CONFORMED COPY
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DEED OF GUARANTEE AND NEGATIVE PLEDGE
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DEED POLL dated 17 October 1997 by:
CASE CREDIT CORPORATION a Delaware corporation having its principal office at
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇ (the COMPANY).
RECITALS
A. The Borrower is a wholly owned Subsidiary of the Company.
B. The Borrower proposes to enter into a bill acceptance and discount
facility with the Lenders and their agent and to issue MTNs and PNs
denominated in Australian dollars from time to time, all on the security
of this Deed.
C. The Company enters into this Deed for the benefit of the Indemnified
Parties described below.
IT IS AGREED as follow:
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
The following definitions apply unless the context requires otherwise.
AFFILIATE means, in relation to any person, any other person (other than a
Subsidiary) which, directly or indirectly, is in control of, is controlled
by, or is under common control with that person. For the purposes of this
definition, CONTROL of a person means the power, directly or indirectly,
either to:
(a) vote 10% or more of the securities or other equity interests having
ordinary voting power for the election of directors or other
governing bodies of that person; or
(b) direct or cause the direction of the management and policies of the
person, whether by contract or otherwise.
AGENT means National Australia Bank Limited (ACN 004 044 937) in its
capacity as Agent under the Bill Facility Agreement.
ATTRIBUTABLE DEBT at any date (the DETERMINATION DATE) means, in relation
to any particular lease under which the Company or any Restricted
Subsidiary is at the time liable as lessee for a term of more than 12
months, the total net obligations of the lessee for rental payments during
the remaining term of the lease (excluding any period for which the lease
has been extended or may, at the option of the lessor, be extended),
discounted from the respective due dates of those rental payments to the
determination date at a rate per annum equivalent to the greater of:
(a) the Company's weighted average cost of debt as determined in good
faith by the Company; and
(b) the interest rate inherent in that lease as determined in good
faith by the Company,
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both to be compounded semi-annually. Those TOTAL NET OBLIGATIONS of
the lessee will be the total amount of the rent payable by the
lessee after excluding amounts required to be paid on account of
maintenance and repairs, services, insurance, taxes, assessments,
water rates and similar charges and contingent rents (such as those
based on sales or monetary inflation). If a lease is terminable by
the lessee on the payment of a penalty and under the terms of the
lease, the termination right is not exercisable until after the
determination date and the amount of that penalty discounted (as
specified above) to the determination date is less than the net
amount of rentals payable after the time as of which that
termination could occur (the TERMINATION TIME) discounted (as
specified above) to the determination date, then the discounted
penalty amount will be used instead of the discounted amount of net
rentals payable after the termination time in calculating the
Attributable Debt for the lease. If a lease is terminable by the
lessee on the payment of a penalty and that termination right is
exercisable on the determination date and the amount of the net
rentals payable under the lease after the determination date
discounted (as specified above) to the determination date is
greater than the amount of the penalty, the Attributable Debt for
that lease as of the determination date will be equal to the amount
of that penalty.
AUTHORISED OFFICER means the President or any Vice President of the
Company or, with respect to financial matters, the Chief Financial
Officer, the Treasurer, the Controller, any Assistant Treasurer or
any Assistant Controller of the Company.
BILL means a BILL OF EXCHANGE as defined in the Bills of Exchange
Act 1909 (Cth) which is, or is to be, accepted or discounted under
the Bill Facility Agreement.
BILL FACILITY AGREEMENT means a bill acceptance and discount
facility agreement dated on or about the date of this Deed between
the Borrower, the Agent and various financial institutions named in
the schedule to that agreement.
BORROWER means Case Credit Australia Pty Limited (ACN 069 132 396).
BUSINESS DAY means a day (not being a Saturday or Sunday) on which
banks are open for business in Sydney.
CASE CREDIT DEBT as at any date of determination with respect to
the Group, means an amount equal to:
(a) the sum (without duplication) of:
(i) all Indebtedness of the Group (other than
Indebtedness referred to in paragraphs (e) to (h) of
that definition) which in accordance with GAAP would
be included as a liability on a consolidated balance
sheet (excluding the notes) of the Group as at that
date;
(ii) all Guarantee Obligations of the Group in respect of
Indebtedness (other than Indebtedness referred to in
paragraphs (e) to (h) of that definition) as at that
date; and
(iii) all obligations of the Company or any of its
Subsidiaries incurred in connection with any
securitisation or other asset-backed financing of
Receivables as at that date, to the extent those
obligations are excluded from the definition of
Permitted Securitisation Obligations by operation of
the proviso to that definition;
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(b) less, to the extent included in paragraph (a) above, the sum
(without duplication) of:
(i) the Guarantee Obligations of the Company or any of
its Subsidiaries in respect of Indebtedness of
Subsidiaries of the Company; and
(ii) Permitted Securitisation Obligations as at that date.
Excluded Credit Card Guarantee Obligations are excluded from all
calculations of Case Credit Debt.
CASE VENDOR FINANCING means financing which is provided by a person
other than the Company or any of its Subsidiaries or Affiliates, to
a customer of the Company or of any of its Subsidiaries or
Affiliates.
CONSOLIDATED INTEREST EXPENSE means, for any period with respect to
the Group, the aggregate amount of interest expense of the Group
during that period determined in accordance with GAAP.
CONSOLIDATED LEASE EXPENSE means, for any period with respect to
the Group, all amounts paid or incurred by the Group during that
period under operating leases in respect of real property.
CONSOLIDATED NET INCOME means, for any period with respect to the
Group, consolidated net income of the Group for that period
determined in accordance with GAAP.
CONSOLIDATED NET TANGIBLE ASSETS means, as at any date of
determination, the total assets appearing on the most recent
consolidated balance sheet of the Group as at the end of the most
recent fiscal quarter of the Company ending not more than 135 days
before that date, determined in accordance with GAAP, minus the
amount of Intangible Assets included in that consolidated balance
sheet as at the end of that fiscal quarter.
CONSOLIDATED NET WORTH means, at any time with respect to the
Company, all items which in conformity with GAAP would be included
under shareholders' equity on a consolidated balance sheet of the
Group at that time plus any amounts included on that consolidated
----
balance sheet in respect of any preferred stock of the Company and
any Preferred Securities outstanding from time to time (except to
the extent that any such preferred stock is mandatorily redeemable
at the option of the holder or on the happening of any contingency
before the later of:
(a) the Repayment Date (as defined in the Bill Facility
Agreement) for any accommodation provided under Tranche B of
that agreement; and
(b) the latest Maturity Date (as defined in the MTN Deed) of any
MTN).
CONSOLIDATED SUBSIDIARY means any Subsidiary of the Company which,
in accordance with GAAP, would be consolidated in the financial
statements of the Company.
CONTRACTUAL OBLIGATION means in relation to any person, any
provision of any security issued by that person or of any
agreement, instrument or other undertaking to which the person is a
party or by which it or any of its property is bound.
DEALER means a person who is a Dealer from time to time under the
Dealership Agreement.
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DEALERSHIP AGREEMENT means the Promissory Note and MTN Dealership
Agreement dated on or about the date of this Deed between the
Borrower, the Programme Manager, the I&P Agent and the dealers
listed in that agreement.
EBIT means, for any period with respect to the Group, Consolidated
Net Income of the Group for that period plus, to the extent
----
deducted in determining that Consolidated Net Income, the sum of
taxes and interest expense, plus or minus, to the extent deducted
-------------
or added respectively in determining that Consolidated Net Income,
any income, gain or loss of a non-cash nature.
EVENT OF DEFAULT means an event of default as defined in any
Transaction Document.
EXCLUDED CREDIT CARD GUARANTEE OBLIGATIONS means, at any time, 93%
of the outstanding amount of obligations of cardholders for which
there is recourse to the Company under the credit card program
sponsored by the Company (funded and serviced by NationsBank of
Delaware, N.A.).
EXTRAORDINARY RESOLUTION has the meaning given in the MTN Deed.
FINANCING LEASE means any lease of property, real or personal, in
respect of which the lessee's obligations are required, in
accordance with GAAP, to be capitalised on a balance sheet of the
lessee.
FIXED CHARGE RATIO means for any period, the ratio of:
(a) EBIT of the Group for that period plus Consolidated Lease
Expense (but only to the extent that was deducted in
calculating EBIT) of the Group for that period;
to:
(b) the sum of Consolidated Interest Expense of the Group for
that period, Consolidated Lease Expense of the Group for
that period and all amounts paid by the Company or any of
its Subsidiaries to Case Corporation during that period in
respect of income tax.
GAAP means generally accepted accounting principles in the United
States of America in effect on the date of this Deed.
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 Company and its Consolidated Subsidiaries and
includes any one or more of them.
GUARANTEE OBLIGATION in relation to any person (the GUARANTEEING
PERSON) means, without duplication and subject to clause 1.2, any
obligation of:
(a) the guaranteeing person; or
(b) another person (including any bank under any letter of
credit), the creation of which was induced by the
guaranteeing person issuing a reimbursement, counter
indemnity or similar obligation,
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in either case guaranteeing or in effect guaranteeing any
Indebtedness, leases, dividends or other obligations (the PRIMARY
OBLIGATIONS) of any third person (the PRIMARY OBLIGOR) in any
manner, whether directly or indirectly. It includes an obligation
of the guaranteeing person, whether or not contingent:
(i) to purchase any such primary obligation or any property
constituting direct or indirect security for it;
(ii) to advance or supply funds for the purchase or payment of
any such primary obligation or to maintain working capital
or equity capital of the primary obligor or otherwise to
maintain the net worth or solvency of the primary obligor;
(iii) to purchase property, securities or services primarily for
the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make
payment of the primary obligation; or
(iv) otherwise to assure or hold harmless the owner of any such
primary obligation against loss in respect of it.
It does not include endorsements of instruments for deposit or
collection in the ordinary course of business; obligations in
respect of trade liabilities incurred in the ordinary course of
business and payable in accordance with customary practices; or
Excluded Credit Card Guarantee Obligations.
INDEBTEDNESS in relation to any person at any time, means, without
duplication:
(a) all indebtedness of the person for borrowed money or for the
deferred purchase price of property or services (other than
trade liabilities incurred in the ordinary course of
business and payable in accordance with customary
practices);
(b) any other indebtedness of the person which is evidenced by a
note, bond, debenture or similar instrument;
(c) all obligations of the person as lessee under Financing
Leases;
(d) all obligations of the person in respect of acceptances
issued or created for the account of the person;
(e) all liabilities secured by any Lien on any property owned by
the person even though the person has not assumed or
otherwise become liable for the payment of it ;
(f) all net liabilities of the person in respect of any interest
rate protection agreement, interest rate future, interest
rate option, interest rate cap or other interest rate hedge
arrangement;
(g) all Guarantee Obligations in respect of Indebtedness
referred to in the preceding paragraphs of this definition;
and
(h) if the person is the Company or any of its Subsidiaries, all
obligations of that person incurred in connection with any
securitisation or other asset-backed financing of
Receivables, to the extent those obligations are excluded
from the definition of Permitted Securitisation Obligations
by operation of the proviso to that definition.
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Despite the above, Permitted Vendor Financing Obligations do not
constitute Indebtedness under this definition.
INDEMNIFIED PARTY means the Agent, the Programme Manager, a Dealer,
a Lender or a Noteholder.
INTANGIBLE ASSETS means at any date of determination, the value
(net of any applicable reserves) as shown in the most recent
consolidated balance sheet of the Group as at the end of the most
recent fiscal quarter of the Company ending not more than 135 days
before that date, prepared in accordance with GAAP, of:
(a) all trade names, trade marks, licences, patents, copyrights,
service marks, goodwill and other like intangibles;
(b) organisational and development costs;
(c) deferred charges (other than prepaid items, such as
insurance, tax, interest, commissions, rent, deferred
interest waiver, deferred financing fees, compensation and
similar items and tangible assets being amortised); and
(d) unamortised debt discount and expense, less unamortised
premium.
I & P AGREEMENT means an issue and paying agency agreement between
National Australia Bank Limited as the issuing and paying agent and
the Borrower.
LENDER means any financial institution which is a Participant from
time to time under the Bill Facility Agreement.
LIEN means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or
other security interest or any preference, priority or other
security agreement or preferential arrangement of any kind or any
nature whatever (including any conditional sale or other title
retention agreement and any Financing Lease having substantially
the same economic effect as any of the above).
LIQUIDATION includes receivership, compromise, arrangement,
amalgamation, administration, reconstruction, winding up,
dissolution, assignment for the benefit of creditors, bankruptcy or
death.
MATERIAL ADVERSE EFFECT means a material adverse effect on:
(a) the business, operations, property or condition (financial
or otherwise) of the Group taken as a whole;
(b) the ability of the Company to perform its obligations under
this Deed;
(c) the ability of the Borrower to perform its obligations under
any Transaction Document; or
(d) the rights or remedies of the Indemnified Parties under this
Deed or the Transaction Documents.
MATERIAL SUBSIDIARY means any Subsidiary of the Company whose
assets or revenues (excluding inter-company receivables and
revenues that would be eliminated upon consolidation in accordance
with GAAP) are, at the time of determination, equal to or greater
than 10% of the assets or revenues
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(excluding inter-company receivables and revenues that would be
eliminated on consolidation in accordance with GAAP), respectively,
of the Company at such time.
MTN means a debt instrument created by the Borrower in registered
form, constituted by the MTN Deed, entitling the holder of the MTN
to payment of certain money under the MTN Deed.
MTN DEED means the A$ Domestic MTN Deed Poll by the Borrower dated
on or about the date of this Deed.
MTN HOLDER means a person entitled in accordance with the MTN Deed
to an MTN.
NOTEHOLDER means a holder of a PN or an MTN Holder.
ORDINARY RESOLUTION has the meaning given in the MTN Deed.
PERMITTED SECURITISATION OBLIGATIONS means obligations of the
Company or any of its Subsidiaries incurred in connection with any
securitisation or other asset-backed financing of Receivables;
except that, if:
(a) there is recourse to the Company or any of its Subsidiaries
(other than a Special Purpose Subsidiary) for failure to pay
or otherwise perform any of those obligations;
(b) that failure arises as a result of credit defaults by the
debtors in respect of those Receivables; and
(c) that recourse is not limited to the Receivables and
Receivables Related Assets (or undivided or beneficial
interests in them) which are the subject of the
securitisation or other asset-backed financing,
then those obligations will not be Permitted Securitisation
Obligations to the extent that, in accordance with GAAP, they would
be required to be included as a liability on a consolidated balance
sheet of the Group.
PERMITTED VENDOR FINANCING OBLIGATIONS means:
(a) any Guarantee Obligation of the Group in respect of Case
Vendor Financing, but only to the extent that the underlying
principal amount of the Indebtedness subject to the
Guarantee Obligation is secured or otherwise funded by the
Group with cash or other marketable instruments (including
pledges of deposit accounts, notes, bonds, certificates of
deposit or other documents or instruments); and
(b) any Guarantee Obligation of the Group in respect of Case
Vendor Financing where:
(i) Case Corporation or any of its Subsidiaries or
Affiliates has a Guarantee Obligation in respect of
the same principal amount;
(ii) the Company has a written agreement with Case
Corporation which states that Case Corporation will
fully indemnify the Company if the Company is called
on to provide funds in connection with the Guarantee
Obligation; and
(iii) that agreement is enforceable by any MTN Holder or
the Agent.
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PREFERRED SECURITIES means any preferred securities issued by a
financing entity used exclusively to raise capital for the Company
and which have the following structural characteristics:
(a) the financing entity lends the proceeds from the issue of
preferred securities to the Company in exchange for
subordinated debt securities (which are subordinated to all
Indebtedness of the Company of the type described in
paragraphs (a) and (b) of the definition of Indebtedness);
(b) the subordinated debt securities issued by the Company and
corresponding preferred securities issued by the financing
entity have a maturity of at least 10 years;
(c) interest payments on the subordinated debt securities may be
deferred at the Company's discretion; and
(d) neither the subordinated debt securities nor the
corresponding preferred securities contain cross default or
cross acceleration provisions to Indebtedness of the Company
of the type described in paragraphs (a) and (b) of the
definition of Indebtedness.
PN means a short term promissory note of the Borrower drawn in
accordance with the Bills of Exchange Act 1909 (Cth), issued under
the I&P Agreement.
PROGRAMME MANAGER means National Australia Bank Limited in its
capacity as Programme Manager under the Dealership Agreement.
RECEIVABLES means any right of payment from or on behalf of any
obligor, whether constituting an account, chattel paper,
instrument, general intangible or otherwise, arising from the
financing by the Company or any of its Subsidiaries of property or
services, and money due thereunder, security interests in the
property and services financed thereby and any and all other
related rights.
RECEIVABLES RELATED ASSETS means in connection with any
securitisation or other asset-backed financing of, or other sale,
transfer or disposition of, Receivables:
(a) all rights arising under documentation governing or relating
to those Receivables (including rights in respect of Liens
securing those Receivables and other credit support in
respect of those Receivables);
(b) any proceeds of those Receivables and any locked boxes or
accounts in which those proceeds are deposited;
(c) spread accounts and other similar accounts (and any amounts
on deposit in them) established in connection with that
securitisation or asset-backed financing; and
(d) any warranty, indemnity, dilution and other intercompany
claim arising out of the documentation evidencing that
securitisation or asset-backed financing.
REQUIREMENT OF LAW means, in relation to any person, the
certificate of incorporation and by-laws or other organisational or
governing documents of that person, and any law, treaty, rule,
guideline or regulation or determination of an arbitrator or a
court or other Governmental Agency, in each case applicable to or
binding on that person or any of its material property or to which
that person or any of its material property is subject.
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RESTRICTED SUBSIDIARY means each Subsidiary of the Company other
than Securitisation Subsidiaries and Subsidiaries of Securitisation
Subsidiaries.
SECURED MONEY means all money which the Borrower (whether 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 any Transaction Document.
It includes, without limitation, money by way of principal,
interest, fees, costs, guarantee, indemnities, charges, duties or
expenses or payment of liquidated or unliquidated damages under or
in connection with any Transaction Document or as a result of a
breach of or default under or in connection with any Transaction
Document.
Where the Borrower would have been liable but for its Liquidation,
it will be taken still to be liable.
SECURITISATION SUBSIDIARY means a Subsidiary of the Company which
is formed for the purpose of effecting one or more securitisation
transactions and engaging in other activities reasonably related to
them and none of whose indebtedness or any other obligations:
(a) are guaranteed by the Company or any Restricted Subsidiary;
or
(b) subjects any property or assets of the Company or any
Restricted Subsidiary, directly or indirectly, contingently
or otherwise, to any lien, other than pursuant to
representations, warranties and covenants (including those
related to servicing) entered into in the ordinary course of
business in connection with a securitisation transaction and
intercompany notes and other forms of capital or credit
support relating to the transfer or sale of Receivables or
asset-backed securities to that Securitisation Subsidiary
and customarily necessary or desirable in connection with
such transactions.
SPECIAL PURPOSE SUBSIDIARY means any wholly owned Subsidiary of the
Company (other than Case Credit Canada and the Borrower) which is:
(a) formed for the purpose of effecting a securitisation or
other asset-backed financing of Receivables and engaging in
other activities reasonably related to that; and
(b) structured as a BANKRUPTCY-REMOTE SUBSIDIARY in accordance
with customary practices in the asset-backed securitisation
market.
SUBSIDIARY in relation to any person, means a corporation,
partnership or other entity of which shares or stock or other
ownership interests having ordinary voting power (other than stock
or ownership interests which have such power only by reason of the
happening of a contingency) to elect a majority of the board of
directors or other managers of that corporation, partnership or
other entity are at the time owned, or the management of which is
otherwise controlled (directly or indirectly through one or more
intermediaries, or both), by such person.
THRESHOLD AMOUNT means US$60,000,000.
TRANSACTION DOCUMENT means this Deed, the Bill Facility Agreement,
any PN, any MTN, any Bill, the Dealership Agreement, the I&P
Agreement, the MTN Deed or a document or agreement entered into or
provided under, or for the purpose of amending, any of the above.
1.2 DETERMINATION OF AMOUNT OF GUARANTEE OBLIGATION
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The amount of any Guarantee Obligation of any GUARANTEEING PERSON
will be taken to be the lower of:
(a) an amount equal to the stated or determinable amount of the
PRIMARY OBLIGATION in respect of which the Guarantee
Obligation is made; and
(b) the maximum amount for which the guaranteeing person may be
liable under the terms of the instrument embodying the
Guarantee Obligation,
unless the primary obligation and the maximum amount for which the
guaranteeing person may be liable are not stated or determinable,
in which case the amount of the Guarantee Obligation will be the
guaranteeing person's maximum reasonably anticipated liability in
respect of it as determined by the Company in good faith.
In this clause, words in italics have the meaning given in the
definition of Guarantee Obligation.
1.3 BENEFIT OF DEED
(a) This Deed is a deed poll given for the several benefit of
all Indemnified Parties from time to time. Each Indemnified
Party and any person claiming through an Indemnified Party
has the benefit of this Deed even though it is not a party
to, or is not in existence at the time of execution and
delivery of, this Deed.
(b) Subject to the Transaction Documents, each Indemnified Party
may separately enforce its rights under this Deed
independently of each other Indemnified Party. Nothing done
or omitted to be done in relation to this Deed by any
Indemnified Party in any way affects any other Indemnified
Party.
(c) The rights and remedies of the Lenders under this Deed are
also vested in, and may be exercised by, the Agent. Without
limitation, the Agent may make demands on behalf of the
Lenders.
1.4 INTERPRETATION
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 them.
(e) A reference to a clause, annexure or schedule is a reference
to a clause of, or annexure or schedule to, this Deed.
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(f) A reference to an Indemnified Party or a party to 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 an omission, statement or
undertaking, whether or not in writing.
(j) Mentioning anything after INCLUDE, INCLUDES or INCLUDING
does not limit what else might be included.
1.5 CONSENT OF MTN HOLDERS
A reference to CONSENT of the MTN Holders to any act, matter or
thing is a reference to:
(a) consent of the MTN Holders by Extraordinary Resolution; or
(b) if Standard & Poors have unconditionally confirmed in
writing to the Programme Manager that the relevant act,
matter or thing can be done without effecting the ratings
outlook of the MTNs, then consent of the MTN Holders by
Ordinary Resolution.
2. GUARANTEE
2.1 GUARANTEE
The Company unconditionally and irrevocably guarantees the due and
punctual payment of the Secured Money. The Company enters into this
Deed for valuable consideration which includes the Indemnified
Parties entering into the Transaction Documents at its request.
2.2 PAYMENT
(a) Within 3 Business Days of demand made from time to time by
any Indemnified Party on or after expiry of any relevant
grace period applicable to the Borrower, the Company shall
pay to that Indemnified Party an amount equal to its Secured
Money then due and payable in the same manner and currency
as the Borrower is required to pay that Secured Money under
the relevant Transaction Document (or would have been but
for its Liquidation).
(b) An Indemnified Party may make multiple demands. A demand
need only specify the amount owing. It need not specify the
basis of calculation of that amount.
2.3 NO DEDUCTION
(a) The Company will make all payments under this Deed without
set-off or counter claim and without deduction, except any
compulsory deduction for tax.
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(b) If the Company is obliged to make a deduction in respect of
any tax from any payment to be made for the account of any
Indemnified Party under this Deed:
(i) it shall promptly pay the amount deducted to the
appropriate Governmental Agency; and
(ii) it shall pay the Indemnified Party on the due date of
the payment any additional amounts necessary to
ensure that the Indemnified Party receives when due a
net amount (after payment of any tax in respect of
those additional amounts) in Australian dollars equal
to the full amount which it would have received had a
deduction not been made.
(c) The obligations of the Company under this clause survive the
repayment of the Secured Money and the termination of this
Deed.
2.4 CURRENCY INDEMNITY
The Company shall indemnify each Indemnified Party on demand
against any deficiency which arises whenever for any reason
(including as a result of a judgment or order or Liquidation but
excluding default of any Indemnified Party):
(a) that Indemnified Party receives or recovers an amount due
from the Company in a currency (the PAYMENT CURRENCY) other
than Australian dollars; and
(b) the amount actually received or recovered by that
Indemnified Party when, in accordance with its normal
practices, it converts the Payment Currency into Australian
dollars is less than the relevant amount of Australian
dollars due.
2.5 UNCONDITIONAL NATURE OF OBLIGATION
Neither this Deed nor the obligations of the Company under this
Deed will be affected by anything which but for this provision
might operate to release, prejudicially affect or discharge them or
in any way relieve the Company from any obligation. This includes
the following:
(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
document or agreement;
(f) all or any part of any document or agreement held by any
Indemnified Party at any time or of any right, obligation,
power or remedy changing, ceasing or being transferred (this
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includes amendment, variation, novation, replacement,
rescission, invalidity, extinguishment, repudiation,
avoidance, unenforceability, frustration, failure, expiry,
termination, loss, release, discharge, abandonment or
assignment);
(g) the taking or perfection of any document or agreement or
failure to take or perfect any document or agreement;
(h) the failure by any person or any Indemnified Party to notify
the Company of any default by any person under any document
or agreement;
(i) any Indemnified Party obtaining a judgment against any
person for the payment of any Secured Money;
(j) any legal limitation, disability, incapacity or other
circumstance relating to any person;
(k) any change in any circumstance (including in the members or
constitution of any person);
(l) any document or agreement is not executed by any person, or
is not valid or binding on any person; or
(m) any increase in the Secured Money for any reason (including
as a result of anything referred to above),
whether with or without the consent of the Company. None of the
above paragraphs limits the generality of any other. A reference to
ANY PERSON includes the Borrower. A reference to ANY DOCUMENT OR
AGREEMENT includes this Deed or any other Transaction Document.
2.6 PRINCIPAL AND INDEPENDENT OBLIGATION
This clause is a principal obligation and shall not be treated as
ancillary or collateral to any other right or obligation. The
Company waives any requirement for demand on or notice to the
Borrower.
2.7 NO MARSHALLING
No Indemnified Party is obliged to marshal or appropriate in favour
of the Company or to exercise, apply or recover any Lien or
guarantee (including any Transaction Document) now or in the future
held by it or any of the funds or assets that it may be entitled to
receive or have a claim on.
2.8 NO COMPETITION
Until the Secured Money has been irrevocably paid and discharged in
full the Company shall not:
(a) be subrogated to any Indemnified Party or claim the benefit
of any Lien or guarantee now or in the future held by any
Indemnified Party for the payment of all or part of the
Secured Money;
(b) either directly or indirectly to 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
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(c) unless otherwise required by an Indemnified Party, have or
claim any right of contribution or indemnity from the
Borrower or any other person who gives a guarantee or Lien
in respect of any Secured Money.
The receipt of any distribution, dividend or other payment by an
Indemnified Party out of or relating to that Liquidation will not
prejudice the right of any Indemnified Party to recover the Secured
Money by enforcement of this Deed.
2.9 SUSPENSE ACCOUNT
In the event of the Liquidation of the Borrower, the Company
authorises each Indemnified Party:
(a) to prove for all moneys which the Company has paid under
this Deed for the account of the Indemnified Party; and
(b) to retain and to carry to a suspense account and to
appropriate at the discretion of the Indemnified Party any
dividends received in the Liquidation of the Borrower and
all other moneys received in respect of the Secured Money
(including those received under this clause),
until the Indemnified Party has been paid in full in respect of the
Secured Money.
2.10 RESCISSION OF PAYMENT
Whenever any of the following occurs for any reason (including
under any law relating to Liquidation, fiduciary obligations or the
protection of creditors):
(a) all or part of any transaction of any nature (including any
payment or transfer) made during the term of this Deed which
affects or relates in any way to the Secured Money 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 the
Company to all rights in respect of the Secured Money which it
would have had if all or the relevant part of the transaction or
receipt had not taken place. The Company shall indemnify each
Indemnified Party on demand against any resulting loss, cost or
expense. This clause continues after this Deed is discharged.
2.11 INDEMNITY
If any Secured Money (including moneys which would have been
Secured Money if they were recoverable) is not recoverable from the
Borrower for any reason the Company shall indemnify each
Indemnified Party and shall pay that money to the relevant
Indemnified Party within 3 Business Days of demand made from time
to time by the Indemnified Party. The reason may include any legal
limitation, disability, incapacity or thing affecting the Borrower.
This applies whether or not:
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(a) any transaction relating to the Secured Money 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.
2.12 CONTINUING GUARANTEE AND INDEMNITY
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 Money or by any settlement of
account or other matter or thing; and
(c) remains in full force until the Secured Money has been paid in full
and the Company has completely performed its obligations under this
Deed.
2.13 VARIATIONS
This clause covers the Secured Money as varied from time to time including
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 Company. This does
not limit any other provision.
2.14 JUDGMENT
A judgment obtained against the Borrower will be conclusive against the
Company.
2.15 CONDITIONS PRECEDENT
Any condition or condition precedent to the provision of financial
accommodation is for the benefit of the Indemnified Parties and not the
Company. 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 Money.
3. EXPENSES
(a) The Company shall indemnify each Indemnified Party on demand against
any liability, loss, cost or expense (including legal costs on a
full indemnity basis) the Indemnified Party incurs in or as a result
of the actual or contemplated enforcement of this Deed.
(b) The Company shall have no obligation under this clause to the extent
that any liability, loss or expense arises solely from:
(i) the gross negligence or wilful misconduct of the Indemnified
Party (or any of its directors, officers, employees, agents,
affiliates or successors); or
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(ii) legal proceedings commenced against the Indemnified Party by
any security holder or creditor of the Indemnified Party
arising out of and based upon rights afforded any such
security holder or creditor solely in its capacity as such.
4. DEFAULT INTEREST
Interest will accrue each day on each amount which is due but unpaid under
or in respect of this Deed, both before and after judgment. The Company
will pay it on demand. The rate will be 1.5% per annum plus the Reuters
BBSY bid rate for consecutive funding periods of one month, or if there is
none, the rate reasonably selected by the Indemnified Party as equivalent.
5. SET OFF
(a) Each Indemnified Party may apply any credit balance in any currency
(whether or not matured) in any accounts of the Company with the
Indemnified Party towards satisfaction of any sum then due and
payable by the Company to the Indemnified Party under or in
relation to this Deed. An Indemnified Party need not make the
application.
(b) An Indemnified Party may exchange currencies to make that
application.
(c) The Indemnified Party shall notify the Company as soon as
reasonably practicable of any set-off and application under this
clause.
6. REPRESENTATIONS AND WARRANTIES
6.1 REPRESENTATIONS AND WARRANTIES
The Company makes the following representations and warranties.
(a) (FINANCIAL CONDITION) The most recent balance sheet of the Group
fairly presents in all material respects and in conformity with
GAAP the financial position of the Group as at the date to which it
relates. There has been no subsequent development or event which
has had, or would be reasonably expected to have, a Material
Adverse Effect.
(b) (STATUS) The Company and each Subsidiary of the Company is duly
incorporated or organised and is validly existing as a corporation
or other legal entity in good standing in the jurisdiction of its
incorporation or organisation.
(c) (POWER) The Company and each of its Subsidiaries has the corporate
or other power and authority to own, lease and operate its
properties and to conduct the business in which it is currently
engaged. Each of them is duly qualified to transact business as a
foreign corporation or other legal entity and is in good standing
or otherwise appropriately qualified in each jurisdiction where its
ownership, leasing or operation of property or the conduct of its
business requires such qualification, except to the extent that any
failure to be so qualified and in good standing would not be
reasonably expected to have a Material Adverse Effect.
(d) (COMPLIANCE) The Company and each of its Subsidiaries is in
compliance with all applicable Requirements of Law except to the
extent that failure to comply would not, in the aggregate, be
reasonably expected to have a Material Adverse Effect.
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(e) (CORPORATE AUTHORISATIONS) Each of the Company and the Borrower has
the power to enter into and perform its obligations under the
Transaction Documents to which it is expressed to be a party and
has taken all necessary corporate action to authorise the entry
into and performance of those documents and to carry out the
transactions contemplated by them. No consent or authorisation of,
filing with, notice to or other act by or in respect of any
Governmental Agency or any other person is required to be obtained
or made by or on behalf of the Company or the Borrower in
connection with the execution, delivery, performance, validity or
enforceability of those Transaction Documents.
(f) (DOCUMENTS BINDING) Each Transaction Document to which the Borrower
or the Company is expressed to be a party is a valid and binding
obligation of that entity enforceable against it in accordance with
its terms, subject to any necessary stamping and registration and
to applicable bankruptcy, insolvency, reorganisation, moratorium or
similar laws affecting the enforcement of creditors' rights
generally and to general equitable principles.
(g) (NO LEGAL BAR) The execution, delivery and performance of the
Transaction Documents by the Company or the Borrower did not and
will not:
(i) result in, or require, the creation or imposition of any
Lien on any of the Company's or the Borrower's assets or
property pursuant to any Requirement of Law or Contractual
Obligation; or
(ii) violate any Contractual Obligation or any Requirement of Law
applicable to the Borrower or the Company in any respect
that would reasonably be expected to have a Material Adverse
Effect.
(h) (NO MATERIAL LITIGATION) No litigation, arbitration, tax claim,
dispute or administrative or other proceeding is current or pending
or, to its best knowledge, threatened, which would be reasonably
expected to have a Material Adverse Effect.
(i) (NO DEFAULT) Neither the Company nor any of its Subsidiaries is in
default under any of its Contractual Obligations in a respect which
would be reasonably expected to have a Material Adverse Effect. No
Event of Default has occurred and is continuing.
(j) (TAXES) All United States federal income tax returns and all other
material tax returns which are required to be filed by or with
respect to the Company or any of its Subsidiaries have been filed,
and all taxes and assessments due and payable by any of them (or
for which they could be liable) have been paid, other than:
(i) those which are not yet delinquent;
(ii) those which, if not paid, would not be reasonably expected
to have a Material Adverse Effect; and
(iii) those which are currently being contested in good faith by
appropriate proceedings diligently conducted and with
respect to which reserves in conformity with GAAP have been
provided for in the accounts of the relevant entity.
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No material tax Lien (except those permitted by clause 8.2) has
been filed with respect to any such tax, fee or other charge.
(k) (INVESTMENT COMPANY ACT) The Company is not an INVESTMENT COMPANY,
or a company CONTROLLED by an INVESTMENT COMPANY, within the
meaning of the Investment Company Act of 1940. The Company is not
subject to regulation under any United States (Federal or State) or
other Requirement of Law which limits its ability to incur
indebtedness under this Deed.
6.2 RELIANCE ON REPRESENTATIONS AND WARRANTIES
The Company acknowledges that each Indemnified Party will enter into the
Transaction Documents in reliance on the representations and warranties in
this clause.
7. AFFIRMATIVE COVENANTS
The Company undertakes to each Indemnified Party as follows, except to the
extent that the Agent and the MTN Holders consent.
7.1 FINANCIAL STATEMENTS
The Company will deliver to the Agent (with a copy for each Lender) and
the Programme Manager (with a copy for each Dealer):
(a) as soon as practicable (but in event within 120 days) after the end
of each fiscal year of the Company, a copy of the consolidated
balance sheet of the Group as at the end of that year and the
related consolidated statements of income and retained earnings and
of cash flows for that year, setting out in each case in
comparative form the figures for the previous year, reported on in
accordance with clause 7.2(a); and
(b) as soon as practicable (but in any event within 60 days) after the
end of each of the first 3 quarterly periods of each fiscal year of
the Company, the unaudited consolidated balance sheet of the Group
as at the end of that quarter and the related unaudited
consolidated statements of income and retained earnings and of cash
flows for that quarter and for the portion of the fiscal year
through to the end of that quarter, setting out in comparative form
the figures for the previous year, certified by an Authorised
Officer of the Company as being fairly stated in all material
respects (subject to normal year-end audit adjustments).
All those financial statements must be complete and correct in all
material respects and must be prepared in reasonable detail and in
accordance with GAAP applied consistently throughout the periods reflected
in them and with prior periods (except as approved by the reporting
accountants or Authorised Officer, as applicable, and disclosed in them).
7.2 CERTIFICATES AND OTHER INFORMATION
The Company will deliver to the Agent (with a copy for each Lender) and
the Programme Manager (with a copy for each Dealer):
(a) concurrently with the delivery of the financial statements referred
to in clause 7.1(a), a certificate of independent certified public
accountants of nationally recognised standing selected by the
Company:
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(i) reporting on those financial statements without a GOING
CONCERN or like qualification or exception or qualification
arising out of the scope of the audit; and
(ii) stating that, after making the examination necessary for the
report, no knowledge was obtained of any Event of Default,
except as specified in the certificate;
(b) concurrently with the delivery of the financial statements referred
to in clauses 7.1(a) and 7.1(b), a certificate of an Authorised
Officer of the Company which:
(i) states that during the period covered by those financial
statements, the Company has, to the best of that person's
knowledge, observed or performed all its covenants and other
agreements under this Deed, and that the Authorised Officer
has no knowledge of any Event of Default except as specified
in the certificate; and
(ii) sets out in reasonable detail the calculations required to
determine compliance with clause 8.1;
(c) no later than 30 days after they are filed with the Securities and
Exchange Commission or any successor or analogous Governmental
Agency, final copies of all financial statements and material
reports which the Company may make to, or file with those entities
and final copies of all filings made by the Company with those
entities in connection with the sale of indebtedness of the Company
to the public or in connection with any asset-backed receivables
transaction entered into by the Company or its Subsidiaries
(including registration statements and prospectuses and amendments
to them); and
(d) promptly, such additional financial and other information as the
Agent or the Programme Manager may from time to time reasonably
request.
7.3 PAYMENT OF OBLIGATIONS
The Company will pay, discharge or otherwise satisfy at or before maturity
or before they become delinquent, all its obligations of whatever nature
except where:
(a) the amount or validity of the obligation is currently being
contested in good faith by appropriate proceedings and reserves in
conformity with GAAP have been provided in its accounts; or
(b) failure to do so could not, in the aggregate, have a Material
Adverse Effect and would not subject any of its property to a Lien
not permitted by clause 8.2.
7.4 CONDUCT OF BUSINESS AND MAINTENANCE OF EXISTENCE
The Company will continue to engage in business of the same general type
as now conducted by it and preserve, renew and keep in full force its
corporate existence and take all reasonable action to maintain all rights,
privileges and franchises necessary or desirable in the normal conduct of
its business. It will comply with all its Contractual Obligations and
Requirements of Law except to the
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extent that failure to comply could not, in the aggregate, reasonably be
expected to have a Material Adverse Effect.
7.5 MAINTENANCE OF PROPERTY AND INSURANCE
The Company will keep all property useful and necessary in its business in
good working order and condition. It will maintain insurance on all its
property, with financially sound and reputable insurance companies, for at
least such amounts and against at least such risks as are usually insured
against in the same general area by companies engaged in the same or
similar business (including, in any event, public liability, product
liability and business interruption insurance).
7.6 INSPECTION OF PROPERTY, BOOKS
The Company will keep proper books of record and account in which full,
true and correct entries, in conformity with GAAP and all applicable
Requirements of Law, will be made of all dealings and transactions in
relation to its business and activities. It will allow representatives of
the Agent and the Programme Manager to visit and inspect any of its
property and examine any of its books and records at any reasonable time
and with reasonable prior notice and it will allow them to discuss the
business, operations, property and financial and other condition of the
Group with its employees, officers and accountants.
7.7 NOTICE
The Company will promptly (but in any event no later than 3 days, or in
the case of paragraph (b), 10 days or in the case of paragraph (d), 30
days, in each case after an Authorised Officer of the Company knows of it)
give notice to the Agent and the Programme Manager of:
(a) the occurrence of any Event of Default;
(b) any:
(i) default or event of default under any Contractual Obligation
of the Company or any of its Subsidiaries; or
(ii) litigation, investigation or proceeding which may exist at
any time between the Company or any of its Subsidiaries and
a Governmental Agency,
which, in either case, if not cured or if adversely determined, as
applicable, could have a Material Adverse Effect;
(c) any litigation or proceeding affecting the Company or any of its
Subsidiaries where the amount involved is the Threshold Amount or
more and not covered by insurance or where injunctive or similar
relief is sought; and
(d) any development or event which has had or could reasonably be
expected to have a Material Adverse Effect.
Each notice under this clause shall be accompanied by a statement of an
Authorised Officer of the Company setting out details of the event
referred to in it and any remedial action taken or proposed.
7.8 SUBSIDIARIES
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The Company will ensure that each of its Material Subsidiaries complies
with clauses 7.3 to 7.7 inclusive as if binding on each of them and as if
references to IT or THE COMPANY were to the Material Subsidiary.
8. NEGATIVE COVENANTS
The Company undertakes to each Indemnified Party as follows, except to the
extent that the Agent and the MTN Holders consent.
8.1 FINANCIAL CONDITION, RATIOS
(a) The Company will ensure that the ratio of Case Credit Debt to
Consolidated Net Worth of the Company is never greater than 8.00 to
1.00.
(b) The Company will ensure that the Fixed Charge Ratio for any period
of four consecutive fiscal quarters ending on the last day of any
fiscal quarter of the Company is never less than 1.10 to 1.00.
8.2 LIMITATION ON LIENS
The Company will not, and it will ensure that each of its Subsidiaries
will not, create, incur, assume or suffer to exist any Lien on any of its
property, assets or revenue, whether now owned or acquired later, other
than:
(a) Liens for taxes not yet due and payable or which are being
contested in good faith by appropriate proceedings, provided it has
set aside adequate reserves in conformity with GAAP;
(b) Liens consisting of pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security
legislation and deposits securing liability to insurance carriers
under insurance or self-insurance arrangements;
(c) Liens consisting of rights of lessees under leases, easements,
rights-of-way, restrictions and other similar encumbrances incurred
in the ordinary course of business which, in the aggregate, are not
substantial in amount and which do not in any case materially
detract from the value of the property or materially interfere with
the ordinary conduct of its business;
(d) Liens consisting of deposits to secure the performance of leases
(other than Financing Leases), statutory obligations, surety and
appeal bonds and other obligations of a like nature incurred in the
ordinary course of its business;
(e) Liens created by the Company in favour of itself;
(f) Liens granted pursuant to any securitisation or other asset-based
financing of Receivables and Receivables Related Assets, and which
cover only Receivables and Receivables Related Assets or any
undivided or beneficial ownership interest in any Receivables or
Receivables Related Assets;
(g) Liens in existence on the date of this Deed and listed in the
schedule, provided that:
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(i) no such Lien is extended to cover any additional property
after the date of this Deed (except to the extent required
by the terms of the Indebtedness secured by the Lien, or by
any other agreement governing the Lien, as those terms are
in effect on the date of this Deed);
(ii) no such Lien secures any Indebtedness or other obligations
other than Indebtedness or obligations secured by it on the
date of this Deed and refinancings, refundings, renewals or
extensions of that Indebtedness or obligation; and
(iii) the amount of Indebtedness or other obligations secured by
the Lien is not increased;
(h) Liens on assets of Subsidiaries of the Company which become
Subsidiaries after the date of this Deed or Liens on assets
acquired by the Company or any of its Subsidiaries after the date
of this Deed, provided that:
(i) the Liens were in existence at the time the Subsidiary
became a Subsidiary or at the time the assets were acquired;
and
(ii) the Liens were not created in contemplation of the
transaction pursuant to which the Subsidiary became a
Subsidiary or in contemplation of the acquisition of those
assets; and
(i) in addition to Liens permitted by paragraphs (a) to (h) of this
clause, Liens on assets of the Company or any of its Subsidiaries
securing Indebtedness of the Company or such Subsidiary, provided
that the aggregate principal amount of all Indebtedness secured by
such Liens, plus the aggregate outstanding amount of all
Attributable Debt in respect of all sale and leaseback transactions
to which the Company or any Restricted Subsidiary is a party, does
not exceed at the time such Liens are granted an amount equal to
the sum of:
(i) US$20,000,000; and
(ii) 5% of Consolidated Net Tangible Assets of the Group.
In calculating the amount of Attributable Debt permitted under this
paragraph, there shall be excluded all Attributable Debt in respect
of sale and leaseback transactions relating to assets of
Subsidiaries of the Company which become Subsidiaries after the
date of this Deed if those transactions were in existence at the
time the Subsidiary became a Subsidiary and were not created in
contemplation of the transaction pursuant to which the Subsidiary
became a Subsidiary.
8.3 LIMITATION ON FUNDAMENTAL CHANGES
(a) Subject to paragraph (b), the Company will not enter into any
merger, consolidation or amalgamation, or liquidate, wind up or
dissolve itself (or suffer any liquidation or dissolution), or
convey, sell, lease, assign, transfer or otherwise dispose of, all
or substantially all of its property, business or assets.
(b) An entity may be merged or consolidated with or into the Company
if:
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(i) the Company is the continuing or surviving corporation; or
(ii) the Indebtedness under this Deed is assumed by the surviving
corporation with the approval of the Agent and the MTN
Holders by Extraordinary Resolution.
8.4 LIMITATION ON LINES OF BUSINESS
The Company will not enter into any business, either directly or through
any Subsidiary, other than:
(a) the financing of Receivables of Case Corporation, its Subsidiaries
and their dealers and customers;
(b) other financial services related to the agricultural and
construction business; and
(c) other business, if the business of the Group taken as a whole is
limited substantially to the businesses described in paragraphs (a)
and (b) above.
9. NO WAIVER
No failure to exercise a power, and no delay in exercising a power,
operates as a waiver. Waivers must be in writing.
10. SEVERABILITY OF PROVISIONS
Any provision of this Deed 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 this Deed nor affect the validity or enforceability of that
provision in any other jurisdiction.
11. SURVIVAL OF REPRESENTATIONS
All representations and warranties in this Deed survive its execution and
delivery.
12. INDEMNITY AND REIMBURSEMENT OBLIGATIONS
Unless otherwise stated, each indemnity, reimbursement or similar
obligation in this Deed:
(a) is a continuing obligation;
(b) is a separate and independent obligation;
(c) is payable on demand; and
(d) survives termination or discharge of this Deed.
13. 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 Company any obligation
under this Deed; or
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(b) delays, prevents or prejudicially affects the exercise by an
Indemnified Party of any right, power or remedy conferred by this
Deed,
is excluded from this Deed.
14. ACKNOWLEDGMENT BY COMPANY
The Company confirms that:
(a) it has not entered into this Deed in reliance on, or as a result
of, any statement or conduct of any kind of or on behalf of any
Indemnified Party (including, without limitation, any advice,
warranty, representation or undertaking); and
(b) no 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 that Indemnified Party.
15. GOVERNING LAW
This Deed is governed by the laws of New South Wales.
16. JURISDICTION
16.1 JURISDICTION
With respect to any legal action or proceedings which may be brought at
any time with respect to this Deed (each a RELEVANT ACTION) the Company
irrevocably:
(a) submits to and accepts, for itself and in respect of its assets,
generally and unconditionally the non-exclusive jurisdiction of all
courts exercising jurisdiction in New South Wales; and
(b) waives any present or future objection to the venue and any present
or future claim that the Relevant Action, if brought in New South
Wales, has been brought in an inconvenient forum.
16.2 PROCESS AGENTS
(a) The Company irrevocably:
(i) nominates the Borrower as its agent to receive service of
process or other documents in any Relevant Action; and
(ii) agrees that service on that agent or any other person
appointed under paragraph (b) will be sufficient service on
it.
(b) The Company shall ensure that the process agent remains authorised
to accept service on its behalf. If any process agent ceases to
have an office in the place specified, the Company shall ensure
that at all times there is another person in that place to receive
process on its behalf. It shall promptly notify the Agent and the
Programme Manager of the appointment of that other person.
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17. COUNTERPARTS
This Deed may be executed in any number of counterparts. All of
counterparts together will be taken to constitute the one instrument.
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SCHEDULE
EXISTING LIENS
(Clause 8.2(g))
None.
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EXECUTED as a deed poll.
Each attorney executing this Deed states that he has no notice of revocation or
suspension of his power of attorney.
SIGNED SEALED AND DELIVERED )
for and on behalf of )
CASE CREDIT CORPORATION )
by its attorney in )
the presence of: ) /s/ ▇▇▇▇▇ ▇▇▇▇ (sgd)
-----------------------
Attorney
▇▇▇▇▇ ▇▇▇▇
-----------------------
Print name
/s/ ▇▇▇▇▇▇ ▇▇▇▇ (sgd)
------------------------
Witness
▇▇▇▇▇▇ ▇▇▇▇
------------------------
Print name
CONFORMED COPY
CASE CREDIT CORPORATION
-------------------------------------
DEED OF GUARANTEE AND NEGATIVE PLEDGE
-------------------------------------
