Exhibit 10.18
AMENDED AND RESTATED SENIOR DEBT FACILITY AGREEMENT
OPERATIVE PROVISIONS:
1 DEFINITIONS AND INTERPRETATION
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DEFINITIONS
1.1 The following definitions apply unless the context requires otherwise.
ABN means American Banknote Corporation incorporated in Delaware of
000 Xxxx Xxxxxx, Xxxxx 000, Xxx Xxxx, Xxx Xxxx.
ABNAH means American Banknote Australasia Holdings Inc., incorporated
in Delaware of 000 Xxxx Xxxxxx, Xxxxx 000, Xxx Xxxx, Xxx XXXX.
ABP means American Banknote Pacific Pty Limited (ABN 19 072 977 265).
ACCOUNTS means profit and loss accounts, balance sheets and cash flow
statements together with any statements, reports (including, without
limitation, any directors' and auditors' reports) and notes attached
to or intended to be read with any of them.
AGENT means Chase Securities Australia Limited (ABN 52 002 888 011)
AMENDING AND RESTATEMENT DEED means the deed entitled "Amending and
Restatement Deed (Senior Debt Facility)" dated 26 June 2001 between
the Borrower, the Participants, the Agent.
AMENDMENT DATE means the date of execution of the Amending and
Restatement Deed.
ASSOCIATE in relation to an entity means:
(a) a Related Corporation of that entity;
(b) an entity, or the trustee or manager of a trust, which has a
Controlling Interest in that entity, or a Related Corporation of
that entity;
(c) a Related Corporation of an entity included in paragraph (b) or
(e);
(d) an executive director of that entity or an entity included in
paragraph (a), (b) or (c) or of the manager or of the trustee of
any trust included in paragraph (a), (b) or (c) or a spouse,
child, parent or sibling of that director;
(e) a corporation, or the trustee or manager of a trust, in which one
or more entity or person mentioned in paragraph (a), (b), (c),
(d), (e), (f) or (g) alone or together has a Controlling
Interest;
(f) the trustee of a discretionary trust of which an entity or person
included in paragraph (a), (b), (c), (d), (e) or (g) is a
beneficiary (whether or not through one or more other
discretionary trusts); or
(g) an entity of which an executive director of that entity or a
Related Corporation of that entity is also a director.
For the purposes of this definition:
(i) where a person is a beneficiary of a discretionary trust, that
person will be taken to own, and control, all the assets of that
trust;
(ii) DIRECTOR has the meaning given in the Corporations Law; and
(iii) a person has a CONTROLLING INTEREST in a corporation or trust
if:
(A) the corporation or its directors, or the trustee or manager
of the trust or its directors, are accustomed, or under an
obligation, whether formal or informal, to act in accordance
with the directions, instructions or wishes of that person
or of that person in concert with others; or
(B) the person has a relevant interest (as defined in the
Corporations Law) in more than 51% of the issued or voting
shares, units or other interests in the corporation or trust
(in number, voting power or value), or would have that
relevant interest if any rights were exercised to subscribe
for, or acquire or convert into, shares, units or other
interests which are issued or unissued. The definition of
relevant interest applies as if units or other interests
were shares.
AUTHORISATION includes:
(a) any consent, authorisation, registration, filing, lodgement,
agreement, notarisation, certificate, permission, licence,
approval, authority or exemption from, by or with a Governmental
Agency; or
(b) in relation to anything which will be fully or partly prohibited
or restricted by law if a Governmental Agency intervenes or acts
in any way within a specified period after lodgement, filing,
registration or notification, the expiry of that period without
intervention or action.
AUTHORISED OFFICER means:
(a) in respect of the Borrower or any Guarantor, any director or
secretary, or any person from time to time nominated as an
Authorised Officer by the Borrower or the relevant Guarantor by a
notice to the Agent accompanied by certified copies of signatures
of all new persons so appointed; and
(b) in respect of the Agent or a Participant, any person whose title
or acting title includes the word MANAGER or PRESIDENT or cognate
expressions, or any secretary or director.
AVAILABILITY PERIOD means for a Facility, the period commencing on the
date of this agreement and expiring on the Final Maturity Date or, if
earlier, the date on which the Commitment for a Facility is cancelled.
BENEFICIARY means the beneficiary of a Letter of Credit.
XXXX means a XXXX OF EXCHANGE as defined in the Bills of Exchange Xxx
0000.
BORROWER means ABN Australasia Limited (ABN 42 000 000 000).
BUSINESS means the security printing business carried on at the date
of this Agreement by the Group, as it may develop or be expanded from
time to time. It includes, without limitation:
(a) the manufacture and supply of personalised cheques and cheque
books, deposit books, bank cheques, passports, medical and other
forms, postal money orders and bearer securities;
(b) the provision of electronic printing services including for
cheque and credit card statements, car registrations,
superannuation statements and council rate notices;
(c) the manufacture and supply of plastic transaction cards,
telephone cards, plastic promotional and membership cards,
"smart" or "chip" cards and photographic driver's and firearm's
licences;
(d) the provision of bureau personalisation services, encoding and
barcoding services;
(e) the sale and/or maintenance of photographic, personalisation and
encoding equipment; and
(f) anything developed from or substantially similar to the above.
BUSINESS DAY means a weekday on which banks are open in Sydney,
Melbourne, Singapore and Paris, France.
CASH ADVANCE COMMITMENT means, in relation to a Participant, the
amount opposite that Participant's name in Column 2 of Part A of
schedule 2, as reduced or cancelled under this Agreement.
CASH ADVANCE FACILITY means the Facility provided under clause 9.
CASH ADVANCE UNDRAWN COMMITMENT means a Participant's Cash Advance
Commitment less the total principal amount of its Share of all
outstanding Segments of the Cash Advance Facility.
CASH FLOW PROJECTIONS means the cash flow projections provided to the
Agent under clause 3.3 of the Amending and Restatement Deed.
CHARGE means any charge, debenture or other Security Interest given by
the Borrower or a Guarantor to secure the Secured Moneys (including
without limitation the Debenture Trust Deed and any Satisfactory
Charge).
COLLATERAL SECURITY means any Security Interest, Guarantee or other
document or agreement at any time created or entered into as security
for any Secured Moneys.
COMMITMENT in relation to a Participant means:
(a) in relation to the Cash Advance Facility, its Cash Advance
Commitment; and
(b) in relation to the LC Facility, its LC Commitment.
DEBENTURE TRUST DEED means the Debenture Trust Deed dated 3 June 1996
between, among others, the Borrower and each Guarantor.
DERIVATIVE CONTRACT means an agreement, contract or arrangement the
value of which depends on or derives from the value of an underlying
asset, currency, reference rate or index (whether over-the-counter or
exchange traded) and includes a futures contract, interest rate swap
contract, currency swap contract, forward foreign exchange rate
contract, forward interest rate contact, interest rate and currency
option and cap, collar and floor transaction entered into by a Group
Member in good faith on normal commercial terms at arm's length in the
ordinary course of business with an Indemnified Party.
DEBT SERVICE means, for any period, Interest Expense under this
Agreement paid or payable in cash plus Principal Outstanding paid or
payable under clause 7 during that period.
DISTRIBUTION means, in relation to a company, any payment or
distribution of any money or other assets to a shareholder of the
company or an Associate of the company or that shareholder, including
without limitation:
(a) any dividend or other distribution, whether of a capital or
revenue nature, to a company's shareholders or stockholders,
partners or members as such;
(b) any application or distribution of any property or assets to
purchase, redeem or otherwise retire any shares or stock in a
company;
(c) any reduction (followed by any distribution) of a company's
capital;
(d) any payment or exchange of property or assets for property,
assets or services for a consideration which (independently
valued) exceeds the fair market value of the property, assets or
services acquired, or any gift;
(e) any management fee (however called);
(f) any interest or principal under a loan;
(g) any transfer or settlement or setting aside of property or assets
to meet or effect any other Distribution mentioned above; and
(h) any payments under a guarantee in respect of a shareholder,
but does not include:
(i) any director's fee determined at market rates;
(ii) any distribution required or permitted under the Cash
Advance Facility or the LC Facility;
(iii) any reasonable entertainment, travel and other
out-of-pocket expenses of officers or managers of such
shareholder or Associate incurred in connection with any
Group Member;
(iv) the premium for, or other amounts incurred in relation to,
any insurance taken out by that shareholder or Associate for
the benefit of any Group Member (whether for that Group
Member alone or for that Group Member and any other person);
and
(v) any payment or exchange of property or assets for property,
assets or services for a consideration which (independently
valued) is equal to or less than the fair market value of
the property, assets or services acquired.
DRAWDOWN DATE means the date on which any accommodation under this
Agreement is or is to be drawn.
DRAWDOWN NOTICE means a notice under clause 5.
EBITDA means, in respect of any period, the amount shown by the
Accounts for that period as revenue less:
(a) all corporate overheads; and
(b) all operating expenses (including cost of goods sold), other than
Interest Expense, provision for Tax, depreciation, amortisation,
other non-cash charges, extraordinary abnormal non-recurring
gains or losses and gains or losses from the sale of assets (to
the extent included in operating expenses),
of the Group on a consolidated basis.
ENVIRONMENTAL LAW means a provision of a law or a law, which relates
to an aspect of the environment or health.
EVENT OF DEFAULT has the meaning in clause 16.1.
EXCESS CASH FLOW means, for a period, EBITDA (adjusted for working
capital movements) less the aggregate of all capital expenditure
approved by the Agent in accordance with clause 15.1(v), reductions in
the Principal Outstanding made in conjunction with an equivalent
cancellation of Commitments and Debt Service.
EXCLUDED TAX means:
(a) any Tax imposed by a jurisdiction (other than Australia or any
political subdivision or Taxing authority of or in Australia)
solely as a consequence of any Indemnified Party being organised
or doing business in that jurisdiction;
(b) any Tax imposed on the net income or revenues of an Indemnified
Party:
(i) by any jurisdiction outside Australia; or
(ii) by Australia or any political subdivision or Taxing
authority of or in Australia as a consequence of any
Indemnified Party being or becoming a "resident" of
Australia or carrying on business in Australia through a
"permanent establishment" in Australia (as those terms are
defined in the Income Tax Assessment Xxx 0000 or any
relevant statutory concept which replaces or is in addition
to those concepts); and
(c) any withholding tax imposed by Australia or any political
subdivision or Taxing authority of or in Australia on any payment
made or to be made by or on behalf of the Borrower (including
without limitation payment by the Agent) to or income derived by
an Indemnified Party who is a non-resident of Australia or who is
a resident of Australia deriving the income or payment through an
overseas branch.
FACILITY means the Cash Advance Facility and the LC Facility.
FINAL MATURITY DATE means, for each Facility, the date which is the
third anniversary of the Amendment Date.
FINANCIAL INDEBTEDNESS means any indebtedness, present or future,
actual or contingent in respect of moneys borrowed or raised or any
financial accommodation whatever. Without limitation, it includes:
(a) indebtedness under or in respect of a negotiable or other
financial instrument, Guarantee, redeemable share, share the
subject of a Guarantee, discounting arrangement, hire purchase,
deferred purchase price (for more than 90 days) of an asset or
service or an obligation to deliver goods or other property or
provide services paid for in advance by a financier or in
relation to another other financing transaction; and
(b) the xxxx to market exposure under any interest, gold or currency
exchange, hedge or arrangement of any kind,
but does not include any off balance sheet operating Lease or any
payment by a trade customer in advance of delivery of goods or
services on ordinary commercial terms.
FOUR ZERO BASED PROJECTS means the projects identified as such in the
report from Xxxxxxx Xxxxxxx dated 22 January 2001.
FUNDING PERIOD means, in relation to a Segment of the Cash Advance
Facility, a period for the fixing of interest rates for the Segment.
In each case the period commences on the Drawdown Date of the Segment
or the last day of the preceding Funding Period of the Segment (as
appropriate) and has a duration selected under clause 6.
GOVERNMENTAL AGENCY means any government or any governmental,
semi-governmental or judicial entity or authority. It also includes
any self-regulatory organisation established under statute or any
stock exchange.
GROUP means the Borrower and its Subsidiaries.
GROUP MEMBER means each company which is a member of the Group.
GUARANTEE means any guarantee, indemnity, letter of credit, legally
binding letter of comfort or suretyship, or any other legally binding
obligation or irrevocable offer (whatever called and of whatever
nature):
(a) to pay or to purchase;
(b) to provide funds (whether by the advance of money, the purchase
of or subscription for shares or other securities, the purchase
of assets, rights or services, or otherwise) for the payment or
discharge of;
(c) to indemnify against the consequences of default in the payment
of; or
(d) to be responsible otherwise for,
an obligation or indebtedness of another person, a dividend,
distribution, capital or premium on shares, stock or other interests,
or the insolvency or financial condition in each case of another
person.
GUARANTOR means each person so described in Schedule 1 and any new
guarantor under clause 33 and, if there is more than one, means each
of them individually and every two or more of them jointly.
GUARANTOR ACCESSION DEED means a deed substantially in the form of
annexure B.
HOLDING SUBSIDIARY means ABN Australasia Holdings Pty Ltd (ABN 11 072
977 229) (to be renamed American Banknote Australasia Pty Limited).
INDEMNIFIED PARTY means the Agent, a Participant or any person whom
the Agent, the Borrower and the Guarantors agree will be an
Indemnified Party.
INTELLECTUAL PROPERTY means any intellectual or industrial property
including without limitation:
(a) a patent, trade xxxx or service xxxx, copyright, registered
design, trade secret, or confidential information; or
(b) a licence or other right to use or to grant the use of any of the
foregoing or to be the registered proprietor or user of any of
the foregoing.
INTEREST EXPENSE means, for any period, all interest and amounts in
the nature of interest or of similar effect to interest (including
amounts other than principal payable under this Agreement) paid or
payable by any Group Member shown by the Accounts for that period
including:
(a) any dividend or distribution payable on any Marketable Security
included as Financial Indebtedness;
(b) the face amount of bills of exchange or other financial
instruments (but not reliquefication bills drawn under this
Agreement) drawn, issued, endorsed or accepted by any Group
Member less their net proceeds after discount or issue and
payment of any acceptance, endorsement, underwriting or similar
fee;
(c) all line, facility, letter of credit, guarantee and similar fees
and all fees and other amounts of a regular or recurring nature
payable in relation to Financial Indebtedness but not:
(i) unused line fees; and
(ii) establishment, arrangement and other fees payable once only
on the initial provision of financial accommodation,
but excluding all transactions between any two Group Members; and
(d) interest payable under any Secured Financing,
less any interest and amounts in the nature of interest earned by the
Group Member during that period. For the avoidance of doubt, Interest
Expense does not include fees that are treated as an interest expense
for accounting purposes.
INTEREST PAYMENT DATE means a date on which interest is payable under
clause 9.3 of this Agreement.
JV means the joint venture between ABN Australasia Holdings Pty Ltd
and Gemplus Technologies Asia Pty Ltd and governed by the terms of the
Joint Venture Agreement.
JOINT VENTURE AGREEMENT means the agreement dated on or about 10
January 2000 between Gemplus Technologies Asia Pty Ltd, Gemplus S.A.,
ABN Australasia Holdings Pty Ltd and ABNAH.
LC COMMITMENT means, in relation to a Participant, the amount opposite
that Participant's name in column 2 of Part B of schedule 2, as
reduced or cancelled under this Agreement.
LC FACILITY means the Facility provided under clause 10.
LC UNDRAWN COMMITMENT means a Participant's LC Commitment less the
total principal amount of its Share of all principal outstanding under
the LC Facility.
LETTER OF CREDIT means a letter of credit issued or to be issued under
clause 10.
LIQUIDATION includes receivership, compromise, arrangement,
amalgamation, administration, reconstruction, winding up, dissolution,
assignment for the benefit of creditors, bankruptcy or death.
MAJORITY PARTICIPANTS means Participants whose aggregate Commitments
are more than two thirds of the total of the Commitments.
MARGIN means 2.50% per annum.
MARKETABLE SECURITY has the meaning given in the Corporations Law, but
also includes:
(a) a document referred to in the exceptions to the definition of
DEBENTURE in the Corporations Law;
(b) a unit or other interest in a trust or partnership;
(c) a negotiable instrument; and
(d) a right or an option in respect of a Marketable Security, whether
issued or unissued, including, without limitation, any of the
above.
MATERIAL ADVERSE EFFECT means, in the reasonable opinion of the
Majority Participants, a material adverse effect on:
(a) the ability of the Relevant Companies as a whole to perform their
obligations under the Transaction Documents; or
(b) the security, rights or benefits of the Indemnified Parties under
the Transaction Documents.
MORTGAGED PROPERTY means the property mortgaged or charged by a Charge
or any Collateral Security.
PARTICIPANT means a Participant set out in schedule 2 or a person who
becomes a Participant under clause 29.2.
PERMITTED SALE ASSET means an asset referred to in clause
15.1(e)(iii)(B).
POTENTIAL EVENT OF DEFAULT means anything which with the giving of
notice or passage of time or both would become an Event of Default.
PRINCIPAL OUTSTANDING means:
(a) with respect to the Cash Advance Facility, the total principal
amount of all outstanding Segments; and
(b) with respect to the LC Facility, the face amount of the LCs
outstanding under the LC Facility,
or if the context so requires, the aggregate of these amounts.
PRO RATA SHARE means, with respect to a Participant, the proportion
which that Participant's Commitment bears to the aggregate of all
Commitments.
PROFIT IMPROVEMENT PLAN means the plan presented to the Participants
by the Borrower on 8 October 1999 as varied to reflect changes
recommended in the Xxxxxxx Xxxxxxx report dated 18 October 1999 and
updated in the Xxxxxxx Xxxxxxx report dated 22 January 2001.
QUARTERLY DATE means the last day of March, June, September and
December in each year.
REFERENCE BANK means Westpac Banking Corporation, Australia and New
Zealand Banking Group Limited, National Australia Bank Limited or
Commonwealth Bank of Australia.
RELATED CORPORATION has the meaning given to RELATED BODY CORPORATE in
the Corporations Law, but on the basis that SUBSIDIARY has the meaning
given in this Agreement and that BODY CORPORATE includes any entity or
a trust.
RELEVANT COMPANY means:
(a) a Group Member; or
(b) another person who gives or creates a Guarantee or Security
Interest which secures any Secured Moneys.
RELIQUEFICATION XXXX means a Xxxx drawn under clause 9.
SAME DAY FUNDS means a bank cheque or other immediately available
funds.
SATISFACTORY CHARGE means a first charge over all assets to secure the
Secured Moneys where the Agent has received documents or evidence in
connection with that charge satisfactory to the Agent (including,
where requested, opinions).
SECURED FINANCING means accommodation provided to the Borrower or any
Group Member by the Beneficiary on the security of a Letter of Credit.
SECURED MONEYS means all money which the Borrower and the Guarantors
(whether each of them alone or with another person) is or at any time
may become actually or contingently liable to pay to or for the
account of an Indemnified Party (whether alone or with another person)
for any reason whatever under or in connection with a Transaction
Document.
It includes, without limitation, money by way of principal, interest,
fees, costs, indemnities, Guarantees, charges, duties or expenses or
payment of liquidated or unliquidated damages under or in connection
with a Transaction Document, or as a result of a breach of or default
under or in connection with a Transaction Document.
Where the Borrower or Guarantor would have been liable but for its
Liquidation, it will be taken still to be liable.
A reference to an amount for which a person is contingently liable
includes, without limitation, an amount which that person may become
actually or contingently liable to pay if a contingency occurs,
whether or not that liability will actually arise.
SECURITY INTEREST includes any mortgage, pledge, lien or charge or any
security or preferential interest or arrangement of any kind or any
other right of, or arrangement with, any creditor to have its claims
satisfied in priority to other creditors with, or from the proceeds
of, any asset.
Without limitation it includes retention of title other than in the
ordinary course of day-to-day trading and a deposit of money by way of
security but it excludes a charge or lien arising in favour of a
Governmental Agency by operation of statute unless there is default in
payment of moneys secured by that charge or lien.
SECURITY TRUSTEE means Chase Securities Australia Limited (ABN 52 002
888 011).
SEGMENT means each portion of the accommodation made available under
the Cash Advance Facility which has the same Funding Period.
SHARE of a Participant, in respect of a Segment or any principal
outstanding under the LC Facility, means the proportion of that
Participant's participation in that Segment or principal to the amount
of the Segment or principal (such proportion to be determined under
clause 2).
SUBSIDIARY 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 a unit or
other beneficial interest will be regarded as a share; 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.
TAX includes any tax, levy, impost, deduction, charge, rate, duty,
compulsory loan or withholding which is levied or imposed by a
Governmental Agency, and any related interest, penalty, charge, fee or
other amount.
TEST DATE means the last day of each month.
TOTAL DEBT means all Financial Indebtedness of the Group.
TRANSACTION DOCUMENT means:
(a) this Agreement;
(b) each Charge;
(c) any Collateral Security;
(d) any Guarantor Accession Deed;
(e) any Drawdown Notice or any debenture or other certificate or
Security Interest issued under a Charge;
(f) any Derivative Contract;
(g) a document or agreement entered into or provided for the purpose
of amending or novating, any of the above including the Amending
and Restatement Deed; or
(h) any document which the Borrower agrees to be a Transaction
Document for the purposes of this Agreement.
It includes, without limitation, an undertaking by or to a party or
its lawyers under or in relation to any of the above.
UNDRAWN COMMITMENT means the LC Undrawn Commitment and the Cash
Advance Undrawn Commitment or where the context so requires, the
aggregate of these amounts.
INTERPRETATION
1.2 Headings are for convenience only and do not affect interpretation.
The following rules apply unless the context requires otherwise.
(a) The singular includes the plural and the converse.
(b) A gender includes all genders.
(c) Where a word or phrase is defined, its other grammatical forms
have a corresponding meaning.
(d) A reference to a person, corporation, trust, partnership,
unincorporated body or other entity includes any of the
foregoing.
(e) A reference to a clause, annexure or schedule is a reference to a
clause of, or annexure or schedule to, this Agreement.
(f) A reference to a party to this Agreement or another agreement or
document includes the party's successors and permitted
substitutes or assigns.
(g) A reference to legislation or to a provision of legislation
includes a modification or re-enactment of it, a legislative
provision substituted for it and a regulation or statutory
instrument issued under it.
(h) A reference to WRITING includes a facsimile transmission and any
means of reproducing words in a tangible and permanently visible
form.
(i) A reference to CONDUCT includes, without limitation, an omission,
statement or undertaking, whether or not in writing.
(j) All references to DOLLARS and $ are to Australian dollars.
(k) Mentioning anything after INCLUDE, INCLUDES or INCLUDING does not
limit what else might be included.
(l) A reference to an ASSET includes any real or personal, present or
future, tangible or intangible property or asset (including
Intellectual Property) and any right, interest, revenue or
benefit in, under or derived from the property or asset.
DETERMINATION, STATEMENT AND CERTIFICATE
1.3 Except where otherwise provided in this Agreement any determination,
statement or certificate by the Agent or any Participant or an
Authorised Officer of the Agent or any Participant provided for in
this Agreement is evidence of the matter stated in it unless the
contrary is proved. It binds the parties in the absence of manifest
error.
DOCUMENT OR AGREEMENT
1.4 A reference to:
(a) an AGREEMENT includes a Security Interest, Guarantee,
undertaking, deed, agreement or legally enforceable arrangement
whether or not in writing; and
(b) a DOCUMENT includes an agreement (as so defined) in writing or a
certificate, notice, instrument or document.
A reference to a specific agreement or document includes it as
amended, novated, supplemented or replaced from time to time, except
to the extent prohibited by this Agreement.
REPAYMENT AND PREPAYMENT
1.5 A reference to REPAYMENT or PREPAYMENT of all or part of an amount
under the LC Facility is to payment to the Agent of the whole or the
relevant portion of the face amount of the relevant Letter of Credit
or the reduction, expiry or cancellation of that Letter of Credit (if
that Letter of Credit has not been drawn on).
PRINCIPAL
1.6 A reference to PRINCIPAL or PRINCIPAL AMOUNT, in relation to an amount
under or in respect of the LC Facility, is to the maximum liability of
the Participants under any Letter of Credit comprising that amount.
TRUST
1.7 Unless the context requires otherwise, a reference to a transaction,
asset, act or liability of any nature of the Group Member includes its
transactions, assets, acts or liabilities as trustee. Where the Group
Member incurs an obligation, it incurs that obligation both in its own
right and in its capacity as trustee, unless the obligation relates
only to an asset which it holds in its own right and not as trustee.
CURRENT ACCOUNTING PRACTICE AND ACCOUNTING TERMS
1.8 A reference to CURRENT ACCOUNTING PRACTICE is to accounting principles
and practices applying by law or otherwise generally accepted in
Australia, consistently applied. Unless otherwise defined, accounting
terms should be interpreted in accordance with current accounting
practice. When calculating any covenant under clause 15.3, the value
of any asset of a Group Member will be its book value unless revalued
with the agreement of the Agent.
OUTSTANDING
1.9 A reference to an OUTSTANDING Letter of Credit is to a Letter of
Credit which has not expired (or which has expired but a draft has
been drawn or payment made under it) and for which the Borrower has
not provided cash cover under this Agreement or reimbursement in full.
DEBENTURE TRUST DEED
1.10 Each Group Member agrees that for the purposes of the Debenture Trust
Deed:
(a) the Majority Participants shall be the "Majority Stockholders";
and
(b) the Transaction Documents shall be the "Transaction Documents",
as those terms are used in the Debenture Trust Deed.
2 COMMITMENTS
COMMITMENTS
2.1 Subject to this Agreement each Participant agrees with the Borrower to
make available its participation in each Segment of the Cash Advance
Facility and to participate in the LC Facility. The total principal
amount of a Participant's participation in:
(a) all outstanding Segments of the Cash Advance Facility will not at
any time exceed its Cash Advance Commitment; and
(b) the LC Facility will not at any time exceed its LC Commitment.
ALLOCATION AMONG PARTICIPANTS
2.2 Each Participant shall participate in each Segment rateably according
to its Commitment and in each Letter of Credit, rateably according to
its LC Commitment.
OBLIGATIONS SEVERAL
2.3 The obligations and rights of each Participant under this Agreement
are several and:
(a) failure of a Participant to carry out its obligations does not
relieve any other Participant of its obligations;
(b) no Participant is responsible for the obligations of any other
Participant or the Agent; and
(c) subject to the Transaction Documents each Participant may
separately enforce its rights under any Transaction Document.
3 CANCELLATION OF COMMITMENTS
DURING AVAILABILITY PERIOD
3.1 On giving not less than 14 Business Days irrevocable notice to the
Agent, the Borrower may cancel all or part of the Undrawn Commitments
without penalty on the last day of a Funding Period. A partial
cancellation must be in a minimum of $1,000,000 and in a whole
multiple of $500,000 unless the Agent agrees otherwise.
ALLOCATION AMONG PARTICIPANTS
3.2 Any partial cancellation will be applied rateably against the Undrawn
Commitment of each Participant. The Agent shall promptly notify each
Participant of any notice received under this clause and the amount of
that Participant's Commitment which is cancelled.
AT END OF AVAILABILITY PERIOD
3.3 At the close of business (Sydney time) on the last day of the
Availability Period the Commitments of the Participants will be
cancelled.
4 PURPOSE
CASH ADVANCE FACILITY
4.1 The Borrower must use the net proceeds of the Cash Advance Facility to
finance the general working capital (including any overdraft)
requirements of the Group in carrying on the Business and the Profit
Improvement Plan, and for no other purpose.
LC FACILITY
4.2 The Borrower shall use, or shall procure the use by a Group Member of,
the net proceeds of the LC Facility with respect to:
(a) financing the working capital (including any overdraft)
requirements of the Group in carrying on the Business;
(b) issuance of performance bonds by any person in relation to
obligations of a Group Member; or
(c) such other purposes as the Agent (acting on the instructions of
the Participants who have agreed in writing to provide any LC
Commitments) may agree,
and for no other purpose.
ACKNOWLEDGMENT
4.3 The parties acknowledge that, as at the Amendment Date, the cash
Advance Facility has been fully drawn and no further Drawdown Notices
under clause 5 of this Agreement may be given by the Borrower to the
Agent.
5 DRAWDOWN NOTICES
WHEN NOTICE TO BE GIVEN - CASH ADVANCE FACILITY
5.1 Whenever the Borrower wishes to make a drawing under the Cash Advance
Facility it shall give to the Agent on behalf of itself and the
Guarantors an irrevocable Drawdown Notice substantially in the form of
annexure A. That Drawdown Notice must be received by the Agent by 11
am (Sydney time) three Business Days before the proposed Drawdown Date
(which must be a Business Day) or on such other day as the Agent
(acting on the instructions of the Majority Participants) may agree in
writing.
WHEN NOTICE TO BE GIVEN - LC FACILITY
5.2 Whenever the Borrower wishes to make a drawing under the LC Facility
it shall give to the Agent on behalf of itself and the Guarantors an
irrevocable Drawdown Notice substantially in the form of annexure A
specifying that the drawing is to be made under the LC Facility. That
Drawdown Notice must be received by the Agent by 11 am (Sydney time)
three Business Days before the proposed Drawdown Date (which must be a
Business Day) or on such other day as the Agent (acting on the
instructions of the Majority Participants) may agree in writing.
MINIMUM DRAWING
5.3 The Borrower shall ensure that each drawing under the Cash Advance
Facility is a minimum of the lesser of $1,000,000 or the Undrawn
Commitment, unless the Agent agrees otherwise.
NOTIFICATION OF PARTICIPANTS
5.4 The Agent shall give prompt notice to each relevant Participant of the
contents of each Drawdown Notice received under this clause 5 and the
amount of each Participant's Share of each Segment requested.
6 SELECTION OF FUNDING PERIODS
6.1 Subject to this clause, each Funding Period will have a duration of 30
days.
6.2 The Borrower may select any other Funding Period agreed by the Agent
to enable consolidation of Segments.
6.3 Should a Funding Period end on a day which is not a Business Day, that
Funding Period will end on the next Business Day, unless that day is
in the following month, in which case the Funding Period will end on
the preceding Business Day.
6.4 If a Funding Period of a number of months commences on a date in a
month and there is no corresponding date in the month in which it is
to end, it will end on the last Business Day of the latter month.
6.5 No Funding Period may extend beyond the Final Maturity Date. The
Borrower shall select Funding Periods for Segments so as to ensure
that each Reduction Date for the Cash Advance Facility coincides with
the last day of Funding Periods of outstanding Segments of that
Facility which have a principal amount not less than the principal
amount to be repaid on that day.
6.6 If the Borrower fails to select Funding Periods complying with this
clause 6 the Agent may vary any Drawdown Notice to ensure compliance.
7 REPAYMENT
REPAYMENT - CASH ADVANCE FACILITY
7.1 Subject to the repayments provided for in clauses 7.5, 7.6 and 7.7,
the Borrower shall repay the Principal Outstanding under the Cash
Advance Facility on the Final Maturity Date.
REPAYMENT - LC FACILITY
7.2
(a) The Borrower shall repay the LC Facility in accordance with this
Agreement or as otherwise agreed under the LC Facility.
(b) The Borrower shall finally repay the Principal Outstanding under
the LC Facility on the Final Maturity Date.
ALLOCATION AMONG PARTICIPANTS
7.3 Repayments will be applied rateably among the Participants according
to their participation in the Principal Outstanding for that Facility.
ALLOCATION AMONG SEGMENTS
7.4 All repayments under clauses 7.1 and 7.5 will be applied in reduction
of those Segments which the Borrower may specify after consultation
with the Agent. To the extent practicable repayments will only be
applied against Segments which have Funding Periods which end on the
relevant Reduction Date.
MANDATORY REPAYMENTS
7.5 The Cash Advance Commitments will reduce rateably:
(a) during the term of the Facility, on each anniversary of the date
of the Amending and Restatement Deed, by an amount equal to 75%
of the Excess Cash Flow for the 12 month period immediately
preceding each such anniversary date.
(b) subject to clause 15.1(e), with respect to the sale by any Group
member permitted by this Agreement of any asset with a market
value equal to or greater than $1,000,000 (other than an asset
disposed of in the ordinary course of day-to-day trading), and on
the date the purchase price is paid, by an amount equal to the
purchase price (or such lesser amount as the Agent, acting on the
instructions of the Majority Participants, may agree the
Participants to consider any such request by the Borrower on a
non-committal basis based on the commercial and financial
performance of the Borrower at the time of the request);
(c) with respect to the issue of any shares by any Group Member by
way of an initial public offer of shares in any Group Member and
on the date the Group Member receives the subscription proceeds,
by an amount equal to 85% of the net subscription proceeds. For
the avoidance of doubt, the parties acknowledge that, in the
event of any private equity investment in a Group Member whether
by a third party, a holder of shares or a related entity of a
holder of shares, then the proceeds of that investment may be
used at the sole discretion of the Borrower.
If, on any of the dates referred to in paragraph (a), (b) or (c)
("each a MANDATORY REPAYMENT DATE"), the aggregate of all outstanding
Segments exceeds the aggregate of the Cash Advance Commitments after
the reduction has occurred, then the Borrower must repay:
(i) in the case of the Excess Cash Flow referred to in paragraph
(a), the amount referred to in that paragraph within 90 days
of each anniversary of the date of the Amending and
Restatement Deed; and
(ii) in the circumstances referred to in paragraphs (b) and (c),
an amount equal to the excess on the last day of the next
Funding Period after the relevant Mandatory Repayment Date.
7.6 The Borrower must, on or before the second anniversary of the
Amendment Date, have repaid amounts including amounts pursuant to the
mandatory prepayments in clause 7.5 so that the Cash Advance
Commitments have been reduced by $2,000,000 in aggregate by that date.
7.7 If the Cash Advance Commitments have not been reduced by $2,000,000 in
total by the second anniversary of the Amendment Date, the Borrower
must repay an amount so that the Cash Advance Commitments have been
reduced by an aggregate amount (inclusive of repayments made prior to
that date) of $2,000,000 within 14 days of that date.
8 PREPAYMENTS
VOLUNTARY PREPAYMENTS
8.1 (a) Subject to this clause, if it gives at least 14 Business Days'
prior notice to the Agent (who shall promptly notify the
Participants) the Borrower may prepay all or part of the
Principal Outstanding under the Cash Advance Facility or the LC
Facility. The notice is irrevocable. The Borrower shall prepay in
accordance with it.
(b) Unless the Agent agrees otherwise, prepayment of part only of a
Segment or any amount under the LC Facility may only be made in a
principal amount of a minimum of $1,000,000.
VOLUNTARY PREPAYMENT ON EXPIRY OF FUNDING PERIOD
8.2 (a) Prepayments under clause 8.1 with respect to the Cash Advance
Facility may only be made on the last day of the Funding Period
of the relevant Segment.
(b) Prepayments under clause 8.1 with respect to the LC Facility may
only be made in accordance with the terms of the LC Facility.
INTEREST
8.3 The Borrower shall pay any interest accrued on any amount prepaid
under this Agreement at the time of the prepayment.
LIMITATION ON PREPAYMENTS
8.4 The Borrower may not prepay all or part of the Principal Outstanding
except in accordance with this Agreement.
APPORTIONMENT
8.5 Prepayments under clause 8.1 will be applied rateably in reduction of
the respective participation of all the Participants in the Principal
Outstanding under the applicable Facility.
REDRAWING
8.6 Subject to this Agreement, prepayments or repayments under a Facility
will not be available for redrawing.
9 CASH ADVANCE FACILITY
ADVANCE OF SEGMENT
9.1 (a) Subject to this Agreement, whenever the Borrower requests a
Segment of the Cash Advance Facility, each Participant shall make
available its Share of that Segment to the Agent in immediately
available funds by 11.00 am (Sydney time) on the relevant
Drawdown Date for the account of the Borrower, except to the
extent the Segment continues a previous Segment of the Cash
Advance Facility.
(b) On receipt the Agent will pay it to the relevant account
specified in the Drawdown Notice.
(c) The Borrower shall ensure that there are no more than three
Segments outstanding at any one time.
(d) Subject to clauses 5.3 and this clause 9.1, the Borrower may
split or combine Segments.
REPAYMENT
9.2 The Borrower shall repay each Segment of the Cash Advance Facility
provided to it on the last day of its Funding Period, except that it
directs the Agent to apply to repayment of a maturing Segment the
proceeds of any new Segment of the Cash Advance Facility drawn or to
be drawn on that date.
INTEREST
9.3 Interest in the fixed sum of A$3,500,000 per annum is payable by the
Borrower on the Cash Advance Facility. The Borrower shall pay Interest
monthly in arrears in equal instalments on the day which is 30 days
after the last day of each Funding Period.
PREPARATION OF RELIQUEFICATION BILLS
9.4 The Borrower irrevocably and for valuable consideration authorises
each Participant (at the option of the Participant) from time to time:
(a) to prepare Reliquefication Bills in relation to a Segment of the
Cash Advance Facility; and
(b) by its Authorised Officer, to sign them as drawer, endorser
and/or acceptor in the name of and on behalf of the Borrower.
REQUIREMENTS OF RELIQUEFICATION BILLS
9.5 (a) The total face amount of Reliquefication Bills prepared by any
Participant and outstanding in relation to any Segment must not
at any time exceed:
(i) that Participant's Share of the principal amount of that
Segment; plus
(ii) the total interest which has accrued or will accrue on that
Share during the relevant Funding Period.
(b) Reliquefication Bills must mature on or before the last day of
the relevant Funding Period or as agreed by the Agent.
DEALING WITH RELIQUEFICATION BILLS
9.6 Each Participant may realise or deal with any Reliquefication Xxxx
prepared by it as it thinks fit.
INDEMNITY
9.7 (a) Each Participant shall indemnify the Borrower on demand against
all liabilities, costs and expenses incurred by the Borrower by
reason of it being a party to a Reliquefication Xxxx prepared by
that Participant.
(b) Paragraph (a) does not affect any obligation of the Borrower
under this Agreement. In particular the obligation of the
Borrower to pay any principal, interest or other moneys under
this Agreement is absolute and unconditional. It is not in any
way affected by any liability of a Participant, contingent or
otherwise, under this indemnity.
(c) If a Reliquefication Xxxx is presented to the Borrower and the
Borrower discharges it by payment, the amount of that payment
will be taken to have been applied against the moneys outstanding
under this Agreement to that Participant.
STAMP DUTY ON RELIQUEFICATION BILLS
9.8 Each Participant shall pay any stamp duty on Reliquefication Bills
requested by it.
10 LETTER OF CREDIT FACILITY
ISSUE OF LETTERS OF CREDIT
10.1 Subject to this Agreement, whenever the Borrower gives a Drawdown
Notice requesting a Letter of Credit:
(a) the Agent shall promptly notify the Participants;
(b) by 11.00 am (Sydney time) on the second Business Day before each
Drawdown Date each Participant shall authorise the Agent to
execute and issue on its behalf the Letter of Credit or Letters
of Credit requested in the relevant Drawdown Notice or such other
time as the Agent agrees;
(c) that authorisation must be substantially in the form of annexure
C and must be given by tested telex or other means acceptable to
the Agent; and
(d) if it receives those authorisations, on that Drawdown Date the
Agent shall issue the Letter of Credit or Letters of Credit on
behalf of the Participants in their respective Shares.
FORM
10.2 Each Letter of Credit must be substantially in the form of annexure D
or in any other form agreed by the Agent, the Borrower and the
Participants.
NUMBER
10.3 No more than three (or such greater number as may be agreed between
the Borrower and the Agent acting on the instructions of the Majority
Participants) Letters of Credit may be outstanding under this
Agreement at any one time.
EXPIRY DATE
10.4 Each Letter of Credit will expire on the day specified in the relevant
Drawdown Notice, which day must be no later than:
(a) where relevant, within 14 days after the final maturity date of
the relevant Secured Financing; and
(b) the last day of the Availability Period for the LC Facility.
AMOUNT
10.5 The principal amount of any Letter of Credit must be a minimum of
$100,000 and must not cause a breach of the limit in clause 2.1 and,
in the case of a Letter of Credit which secures Secured Financing,
must not exceed the maximum liability of the Borrower for repayment of
principal under that Secured Financing.
SECURED FINANCING
10.6 (a) The Borrower shall ensure that it is a term of any Secured
Financing that at any time after a declaration by the Agent under
clause 16.2(a) all money owing under that Secured Financing
(whether actually or contingently) will be immediately due and
payable upon written request by the Agent (acting on the
instructions of the Majority Participants) to the Beneficiary.
(b) The Borrower must advise the Agent of the terms and conditions of
the Secured Financing.
PARTICIPANT AS BENEFICIARY
10.7 A Participant may be a Beneficiary of a Letter of Credit. In that
case, when demand is made by it under the Letter of Credit, it will be
deemed to have made a payment equal to its Share of the amount of the
demand.
AGENT'S AUTHORITY
10.8 Each Participant irrevocably authorises the Agent to execute and issue
Letters of Credit on its behalf and in its name in accordance with
this clause. The Agent may rely on any tested telex or other
communication that it believes genuine.
NOTIFICATION OF ISSUE
10.9 The Agent shall promptly inform the other Participants of the issue of
any Letter of Credit.
DRAWINGS PROCEDURE
10.10 (a) The Agent shall give each Participant prompt notice of any claim
under any Letter of Credit. That notice will include or have
attached the form of the claim and its annexures and specify the
amount claimed from that Participant.
(b) Each Participant shall pay the Agent the amount payable by that
Participant under the Letter of Credit as soon as practicable and
no later than the next Business Day.
RECOVERY BY AGENT
10.11 (a) Unless it has received notice to the contrary, the Agent may
assume that each Participant will pay the full amount payable by
it under clause 10.10(b). In reliance on that assumption it may
pay that amount to the Beneficiary under the Letter of Credit. It
need not do so.
(b) If that amount is paid by the Agent but is not paid by the
Participant:
(i) the Agent may recover it from the Participant with interest,
which will accrue at the rate determined by the Agent, in
accordance with its usual practice, as the rate for advances
of similar duration and amount to banks and financial
institutions of the standing of the Participant; and
(ii) so long as and to the extent that it is not paid by the
Participant the Agent may recover it from the Borrower under
clause 10.13 as if it were a Participant and the relevant
amount had been paid by it as a Participant under the Letter
of Credit.
The Agent may make simultaneous claims under sub-paragraphs (i)
and (ii) but, with the exception of accrued interest, amounts
paid under one will commensurately reduce the amount payable
under the other.
PAYMENT OF SECURED FINANCINGS BY GROUP MEMBER
10.12 The Group Members shall pay all principal, interest and other amounts
when due and payable under or in relation to each Secured Financing.
INDEMNITY
10.13 (a) (PAYMENT) On demand the Borrower shall pay to the Agent in the
currency of the relevant Letter of Credit for the account of each
Participant all amounts paid or required to be paid by that
Participant under any Letter of Credit together with interest
from the date of payment under the Letter of Credit calculated as
specified in clause 18.
(b) (GENERAL INDEMNITY) On demand the Borrower shall indemnify each
Participant and the Agent against any loss, cost, charge,
liability or expense sustained or incurred in relation to any
Letter of Credit or as a direct or indirect consequence of any
claim made or purported to be made under any Letter of Credit, or
anything done by any person who is, or claims to be, entitled to
the benefit of a Letter of Credit, other than any loss, cost,
charge, liability or expense sustained or incurred by or because
of the wilful misconduct or gross negligence of the Agent or any
Participant.
OBLIGATIONS UNCONDITIONAL
10.14 The Borrower's obligations under clause 10.13 are absolute and
unconditional. They will not be subject to any reduction, termination
or other impairment by any set-off, deduction, abatement,
counterclaim, agreement, defence, suspension, deferment or otherwise
and the Borrower will not be released, relieved or discharged from any
obligations under this Agreement, nor will such obligations be
prejudiced or affected, for any reason including without limitation:
(a) any falsity, inaccuracy, insufficiency or forgery of or in any
demand, certificate or declaration or other document which on its
face purports to be signed or authorised pursuant to a Letter of
Credit;
(b) any failure by any Participant or the Agent to enquire whether
any cable or telex has been inaccurately transmitted or received
for any cause or has been sent by an unauthorised person;
(c) the impossibility or illegality of performance of or any
invalidity of or affecting any Transaction Document, any Secured
Financing or any Letter of Credit or any other agreement;
(d) any act of any Governmental Agency or arbitrator, including any
law, judgment, decree or order at any time in effect in any
jurisdiction affecting any of the terms of any Transaction
Document, any Secured Financing or any other document delivered
pursuant to any Transaction Document;
(e) any failure to obtain any Authorisation necessary or appropriate
in connection with this Agreement; or
(f) any time, waiver or other indulgence granted by any Participant
or the Agent,
except to the extent arising from the wilful misconduct or gross
negligence of the Agent or any Participant. Neither the Agent nor the
Participants are liable or under any duty to enquire in respect of any
of the matters mentioned in the above paragraphs.
INDEMNITY FROM PARTICIPANTS TO AGENT
10.15 Each Participant shall indemnify the Agent (in that capacity only)
rateable in accordance with its respective Commitment for any loss,
cost, charge, liability or expense the Agent may sustain or incur in
relation to or as a direct or indirect consequence of the issue of a
Letter of Credit on that Participant's behalf except to the extent
arising from the wilful misconduct, fraud or gross negligence of the
Agent.
11 PAYMENTS
MANNER
11.1 The Borrower and each Guarantor shall make all payments under any
Transaction Document in Same Day Funds by 11 am (Sydney time) on the
due date to the address for service of notices of the Agent, or to the
account specified by the Agent from time to time in respect of that
currency, without set-off or counterclaim and without deduction or
withholding, whether on account of Taxes (other than any Excluded Tax)
or otherwise.
PAYMENT TO BE MADE ON BUSINESS DAY
11.2 Whenever any payment becomes due on a day which is not a Business Day,
the due date will be the next Business Day in the same calendar month
or, if none, the preceding Business Day.
DISTRIBUTION BY AGENT
11.3 Unless any Transaction Document expressly provides otherwise, the
Agent shall promptly distribute amounts received under any Transaction
Document for the account of the Participants rateably among them and
in like funds as they are received by the Agent. To make any
distribution the Agent may buy and sell currencies in accordance with
its normal procedures.
APPROPRIATION WHERE INSUFFICIENT MONEYS AVAILABLE
11.4 Where amounts required to be distributed by the Agent under clause
11.3 on any day are not sufficient to make all the payments required,
those amounts will be appropriated between principal, interest and
other amounts then payable as the Agent determines. This appropriation
will override any appropriation made by the Borrower. Without
limitation the Agent may appropriate amounts first in payment of
amounts payable to it by way of indemnity or reimbursement.
UNANTICIPATED DEFAULT
11.5 (a) (ASSUMPTION AS TO PAYMENT) The Agent may assume that a party
("PAYER") due to make a payment for the account of another party
("RECIPIENT") makes that payment when due unless the Payer
notifies the Agent at least one Business Day before the due date
that the Payer will not be making the payment.
(b) (RELIANCE ON ASSUMPTION) In reliance on that assumption, the
Agent may make available to the Recipient on the due date an
amount equal to the assumed payment.
(c) (RECOUPMENT) If the Payer does not in fact make the assumed
payment, the Recipient shall repay the Agent the amount on
demand. The Payer will still remain liable to make the assumed
payment, but until the Recipient does repay the amount, the
Payer's liability will be to the Agent in the Agent's own right.
(d) (INTEREST) If the Payer is the Borrower or a Guarantor any
interest on the amount of the assumed payment accruing before
recovery will belong to the Agent. If the Payer is a Participant
that Participant shall pay interest on the amount of the assumed
payment at the rate determined by the Agent, in line with its
usual practice, for advances of similar duration to financial
institutions of the standing of the Participant.
ROUNDING
11.6 In making any allocation or appropriation under any Transaction
Document the Agent may round amounts to the nearest dollar.
WITHHOLDING TAX
11.7 Each of the parties acknowledge that if a law requires the Borrower to
withhold or deduct Taxes from a payment in respect of interest by the
Borrower to the Agent for and on behalf of Credit Lyonnais S.A.
("RELEVANT PAYMENT"), the Borrower:
(a) agrees to increase the amount payable to the Agent with respect
to the Relevant Payment by an amount equal to two-thirds of the
amount of withholding or deduction in respect of Taxes in
relation to that Relevant Payment;
(b) must make the deduction for Tax; and
(c) must pay the full amount deducted to the relevant authority in
accordance with applicable law and deliver the original receipts
to the Agent.
11.8 Each of the parties agree that the operation of clause 11.3 is varied
where the Agent receives an amount from the Borrower under clause
11.7(a) ("RELEVANT AMOUNT"). If the Agent receives the Relevant
Amount, the Agent must pay:
(a) the Relevant Amount to Credit Lyonnais S.A.; and
(b) the balance of the amount paid by the Borrower to the other
Participants in accordance with clause 11.3.
12 CHANGES IN LAW
INCREASED COSTS
12.1 Whenever any Indemnified Party determines that:
(a) the effective cost to the Indemnified Party of making, funding or
maintaining any Segment, any Letter of Credit or its Commitment
is increased in any way;
(b) any amount paid or payable to the Indemnified Party or received
or receivable by the Indemnified Party, or the effective return
to the Indemnified Party or any of its holding companies, under
or in respect of any Transaction Document is reduced in any way;
(c) the return of the Indemnified Party or any of its holding
companies on the capital which is or becomes directly or
indirectly allocated by the Indemnified Party or the holding
company to any Segment, any Letter of Credit or its Commitment is
reduced in any way; or
(d) insofar as any relevant law, official directive or request
relates to or affects its Commitment, any Segment, any Letter of
Credit or the Transaction Documents, the overall return on
capital of the Indemnified Party or any of its holding companies
is reduced in any way,
as a result of any change in, any making of, or any change in the
interpretation or application by any Governmental Agency of, or
compliance with, any law, official directive or request, then:
(e) that Indemnified Party will use reasonable endeavours to notify
the Borrower promptly of any event which it reasonably believes
is likely to have the above effect;
(f) (when it has calculated the effect of the above and the amount to
be charged to the Borrower under this clause) that Indemnified
Party shall promptly notify the Borrower of those calculations
(with reasonable details of calculations on request by the
Borrower); and
(g) on demand from time to time the Borrower shall pay for the
account of the Indemnified Party the amount certified by an
Authorised Officer of the Indemnified Party to be necessary to
compensate the Indemnified Party or the relevant holding company
(as the case may be) for the increased cost or the reduction.
That certificate is conclusive.
Without limiting the above in any way, this clause applies:
(h) to any law, official directive or request with respect to
Taxation except an Excluded Tax or on reserve, liquidity, capital
adequacy, special deposit or similar requirements;
(i) to official directives or requests which do not have the force of
law where it is the practice of responsible bankers or financial
institutions in the country concerned to comply with them; and
(j) where the increased cost or the reduction arises because the
relevant Indemnified Party or any of its holding companies is
restricted in its capacity to enter other transactions, is
required to make a payment, or forgoes or earns reduced interest
or other return on any capital or on any sum calculated by
reference in any way to the amount of any Segment, any Letter of
Credit, its Commitment or to any other amount paid or payable or
received or receivable under any Transaction Document or
allocates capital to any such sum.
MINIMISATION
12.2 (a) (NO DEFENCE) It will not be a defence that any cost, reduction or
payment referred to in this clause could have been avoided.
(b) (NEGOTIATION) At the request of the Borrower the Agent and any
relevant Participant shall negotiate in good faith with the
Borrower with a view to finding a way of minimising any cost,
reduction or payment or the effect of any unlawfulness or
impracticability referred to in clause 12.5.
SURVIVAL OF OBLIGATIONS
12.3 This clause survives the repayment of any relevant Segment, Letter of
Credit or Principal Outstanding and the termination of this Agreement.
PREPAYMENT ON INCREASED COSTS
12.4 (a) Within 60 days after the Borrower receives a notice under clause
12.1(e), the Borrower may notify the relevant Participant through
the Agent that it wishes to prepay the Participant's
participation in any Segment affected or cancel any Letter of
Credit affected (if that Letter of Credit has not been drawn on).
(b) The notification will be irrevocable. In the case of the Cash
Advance Facility, the Borrower shall prepay in accordance with it
on the last day of the relevant Funding Period or Funding Periods
current when the notification is given. In the case of the LC
Facility, the Borrower shall procure the release and return of
the relevant Letter of Credit by the Beneficiary to the Agent and
if that Letter of Credit has not been drawn on, the Agent will
cancel it.
ILLEGALITY
12.5 If the making of, or a change in the interpretation or application by
any Governmental Agency of, any law or treaty makes it unlawful or
impracticable for any Participant to make, fund or maintain the
advances or accommodation required under this Agreement:
(a) that Participant may terminate its Commitment by notice to the
Borrower;
(b) if required by the law or treaty, or if necessary to prevent or
remedy a breach of the law or treaty, the Borrower shall:
(i) in the case of the Cash Advance Facility, prepay that
Participant's participation in the Principal Outstanding; or
(ii) in the case of a Letter of Credit, the Borrower will procure
the cancellation and return to the Agent of the relevant
Letter of Credit and pay to the Agent for the account of the
Participants the total face amount of any relevant
outstanding Letters of Credit,
together with all interest, fees and other amounts payable to
that Participant under this Agreement, on the date which is the
earlier of:
(iii) 10 Business Days after the Borrower became aware of the
requirement to repay; and
(iv) the last day permitted under the relevant law or treaty; and
(c) the Borrower (if relevant) procure the cancellation and return of
the relevant Letter of Credit and shall make the prepayment
immediately or, if in the opinion of the relevant Participant
delay in prepayment is permitted by the law or treaty, or will
not cause a breach of the law or treaty, on the latest permitted
day.
13 CONDITIONS PRECEDENT
The obligations of each Participant or the Agent to make available
each Segment or any Letter of Credit are subject to the further
conditions precedent that:
(a) (REPRESENTATIONS TRUE) the representations and warranties by the
Borrower and each Guarantor in the Transaction Documents are true
as at the date of the relevant Drawdown Notice and the relevant
Drawdown Date as though they had been made at that date in
respect of the facts and circumstances then subsisting;
(b) (NO DEFAULT)
(i) no Event of Default is subsisting at the date of the
relevant Drawdown Notice and the relevant Drawdown Date or
will result from the provision of the Segment or amount; and
(ii) in the case of a Drawdown Notice, no Potential Event of
Default is subsisting at the date of the Drawdown Notice and
the relevant Drawdown Date or will result from the provision
of the Segment or amount;
(c) (AUTHORISATION) all necessary Authorisations for the provision of
that Segment or amount have been obtained; and
(d) (MATERIAL ADVERSE CHANGE) there has been no change in the
financial condition of the Relevant Companies or the Business
which, in the reasonable opinion of the Agent acting on the
instructions of the Majority Participants, may have a Material
Adverse Effect.
14 REPRESENTATIONS AND WARRANTIES
REPRESENTATIONS AND WARRANTIES
14.1 The Borrower and each Guarantor makes the following representations
and warranties:
(a) (STATUS) It is a corporation validly existing under the laws of
the place of its incorporation specified in this Agreement.
(b) (POWER) It has the power to enter into and perform its
obligations under the Transaction Documents to which it is
expressed to be a party, to carry out the transactions
contemplated by those documents and to carry on its business as
now conducted or contemplated.
(c) (CORPORATE AUTHORISATIONS) It has taken all necessary corporate
action to authorise the entry into and performance of the
Transaction Documents to which it is expressed to be a party, and
to carry out the transactions contemplated by those documents.
(d) (DOCUMENTS BINDING) Subject to general principles of equity and
laws affecting creditors' rights generally:
(i) each Transaction Document to which it is expressed to be a
party is its valid and binding obligation enforceable in
accordance with its terms, subject to any necessary stamping
and registration; and
(ii) subject to the relevant assumptions and qualifications made
in the legal opinions referred to in clause 3.1(e) of the
Amending and Restatement Deed, each Charge and any
Collateral Security is valid security over the Mortgaged
Property with the priority stated.
(e) (TRANSACTIONS PERMITTED) The execution and performance by it of
the Transaction Documents to which it is expressed to be a party
and each transaction contemplated under those documents did not
and will not violate in any material respect a provision of:
(i) a law or treaty or a judgment, ruling, order or decree of a
Governmental Agency binding on it;
(ii) its memorandum or articles of association or other
constituent documents; or
(iii) any other document or agreement which is binding on it or
its assets,
and, except as provided by the Transaction Documents, did not and
will not:
(iv) create or impose a Security Interest on any of its assets;
or
(v) allow a person to accelerate or cancel an obligation with
respect to Financial Indebtedness or Leases, or constitute
an event of default, cancellation event, prepayment event or
similar event (whatever called) under an agreement relating
to Financial Indebtedness, whether immediately or after
notice or lapse of time or both.
(f) (ACCOUNTS)
(i) Its most recent consolidated and unconsolidated audited
Accounts give a true and fair view of the matters with which
they deal.
(ii) There has been no subsequent change in its and its
Subsidiaries' state of affairs which is likely to have a
Material Adverse Effect.
(iii) Those Accounts are prepared consistently with past practice
of the Group and comply with current accounting practice
except to the extent disclosed in them and with all
applicable laws.
(iv) All material Financial Indebtedness, Leases and other
material contingent liabilities are disclosed in those
Accounts.
(v) No Relevant Company has executed a Guarantee for the purpose
of obtaining an order under section 313 of the Corporations
Law or an equivalent provision or for the purpose of
complying with any such order.
(g) (NO LITIGATION) To the best of its knowledge, information and
belief no litigation, arbitration, Tax claim, dispute or
administrative or other proceeding is current or pending or, to
its knowledge, threatened, which if adversely determined is
likely to have a Material Adverse Effect.
(h) (NO DEFAULT)
(i) It is not and none of its Subsidiaries is in material
default under a document or agreement (including an
Authorisation) binding on it or its assets which relates to
Financial Indebtedness or is material.
(ii) Nothing has occurred which constitutes an event of default,
cancellation event, prepayment event or similar event
(whatever called) under those documents or agreements,
whether immediately or after notice or lapse of time or
both, and which is subsisting.
(i) (AUTHORISATIONS) Each Authorisation which is required in relation
to:
(i) the execution, delivery and performance by it of the
Transaction Documents to which it is expressed to be a party
and the transactions contemplated by those documents;
(ii) the validity and enforceability of those documents and the
effectiveness or priority of the Charge or any Collateral
Security; and
(iii) its business as now conducted or contemplated and which is
material (including, without limitation, under Environmental
Law),
has been obtained or effected. Each is in full force and effect.
It has complied with each of them. It has paid all applicable
fees for each of them.
(j) (NO MISREPRESENTATION) All information provided by it to the
Agent and the Participants is true in all material respects at
the date of this Agreement or, if later, when provided. Neither
that information nor its conduct and the conduct of anyone on its
behalf in relation to the transactions contemplated by the
Transaction Documents, was or is materially misleading, by
omission or otherwise.
(k) (AGREEMENTS DISCLOSED) Each document or agreement which is
material to the Transaction Documents or the ability of a
Relevant Company to perform its obligations under a Transaction
Document, or which has the effect of varying a Transaction
Document, has been disclosed to the Agent in writing.
(l) (COPIES OF DOCUMENTS) All copies of documents (including its
latest audited Accounts and all Authorisations) given by it or on
its behalf to the Agent are true and complete copies. Those
documents are in full force and effect.
(m) (TITLE AND FINANCIAL INDEBTEDNESS)
(i) It is the sole beneficial owner of the Mortgaged Property
purported to be charged or mortgaged by it and all material
assets included in its latest audited Accounts free of any
other third party right or interest whatever other than as
permitted by clause 15.1(f).
(ii) None of its or its Subsidiaries' assets is subject to a
Security Interest which is not permitted by clause 15.1(f).
(n) (LAW) It and each of its Subsidiaries has complied with all laws
(including any Environmental Law) binding on it where breach may
have a Material Adverse Effect.
(o) (ENVIRONMENTAL LAW) No act or omission has occurred and there is
no circumstance relating to the Mortgaged Property or its
business or the assets or business of any of its Subsidiaries, or
the Business, which has given rise or may give rise to:
(i) a substantial claim against it or any of its Subsidiaries;
(ii) a requirement of substantial expenditure by it or any of its
Subsidiaries; or
(iii) a requirement that it or any of its Subsidiaries ceases or
substantially alters an activity,
under Environmental Law to the best of the knowledge,
information and belief of the Borrower and each Guarantor.
Without limitation none of its assets is contaminated, all
assets are within applicable environmental standards and all
emissions and discharges are within standards or limits
imposed by all relevant laws and Authorisations.
(p) (TRUST) It does not hold any assets as the trustee of any trust
other than:
(i) any implied, constructive or resulting trust which arises as
part of the ordinary course of its business; and
(ii) any superannuation trust which has been notified to the
Agent.
(q) (CORPORATE TREE)
(i) ABN is the beneficial owner of all issued shares in ABNAH.
(ii) ABNAH is the beneficial owner of all issued shares in the
Borrower.
(iii) The Borrower is the sole beneficial owner of all shares in
the Holding Subsidiary and ABP.
(iv) The Holding Subsidiary is the sole beneficial owner of all
shares in American Banknote Australasia Pty Limited and
American Banknote New Zealand Limited.
(r) (SUBSIDIARIES) It has no Subsidiaries at the date of this
Agreement except for any Guarantor and as disclosed in paragraph
(q) and shown in annexure G.
(s) (FINANCIAL INDEBTEDNESS) At the date of this Agreement it has no
Financial Indebtedness except as disclosed in annexure E.
(t) (TAXES) It has punctually paid all Taxes owing by it other than
Taxes which are being contested in good faith.
(u) (SOLVENCY) As a consequence of entering into the Amending and
Restatement Deed, there are no reasonable grounds to suspect that
it is unable to pay its debts existing at the Amendment Date
(including using the proceeds of other financial accommodation)
as and when they become due and payable.
RELIANCE ON REPRESENTATIONS AND WARRANTIES
14.2 The Borrower and each Guarantor acknowledges that the Agent and the
Participants have entered the Transaction Documents in reliance on the
representations and warranties in this clause.
REPETITION FOR GUARANTORS
14.3 On the accession of any Guarantor under clause 33, the representations
and warranties in clause 14.1 (other than (s)) will automatically be
repeated in relation to that Guarantor by that Guarantor.
15 UNDERTAKINGS
GENERAL UNDERTAKINGS
15.1 The Borrower and each Guarantor undertakes to each Indemnified Party
as follows, except to the extent that the Agent acting on the
instructions of the Majority Participants consents.
(a) (CORPORATE REPORTING AND INFORMATION) It will provide to the
Agent in sufficient copies for the Participants:
(i) (ANNUAL ACCOUNTS) as soon as practicable (but no later than
125 days) after the close of each of its financial years
copies of its consolidated and unconsolidated audited
Accounts in respect of that financial year including balance
sheets, cashflow and profit and loss statements (or such
later period with the consent of the Agent such consent not
to be unreasonably withheld where the Borrower has been
given an extension of time to file its annual Accounts with
the relevant Governmental Agency). The parties acknowledge
that the Borrower will provide copies of the annual Accounts
for the year ended 31 December 2000 to the Agent on or
before the date which is 30 days after the Effective Date;
(ii) (HALF YEARLY REPORTS) as soon as practicable (but within 30
days after the end of the first 6 months of each financial
year) copies of its consolidated and unconsolidated half
yearly financial reports including balance sheets, cashflow
and profit and loss statements and summary of cash flow and
adjusted forward cash flow for the next quarter;
(iii) (BUDGET) by 15 January of each year, a budget for the Group
for the next financial year including an amount set out as
capital expenditure (if any), approved by the directors of
the Borrower;
(iv) (NARRATIVE) if a line item in any annual Account provided
under sub-paragraph (i) or quarterly report provided under
sub-paragraph (ii) varies by 10% or more from the same line
item in the relevant budget provided under sub-paragraph
(iii), a narrative explaining the reason for that variance;
(v) (RATIOS) at the time it provides the Accounts referred to in
sub-paragraphs (i) and (ii) a certificate signed by the
managing director and chief financial officer of the
Borrower at that time which certifies whether in their
opinion the Group Members have complied with the financial
undertakings in clause 15.3 and which details:
(A) the figures and calculations supporting the
certificate; and
(B) any past breaches of those undertakings not already
notified and, if applicable, how they were remedied;
(vi) (DOCUMENTS ISSUED TO SHAREHOLDERS) promptly, all documents
which applicable law requires it to issue to its
shareholders, debenture holders or holders of other
Marketable Securities issued by it;
(vii) (LITIGATION) promptly, written particulars of any
litigation, arbitration, Tax claim, dispute or
administrative or other proceeding in relation to the
Mortgaged Property or it or its Subsidiaries involving a
claim exceeding $500,000 or its equivalent other than a
claim for worker's compensation;
(viii) (GOVERNMENTAL AGENCY) promptly, any notice, order or
material correspondence from or with a Governmental Agency
relating to the Mortgaged Property or its use or the
Business which may have a Material Adverse Effect;
(ix) (MONTHLY REPORTS) within 14 Business Days after the end of
each month, monthly management accounts including:
(A) financial covenant calculations;
(B) balance sheet;
(C) profit and loss statement;
(D) cashflow statement; and
(E) an executive summary:
(aa) comparing the monthly financial results to the
Cash Flow Projections (including an explanation of
any material variances); and
(ab) detailing the progress made in achieving targets
set out in the Profit Improvement Plan and the
Four Zero Based Projects;
(x) (OTHER INFORMATION) promptly, any other information in
relation to the Mortgaged Property or its or its
Subsidiaries' financial condition or business which the
Agent may reasonably request; and
(xi) (QUARTERLY RESULTS) no later than 14 Business Days after a
Quarterly Date (or such other time as agreed by the Borrower
and the Agent), the Borrower will provide to the Agent a
copy of the operating forecast for the current calendar
quarter and a copy of the operating results for the
immediately preceding calendar quarter.
(b) (ACCOUNTING PRINCIPLES) It will ensure that the Accounts provided
to the Agent under paragraph (a):
(i) comply with current accounting practice except to the extent
disclosed in them and with all applicable laws; and
(ii) give a true and fair view of the matters with which they
deal.
(c) (AUTHORISATIONS) It will ensure that each Authorisation required
for:
(i) the execution, delivery and performance by it of the
Transaction Documents to which it is expressed to be a party
and the transactions contemplated by those documents;
(ii) the validity and enforceability of those documents and the
effectiveness and priority of the Charge or any Collateral
Security; and
(iii) the carrying on by it and its Subsidiaries of its and the
Business as now conducted or contemplated (including under
Environmental Law),
is obtained and promptly renewed and maintained in full force and
effect. It will pay all applicable fees for them. It will provide
copies promptly to the Agent when they are obtained or renewed
upon the request of the Agent.
(d) (NOTICE TO AGENT) It will notify the Agent as soon as it becomes
aware of:
(i) any Event of Default or Potential Event of Default;
(ii) any proposal by a Governmental Agency to acquire
compulsorily any of the Mortgaged Property or the whole or a
substantial part of its or any of its Subsidiaries' assets
or business;
(iii) any substantial dispute between it or any of its
Subsidiaries and a Governmental Agency;
(iv) any change in its Authorised Officers, giving specimen
signatures of any new Authorised Officer appointed, and,
where requested by the Agent, evidence satisfactory to the
Agent of the authority of any Authorised Officer;
(v) any change in its senior management; and
(vi) any representation given under clause 14 that is incorrect
or misleading when made or repeated.
(e) (DISPOSAL OF ASSETS) It will not sell or otherwise dispose of,
part with possession of, or create an interest in, any of the
Mortgaged Property or all or a substantial part of its assets or
agree or attempt to do so (whether in one or more related or
unrelated transactions) except (and in the case of the Mortgaged
Property, subject to the Charge and any Collateral Security):
(i) as permitted by paragraph (f);
(ii) disposals of assets in exchange for other assets comparable
in value (other than a factoring on recourse terms or a sale
and Lease back or similar transaction); and
(iii) disposals in the ordinary course of day-to-day trading at
arm's length for valuable commercial consideration of:
(A) stock in trade; or
(B) any other single asset having a book value less than or
equal to $500,000 or where total net book value of that
asset and all such other assets of the Group so
disposed of in any calendar year does not exceed
$1,500,000.
Where a Subsidiary issues shares and its holding company does not
acquire all the shares, or (as the case may be) a rateable
portion of those shares according to its then shareholding, the
holding company will be taken to have disposed of the shares it
does not acquire.
(f) (NEGATIVE PLEDGE) It will not create or allow to exist a Security
Interest over its assets other than:
(i) the Charge or any Collateral Security;
(ii) a lien arising by operation of law in the ordinary course of
day-to-day trading and not securing Financial Indebtedness
where it duly pays the indebtedness secured by that lien
other than indebtedness contested in good faith; and
(iii) a right of set off arising out of a banker/customer
relationship or implied by operation of law arising in the
ordinary course of its business.
(g) (SECURITY DEPOSIT) It will not deposit or lend money on terms
that it will not be repaid until its or another person's
obligations or indebtedness are performed or discharged. It will
not deposit money with or lend money to a person (other than an
Indemnified Party) to whom it is, or is likely to become,
actually or contingently indebted except with a bank or other
financial institution in the ordinary course of its business.
(h) (TITLE RETENTION) It will not enter into an agreement with
respect to the acquisition of assets on title retention terms
except in the ordinary course of day-to-day trading.
(i) (SALE AND LEASE BACK) It will not sell or otherwise dispose of
any of its assets (other than Permitted Sale Assets) to a person
where, under the terms of that sale or disposal, or under a
related transaction, that asset is or may be Leased to a Relevant
Company or its Associate.
(j) (PARTNERSHIP AND JOINT VENTURES) Without the Agent's prior
written consent (such consent not to be unreasonably withheld),
it will not enter into a partnership or joint venture with
another person if the aggregate investment of the Group Members
in, or the amount of any contractual undertaking of liability in
any partnership or joint venture at the relevant date is, or
would upon entering into that partnership or joint venture be,
greater than $3,000,000.
(k) (CORPORATE EXISTENCE) It will do everything necessary to maintain
its corporate existence in good standing. It will not transfer
its jurisdiction of incorporation or enter any merger or
consolidation.
(l) (COMPLIANCE WITH LAW) It will comply fully with all laws binding
on it where non-compliance is reasonably likely to have a
Material Adverse Effect.
(m) (PAY TAXES) It will pay all Taxes payable by it when due, but:
(i) it need not pay Taxes for which it has set aside sufficient
reserves and which are being contested in good faith, except
where failure to pay those Taxes may have a Material Adverse
Effect; and
(ii) it will pay contested Taxes which it is liable to pay on the
final determination or settlement of the contest.
(n) (COMMERCIAL DEALINGS)
(i) It will not deal in any way with any person except at arms'
length in the ordinary course of business for valuable
commercial consideration.
(ii) It will obtain a fair market rent or licence fee for any
Lease granted by it in respect of any Mortgaged Property.
(iii) It will ensure that all sales by a Relevant Company of its
products are made on terms that not more than six months'
credit after delivery is granted for the purchase price.
(o) (DISTRIBUTIONS) It will not declare or make or carry into effect
any Distribution (whether in cash or in kind and whether out of
capital, profits, surplus or reserves) (other than a Distribution
made to the Borrower or a Guarantor) in any period.
(p) (FINANCIAL ASSISTANCE) It will not:
(i) advance money or make available financial accommodation to
or for the benefit of; or
(ii) give a Guarantee or Security Interest in connection with an
obligation or liability of,
any person, but it may:
(iii) deposit funds with a bank in the ordinary course of its
business unless it owes Financial Indebtedness to that bank
and the bank is not an Indemnified Party or a Beneficiary;
and
(iv) issue performance Guarantees with respect to the obligations
of other Group Members in the ordinary course of business
where the aggregate maximum liability under all such
Guarantees given by Group Members outstanding at any time
does not exceed $3,000,000;
(v) allow its customers to acquire goods and services on
extended terms in the ordinary course of trading;
(vi) enter into foreign exchange and interest rate hedging
arrangements in good faith on normal commercial terms at
arm's length in the ordinary course of business and meet
margin requirements under those arrangements;
(vii) enter into the Transaction Documents; and
(viii) advance money or make available financial accommodation to
or for the benefit of the Borrower or a Guarantor.
(q) (BUSINESS CONDUCT) It will carry on and conduct its business in a
proper and efficient manner. It will not cease or materially
change its business or the Business. It will not, and will ensure
that each Relevant Company will not, take action whether by
acquisition or otherwise which alone or in aggregate would
materially alter the nature of the Business or the business of
the Group taken as a whole.
(r) (FINANCIAL INDEBTEDNESS) It will not incur any Financial
Indebtedness except:
(i) under the Transaction Documents;
(ii) to any person who has given a Satisfactory Charge;
(iii) Secured Financing;
(iv) if that Financial Indebtedness is unsecured and, after it
incurs that Financial Indebtedness, the aggregate unsecured
Financial Indebtedness of the Group would not exceed
$500,000; or
(v) to a person who has entered into foreign exchange or
interest rate hedging agreements referred to in paragraph
(p)(vi).
For the avoidance of doubt, the Borrower and each Guarantor is
permitted to enter into finance and operating leases in the
ordinary course of business.
(s) (SUBSIDIARIES)
(i) It will not create or acquire a Subsidiary unless at the
time of becoming a Subsidiary the Subsidiary becomes a
Guarantor pursuant to clause 33 and gives a Satisfactory
Charge.
(ii) It will ensure that each of its Subsidiaries complies with
paragraphs (b) and (e) to (w) inclusive as if binding on
each of them and as if references to IT were to the
Subsidiary.
(t) (RATIFICATION) As shareholder of any Relevant Company, it
ratifies and confirms the execution, delivery and performance by
each Relevant Company of each Transaction Document. It will be
taken to have ratified and confirmed the execution, delivery and
performance of each Satisfactory Charge and each Guarantor
Accession Deed to which any entity of which it is a shareholder
is at any time expressed to be party.
(u) (ACQUISITIONS) It will not acquire or establish any business or
acquire any shares in any person other than a Relevant Company.
(v) (CAPITAL EXPENDITURE) It will not incur capital expenditure:
(i) during the financial year ending 31 December 2001, in excess
of A$5,000,000;
(ii) during the financial year ending 31 December 2002, in excess
of A$6,500,000; and
(iii) during any other financial year, in excess of 130% of the
actual capital expenditure incurred in the immediately
preceding financial year,
without the approval of the Agent such approval not to be
unreasonably withheld. If the Agent does not respond to a request
for additional capital expenditure within 30 days of the request
being received by the Agent, the Agent's consent will be deemed
to have been given.
(w) (JOINT VENTURE NOTICES) It will provide to the Agent any copies
of material notices that are received in relation to the JV.
(x) (SENIOR MANAGEMENT EMPLOYMENT CONTRACTS) It must enter into an
employment contract with Xxxxx Xxxx to act as chief executive
officer The Borrower will notify the Agent of the employment of
any other key executives.
If Xxxxx Xxxx resigns, chooses not to renew his contract or
becomes unable to carry out the role due to death or disability
("CEO EVENT"), the Borrower will:
(A) immediately notify the Agent of the CEO Event; and
(B) use all reasonable efforts to appoint a successor chief
executive officer within 6 months of the CEO Event (or
such longer period with the consent of the Agent such
consent not to be unreasonably withheld) and such chief
executive officer to be approved by the Majority
Participants (acting reasonably).
(y) (CHAPTER 11 MATTERS) The Borrower will undertake to provide the
Agent with a monthly update on the status of the US Bankruptcy
Court proceedings under Chapter 11 of the United States
Bankruptcy Code relating to ABN.
UNDERTAKINGS RELATING TO MORTGAGED PROPERTY
15.2 The Borrower and each Guarantor undertakes to each Indemnified Party
as follows, except to the extent that the Agent acting on the
instructions of the Majority Participants consents otherwise.
(a) (PAY OUTGOINGS)
(i) Subject to sub-paragraph (ii), it will promptly pay all
outgoings payable by it in respect of the Mortgaged Property
(including rent royalties and Taxes).
(ii) It need not pay outgoings which are being contested in good
faith except where failure to pay may have a Material
Adverse Effect.
(iii) It will pay contested outgoings which it is liable to pay
on the final determination or settlement of the contest.
(iv) On request by the Agent it will immediately provide to the
Agent evidence of every payment covered by this undertaking.
(b) (MAINTENANCE)
(i) It will maintain the Mortgaged Property in a good state of
repair and in good working order and condition.
(ii) On being reasonably required to do so by the Agent it will
immediately amend every material defect in the repair and
condition of the Mortgaged Property (fair wear and tear
excepted).
(c) (INSURANCE)
(i) (GENERAL OBLIGATION) In its name and in the name of the
Agent on behalf of the Participants it will:
(A) insure and keep insured the Mortgaged Property which is
of an insurable nature to the full replacement or
re-instatement value; and
(B) take out and keep in force other insurance with respect
to the Business, the Mortgaged Property and each
business in which the Mortgaged Property is used
(including any insurance reasonably requested by the
Agent and public risk, worker's compensation, product
liability, business interruption insurance and fidelity
insurance),
in the manner and to the extent:
(C) which the Agent determines reasonable and customary for
a business enterprise engaged in a similar business and
in a similar locality, and for property of the nature
of the Mortgaged Property; or
(D) for so long as the Agent has made no determination or
request under this sub-paragraph (i), which a business
enterprise holding similar property, and engaged in a
business in a similar locality, would prudently insure
against.
(ii) (PAYMENT OF PREMIUMS) It will pay when due all premiums,
commissions, levies, stamp duties, charges and other
expenses necessary for taking out those insurance policies
and keeping them in force.
(iii) (INSURERS) It will take out each insurance policy with
independent and reputable insurers approved by the Agent
located in jurisdictions approved by the Agent. The Agent
will not unreasonably withhold that approval.
(iv) (INFORMATION) On request it will provide to the Agent
certificates of currency in respect of all insurance
policies, and other details on the insurance policies which
the Agent requires.
(v) (ANNUAL REPORT) On or about each anniversary of the date of
this Agreement it will provide to the Agent a report on
those insurance policies at the date of the report and on
claims and other material events with respect to those
insurances during the previous twelve months.
(vi) (NO PREJUDICIAL ACTION) It will not do, permit, or omit to
do, anything which may prejudice an insurance policy.
(vii) (CONTENTS OF POLICY) Without limiting sub-paragraph (i), it
will ensure that each insurance policy is on terms and
conditions satisfactory to the Agent and, without
limitation, provides that:
(A) the Agent (on behalf of the Participants) is named as
loss payee with respect to payments required under
paragraph (B);
(B) if in any 12 month period claims under the policy
exceed $250,000, proceeds in excess of that amount will
be paid to the Agent;
(C) the insurer waives its right to set off or counter
claim or to make any other deduction or withholding
against the Agent and each person claiming under the
Agent;
(D) all claims for insurance premiums, levies, stamp
duties, charges or commissions against the Agent and
each person claiming under the Agent are waived;
(E) the insurer will not terminate the policy unless the
relevant default or breach remains unremedied for at
least 14 days after notice by the insurer to the Agent
specifying the default or breach;
(F) to the extent that the policy covers the interest of
the Agent and the Participants the insurer will not
refuse or reduce a claim or cancel or avoid the policy
except where the right to do so results from the fraud
of the Agent or a Participant;
(G) a claim for replacement or re-instatement value will be
paid even though the relevant asset is not replaced or
re-instated; and
(H) there is no averaging provision.
(viii) (REMEDY OF DEFAULT) If:
(A) it fails to take out or to keep in force an insurance
policy;
(B) the Agent determines that the insurer may become
entitled to cancel or avoid an insurance policy; or
(C) the Agent reasonably determines that the insurer under
a policy may not be capable of meeting a claim,
the Agent may do anything which it determines is advisable
or necessary to take out or keep in force that policy or to
take out a new policy complying with this clause at the cost
of the Relevant Company and or in the name of the Relevant
Company or the Participants or both. The Agent is not
obliged to do anything under this sub-paragraph.
(ix) (ENFORCEMENT BY AGENT) It will do everything (including
providing documents, evidence and information) necessary or
desirable in the opinion of the Agent to enable the Agent to
claim, and to collect or recover money due, under or in
respect of, an insurance policy.
(x) (NOTICE OF CLAIMS) As soon as possible it will notify:
(A) each of:
(aa) the Agent; and
(ab) (when it is required or it is advisable to do so)
the relevant insurer,
of any event which does or may give rise to a claim of
$1,000,000 or its equivalent or more under an insurance
policy; and
(B) the Agent of:
(aa) a cancellation, change or reduction in an
insurance policy;
(ab) an insurance policy becoming void or voidable; or
(ac) any other material circumstance or correspondence
relating to an insurance policy.
(xi) (USE OF INSURANCE PROCEEDS) It will use the proceeds of all
insurance policies received by it as follows:
(A) while an Event of Default subsists:
(aa) for a purpose described in sub-paragraph (B); or
(ab) towards payment of the Secured Moneys,
at the option of the Agent; or
(B) if no Event of Default subsists:
(aa) to the extent necessary towards replacement,
repair or reimbursement of the Mortgaged Property;
and
(ab) to discharge the relevant liability or to make
good the relevant loss covered by the insurance
policy.
The Agent will make available all proceeds received by the
Agent as and when the proceeds are actually required. The
Relevant Company will apply any surplus to reduce the
Secured Moneys.
(d) (PRESERVATION AND PROTECTION OF SECURITY)
(i) It will promptly do everything necessary or reasonably
required by the Agent:
(A) to preserve and protect the value of the Mortgaged
Property; and
(B) to protect and enforce its title and the title of the
Agent and the Participants as mortgagee to the
Mortgaged Property.
(ii) Without limiting the generality of sub-paragraph (i), it
will not permit lodgement of a caveat forbidding the
recording of an interest of it or the Agent or a Participant
in the Mortgaged Property.
(iii) If a caveat is lodged (other than a caveat lodged by the
Agent on behalf of the Participants) it will promptly do
everything in its power to remove it.
(iv) The generality of this paragraph does not limit, nor is it
limited by, the generality of any other paragraph of this
clause.
(e) (OTHER SECURITY INTERESTS) It will comply fully with all Security
Interests affecting the Mortgaged Property and the obligations
secured by those Security Interests.
(f) (ENVIRONMENTAL LAW) It will maintain procedures which in the
reasonable opinion of the Agent are adequate to monitor:
(i) its compliance with Environmental Law and Authorisations;
and
(ii) circumstances which may give rise to a claim or to a
requirement of substantial expenditure by it or of cessation
or material alteration of its activity (PERILOUS
CIRCUMSTANCES).
FINANCIAL UNDERTAKINGS
15.3 The Borrower and each Guarantor undertake to each Indemnified Party as
follows, except to the extent that the Agent acting on the
instructions of the Majority Participants consents.
(a) It will ensure that the ratio of:
(i) EBITDA for the 12 month period immediately preceding the
relevant Test Date; to
(ii) Interest Expense under this Agreement paid or payable in
cash during that period,
is:
(A) for the period to 31 March 2002, not less than 1.6:1;
and
(B) from 1 April 2002 to the Final Maturity Date, not less
than 2:1; and
(b) It will ensure that the ratio of:
(i) Total Debt at each Test Date; to
(ii) EBITDA for the 12 month period immediately preceding the
relevant Test Date
is:
(A) for the period to 31 March 2002, not greater than
11.4:1.
(B) from 1 April 2002 to 31 March 2003, not greater than
9.6:1
(C) from 1 April 2003 to the Final Maturity Date not
greater than 9.3:1
The ratios in this clause will be calculated:
(aa) monthly on a trailing 12 month basis; and
(ab) excluding any effect which may otherwise result
from the conversion of any of the Group's
operating Leases existing at the date of the
agreement to finance Leases.
The financial undertakings in this clause 15.3 will be
tested on each Test Date.
TERM OF UNDERTAKINGS
15.4 Each undertaking in this clause continues from the date of this
Agreement until the Secured Moneys are fully and finally repaid.
16 EVENTS OF DEFAULT
EVENTS OF DEFAULT
16.1 Each of the following is an Event of Default (whether or not it is in
the control of any Relevant Company).
(a) (OBLIGATIONS UNDER TRANSACTION DOCUMENTS) The Borrower or a
Guarantor fails:
(i) to pay an amount payable by it under a Transaction Document
when due;
(ii) to comply with any of its other obligations under a
Transaction Document (except where that failure is a failure
to pay an amount under clause 10.12, and that amount is less
than $500,000) and, if in the opinion of the Agent that
failure can be remedied within 10 Business Days, does not
remedy the failure within 10 Business Days of notice from
the Agent of that failure; or
(iii) to satisfy within the time stipulated any condition
subsequent, anything which the Agent made a condition of its
waiving compliance with a condition precedent or undertaking
in a Transaction Document.
(b) (MISREPRESENTATION) A representation, warranty or statement by or
on behalf of the Borrower or a Guarantor in a Transaction
Document, or in a document provided under or in connection with a
Transaction Document, is not true or is misleading when made or
repeated such that it would have a Material Adverse Effect.
(c) (CROSS DEFAULT)
(i) Financial Indebtedness or Leases (where the Lease relates to
property with a value of $250,000 or more at the date of the
Lease) of a Relevant Company in an aggregate amount equal to
or greater than $1,000,000 or its equivalent:
(A) is not paid when due (or within an applicable grace
period); or
(B) becomes due and payable before its stated maturity or
expiry;
(ii) a facility or obligation granted or owed by a person to a
Relevant Company to provide financial accommodation or to
acquire or underwrite Financial Indebtedness aggregating to
at least $250,000 or its equivalent is prematurely
terminated except in the case of voluntary termination as a
result of illegality; or
(iii) an event of default as defined in another Transaction
Document occurs.
For the purpose of this paragraph, if a person is required to
provide cash cover for Financial Indebtedness as a result of an
actual, likely or threatened default or an event of default or
termination, cancellation, special prepayment or similar event,
whatever called, that Financial Indebtedness will be taken to be
due and payable.
(d) (ADMINISTRATION, WINDING UP, ARRANGEMENTS, INSOLVENCY ETC.)
(i) An administrator of a Relevant Company is appointed.
(ii) Except for the purpose of a solvent reconstruction or
amalgamation previously approved by the Agent:
(A) an application (other than an application which is
frivolous or vexatious and which is contested in good
faith) or an order is made, proceedings are commenced,
a resolution is passed or proposed in a notice of
meeting or an application to a court or other steps are
taken for:
(aa) the winding up, dissolution or administration of a
Relevant Company; or
(ab) a Relevant Company entering into an arrangement,
compromise or composition with or assignment for
the benefit of its creditors or a class of them,
(other than applications, proceedings, notices and
steps which are dismissed or withdrawn within 10
Business Days and which the Relevant Company contests
in good faith during that period); or
(B) a Relevant Company ceases, suspends or threatens to
cease or suspend the conduct of all or a substantial
part of its business or disposes of or threatens to
dispose of a substantial part of its assets; or
(iii) a Relevant Company:
(A) is, or under legislation is presumed or taken to be,
insolvent (other than as the result of a failure to pay
a debt or claim the subject of a good faith dispute);
or
(B) stops or suspends or threatens to stop or suspend
payment of all or a class of its debts.
(e) (ENFORCEMENT AGAINST ASSETS)
(i) A receiver, receiver and manager, administrative receiver or
similar officer is appointed to;
(ii) a Security Interest is enforced over; or
(iii) a distress, attachment or other execution is levied or
enforced or applied for over,
all of the assets and undertaking of a Relevant Company or any
such assets or undertaking with a value in excess of $500,000 and
is not set aside, released or appealed against by the Relevant
Company within 5 Business Days.
(f) (REDUCTION OF CAPITAL) Without the prior consent of the Agent, a
Relevant Company:
(i) reduces its capital (including, without limitation, a
purchase by it of its shares but excluding a redemption of
redeemable shares or any redemption of shares held by Xxxxx
Xxxx as prescribed by his employment contract);
(ii) passes a resolution to reduce its capital or to authorise it
to purchase its shares or a resolution under section 256B or
257A of the Corporations Law or an equivalent provision, or
calls a meeting to consider such a resolution, other than in
relation to any Part 2J.3 procedure contemplated by this
Agreement; or
(iii) applies to a court to call any such meeting or to sanction
any such resolution or reduction.
(g) (INVESTIGATION) An investigation into all or part of the affairs
of any Relevant Company commences under companies legislation in
circumstances material to its financial condition.
(h) (ANALOGOUS PROCESS) Anything analogous to anything referred to in
paragraphs (d) to (g) inclusive, or having substantially similar
effect, occurs with respect to any Relevant Company under any
overseas law or any law which commences or is amended after the
date of this Agreement.
(i) (VITIATION OF DOCUMENTS)
(i) All or any part of a Transaction Document is terminated or
is or becomes void, illegal, invalid, unenforceable or of
limited force and effect; or
(ii) a party becomes entitled to terminate, rescind or avoid all
or part of a Transaction Document; or
(iii) a party other than the Agent or a Participant alleges or
claims that an event described in sub-paragraph (i) has
occurred or that it is entitled as described in
sub-paragraph (ii).
(j) (AMENDMENT OF ARTICLES) The memorandum or articles of association
of the Borrower or a Guarantor are amended in a material respect
adverse to the Indemnified Parties without the prior consent of
the Agent (which will not be withheld unreasonably).
(k) (REVOCATION OF AUTHORISATION) An Authorisation which is material
to the performance by any Relevant Company of a Transaction
Document, or to the validity and enforceability of a Transaction
Document, to the conduct of the Business or to the security of
the Agent and the Participants, is repealed, revoked or
terminated or expires, or is modified or amended or conditions
are attached to it in a manner unacceptable to the Agent and
which has a Material Adverse Effect, and is not replaced by
another Authorisation acceptable to the Agent.
(l) (MATERIAL ADVERSE CHANGE) Any other event or series of events,
whether related or not, occurs which has or is reasonably likely
to have a Material Adverse Effect.
(m) (CONTROL) Without the prior consent of the Agent:
(i) 40% or more of the voting shares in the Borrower are
acquired by any person or persons other than ABN or its
Related Corporations (where the acquisition of those shares
by that person or persons being subject to the terms of the
Shareholders Agreement); or
(ii) ABN or its Related Corporations ceases to be the largest
shareholder in the Borrower and in no event hold less than
40% of the voting shares.
(n) (COMPULSORY ACQUISITION)
(i) All or any part of the Mortgaged Property or other assets of
a Relevant Company is compulsorily acquired by or by order
of a Governmental Agency or under law and that acquisition
is reasonably likely to have a Material Adverse Effect; or
(ii) a Governmental Agency orders the sale, vesting or divesting
of all or any part of the Mortgaged Property or other assets
of a Relevant Company and that sale, vesting or divesting is
reasonably likely to have a Material Adverse Effect; or
(iii) a Governmental Agency takes a step for the purpose of any
of the foregoing or proposes or threatens to do any of the
foregoing.
(o) (GOVERNMENTAL INTERFERENCE) A law or anything done by a
Governmental Agency wholly or partially renders illegal, prevents
or restricts the performance or effectiveness of a Transaction
Document or otherwise has a Material Adverse Effect.
(p) (ENVIRONMENTAL EVENT)
(i) Any person takes action; or
(ii) there is a claim; or
(iii) there is a requirement of expenditure or of cessation or
alteration of activity,
under Environmental Law, which has or is reasonably likely to
have a Material Adverse Effect.
(q) (PROFIT IMPROVEMENT PROGRAM) The Borrower fails to carry out, and
meet the terms of, the Profit Improvement Program to a degree
which is unacceptable to the Majority Participants acting
reasonably.
CONSEQUENCES
16.2 In addition to any other rights provided by law or any Transaction
Document, at any time after an Event of Default occurs under clause
16.1(a) or any other Event of Default occurs which is not capable of
being cured, the Agent may, and shall if the Majority Participants
direct, do all or any of the following:
(a) by notice to the Borrower declare the Secured Moneys immediately
due and payable, and the Borrower shall immediately pay the
Secured Moneys;
(b) by notice to the Borrower cancel the Commitment;
(c) at the cost of the Borrower, appoint a firm of independent
accountants or other experts to review and report to the Agent
and the Participants on the affairs, financial condition and
business of any Relevant Company.
In respect of any Event of Default (other than an Event of Default
referred to in clause 16.1(a) or an Event of Default which is not
capable of being cured), the Agent may direct or do all or any of the
acts referred to in paragraphs (a) to (c) above 5 Business Days after
giving to the Borrower notice of the occurrence of the Event of
Default.
Each Relevant Company will do everything in its power to ensure the
review and report referred to in paragraph (c) can be carried out
promptly, completely and accurately. Without limitation, it will
co-operate fully with the review and ensure that the accountants and
experts are given access to all premises and records of each Relevant
Company and are given all information concerning any Relevant Company
which they require from time to time. It will ensure that all officers
and employees of each Relevant Company do the same.
CASH COVER FOR LETTERS OF CREDIT
16.3
(a) Each Participant shall hold by way of cash cover:
(i) any amount paid under clause 12.5 or clause 16.2(a) in
respect of the contingent liability under a Letter of Credit
or in respect of any other sum contingently owing; and
(ii) interest credited under this clause.
(b) A Participant:
(i) may at any time apply any such moneys in or towards
satisfaction of any sum at any time payable by the Borrower
to the Participant under or in relation to any Transaction
Document; and
(ii) shall apply any such moneys then remaining against any
amount payable under clause 10.10.
(c) Any moneys held under paragraph (a) (including interest) will
accrue and be credited with interest at a rate and in the manner
that the Participant determines would apply to deposits at call
(or of any other term specified by the Agent) of a similar amount
under its normal procedures.
(d) The balance of the moneys held under paragraph (a) (including
interest) will only be repayable to the extent that on any day it
exceeds the amount of the Secured Moneys payable to that
Participant (including without limitation the face amounts of all
outstanding Letters of Credit and all amounts which are then or
may subsequently become contingently owing). When ever there is
such an excess that excess will be payable on demand.
TECHNICAL DEFAULT IN PAYMENT
16.4 (a) Failure by the Borrower to pay an amount due will not constitute
an Event of Default under clause 16.1(a)(i) if:
(i) before the exercise of the Agent's powers under clause 16.2
the Borrower demonstrates to the reasonable satisfaction of
the Agent that it had sufficient available funds with its
bankers and had given appropriate instructions to those
bankers to make that payment and that the payment would have
been made but for temporary technical or administrative
difficulties outside the control of the Borrower; and
(ii) payment is received in the manner required within 3 Business
Days of the due date.
(b) If:
(i) the Agent notifies the Borrower by 3.00 pm (Sydney time) on
the due date for the relevant payment that the Agent has not
received the payment; and
(ii) the Borrower does not satisfy the Agent under sub-paragraph
(a)(i) in relation to that payment by close of business on
that due date,
the Agent may exercise its powers under clause 16.2 on or at
any time after the Business Day following the date on which
the payment was due.
In all other cases, the Agent will not exercise its powers under
clause 16.2 until the 3 Business Days referred to in paragraph (a)(ii)
have passed.
17 GUARANTEE
GUARANTEE
17.1 The Guarantors jointly and severally unconditionally and irrevocably
guarantee the due and punctual payment of the Secured Moneys. Each
Guarantor enters into this Agreement for valuable consideration which
includes, without limitation, the Indemnified Parties entering into
this Agreement at its request.
PAYMENT
17.2 On demand from time to time each Guarantor shall pay an amount equal
to the Secured Moneys then due and payable in the same manner and
currency which the Borrower is required to pay the Secured Moneys
under the relevant Transaction Document (or would have been but for
its Liquidation).
UNCONDITIONAL NATURE OF OBLIGATION
17.3 Neither this Agreement nor the obligations of any Guarantor under this
Agreement will be affected by anything which but for this provision
might operate to release, prejudicially affect or discharge them or in
any way relieve any Guarantor from any obligation including, without
limitation:
(a) the grant to any person of any time, waiver or other indulgence,
or the discharge or release of any person;
(b) any transaction or arrangement that may take place between any
Indemnified Party and any person;
(c) the Liquidation of any person;
(d) any Indemnified Party becoming a party to or bound by any
compromise, moratorium, assignment of property, scheme of
arrangement, composition of debts or scheme of reconstruction by
or relating to any person;
(e) any Indemnified Party exercising or delaying or refraining from
exercising or enforcing any document or agreement or any right,
power or remedy conferred on it by law or by any Transaction
Document or by any other document or agreement with any person;
(f) the amendment, variation, novation, replacement, rescission,
invalidity, extinguishment, repudiation, avoidance,
unenforceability, frustration, failure, expiry, termination,
loss, release, discharge, abandonment, assignment or transfer, in
whole or in part and with or without consideration, of any
Transaction Document or of any other document or agreement held
by any Indemnified Party at any time or of any right, obligation,
power or remedy;
(g) the taking or perfection of or failure to take or perfect a
document or agreement;
(h) the failure by any person or any Indemnified Party to notify any
Guarantor of any default by any person under any Transaction
Document or any other document or agreement;
(i) any Indemnified Party obtaining a judgment against any person for
the payment of any Secured Moneys;
(j) any legal limitation, disability, incapacity or other
circumstance relating to any person;
(k) any change in any circumstance (including, without limitation, in
the members or constitution of a person);
(l) this Agreement or any other document or agreement not being valid
or executed by, or binding on, any person; or
(m) any increase in the Secured Moneys for any reason (including,
without limitation, as a result of anything referred to above),
whether with or without the consent of the Guarantors. None of the
above paragraphs limits the generality of any other. A reference to
"any person" includes, without limitation, the Borrower or any other
Guarantor.
NO MARSHALLING
17.4 No Indemnified Party is obliged to marshal or appropriate in favour of
any Guarantor or to exercise, apply or recover:
(a) any Security Interest, Guarantee, document or agreement
(including, without limitation, any Transaction Document) held by
an Indemnified Party at any time; or
(b) any of the funds or assets that an Indemnified Party may be
entitled to receive or have a claim on.
NO COMPETITION
17.5 Until the Secured Moneys have been irrevocably paid and discharged in
full no Guarantor is entitled to and shall not:
(a) be subrogated to any Indemnified Party or claim the benefit of
any Security Interest or Guarantee held by any Indemnified Party
at any time;
(b) either directly or indirectly prove in, claim or receive the
benefit of, any distribution, dividend or payment arising out of
or relating to the Liquidation of the Borrower or any other
Guarantor or any other person who gives a Guarantee or Security
Interest in respect of any Secured Moneys; or
(c) have or claim any right of contribution or indemnity from the
Borrower or any other Guarantor or any other person who gives a
Guarantee or Security Interest in respect of any Secured Moneys.
The receipt of any distribution, dividend or other payment by any
Indemnified Party out of or relating to any Liquidation will not
prejudice the right of any Indemnified Party to recover the Secured
Moneys by enforcement of this Agreement.
SUSPENSE ACCOUNT
17.6 In the event of the Liquidation of the Borrower or any other person
(including, without limitation, any Guarantor) each Guarantor
authorises each Indemnified Party:
(a) to prove for all moneys which the Guarantors have paid that
Indemnified Party under this Agreement; and
(b) to:
(i) retain and carry to a suspense account; and
(ii) appropriate at the discretion of the Agent,
any dividend received in the Liquidation of the Borrower or any
other person and any other money received in respect of the
Secured Moneys,
until each Indemnified Party has been paid the Secured Moneys in full.
RESCISSION OF PAYMENT
17.7 Whenever for any reason (including without limitation under any law
relating to Liquidation, fiduciary obligations or the protection of
creditors):
(a) all or part of any transaction of any nature (including, without
limitation, any payment or transfer) made during the term of this
Agreement which affects or relates in any way to the Secured
Moneys is void, set aside or voidable;
(b) any claim that anything contemplated by paragraph (a) is so is
upheld, conceded or compromised; or
(c) any Indemnified Party is required to return or repay any money or
asset received by it under any such transaction or the equivalent
in value of that money or asset,
each Indemnified Party will immediately become entitled against each
Guarantor to all rights in respect of the Secured Moneys and the
Mortgaged Property which it would have had if all or the relevant part
of the transaction or receipt had not taken place. Each Guarantor
shall indemnify each Indemnified Party on demand against any resulting
loss, cost or expense. This clause continues after this Agreement is
discharged.
INDEMNITY
17.8 If any Secured Moneys (including moneys which would have been Secured
Moneys if they were recoverable) are not recoverable from the Borrower
for any reason (including, without limitation, any legal limitation,
disability, incapacity or thing affecting the Borrower) each Guarantor
shall indemnify each Indemnified Party on demand and shall pay those
moneys to the relevant Indemnified Party on demand.
This applies whether or not:
(a) any transaction relating to the Secured Moneys was void or
illegal or has been subsequently avoided; or
(b) any matter or fact relating to that transaction was or ought to
have been within the knowledge of any Indemnified Party.
CONTINUING GUARANTEE AND INDEMNITY
17.9 This clause:
(a) is a continuing guarantee and indemnity;
(b) will not be taken to be wholly or partially discharged by the
payment at any time of any Secured Moneys or by any settlement of
account or other matter or thing; and
(c) remains in full force until the Secured Moneys have been paid in
full and the Guarantors have completely performed their
obligations under this Agreement.
VARIATIONS
17.10 This clause covers the Secured Moneys as varied from time to time
including, without limitation, as a result of:
(a) any amendment to, or waiver under, any Transaction Document; or
(b) the provision of further accommodation to the Borrower,
and whether or not with the consent of or notice to the Guarantors.
This does not limit any other provision.
JUDGMENT
17.11 A judgment obtained against the Borrower will be conclusive against
each Guarantor.
CONDITIONS PRECEDENT
17.12 Any condition or condition precedent to the provision of financial
accommodation is for the benefit of the Indemnified Parties and not
the Guarantors. Any waiver of or failure to satisfy such a condition
or condition precedent will be disregarded in determining whether an
amount is part of the Secured Moneys.
AMERICAN BANKNOTE NEW ZEALAND LIMITED
17.13 Notwithstanding any other provision of any Transaction Document, the
total amount recoverable under this Agreement against American
Banknote New Zealand Limited at any time is the greater of:
(a) $2,550,000; or
(b) the value of the net assets of American Banknote New Zealand
Limited (being the total assets less the amount of any of its
liabilities which have priority ahead of its liabilities under
the Transaction Documents) as determined by reference to the most
recent Accounts delivered to Agent under clause 15.1(a)(i) or
(ii),
or its equivalent in other currencies as determined by the Agent.
18 INTEREST ON OVERDUE AMOUNTS
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ACCRUAL AND PAYMENT
18.1 (a) (ACCRUAL) Interest accrues on each unpaid amount which remains
due and payable beyond the date for payment by the Borrower or a
Guarantor under or in respect of any Transaction Document
(including interest payable under this clause):
(i) on a daily basis up to the date of actual payment from (and
including) the due date or, in the case of an amount
payable by way of reimbursement or indemnity, the date of
disbursement or loss, if earlier;
(ii) both before and after judgment (as a separate and
independent obligation); and
(iii) at the rate provided in clause 18.2.
(b) (PAYMENT) The Borrower and each Guarantor shall pay interest
accrued under this clause on demand by the Agent and on the last
Business Day of each calendar quarter. That interest is payable
in the currency of the unpaid amount on which it accrues.
RATE
18.2 The rate applicable under this clause is the sum of 2% per annum plus
the higher of:
(a) the rate (if any) applicable to the amount immediately before the
due date; and
(b) the sum of the Margin and the rate determined by the Agent on a
monthly basis to be its buying rate as at or about 10 am (Sydney
time) for bills of exchange which are accepted by an Australian
bank selected by the Agent and which have a term not exceeding
one month.
19 FEES
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FEES - GENERAL
19.1 The Borrower shall pay to the Agent and the Participants the fees
agreed between them.
19.2 [intentionally omitted]
LETTER OF CREDIT FEE
19.3 (a) (a) A letter of credit fee accrues at a rate equal to the Margin
on the daily amount on each Participant's Share of the amount for
which each Letter of Credit is effective.
(b) The fee is calculated on the actual number of days elapsed.
(c) The Borrower shall pay any accrued letter of credit fee to each
Participant in advance on the first Business Day of each calendar
quarter.
(d) If a Letter of Credit expires or is terminated or cancelled prior
to the end of a calendar quarter, each Participant shall refund
so much of the letter of credit fee paid to it which relates to
that Letter of Credit with respect to the period after the date
on which that Letter of Credit expired or has terminated or been
cancelled.
REFUND OF FEES
19.4 In the event that the Agent or Participants cancel the Commitments
before any financial accommodation has been provided to the Borrower
under this Agreement, the Agent and the Participants shall refund to
the Borrower any fees paid under clauses 19.2 and 19.3 less any costs
or expenses incurred by them in relation to the Facilities or the
Transaction Documents.
20 INDEMNITIES
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On demand the Borrower shall indemnify each Indemnified Party against
any loss, cost, charge, liability or expense the Indemnified Party (or
any officer of employee of the Indemnified Party) may sustain or incur
as a direct or indirect consequence of:
(a) the occurrence of any Event of Default or the breach of any
Transaction Document;
(b) any exercise or attempted exercise in good faith of any right,
power or remedy under any Transaction Document or any failure to
exercise any right, power or remedy;
(c) any omission from:
(i) any information memorandum or loan proposal prepared or
authorised by it; or
(ii) any document or information prepared, provided or authorised
by it,
or any claim in respect of any of the above (including
legal costs on a full indemnity basis);
(d) a Segment, or an amount under the LC Facility, requested in a
Drawdown Notice not being provided for any reason (including,
without limitation, failure to fulfil any condition precedent but
excluding any wilful default or gross negligence by the
Indemnified Party which is claiming under this clause); or
(e) a Participant receiving payments of principal in respect of any
Segment or other portion of its Commitment before the last day of
its Funding Period or day on which interest is calculated with
respect to it for any reason, including, without limitation,
prepayment under this Agreement, but excluding wilful default or
gross negligence by the Agent.
Without limitation the indemnity will cover any amount determined
by the relevant Participant to be incurred by reason of the
liquidation or re-employment of deposits or other funds
acquired or contracted for by the relevant Participant to
fund or maintain any Segment or amount (including loss of
margin) and by reason of the reversing or termination of any
agreement or arrangement entered into by the relevant
Participant to hedge, fix or limit its effective cost of
funding or maintaining any Segment or amount.
21 CONTROL ACCOUNTS
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The accounts kept by the Agent constitute sufficient evidence, unless
proven wrong, of the amount at any time due from the Borrower under
this Agreement.
22 EXPENSES
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On demand the Borrower shall reimburse:
(a) the Agent for its reasonable out-of-pocket expenses in relation
to the preparation, execution and completion of the Transaction
Documents and any subsequent consent, agreement, approval, waiver
or amendment;
(b) each Indemnified Party for its out-of-pocket expenses in relation
to:
(i) any actual enforcement of the Transaction Documents, or
actual exercise or preservation of any rights, powers or
remedies under the Transaction Documents or in relation to
the Mortgaged Property; and
(ii) any inquiry by a Governmental Agency concerning any Relevant
Company or a transaction or activity for which, or in
connection with which, financial accommodation or funds
raised under a Transaction Document are used or provided.
This includes, without limitation, legal costs and expenses (including
in-house lawyers charged at their usual rates) on a full indemnity
basis travelling and out of pocket expenses, any expenses incurred in
any review or environmental audit or in retaining consultants to
evaluate matters of material concern to the Indemnified Parties, and
(in relation to paragraph (b)) administrative costs including any time
of its executives (whose time and costs are to be charged at
reasonable rates).
23 STAMP DUTIES
-------------------------------------------------------------------------------
23.1 The Borrower shall pay all stamp, transaction, registration and
similar Taxes (including fines and penalties) which may be payable in
relation to the execution, delivery, performance or enforcement of any
Transaction Document or any payment or receipt or any other
transaction contemplated by any Transaction Document.
23.2 Those Taxes include financial institutions duty, debits tax or other
Taxes payable by return and Taxes passed on to any Indemnified Party
by bank or financial institution.
23.3 On demand the Borrower shall indemnify each Indemnified Party against
any liability resulting from delay or omission to pay those Taxes
except to the extent the liability results from failure by the
Indemnified Party to pay any Tax after having been put in funds to do
so by the Borrower.
24 SET-OFF
-------------------------------------------------------------------------------
If an Event of Default has occurred and subsists, the Borrower and
each Guarantor severally irrevocably authorises each Indemnified Party
to apply any credit balance in any currency (whether or not matured)
in any of its accounts with any branch of that Indemnified Party
towards satisfaction of any sum at any time due and payable by it to
that Indemnified Party under or in relation to any Transaction
Document. No Indemnified Party is obliged to make the application.
25 WAIVERS, REMEDIES CUMULATIVE
-------------------------------------------------------------------------------
25.1 No failure to exercise and no delay in exercising any right, power or
remedy under any Transaction Document operates as a waiver. Nor does
any single or partial exercise of any right, power or remedy preclude
any other or further exercise of that or any other right, power or
remedy.
25.2 The rights, powers and remedies provided to the Indemnified Parties in
the Transaction Documents are in addition to, and do not exclude or
limit, any right, power or remedy provided by law.
26 SEVERABILITY OF PROVISIONS
-------------------------------------------------------------------------------
Any provision of any Transaction Document which is prohibited or
unenforceable in any jurisdiction is ineffective as to that
jurisdiction to the extent of the prohibition or unenforceability.
That does not invalidate the remaining provisions of that Transaction
Document nor affect the validity or enforceability of that provision
in any other jurisdiction.
27 SURVIVAL OF REPRESENTATIONS AND INDEMNITIES
-------------------------------------------------------------------------------
27.1 All representations and warranties in any Transaction Document survive
the execution and delivery of the Transaction Documents and the
provision of advances and accommodation.
27.2 Each indemnity in any Transaction Document:
(a) is a continuing obligation;
(b) is a separate and independent obligation; and
(c) survives termination or discharge of the relevant Transaction
Document.
28 MORATORIUM LEGISLATION
-------------------------------------------------------------------------------
To the full extent permitted by law all legislation which at any time
directly or indirectly:
(a) lessens, varies or affects in favour of the Borrower or a
Guarantor any obligation under a Transaction Document; or
(b) delays, prevents or prejudicially affects the exercise by any
Indemnified Party of any right, power or remedy conferred by any
Transaction Document,
is excluded from the Transaction Documents.
29 ASSIGNMENTS
-------------------------------------------------------------------------------
ASSIGNMENT BY BORROWER AND GUARANTOR
29.1 Neither the Borrower nor any Guarantor may assign or transfer any of
its rights or obligations under this Agreement without the prior
written consent of the Agent acting on the instructions of all
Participants.
ASSIGNMENT BY PARTICIPANTS
29.2 A Participant may assign or transfer all or any of its rights or
obligations under the Transaction Documents at any time if:
(a) any necessary prior Authorisation is obtained;
(b) the Participant has obtained the consent of the Borrower (which
consent must not be unreasonably withheld);
(c) the minimum amount of the participation being assigned is
$2,500,000; and
(d) in the case of a transfer of obligations, the transfer is
effected by a substitution in accordance with clause 29.3.
For the avoidance of doubt, a Participant may only deal with its
interest in any Shares in accordance with the terms of the
Shareholders Agreement.
SUBSTITUTION CERTIFICATES
29.3 (a) If a Participant wishes to substitute a new bank or financial
institution for all or part of its participation under this
Agreement, it and the substitute shall in the Australian Capital
Territory or outside Australia execute and deliver to the Agent
four counterparts of a certificate substantially in the form of
annexure F.
(b) On receipt of the certificate, if the Agent is satisfied that the
substitution complies with clause 29.2, it shall promptly:
(i) notify the Borrower;
(ii) countersign the counterparts on behalf of all other parties
to this Agreement;
(iii) enter the substitution in a register kept by it (which will
be conclusive); and
(iv) retain one counterpart and deliver the others to the
retiring Participant, the substitute Participant and the
Borrower.
(c) When the certificate is countersigned by the Agent the retiring
Participant will be relieved of its obligations to the extent
specified in the certificate and the substitute Participant will
be bound by the Transaction Documents as stated in the
certificate.
(d) Each other party to this Agreement irrevocably authorises the
Agent to sign each certificate on its behalf.
(e) Unless the Agent otherwise agrees, no substitution may be made
while any Drawdown Notice is current.
DISCLOSURE
29.4 A Participant may disclose to a proposed assignee, transferee or
sub-participant information which relates to any Relevant Company or
was furnished in connection with the Transaction Documents if it first
obtains the consent of the Borrower (who shall not unreasonably
withhold or delay that consent).
NO INCREASED COSTS
29.5 Despite anything to the contrary in this Agreement, if a Participant
assigns its rights under this Agreement the Borrower will not be
required to pay any net increase in the total amount of costs, Taxes,
fees or charges which is a direct consequence of the assignment and of
which the Participant or its assignee was aware or ought reasonably to
have been aware on the date of the assignment or change (except to the
extent agreed upon between the Borrower and the Participant or its
assignee). For this purpose only a substitution under clause 29.3 will
be regarded as an assignment.
30 RELATIONSHIP OF PARTICIPANTS TO AGENT
-------------------------------------------------------------------------------
AUTHORITY
30.1 (a) Subject to clause 30.15 each Participant irrevocably appoints the
Agent to act as its agent under the Transaction Documents. The
Agent has all powers expressly delegated to it by the Transaction
Documents together with all other powers reasonably incidental to
those powers.
(b) The Agent has no duties or responsibilities except those
expressly set out in the Transaction Documents.
INSTRUCTIONS; EXTENT OF DISCRETION
30.2 (a) In the exercise of all its rights, powers and discretions under
the Transaction Documents the Agent shall act in accordance with
the instructions (if any) of the Majority Participants or (where
so specified) of all Participants.
(b) In the absence of those instructions, the Agent need not act but
may act as it sees fit in the best interests of the Participants.
(c) Any action taken by the Agent under the Transaction Documents
binds all the Participants.
(d) The Agent is not obliged to consult with the Participants before
giving any consent, approval or agreement or making any
determination under the Transaction Documents except where this
Agreement expressly provides otherwise.
NO OBLIGATION TO INVESTIGATE AUTHORITY
30.3 (a) Neither the Borrower nor any Guarantor need enquire whether any
instructions have been given to the Agent by all Participants or
the Majority Participants or as to the terms of those
instructions.
(b) As between the Borrower and the Guarantors on the one hand and
the Agent and the Participants on the other, all action taken by
the Agent under the Transaction Documents will be taken to be
authorised.
AGENT NOT A FIDUCIARY
30.4 The Agent will not be taken to owe any fiduciary duty to any
Participant, any Relevant Company or any other person except as
expressly provided in a Transaction Document.
EXONERATION
30.5 Neither the Agent nor any of its respective directors, officers,
employees, agents, attorneys, Related Corporations or successors is
responsible to the Participants for, or will be liable (whether in
negligence or on any other ground whatever) in respect of:
(a) any conduct relating to, contained in or relying on, any loan
proposal or information memorandum, any Transaction Document or
any document or agreement referred to in or received under any
Transaction Document;
(b) the value, validity, effectiveness, genuineness, enforceability
or sufficiency of any loan proposal or information memorandum,
any Transaction Document or any other document or agreement;
(c) any failure by any Relevant Company to perform its obligations;
or
(d) any action taken or omitted to be taken by it or them under any
Transaction Document except in the case of its or their own
wilful misconduct or gross negligence.
DELEGATION
30.6 The Agent may employ agents and attorneys.
RELIANCE ON DOCUMENTS AND EXPERTS
30.7 The Agent may rely on:
(a) any document (including any facsimile transmission, telegram or
telex) believed by it to be genuine and correct; and
(b) advice and statements of lawyers, independent accountants and
other experts selected by the Agent.
NOTICE OF TRANSFER
30.8 The Agent may treat each Participant as the holder of the
Participant's rights under the Transaction Documents until the Agent
has received either a substitution certificate under this Agreement or
a notice of assignment satisfactory to the Agent.
NOTICE OF DEFAULT
30.9 (a) The Agent will be taken not to have knowledge of the occurrence
of an Event of Default or Potential Event of Default unless the
Agent has received notice from a Participant or Relevant Company
stating that an Event of Default or Potential Event of Default
has occurred and describing it.
(b) If the Agent receives notice or the officers of the Agent having
day to day responsibility for the transaction become aware that
an Event of Default has occurred, the Agent shall notify the
Participants, subject to clause 30.14(c).
AGENT AS PARTICIPANT AND BANKER
30.10 (a) The Agent in its capacity as a Participant has the same rights
and powers under the Transaction Documents as any other
Participant. It may exercise them as if it were not acting as the
Agent.
(b) The Agent may engage in any kind of business with any Relevant
Company as if it were not the Agent. It may receive consideration
for services in connection with any Transaction Document and
otherwise without having to account to the Participants.
INDEMNITY TO AGENT
30.11 (a) The Participants shall indemnify the Agent on demand (to the
extent not reimbursed by any Relevant Company under any
Transaction Document) rateably in accordance with their
respective Commitments against any loss, cost, liability, expense
or damage the Agent may sustain or incur directly or indirectly
under or in relation to the Transaction Documents except to the
extent that the loss, cost, liability, expense or damage arises
by reason of the wilful default, gross negligence or fraud of the
Agent.
(b) No Participant is liable under this sub-clause for any of the
above to the extent that they arise from the Agent's wilful
misconduct, gross negligence or fraud.
(c) The Borrower shall indemnify each Participant on demand against
any amount paid under paragraph (a). This does not limit its
liability under any other provision.
INDEPENDENT INVESTIGATION OF CREDIT
30.12 Each Participant confirms that it has made and will continue to make,
independently and without reliance on the Agent or any other
Participant:
(a) its own investigations into the affairs of the Relevant
Companies; and
(b) its own analyses and decisions whether to take or not take action
under any Transaction Document.
NO MONITORING
30.13 The Agent is not required to keep itself informed as to the
compliance by any Relevant Company with any Transaction Document or
any other document or agreement or to inspect any property or book of
any Relevant Company.
INFORMATION
30.14 (a) The Agent shall provide to each Participant a copy of each
notice, report and other document which is provided to the Agent
in sufficient copies for the Participants under the Transaction
Documents.
(b) The Borrower and each Guarantor authorises the Agent to provide
any Participant with any information concerning any Relevant
Company's affairs which may otherwise come into the possession of
the Agent. The Agent is not obliged to do so.
(c) The Agent is not obliged to disclose any information relating to
any Relevant Company if in the opinion of the Agent (on the basis
of the advice of its legal advisers) disclosure would or might
breach a law or a duty of secrecy or confidence.
REPLACEMENT OF AGENT
30.15 (a) Subject to the appointment of a successor Agent as provided in
this clause:
(i) the Agent may resign at any time by giving not less than 60
days notice to the Participants and to the Borrower; and
(ii) the Majority Participants may remove the Agent from office
by giving not less than 30 days notice to the Borrower and
the Agent.
(b) Upon notice of resignation or removal the Majority Participants
have the right to appoint a successor Agent approved by the
Borrower and who accepts the appointment.
(c) If no successor Agent is appointed within 60 days after notice,
the retiring Agent may on behalf of the Participants appoint a
successor Agent approved by the Borrower who accepts the
appointment.
(d) On its appointment the successor Agent will have all the rights,
powers and obligations of the retiring Agent. The retiring Agent
will be discharged from its rights, powers and obligations.
(e) The retiring Agent shall execute and deliver all documents or
agreements which are necessary or in its opinion desirable to
transfer to the successor Agent each Security Interest and
Guarantee held by the retiring Agent in relation to the Secured
Moneys or to effect the appointment of the successor Agent.
(f) After any retiring Agent's resignation or removal, this clause
will continue in effect in respect of anything done or omitted to
be done by it while it was acting as Agent.
(g) The Borrower shall not unreasonably withhold its approval of any
proposed successor Agent. It shall respond as soon as practicable
to any request for approval.
(h) The Borrower need not pay the cost of the appointment of a
successor Agent under this clause.
AMENDMENT OF TRANSACTION DOCUMENTS
30.16 Each Participant authorises the Agent to agree with the other parties
to any Transaction Document to amend any Transaction Document or give
any consent or waiver if:
(a) the amendment, consent or waiver will not increase the
Commitments or other obligations of the Participants, change the
dates or amounts of payment of any of the Secured Moneys, release
any of the Mortgaged Property or amend clause 18, this sub-clause
or any provision under which the agreement or instructions of all
Participants or the Majority Participants are required; and
(b) the Agent is satisfied that the amendment, consent or waiver is
made to correct a manifest error or an error of a minor nature or
that the amendment, consent or waiver is of a formal or technical
nature only.
Each Participant will be bound by any amendment, consent or waiver so
agreed to by the Agent as if it were party to the relevant amendment
agreement or the relevant consent or waiver.
30.17 The following matters require instructions from all Participants:
(a) increases to the Commitments or other obligations of the
Participants;
(b) changes to the dates or amounts of payment of any of the Secured
Moneys;
(c) a change to the Final Maturity Date or the extension of a
previously determined Payment Date;
(d) a change to the definition of Majority Participants;
(e) a change to the Margin;
(f) the giving of a direction to the Security Trustee to release
(either in whole or in part) any of the Mortgaged Property
(except where such release is required or consistent with the
Transaction Documents); and
(g) a change to or a waiver in respect of the undertakings contained
in clause 15.
30.18 In relation to all matters other than those under clause 30.16 and
clause 30.17, the Majority Participants may instruct the Agent and, if
they do, the Agent agrees to act in accordance with the instructions.
30.19 In relation to any instruction to be given to the Security Trustee:
(a) for a matter covered by clause 7 of the Shareholders Agreement,
the Majority Participants who are entitled to the Shares held by
the Security Trustee may instruct the Security Trustee to act and
if they do, the Security Trustee agrees to act in accordance with
the instructions; and
(b) for the exercise of the option contained in clause 9 ("OPTION")
of the Shareholders Agreement, all of the Participants who are
entitled to the Shares held by the Security Trustee must
unanimously instruct the Security Trustee to exercise the Option
and if they do, the Security Trustee agrees to exercise the
Option.
SUBSCRIPTION FOR STOCK
30.20 No Participant may subscribe for any Stock (as defined in the
Debenture Trust Deed) unless the Agent has first consented to the
issue of that Stock and the face value of that Stock.
31 PROPORTIONATE SHARING
-------------------------------------------------------------------------------
SHARING
31.1 Whenever any Participant receives or recovers any money in respect of
any sum due from a Relevant Company under a Transaction Document in
any way (including without limitation by set-off) except through
distribution by the Agent under this Agreement:
(a) the Participant shall immediately notify the Agent;
(b) the Participant shall immediately pay that money to the Agent
(unless the Agent directs otherwise);
(c) the Agent shall treat the payment as if it were a payment by the
Relevant Company on account of all sums then payable to the
Indemnified Parties; and
(i) the payment or recovery will be taken to have been a payment
for the account of the Agent and not to the Participant for
its own account, and to that extent the liability of the
Relevant Company to the Participant will not be reduced by
the recovery or payment, other than to the extent of any
distribution received by the Participant under paragraph
(c); and
(ii) (without limiting sub-paragraph (i)) immediately on the
Participant making or becoming liable to make a payment
under paragraph (b), the Borrower shall indemnify the
Participant against the payment to the extent that (despite
sub-paragraph (i)) its liability has been discharged by the
recovery or payment.
If the Participant is required to disgorge or unwind all or part of
the relevant recovery or payment then the other Participants shall
repay to the Agent for the account of the Participant the amount
necessary to ensure that all the Participants share rateably in the
amount of the recovery or payment retained. Paragraphs (c) and (d)
above apply only to the retained amount.
REFUSAL TO JOIN IN ACTION
31.2 A Participant who does not accept an invitation to join an action
against the Borrower or does not share in the costs of the action (in
each case having been given a reasonable opportunity to do so) is not
entitled to share in any amount so recovered.
32 AGENT DEALINGS
-------------------------------------------------------------------------------
Except where expressly provided otherwise:
(a) all correspondence under or in relation to the Transaction
Documents between a Participant on the one hand, and the Borrower
or a Guarantor on the other, will be addressed to the Agent; and
(b) the Participants and the Borrower and the Guarantors severally
agree to deal with and through the Agent in accordance with this
Agreement.
33 ADDITION OF GUARANTORS
-------------------------------------------------------------------------------
33.1 (NEW GUARANTOR) The Borrower shall ensure that each company which
becomes a Subsidiary of a Group Member becomes a Guarantor for the
purposes of this Agreement by entering into a Guarantor Accession Deed
within 60 days (or any longer period which the Agent and the Borrower
may agree, the Agent's agreement not to be unreasonably withheld) of
becoming a Subsidiary (each such company a NEW GUARANTOR).
33.2 (ACCESSION DEED) Upon execution of a Guarantor Accession Deed by a New
Guarantor and the Agent, the New Guarantor shall be taken to be a
Guarantor for the purposes of this Agreement with all the rights and
obligations as if it were an original party to this Agreement and to
have made the representations and warranties in clause 14.1 and/or
clause 14.3 on the date of such execution.
33.3 (CONDITIONS PRECEDENT) The Borrower shall ensure that before a New
Guarantor becomes a Guarantor, the Agent has received in form and
substance satisfactory to it any document or evidence relating to that
accession it may require, including without limitation:
(a) (CONFIRMATION OF WARRANTIES): a certificate signed by a director
of the Borrower confirming that upon execution of the Guarantor
Accession Deed the representations and warranties set out in
clauses 14.1 and 14.3 will be correct in relation to the New
Guarantor; and
(b) (VERIFICATION CERTIFICATE): a certificate in relation to the New
Guarantor given by a director of the New Guarantor providing
certified copies of the documents referred to in clauses 3.1(a),
(b) and (c) of the Amending and Restatement Deed with respect to
the New Guarantor and dated not earlier than 14 days before its
execution of the Guarantor Accession Deed.
34 NOTICES
-------------------------------------------------------------------------------
All notices, requests, demands, consents, approvals, agreements or
other communications to or by a party to this Agreement:
(a) must be in writing;
(b) must be signed by an Authorised Officer of the sender; and
(c) will be deemed to be duly given or made:
(i) (in the case of delivery in person or by post or facsimile
transmission) when delivered, received or left at the
address of the recipient shown in this Agreement or to any
other address which it may have notified the sender; or
(ii) (in the case of a telex) on receipt by the sender of the
answerback code of the recipient at the end of transmission,
but if delivery or receipt is on a day on which business is not
generally carried on in the place to which the communication is
sent or is later than 4 pm (local time), it will be taken to have
been duly given or made at the commencement of business on the
next day on which business is generally carried on in that place.
35 AUTHORISED OFFICERS
-------------------------------------------------------------------------------
The Borrower and each Guarantor irrevocably authorises each
Indemnified Party to rely on a certificate by any person purporting to
be its director or secretary as to the identity and signatures of its
Authorised Officers. The Borrower and each Guarantors warrants that
those persons have been authorised to give notices and communications
under or in connection with the Transaction Documents.
Each Guarantor warrants that each Authorised Officer of the Borrower
is authorised to sign Drawdown Notices on behalf of each Guarantor.
36 GOVERNING LAW AND JURISDICTION
-------------------------------------------------------------------------------
GOVERNING LAW AND JURISDICTION
36.1 This Agreement is governed by the laws of New South Wales. The
Borrower and each Guarantor submits to the non-exclusive jurisdiction
of courts exercising jurisdiction there.
PROCESS AGENTS
36.2 Each Relevant Company situated outside Australia irrevocably:
(a) nominates the Borrower as its agent to receive service of process
or other documents in any action, suit or proceedings brought in
relation to any Transaction Document; and
(b) agrees that service of any such process or documents on the
Borrower will be sufficient service on it.
The Borrower irrevocably and unconditionally accepts that appointment.
37 COUNTERPARTS
-------------------------------------------------------------------------------
This Agreement may be executed in any number of counterparts. All
counterparts together will be taken to constitute one instrument.
38 ACKNOWLEDGEMENT BY BORROWERS AND GUARANTORS
-------------------------------------------------------------------------------
The Borrower and each Guarantor confirms that:
(a) it has not entered into this Agreement in reliance on, or as a
result of, any conduct of any kind of or on behalf of any
Indemnified Party or any Related Corporation of any Indemnified
Party (including, without limitation, any advice, warranty,
representation or undertaking); and
(b) neither any Indemnified Party nor any Related Corporation of any
Indemnified Party is obliged to do anything (including, without
limitation, disclose anything or give advice),
except as expressly set out in the Transaction Documents or in writing
duly signed by or on behalf of any Indemnified Party or Related
Corporation.
39 CONSENTS AND OPINIONS
-------------------------------------------------------------------------------
Except where expressly stated any Indemnified Party may give or
withhold, or give conditionally, approvals and consents, may be
satisfied or unsatisfied, may form opinions, and may exercise rights,
powers and remedies at its absolute discretion.
EXECUTED as an agreement
SCHEDULE 1 GUARANTORS
NAME (ACN) PLACE OF ADDRESS
INCORPORATION
ABN Australasia Holdings Pty Limited Victoria 0000 Xxxxxx Xxxxxxx
(ABN 11 000 000 000) Xxxxxxx, Xxxxxxxx 0000
American Banknote Pacific Pty Ltd Victoria 1144 Nepean
(ABN 19 072 977 265) Xxxxxxx, Xxxxxxxx 0000
American Banknote Australasia Pty Ltd Victoria 0000 Xxxxxx Xxxxxxx
(ABN 25 072 977 292) Xxxxxxx, Xxxxxxxx 0000
Xxxxx-Xxxxxx Payment Systems Pty Victoria 0000 Xxxxxx Xxxxxxx
Limited (ABN 32 006 412 657) Xxxxxxx, Xxxxxxxx 0000
American Banknote New New Zealand c/- Xxxxxxx Xxxxx
Zealand Limited Sheffield Young
Xxxxx 0
XXX Xxxxxx
0 Xxxx Xxxxxx
Xxxxxxxxxx
Xxx Xxxxxxx
SCHEDULE 2 PARTICIPANTS
PART A - CASH ADVANCE FACILITY
1 2 3
PARTICIPANT COMMITMENT ADDRESS FOR
($) CORRESPONDENCE
The Chase Manhattan Bank 15,608,054.81 Level 26
(ABN 93 074 112 011) 000 Xxxxxx Xxxxxx
Xxxxxx XXX 0000
Fax: 0000 0000
Tel: 0000 0000
Att: Xxxxx Xxx
SG Australia Limited 15,608,054.81 Level 21
(ABN 72 002 093 021) 000 Xxxxxx Xxxxxx
Xxxxxx XXX 0000
Fax: 0000 0000
Tel: 0000 0000
Att: Executive
Manager Credit
Credit Lyonnais S.A 10,763,889.29 Agence GCI 4309 c/o
Agence Internationale
00-00 Xxx xx Xxxxxxxx
00000 Xxxxx
Xxxxxx
Fax:+ (000) 0000 0000
Tel:+ (000) 0000 0000
Attn: Xxxxxx Xxxxx
BOS International (Australia) 11,148,611.52 Xxxxx 00
Limited (ABN 23 066 601 250) 00 Xxxxxxxxxx Xxxxxx
Xxxxxx XXX 0000
Fax: 0000 0000
Tel: 0000 0000
Bank of Western Australia Limited 11,148,611.52 Xxxxx 0
(XXX 00 000 000 000) Xxxxxxxxx Xxxxx
000 Xxxxxx Xxxxxx
Xxxxxx XXX 0000
Fax: 0000 0000
Tel 0000 0000
The Toronto-Dominion Bank 15,608,055.77 Level 34
(ABN 74 082 818 175) Xxxxxx Xxxxx Xxxxx
000 Xxxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
Fax: (00) 0000 0000
Tel: (00) 0000 0000
TOTAL: $79,885,277.72
PART B - LC FACILITY
1 2 3
PARTICIPANT COMMITMENT ADDRESS FOR
($) CORRESPONDENCE
The Chase Manhattan Bank 1,127,778.56 Level 26
(ABN 43 074 112 011) 000 Xxxxxx Xxxxxx
Xxxxxx XXX 0000
Fax: 0000 0000
Tel: 0000 0000
Att: Xxxxx Xxx
SG Australia Limited 1,127,778.56 Xxxxx 00
(XXX 00 000 000 021) 000 Xxxxxx Xxxxxx
Xxxxxx XXX 0000
Fax: 0000 0000
Tel: 0000 0000
Att: Executive
Manager Credit
Credit Lyonnais S.A. 694,444 Agence GCI 4309 c/o
Agence Internationale
00-00 Xxx xx Xxxxxxxx
00000 Xxxxx
Xxxxxx
Fax: + (000) 0000 0000
Tel: + (000) 0000 0000
Attn: Xxxxxx Xxxxx
BOS International (Australia) 805,555.11 Level 11
Limited (ABN 23 066 601 250) 00 Xxxxxxxxxx Xxxxxx
Xxxxxx XXX 0000
Fax: 0000 0000
Tel: 0000 0000
Bank of Western Australia Limited 805,555.11 Xxxxx 0
(XXX 00 000 000 000) Xxxxxxxxx Xxxxx
000 Xxxxxx Xxxxxx
Xxxxxx XXX 0000
Fax: 0000 0000
Tel 0000 0000
The Toronto-Dominion Bank 1,127,777.55 Level 34
(ABN 74 082 818 175) Xxxxxx Xxxxx Xxxxx
000 Xxxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
Fax: (00) 0000 0000
Tel: (00) 0000 0000
TOTAL: $ 5,688,888.89
SCHEDULE 3 [NOT USED]
-------------------------------------------------------------------------------
SCHEDULE NOT USED
SCHEDULE 4 [NOT USED]
-------------------------------------------------------------------------------
SCHEDULE NOT USED
ANNEXURE A DRAWDOWN NOTICE
------------------------------------------------------------------------------
To: Xxxxxx Xxxxx
Chase Securities Australia Ltd
Xxxxx 00
000 Xxxxxx Xxxxxx
XXXXXX XXX 0000
Facsimile: (000) 0000 0000
AMENDED AND RESTATED SENIOR DEBT FACILITY - DRAWDOWN NOTICE NO. [*]
We refer to the Amended and Restated Senior Debt Facility Agreement
dated [ ] (the FACILITY AGREEMENT).
Under Clause 5 of the Facility Agreement:
(1) we give you irrevocable notice that we wish to draw under
[FACILITY OR FACILITIES] on [DATE] (the DRAWDOWN DATE); [NOTE:
DATE IS TO BE A BUSINESS DAY.]
(2) the total principal amount to be drawn is [*];
[NOTE: AMOUNT TO COMPLY WITH THE LIMITS IN CLAUSE 2.]
(3) particulars of each Segment of the Cash Advance Facility are as
follows:
FACILITY FUNDING PERIOD
[NOTE: AMOUNTS TO COMPLY WITH CLAUSE 5 AND LENGTH OF FUNDING PERIOD TO
COMPLY WITH CLAUSE 6.]
(4) Total Debt for the immediately preceding four quarters for which
Accounts have been prepared was [*];
(5) EBITDA for the immediately preceding four quarters for which
Accounts have been prepared was [*];
(6) we request that the proceeds be remitted to account number [*] at
[*] [in the case of the [*] Facility, and to account number [*]
at [*] in the case of the [*] Facility];
(7) we represent and warrant on behalf of the Borrower and each
Guarantor that:
(a) [(except as disclosed in paragraph (c)] the representations
and warranties in the Facility Agreement (other than those
referred to in clause 14.3 of the Facility Agreement as not
repeating) are true as though they were made at the date of
this Drawdown Notice and the Drawdown Date specified above
in respect of the facts and circumstances then subsisting;
[and]
(b) [(except as disclosed in paragraph (c)] no Event of Default
or Potential Event of Default is subsisting or will result
from the drawing; [and]
[(c) details of the exceptions to paragraphs (a) and (b) are as
follows: [*], and we [have taken/propose] the following
remedial action [*];]
[NOTE: INCLUSION OF A STATEMENT UNDER PARAGRAPH (C) WILL NOT PREJUDICE
THE CONDITIONS PRECEDENT IN THE AGREEMENT.]
[(8) details of the Beneficiary and the Secured Financing with respect
to the Letter of Credit are as follows:
Beneficiary:
Nature of Secured Financing:
Maturity:
Amount: ]
Definitions in the Facility Agreement apply when used in this Drawdown
Notice.
On behalf of
[*] LIMITED
By: [Authorised Officer]
DATED
ANNEXURE B GUARANTOR ACCESSION DEED
-------------------------------------------------------------------------------
DEED dated between:
1. [NAME OF GUARANTOR] (ABN [*]) (the NEW GUARANTOR); and
2. CHASE SECURITIES AUSTRALIA LIMITED (ABN 52 002 888 011) of Xxxxx 00, XXX
Xxxxxx, 000 Xxxxxx Xxxxxx, Xxxxxx, Xxx Xxxxx Xxxxx (the AGENT).
RECITALS
A. Under a Loan Agreement (the FACILITY AGREEMENT) dated [ ] between ABN
Australasia Limited as Borrower, the Agent and the Participants named in
that agreement, the Participants agree to provide the Borrower with a
facility (the FACILITY) under which cash advances and letters of credit may
be made available to the Borrower.
B. The New Guarantor enters into this Deed for valuable consideration which
includes, without limitation, the Indemnified Parties continuing to provide
the Facility to the Borrower and refraining from exercising their
respective rights under clause 16.2 of the Facility Agreement.
[C. The New Guarantor as a Subsidiary of the Borrower wishes to assume the
rights and obligations of a Guarantor under the Facility Agreement which
have been authorised in accordance with Part 2J.3 of the Corporations Law.]
[FOR LMPS]
IT IS AGREED AS FOLLOWS
1. In this Deed terms defined in the Facility Agreement have the same meaning.
2. The New Guarantor shall as and from the date of this Deed irrevocably be a
Guarantor for the purposes of the Facility Agreement as if named as a party
to the Facility Agreement in the capacity of a Guarantor. The New Guarantor
agrees to comply with the Facility Agreement and all their terms and
conditions shall bind the New Guarantor accordingly.
3. This Deed is governed by the laws of New South Wales.
4. Each attorney executing this Deed states that he has no notice of the
revocation of his power of attorney.
SIGNED SEALED and DELIVERED )
on behalf of )
[*] LIMITED )
by its attorney )
in the presence of: )
Attorney
Print Name
Witness
Print Name
SIGNED SEALED and DELIVERED )
on behalf of )
CHASE SECURITIES AUSTRALIA )
LIMITED by its attorney )
in the presence of: )
Signature
Witness Print name
Print name
ANNEXURE C LETTER OF CREDIT AUTHORISATION
--------------------------------------------------------------------------
FACSIMILE TRANSMISSION
To: Xxxxxx Xxxxx
Chase Securities Australia Ltd
Xxxxx 00
000 Xxxxxx Xxxxxx
XXXXXX XXX 0000
Facsimile: (000) 0000 0000
SENIOR DEBT FACILITY
We refer to your facsimile dated [*] notifying us that [American
Banknote Australasia Limited] (the BORROWER) has requested the issue of
[a/the] Letter[s] of Credit under a Drawdown Notice dated [*].
In accordance with clause 10.1(c) of the Senior Debt Facility Agreement
dated [ ], we authorise you as Agent to execute and issue on or after
the Drawdown Date specified in that Notice [a/the] Letter[s] of Credit
in [CURRENCY] for our Share (as defined in the Facility Agreement) of
the [principal/face] amount requested by the Borrower.
On behalf of [Participant]
Authorised Officer
DATED 20[*]
ANNEXURE D FORM OF LETTER OF CREDIT
------------------------------------------------------------------------------
[DATE]
TO: [NAME AND ADDRESS OF BENEFICIARY]
Dear Sirs
The Banks listed in the Schedule (the BANKS) have pleasure in
detailing the particulars of a several Letter of Credit issued in your
favour.
IRREVOCABLE SEVERAL STANDBY LETTER OF CREDIT NO. [*]
DATED 20[*]
ON ACCOUNT OF: ABN Australasia Limited (the BORROWER)
BENEFICIARY: [*] (the BENEFICIARY)
TOTAL AMOUNT: [Maximum limit of liability $[ ] (divided
between the Banks in the shares (the SHARES) listed
in the Schedule).]
[Maximum limit of principal liability $[ ] [or any lesser amount which
remains outstanding from time to time under the Secured Financing
referred to below] [plus, [, at any time, accrued interest relevant to
the amount remaining outstanding under the Secured Financing at that
time/accrued interest on the principal outstanding for a period of [*
] months] [and costs, charges and expenses of up to $[ * ] (divided
between the Banks in the shares (the SHARES) listed in the Schedule).
[For these purposes an amount is still taken to be OUTSTANDING, DUE
and PAYABLE if it would have been outstanding, due or payable if the
Secured Financing had been valid and enforceable or the Borrower was
not in Liquidation.]
EXPIRY DATE: [*] 20[*]
AVAILABLE AT: Chase Securities Australia Limited (the AGENT),
Xxxxx 00, 000 Xxxxxx Xxxxxx, Xxxxxx XXX 0000
BY DRAFTS ON: Each of the Banks in the proportions of their
respective Shares.
PAYABLE AT: Sight.
ENFACED: "Drawn under ABN Australasia Limited Several Standby
Letter of Credit No. [*] dated [*] 20[*]"
RETURNABLE TO: The Agent, The Xxxxxxx Xxxxx, 0 Xxxxxxx Xxxxxx,
Xxxxxx XXX 0000.
ISSUED IN
CONNECTION WITH: [DETAILS OF SECURED FINANCING] (the SECURED
FINANCING)
Drafts drawn under this Letter of Credit must be payable to the credit
of an account in the name of the Beneficiary, must be delivered to the
Agent at the address at which this Letter of Credit is expressed to be
available at or before 3 pm (Sydney time) on the expiry date specified
above and must be accompanied by a declaration stating that:
(a) the declarants are two officers of the Beneficiary, making the
declaration on behalf of the Beneficiary;
(b) the declarants have authority to make the declaration on behalf
of the Beneficiary;
(c) the declaration is made under Letter of Credit No. [*];
(d) the amount claimed is not more than the maximum amount available
under that Letter of Credit;
(e) the amount claimed represents an amount or amounts remaining
unpaid to the Beneficiary in respect of the Secured Financing in
accordance with arrangements made between the Beneficiary and the
Borrower; and
(f) demand for payment of that amount has been made by the
Beneficiary on the Borrower and that demand remains unsatisfied.
The amount of this Letter of Credit will automatically reduce by the
amount of all drawings under it.
There is no responsibility on the Agent or the Banks to investigate
the authenticity of the declarations or the declarants' capacity or
entitlement to make the declaration.
Each Bank severally engages with the Beneficiary that drafts drawn on
it in compliance with this Letter of Credit in respect of its Share
will be paid by that Bank on presentation of the draft to the Agent.
The Agent is not responsible for the performance of any other Bank. No
Bank is responsible for the performance of any other Bank or the
Agent.
This Letter of Credit is subject to the Uniform Customs and Practice
for Documentary Credits (1993 Revision) International Chamber of
Commerce Publication No. 500.
On behalf of Chase Securities Australia Limited as Agent for the
Banks:
Authorised Signatory Authorised Signatory
SCHEDULE
THE BANKS SHARES - %
ANNEXURE E FINANCIAL INDEBTEDNESS
-------------------------------------------------------------------------------
[TO BE CONFIRMED]
GROUP MEMBER LENDER AMOUNT OF TYPE OF
FINANCIAL FINANCIAL
INDEBTEDNESS INDEBTEDNESS
ABN Australasia Limited National Australia 152,803.37 Guarantee
Bank Limited
ABN Australasia Limited National Australia 35,957.56 Guarantee
Bank Limited
ABN Australasia Limited National Australia 173,591.76 Guarantee
Bank Limited
ABN Australasia Limited National Australia 90,000.00 Guarantee
Bank Limited
ABN Australasia Limited National Australia 250,000.00 Guarantee
Bank Limited
ABN Australasia Limited National Australia 8,065.00 Guarantee
Bank Limited
ANNEXURE F SUBSTITUTION CERTIFICATE
--------------------------------------------------------------------------------
for a Participation of $[*]
relating to the Senior Debt Facility Agreement (the FACILITY
AGREEMENT) dated [ ] between, among others, American Banknote
Australasia Limited as Borrower, the Participants named in the
Facility Agreement and Chase Securities Australia Limited as Agent
between:
1. [NAME] (the SUBSTITUTE PARTICIPANT);
2. [NAME] (the RETIRING PARTICIPANT); and
3. [*] (the AGENT) for itself and on behalf of the other parties to the
Facility Agreement.
IT IS AGREED as follows:
1. DEFINITIONS
1.1 In this Certificate terms defined in the Facility Agreement have the
same meanings and the following terms shall have the following
meanings unless the context otherwise requires.
SUBSTITUTED PARTICIPATION means the Commitment of the Retiring
Participant [and the participation in the Principal Outstanding drawn
under that Commitment] [in respect of the following Segments:] [NOTE:
TO BE INSERTED IF ONLY PART OF PARTICIPATION IS BEING SUBSTITUTED.]
DATE FACILITY FUNDING CURRENCY AMOUNT OF
PERIOD PARTICIPATION
amounting to a principal amount of $[*].
SUBSTITUTION DATE means the date of countersignature of this
Certificate by the Agent [or [*] whichever is the later]. [NOTE:
INSERT ANY OTHER DATE OR DATES AS APPROPRIATE.]
1.2 Clause 1.2 of the Facility Agreement applies to this Certificate.
2. SUBSTITUTION
2.1 RELEASE OF RETIRING PARTICIPANT
The Retiring Participant will cease to have its rights and obligations
as a Participant under the Transaction Documents [relating to the
Substituted Participation] [NOTE: INSERT IF ONLY PART OF COMMITMENT
ASSUMED.] with effect from and including the Substitution Date. It
will remain entitled to and bound by rights and obligations which
accrue up to the Substitution Date.
2.2 ASSUMPTION BY SUBSTITUTE PARTICIPANT
With effect from and including the Substitution Date:
(a) the Substitute Participant and each of the parties to the
Facility Agreement will assume obligations towards each other and
acquire rights against each other which are identical to the
rights and obligations which cease under clause 2.1, except to
the extent the obligations so assumed and rights so acquired
relate to the identity of or location of the Substitute
Participant and not to the identity of or location of the
Retiring Participant; and
(b) the Substitute Participant will be taken to be a party to the
Facility Agreement as a Participant with a Commitment [and
participation in the Principal Outstanding] equal to the
Substituted Participation. [NOTE: CONSIDER IF AGREEMENTS OTHER
THAN FACILITY AGREEMENT ARE TO BE NOVATED, E.G. GUARANTEES. IF
SO, INSERT LANGUAGE IN THOSE DOCUMENTS. BUT BE CAREFUL ABOUT
INCLUDING CHARGES AND MORTGAGES AS NOVATION WOULD MEAN NEW
DUTIABLE DOCUMENTS.]
3. INDEPENDENT ASSESSMENT BY SUBSTITUTE PARTICIPANT
Without limiting the generality of clause 2 the Substitute Participant
agrees as specified in clause 30.5 (EXONERATION) and 30.12 (INDEPENDENT
INVESTIGATION OF CREDIT) of the Facility Agreement. Those clauses apply
(subject to any agreement to the contrary) as if references to the Agent
included the Retiring Participant. This certificate is a Transaction
Document for the purposes of the Facility Agreement.
4. PAYMENTS
From and including the Substitution Date the Agent shall make all payments
due under the Transaction Documents in relation to the Substituted
Participation to the Substitute Participant. The Retiring Participant and
the Substitute Participant shall make directly between themselves the
payments and adjustments which they agree with respect to accrued interest,
fees, costs and other amounts attributable to the Substituted Participation
before the Substitution Date.
5. LETTERS OF CREDIT
(a) For the purpose of the Facility Agreement any outstanding several
Letters of Credit issued for the account of the Retiring Participant
included in the Substituted Participation will be taken to have been
issued for the account of the Substitute Participant in the place of
the Retiring Participant. The Substitute Participant accordingly shall
indemnify unconditionally the Retiring Participant against any
liability of the Retiring Participant as issuer of the Letters of
Credit.
(b) The indemnity of the Borrower under clause 10.13 of the Facility
Agreement extends to any liability of the Substitute Participant under
this clause.
6. WARRANTY
The Retiring Participant and the Substitute Participant jointly and
severally represent and warrant to the other parties that clause 29.2(b) of
the Facility Agreement has been complied with in relation to the Substitute
Participant.
7. NOTICES
For the purpose of the Facility Agreement, the Lending Office and address
for correspondence of the Substitute Participant is the address set out
below.
[8. REGISTRATION FEE
A registration fee of [*]$[*] is payable to the Agent (except where the
Substitute Participant is a Related Corporation) on delivery of this
Certificate to the Agent.]
9. LAW
This Certificate is governed by the laws of New South Wales.
Signed by the authorised representatives of the parties [in the Australian
Capital Territory/[insert place outside of Australia]]. [NOTE: BE CAREFUL
ABOUT DELETING THESE WORDS AS THEY ARE DESIGNED TO ENSURE THAT THE
SUBSTITUTION CERTIFICATE IS NOT SIGNED IN A PLACE WHERE IT WILL BE A
DUTIABLE INSTRUMENT.]
THE RETIRING PARTICIPANT
[NAME]
by:
THE SUBSTITUTE PARTICIPANT
[NAME]
by:
Lending Office [and address for correspondence]:
[Telex No.]
[Address for correspondence:] [NOTE: IF DIFFERENT FROM LENDING OFFICE]
Countersigned by an authorised representative of the Agent for itself
and for the other parties to the Facility Agreement.
THE AGENT
[NAME]
by:
ANNEXURE G CORPORATE TREE
-------------------------------------------------------------------------------
AMENDED AND RESTATED
SENIOR DEBT FACILITY
AGREEMENT
THIS IS THE ANNEXURE OF 97 PAGES
DESCRIBED IN THE AMENDING AND
RESTATEMENT DEED (SENIOR DEBT
FACILITY) DATED 26 JUNE 2001
CONTENTS SENIOR DEBT FACILITY AGREEMENT
------------------------------------------------------------------
1 DEFINITIONS AND INTERPRETATION 1
Definitions 1
Interpretation 13
Determination, statement and certificate 14
Document or agreement 14
Repayment and prepayment 14
Principal 14
Trust 14
Current accounting practice and accounting terms 15
Outstanding 15
Debenture Trust Deed 15
2 COMMITMENTS 15
Commitments 15
Allocation among Participants 15
Obligations several 15
3 CANCELLATION OF COMMITMENTS 16
During Availability Period 16
Allocation among Participants 16
At end of Availability Period 16
4 PURPOSE 16
Cash Advance Facility 16
LC Facility 16
Acknowledgment 17
5 DRAWDOWN NOTICES 17
When notice to be given - Cash Advance Facility 17
When notice to be given - LC Facility 17
Minimum Drawing 17
Notification of Participants 17
6 SELECTION OF FUNDING PERIODS 17
7 REPAYMENT 18
Repayment - Cash Advance Facility 18
Repayment - LC Facility 18
Allocation among Participants 18
Allocation among Segments 18
Mandatory Repayments 18
8 PREPAYMENTS 20
Voluntary prepayments 20
Voluntary prepayment on expiry of Funding Period 20
Interest 20
Limitation on prepayments 20
Apportionment 20
Redrawing 20
9 CASH ADVANCE FACILITY 20
Advance of Segment 20
Repayment 21
Interest 21
Preparation of Reliquefication Bills 21
Requirements of Reliquefication Bills 21
Dealing with Reliquefication Bills 22
Indemnity 22
Stamp duty on Reliquefication Bills 22
10 LETTER OF CREDIT FACILITY 22
Issue of Letters of Credit 22
Form 23
Number 23
Expiry date 23
Amount 23
Secured Financing 23
Participant as Beneficiary 23
Agent's authority 23
Notification of issue 24
Drawings procedure 24
Recovery by Agent 24
Payment of Secured Financings by Group Member 24
Indemnity 24
Obligations unconditional 25
Indemnity from Participants to Agent 26
11 PAYMENTS 26
Manner 26
Payment to be made on Business Day 26
Distribution by Agent 26
Appropriation where insufficient moneys available 26
Unanticipated default 26
Rounding 27
Withholding tax 27
12 CHANGES IN LAW 28
Increased costs 28
Minimisation 29
Survival of obligations 29
Prepayment on increased costs 29
Illegality 30
13 CONDITIONS PRECEDENT 30
14 REPRESENTATIONS AND WARRANTIES 31
Representations and warranties 31
Reliance on representations and warranties 35
Repetition for Guarantors 35
15 UNDERTAKINGS 36
General undertakings 36
Undertakings relating to Mortgaged Property 44
Financial undertakings 48
Term of undertakings 49
16 EVENTS OF DEFAULT 49
Events of Default 49
Consequences 54
Cash cover for letters of credit 55
Technical default in payment 55
17 GUARANTEE 56
Guarantee 56
Payment 56
Unconditional nature of obligation 56
No marshalling 58
No competition 58
Suspense account 58
Rescission of payment 59
Indemnity 59
Continuing guarantee and indemnity 59
Variations 60
Judgment 60
Conditions precedent 60
American Banknote New Zealand Limited 60
18 INTEREST ON OVERDUE AMOUNTS 60
Accrual and payment 60
Rate 61
19 FEES 61
Fees - general 61
Letter of credit fee 61
Refund of fees 62
20 INDEMNITIES 62
21 CONTROL ACCOUNTS 63
22 EXPENSES 63
23 STAMP DUTIES 63
24 SET-OFF 64
25 WAIVERS, REMEDIES CUMULATIVE 64
26 SEVERABILITY OF PROVISIONS 64
27 SURVIVAL OF REPRESENTATIONS AND INDEMNITIES 64
28 MORATORIUM LEGISLATION 65
29 ASSIGNMENTS 65
Assignment by Borrower and Guarantor 65
Assignment by Participants 65
Substitution certificates 65
Disclosure 66
No increased costs 66
30 RELATIONSHIP OF PARTICIPANTS TO AGENT 67
Authority 67
Instructions; extent of discretion 67
No obligation to investigate authority 67
Agent not a fiduciary 67
Exoneration 68
Delegation 68
Reliance on documents and experts 68
Notice of transfer 68
Notice of default 68
Agent as Participant and banker 69
Indemnity to Agent 69
Independent investigation of credit 69
No monitoring 69
Information 70
Replacement of Agent 70
Amendment of Transaction Documents 71
Subscription for Stock 72
31 PROPORTIONATE SHARING 72
Sharing 72
Refusal to join in action 73
32 AGENT DEALINGS 73
33 ADDITION OF GUARANTORS 73
34 NOTICES 74
35 AUTHORISED OFFICERS 75
36 GOVERNING LAW AND JURISDICTION 75
Governing Law and Jurisdiction 75
Process agents 75
37 COUNTERPARTS 75
38 ACKNOWLEDGEMENT BY BORROWERS AND GUARANTORS 75
39 CONSENTS AND OPINIONS 76
SCHEDULE 1 GUARANTORS 77
SCHEDULE 2 PARTICIPANTS 78
SCHEDULE 3 [NOT USED] 81
SCHEDULE 4 [NOT USED] 82
ANNEXURE A DRAWDOWN NOTICE 83
ANNEXURE B GUARANTOR ACCESSION DEED 85
ANNEXURE C LETTER OF CREDIT AUTHORISATION 87
ANNEXURE D FORM OF LETTER OF CREDIT 88
ANNEXURE E FINANCIAL INDEBTEDNESS 90
ANNEXURE F SUBSTITUTION CERTIFICATE 91
ANNEXURE G CORPORATE TREE 95
