DATED 20 June, 2007 EBET LIMITED - and - OCTAVIAN INTERNATIONAL LIMITED LOAN AGREEMENT
DATED
20 June, 2007
EBET
LIMITED
-
and -
OCTAVIAN
INTERNATIONAL LIMITED
_________________
__________________
This
Loan Agreement dated 20 June, 2007 is made between:
|
(1)
|
eBet
Limited
(ACN ▇▇▇ ▇▇▇ ▇▇▇) of ▇▇▇▇ ▇▇, ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ("Lender");
and
|
|
(2)
|
Octavian
International Limited,
incorporated in the United Kingdom and having Company No. 04185988,
of
Bury House, ▇-▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
("Borrower").
|
RECITALS
|
A.
|
The
Lender has obtained a AUS$5 million bridging loan cash advance facility
from MFS Causeway, under a loan agreement entered into on or before
the
date of this document.
|
|
B.
|
The
Borrower reviewed and approved the terms and conditions of that loan
agreement prior to it being entered
into.
|
|
C.
|
The
Lender has agreed to advance to the Borrower, from the proceeds of
the MFS
Causeway Loan, and the Borrower has agreed to borrow and repay, the
Loan
on the terms and conditions set out
below.
|
IT
IS AGREED AS FOLLOWS:
|
1.
|
Definitions
and Interpretation
|
|
1.1
|
Definitions
|
In
this
Agreement:
| ACP |
means
the software developed by the Borrower commonly known as “Accounting,
Control and Progressive System” which provides all the required processes
to run route slot operations including machine meter collection,
collation, accounting, cashless, play tracking, bonussing, multiple
progressive, data visualisation, asset logs, full asset control,
Wide Area
Progressives (WAP) (centrally controlled) and flexible reporting
with
remote .net access;
|
| Borrower Intellectual Property Rights |
means
any and all Intellectual Property Rights owned by the Borrower which
relate to the Maverick and/or Borrower Source
Code;
|
| Borrower Source Code |
means
the source code for (i) the ACP (ii) all software embedded within
the
Maverick and (iii) the Maverick Games;
|
| Business Day |
means
any day other than (i) a Saturday or a Sunday or (ii) a day which
is a
public or bank holiday in England or (iii) a day banking institutions
in
London are required to be closed;
|
1
| Charge |
means
the deed of charge dated the same date as this Agreement between
the
Borrower and the Lender relating to the charge by the Borrower of
the
Borrower Intellectual Property Rights in favour of the Lender for
the
purpose of this Agreement;
|
| Drawdown Date | has the meaning given in clause 0; |
| Drawdown Notice | means a notice substantially in the form set out in Schedule 1; |
| Encumbrance | means any mortgage, charge, or other security interest; |
| Escrow Agreement |
means
the agreement dated the same date as this Agreement between the Borrower,
the Lender and the Escrow Agent relating to the depositing and holding
of
the Borrower Source Code with the Escrow Agent for the purpose of
this
Agreement;
|
| Escrow Agent | means Assurex Escrow Pty Ltd; |
| Event of Default |
means
any of the events specified in clause 0,
and any of the events specified as an Event of Default in the Charge.
|
| Interest | has the meaning given in clause 0; |
| Interest Rate | means: |
|
(a)
|
during
the period from the first Drawdown Date to the date 3 months after
that
date, 13% (thirteen per cent) per annum;
and
|
|
(b)
|
during
each successive month following that date, the Interest Rate applicable
to
the immediately preceding period plus an amount of 0.5% per
annum.
|
|
Facility
|
means the loan facility provided for in this Agreement; |
| Facility Period |
means
the period starting on the date of this Agreement and ending on the
first
to occur of the date on which the MFS Causeway Loan is required to
be
repaid, and 31st
December 2007;
|
| Finance Document | means: |
| (a) |
this
Agreement;
|
| (b) |
the
Charge;
|
| (c) |
the
Escrow Agreement; and
|
2
| (d) |
any
document or agreement entered into or given under any of the
above;
|
| Intellectual Property Rights |
means
patents, trade marks, service marks, trade names, design rights,
database
rights, copyrights (including copyright in software), rights in inventions
and topography rights whether or not registered, including all
applications and rights to apply for registration throughout the
world and
for the duration of the rights;
|
| Loan | means the amount loaned or to be loaned to the Borrower pursuant to clause 2.1; |
| Maverick |
means
the
flat pack game kit commonly known as “Maverick” developed by the Borrower,
including any and all modifications thereto and all Maverick
Games;
|
| Maverick Games | means all games developed by the Borrower for use on a Maverick; |
| MFS Causeway | means MFS Causeway Financial Services Pty Limited ACN 108 248 782 of Sydney, Australia; |
| MFS Causeway Loan | means the loan provided by MFS Causeway to the Lender, under the MFS Causeway Loan Agreement. |
| MFS Causeway Loan Agreement | means the document which comprises Schedule 3 of this Agreement. |
|
1.2
|
Interpretation
|
|
1.2.1
|
Headings
are for ease of reference only and shall not affect the construction
of
this Agreement.
|
|
1.2.2
|
References
to the Lender, the Borrower or any other person include their respective
successors, permitted assigns and successors in
title.
|
|
1.2.3
|
Reference
to any agreement or instrument shall be to such agreement or instrument
as
may from time to time be amended, varied, novated, supplemented or
substituted.
|
|
1.2.4
|
References
to legislation include any statute, bye-law, regulation, rule, subordinate
or delegated legislation or order; and reference to any legislation
is to
such legislation as amended, modified or consolidated from time to
time at
the date of this Agreement and to any legislation replacing it or
made
under it and in force at the date of this
Agreement.
|
|
2.
|
Facility
and Purpose
|
|
2.1
|
Facility
|
Subject
to the terms of this Agreement, the Lender agrees to make available to the
Borrower under this Facility, in accordance with clause 3, a total amount of
AUS$2.5 million.
3
|
2.2
|
Purpose
|
The
Loan
may be used by the Borrower for any purpose in connection with the carrying
on
of its business, but must not be used to make shareholder loans or
distributions.
|
2.3
|
Application
|
The
Borrower must advise the Lender in due course of the manner in which the
Borrower has used the Loan.
| 2.4 |
MFS
Causeway Loan
|
The
liability of the Lender to advance the whole or any part of the Loan to the
Borrower is limited to the amount(s) received by it at the relevant time from
MFS Causeway under the MFS Causeway Loan Agreement.
|
3.
|
Drawdown
|
|
3.1
|
Subject
to the other terms of this Agreement, the Borrower shall provide
a Drawdown Notice to the Lender not less than 4 Business Days before
the
date on which it requires the Loan (“Drawdown
Date”).
|
|
3.2
|
Subject
to this Agreement, the Lender will on the Drawdown Date disburse
the Loan
(less an establishment fee amounting to 2% of the Loan) in the same
funds
as received by it from MFS Causeway, to the account which is specified
by
the Borrower in a duly completed Drawdown Notice.
|
|
3.3
|
The
Borrower must pay to the Lender monthly in arrears a facility fee
equal to
2% per annum of the undrawn amount of the
Facility.
|
|
3.4
|
The
parties acknowledge and confirm their intention that a further A$1.5m
will
be made available by the Lender from the proceeds of a drawdown under
the
MFS Causeway Loan Agreement, to facilitate the production of Maverick
Flatpack game kits under a Flatpack Sale and Distribution Agreement
for
Latin America between the parties dated 26 January, 2007. The parties
agree not to give the notice referred to in clause 12.1(b) of that
agreement during 2007.
|
|
4.
|
Repayment
and Prepayment
|
|
4.1
|
Interest
shall accrue from day to day on the outstanding balance of the Loan
at the
applicable Interest Rate ("Interest").
The Interest shall be paid by the Borrower monthly in arrears to
an
account notified by the Lender to the Borrower.
The Borrower is required to gross-up for interest withholding tax.
|
|
4.2
|
Subject
to the other provisions of this Agreement, the Loan (together with
all
Interest due and unpaid) shall be repaid in full (unless otherwise
expressly stated) on the earliest of:
|
|
4.2.1
|
the
last day of the Facility Period;
and
|
|
4.2.2
|
the
date the written notice of cancellation is provided by the Lender
in
accordance with clause 0.
|
|
4.3
|
The
Borrower may, by giving the Lender prior written notice, prepay the
Loan
at any time in whole or in
part.
|
4
|
5.
|
Undertakings
|
The
Borrower undertakes that during the Facility Period it shall, unless the Lender
otherwise agrees in writing:
|
5.1
|
Ranking
of claims:
ensure that at all times its obligations under this Agreement shall
rank
ahead of its other present and future unsecured and unsubordinated
liabilities, other than those which are mandatorily preferred by
law and
not by contract;
|
|
5.2
|
Security
interest:
not without the Lender’s prior written consent, to create any Encumbrance
to exist over all or any of the Borrower Intellectual Property Rights
other than in favour of the Lender;
and
|
|
5.3
|
Material
Litigation:
advise the Lender promptly in writing of any litigation, arbitration,
or
administrative proceedings raised or threatened against the Borrower
in
respect of the Borrower Intellectual Property Rights which involves
(or
would involve if an adverse finding were made in respect thereof)
a total
liability (whether actual or contingent) in excess of
£25,000.
|
|
6.
|
Borrower
Intellectual Property
Rights
|
|
6.1
|
As
a continuing security for the payment and discharge of the repayment
of
the Loan and Interest under this Agreement, the Borrower has entered
into
the Charge.
|
|
6.2
|
The
Borrower shall pay all applicable registration and renewal fees
payable in respect of the Borrower Intellectual Property Rights and
shall
not abandon any existing registrations for any Borrower Intellectual
Property Rights.
|
|
6.3
|
The
Borrow shall not for the duration of the Facility
Period:
|
|
6.3.1
|
assign
ownership of any Borrower Intellectual Property Rights to any person
(other than the Lender); or
|
|
6.3.2
|
grant
any licence or sub-licence of any Borrower Intellectual Property
Rights to
any person other than in the ordinary course of business;
or
|
|
6.3.3
|
create
any Encumbrance over the Borrower Intellectual Property Rights (other
than
as envisaged by this Agreement or otherwise to the Lender).
|
|
Without
limitation or prejudice to the rights of the Lender under the Charge,
the
Lender may, upon the occurrence of an Event of Default, proceed to
enforce
the Charge in accordance with its terms and, by written notice to
the
Borrower and the Escrow Agent, require the Escrow Agent to release
the
Borrower Source Code to the Lender in accordance with the terms of
the
Escrow Agreement. For avoidance of doubt, the release of the Borrower
Source Code to the Lender in accordance with the terms of the Escrow
Agreement does not, of itself, operate to transfer ownership of the
Borrower Intellectual Property Rights to the Lender.
|
|
6.5
|
The
Borrower represents and warrants to the Lender that the Borrower
Intellectual Property Rights (are and shall remain throughout the
Facility
Period) free from any Encumbrances and third party interests, other
than
those of the Lender.
|
|
7.
|
Events
of Default and powers following a
default
|
|
7.1
|
Events
of Default
|
Each
of
the following shall be an Event of Default:
5
| 7.1.1 |
Non-payment:
the Borrower defaults in the payment of the Loan or Interest and
such
default is not remedied within 5 Business Days after receipt of written
notice by the Borrower from the Lender requiring such remedy;
or
|
|
7.1.2
|
Non-performance:
without limitation to clause 7.1.1, the Borrower fails to perform
any of
its obligations under this Agreement or any other Finance Document
and
such failure is not remedied, if capable of remedy, within 15 Business
Days after receipt of written notice by the Borrower from the Lender
requiring the breach to be remedied;
or
|
|
7.1.3
|
Misrepresentation:
any warranty, representation or statement by the Borrower is or becomes
false, misleading or incorrect when made or regarded as made under
this
Agreement or under any Finance Document; or
|
|
7.1.4
|
Insolvency
procedures:
any of the following occur:
|
|
(a)
|
the
Borrower or any of its related bodies corporate obtain a moratorium
or
other protection from its creditors;
or
|
|
(b)
|
a
receiver, administrative receiver, liquidator or administrator is
validly
appointed in respect of the Borrower or any of its related bodies
corporate or a substantial part of their assets;
or
|
|
(c)
|
the
Borrower or any of its related bodies corporate becomes or is deemed
to be
or admits in writing that it is insolvent or unable to pay its debts;
|
|
7.1.5
|
Attachment
or distress:
a
creditor or encumbrancer commencing any formal court proceedings
in order
to enforce any security over any claim against the Borrower or any
of its
related bodies corporate or a substantial part of their assets and
such
process is not discharged within 15 Business Days;
or
|
|
7.1.6
|
Cessation
of business:
any of the Borrower or any of its related bodies corporate ceases
to carry
on its business or (except in the ordinary course of trade) it sells,
leases, transfers or otherwise disposes of or threatens to dispose
of all
or any substantial part of its undertaking or assets
(other than to the Lender); or
|
|
7.1.7
|
Entry
into possession:
a
mortgagee enters into possession or disposes of the whole or a substantial
part of the assets of the Borrower or any of its related bodies corporate;
or
|
|
7.1.8
|
Encumbrance:
any Encumbrance is or becomes enforceable against any substantial
asset of
the Borrower or of any of its related bodies corporate;
or
|
|
7.1.9
|
Analogous
process:
anything analogous to anything referred to in Clauses 7.1.4 to 7.1.8
inclusive, or which has substantially similar effect, occurs with
respect
to the Borrower or any of its related bodies corporate;
or
|
|
7.1.10
|
Unenforceability:
|
|
(a)
|
a
material provision of a Finance Document is illegal, void, voidable
or
unenforceable;
|
|
(b)
|
any
person becomes entitled to terminate, rescind or avoid any material
provision of any Finance Document, other than due to a breach by
the
Lender of the terms of such Finance Document;
or
|
|
(c)
|
the
execution, delivery or performance of a Finance Document by the Borrower
breaches or results in a contravention of any law or
regulation.
|
6
|
7.2
|
At
any time after the occurrence of an Event of Default the Lender,
upon the
Lender giving written notice to the
Borrower:
|
|
7.2.1
|
may
cancel the Facility and require the Borrower immediately to repay
the Loan
and Interest payable, whereupon the same shall become immediately
due and
payable; or
|
|
7.2.2
|
may
place the Facility on demand, whereupon the Loan together with accrued
Interest payable under this Agreement shall become repayable on
demand.
|
Upon
the
service of any such notice, the Lender's obligations under this Agreement shall
be terminated with immediate effect.
|
8.
|
Further
Assurance
|
The
Borrower undertakes to execute such further acts and documents as may reasonably
be required by the Lender to implement any security contemplated by this
Agreement.
|
9.
|
Notices
|
|
9.1
|
Any
notice, communication, consent or agreement given in connection with
this
Agreement must be in writing in a letter or fax (but not by
email).
|
|
9.2
|
The
contact details of the parties in all notices in connection with
this
Agreement shall be as set out in Schedule 2 or such other address
as they
may notify to one another pursuant to the terms of this Agreement
from
time to time.
|
|
9.3
|
Any
party may change its contact details by giving 5 Business Days' notice
to
the other party.
|
|
9.4
|
Except
as provided below, any notice in connection with this Agreement will
be
deemed to be given as follows:
|
|
9.4.1
|
if
delivered in person, at the time of
delivery;
|
|
9.4.2
|
if
posted, 7 days after being deposited in the post, postage prepaid,
in a
correctly addressed envelope; and
|
|
9.4.3
|
if
by fax, when received in legible
form,
|
but
email
is not permitted.
|
9.5
|
A
communication given under clause 9.4 above but received on a day
which is
not a Business Day or after 5.00 pm on a Business Day will be deemed
to be
given on the next Business Day.
|
|
10.
|
Entire
Agreement
|
This
Agreement sets out the entire agreement between the parties. It supersedes
any
previous agreement between them in relation to the subject matter of this
Agreement. No other term express or implied and no usage, custom or course
of
dealing forms part of or affects this Agreement
|
11.
|
Severance
|
If
a term
of this Agreement is or becomes illegal, invalid or unenforceable in any
jurisdiction, that will not affect:
7
| 11.1 |
the
legality, validity or enforceability in that jurisdiction of any
other
term of this Agreement; or
|
|
11.2
|
the
legality, validity or enforceability in any other jurisdiction of
that or
any other term of this Agreement.
|
|
12.
|
Non-Waiver
|
No
failure by the Lender to exercise and no delay by the Lender in exercising
any
right, power or privilege under this Agreement shall operate as a waiver thereof
nor shall any single or partial exercise of any right, power or privilege
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. The rights and remedies provided in this Agreement
are cumulative and not exclusive of any rights or remedies provided by
law.
|
13.
|
Time
of the Essence
|
Except
as
otherwise provided for in this Agreement, time shall be of the essence as
regards the times and dates referred to in this Agreement and as regards any
times and dates which may be substituted for them by agreement between the
parties.
|
14.
|
Counterparts
|
This
Agreement may be executed in any number of counterparts. This has the same
effect as if the signatures on the counterparts were on a single copy of this
Agreement.
|
15.
|
Contracts
(Rights of Third Parties) Acts
1999
|
A
person
who is not a party to this Agreement has no right under the Contracts (Rights
of
Third Parties) Act 1999 (UK) (or any similar legislation in force in another
jurisdiction) to enforce or enjoy the benefit of any term of this
Agreement.
|
16.
|
Assignment
|
This
Agreement shall benefit and bind the Borrower, the Lender and their respective
successors and permitted assigns. Neither party may assign or transfer all
or
any of its rights without the prior written consent of the other
party.
|
17.
|
Governing
Law
|
|
17.1
|
This
Agreement is governed by ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇.
|
|
▇▇.▇
|
▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ courts have exclusive jurisdiction to settle any
dispute
in connection with this Agreement. The Borrower appoints ▇▇▇▇▇▇▇
Winter
& ▇▇▇▇▇▇▇▇ of ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ as
its
agent to accept service of process on its behalf.
|
AS
WITNESS
whereof
this Agreement has been entered into as an Agreement on the date first written
above.
8
Schedule
1
Drawdown
Notice
| To: |
EBET
LIMITED
|
June
,
2007
Dear
Sirs
Loan
Agreement dated June, 2007 (the “Agreement”)
We
refer
to the Agreement. Terms defined in the Agreement shall have the same meaning
in
this notice.
We
hereby
give you notice that we wish to make a drawdown under the
Agreement.
| 1. |
Amount
of Loan to be drawn down:.
|
| 2. |
Payment
instructions:
|
Bank:
Address:
Sort
Code:
Account
No:
Drawdown
Date:
For
and on behalf of OCTAVIAN INTERNATIONAL LIMITED
9
Octavian
International Limited
Incorporated
in England and Whales
Company
No, 04165988
▇▇-▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Southend
Road
Woodford
Green
Essex
AGS
SHD
| To: |
EBET
LIMITED
|
▇▇▇▇
▇▇
▇▇▇-▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇
June
19,
2007
Dear
Sirs
Loan
Agreement dated 20 June, 2007 (the “Agreement”)
We
refer
to the Agreement. Terms defined in the Agreement shall have the same meaning
in
this notice.
We
hereby
give you notice that we wish to make a drawdown under the
Agreement.
| 1. |
Amount
of Loan to be drawn down: AUS $2.5
million.
|
| 2. |
Payment
instructions:
|
| Bank: |
HSBC
Bank pic
|
| Address: |
▇▇
▇▇▇▇▇▇▇
|
▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇
▇▇▇
| Sort Code: |
400515
|
| Account No: |
▇▇▇▇▇▇▇▇
|
| Drawdown Date: |
25
June 2007
|
For
and on behalf of OCTAVIAN INTERNATIONAL LIMITED
/s/
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇
CEO
10
Octavian
International Limited
Incorporated
in England and Whales
Company
No, 04165988
▇▇-▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Southend
Road
Woodford
Green
Essex
AGS
SHD
| To: |
EBET
LIMITED
|
▇▇▇▇
▇▇
▇▇▇-▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇
July
23,
2007
Dear
Sirs
Loan
Agreement dated June, 2007 (the “Agreement”)
We
refer
to the Agreement. Terms defined in the Agreement shall have the same meaning
in
this notice.
We
hereby
give you notice that we wish to make a drawdown under the
Agreement.
| 1. |
Amount
of Loan to be drawn down: AUS $1.5
million.
|
| 2. |
Payment
instructions:
|
| Bank: |
HSBC
Bank pic
|
| Address: |
▇▇
▇▇▇▇▇▇▇
|
▇▇▇▇▇▇▇
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| Sort Code: |
400515
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| Swift address: |
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| Account No: |
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| Drawdown Date: |
July
26th
2007
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For
and on behalf of OCTAVIAN INTERNATIONAL LIMITED
/s/
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CEO
11
Schedule
3
MFS
Causeway Loan Agreement
12
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EXECUTED
as
an agreement by
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)
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/s/ ▇▇▇ ▇▇▇▇▇ |
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EBET
LIMITED in
accordance with s 127 of the Corporations Act 2001
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)
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………………………………………………………….
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Director
▇▇▇ ▇▇▇▇▇
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…………………………………………………………
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director/secretary
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EXECUTED
as
an agreement by
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)
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/s/
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇
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OCTAVIAN
INTERNATIONAL LIMITED
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)
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………………………………………………………….
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director
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…………………………………………………………
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witness
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13
6
June
2007
▇▇.
▇▇▇▇
▇▇▇▇▇▇
CEO
and
Managing Director
eBet
Limited
▇▇▇▇
▇▇
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▇▇▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇
Dear
Sir:
| Re: |
A$5.0m
Bridging Loan Cash Advance
Facility
|
Thank
you
for considering MFS Causeway for the provision of up to A$5.0 million bridging
loan cash advance facility to eBet Limited’s wholly owned subsidiary, eBet
Gaming Systems Pty Limited.
We
are
pleased to submit this non-binding, indicative letter of offer for MFS Causeway
to provide the proposed facility. This letter replaces our indicative letter
dated 28 May 2007 which was not accepted and is hereby withdrawn. The revised
proposed terms and conditions are summarized below, with more detailed
conditions to be set out in an offer letter, which will be made available to
you
once we have form approval:
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Borrower:
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eBet
Gaming Systems Pty Limited
|
|
Lender:
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Funds
managed by MFS Limited group (specific fund to be determined)
|
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Guarantors:
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eBet
Limited (“eBet”) and all Australian subsidiaries, including eBet Gaming
Systems Pty Limited, Maxi Gaming Pty Limited and eBet Systems Pty
Limited,
which together are to represent at least 85% of group EBITDA and
Total
Assets.
|
|
Facilities
and Amount:
|
A$5
million Bridging Loan Cash Advance
|
|
Purpose:
|
To
provide working capital funding to the eBet group including enabling
eBet
to manufacture and supply Maverick 1000 machines.
The
parties agree to investigate the potential structuring and funding
of
Maverick 1000 terminals on a medium term basis. eBet will provide
further
information on its business plans for the Maverick 1000 to enable
Causeway
to put forward a funding proposal for consideration by eBet.
|
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Facility
Term:
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6
months from closing, with Final Maturity Date no later than 31 December
2007
|
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Availability
Period and Drawings:
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60
days from closing.
Minimum
initial drawing of $2 million with subsequent drawings to be for
minimum
of $100,000 for minimum of 30 days.
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14
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Pricing:
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Establishment
Fee
-
$100,000, payable $25,000 on acceptance of this indicative letter,
$25,000
on Causeway confirming formal approval and balance on closing
Interest
Rate
-
13.0%pa, increasing by 0.5% pa monthly after 3 months from the initial
drawdown. Interest will be payable monthly in arrears.
Facility
Fee
-
2.0% pa of the undrawn commitment amount, payable monthly in
arrears.
|
|
Security
& Documentation:
|
Initially
the Facility will be unsecured, with eBet providing appropriate
undertakings that:
(1) There
will be no further debt other than the proposed $12 million Convertible
Note Facility;
(2) Negative
pledge i.e. no security to be provided to any party other than
existing security provided to St. ▇▇▇▇▇▇ Bank;
(3) eBet
Limited will enter into underwriting agreement (within 30 days unless
otherwise agreed) with Southern-Cross Equities or other acceptable
underwriter for raising minimum $10 million in net proceeds from
the issue
of Convertible Notes by eBet Limited;
(4) If
the Facility is not repaid within 3 months from closing, then eBet
and its
subsidiaries will provide second ranking Fixed & Floating Charge over
the assets and undertakings of:
I. eBet
Limited
II. eBet
Gaming Systems Pty Limited
III. Maxi
Gaming Pty Limited
IV. eBet
Systems Pty Limited; and
V. any
other Australian member of the eBet group now or in future
The
Facility will be evidenced by documentation to be executed by and
satisfactory to all parties. Documentation shall include such terms
and
conditions usual for transactions of similar nature, including but
not
limited to, payments, events of defaults, cross default, representations
and warranties, undertakings, negative pledge, covenants, conditions
precedent, conditions subsequent, change of circumstances clauses,
indemnity, illegality, submission to jurisdiction, waiver of immunity,
tax
gross-up, material adverse change clauses, and set off.
All
legal costs, stamp duties, GST and other out-of-pocket expenses are
for
the account of the Borrower. All payments to be made by the Borrower
shall
be made free and clear of all present or future taxes, levies or
duties or
other deductions.
Standard
legal due diligence to be undertaken.
|
15
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Conditions
Precedent:
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All
Conditions Precedent usual for a facility of this nature to be to
the
satisfaction of MFS Causeway.
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Condition
Subsequent:
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eBet
Limited to enter into signed underwriting agreement regarding the
Convertible Note issue to raise minimum net proceeds of $10
million.
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Repayment:
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The
Facility to be repaid on the earlier of receipt of the net proceeds
of the
proposed $12 million Convertible Note Issue and Final Maturity, unless
otherwise agreed with the Lender.
In
addition, prior to the signing by eBet Limited of the underwriting
agreement, any amounts received by the eBet group from Octavian in
payment
for the Maverick 1000 units funded by this Facility will be on-paid
to MFS
in permanent reduction of the Facility outstanding.
Any
amount outstanding on Final Maturity must be repaid.
|
|
Early
Repayment:
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Remitted
at any time. In the event the Loan’s partially or fully drawn and repaid
within 3 months of initial drawdown, the Borrower will be required
to top
up the interest payments such that a minimum of 3 months interest
in
aggregate on full loan commitment amount (whether or not drawn) will
have
been paid to the Lender.
|
|
Reporting
Requirements:
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To
include:
· Unaudited
Monthly management accounts (within 30 days of month end);
· Annual
audited accounts (within 90 days of financial year end)
· Financial
covenants as provided to the existing lender
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|
Governing
Law:
|
|
|
This
letter is confidential. You may not disclose it to any person other
than
your accountants, lawyers and other appropriate advisors and then
only on
a confidential basis and in connection with the proposed
Facility.
As
part of our due diligence process, eBet agrees to pay us an Upfront
Fee of
$25,000 (plus GST). In addition, you will reimburse us on demand
for any
out-of-pocket expenses incurred by us, including legal costs and
GST,
during the due diligence process. The Upfront Fee is payable on acceptance
of this indicative letter. MFS Causeway will refund this Up-Front
Fee only
if it withdraws from the process or does not approve the proposed
Facility. The Upfront fee will be offset against the Establishment
Fee
referred to above, on closing.
|
|
16
As
you
will appreciate, this letter is indicative only and non-binding. Any facilities
extended will be conditional upon all further due diligence being satisfactory
to MFS Causeway; no material change in the eBet business (financial or
otherwise) or prospects of the eBet business; final credit approval; and
the
completion and execution of documentation recording the Facilities and
Securities satisfactory to MFS Causeway.
Kindly
indicate your acceptance of the terms of this letter by executing and returning
a copy of this letter, along with a cheque in the amount of the Upfront Fee
plus
GST (please make the cheque for $27,500 payable to MFS Administration Pty
Limited). Upon our receipt, we will schedule any necessary further confirmatory
due diligence and finalize our credit investigation.
Sparke
Helmore will be preparing all legal documents on our behalf. Attached is
a copy
of e-mail dated 28 May 2007 from ▇▇▇ ▇▇▇▇▇▇, Partner, Sparke Helmore, settling
out the scope of their work. Based on the assumptions included therein, Sparke
Helmore has estimated their legal costs at $5,000 to $7,500 (plus GST and
disbursements). We understand that eBet Limited wants the legal work to commence
immediately to allow for signing of legal documentation shortly after formal
approval is received by MFS. By accepting this letter, you accept that eBet
Limited will reimburse MFS for any legal costs incurred whether or not MFS
provides the proposed facility - however, if MFS does not obtain approval
to
provide the facility, legal costs will be capped at a maximum of
$7,500.
We
will
have no obligation to you under this letter unless you sign and return the
enclosed copy together with the expense payment by no later than 5pm Wednesday,
6 June 2007.
Please
contact us if you have any questions regarding this letter.
Thank
you
again for allowing us the opportunity to provide these services to
you.
Yours
faithfully,
| /s/ ▇▇▇ ▇▇▇▇▇▇ | /s/ ▇▇▇ ▇▇▇▇▇▇ |
| ▇▇▇ ▇▇▇▇▇▇ | ▇▇▇ ▇▇▇▇▇▇ |
| Managing Director | Head of Credit |
| MFS Causeway Financial Services | MFS Causeway Financial Services |
ACCEPTED
AND AGREED BY EBET
LIMITED
|
/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
|
/s/ ▇▇▇ ▇▇▇▇▇ |
|
Name:
▇▇▇▇▇▇▇
▇▇▇▇▇▇
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▇▇▇ ▇▇▇▇▇ |
|
Title:
CEO
and Director
|
Non-Executive Director |
|
Date:
June
6, 2007
|
June 6, 2007 |
17
Drawdown
Notice
eBet
Gaming Systems Pty Ltd ABN 50 086 218 831
| To: |
Perpetual
Nominees Limited ABN 37 000 733 700 (as custodian for the MFS Premium
Income Fund) (MFS)
|
| Address: |
c/o
MFS Limited
|
▇▇▇▇▇
▇,
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
| Telephone: |
(▇▇)
▇▇▇▇ ▇▇▇▇
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| Facsimile: |
(▇▇)
▇▇▇▇ ▇▇▇▇
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Facility
Agreement
We
refer
to the facility offer dated 18 June 2007 between Perpetual Nominees Limited
ABN
37 000 733 700 (as custodian for the MFS Premium Income Fund) (MFS),
eBet
Gaming Systems Pty Ltd ABN 50 086 218 831 (Borrower)
and
each entity listed as a Guarantor in that document (the Facility
Agreement).
Terms
used in this Drawdown Notice which are defined in the Facility Agreement have,
unless the context otherwise requires, the same meanings as in the Facility
Agreement.
|
1.
|
The
Borrower requests MFS to make a drawdown under the Facility details
of
which appear below:
|
Drawdown
Date: 22nd
June,
2007
Amount:
A$2,500,000
Purpose:
Working capital
|
2.
|
The
representations and warranties provided by us under the Facility
Agreement
will be true and not misleading (whether by omission or otherwise)
on the
Drawdown Date with reference to the facts and circumstances then
subsisting.
|
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3.
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No
default or event of default (however described) has occurred and
is
subsisting or will occur as a result of any drawdown or advance of
the
Facility being made.
|
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4.
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This
drawdown is being applied for the purpose stated on page 13 of the
Facility Agreement (Approved
Purpose)
and attached is sufficient evidence to enable MFS to determine that
the
drawdown is to be applied for an Approved
Purpose.
|
|
5.
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The
Borrower directs MFS to pay the net proceeds of the drawdown in the
following manner:
|
| 5.1 |
A$27,500
to MFS Administration Pty, Limited;
|
| 5.2 |
A$55,000
to MFS Causeway Financial Services Pty, Limited;
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| 5.3 |
A$2,417,500
to Octavian International Limited.
|
|
6.
|
Payment
instructions:
|
| Account: |
Octavian
International Limited
|
| Bank: |
HSBC
Bank plc
|
| Address: |
▇▇
▇▇▇▇▇▇▇
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18
| Sort Code: |
400515
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| SWIFT Code: |
MIDLGB
22
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| Account No.: |
▇▇▇▇▇▇▇▇
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| Drawdown Date: |
22nd
June, 2007
|
Dated:
29th
June,
2007
For
and
on behalf of
eBet
Gaming Systems Pty Ltd
ABN
50
086 218 831
By
its
authorised representative
|
▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
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/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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|
Name
(print)
|
Signature |
|
CEO
and Managing Director,
|
|
|
Capacity
of signatory
|
19
Schedule
2
Notification
Details
| Borrower: |
| Borrower: Address: |
▇▇▇▇
▇▇▇▇▇, ▇-▇ ▇▇▇▇ ▇▇▇▇▇▇,
|
▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇
| Fax: |
▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇
|
| All to be marked for the attention of: | ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇/▇▇▇▇ ▇▇▇▇▇▇▇ |
| Lender: |
| Address: | Suite 13, ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, |
| ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ |
| Fax: | + ▇▇ ▇ ▇▇▇▇ ▇▇▇▇ |
| All to be marked for the attention of: | ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ |