Exhibit 10.53
Global Industry Groups
Level 15, 260 Queen Street
BRISBANE QLD 4000
Telephone: 07 3227 2348
Fax: 07 3221 9620
Email: swimberley@westpac.com.au
15 July 2003
The Secretary,
Collins Restaurants Management Pty Ltd
16 - 20 Edmondstone Street,
Newmarket, Qld 4051
Dear Sir
A$40,000,000 Bill Acceptance and Discount Facility
Westpac Banking Corporation (Westpac) is pleased to offer Collins Restaurants
Management Pty Ltd ACN 093 912 979 (Collins) a facility on the following terms.
Collins is requested to acknowledge its acceptance of this offer by signing the
accompanying copy of this agreement and returning it to Westpac before the offer
expiry date of 11 August 2003.
Capitalised terms used in this agreement are defined either in the text or in
the clause headed "Definitions".
This is a Bank Document for the purposes of the Guarantee.
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Collins Restaurants Management Pty Ltd
1. Facility Details
Maximum face amount of Bills A$40,000,000 (the Commitment).
outstanding at any time:
Each time the Commitment is reduced (or when the
Commitment is cancelled) Collins will retire
sufficient Bills to ensure that the maximum face
amount of outstanding Bills does not at any time
exceed the Commitment.
The undrawn Commitment may be cancelled by
Westpac on demand. The Commitment will
automatically reduce by $667,000 each month and
will be automatically cancelled on the Expiry
Date.
If the face amount of the Bills maturing on any
day exceeds the face amount of Bills accepted and
discounted on that day, the Commitment will
reduce by the amount of that excess.
Discount rate: For each Bill, the Reuters BBSY bid rate for a
period equal to the term of the Bill, on the date
on which the Bill is to be discounted, or if
there is no BBSY rate for that term, the rate
selected by Westpac as equivalent (Discount
Rate).
Fees:
.. Establishment Fee $230,000 payable on acceptance of this agreement.
.. Line Fee 1.00% per annum of the daily amount of the
Commitment from the date of acceptance of this
agreement payable quarterly in advance on the
first Business Day of each calendar quarter and
on the date of acceptance of this agreement (or
at any other intervals designated by Westpac from
time to time). If the Commitment is cancelled or
reduced in the quarter the relevant amount of fee
is refundable.
.. Acceptance Fee 1.25% per annum, (the Margin) calculated on the
face amount of each Bill accepted from and
including the date of acceptance until the Bill's
maturity date.
.. Preparation Fee $100 per drawdown
Term: Until 31 July 2008 or as otherwise agreed (Expiry
Date).
Purpose: The facility will be used for the following
purposes:
. refinance Collins' existing Bill facility with
Westpac;
. repay subordinated debt owing to Restaurant
Concepts International Inc of a principal
amount of A$20,800,000 plus accrued interest
on that amount; and
. general corporate purposes.
Security: All existing security securing Collins's
obligations to Westpac.
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Collins Restaurants Management Pty Ltd
2. The Facility
Facility
Collins can require Westpac to accept Bills and discount them under the facility
on any Business Day.
Conditions Precedent
Before Collins can require the acceptance and discount of Bills, Collins must
sign and return a copy of this agreement and Westpac must have received:
(a) a drawdown notice in the form attached by 10am (local time) at least 2
Business Days before the proposed date for accepting and discounting Bills
(the Drawdown Date);
(b) the following in form and substance satisfactory to Westpac:
(i) a verification certificate in the form attached to this agreement
with the attachments referred to;
(ii) the Variation Agreement relating to the Guarantee provided to Collins
with this agreement duly signed by the parties;
(c) any fees payable before or on the Drawdown Date as set out in clause 1
"Facility Details"; and
(d) where a security document has previously been given to Westpac by another
entity for another transaction, and is to be used to secure the facility,
consent from that entity.
No default
Westpac is not obliged to accept or discount Bills under this agreement if on
the Drawdown Date there is:
(a) (or will be) for any reason an excess over the Commitment of the face
amount of outstanding Bills;
(b) a continuing Event of Default (as defined in the Guarantee), or
(c) a breach or other event which with notice or time or both would become an
Event of Default.
However, Westpac may at its discretion make available to Collins an amount not
exceeding the face amount of the Bills requested. That amount, if provided at
all by Westpac, will be provided as a loan which is repayable on the earlier of:
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Collins Restaurants Management Pty Ltd
(a) demand by Westpac for repayment of that amount, and
(b) notice by Westpac under the clause headed "Westpac's Remedies and Powers"
below.
Collins shall pay interest monthly in arrears on the loan. The interest will
accrue from day to day at a rate equal to 2% per annum plus Westpac's Reference
Lending Rate then applicable.
Cancellation of Commitment
Collins can cancel all or part of the undrawn Commitment by giving two Business
Days irrevocable notice to Westpac. Cancellations must be in multiples of
$100,000.
3. Facility Procedures
Preparation of Bills
Westpac need not prepare Bills, and ordinarily will not do so. Only Westpac may
require that physical Bills be brought into existence. However, Westpac may
itself prepare Bills or require Collins to prepare Bills under this agreement.
If Westpac does not require the physical preparation of Bills it will be taken
to have prepared, signed on behalf of Collins (as drawer) accepted and
discounted Bills in compliance with this agreement. This agreement will apply as
if:
(a) Westpac had prepared, accepted and discounted those Bills, and
(b) Collins had signed those Bills as drawer.
Form of Bills
Bills prepared under this agreement must:
(a) be in a form acceptable to Westpac, and to the extent practicable, have a
face amount of $100,000 or any other amount specified by Westpac;
(b) be expressed to be drawn by Collins and signed by Collins as drawer;
(c) be payable at Westpac's office at: 3rd Floor, 255 Elizabeth Street, Sydney,
NSW 2000, or any other address which Westpac may specify;
(d) have the name of the payee left blank;
(e) have a term, as required by Collins of 1, 2, 3, 4, 5 or 6 months or any
other term Westpac and Collins may agree; and
(f) mature on a Business Day which is not later than the last day of the Term.
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Collins Restaurants Management Pty Ltd
Collins must select terms and amounts for Bills so that the total face amount of
outstanding Bills will not at any time exceed the Commitment.
Authority
Collins irrevocably and for value authorises Westpac:
(a) to complete and deliver Bills under this agreement,
(b) on behalf of Collins and in Collins's name to prepare Bills complying with
this agreement and to sign them as drawer and if applicable, endorse them,
and to alter any non-complying Bills.
4. Acceptance and Discount
Acceptance and Discount
When it is obliged under this agreement to accept and discount Bills Westpac
will:
(a) accept those Bills,
(b) if necessary, insert as payee itself or any other person who is to buy
those Bills, and
(c) discount those Bills and pay to Collins or as it directs an amount equal to
the sum of the face amount of those Bills less the sum of:
(i) a discount amount for each Bill which would result in a yield to
maturity on that Bill calculated at the Discount Rate (expressed as
a yield percent per annum),
(ii) the acceptance fee for the Bills,
(iii) the preparation fee for the Bills,
(iv) any applicable stamp duty or other tax payable by Westpac on or in
respect of the Bills or any payment under this agreement (including
financial institutions duty), and
(v) any other amount owing by Collins to Westpac under this agreement.
5. Payment Obligations
Indemnity
Collins shall indemnify Westpac on demand against all liabilities of Westpac as
acceptor or endorser of Bills.
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Collins Restaurants Management Pty Ltd
Liability on Bills
As between Westpac and Collins, Collins is primarily liable in respect of all
Bills. Accordingly:
(a) the liability of Collins with respect to any Bill will not be discharged
because Westpac becomes the holder of that Bill before, on or after its
maturity, and
(b) not later than 11 am on the maturity date for each Bill, Collins shall pay
to Westpac an amount equal to the face amount of that Bill.
Netting Off
Where new Bills are to be drawn and accepted on the maturity date of old Bills,
only the net amount as between the amounts payable on that date:
(a) by Collins to Westpac under the clause headed "Payment Obligations" in
respect of the face amount of the old Bills, and
(b) by Westpac to Collins by way of proceeds of the new Bills under The clause
headed "Acceptance and Discount",
need be paid.
Fees
Collins will pay fees as set out in this agreement.
Repayments
The facility provided under this agreement will terminate at the Expiry Date,
and at that time Collins will pay to Westpac:
(a) all money owing by it to Westpac under or in connection with the facility
provided under this agreement, and
(b) the face amount of all Bills then outstanding.
6. Representations and Undertakings
Collins makes the representations and gives the undertakings in the Guarantee.
7. Hedging
From time to time and initially within 90 days after drawdown of the facility,
Collins must hedge its projected floating rate interest exposure in accordance
with a hedging strategy determined by Collins and reasonably acceptable to
Westpac to the extent that the Commitment under this facility
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Collins Restaurants Management Pty Ltd
is greater than $20,000,000 (or such other amount as is acceptable to Westpac
acting reasonably) for the period until the Expiry Date.
8. Westpac's Remedies and Powers
Event of Default
If an Event of Default (as defined in the Guarantee) occurs then Westpac may at
any time do either or both of the following:
(a) terminate the facility and cancel the Commitment; and
(b) by written notice require Collins to pay to Westpac all or some of:
(i) the money actually or contingently owing by it to Westpac under or in
connection with the facilities, and
(ii) the face amount of all Bills outstanding as at the date of that
notice.
Collins will pay those amounts immediately.
If a notice requires the payment of only some of the amounts lent or provided or
otherwise outstanding, then Westpac may at any time by written notice require
Collins to pay further amounts, until all amounts lent or provided or actually
or contingently outstanding by Collins have been paid.
Amounts paid on unmatured Bills and contingent amounts
(a) Any amount paid to Westpac under this clause in respect of any unmatured
Bill or in respect of any sum contingently owing, and
(b) interest credited under this clause,
will accrue and be credited with interest at a rate and in a manner which
Westpac determines would under its normal procedures apply to deposits of a
similar amount at call (or of any other term specified by Westpac).
Westpac may apply it in or towards satisfaction of any sum at any time payable
by Collins to Westpac under or in relation to this agreement or any security
document, including in respect of Bills.
It is repayable by Westpac to the extent only that on any day it exceeds the
amount of all money owing to Westpac under or in connection with this agreement
or any security document (including, without limitation, the total face amount
of the outstanding Bills and all amounts which are then or may subsequently
become contingently owing).
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Collins Restaurants Management Pty Ltd
Application of Money - Set-Off
If Collins does not pay an amount when due, Westpac may apply any money in any
of Collins's accounts (whether or not matured) in payment of any amount payable
under this agreement. It need not do so. It can convert currencies using its
normal procedures.
No Waiver
No failure to exercise a power, and no delay in exercising a power, operates as
a waiver. Waivers must be in writing.
9. Payments - general provisions
Method of Payment
Collins will make all payments at the address on the first page of this
agreement or as specified by Westpac. Payments must be in cleared funds and free
of any set-off or deduction, except for taxes where required by law. All
payments will be made by 11am (local time) in the place of payment.
Time of Payment
Unless otherwise stated, amounts payable under the clauses below headed "Yield
Protection" and "Additional Payments" are payable within 2 Business Days of
demand.
Default Interest
Interest will accrue each day on each amount due but unpaid. The rate will be
Westpac's advertised Reference Lending Rate (or any equivalent rate which is
substituted for this rate from time to time) then applicable plus the Margin
plus 2% per annum. That interest accrues before and after any judgment.
Westpac may debit Collins's account with accrued interest under this paragraph
on any day. If it does not do so more often it will be taken to have done so
monthly. That interest will then itself bear interest.
10. Yield Protection
Whenever Westpac determines that a Change in Law (as defined below) has the
effect of:
.. increasing its costs of funding or maintaining the facility, or reducing
its return or amounts received in respect of the facility; or
.. reducing its return on capital allocated to the facility (including because
more capital needs to be allocated to the facility or cannot be used
elsewhere),
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Collins Restaurants Management Pty Ltd
then Westpac will promptly notify Collins who must pay Westpac the amount
Westpac certifies is necessary to compensate it. That certificate will give an
outline of the calculation, and will be conclusive and bind Collins in the
absence of manifest error.
If Collins so requests, Westpac will negotiate in good faith with a view to
finding a means of minimising the effect, but it is not a defence that the
effect could have been avoided or minimised.
A Change in Law is the introduction of, or a change in, any law, official
directive, ruling or request or a change in its interpretation. If it does not
have the force of law, it must be one with which responsible Australian banks
would comply. Without limitation, it includes any of these circumstances which
occurs with respect to capital adequacy, special deposit, liquidity, reserve,
prime assets, tax or prudential requirements (except a change in tax on overall
net income).}
11. Additional Payments
Indemnity and costs
Collins will indemnify Westpac against any liability, loss, cost or expense
(including legal costs on a full indemnity basis and including any goods and
services tax or similar tax) it incurs in or as a result of a breach of its
obligations, or actual or contemplated enforcement of this agreement and any
security for this agreement.
Collins will pay Westpac's reasonable external legal costs (including goods and
services tax or similar tax) in relation to the preparation of this agreement
and any security for this agreement, and any amendment of it, or any consent or
waiver.
Goods and Services Tax
Notwithstanding any other provision of this agreement, any amount payable to
Westpac under this agreement does not include any goods and services tax or
similar tax by whatever name called (including GST as defined in A New Tax
System (Goods and Services Tax) Act 1999, as amended from time to time, (the
"GST law")). Terms defined in the GST law have the same meaning in this
agreement.
To the extent that any supply under or in connection with this agreement by
Westpac constitutes a taxable supply, the consideration payable will
automatically be increased to include an additional amount on account of GST.
That amount will be the product of the value of the consideration for the supply
and the prevailing GST rate.
Stamp Duty
Collins will pay all stamp, transaction and other similar duties and charges in
relation to this agreement, any bill of exchange made under it and any security
and any transaction under them. This includes financial institutions duty and
debits tax. Collins will also pay any fines and penalties
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Collins Restaurants Management Pty Ltd
unless they result from a failure by Westpac to lodge a document for stamping in
sufficient time, having received from Collins the amount of stamp duty in good
time.
12. General
Statements of amounts due in evidence
A written statement by Westpac as to any amount due under this agreement will be
sufficient evidence of that amount unless Collins proves it wrong.
Assignment
Collins may not assign its rights under this agreement. Westpac may transfer any
part of its rights and, with Collins' consent, obligations. Collins will not
withhold that consent unreasonably. Westpac may disclose information to a
potential transferee or sub-participant.
Where Westpac wants to transfer any part of its obligations Collins will sign
when requested by Westpac a document which will effect that transfer and which
does not increase Collins's obligations. Westpac will bear its own costs and
stamp duty on that document.
Notices
Notices, demands, statements, consents, requests, requirements and certificates
(Notices) must be in writing. Except where they instruct Westpac in relation to
a value transaction, they may be sent by facsimile, post or any other means to
the recipient's address or number set out on the signature page or any other
address or number notified to the sender by the recipient.
Notices that instruct Westpac in relation to a value transaction may only be
given by delivery of the original signed notice unless Westpac agrees otherwise.
Notices will be taken to have been given if delivered or left at that address,
on the dates on which they are delivered or left.
Notices and Westpac Authorised Signatories
Any Notice, or other communication by Westpac may be given by any person whose
title includes the word manager, head, director, counsel or president, or any
attorney authorised to do so. Any such person may sign bill of exchange on
behalf of Westpac or (if Westpac is authorised to sign the Collins's bills of
exchange), Collins.
Notices and Collins Authorised Signatories
All documents required to be signed by Collins under this agreement shall be
signed on its behalf by one or more authorised signatories referred to in the
verification certificate, or any other or additional authorised signatories
subsequently appointed, whose names and specimen signatures have been notified
to Westpac.
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Collins Restaurants Management Pty Ltd
Amendments to legislation referred to in this agreement
A reference to legislation or to a provision of legislation includes a
modification or re-enactment of it, a legislative provision substituted for it
and a regulation or statutory instrument issued under it.
Governing Law and Jurisdiction
This agreement is governed by Queensland law. Collins accepts the non-exclusive
jurisdiction of the courts having jurisdiction there.
13. Definitions
In this agreement:
Bill means a Bill of Exchange as defined in the Bills of Exchange Act 1909 which
is, or is to be, accepted or discounted under this agreement or is taken to be
accepted or discounted under this agreement (whether or not it physically
exists). It includes a bill which bears a purported signature on behalf of
Collins which has been discounted by Westpac under this agreement, even if that
signature was not authorised or forged.
Business Day means any weekday on which Westpac is open at the address referred
to on the signature page.
Guarantee means the Unlimited Cross Guarantee and Indemnity and Negative Pledge
with Financial Ratio Covenants between Collins Foods Group Pty Ltd and others
and Westpac dated 21 August 2000 (as amended and restated on or about the date
of this agreement).
A reference to an outstanding Bill is to a Bill which has been accepted or
discounted under this agreement (or which Collins has not paid the face amount
or provided cash cover under this agreement. This applies whether or not the
Bill has matured, been presented for payment or been paid on presentation by
Westpac.
Signed for Westpac Banking Corporation by its authorised officer
____________________________
Scott Wimberley
Associate Director
Address: Level 15, 260 Queen Street Brisbane Qld 4000
Facsimile: 07 3221 9620
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Collins Restaurants Management Pty Ltd
Accepted and agreed for and on behalf of:
Collins Restaurants Management Pty Ltd ACN 093 912 979
in accordance with a unanimous resolution of its board.
____________________________________ ____________________________________
Director Director/Secretary
Name (please print) Name (please print)
Date of acceptance:.....................
Address: 16 - 20 Edmondstone Street Newmarket Qld 4051
Facsimile: 07 3352 0970
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Collins Restaurants Management Pty Ltd
Form of Verification Certificate
TO: Scott Wimberley
Westpac Banking Corporation
Level 15, 260 Queen Street Brisbane 4000
A$40,000,000 Bill Acceptance & Discount Facility for Collins Restaurants
Management Pty Ltd
I am a secretary/director of Collins Restaurants Management Pty Ltd ACN 093 912
979, (the Company).
Attachments
Attached are complete copies of all amendments to the Company's constitution
made since 21 August 2000.
Board Resolutions to sign documents
On ..................................... the directors of the Company resolved
unanimously to authorise the signing of the documents described above by
....................................... and .....................................
Authorised Signatories
The specimen signatures appearing below are those of the person(s) authorised to
sign the documents described above, and give notices for the Company in
connection with the documents described above.
Authorised Signatory Specimen Signature
........................... .........................
........................... .........................
Solvency
The Company is solvent. It is not prevented by Chapter 2E or any other provision
of the Corporations Act 2001 from entering into and performing any of the
documents described above.
Signed by: ........................
Name (please print):
Title: Secretary/Director
Dated: ....................
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Collins Restaurants Management Pty Ltd
Form of Drawdown Notice
TO: Scott Wimberley
Westpac Banking Corporation
Level 15, 260 Queen Street Brisbane 4000
A$40,000,000 Bill Acceptance & Discount Facility for Collins Restaurants
Management Pty Ltd
I refer to the facility agreement dated 16 July 2003.
I am authorised to give this irrevocable notice on behalf of Collins. The
representations by Collins in the agreement are true as of today.
We request you to prepare, complete, draw, endorse (if necessary), sign and
deliver on our behalf Bills (details of which appear in the schedule below)
drawn by Collins on Westpac. We acknowledge that, unless Westpac specially
requires that Bills be physically prepared and drawn, Westpac need not do so,
but will be taken to have done so.
We request Westpac to do as follows on ................................. [NOTE:
Date must be a Business Day, this date will be the "Date Bills drawn" in the
schedule of Bills.]
(1) accept the Bills for Collins's accommodation;
(2) complete the name of the payee on the Bills, buy them or at Westpac's
option sell them to any person and credit the net proceeds after deducting
any moneys payable under (3) below to Collins's Account Number
................................... at the ............................
Branch of ................................; and
(3) debit to Collins's Account Number ............................. at the
.................................... Branch of Westpac (OR) deduct from
the proceeds referred to in (2) above the amount of Westpac's acceptance
and other fees and any stamp or other duty payable in respect of the Bills;
Schedule of Bills
Drawer's No. of Bill Date Bills drawn (or Maturity Date Face Amount
(optional) are requested to be
drawn)
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Collins Restaurants Management Pty Ltd
Signed for Collins Restaurants Management Pty Ltd
by its authorised officer
_________________________________
Name* (please print):
Title:
Dated
*(To be signed by authorised signatory whose signature and status have been
verified to Westpac.)
(C)Westpac Banking Corporation Page 15
Annexure `A'
Dated 21 August 2000 as amended and restated on the date the Variation
Agreement takes effect.
Collins Foods Group Pty Ltd
ACN 009 937 900
And the Other Companies Listed in Schedule A
In Account with
Westpac Banking Corporation
ABN 33 007 457 141
UNLIMITED CROSS GUARANTEE AND
INDEMNITY AND NEGATIVE PLEDGE WITH
FINANCIAL RATIO COVENANTS
By the Guarantors Listed in Schedule A
1
UNLIMITED CROSS GUARANTEE AND
INDEMNITY AND NEGATIVE PLEDGE WITH FINANCIAL
RATIO COVENANTS
The guarantees, indemnities, negative pledges and financial ratio covenants in
this Agreement are given
By each of the Companies Listed in Schedule A (each, a "Guarantor")
To Westpac Banking Corporation (ABN 33 007 457 141) ("Westpac") of 15th
Floor, 260 Queen Street, Brisbane, Queensland
For the liabilities and obligations to Westpac of Each Other of the Companies
Listed in Schedule A (each, a "Customer") on the conditions set out in
this Agreement
In exchange for Westpac providing or continuing credit to one or more (whether
jointly or severally) of the Customers, or not taking immediate action to
enforce those Customers' obligations to Westpac.
The liabilities and obligations which the Guarantors guarantee to Westpac are:
All liabilities and obligations of the Customer to Westpac of any kind and for
any reason, now or in the future, whether or not currently contemplated,
including where Westpac obtains rights because of an assignment or transfer
(as amended, the "Guaranteed Obligations") and all money which the Customer may
owe to Westpac, now or in the future, for any reason under or in relation to the
Guaranteed Obligations, whether the money is or becomes owed: (a) by the
Customer alone, or together with one or together with one or more others, or (b)
actually or contingently,
(including amounts referred to in Clause 1) (the "Guaranteed Money").
Each Guarantor's liability as guarantor under this Agreement is unlimited.
2
Definitions and Interpretation
1. Definitions
In this Agreement:
"Administration" includes bankruptcy, administration arising out of mental
illness or incapacity, administration of an insolvent estate, administration of
a corporation, arrangement, receivership or winding up, dissolution or anything
similar.
"Accounts" means profit and loss accounts, balance sheets, cash flow statements
and statements, reports (including auditor's reports and director's reports) and
notes attached to, or intended to be read with, any of them.
"Agreement" includes any document or instrument of any kind, any deed, agreement
or arrangement.
"anyone" includes without limitation anyone who signs this Agreement, the
Customer or anyone else who gives a Security.
"Authorisation" includes any consent, registration, filing, lodgment, agreement,
certificate, notarisation, permission, licence, approval, authority or
exemption, from by or with any Governmental Agency. Where a Governmental Agency
can prohibit or restrict something if it acts within a specified period after
formal notification of it (for example lodgement, registration or filing),
Authorisation includes the expiry of that period without that action.
"Bank Document" means this Agreement, any agreement the performance of which is
secured or guaranteed by this Agreement, any agreement that documents the terms
of any Finance Debt between Westpac and any one or more Guarantors, any
Security, or any agreement or document issued under or entered into in
connection with any of them including without limitation any subordination
agreement. It includes any amendment or replacement of any of them.
"Bill Facility" means the bill acceptance and discount facility described in the
Bill Facility Agreement.
"Bill Facility Agreement" means the Agreement between Collins Restaurants
Management Pty Ltd ACN 093 912 979 and Westpac dated 11 July 2003.
"CFG" means Collins Foods Group Pty Ltd ACN 009 937 900.
"CFG Group" means CFG and its Subsidiaries.
"EBITDA" means, for a period, the aggregate of:
(a) Operating Cash Flow for the period; and
(b) Interest Expense for the period (excluding Interest Expense relating to
Subordinated Debt);
"Event of Default " has the meaning given in clause 13 below.
"Finance Debt" includes any indebtedness, present or future, actual or
contingent in relation to money borrowed or raised or any other financing. It
includes any such indebtedness under or in respect of any of the following: a
Guarantee, a discounting arrangement, a Finance Lease, deferred purchase price
(for more than 90 days), or an obligation to deliver property or provide
services paid for in advance by a financier. It also includes exposure under any
interest, commodity, securities, index, or currency exchange, option, hedge,
swap or other similar arrangement.
3
"Finance Lease" means a Lease which under Australian Accounting Standard 17 is
(or would if that Standard was applied to the relevant company or the Lease was
regarded as a "lease" for the purposes of that Standard be) regarded as a
finance lease or which under any other applicable Accounting Standard would be
regarded as a finance lease.
"Franchisor" means a franchisor under any franchise agreement to which a
Relevant Company is a party.
"Free Cash Flow" means, for any period:
(a) EBITDA for the period; less
(b) capital expenditure for the period which is not to exceed the amount
specified in clause 12.3.
"Governmental Agency" means any government or any governmental,
semi-governmental, statutory, judicial entity or authority. It includes any
self-regulatory organisation established under statute and any stock or futures
exchange.
"Guarantee" means any guarantee, indemnity, letter of comfort or other assurance
against loss. It includes any obligation to be responsible for the solvency or
financial condition of another party, or for payment of a debt or obligation of
another party, either directly or indirectly (for example, by acquiring the debt
or obligation). "Guaranteed" has a corresponding meaning.
"Guaranteed Money" includes at any time:
(a) money which the Customer would have owed Westpac under or in relation to
the Guaranteed Obligations but for some reason as described in Clause 9;
(b) money which the Customer is or may become liable to pay to Westpac as
surety for the liabilities of another person;
(c) money owed because of an assignment to Westpac;
(d) money which will become payable to Westpac by the Customer only if
particular circumstances occur, even though the Customer may not at a
particular time be under an existing obligation to pay that money (for
example damages or compensation).
"Guaranteed Obligations" includes at any time obligations and liabilities which
the Customer would have owed Westpac but for some reason as described in Clause
9.
"Guarantor" means any party which gives any Guarantee or Security Interest in
relation to the obligations of a Customer to Westpac now or in the future.
"Interest Expense" means all gross interest expenses and all other outgoings in
the nature of interest (including, without limitation, Finance Lease charges)
incurred by CFG Group in respect of Total Group Debt as disclosed by the Latest
Financial Information.
"Latest Financial Information" means the most recent consolidated financial
information (after making such adjustments as in the opinion of CFG's auditor
are necessary for the proper determination of the financial condition of CFG
Group.
"Lease" means:
(a) any lease, charter, hire purchase or hiring arrangement of any property;
(b) any other agreement under which any property is or may be used or operated
by a person other than the owner; or
(c) any agreement or arrangement under which any property is or may be managed
or operated for or on behalf of the owner or another person by a person
other than the owner, and the operator or manager or its related body
corporate (as defined in the Corporations Law) (whether in the same or
another agreement or arrangement) is
4
required to make or assure minimum, fixed and/or floating rate payments of
a periodic nature,
but does not include an Operating Lease.
"Lease Rental Obligations" means, for a period, the aggregate amount of all
payments required to be made during the period pursuant to an Operating Lease.
"Material Adverse Effect" means, in the reasonable opinion of Westpac, a
material adverse effect on:
(a) the business, assets, operations, material contracts (taken as a whole) or
condition, financial or otherwise of a Guarantor;
(b) the ability of a Guarantor to perform any of its obligations under a Bank
Document;
(c) the rights or benefits available to Westpac under the Bill Facility
Agreement; or
(d) the effectiveness of, or the validity or enforceability of any Bank
Document.
"Operating Cash Flow" means, for any period, the aggregate of:
(a) operating profit (or loss) before income tax excluding abnormal items; and
(b) amortisation and depreciation as determined in accordance with generally
accepted accounting principles,
of CFG Group.
"Operating Lease" means a Lease which under the Australian Accounting Standard
17 is (or would if that Standard was applied to the relevant Company or the
Lease was regarded as a `lease' for the purposes of that Standard) regarded as
an operating lease or which under any other applicable Accounting Standard would
be regarded as an operating lease.
"Potential Event of Default" means any event, thing or circumstance which with
the giving of notice or passage of time or both would become an Event of
Default. It includes any breach of a Bank Document.
"Reference Lending Rate" means the rate Westpac regularly publishes in major
metropolitan newspapers as its "Reference Lending Rate" or such other rate as
may supercede its Reference Lending Rate.
"Relevant Company" means any Guarantor or Customer or any Subsidiary of any of
them.
"Security" is any Security Interest, claim or other right held by Westpac from
or against the Customer or anyone else in relation to the Guaranteed Obligations
or the Guaranteed Money, now or in the future. It includes the rights against
any Guarantor under this Agreement.
"Security Interest" includes any mortgage, pledge, lien, charge or other
security or any arrangement which gives a creditor a preferential right to an
asset or its proceeds.
"Senior Interest" means, for a period, the Interest Expense incurred during the
period in respect of the Total Senior Debt.
"SIM" means Sizzler International Marks Inc.
"SIM Group" means SIM and its subsidiaries.
"Subordinated Debt" means all Finance Debt (other than Finance Debt payable to
Westpac) which has been subordinated on terms acceptable to Westpac.
"Subsidiary" of a corporation is an entity whose accounts are included in that
corporation's consolidated accounts.
5
Total Group Debt means at any time the aggregate amount (as disclosed by the
Latest Financial Information) of all outstanding Finance Debt of CFG Group other
than trade creditors, TNA's (Transaction Negotiation Authorities), Cheque
Cashing Authorities and Finance Debt owing to Worldwide Restaurant Concepts,
Inc. or any of its subsidiaries which is subordinated to monies owing to
Westpac.
"Total Senior Debt" means all Finance Debt which is not Subordinated Debt.
"Verification Certificate" means a certificate described in any Bank Document
and given by a director or secretary of any Guarantor confirming the matters
described therein.
Where an example is given, it does not limit what else might be included.
Unless otherwise stated all references to money are references to Australian
dollars.
References to any document include references to the document as varied,
supplemented or novated.
References to any gender include all genders.
References to persons include references to any entity including without
limitation any individual or body corporate.
References to the plural include the singular and vice versa.
6
CONDITIONS OF GUARANTEE AND INDEMNITY
2. Guarantee
The Guarantor guarantees to Westpac that the Customer will:
(a) pay to Westpac on time all the Guaranteed Money, and
(b) perform the Guaranteed Obligations.
If the Customer does not pay an amount of the Guaranteed Money when it is due,
Westpac may demand that the Guarantor pay that amount. The Guarantor must then
immediately pay that amount to Westpac. Westpac can make any number of demands
and demand can be made:
(c) for all or part of the Guaranteed Money; and
(d) even if Westpac does not take action to recover the Guaranteed Money from
the Customer.
3. Extent of Guarantee
This Agreement is a guarantee for the full amount of the Guaranteed Money and is
a principal obligation and shall not be treated as ancillary or collateral to
any other right or obligation.
4. Continuing Guarantee
The Guarantor's obligations under this Agreement are continuing. Even though
Westpac receives payments from or makes arrangements with the Customer or anyone
else, the Guarantor is still liable for the Guaranteed Money and the Guaranteed
Obligations now and in the future.
The guarantee hereunder is a guarantee of payment, and not merely of
collectability, and may be enforced against any Guarantor without first
proceeding against the Customer or any collateral for or other guarantees of the
Guaranteed Obligations.
5. Insolvency
If:
(a) the Customer or anyone goes into Administration, and
(b) in the Administration, Westpac makes a claim which in any way relates to any
of the Guaranteed Money or other money owed to Westpac by the Customer,
then if Westpac receives money as a result of making such a claim or for any
other reason, it may set that money aside.
Westpac need not use the money set aside to pay the Guaranteed Money until it
has received enough in respect of the Guaranteed Money (including the amount set
aside) to pay all of the Guaranteed Money. Until that happens, the Guarantor is
fully liable for the Guaranteed Money, as if Westpac had not received the money
set aside.
7
Until the Guaranteed Money has been irrevocably paid and discharged in full, the
Guarantor shall not be entitled either directly or indirectly to prove in any
Administration of the Customer or claim or receive any benefit of any such
Administration.
6. Variation of Arrangements with Customer
This Agreement applies automatically to all dealings between Westpac and the
Customer, whether or not those dealings increase the Guarantor's liability and
whether or not Westpac notifies, or obtains the consent of, the Guarantor
including:
(a) a change in the Guaranteed Obligations or Guaranteed Moneys, or
(b) new or replacement obligations.
7. Unconditional Obligation
The Guarantor's liability under this Agreement is unconditional. It is not
affected by anything which might release the Guarantor from or limit all or part
of its obligations, including if:
(a) Westpac does not exercise any of its Security or rights against the Customer
or anyone,
(b) Westpac makes any arrangement, transaction or compromise with the Customer
or anyone, including one which varies, takes away or limits its Security or
rights or its freedom to exercise them,
(c) Westpac gives the Customer or anyone a full or partial discharge or release
or time to pay or any other concession,
(d) this or any document or Security is temporarily or permanently
unenforceable, is not taken by Westpac, is lost, is not signed by anyone or
is not binding on anyone intended to give a Guarantee or Security,
(e) there is a change in the nature or constitution of the Customer or anyone
including its members,
(f) that or any other Guarantor, the Customer or anyone dies, becomes insolvent
or incapacitated or goes into some form of Administration, or
(g) the Customer or anyone has any claim against Westpac.
8. Refund of Payments
For some reason (for example, a law about Administration or directors' duties)
Westpac may have to refund or give up any money which the Customer or anyone
else has paid to it, or which it recovers in any way. If that happens the
Guarantor owes Westpac all the money that it would have owed if the amount
refunded or given up had never been paid to or received by Westpac. The
Guarantor will do everything it can to restore to Westpac any rights against the
Guarantor or its property which Westpac had before it received the money which
it later had to refund or give up.
8
9. Indemnity
If for any reason (for example, lack of capacity or authority, Administration,
illegality or inadequate or improper execution or stamping):
(a) Westpac has no legal right to recover an amount of the Guaranteed Money from
the Customer or enforce the Guaranteed Obligations, or
(b) the Customer is not bound by obligations that would otherwise have been
Guaranteed Obligations or owe an amount that would otherwise have been
included in the Guaranteed Money,
the amount will be taken to be part of the Guaranteed Money, and the Guarantor
will pay it to Westpac whenever Westpac demands, and the obligations will be
taken to be part of the Guaranteed Obligations. This applies even if Westpac
knew or should have known of the problem, and even if, because of the problem,
the Customer could never have been required to pay Westpac the amount. This is a
principal and independent obligation.
10. Other Security
Any other Security held by Westpac for all or part of the Guaranteed Money or
the Guaranteed Obligations is independent of this Agreement. Nothing affecting
any Security will affect the Guarantor's liability under this Agreement. Westpac
can enforce this Agreement and any Security in any order it wishes, or can
choose not to enforce any Security at all.
Until the Guaranteed Money is paid in full, the Guarantor cannot claim the
benefit of, and has no right to, the Security held by Westpac.
9
NEGATIVE PLEDGE AND FINANCIAL RATIO COVENANTS
11. Representations and Warranties
Each Guarantor makes the following representations and warranties to the extent
they relate to it.
(a) (Status) Each Relevant Company is incorporated in the place stated by the
Guarantor to Westpac. Any Bank Document to which a Relevant Company is
expressed to be a party is its binding obligation enforceable against it,
and does not breach any document or agreement binding on it or any other
Guarantor or Relevant Company or any law or the memorandum and articles of
association or any other constituent documents of the Relevant Company.
(b) (Authority) It has the power to enter into each Bank Document to which it is
a party and to carry out any transaction or obligation contemplated by it.
Furthermore, no further corporate action is necessary for it to enter into
the Bank Documents to which it is party and draw under any facility provided
to it under a Bank Document. Each person held out in a Verification
Certificate or other document signed by a secretary or director as having
that authority, is authorised to sign a draw down or other notice on its
behalf.
(c) (Information) All information provided by it to Westpac is or was true when
given and is not misleading by omission or otherwise in all material
respects.
(d) (Disclosure) It has no material obligation other than those incurred in the
ordinary course of day to day trading (whether to pay money or otherwise and
whether or not contingent) to any person outside of the CFG Group which it
has not disclosed in writing to Westpac prior to the date of this Agreement.
(e) (Accounts) Its holding company's most recent consolidated and unconsolidated
accounts give a true and fair view in all material respects under generally
accepted accounting principles. There has been no material adverse change or
Material Adverse Effect since the period they cover. They disclose all
material Finance Debt and material contingent liabilities.
(f) (Litigation) No litigation, tax claim, dispute or other proceeding is
current or, to its knowledge, threatened, which is likely to have a Material
Adverse Effect.
(g) (No trustee) No Relevant Company is a trustee, except for a Subsidiary which
is a trustee of its superannuation funds and except for any implied
constructive or resulting trust which arises under its ordinary course of
business.
(h) (No default) There is no subsisting Event of Default, or Potential Event of
Default.
(i) (Other Security Interests) The execution and performance of this Agreement
and each other Bank Document to which it is a party does not result in a
Security Interest (other than under a Bank Document) being created on, or a
charge crystallising over, its or any other Guarantor's or Relevant
Company's assets.
(j) (Solvency) It is solvent and there are reasonable grounds to expect that, on
execution of each Bank Document to which it is a party, it will continue to
be able to pay all its debts as and when they become due and payable.
10
(k) (Environmental Law) No environmentally hazardous substance affects any of
its property the subject of a Security in breach of any law or the
requirements of any Governmental Agency.
Without limiting clause 12.1(a)(iv)(B), the above representations and warranties
are repeated on each day on which a Customer draws down or otherwise makes use
of any facility provided by Westpac under a Bank Document.
12. Undertakings
CFG undertakes as follows unless Westpac otherwise consents in writing.
12.1 Information
(a) (Information) It will provide the following to Westpac:
(i) Audited consolidated annual Accounts (not later than 120 days from
balance date);
(ii) Consolidated annual projections and budgets (not later than 120
days from balance date);
(iii) Consolidated quarterly management Accounts on a rolling 12 month
basis (within 45 days after the end of the quarter),
which relate to CFG Group;
(iv) a certificate by two of its directors (not later than 45 days from
the end of each accounting quarter and on production of the
audited consolidated annual accounts) including the following
representations/information:
(A) that nothing has occurred which constitutes an Event of
Default or Potential Event of Default;
(B) that the representations and warranties by each Guarantor in
this Agreement are true in all material respects as though
they had been made at the date of the certificate in respect
of the facts and circumstances then subsisting;
(C) that it and each other company in the CFG Group has complied
with and continues to comply with the financial undertakings
in clauses 12.2 (Negative Pledges) and 12.3 (Financial
Covenants); and
(D) CFG Group's consolidated:
(1) interest rate and foreign exchange exposures at the time
of the report and details of hedging or other risk
reduction strategies applied by management to the
exposures;
(2) balance sheet;
(3) profit and loss account;
(4) cash flow statement; and
(5) performance against budget and revised forecast for the
month, quarter, year to date and corresponding period of
the preceding year,
11
In the case of audited Accounts, the certificate should have
attached a certificate by the auditor as to compliance with the
financial undertakings;
(v) details of any material property or real estate acquired or
purchased by a Relevant Company;
(vi) promptly, all documents issued by it to any stock exchange or
shareholders;
(vii) promptly, details of any substantial dispute between a Relevant
Company and a Governmental Agency, or a proposal by a
Governmental Agency to acquire compulsory all or a substantial
part of any Relevant Company's assets;
(viii) promptly, details of any substantial dispute between a Relevant
Company and a Franchisor;
(ix) promptly, notice of any litigation to which it or a Relevant
Company is a party which may have a Material Adverse Effect;
(x) promptly, any other information reasonably requested by Westpac;
(xi) promptly, any other information in relation to the financial
condition or business of the CFG Group which Westpac may
reasonably request; and
(xii) promptly, any correspondence between a Relevant Company and a
Government Agency which is likely to have a Material Adverse
Effect on the CFG Group's business or assets.
(b) (Quarterly Meetings) At Westpac's request, it will meet with Westpac
quarterly to review the consolidated quarterly management Accounts
(within 14 days after receipt by Westpac of the consolidated quarterly
management Accounts);
(c) (Notice of Default) It will immediately notify Westpac as soon as it
becomes aware of any Event of Default or Potential Event of Default.
(d) (Insurance Policies) It will deliver to Westpac up-to-date copies of
insurance policy(ies) insuring all assets forming part of Westpac's
Security for full replacement value against fire and other risks duly
signed by the insurance company(ies) and having the interest of Westpac
noted as mortgagee.
12.2 Negative Pledges
(a) (Negative Pledge) It will not create or allow, nor permit any Relevant
Company to create or allow, a Security Interest over any of its assets or
enter any other transaction or arrangement which gives a creditor a
preferential right to an asset owned or used by it except a lien or
statutory charge which arises by operation of law in the ordinary course
of its day to day business and does not secure Finance Debt, but only so
long as it pays the amount secured promptly, except where that amount is
being contested in good faith;
(b) (Assets) It will not dispose, nor permit any Relevant Company to dispose,
of all or any part of its assets or an interest in them or agree or
attempt to do so (whether in one or more related or unrelated
transactions) except:
(i) disposals in the ordinary course of its day to day trading;
(ii) disposal of an asset with a market value of less than $100,000;
(iii) disposal of an asset for the purpose of a sale and leaseback;
(iv) where the asset sold has a market value of more than
$100,000, Westpac has consented to the disposal of the
asset or the market value of the
12
asset and all other assets with a market value exceeding $100,000
disposed of during a period does not exceed the maximum aggregate
amount approved by Westpac for the period; and
(v) disposal of shares by CFG in Sizzler Asia Holdings, Inc under the
terms of an option agreement between CFG and SIM.
Where a Subsidiary issues shares and its holding company does not
acquire all of the shares, or a rateable portion of its shares according
to its then shareholding, the holding company will be taken to have
disposed of the shares that it does not acquire.
(c) (Change of business) It will ensure that the Relevant Companies will not
substantially change the nature of the main business or businesses
carried on by them as a whole, and that no Relevant Company will take
any action which would have that effect, whether by disposal,
acquisition or otherwise.
(d) (New subsidiary) It will ensure that no Relevant Company will create or
acquire a new subsidiary unless within 3 months that Subsidiary becomes
a party to a Guarantee in relation to the Bank Documents satisfactory to
Westpac, and provides evidence satisfactory to Westpac that it is bound
by the Guarantee.
(e) (Arms length dealings) It will ensure that no Relevant Company will deal
with any other party except at arms length for full commercial
consideration in the ordinary course of business.
(f) (Partnership) It will not enter into any partnership without Westpac's
consent. For this purpose Westpac consents to the existing arrangements
with Sizzler Steak Seafood Salad Pte Ltd in Singapore.
(g) (No inter company loans) It will ensure that no Relevant Company will
make or receive:
(i) any Finance Debt other than Subordinated Debt; or
(ii) any payment in connection with any Finance Debt other than
Subordinated Debt;
except as permitted by a Bank Document.
12.3 Financial Covenants
CFG Group will maintain the following financial ratios on a consolidated basis
(unless Westpac otherwise agrees to vary them, whether temporarily or
otherwise):
(i) (Total Senior Debt/Free Cash Flow) at all times the ratio of Total
Senior Debt to Free Cash Flow is not to exceed three times;
(ii) (Fixed Charge Cover) the ratio of (EBITDA and Lease Rental Obligations)
to (Senior Interest plus Lease Rental Obligations) on a twelve monthly
rolling basis is not to be less than 1.7 times.
(iv) (Capital Expenditure) It will ensure that capital expenditure of CFG
Group (including the costs of assets subject to any Lease) does not
exceed:
. $11,500,000 in its financial year ending 30 April 2004;
. $15,000,000 in each of its financial years ending 30 April 2005
until 30 April 2007; and
. $15,500,000 in each of its financial years thereafter,
without Westpac's prior written consent.
13
(v) (Total Senior Debt Cap) It will ensure that the Total Senior Debt does
not at any time exceed $50,000,000.00.
(vi) (Dividends) It will ensure that dividends declared or paid by CFG do not
exceed:
. $1,500,000 in its financial year ending 30 April 2004;
. $2,000,000 in its financial year ending 30 April 2005;
. $2,500,000 in its financial year ending 30 April 2006;
. $3,000,000 in its financial year ending 30 April 2007; and
. $3,500,000 in its financial year ending 30 April 2008,
and that no dividend is paid from any source other than from Free Cash
Flow and after payment of Interest Expense, income tax and scheduled
principal repayments under the Bill Facility Agreement.
Compliance with the above financial covenants is to be determined where
applicable on a twelve monthly rolling basis on the last day of each operational
quarter by reference to the information provided to Westpac under clause
12.1(a).
12.4 General Undertakings
(a) (Payments by CFG Group) It will ensure that no company in the CFG Group
makes, without Westpac's prior written consent, any payments to Worldwide
Restaurant Concepts, Inc., Restaurant Concepts International Inc, Sizzler
Australia Pty Ltd, Collins Property Development Pty Ltd, Collins Finance
and Management Pty Ltd, Collins Foods Australia Pty Ltd, or any company
in the SIM Group, other than the following permitted payments:
(i) an annual payment not exceeding 3.5% of the retail sales revenue
of Sizzler Restaurants Group Pty Ltd for royalties;
(ii) payments in aggregate not exceeding $500,000 per annum for amounts
payable in the ordinary course of business;
(iii) rental payments owing to Collins Property Development Pty Ltd
under existing leases of real property; and
(iv) repayment of Subordinated Debt owing to Restaurant Concepts
International Inc of a principal amount of A$20,800,000 plus
accrued interest on that amount.
(b) (Change in Management) CFG will immediately notify Westpac in writing if
there is a change in the person holding the position of the chief
executive officer of CFG or any other significant change in the
management of any company in the CFG Group.
12.5 Undertakings by Guarantors
Each Guarantor gives the undertakings contained in this Clause 12, other than
the undertakings contained in Sub-clauses 12.1 (a)(i) - (v), 12.1(b) and 12.1(d)
(which are given by CFG alone) unless Westpac otherwise consents in writing.
14
13. EVENTS OF DEFAULT
Each of the following is an Event of Default (even if outside the control of any
Relevant Company) except as stated below.
(a) (Obligations under transaction documents) Any Relevant Company fails to
do any of the following (to the extent applicable to it):
(i) pay principal under a Bank Document or any interest or other
amount under a Bank Document on the due date;
(ii) comply with any of its financial undertakings in clauses 12.2
(Negative Pledges), 12.3 (Financial Covenants); or
(iii) comply with any other material obligation in the Bank Documents
and, if that failure can be remedied within 30 days of written
notice from Westpac, it does not remedy that failure within 30
days of written notice from Westpac of that failure.
(b) (Misrepresentation) A representation or statement by or on behalf of a
Relevant Company in a Bank Document, or in a document provided under it,
is misleading in a material respect.
(c) (Cross Default) Finance Debt of a Relevant Company totalling at least
$50,000 or an equivalent sum in any currency:
(i) is not paid when due (or within an applicable grace period)
except where it is being contested in good faith; or
(ii) becomes due and payable before its stated maturity, except as a
result of an exercise of a prepayment right in the absence of
default; or
(iii) an obligation to provide finance to a Relevant Company totalling
at least that amount is terminated except as a result of
voluntary termination in the absence of default, or
an event of default as defined in any other Bank Document occurs.
(d) (Winding up) An application or order is made, or a resolution is passed
or proposed in a notice of meeting, for:
(i) the winding up, dissolution, official management or
administration of a Relevant Company or any analogous process; or
(ii) an arrangement compromise or composition with its creditors or a
class of them, or
(iii) an application is made for any of the above except one which is
frivolous and vexatious.
(e) (Enforcement against assets) A receiver, receiver and manager,
administrator or similar officer is appointed over a Relevant Company or
a material asset or any material portion of its assets. A Security
Interest is enforced, or distress or other execution levied, against a
material asset or any material portion of the assets of a Relevant
Company.
(f) (Reduction of capital) A Guarantor or Customer reduces its capital,
cancels its uncalled capital or buys back its shares to an extent which
is likely to cause a breach of the financial undertakings in clause 12.
(g) (Insolvency) A Relevant Company is insolvent or is deemed or presumed
insolvent under any applicable law. A Relevant Company ceases or
threatens to
15
cease carrying on its business or paying its debts. A Relevant Company
disposes or threatens to dispose of a substantial part of its assets.
(h) (Bank Documents) All or a material part of a Bank Document is for any
reason:
(i) terminated or of no force or limited force; or
(ii) terminable at the option of the Relevant Company, except as
expressly provided under that Bank Document; or
(iii) a Relevant Company alleges that it is so.
(i) (Investigation) An investigator or any other form of enquiry is
instituted under the Corporations Law or similar legislation into the
affairs of a Relevant Company which in the reasonable opinion of Westpac
is likely to have a Material Adverse Effect.
(j) (Revocation of Authorisation) An Authorisation which is material to the
business of a Guarantor or to the performance by the Relevant Companies
of the Bank Documents or their validity or enforceability ceases to have
effect and is not replaced by another Authorisation acceptable to
Westpac.
(k) (Material Adverse Change) There are any other circumstances including a
material adverse change to the business assets or financial condition of
the CFG Group as a whole or the Relevant Companies taken as a whole which
may in the opinion of Westpac have a Material Adverse Effect.
(l) (Control) Any Relevant Company or its holding company becomes controlled
by another person or there is a substantial change in the control of CFG.
(m) (Funding applied for any other purpose) Funding by Westpac to any
Relevant Company is applied for any purpose other than the purpose it was
provided for.
(n) (Prior interest not disclosed) A Relevant Company did not disclose to
Westpac in writing, before or at the time this Agreement was executed,
the fact that a Security Interest, trust, option or other third party
right or interest affects its property, assets and rights the subject of
a Security.
(o) (Change in Constituent Documents) Any Relevant Company alters its
Memorandum or Articles of Association or other constituent documents in
any material way without the consent of Westpac.
(p) (Compulsory Acquisition):
(i) All or any material part of any Relevant Company's property the
subject of a Security is compulsorily acquired by or by order of
any Governmental Agency or under any law and the amount of
compensation received or to be received by that Relevant Company
in respect of that acquisition is, in the opinion of Westpac,
substantially less than the value of the property acquired or
that amount is not dealt with in accordance with this Agreement;
(ii) Any Governmental Agency orders the sale, vesting or divesting of
all or any material part of a Relevant Company's property the
subject of a Security and the amount of any compensation received
or to be received by that Relevant Company in respect of that
sale, vesting or divesting is, in the opinion of Westpac,
substantially less that the value of the property sold, vested or
divested or that amount is not dealt with in accordance with this
Agreement; or
(iii) Any Governmental Agency takes any step for the purposes of any of
the above,
16
the result of which (whether individually or cumulatively) has a Material
Adverse Effect).
Nothing in paragraph (d), (f) or (l) is an Event of Default if done for the
purpose of solvent reorganisation previously approved by Westpac.
14. Westpac's Remedies and Powers
14.1 Event of Default
In addition to any other rights provided by law or any Bank Document at any time
after an Event of Default (whether or not it is continuing) Westpac may do
either or both of the following:
(a) terminate any facility provided under any Bank Document; and
(b) by written notice require the Customer to repay all amounts lent or
provided to it under any Bank Document (subject to the provisions of the
Bank Document), and all other amounts actually or contingently
outstanding by it under this Agreement or any Bank Document, and the
respective Customer must pay them immediately.
(c) by written notice require the Guarantor to pay all the amounts Guaranteed
by it under this Agreement or any Bank Document (whether or not
contingently due), and the respective Guarantor must pay them
immediately.
If an amount is paid to Westpac to cover an amount contingently owing, Westpac
will hold that amount in an interest bearing account until the amount becomes
actually owing or ceases to be contingently owing. Westpac will then apply the
amount in the account (including interest) in payment of the amount actually
owing and return the balance to the relevant Guarantor.
14.2 No waiver
No failure to exercise a right or power, and no delay in exercising a right or
power, operates as a waiver. Waivers must be in writing.
17
GENERAL PROVISIONS
15. Payments
15.1 Payments
The Guarantor will make all payments under this Agreement when Westpac demands
them and without deducting any amounts the Guarantor may claim from Westpac.
Payments must be in cleared funds and free of any set-off or deduction, except
for taxes where required by law. The Guarantor must pay:
(a) in the currency in which the amounts demanded are denominated, and
(b) at Westpac's address set out on the front cover or any other address
which Westpac gives from time to time.
If any amount is received by Westpac in a currency other than that in which it
was demanded, the Guarantor will compensate Westpac for any exchange loss.
If the Guarantor is required to deduct any tax from any payment (except a tax on
Westpac's overall net income), then:
(a) it must pay that amount to the appropriate authority and promptly give
Westpac evidence of payment, and
(b) the amount payable is increased so that (after deducting that tax, and
paying any taxes on the increased amount) Westpac receives the same
amount it would have received had no deduction been made.
15.2 Time of payment
Unless otherwise stated, amounts payable under any of the Clauses 16 (Yield
Protection) and 17 (Additional Payments), are payable within two Business Days
of demand.
15.3 Interest
The Guarantor will pay interest on any amount which has been demanded by Westpac
but remains unpaid at the rate at which overdue amounts bear interest under the
Bank Documents. If several rates are provided for in the Bank Documents,
interest under these conditions will be payable at the highest of those rates.
Interest will accrue each day on each amount due under a Bank Document but
unpaid. Unless otherwise specified in the Bank Document, the rate will be
Westpac's Reference Lending Rate then applicable plus:
(a) in the case of a facility governed by a Bank Document, any margin applied
by Westpac under the relevant Bank Document plus 2% per annum; and
(b) otherwise, 4% per annum.
That interest accrues before and after any judgment. Unless it does so more
often, Westpac will be taken to have debited monthly the Guarantor's account
with accrued interest under this paragraph. That interest will then itself bear
interest.
Despite any other provision in any other Bank Document, but only for the purpose
of calculating interest, if Westpac is paid moneys by one or more of the
Guarantors under a Bank Document and Westpac, although being entitled to apply
those moneys to reduce the Secured Moneys, decides instead to deposit the moneys
into one or more suspense
18
accounts, interest on the Secured Moneys will be calculated on the difference
between the Secured Moneys and the aggregate of all amounts held in such
suspense account(s).
16. Yield Protection
Whenever Westpac determines that a Change in Law (as defined below) has the
effect of:
(a) increasing its costs of funding or maintaining a facility under a Bank
Document, or reducing its return or amounts received in respect of the
facility; or
(b) reducing its return on capital allocated to a facility under a Bank
Document (including because more capital needs to be allocated to the
facility or cannot be used elsewhere),
then it will promptly notify the relevant Guarantor, who must pay Westpac the
amount Westpac certifies is necessary to compensate it. That certificate will
give an outline of the calculation, and will be conclusive and bind the
Guarantor in the absence of manifest error.
If the Guarantor so requests, Westpac will negotiate in good faith with a view
to finding a means of minimising the effect, but it is not a defence that the
effect could have been avoided or minimised.
A Change in Law is the introduction of, or a change in, any law, official
directive, ruling or request or a change in its interpretation. If it does not
have the force of law, it must be one with which responsible Australian banks
would comply. Without limitation, it includes any occurrence which is a "Change
in Law" as described above and which relates to capital adequacy, special
deposit, liquidity, reserve, prime assets, tax or prudential requirements
(except a change in tax on overall net income).
17. Additional Payments
17.1 Indemnity and costs
Each Guarantor will indemnify Westpac against any liability, loss, cost or
expense (including legal costs and goods and services tax on a full indemnity
basis and the cost to Westpac of in house counsel at reasonable rates) it incurs
in or as a result of an Event of Default or Potential Event of Default or a
breach of its obligations, or actual or contemplated enforcement of this
Agreement or any Bank Document to which it is a party or any Security.
17.2 Currency Indemnity
Each Guarantor will indemnify Westpac if any amount payable under or in
connection with a Bank Document is received in a currency which is different
from that in which it is required to be paid under this Agreement. This
indemnity applies whatever the reason for receipt of the amount in a different
currency.
17.3 Expenses
The Guarantor will pay:
(a) all stamp, transaction and other similar duties and charges, plus
(b) all external legal costs which Westpac incurs (on a full indemnity
basis),
19
in relation to this Agreement or any Bank Document to which it is a party and
any Security and any transaction under them. This includes financial
institutions duty and debits tax.
The Guarantor will on a full indemnity basis pay all amounts which Westpac
incurs in relation to the enforcement of this Agreement or any Security.
Each Guarantor will also pay any fines and penalties unless they result from a
failure by Westpac to lodge a document for stamping in sufficient time, having
received from the Guarantor the amount of stamp duty in good time.
17.4 Goods and Services Tax
(a) All payments to be made by the Guarantor or Customer under or in
connection with this Agreement have been calculated without regard to
GST.
If all or part of any such payment is the consideration for a taxable
supply for GST purposes then, when the Guarantor or Customer makes the
payment:
(i) it must pay to Westpac an additional amount equal to that payment
(or part) multiplied by the appropriate rate of GST; and
(ii) Westpac will promptly provide it with a tax invoice complying with
the GST law.
(b) Where under this letter or a Bank Document the Customer or a Guarantor is
required to reimburse or indemnify for an amount, the Customer or the
Guarantor (as the case may be) will pay the relevant amount (including
any sum in respect of GST) less any GST input tax credit Westpac
determines that it is entitled to claim in respect of that amount.
(c) Any word or expression used in this clause which is defined in A New Tax
System (Goods and Services Tax) Act 1999 (Cth) has the same meaning in
this document.
18. General
18.1 Term
This Agreement will continue so long as there is any liability, obligation,
document or agreement between Westpac and any Guarantor or Westpac releases it.
18.2 Statements
The Guarantor agrees that a written statement by Westpac, setting out the amount
which the Guarantor owes under this Agreement, is sufficient proof that the
Guarantor owes the amount stated, unless it is proved wrong.
18.3 Notices
Any notice, demand, statement, certificate or other communication by Westpac
under any Bank Document may be given by any person whose title includes the word
"manager", "counsel", "head" or "president", or any attorney authorised to do
so.
Notices may be sent by facsimile, post or any other means to the recipient's
address or number set out on the signature page of this Agreement or in any
other address or number notified to the sender by the recipient.
20
Notices will be taken to have been given if delivered or left at that address on
the date on which it is delivered or left.
18.4 Agent for Service of Process
Each Guarantor having its registered office outside Queensland:
(a) irrevocably appoints Collins Restaurants Management Pty Ltd ACN 093 912
979 (`CRM') as its agent for service of process relating to any
proceedings before the courts and appellate courts of the State of
Queensland in connection with each Bank Document; and
(b) agrees that failure by CRM to notify it of the process will not
invalidate the proceedings concerned.
19. Appropriation and Set-off
19.1 Appropriation
Any money paid to Westpac to reduce the Customer's debts to Westpac may be used
to pay off any part of the Customer's debts which Westpac chooses.
19.2 Set-Off
If the Guarantor has any money in any account with Westpac, Westpac may use it
to pay money the Guarantor owes to Westpac under this Agreement, but it need not
do so. It can convert currencies using its normal procedures.
To the maximum extent allowed by law, the Guarantor gives up any right to set
off any amounts Westpac owes it against amounts owed by the Guarantor under this
Agreement.
20. Assignment and Transfer
Westpac can transfer its rights under this Agreement to someone else. If Westpac
does, this Agreement will apply to the transferee as if it were Westpac. To the
maximum extent allowed by law, any transfer will be free of any set off, equity
or cross-claim which but for this paragraph the Guarantor would have had against
Westpac or the transferee of this Agreement. Westpac may disclose information
concerning the Guarantee or the Guarantor to a potential transferee or
sub-participant of this Agreement, the Guaranteed Obligations or the Guaranteed
Money.
No Guarantor may assign its rights under any Bank Document.
21. Reliance
The Guarantor acknowledges that it did not sign this Agreement relying on any
promises or statements made by Westpac. It does not matter whether they were
made in response to any question or not.
The only terms which apply to this Agreement are contained in it.
Westpac is not required to do anything in relation to, or tell the Guarantor
anything concerning, the Customer's financial and business condition and affairs
or its transactions with Westpac.
21
22. Multiple Parties
22.1 Multiple Guarantors
The terms of this Agreement apply to each Guarantor individually and to all
Guarantors as a group. Each Guarantor is individually liable for the full amount
of the Guaranteed Moneys, even if one or more of the others:
(a) has not signed or is not bound by it, or
(b) in the future stops being liable (for example, because Westpac releases
that Guarantor).
Westpac can demand payment from one or more of the Guarantors without demanding
it from the others.
References to "the Guarantor", "a Guarantor" or "Guarantors" shall be construed
accordingly.
22.2 Multiple Customers
The terms of the guarantee and this Agreement apply to each Customer
individually and to all of them as a group. Without limiting the above, this
Agreement applies to money owed by any one or more of them.
References to "the Customer", "a Customer" or "Customers" shall be construed
accordingly
23. New Guarantors
A party can join this Agreement as a guarantor. To do so the party must sign an
accession agreement in the form attached. Upon signing the agreement the party
will automatically become a guarantor under this Agreement and it, as well as
the other parties to this Agreement, will have the same obligations and rights
as if the party were named in it as a Guarantor and Customer, and as if the
party had signed this Agreement.
24. Law and Jurisdiction
This Agreement is governed by Queensland law. The Guarantor accepts the
non-exclusive jurisdiction of the courts having jurisdiction there.
Any law that allows the Guarantor or the Customer to avoid or defer payment, or
that gives the Guarantor or Customer rights not contained in this Agreement,
does not apply, unless the law is one which applies despite an agreement to the
contrary. If any part of this Agreement is prohibited or unenforceable, it will
not affect the remaining part.
25. Counterparts
This Agreement may be executed in any number of counterparts. All of such
counterparts, taken together, shall be deemed to constitute the one instrument.
22
26. Attorneys
Each attorney executing this agreement states that he has no notice of
revocation of his power of attorney.
27. Inconsistency
To the extent that there is any express inconsistency between the terms of this
Agreement and any other Bank Document the terms of this Agreement shall prevail.
23
SCHEDULE A -- GUARANTORS
------------------------
Name of Company ACN/ARBN/ Postal Address
Place of
Incorporation
Collins Foods Group Pty Ltd 009 937 900 16 Edmondstone Street,
Newmarket, Qld 4051
Collins Finance and Management Pty Ltd 009 996 721 16 Edmondstone Street,
Newmarket, Qld 4051
Collins Foods Australia Pty Ltd 009 914 103 16 Edmondstone Street,
Newmarket, Qld 4051
Collins Foods International Pty Ltd Nevada 16 Edmondstone Street,
Newmarket, Qld 4051
Collins International Inc Delaware 16 Edmondstone Street,
Newmarket, Qld 4051
Collins Property Development Pty Ltd 010 539 616 16 Edmondstone Street,
Newmarket, Qld 4051
Collins Restaurants NSW Pty Ltd (added as a 094 786 142 16 Edmondstone Street,
guarantor by Accession Agreement dated 6/3/01) Newmarket, Qld 4051
Furnace Concepts Australia Corp. 070 065 468 16 Edmondstone Street,
Nevada Newmarket, Qld 4051
Furnace Concepts International Inc Nevada 16 Edmondstone Street,
Newmarket, Qld 4051
Collins Restaurants Queensland Pty Ltd 009 988 381 16 Edmondstone Street,
Newmarket, Qld 4051
Restaurant Concepts of Australia Pty Ltd Nevada 16 Edmondstone Street,
(Deregistered in Australia 24-04-96, code s350, Newmarket, Qld 4051
Formerly A.R.B.N. 010 761 770)
Restaurant Concepts International Inc Nevada 16 Edmondstone Street,
Newmarket, Qld 4051
Sizzler Australia Pty Ltd 010 060 876 16 Edmondstone Street,
Newmarket, Qld 4051
Sizzler Franchise Development Limited Bermuda 16 Edmondstone Street,
Newmarket, Qld 4051
Sizzler International Marks Inc. Delaware 16 Edmondstone Street,
Newmarket, Qld 4051
Sizzler New Zealand Limited Nevada 16 Edmondstone Street,
Newmarket, Qld 4051
Sizzler Restaurant Services Inc Nevada 16 Edmondstone Street,
Newmarket, Qld 4051
Sizzler South Pacific Pty Ltd 010 713 852 16 Edmondstone Street,
Nevada Newmarket, Qld 4051
Sizzler South-East Asia Inc Nevada 16 Edmondstone Street,
Newmarket, Qld 4051
24
Name of Company ACN/ARBN/ Postal Address
Place of
Incorporation
16 Edmonstone Street,
Newmarket, Qld 4051
Sizzler Asia Holdings, Inc Delaware
16 Edmondstone Street,
Collins Restaurants Management Pty Ltd 093 912 979 Newmarket, Qld 4051
16 Edmondstone Street,
Newmarket, Qld 4051
Sizzler Restaurants Group Pty Ltd 010 102 388
25
SCHEDULE B -- FORM OF ACCESSION AGREEMENT
THIS ACCESSION AGREEMENT is made the .............. day of ............ 20....
By [*] A.C.N. [*] of [*] (the "New Guarantor")
And Each of the companies listed in the Schedule (each an "Existing Guarantor")
To Westpac Banking Corporation A.R.B.N. 007 457 141 ("Westpac").
This Accession Agreement is entered into in exchange for Westpac giving credit,
or continuing to provide it, or not taking immediate action to enforce the
obligations of any Customer referred to in the Cross Guarantee and Indemnity and
Negative Pledge with Financial Ratio Covenants dated [*] between Westpac and the
Existing Guarantors (as amended from time to time, the "Guarantee") and for
other good and valuable consideration.
Expressions defined in the Guarantee have the same meaning in this Accession
Agreement.
The New Guarantor and the Existing Guarantors agree with and acknowledge to
Westpac:
(a) That the New Guarantor shall as and from the date of this Accession
Agreement be subject in all respects to all those obligations to Westpac,
and the Existing Guarantors shall have the same liability with respect to
the indebtedness of the New Guarantor as if the New Guarantor was a
Guarantor and Customer respectively named as a party to the Guarantee and
all the terms of the Guarantee shall apply to and bind the Guarantors
(including the New Guarantor) accordingly.
(b) That at the time of executing this Accession Agreement the New Guarantor is
aware that the Existing Guarantors have already incurred liabilities to
Westpac and that the existence of such liabilities is not to diminish or
release in any way the liabilities of the New Guarantor arising under
clause (a) of this Accession Agreement or Westpac's rights powers and
remedies arising because of this Accession Agreement.
(c) [That at the time of executing this Accession Agreement the Existing
Guarantors are aware that the New Guarantor has already incurred
liabilities to Westpac and that the existence of such liabilities is not to
diminish or release in any way the liabilities of the Existing Guarantors
arising under the Guarantee.] [insert if the New Guarantor has existing
liabilities to Westpac]
This Agreement may be executed in any number of counterparts. All of such
counterparts, taken together, shall be deemed to constitute the one instrument.
Clause 18.4 of the Guarantee applies to this Agreement as if stated in it (with
"Guarantor" being read to include the New Guarantor).
Schedule
--------
Name of Company ACN/ARBN/ Postal Address
Place of
Incorporation
Collins Foods Group Pty Ltd 009 937 900 16 Edmondstone Street,
Newmarket, Qld 4051
Collins Finance and Management Pty Ltd 009 996 721 16 Edmondstone Street,
Newmarket, Qld 4051
26
Name of Company ACN/ARBN/ Postal Address
Place of
Incorporation
Collins Foods Australia Pty Ltd 009 914 103 16 Edmondstone Street,
Newmarket, Qld 4051
Collins Foods International Pty Ltd 009 980 250 16 Edmondstone Street,
Nevada Newmarket, Qld 4051
Collins International Inc Delaware 16 Edmondstone Street,
Newmarket, Qld 4051
Collins Property Development Pty Ltd 010 539 616 16 Edmondstone Street,
Newmarket, Qld 4051
Collins Restaurants NSW Pty Ltd (added as a 094 786 142 16 Edmondstone Street,
guarantor by Accession Agreement dated 6/3/01) Newmarket, Qld 4051
Furnace Concepts Australia Corp. 070 065 468 16 Edmondstone Street,
Nevada Newmarket, Qld 4051
Furnace Concepts International Inc Nevada 16 Edmondstone Street,
Newmarket, Qld 4051
Collins Restaurants Queensland Pty Ltd 009 988 381 16 Edmondstone Street,
Newmarket, Qld 4051
Restaurant Concepts of Australia Pty Ltd Nevada 16 Edmondstone Street,
(Deregistered in Australia 24-04-96, code s350, Newmarket, Qld 4051
Formerly A.R.B.N. 010 761 770)
Restaurant Concepts International Inc Nevada 16 Edmondstone Street,
Newmarket, Qld 4051
Sizzler Australia Pty Ltd 010 060 876 16 Edmondstone Street,
Newmarket, Qld 4051
Sizzler Franchise Development Limited Bermuda 16 Edmondstone Street,
Newmarket, Qld 4051
Sizzler International Marks Inc. Delaware 16 Edmondstone Street,
Newmarket, Qld 4051
Sizzler New Zealand Limited Nevada 16 Edmondstone Street,
Newmarket, Qld 4051
Sizzler Restaurant Services Inc Nevada 16 Edmondstone Street,
Newmarket, Qld 4051
Sizzler South Pacific Pty Ltd 010 713 852 16 Edmondstone Street,
Nevada Newmarket, Qld 4051
Sizzler South-East Asia Inc Nevada 16 Edmondstone Street,
Newmarket, Qld 4051
Sizzler Asia Holdings, Inc. Delaware 16 Edmonstone Street,
Newmarket, Qld 4051
27
Name of Company ACN/ARBN/ Postal Address
Place of
Incorporation
Collins Restaurants Management Pty Ltd 093 912 979 16 Edmonstone Street
Newmarket, Qld 4051
Sizzler Restaurants Group Pty Ltd 010 102 388 16 Edmonstone Street,
Newmarket, Qld 4051
28
EXECUTED AS AN AGREEMENT in
The Common Seal of )
) ..............................
was duly affixed by authority of the Board of ) Director
Directors in the presence of )
)
(insert name) ............................... ) ..............................
and ) Director/Secretary
)
(insert name) ............................... )
[One execution to be included for each New Guarantor and each Existing
Guarantor]
i
EXECUTION
---------
EXECUTED AS AN AGREEMENT in
ON
The Common Seal of )
)
Collins Foods Group Pty Ltd )
)
was duly affixed by authority of the Board of ) ..............................
Directors in the presence of ) Authorised officer
)
)
(insert name) ............................... )
) ..............................
and ) Authorised officer
)
)
(insert name) ............................... )
)
The Common Seal of )
)
Collins Finance and Management Pty Ltd )
) ..............................
was duly affixed by authority of the Board of ) Authorised officer
Directors in the presence of )
)
)
(insert name) ............................... )
) ..............................
and ) Authorised officer
)
)
(insert name) ...............................
The Common Seal of )
)
Collins Foods Australia Pty Ltd )
)
was duly affixed by authority of the Board of ) ..............................
Directors in the presence of ) Authorised officer
)
)
(insert name) ............................... )
)
and ) ..............................
) Authorised officer
)
(insert name) ............................... )
ii
The Common Seal of )
)
Collins Foods International Pty Ltd )
) ..........................
was duly affixed by authority of the Board of )
Directors in the presence of ) Authorised officer
)
)
)
(insert name) ............................... )
)
and ) ..........................
)
) Authorised officer
)
(insert name) ............................... )
The Common Seal of )
)
Collins International Inc. )
) ..........................
was duly affixed by authority of the Board of )
Directors in the presence of ) Authorised officer
)
)
)
(insert name) ............................... )
)
and ) ..........................
)
) Authorised officer
)
(insert name) ............................... )
The Common Seal of )
)
Collins Property Development Pty Ltd )
) ..........................
was duly affixed by authority of the Board of )
Directors in the presence of ) Authorised officer
)
)
)
(insert name) ............................... )
)
and ) ..........................
)
) Authorised officer
)
(insert name) ............................... )
iii
The Common Seal of )
)
Furnace Concepts Australia Corp. )
) ..........................
was duly affixed by authority of the Board of )
Directors in the presence of ) Authorised officer
)
)
)
(insert name) ............................... )
)
and ) ..........................
)
) Authorised officer
)
(insert name) ............................... )
The Common Seal of )
)
Furnace Concepts International Inc. )
) ..........................
was duly affixed by authority of the Board of )
Directors in the presence of ) Authorised officer
)
)
)
(insert name) ............................... )
)
and ) ..........................
)
) Authorised officer
)
(insert name) ............................... )
The Common Seal of )
)
Collins Restaurants Queensland Pty Ltd )
) ..........................
was duly affixed by authority of the Board of )
Directors in the presence of ) Authorised officer
)
)
)
(insert name) ............................... )
)
and ) ..........................
)
) Authorised officer
)
(insert name) ............................... )
iv
The Common Seal of )
)
Restaurant Concepts of Australia Pty Ltd )
) .........................
was duly affixed by authority of the Board of )
Directors in the presence of ) Authorised officer
)
)
)
(insert name) ............................... )
)
and ) .........................
)
) Authorised officer
)
(insert name) ............................... )
The Common Seal of )
)
Restaurant Concepts International Inc. )
) .........................
was duly affixed by authority of the Board of )
Directors in the presence of ) Authorised officer
)
)
)
(insert name) ............................... )
)
and ) .........................
)
) Authorised officer
)
(insert name) ............................... )
The Common Seal of )
)
Sizzler Australia Pty Ltd )
) .........................
was duly affixed by authority of the Board of )
Directors in the presence of ) Authorised officer
)
)
)
(insert name) ............................... )
)
and ) .........................
)
) Authorised officer
)
(insert name) ............................... )
v
The Common Seal of )
)
Sizzler Franchise Development, Ltd )
) ..........................
was duly affixed by authority of the Board of )
Directors in the presence of ) Authorised officer
)
)
)
(insert name) ............................... ) ..........................
)
and ) Authorised officer
)
)
)
(insert name) ............................... )
The Common Seal of )
)
Sizzler International Marks Inc. )
) ..........................
was duly affixed by authority of the Board of )
Directors in the presence of ) Authorised officer
)
)
)
(insert name) ............................... )
)
and ) ..........................
)
) Authorised officer
)
(insert name) ............................... )
The Common Seal of )
)
Sizzler New Zealand Limited )
) ..........................
was duly affixed by authority of the Board of )
Directors in the presence of ) Authorised officer
)
)
)
(insert name) ............................... )
)
and ) ..........................
)
) Authorised officer
)
(insert name) ............................... )
vi
The Common Seal of )
)
Sizzler Restaurant Services Inc. )
) ..........................
was duly affixed by authority of the Board of )
Directors in the presence of ) Authorised officer
)
)
)
(insert name) ............................... )
)
and ) ..........................
)
) Authorised officer
)
(insert name) ............................... )
The Common Seal of )
)
Sizzler South Pacific Pty Ltd )
) ..........................
was duly affixed by authority of the Board of )
Directors in the presence of ) Authorised officer
)
)
)
(insert name) ............................... )
)
and ) ..........................
)
) Authorised officer
)
(insert name) ............................... )
The Common Seal of )
)
Sizzler South-East Asia Inc. )
) ..........................
was duly affixed by authority of the Board of )
Directors in the presence of ) Authorised officer
)
)
)
(insert name) ............................... )
)
and ) ..........................
)
) Authorised officer
)
(insert name) ............................... )
vii
The Common Seal of )
)
Sizzler Asia Holdings, Inc Delaware Pty Ltd )
) ..........................
was duly affixed by authority of the Board of )
Directors in the presence of ) Authorised officer
)
)
)
(insert name) ............................... )
)
and ) ..........................
)
) Authorised officer
)
(insert name) ............................... )
The Common Seal of )
)
Collins Restaurants Management Pty Ltd )
) ..........................
was duly affixed by authority of the Board of)
Directors in the presence of ) Authorised officer
)
)
)
(insert name) ............................... )
)
and ) ..........................
)
) Authorised officer
)
(insert name) ............................... )
The Common Seal of )
)
Sizzler Restaurants Group Pty Ltd )
) ..........................
was duly affixed by authority of the Board of )
Directors in the presence of ) Authorised officer
)
)
)
(insert name) ............................... )
)
and ) ..........................
)
) Authorised officer
)
(insert name) ............................... )
vii
TABLE OF CONTENTS
-----------------
UNLIMITED CROSS GUARANTEE AND INDEMNITY AND NEGATIVE PLEDGE WITH FINANCIAL RATIO COVENANTS.... 1
Definitions and Interpretation................................................................ 2
1. Definitions............................................................................ 2
Conditions of Guarantee and Indemnity......................................................... 6
2. Guarantee.............................................................................. 6
3. Extent of Guarantee.................................................................... 6
4. Continuing Guarantee................................................................... 6
5. Insolvency............................................................................. 6
6. Variation of Arrangements with Customer................................................ 7
7. Unconditional Obligation............................................................... 7
8. Refund of Payments..................................................................... 7
9. Indemnity.............................................................................. 8
10. Other Security......................................................................... 8
Negative Pledge and Financial Ratio Covenants................................................. 9
11. Representations and Warranties......................................................... 9
12. Undertakings........................................................................... 10
12.1 Information..................................................................... 10
12.2 Negative Pledges................................................................ 11
12.3 Financial Covenants............................................................. 12
12.4 General Undertakings............................................................ 12
12.5 Undertakings by Guarantors...................................................... 13
13. Events of Default...................................................................... 14
14. Westpac's Remedies and Powers.......................................................... 16
14.1 Event of Default................................................................ 16
14.2 No waiver....................................................................... 16
General Provisions............................................................................ 17
15. Payments............................................................................... 17
15.1 Payments........................................................................ 17
15.2 Time of payment................................................................. 17
15.3 Interest........................................................................ 17
16. Yield Protection....................................................................... 18
17. Additional Payments.................................................................... 18
17.1 Indemnity and costs............................................................. 18
17.2 Currency Indemnity.............................................................. 18
17.3 Expenses........................................................................ 18
18. General................................................................................ 19
18.1 Term............................................................................ 19
18.2 Statements...................................................................... 19
18.3 Notices......................................................................... 19
ix
18.4 Agent for Service of Process.................................................. 20
19. Appropriation and Set-Off............................................................ 20
19.1 Appropriation................................................................. 20
19.2 Set-Off....................................................................... 20
20. Assignment and Transfer.............................................................. 20
21. Reliance............................................................................. 20
22. Multiple Parties..................................................................... 21
22.1 Multiple Guarantors........................................................... 21
22.2 Multiple Customers............................................................ 21
23. New Guarantors....................................................................... 21
24. Law and Jurisdiction................................................................. 21
25. Counterparts......................................................................... 21
26. Attorneys............................................................................ 22
27. Inconsistency........................................................................ 22
Schedule A-- Guarantors..................................................................... 23
Schedule B-- Form of Accession Agreement.................................................... 25
Execution................................................................................... i
Table of Contents........................................................................... viii
COLLINS FOODS GROUP PTY LTD ACN 009 937 900
And each company named in the Schedule
(each a Guarantor)
WESTPAC BANKING CORPORATION ABN 33 007 457 141
(Westpac)
VARIATION AGREEMENT
UNLIMITED CROSS GUARANTEE AND INDEMNITY AND NEGATIVE
PLEDGE WITH FINANCIAL RATIO COVENANTS DATED 21 AUGUST 2000
VARIATION AGREEMENT
DATE 2003
PARTIES: Each of the Companies listed in the Schedule (each a Guarantor);
and
Westpac Banking Corporation ABN 33 007 457 141, of 15/th/
Floor, 260 Queen Street, Brisbane, Queensland (Westpac).
RECITALS
A. The Guarantors and Westpac are parties to the Unlimited Cross Guarantee
and Indemnity and Negative Pledge with Financial Ratio Covenants dated
21 August 2000 (Cross Guarantee).
B. Westpac has agreed to vary the terms of an existing facility provided
to the Customer and provide additional financial accommodation to the
Customer. Each Guarantor consents to that variation and to the
additional financial accommodation being subject to the Cross
Guarantee.
C. The parties also wish to make additional amendments to the Cross
Guarantee in the manner set out in this agreement.
AGREEMENT
1. INTERPRETATION
1.1 Definitions
Unless the context otherwise requires or the relevant term is defined
in this agreement, terms defined in the Cross Guarantee have the same
meaning in this agreement.
1.2 Interpretation
The rules of interpretation in clause 1 of the Cross Guarantee apply as
if incorporated in this agreement.
2. CONSIDERATION
Each Guarantor acknowledges entering into and incurring obligations and
giving rights under this agreement in consideration of Westpac
providing financial accommodation to the Customer at their request.
3. CONSENT
Each Guarantor consents to the following:
(a) variation of the Cross Guarantee as provided in this agreement; and
(b) the provision by Westpac of additional financial accommodation as
set out in the Bill Facility Agreement,
and confirms that its obligations under the Cross Guarantee will
continue as varied by this agreement.
2
4. VARIATION
The Cross Guarantee is amended to read as set out in Annexure A.
5. CONFIRMATION
Each Guarantor represents and warrants that:
(a) all its representations and warranties in the Cross Guarantee are
true at the date of this agreement in respect of the facts and
circumstances then subsisting; and
(b) no Event of Default has occurred and is continuing.
6. BANK DOCUMENT
Each of the parties confirms that as this agreement amends the Cross
Guarantee, it is a bank Document for the purpose of the Cross
Guarantee.
7. EFFECT OF THIS DOCUMENT ON EXISTING RIGHTS
(a) Nothing in this document prejudices or otherwise adversely affects
any right or remedy of Westpac or any obligation or liability of
any Guarantor or the Customer with respect to anything done or
effected or otherwise arising before the execution of this
agreement.
(b) The terms and conditions of the Cross Guarantee are ratified as
amended by this agreement.
8. RELIANCE ON THIS DOCUMENT
This agreement is enforceable against a party signing even if:
(a) one or more of the persons named as a Guarantor does not execute
this agreement; or
(b) this agreement is not enforceable against a person named as a
Guarantor (other than the signatory) for any reason.
9. INDEMNITY AND COSTS
The Customer will indemnify Westpac against any liability, loss, cost
or expense (including legal costs on a full indemnity basis and
including any goods and services tax or similar tax) it incurs in or as
a result of a breach of the Customer's obligations, or actual or
contemplated enforcement of this agreement and any security for this
agreement.
The Customer will pay Westpac's reasonable external legal costs
(including goods and services tax or similar tax) in relation to the
preparation of this agreement and any security for this agreement, and
any amendment of it, or any consent or waiver.
10. GOVERNING LAW AND JURISDICTION
This document is governed by the law applicable in Queensland. Each
party submits to the non-exclusive jurisdiction of the courts of
Queensland.
11. COUNTERPARTS
This document may be executed in any number of counterparts.
3
Schedule 1 -- Guarantors
Name of Company ACN/ARBN Place of Incorporation
Collins Foods Group Pty Ltd 009 937 900
Collins Finance and Management Pty Ltd 009 996 721
Collins Foods Australia Pty Ltd 009 914 103
Collins Foods International Pty Ltd Nevada
Collins International Inc Delaware
Collins Property Development Pty Ltd 010 539 616
Collins Restaurants Management Pty Ltd 093 912 979
Collins Restaurants NSW Pty Ltd 094 786 142
Furnace Concepts Australia Corp. 070 065 468 Nevada
Furnace Concepts International Inc Nevada
Collins Restaurants Queensland Pty Ltd 009 988 381
Restaurant Concepts of Australia Pty Ltd Nevada
Restaurant Concepts International Inc Nevada
Sizzler Asia Holdings, Inc Delaware
Sizzler Australia Pty Ltd 010 060 876
Sizzler Franchise Development Limited Bermuda
Sizzler International Marks Inc. Delaware
Sizzler New Zealand Limited Nevada
Sizzler Restaurant Services Inc Nevada
Sizzler South Pacific Pty Ltd 010 713 952 Nevada
Sizzler South-East Asia Inc Nevada
Sizzler Restaurants Group Pty Ltd 010 102 388
4
EXECUTED as an agreement
COLLINS FOODS GROUP PTY LTD )
Executed pursuant to s127(1) )
Corporations Act )
- ---------------------------------------------- ---------------------------------
Signature - Kevin William Perkins Signature - Heather Lynette Grace
Office held - Director Office held - Director
COLLINS FINANCE AND )
MANAGEMENT PTY LTD )
Executed pursuant to s127(1) )
Corporations Act )
- ---------------------------------------------- ---------------------------------
Signature - Kevin William Perkins Signature - Heather Lynette Grace
Office held - Director Office held - Director
COLLINS FOODS AUSTRALIA PTY )
LTD )
Executed pursuant to s127(1) )
Corporations Act )
- ---------------------------------------------- ---------------------------------
Signature - Kevin William Perkins Signature - Heather Lynette Grace
Office held - Director Office held - Director
Executed on behalf of )
COLLINS FOODS INTERNATIONAL )
PTY LTD )
)
)
/s/ Charles Boppell /s/ Michael Green
- ---------------------------------------------- ---------------------------------
Signature Signature
Print name: Charles Boppell Print name: Michael Green
Office held: President and CEO Office held: Vice President and
Secretary
5
Executed on behalf of )
COLLINS INTERNATIONAL INC. )
)
/s/ Charles Boppell /s/ Michael Green
- ---------------------------------- --------------------------------------
Signature Signature
Print name: Charles Boppell Print name: Michael Green
Office held: President and CEO Office held: Vice President and
Secretary
COLLINS PROPERTY )
DEVELOPMENT PTY LTD )
Executed pursuant to s127(1) )
Corporations Act )
- ---------------------------------- --------------------------------------
Signature - Kevin William Perkins Signature - Heather Lynette Grace
Office held - Director Office held - Director
COLLINS RESTAURANTS )
MANAGEMENT PTY LTD )
Executed pursuant to s127(1) )
Corporations Act )
- ---------------------------------- --------------------------------------
Signature - Kevin William Perkins Signature - Heather Lynette Grace
Office held - Director Office held - Director
COLLINS RESTAURANTS NSW PTY )
LTD )
Executed pursuant to s127(1) )
Corporations Act )
- ---------------------------------- --------------------------------------
Signature - Kevin William Perkins Signature - Heather Lynette Grace
Office held - Director Office held - Director
COLLINS RESTAURANTS )
QUEENSLAND PTY LTD )
Executed pursuant to s127(1) )
Corporations Act )
- ---------------------------------- --------------------------------------
Signature - Kevin William Perkins Signature - Heather Lynette Grace
Office held - Director Office held - Director
6
Executed on behalf of FURNACE )
CONCEPTS AUSTRALIA CORP. )
)
)
- ---------------------------------- --------------------------------------
Signature - Kevin William Perkins Signature - Heather Lynette Grace
Office held - Director Office held - Director
Executed on behalf of )
FURNACE CONCEPTS )
INTERNATIONAL INC. )
)
)
/s/ Charles Boppell
- ---------------------------------- --------------------------------------
Signature Signature
Print name: Charles Boppell Print name:
Office held: President and CEO Office held:
Executed on behalf of )
RESTAURANT CONCEPTS OF )
AUSTRALIA PTY LTD )
)
)
/s/ Charles Boppell
- ---------------------------------- --------------------------------------
Signature Signature
Print name: Charles Boppell Print name:
Office held: President and CEO Office held:
Executed on behalf of )
RESTAURANT CONCEPTS )
INTERNATIONAL INC. )
)
)
/s/ Charles Boppell /s/ Michael Green
- ---------------------------------- --------------------------------------
Signature Signature
Print name: Charles Boppell Print name: Michael Green
Office held: President and CEO Office held: Vice President and
Secretary
7
SIZZLER AUSTRALIA PTY LTD )
Executed pursuant to s127(1) )
Corporations Act )
- ---------------------------------- --------------------------------------
Signature - Kevin William Perkins Signature - Heather Lynette Grace
Office held - Director Office held - Director
Executed on behalf of )
SIZZLER FRANCHISE )
DEVELOPMENT, LTD )
)
)
/s/ Charles Boppell
- ---------------------------------- --------------------------------------
Signature Signature
Print name: Charles Boppell Print name:
Office held: President and CEO Office held:
Executed on behalf of )
SIZZLER INTERNATIONAL MARKS )
INC. )
)
)
/s/ Charles Boppell /s/ Michael Green
- ---------------------------------- --------------------------------------
Signature Signature
Print name: Charles Boppell Print name: Michael Green
Office held: President and CEO Office held: Vice President and
Secretary
Executed on behalf of )
SIZZLER NEW ZEALAND LIMITED )
)
)
)
- ---------------------------------- --------------------------------------
Signature Signature
Print name: Print name:
Office held: Office held:
8
SIZZLER RESTAURANTS GROUP )
PTY LTD )
Executed pursuant to s127(1) )
Corporations Act )
- ---------------------------------- --------------------------------------
Signature - Kevin William Perkins Signature - Heather Lynette Grace
Office held - Director Office held - Director
Executed on behalf of )
SIZZLER RESTAURANT SERVICES )
INC. )
)
)
/s/ Charles Boppell
- ---------------------------------- --------------------------------------
Signature Signature
Print name: Charles Boppell Print name:
Office held: President and CEO Office held:
Executed on behalf of )
SIZZLER SOUTH PACIFIC PTY LTD )
)
)
)
- ---------------------------------- --------------------------------------
Signature Signature
Print name: Print name:
Office held: Office held:
Executed on behalf of SIZZLER )
SOUTH-EAST ASIA INC. )
)
)
)
/s/ Charles Boppell
- ---------------------------------- --------------------------------------
Signature Signature
Print name: Charles Boppell Print name:
Office held: President and CEO Office held:
Executed on behalf of SIZZLER )
ASIA HOLDINGS, INC )
)
)
)
/s/ Charles Boppell
- ---------------------------------- --------------------------------------
Signature Signature
Print name: Charles Boppell Print name:
Office held: President and CEO Office held:
9
COLLINS FOODS GROUP PTY LTD ACN 009 937 900
COLLINS FOODS INTERNATIONAL PTY LTD
COLLINS INTERNATIONAL INC.
COLLINS RESTAURANTS QUEENSLAND PTY LTD ACN 009 988 381
SIZZLER NEW ZEALAND LIMITED
SIZZLER SOUTH PACIFIC PTY LTD ARBN 010 713 952
SIZZLER SOUTH-EAST ASIA INC.
SIZZLER RESTAURANTS GROUP PTY LTD ACN 010 102 388
SIZZLER RESTAURANT SERVICES, INC.
SIZZLER ASIA HOLDINGS, INC.
COLLINS RESTAURANTS MANAGEMENT PTY LTD ACN 093 912 979
COLLINS RESTAURANTS NSW PTY LTD ACN 094 786 142
(each a 'Debtor')
WORLDWIDE RESTAURANT CONCEPTS, INC.
SIZZLER INTERNATIONAL MARKS INC.
RESTAURANT CONCEPTS OF AUSTRALIA, PTY LTD
SIZZLER FRANCHISE DEVELOPMENT, LTD
FURNACE CONCEPTS INTERNATIONAL, INC
FURNACE CONCEPTS AUSTRALIA CORP. ARBN 070 065 468
RESTAURANT CONCEPTS INTERNATIONAL INC.
SIZZLER AUSTRALIA PTY LTD ACN 010 060 876
COLLINS PROPERTY DEVELOPMENT PTY LTD ACN 010 539 616
COLLINS FINANCE AND MANAGEMENT PTY LTD ACN 009 996 721
COLLINS FOODS AUSTRALIA PTY LTD ACN 009 914 103
(each a 'Junior Creditor')
WESTPAC BANKING CORPORATION ABN 33 007 457 141
('Senior Creditor')
SECOND DEED OF VARIATION - SUBORDINATION DEED
SECOND DEED OF VARIATION - SUBORDINATION DEED
DEED dated 2003
BETWEEN: COLLINS FOODS GROUP PTY LTD ACN 009 937 900
COLLINS FOODS INTERNATIONAL PTY LTD, a company incorporated in Nevada,
United States of America
COLLINS INTERNATIONAL INC, a company incorporated in Delaware, United
States of America
COLLINS RESTAURANTS QUEENSLAND PTY LTD ACN 009 988 381
SIZZLER NEW ZEALAND LIMITED, a company incorporated in Nevada, United
States of America
SIZZLER SOUTH PACIFIC PTY LTD ARBN 010 713 952
SIZZLER SOUTH-EAST ASIA INC, a company incorporated in Nevada, United
States of America
SIZZLER RESTAURANTS GROUP PTY LTD ACN 010 102 388
SIZZLER RESTAURANT SERVICES, INC, a company incorporated in Nevada,
United States of America
SIZZLER ASIA HOLDINGS, INC. a company incorporated in Delaware, United
States of America
COLLINS RESTAURANTS MANAGEMENT PTY LTD ACN 093 912 979
COLLINS RESTAURANTS NSW PTY LTD ACN 094 786 142
each of or c/- 16 Edmondstone Street, Newmarket, Brisbane, Queensland,
Australia (each a `Debtor');
AND WORLDWIDE RESTAURANT CONCEPTS, INC. (formerly Sizzler International
Inc.), a company incorporated in Delaware, United States of America
SIZZLER INTERNATIONAL MARKS INC., a company incorporated in Delaware,
United States of America
RESTAURANT CONCEPTS OF AUSTRALIA, PTY LTD
SIZZLER FRANCHISE DEVELOPMENT, LTD, a company incorporated in Bermuda
FURNACE CONCEPTS INTERNATIONAL, INC, a company incorporated in Nevada,
United States of America
FURNACE CONCEPTS AUSTRALIA CORP. ARBN 070 065 468
RESTAURANT CONCEPTS INTERNATIONAL INC, a company incorporated in
Nevada, United States of America
SIZZLER AUSTRALIA PTY LTD ACN 010 060 876
COLLINS PROPERTY DEVELOPMENT PTY LTD ACN 010 539 616
COLLINS FINANCE AND MANAGEMENT PTY LTD ACN 009 996 721
COLLINS FOODS AUSTRALIA PTY LTD ACN 009 914 103
each of c/- 16 Edmondstone Street, Newmarket, Brisbane, Queensland,
Australia (each a `Junior Creditor');
AND WESTPAC BANKING CORPORATION ABN 33 007 457 141, of 260 Queen Street,
Brisbane, Queensland (`Senior Creditor')
1
RECITALS
A. The Senior Creditor, each Junior Creditor and each Debtor are parties to a
Subordination Deed dated 21 August 2000 as amended (Subordination Deed).
B. The parties wish to vary the Subordination Deed in the manner set out in
this deed.
AGREEMENT
1. INTERPRETATION
1.1 Definitions
Unless the context otherwise requires or the relevant term is defined in
this document, terms defined in the Subordination Deed have the same
meaning in this document.
1.2 Construction
Clause 1.2 of the Subordination Deed applies as if incorporated in this
document, so as to govern the interpretation of this document.
2. CONSIDERATION
Each Junior Creditor and each Debtor acknowledge entering into and
incurring obligations and giving rights under this document in
consideration of the Senior Creditor continuing to provide financial
accommodation to or at their request.
3. VARIATION
The Subordination Deed is varied by replacing clause 5.2 with the
following:
"5.2 Specific provisions about payment
Subject to clause 5.1, the following are permitted payments which may be
made after the date of this Deed:
(a) an annual payment not exceeding 3.5% of the retail sales revenue of
Sizzler Restaurants Group Pty Ltd for royalties;
(b) payments in aggregate not exceeding $500,000 per annum for amounts
payable in the ordinary course of business;
(c) rental payments to Collins Property Development Pty Ltd under
existing leases of real property; and
(d) repayment of Subordinated Debt owing to Restaurant Concepts
International Inc of a principal amount of $20,800,000 plus accrued
interest on that amount."
(Variation).
2
4. EFFECT OF THIS DOCUMENT ON EXISTING RIGHTS
Nothing in this document prejudices or otherwise adversely affects any
right or remedy of the Senior Creditor or any obligation or liability of
any Debtor or Junior Creditor with respect to anything done or effected or
otherwise arising before the execution of this document.
The terms and conditions of the Subordination Deed are ratified as amended
by the Variation.
5. RELIANCE ON THIS DOCUMENT
This document is enforceable against a party signing even if:
(a) one or more of the persons named as a Debtor or Junior Creditor does
not execute this document; or
(b) this document is not enforceable against a person named as a Debtor
or Junior Creditor (other than the signatory) for any reason.
6. INDEMNITY AND COSTS
Each Debtor will indemnify Westpac against any liability, loss, cost or
expense (including legal costs on a full indemnity basis and including any
goods and services tax or similar tax) it incurs in or as a result of a
breach of the Debtor's obligations, or actual or contemplated enforcement
of this agreement and any security for this agreement.
Each Debtor will pay Westpac's reasonable external legal costs (including
goods and services tax or similar tax) in relation to the preparation of
this agreement and any security for this agreement, and any amendment of
it, or any consent or waiver.
7. GOVERNING LAW AND JURISDICTION
This document is governed by the law applicable in Queensland. Each party
submits to the non-exclusive jurisdiction of the courts of Queensland.
8. COUNTERPARTS
This document may be executed in any number of counterparts.
3
EXECUTED as a deed.
COLLINS FOODS GROUP PTY LTD )
Executed pursuant to s127(1) )
Corporations Act )
- ---------------------------------- --------------------------------------
Signature - Kevin William Perkins Signature - Heather Lynette Grace
Office held - Director Office held - Director
COLLINS FINANCE AND )
MANAGEMENT PTY LTD )
Executed pursuant to s127(1) )
Corporations Act )
- ---------------------------------- --------------------------------------
Signature - Kevin William Perkins Signature - Heather Lynette Grace
Office held - Director Office held - Director
COLLINS FOODS AUSTRALIA PTY )
LTD )
Executed pursuant to s127(1) )
Corporations Act )
- ---------------------------------- --------------------------------------
Signature - Kevin William Perkins Signature - Heather Lynette Grace
Office held - Director Office held - Director
Executed on behalf of )
COLLINS FOODS INTERNATIONAL )
PTY LTD )
)
)
/s/ Charles Boppell /s/ Michael Green
- ---------------------------------- --------------------------------------
Signature Signature
Print name: Charles Boppell Print name: Michael Green
Office held: President and Chief Office held: Vice President and
Executive Officer Secretary
4
Executed on behalf of )
COLLINS INTERNATIONAL INC. )
)
)
)
/s/ Charles Boppell /s/ Michael Green
- ---------------------------------- --------------------------------------
Signature Signature
Print name: Charles Boppell Print name: Michael Green
Office held: President and Chief Office held: Vice President and
Executive Officer Secretary
COLLINS PROPERTY )
DEVELOPMENT PTY LTD )
Executed pursuant to s127(1) )
Corporations Act )
- ---------------------------------- --------------------------------------
Signature - Kevin William Perkins Signature - Heather Lynette Grace
Office held - Director Office held - Director
COLLINS RESTAURANTS )
MANAGEMENT PTY LTD )
Executed pursuant to s127(1) )
Corporations Act )
- ---------------------------------- --------------------------------------
Signature - Kevin William Perkins Signature - Heather Lynette Grace
Office held - Director Office held - Director
COLLINS RESTAURANTS NSW PTY )
LTD )
Executed pursuant to s127(1) )
Corporations Act )
- ---------------------------------- --------------------------------------
Signature - Kevin William Perkins Signature - Heather Lynette Grace
Office held - Director Office held - Director
5
COLLINS RESTAURANTS )
QUEENSLAND PTY LTD )
Executed pursuant to s127(1) )
Corporations Act )
___________________________________ _______________________________________
Signature - Kevin William Perkins Signature - Heather Lynette Grace
Office held - Director Office held - Director
Executed on behalf of FURNACE )
CONCEPTS AUSTRALIA CORP. )
)
)
___________________________________ _______________________________________
Signature - Kevin William Perkins Signature - Heather Lynette Grace
Office held - Director Office held - Director
Executed on behalf of )
FURNACE CONCEPTS )
INTERNATIONAL INC. )
)
)
/s/ Charles Boppell
___________________________________ ---------------------------------------
Signature Signature
Print name: Print name: Charles Boppell
Office held: Office held: President and Chief
Executive Officer
Executed on behalf of )
RESTAURANT CONCEPTS OF )
AUSTRALIA PTY LTD )
)
)
/s/ Charles Boppell
___________________________________ ---------------------------------------
Signature Signature
Print name: Print name: Charles Boppell
Office held: Office held: President and Chief
Executive Officer
6
Executed on behalf of )
RESTAURANT CONCEPTS )
INTERNATIONAL INC. )
)
)
/s/ Charles Boppell /s/ Michael Green
- ----------------------------------- ---------------------------------------
Signature Signature
Print name: Charles Boppell Print name: Michael Green
Office held: President and Chief Office held: Vice President and
Executive Officer Secretary
SIZZLER AUSTRALIA PTY LTD )
Executed pursuant to s127(1) )
Corporations Act )
___________________________________ _______________________________________
Signature - Kevin William Perkins Signature - Heather Lynette Grace
Office held - Director Office held - Director
Executed on behalf of )
SIZZLER FRANCHISE )
DEVELOPMENT, LTD )
)
)
/s/ Charles Boppell
___________________________________ ----------------------------------------
Signature Signature
Print name: Print name: Charles Boppell
Office held: Office held: President and Chief
Executive Officer
Executed on behalf of )
SIZZLER INTERNATIONAL MARKS INC. )
)
)
)
/s/ Charles Boppell /s/ Michael Green
- ----------------------------------- ---------------------------------------
Signature Signature
Print name: Charles Boppell Print name: Michael Green
Office held: President and Chief Office held: Vice President and
Executive Officer Secretary
7
Executed on behalf of )
SIZZLER NEW ZEALAND LIMITED )
)
)
)
___________________________________ _______________________________________
Signature Signature
Print name: Print name:
Office held: Office held:
SIZZLER RESTAURANTS GROUP )
PTY LTD )
Executed pursuant to s127(1) )
Corporations Act )
___________________________________ _______________________________________
Signature - Kevin William Perkins Signature - Heather Lynette Grace
Office held - Director Office held - Director
Executed on behalf of )
SIZZLER RESTAURANT SERVICES INC. )
)
)
)
/s/ Charles Boppell
___________________________________ ---------------------------------------
Signature Signature
Print name: Print name: Charles Boppell
Office held: Office held: President and Chief
Executive Officer
Executed on behalf of )
SIZZLER SOUTH PACIFIC PTY LTD )
)
)
)
___________________________________ _______________________________________
Signature Signature
Print name: Print name:
Office held: Office held:
8
Executed on behalf of SIZZLER )
SOUTH-EAST ASIA INC. )
)
)
)
/s/ Charles Boppell
___________________________________ ---------------------------------------
Signature Signature
Print name: Print name: Charles Boppell
Office held: Office held: President and Chief
Executive Officer
Executed on behalf of SIZZLER ASIA )
HOLDINGS, INC )
)
)
)
/s/ Charles Boppell
___________________________________ ---------------------------------------
Signature Signature
Print name: Print name: Charles Boppell
Office held: Office held: President and Chief
Executive Officer
Executed on behalf of WORLDWIDE )
RESTAURANT CONCEPTS, INC. )
)
)
)
/s/ Charles Boppell
- ----------------------------------- _______________________________________
Signature Signature
Print name: Charles Boppell Print name:
Office held: President and Chief Office held:
Executive Officer
SIGNED on behalf of WESTPAC BANKING ) Westpac) Banking Corporation by its
CORPORATION by its duly constituted ) duly constituted Attorney:
Attorney )
)
who certifies that he/she has no )
notice of revocation of the powers )
granted pursuant to Power of Attorney )_______________________________________
No.704554851 in the presence of: )
_______________________________________
Witness
9