lease obligations), and
other permitted indebtedness of the Group, determined on a consolidated
basis less any interest revenue earned by the Group during that period.
"INTEREST PERIOD" means each period determined in accordance with clause
7.1.
"LC BANK" means any person, other than a Bank, who has or hereafter
enters into a Funding and LC Bank Agreement with the Funding Bank.
"LICENCE" means each of the licences listed in Schedule 3.
"MAJORITY BANKS" means at any time:
(a) whilst no Advance is outstanding, a Bank or Banks the aggregate of
whose Commitments at the relevant time represent by value more
than 66 2/3% of the Total Commitments at such time; or
(b) if an Advance is then outstanding, a Bank or Banks the aggregate
of whose participations in the Advances outstanding at such time
represent by value more than 66b% of the aggregate of all the
Advances.
"MATERIAL ADVERSE EFFECT" means any effect which is, or is reasonably
likely:
(a) to be materially adverse to:
(i) the ability of CTV, STV or the Borrower to perform its
material obligations under any of the Transaction Documents
to which it is a party; or
(ii) the ability of any Obligor (except CTV, STV or the
Borrower) to perform its material obligations under any of
the Transaction Documents to which it is a party and which
are material to the Group as a whole; or
(iii) the business, assets, financial condition of the Borrower
or of the Group taken as a whole; and/or
(b) (where the context so admits) to result in any of the Transaction
Documents not being legal, valid and binding on, and enforceable
substantially in accordance with its material terms against, any
party (other than a Bank, the Facility Agent or the Security
Agent) to that Transaction Document and/or (in the case of any of
the Securities) not providing to the Security Agent for itself and
on behalf of the Banks, perfected, enforceable security over the
assets to be covered by that Security, in a manner and to an
extent reasonably considered by the Majority Banks to be
materially adverse to their interests under the Transaction
Documents.
"MATERIAL CONTRACT" means:
(a) the STV Franchise Agreement;
(b) the CTV Franchise Agreement;
(c) the Australis Settlement Agreement; and
(d) each other contract entered into by a member of the Group after
the date of this Agreement which is of similar importance to the
net cash flow or operation of the business of the Group as the
contracts listed in paragraphs (a) - (c) of this definition and
which the Facility Agent (acting on the instructions of the
Majority Banks) designates to be a Material Contract by notice to
the Borrower.
"NET PROCEEDS" means the consideration received by any member or members
of the Group in respect of the disposal to a person not in the Group of
any member of the Group or of all or any part of the business,
undertaking or assets of any member of the Group (including the amount of
any intercompany debt repaid to continuing members of the Group), after
deduction of all Taxes applicable on, or to any gain resulting from, the
disposal and of all reasonable costs, fees, expenses and the like
properly incurred by continuing members of the Group in arranging and
effecting that disposal.
"OBLIGATIONS" means all the liabilities of the Borrower or any Guarantor
to the Agents and the Banks under or by reason of any Transaction
Document and, without limiting the generality of the foregoing, includes
any liabilities which:
(a) are liquidated or unliquidated;
(b) are present, prospective or contingent;
(c) are in existence before or come into existence upon or after the
date of this document;
(d) relate to the payment of money or the performance or omission of
any act;
(e) sound in damages only; or
(f) accrue as a result of an Event of Default, and irrespective of:
(i) whether the Borrower or any other Relevant Person is liable
or obligated solely, or jointly and severally with another
person;
(ii) the circumstances in which the Banks come to be owed each
liability or obligation and in which each liability or
obligation came to be secured by this document, including,
without limitation any assignment of any liability or
obligation or of this document; or
(iii) the capacity in which the Borrower, any other Relevant
Person and the Banks come to owe or to be owed such
liability or obligation.
"OBLIGOR" means a several reference to the Borrower, each Guarantor, any
other member of the Group which has been required to enter into (whether
or not it has yet entered into) any Accession Agreement and/or Security
and, when used in clause 20, also means any person from whom a Guarantor,
but for any provision of this Agreement, would be entitled to seek
contribution in respect of money paid or payable by virtue of the
guarantee contained herein (together the "OBLIGORS").
"ORIGINAL SECURITIES" means:
(a) Deed of Fixed and Floating Charge in favour of the Security Agent
over the whole of the assets and undertakings of the Borrower and
the Original Guarantors (other than CTV) which are located in
Queensland, dated 2 April 1997;
(b) Deed of Fixed and Floating Charge in favour of the Security Agent
over the whole of the assets and undertakings of CTV which are
located in Queensland, dated 2 April 1997;
(c) Deed of Fixed and Floating Charge in favour of the Security Agent
over the whole of the assets and undertakings of the Borrower and
the Original Guarantors which are located in jurisdictions other
than Queensland, South Australia, Western Australia and Tasmania,
dated 2 April 1997;
(d) Deed of Fixed and Floating Charge in favour of the Security Agent
over the whole of the assets and undertakings of the Borrower and
the Original Guarantors which are located in South Australia and
Tasmania, dated 2 April 1997;
(e) Deed of Fixed and Floating Charge over the whole of the assets and
undertakings of the Borrower and the Original Guarantors which are
located in Western Australia, dated 2 April 1997; and
(f) the Share Mortgage.
"POTENTIAL EVENT OF DEFAULT" means any event which, with the giving of
notice, lapse of time, satisfaction of a condition or any determination
would be likely to constitute an Event of Default.
"PRESCRIBED RATE" for each Interest Period means the aggregate of the
Xxxx Rate in relation thereto and the Utilisation Margin.
"PROPORTION" means the amount of a Bank's participation in an Advance in
the proportion (applied to the requested amount of the Advance) which its
Commitment bearing the same Tranche designation as such Advance bears to
the amount of the Total Commitments having such designation.
"RATIO RANGE" on any date means the amount of Total Debt divided by
actual EBITDA for the last quarter annualised period.
"RELATED BODY CORPORATE" has the meaning given in section 9 of the
Corporations Law, but on the basis that "SUBSIDIARY" for the purposes of
that definition has the meaning given in this Agreement.
"RELEVANT PERSON" means a several reference to each Obligor, Chippawa and
Xxxxx.
"REPAYMENT DATE" means each repayment date specified in clause 6.2.
"SALSTEL HOLDINGS" means Salstel Media Holdings Pty Limited, ACN 072 016
383.
"SALSTEL INVESTMENTS" means Salstel Media Investments Pty Limited, ACN
072 016 132.
"SECURITIES" means the Original Securities together with any other
security held by the Security Agent as agent of the Banks at any time for
the due performance, observance and fulfilment of the Obligations, and
"SECURITY"
means each or any one of them as the context requires.
"SECURITY PROPERTY" means any property subject to a Security.
"SEMI-ANNUAL PERIOD" means any period from 1 January to 30 June or 1 July
to 31 December.
"SEMI-ANNUAL PROJECTED EXCESS CASH FLOW" means, for any Semi-annual
Period, half of the Excess Cash Flow projected in the Business Plan for
the financial year of which that Semi-annual Period forms part.
"SENIOR DEBT" means all direct and contingent borrowings (excluding non-
financial corporate guarantees) of the Group which are not subordinated.
"SHARE MORTGAGE" means the Deed of Mortgage of Securities in favour of
the Security Agent dated 1 July 1997 granted by Salstel Holdings, Salstel
Investments and UIH Austar, Inc. in respect of the whole of the share
capital in CTV and STV and certain other property.
"SPECIFIED RATE" means the aggregate of the Prescribed Rate and 2% per
annum.
"STAMP DUTY CERTIFICATE" means a certificate in the form of Schedule 10
signed by an authorised officer of the Borrower as to the location and
value of the Security Property.
"STOCK" means debenture stock issued under the Debenture Stock Trust
Deed.
"STV" means STV Pty Limited, ACN 065 312 450.
"STV FRANCHISE AGREEMENT" means the Franchise Agreement dated 12 October
1994 between STV and Australis as varied by agreement
dated 19 June 1996.
"SUBORDINATED DEBT" means any indebtedness the payment of which is
subordinated to the Senior Debt.
"SUBSIDIARY" in relation to any person, has the meaning given in the
Corporations Law but so that:
(a) an entity will also be deemed to be a Subsidiary of a company if
it is controlled by that company (expressions used in this
paragraph have the meanings given for the purposes of Parts 3.6
and 3.7 of the Corporations Law);
(b) a trust may be a Subsidiary, for the purposes of which any units
or other beneficial interests will be deemed shares; and
(c) a corporation or trust may be a Subsidiary of a trust if it would
have been a Subsidiary if that trust were a corporation.
A determination by any auditors of the Borrower for the time being as to
whether an entity is a Subsidiary of another entity will be evidence of
the same until the contrary is proved.
"SUBSTITUTION CERTIFICATE" means a certificate in the form of Schedule 7
completed and entered into in accordance with clause 28.4, and references
to "SUBSTITUTES" shall be construed as references to persons becoming
party to this Agreement pursuant to Substitution Certificates.
"TAX" and "TAXES" mean all income tax, stamp duty and other taxes,
levies, imposts, deductions, charges and withholdings plus interest
thereon and penalties, if any, and charges, fees or other amounts made on
or in respect thereof and "TAXATION" shall be construed accordingly.
"TERMINATION DATE" means the earlier of:
(a) (i) when designated "TRANCHE 1 TERMINATION DATE", 30 June 2000;
(ii) when designated "TRANCHE 2 TERMINATION DATE", 30 June 2004
or the date of the initial Tranche 3 Advance (if any)
whichever occurs first;
(iii) when designated "TRANCHE 3 TERMINATION DATE", 30 June 2004,
or in each case such other date as is agreed in writing
between the Facility Agent (acting on the instructions of
all Banks) and the Borrower; and
(b) such earlier date on which the Facility is terminated or cancelled
in accordance with this Agreement.
"TOTAL DEBT" means Senior Debt plus Subordinated Debt.
"TOTAL SUBSCRIBERS" means, on a day, the lesser of:
(a) the total number of customers of the Group having paid the most
recently ended monthly base package subscription fee; and
(b) the subscription revenue for the most recently ended month divided
by $39.95, as certified to the Facility Agent by two of the
Borrower's directors on a monthly basis.
"TRANSACTION DOCUMENT" means:
(a) this Agreement (together with each Accession Agreement and
Substitution Certificate);
(b) each Hedging Agreement;
(c) the Debenture Stock Trust Deed and each Stock Certificate issued
under that deed;
(d) each Security; and
(e) each other document to which any Relevant Person (on the one hand)
and an Agent or a Bank (on the other hand) are parties at any time
that:
(i) relates to any money that is declared by that document to
be part of the Obligations; or
(ii) is expressed to be, or is agreed by the said parties to be,
a Transaction Document for the purposes hereof; and
(f) any other document which is, or which is expressed to be,
collateral or supplemental to any other document that is then a
Transaction Document.
"UTILISATION" means:
(a) when designated "TRANCHE 1 UTILISATION", "TRANCHE 2 UTILISATION"
or "TRANCHE 3 UTILISATION", a utilisation under this Agreement of
the Tranche 1 Facility, the Tranche 2 Facility or the Tranche 3
Facility respectively;
(b) without any such designation, a utilisation of the Tranche 1
Facility, the Tranche 2 Facility or the Tranche 3 Facility, as the
context requires.
"UTILISATION DATE" means the date on which an Advance is made or, where
the context requires, is proposed to be made.
"UTILISATION MARGIN" means the percentage per annum determined in
accordance with clause 10.5.
"UTILISATION NOTICE" means a notice given under clause 4 in respect of an
Advance.
2. Interpretation
In this Agreement unless the context indicates a contrary intention:
(1) the expression "PERSON" includes an individual, the estate of an
individual, a body politic, a corporation and a statutory or other
authority or association (incorporated or unincorporated);
(2) a reference to any party includes that party's executors,
administrators, successors, substitutes and assigns, including any
person taking by way of novation;
(3) a reference to any Transaction Document however described or to
any other document includes the Transaction Document or other
document as amended, novated, supplemented, varied or replaced
from time to time;
(4) a reference to any legislation or to any section or provision
thereof includes any statutory modification or re-enactment or any
statutory provision substituted therefor and all ordinances, by-
laws, regulations and other statutory instruments issued
thereunder;
(5) words importing the singular include the plural (and vice versa)
and words denoting a given gender include all other genders;
(6) headings are for convenience only and do not affect
interpretation;
(7) a reference to a clause is a reference to a clause of this
Agreement;
(8) where any word or phrase is given a defined meaning any other part
of speech or other grammatical form in respect of such word or
phrase has a corresponding meaning;
(9) where the day on or by which any sum is payable or any act, matter
or thing is to be done is a day other than a Banking
Day, that sum will be paid and such act, matter or thing will be
done on the immediately preceding Banking Day;
(10) all accounting terms used have the meaning given to those terms
under accounting principles and practices generally accepted in
Australia from time to time;
(11) representations, warranties, covenants, undertakings and
agreements made or given in favour of the Agents in their capacity
as Agents enure for the benefit of and, subject to the Transaction
Documents, be capable of enforcement by the Banks and each of
them; and
(12) a reference to a law includes an Australian or applicable foreign
law, regulation, rule, directive or policy of any government or
regulatory authority whether or not having the force of law.
3. Joint and several liability
The obligations of the Guarantors under this Agreement will bind each of
them severally and every 2 or more of them jointly and unless the context
indicates a contrary intention, the expression "GUARANTORS" will be
deemed to include any person who has guaranteed, or in the future
guarantees to the Agents and the Banks the due performance of the whole
or any part of Obligations.
4. Debenture Stock Trust Deed
This Agreement and each of the Transaction Documents as defined in this
Agreement are "Transaction Documents" for the purposes of the Debenture
Stock Trust Deed.
5. Specified Rate
A reference to the Specified Rate in the Securities is agreed to be a
reference to the Specified Rate as defined in clause 1.1.
6. THE FACILITY
1. Facilities
Subject to the terms of this Agreement and in reliance upon the
representations and warranties set out in clause 16, the Xxxxx xxxxx to
the Borrower the following facilities:
(1) TRANCHE 1 FACILITY: a working capital facility whereby the Banks,
when requested by the Borrower pursuant to a Utilisation Notice,
during the Tranche 1 Availability Period, will make Tranche 1
Advances in an aggregate amount which will not
exceed the Tranche 1 Commitments;
(2) TRANCHE 2 FACILITY: a cash advance facility whereby the Banks,
when requested by the Borrower pursuant to a Utilisation Notice,
during the Tranche 2 Availability Period, will made Tranche 2
Advances in an aggregate amount which will not exceed the Tranche
2 Commitments; and
(3) TRANCHE 3 FACILITY: a term loan facility whereby the Banks, when
requested by the Borrower pursuant to a Utilisation Notice, during
the Tranche 3 Availability Period, will make Tranche 3 Advances in
an aggregate amount which will not exceed the Tranche 3
Commitments.
2. Banks' Commitments
No Bank is obliged to participate in the making of a Tranche 1 Advance, a
Tranche 2 Advance or a Tranche 3 Advance if to do so would cause the
aggregate of its participation in Tranche 1 Advances, Tranche 2 Advances
or Tranche 3 Advances (as the case may be) outstanding under this
Agreement to exceed its Tranche 1 Commitment, its Tranche 2 Commitment or
its Tranche 3 Commitment (as the case may be).
3. Several obligations
The obligations of each Bank under this Agreement and each Transaction
Document are several. The failure of a Bank to perform its obligations
under this Agreement or a Transaction Document shall not relieve any
other Bank, the Agents or a Relevant Person of any of its respective
obligations or responsibilities under this Agreement or the Transaction
Documents. The Agents shall not be responsible for the obligations of
any Bank (except for its own obligations, if any, as a Bank), nor shall
any Bank be responsible for the obligations of any other Bank.
4. Several interests
The interests of the Agents and each Bank under this Agreement and each
Transaction Document are several. The amounts due to the Facility Agent
on its own account, the Security Agent on its own account and to each
Bank under this Agreement or a Transaction Document constitutes a
separate and
independent debt.
5. Purpose
(1) The Facilities will be used as follows:
(1) The Tranche 1 Facility will be used for the purpose of
repaying in full the moneys owing pursuant to the
Bridge Financing Facility Agreement and thereafter for the
purchase and installation of Equipment and working capital
requirements.
(2) The Tranche 2 Facility will be used for the purpose of
purchasing and installing Equipment and working capital
requirements.
(3) The Tranche 3 Facility will be used for the purpose of
purchasing and installing Equipment and working capital
requirements.
(2) The Banks will consider the use of the Tranche 2 Facility and the
Tranche 3 Facility for credit support purposes provided that
satisfactory security can be agreed with the Facility Agent acting
on behalf of all Banks.
(3) The Facilities will not be used for any other purpose than that
described in clause 2.5(a).
6. Termination
(1) The Tranche 1 Facility terminates on the Tranche 1 Termination
Date.
(2) The Tranche 2 Facility terminates on the Tranche 2 Termination
Date.
(3) The Tranche 3 Facility terminates on the Tranche 3 Termination
Date.
7. Nature of Borrower's rights and obligations hereunder
(1) (BORROWER AS AGENT): Each Obligor (other than the Borrower) by its
execution of this Agreement or an Accession Agreement irrevocably
authorises the Borrower on its behalf to give all notices and
instructions under the Transaction Documents, to execute on its
behalf any Accession Agreement and to make such agreements capable
of being given or made by any Obligor relating to the Transaction
Documents notwithstanding that they may affect such Obligor,
without further reference to or the consent of such Obligor.
(2) (BORROWER'S ACTS BINDING): Every act, omission, agreement,
undertaking, settlement, waiver, notice or other communication
given or made by the Borrower under this Agreement, or in
connection
with this Agreement, (whether or not known to any other Obligor
and whether occurring before or after such other Obligor became an
Obligor under this Agreement) shall be binding for all purposes on
all other Obligors as if the other Obligors had expressly
concurred with the same. In the event of any conflict between any
notices or other communications of the Borrower and any other
Obligor, those of the Borrower shall prevail.
8. Voting
(1) When the Funding Bank enters into a Funding and LC Bank Agreement,
it may notionally divide any or all of its Commitments and/or
participations in the Advances into separate amounts to reflect
each LC Bank's Commitment (as defined in the relevant Funding and
LC Bank Agreement) and may vote or abstain from voting, with
respect to any such separate amount, on any matter separately and
differently from its vote or abstention with respect to any other
such separate amount on such matter.
(2) XX Xxxxx may attend any meeting of Banks.
9. CONDITIONS PRECEDENT
1. Conditions precedent to the first Utilisation
The obligations of each Bank under this Agreement are subject to the
conditions precedent that:
(1) (FINANCE DOCUMENTS): the Facility Agent has received original
copies of this Agreement and the Securities, duly executed by the
Borrower and the Original Guarantors, together with an undertaking
by the Borrower (which it hereby gives) that it will pay all
applicable stamp duty, including further stamp duty on the
Securities when, and if, required;
(2) (DOCUMENTS): the Facility Agent has received all of the documents
listed in Schedule 4 in form and substance satisfactory to it;
(3) (FEES): all fees referred to in clauses 10.2, 10.3 and 10.4 and
all other fees and expenses owing to the Banks and their
consultants have been paid, other than those disputed in good
faith or confirmation that the Borrower will pay simultaneously
with the first Utilisation those fees and expenses;
(4) (TOTAL SUBSCRIBERS): the Facility Agent has received evidence in
the form of a statement from two directors of the Borrower, that
the Group has achieved and maintains a minimum Total Subscribers
level of 120,000;
(5) (INDENTURE): the Facility Agent has received a notice
substantially in the form of Schedule 8 from UIH
Australia/Pacific, Inc.
2. Conditions precedent to all Utilisations
The obligations of the Facility Agent and each Bank in respect of each
Utilisation are subject to the Facility Agent being satisfied that both
at the date of the relevant Utilisation Notice and at the Utilisation
Date:
(1) (REPRESENTATIONS AND WARRANTIES TRUE): the representations and
warranties listed in clause 16 are true and correct and will be
correct immediately after the making of the Advance;
(2) (NO EVENT OF DEFAULT): no Event of Default or Potential Event of
Default is subsisting or will result from the making of the
Advance;
(3) (NO MATERIAL ADVERSE EFFECT): no event has occurred which would
have a Material Adverse Effect;
(4) (NO CHANGE IN LAW): no change has occurred in applicable laws or
regulations which would have a Material Adverse Effect; and
(5) (FURTHER GUARANTEES AND SECURITY): all Accession Agreements and
Securities required by the terms of this Agreement to be entered
into on or before such Utilisation Date have been or will on such
Utilisation Date be duly executed and delivered to the Facility
Agent together with all other documents required to be delivered
to the Facility Agent in relation thereto.
3. Waiver
The conditions precedent listed in clauses 3.1 and 3.2 may be waived by
the Facility Agent acting on behalf of:
(1) all Banks, in relation to clause 3.1; and
(2) the Majority Banks, in relation to clause 3.2.
4. Conditions Precedent to all Tranche 2 Utilisations
The obligations of the Facility Agent and each Bank in respect of each
Tranche 2 Utilisation are subject to the Facility Agent being satisfied
that at the relevant date of the Tranche 2 Utilisation Notice the amount
of the Equity Contribution is at least 50% of the aggregate of the amount
of Tranche 2 Advances outstanding and the amount requested in the Tranche
2 Utilisation Notice.
5. Conditions Precedent to all Tranche 3 Utilisations
The obligations of the Facility Agent and each Bank in respect of each
Tranche 3 Utilisation are subject to the Facility Agent being satisfied
that at the date of the Tranche 3 Utilisation Notice:
(1) if the requested Tranche 3 Advance were to be added to existing
aggregate outstanding Advances under the Facilities, the sum would
not exceed 5 times the last quarter's annualised EBITDA; and
(2) the Borrower has achieved and maintains Total Subscribers of not
less than:
(1) if prior to 30 June 1999, 200,000; or
(2) if after 30 June 1999, 300,000.
6. Agent not liable
The Facility Agent shall be deemed to be satisfied with the form and
substance of a document under clause 3.1(b) if to the Facility Agent the
document appears on its face to conform with its description and the
Facility Agent shall not be liable for any cost, loss damage or expense
suffered or incurred by any person as a result of its being so satisfied.
7. Agent satisfied
The Facility Agent will be deemed to be satisfied that the conditions
precedent to Utilisations referred to in clauses 3.2, 3.4 and 3.5 have
been met if, prior to each Utilisation Date, the Facility Agent receives
from the Borrower a written notice certifying that the relevant
conditions precedent have been met and information in support of that
certification and the information appears, on its face, to support the
certification made.
8. UTILISATIONS
1. Notice
The Borrower may request a Utilisation under the Facility on a Banking
Day by giving written notice of its intention to do so to the Facility
Agent.
2. Contents of Utilisation Notice
Each Utilisation Notice for an Advance shall be in the form of Schedule 5
and shall specify:
(1) whether the Utilisation is a Tranche 1 Advance, a Tranche 2
Advance or a Tranche 3 Advance;
(2) the amount of the Utilisation (which shall not be less than
$5,000,000 and must be an integral multiple of $1,000,000);
(3) the proposed Utilisation Date which must be a Banking Day prior to
expiration of the applicable Availability Period;
(4) the proposed duration of its (or its first) Interest Period (which
must be of either 1, 2, 3 or 6 months duration);
(5) payment instructions; and
(6) such other particulars as the Facility Agent may from time to time
require.
3. Requirements of Utilisation Notice
Each Utilisation Notice shall:
(1) be received by the Facility Agent 3 clear Banking Days before the
proposed Utilisation Date;
(2) be signed by a person duly authorised by the Borrower to do so;
(3) be irrevocable; and
(4) not be given until the conditions precedent to a Utilisation have
been satisfied or waived.
4. Agent Notify Banks
Promptly after its receipt of a Utilisation Notice the Facility Agent
shall notify each Bank.
5. Making of Advances
Subject to the terms of this Agreement, each Bank shall, on the
Utilisation Date, make available to the Facility Agent its Proportion in
Dollars for the account of the Borrower. All such amounts shall be made
available to the Facility Agent in accordance with clause 11 for
disbursement to or to the order of the Borrower in accordance with the
provisions of this Agreement.
6. Disbursement
Amounts received by the Facility Agent under clause 4.5 or 5.1 shall be
applied by it in accordance with the payment instructions specified in
the relevant Utilisation Notice.
7. Facility Agent's right to vary
Without limitation to the rights and powers vested in it under this
Agreement, the Facility Agent may vary any of the times at or by which
any act, matter or thing is to be done under this clause 4 if it
determines that such a variation is necessary or desirable to ensure the
effective operation of the Facility. Any such variation shall be binding
on all parties to this Agreement.
8. COMMITMENTS
1. Tranche 1 Commitments
Any part of the Tranche l Commitments not borrowed hereunder before
expiry of the Tranche 1 Availability Period shall be cancelled
automatically at close of business in Sydney on such expiry.
2. Tranche 2 Commitments
Any part of the Tranche 2 Commitments not drawn hereunder before expiry
of
the Tranche 2 Availability Period shall be cancelled automatically at
close of business in Sydney on such expiry.
3. Tranche 3 Commitments
Any part of the Tranche 3 Commitments not drawn hereunder before expiry
of the Tranche 3 Availability Period shall be cancelled automatically at
close of business in Sydney on such expiry.
4. First Tranche 3 Utilisation
If the Borrower issues the first Utilisation Notice in respect of a
Tranche 3 Advance then each of the following occurs on the Utilisation
Date for that Utilisation Notice:
(1) the Tranche 2 Commitments (both drawn and undrawn) will convert to
Tranche 3 Commitments and all outstanding Tranche 2 Advances will
be deemed to be Tranche 3 Advances;
(2) the Tranche 3 Commitments will increase by the amount of the
Tranche 2 Commitments so converted; and
(3) the Tranche 2 Facility will be cancelled.
5. Voluntary Cancellation
The Borrower may, on giving not less than 30 days' prior written notice
to the Facility Agent (which shall promptly give notice of the same to
the Banks), cancel or reduce any of the Tranche 1 Commitments, the
Tranche 2 Commitments or the Tranche 3 Commitments in whole or in part
specified by the Borrower without incurring any penalty or other cost,
provided that such cancellation or reduction may only be effected to the
extent of the amount of the applicable Commitments undrawn on that date
and the applicable Commitments of each Bank must be reduced pro rata. Any
such notice by the Borrower shall be irrevocable and shall specify the
relevant Commitments being cancelled, the date upon which the reduction
is to become effective and the amount of the reduction.
6. Reduction consequent on Repayment or Prepayment
(1) The Tranche 2 Commitments and/or the Tranche 3 Commitments shall
be reduced (such reduction being applied pro rata as between all
the Tranche 2 Commitments and/or the Tranche 3 Commitments as the
case may be), by the amount of any repayment or prepayment of any
Tranche 2 Advance or Tranche 3 Advance made pursuant to clauses
6.2, 6.5, 6.7 and 6.8.
(2) An individual Bank's Tranche 2 Commitment and Tranche 3
Commitment shall be reduced by the amount of any prepayment of
that Bank's participation in any Tranche 2 Advance or Tranche 3
Advance (as the case may be) made pursuant to any other provision
of this Agreement.
7. Limitations
Save as expressly provided, any amount of the Total Commitments cancelled
or otherwise extinguished under this Agreement may not be reinstated.
Save as expressly provided neither the Total Commitments nor any
constituent part thereof may be reduced or cancelled under this
Agreement.
8. REPAYMENT AND PREPAYMENTS
1. Repayment of Tranche 1 Utilisations
(1) The Borrower shall repay the full amount of each Tranche 1 Advance
made to it on the last day of the Interest Period relating to that
Advance.
(2) All Tranche 1 Utilisations shall be paid in full on the Tranche 1
Termination Date.
(3) If on the last day of an Interest Period for a Tranche 1 Advance
(the "MATURING ADVANCE") a new Tranche 1 Advance (the "NEW
ADVANCE") is due to be made to the Borrower, then only an amount
equal to:
(1) the amount of the Maturing Advance; minus
(2) the amount of the New Advance, need be paid by the Borrower
to the Facility Agent (if such amount is a positive number)
or by the Facility Agent to the Borrower (if such amount is
a negative number).
2. Repayment of Tranche 2 Advances and Tranche 3 Advances
At the end of the Tranche 2 Availability Period or the Tranche 3
Availability Period (whichever is later), the Facility Agent will
calculate the repayment instalments for each Repayment Date specified
below having regard to the outstanding Tranche 2 Advances or Tranche 3
Advances (as the case may be). The amount to be repaid on each Repayment
Date will be calculated so that the remaining Tranche 2 Advances or
Tranche 3 Advances outstanding after such repayment are equal to the
amount of Tranche 2 Advances or Tranche 3 Advances outstanding on the
last day of the Tranche 2 Availability Period or the Tranche 3
Availability Period (as the case may be) multiplied by the percentage set
out opposite the relevant date.
REPAYMENT DATES %
31 December 2000 90
31 March 2001 82
30 June 2001 75
30 September 2001 67
31 December 2001 60
31 March 2002 58
30 June 2002 55
30 September 2002 51
31 December 2002 48
31 March 2003 42
30 June 2003 37
30 September 2003 32
31 December 2003 28
31 March 2004 14
30 June 2004 0
3. Recalculation of Repayments
If during the period from the end of the Tranche 2 Availability Period or
the Tranche 3 Availability Period (whichever is later) to the Tranche 2
Termination Date or the Tranche 3 Termination Date (whichever is later),
the Borrower prepays any part of the Tranche 2 Advances or Tranche 3
Advances under any of clauses 6.5, 6.7, 6.8, 12.4, 13, 14.2 or 19, the
Facility Agent will recalculate the repayment installments for each
remaining Repayment Date by applying the amount of the prepayment pro
rata against all remaining repayment installments.
4. Repayment Instructions
Upon completion of the calculations referred to in clauses 6.1, 6.2 and
6.3, the Facility Agent will notify the Borrower in writing of the
repayments required to be made by the Borrower in accordance with those
calculations.
5. Voluntary Prepayment
(1) The Borrower may prepay a Tranche 2 Advance or a Tranche 3 Advance
or part thereof on the last day of its current Interest Period on
giving not less than 10 Banking Days' prior written notice to the
Facility Agent.
(2) Any notice of prepayment given by the Borrower is irrevocable and
the Borrower is thereby bound to prepay in accordance with the
notice.
(3) Interest accrued on any amount prepaid under this Agreement shall
be paid at the time of prepayment.
(4) Any prepayment is permanent, and the Facility will be cancelled to
the extent of the prepayment.
6. Facility Agent to notify Banks
Promptly after its receipt of a notice of prepayment the Facility Agent
shall notify each Bank of the prepayment, the date on which the
prepayment is to be made and its pro rata share thereof.
7. Mandatory Prepayment
(1) Subject to clause 6.8, after the expiry of the Tranche 3
Availability Period, the Borrower will apply on a semi-annual
basis towards the repayment of the Facility, without limitation,
all of the Excess Cash Flow for the preceding 6 month period which
is in excess of half of
the Excess Cash Flow projected in the Business Plan to be
generated in the 12 month period of which the relevant semi-annual
period forms part. The amount to be prepaid will be calculated by
the Facility Agent on receipt of the audited semi-annual Accounts.
(2) If any member of the Group or any of the assets, business or
undertaking of any member of the Group (except in respect of those
assets, business or undertakings of Chippawa and Xxxxx which are
not owned by any member of the Group) are disposed of, the
Borrower, unless the Majority Banks shall otherwise consent in
writing, shall apply, or shall procure that there shall be
applied, forthwith an amount equal to the Net Proceeds arising
from the disposal, in or towards prepayment
of the Utilisations in accordance with clause 6, provided that the
foregoing shall not apply to Net Proceeds arising from:
(1) a disposal of trading stock in the ordinary course of
trading; or
(2) a disposal of assets not constituting trading stock which
are to be replaced by other assets being acquired for use
for like purposes and are so replaced within 3 months of
the date of such disposal (save to the extent the Net
Proceeds exceed the acquisition cost of those other
assets); or
(3) any disposal the consideration for which, when taken
together with the consideration for any related disposals
or recoveries, does not exceed $500,000 unless or until the
aggregate thereof exceeds $5,000,000 in any 12 month
period.
(3) At any time during the term of the Facility, the Borrower must
apply in prepayment of any Advances outstanding at the time all of
the proceeds (in excess of replacement costs) of any property or
casualty insurance, other than business interruption insurance.
8. Excess Cash Flow election
(1) The Borrower may elect to make the prepayments referred to in
clause 6.7(a) on an annual basis by giving not less than 3 months
prior written notice to the Facility Agent.
(2) If the Borrower elects to make the prepayments referred to in
clause 6.7(a) on an annual basis:
(1) the Borrower will apply in a financial year towards the
repayment of the Facility, without limitation, all of the
Excess Cash Flow for that financial year which is in excess
of the Excess Cash Flow projected in the Business Plan to
be generated in that financial year. The amount to be
prepaid will be calculated by the Facility Agent on receipt
of the audited annual Accounts;
(2) all prepayments made pursuant to clause 6.7(a) after the
date of the election must be made on an annual basis; and
(3) after the date of the election, the Borrower may only make
the payments referred to in clause 17.6 on an annual basis
based on audited annual Accounts.
9. Order of Application
The amounts required to be applied in prepayment pursuant to clause 6.7
and 6.8 shall be applied as follows:
(1) first, in prepayment of the Tranche 2 Advances or Tranche 3
Advances (as the case may be) until repaid or prepaid in full;
(2) second, in prepayment of the Tranche 1 Advances until repaid or
prepaid in full.
10. Date for Prepayment
If the Borrower becomes obliged to prepay or procure the prepayment of
any amount under clause 6.7 or 6.8, the prepayment shall be made on the
last day of the Interest Period relating to the Advance to be repaid.
11. General provisions relating to prepayment
(1) The Facility Agent's certificate as to the repayments and date for
repayments required to be made by the Borrower will be conclusive
and binding on the Borrower and the Guarantors in the absence of
manifest error on the face of the certificate.
(2) Amounts repaid and prepaid in respect of the Tranche 2 Advances
and/or the Tranche 3 Advances under any provision of this
Agreement may not be reborrowed hereunder.
(3) Amounts repaid pursuant to clause 6.1 in respect of Tranche 1
Utilisations prior to the Tranche 1 Termination Date may, subject
to the terms of this Agreement, be redrawn as Tranche 1
Utilisations. Any amounts repaid or prepaid in respect of Tranche
1 Utilisations under any other provision of this Agreement may not
be redrawn.
12. INTEREST
1. Interest Periods
(1) Not later than 3 Banking Days before the commencement of each
Interest Period in respect of an Advance, the Borrower will notify
the Facility Agent whether the Interest Period for that Advance is
to be of 1, 2, 3 or 6 months' duration (or such other period as
the Facility Agent may agree to facilitate compliance with clause
7.2(a)).
(2) The first Interest Period in relation to an Advance is the period
commencing on the Utilisation Date for that Advance.
(3) If the Borrower fails to select an Interest Period for an Advance
in accordance with clause 7.1(a), the Interest Period shall be 3
months.
(4) The term of each Interest Period is subject to such marginal
adjustment as the Facility Agent in its discretion determines so
that the first and last days of it are Banking Days and the final
Interest Period in relation to a Facility terminates on the
Termination Date for that Facility.
2. Restrictions on Selection
(1) The Borrower shall, in relation to Advances drawn by it, select
the duration of Interest Periods pursuant to clause 7.1 so as to
ensure that:
(1) in relation to each Facility, no more than 5 different
Interest Periods are current at any one time;
(2) each date for repayment of part of the Tranche 2 Facility
or the Tranche 3 Facility (as the case may be) will also be
the last day of an Interest Period in relation to an amount
at least equal to the amount due to be paid on such date;
and
(3) that no Advance shall have an Interest Period expiring
after the Termination Date.
(2) If it appears to the Facility Agent in good faith that the
requirements of paragraph (a) above will not be met by either the
Borrower's selection of any Interest Period or the operation of
clause 7.1(c), the Facility Agent, on behalf of and after
consultation with the Borrower, shall select a different duration
for such Interest Period.
3. Calculation of Interest
(1) Interest on each Advance accrues daily and is to be computed on a
daily basis on a year of 365 days. Interest is to be calculated
from and including the first day of an Interest Period but
excluding the last day of the Interest Period.
(2) The rate of interest for each Advance for each Interest Period is
the Prescribed Rate in relation thereto.
(3) The Facility Agent's certificate as to the Prescribed Rate and the
Specified Rate at any time will be conclusive and binding on the
Borrower and the Guarantors in the absence of manifest error on
the face of the certificate.
4. Payment of Interest
(1) The Borrower will pay to the Facility Agent for the account of
the Banks the accrued interest in relation to that Advance at the
end of each Interest Period.
(2) The Facility Agent will promptly distribute the interest received
by it from the Borrower among the Banks in accordance with their
Proportions with respect to that Advance.
5. INTEREST ON OVERDUE AMOUNTS
1. Payment of Interest
(1) The Borrower and the Guarantors will pay to the Facility Agent for
the account of the Banks interest on all amounts due and payable
by them under or in respect of this Agreement or the Securities
and unpaid, including any interest payable under this clause.
(2) The Facility Agent will distribute the interest received by it
from the Borrower among the Banks in accordance with their
Proportions with respect to that Advance.
2. Accrual of Interest
Interest will accrue on all amounts due and payable from day to day from
the due date up to the date of actual payment, before and (as a separate
and independent obligation but without duplication) after judgment, at
the Specified Rate for successive 3 month periods (as if the same were 3
month Interest Periods) commencing on the date of default and, if not
paid when due, shall itself bear interest in accordance with this clause.
3. XXXX RELIQUIFICATION
1. Drawing of Bills
The Borrower agrees (at the relevant Bank's cost) to draw Bills in
connection with any Advance made to it in the manner required by any Bank
whenever requested by a Bank to do so except that:
(1) the discounted value of those Bills when added to the aggregate
discounted value of all other Bills drawn under this clause for
the relevant Bank and which are outstanding at any time may not
exceed that Bank's participation in all Advances which are
outstanding;
(2) the obligations of the Borrower as drawer or otherwise under those
Bills are non-recourse.
2. Attorney
The Borrower irrevocably appoints each Bank (severally) as its attorney
to draw Bills in its name or on its behalf under clause 9.1 and agrees to
ratify all action taken by any Bank as its attorney under this clause.
3. Appointment Revoked
The requirement to draw Bills under clause 9.1 and the appointment under
clause 9.2 will cease and be revoked without necessity for notice when
all Advances are repaid. Nothing in clause 9.1 or 9.2 requires the
Borrower or
authorises any Bank as attorney to draw a Xxxx which matures
after the Termination Date.
4. Indemnity
Each Bank (severally) indemnifies the Borrower against loss, cost,
expense or liability on any Xxxx drawn by the Borrower at the request of
that Bank under clause 9.1 or drawn by that Bank under clause 9.2. Each
Bank agrees to pay the costs of preparation of and all stamp duty on each
Xxxx drawn at its request under this clause 9. Each indemnity in this
clause 9.4 is a continuing obligation of each Bank (severally) and
survives the termination of this Agreement or the repayment of any Xxxx
drawn under this clause 9.
5. Notice
On request from the Borrower through the Facility Agent (not more often
than once each quarter) the Banks will notify the Borrower through the
Facility Agent of the total face value of Bills outstanding at that time
under this clause.
6. FEES
1. Commitment Fee
(1) The Borrower will pay in Dollars to the Facility Agent for
distribution among the Banks pro rata to their respective
Commitments, a commitment fee ("COMMITMENT FEE") computed in
accordance with clause 10.5 on the daily undrawn balance of the
Commitments, during the period from and including the date of this
Agreement until the expiry of the last of the Tranche 1, 2 or 3
Availability Periods.
(2) Accrued Commitment Fee shall be payable quarterly in arrears from
the date of this Agreement and also on any date on which the Total
Commitments shall be terminated.
(3) The Commitment Fee shall accrue from day to day and be calculated
on the basis of a year of 365 days and for the actual number of
days elapsed.
2. Arrangement/Underwriting Fee
The Borrower must pay to the Facility Agent, the arrangement/underwriting
fee as set out in a letter from the Facility Agent to the Borrower dated
24 April 1997 unless that fee or an equivalent fee has already been paid
to the Facility Agent.
3. Establishment Fee
The Facility Agent must pay each Bank (from the arrangement/underwriting
fee paid pursuant to clause 10.2) an establishment fee upon first
Utilisation of the Facility of an amount by reference to the terms set
out in the Information Memorandum and the accompanying invitation letter
from the Facility Agent to each Bank.
4. Agency Fees
The Borrower must pay to the Facility Agent, an agency fee as set out in
a letter from the Facility Agent to the Borrower dated 24 April 1997.
5. Ratio Range
(1) Subject to paragraph (c) below, the Commitment Fee and the
Utilisation Margin will be set in accordance with the Ratio Range
for the most recent financial quarter as follows:
RATIO RANGE COMMITMENT FEE UTILISATION MARGIN
Greater than or
equal to 4.00 0.875% pa 1.75% pa
Between 3.00 and 4.00 0.750% pa 1.50% pa
Less than or equal
to 3.00 0.625% pa 1.25% pa
(2) The Ratio Range will be calculated quarterly by the Facility Agent
upon receipt of the relevant Accounts showing the results of the
latest financial quarter. If the Ratio Range for the last quarter
results in a change of Utilisation Margin or Commitment Fee the
Facility Agent will notify the Borrower and the Banks and the change
will take effect from the date of delivery of the relevant Accounts to
the Facility Agent.
(3) If an Event of Default has occurred and while it subsists the
Utilisation Margin will be 3.75%.
(4) From the date of this Agreement until first changed pursuant to sub-
clause (b) above the Utilisation Margin is 1.75% and the Commitment
Fee is 0.875%.
6. PAYMENTS
1. Payment to Security Agent
All payments to be made by any Obligor under any Transaction Document shall
be paid to or to the order of the Security Agent, provided that the Security
Agent hereby consents to all such payments being made to the Facility Agent
in accordance with the terms of this Agreement until the Securities shall
become enforceable and the Security Agent withdraws such consent by notice
to the Facility Agent and the Obligors.
2. Time and place
Subject to clause 11.1 all payments by any Obligor under any Transaction
Document, or by any Bank under this Agreement (unless expressly provided
otherwise in writing), are to be made to the Facility Agent in Dollars in
immediately available funds not later than 11.00 am local time on the due
date to such accounts as the Facility Agent may from time to time designate.
3. Merger
If the liability of any Obligor to pay any money the payment or repayment of
which forms part of the Obligations becomes merged in any judgment or order,
as an independent obligation the Obligor will pay to the Facility Agent on
behalf of the Banks interest at the rate which is the higher of that payable
under this Agreement and that fixed by or payable under such judgment or
order.
4. Conversion of Foreign Currency receipts to Dollars
(1) Notwithstanding the Obligor's obligation under clause 11.2 to make all
payments in Dollars, if any payment is tendered to an Agent or a Bank
under any Transaction Document in a Foreign Currency, the Agent or
Bank, as the case may be, at its absolute discretion may accept
payment in the Foreign Currency as tendered.
(2) If any payment in a Foreign Currency is tendered to and accepted by an
Agent or Bank, or if any funds are recovered by an Agent or Bank under
any Transaction Document in a Foreign Currency, the Agent or Bank as
the case may be at its absolute discretion may actually or notionally
convert such payment or funds to Dollars at such time or times as it
sees fit and at such rate or rates as it is, or considers it would be,
able to obtain in the market at the time of such conversion. The
amount of Dollars actually or notionally received after such
conversion will be applied in reduction of the Obligations.
5. Costs of Conversion
The Borrower will pay to an Agent or a Bank all commissions and expenses
involved in actually or notionally converting any payment or receipt in a
Foreign Currency into Dollars.
6. Application
Each payment received by any Agent for the account of another person
pursuant to clause 11.1 or 11.2 shall:
(1) in the case of a payment received for the account of the Borrower, be
made available by that Agent to the Borrower by application, on the
date of receipt:
(1) first, in or towards payment of any amounts then due and payable
(and unpaid) by the Borrower under this Agreement; and
(2) second, in payment to such account as the Borrower shall have
properly designated for the purpose in the relevant Utilisation
Notice or otherwise in writing; and
(2) in the case of any other payment, be made available by the Agent to
the person for whose account the payment was received on the date of
receipt to such account of the person as that person shall have
previously notified to the Agent for the purposes of this Agreement.
The Facility Agent or the Security Agent (as the case may be) shall promptly
distribute payments received for the account of the Banks among the Banks
pro rata to their respective entitlements provided that the Facility Agent
may deduct
therefrom any amount due to the Facility Agent or the Security
Agent pursuant to clause 11.8, 24.14 or 26.
7. Foreign Currency indemnity
If Foreign Currency is received by an Agent or a Bank as a result of a court
or tribunal order or as a result of a distribution under an Insolvency
Provision, then as a separate, additional and continuing liability
(notwithstanding such order or distribution) the Borrower will pay to the
Agent or Bank any deficiency in the amount of Dollars actually received by
the Agent or Bank resulting from any variation between:
(1) the rate of exchange at which the amount of Foreign Currency was
calculated for the purposes of the court or tribunal order or the
distribution; and
(2) the rate of exchange at which the Agent or Bank is able to purchase
Dollars with the amount of Foreign Currency actually received by the
Agent or Bank.
8. Insufficient payment
If an amount required to be paid to the Facility Agent under this Agreement
is not paid in full when due, the Facility Agent may apportion such amount
between principal, interest, commission, fees, charges and other amounts
payable under this Agreement in such manner as it may determine and any such
determination shall be binding on each party hereto.
9. Anticipatory payments
The Facility Agent will not be obliged to make a payment to a Bank or a
Borrower out of any sum which it is expecting to receive for the account of
the Bank or the Borrower until it has been able to establish that it has
received the sum. The Facility Agent may elect to make such payment,
whereupon to the extent such payment is made but the Facility Agent does not
receive the sum when due in whole or in part:
(1) each person to which such payment was made shall, on request by the
Facility Agent, immediately refund it to the Facility Agent;
(2) if the person who has failed to pay the sum when due is an Obligor,
interest payable by the Obligor on the amount of the sum not paid when
due and not refunded under clause 11.9(a) shall, notwithstanding any
other provision of this Agreement, belong to the Facility Agent
absolutely; and
(3) if the person who has failed to pay the sum is a Bank, the Bank will
pay interest on the amount of the sum not paid when due and not
refunded under clause 11.9(a) at a rate determined by the Facility
Agent to be equal to its cost of funds.
The provisions of this clause are without prejudice to any rights which any
person may have against the party who fails to pay any sum.
10. Rounding
In making any payment under this Agreement, the Facility Agent may round
amounts to the nearest dollar.
11. TAXES
1. No deduction for Taxes and no set-off or counterclaim
All payments by the Obligors under any Transaction Document, whether of
principal, interest or other amounts due thereunder, shall be:
(1) free of any set-off or counterclaim; and
(2) without deduction or withholding for any present or future Taxes
unless the Obligor is compelled by law to deduct or withhold the same.
2. Payment net of Taxes
If:
(1) an Obligor is legally compelled to make any deduction or withholding
on account of Taxes (other than Excluded Taxes);
(2) an Agent is legally compelled to make any deduction or withholding on
account of Taxes (other than Excluded Taxes) from any payment to a
Bank;
(3) a Bank does not receive a payment to which it is entitled under this
Agreement or a Transaction Document free and clear of Taxes (other
than Excluded Taxes);
(4) a Bank or an Agent is obliged to pay any Taxes in respect of a payment
made or to be made by an Obligor under this Agreement or a Transaction
Document (other than Excluded Taxes); or
(5) a Bank is obliged, in respect of financial accommodation ("FUNDING")
raised or proposed to be raised by the Bank to permit or facilitate
its participation in an Advance:
(1) to make any additional payments as a result of any deduction or
withholding from any payment or repayment which the Bank is
obliged to make in respect of the Funding (other than in respect
of Excluded Taxes); or
(2) to pay any Taxes (other than Excluded Taxes) as a result of or in
connection with the Funding or any payment or repayment to be
made by it in connection with the Funding, then:
(6) where clause 12.2(a), (b), (c) or (d) apply, the Obligor shall on
demand by the Facility Agent pay to the Facility Agent such additional
amounts, by
way of additional interest, as may be necessary to ensure
that the Agent or Bank affected receives when due a net amount (after
payment of any Taxes, other than Excluded Taxes) equal to the full
amount which it would have been entitled to receive and retain had the
deduction or withholding not been made or had the payment been free
and clear of Taxes or had the Agent or Bank not been obliged to pay
any Taxes in respect of the payment; and
(7) where clause 12.2(e) applies in relation to a Bank, the relevant
Obligor shall on demand by the Facility Agent pay to the Facility
Agent on account of the Bank an amount equal to the amount required to
be paid, or paid, in respect of or as a result of any deduction or
withholding or payment of Taxes to which the
paragraph applies; and
(8) in addition to clause 12.2(f), where any Obligor is legally compelled
to make any deduction or withholding on account of Taxes the relevant
Obligor, shall:
(1) pay to the appropriate governmental authority or department any
amount deducted or withheld in respect of Taxes; and
(2) within 20 Banking Days after making the deduction or withholding
provide to the Facility Agent evidence satisfactory to it of that
payment having been made.
3. Funding
(1) The Banks will use their best efforts to raise all Funding free and
clear of Taxes.
(2) If a Bank is obliged to make any deduction or withholding or pay any
Taxes as referred to in clause 12.2(e), the Bank will promptly notify
the Facility Agent and the Borrower of that obligation and its amount.
4. Termination
If any Obligor fails to comply with the provisions of clause 12.2 in
relation to a Bank, the Bank may by notice to the Borrower through the
Facility Agent terminate its obligations under this Agreement
notwithstanding that any obligation of an Obligor under clause 12.2 may be
void, voidable or unenforceable. Upon such a notice being given, the
Borrower will within 5 Banking Days prepay the relevant Bank's participation
in all affected Utilisations together with accrued interest thereon and all
other money payable under this Agreement to the Bank. Any such prepayment
shall be permanent and the Facility shall be cancelled to the extent of the
prepayment.
5. Right to Prepay Individual Bank
In the event that any Borrower is or would be obliged under clause 12.2 to
pay any additional amounts to a Bank, such Borrower may prepay the whole
(but not part) of the then outstanding amount of such Bank's participation
in the affected Utilisations made by it, together with all interest and
other charges accrued on those participations and all other amounts payable
to such Bank under the Transaction Documents, on giving not less than 10
Banking Days' prior written
notice to such Bank (through the Facility Agent) provided that consent to
the making of such prepayment shall have been given by the Majority Banks,
which consent will not be unreasonably withheld or delayed (ignoring for the
purpose such Bank, its Commitments and its participations in the
Utilisations).
6. ILLEGALITY
If any change in applicable law, regulation, treaty or official directive or
in the interpretation or administration thereof by any governmental
authority charged with the administration thereof makes it unlawful or
impossible for a Bank to give effect to its obligations under this
Agreement:
(1) the Bank's obligations under this Agreement will be suspended
immediately for the duration of such illegality or impossibility;
(2) the Bank may by notice to the Borrower through the Facility Agent
terminate its obligations under this Agreement;
(3) if required by or as a result of the applicable event, or if necessary
to prevent or remedy a breach of, or to comply with, any applicable
law, regulation, treaty or official directive, the Borrower will
prepay an amount equal to the Bank's participation in all Utilisations
together with all interest and fees accrued thereon and such other
amounts as are payable to the Bank under this Agreement in full
immediately, or if delay in prepayment does not compound such breach
or affect such compliance, at the end of the current Interest Period
(or such lesser period if the applicable law, regulation, treaty or
official directive requires); and
(4) the Borrower will indemnify the Bank and notwithstanding termination
of its obligations under this Agreement keep it indemnified against
any cost, loss, damage or expense suffered, incurred or payable by it
as a result of the operation of clause 13(a), (b) and (c) and shall
pay to the Facility Agent for the account of the Bank prior to
termination of the Bank's obligations under this Agreement such amount
as the Bank estimates in good faith to be, then or in the future,
payable to it by the Borrower under this indemnity.
7. INCREASED COST
1. Obligation to Indemnify
(1) If by reason of any change in law or in its interpretation or
administration or by reason of compliance with any request from or
requirement of any fiscal, monetary or other authority:
(1) a Bank incurs a cost as a result of its having entered into or
performed its obligations under the Facility or as a result of
any Advance being outstanding hereunder;
(2) there is any increase in the cost to a Bank of funding or
maintaining any Utilisation made or to be made hereunder;
(3) the amount of principal, interest or other amount payable to a
Bank or the effective return to a Bank on the Utilisations
under this
Agreement or the anticipated rate of return at the date of this
Agreement on the Bank's overall capital is reduced; or
(4) a Bank becomes liable to make any payment (not being a payment of
Tax on its overall net income) on or calculated by reference to
the amount of Utilisations made hereunder or Bills outstanding
hereunder, then from time to time on notification by the Bank
through the Facility Agent the Borrower shall pay to the Facility
Agent on account of the Bank amounts sufficient to indemnify the
Bank against such cost, increased cost, reduction or liability.
(2) The notification referred to in clause 14.1(a) shall set out in
reasonable detail (excluding confidential information) the basis for
the notification.
(3) If a Bank has acted in good faith it is no defence that any such cost,
increased cost, reduction or liability could have been avoided.
(4) A Bank's certificate as to the amount of, and basis for arriving at,
any such cost, increased cost, reduction or liability is conclusive
and binding on the Borrower and the Guarantors in the absence of
manifest error on the face of the certificate.
2. Right to Prepay Individual Bank
Where clause 14.1 applies the relevant Borrower subject to the prior consent
of the Majority Banks, which consent will not be unreasonably withheld or
delayed (ignoring for this purpose the relevant Bank, its Commitments and
its participations in the Utilisations), upon giving not less than 10
Banking Days' notice to that Bank (through the Facility Agent) may prepay
the whole (but not part only) of that Bank's participation in all (and not
some only of) the Advances together with all interest and other charges on
or in respect thereof, and all other amounts payable by it under the
Transaction Documents to such Bank, provided always that any such notice by
such Borrower is given whilst circumstances exist entitling such Bank to
claim compensation under this clause.
3. MITIGATION
1. Mitigation
If circumstances arise in respect of any Bank which would, or upon the
giving of notice would, result in the operation of clause 12, 13 or 14 to
the detriment of an Obligor:
(1) such Bank shall use best endeavours to promptly notify the Facility
Agent and the Borrower and, upon the request of the Borrower,
shall enter into discussions with the Borrower with a view to
determining what mitigating action might be taken by such Bank,
including discussion of the possibility of a change in its lending
office, a change in the method of funding Advances or a transfer of
its participation in the Facilities and its Commitments to another
bank or financial institution; and
(2) at the request of the Borrower, the Facility Agent will enter into
discussions with the Borrower with a view to determining what
mitigating action might be taken by the Facility Agent with respect to
the administration of this Agreement by the Facility Agent, PROVIDED
THAT nothing in this clause shall oblige any Bank or the Facility
Agent to incur any costs or expenses or to take any action or refrain
from taking any action.
2. Replacement of Bank
If such circumstances as are referred to in clause 15.1 shall arise, the
Facility Agent, at the request of the Borrower, will consult with the
Borrower with a view to identifying and approaching bank(s) and financial
institution(s) acceptable to the Borrower who may be willing to become party
to this Agreement as Bank(s) in replacement for the relevant Bank(s).
3. Costs and Expenses
Any reasonable costs and expenses reasonably incurred by any Bank or the
Facility Agent pursuant to this clause shall be paid by the Borrower within
5 Banking Days after receipt of a demand specifying the same in reasonable
detail.
4. REPRESENTATIONS AND WARRANTIES
1. General representations and warranties
The Borrower and each Guarantor hereby represents and warrants in respect of
itself only to the Agents and each Bank that:
(1) (LEGALLY BINDING OBLIGATION): each Transaction Document to which it is
a party constitutes a valid and legally binding obligation of it in
accordance with its terms;
(2) (EXECUTION, DELIVERY AND PERFORMANCE): the execution, delivery and
performance of each Transaction Document to which it is a party does
not violate any existing law or regulation or any document or
agreement to which it is a party or which is binding upon it or any of
its assets;
(3) (AUTHORISATION): all consents, licences, approvals and authorisations
of every government authority required to be obtained by it in
connection with the execution, delivery and performance of each
Transaction Document to which it is a party have been obtained and are
valid and subsisting;
(4) (NO LITIGATION): no litigation, arbitration, criminal or
administrative proceedings are current, pending or, to the knowledge
of the Borrower or Guarantor, threatened in which there is a
reasonable likelihood of an adverse determination and which if
adversely determined would have a Material Adverse Effect;
(5) (NO EVENT OF DEFAULT): no event has occurred which constitutes an
Event of Default or a Potential Event of Default;
(6) (LAWS): it has complied in all material respects with all statutes and
regulations relative to it and the businesses (if any) carried on by
it the non-compliance with which would have a Material Adverse Effect;
(7) (FINANCIAL LIABILITIES): save as disclosed to the Facility Agent prior
to the date of this Agreement or any date on which this representation
and warranty is repeated, it is not in default in the payment of any
material sum, or in the performance or observance of any material
obligation in respect of any Financial Liability greater than
$500,000, and no event has occurred which with the giving of notice,
lapse of time or other condition could constitute such a default in
respect of any Financial Liability greater than $500,000;
(8) (NO TRUSTS): it is not the trustee of any trust and does not hold any
property subject to or impressed by any trust;
(9) (TITLE): it is the sole legal and beneficial owner of the Security
Property subject to the Security free and clear of all Encumbrances
other than those of the type referred to in clause 17.3(a); and
(10) (INTELLECTUAL PROPERTY RIGHTS):
(1) it owns or has licensed to it all the intellectual property
rights which are material in the context of its business and
which are required by it in order for it to carry on its business
as it is being conducted and it does not, in carrying on its
business and to the best of its knowledge, infringe any
intellectual property rights of any third party in any material
respect;
(2) none of the intellectual property rights which are material in
the context of its business is, to its knowledge, being infringed
nor, to its knowledge, is there any threatened infringement of
those intellectual property rights, by any third party.
(11) (TAX LIABILITIES): no claims are being or are reasonably likely to be
asserted against it with respect to Taxes which are reasonably likely
to be determined adversely to it and which, if so adversely
determined, would have a Material Adverse Effect. It is not materially
overdue in the filing of any Tax returns required to be filed by it
and it has paid all Taxes shown to be due on such returns or on any
assessments made against it non-payment, or a claim for payment, of
which would have a Material Adverse Effect.
(12) (LICENCES): each of the Licences held by it is legally and
beneficially owned by the licensee referred to in Schedule 3 and the
Obligor is not aware of any fact or circumstance which would cause any
of the Licences to be suspended, revoked or cancelled prior to its
normal expiry date or which would cause the non-renewal of any of the
Licences where such suspension, revocation, cancellation or non-
renewal would, having regard to all of the circumstances (including,
but not limited to, the suspension, revocation, cancellation or non-
renewal of other Licences at any prior time) and taking into account
the cumulative effect of all such previous
events and circumstances, be reasonably likely to have an adverse
effect on the Obligor's business or financial condition or on its
ability to perform its material obligations under any of the
Transaction Documents and so far as it is aware, no other
authorisations, permits or licences are required by any member of the
Group to enable that person to lawfully conduct its business as it is
being carried on at the date of this Agreement; and
(13) (MATERIAL CONTRACTS): save as disclosed to the Facility Agent prior to
the date of this Agreement or any date on which this representation
and warranty is repeated, each of the Material Contracts to which it
is a party is in full force and effect and it is not aware of any
breach by it of any material term of any Material Contract to which it
is a party nor, (to the best of its knowledge) is any other party to
any Material Contract in breach of any such material term.
2. Information representations and warranties
The Borrower and each Guarantor hereby represents and warrants to the Agents
and each Bank in respect of itself only that:
(1) (INFORMATION): all information relating to an Obligor provided to the
Banks by an Obligor or at their direction in connection with the
Facility and each Transaction Document is true in all material
respects and is not, by omission or otherwise, misleading in any
material respect;
(2) (ACCOUNTS): the Accounts provided to the Facility Agent:
(1) have been prepared in accordance with accounting principles and
practices generally accepted in Australia; and
(2) give a true and fair view of the financial condition of the
relevant entity as at the date to which such accounts relate and
the results of operations for the accounting period ending on
that date and since that date there has been no material adverse
change in the financial condition of CTV, STV or the Group as
shown in such accounts which would have a Material Adverse
Effect;
(3) (DOCUMENTS): the documents delivered to the Facility Agent by or on
behalf of any Obligor pursuant to clause 3.1(b) and any other
provision of the Transaction Documents were genuine and in the case of
copy documents, were true, complete and accurate copies in all
material respects, of originals which have not been amended, varied,
supplemented or superseded in any way which would be likely materially
to have a Material Adverse Effect;
(4) (INFORMATION MEMORANDUM): save as disclosed in writing to the Facility
Agent all material written factual information contained in the
Information Memorandum is true in all material respects at the date
(if any) ascribed thereto in the Information Memorandum, all
expressions of opinion or intention and all forecasts and projections
contained in the Information Memorandum were arrived at after careful
consideration and were based on reasonable grounds, and so far as it
is aware the Information Memorandum as of its date was not misleading
in any material respect
and as at its date did not omit to disclose any matter failure to
disclose which would result in any information contained in the
Information Memorandum being misleading in any material respect in the
context of this Agreement;
(5) (BUSINESS PLAN): save as disclosed in writing to the Facility Agent
all material factual information contained in the Business Plan is
true in all material respects at the date (if any) ascribed thereto in
the Business Plan or (if none) at the date of the relevant Business
Plan, all expressions of opinion or intention and all forecasts and
projections contained in the Business Plan were arrived at after
careful consideration, were based on reasonable grounds, and the
Business Plan as of its date was not misleading in any material
respect and as at its date did not omit to disclose any matter failure
to disclose which would result in any information contained in the
Business Plan being misleading in any material respect in the context
of this Agreement; and
(6) (RECENT EVENTS): save as disclosed in writing to the Facility Agent so
far as it is aware, reasonable enquiry having been made, since the
date of the material contained in the Information Memorandum and the
Business Plan respectively, nothing has occurred of which it is aware
and which is not in the public domain which, as at the date of this
Agreement, renders any of the material information, expressions of
opinion or intention, projections or conclusions referred to in (d) or
(e) above and contained in the Information Memorandum or the Business
Plan inaccurate or misleading (or in the case of expressions of
opinion, conclusions or projections, other than fair and reasonable)
in any material respect in the context of the Group and the
transaction contemplated by this Agreement.
3. Corporate representations and warranties
The Borrower and each Guarantor hereby represents and warrants to the Agents
and each Bank in respect of itself only that:
(1) (DUE INCORPORATION): it is duly incorporated and has the corporate
power to own its own property and to carry on its own business as is
now being conducted;
(2) (MEMORANDUM AND ARTICLES): the execution, delivery and performance of
each Transaction Document to which it is a party does not violate its
Memorandum and Articles of Association;
(3) (CORPORATE POWER): it has the power, and has taken all corporate and
other action required, to enter into any Transaction Document to which
it is a party and to authorise the execution and delivery thereof and
the performance of its obligations thereunder; and
(4) (FILINGS): it has filed all corporate notices and effected all
registrations with the Australian Securities Commission or similar
office in its jurisdiction of incorporation and in any other
jurisdiction as required by law where failure to file or effect
registration would reasonably be expected to have a Material Adverse
Effect, and all such filings and registrations are current, complete
and accurate in all material respects.
4. Representations and warranties repeated
Each representation and warranty contained in clause 16.1, 16.2 (except for
paragraphs (c), (d), (e) and (f)) and 16.3 shall be repeated on the date of
each Advance with reference to the facts and circumstances then subsisting,
as if made on each such day and each quarter the Borrower will deliver a
Compliance Certificate to the Facility Agent in respect of the same.
5. UNDERTAKINGS
1. Duration and Benefit
The undertakings in this Agreement are given for the benefit of the Agents
and each Bank and shall remain in force from and after the date of this
Agreement and so long as any amount is or may be outstanding under this
Agreement or any Commitment is in force. The Facility Agent (acting at the
direction of the Majority Banks) may waive compliance with any undertaking
contained in this clause 17 either for a specific purpose or
generally by providing the Borrower with a letter in writing specifying the
waiver being granted.
2. Information
(1) (FINANCIAL INFORMATION): The Borrower and each Guarantor will ensure
that there is delivered to the Facility Agent:
(1) as soon as practicable and in any event not later than 120 days
after the close of each of its financial years, a copy of the
consolidated audited balance sheet and profit and loss statement
for STV and CTV and a consolidated balance sheet and profit and
loss statement for the Group for that financial year certified as
correct by an auditor approved by the Facility Agent it being
acknowledged that Xxxxxx Xxxxxxxx is acceptable;
(2) as soon as practicable and in any event not later than 90 days
after each half of each of its financial years, a copy of the
consolidated audited balance sheet and profit and loss statement
for STV, CTV and the Group for that half-year certified as
correct by an auditor approved by the Facility Agent it being
acknowledged that Xxxxxx Xxxxxxxx is acceptable;
(3) within 30 days of the beginning of each month, a copy of the
management accounts of the Group for the preceding month and a
statement of the Total Subscribers (which includes reasonable
details of new installations and monthly churn rate) at the end
of the preceding month;
(4) as soon as practicable and in any event not later than 90 days
after the commencement of its financial year, a copy of the
Group's annual budget and an updated Business Plan; and
(5) promptly such further information regarding its financial
condition and business operations as the Facility Agent from time
to time reasonably requires.
(2) (COMPLIANCE WITH ACCOUNTING STANDARDS): The Borrower and each
Guarantor will ensure that the Accounts (except for management
accounts of the Group given under clause 17.2(a)(iii)) are prepared in
accordance with the relevant Articles of Association, the Corporations
Law, any applicable statute and all accounting principles and
practices generally accepted in Australia consistently applied, or if
not consistently applied, accompanied by details of the
inconsistencies, and shall give a true and fair view of its financial
condition and the result of its operations as at the date, and for the
period ending on the date, to which those Accounts are prepared.
(3) (PROJECTIONS): The Borrower shall ensure that there is delivered to
the Facility Agent in sufficient copies for each of the Banks not
later than the commencement of each financial year, a projected
consolidated balance sheet, profit and loss account, cash flow
statement and rolling monthly cash forecast of the Group for (or in
the case of a balance sheet, as at the end of) such annual financial
year, together with details of the principal assumptions underlying
such projections and a description of the proposed activities of the
Group during such period.
(4) (PROVISION OF FURTHER INFORMATION): The Borrower and each Guarantor
will:
(1) (SPECIAL RESOLUTIONS): deliver to the Facility Agent before the
date of the relevant meeting, a copy of any notice calling an
extraordinary general meeting of any Relevant Person or proposing
any special or extraordinary resolution thereof;
(2) (REPORTS TO MEMBERS ETC.): deliver to the Facility Agent, upon
issue, a copy of all material reports, accounts, notices and
circulars issued by any Relevant Person (in order to comply with
any applicable legislative requirement or its Memorandum or
Articles of Association) to any of its members or to UIH
Australia/Pacific, Inc. or to the holders of any discount notes
(or their trustees) or to the Australian Stock Exchange Limited
or any of its subsidiaries or to any other stock exchange;
(3) (CERTIFICATE OF DEFAULT): as and when reasonably required by the
Facility Agent, furnish the Facility Agent with a statement made
by 2 directors of the Borrower stating to the best knowledge of
such directors whether or not an Event of Default or a Potential
Event of Default has occurred and, if it has, setting out details
thereof and the steps (if any) taken or proposed to be taken to
remedy or cure the same;
(4) (EVIDENCE OF COMPLIANCE): as and when reasonably required by the
Facility Agent, furnish to the Facility Agent proof to the
reasonable satisfaction of the Facility Agent that the
Obligations of the Borrower and each Guarantor have been and
continue to be performed and observed; and
(5) (BUSINESS PLAN): provide a revised Business Plan to the Facility
Agent whenever there is any material change to the timing of the
payments, budgets or assumptions contained therein.
(5) (NOTIFICATION OF CERTAIN EVENTS): The Borrower and each Guarantor will
promptly notify the Facility Agent in writing as soon as it becomes
aware
of the occurrence of:
(1) (EVENT OF DEFAULT): any Event of Default or Potential Event of
Default;
(2) (LITIGATION): any litigation, arbitration, criminal or
administrative proceedings or labour disputes relating to a
Relevant Person or any Relevant Person's property, assets or
revenues that, if decided adversely to the Relevant Person, is
reasonably likely to have a Material Adverse Effect and provide
periodic reports on the status of the litigation;
(3) (SHUTDOWN OF TRANSMISSION): any actual threatened shutdown or
suspension of transmission of the subscriber television service
operated by the Group except shutdown or suspension in the
ordinary course of business;
(4) (MATERIAL ADVERSE EFFECT): any event which would reasonably be
expected to have a Material Adverse Effect;
(5) (AUTHORISED PERSONS): any change in the persons authorised by it
to sign Bills, notices, certificates or other documents in
connection with the Facility, giving specimen signatures of any
new person so authorised and giving to the satisfaction of the
Facility Agent evidence, where requested by the Facility Agent,
of the authority of that person; or
(6) (TRUSTEE): if any Relevant Person becomes or is appointed the
trustee of any trust or comes to hold any property subject to or
impressed by any trust.
(6) (SECURITY PROPERTY): Each Obligor will maintain and protect all of
its Security Property and will not take any action that is reasonably
likely to result in the business of the Group not remaining capable of
operating in a manner that will enable the Borrower to meet its
obligations.
3. Security Value
(1) (RESTRICTION ON ENCUMBRANCES): No Borrower or Guarantor will create,
permit or suffer to exist any Encumbrance over all or any of its
assets (including the Security Property) except for:
(1) the Securities;
(2) liens arising by operation of law in the ordinary course of day-
to-day trading and securing obligations not more than 90 days
old;
(3) a banker's lien or right of set-off or combination arising by
operation of law or practice over property or money deposited
with a banker in the ordinary course of the Relevant Person=s
ordinary business;
(4) contractual set off rights in respect of the Borrower=s
transactional banking facilities and arrangements;
(5) arrangements constituted by retention of title (other than an
Adverse Title Retention Arrangement) in connection with the
acquisition of goods provided the goods are acquired in the
ordinary course of the Relevant Person's business;
(6) Encumbrances arising by operation of law in connection with
rights arising in the ordinary and usual course of its business
in favour of
an unpaid seller, the obligations of the purchaser
not being more than 90 days old; or
(7) Encumbrances created by statute in favour of governmental or
semi-governmental authorities or departments securing the payment
of rates or Taxes except as created because of the failure to
duly pay Taxes.
(2) (TRANSACTIONS SIMILAR TO SECURITY): No Borrower or Guarantor will:
(1) sell or otherwise dispose of any of its assets on terms whereby
such asset is or may be leased to or re-acquired or acquired by
any member of the Group; or
(2) sell or otherwise dispose of any of its receivables on recourse
terms; or
(3) except for assets acquired in the ordinary course of business on
the normal commercial terms of the vendor, purchase any asset on
terms providing for a retention of title by the vendor or on
conditional sale terms or on terms having a like substantive
effect to any of the foregoing, provided that where such assets
are fixed assets, the aggregate capital value of the item or
items acquired or supplied under the same contract (or under a
series of related contracts) will be less than $100,000 or such
other amount as agreed.
(3) (ADVERSE TITLE RETENTION ARRANGEMENTS): No Obligor will enter into or
allow to exist any Adverse Title Retention Arrangement in respect of
any assets delivered to it in the course of its business.
(4) (DISPOSALS): No Borrower or Guarantor will, either in a single
transaction or in a series of transactions whether related or not and
whether voluntarily or involuntarily, sell, transfer, lease or
otherwise dispose of:
(i) any shares in any member of the Group;
(1) all or any other part of its respective assets or undertaking,
other than:
1. disposals in the ordinary course of business of the Group;
2. disposals of surplus, obsolete or redundant plant and
equipment, not required for the efficient operation of its
business, at fair market value;
3. the expenditure of cash in payment for assets or services
acquired at market value in the course of its business;
4. disposals of assets in exchange for other assets, in the
reasonable opinion of the person effecting the disposal,
comparable or superior as to type, value or quality;
5. disposals of assets to any member of the Group;
6. disposals of assets for the purposes of replacement of those
assets; or
7. disposals of assets with the prior written consent of the
Agent, which consent will not be unreasonably withheld or
delayed.
(5) (PARI PASSU RANKING): The Borrower and each Guarantor undertakes that
its obligations under this Agreement rank and will at all times rank
at least pari passu in right and priority of payment and in point of
security (save by reason of and to the extent of its security afforded
thereto by the Securities) with all its other present and future
unsecured and unsubordinated obligations, other than obligations
applicable generally to companies incorporated in its jurisdiction of
incorporation which have priority by operation of law (including,
without prejudice to the generality of the foregoing, in respect of
employees' remuneration, Taxes and like obligations).
4. Liabilities
(1) (RESTRICTION ON GUARANTEES): No Borrower or Guarantor will, without
the prior consent in writing of the Facility Agent, enter into any
bond, guarantee or indemnity in respect of any Financial Liabilities
in favour of any person other than:
(1) pursuant to the Transaction Documents;
(2) a guarantee given to a bank to facilitate the operation of bank
accounts of members of the Group maintained with such Bank on a
net balance basis; or
(3) in respect of any Financial Liabilities permitted under clause
17.4(c).
(2) (FURTHER RESTRICTION ON GUARANTEES): No Borrower or Guarantor will,
without the prior consent in writing of the Facility Agent, enter into
any bond, guarantee or indemnity in respect of any obligation except
Financial Liabilities in favour of any person other than in respect of
a member of the Group. For the avoidance of doubt, it is agreed that
take or pay or minimum payment obligations incurred by a Borrower or a
Guarantor are not bonds, guarantees or indemnities to which this
clause 17.4(b) applies.
(3) (FINANCIAL LIABILITIES): No Borrower or Guarantor will create, incur
or be liable for any Financial Liabilities of itself other than:
(1) under the Transaction Documents; or
(2) indebtedness under transactional banking facilities and
arrangements;
(3) indebtedness under hedging arrangements; or
(4) trade or other similar indebtedness incurred in the ordinary
course of business; or
(5) subordinated loans from the shareholders of CTV and STV or any
person approved by the Facility Agent provided that:
1. such loans are on terms and conditions reasonably approved
by the Facility Agent; and
2. the Security Agent has been granted a limited recourse
mortgage over such loans; and
(6) cash backed performance bond facilities up to an aggregate of
$1,000,000 or such larger amount agreed to by the Facility Agent
acting on directions from the Majority Banks; or
(7) under finance leases in respect of motor vehicles and office
equipment for employees and consultants of the Group; or
(8) under the Debentures; or
(9) any Financial Liability approved by the Facility Agent, and
ensure that no indebtedness referred to in paragraphs (v) and
(viii) above is repaid or repurchased without the prior written
consent of the Agent or until the Facility has been repaid and
cancelled in full.
(4) (OPTIONS): No Borrower or Guarantor will, without the prior consent of
the Facility Agent, enter into or permit to subsist any arrangement
whereby any person:
(1) has the right (whether or not exercisable only on a contingency)
to require any member of the Group to purchase or otherwise
acquire any property or any interest in property; or
(2) has the right (whether or not exercisable only on a contingency)
to require any member of the Group to sell or otherwise dispose
of any property or interest in property, except under the
shareholders agreements for CTV, STV, Chippawa and Xxxxx or those
companies' constituent documents or the CTV Franchise Agreement
and the STV Franchise Agreement. For the absence of doubt, CTV
and STV may, without the prior consent of the Agent, issue
options over shares or debentures in themselves.
(5) (TREASURY TRANSACTIONS): No Borrower or Guarantor will enter into any
interest rate swap, cap, ceiling, collar or floor or any currency
swap, futures, foreign exchange or commodity contract or option
(whether over the counter or exchange traded) or any similar treasury
transaction, other than in accordance with clause 17.12(h), spot
foreign exchange contracts entered into in the ordinary course of
business and transactions entered into for the hedging of actual or
projected exposures arising in the ordinary course of ordinary trading
activities of the Group or to meet its obligations under this
Agreement.
5. Use of Funds
(1) (REPAYMENT OF SHAREHOLDERS' LOANS): No Obligor will repay, and each
Obligor will procure that no amount of shareholders' loans to any
Relevant Person will be repaid prior to any Termination Date without
the prior written consent of the Facility Agent except where the
shareholder receiving the repayment is the Borrower or a Guarantor or
where permitted under clause 17.6;
(2) (LOANS OUT): No Borrower or Guarantor will make any loan to any person
save for:
(1) loans made by one member of the Group to another member of the
Group where the recipient of the loan is the Borrower or a
Guarantor; and
(2) deposits made with banks in the ordinary course of business as
part of its transactional banking facilities and arrangements.
6. Dividends and Share Capital
(1) (RESTRICTION ON DIVIDENDS): CTV and STV undertake not to:
(1) declare, make or pay any dividend, charge, fee or other
distribution (whether in cash or in kind) on or in respect of its
share capital; or
(2) make any payment of interest or any similar payment in respect of
the Debentures or any other subordinated shareholder loans; or
(3) pay any fees under any management agreements or technical
assistance agreements with any Related Body Corporate; at any
time prior to 31 December 2000, and thereafter may do so subject
to paragraph (b) below.exit
(2) (PAYMENT OF DIVIDENDS): After 31 December 2000, STV and CTV may make
payments of the sort described in paragraph (a) above during a Semi-
annual Period provided that:
(1) at the time such payments are to be made no Event of Default or
monetary Potential Event of Default has occurred and is
subsisting; and
(2) where the ratio of Total Debt to Excess Cash Flow (before debt
amortisation) for the preceding 2 Semi-annual Periods (considered
as a single period for the purposes of calculation) is:
1. less than or equal to 3:1: STV and CTV may make payments in
aggregate up to the lesser of:
1) up to 100% of the Excess Cash Flow for the
preceding Semi-annual Period; or
2) up to 100% of the Semi-annual Projected Excess Cash Flow
for the preceding Semi-annual Period;
2. greater than 3:1: STV and CTV may make payments in aggregate
up to the lesser of:
1) up to 50% of the Excess Cash Flow for the preceding
Semi-annual Period; or
2) up to 50% of the Semi-annual Projected Excess Cash Flow
for the preceding Semi-annual Period.
(3) (PREPAYMENTS): The Borrower may make payments of the sort described in
paragraph (a) semi-annually unless the Borrower has elected to make
prepayments pursuant to clause 6.7(a) on an annual basis in accordance
with clause 6.8 in which case the Borrower may only make payments of
the sort described in paragraph (a) annually following the end of each
financial year.
(4) (SHARE CAPITAL): No Borrower or Guarantor will, without the prior
written consent of the Facility Agent, such consent not to be
unreasonably withheld or delayed:
(1) redeem, repurchase, defease, retire or repay any of its share
capital or any Debentures, or resolve to do so; or
(2) issue any share capital to any person unless such share capital
will form part of the Security Property.
7. Intellectual Property Rights
(1) (REGISTRATIONS): The Borrower and each Guarantor will make such
registrations and pay such fees, registration Taxes and similar
amounts as are necessary to keep its registered intellectual property
rights which are material to its business in force and to record its
interest in the intellectual property rights.
(2) (PROTECTION OF RIGHTS): The Borrower and each Guarantor will take such
steps as are necessary and commercially reasonable (including, without
limitation, the institution of legal proceedings) to prevent third
parties infringing those intellectual property rights referred to in
paragraph (a) above and (without prejudice to paragraph (a) above)
take such other steps as are reasonably practicable to maintain and
preserve its interests in those rights.
(3) (NO DISPOSAL): No Borrower or Guarantor will either in a single
transaction or in a series of transactions whether related or not and
whether voluntarily or involuntarily, sell, transfer, lease, license
or otherwise dispose of all or any part of its interest in any of the
intellectual property rights save:
(i) as effected pursuant to any Security; or
(ii) as permitted by the Majority Banks; or
(iii) for any licence arrangements in respect of those rights entered
into with members of the Group for so long as they remain
members of the Group; or
(iv) in the ordinary course of business
(4) (NO ABANDONMENT): No Borrower or Guarantor will permit any
registration of any of the intellectual property rights to be
abandoned, cancelled or lapsed or to be liable to any claim of
abandonment for non-use or otherwise except where such abandonment,
cancellation or lapse would not reasonably be expected to have a
Material Adverse Effect.
8. Insurance
Each Obligor will comply with any insurance obligations in any Securities to
which it is a party (except that the Borrower will only be required to
obtain business interruption insurance within 12 months from the date of
this Agreement).
9. Licences
The Borrower and each Guarantor will, and will ensure that each Relevant
Person will:
(1) (RENEW): on or before the time and in the manner prescribed by the
relevant Statute for each Licence, apply for and procure the renewal
of the Licence and pay or cause to be paid the renewal fees and other
sums required in respect of the Licence or the renewal of the Licence
within the time allowed and in the manner prescribed by the Statute
unless the non-renewal of the Licence would, having regard to all of
the circumstances (including, but not limited to, the non-renewal of
other Licences at any prior time) and taking into account the
cumulative effect of all such previous events and circumstances, not
be reasonably likely to have an adverse effect on the Relevant
Person's business or financial condition or on its ability to perform
its material obligations under any of the Transaction Documents;
(2) (PRODUCTION OF THE LICENCE): upon request, produce to the Facility
Agent each Licence and all receipts for payments in relation to each
Licence unless already delivered to the Security Agent under clause
17.11(f);
(3) (NO CANCELLATION): not do, allow or suffer any act, matter or thing as
a result of which any Licence is or may be surrendered, forfeited,
withdrawn, cancelled, refused or rendered void, or whereby the holder
of any Licence is disqualified permanently or temporarily from
receiving or continuing to hold a Licence except on surrender and
renewals of Licences unless such surrender, forfeiture, withdrawal,
cancellation, refusal, rendering void or disqualification would,
having regard to all of the circumstances (including, but not limited
to, the surrender forfeiture, withdrawal, cancellation, refusal,
rendering void or disqualification of other Licences at any prior
time) and taking into account the cumulative effect of all such
previous events and circumstances, not be reasonably likely to have an
adverse effect on the Relevant Person=s business or financial
condition or on its ability to perform its material obligations under
any of the Transaction Documents;
(4) (NO TRANSFER): not surrender or concur in the transfer of any Licence
to any person other than to an Obligor;
(5) (COMPLY WITH STATUES): comply with all Statutes and all lawful
requirements of every government authority in relation to the Licence
if failure to comply would reasonably be expected to result in a
forfeiture, termination, cancellation, fine, non-renewal or suspension
of such Licence; and
(6) (NOTICE): promptly notify the Facility Agent if any relevant
authority issues any material notice in respect of any Licence or
threatens to suspend or cancel any of the Licences or if it becomes
aware of any enquiry by any relevant authority which could affect any
of the Licences.
10. Material Contracts
(1) (NO CHANGES): The Borrower and each Guarantor will not without the
prior written consent of the Facility Agent (acting on instructions of
the Majority Banks) which consent will not be unreasonably withheld:
(1) make (whether formally or by conduct) any material amendment or
modification to any of the Material Contracts or waive compliance
with any material provision of any of the Material Contracts;
(2) terminate, repudiate, rescind or revoke any Material Contract;
(3) take or fail to take any action which could reasonably be
expected to result in the termination of any of the Material
Contracts; or
(4) assign or novate its interest in any of the Material Contracts or
consent or permit any other party to do the same.
(2) (PROTECTION): The Borrower and each Guarantor will:
(1) comply with the material terms of the Material Contracts;
(2) take all action reasonably available to them to ensure that the
Material Contracts remain in full force and effect; and
(3) provide the Facility Agent with copies of all material notices
served or received under any of the Material Contracts.
11. Security Property
(1) (GOOD REPAIR): Each Obligor will maintain and protect the Security
Property and keep the same in a good and tenantable state of repair
and in good working order and condition, and will on being required so
to do by the Facility Agent promptly rectify every material defect in
the repair and condition thereof.
(2) (OUTGOINGS): Each Obligor will duly and punctually pay when due all
outgoings including rent and Taxes payable by it in respect of the
Security Property.
(3) (NOT TO PREJUDICE): No Obligor will do or (to the extent it is able)
permit any act, omission or thing whereby any part of the Security
Property becomes or could be liable to surrender, forfeiture or
cancellation or becomes prejudiced in any manner or the value of any
Security as a security to the Banks becomes or could be materially
lessened.
(4) (PERMIT INSPECTION): Each Obligor will permit the Facility Agent and
any employee, agent or professional adviser of the Facility Agent, to
enter any land or buildings owned or occupied by the Obligor at all
reasonable times, after reasonable notice, to inspect its condition
and to monitor compliance with the Transaction Documents.
(5) (PROTECTION OF CHARGED PROPERTY): Each Obligor will at the request of
the Facility Agent take or defend all legal proceedings that the
Facility Agent (acting reasonably) considers necessary or desirable
for the preservation, protection or recovery of the Security Property.
(6) (DOCUMENTS OF TITLE AND OTHER SECURITIES): Each Obligor will lodge
with
the Security Agent promptly upon request by the Security Agent:
(1) all certificates, scrip and other indicia of title or interest in
any shares or securities;
(2) all negotiable instruments other than cheques;
(3) all certificates of title to land and all original property
leases;
(4) all Licences unless delivered under clause 17.9(b);
(5) all other documents of title to the Security Property
immediately on request of the same from the Facility Agent.
12. General undertakings
(1) (PERFORM OBLIGATIONS): The Borrower and each Guarantor will perform,
fulfil and observe its Obligations.
(2) (MAINTAIN ALL CONSENTS): The Borrower and each Guarantor will obtain,
renew, maintain and comply with all consents, licences, approvals and
authorisations necessary for the validity and enforceability of the
Transaction Documents and the performance of its obligations hereunder
and thereunder and the effectiveness of each Security as a security
with the stated priority and it will promptly provide copies thereof
to the Facility Agent when these are obtained or renewed.
(3) (CHANGE OF BUSINESS): No Borrower or Guarantor will make or threaten
to make any substantial change in the nature of its respective
business as conducted at the date of this Agreement which would have
a Material Adverse Effect or take any action which would result in the
business not remaining capable of operating in a manner that would not
have a Material Adverse Effect.
(4) (ANY ACTION): No member of the Group will take any action that would
result in the Borrower not remaining capable of operating in a manner
that would enable the Borrower to meet all of its Obligations.
(5) (MERGERS): No Borrower or Guarantor will enter into any merger or
consolidation or make any acquisition of any other person or business
except in respect of the assets or shares of a member of the Group by
the Borrower or a Guarantor.
(6) (ADMINISTRATION AND WINDING-UP ORDERS ETC.): No Borrower or Guarantor
will make or join in making any application to any court for an
administration, winding-up, receivership or other similar order to be
made in relation to any member of the Group, other than in respect of
a solvent winding-up or dissolution of a member of the Group.
(7) (ARM'S-LENGTH TERMS): No Borrower or Guarantor will enter into any
material transaction with any person otherwise than on (or better
than) arm's-length terms and for full market value, and save for
intercompany loans permitted pursuant to clause 17.5(b).
(8) (HEDGING): The Borrower will maintain interest and currency hedging
arrangements with the Banks (and/or their affiliates) and will not
enter into
any hedging arrangements with a financial institution which is not a
Bank (and/or its affiliate) so long as the price and other terms of
the arrangements offered by the Banks (or their affiliates, where
relevant) are fair having regard to the Facility and the market at the
relevant time. The Borrower will from time to time consult with the
Facility Agent to agree satisfactory levels of interest and currency
hedging to be entered into by the Borrower. At no time will the
Borrower hedge more than 100% of its actual exposures in any market.
(9) (CONSTITUTIONAL DOCUMENTS): No Borrower or Guarantor will, save as
required by law, amend or agree to amend the Memorandum or Articles of
Association or other constitutional documents or by-laws of any member
of the Group in any way which would have a Material Adverse Effect.
(10) (RELATED ENTITY TRANSACTIONS): No Borrower or Guarantor will knowingly
enter into any transaction with any shareholder of the Borrower or any
Related Body Corporate of any shareholder of the Borrower without the
prior written consent of the Facility Agent, such consent not to be
unreasonably withheld, unless such transaction is entered into on
ordinary commercial terms in the ordinary course of that company's
business.
(11) (BANK ACCOUNTS): No Borrower or Guarantor will open or maintain any
account with any branch of any bank or other financial institution
providing like services (other than an account maintained pursuant to
the requirements of the Transaction Documents) unless the opening and
maintenance of such account has been approved by the Facility Agent
except for accounts for transactional banking facilities and
arrangements in the ordinary course of business or in connection with
Financial Indebtedness permitted under clause 17.4(c)(ii), (iii) and
(vi).
(12) (COMPLIANCE WITH LAWS): The Borrower and each Guarantor will comply in
all material respects with all applicable laws, rules, regulations and
orders of any governmental authority, whether domestic or foreign
having jurisdiction over it or any of its assets.
(13) (TAXES): The Borrower and each Guarantor will pay all material Taxes
due and payable by it within a reasonable time of the relevant due
date (save to the extent that payment of the same is being contested
in good faith and adequate reserves are being maintained for those
Taxes).
(14) (ACCESS): Upon reasonable notice being given by the Facility Agent,
the Borrower and each Guarantor will procure that any one or more
representatives of the Facility Agent be allowed (at the Facility
Agent's risk and expense) to have access during normal business hours
to the assets, books and records of each Obligor and to inspect the
same without disruption or interference to the
operation of those assets, books and records.
(15) (CASH MANAGEMENT): Promptly after execution of this Agreement, the
Borrower will establish a cash management system acceptable to the
Banks and, subject to the Borrower's agreement, with central
concentration of accounts to be located with a Bank.
(16) (CHIPPAWA AND XXXXX): Each Relevant Person who, from time to time,
controls the legal and/or beneficial ownership of all or any part of
the issued share capital of Chippawa and Xxxxx covenants to use its
reasonable endeavours to ensure that Chippawa and Xxxxx will not,
without the consent of the Facility Agent acting on behalf of the
Banks, engage in any business or conduct any activities otherwise than
in accordance with the shareholders agreements for Chippawa and Xxxxx
including, without limitation, borrowing money, incurring liability or
granting an Encumbrance.
13. FINANCIAL RATIOS
1. Financial Covenants
The Borrower and each Guarantor will ensure that:
(1) (SENIOR DEBT/EBITDA): for the financial year ending 31 December 1999
and each Semi-annual Period thereafter, the ratio of Senior Debt (as
at the last day of the financial year ending 31 December 1999 and as
at each Semi-annual Period thereafter) to EBITDA for the Group for the
preceding 12 month period must be less than or equal to 5.00:1.
(2) (TOTAL DEBT /EBITDA): for the financial year ending 31 December 1999
and each Semi-annual Period thereafter, the ratio of Total Debt (as at
the last day of the financial year ending 31 December 1999 and as at
each Semi-annual Period thereafter) to EBITDA of the Group for the
preceding 12 month period must be less than or equal to 6.00:1.
(3) (EBITDA/INTEREST EXPENSE): for the first financial year ending after
the date of the initial drawdown of the Tranche 3 Facility or the
financial year ending 31 December 1999 (whichever is sooner) and for
each Semi-annual Period thereafter, the ratio of EBITDA of the Group
for the preceding 12 month period to Interest Expense for the
preceding 12 month period must not be less than 2.25:1.
(4) (MINIMUM TOTAL SUBSCRIBERS LEVEL): between 30 June 1998 and 30 June
1999, Total Subscribers must be greater than or equal to 200,000 and
thereafter Total Subscribers must be greater than or equal to 300,000.
(5) (MINIMUM EBITDA): for the financial year ending 31 December 1999
and for each Semi-annual Period thereafter EBITDA of the Group for the
preceding 12 month period must be at least $50,000,000.
2. Compliance Certificate
The Borrower will deliver a Compliance Certificate to the Facility Agent
within 30 days after the end of each quarter (except for Compliance
Certificates given at the end of the financial year which must be given
promptly but in any event not later than 120 days from the end of the
financial year) and at each Utilisation Date for a new Advance.
3. Stamp Duty Certificate
The Borrower will deliver a Stamp Duty Certificate to the Security Agent as
soon as practicable and in any event not later than:
(1) 30 days after its execution of this Agreement;
(2) 120 days after the close of its financial years; and
(3) 90 days after each half of each of its financial years.
4. DEFAULT AND TERMINATION
1. Events of Default
Each of the following events is an Event of Default, whether or not the
cause is beyond the control of the Borrower, the Guarantors or any other
person:
(1) (FAILURE TO PAY): any Obligor does not pay within 2 Business Days of
the due date and in the specified manner, any amount payable by it
under any Transaction Document;
(2) (FAILURE TO COMPLY): the Borrower or Guarantor defaults in fully
performing, observing and fulfilling any provision of any Transaction
Document other than a provision requiring the payment of money as
contemplated by clause 19.1(a), provided that in the case of a default
capable of remedy, that default has not been remedied within 7 days of
the occurrence of being asked by the Facility Agent to remedy the
default (or such longer period agreed by the Facility Agent acting on
instructions from Majority Banks);
(3) (UNTRUE WARRANTY): any representation, warranty or statement made,
repeated or deemed to be made or repeated in any Transaction Document
or in connection with the Facility or any accounts or opinion
furnished in connection with the application for the Facility or under
this Agreement is proved to be untrue in any material respect when
made, repeated or deemed to be made repeated or furnished (as the case
may be) and the representation, warranty
or statement continues to be untrue 7 days after the representation,
warranty or statement is identified;
(4) (BREACH OF UNDERTAKING): any Relevant Person breaches any written
undertaking given at any time to the Banks or any Agent or fails to
comply with any condition imposed by the Banks or any Agent in
agreeing to any matter (including any waiver);
(5) (EVENT OF DEFAULT UNDER TRANSACTION DOCUMENT): any event of default
occurs under any Transaction Document;
(6) (DEFAULT UNDER OTHER TRANSACTIONS):
(1) any Financial Liability greater than $5,000,000 of any Relevant
Person becomes, or becomes capable of being declared,
prematurely due and payable as a result of a default or an event
of default howsoever described thereunder;
(2) any Financial Liability greater than $5,000,000 of any Relevant
Person or any sum payable in respect thereof is not paid when due
and payable;
(3) any Encumbrance securing more than $5,000,000 over any asset of a
Relevant Person becomes capable of being enforced as a result of
a default or an event of default howsoever described thereunder;
(4) any Relevant Person defaults in fully performing, observing and
fulfilling any of the terms, covenants and conditions of any
Encumbrance securing more than $5,000,000 relating to any of its
assets or any Encumbrance relating to any asset of any Relevant
Person otherwise becomes enforceable;
(5) any Encumbrance securing more than $5,000,000 which is a floating
security over any asset of any Relevant Person crystallises into,
or otherwise becomes, a fixed or specific security; or
(6) any Encumbrance securing more than $5,000,000 relating to a
Security Property is varied without the prior written consent of
the Security Agent or comes to secure an aggregate debt or
liability (present or future, actual, contingent or prospective
and on any account whatsoever) that exceeds the amount previously
agreed to by the Security Agent in writing;
(7) (EVENT OF INSOLVENCY): any Event of Insolvency occurs in respect of
any Relevant Person;
(8) (INVESTIGATION): an investigation into the affairs or particular
affairs of a Relevant Person is directed or commenced under the
Corporations Law which would have a Material Adverse Effect;
(9) (CESSATION OF BUSINESS): a Relevant Person ceases, or threatens to
cease, to carry on all or a substantial part of its business or all or
a material part of the Relevant Person's business is destroyed,
confiscated, appropriated or resumed or suffers loss or material
damage unless insured to the satisfaction of the Facility Agent;
(10) (VOID OR VOIDABLE): any Transaction Document is or becomes or is
claimed by any Relevant Person to be void, voidable or unenforceable
in whole or in part;
(11) (ILLEGALITY): at any time it is unlawful for a Relevant Person to
perform any of its material obligations under any Transaction
Document;
(12) (FAILURE TO COMPLY WITH LAWS): any Relevant Person fails to duly and
punctually comply with all statutes, material regulations and other
laws binding on it and such failure would have a Material Adverse
Effect;
(13) (CHANGE IN CONTROL): without the prior written consent of the Facility
Agent, acting on instructions from Majority Banks, Effective Control
of CTV or STV is altered from that subsisting at the date hereof. For
the purpose of this sub-clause "EFFECTIVE CONTROL" means:
(1) the ability to appoint a majority of directors to the Board of
Directors of CTV or STV;
(2) control of more than 49% of the economic interest or value of CTV
or STV is acquired by one or more parties other than United
International Holdings, Inc., or its Related Bodies Corporate; or
(3) control of legal and/or beneficial ownership of more than 49% of
the issued share capital of CTV or STV excluding any part thereof
which carries no right to participate beyond a specified amount
in the distribution of either profit or capital;
(14) (CHANGE IN SHAREHOLDING): divestment by UIH Australia/Pacific, Inc.
of all or any part of its 25% legal and beneficial shareholding in XYZ
Entertainment Pty Limited, without the prior written consent of the
Facility Agent (acting on instructions from Majority Banks), which
consent will not be unreasonably withheld or delayed provided that the
Borrower demonstrates, to the satisfaction of the Facility Agent, that
the Borrower has continuing and acceptable access to programming
satisfactory to the Facility Agent;
(15) (HEDGING): the Borrower xxxxxx more than 100% of its physical
exposures;
(16) (REDUCTION IN CAPITAL): without the prior written consent of the
Facility Agent (acting on instructions from Majority Banks), a
Relevant Person takes action to reduce its share capital (other than
by the redemption of redeemable preference shares);
(17) (RESERVE LIABILITY): without the prior written consent of the Facility
Agent, any meeting of a Relevant Person is convened for the purpose of
considering or passing a special resolution under section 188(2) of
the Corporations Law or any such resolution is proposed at any meeting
of a Relevant Person;
(18) (MATERIAL CONTRACTS): without the prior written consent of the
Facility Agent (acting on instructions from Majority Banks) an event
of default howsoever described occurs and is continuing under any
Material Contract or any Relevant Person fails to comply with any
material term of a Material Contract or any Material Contract is
prematurely terminated or it becomes unlawful for any party to a
Material Contract to perform its obligations and which event of
default or failure to comply or termination or illegality:
(1) remains unremedied 7 days after the Facility Agent has requested
the Borrower to procure that it be remedied; and
(2) would be reasonably likely to have a Material Adverse Effect;
(19) (LOSS OF CONSENTS):
(1) any authorisation, approval, consent, licence (including, without
limitation, the Licences), exemption, filing or registration or
other requirement necessary:
1. to enable any Relevant Person to comply with any of its
material obligations under any of the Transaction Documents
or any of the Material Contracts; or
2. for the conduct of its business; is revoked or refused or
does not remain in full force and effect in accordance with
its terms once granted, or is not renewed prior to its
expiry or is adversely modified and that event has a
Material Adverse Effect;
(2) the authority of any Relevant Person in the conduct of its
business is wholly or substantially curtained by any seizure or
intervention by or on behalf of any authority or the ability of
the Group to conduct its business or to determine the amount it
will charge for its services is limited, restricted or
constrained by any government or governmental agency taking any
action or such government or governmental agency announces its
intention to take such action in relation to any member of the
Group or any of its assets to an extent greater than existing at
the date of this Agreement and such action is reasonably likely
to have a Material Adverse Effect;
(20) (LICENCES): a breach of any of the Licences occurs and such breach is
not remedied within 30 days or such other period as may be specified
in any notice of breach issued by the relevant authority unless such
breach would, having regard to all of the circumstances (including,
but not limited to, the breach of other Licences at any prior time)
and taking into account the cumulative effect of all such previous
events and circumstances, not be reasonably likely to have an adverse
effect on a Relevant Person's business or financial condition or on
its ability to perform its material obligations under any of the
Transaction Documents;
(21) (MATERIAL CHANGE): any event or series of events whether related or
not occurs which has a Material Adverse Effect.
2. Facility Agent's rights upon Event of Default
Subject to clause 19.3, if any Event of Default occurs, at any time
thereafter while such event continues, the Facility Agent may at its option
if so authorised by the Majority Banks and shall upon the direction of the
Majority Banks by written notice to the Borrower:
(1) declare that an Event of Default has occurred; and/or
(2) declare that the Total Commitments and any other obligations of the
Banks or the Agents to the Obligors under the Transaction Documents
shall be cancelled forthwith, whereupon the same shall be so cancelled
and all fees payable in relation to the Total Commitments shall become
immediately due and payable; and/or
(3) declare that the Advances to the Borrower, together with all interest
accrued on those Advances and all other amounts which form part of the
Obligations (as specified in such notice) shall thenceforth be
repayable on demand being made by the Facility Agent (and in the event
of any such demand those Advances, such interest and such other
amounts shall be immediately due and payable); and/or
(4) declare the Advances to the Borrower immediately due and payable,
whereupon they shall become immediately due and payable together with
all interest accrued on those Advances and all other amounts which
form part of the Obligations.
3. Chippawa and Xxxxx
Notwithstanding clause 19.2, if any Event of Default occurs in relation to
Chippawa or Xxxxx under clause 19.1, the Borrower has 14 days in which to
remedy the default.
4. GUARANTEE AND INDEMNITY
1. Guarantee
Each Guarantor hereby irrevocably and unconditionally guarantees to the
Agents and each Bank (or any of them) the due and punctual performance in
full of the Obligations.
2. Indemnity
Each Guarantor as a separate, additional and primary liability hereby
irrevocably and unconditionally agrees to indemnify the Agents and each Bank
and at all times hereafter to keep the Agents and each Bank indemnified
against any failure by the Borrower to duly and punctually perform its
Obligations and Intended Obligations.
3. Performance of Obligations
If the Borrower or a Guarantor or any other person bound to perform or pay
after the expiration of any applicable grace period any Obligation or
Intended Obligation fails to do so in full on the due date therefor, each
Guarantor shall immediately on demand by either of the Agents or a Bank
perform or pay that Obligation or Intended Obligation.
4. Liability as Guarantor and indemnifier
Any reference herein to the obligations or liabilities of a Guarantor shall
be construed as a reference to its obligations or liabilities whether as a
Guarantor or indemnifier hereunder and the use of the expression "GUARANTOR"
herein in relation to a party shall not be construed as diminishing that
party's obligations hereunder as an indemnifier. The provisions of this
clause 20 preserving the liability of a party hereto as a Guarantor apply
mutatis mutandis to any liability that arises whether in regard to that
party's guarantee or indemnity hereunder.
5. Principal obligation
Each obligation of each Guarantor hereunder constitutes a principal, and not
a secondary or ancillary obligation, to the intent that, without limiting in
any way the operation of any of the other provisions of this clause 20, any
limitation on the liability of a Guarantor which would otherwise arise by
reason of its status as a Guarantor, co-Guarantor, indemnifier or co-
indemnifier is hereby negatived.
6. Absolute liability
The liability of each Guarantor hereunder is absolute and is not subject to
the execution of the Transaction Documents (other than this Agreement) or of
any other document by any person or to the performance of any condition
precedent or subsequent, including, without limiting the generality of the
foregoing, as between any Relevant Person and the Facility Agent, the Banks
or any of them or amongst any 2 or more Relevant Persons but is subject to
non-payment or the non-performance of an Obligation or Intended Obligation
by the principal obligor.
7. Unconditional liability
The liability of each Guarantor hereunder shall not be affected by any act,
omission, matter or thing that would otherwise operate in law or in equity
to reduce or release a Guarantor from its liability including, without
limiting the generality of the foregoing, any of the following:
(1) (EVENT OF DEFAULT): the occurrence of any Event of Default;
(2) (DISTRIBUTIONS): the receipt by any Agent or any Bank of any payment,
dividend or distribution under any Insolvency Provision in relation to
the Borrower or any Guarantor;
(3) (INVALIDITY ETC.): any Transaction Document or any payment or other
act the making or doing of which would otherwise have formed part of
the Obligations, or any transaction or document which would otherwise
have given rise to such a payment or other act being or becoming or
being conceded to be illegal, invalid, void, voidable, unenforceable
or irrecoverable in whole or in part for any reason whether past,
present or future, including, without limiting the generality of the
foregoing:
(1) any statute, other law or principle of equity;
(2) any act or omission by any person;
(3) any legal limitation, disability or incapacity of the Borrower or
any Guarantor;
(4) any improper exercise of a power or authority in relation to the
Borrower or any Guarantor;
(5) any right of an Agent or a Bank to enforce or recover such
document, payment or other act or to exercise any remedy or right
it has for the enforcement or recovery of such document, payment
or other act being suspended or postponed by order of any court
or otherwise; or
(6) any Insolvency Provision;
(4) (NEW GUARANTORS): the Agents, Banks or any of them accepting from any
person any guarantee, indemnity or contract of suretyship for the
performance of the whole or any part of the Obligations;
(5) (TIME OR INDULGENCE): the Agents, Banks or any of them agreeing with
the Borrower or any Guarantor to grant time, waiver or other
indulgence or concession to, or to make any composition or compromise
with the Borrower or any Guarantor;
(6) (FORBEARANCE): the Agents, Banks or any of them forbearing or
neglecting to exercise any remedy or right they have or it has for the
enforcement of any Transaction Document or any other obligation or
liability forming part of the Obligations;
(7) (LACHES ETC.): any laches, acquiescence or other act, neglect,
default, omission or mistake by the Agents, Banks or any of them;
(8) (REPUDIATION): the determination, rescission, repudiation or
termination, or the acceptance of any of the foregoing, by the Agents,
Banks, the Borrower or any Guarantor or any of them of any
Transaction Document or any other obligation or liability forming part
of the Obligations;
(9) (VARIATION): any variation (whether by way of insertion, deletion,
modification, novation or otherwise) to any Transaction Document or
any other obligation or liability forming part of the Obligations,
whether or not such variation is substantial or material or imposes an
additional liability upon or is onerous on the Borrower or any
Guarantor, including without limiting the generality of the foregoing,
any increase in the limit or extension of the term for, or the
imposition of any condition or variation in the rate of interest in
respect of advances or financial accommodation to the Borrower;
(10) (RELEASE): the full, partial or conditional release or discharge
(whether before or after any demand has been made on the Guarantor
hereunder) by the Agents, Banks or any of them or by operation of law,
of the Borrower or any Guarantor or any other person from any
Transaction Document or any other obligation or liability forming part
of the Obligations (but without affecting the validity of any release
and discharge of a Guarantor in accordance with this Agreement);
(11) (SECURITY PROPERTY): the release of any property from any Security or
the substitution of any property in place of any other property now or
hereafter the subject of a Security;
(12) (SECURITIES): the Agents, Banks or any of them wasting, destroying,
abandoning, prejudicing or not perfecting, maintaining, preserving,
enforcing or realising or negligently or not bona fide enforcing or
realising any Security;
(13) (LOSS OF SECURITIES): the failure to obtain any Security or the loss
or impairment of any Security by operation of law or otherwise,
whether or not the same is in breach of an express or implied
condition to obtain or preserve such Security or in breach of any
equitable duty which might otherwise have been imposed upon the
Agents, Banks or any of them;
(14) (PRIORITY OF SECURITIES): the Agents, Banks or any of them agreeing to
any order of priorities with respect to any Security or to any
variation of any then previously agreed order of priority;
(15) (ACCOUNTS): the opening or operation of any new account with the
Agents, Banks or any of them by the Borrower or any Guarantor;
(16) (CHANGE OF CONSTITUTION): any change in membership (whether by death
or retirement of an existing member, admission of a new member or
otherwise), in the place of business or in the name of any
partnership, firm or association in which the Borrower or any
Guarantor is a member;
(17) (TRANSFER): the transfer or assignment of the benefit of any
Transaction Document or of any other obligation or liability forming
part of the Obligations;
(18) (DISCLOSURE): any failure by the Agents, Banks or any of them to
disclose to the Guarantor any material or unusual fact, circumstance,
event or thing whatsoever known to, or ought to have been known by, an
Agent or any Bank relating to or affecting the Borrower or any
Guarantor at any time prior to or during the currency of any
Transaction Document, whether prejudicial or not to the rights and
liabilities of the Guarantor and whether or not any Agent or any Bank
was under any duty to disclose such fact, circumstance, event or thing
to the Guarantor or the Borrower; or
(19) (COVENANT NOT TO TAKE ACTION): any Agent or any Bank entering into a
covenant with the Borrower or any Guarantor not to do all or any of
the following, namely, xxx, issue process, sign or execute judgment,
commence proceedings for bankruptcy or liquidation, participate in any
official management, scheme of arrangement or reconstruction, prove in
any bankruptcy or liquidation or do any other act, matter or thing in
respect of the liability of the Borrower or that Guarantor (but
without affecting the validity of any waiver given in accordance with
clause 30.11 of this Agreement).
8. No obligation to gain consent
Nothing herein shall be construed as a requirement that any Guarantor
consent to or be made aware of any event referred to in clause 20.7, any
transaction between the Agents, Banks or any of them and the Borrower or any
one or more Guarantors or any particulars concerning any obligation or
liability that forms part of the Obligations.
9. No marshalling
The Agents and the Banks are under no obligation to marshal or appropriate
in favour of any Guarantor or to exercise, apply, transfer or recover in
favour of any Guarantor any Security or any funds or assets that they or any
of them hold or are entitled to receive or have a claim upon.
10. Void or voidable transactions
If there is upheld, conceded or compromised any claim that a transaction in
any way affecting or relating to the Obligations or the Securities is void,
voidable, unenforceable or irrecoverable the following provisions apply:
(1) (RESTORATION OF OBLIGATIONS): if as a result of or in connection with
entering into the transaction the Obligations have been reduced in any
way, then upon such claim being upheld, conceded or compromised, each
Agent and each Bank will be entitled against each Guarantor to all
such rights as it would have had if the transaction or so much thereof
as is held or conceded to be void or voidable or is foregone on
compromise had not taken place;
(2) (RESTORATION OF SECURITY): if as a result of or in connection with
entering into the transaction, or if as a result of the transaction
being held or conceded to be void or unenforceable, a Bank's rights
under any Security have been surrendered, cancelled or reduced in any
way, then upon such claim being upheld, conceded or compromised, each
Guarantor will take all steps and sign all such documents as may be
necessary or convenient to restore those rights or equivalent rights
to the Bank; and
(3) (COSTS AND EXPENSES): the Guarantors will pay to each Agent and each
Bank all costs and expenses (including legal costs and expenses as
between solicitor and own client) incurred by each Agent and each Bank
in or in connection with any negotiations or proceedings relating to
any such claims.
11. Insolvency
No Guarantor will lodge any proof of debt or similar claim under any
Insolvency Provision in relation to the Borrower or any Guarantor in
competition with any Agent or any Bank. Each Guarantor irrevocably
authorises the Security Agent to prove as its attorney for all money which
it may be entitled to from the Borrower or any Guarantor and to retain and
to carry to a suspense account and appropriate at the discretion of the
Security Agent (but for the benefit of the Banks) any amount so received
until with the aid thereof each Bank has been paid 100 cents in the dollar
in respect of the indebtedness of the Borrower or each Guarantor as the case
may be.
12. No set-off, counterclaim, etc.
No Guarantor will seek to reduce or avoid its liability under a Transaction
Document by raising any defence, set-off or counterclaim available to any
Agent or the Borrower or any other Guarantor.
13. Restriction on Guarantor's dealings
No Guarantor will, without the Facility Agent's prior written consent (which
the Facility Agent may withhold in its discretion):
(1) (NO PROCEEDINGS): institute any proceedings against any other Relevant
Person;
(2) (NO DEMAND): make any demand for, or accept any money in part or
complete satisfaction of, any liability on any account of any other
Relevant Person other than as permitted under this Agreement or for a
liability arising out of the supply of goods and services by the
Guarantor to that Relevant Person in the ordinary course of that
Guarantor's ordinary business at a rate and on terms not exceeding and
not more onerous than usually found for the supply of such goods and
services by parties dealing at arm's length;
(3) (NO ENFORCEMENT OF SECURITIES): enforce any Encumbrance now or
hereafter held by it (either alone or with others) in respect of any
such liability as aforesaid; or
(4) (NO SET-OFF): set-off any money owing by the Guarantor against any
liability owing to the Guarantor by any other Relevant Person or
permit any Relevant Person to set off any money owing by the Relevant
Person against any liability owing to that Relevant Person by the
Guarantor.
14. Release of Relevant Person
Notwithstanding any presumption or principle of law to the contrary, an
Agent may in relation to any Relevant Person enter into a covenant not to
xxx, issue process, sign judgment and execute or commence proceedings for
the bankruptcy or liquidation of any one or more of such resultant judgment
debtors, participate in any official management, scheme of arrangement or
reconstruction, prove in any bankruptcy or liquidation and do any other act,
matter or thing in respect of that Relevant Person's liability without
thereby in any way impairing or reducing the liability of any Guarantor or
other Guarantor (as the case may be) to the Agents, the Banks or any of them
under this Agreement.
15. Conditions precedent
The Facility Agent may waive, dispense with or accept such evidence as in
its absolute discretion it sees fit in relation to the satisfaction of any
condition precedent contained in any Transaction Document or otherwise for
the grant of any advances or financial accommodation to or for the account
of the Borrower, and the Guarantors' liability hereunder shall not be
affected or in any way impaired by any exercise by the Facility Agent of
that discretion.
16. Claim on the Guarantors
(1) An Agent or a Bank shall not make any demand or claim on a Guarantor
under this clause 20 unless the Borrower or a Guarantor has failed in
the due and punctual payment of any of its Obligations.
(2) Neither an Agent nor a Bank shall be required to make any claim or
demand on the Borrower or on any other Relevant Person, or to enforce
any Transaction Document or any other right, power or remedy against
any Relevant Person, before making any demand
or claim upon any Guarantor.
17. Subrogation
No Guarantor will seek the transfer to it of any Security which is subject
to an agreed order of priority in the Security Agent's or any Bank's hands
under any right of subrogation, unless and until it has entered into a deed
under which it undertakes to be bound by the priority affecting such
Security with the other parties to such agreed order of priority.
18. General waiver by Guarantors
The Guarantors expressly waive all rights inconsistent with the provisions
of this Agreement, including all rights as to contribution, indemnity or
subrogation which they might otherwise be entitled to claim and enforce
until the Obligations have been paid in full.
19. Judgment
Any judgment obtained against the Borrower is conclusive as against each
Guarantor.
20. ADDITIONAL GUARANTORS AND SECURITY
1. Additional Guarantors
(1) The Borrower and each Guarantor shall procure that any wholly owned
member of the Group which is not a Guarantor shall become, promptly
after being required by the Facility Agent on the instructions of the
Majority Banks to become, an Additional Guarantor by entering into an
Accession Agreement, subject to any provision of law prohibiting that
person from becoming an Additional Guarantor.
(2) Where any such prohibition as is referred to above exists, the
Borrower and each Guarantor shall use its reasonable endeavours
lawfully to overcome the prohibition, and the Facility Agent may (but
shall not be obliged to) agree with the potential Additional Guarantor
concerned limitations on its liability as an Additional Guarantor
under this Agreement and other amendments (applying only in relation
to that Additional Guarantor) to this Agreement or to the relevant
Accession Agreement.
(3) On each date that an Accession Agreement is entered into the Borrower
shall procure that each of the documents listed in paragraphs 1, 3, 4,
5, 9, 10 and 15 of Schedule 4 (as appropriate) are delivered in
respect of the Additional Guarantor and the Accession Agreement in
form and substance satisfactory to the Facility Agent.
2. Security
(1) The Borrower and each Guarantor shall execute and deliver to the
Security Agent such further or additional Securities in such form and
in relation to such of its assets as the Majority Banks shall
reasonably require subject to any provision of law prohibiting such
person from entering into such Security.
(2) Where any such prohibition as is referred to above exists, the
Borrower and each Guarantor shall use their reasonable endeavours
lawfully to overcome the prohibition, and the Security Agent may (but
shall not be obliged to) agree with the relevant Obligor limitations
on the extent of the security granted by it.
(3) The Obligors shall at their own expense execute and do all such
assurances, acts and things as the Security Agent or the Majority
Banks may reasonably require for perfecting or protecting the security
intended to be afforded by the Securities or for facilitating the
realisation in
accordance with the Securities of all or any part of the assets which
are subject to the Securities and the exercise of all powers,
authorities and discretions vested in the Security Agent under the
Securities or in any receiver of all or any part of those assets and
in particular shall execute all transfers, conveyances, assignments
and releases of that property whether to the Security Agent or to its
nominees and give all notices, orders and directions which the
Security Agent may reasonably think expedient for the purpose of this
clause 21.2(c).
(4) The Obligors shall procure that in relation to each further or
additional Security the relevant Borrower or Guarantor shall do all
things necessary duly to perfect in the jurisdiction of its
incorporation and in the jurisdiction wherein the assets which are the
subject of the further or additional Securities are located, the
security intended to be afforded to the Agents and the Banks under
such further or additional Securities and shall deliver to the
Facility Agent such directors and shareholders resolutions, legal
opinions, notices, certificates or documents of title or other items
as the Facility Agent shall reasonably require.
3. Additional Security
Notwithstanding clause 21.2(a), the Borrower and each Guarantor shall:
(1) procure that any person who becomes a member of the Group and who is a
wholly owned subsidiary of an Obligor shall execute and deliver and do
all things necessary to be joined to the Securities; and
(2) ensure that any Security Property relating to the Securities referred
to in clause 21.3(a) shall be free and clear of any Encumbrances
other than Encumbrances permitted under clause 17.3(a) or the
Securities.
4. RELEASE OF GUARANTORS AND SECURITY
1. Guarantors
Subject to clause 22.3, at the time of completion of any sale or other
disposal to a person or persons outside (and which will remain outside) the
Group of all of the shares in the capital of any Guarantor (or of all of the
shares in any other member of the Group such that any Guarantor ceases as a
result thereof to be a member of the Group) and in such other circumstances
(if any) as all the Banks may from time to time agree in writing, such
Guarantor shall be released from all past, present and future liabilities
(both actual and contingent) hereunder and under the Securities to which it
is a party, and the security provided over its assets under the Securities
will be released.
2. Assets
Subject to clause 22.3, at the time of completion of any sale or other
disposal to a person or persons outside (and which will remain outside) the
Group of any assets owned by an Obligor over which security has been created
by the Securities to which that Obligor is party, those assets shall be
released from such security.
3. Conditions for Release
The release of the guarantees and security referred to in clause 22.1 and
22.2 above shall only occur if:
(1) either:
(i) such disposal will not result directly or indirectly in any
breach of any of the terms of this Agreement; or
(ii) such disposal is being effected at the request of the Majority
Banks in circumstances where any of the security created by the
Securities has become enforceable; or
(iii) such disposal is being effected by enforcement of the
Securities; or
(iv) all Banks agree to the release; and
(2) the Net Proceeds arising out of such disposal will be applied strictly
in accordance with the requirements of this Agreement; and
(3) any assets to be transferred to other members of the Group before
completion of such disposal shall have been so transferred and (if
so required by the Majority Banks) security over such assets shall
have been granted to the Security Agent to its satisfaction; and
(4) the Security Agent shall have executed such documents effecting such
release as shall be reasonably required to achieve such release as
aforesaid (and the Security Agent shall execute such documents at the
expense of the relevant Obligor promptly upon (and only upon) it being
satisfied that the conditions in (a), (b) and (c) above are satisfied
or have been waived by all of the Banks).
4. Release of Group Members
If any person which is a member of the Group shall cease to be such a member
in consequence of the enforcement of any of the Securities or in consequence
of a disposal of the shares therein effected at the request of the Majority
Banks in circumstances where any of the security created by the Securities
has become enforceable, any claim which any Obligor may have against such
person or any of its Subsidiaries in or arising out of this Agreement or any
of the Securities (including, without limitation, any claim by way of
subrogation to the rights of the Agents and the Banks against such person
under the Transaction Documents and any claim by way of contribution or
indemnity) shall be released automatically and immediately upon such person
ceasing to be a member of the Group.
5. INDEMNITY
The Borrower shall on demand by the Facility Agent indemnify each Bank
against any loss, cost or reasonable out of pocket expenses which the Bank
may sustain or incur as a consequence of:
(1) any sum payable by the Borrower hereunder not being paid when due;
(2) the occurrence of any Event of Default or Potential Event of Default;
(3) an Advance requested in a Utilisation Notice not being provided for
any reason including failure to fulfil any condition precedent but
excluding any default by the Bank claiming an indemnity pursuant to
this paragraph; or
(4) the Bank receiving payments of principal other than on the last day of
an Interest Period or when due for any reason, including, without
limitation, prepayment in accordance with a Transaction Document.
Such losses, costs or expenses shall include the amount determined in good
faith by the Bank as being any loss including loss of margin, cost or
expense incurred by reason of the liquidation or re-employment of deposits
or other funds acquired or contracted for by the Bank to fund or
maintain any such Advance or amount.
6. AGENTS
1. Appointment
The Facility Agent and the Security Agent are hereby appointed and
authorised to act on behalf of each Bank with power to enter into each
Transaction Document and to exercise such rights, remedies, powers and
discretions as are specifically delegated to them under the Transaction
Documents together with such rights, remedies, powers and discretions as are
reasonably incidental thereto. The Agents do not have any duties,
obligations or liabilities to the Banks or any of them beyond those
expressly stated in this Agreement and the Transaction Documents.
2. Relationships
(1) Nothing contained in this Agreement, and no action taken by the Banks
pursuant hereto, shall be deemed to constitute the Banks a
partnership, association, joint venture or other entity.
(2) In performing their respective functions and duties under the
Transaction Documents, the Agents shall act solely on behalf of the
Banks and do not assume and shall not be deemed in any circumstances
whatsoever to have assumed any responsibility, liability or
obligation, towards, or relationship of agency or trust with, or for,
the Obligors.
3. Communications
Except where this Agreement otherwise expressly provides, all communications
to be made between a Relevant Person and the Banks or any of them concerning
the Facility shall be made by or through the Facility Agent.
4. Instructions of Majority
Subject to clause 24.5, the Facility Agent must act or refrain from acting
in the exercise of any right or power, or as to any matter not expressly
provided for by
this Agreement, in accordance with the instructions of the Majority Banks
and shall be fully protected in so doing. Any such instructions shall be
binding on all the Banks. In the absence of any such instructions, the
Facility Agent may act or refrain from acting as it sees fit, provided that
it has used reasonable endeavours to obtain such instructions. In no event,
however, shall the Facility Agent be required to take any action which
exposes, or is likely to expose, it to personal liability unless it is
indemnified to its reasonable satisfaction, or which is contrary to this
Agreement or any law, regulation or directive.
5. Amendments
If authorised by the Majority Banks, the Facility Agent or (in the case of
any Security) the Security Agent may (except where any other authority is
required for the same by the express provisions of the Transaction
Documents) grant waivers or consents or (with the agreement of the Borrower)
vary the terms of the Transaction Documents. Any such waiver, consent or
variation so authorised and effected by the relevant Agent shall be binding
on all the Banks and the relevant Agent shall be under no liability
whatsoever in respect of any such waiver, consent or variation, provided
always that, except with the prior written consent of all the Banks and the
Borrower, nothing in this clause shall authorise:
(1) the extension of any Availability Period; or
(2) any variation of the definition "MAJORITY BANKS" in clause 1.1; or
(3) any extension of the date for, or alteration in the amount or currency
of, or waiver of any payment of principal, interest, Utilisation
Margin, fee, commission or any other amount payable under any of the
Transaction Documents; or
(4) any change to any Bank's Commitment; or
(5) any variation of clauses 11.6, 12, 26 or this clause 24.5; or
(6) any variation of any provision wherein (before such variation) it is
provided that certain things may not be done without or may be done
with the consent or approval of all the Banks; or
(7) any waiver or consent in relation to, or variation of the material
provisions of, any Security or clause 20 or 21 of this Agreement; or
(8) (save as otherwise expressly provided for elsewhere in this Agreement
or the relevant Security) any release of the security provided by any
of the Securities over any asset.
6. No need for inquiries
No Relevant Person shall be concerned to inquire as to whether any Agent has
been given any instructions by the Majority Banks or as to the terms of any
instructions so given and may rely on all notices from any Agent without the
need to make further enquiry.
7. Delegation
Each Agent may from time to time delegate the performance of its duties and
obligations as Agent. The Banks and each Relevant Person agree that any
delegate of the duties and obligations of the Agent will be entitled to the
benefit of the provisions of this clause 24 as if it were the Agent and,
without limitation, will not be responsible or liable for any
damage, cost, loss or expense they or any of them may suffer or incur as a
result of or in connection with an act or omission or negligence of the
delegate except to the extent arising as a direct result of the gross
negligence or wilful misconduct of the delegate.
8. Agent not bound to Enquire
The Agents are not obliged to ascertain or enquire:
(1) either initially or on a continuing basis, as to the credit or
financial condition or affairs of the Obligors or any other person; or
(2) as to the performance or observance by the Obligors or any other
person of any of the terms of any Transaction Document; or
(3) whether any Event of Default or Potential Event of Default has
occurred.
9. Default
No Agent shall be obliged to make any inquiry as to whether a Relevant
Person is in breach of, or in default under a Transaction Document or as to
the existence of an Event of Default or Potential Event of Default and shall
not be deemed to have any knowledge of the occurrence of such a breach,
default, Event of Default or Potential Event of Default unless it has
received express written notice thereof from a Bank or a Relevant Person,
stating that such notice is a "NOTICE OF DEFAULT" and describing the breach,
default, Event of Default or Potential Event of Default. In the event that
an Agent receives such a notice, or otherwise acquires actual notice of an
Event of Default or Potential Event of Default it shall promptly notify the
Banks. Subject to its being indemnified to its satisfaction, each Agent
shall take such action with respect to an Event of Default as it shall be
directed to take by the Majority Banks. Until an Agent receives such
directions it may (but shall not be obliged) take or refrain from taking
such action as it shall in its absolute discretion deem advisable in the
best interests of the Banks.
10. Agents as Banks
With respect to its own rights as a Bank (if any), each Agent shall have the
same rights and powers under each Transaction Document as any other Bank and
may exercise the same as though it were not performing the duties and
functions delegated to it as an Agent and the term "BANKS" shall include the
Agents in their individual capacity as a Bank.
11. Agent's dealings
The Agents may, without any liability to account to the Banks or any of
them, accept deposits from, lend money to and generally engage in any kind
of banking or financial, trust or other business with any Relevant
Person as if they were not
Agents and may accept fees and other consideration from any Relevant Person
for services in connection with any Transaction Document or otherwise
without having to account for the same to the Banks.
12. Notices and reports
Promptly after its receipt thereof, the Facility Agent will make available
for examination by each Bank at its address for service of notices and on
request by a Bank provide to the Bank a copy of each report, notice or other
document required under this document or a Transaction Document to be
delivered to the Facility Agent by a Relevant Person.
13. Not responsible
(1) The Agents shall not be responsible to any Bank for failure of a
Relevant Person to perform its obligations under a Transaction
Document, a Relevant Person's financial condition, the completeness or
accuracy of any statements, representations or warranties in a
Transaction Document the Information Memorandum or any document
delivered under or in connection with a Transaction Document, the
valid execution, effectiveness, adequacy, genuineness, validity,
enforceability or admissibility in evidence of a Transaction Document
or any such other document or the failure of any party to perform and
observe its obligations under a Transaction Document.
(2) Each Bank acknowledges that it has not relied on any statement,
opinion, forecast or other representation made by any Agent to induce
it to enter into this Agreement or agree to participate in the
Facility whether made in the Information Memorandum or otherwise and
that it has made and (without reliance on any Agent and based on such
documents as it considers appropriate) it will continue to make its
own appraisal of the affairs and financial condition of each Relevant
Person and its own decisions as to whether or not to take action under
a Transaction Document.
(3) The Agent will not be obliged on a continuing basis or at a particular
time to provide any Bank with any financial or other information with
respect to a Relevant Person other than as provided in clause 24.12.
(4) Without limitation to clause 24.9, the Agent will not be obliged to
keep itself informed as to the performance and observance by the
Relevant Persons of their respective obligations and responsibilities
under this document and the Transaction Documents.
(5) The Agent shall not be liable for any cost, loss, damage or expense of
whatsoever nature suffered or incurred by a Bank or any other person
except to the extent arising as a direct result of the gross
negligence or wilful misconduct of the Agent.
14. Indemnity
Each Bank shall reimburse each Agent rateably in accordance with Commitments
(to the extent that it is not reimbursed by the Borrower) on
demand, for charges and expenses incurred by it in connection with the
negotiation, preparation, execution, stamping and registration of the
Transaction Documents, in contemplation of, or otherwise in connection with,
the enforcement or preservation of any rights under a Transaction Document
or in carrying out its duties as an Agent under the Transaction Documents
including, in each case, the fees and expenses of legal and other
professional advisers. Each Bank shall indemnify each Agent rateably in
accordance with its Commitments against all liability, damage, costs, claims
and expenses suffered or incurred or made against an Agent in connection
with a Transaction Document, the performance or purported performance of its
duties as Agent under a Transaction Document or any action taken or omitted
to be taken by an Agent under (or purportedly under) a Transaction Document
except to the extent, however, that such liability, damage, cost, claim or
expense directly results from the Agent's gross negligence or wilful
misconduct.
15. Observe laws
Each Agent may refrain from doing anything which would or might in its
opinion either be contrary to any relevant law of any relevant jurisdiction
or any official directive or render it liable to any person and may do
anything which in its opinion is necessary to comply with any relevant law
or official directive.
16. Replacement
(1) The Facility Agent (the "RETIRING AGENT") may:
(1) resign at any time by giving not less than 20 Banking Days'
written notice thereof to the Banks and the Borrower; and
(2) be removed from office upon not less than 20 Banking Days' prior
written notice signed by or on behalf of the Majority Banks.
(2) Where the retiring Agent is also the Security Agent, the removal
referred to in paragraph (a)(ii) above pursuant to this clause 24.16
shall also effect the removal of the Security Agent. The Borrower and
the Banks acknowledge that the giving of a notice of removal of the
retiring Agent pursuant to paragraph (a)(ii) above shall be deemed to
be notice in writing to the Borrower and the Banks of the intention of
the Security Agent to retire as trustee pursuant to clause 8.2 of the
Debenture Stock Trust Deed.
(3) Upon receipt of a notice of resignation from the retiring Agent, or
the giving of a notice of removal of the retiring Agent, the Majority
Banks shall have the right, in consultation with the Borrower, to
appoint a successor Facility Agent. In the case only of resignation
of the retiring Agent, if within 20 Banking Days after the giving of a
notice of resignation, no successor Agent has been appointed, the
retiring Agent may, in consultation with the Borrower, appoint a
successor Facility Agent which shall be a reputable and experienced
financier having an office in Sydney.
(4) The resignation or removal of the retiring Agent and the appointment
of the successor Facility Agent shall both become effective upon the
successor Facility Agent notifying the Banks and the Borrower of its
acceptance of such appointment, and specifying for the purposes of
this
Agreement an office in Sydney. Upon giving such notification, the
successor Facility Agent shall succeed to and be vested with all the
rights, obligations, powers and duties and privileges of the Facility
Agent under the Transaction Documents in place of the retiring Agent
and the retiring Agent shall be discharged from its duties and
obligations under the Transaction Documents.
(5) The provisions of this clause 24 shall continue in effect for the
benefit of a retiring Agent in respect of any actions taken or omitted
to be taken while the retiring Agent was acting as an Agent.
17. No authority
Each Bank acknowledges and agrees that it does not have authority on behalf
of the other Banks to waive any right or remedy of the Banks or the Agents
or to modify or vary, or agree to modify or vary, any provision of any
Transaction Document.
18. Security Agent as Trustee
(1) The Security Agent in its capacity as trustee or otherwise shall not
be liable for any failure, omission, or defect in perfecting the
security constituted by the Securities.
(2) The Security Agent in its capacity as trustee or otherwise may accept
without enquiry such title as an Obligor may have to the property over
which security is intended to be created by the Securities.
(3) Each Bank hereby confirms its approval of the Transaction Documents
and any security created pursuant thereto and hereby authorises,
empowers and directs the Security Agent (by itself or by such
person(s) as it may nominate) to execute and enforce the same as
trustee or as otherwise provided (and whether or not expressly in the
Banks' names) on its behalf.
19. SET-OFF
Each Obligor authorises each Bank at any time after an Event of Default has
occurred and is continuing to apply without prior notice any credit balance
(whether or not then due) to which the Obligor is at any time entitled on
any account at any office of the Bank in or towards satisfaction of any sum
then due and unpaid from that Obligor to the Bank and the Obligors each
further authorise each Bank without prior notice at any time after an Event
of Default has occurred and is continuing to set-off any amount owing
(whether present or future, actual, contingent or prospective and on any
account whatsoever) by that Obligor against any liability (whether present,
future, actual, contingent or prospective) of the Obligor hereunder or on
any other account whatsoever. No Bank shall be obliged to exercise any of
its rights under this clause, which shall be without prejudice and in
addition to any right of set-off, combination of accounts, lien or other
right to which it is at any time otherwise entitled (whether by operation of
law, contract or otherwise). Each Bank shall notify the Facility Agent and
the relevant Obligor forthwith upon its exercise of a right of set-off
involving any Obligor giving full details in relation thereto and the
Facility Agent shall inform the other Banks.
20. PRO RATA SHARING
If at any time the proportion which a Bank ("OVERPAID BANK") has received or
recovered by set-off or otherwise in respect of its portion of any sum due
from an Obligor to the Banks under the Transaction Documents is greater (the
amount of the excess being herein referred to as the "EXCESS AMOUNT") than
the proportion thereof received or recovered by the Bank receiving or
recovering the smallest or no proportion thereof, then:
(1) the Overpaid Bank shall promptly notify the Facility Agent;
(2) the Overpaid Bank shall, within 10 Banking Days of such notification,
pay to the Facility Agent an amount equal to the excess amount;
(3) the Facility Agent shall treat such payment as if it were a payment by
the Obligor on account of the sum owed to the Banks as aforesaid; and
(4) at the option of the Overpaid Bank:
(1) subject to clause 26(f), the liability of the Obligor to the
Overpaid Bank shall be increased (or treated as not having been
reduced); or
(2) the Obligor shall fully indemnify the Overpaid Bank making such
payment for the amount thereof; provided that:
(5) if a Bank has commenced an action or proceeding in any court to
recover sums owing to it pursuant to this Agreement or a Transaction
Document and as a result thereof, or in connection therewith, has
received an excess amount, the Bank shall not be required to share any
portion of such excess amount with a Bank which was notified of such
legal action or proceeding and which had the legal right to, but did
not, join such action or proceeding or commence and diligently
prosecute a separate action or proceeding to enforce its rights in the
same or another court; and
(6) if all or a portion of the relevant receipt or payment by or to an
Overpaid Bank is thereafter rescinded or must otherwise be restored to
an Obligor, the Banks shall repay to the Facility Agent for the
account of the Overpaid Bank such amount as shall be necessary to
ensure that (subject to clause 26(e)) all the Banks share rateably in
the amount of the receipt or payment retained by the Overpaid Bank and
the provisions of clause 26(c) and (d) shall apply only to the
retained amount.
21. EXPENSES AND STAMP DUTIES
1. Expenses
The Borrower on demand by the Facility Agent will pay to or at the direction
of the Facility Agent all reasonable out of pocket expenses including legal
fees, costs and disbursements (on a solicitor/own client basis) assessed
without the necessity of taxation, incurred or payable by the Facility Agent
or the Security
Agent (except that the Borrower will only be liable to pay the legal fees
and disbursements of one firm acting for the Agent and Banks and is not
liable to pay any legal fees, costs and expenses incurred by any Banks
instructing separate legal counsel) in connection with:
(1) the preparation and negotiation of the Transaction Documents and the
Securities and any subsequent consent, agreement, approval or waiver
thereunder or amendment thereto;
(2) the execution of the Transaction Documents and the Securities and any
subsequent consent, agreement, approval or waiver thereunder or
amendment thereto;
(3) the enforcement, attempted enforcement or the preservation of any
rights under the Transaction Documents and the Securities including,
without limitation, any expenses incurred in the evaluation of any
matter of material concern to the Facility Agent or the Security
Agent;
(4) the obtaining of persons to participate in the Facility as Banks
(including, without limitation, advertising, accommodation, travelling
and out-of-pocket expenses); and
(5) the carrying out by the Agents (or any delegate of the Agents) of any
of their duties under the Transaction Documents.
2. Stamp duties
(1) (PAYMENT OF ALL DUTIES): The Borrower must pay all stamp, loan
transaction, registration and similar Taxes, including fines and
penalties, financial institutions duty and debits tax which may be
payable to or required to be paid by any appropriate authority or
determined to be payable in connection with the execution, delivery,
performance or enforcement of the Transaction Documents or any
payment, receipt or other transaction contemplated by them.
(2) (INDEMNITY): The Borrower will indemnify and keep indemnified the
Agents and each Bank against any loss or liability incurred or
suffered by it as a result of the delay or failure by the Borrower to
pay such Taxes.
3. ASSIGNMENTS AND CONFIDENTIALITY
1. Successors and assigns
This Agreement is binding on and enures to the benefit of each party hereto
and its respective successors and permitted assigns.
2. Assignments by the Borrower
The Borrower cannot assign any of its rights under any Transaction Document
without the prior written consent of the Facility Agent acting with the
approval of all the Banks.
3. Banks
A Bank may assign all or any of its rights or transfer all or any of its
rights and obligations under the Transaction Documents to another bank or
financial institution at any time if:
(1) it has first consulted with the Borrower regarding the identity of the
new Bank;
(2) any necessary prior authorisation from any relevant governmental
authority or department is obtained;
(3) in the case of an assignment of rights only, the Facility Agent has
received notice of the assignment under which the assignee irrevocably
authorises the assignor to act as the assignee's agent with full power
and authority to exercise the rights assigned and to receive (and give
valid receipts for) all money payable under the Transaction Documents
in respect of those rights;
(4) in the case of a transfer of rights and obligations, such transfer is
effected by a substitution in accordance with clause 28.4;
(5) in the case of an assignment or transfer of part of its rights and
obligations, the Bank assigns or transfer a pro-rata share of each
Facility; and
(6) it receives the prior consent of the Facility Agent, which consent
will not be unreasonably withheld or delayed.
4. Substitution
(1) If a Bank wishes to transfer all or any of its rights and obligations
under the Transaction Documents to a bank or financial institution, it
and the proposed transferee shall in Canberra or outside Australia
execute and deliver to the Facility Agent 4 counterparts of the
Substitution Certificate.
(2) On receipt of a Substitution Certificate the Facility Agent shall (if
it is satisfied that the substitution complies with clause 28.3)
promptly:
(1) notify the Borrower and each other Bank;
(2) countersign in Canberra or outside Australia the counterparts on
behalf of all other parties to this Agreement;
(3) enter the transfer in a register kept by it (which shall be
conclusive); and
(4) retain one counterpart and deliver one counterpart to each of the
relevant transferor and transferee and to the Borrower.
(3) On any such certificate being countersigned by the Facility Agent the
transferor shall be relieved of its obligations to the extent and from
the date specified in such certificate and the transferee shall be
bound by the Transaction Documents to the extent and from the date
stated in the certificate.
(4) Each other party to this Agreement irrevocably authorises the Facility
Agent to sign each such certificate on its behalf and acknowledges
that:
(1) upon such a certificate being signed by the Facility Agent it
shall be deemed for all purposes to have consented to the
transfer of obligations provided for in the certificate; and
(2) it will continue to be bound by the provisions of the Transaction
Documents accordingly.
(5) Unless the Facility Agent otherwise agrees, no transfer of a Bank's
obligations may be effected while any Utilisation Notice is current.
5. Increased Costs and Illegality
If any change in lending office of any Bank or assignment or substitution of
or with respect to all or any part of the rights or obligations of a Bank
under this Agreement pursuant to clause 28.3 or 28.4 is made which results
(or would but for this clause result) at the time thereof in amounts
-------------------
becoming payable under clauses 12.2 or 14.l, then the assignee or transferee
(or, in the case of a change in lending office, the Bank) shall be entitled
to receive such amounts only to the extent that the assignor or transferor
would have been so entitled had there been no such assignment, transfer or
change in lending office. Nothing in this clause will affect the rights of
an assignee or transferee under clauses 12.2 or 14.1 in relation to amounts
which may become payable after the time of assignment or transfer. No such
assignment or transfer shall be made if the assignee or transferee would be
entitled immediately afterwards to give notice under clause 13.
6. Sub-participations
Any Bank shall be entitled freely to enter into any sub-participation or
other arrangement with any third party relating to the Transaction Documents
which does not transfer to that third party any obligation and/or any legal
or equitable interest in any of the rights arising under this Agreement.
7. Stock Certificates
(1) In addition to execution and delivery of the Substitution Certificate
pursuant to clauses 28.3 and 28.4, the proposed transferee will
subscribe for Stock in accordance with the terms of the Debenture
Stock Trust Deed.
(2) The Borrower will issue and register the Stock subscribed for pursuant
to clause 28.7(a) in accordance with the terms of the Debenture Stock
Trust Deed.
(3) Each Bank must consent to the issue of the Stock referred to in clause
28.7(b), as required by the Debenture Stock Trust Deed.
(4) If the transferor Bank has transferred all of its rights and
obligations under the Transaction Documents in accordance with this
clause, it must agree to the cancellation of any Stock held by it.
The Borrower must take all steps necessary to cancel such Stock.
8. Confidentiality
(1) Subject to clause 28.8(b), no Bank shall disclose any confidential or
unpublished information or documents supplied by an Obligor in
connection with the Transaction Documents which are specifically
indicated by the Obligor to be confidential.
(2) A Bank shall be entitled to disclose any confidential information or
documents:
(1) in any proceeding arising out of or in connection with any
Transaction Document to the extent that such disclosure is deemed
by the Bank necessary to protect its interests;
(2) if required to do so under a binding order of any governmental or
semi-governmental authority or department or any procedure for
discovery in any proceedings;
(3) if required to do so under any law or any administrative
guideline, directive, request or policy whether or not having the
force of law and, if not having the force of law, the observance
of which is in accordance with the practice of responsible
bankers or financial institutions;
(4) otherwise as required or permitted by any Transaction Document;
(5) to its legal advisers and its consultants as long as it advises
them of the confidential nature of the information or documents
or that nature is clear from the circumstances of the disclosure;
(6) to a proposed assignee or transferee or sub-participant with the
prior written consent of the Borrower which consent shall not
unreasonably be withheld or delayed and will be deemed to have
been given if not refused within 15 Banking Days of a request
therefor;
(ii) relating to its level of exposure to any Obligor under any
Hedging Agreement or on any other account, to any Agent or any
other Bank; or
(7) with the prior written consent of the Borrower.
(3) This clause 28.8 shall survive the termination of this Agreement.
9. GOVERNING LAW AND JURISDICTION
1. Governing law
This Agreement is governed by and construed in accordance with the laws
applying in New South Wales.
2. Jurisdiction
(1) (ACCEPTANCE OF JURISDICTION): Each of the Obligors irrevocably submits
to and accepts, generally and unconditionally, the non-exclusive
jurisdiction of the courts and appellate courts of New South Wales
with respect to any legal action or proceedings which may be brought
at any time relating in any way to any Transaction Document.
(2) (NO OBJECTION TO INCONVENIENT FORUM): Each of the Obligors irrevocably
waives any objection it may now or in the future have to
the venue of any action or proceedings relating to a Transaction
Document including any objection it may now or in the future have that
any such action or proceeding has been brought in an inconvenient
forum.
3. MISCELLANEOUS
1. Certificate of Agent
A certificate in writing signed by an officer of the Facility Agent
certifying the amount payable by an Obligor hereunder or stating any other
act, matter or thing relating to any Transaction Document is prima facie and
binding on each Obligor in the absence of manifest error on the face of the
certificate.
2. Notices
Any notice or other communication which must be given, served or made under
or in connection with any Transaction Document:
(1) must be in writing in order to be valid;
(2) is sufficient if executed by the party giving, serving or making the
same or on its behalf by any attorney, director, secretary, other duly
authorised officer or solicitor of such party;
(3) will be deemed to have been duly given, served or made in relation to
a person if it is delivered or posted by prepaid post to the address,
or sent by facsimile to the number of that person set out herein (or
at such other address or number as is notified in writing by that
person to the other parties from time to time); and
(4) will be deemed to be given, served or made:
(1) (in the case of prepaid post) on the fifth day after the date of
posting;
(2) (in the case of facsimile) on receipt of a transmission report
confirming successful transmission; and
(3) (in the case of delivery by hand) on delivery.
3. Continuing obligation
Each Transaction Document constitutes a continuing obligation regardless of
any settlement of account, intervening payment, express or implied
revocation or any other matter or thing, until a final discharge thereof has
been given to the Borrower and the Guarantors.
4. Settlement conditional
Any settlement or discharge between the Agents, the Banks and the Borrower
and/or the Guarantors is conditional on any security or payment given or
made by the Borrower, any Guarantor or any other person in relation to the
Obligations
not being avoided, repaid or reduced by virtue of any Insolvency Provision.
If such security or payment is so avoided, repaid or reduced, the Agents and
the Banks are entitled to recover the value or amount of such security or
payment avoided, repaid or reduced from the Borrower and the Guarantors
subsequently as if such settlement or discharge had not occurred.
5. Further assurance
The Borrower and the Guarantors on demand by the Facility Agent or the
Security Agent and at the entire cost and expense of the Borrower and the
Guarantors will perform all such acts and execute all such agreements,
assurances and other documents and instruments as the Facility Agent
reasonably requires to perfect or improve the rights and powers afforded,
created, or intended to be afforded or created, by any Transaction Document.
6. Attorney
Each Obligor hereby irrevocably appoints:
(1) the Agents and each Bank, severally;
(2) each director and secretary and authorised officer from time to time
of each Agent and each Bank; and
(3) any duly appointed agent of the Agents and each Bank, jointly and
severally the attorney of the Obligor, in the Obligor's name and on
the Obligor's behalf, at any time from time to time while an Event of
Default subsists and in such manner as the relevant Agent or the
relevant Bank, as the case may be, in its absolute discretion shall
think fit to:
(4) do all acts necessary or proper to further or fully assure any
Transaction Document or any Xxxx to the Bank; and
(5) do all acts necessary or proper to perfect or improve the rights and
powers afforded or created, or intended to be afforded or created, by
any Transaction Document.
7. Severability of provisions
Any provision of any Transaction Document which is illegal, void or
unenforceable will be ineffective to the extent only of such illegality,
voidness or unenforceability without invalidating the remaining provisions
hereof or thereof.
8. Remedies cumulative
The rights and remedies conferred by this Agreement on the Agents or the
Banks are cumulative and in addition to all other rights or remedies
available to the Agents or the Banks by law or by virtue of any Transaction
Document.
9. Waiver
A failure to exercise or enforce or a delay in exercising or enforcing or
the partial exercise or enforcement of any right, remedy, power or privilege
arising under any Transaction Document by the Agents or the Banks will not
in any way preclude, or operate as a waiver of, any further exercise or
enforcement thereof or the exercise or enforcement of any other right,
remedy, power or privilege thereunder or provided by law.
10. Consents and approvals
Where any act, matter or thing under any Transaction Document depends on the
consent or approval of the Agents or Banks, then unless expressly provided
otherwise therein, that consent or approval may be given or withheld in the
absolute and unfettered discretion of the Agents or Banks (as the case
requires) and may be given subject to such conditions as the Agents or Banks
(as the case requires) thinks fit in its absolute and unfettered discretion.
11. Written waiver, consent and approval
Any waiver, consent or approval given by the Facility Agent under any
Transaction Document will only be effective and only binds the Banks if it
is given in writing, and executed by the Facility Agent or on its behalf by
an officer for the time being of the Facility Agent.
12. Time of essence
Time is of the essence in respect of each Relevant Person's obligations
under the Transaction Documents.
13. Consultants fees
Where the Facility Agent has to make any determination (whether in respect
of an Advance or otherwise), it may employ such consultants or persons as it
thinks fit to assist in making such determination. The Borrower will
reimburse the Facility Agent for all reasonable fees paid by the Facility
Agent to any such consultants or persons upon receipt of a written demand
therefor.
14. Moratorium legislation
To the fullest extent permitted by law, the provisions of all statutes
whether existing now or in the future and whether operating directly or
indirectly to lessen or otherwise to vary or affect in favour of any
Relevant Person any obligation under any Transaction Document, or to delay
or otherwise prevent or prejudicially affect the exercise of any rights or
remedies conferred on an Agent or any Bank under any Transaction Document,
are hereby expressly waived, negatived and excluded.
15. Binding on each signatory
Each Transaction Document is binding on each of the signatories
notwithstanding that any one or more of the named parties hereto does not
execute it, that there is any invalidity, forgery or irregularity touching
its execution or that it is or becomes unenforceable, void or voidable
against a named party.
16. Counterparts
This Agreement may be executed in a number of counterparts, all of which
taken together will be deemed to constitute one and the same document.
17. Proceeds Account
The Security Agent agrees with each of the Obligors that it will not
exercise its rights under clause 5.2 of the document referred to in
paragraph (a) of the definition of "Original Securities" or clause 3.3 of
the documents referred to in paragraphs (b), (c), (d) and (e) of the
definition of "Original Securities" in such a way as to prevent that party
from making a payment which is otherwise permitted by clause 17.5(b)(i) or
clause 17.6.
18. NO REPRESENTATION BY OR RELIANCE ON THE BANK OR AGENT
Each party other than each Bank and each Agent acknowledges that:
(1) no Bank and no Agent has any duty to supply that party with
information in relation to or affecting the other or others of them
prior to the date hereof or during the currency of any Transaction
Document;
(2) it has relied upon that party's own inquiries as to the other or
others of them, the nature and extent of the entire relationship
between them and between them and each Bank and the Agents whether or
not recorded in the Transaction Documents, and the nature and effect
of the Transaction Documents; and
(3) it has not entered into any Transaction Document in reliance on or as
a result of any representation, promise, statement, conduct or
inducement to that party by or on behalf of any Bank or any Agent or
by or on behalf of any Relevant Person otherwise than as
embodied in the Transaction Documents or as notified in writing by
that party to the Banks and the Agents prior to the date hereof.
SCHEDULE 1
ORIGINAL GUARANTORS
NAME
JURISDICTION OF ACN ADDRESS
INCORPORATION IN
AUSTRALIA
CTV Pty Limited Queensland 064 416 128 Xxxxx 00,
000 Xxxx Xxxxxx
Xxxxxx, XXX 0000
STV Pty Limited South Australia 065 312 450 Xxxxx 00,
000 Xxxx Xxxxxx
Xxxxxx, XXX 0000
AUSTAR Services Pty South Australia 068 521 880 Xxxxx 00,
Ltd 000 Xxxx Xxxxxx
Xxxxxx, XXX 0000
AUSTAR Retail Pty Ltd South Australia 068 521 826 Xxxxx 00,
000 Xxxx Xxxxxx
Xxxxxx, XXX 0000
Selectra Pty Ltd South Australia 065 367 526 Xxxxx 00,
000 Xxxx Xxxxxx
Xxxxxx, XXX 0000
Vinatech Pty Ltd South Australia 065 366 314 Xxxxx 00,
000 Xxxx Xxxxxx
Xxxxxx, XXX 0000
Xxxxxxx Pty Ltd South Australia 064 744 869 Xxxxx 00,
000 Xxxx Xxxxxx
Xxxxxx, XXX 0000
Xxxxxxx Pty Ltd New South Wales 065 017 012 Xxxxx 00,
000 Xxxx Xxxxxx
Xxxxxx, XXX 0000
Keansburg Pty Ltd South Australia 064 744 887 Xxxxx 00,
000 Xxxx Xxxxxx
Xxxxxx, XXX 0000
Xxxxxx Pty Ltd South Australia 064 756 190 Xxxxx 00,
000 Xxxx Xxxxxx
Xxxxxx, XXX 0000
NAME JURISDICTION OF ACN ADDRESS
INCORPORATION IN
AUSTRALIA
Maxi-Vu Pty Ltd Victoria 064 795 679 Xxxxx 00,
000 Xxxx Xxxxxx
Xxxxxx, XXX 0000
Palara Vale Pty Ltd South Australia 068 943 500 Xxxxx 00,
000 Xxxx Xxxxxx
Xxxxxx, XXX 0000
Auldana Beach Pty Ltd South Australia 000 000 000 Xxxxx 00,
000 Xxxx Xxxxxx
Xxxxxx, XXX 0000
Grovern Pty Ltd South Australia 068 943 402 Xxxxx 00,
000 Xxxx Xxxxxx
Xxxxxx, XXX 0000
Lystervale Pty Ltd South Australia 068 943 457 Xxxxx 00,
000 Xxxx Xxxxxx
Xxxxxx, XXX 0000
Minorite Pty Ltd South Australia 068 943 484 Xxxxx 00,
000 Xxxx Xxxxxx
Xxxxxx, XXX 0000
Vermint Grove Pty Ltd South Australia 068 943 555 Xxxxx 00,
000 Xxxx Xxxxxx
Xxxxxx, XXX 0000
Kidillia Pty Ltd South Australia 068 943 608 Xxxxx 00,
000 Xxxx Xxxxxx
Xxxxxx, XXX 0000
Carryton Pty Ltd South Australia 068 943 573 Xxxxx 00,
000 Xxxx Xxxxxx
Xxxxxx, XXX 0000
Dovevale Pty Ltd South Australia 068 943 591 Xxxxx 00,
000 Xxxx Xxxxxx
Xxxxxx, XXX 0000
XTEK Bay Pty Ltd South Australia 068 943 564 Xxxxx 00,
000 Xxxx Xxxxxx
Xxxxxx, XXX 0000
Windytide Pty Ltd South Australia 068 943 546 Xxxxx 00,
000 Xxxx Xxxxxx
Xxxxxx, XXX 0000
SCHEDULE 2
BANKS
NAME & TRANCHE 1 TRANCHE 2 TRANCHE 3 TOTAL
ADDRESS COMMITMENT COMMITMENT COMMITMENT COMMITMENT
The Chase $32,500,000 $39,000,000 $58,500,000 $130,000,000
Manhattan Bank,
ARBN 074 112 011
of Xxxxx 00, XXX
Xxxxxx, 000 Xxxxxx
Xxxxxx, Xxxxxx,
Xxx Xxxxx Xxxxx
Toronto Dominion $12,500,000 $15,000,000 $22,500,000 $50,000,000
Australia Limited,
ACN 004 958 020
of Xxxxx 00, 000
Xxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxx
Paribas Group $ 5,000,000 $ 6,000,000 $ 9,000,000 $20,000,000
Australia Limited,
ACN 002 174 843
of Xxxxx 00, 0
Xxxxxx Xxxxxx,
Xxxxxx, Xxx Xxxxx
Xxxxx
----------------------------------------------------------------------------------------------
TOTAL $50,000,000 $60,000,000 $90,000,000 $200,000,000
SCHEDULE 3
LICENCES
MMDS LICENCES
LICENSEE REGION NO. OF LICENCE NOS. DATE OF DATE OF
CHANNELS ISSUE EXPIRY
Auldana Beach Pty Ltd (Mackay/ 19 1131138 to 04/06/1996 03/06/01
Rockhampton) 1131156 (inc)
Palara Vale Pty Ltd SE Qld 19 1130608 to 12/07/1996 11/07/01
1130623 (inc)
1130625, 1130626,
11306243 (typo)
Xxxxxx Pty Ltd Gold Coast 12 500846 to 12/08/94 11/08/99
500857
(licence no. 500852
printed on
30/08/1995 is
missing - there are
two 500853)
Xxxxxxx Pty Ltd Gold Coast 5 500814 to 12/08/1994 11/08/99
500818 (inc)
Xxxxxxx Pty Ltd Sanctuary Cove 19 1131382 26/07/1996 25/07/01
1131384 to
1131401 (inc)
XTEK Pty Ltd Broken Hill 19 1131189 to 17/06/1996 16/06/01
1131207 (inc)
Vermint Grove Pty Ltd Regional Victoria 19 1302277 22/01/1996 21/01/01
. Bendigo 1302278
. Shepparton 1302279
. Ballarat 1302275
. Albury 1302273
. Mt Baw Baw 1302270
. Koroit 1302268
. Mildura 1302266
. Brownhill 1302265
Lookout 1302264
1302263
1302262
1302248
1130353
1130428
1130427
1130426
1130425
1130424
Maxi-Vu Pty Ltd Broome 19 1131811 to 16/10/1996 15/10/01
1131829
LICENSEE REGION NO. OF LICENCE NOS. DATE OF DATE OF
CHANNELS ISSUE EXPIRY
Carnarvon 19 1131811 to 16/10/1996 15/10/01
1131829 (inc)
Karratha 19 1131811 to 16/10/1996 15/10/01
1131829 (inc)
Xxxxxx 19 1131811 to 16/10/96 15/10/01
1131829 (inc)
Port Hedland 11 1131825 to 16/10/96 15/10/01
1131829 (inc)
1131815
1131816
1131818
1131820
1131822
1131824
Minorite Pty Ltd Xxxxx Springs 16 1130476 to 27/02/1996 26/02/01
1134080 (inc)
1130482,
1130484 to
1130493 (inc)
Keansburg Pty Ltd Cairns 11 500871 to 12/08/1994 11/08/99
500881
Lystervale Pty Ltd Mt Isa 19 1130326 to 21/12/1995 20/12/00
1130334 (inc)
1130347,
1130340 to
1130345 (inc)
1130337,
1130338,
1130335
Grovern Pty Ltd Townsville 19 1130222 to 15/11/1195 14/11/00
1130240 (inc)
Kidillia Pty Ltd Xxxxxxx Xxxx Xxxx 0000000 to 26/03/1996 25/03/01
1130649 (inc)
Xxxxxxx Pty Ltd Port Xxxxxxx 19 1131049
1131051
1131052
1131055
LICENSEE
REGION NO. OF LICENCE NOS. DATE OF DATE OF
CHANNELS ISSUE EXPIRY
1131057 27/05/1996 26/05/01
1131059
1131061
1131063
1131065
1131066
1131069
1131070
1131072
1131074
1131076
1131078
1131081
1131083
1131084
Xxxxxxx Pty Ltd Xxxxxx 0 000000 to 500866 12/08/1994 11/08/99
(inc)
Carryton Pty Ltd Renmark/Loxton 19 1131157 to 04/06/96 03/06/01
1131175 (inc)
Dovevale Pty Ltd Mt Gambier 19 1131050 24/05/96 23/05/01
1131053
1131054
1131056
1131058
1131060
1131062
1131064
1131067
1131068
1131071
1131073
1131075
1131077
1131079
1131080
1131082
1131085
1131086
BROADCAST LICENCES
COMPANY NO. OF LICENCES TYPE OF LICENCE
Selectra Pty Ltd 50 s.96BSA (non-satellite)
Vinatech Pty Ltd 50 s.96 BSA (non-satellite)
SCHEDULE 4
DOCUMENTARY CONDITIONS PRECEDENT
1. A certified copy of the Memorandum and Articles of Association of each
Obligor, Salstel Holdings and Salstel Investments.
2. A certified copy of a resolution or resolutions of the directors of the
Borrower approving the Facility and authorising:
(a) the execution by the Borrower of this Agreement and of any of the
Original Securities to be given by the Borrower; and
(b) a person or persons to sign Bills, notices, certificates or other
documents in connection with the Facility on behalf of the Borrower.
3. A certified copy of a resolution or resolutions of each Original Guarantor
approving the giving of the guarantee by that Guarantor in this Agreement
and authorising:
(a) the execution by the Original Guarantor of this Agreement and of any
of the Original Securities to be given by that Original Guarantor; and
(b) a person or persons to sign Bills, notices, certificates or other
documents in connection with the Facility on behalf of the Guarantor.
4. Evidence, satisfactory to the Facility Agent, that the powers of attorney
(if any) used to execute any of the Transaction Documents on behalf of any
Relevant Person have been or will be registered.
5. A certified copy of the signatures of all persons authorised to sign on
behalf of the Borrower and the Original Guarantors.
6. A copy of the Certificate of Registration issued by the Australian
Securities Commission in relation to each of the Original Securities.
7. Replies to all requisitions of the Facility Agent and its solicitors
relating to the Facility and the Original Securities.
8. A certified copy or originals of each of the Material Contracts duly
executed and stamped (if required).
9. A certified copy of (and of all applications for) any and all approvals,
consents, licences, exemptions and other requirements (whether governmental
requirements or otherwise) required for each Obligor to
carry on its business or to enter into or perform its obligations under the
Transaction Documents.
10. An opinion, addressed to the Facility Agent and the Banks, of the legal
advisers to the Facility Agent and the Banks as to such matters relating to
the Obligors and/or the Transaction Documents as the Facility Agent may
require.
11. An opinion, addressed to the Facility Agent on behalf of the Banks as to the
enforceability of the Transaction Documents to which UIH Austar, Inc. is a
party against UIH Austar, Inc..
12. The Business Plan.
13. Evidence, satisfactory to the Agent, that each Bank has subscribed for and
the Borrower has issued each Bank with Stock (as defined in the Debenture
Stock Trust Deed).
14. Evidence that all insurance policies are in existence as required under this
Agreement and any of the Securities and where applicable, that the Security
Agent's interest has been noted thereon and if requested certified copies of
each such insurance policy.
15. Acknowledgements that any notices of any increases in the limits of the
Securities listed in paragraphs (a) and (b) of the definition of Original
Securities have been received.
16. Duly signed registration or filings forms (if any) required to be completed
in relation to the increases referred to in paragraph 15.
17. A certificate in respect of Part 3.2A of the Corporations Law from the
Borrower and each other member of the Group for the purposes of Part 3.2A of
the Corporations Law.
For the purposes of this Schedule, "CERTIFIED" means a copy certified to be such
by a director, secretary or officer of the Borrower.
SCHEDULE 5
FORMS OF UTILISATION NOTICE
To: Chase Securities Australia Limited
From: AUSTAR Entertainment Pty. Limited Date: [ ]
UTILISATION NOTICE (ADVANCE).
FACILITY AGREEMENT DATED [ ]
Dear Sirs
We hereby give you notice pursuant to clause 4.1 of the above Facility Agreement
that we require an Advance to be made to us under the Facility Agreement, as
follows
(a) Utilisation Date: [ ]
(b) Amount: [ ]
(c) Interest Period: [ ]
(d) Tranche Designation: [ ]
(e) Purpose: [ ]
Payment instructions with respect to the proceeds of the Advance are as follows:
[ ]
Terms used in this Utilisation Notice and defined in the Facility Agreement have
the same meaning in this Utilisation Notice as in the Facility Agreement.
We confirm that no Event of Default or Potential Event of Default has occurred
and is continuing or would result from the borrowing of the proposed Advance.
We also confirm that the representations, warranties and undertakings in clauses
16 (except for clauses 16.2(c), (d), (e) and (f)) and 17 of the Facility
Agreement have been complied with and the statements in those clauses are
correct as at the date of this Utilisation Notice.
Yours faithfully
[Authorised Signatory]
For and on behalf of AUSTAR Entertainment Pty. Limited
SCHEDULE 6
ACCESSION AGREEMENT
THIS ACCESSION AGREEMENT is dated the [ ] day of , 19
and made BETWEEN [ ] (the "ADDITIONAL GUARANTOR"), AUSTAR ENTERTAINMENT
PTY. LIMITED (the "BORROWER"), [ ] (each an "EXISTING
GUARANTOR"), Chase Securities Australia Limited in its capacity as Facility
Agent under the Facility Agreement referred to in Recital (A) hereof and on
behalf of the Banks parties to and defined as such in such Facility Agreement,
and [ ] in its capacity as Security Agent.
WHEREAS:
(A) By and upon and subject to the terms of a facility agreement (the "FACILITY
AGREEMENT", which term includes any supplements and amendments thereto which
may at any time be made in relation thereto and also any Substitution
Certificates and Accession Agreements) dated [ ] made between the
Borrower and Guarantors as therein defined, the several banks parties
thereto as Banks and Chase Securities Australia Limited as Facility Agent
and Chase Securities Australia Limited as Security Agent, a revolving
working capital facility, an amortising cash advance facility and an
amortising term loan facility were made available to the Borrower (as
defined in the Facility Agreement).
(B) Each of the entities expressed to be party hereto, whether directly or
through signature hereof by the Facility Agent or the Borrower on its
behalf, is a party to the Facility Agreement either by having been an
original party thereto or pursuant to an Accession Agreement or a
Substitution Certificate to which it is party or otherwise.
(C) The Additional Guarantor wishes to become party to the Facility Agreement as
a Guarantor pursuant to the procedure established in clause 21 of the
Facility Agreement by the execution of this Accession Agreement.
(D) It is the intention of the parties that this Accession Agreement shall take
effect as a deed.
NOW IT IS HEREBY AGREED as follows:
1. DEFINITIONS
Terms used herein which are defined in or to which a meaning or construction
is assigned by or in the Facility Agreement shall, unless otherwise defined
herein, have the same meaning and construction herein as therein.
2. AGREEMENTS, CONFIRMATIONS AND REPRESENTATIONS
(a) The Additional Guarantor hereby:
(i) confirms that it has received a copy of the Facility Agreement
together with such other documents and information as it has
required in connection herewith and therewith;
(ii) agrees to become, with effect from the date of this Accession
Agreement, a Guarantor under the Facility Agreement, agrees to
be bound in that capacity with effect from such date by the
terms of the Facility Agreement and undertakes accordingly to
perform its obligations as a Guarantor thereunder;
(iii) confirms the accuracy of the information set out under its name
at the end of this Accession Agreement;
(iv) represents and warrants as an Obligor to the Banks and the
Agents in the terms of clause 16 (other than paragraphs
16.2(c), (d), (e) and (f)) of the Facility Agreement by
reference to the facts and circumstances existing at the date
hereof; and
(v) confirms that it has not relied on the Banks or the Agents to
assess or inform it as to the legality, validity, effect or
enforceability of the Facility Agreement or any other document
referred to therein or the accuracy or completeness of any such
information as is referred to in paragraph (i) above or the
creditworthiness, affairs, condition or status of any of the
parties to the Facility Agreement, or any such other document.
(b) The Borrower, the Existing Guarantor(s), the Agents and the Banks
hereby agree amongst themselves and with the Additional Guarantor that
the Additional Guarantor shall become party to the Facility Agreement
with effect from the date of this Accession Agreement.
3. LAW
This Accession Agreement shall be governed by and construed in accordance
with the laws applying in New South Wales.
IN WITNESS WHEREOF the parties hereto have caused this Accession Agreement to be
duly executed on the date first written above.
SIGNATURES
ADDITIONAL GUARANTOR:
[ ]
BORROWER:
AUSTAR ENTERTAINMENT PTY. LIMITED
for itself and as agent for and on behalf of the Existing Guarantors
By:
AGENT:
CHASE SECURITIES AUSTRALIA LIMITED for itself and as Facility Agent and for and
on behalf of the Security Agent and the Banks.
By:
SCHEDULE 7
SUBSTITUTION CERTIFICATE
SUBSTITUTION CERTIFICATE made the day of
BY ("EXISTING BANK");
AND ("NEW BANK");
AND Chase Securities Australia Limited for itself and as agent for each
party under the Facility Agreement ("FACILITY AGENT").
WHEREAS
A. The Existing Bank and the New Bank presently have the Commitments specified
in Schedule 1 of this Certificate.
B. The New Bank wishes to assume [some/all] of the Existing Bank's Commitments
under the Facility Agreement.
C. After the Substitution Date the Existing Bank and the New Bank will have the
Commitments specified in the Schedule.
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Certificate:
"BORROWER" means AUSTAR Entertainment Pty. Limited, ACN 068 104 530.
"DEBENTURE STOCK TRUST DEED" means the deed so entitled dated 2 April 1997
entered into by (amongst others) the Borrower and the Facility Agent.
"FACILITY AGREEMENT" means the agreement dated [ ] between
(amongst others) the Borrower and the Facility Agent together with and as
supplemented by all Accession Agreements and Substitution Certificates.
"STOCK" means debenture stock issued pursuant to the Debenture Stock Trust
Deed.
"SUBSTITUTED COMMITMENTS" means the Commitments specified as such in
Schedule 1 of this Certificate.
"SUBSTITUTED OBLIGATIONS" means the obligations and responsibilities
identical to the obligations and responsibilities under the Transaction
Documents of the Existing Bank in relation to the Substituted Commitments.
"SUBSTITUTED PORTION" means the amount of each outstanding Advance specified
as such in Schedule 2 of this Certificate.
"SUBSTITUTED RIGHTS" means rights, remedies and powers identical to the
rights, remedies and powers under the Transaction Documents of the Existing
Bank in relation to the Substituted Commitments and the Substituted Portion.
"SUBSTITUTION DATE" means the later of the date on which this Certificate is
executed on behalf of the Facility Agent or such later date as the parties
hereto may agree in writing.
"TRUST" means the AUSTAR Security Trust constituted by the Debenture Stock
Trust Deed.
1.2 INTERPRETATION
(a) A reference in this Certificate to "IDENTICAL" obligations and
responsibilities or rights, remedies and powers is a reference to the
character of those obligations and responsibilities, rights, remedies
and powers rather than to the identity of the person obliged to
perform them or entitled to them.
(b) Terms defined or given a special meaning in the Facility Agreement
have the same meaning in this Certificate.
1.3 TRANSACTION DOCUMENTS
This Certificate is a Transaction Document.
2. REPRESENTATION
The Existing Bank represents and warrants to the New Bank that as at the
date of this Certificate the Existing Bank's present Commitments under the
Facility Agreement are as shown in Schedule 1 and the Existing Bank's
participation in outstanding Advances is as shown in Schedule 2 of this
Certificate.
3. SUBSTITUTED OBLIGATIONS
3.1 RELEASE FROM FUTURE OBLIGATIONS
The Existing Bank is released from the Substituted Obligations with effect
on and from the Substitution Date. The Existing Bank shall, however, remain
bound by its obligations and responsibilities under the Transaction
Documents which accrue prior to the Substitution Date save as provided
in clause 5 below.
3.2 ASSUMPTION OF OBLIGATIONS
The New Bank undertakes to the Existing Bank and the Agent that it shall
assume the Substituted Obligations on and from the Substitution Date.
4. SUBSTITUTED RIGHTS
The Existing Bank shall no longer be entitled to the Substituted Rights or
the Substituted Portion and the New Bank shall become entitled to the
Substituted Rights and the Substituted Portion, with effect on and from the
Substitution Date.
5. EFFECT ON TRANSACTION DOCUMENTS
The Existing Bank, the New Bank and the Facility Agent agree that with
effect on and from the Substitution Date:
(a) the New Bank and each party to each Transaction Document will assume
obligations and responsibilities towards each other, and have rights,
remedies and powers in relation to each other, determined on the basis
that the obligations and responsibilities of the New Bank are the
Substituted Obligations and the rights, remedies and powers of the New
Bank are the Substituted Rights;
(b) the Existing Bank will be released from its obligations and
responsibilities under each of the Transaction Documents accruing on
and after the Substitution Date to the extent of the Substituted
Obligations and it will cease to be entitled to exercise any rights,
remedies or powers under the Transaction Documents arising on or after
the Substitution Date in respect of the Substituted Rights; and
(c) the New Bank will be deemed a party to each Transaction Document to
which the Existing Bank is a party as a Bank with Commitments equal to
the Substituted Commitments.
6. NO EFFECT ON ACCRUED RIGHTS AND OBLIGATIONS
Save as expressly provided herein this Certificate shall not affect the
Existing Bank's rights, remedies and powers arising, and obligations and
responsibilities accrued, prior to the Substitution Date.
7. LIQUEFYING BILLS
Nothing contained in this Certificate releases, relieves or otherwise
affects the obligations and responsibilities and the rights, remedies and
powers, of the Existing Bank in respect of Bills drawn under clause 9 of the
Facility Agreement. The New Bank will not assume any obligations or
responsibilities, or acquire any rights, remedies or powers, in respect of
such Bills.
8. PAYMENTS
8.1 CONSIDERATION
The Existing Bank and the New Bank shall agree separately between themselves
the amounts (if any) payable from one to the other in relation to the
substitution in respect of principal and accrued interest and fees.
8.2 FACILITY AGENT
On and from the Substitution Date the Facility Agent will make all payments
received by it in respect of the Substituted Commitments, Substituted
Obligations, Substituted Rights and Substituted Portion to the New Bank.
9. INDEPENDENT ASSESSMENT
Without limiting clause 6 of this Certificate, the New Bank agrees that the
provisions of clause 24.13 of the Facility Agreement binds it as if the
reference therein to this "DOCUMENT" included this Certificate and (subject
to any agreement to the contrary between the Existing Bank and New Bank) the
reference therein to the "AGENT" included the Existing Bank.
10. ACKNOWLEDGEMENTS
The New Bank acknowledges that it has received a complete and current copy
of each Transaction Document together with such other documents and
information as it has required in connection therewith.
11. GOVERNING LAW
This Certificate is governed by the laws applying in New South Wales.
12. DEBENTURE STOCK
The New Bank acknowledges that it will not be a beneficiary of the Trust
unless Stock has been issued to it pursuant to the Debenture Stock Trust
Deed. The New Bank will be responsible for applying for Stock and the
Existing Bank will not be liable for any failure of the New Bank to obtain
the benefit of the Securities.
SCHEDULE 1: COMMITMENTS
XXXXXXX 0 XXXXXXX 0 XXXXXXX 0 TOTAL
COMMITMENT COMMITMENT COMMITMENT COMMITMENT
--------------------------------------------------------------------------
Existing Bank's $[ ] $[ ] $[ ] $[ ]
present
Commitments
New Bank's $[ ] $[ ] $[ ] $[ ]
present
Commitments
SUBSTITUTED $[ ] $[ ] $[ ] $[ ]
COMMITMENTS
Existing Bank's $[ ] $[ ] $[ ] $[ ]
Commitments
after
substitution
New Bank's $[ ] $[ ] $[ ] $[ ]
Commitments
after
substitution
SCHEDULE 2: ADVANCES
TOTAL OUTSTANDING EXISTING BANK'S SUBSTITUTED
PARTICIPATION PORTION
-----------------------------------------------------------------------------
Tranche 1 $[ ] $[ ] $[ ]
Advances
Tranche 3 $[ ] $[ ] $[ ]
Advances
SIGNED as an agreement.
[To be signed by Existing Bank, New Bank and Facility Agent]
SCHEDULE 8
NOTICE FROM UIH
[LETTERHEAD OF UIH AUSTRALIA/PACIFIC, INC. APPEARS HERE]
[Date]
The Chase Manhattan Bank
AAP Centre
000 Xxxxxx Xxxxxx
XXXXXX XXX 0000
Attention Mr Xxxxx Xxx
Dear Sir
AUSTAR ENTERTAINMENT PTY LIMITED
We refer to:
(a) the Indenture dated 14 May 1996 between UIH Australia/Pacific, Inc. ("UAP")
and American Bank National Association (the "INDENTURE"); and
(b) the terms and conditions of the syndicated senior term debt facility
arranged by The Chase Manhattan Bank ("CHASE") for AUSTAR Entertainment Pty
Limited ("AUSTAR") dated [ ] (the "SENIOR DEBT TERMS").
Having reviewed the Senior Debt Terms and consulted with our lawyers we confirm
that the provision of a financing for AUSTAR in accordance with the Senior Debt
Terms will not cause a breach of the Indenture. We confirm that UAP has
obtained the necessary waivers, consents or amendments from UAP senior note
holders to permit the dividend restriction referred to in clause 17.6(a) of the
Senior Debt Terms.
We acknowledge that Chase will rely on this letter in providing finance to
AUSTAR and confirm that this letter may also be disclosed to and relied on by
prospective syndicate banks which participate in the proposed financing for
AUSTAR.
Signed on behalf of UAP by [ ] with the authority of the directors of UAP.
SCHEDULE 9
COMPLIANCE CERTIFICATE
TO: Chase Securities Australia Limited (in its capacity as Facility Agent)
ACN 002 888 011
AAP Centre
000 Xxxxxx Xxxxxx
XXXXXX XXX 0000
FROM: AUSTAR Entertainment Pty. Limited
ACN 068 104 530
Xxxxx 00
000 Xxxx Xxxxxx
XXXXXX XXX 0000
COMPLIANCE CERTIFICATE
Reference is made to the A$200,000,000 Syndicated Senior Secured Debt Facility
Agreement dated [ ] between (amongst others) AUSTAR
Entertainment Pty. Limited ("COMPANY") and Chase Securities Australia Limited in
its capacity as Facility Agent and Security Agent ("FACILITY AGREEMENT") and all
Accession Agreements and Substitution Certificates entered into in respect of
the Facility Agreement.
Words defined in the Facility Agreement have the same meaning in this
Certificate.
This Certificate is given by the Company on behalf of all Obligors.
1. RATIOS
1.1 SENIOR DEBT/EBITDA*
The ratio of Senior Debt to EBITDA for the Group for the period from [ ]
to [ ] was [ ].
1.2 TOTAL DEBT/EBITDA*
The ratio of Total Debt to EBITDA for the Group for the period from [ ]
to [ ] was [ ].
1.3 EBITDA/INTEREST EXPENSE*
The ratio of EBITDA for the Group to Interest Expense for the period from
[ ] to [ ] was [ ].
1.4 TOTAL SUBSCRIBERS*
The Total Subscribers as at [ ] was [ ].
1.5 MINIMUM EBITDA*
The EBITDA for the Group for the period from [ ] to [ ]
was [ ].
1.6 EQUITY CONTRIBUTION*
The amount of the Equity Contribution is [ ] which is [ ]%
of the aggregate of the amount of Tranche 2 Advances outstanding and the
amount requested in the most recent Tranche 2 Utilisation Notice.
1.7 ANNUALISED EBITDA*
If the amount of the Advance requested in the most recent Tranche 3
Utilisation Notice were added to existing aggregate outstanding Advances
under the Facilities, the ratio of that sum to the last quarter=s annualised
EBITDA would be [ ].
2. CONDITIONS PRECEDENT
The conditions precedent listed in clauses 3.4 and 3.5* of the Facility
Agreement have been met.
3. REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS
The representations, warranties and undertakings in clauses 16 (except for
clauses 16.2(c), (d), (e) and (f)) and 17 of the Facility Agreement have
been complied with and the statements in those clauses are correct as at the
date of this Certificate [except as set out below:]*.
We, [ ], being [directors of the Company] certify that the contents of
this Certificate are true and correct as at the date of this Certificate.
............................ ............................
[Name of Director] [Name of Director]
Date: ......................
* delete if inapplicable
SCHEDULE 10
FORM OF STAMP DUTY CERTIFICATE
To: Chase Securities Australia Limited
Re: Syndicated Senior Secured Debt Facility Agreement dated [ ]
made between (amongst others) AUSTAR Entertainment Pty Limited (the
"BORROWER") and Chase Securities Australia Limited, as Facility Agent and
Security Agent.
The Security Property is certified to be valued and apportioned as set out below
at [insert date].
=========================================================================================================
FIXED CASH DEBTORS PROPERTY TOTAL PERCENTAGE PERCENTAGE
ASSETS OF OVERALL OF
ASSETS AUSTRALIAN
ASSETS
=========================================================================================================
N.S.W.
---------------------------------------------------------------------------------------------------------
Victoria
---------------------------------------------------------------------------------------------------------
W.A.
---------------------------------------------------------------------------------------------------------
S.A.
---------------------------------------------------------------------------------------------------------
Queensland
---------------------------------------------------------------------------------------------------------
Tasmania
---------------------------------------------------------------------------------------------------------
A.C.T.
---------------------------------------------------------------------------------------------------------
N.T.
---------------------------------------------------------------------------------------------------------
Overseas
=========================================================================================================
TOTAL 100% 100%
=========================================================================================================
There has been an [increase/decrease] in the [value of/proportion of] assets
located in [specify State or overseas].
For and on behalf of the Borrower
.............................................
Authorised Officer
SIGNED as an agreement.
SIGNED for and on behalf of )
AUSTAR ENTERTAINMENT PTY )
LIMITED, ACN 068 104 530 by ) Xxxxxx Xxxxx Xxxxxxx (sgd)
Xxxxxx Xxxxx Xxxxxxx ) ...............................
in the presence of: ) (Signature)
Xxxx Xxxxxxx (sgd)
............................
(Signature of Witness)
Xxxx Xxxxxxx
............................
(Name of Witness in Full)
SIGNED for and on behalf of )
CTV PTY LIMITED, ACN 064 416 128 )
by Xxxxxx Xxxxx Xxxxxxx ) Xxxxxx Xxxxx Xxxxxxx (sgd)
in the presence of: ) ...............................
(Signature)
Xxxx Xxxxxxx (sgd)
............................
(Signature of Witness)
Xxxx Xxxxxxx
............................
(Name of Witness in Full)
SIGNED for and on behalf of )
STV PTY LIMITED, ACN 065 312 450 )
by Xxxxxx Xxxxx Xxxxxxx ) Xxxxxx Xxxxx Xxxxxxx (sgd)
in the presence of: ) ..............................
Xxxx Xxxxxxx (sgd)
.............................
(Signature of Witness)
Xxxx Xxxxxxx
.............................
(Name of Witness in Full)
(Signature)SIGNED for and on behalf of )
AUSTAR SERVICES PTY LTD, ACN 068 521 880 )
by Xxxxxx Xxxxx Xxxxxxx ) Xxxxxx Xxxxx Xxxxxxx (sgd)
in the presence of: ) ..............................
(Signature)
Xxxx Xxxxxxx (sgd)
.............................
(Signature of Witness)
Xxxx Xxxxxxx
.............................
(Name of Witness in Full)
SIGNED for and on behalf of )
AUSTAR RETAIL PTY LTD, ACN 068 )
521 826 by Xxxxxx Xxxxx Xxxxxxx ) Xxxxxx Xxxxx Xxxxxxx (sgd)
in the presence of: ) ..............................
(Signature)
Xxxx Xxxxxxx (sgd)
.............................
(Signature of Witness)
Xxxx Xxxxxxx
.............................
(Name of Witness in Full)
SIGNED for and on behalf of )
SELECTRA PTY LTD, ACN 065 367 )
526 by Xxxxxx Xxxxx Xxxxxxx ) Xxxxxx Xxxxx Xxxxxxx (sgd)
in the presence of: ) ..............................
(Signature)
Xxxx Xxxxxxx (sgd)
.............................
(Signature of Witness)
Xxxx Xxxxxxx
.............................
(Name of Witness in Full)
SIGNED for and on behalf of )
VINATECH PTY LTD, ACN 065 366 )
314 by Xxxxxx Xxxxx Xxxxxxx ) Xxxxxx Xxxxx Xxxxxxx (sgd)
in the presence of: ) ..............................
(Signature)
Xxxx Xxxxxxx (sgd)
.............................
(Signature of Witness)
Xxxx Xxxxxxx
.............................
(Name of Witness in Full)
SIGNED for and on behalf of )
XXXXXXX PTY LTD, ACN 064 744 )
869 by Xxxxxx Xxxxx Xxxxxxx ) Xxxxxx Xxxxx Xxxxxxx (sgd)
in the presence of: ) ..............................
(Signature)
Xxxx Xxxxxxx (sgd)
.............................
(Signature of Witness)
Xxxx Xxxxxxx
.............................
(Name of Witness in Full)
SIGNED for and on behalf of )
XXXXXXX PTY LTD, ACN 065 017 )
012 by Xxxxxx Xxxxx Xxxxxxx ) Xxxxxx Xxxxx Xxxxxxx (sgd)
in the presence of: ) ..............................
(Signature)
Xxxx Xxxxxxx (sgd)
.............................
(Signature of Witness)
Xxxx Xxxxxxx
.............................
(Name of Witness in Full)
SIGNED for and on behalf of )
KEANSBURG PTY LTD, ACN 064 744 )
887 by Xxxxxx Xxxxx Xxxxxxx ) Xxxxxx Xxxxx Xxxxxxx (sgd)
in the presence of: ) ..............................
(Signature)
Xxxx Xxxxxxx (sgd)
.............................
(Signature of Witness)
Xxxx Xxxxxxx
.............................
(Name of Witness in Full)
SIGNED for and on behalf of )
XXXXXX PTY LTD, ACN 064 756 190 )
by Xxxxxx Xxxxx Xxxxxxx ) Xxxxxx Xxxxx Xxxxxxx (sgd)
in the presence of: ) ..............................
(Signature)
Xxxx Xxxxxxx (sgd)
.............................
(Signature of Witness)
Xxxx Xxxxxxx
.............................
(Name of Witness in Full)
SIGNED for and on behalf of )
MAXI-VU PTY LTD, ACN 064 795 679 )
by Xxxxxx Xxxxx Xxxxxxx ) Xxxxxx Xxxxx Xxxxxxx (sgd)
in the presence of: ) ..............................
(Signature)
Xxxx Xxxxxxx (sgd)
.............................
(Signature of Witness)
Xxxx Xxxxxxx
.............................
(Name of Witness in Full)
SIGNED for and on behalf of )
PALARA VALE PTY LTD, ACN 068 )
943 500 by Xxxxxx Xxxxx Xxxxxxx ) Xxxxxx Xxxxx Xxxxxxx (sgd)
in the presence of: ) ..............................
(Signature)
Xxxx Xxxxxxx (sgd)
.............................
(Signature of Witness)
Xxxx Xxxxxxx
.............................
(Name of Witness in Full)
SIGNED for and on behalf of )
AULDANA BEACH PTY LTD, ACN )
000 000 000 by Xxxxxx Xxxxx Xxxxxxx ) Xxxxxx Xxxxx Xxxxxxx (sgd)
in the presence of: ) ..............................
(Signature)
Xxxx Xxxxxxx (sgd)
.............................
(Signature of Witness)
Xxxx Xxxxxxx
.............................
(Name of Witness in Full)
SIGNED for and on behalf of )
GROVERN PTY LTD, ACN 068 943 )
402 by Xxxxxx Xxxxx Xxxxxxx ) Xxxxxx Xxxxx Xxxxxxx (sgd)
in the presence of: ) ..............................
(Signature)
Xxxx Xxxxxxx (sgd)
.............................
(Signature of Witness)
Xxxx Xxxxxxx
.............................
(Name of Witness in Full)
SIGNED for and on behalf of )
LYSTERVALE PTY LTD, ACN 068 943 )
457 by Xxxxxx Xxxxx Xxxxxxx ) Xxxxxx Xxxxx Xxxxxxx (sgd)
in the presence of: ) .............................
(Signature)
Xxxx Xxxxxxx (sgd)
.............................
(Signature of Witness)
Xxxx Xxxxxxx
.............................
(Name of Witness in Full)
SIGNED for and on behalf of )
MINORITE PTY LTD, ACN 068 943 )
484 by Xxxxxx Xxxxx Xxxxxxx ) Xxxxxx Xxxxx Xxxxxxx (sgd)
in the presence of: ) ..............................
(Signature)
Xxxx Xxxxxxx (sgd)
.............................
(Signature of Witness)
Xxxx Xxxxxxx
.............................
(Name of Witness in Full)
SIGNED for and on behalf of )
VERMINT GROVE PTY LTD, ACN 068 )
943 555 by Xxxxxx Xxxxx Xxxxxxx ) Xxxxxx Xxxxx Xxxxxxx (sgd)
in the presence of: ) .............................
(Signature)
Xxxx Xxxxxxx (sgd)
.............................
(Signature of Witness)
Xxxx Xxxxxxx
.............................
(Name of Witness in Full)
SIGNED for and on behalf of )
KIDILLIA PTY LTD, ACN 068 943 )
608 by Xxxxxx Xxxxx Xxxxxxx ) Xxxxxx Xxxxx Xxxxxxx (sgd)
in the presence of: ) ..............................
(Signature)
Xxxx Xxxxxxx (sgd)
.............................
(Signature of Witness)
Xxxx Xxxxxxx
.............................
(Name of Witness in Full)
SIGNED for and on behalf of )
CARRYTON PTY LTD, ACN 068 943 )
573 by Xxxxxx Xxxxx Xxxxxxx ) Xxxxxx Xxxxx Xxxxxxx (sgd)
in the presence of: ) ..............................
(Signature)
Xxxx Xxxxxxx (sgd)
.............................
(Signature of Witness)
Xxxx Xxxxxxx
.............................
(Name of Witness in Full)
SIGNED for and on behalf of )
DOVEVALE PTY LTD, ACN 068 943 )
591 by Xxxxxx Xxxxx Xxxxxxx ) Xxxxxx Xxxxx Xxxxxxx (sgd)
in the presence of: ) ..............................
(Signature)
Xxxx Xxxxxxx (sgd)
.............................
(Signature of Witness)
Xxxx Xxxxxxx
.............................
(Name of Witness in Full)
SIGNED for and on behalf of )
XTEK BAY PTY LTD, ACN 068 943 )
564 by Xxxxxx Xxxxx Xxxxxxx ) Xxxxxx Xxxxx Xxxxxxx (sgd)
in the presence of: ) ..............................
(Signature)
Xxxx Xxxxxxx (sgd)
.............................
(Signature of Witness)
Xxxx Xxxxxxx
.............................
(Name of Witness in Full)
SIGNED for and on behalf of )
WINDYTIDE PTY LTD, ACN 068 943 )
546 by Xxxxxx Xxxxx Xxxxxxx ) Xxxxxx Xxxxx Xxxxxxx (sgd)
in the presence of: ) ...........................
(Signature)
Xxxx Xxxxxxx (sgd)
.............................
(Signature of Witness)
Xxxx Xxxxxxx
.............................
(Name of Witness in Full)
SIGNED for and on behalf of )
CHASE SECURITIES AUSTRALIA LIMITED, ACN )
002 888 011 (in its capacity as Facility ) Xxxxxxx Xxxxxxx (sgd)
Agent and Security Agent), by ) ...........................
Xxxxxxx Xxxxxxx in the presence of: ) (Signature)
C Long (sgd)
.............................
(Signature of Witness)
Xxxxxxxx X Xxxx
.............................
(Name of Witness in Full)
SIGNED for and on behalf of THE CHASE )
MANHATTAN BANK, ARBN 074 112 011, by ) Xxxxx Xxx (sgd)
Xxxxx Xxx in the presence of: ) ...........................
) (Signature)
Xxxxxxxx Xxxx (sgd)
.............................
(Signature of Witness)
Xxxxxxxx X Xxxx
.............................
(Name of Witness in Full)
SIGNED for and on behalf of THE CHASE )
MANHATTAN BANK, ARBN 074 112 011, by ) ...........................
in the presence of: ) (Signature)
(Signature of Witness)
.............................
(Name of Witness in Full)
SIGNED for and on behalf of TORONTO ) Xxxxx X. Xxxxxx (sgd)
DOMINION AUSTRALIA LIMITED, ACN ) .....................................
004 858 020 by Xxxxx X Xxxxxx ) (Signature)
in the presence of: )
Xxxxxxxx Xxxx (sgd)
.............................
(Signature of Witness)
Xxxxxxxx X Xxxx
.............................
(Name of Witness in Full)
SIGNED for and on behalf of PARIBAS ) Xxxx Xxxxxx (sgd) Xxxxxxx Xxxxx (sgd)
GROUP AUSTRALIA LIMITED, ACN ) .....................................
002 174 843 by Xxxxxxx Xxxxx/Xxxx ) (Signature)
Austin in the presence of: )
Xxxxxxxx Xxxx (sgd)
.............................
(Signature of Witness)
Xxxxxxxx X Xxxx
.............................
(Name of Witness in Full)
The undersigned XX Xxxxx acknowledge that they have reviewed and approved this
document:
SIGNED for and on behalf of )
DE NATIONALE INVESTERINGSBANK ) Ng Eng Chye (sgd)*
ASIA LIMITED by Ng Eng Chye in the ) ....................................
presence of: ) (Signature)
Xxxxx Xxx (sgd)
.............................
(Signature of Witness)
Xxxxx Xxx
.............................
(Name of Witness in Full)
SIGNED for and on behalf of )
CANADIAN IMPERIAL BANK OF ) Chin Foo Chun (sgd)*
COMMERCE by Chin Foo Chun in the ) ....................................
presence of: ) (Signature)
Xxxxxx Xxxxxx (sgd)
.............................
(Signature of Witness)
Xxxxxx Xxxxxx
.............................
(Name of Witness in Full)
* signed cleaned copies
