Exhibit 10.12
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GE CAPITAL AUSTRALIA
ACN 008 562 534
GE CAPITAL FINANCE PTY LIMITED
ACN 075 554 175
(COLLECTIVELY, THE LENDER)
NATIONAL FLEET NETWORK PTY LIMITED
ACN 094 802 141
(COMPANY)
NMHG DISTRIBUTION PTY LIMITED
ACN 053 370 291
(GUARANTOR)
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A$ FACILITY AGREEMENT
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CONTENTS
GENERAL TERMS.......................................................... 9
INTERPRETATION......................................................... 9
1. THE FACILITY........................................................... 9
THE FACILITY........................................................... 9
CONDITIONS PRECEDENT TO THE FACILITY................................... 9
FURTHER CONDITION PRECEDENT TO THE FACILITY............................ 9
2A. USING THE OPERATING LEASE FACILITY.....................................10
2B. [INTENTIONALLY OMITTED]................................................10
2C. USING THE REVOLVING LOAN FACILITY......................................10
DRAWINGS...............................................................10
REQUESTING A DRAWING...................................................10
EFFECT OF A DRAWDOWN NOTICE............................................10
CONDITIONS TO FIRST DRAWING............................................10
CONDITIONS TO ALL DRAWINGS.............................................11
BENEFIT OF CONDITIONS..................................................11
3. AVAILABILITY REVOLVING LOAN FACILITY LIMIT.............................11
4. INTEREST ON REVOLVING LOAN FACILITY....................................11
INTERPRETATION.........................................................11
INTEREST CHARGES.......................................................11
INTEREST PAYMENT.......................................................12
5. PAYMENTS...............................................................12
REPAYMENT..............................................................12
PREPAYMENT.............................................................12
MANNER OF PAYMENT......................................................12
PAYMENT APPLICATION....................................................12
CONVERSION OF CURRENCY.................................................12
APPLICATION OF PAYMENTS................................................13
6. CANCELLATION...........................................................13
7. FEES .................................................................13
FEES...................................................................13
8. LOAN ACCOUNT...........................................................14
9. WITHHOLDING TAX........................................................14
PAYMENTS TO THE LENDER.................................................14
10. COMPENSATION FOR CHANGED CIRCUMSTANCES.................................15
COMPENSATION...........................................................15
CALCULATION IN REASONABLE DETAIL.......................................15
11. ILLEGALITY OR IMPOSSIBILITY............................................15
RIGHT TO SUSPEND OR CANCEL.............................................15
EXTENT AND DURATION....................................................16
NOTICE REQUIRING REPAYMENT.............................................16
FEES...................................................................16
12. REPRESENTATIONS AND WARRANTIES.........................................16
REPRESENTATIONS AND WARRANTIES.........................................16
CONTINUATION AND REPETITION OF REPRESENTATIONS AND WARRANTIES..........20
13. UNDERTAKINGS...........................................................21
GENERAL UNDERTAKINGS...................................................21
FINANCIAL UNDERTAKINGS.................................................25
NEGATIVE COVENANTS.....................................................26
FINANCIAL REPORTING....................................................28
OTHER REPORTS..........................................................29
14. OTHER RIGHTS OF THE COMPANY............................................30
15. EVENTS OF DEFAULT AND REVIEW EVENT.....................................30
EVENTS OF DEFAULT......................................................30
CONSEQUENCES OF DEFAULT................................................33
EFFECT OF AN EVENT OF DEFAULT..........................................33
REVIEW EVENT...........................................................34
16. COSTS AND INDEMNITIES..................................................34
REIMBURSEMENT AND INDEMNITY............................................34
OTHER LOSS.............................................................35
ITEMS INCLUDED IN LOSS, LIABILITY AND COSTS............................36
PAYMENT OF LOSSES......................................................36
CURRENCY CONVERSION ON JUDGMENT DEBT...................................36
CERTIFICATE BY GE SYNDICATION..........................................37
17A. INTEREST ON OVERDUE AMOUNTS............................................37
OBLIGATION TO PAY......................................................37
COMPOUNDING............................................................37
INTEREST FOLLOWING JUDGMENT............................................37
17B. INSURANCE, RISK AND INDEMNITIES........................................38
18. GUARANTEE AND INDEMNITY................................................40
REQUEST AND CONSIDERATION..............................................40
19. ATTORNEY...............................................................40
APPOINTMENT OF ATTORNEY................................................40
ATTORNEYS' POWERS......................................................40
APPLICATION OF INSOLVENCY DIVIDENDS....................................40
RIGHT OF PROOF LIMITED.................................................41
20. DEALING WITH INTERESTS.................................................41
NO DEALING BY COMPANY..................................................41
DEALINGS BY THE LENDER.................................................41
NO SET-OFF AGAINST ASSIGNEES...........................................43
21. NOTICES................................................................43
FORM...................................................................43
DELIVERY...............................................................43
WHEN EFFECTIVE.........................................................43
DEEMED RECEIPT - POSTAL................................................43
DEEMED RECEIPT - FACSIMILE.............................................43
22. GENERAL................................................................44
SET-OFF................................................................44
SUSPENSE ACCOUNT.......................................................44
CERTIFICATES...........................................................44
PROMPT PERFORMANCE.....................................................44
DISCRETION IN EXERCISING RIGHTS........................................44
CONSENTS...............................................................44
PARTIAL EXERCISING OF RIGHTS...........................................44
NO LIABILITY FOR LOSS..................................................45
CONFLICT OF INTEREST...................................................45
REMEDIES CUMULATIVE....................................................45
RIGHTS AND OBLIGATIONS ARE UNAFFECTED..................................45
INDEMNITIES............................................................45
VARIATION AND WAIVER...................................................45
CONFIDENTIALITY........................................................45
FURTHER STEPS..........................................................46
INCONSISTENT LAW.......................................................46
SUPERVENING LEGISLATION................................................46
TIME OF THE ESSENCE....................................................46
APPLICABLE LAW.........................................................46
SERVING DOCUMENTS......................................................46
ADVERTISING............................................................46
COUNTERPARTS...........................................................47
SEVERANCE..............................................................47
23. INTERPRETATION.........................................................47
MEANINGS...............................................................47
REFERENCES TO CERTAIN GENERAL TERMS....................................63
NUMBER AND HEADINGS....................................................64
HEADINGS...............................................................64
BUSINESS DAYS..........................................................64
SCHEDULE 1 - CONDITIONS PRECEDENT (CLAUSE 2.4)................................65
SCHEDULE 2 - INITIAL DRAWDOWN NOTICE (CLAUSE 2.2).............................69
SCHEDULE 3 - BORROWING BASE CERTIFICATE.......................................70
SCHEDULE 4 - EXCLUSIONARY CRITERIA............................................71
SCHEDULE 5 - [INTENTIONALLY OMITTED]..........................................73
SCHEDULE 6 - DISCLOSURES......................................................74
SCHEDULE 7 - GUARANTEE AND INDEMNITY (CLAUSE 18.1)............................75
GUARANTEE..............................................................75
NATURE OF GUARANTEE....................................................75
INDEMNITY..............................................................75
REINSTATEMENT OF RIGHTS................................................75
RIGHTS OF GE CAPITAL ARE PROTECTED.....................................76
NO MERGER..............................................................76
EXTENT OF GUARANTOR'S OBLIGATIONS......................................77
GUARANTOR'S RIGHTS ARE SUSPENDED.......................................77
CROSS GUARANTEE........................................................78
SCHEDULE 8 - FORM OF SUBSTITUTION CERTIFICATE.................................79
SIGNING PAGE..................................................................81
A$ FACILITY AGREEMENT
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PARTIES
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LENDER:
GE CAPITAL AUSTRALIA ACN 008 562 534 ("GE CAPITAL AUSTRALIA")
Level 5, 55 Hunter Street, Sydney NSW 2000
Facsimile No: 02 9338 4390
GE CAPITAL FINANCE PTY LIMITED ACN 075 554 175
Level 5, 55 Hunter Street
Sydney NSW 2000
Facsimile No: 02 9338 4390
(individually and collectively, the "Lender" but, in the context of the
revolving loan facility, "Lender" means GE Capital Finance Pty Limited and/or GE
Capital Australia and, in the context of the operating lease facility, "Lender"
means GE Capital Australia)
COMPANY:
NATIONAL FLEET NETWORK PTY LIMITED ACN 094 802 141
1 Bullecourt Avenue, Milperra, NSW 2214
Facsimile No: (02) 9772 6390
GUARANTOR:
NMHG DISTRIBUTION PTY LIMITED ACN 053 370 291
1 Bullecourt Avenue, Milperra, NSW 2214
Facsimile No: (02) 9772 6390
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Facility Agreement Page 6 of 83 Pages
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DETAILS
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FACILITIES (1) DESCRIPTION:
Revolving loan facility to be provided by GE
Capital Finance Pty Limited and/or GE Capital
Australia.
REVOLVING LOAN FACILITY LIMIT:
A$5,000,000.
AVAILABILITY PERIOD:
5 years from the date of this agreement.
INTEREST RATE:
The index rate plus 2.75% per annum.
PURPOSE:
Working capital.
MATURITY DATE:
5 years from the date of this agreement.
(2) DESCRIPTION:
Operating lease facility to be provided by GE
Capital Australia
OPERATING LEASE FACILITY LIMIT:
A$81,000,000
AVAILABILITY PERIOD:
7 years from the date of this agreement.
PURPOSE:
Funding the acquisition of the business.
Funding the acquisition of new equipment and used
equipment acceptable to the Lender.
MATURITY DATE:
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Facility Agreement Page 7 of 83 Pages
The seventh anniversary of the date of this
agreement.
TOTAL FACILITY LIMIT: $86,000,000
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FEES UNUSED FACILITY FEE:
0.5% per annum on the undrawn revolving loan
facility limit on a daily balance - see clause
7.1(a)
MONITORING FEE:
A$100,000 per annum - see clause 7.1(b).
ESTABLISHMENT FEE:
A$1,290,000 on the date of the first drawdown
under this agreement - see clause 7.1(c).
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Facility Agreement Page 8 of 84 Pages
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GENERAL TERMS
INTERPRETATION
Definitions of terms printed like this are at the end of these General Terms
before the Schedules.
1. THE FACILITY
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THE FACILITY
1.1 Subject to this agreement, the Lender agrees to provide the company
with the facility in Australian dollars of an amount not exceeding the
total facility limit until the termination date. The parties agree that
the facility includes:
(a) the revolving loan facility; and
(b) the operating lease facility.
The total facility limit is an overall collective limit which includes
the revolving loan facility limit and the operating lease facility
limit as sub limits.
CONDITIONS PRECEDENT TO THE FACILITY
1.2 The obligations of the Lender under the transaction documents including
the obligation to provide the facility is subject to and conditional
upon the Lender being satisfied that it has received:
(i) the items listed in Schedule 1;
(ii) any other information or document related to the transactions
contemplated by the transaction documents which the Lender
reasonably requests in relation to the company or the
guarantor.
FURTHER CONDITION PRECEDENT TO THE FACILITY
1.3 The Lender need not provide any financial accommodation under any
facility unless:
(a) it is to be provided during the relevant availability period
set out in the Details; and
(b) providing the financial accommodation will not result in the
total facility limit to be exceeded or the facility limit for
each of the revolving loan facility and the operating lease
facility to be exceeded; and
(c) the Lender has received all authorisations necessary or
required; and
(d) the representations and warranties in clause 12
("Representations and warranties" and (in the case of the
revolving loan facility only) the statements in the drawdown
notice
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Facility Agreement Page 9 of 83 Pages
are true, complete and not misleading at the date of the
drawdown notice and at the drawdown date; and
(e) no event of default has occurred (other than one which has
either been waived by the Lender or remedied) and no event of
default would result from the provision of the financial
accommodation.
2A. USING THE OPERATING LEASE FACILITY
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The company may request the lease of the equipment under the terms of
the operating lease facility. GE Capital Australia's obligation to
lease the equipment is subject to and conditional upon the conditions
precedents referred to in clauses 1.2 and 1.3 being satisfied. Each of
the company and the guarantor acknowledge and agree that should the
company use the operating lease facility, it is bound by the terms and
conditions of this agreement and the operating lease facility.
2B. [Intentionally omitted]
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[Intentionally omitted.]
2C. USING THE REVOLVING LOAN FACILITY
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DRAWINGS
2.1 The company need not use the revolving loan facility. However, if the
company wants to use the revolving loan facility, it may do so by one
or more drawings.
REQUESTING A DRAWING
2.2 If the company wants a drawing, the company agrees to give a drawdown
notice to the Lender by 11am on the business day it wants the drawing.
EFFECT OF A DRAWDOWN NOTICE
2.3 A drawdown notice is effective when the Lender actually receives it in
legible form. An effective drawdown notice is irrevocable.
CONDITIONS TO FIRST DRAWING
2.4 Before the company requests the first drawing, the company must:
(a) ensure that the Lender receives every item listed in Schedule
1 in form and substance satisfactory to the Lender; and
(b) ensure that the Lender receives all other documents reasonably
required by the Lender to verify the items in Schedule 1 in
form and substance satisfactory to the Lender; and
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Facility Agreement Page 10 of 83 Pages
(c) allow a complete review and inspection of the receivables
portfolio of the company to be conducted by the Lender and the
Lender must confirm the review is acceptable to it.
2.5 The Lender is entitled to rely on the items in Schedule 1 and the
information contained in them without further enquiry.
2.6 Any transaction document required to be certified must be certified by
a secretary or a director of the relevant entity as being true,
complete and correct as at the time of certification and at the date of
this agreement.
2.7 The Lender agrees to notify the company as soon as practicable after
the Lender is satisfied that the conditions to first drawing are
satisfied.
CONDITIONS TO ALL DRAWINGS
2.8 The Lender need not provide any financial accommodation under any
facility, unless clauses 1.2 and 1.3 are satisfied.
BENEFIT OF CONDITIONS
2.9 Each condition precedent to drawing is for the sole benefit of the
Lender and may be waived or modified by the Lender.
3. AVAILABILITY REVOLVING LOAN FACILITY LIMIT
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3.1 The total of the current drawings at any time must not exceed the
lesser of:
(a) revolving loan facility limit; and
(b) the aggregate borrowing base at that time.
3.2 If the total of the current drawings exceeds the limit set out in
clause 3.1, the company agrees to immediately repay to the Lender so
much of the current drawings equal to the excess.
4. INTEREST ON REVOLVING LOAN FACILITY
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INTERPRETATION
4.1 [Intentionally omitted].
INTEREST CHARGES
4.2 The company agrees to pay interest on the daily balance of each current
drawing. The interest charge for each day is calculated by applying the
interest rate to the daily balance of
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Facility Agreement Page 11 of 83 Pages
the current drawing on the basis of a 360 day year. The interest rate
for any day will be determined on the first business day of the
calendar month in which the day falls.
INTEREST PAYMENT
4.3 On each interest payment date the company agrees to pay the Lender the
interest which has accrued from and including the first day of the
calendar month of the preceding month up to and including the last day
of that calendar month.
5. PAYMENTS
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REPAYMENT
5.1 The company agrees to pay within 5 business days of receipt all cash
receipts, by way of deposit into a controlled account. To the extent
not already paid, the company agrees to repay to the Lender the total
of the current drawings on the maturity date for the revolving loan
facility.
PREPAYMENT
5.2 The company may prepay a current drawing at any time. The facility
limit for the revolving loan facility is not reduced by the amounts
prepaid under this clause 5.2.
MANNER OF PAYMENT
5.3 Each obligor agrees to make payments payable by it under each
transaction document to the Lender on the due date (or, if that is not
a business day, on the next business day) in Australian dollars to an
account in Australia in immediately available funds without set-off or
counterclaim and without any deduction in respect of taxes (unless
prohibited by law) into the account nominated by the Lender. The
obligor satisfies a payment obligation only when the Lender receives
the amount.
PAYMENT APPLICATION
5.4 [Intentionally omitted.]
CONVERSION OF CURRENCY
5.5 All payments by the obligors under this agreement must be made in
Australian dollars. If the Lender receives an amount in a currency
other than Australian dollars:
(a) it may convert the amount received into Australian dollars
(even though it may be necessary to convert through a third
currency to do so) on the day and at the rates (including spot
rate, same day value rate or value tomorrow rate) as it
considers appropriate. It may deduct its usual costs in
connection with the conversion; and
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Facility Agreement Page 12 of 83 Pages
(b) the obligor satisfies its obligation to pay in Australian
dollars only to the extent of the amount of Australian dollars
obtained from the conversion after deducting the costs of the
conversion.
5.6 Where the Lender is obliged to make a payment under this agreement in a
currency other than Australian dollars, the obligor must reimburse the
Lender for that payment in Australian dollars unless the Lender
specifies otherwise. For the purpose of calculating the amount payable
in Australian dollars, the Lender may:
(a) convert the amount payable into Australian dollars (even
though it may be necessary to convert through a third currency
to do so) on the day and at the rates (including spot rate,
same day value rate or value tomorrow rate) as it considers
appropriate. It may add its usual costs in connection with the
conversion in calculating the amount payable; and
(b) the obligor satisfies its obligation to make any payment under
this agreement only to the extent that the moneys received by
the Lender are sufficient to pay the liability in the other
currency including the costs of the conversion to that
currency.
APPLICATION OF PAYMENTS
5.7 While an event of default subsists, the Lender will apply amounts paid
by the obligor or on its behalf and/or to the Lender from any
controlled account, towards satisfying obligations under the revolving
loan facility in the manner the Lender sees fit, unless the transaction
documents expressly provide otherwise.
5.8 [Intentionally omitted].
6. CANCELLATION
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6.1 The company may cancel or terminate the revolving loan facility. It may
do this if the company gives the Lender at least 20 business days
notice in writing. Once given, the notice is irrevocable. When the
cancellation or termination takes effect, the total of the current
drawings and all other amounts payable or to become payable in the
future under the revolving loan facility are immediately due and
payable.
7. FEES
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FEES
7.1 The company agrees to pay the Lender:
(a) the non-refundable unused facility fee on the undrawn
revolving loan facility limit payable monthly in arrears on
the first business day of each month and on the maturity date
of the revolving loan facility, such fee to accrue on a daily
basis;
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Facility Agreement Page 13 of 83 Pages
(b) the non-refundable monitoring fee calendar quarterly in
arrears commencing on the last day of the calendar quarter
that contains the first drawdown under any facility and
expiring on (and also being payable on) the last day of the
availability period applicable to the revolving loan facility,
such fee to accrue on a daily basis;
(c) the non-refundable establishment fee on the date of the first
drawdown under any facility.
8. LOAN ACCOUNT
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8.1 The Lender agrees to maintain a loan account on its books to record:
(a) all current drawings;
(b) all other amounts due and payable by the obligor to the Lender
under the transaction documents including but not limited to
interest, fees and amounts deemed to be current drawings;
(c) all payments made by or on behalf of the obligor or by means
of the locked box agreement or blocked account agreement; and
(d) all other debits and credits as provided for in the
transaction documents.
The balance in the loan account is sufficient evidence of the amounts
due and owing to the Lender by the obligors in the absence of error.
However, a failure to record or an error in recording does not limit or
otherwise affect an obligor's obligations under the transaction
documents.
8.2 the Lender agrees to provide the company with a monthly statement of
transactions for the facility. Unless the company notifies the Lender
of any objection to any item in that statement (specifically describing
the basis for the objection), within 60 days after the date of the
statement, each item in the statement is (absent obvious error) prima
facie evidence of the correctness of the item in the absence of error.
9. WITHHOLDING TAX
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PAYMENTS TO THE LENDER
9.1 If a law requires the obligor to deduct an amount in respect of taxes
from a payment under any transaction document such that the Lender
would not actually receive on the due date the full amount provided for
under the transaction document, then:
(a) the amount payable is increased so that, after making the
deduction and further deductions applicable to additional
amounts payable under this clause 9.1, the Lender is entitled
to receive (at the time the payment is due) the amount it
would have received if no deductions had been required; and
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Facility Agreement Page 14 of 83 Pages
(b) the obligor agrees to make the deductions; and
(c) the obligor agrees to pay the amounts deducted to the relevant
authority in accordance with applicable law and deliver the
original receipts to the Lender.
10. COMPENSATION FOR CHANGED CIRCUMSTANCES
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COMPENSATION
10.1 The company agrees to compensate the Lender on demand if, any law or
change in law taking effect after the date of this agreement, a change
in any law's interpretation or application by an authority after the
date of this agreement or compliance by the Lender or any of its
related entities with any such law, changed law or changed
interpretation or application directly:
(a) increases the cost of the facility to the Lender; or
(b) reduces any amount received or receivable by the Lender, or
its effective return, in connection with the facility; or
(c) reduces the Lender's return on capital allocated to the
facility, or its overall return on capital.
Compensation need not be in the form of a lump sum and may be demanded
as a series of payments. If the company so requests, the Lender will
use reasonable endeavours to put in place revised arrangements
(satisfactory to the Lender and the company) to avoid or minimise the
increased costs or reduced receipt or return (as the case may be).
CALCULATION IN REASONABLE DETAIL
10.2 If the Lender makes a demand under clause 10.1, it agrees to provide
the company with reasonably detailed calculations of how the amount
demanded has been ascertained. However, nothing in this clause 10.2
obliges the Lender to provide details of its business or tax affairs
which it considers in good faith to be confidential.
11. ILLEGALITY OR IMPOSSIBILITY
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RIGHT TO SUSPEND OR CANCEL
11.1 This clause 11 applies if:
(a) a change in a law; or
(b) a change in the interpretation or administration of a law by
an authority; or
(c) a new law taking effect after the date of this agreement,
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Facility Agreement Page 15 of 83 Pages
makes it (or will make it) illegal or impossible for the Lender to
fund, provide, or continue to fund or provide, financial accommodation
under the transaction documents. In these circumstances, the Lender, by
giving a notice to the company, may suspend or cancel some or all of
the Lender's obligations under this agreement as indicated in the
notice.
EXTENT AND DURATION
11.2 The suspension or cancellation:
(a) must apply only to the extent necessary to avoid the
illegality or impossibility; and
(b) in the case of suspension, may continue only for so long as
the illegality or impossibility continues.
NOTICE REQUIRING REPAYMENT
11.3 If the illegality or impossibility relates to a current drawing, the
Lender by giving a notice to the company, may require repayment of all
or part of that current drawing. The company agrees to repay the amount
specified within 5 business days after receiving the notice.
FEES
11.4 [Intentionally omitted.]
11.5 The unused facility fee is not payable by the company for that part of
the facility that is cancelled or suspended under this clause, and
provided no event of default has occurred or occurs, for the period of
the suspension or cancellation.
12. REPRESENTATIONS AND WARRANTIES
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REPRESENTATIONS AND WARRANTIES
12.1 Each obligor (to the extent applicable) represents and warrants (except
in relation to matters disclosed to the Lender by the company and
accepted by the Lender in writing) that:
(a) (INCORPORATION AND EXISTENCE) it has been incorporated as a
company limited by shares in accordance with the laws of its
place of incorporation, is validly existing under those laws
and has power and authority to carry on its business as it is
now being conducted; and
(b) (POWER) it has power to enter into the transaction documents
to which it is a party and observe its obligations under them;
and
(c) (AUTHORISATIONS) it has in full force and effect all
authorisations necessary for it to enter into the transaction
documents to which it is a party, to observe its obligations
under them, to carry on its business and exercise its rights
under them and to allow them to be enforced and such
authorisations are valid and subsisting; and
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Facility Agreement Page 16 of 83 Pages
(d) (NO CONTRAVENTION OR EXCEEDING POWER) the transaction
documents and the transactions under them which involve it do
not contravene its constituent documents or any law or
obligation or agreement by which it is bound or to which any
of its assets are subject or cause a limitation on its powers
or the powers of its directors to be exceeded; and
(e) (OBLIGATIONS VALID, BINDING AND ENFORCEABLE) its obligations
under the transaction documents are valid and binding and
enforceable against it in accordance with their terms; and
(f) (FILINGS) it is not necessary or desirable, to ensure that any
transaction document is legal, valid, binding or admissible in
evidence, that any transaction document or any other document
be filed or registered with any government authority, other
than registration of the fixed and floating charge at the
Australian Securities and Investments Commission; and
(g) (FINANCIAL STATEMENTS) its most recent audited or unaudited
(as the case may be) financial statements and any other of its
financial statements which it has given to the Lender are a
true and fair statement of its financial position as at the
date to which they are prepared, are prepared in accordance
with the laws of Australia and (unless inconsistent with those
laws) accounting standards and disclose or reflect all its
actual and contingent liabilities as at that date, and there
has been no change in its financial position since the date of
those statements that is likely to have a material adverse
effect; and
(h) (CONSOLIDATED ACCOUNTS) the most recent audited consolidated
financial statements of the reporting group are a true and
fair statement of the reporting group's financial position as
at the date to which they are prepared, are prepared in
accordance with the laws of Australia and (unless inconsistent
with those laws) accounting standards and disclose or reflect
all the economic entity's actual and (in respect of the end of
the financial year audited consolidated financial statements
only) contingent liabilities as at that date, and there has
been no change in its financial position since the date of
those statements that is likely to have a material adverse
effect; and
(i) (EVENT OF DEFAULT) no event of default or potential event of
default has occurred or continues unremedied; and
(j) (DEFAULT UNDER LAW - MATERIAL ADVERSE EFFECT) neither it nor
any of its subsidiaries is in default under a law or
obligation affecting any of them or their assets in a way
which is likely to have a material adverse effect; and
(k) (LITIGATION) as far as it is aware, there is no pending or
threatened proceeding affecting it or any of its subsidiaries
or any of their assets before a court, governmental agency,
commission or arbitrator except those in which a decision
against it or the subsidiary (either alone or together with
other decisions) would be insignificant; and all actual
proceedings which seek damages in excess of $500,000 or
injunctive relief or allege criminal misconduct of it or any
of its subsidiaries have been disclosed to the Lender; and
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Facility Agreement Page 17 of 83 Pages
(l) [Intentionally omitted.]
(m) [Intentionally omitted.]
(n) [Intentionally omitted.]
(o) (EMPLOYMENT MATTERS) in the case of the company only, as far
as it is aware, there are no pending or threatened strikes or
other material employment disputes against it or any of its
subsidiaries; and hours worked and payments made to its
employees or the employees of any of its subsidiaries comply
with all applicable laws and except as disclosed to the Lender
set out in the disclosure statement neither it nor any of its
subsidiaries is a party to or bound by any collective
bargaining agreement, management agreement, consulting
agreement or any employment agreement, in each case involving
more than $500,000 and except as disclosed to the Lender set
out in the disclosure statement and there are no complaints or
charges against it or any of its subsidiaries pending or, to
its knowledge, threatened to be filed with any authority or
arbitrator in connection with the employment or termination of
employment by it or any of its subsidiaries of any individual
which is likely to have a material adverse effect; and
(p) (JOINT VENTURES, SUBSIDIARIES AND AFFILIATES) in the case of
the company only, except disclosed to the Lender neither it
nor any of its subsidiaries has any subsidiaries, is engaged
in any joint venture or partnership, or is an affiliate of any
other person; and
(q) (CAPITAL STRUCTURE) all of its issued and outstanding share
capital and the issued and outstanding share capital of any of
its subsidiaries is owned by each of the persons and in the
amounts disclosed to the Lender set out in the disclosure
statement; and there are no outstanding rights to purchase,
options, warrants or similar rights or agreements pursuant to
which it or any of its subsidiaries may be required to issue,
sell, repurchase or redeem any of their share capital or other
equity securities or any share capital or other equity
securities of its subsidiaries; and
(r) (INDEBTEDNESS) all of its indebtedness in excess of $500,000
(excluding indebtedness under this agreement) and the
indebtedness in excess of $500,000 of each of its subsidiaries
is described in the disclosure statement; and
(s) (TAXES) in the case of the company only, all taxes (including
taxes on overall net income of the company) which are due and
payable by it and each of its subsidiaries have been paid or
provision has been made for them to be paid, except where the
amount of the tax is the subject of a good faith contest with
the appropriate authority and meeting the requirements set out
in clause 13.1 (k) and details of any of its tax returns or
any tax return of its subsidiaries which are currently being
audited are disclosed to the Lender along with any assessments
or to its knowledge, threatened assessments in connection with
those audits;; and
(t) (BROKERS) in the case of the company only, no broker or finder
acting on its behalf or on behalf of any of its subsidiaries
brought about the obtaining or making of the facility other
than as disclosed in writing to the Lender; and
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Facility Agreement Page 18 of 83 Pages
(u) (INTELLECTUAL PROPERTY) in the case of the company only, it
and each of its subsidiaries owns or has rights to use all
intellectual property necessary to conduct that business, and
each patent, trademark, copyright and licence is listed,
together with application or registration numbers, as
applicable, in the disclosure statement; and it and each of
its subsidiaries conducts its business without infringing or
interfering with any intellectual property of any person; and
(v) (RANKING OF SECURITY) in the case of the company only, the
Lender has been granted a first ranking fixed and floating
charge over all present and future assets of the company which
takes priority over all other security interests; and
(w) (ENVIRONMENTAL MATTERS) in the case of the company only, and
to the extent that it has a material adverse effect:
(i) [Intentionally omitted.]
(ii) it and each of its subsidiaries are and have been in
compliance with all environmental laws;
(iii) it and each of its subsidiaries have obtained, and
are in compliance in all material respects with, all
environmental permits required for the operations of
their business as presently conducted or as proposed
to be conducted;
(iv) it and each of its subsidiaries are not involved in
operations or know of any facts, circumstances or
conditions that are likely to result in any
environmental liabilities;
(v) neither it nor any of its subsidiaries has received a
notice identifying any of them as a person who may be
the potential recipient of any clean-up notice or
potential recipient of any claim for contribution or
indemnity by any other person who may be served with
a clean-up notice or requesting information under any
statutes, and, to its knowledge, there are no facts,
circumstances or conditions that may result in it or
any of its subsidiaries being identified as a person
who may be the potential recipient of any clean-up
notice or potential recipient of any claim for
contribution or indemnity by any other person who may
be served with a clean-up notice under any statutes;
(vi) it and each of its subsidiaries have provided to the
Lender copies of all existing environmental reports,
reviews and audits and all written information
pertaining to their actual or potential environmental
liabilities; and
(x) [Intentionally omitted.]
(y) [Intentionally omitted.]
(z) [Intentionally omitted]
(aa) (OWNERSHIP OF PROPERTY) in the case of the company only, it
has good title to all property held by it or on its behalf and
all undertakings carried on by it, as legal and beneficial
owner as disclosed to the Lender free from encumbrances other
than
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Facility Agreement Page 19 of 83 Pages
permitted security interests, and there are no facts known to
it or any of its subsidiaries which may result in any
encumbrances arising over that property; and
(bb) (BENEFIT) its entry into and the performance by the obligor of
its obligations under the transaction documents to which it is
a party is for its commercial benefit and is in its commercial
interests; and
(cc) (SOLVENCY) there are no reasonable grounds to suspect that it
or any of its subsidiaries is unable to pay its debts as and
when they become due and payable; and
(dd) (NO BENEFIT TO RELATED PARTY) no person has contravened or
will contravene section 208 of the Corporations Law by
entering into any transaction document or participating in any
transaction in connection with a transaction document; and
(ee) (FULL DISCLOSURE) in the case of the company only, it has
disclosed by it in writing to the Lender all facts relating to
it and its subsidiaries, the transaction documents and all
things in connection with them which are material to the
assessment of the nature and amount of the risk undertaken by
the Lender in entering into the transaction documents and
doing anything in connection with them; and
(ff) (DISCLOSURES) in the case of the company only, all information
disclosed to the Lender in connection with any transaction
document is true and complete and is not misleading or
deceptive in any material way, including information contained
in any borrowing base certificate, drawdown notice and
disclosure statement; and
(gg) (NO IMMUNITY) neither it nor any of its subsidiaries has
immunity from the jurisdiction of a court or from legal
process; and
(hh) (NO CONTROLLER) no controller is currently appointed in
relation to it; and
(ii) (RANKING) its payment obligations under the transaction
documents to which it is a party rank and will rank at all
times at least equally with all its present and future
unsecured payment obligations, other than those which are
mandatorily preferred by law.
CONTINUATION AND REPETITION OF REPRESENTATIONS AND WARRANTIES
12.2 The obligor repeats each of the representations and warranties in this
clause 12:
(a) on the date each rental schedule is entered into under the
operating lease facility and on each purchase date under the
operating lease facility; and
(b) if no repetition occurs under paragraph (a) in a month, on the
date in that month on which a borrowing base certificate is
delivered by the company.
12.3 Each obligor must notify the Lender of anything that happens at any
time that makes any one or more of the representations and warranties
in this clause 12 untrue, incomplete or misleading and deceptive when
made.
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Facility Agreement Page 20 of 83 Pages
13. UNDERTAKINGS
================================================================================
GENERAL UNDERTAKINGS
13.1 Each obligor undertakes to:
(a) (ACCOUNTING RECORDS) keep proper accounting records in
accordance with the laws of Australia and (unless inconsistent
with those laws) accounting standards and ensure that each of
its subsidiaries does the same; and
(b) (INFORMATION) promptly give the Lender any document or other
information that the Lender reasonably requests from time to
time; and
(c) (STATUS CERTIFICATES) on request from the Lender, give the
Lender a certificate signed by two of its directors which
states whether (to the best of their knowledge after making
due enquiries) an event of default continues unremedied; and
(d) (MAINTAIN AUTHORISATIONS) obtain, renew on time and comply
with the terms of, each authorisation necessary for it to
enter into the transaction documents to which it is a party,
to observe its obligations and exercise its rights under them
and to allow them to be enforced; and
(e) (INCORRECT REPRESENTATION OR WARRANTY) promptly notify the
Lender if it becomes aware that any representation or warranty
made by it or on its behalf in connection with a transaction
document is found to be incorrect or misleading when made; and
(f) (ENSURE NO EVENT OF DEFAULT) do everything reasonably
necessary to ensure that no event of default occurs and ensure
that each of its subsidiaries does the same; and
(g) (NOTIFY DETAILS OF EVENT OF DEFAULT) if an event of default
occurs, notify the Lender as soon as possible but, in any
event, within five business days giving full details of the
event and any step taken or proposed to remedy it; and
(h) (PURPOSE) in the case of the company only, use the facility
only for the purpose set out in the Details; and
(i) (CONTINUE BUSINESS) in the case of the company only, conduct
its business and not to change significantly the general
character of its business contemplated to be conducted or as
otherwise permitted under the transaction documents; and
(j) (CONDUCT BUSINESS) in the case of the company only conduct its
business (including collecting debts owed to it) in a proper,
orderly and efficient manner;
(k) (MAKE PAYMENTS) in the case of the company only, duly and
punctually pay and discharge or cause to be paid and
discharged all taxes (including taxes on overall net income of
the company), assessments and other charges imposed by any
authority on it or its property. However, it may in good faith
contest by appropriate proceedings the validity or amount of
any such charge if:
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Facility Agreement Page 21 of 83 Pages
(i) at the time it commences the contest no event of
default has occurred and is continuing; and
(ii) adequate reserves in respect of the charge are
maintained in its books; and
(iii) the contest is maintained and prosecuted continuously
with due diligence and operates to suspend collection
or enforcement of the charge or any encumbrance in
respect of it; and
(iv) no encumbrance arises in respect of the charge other
than a permitted security interest; and
(v) the charge does not result in a material adverse
effect; and
(l) (LANDLORD, AND MORTGAGEE AGREEMENTS) in the case of the
company only, promptly, at the request of the Lender, obtain
agreements in form and substance satisfactory to the Lender
from each landlord or mortgagee of the company, of real
property where the computer system owned, used or occupied by
the company is located, containing a waiver or subordination
of all encumbrances or claims that that person may assert
against the company's property; and
(m) (DEPOSIT OF FUNDS) in the case of the company only, within 5
business day of receipt of any cheques, cash or other items of
payment deposit those items into a controlled account; and
(n) (PUBLIC NOTICES) give to the Lender copies of all:
(vi) documents issued by it as required by applicable law
to be issued to its shareholders; and
(vii) material documents filed by it with the Australian
Securities and Investments Commission,
promptly following issue or filing of the relevant document or
statement; and
(o) [Intentionally omitted]
(p) [Intentionally omitted]
(q) [Intentionally omitted]
(r) (ENVIRONMENTAL MATTERS) in the case of the company only,
conduct its operations and keep and maintain its property
(including, without limitation, all plant and equipment) in
compliance with all environmental laws and material
environmental permits other than non-compliance which could
not reasonably be expected to have a material adverse effect;
and implement any and all investigation, remediation, removal
and response actions which are appropriate or necessary to
maintain the value and marketability if its property
(including, without limitation, all plant and equipment) or to
otherwise comply with environmental laws and material
- --------------------------------------------------------------------------------
Facility Agreement Page 22 of 83 Pages
environmental permits; and notify the Lender promptly after it
becomes aware of any violation of environmental laws or
material environmental permits and of any fact, matter or
circumstance which it knows or reasonably anticipates may make
it or any of its subsidiaries a person who may be the
potential recipient of any clean-up notice or potential
recipient of any claim for contribution or indemnity by any
other person who may be served with a clean-up notice; and
promptly forward to the Lender a copy of any order, notice,
request for information or any communication or report
(including any actual or threatened clean-up notice) received
by it in connection with any such violation or any other
matter relating to any environmental laws or material
environmental permits that could reasonably be expected to
result in environmental liabilities, in each case whether or
not any authority has taken or threatened any action in
connection with any such violation or other matter; and
(s) (INTELLECTUAL PROPERTY) conduct its business without
infringing or interfering with any intellectual property of
any person; and obtain all patents, trademarks, copyrights
permits and licences necessary or required for the conduct of
its business; and
(t) (MAINTAIN STATUS) maintain its status as a company limited by
shares that is incorporated (or is taken to be incorporated)
under the Corporations Law; and
(u) (COMPLY WITH LAW) comply with all applicable law including by
paying when due all taxes (including taxes on overall net
income of the obligor) for which it or any of its property is
assessed or liable (except to the extent that these are being
diligently contested in good faith and by appropriate
proceedings and it has made adequate reserves for them); and
(v) (HOLD AUTHORISATIONS) obtain and maintain each authorisation
that is necessary or desirable to:
(i) execute the transaction documents to which it is a
party and to carry out the transactions;
(ii) ensure that the transaction documents to which it is
a party are legal, valid, binding and admissible in
evidence; or
(iii) enable it to properly carry on its business,
and must comply with any conditions to which any of these
authorisations is subject where a failure to comply with any
or all of those conditions could have a material adverse
effect on it; and
(w) (NO ADMINISTRATOR) not appoint an administrator without prior
notice to the Lender; and
(x) (NOTICE TO GE SYNDICATION) immediately give notice to the
Lender as soon as it becomes aware of:
(i) any event of default or any potential event of
default occurring, which notice must include full
details and the steps being taken to remedy such
default;
- --------------------------------------------------------------------------------
Facility Agreement Page 23 of 83 Pages
(ii) any litigation, arbitration, mediation, conciliation
or administrative proceeding, which it is affected by
(not being frivolous or vexatious) where such a claim
is in excess of $500,000 and which could have a
material adverse effect on it;
(iii) any other event, circumstance or occurrence which
will have a material adverse effect on it;
(iv) any proposal by, or notification being given to it
by, a government agency to compulsorily acquire the
whole or substantial part of its assets or business;
(v) any dispute between it and any government agency
which will have a material adverse effect on it; and
(vi) any representation or warranty made or taken to be
made by it or on its behalf in connection with a
transaction document is found to be incorrect or
misleading when made or taken to be made; and
(y) (PAY INDEBTEDNESS) pay or cause to be paid in full as and when
due (or within any period of grace applicable thereto) all of
its indebtedness except for:
(i) amounts in respect of which it is disputing its
liability and contesting the matter in good faith by
appropriate mediation, judicial or arbitral
proceedings; and
(ii) amounts (excluding amounts due and payable or which
may become due and payable under the transaction
documents) payable to any party not in excess of
A$100,000 in any calendar year;
(z) (COMPLIANCE WITH DOCUMENTS) use its best endeavours to ensure
that no event of default by it occurs and must, at all times
fully comply with, observe and perform all its obligations
under the transaction documents to which it is a party; and
(aa) [Intentionally omitted]
(bb) (ASSET REGISTER) ensure that the company creates and maintains
a written register of all the equipment which records and
identifies details of each item of equipment and the location
of each item of equipment at all times (the "asset register").
The asset register must be in form and substance acceptable to
the Lender; and
(cc) (ASSET TRACKING SYSTEM) ensure that the company owns and
maintains an asset tracking system reasonably acceptable, at
all times, to the Lender and provides reasonable access to the
Lender at reasonable times to inspect the asset tracking
system operated as part of its business; and
(dd) (EQUIPMENT INSPECTION) ensure that the Lender has reasonable
access to the equipment provided reasonable notice is given to
the company; and
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Facility Agreement Page 24 of 83 Pages
(ee) (EQUIPMENT ASSET AUDIT) ensure that the Lender is given access
to the relevant assets and records to conduct a stocktake
audit of approximately 15% of the equipment and the rental
agreements relating to that equipment to be completed within
15 business days of the first drawdown under any facility and
the company agrees to give the Lender access on reasonable
notice, at the Lender's cost (unless otherwise agreed), to
conduct a further stocktake audit if so required.
FINANCIAL UNDERTAKINGS
13.2 The company agrees:
(a) (NEGATIVE PLEDGE) not to create or permit to exist, a security
interest over any of its property, other than a permitted
security interest without the prior written consent of the
Lender; and
(b) (EBITDAR) to ensure that indebtedness of the company will not
be greater than:
(i) 5.0 x EBITDAR plus acquisition costs for the 4
calendar quarter period ending 30/6/2001 and, for
each subsequent (cumulative) period of calendar
quarters in 2001 then completed, in each case with
EBITDAR for such (cumulative) period to be
annualised; and
(ii) 4.5 x EBITDAR for each rolling 4 calendar quarter
period ending 31 March and 30 June in 2002; and
(iii) 4.0 x EBITDAR for each rolling 4 calendar quarter
period ending after 30 June 2002.
The ratios in this paragraph (b) shall only apply and be
tested as at the end of each calendar quarter.
(c) (CAPITAL EXPENDITURE) to ensure that the capital expenditures
of the company in any financial year does not (in total)
exceed A$25 million per annum; and
(d) (TANGIBLE NET WORTH) to ensure that, tangible net worth of the
company is at least:
(i) A$6,000,000 throughout the calendar year ending 31
December 2001; and
(ii) A$8,000,000 thereafter; and
(e) (FIXED CHARGE COVER) to ensure that the fixed charge coverage
ratio of the company (measured calendar quarterly at the end
of the calendar quarter) is not less than:
(i) 1.0:1 for the cumulative 6 months to 30 June 2001;
(ii) 1:05 for the cumulative 9 months to 30 September
2001;
(iii) 1:10 for the cumulative 12 months to 31 December
2001; and
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Facility Agreement Page 25 of 83 Pages
(iv) 1:15:1 thereafter calculated on a rolling 4 calendar
quarter basis measured calendar quarterly at the end
of each quarter; and
(f) (DIVIDENDS) to ensure that the aggregate of declared or paid
dividends of the company in a financial year are limited to
50% of Excess Cash Flow for the preceding financial year.
NEGATIVE COVENANTS
13.3 The company undertakes that it will not (in its own capacity or as
trustee of any trust or in respect of any property subject to any trust
of which it is a trustee), without the prior consent of the Lender:
(a) (MERGERS) form or acquire any subsidiary or merge or
consolidate with, acquire all or substantially all of the
assets or share capital or otherwise combine with or acquire
any person; or
(b) (INVESTMENTS) make or permit to exist any investment in, or
any loan or other financial accommodation to any person other
than loans to or from a related entity otherwise permitted
under this agreement; or
(c) (INDEBTEDNESS) incur, assume or permit to exist any
indebtedness except permitted indebtedness; or
(d) (REPAYMENT) voluntarily prepay, redeem, purchase, defease or
otherwise satisfy indebtedness prior to its due date except
under the transaction documents, other than amounts not in
excess of A$500,000 in any calendar year and permitted
payments; or
(e) (RELATED PARTY TRANSACTIONS) enter into or be party to any
transaction with any other company or related entity to the
company except:
(i) for the payment of permitted dividends or permitted
payments; or
(ii) where the transaction is:
(A) pursuant to the reasonable requirements of
its business; and
(B) upon terms that are no less favourable to it
than would be obtained in a comparable arm's
length transaction with a person who is not
another company or a related entity, or
affiliate of the company; or
(f) (LOANS TO EMPLOYEES) enter into any lending transaction with
any of its employees or any employees of any of its
subsidiaries for a principal amount of more than A$250,000, or
in aggregate A$1,000,000; or
(g) (CAPITAL STRUCTURE) other than a contribution of new equity,
make any change in its capital structure as described in the
disclosure statement or otherwise disclosed to the Lender; or
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Facility Agreement Page 26 of 83 Pages
(h) (BUSINESS) make any change to any of its business objectives,
purposes or operations if that change could have a material
adverse effect; or
(i) (GUARANTEES) enter into or give any guarantee or other
assurance against financial loss in connection with money
borrowed or raised by it or at its request or any of its
subsidiaries other than permitted indebtedness or in respect
of permitted indebtedness; or
(j) (SECURITY INTERESTS) create or allow to exist a security
interest on the whole or any part of its present or future
property except permitted security interests; or
(k) (DISPOSE OF PROPERTY) dispose of all or a substantial part of
its property (either in a single transaction or in a series of
transactions whether related or not and whether voluntarily or
involuntarily) except:
(i) the sale of equipment or inventory in the ordinary
course of business; or
(ii) disposals (other than those referred to in paragraphs
(i) or (iii)) of equipment, real property or fixtures
that are obsolete or no longer used or useful in its
business where the value of the property disposed of
is less than $1,000,000 in total for the company in
any financial year; or
(iii) disposals (other than those referred to in paragraphs
(i) or (ii)) of other equipment or fixtures where the
value of the property disposed of is less than
$1,000,000 in total for the company in any financial
year; or
(l) [Intentionally omitted]
(m) (CANCELLATION OF INDEBTEDNESS) cancel any claim or debt owing
to it except for reasonable consideration negotiated on an
arm's length basis and in the ordinary course of business
consistent with past practices; or
(n) (RESTRICTED PAYMENTS) make any restricted payment or permitted
dividends; or
(o) (COMPANY CONSTITUTION) change its constitution; or
(p) [Intentionally omitted]
(q) [Intentionally omitted]
(r) [Intentionally omitted]
(s) (SPECULATIVE TRANSACTIONS) enter into any transaction
involving commodity options, futures contracts, interest rate
swaps or similar transactions except solely to hedge against
fluctuations in the prices of foreign currencies receivable or
payable by it or under a firm purchase order; or
(t) [Intentionally omitted]
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Facility Agreement Page 27 of 83 Pages
(u) [Intentionally omitted]
(v) [Intentionally omitted]
(w) [Intentionally omitted]
(x) (NEW BANK ACCOUNTS) open any new deposit or other accounts
with any bank or financial institution or create any term
deposit, unless the Lender has consented to the opening of the
account or it is an "Operating Account" as defined in the
blocked account agreement; or
(y) (RELATED PARTY INDEBTEDNESS) pay or otherwise satisfy
indebtedness owed or payable to any related entity of the
company .
FINANCIAL REPORTING
13.4 The company undertakes to:
(a) (MONTHLY FINANCIAL INFORMATION) give the Lender:
(i) within 30 days of the end of each month, an unaudited
consolidated balance sheet of the company as at the
last day of that financial month; and
(ii) within 30 days of the end of each month, unaudited
consolidated profit and loss and cash flow statements
both for that month and the financial year to date
for the company setting out in comparative form the
figures for the corresponding period in the previous
year and the figures contained in the projections for
that year; and
(iii) within 45 days of the end of each calendar quarter,
an unaudited consolidated balance sheet of the
guarantor as at the last day of that calendar
quarter;
(iv) within 45 days of the end of each calendar quarter,
unaudited consolidated profit and loss and cashflow
statements both for that quarter and the financial
year to date for the guarantor setting out in
comparative form the figures for the corresponding
period in the previous year and the figures contained
in the projections for that year;
(v) within 45 days after the last day of each quarter, a
certificate signed by a director of the company
showing the calculations used in determining
compliance with the financial undertakings set out in
clauses 13.2(b), (c), (d), (e) and (f) and stating
that the financial information gives a true and fair
view in accordance with laws of Australia and (unless
inconsistent) accounting standards of the financial
position and results of operations of the reporting
group, any other information presented is true and
complete in all material respects and that no event
of default has occurred or is continuing or, if that
statement cannot be made, the nature of each event of
default and the steps taken to correct them; and
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Facility Agreement Page 28 of 83 Pages
(b) (OPERATING PLAN) give to the Lender as soon as it is available
but by no later than 60 days after the end of each financial
year an annual operating plan on a monthly basis for the
company approved by the directors of each company in the
company. The operating plan must include:
(i) a statement of all of the material assumptions on
which the plan is based; and
(ii) monthly balance sheets and a monthly profit and loss
and cash flow statements for the following year.
The operating plan must include sales, gross profits,
operating expenses, operating profit, cash flow projections,
excess borrowing availability and all prepared on the same
basis and in similar detail as that on which the financial
information referred to in sub-paragraph (a) are provided (and
in the case of cash flow projections, representing
management's good faith estimates of future financial
performance based on historical performance), and include
plans for capital expenditures; and
(c) (MANAGEMENT LETTER) give to the Lender within 20 business days
after the audit committee or the board of NMHG has received
any auditor's management letter, exception report or similar
letters or reports relating to the business or operations of
the company, , a copy (in so far as it relates to the company)
of any such management letter, exception report or similar
letters or reports; and
(d) (ANNUAL FINANCIAL STATEMENTS) give the audited consolidated
financial statements of each obligor and NMHG for each
financial year to the Lender within 120 days after the end of
that year. Those consolidated financial statements must set
out in comparative form the figures for the corresponding
period in the previous year; and
(e) (OFFICER'S CERTIFICATE) give to the Lender at the same time as
the financial statements in clause 13.4(d), a certificate
signed by a director showing in reasonable detail the
calculations used in determining compliance with each of the
financial undertakings in clause 13.2 and stating that the
financial information gives a true and fair view in accordance
with laws of Australia and (unless inconsistent) accounting
standards of the financial position and results of operations
of each obligor and its subsidiaries, any other information
presented by it is true, complete and not misleading or
deceptive in any material respects and that no event of
default has occurred or is continuing or, if that statement
cannot be made, the nature of each event of default and the
steps taken to correct them; and
(f) (RECONCILIATION REPORT) give the Lender at the same time as
the delivery of the monthly financial reports referred to in
clause 13.4(a) a reconciliation of the accounts receivable and
accounts payable trial balances and month end inventory
reports of the reporting group to the general ledger of the
reporting group and monthly financial reports delivered under
clause 13.4(a).
OTHER REPORTS
13.5 The company undertakes to provide to the Lender in form and substance
satisfactory to the Lender:
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Facility Agreement Page 29 of 83 Pages
(a) (BORROWING BASE CERTIFICATE) on request by the Lender, but no
less frequently than 10 business days after the end of each
month, a borrowing base certificate for the company; and
(b) (ACCOUNTS RECEIVABLE ROLL FORWARD ANALYSIS) within 10 business
days after the end of each month, reports showing all
additions and reductions (cash and non-cash) to the accounts
receivable of the company for that month; and
(c) (OUTSTANDING ACCOUNTS) on request by the Lender, and within 10
business days after the end of each month, a summary report of
accounts outstanding of the company aged from as follows: 1 to
30 days, 31 to 60 days, 61 to 90 days and 91 days or more; and
(d) (ASSET REGISTER) on request by the Lender, but no less than
every six months, a complete and up-to-date copy of the asset
register.
14. OTHER RIGHTS OF THE COMPANY
================================================================================
14.1 If the Lender at any time has a reasonable basis to believe that there
may be a violation of any environmental laws or environmental permits
by any obligor or any environmental liability or any threatened or
actual service of any clean-up notice or any claim for contribution or
indemnity against any obligor by any other person served or threatened
to be served with any clean-up notice, which, in each case, could
reasonably be expected to have a material adverse effect, then the
obligor on the request of the Lender agrees to:
(a) cause the performance of such environmental investigations and
preparation of such environmental reports as the Lender may
reasonably request, which must be conducted by reputable
environmental consulting firms acceptable to the Lender and be
in form and substance acceptable to the Lender; and
(b) permit the Lender or its representatives to have access to all
property for the purpose of conducting such environmental
investigations and testing as it deems reasonably appropriate.
15. EVENTS OF DEFAULT AND REVIEW EVENT
================================================================================
EVENTS OF DEFAULT
15.1 Each of the following is an event of default:
(a) (NON PAYMENT - TRANSACTION DOCUMENT) the obligor does not pay
on time any amount payable under any transaction document in
the manner required under it, unless that failure results
solely from technical difficulties relating to the transfer of
such amounts to the Lender and such failure is not remedied
within 2 business days after the due date for payment; or
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Facility Agreement Page 30 of 83 Pages
(b) (CROSS DEFAULT) any present or future monetary obligations of:
(i) the obligor or any of its subsidiaries for amounts
totalling more than A$1,000,000 (or its equivalent in
another currency); or
(ii) NMHG for amounts totalling more than US$10,000,000,
are not satisfied on time (or at the end of their period of
grace) or become prematurely payable and are not paid.
(A "monetary obligation" means a monetary obligation in
connection with:
(i) money borrowed or raised; or
(ii) any hiring arrangement, redeemable preference share,
letter of credit or financial markets transaction
(including a swap, option or futures contract); or
(iii) a guarantee or indemnity in connection with money
borrowed or raised);
or
(c) (NON OBSERVANCE OF OBLIGATIONS) the obligor does not observe
any of its obligations under any transaction documents or
under any other agreement or obligation with the Lender or its
related entities (not being a non-observance or failure
referred to elsewhere in this clause 15.1) and that failure is
incapable of remedy or, if capable of remedy, continues for 10
business days after the obligor receives a notice from the
Lender requiring that failure be remedied; or
(d) (ENFORCEMENT AGAINST ASSETS) distress is levied or a judgment,
order or encumbrance is enforced, or becomes enforceable,
against any property of the obligor or any of its subsidiaries
for amounts in total exceeding A$1,000,000 (or the equivalent
in any other currency in which the enforcement occurs); or
(e) (INCORRECT DOCUMENT) any document or information contained in
any document given under clause 2.4 ("Conditions to first
drawing") is untrue, incomplete or misleading; or
(f) (INCORRECT REPRESENTATION OR WARRANTY) a representation or
warranty made by or in respect of the obligor in connection
with a transaction document is found to have been untrue,
incorrect or misleading when made, or the obligor fails to
make a disclosure in accordance with clause 12.3 in any
material respect ("Continuation of representations and
warranties"); or
(g) (INSOLVENCY) the obligor or NMHG is or becomes insolvent or
steps are taken to make any of those persons insolvent; or
(h) (CEASING BUSINESS) the obligor stops payment, ceases to carry
on its business or a material part of it, or threatens to do
either of those things except to reconstruct or amalgamate
while solvent on terms approved by the Lender; or
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Facility Agreement Page 31 of 83 Pages
(i) (VOIDABLE TRANSACTION DOCUMENT) a transaction document or a
transaction in connection with it is or becomes (or is claimed
to be) wholly or partly void, voidable or unenforceable or is
terminated without the written consent of the Lender or does
not have (or is claimed not to have) the priority the Lender
intended it to have ("claimed" in this case means claimed by
the obligor or any of its related entities or anyone on behalf
of any of them); or
(j) (CHANGE OF CONTROL) the persons who at the date of this
agreement have control of the obligor cease to have control of
the obligor, or one or more other persons acquire control of
the obligor after the date of this agreement in each case,
without the prior consent of the Lender; or
(k) [Intentionally omitted]
(l) (REDUCTION OF CAPITAL) the obligor, without the consent of the
Lender, takes action to reduce its capital or buy back any of
its ordinary shares or passes a resolution referred to in
section 254N(1) of the Corporations Law; or
(m) (APPOINTMENT OF MANAGER) a person is appointed under
legislation to manage any part of the affairs of the obligor;
or
(n) (MATERIAL ADVERSE CHANGE) an event occurs that has a material
adverse effect (ignoring for the purpose of this paragraph (n)
only, paragraph (i) of the definition of "material adverse
effect"); or
(o) (BREACH OF UNDERTAKING) a written undertaking given to the
Lender or its solicitors by the obligor in a transaction
document is breached or not wholly performed within any period
specified in the undertaking or, where no period is specified
and the undertaking is not an on-going undertaking, within 7
days after the date of the undertaking and that failure is
incapable of remedy or, if capable of remedy, continues for 10
business days after the obligor receives a notice from the
Lender requiring that failure to be remedied; or
(p) (DEFAULT UNDER OTHER TRANSACTION DOCUMENT) an event occurs
which is called an event of default under any transaction
document other than this agreement and that failure is
incapable of remedy or, if capable of remedy, continues for 10
business days after the obligor receives a notice from the
Lender requiring that failure to be remedied; or
(q) (NON-OBSERVANCE OF CONDITIONS SUBSEQUENT) the company fails to
comply with any condition subsequent and fails to comply
within 10 business days of notice from the Lender to rectify
the default; or
(r) (NON COMPLIANCE WITH FINANCIAL UNDERTAKINGS) the company does
not observe any of its obligations under clause 13.2 of this
agreement;
(s) [Intentionally omitted]
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Facility Agreement Page 32 of 83 Pages
(t) (INSURANCES) the insurances required under clause 17B are not
in full force or effect; or
(u) (NON-COMPLIANCE WITH RETURN CONDITIONS) the company fails to
comply with the return conditions in respect of 10% or more of
the equipment located in any Australian State, at any time; or
(v) (LOSS OF AUTHORISATION) any authorisation, exemption, filing
or registration or other requirement necessary:
(i) to enable any obligor to comply with any of its
obligations under any transaction document to which
it is a party; and
(ii) for the conduct of its business,
is breached, revoked or refused or does not remain in full
force and effect and such event will have a material adverse
effect.
CONSEQUENCES OF DEFAULT
15.2 If an event of default occurs and is subsisting, then at the option of
the Lender:
(a) the interest rate applicable to the current drawings and the
rent instalments is the default rate;
(b) the total of the current drawings, interest on them, the rent
instalments, the termination value and all other amounts
payable under the transaction documents, (the "AMOUNT OWING")
are either:
(i) payable on demand; or
(ii) immediately due for payment; and
(c) any of the Lender's obligations under the transaction
documents may be terminated.
the Lender may elect any or all of these options in its absolute
discretion. The election of any of these options gives immediate effect
to those provisions, without any need for notice to the obligor.
EFFECT OF AN EVENT OF DEFAULT
15.3 If the Lender declares that the amount owing is immediately due and
payable it may, at its discretion:
(a) enforce the fixed and floating charge; and
(b) take possession of the equipment.
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Facility Agreement Page 33 of 83 Pages
The company acknowledges that, upon the occurrence of an event of
default, and while it subsists, the Lender is entitled to exercise its
rights and remedies expressly provided for under the terms of the other
transaction documents.
REVIEW EVENT
15.4 If a Review Event occurs, the Lender will in writing notify the company
as soon as it becomes aware of the Review Event and the Lender will be
entitled to consider and to unilaterally notify a variation to the
operating lease facility limit. The occurrence of a Review Event does
not prevent the occurrence of an event of default.
16. COSTS AND INDEMNITIES
================================================================================
REIMBURSEMENT AND INDEMNITY
16.1 Except as expressly provided under any other transaction document, the
company agrees to pay or reimburse the Lender and indemnifies the
Lender for and against loss, liability and costs it suffers or incurs,
on demand for:
(a) the Lender's costs in connection with:
(i) the negotiation, preparation, execution, stamping and
registration of all transaction documents; and
(ii) it being satisfied that all conditions precedent
relating to the provision of the facility have been
met; and
(iii) the general on-going administration of the facility
(including the giving and considering consents,
waivers and releases and any valuation costs (to the
extent previously agreed (in writing) by the parties)
and inspection costs); and
(iv) non-compliance with the return conditions; and
(v) transfer of the equipment under the option deed; and
(b) the Lender's costs and any receiver's costs in otherwise
acting in connection with the transaction documents, such as
enforcing or preserving rights (or considering enforcing or
preserving them) or doing anything in connection with any
enquiry by a government authority involving the company or any
of its related entities; and
(c) taxes and fees (including registration fees) and fines and
penalties in respect of fees paid or that the Lender
reasonably believes are payable in connection with any
transaction document or a payment or receipt or any other
transaction contemplated by any transaction document or any
supply of anything by the Lender to the company under the
transaction documents. However, the company need not pay a
fine or penalty in connection with taxes or fees to the extent
that it has placed the Lender in sufficient cleared funds for
the Lender to be able to pay the taxes or fees by the due
date; and
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Facility Agreement Page 34 of 83 Pages
(d) if GST has application to any supply made under or in
connection with this agreement or a transaction document, in
addition to any other consideration expressed as payable
elsewhere in this agreement or a transaction document, an
additional amount on account of GST, such amount to be
calculated by multiplying the amount or consideration payable
by the company for the relevant supply by the prevailing GST
rate (taking into account any input tax credit actually
received by the Lender which relates to a GST payment made in
respect of any supply made under or in connection with this
agreement). Any amount payable on account of GST by the
company under this clause must be calculated without any
deduction or set off of any other amount (other than as
expressly permitted under this clause) and is payable by the
company on demand by the Lender whether the demand is by means
of an invoice or otherwise; and
(e) if the Lender is unable to obtain a full input tax credit for
an amount paid on account of GST by the Lender to another
person in respect of a supply made by another person to the
Lender in respect of this agreement or a transaction document
or matters arising under this agreement or a transaction
document, an amount equal to the input tax credit to which the
Lender is not entitled under the GST legislation.
OTHER LOSS
16.2 The company indemnifies the Lender from and against any costs,
liability or loss suffered or incurred by the Lender arising from, or
in connection with:
(a) any claim made against it by reason of financial accommodation
requested under a transaction document not being provided in
accordance with the request for any reason except default of
the Lender; and
(b) financial accommodation under a transaction document being
repaid, discharged or made payable other than on its due date;
and
(c) the Lender acting in connection with a transaction document in
good faith on fax or telephone instructions purporting to
originate from the offices of the company given by an
authorised officer of the company; and
(d) a Review Event or an event of default; and
(e) the Lender exercising or attempting to exercise rights in
connection with a transaction document after an event of
default; and
(f) any indemnity the Lender gives a controller or an
administrator of the company; and
(g) any:
(i) consent, approval, waiver, release or discharge; and
(ii) variation, which is requested by any obligor,
of or under any transaction document; and
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Facility Agreement Page 35 of 83 Pages
(h) any amount becoming due for payment or repayment other than on
its due date or any other amount required to be paid or repaid
under the transaction documents not being paid or repaid by
the company on its due date including, without limitation:
(i) by reason of the cancellation, termination or
alteration of any swap or other arrangement made by
the Lender to fund, whether in whole or in part, any
of those moneys or other payment;
(ii) by reason of any liquidation or re-employment of
deposits or other funds acquired by the Lender to
fund any of those moneys or other payment; or
(iii) in connection with any prepayment under, or early
termination or acceleration of, any transaction
document.
Nothing in this clause limits any other indemnities contained
in this agreement.
ITEMS INCLUDED IN LOSS, LIABILITY AND COSTS
16.3 The company agrees that:
(a) the costs referred to in clause 16.1 ("Reimbursement and
indemnity") and the liability, loss or costs in clause 16.2
("Other loss") include legal costs in accordance with any
written agreement as to legal costs or, if no agreement, on
whichever is the higher of a full indemnity basis or solicitor
and own client basis; and
(b) the costs referred to in clauses 16.1(a) and (b)
("Reimbursement and indemnity") include those paid or payable,
to persons engaged by the Lender in connection with the
transaction documents (such as consultants); and
(c) the costs referred to in clauses 16.1 and 16.2 include those
suffered or incurred by any receiver or attorney appointed
under the fixed and floating charge and any of the Lender's
officers, agents or contractors.
PAYMENT OF LOSSES
16.4 The company agrees to pay the Lender an amount equal to any liability,
loss or costs of the kind referred to in clause 16.2 ("Other loss")
suffered or incurred by any officer, agent or contractor of the Lender.
CURRENCY CONVERSION ON JUDGMENT DEBT
16.5 If a judgment or proof of debt for an amount in connection with a
transaction document is expressed in a currency other than Australian
dollars, then the company indemnifies the Lender against:
(a) any difference arising from converting the other currency if
the rate of exchange used by the Lender under clause 5.5
("Conversion of currency") for converting currency when it
receives a payment in the other currency is less favourable to
the Lender than
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Facility Agreement Page 36 of 83 Pages
the rate of exchange used for the purpose of the judgment or
acceptance of proof of debt; and
(b) the costs of conversion.
CERTIFICATE BY GE SYNDICATION
16.6 A statement or certificate given by the Lender setting out the amount
of any loss, liability or costs incurred or suffered by the Lender
(including the extent of the Lender's entitlement to a full or reduced
input tax credit for GST paid in respect of any matter contemplated in
a transaction document) is, absent error, final, binding and conclusive
evidence against the obligor of the amount of that loss, liability or
cost.
17A. INTEREST ON OVERDUE AMOUNTS
================================================================================
OBLIGATION TO PAY
17.1 If the obligor fails to pay any amount under this agreement on the due
date for payment, the obligor agrees to pay to the Lender on demand
interest on that amount at the default rate. The interest accrues from
day to day from and including the due date up to but excluding the date
of actual payment and is calculated on actual days elapsed and a year
of 360 days.
COMPOUNDING
17.2 Interest payable under clause 17.1 ("Obligation to pay") which is not
paid when due for payment may be added to the overdue amount by the
Lender at intervals which the Lender determines from time to time or,
if no determination is made, every 30 days. Interest is payable on the
increased overdue amount at the default rate in the manner set out in
clause 17.1 ("Obligation to pay").
INTEREST FOLLOWING JUDGMENT
17.3 If a liability becomes merged in a judgment, then the company agrees to
pay the Lender on demand interest on the amount of that liability as an
independent obligation. This interest:
(a) accrues from the date the liability becomes due for payment
both before and after the judgment until the liability is
paid; and
(b) is calculated at the rate that is the higher of the judgment
rate and the default rate.
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Facility Agreement Page 37 of 83 Pages
17B. INSURANCE, RISK AND INDEMNITIES
================================================================================
17B.1 INSURANCE POLICIES TO BE TAKEN OUT BY THE COMPANY
The company must take out and maintain with insurers in the name of the
company and the Lender for their respective rights and interests (with
the Lender's interest as chargee noted) the following insurance
policies in respect of:
(a) a public liability policy in respect of the business and the
equipment and activities carried on at the business for an
amount reasonably required by the Lender which:
(i) contains all provisions that are normally contained
in public liability policies and any other provisions
reasonably required by the Lender; and
(ii) without limiting the rest of this clause 17B covers
death and injury to any person and damage to property
of any person sustained when that person is using the
equipment or entering or near any entrance, passage
or stairway to the business;
(b) building insurance against fire, storm, tempest, flood,
earthquake, lightning, explosion, impact, aircraft (other than
hostile aircraft) and aerial devices and articles dropped from
them, riot, civil commotion and malicious damage, busting or
overflowing of water tanks, apparatus or pipes and such other
risks as the Lender may reasonably require, subject to such
exclusions, excesses and limitations as may be imposed by the
insurers.
17B.2 PROCEEDS OF INSURANCE
If any loss or damage occurs which is covered by any insurance the
company is required to maintain under this agreement (even if taken out
in the name of the company alone in contravention of this agreement)
the company must:
(a) apply for the insurance proceeds immediately;
(b) use the proceeds:
(i) in the case of property of the company other than the
equipment, to restore, replace, repair or reinstate
the loss or damage and use the company's own money to
the extent that the proceeds are insufficient; and
(ii) in the case of the equipment and where clause 8 of
the operating lease facility applies, to pay the
Lender in accordance with clause 8 of the operating
lease facility;
(c) to the extent insurance proceeds exceed the amount required to
be expended under paragraph (b)(i), pay the excess to the
company and the Lender in equitable
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Facility Agreement Page 38 of 83 Pages
proportions having regard to their respective interests in the
thing insured or the effect on them of the event insured
against.
If any partial damage to the equipment or any other property occurs
which is covered by any insurance and such damage is capable of repair,
where a claim is made by the company under the insurance for an amount
of less than A$100,000 such insurance proceeds are to be paid to the
company to be applied by it to repair the damage.
17B.3 POLICIES
The company must do the following in respect of each policy that it is
required to maintain under this agreement:
(a) take it out with an insurance company approved by the Lender,
whose approval must not be unreasonably withheld; and
(b) if requested by the Lender, give the Lender a copy of the
policy and a certificate of currency for the policy; and
(c) ensure that the company's insurance broker from time to time
will notify the Lender of any impending cancellation or
proposed change in insurance; and
(d) pay each premium before the due date and when asked by the
Lender, produce receipts for the payments;
(e) immediately rectify anything which might prejudice any
insurance and reinstate the insurance if it lapses; and
(f) notify the Lender promptly when any event occurs which may
give rise to a material claim under or which could prejudice a
policy of insurance, or if any policy of insurance is
cancelled.
17B.4 MAINTAIN INSURANCE
The company must not do anything without THE Lender prior written
approval which approval shall not be unreasonably withheld which could
affect the Lender's rights under any insurance policy or make the
policy invalid or able to be cancelled.
17B.5 INDEMNITY
The company indemnifies the Lender on demand against any claim, action,
damage, loss, liability, cost or expense which the Lender incurs or is
liable for in connection with other than one arising out of any
negligent or wilful act, error or omission of the Lender:
(a) any damage, loss, injury or death to or of any person or
property on or near the equipment;
(b) the use of the equipment;
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Facility Agreement Page 39 of 83 Pages
(c) any defect in the equipment.
18. GUARANTEE AND INDEMNITY
================================================================================
REQUEST AND CONSIDERATION
18.1 By signing this agreement, the guarantor requests the Lender to enter
into this agreement and agrees to be bound by this guarantee, the
provisions set out in Schedule 7, and this agreement in consideration
of the Lender doing so.
19. ATTORNEY
================================================================================
APPOINTMENT OF ATTORNEY
19.1 The obligor irrevocably appoints the Lender and each of its authorised
officers individually as its attorney and agrees to ratify all action
taken by an attorney under clause 19.2 ("Attorneys' powers").
ATTORNEYS' POWERS
19.2 Each attorney may:
(a) where a Review Event or event of default occurs and subsists,
perform and observe the obligations of the obligor under this
agreement to enable the Lender to exercise its rights under
this agreement; and
(b) where a Review Event or event of default occurs and subsists,
do anything which an obligor may lawfully do to exercise their
right of proof after an event relating to insolvency occurs in
respect of obligor (these things may be done in the obligor's
name or the attorney's name and they include signing and
delivering documents, taking part in legal proceedings and
receiving any dividend arising out of the right of proof); and
(c) delegate its powers (including this power) and may revoke a
delegation; and
(d) exercise its powers even if this involves a conflict of duty
and even if it has a personal interest in doing so.
APPLICATION OF INSOLVENCY DIVIDENDS
19.3 The attorney need not account to an obligor for any dividend received
on exercising the right of proof under clause 19.2 ("Attorneys'
powers") except to the extent that any dividend remains after the
Lender has received all amounts payable or to become payable in the
future under this agreement.
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Facility Agreement Page 40 of 83 Pages
RIGHT OF PROOF LIMITED
19.4 Each obligor agrees not to exercise a right of proof after an event
occurs relating to the insolvency of the company or any other obligor
independently of an attorney appointed under clause 19.1 ("Appointment
of attorney").
20. DEALING WITH INTERESTS
================================================================================
NO DEALING BY COMPANY
20.1 The obligor may not assign or otherwise deal with its rights under any
transaction document or allow any interest in them to arise or be
varied, in each case without the Lender's written consent.
DEALINGS BY THE LENDER
20.2
(a) Subject to the succeeding paragraphs of this clause 20.2,
except where the assignment by the Lender is to or with a
related body corporate, the Lender may not assign its rights
under any transaction documents without prior written consent
of the obligor such consent not to be unreasonably withheld or
delayed. Approval of the obligor will be deemed to have been
given if within 10 business days of receipt by the obligor of
an application for approval it has not been expressly refused.
(b) At the cost and expense of the Lender the obligor will
co-operate with and assist the assigning party.
(c) The assignment or transfer shall not require the obligor to
make any payment or incur any liability that it would not have
made or incurred had such assignment not occurred or taken
place.
(d) The consent of the obligor is not required under paragraph (a)
if an event of default has occurred and is subsisting.
(e) Each assignee acknowledges that it has made its own
independent review of the creditworthiness and business of the
obligor and that it has not relied on any representation made
by the assigning party in connection with its participation
under the transaction documents. In those circumstances the
assigning party is not responsible for the performance by the
obligor of their obligations under the transaction documents
and the assigning party is not obliged to make good any loss
suffered by the assignee by virtue of non-performance by the
obligor of any term of the transaction documents or to accept
a re-transfer of any rights or obligations transferred under
the relevant substitution certificate.
(f) Any assignment shall, subject to subparagraph (a), be
effective only if a substitution certificate is delivered by
the Lender and the assignee to the other parties and:
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Facility Agreement Page 41 of 83 Pages
(i) each party, including the obligor and any person that
becomes a party pursuant to this clause, to this
agreement irrevocably authorises the Lender to
execute any duly completed substitution certificate
on its behalf. An assignment is effected either at
the time (or if more than one time, the later time)
the Lender executes a duly completed substitution
certificate delivered to it or otherwise as specified
in the substitution certificate;
(ii) from the date on which the substitution take effect
(which shall be the date of the substitution
certificate or, if later, the date specified in the
substitution certificate) and to the extent to the
substitution expressed in the substitution
certificate;
(A) the assignee:
(I) succeeds to all the rights,
benefits and entitlements (other
than accrued rights, benefits and
entitlements) of the Lender under
the transaction documents; and
(II) assumes all the obligations and
responsibilities (other than
accrued obligations and
liabilities) of the Lender and the
transaction documents;
(B) the Lender is released from all its future
obligations and responsibilities under the
transaction documents and the rights of the
Lender against the other parties to this
agreement and vice versa will be cancelled;
and
(C) the other parties are:
(I) released from all their obligations
and responsibilities (other than
accrued obligations and
liabilities) under the transaction
documents to the Lender; and
(II) bound to perform those obligations
and discharge those
responsibilities in favour of the
Lender; and
(iii) the Lender shall promptly provide a copy of any
substitution certificate to the other parties.
(g) Nothing in this clause restricts the ability of the Lender to
sub-contract or participate an obligation if the Lender
remains liable under the transaction documents for the
obligation and the Lender shall be entitled to sub-participate
or otherwise sell-down its obligations under the transaction
documents provided it remains liable under the transaction
documents for that obligation. Any such sub-contracting,
participation or sell-down shall not affect the respective
rights and liabilities of the Lender and the other parties in
respect of the transaction documents and each party to the
transaction documents need only recognise the Lender of
record.
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Facility Agreement Page 42 of 83 Pages
(h) The parties may from time to time agree in writing that this
clause 20.2 applies mutatis mutandis to novations as well as
assignments.
NO SET-OFF AGAINST ASSIGNEES
20.3 If the Lender assigns or otherwise deals with its rights under this
agreement, the obligor may not claim against any assignee (or any other
person who has an interest in this agreement) any right of set-off or
other right the obligor has against the Lender.
21. NOTICES
================================================================================
FORM
21.1 All notices, certificates, consents, approvals, waivers and other
communications in connection with a transaction document ("Notices")
must be in writing, signed by an authorised officer of the sender and
marked for attention as set out in the Parties or, if the recipient has
notified otherwise in writing, then marked for attention in the way
last notified.
DELIVERY
21.2 All Notices must be:
(a) left at the address set out in the Parties; or
(b) sent by prepaid post (airmail, if outside Australia) to the
address set out in the Parties; or
(c) sent by facsimile to the number set out in the Parties.
If the intended recipient has notified the sender in writing of a
changed postal address or changed facsimile number, then the Notice
must be to the address or number notified.
WHEN EFFECTIVE
21.3 A Notice takes effect from the time it is received unless a later time
is specified in it.
DEEMED RECEIPT - POSTAL
21.4 If sent by post, a Notice is taken to be received one business day
after posting (or seven days after posting if sent to or from a place
outside Australia).
DEEMED RECEIPT - FACSIMILE
21.5 If sent by facsimile, a Notice is taken to be received at the time
shown in the transmission report of the sender as the time that the
whole facsimile was sent.
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Facility Agreement Page 43 of 83 Pages
22. GENERAL
================================================================================
SET-OFF
22.1 At any time after an event of default, the Lender may set off any
amount due for payment by the Lender to the obligor against any amount
due for payment by the obligor to the Lender under the transaction
documents. The obligor must not claim or set-off any money owing by the
Lender to it against money owing by the obligor to the Lender.
SUSPENSE ACCOUNT
22.2 Where a Review Event or event of default occurs and subsists, the
Lender may place in a suspense account any payment it receives from the
obligor for as long as it thinks prudent and need not apply it towards
satisfying any money owing to the Lender under this agreement.
CERTIFICATES
22.3 The Lender may give the obligor a certificate about an amount payable
or other matter in connection with a transaction document. The
certificate is (absent error) final, binding and conclusive evidence of
the amount or matter.
PROMPT PERFORMANCE
22.4 If this agreement specifies when the obligor must perform an
obligation, the obligor agrees to perform it by the time specified. The
obligor agrees to perform all other obligations promptly.
DISCRETION IN EXERCISING RIGHTS
22.5 the Lender may exercise a right or remedy or give or refuse its consent
in any way it considers appropriate, including by imposing conditions
unless a transaction document states otherwise.
CONSENTS
22.6 The obligor agrees to comply with all conditions in any consent the
Lender gives in connection with any transaction document.
PARTIAL EXERCISING OF RIGHTS
22.7 If the Lender does not exercise a right or remedy fully or at a given
time, the Lender can still exercise it later.
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Facility Agreement Page 44 of 83 Pages
NO LIABILITY FOR LOSS
22.8 the Lender is not liable for loss caused by the exercise or attempted
exercise of, failure to exercise, or delay in exercising, a right or
remedy.
CONFLICT OF INTEREST
22.9 The Lender's rights and remedies under any transaction document may be
exercised even if this involves a conflict of duty or the Lender has a
personal interest in their exercise.
REMEDIES CUMULATIVE
22.10 The rights and remedies of the Lender under any transaction document
are in addition to other rights and remedies given by law independently
of that transaction document.
RIGHTS AND OBLIGATIONS ARE UNAFFECTED
22.11 Rights given to the Lender under this agreement and the obligor's
liabilities under it are not affected by any law that might otherwise
affect them.
INDEMNITIES
22.12 The indemnities in this agreement are continuing obligations,
independent of the obligor's other obligations under this agreement and
continue after this agreement ends. It is not necessary for the Lender
to incur expense or make payment before enforcing a right of indemnity
conferred by this agreement.
VARIATION AND WAIVER
22.13 Unless this agreement expressly states otherwise, a provision of this
agreement, or right created under it, may not be waived or varied
except in writing signed by the party or parties to be bound.
CONFIDENTIALITY
22.14 The obligors consent to the Lender disclosing information provided by
the obligors that is not publicly available:
(a) in connection with any person exercising rights or dealing
with rights or obligations under a transaction document
(including in connection with preparatory steps such as
negotiating with any potential assignee or potential
participant of the Lender's rights or other person who is
considering contracting with the Lender in connection with a
transaction document); or
(b) to a person considering entering into (or who does enter into)
a credit swap with the Lender involving credit events relating
to the obligor or any of its related entities; or
(c) to officers, employees, legal and other advisers and auditors
of the Lender; or
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Facility Agreement Page 45 of 83 Pages
(d) to any party to a transaction document or any related entity
of the Lender; or
(e) with the consent of the obligor about whom the information
relates (which consent must not be unreasonably withheld); or
(f) as allowed necessary or required by any law court, regulatory
body, tribunal, authority, judicial or quasi-judicial
proceedings or by any stock exchange.
FURTHER STEPS
22.15 The obligor agrees to do anything the Lender asks (such as obtaining
consents, signing and producing documents and getting documents
completed and signed) to bind the obligor and any other person intended
to be bound under the transaction documents.
INCONSISTENT LAW
22.16 To the extent permitted by law, each transaction document prevails to
the extent it is inconsistent with any law.
SUPERVENING LEGISLATION
22.17 Any present or future legislation which operates to vary the
obligations of an obligor in connection with a transaction document
with the result that the Lender's rights, powers or remedies are
adversely affected (including by way of delay or postponement) is
excluded except to the extent that its exclusion is prohibited or
rendered ineffective by law.
TIME OF THE ESSENCE
22.18 Time is of the essence in any transaction document in respect of an
obligation of the obligor to pay money.
APPLICABLE LAW
22.19 The transaction documents are governed by the law in force in Victoria.
The obligor and the Lender submit to the non-exclusive jurisdiction of
the courts of Victoria.
SERVING DOCUMENTS
22.20 Without preventing any other method of service, any document in a court
action may be served on a party by being delivered to or left at that
party's address for service of notices under clause 21 ("Notices").
ADVERTISING
22.21 [Intentionally omitted]
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Facility Agreement Page 46 of 83 Pages
COUNTERPARTS
22.22 This agreement may consist of a number of copies of this agreement each
signed by one or more parties to the agreement. When taken together,
the signed copies are treated as making up the one document. Any copy
of this agreement signed by a party is binding on that party whether or
not that or any other copy is signed by or binding upon any other
party.
SEVERANCE
22.23 Each word, phrase, sentence, paragraph and clause in each transaction
document is severable no matter how they are linked. If any word,
phrase, sentence, paragraph or clause is defective, unenforceable, void
or voidable they may be severed and the remaining words will continue
to be of full force and effect.
23. INTERPRETATION
================================================================================
MEANINGS
23.1 These meanings apply in each transaction document unless the contrary
intention appears:
ACCOUNTING STANDARDS means accounting standards and principles
generally and consistently applied in Australia.
ACQUISITION COSTS means the costs and expenses of the company relating
to the acquisition of the business including, without limitation,
signage, stationery, and advertising costs in a total amount not
exceeding A$3,000,000.
A$ means the lawful currency of Australia.
AFFILIATE means, in relation to a person:
(a) each person that directly or indirectly owns or controls 5% or
more of the share capital having ordinary voting power in the
election of directors of that corporation; and
(b) each person that controls, is controlled by or is under common
control with that corporation.
AGGREGATE BORROWING BASE means, for a particular
day, an amount equal to:
(a) 85% (less the borrowing base dilution) of the value (as
determined by the Lender) of the company's eligible accounts;
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Facility Agreement Page 47 of 83 Pages
less:
(b) any reserves established by the Lender from time to time.
AUTHORISATION means any approval, authorisation, consent, exemption,
filing, licence, authority, notarisation, registration or waiver,
however described of a government authority.
AUTHORISED OFFICER means:
(a) in the case of the Lender, a director, secretary or an officer
whose title contains the word "manager" or a person performing
the functions of any of them or the solicitor of the Lender;
and
(b) in the case of an obligor, a person appointed in writing by
the relevant obligor to act as an authorised officer under the
transaction documents to which it is a party.
BLOCKED ACCOUNT AGREEMENT means an agreement dated on or after the date
of this agreement between the company, the Lender and Citibank.
BORROWING BASE CERTIFICATE means a certificate in the form set out in
Schedule 3, or any other form required by the Lender, duly completed by
the company and signed by an authorised officer of the company.
BORROWING BASE DILUTION is the amount expressed as a percentage by
which the dilution exceeds 5% at the time of calculation.
BUSINESS has the same meaning as "Business" in the BUSINESS SALE
AGREEMENT.
BUSINESS DAY means a day on which banks are open for general banking
business in Sydney (not being a Saturday, Sunday or public holiday in
Sydney).
BUSINESS SALE AGREEMENT means the document so entitled dated 10
November 2000 between Brambles Australia Limited (ACN 000 164 938) and
the company and others.
CAPITAL EXPENDITURE means any expenditure for fixed assets or
improvements (or for replacements, substitutions or additions to them)
that have a useful life of more than one year (regardless of how the
expenditure is financed).
CAPITAL LEASES means any lease of property that in accordance with
accounting standards would be required to be classified and accounted
for as a finance lease on the balance sheet of the lessee.
CAPITAL LEASE OBLIGATIONS means with respect to any capital lease the
amount of the obligation of the lessee that, in accordance with
accounting standards, would appear on the balance sheet of the lessee
in respect of that capital lease.
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Facility Agreement Page 48 of 83 Pages
CLEAN-UP NOTICE means any order, direction, notice or other requirement
of any government authority in respect of remediation.
COMPANY means person so described in the Parties.
CONTROL of a corporation includes the direct or indirect power to
directly or indirectly:
(a) direct the management or policies of the corporation; or
(b) control the membership of its board of directors,
whether or not the power has statutory, legal or equitable force or is
based on statutory, legal or equitable rights and whether or not it
arises by means of trusts, agreements, arrangements, understandings,
practices, the ownership of any interest in shares or stock of the
corporation or otherwise.
CONTROLLER has the meaning it has in the Corporations Law.
CONTROLLED ACCOUNT means each account governed and operated by the
blocked account agreement.
COSTS includes charges, expenses and internal administration costs; and
costs, charges and expenses in connection with advisers on a full
indemnity basis, and any GST paid or payable by the Lender except to
the extent that The Lender is entitled to a full or reduced input tax
credit.
CURRENT DRAWINGS means the outstanding principal amount of a drawing
made under the revolving loan facility and any amount deemed to be a
drawing under the revolving loan facility.
DEFAULT RATE means the interest rate plus 2% per annum.
DEPRECIATION EXPENSE means depreciation expense of the reporting group
determined in accordance with accounting standards.
DILUTION, which is to be calculated monthly, means for the company, the
total of non-cash credits made to the accounts receivable of the
company for the 12 month period ending on the date of determination
divided by the total sales for that period, expressed as a percentage
and rounded to the nearest whole number. The dilution is calculated at
any time by reference to the most recent accounts receivable roll
forward analysis provided by the company to the Lender under clause
13.5 or as otherwise determined by the Lender.
DIRECTION TO PAY means the document dated on or about the date of this
agreement entitled 'payment direction' between the company, the Lender,
Brambles Australia Limited (ACN 094 082 141) and Cowley Hearne lawyers.
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Facility Agreement Page 49 of 83 Pages
DISCLOSURE STATEMENT means a statement or notice containing or
purporting to contain the disclosures referred to in Schedule 6 or
otherwise required or made under this agreement, duly completed by the
and signed by an authorised officer of the as being true, correct and
not misleading or deceptive at the date of the statement or notice and
includes each statement or notice given prior to the date of this
agreement.
DRAWDOWN DATE means the date on which a drawing is or is to be made.
DRAWDOWN NOTICE means a completed and signed notice containing the
information and representations and warranties set out in Schedule 2,
or otherwise in the form required by the Lender from time to time.
EBITDAR means an amount equal to net income of the company less the sum
of:
(a) income tax credits; and
(b) interest income; and
(c) gain from extraordinary items; and
(d) any aggregate net gain (but not any aggregate net
loss) arising from the sale, exchange or other
disposition of fixed assets, whether tangible or
intangible, other than those made in the ordinary
course of business; and
(e) any other non-cash abnormal gains (excluding non-cash
revenue and non cash reserve adjustments) which have
been added in determining net income, in each case to
the extent included in the calculation of net income
in accordance with accounting standards, but without
duplication;
plus (to the extent deducted in determining net income), the
sum of:
(f) amortisation; and
(g) depreciation expenses; and
(h) any income tax expense; and
(i) interest expense;
(ii) any letter of credit fees paid in respect of letters
of credit issued in favour of Westpac ; and
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Facility Agreement Page 50 of 83 Pages
(j) rentals paid in respect of any operating lease
(excluding real property leases); and
(k) loss from extraordinary items; and
(l) any other non-cash abnormal losses (excluding
non-cash expenses and non cash reserve adjustments)
which have been deducted in determining net income,
in each case to the extent included in the
calculation of net income in accordance with
accounting standards, but without duplication;
(m) the amount of any deduction to net income as the
result of any grant to any members of the management
of any shares, in each case to the extent included in
the calculation of net income in accordance with
accounting standards, but without duplication; and
(n) new common equity contributions.
For purposes of the definition of EBITDAR, the following items are
excluded in determining net income:
(a) the income (or deficit) of any person accrued prior
to the date it became a subsidiary of, or was merged
or consolidated into, the company or any of its
subsidiaries;
(b) the income (or deficit) of any person (other than a
subsidiary) in which the company or any of it's
subsidiaries has an ownership interest, except to the
extent any such income has actually been received in
the form of cash dividends or distributions;
(c) the undistributed earnings of any subsidiary of the
company or any of its subsidiaries to the extent that
the declaration or payment of dividends or similar
distributions by such subsidiary is not at the time
permitted by the terms of any contractual obligation
or requirement of law applicable to such subsidiary;
(d) any restoration to income of any contingency reserve,
except to the extent that provision for such reserve
was made out of income accrued during the relevant
period;
(e) any write-up of any asset;
(f) any net gain from the collection of the proceeds of
life insurance policies;
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Facility Agreement Page 51 of 83 Pages
(g) any net gain arising from the acquisition of any
securities, or the extinguishment, under accounting
standards, of any indebtedness, of the company or any
of its subsidiaries;
(h) in the case of a successor to the company or any of
its subsidiaries by consolidation or merger or as a
transferee of its assets, any earnings of such
successor prior to such consolidation, merger or
transfer of assets; and
(i) any deferred credit representing the excess of equity
in any subsidiary of the company or any of its
subsidiaries at the date of acquisition of such
subsidiary over the cost to the company or any of its
subsidiaries of the investment in such subsidiary.
ELIGIBLE ACCOUNTS means those accounts of each company which the
Lender, in its reasonable judgment, determines to be eligible accounts
based on the most recent borrowing base certificate and excluding,
among other accounts, the exclusionary criteria.
ENCUMBRANCE means any security interest, notice under section 218 or
255 of the Income Tax Assessment Act 1936 (Cwlth) or under section 74
of the Sales Tax Assessment Act 1992 (Cwlth) or under any similar
provision of a State, Territory or Commonwealth law, right to remove
things from land (known as a "profit a prendre"), easement, restrictive
or positive covenant (other than easements and covenants burdening real
property), equity, interest, garnishee order, writ of execution, right
of set-off, lease, licence to use or occupy, assignment of income or
monetary claim, and any agreement to create any of them or allow any of
them to exist.
ENVIRONMENTAL LAWS means any law concerning the environment and
includes laws, statutes, ordinances, codes, rules, standards and
regulations from time to time concerning:
(a) emissions of substances into the atmosphere, waters and land;
(b) pollution and contamination of the atmosphere, waters and
land;
(c) production, use, handling, storage, transportation and
disposal of:
(i) waste;
(ii) hazardous substances; and
(iii) dangerous goods;
(d) conservation, heritage and natural resources;
(e) threatened, endangered and other flora and fauna species;
(f) the erection and use of structures; and
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Facility Agreement Page 52 of 83 Pages
(g) the health and safety of people,
whether made or in force before or after the date of this agreement.
ENVIRONMENTAL LIABILITIES means, with respect to any person, all
liabilities, obligations, responsibilities, response, remedial and
removal costs, investigation and feasibility study costs, capital
costs, operation and maintenance costs, losses, damages (including all
consequential and indirect damages) costs and expenses (including all
fees, disbursements and expenses of counsel, experts and consultants),
fines, penalties, sanctions, claims for contribution and indemnity,
whether arising under statute or otherwise, and interest incurred as a
result of or related to any claim, suit, action, investigation,
proceeding or demand by any person, whether based in contract, tort,
implied or express warranty, strict liability, criminal or civil
statute or common law, including any arising under or related to any
environmental laws or environmental permits.
ENVIRONMENTAL PERMITS means all permits, licences, authorisations,
consents, certificates, approvals, registration or other written
documents required by any government authority under any environmental
laws.
ESTABLISHMENT FEE means the fee set out in clause
7.1(c) and in the Details.
EVENT OF DEFAULT means an event of default so described in this
agreement (see clause 15 ("Events of default")).
EXCESS AVAILABILITY means at any time:
(a) the lesser of the facility limit for the revolving loan
facility and the aggregate borrowing base;
LESS
(b) current drawings under the revolving loan
facility at that time,
as calculated by the Lender.
EXCESS CASH FLOW means without duplication, with respect to any
financial year of the company and its subsidiaries, as contained in the
annual audited financial statements consolidated net income:
(a) PLUS depreciation, amortization and interest expense to the
extent deducted in determining consolidated net income;
(b) PLUS decreases or MINUS increases (as the case may be) in
working capital;
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Facility Agreement Page 53 of 83 Pages
(c) MINUS capital expenditure during such financial year
(excluding the financed portion thereof);
(d) MINUS interest expense paid or accrued (excluding any original
issue discount, interest paid in kind or amortized debt
discount, to the extent included in determining interest
expense paid or accrued) and scheduled principal payments paid
or payable in respect of indebtedness;
(e) PLUS extraordinary gains or MINUS extraordinary losses which
are cash items not included in the calculation of net income;
(f) PLUS taxes (including income tax) deducted in determining
consolidated net income to the extent not paid for in cash.
For purposes of the definition, working capital means Current Assets
less Current Liabilities, "Current Assets" means accounts receivable,
inventory and prepaid expenses and "Current Liabilities" means accounts
payable and accrued expenses.
EXCLUSIONARY CRITERIA means the criteria set out in Schedule 4.
EXERCISE DATE has the same meaning as in the residual value facility.
EQUIPMENT means, at any time, the equipment the subject of the
operating lease facility.
FACILITY means each of the revolving loan facility and operating lease
facility made available under this agreement and the transaction
documents or any one of them.
FACILITY LIMIT means, for a facility, the amount set out as such in the
Details.
FINANCIAL STATEMENTS means:
(a) a profit and loss statement;
(b) a balance sheet; and
(c) a statement of cash flows,
together with any notes to those documents and a directors' declaration
as required under the Corporations Law and any other information
necessary to give a true and fair view prepared in accordance with
accounting standards.
FIXED AND FLOATING CHARGE means the document dated 20 November 2000
between the Lender and the company.
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Facility Agreement Page 54 of 83 Pages
FIXED CHARGE COVERAGE RATIO means, for a period the ratio of:
(a) in respect of clauses 13.2(e)(i), (ii) and (iii):
(i) EBITDAR for that period, plus acquisition costs; less
any capital expenditures for the same period which are
not financed through the incurrence of indebtedness
(excluding indebtedness under the revolving loan
facility),
to
(ii) fixed charges for that period.
(b) in respect of clause 13.2(e)(iv):
(i) EBITAR for that period; less
(ii) any capital expenditures for the same period which
are not financed through the incurrence of
indebtedness (excluding indebtedness under the
revolving loan facility),
to
(iii) fixed charges for that period.
FIXED CHARGES means the total of all cash interest expense and fee
expense on borrowings of the company paid plus scheduled payments of
principal with respect to indebtedness, plus operating lease rentals
(excluding real property lease expenses) paid.
FUNDED DEBT means all indebtedness of the reporting roup for borrowed
money evidenced by notes, bonds, debentures, or similar evidences of
indebtedness and which by its terms matures more than one year from, or
is directly or indirectly renewable or extendable at the debtor's
option under a revolving credit or similar agreement obligating the
lender or lenders to extend credit over a period of more than one year
from the date of creation thereof, and specifically including capital
lease obligations, current maturities of long term debt, revolving
credit and short term debt extendable beyond one year at the option of
the debtor, and also including its obligations under the transaction
documents.
GOVERNMENT AUTHORITY means any government or government department, any
governmental, fiscal, monetary, supervisory or any person charged with
the administration of any applicable law.
GST means any tax in the nature of a consumption tax, a goods and
services tax, a value added tax or similar tax including without
limitation any tax arising out of the passage of the
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"A New Tax System (Goods and Services Tax) Act, 1999" (Commonwealth)
and associated legislation.
GUARANTEE means the guarantee and indemnity in clause 18 ("Guarantee
and indemnity").
GUARANTEED MONEY means, at any time, all amounts then due for payment
or which will or may become due for payment in the future by the
company to the Lender in connection with the transaction documents
(including transactions in connection with them).
GUARANTOR means each of the persons so described in the Parties,
jointly and severally.
HAZARDOUS MATERIAL means any substance, material or waste which is
regulated by or forms the basis of liability (including, without
limitation any environmental liability) now or hereafter under, any
environmental laws, including any material or substance which is:
(a) defined as a "solid waste", "hazardous waste", "hazardous
material", "hazardous substance", "extremely hazardous waste",
"restricted hazardous waste", "pollutant", "contaminant",
"hazardous constituent", "special waste", "toxic substance" or
other similar term or phrase under any environmental laws;
(b) petroleum or any fraction or by-product thereof, asbestos,
polychlorinated biphenyls or any radioactive substance; or
(c) may be the subject of any clean-up notice.
INDEBTEDNESS means all indebtedness, actual or contingent, including
but without duplication:
(a) all indebtedness for borrowed money or for the deferred
purchase price of property payment for which is deferred six
months or more;
(b) all reimbursement and other obligations with respect to
letters of credit, bankers' acceptances and surety bonds,
whether or not matured;
(c) all obligations evidenced by notes, bonds, debentures or
similar instruments;
(d) all indebtedness created or arising under any conditional sale
or other title retention agreement with respect to property
acquired (even though the rights and remedies of the seller or
lender under such agreement in the event of default are
limited to repossession or sale of such property);
(e) all capital lease obligations;
(f) the net present value of the minimum operating lease payments
(excluding real property lease payments) plus the residual
value discounted at the rate implicit in the lease.
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Facility Agreement Page 56 of 83 Pages
(g) all obligations under commodity purchase or option agreements
or other commodity price hedging arrangements, in each case
whether contingent or matured;
(h) all net unrealised losses under any foreign exchange contract,
currency swap agreement, interest rate swap, cap or collar
agreement or other similar agreement or arrangement designed
to alter risks arising from fluctuations in currency values or
interest rates, in each case whether contingent or matured;
(i) all indebtedness secured by (or for which the holder of such
indebtedness has an existing right, contingent or otherwise,
to be secured by) any encumbrance upon or in property or other
assets (including accounts and contract rights) owned by the
company and its subsidiaries on a consolidated basis, even
though the company and its subsidiaries on a consolidated
basis has not assumed or become liable for the payment of such
indebtedness; and
(j) obligations under the transaction documents,
but excluding obligations to trade creditors incurred in the ordinary
course of business that are not overdue by more than six months unless
being contested in good faith.
INDEX RATE means in respect of each month:
(a) the 30 day Bank Bill Swap Rate for the first business day of
that month which is quoted as the "Bank Bill Swap Reference
Rate Average Bid" in the Money Market section in the following
business day's edition of the Australian Financial Review; or
(b) if there is an obvious error in the rate described in (a), or
if that rate or publication is not published, the average bid
rate for bills having a tenor of 30 days as displayed on the
Reuters Monitor System designated "BBSY" on the first business
day of that month; or
(c) if there is an obvious error in the rate described in (b) or
if that rate is not displayed by 10:30am Sydney time on the
relevant day, the rate set by the Lender in good faith at
10:30am on that date.
INSOLVENT means being an insolvent under administration or insolvent
(each as defined in the Corporations Law), or having a controller
appointed, or being in receivership, in receivership and management, in
liquidation, in provisional liquidation, under administration, wound
up, subject to any arrangement, deed of company arrangement, assignment
or composition, protected from creditors under any statute, dissolved
(other than to carry out a reconstruction while solvent) or otherwise
being unable to pay debts when they fall due or having something
similar happen.
INTELLECTUAL PROPERTY means all patents, copyrights, trademarks, trade
secrets, customer lists and any licence to use any of them.
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INTEREST EXPENSE means interest expense of the company (whether cash or
non-cash) determined in accordance with accounting standards. It also
includes interest expense with respect to any funded debt.
INTEREST PAYMENT DATE means the first business day of each month and
the maturity date.
INTEREST RATE means the interest rate set out in the Details.
LAW means a treaty, a law, regulation, ordinance, an official directive
or request having the force of law, and an official directive, request,
guideline or policy with which obligors similar to or of the same class
as the obligor carrying on business in Australia normally comply.
MATERIAL ADVERSE EFFECT means any effect or series of effects, or any
event or combination of events which is, or is more likely than not to
be, materially adverse to:
(i) the ability of the obligor to perform its obligations
under a transaction document to which it is a party;
or
(ii) the business, assets or financial condition of any
obligor taken as a whole.
MATURITY DATE means, for each facility, the maturity date set out as
such in the Details, but if that is not a business day, then the
preceding business day.
MONITORING FEE means the fee set out in clause 7.1(b) and the Details.
NOVATION AGREEMENT means the agreement so entitled between the company,
Brambles Australia Limited and others.
NMHG means NACCO Materials Handling Group, Inc.
OBLIGOR means the company and the guarantor.
OPERATING LEASE FACILITY means (individually and collectively) the
documents dated on or about the date of this agreement entitled the
"Master Operating Lease Agreement" (No. 1) or (No. 2) between GE
Capital Australia and the company in respect of the equipment and
annexed as annexure "A".
OPERATING LEASE FACILITY LIMIT means, subject to clause 15.4, the
amount set out as such in the Details.
OPTION means the option granted under the option deed.
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Facility Agreement Page 58 of 83 Pages
OPTION DEED means the deed so entitled between the guarantor and the GE
Capital Australia dated on or about the date of this agreement.
PERFORMANCE GUARANTEE means the guarantee so entitled between the
guarantor and Westpac Banking Corporation.
PERMITTED DIVIDEND means each dividend or distribution of cash or
property or assets in respect of the company provided:
(a) there is no event of default subsisting;
(b) the dividend or the aggregate dividends declared or paid by
the company for the financial year is limited to up to 50% of
Excess Cash Flow for the preceding financial year based on the
financial statements required by subclauses 13.4(d) and
13.4(e) of this agreement; and
(c) until such time as the revolving loan facility is cancelled or
has expired, the company will have an excess availability of
not less than A$1,000,000 immediately on the day of the
payment of any such dividend.
PERMITTED INDEBTEDNESS means all indebtedness of the company provided
the company is in compliance with clause 13.2. For the avoidance of
doubt, permitted indebtedness includes:
(a) indebtedness arising under the transaction documents; and
(b) indebtedness otherwise expressly permitted or required under
the transaction documents.
PERMITTED PAYMENT means a payment by the obligor to a person that has
entered into a transaction document with the Lender provided the
payment is made in accordance with the terms of the transaction
document, and no event of default has occurred or will occur by making
the payment.
PERMITTED SECURITY INTERESTS means:
(a) a security interest created under a transaction document; and
(b) a security interest arising by operation of law to secure a
monetary obligation maturing not more than 90 days after the
date on which it is originally incurred.
POTENTIAL EVENT OF DEFAULT means an event with the passage of time
would become an event of default.
PROJECTIONS means forecasted balance sheets, profit and loss statements
and cash flow statements, all prepared on a consolidated basis, and
otherwise consistent with the historical financial statements, together
with appropriate supporting details and a statement of underlying
assumptions.
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REAL PROPERTY means, in respect of a person, the real property owned,
leased, subleased used or controlled by that person.
RELATED ENTITY has the meaning it has in the Corporations Law.
REMEDIATION means the investigation, clean-up, removal, abatement,
disposal, control, containment, encapsulation or other treatment of any
hazardous material and includes the monitoring and risk management of
any hazardous material.
RENTAL AGREEMENT has the same meaning as in the operating lease
facility.
RENTAL SCHEDULE has the same meaning as in the operating lease
facility.
RENT INSTALMENTS has the same meaning as in the operating lease
facility.
REPORTING GROUP means each of the obligors that are companies, and
their subsidiaries on a consolidated basis jointly and severally, in
their own capacities and as trustee of any trust.
RESTRICTED PAYMENT means:
(a) the declaration or payment of any dividend or the incurrence
of any liability to make any other payment or distribution of
cash or other property or assets in respect of a company's
share capital; or
(b) any payment on account of the purchase, redemption,
defeasance, sinking fund or other retirement of a person's
share capital or any other payment or distribution made in
respect of the company's share capital, either directly or
indirectly; or
(c) any payment or repayment of principal of, premium, if any, or
interest, fees or other charges on or with respect to, and any
redemption, purchase, retirement, defeasance, sinking fund or
similar payment and any claim for rescission or with respect
to, any subordinated debt of the company; or
(d) any payment made to redeem, purchase, repurchase or retire, or
to obtain the surrender of, any outstanding warrants, options
or other rights to acquire the company's share capital; or
(e) any payment of a claim for the rescission of the purchase or
sale of, or for material damages arising from the purchase or
sale of shares in the company's share capital or of a claim
for reimbursement, indemnification or contribution arising out
of or related to any such claim for damages or rescission; or
(f) any payment, repayment, loan, contribution, or other
disposition or transfer of funds or other property to any
affiliate or related entity of the company; or
- --------------------------------------------------------------------------------
Facility Agreement Page 60 of 83 Pages
(g) management or consultancy fees paid or payable to a related
entity or affiliate of the company.
RETURN CONDITIONS means the conditions set out in annexure "A" of the
operating lease facility.
REVIEW EVENT means the occurrence of an event that has a material
adverse effect.
REVOLVING LOAN FACILITY means the revolving cash advance facility made
available by the Lender under clause 2C of this agreement.
REVOLVING LOAN FACILITY LIMIT means the amount set
out as such in the Details.
SALE AND PURCHASE AGREEMENT means each of:
(a) the document so entitled dated on or about the date of this
agreement between the Lender and the company in respect of the
equipment and annexed as annexure "B"; and
(b) the agreement arising from the acceptance by the Lender of an
offer made by the company on or about the date of this
agreement.
SECURITY INTEREST means any security for the payment of money or
performance of obligations including a mortgage, charge, lien, pledge,
trust or power. Security interest also includes a guarantee.
SUBSIDIARY of an entity means another entity which is a subsidiary of
the first within the meaning of part 1.2 division 6 of the Corporations
Law or is a subsidiary of or otherwise controlled by the first within
the meaning of any approved accounting standard.
SUBSTITUTION CERTIFICATE means a substitution certificate in the form
of schedule 8.
TANGIBLE NET WORTH means the book value of the assets of the company
less, without duplication:
(a) goodwill, capitalised organisational expenses, capitalised
research and development expenses, capitalised marketing
costs, trademarks, trade names, copyrights, patents, patent
applications, licences and rights in any of them and other
intangible items;
(b) unamortised debt discount and expense;
(c) prepaid expenses;
(d) any write up in the book value of any asset not resulting from
a revaluation attributable to an acquisition; and
- --------------------------------------------------------------------------------
Facility Agreement Page 61 of 83 Pages
(e) the liabilities of the company (including accrued and deferred
income taxes),
all as determined in accordance with accounting standards.
TAXES means present or future taxes, levies, imposts, charges, duties
or withholdings imposed by any authority (including without limitation
GST, stamp duty, Financial Institution Duty, Bank Accounts Debits Tax
and any other transaction duties) (together with any related interest,
penalties, fines and expenses in connection with them), except if
imposed on the overall net income of the Lender.
TERMINATION DATE means the seventh anniversary of the date of this
agreement.
TERMINATION VALUE has the same meaning as in the operating lease
facility.
TOTAL FACILITY LIMIT means the collective limit of the revolving loan
facility limit and the operating lease facility limit.
TRANSACTION DOCUMENTS means:
(a) this agreement;
(b) the operating lease facility;
(c) the sale and purchase agreement;
(d) the fixed and floating charge;
(e) the direction to pay;
(f) the US Guarantee;
(g) the option deed;
(h) the blocked account agreement;
(i) the pari passu deed referred to in clause 2.5 of the fixed and
floating charge;
(i) each document required to be provided by or on behalf of an
obligor under this agreement;
(k) each document which the company acknowledges in writing to be
a transaction document;
(l) each document including or containing obligations of any of
the obligors to the Lender; and
- --------------------------------------------------------------------------------
Facility Agreement Page 62 of 83 Pages
(m) each other document connected with any of the documents set
out in sub-clauses (a) to (l).
UNUSED FACILITY FEE means the fee described in
clause 7.1(a) and the Details.
US$ means the lawful currency of the United States of America.
US GUARANTEE means the guarantee and indemnity and covenant to pay
granted by NMHG in favour of the Lender.
WORKING CAPITAL means current assets less current liabilities as those
terms are defined in schedule 5 to the regulations to the Corporations
Law.
WESTPAC means Westpac Banking Corporation ARBN 007 457 141.
REFERENCES TO CERTAIN GENERAL TERMS
23.2 Unless the contrary intention appears, a reference
in a transaction document to:
(a) a group of persons is a reference to any two or more of them
collectively and to each of them individually;
(b) an agreement, representation or warranty in favour of two or
more persons is for the benefit of them collectively and each
of them individually;
(c) an agreement, representation or warranty by two or more
persons binds them collectively and each of them individually;
(d) anything (including an amount) is a reference to the whole and
each part of it;
(e) a document (including this agreement) includes any variation
or replacement of it;
(f) any legislation includes any consolidation, amendment,
re-enactment or replacement of it and any regulations and
other instruments made under it;
(g) an accounting term is a reference to that term as it is used
in accounting standards under the Corporations Law, or, if not
inconsistent with those standards, in accounting principles
and practices generally accepted in Australia;
(h) Australian dollars or $ is a reference to the lawful currency
of Australia;
(i) a time of day is a reference to Sydney time;
(j) a week is a reference to the period of seven consecutive days
commencing on each Sunday;
- --------------------------------------------------------------------------------
Facility Agreement Page 63 of 83 Pages
(k) the word "person" includes an individual, a firm, a body
corporate, an unincorporated association and an authority;
(l) a particular person includes a reference to the person's
executors, administrators, successors, permitted substitutes
(including persons taking by novation) and permitted assigns;
(m) the word "payable" in relation to an amount, means an amount
which is currently payable or will or may be payable in the
future; and
(n) the words "including", "for example" or "such as" when
introducing an example, do not limit the meaning of the words
to which the example relates to that example or examples of a
similar kind; and
(o) an event of default subsists until it is cured or remedied to
the satisfaction of the Lender.
NUMBER AND HEADINGS
(a) The singular includes the plural and vice versa.
HEADINGS
(b) Headings are for convenience only and do not affect the interpretation
of this agreement.
BUSINESS DAYS
23.3 If the day on which any act, matter or thing is to be done under or
pursuant to a transaction document is not a business day, that act,
matter or thing:
(a) if it involves a payment, other than a payment due on demand,
shall be done on the preceding business day; and
(b) in all other cases, shall be done no later than the next
business day.
- --------------------------------------------------------------------------------
Facility Agreement Page 64 of 83 Pages
SCHEDULE 1 - CONDITIONS PRECEDENT (CLAUSE 2.4)
================================================================================
- --------------------------------------------------------------------------------
ITEM FORM RESPONSIBLE
- --------------------------------------------------------------- -------------------- ----------------------------------
1 Extract of minutes of a meeting of each obligor's Certified Format provided by the Lender.
board of directors which evidences the resolutions: Copy Executed copy from company
(a) authorising the signing and delivery of
transaction documents to which the entity is
a party and the observance of obligations
under those documents; and
(b) appointing authorised officers of the
entity; and
(c) which acknowledge that the transaction
documents (to which the entity is a party)
will benefit that entity; and
(d) authorising the execution of a power of
attorney to enable execution of transaction
documents to which it is a party by the
attorney.
- --------------------------------------------------------------- -------------------- ----------------------------------
2 Each document which evidences any other necessary Certified copy company
corporate or other action of each obligor in
connection with the transaction documents to which
it is party.
- --------------------------------------------------------------- -------------------- ----------------------------------
3 Certificate of specimen signatures of: Original Format supplied by the Lender
(a) each authorised officer of the company; and Executed copy from company
- --------------------------------------------------------------------------------
Facility Agreement Page 65 of 83 Pages
- --------------------------------------------------------------------------------
ITEM FORM RESPONSIBLE
- ---------------------------------------------------------------------------------------------------------------------
(b) each other person who is authorised to sign
a transaction document for the company.
- --------------------------------------------------------------------------------------------------------------------
4 This agreement, each other transaction document Original company
(other than the blocked account agreement, which is
a condition precedent only for the revolving loan
facility), Novation Agreement, Performance
Guarantee and the Business Sale Agreement fully
signed by each obligor.
- --------------------------------------------------------------- -------------------- ----------------------------------
5 Fixed and floating charge over all presen and Original company
future assets and undertaking of the company fully
signed and in registrable form.
- --------------------------------------------------------------- -------------------- ----------------------------------
6 Fully signed Corporations Law Forms 309 and Form Original company
350.
- --------------------------------------------------------------- -------------------- ----------------------------------
7 A statutory declaration from a director or Original company
secretary of each company providing the charge
setting out the value and location of the assets of
the company.
- --------------------------------------------------------------- -------------------- ----------------------------------
8 Evidence of payment of stamp duty or a cheque for Original Company
the amount of the estimated duty.
- --------------------------------------------------------------- -------------------- ----------------------------------
9 Initial borrowing base certificate completed and Original Format from the Lender.
certified for the revolving loan facility only. Completed by company.
- --------------------------------------------------------------- -------------------- ----------------------------------
10 Financial statements for the year ended 31 December Original US Guarantor
1999 for the US Guarantor.
- ------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Facility Agreement Page 66 of 83 Pages
- --------------------------------------------------------------------------------
ITEM FORM RESPONSIBLE
- --------------------------------------------------------------- -------------------- ----------------------------------
11 Initial disclosure statement completed and Original Format from the Lender.
certified by company for the revolving loan Completed by company.
facility only.
- -----------------------------------------------------------------------------------------------------------
12 A legal opinion from the company's legal advisers Original Company
regarding the corporate authorisations for
execution of the Sale and Purchase Agreement, this
agreement, the fixed and floating charge and the
operating lease facility.
- -----------------------------------------------------------------------------------------------------------
13 The Lender has received all fees payable by the - Company
company under this agreement.
- -----------------------------------------------------------------------------------------------------------
14 Evidence of insurance on terms and in amounts Copy company
approved by the Lender and noting the Lender's
interest.
- -----------------------------------------------------------------------------------------------------------
15 Blocked account agreement fully signed, in respect Original company
of all bank accounts operated by the company for
the revolving loan facility only.
- -----------------------------------------------------------------------------------------------------------
16 Release of all security interests over assets of Original company
the obligors other than those approved by the
Lender.
- -----------------------------------------------------------------------------------------------------------
17 Evidence of the corporate structure and capital Copies company
structure of the reporting group.
- -----------------------------------------------------------------------------------------------------------
18 Evidence of all authorisations, waivers and Copies company
consents required by government or semi government
authorities or third parties allowing the obligors
to enter into the transaction documents on terms
acceptable to the Lender.
- -----------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Facility Agreement Page 67 of 83 Pages
- --------------------------------------------------------------------------------
ITEM FORM RESPONSIBLE
- ----------------------------------------------------------------------------------------------------------
19 Statutory declaration as to corporate matters Original company
disclosing matters required by the Lender.
- -----------------------------------------------------------------------------------------------------------
20 Legal opinion relating to the US Guarantee. Original company
- -----------------------------------------------------------------------------------------------------------
21 The transaction documents are in full force and Original company
effect and all conditions precedent referred to
there in have been satisfied in form and
substance satisfactory to the Lender.
- -----------------------------------------------------------------------------------------------------------
22 Evidence of the contribution by the company of Original company
$18,000,000 in new cash equity on acceptable terms
- -----------------------------------------------------------------------------------------------------------
23 Evidence of receipt of the purchase price payable
under the Business Sale Agreement.
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------
Facility Agreement Page 68 of 83 Pages
SCHEDULE 2 - INITIAL DRAWDOWN NOTICE (CLAUSE 2.2)
============================================================
To: GE Capital Finance Pty Limited
ACN 075 554 175
Level 5, 55 Hunter Street
Sydney NSW 2000
Attention: The Account Manager -
[DATE]
DRAWDOWN NOTICE - A$ FACILITY AGREEMENT BETWEEN ____________
AND GE CAPITAL FINANCE PTY ACN 075 554 175DATED [ ] ("FACILITY
AGREEMENT")
Under clause 2.2 ("Requesting a drawing") of the facility
agreement, we give notice that the company wants to borrow
under the facility as follows:
(a) the requested drawdown date is ;
(b) the amount of the proposed
drawing is A$ ;
(c) the proposed drawing is to be
paid to:
(d) the company making the proposed
drawing is _________________.
_________________ represents and warrants that the
representations and warranties by it in clause 12
("Representations and warranties") of the facility agreement
are true complete and correct and not misleading on the date
of this notice and that each will be true complete and correct
and not misleading on the drawdown date and that I am an
authorised officer of the company.
The Interpretation clause of the facility agreement applies to
this notice as if it was fully set out in this notice.
------------------------------------------
Signed
------------------------------------------
Printed Name
being an authorised officer of
------------------------------------------
- --------------------------------------------------------------------------------
Facility Agreement Page 69 of 83 Pages
SCHEDULE 3 - BORROWING BASE CERTIFICATE
=============================================================================
BORROWING BASE CERTIFICATE
---------------------------------
Previously faxed: YES NO
- -------------------------- ---------------- ---------------------------------
Company name: Date: BBC Number
- -------------------------- ---------------- ---------------------------------
I certify that the above information is true and correct and not misleading and
that the eligible accounts in line 6 include only those accounts and inventory
as those terms are defined in the A$ Facility Agreement dated _____________
between GE Capital Australia, GE Capital Finance Pty Limited and others..
PREPARED BY: BY:
----------------------------------- -----------------------
TITLE:
----------------------
================================================================================
- --------------------------------------------------------------------------------
Facility Agreement Page 70 of 83 Pages
SCHEDULE 4 - EXCLUSIONARY CRITERIA
================================================================================
1. In respect of eligible accounts, the exclusionary criteria excludes any
account:
(a) which does not arise from the sale of goods or the performance
of services by the company in the ordinary course of its
business;
(b) if the company's right to receive payment is not absolute or
is contingent;
(c) if the company is not able to bring suit or otherwise enforce
its remedies against the account debtor through judicial
process;
(d) to the extent any defence, counterclaim, set-off or dispute is
asserted as to the account;
(e) if the account represents a progress billing consisting of an
invoice for goods sold or used or services rendered pursuant
to a contract under which the account debtor's obligation to
pay that invoice is subject to the company's completion of
further performance under that contract;
(f) that is not a true and correct statement of bona fide
indebtedness incurred in the amount of the account for goods
sold to or services rendered and accepted by the applicable
account debtor;
(g) with respect to which an invoice, acceptable to the Lender in
form and substance, has not been sent to the applicable
account debtor;
(h) that is not owned by the company;
(i) that is subject to any right, claim, security interest or
other interest of any other person, other than in favour of or
the Lender;
(j) that arises from a sale to any officer, other employee,
related entity or affiliate of the obligor, or to any entity
which has any common officer with the obligor;
(k) that is not paid within 90 days following its invoice date;
(l) if the relevant account debtor is or becomes insolvent:
(m) if the Lender's interest in it is not a first priority
perfected security interest;
(n) as to which any of the representations or warranties
pertaining to accounts set forth in any transaction document
is untrue;
(o) which is payable in any currency other than Australian
Dollars;
- --------------------------------------------------------------------------------
Facility Agreement Page 71 of 83 Pages
(p) that is the obligation of a debtor to whom the company is or
may become liable for goods sold or services rendered by the
debtor to the company, to the extent of the company's
liability to the debtor;
(q) that arises with respect to goods which are delivered on a
cash-on-delivery basis or placed on consignment, guaranteed
sale or other terms by reason of which the payment by the
debtor may be conditional;
(r) payable by a debtor where the total unpaid accounts of that
debtor exceed 20% of the aggregate of all accounts payable to
the company at that time, to the extent of that excess;
(s) that are accounts of a debtor if 50% or more of the accounts
owing from that debtor remain unpaid within the periods
specified in (k) for the debtor;
(t) that arises from any bill-and-hold or other sale of goods
which remain in the company's possession or under the
company's control;
(u) to the extent that the account exceeds any credit limit
established by the Lender in the Lender's sole discretion;
(v) that represents interest payments or service charges owing to
the company; or
(w) which is unacceptable to the Lender in its reasonable credit
judgment.
- --------------------------------------------------------------------------------
Facility Agreement Page 72 of 83 Pages
SCHEDULE 5 - [INTENTIONALLY OMITTED]
================================================================================
- --------------------------------------------------------------------------------
Facility Agreement Page 73 of 83 Pages
SCHEDULE 6 - DISCLOSURES
================================================================================
1 CLAUSE 12.1 K) - LITIGATION MATTERS
2 [INTENTIONALLY OMITTED]
3 [INTENTIONALLY OMITTED]
4 CLAUSE 12.1 O) - EMPLOYMENT MATTERS
5 CLAUSE 12.1 P) - JOINT VENTURES, SUBSIDIARIES AND AFFILIATES
6 CLAUSE 12.1 Q) - SHARE CAPITAL
SHAREHOLDER SHARES HELD FULLY PAID
7 CLAUSE 12.1 R) - INDEBTEDNESS
8 CLAUSE 12.1 S) - TAXES
9 CLAUSE 12.1 U) - INTELLECTUAL PROPERTY
10 [INTENTIONALLY OMITTED]
11 [INTENTIONALLY OMITTED]
12 [INTENTIONALLY OMITTED]
13 [INTENTIONALLY OMITTED]
- --------------------------------------------------------------------------------
Facility Agreement Page 74 of 83 Pages
SCHEDULE 7 - GUARANTEE AND INDEMNITY (CLAUSE 18.1)
================================================================================
GUARANTEE
s7.1 The guarantor unconditionally and irrevocably guarantees
payment to the Lender of the guaranteed money and guarantees
to the Lender the due performance by the company of the
company's obligations to the Lender under the transaction
documents as a principal obligation. If the company does not
pay the guaranteed money on time and in accordance with the
transaction documents, then the guarantor agrees to pay the
guaranteed money to the Lender on demand. A demand may be made
at any time and from time to time and whether or not the
Lender has made demand on the company.
NATURE OF GUARANTEE
s7.2 This guarantee is a continuing obligation and extends to all
of the guaranteed money.
INDEMNITY
s7.3 The guarantor unconditionally and irrevocably indemnifies the
Lender as a principal obligation against any liability or loss
(including consequential or economic loss) arising, and any
costs the Lender suffers or incurs:
(a) if an obligor does not, is not obliged to, or is
unable to, pay the guaranteed money in accordance
with the transaction documents; or
(b) if the guarantor is not obliged to pay the Lender an
amount under clause s7.1 ("Guarantee"); or
(c) if the Lender is obliged, or agrees, to pay an amount
to a trustee in bankruptcy or liquidator (of an
insolvent person) in connection with a payment by an
obligor (for example, the Lender may have to, or may
agree to, pay interest on the amount); or
(d) if the guarantor defaults under this guarantee; or
(e) in connection with any person exercising, or not
exercising, rights under this guarantee; or
(f) if any obligor defaults under this agreement or any
transaction document; or
(g) if the guaranteed money is not recoverable or
recovered by the Lender from any obligor.
REINSTATEMENT OF RIGHTS
s7.4 A trustee in bankruptcy, liquidator or controller or any other
person may ask the Lender to refund a payment it has received
or otherwise repay money it has received
- --------------------------------------------------------------------------------
Facility Agreement Page 75 of 83 Pages
in connection with this guarantee the guaranteed money or the
transactions documents. To the extent the Lender is obliged
to, or agrees to, make a refund or repayment it may treat the
payment as if it had not been made. It is then entitled to its
rights against the guarantor under this guarantee as if the
payment had never been made. This applies despite anything in
this guarantee.
RIGHTS OF GE CAPITAL ARE PROTECTED
s7.5 Rights given to the Lender under this guarantee (and the
guarantor's liabilities under it) are not affected by any act
or omission by the Lender or by anything else that might
otherwise affect them under law or otherwise, including:
(a) the fact that it varies or replaces any arrangement
under which the guaranteed money is expressed to be
owing, such as by increasing the facility limit or
extending the term; or
(x) the fact that it releases the company or an obligor
or gives it a concession, such as more time to pay or
compromises any of the guaranteed money; or
(y) the fact that the company opens an account with it;
or
(z) the fact it releases, loses the benefit of or does
not obtain any transaction document; or
(aa) the fact that it does not register any transaction
document which could be registered; or
(bb) the fact that it releases any person who guarantees
any of the company's obligations; or
(cc) the fact that a person becomes a guarantor after the
date of this agreement; or
(dd) the fact that the obligations of any person who
guarantees any of the company's obligations may be
void or may not be enforceable; or
(ee) the fact that any person who was intended to
guarantee any of the company's obligations does not
do so or does not do so effectively; or
(ff) the death, mental or physical disability or
insolvency of any person including an obligor; or
(gg) changes in the membership, name or business of any
person; or
(hh) any neglect, omission, default or delay of the
Lender.
NO MERGER
s7.6 This guarantee does not merge with or adversely affect, and is
not adversely affected by, any of the following:
- --------------------------------------------------------------------------------
Facility Agreement Page 76 of 83 Pages
(a) any other guarantee, indemnity, or security interest,
or other right or remedy to which the Lender is
entitled; or
(b) a judgment which the Lender obtains against the
guarantor in connection with the guaranteed money or
any other amount payable under this guarantee.
the Lender may still exercise rights under this guarantee as
well as under the judgment, other guarantee, indemnity, security
interest, or other right or remedy.
EXTENT OF GUARANTOR'S OBLIGATIONS
s7.7 If more than one person is named as "guarantor" each of them
is liable for all the obligations under this guarantee both
separately on its own and jointly with any one or more other
persons named as "guarantor". This guarantee binds each person
who signs as "guarantor" even if another person who was
intended to sign does not sign it or is not bound by it.
GUARANTOR'S RIGHTS ARE SUSPENDED
s.7.8 As long as any of the guaranteed money remains unpaid, the
guarantor may not, without the Lender's written consent:
(a) reduce its liability under this guarantee by claiming
that it or any obligor or any other person has a
right of set-off subrogation or counterclaim against
the Lender; or
(b) exercise any legal right to claim to be entitled to
the benefit of another guarantee, indemnity, or
security interest given in connection with the
guaranteed money or any other amount payable under
this guarantee (for example, the guarantor may not
try to enforce any security interest the Lender has
taken to ensure repayment of the guaranteed money);
or
(c) claim an amount from the company, or another
guarantor of the company's obligations, under a right
of indemnity or any other claim, or enforce any right
against either of them; or
(d) claim an amount in the insolvency of any obligor; or
(e) directly or indirectly withdraw or seek to withdraw
any money loaned by the guarantor to the company or
otherwise owing to the guarantor by the company or
accept or receive any property or payment of the
company or take any encumbrance or security interest
from the company; or
(f) transfer, assign or otherwise dispose of any claim
the guarantor may have against the company other than
by way of complete release or make or cause any other
person to claim, demand or bring an action against
the company directly or indirectly.
- --------------------------------------------------------------------------------
Facility Agreement Page 77 of 83 Pages
Any money, property or other benefit received by the guarantor
from the company in contravention of this clause is received
on the basis that it is held on trust for the Lender and will
be paid to the Lender on receipt by the guarantor.
CROSS GUARANTEE
s7.9 This guarantee takes effect as a cross-guarantee and
cross-indemnity when one or more of the company are the same
as one or more of the guarantor. In those circumstances it is
a separate guarantee and indemnity in relation to each obligor
as if that person were:
(s) the only person included in the definition of
"company"; and
(t) excluded from the definition of "guarantor".
- --------------------------------------------------------------------------------
Facility Agreement Page 78 of 83 Pages
SCHEDULE 8 - FORM OF SUBSTITUTION CERTIFICATE
================================================================================
THIS CERTIFICATE is given on the day of
BY: [ ] A.C.N. [ ] (the "EXISTING LENDER");
AND: [ ] A.C.N. [ ] (the "NEW FINANCIER");
TO:
RECITALS:
A. Pursuant to clause 20.2 of a Facility Agreement dated [ ] between [ ]
and others (the "FACILITY AGREEMENT"), the Lender may assign all or
part of its rights and obligations under the transaction documents.
B. The Lender proposes to substitute the New Financier for a part of its
participation under the transaction documents as provided by this
certificate.
DEFINITIONS
1.1 Defined terms in the Facility Agreement have the same meanings in this
certificate, unless the context otherwise requires.
1.2 This is a transaction document for the purposes of the Facility
Agreement.
2. SUBSTITUTION
2.1 The Lender hereby substitutes the New Financier as Lender under the
transaction documents to the extent set out below.
2.2 [Details of rights and obligations of the Lender to be assigned].
2.3 The assignment will take effect upon the [date of this notice/[ ] ].
3. ADDRESS FOR NOTICES
The address for notices of the New Financier for the purposes of each
transaction document to which it is a party is [ ].
4. LAW AND JURISDICTION
This certificate is governed by the laws of the Australian Capital
Territory and the parties submit to the non-exclusive jurisdiction of
the courts exercising jurisdiction in the Australian Capital Territory
and any courts that may hear appeals from those courts in respect of
any proceedings in connection with this certificate.
- --------------------------------------------------------------------------------
Facility Agreement Page 79 of 83 Pages
5. CAPACITY
The execution by the Relevant Financier of this certificate binds each
party, and will cause this certificate to enure for the benefit of each
party, referred to in clause 20.2 of the Facility Agreement on whose
behalf it executes this certificate.
[Lender] [New Financier]
By: By:
Date: Date:
By:
Date:
- --------------------------------------------------------------------------------
Facility Agreement Page 80 of 83 Pages
SIGNING PAGE
================================================================================
EXECUTED AS AN AGREEMENT
DATE: 22 November 2000
SIGNED by
as attorney for GE CAPITAL
AUSTRALIA under power of attorney
dated
in the presence of:
/s/ Rebecca King /s/ David Thrift
- -------------------------------- ------------------------------------------
Signature of witness By signing this agreement as attorney the
attorney states that the attorney has not
received notice of revocation of the power
of attorney
Rebecca King
- --------------------------------
Name of witness (block letters)
225 George St., Sydney NSW 2000
- --------------------------------
Address of witness
/s/ B. D. Brown
Soliciter -----------------------------------------
- --------------------------------- By signing this agreement as attorney the
Occupation of witness attorney states that the attorney has not
received notice of revocation of the power
of attorney
- --------------------------------------------------------------------------------
Facility Agreement Page 81 of 83 Pages
SIGNED by
as attorney for
GE CAPITAL
FINANCE PTY LIMITED under
power of attorney dated
in the presence of:
/s/ Rebecca King
- -------------------------------- /s/ David Thrift
Signature of witness ---------------------------------------------
By signing this agreement as attorney the
attorney states that the attorney has not
Rebecca King received notice of revocation of the power of
- -------------------------------- attorney
Name of witness (block letters)
225 George St., Sydney NSW 2000
- -------------------------------- /s/ B. D. Brown
Address of witness ---------------------------------------------
By signing this agreement as attorney the
attorney states that the attorney has not
Soliciter received notice of revocation of the power of
- -------------------------------- attorney
Occupation of witness
- --------------------------------------------------------------------------------
Facility Agreement Page 82 of 83 Pages
EXECUTED by NATIONAL FLEET
NETWORK PTY LIMITED
ACN 094 802 141:
/s/ Geoffrey D. Lewis /s/ Kenneth L. Fish
- --------------------------------------------- --------------------------------
Signature of director Signature of director/secretary
Geoffrey D. Lewis Kenneth L. Fish
- --------------------------------------------- --------------------------------
Name: Geoffrey D Lewis Name: Kenneth L Fish
EXECUTED by NMHG DISTRIBUTION PTY LIMITED
ACN 053 370 291:
/s/ Geoffrey D. Lewis /s/ Kenneth L. Fish
- --------------------------------------------- --------------------------------
Signature of director Signature of director/secretary
Geoffrey D. Lewis Kenneth L. Fish
- --------------------------------------------- --------------------------------
Name: Geoffrey D Lewis Name: Kenneth L Fish
- --------------------------------------------------------------------------------
Facility Agreement Page 83 of 83 Pages