CONFORMED COPY
NEW SOUTH WALES
STAMP DUTY PAID $2
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BILL FACILITY AGREEMENT
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AGREEMENT dated 17 October 1997 between:
1. CASE CREDIT AUSTRALIA PTY LIMITED (ACN 069 132 396) incorporated in
Victoria, with its principal place of business at ▇▇-▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ (the BORROWER);
2. EACH BANK OR FINANCIAL INSTITUTION named in the schedule (each, a
PARTICIPANT); and
3. NATIONAL AUSTRALIA BANK LIMITED (ACN 004 044 937) of Level 26, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, Sydney as agent for the Participants (in this capacity, the
AGENT).
RECITAL
The Borrower and the Guarantor have requested the Agent and the Participants to
provide the Borrower with a bill acceptance and discount facility of an amount
up to A$400,000,000.
IT IS AGREED as follows.
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
The following definitions apply unless the context requires otherwise.
ACCOUNTS means profit and loss accounts, balance sheets and cashflow
statements together with any statements, reports (including any directors'
and auditors' reports) and notes attached to or intended to be read with
any of them.
AFFILIATE means, in relation to any person, any other person (other than a
Subsidiary) which, directly or indirectly, is in control of, is controlled
by, or is under common control with that person. For the purposes of this
definition, control of a person means the power, directly or indirectly,
either to:
(a) vote 10% or more of the securities or other equity interests having
ordinary voting power for the election of directors or other
governing bodies of that person; or
(b) direct or cause the direction of the management and policies of the
person, whether by contract or otherwise.
ASSOCIATE of an entity means a RELATED PARTY as defined in s243F of the
Corporations Law.
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AUTHORISATION includes:
(a) any consent, authorisation, registration, filing, lodgement,
agreement, notarisation, certificate, permission, licence, approval,
authority or exemption from, by or with a Government Agency; or
(b) in relation to anything which will be fully or partly prohibited or
restricted by law if a Government Agency intervenes or acts in any
way within a specified period after lodgement, filing, registration
or notification, the expiry of that period without intervention or
action.
AUTHORISED OFFICER means:
(a) in respect of the Borrower, any director or secretary of the
Borrower, the Treasurer of the Guarantor, or any person from time to
time nominated as an Authorised Officer by the Borrower by a notice
to the Agent accompanied by certified copies of signatures of all
new persons so appointed; and
(b) in respect of the Agent or a Participant, any person whose title or
acting title includes the word MANAGER or PRESIDENT or cognate
expressions, or any secretary or director.
BBR for a period is:
(a) the Reuters screen page BBSY bid rate for that period at about
10.15am on the first day of that period, or if there is none, the
rate selected by the Agent as equivalent; or
(b) in the case of a Participant's participation in any Same Day
Segment, that Participant's bank bill rate for that period on the
first day of that period.
Rates will be rounded upward if necessary to 3 decimal places.
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.
BUSINESS DAY means a weekday on which banks are open for business in
Sydney and Melbourne.
CASE VENDOR FINANCING means financing which is provided by a person other
than Case Corporation Pty Limited or any of its Subsidiaries or
Affiliates, to a customer of Case Corporation Pty Limited or of any of its
Subsidiaries or Affiliates.
COMMITMENT in relation to a Participant for Tranche A means the amount
against its name in column 3 of the schedule and for Tranche B means the
amount against its name in column 4 of the schedule, as reduced or
cancelled under this Agreement.
CONTRACTUAL OBLIGATION means, in relation to any person, any provision of
any security issued by that person or of any agreement, instrument or
other undertaking to which the person is a party or by which it or any of
its property is bound.
DRAWDOWN DATE means the date on which any accommodation under this
Agreement is or is to be drawn.
DRAWDOWN NOTICE means a notice under clause 5.
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EVENT OF DEFAULT means any of the events specified in clause 17.1.
FINANCING LEASE means any lease of property, real or personal, in respect
of which the lessee's obligations are required, in accordance with current
accounting practice, to be capitalised on the lessee's balance sheet.
FUNDING PERIOD means the term of the Bills comprising a Segment. That
period commences on the Drawdown Date of that Segment and has a duration
selected under clause 7.
GOVERNMENT AGENCY means any government or any governmental, semi-
governmental or judicial entity or authority. It also includes any self-
regulatory organisation established under statute or any stock exchange.
GROUP means the Borrower and each of its Subsidiaries from time to time.
GROUP MEMBER means any of them.
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
Indebtedness of another party, either directly or indirectly (for example,
by acquiring the Indebtedness).
GUARANTEE DEED POLL means the guarantee and negative pledge deed poll
dated on or about the date of this Agreement by the Guarantor in favour
of, among others, the Indemnified Parties.
GUARANTEE OBLIGATION in relation to any person (the GUARANTEEING PERSON)
means, without duplication, any obligation of:
(a) the guaranteeing person; or
(b) another person (including any bank under any letter of credit) the
creation of which was induced by the guaranteeing person issuing a
reimbursement, counter indemnity or similar obligation,
in either case guaranteeing or in effect guaranteeing any Indebtedness,
leases, dividends or other obligations (the PRIMARY OBLIGATIONS) of any
person (the PRIMARY OBLIGOR) in any manner, whether directly or
indirectly. It includes an obligation of the guaranteeing person, whether
or not contingent:
(i) to purchase any such primary obligation or any property
constituting direct or indirect security for it;
(ii) to advance or supply funds for the purchase or payment of any such
primary obligation or to maintain working capital or equity capital
of the primary obligor or otherwise to maintain the net worth or
solvency of the primary obligor;
(iii) to purchase property, securities or services primarily for the
purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of the primary
obligation; or
(iv) otherwise to assure or hold harmless the owner of any such primary
obligation against loss in respect of it.
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It does not include endorsement of instruments for deposit or collection in
the ordinary course of business or obligations in respect of trade
liabilities incurred in the ordinary course of business and payable in
accordance with customary practices.
Without limiting any Guarantee given in respect of the Secured Money, the
amount of any Guarantee Obligation of any GUARANTEEING PERSON will be taken
to be the lower of:
(A) an amount equal to the stated or determinable amount of the PRIMARY
OBLIGATION in respect of which the Guarantee Obligation is made; and
(B) the maximum amount for which the guaranteeing person may be liable
under the terms of the instrument embodying the Guarantee
Obligation,
unless the primary obligation and the maximum amount for which the
guaranteeing person may be liable are not stated or determinable, in which
case the amount of the Guarantee Obligation will be the guaranteeing
person's maximum reasonably anticipated liability in respect of it as
determined by the Borrower in good faith.
GUARANTOR means Case Credit Corporation, a company incorporated in Delaware
with its principal office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇,
▇▇▇.
INDEBTEDNESS in relation to any person at any time, means, without
duplication:
(a) all indebtedness of the person for borrowed money or for the
deferred purchase price of property or services (other than trade
liabilities incurred in the ordinary course of business and payable
in accordance with customary practices);
(b) any other indebtedness of the person which is evidenced by a note,
bond, debenture or similar instrument;
(c) all obligations of the person as lessee under Financing Leases;
(d) the discounted amount of all obligations of the person in respect of
acceptances issued or created for the account of the person;
(e) all liabilities secured by any Lien on any property owned by the
person even though the person has not assumed or otherwise become
liable for the payment of it;
(f) all net liabilities of the person in respect of Interest Rate
Agreements;
(g) all Guarantee Obligations in respect of Indebtedness referred to in
the preceding paragraphs of this definition; and
(h) if the person is the Borrower or any of its Subsidiaries, all
obligations of that person incurred in connection with any
securitisation or other asset-backed financing of Receivables, to
the extent those obligations are excluded from the definition of
Permitted Securitisation Obligations by operation of the proviso to
that definition.
Despite the above, Permitted Vendor Financing Obligations do not constitute
Indebtedness under this definition.
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INDEMNIFIED PARTY means the Agent or a Participant.
INTEREST RATE AGREEMENT means any interest rate protection agreement,
interest rate future, interest rate option, interest rate cap or other
interest rate hedge arrangement.
LIEN means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other
security interest or any preference, priority or other security agreement
or preferential arrangement of any kind or nature whatever (including any
conditional sale or other title retention agreement and any Financing Lease
having substantially the same economic effect as any of the above).
LIQUIDATION includes receivership, compromise, arrangement, amalgamation,
administration, reconstruction, winding up, dissolution, assignment for the
benefit of creditors, bankruptcy or death.
MAJORITY PARTICIPANTS means Participants whose Commitments are two thirds
or more of the sum of the Commitments.
MARGIN:
(a) in respect of Tranche A, means:
(ii) until the first anniversary of the date of this Agreement,
0.185% per annum; and
(iii) afterwards, the same rate per cent per annum as applies from
time to time under paragraph (b);
(b) in respect of Tranche B, will vary depending on the long term debt
rating of the Guarantor by Standard & Poors and ▇▇▇▇▇'▇ Investors
Service Pty Ltd and will be the figure which corresponds to the
relevant long term debt rating below:
LONG TERM DEBT RATING MARGIN
S&P/MOODY'S
A/A2 0.155%
A-/A3 0.170%
BBB+/Baa1 0.200%
BBB/Baa2 0.250%
BBB-/Baa3 0.275%
BB+/Ba 0.425%
BB/Baa2 or lower 0.575%
Where the ratings of those agencies do not coincide, the Margin
corresponding to the higher of those ratings will apply.
MARKETABLE SECURITY has the meaning given in the Corporations Law, but also
includes a document referred to in the exceptions to the definition of
DEBENTURE in the Corporations Law.
MATERIAL ADVERSE EFFECT means a material adverse effect on:
(a) the business, operations, property or condition (financial or
otherwise) of the Group;
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(b) the ability of the Borrower or the Guarantor to perform its
obligations under this Agreement or any other Transaction Document;
or
(c) the rights or remedies of the Agent or Participants under the
Transaction Documents.
MATERIAL SUBSIDIARY means any Subsidiary of the Borrower whose assets or
revenues (excluding inter-company receivables and revenues that would be
eliminated upon consolidation in accordance with current accounting
practice) are, at the time of determination, equal to or greater than 10%
of the assets or revenues (excluding inter-company receivables and revenues
that would be eliminated upon consolidation in accordance with current
accounting practice), respectively, of the Borrower at such time.
PERMITTED SECURITISATION OBLIGATIONS means obligations of the Borrower or
any of its Subsidiaries incurred in connection with any securitisation or
other asset-backed financing of Receivables; except that, if:
(a) there is recourse to the Borrower or any of its Subsidiaries (other
than a Special Purpose Subsidiary) for failure to pay or otherwise
perform any of those obligations;
(b) that failure arises as a result of credit defaults by the debtors in
respect of those Receivables; and
(c) that recourse is not limited to the Receivables and the Receivables
Related Assets (or undivided or beneficial interests in them) which
are the subject of such securitisation or other asset-backed
financing,
then those obligations will not be considered Permitted Securitisation
Obligations within the meaning of this definition to the extent that, in
accordance with current accounting practice, the obligations would be
required to be included as a liability on a consolidated balance sheet of
the Group.
PERMITTED VENDOR FINANCING OBLIGATIONS means any Guarantee Obligation of
the Group in respect of Case Vendor Financing, but only to the extent that
the underlying principal amount of the Indebtedness subject to the
Guarantee Obligation is secured or otherwise funded by the Group with cash
or other marketable instruments (including pledges of deposit accounts,
notes, bonds, certificates of deposit or other documents or instruments).
POTENTIAL EVENT OF DEFAULT means anything which with notice, time or both
would become an Event of Default.
PRINCIPAL OUTSTANDING means the total principal amount of all outstanding
Segments.
RECEIVABLES means any right of payment from or on behalf of any obligor,
whether constituting an account, chattel paper, instrument, general
intangible or otherwise, arising from the financing by the Borrower or any
of its Subsidiaries of property or services, and money due under them,
security interests in the property and services financed by them and all
other related rights.
RECEIVABLES RELATED ASSETS means in connection with any securitisation or
other asset-backed financing of, or other sale, transfer or disposition of,
Receivables, the collective reference to:
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(a) any rights arising under the documentation governing or relating to
those Receivables (including rights in respect of Liens securing the
Receivables and other credit support in respect of them);
(b) any proceeds of the Receivables and any locked boxes or accounts in
which those proceeds are deposited;
(c) spread accounts and other similar accounts (and any amounts on
deposit in them) established in connection with that securitisation
or asset-backed financing; and
(d) any warranty, indemnity, dilution and other intercompany claim
arising out of the documentation evidencing that securitisation or
asset-backed financing.
RELATED ENTITY means an entity which is related within the meaning of s50
of the Corporations Law, but as if BODY CORPORATE includes any entity.
RELEVANT COMPANY means:
(a) the Borrower or any of its Subsidiaries; or
(b) the Guarantor or another person who gives or creates a Guarantee or
Lien which secures any Secured Money.
REPAYMENT DATE means:
(a) for Tranche A, the date which is 364 days after the date of this
Agreement or any later date agreed from time to time in accordance
with clause 4.4; and
(b) for Tranche B, the fifth anniversary of the date of this Agreement.
REQUIREMENT OF LAW means, in relation to any person, the certificate of
incorporation and by-laws or other organisational or governing documents of
that person, and any law, treaty, rule, guideline or regulation or
determination of an arbitrator or a court or other Government Agency, in
each case applicable to or binding on that person or any of its material
property or to which that person or any of its material property is
subject.
REVOLVING CREDIT AGREEMENT means the revolving credit and guarantee
agreement dated as of 23 August 1996 between the Guarantor as a Borrower,
The Chase Manhattan Bank as Administrative Agent and the other Borrowers,
Lenders, Co-Agents and Lead Managers named in it.
SAME DAY SEGMENT means a Segment of Tranche A which is drawn on a SAME DAY
BASIS as permitted by clause 5.2.
SECURED MONEY means all money which the Borrower (whether alone or not) is
or at any time may become actually or contingently liable to pay to or for
the account of an Indemnified Party (whether alone or not) for any reason
whatever under or in connection with a Transaction Document.
It includes money by way of principal, interest, fees, costs, indemnities,
charges, duties or expenses or payment of liquidated or unliquidated
damages under or in connection with a Transaction Document, or as a result
of a breach of or default under or in connection with a Transaction
Document.
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Where the Borrower would have been liable but for its Liquidation, it will
be taken still to be liable.
SEGMENT means all Bills accepted or to be accepted under this Agreement
which comprise the same Tranche and have the same date and term and all
loans taken to be made under clause 10.2 in relation to those Bills.
SHARE of a Participant, in respect of a Segment, means the proportion of
that Participant's participation in that Segment to the amount of the
Segment. That proportion will be determined under clause 3.2.
SPECIAL PURPOSE SUBSIDIARY means any wholly owned Subsidiary of the
Borrower which is:
(a) formed for the purpose of effecting a securitisation or other asset-
backed financing of Receivables and engaging in other reasonably
related activities; and
(b) structured as a BANKRUPTCY-REMOTE SUBSIDIARY in accordance with
customary practices in the asset-backed securitisation market.
SUBSIDIARY has the meaning given in the Corporations Law, but an entity
will also be taken to be a Subsidiary of an entity if it is controlled by
that entity (expressions used in this paragraph have the meanings given for
the purposes of Parts 3.6 and 3.7 of the Corporations Law) and, without
limitation:
(a) a trust may be a Subsidiary, for the purposes of which a unit or
other beneficial interest will be regarded as a share; and
(b) an entity may be a Subsidiary of a trust if it would have been a
Subsidiary if that trust were a corporation.
SUPPORT AGREEMENT means the Support Agreement dated 10 January 1996 between
Case Corporation and the Guarantor.
TAX means any tax, levy, impost, deduction, charge, rate, duty, compulsory
loan or withholding which is levied or imposed by a Government Agency, and
any related interest, penalty, charge, fee or other amount.
THRESHOLD AMOUNT means US$60,000,000.
TRANCHE means Tranche A or Tranche B.
TRANCHE A means financial accommodation provided or to be provided under
this Agreement which is requested as Tranche A in the relevant Drawdown
Notice.
TRANCHE B means financial accommodation provided or to be provided under
this Agreement which is requested as Tranche B in the relevant Drawdown
Notice.
TRANSACTION DOCUMENT means this Agreement, the Guarantee Deed Poll, any
Bill, any Guarantee or Lien in respect of any of the Secured Money or a
document or agreement entered into or provided under or in connection with,
or for the purpose of amending or novating, any of the above. It includes a
written undertaking by or to a party or its lawyers under or in relation to
any of the above.
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1.2 INTERPRETATION
Headings are for convenience only and do not affect interpretation. The
following rules apply unless the context requires otherwise.
(a) The singular includes the plural and the converse.
(b) A gender includes all genders.
(c) Where a word or phrase is defined, its other grammatical forms have
a corresponding meaning.
(d) A reference to a person, corporation, trust, partnership,
unincorporated body or other entity includes any of them.
(e) A reference to a clause, annexure or schedule is a reference to a
clause of, or annexure or schedule to, this Agreement.
(f) A reference to a party to this Agreement or another agreement or
document includes the party's successors and permitted substitutes
or assigns.
(g) A reference to legislation or to a provision of legislation includes
a modification or re-enactment of it, a legislative provision
substituted for it and a regulation or statutory instrument issued
under it.
(h) A reference to WRITING includes a facsimile transmission and any
means of reproducing words in a tangible and permanently visible
form.
(i) A reference to CONDUCT includes an omission, statement or
undertaking, whether or not in writing.
(j) Mentioning anything after INCLUDE, INCLUDES or INCLUDING does not
limit what else might be included.
(k) A reference to DISCOUNTING a ▇▇▇▇ includes selling it as agent for
the Borrower.
(l) A reference to an ASSET includes any real or personal, present or
future, tangible or intangible property or asset (including
intellectual property) and any right, interest, revenue or benefit
in, under or derived from the property or asset.
(m) All references to TIME are to Sydney time.
(n) A reference to an amount for which a person is CONTINGENTLY LIABLE
includes an amount which that person may become actually or
contingently liable to pay if a contingency occurs, whether or not
that liability will actually arise.
1.3 OUTSTANDING BILLS
A reference to an OUTSTANDING BILL is to a Bill which has been accepted or
discounted under this Agreement for which the Borrower has not paid the
face amount or provided cash cover under this Agreement. This applies
whether or not that Bill has matured, been presented for payment or been
paid on presentation by the relevant Participant.
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1.4 PRINCIPAL AMOUNT
A reference to the PRINCIPAL AMOUNT of all or part of a Segment is to the
sum of the face amount of the Bills comprising that Segment or part.
1.5 DOCUMENT OR AGREEMENT
A reference to:
(a) an AGREEMENT includes a Lien, Guarantee, undertaking, deed,
agreement or legally enforceable arrangement whether or not in
writing; and
(b) a DOCUMENT includes an agreement (as so defined) in writing or a
certificate, notice, instrument or document.
A reference to a specific agreement or document includes it as amended,
novated, supplemented or replaced from time to time, except to the extent
prohibited by this Agreement.
1.6 DETERMINATION, STATEMENT AND CERTIFICATE
Except where otherwise provided in this Agreement any determination,
statement or certificate by the Agent or an Authorised Officer of the
Agent provided for in this Agreement is sufficient evidence unless proven
wrong.
1.7 CURRENT ACCOUNTING PRACTICE
A reference to CURRENT ACCOUNTING PRACTICE is to accounting principles and
practices applying by law or otherwise generally accepted in Australia,
consistently applied.
1.8 FAILURE TO NOTIFY
Unless otherwise provided in this Agreement, failure by the Agent to give
notice of anything to the Borrower or a Participant will not affect the
obligations of the Borrower in any way.
2. PURPOSE
The Borrower shall use the net proceeds of all accommodation provided
under this Agreement:
(a) to refinance its existing indebtedness;
(b) to provide liquidity support for the $1,000,000,000 promissory note
and medium term note programme established for the Borrower under a
dealership agreement dated on or about the date of this Agreement;
and
(c) for its general corporate purposes,
but for no other purpose.
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3. COMMITMENT
3.1 COMMITMENTS
(a) Subject to this Agreement each Participant agrees with the Borrower
to accept and discount bills comprising its participation in each
Segment.
(b) A Participant is not obliged to make, accept or discount Bills if as
a result the total face amount of its participation in all
outstanding Segments of a Tranche would exceed its Commitment for
that Tranche.
3.2 ALLOCATION AMONG PARTICIPANTS
(a) Subject to this clause, the Participants shall participate in each
Segment of a Tranche ratably according to their respective
Commitments for that Tranche.
(b) Subject to paragraph (d), the Borrower may request any Participant
to provide more than its ratable share of any Segment of Tranche A.
Without limitation, it may request any Participant to provide the
whole of that Segment. The Participant may, but is not obliged, to
do so.
(c) If agreement is reached between the Borrower and a Participant
under paragraph (b) they shall confirm it in writing and the
Borrower shall promptly notify the Agent. A copy of that agreement
must be attached to the Drawdown Notice for the Segment.
(d) No Participant is obliged to participate in a Segment of Tranche A
for an amount less than its ratable share determined in accordance
with paragraph (a).
(e) If a disproportionate drawing is made under paragraph (b) the
Borrower will use its best endeavours to request further drawings
so that the overall participation of each Participant in Tranche A
accords with paragraph (a).
3.3 OBLIGATIONS SEVERAL
The obligations and rights of each Participant under this Agreement are
several and:
(a) failure of a Participant to carry out its obligations will not
relieve any other Participant of its obligations;
(b) no Participant is responsible for the obligations of any other
Participant or the Agent; and
(c) subject to the provisions of the Transaction Documents each
Participant may separately enforce its rights under any Transaction
Document.
3.4 ENFORCEMENT THROUGH AGENT
Each Participant acknowledges that the rights and remedies of the
Participants under the Transaction Documents are also vested in the Agent,
and a Participant may not:
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(a) exercise those rights and remedies unless the Agent has failed to
exercise those rights and remedies within a reasonable time after
the Majority Participants have instructed it to do so; or
(b) take any proceedings for the Liquidation of the Borrower, unless
the Agent has given a notice under clause 17.2(a).
4. CANCELLATION OF COMMITMENTS - REDUCTION OF PRINCIPAL
OUTSTANDING
4.1 REPAYMENT DATES
The Commitments for Tranche A and Tranche B will be cancelled
automatically on the Repayment Date for the respective Tranches.
4.2 REDUCTION OF PRINCIPAL OUTSTANDING
The Borrower shall reduce the Principal Outstanding to the extent
necessary to ensure that it does not exceed at any time the sum of the
Commitments.
4.3 VOLUNTARY EARLY CANCELLATION
(a) Subject to this clause, the Borrower may cancel all or part of the
Commitments, whether for Tranche A or Tranche B or both at the same
time, by giving at least 30 days' notice to the Agent. That notice
is irrevocable.
(b) The relevant amount of the Commitments are cancelled automatically
on expiry of that notice.
(c) Partial cancellations must be in multiples of A$20,000,000 or any
other amount approved by the Agent.
(d) Cancellations affecting utilised Commitments under this clause may
only be made on the last day of the Funding Period of Segments of a
total principal amount equal to the cancelled utilised Commitments.
4.4 EXTENSION OF TRANCHE A REPAYMENT DATE
(a) The Borrower may request an extension of the Repayment Date for
Tranche A by a period of 364 days.
(b) If the Borrower wishes to make a request under paragraph (a) it
must give the Agent notice of that request not less than 30 days
and not more than 60 days before the Repayment Date.
(c) If the Participants:
(i) approve the requested extension, then the Repayment Date for
Tranche A will be considered to have been extended by a
period of 364 days; or
(ii) do not approve the requested extension, then the Repayment
Date for Tranche A will remain unchanged.
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(d) The Borrower may make requests under paragraph (a) in relation to
successive Repayment Dates but may not make more than one request
in relation to any particular Repayment Date.
4.5 APPLICATION AGAINST COMMITMENTS
Unless the Borrower specifies otherwise, cancellations under this clause
will be applied first against undrawn Commitments and then against
utilised Commitments.
4.6 ALLOCATION AMONG PARTICIPANTS
Cancellations and reductions of Commitments and the Principal Outstanding
under this clause in respect of a Tranche will be applied ratably among
the Participants according to their applicable Commitments and
participations in the Principal Outstanding.
4.7 NOTIFICATION
The Agent shall notify each Participant promptly of any notice received by
it under this clause and of the amount of that Participant's Commitment
which is cancelled or reduced.
5. DRAWDOWN NOTICES
5.1 WHEN NOTICE TO BE GIVEN
(a) To make a drawing the Borrower shall give to the Agent an
irrevocable Drawdown Notice substantially in the form of annexure
A, complying with clause 3.2(c) (to the extent it applies) and
specifying among other things whether the Segment belongs to
Tranche A or Tranche B and the amount and Funding Period of each
Segment.
(b) Subject to clause 5.2, that Drawdown Notice must be received by the
Agent by 10.30am 2 Business Days before the proposed Drawdown Date
(which must be a Business Day).
5.2 FUNDS DRAWN ON SAME DAY BASIS
(a) Subject to this Agreement, the Borrower may request any Segment of
Tranche A on a SAME DAY BASIS. In that case the Drawdown Notice
must specify that the Segment is drawn on that basis and must be
received by the Agent by 2pm on the proposed Drawdown Date (which
must be a Business Day).
(b) The total principal amount of all outstanding Same Day Segments
must not exceed at any time A$50,000,000.
5.3 NOTIFICATION OF PARTICIPANTS
The Agent shall notify each Participant promptly of the contents of each
Drawdown Notice and the amount of each Participant's Share of each Segment
requested.
6. PRINCIPAL AMOUNT OF SEGMENTS
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The Borrower shall ensure that the principal amount of each Segment is a
minimum of A$10,000,000 and a whole multiple of A$1,000,000 or the sum of
the undrawn Commitments for the relevant Tranche, unless the Agent agrees
otherwise.
7. SELECTION OF FUNDING PERIODS
(a) Subject to this clause, the Borrower may only select Funding Periods
of 1, 2, 3 and 6 months.
(b) The Borrower may select any other period which does not exceed 180
days agreed by the Agent.
(c) Should a Funding Period end on a day which is not a Business Day,
that Funding Period will be extended to the next Business Day in the
same calendar month or, if none, the preceding Business Day.
(d) If a Funding Period of a number of months starts on a date in a
month and there is no corresponding date in the month in which it is
to end, it will end on the last Business Day of the latter month.
(e) No Funding Period may extend beyond the Repayment Date for the
relevant Tranche. The Borrower shall select Funding Periods so as
to ensure that the Repayment Date for a Tranche coincides with the
last day of Funding Periods of all outstanding Segments of that
Tranche.
(f) If the Borrower fails to select Funding Periods complying with this
clause the Agent may vary any Drawdown Notice to ensure compliance.
8. PROCEDURE
8.1 PREPARATION OF BILLS
If the Borrower requests a Segment, then:
(a) the Agent shall promptly notify the Participants; and
(b) each Participant shall prepare the Bills comprising the Segment to
be drawn on it (if any) and sign them on behalf of the Borrower as
drawer.
8.2 REQUIREMENTS OF BILLS
▇▇▇▇▇ prepared under this clause must comply with the following.
(a) The total face amount of the Bills comprising a Segment must equal
the principal amount requested in the relevant Drawdown Notice.
(b) Each Bill must:
(i) to the extent practicable, have a face amount of A$500,000
or any other amount specified by the Agent;
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(ii) be expressed to be drawn by the Borrower on a Participant so
that the total face amount of the Bills drawn on each
Participant will equal its Share (if any) of the principal
amount of the relevant Segment;
(iii) have the Participant on which the Bill is drawn named as payee;
and
(iv) mature on the last day of the relevant Funding Period requested
in the relevant Drawdown Notice.
8.3 AUTHORITY OF PARTICIPANTS TO PREPARE BILLS
The Borrower irrevocably and for value authorises each Participant to
complete, perfect and deliver Bills under this clause. The Participants
may act through their Authorised Officers.
8.4 RESTRICTION ON USE OF BILLS BY AGENT AND PARTICIPANTS
Neither the Agent nor any Participant shall use or deal with any Bill
delivered to it or prepared by it except in accordance with this clause.
8.5 NOTIFICATION OF BBR
(a) By 2.30 pm on each Drawdown Date of a Same Day Segment each
Participant who is required to participate in that Segment shall
notify the Agent and the Borrower of BBR for that Participant's
participation in that Segment.
(b) By 11am on each Drawdown Date the Agent shall notify the Borrower and
each Participant who is required to participate in the relevant
Segment, of BBR for each Segment (other than a Same Day Segment) to be
drawn or continued on that date.
(c) Notification under this clause may be by telephone.
8.6 ACCEPTANCE AND DISCOUNT
Subject to this Agreement, on each Drawdown Date each Participant shall:
(a) accept the Bills drawn on it under this clause; and
(b) discount or procure the discount of those Bills and pay to the Agent
in immediately available funds by 12 noon an amount equal to the total
face amount of those Bills less the sum of:
(i) a discount amount in respect of those Bills which would result
in a yield to maturity calculated at the applicable BBR for the
relevant Funding Period;
(ii) an acceptance fee equal to the applicable Margin on that
Drawdown Date, calculated on a daily basis on the total face
amount of those Bills from and including that Drawdown Date to
their maturity date; and
(iii) any applicable stamp duty or other Tax payable by the Agent or
that Participant in respect of those Bills or in respect of any
payment, receipt or crediting of an account contemplated by
this clause (including financial institutions duty).
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On receipt the Agent shall pay the proceeds to the account nominated by
the Borrower in the relevant Drawdown Notice.
8.7 VARIATION OF PROCEDURES, SAME DAY SEGMENTS
(a) After consultation with the Borrower and the Participants, by
notice to them the Agent may vary any of the times by which
anything is to be done under this and the next clause for the
purpose of ensuring the effective operation of the procedures
contemplated by those clauses.
(b) In the case of any Same Day Segment anything which is to be done
under this clause shall be done on the proposed Drawdown Date as
soon as practicable after the Drawdown Notice is received.
9. INDEMNITY AND CASH COVER
9.1 INDEMNITY
The Borrower shall indemnify each Participant against all liabilities of
that Participant as acceptor or endorser of Bills.
9.2 CASH COVER
As between each Participant and the Borrower, the Borrower is primarily
liable in respect of ▇▇▇▇▇ accepted by that Participant. Accordingly:
(a) the liability of the Borrower with respect to any Bill will not be
taken to have been discharged because that Participant becomes the
holder of that Bill before, on or after its maturity;
(b) on the maturity date of the Bill the Borrower shall pay to the Agent
for the account of that Participant an amount equal to the face
amount of the Bill; and
(c) that payment will be made:
(i) if, and to the extent that, by 12 noon on that date the
Borrower has requested a Same Day Segment, by 2.30 pm on that
date; or
(ii) otherwise by 12 noon on that date.
10. ROLLOVER
10.1 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 the Borrower under clause 9.2 for the account of a Participant;
and
(b) by that Participant for the account of the Borrower under
clause 8.6,
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need be paid.
10.2 OVERDRAFT IF NO ROLLOVER
If:
(a) as a result of a condition precedent in clause 14.2 not being
satisfied or waived a Participant does not provide its participation
in a new Segment requested by the Borrower on the maturity of Bills
accepted by that Participant; and
(b) the Agent has not exercised its powers under clause 17.2(a),
the Borrower will not be obliged to provide cash cover under clause 9.2
for the maturing Bills to the extent of the amount of cash cover that the
Participant determines would have been provided out of the proceeds of its
participation in the new Segment, had that condition precedent been
satisfied. That amount will be taken to have been provided by the
Participant as a loan:
(c) which is repayable:
(i) when the relevant condition precedent is satisfied and the
Borrower is able to draw a new Segment; or
(ii) if earlier, when that Participant's Commitment is cancelled
or reduced (to the extent necessary to ensure the
Participant's participation in the Principal Outstanding
does not exceed, in relation to any Tranche, its Commitment
for that Tranche); and
(d) on which the Borrower shall pay interest calendar monthly in
arrears. The interest will accrue from day to day at a rate equal
to the applicable Margin plus the Participant's overdraft rate for
overdrafts to commercial customers from time to time.
11. FEES
11.1 FACILITY FEE
A facility fee accrues as follows:
(a) for Tranche A, at 0.065% per annum on the daily amount of the
Commitment of each Participant for Tranche A from the date of this
Agreement; and
(b) for Tranche B, at a rate which will vary depending on the long term
debt rating of the Guarantor by Standard & Poors and ▇▇▇▇▇'▇
Investors Service Pty Ltd, calculated on the daily amount of the
Commitment of each Participant for Tranche B from the date of this
Agreement. That rate will be the figure which corresponds to the
relevant long term debt rating below:
LONG TERM DEBT RATING RATE
S&P/MOODY'S
A/A2 0.070%
A-/A3 0.080%
BBB+/Baa1 0.100%
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BBB/Baa2 0.125%
BBB-/Baa3 0.175%
BB+/Ba 0.250%
BB/Baa2 or lower 0.300%
Where the ratings of those agencies do not coincide, the rate
corresponding to the higher of those ratings will apply.
11.2 CALCULATION AND PAYMENT
(a) The facility fee is calculated on the actual number of days elapsed.
(b) The Borrower shall pay the facility fee in advance on the fifteenth
Business Day of each calendar quarter and on the date of this
Agreement calculated on the relevant Commitment as at the date of
payment. It is not refundable.
11.3 AGENCY FEE
The Borrower shall pay to the Agent for its own account an agency fee in
the amount and at the times specified in a letter from the Agent to the
Borrower,countersigned by the Borrower, dated on or about the date of this
Agreement.
12. PAYMENTS
12.1 MANNER
The Borrower shall make all payments under any Transaction Document:
(a) by bank cheque delivered to the Agent at its address for service of
notices or by transfer of immediately available funds to the account
specified by the Agent from time to time, in either case, but
subject to clause 9.2(c), by 12 noon on the due date; and
(b) without set-off or counterclaim and without any deduction for any
present or future Taxes.
12.2 PAYMENT TO BE MADE ON BUSINESS DAY
If any payment is due on a day which is not a Business Day, the due date
will be the next Business Day in the same calendar month or, if none, the
preceding Business Day.
12.3 DISTRIBUTION BY AGENT
Unless any Transaction Document expressly provides otherwise, the Agent
shall promptly distribute amounts received under any Transaction Document
for the account of the Participants ratably among them.
12.4 APPROPRIATION WHERE INSUFFICIENT MONEYS AVAILABLE
The Agent may appropriate amounts it receives as between principal,
interest and other amounts then payable as it sees fit. This appropriation
will override any made by the Borrower or the Guarantor. The Agent may
appropriate amounts first in payment of amounts payable to it by way of
indemnity or reimbursement.
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12.5 UNANTICIPATED DEFAULT
(a) (ASSUMPTION AS TO PAYMENT) The Agent may assume that a party (the
PAYER) due to make a payment for the account of another party (the
RECIPIENT) makes that payment when due unless the Payer notifies the
Agent at least 1 Business Day before the due date that the Payer
will not be making the payment.
(b) (RELIANCE ON ASSUMPTION) In reliance on that assumption, the Agent
may make available to the Recipient on the due date an amount equal
to the assumed payment.
(c) (RECOUPMENT) If the Payer does not in fact make the assumed
payment, the Recipient shall repay the Agent the amount on demand.
The Payer will remain liable to make the assumed payment, but until
the Recipient does repay the amount, the Payer's liability will be
to the Agent in the Agent's own right.
(d) (INTEREST) If the Payer is the Borrower any interest on the amount
of the assumed payment accruing before recovery will belong to the
Agent. If the Payer is a Participant that Participant shall pay
interest on the amount of the assumed payment at the rate determined
by the Agent, in line with its usual practice, for advances of
similar duration to financial institutions of the standing of the
Participant.
12.6 ROUNDING
In making any allocation or appropriation under any Transaction Document
the Agent may round amounts to the nearest Australian dollar.
13. CHANGES IN LAW
13.1 ADDITIONAL PAYMENTS
Whenever any Indemnified Party determines that:
(a) the effective cost to the Indemnified Party of making, funding or
maintaining its participation in any Segment or its Commitment is
increased in any way;
(b) any amount paid or payable to the Indemnified Party or received or
receivable by the Indemnified Party, or the effective return to the
Indemnified Party or any of its holding companies, under or in
respect of any Transaction Document is reduced in any way;
(c) the return of the Indemnified Party or any of its holding companies
on the capital which is or becomes directly or indirectly allocated
by the Indemnified Party or the holding company to any Segment or
its Commitment is reduced in any way; or
(d) to the extent any relevant law, official directive or request
relates to or affects its Commitment, any Segment or the Transaction
Documents, the overall return on capital of the Indemnified Party or
any of its holding companies is reduced in any way,
as a result of any change in, any making of, or any change in the
interpretation or application by any Government Agency of, any law,
official directive or request, then:
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(e) (when it has calculated the effect of the above and the amount to be
charged to the Borrower under this clause) that Indemnified Party
shall promptly notify the Borrower and provide reasonable details of
the calculation; and
(f) on demand from time to time the Borrower shall pay for the account
of that Indemnified Party the amount certified by an Authorised
Officer of the Indemnified Party to be necessary to compensate the
Indemnified Party or the relevant holding company (as the case may
be) for the increased cost or the reduction. If the amount to be
charged to the Borrower exceeds A$1,000,000, the Borrower shall pay
that amount within 5 days after demand.
The Indemnified Party's right to demand compensation from the
Borrower as contemplated by this clause is limited to a period of 60
days after the Indemnified Party becomes actually aware of any of
the circumstances described in paragraphs (a) to (d) above.
Without limiting the above in any way, this clause applies:
(g) to any law, official directive or request with respect to Taxation
(except Tax on overall net income) or reserve, liquidity, capital
adequacy, special deposit or similar requirements;
(h) to official directives or requests which do not have the force of
law where it is the practice of responsible bankers or financial
institutions in the country concerned to comply with them; and
(i) where the increased cost or the reduction arises because the
relevant Indemnified Party or any of its holding companies is
restricted in its capacity to enter other transactions, or is
required to make a payment, or forgoes or earns reduced interest or
other return on any capital or on any sum calculated by reference in
any way to the amount of any Segment, its Commitment or to any other
sum paid or payable or received or receivable under any Transaction
Document or allocates capital to any such sum.
In this clause a SEGMENT includes any amount paid on maturity of a Bill
and any loan taken to be made under clause 10.2.
13.2 MINIMISATION
(a) (NO DEFENCE) If the relevant Indemnified Party and (if applicable)
its holding company has acted in good faith it will not be a defence
to any claim by the Indemnified Party under clause 13.1 that any
cost, reduction or payment referred to in that clause could have
been avoided.
(b) (NEGOTIATION) At the request of the Borrower the Agent and any
relevant Participant shall negotiate in good faith with the Borrower
with a view to finding a way of minimising any cost, reduction or
payment.
13.3 SURVIVAL OF OBLIGATIONS
This clause survives the discharge of the Borrower's liabilities in
relation to any relevant Segment and the termination of this Agreement.
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13.4 CANCELLATION ON INCREASED COSTS
(a) Within 60 days after the Borrower receives a notice under clause
13.1(e) the Borrower may notify the relevant Participant through the
Agent that it wishes to cancel that Participant's Commitment and
reduce the Principal Outstanding accordingly.
(b) The notification will be irrevocable. The undrawn Commitment of the
Participant will be cancelled immediately. The utilised Commitments
will be cancelled on the last day of the relevant Funding Period or
Periods current when the notification is given.
14. CONDITIONS PRECEDENT
14.1 CONDITIONS PRECEDENT TO FIRST DRAWDOWN NOTICE
The right of the Borrower to give the first Drawdown Notice and the
obligations of each Participant under this Agreement are subject to the
condition precedent that the Agent receives all of the following in form
and substance satisfactory to the Agent:
(a) (VERIFICATION CERTIFICATE) a certificate in relation to the
Borrower given by a director of the Borrower substantially in the
form of annexure B with the attachments referred to and dated not
earlier than 14 days before the first Drawdown Date;
(b) (TRANSACTION DOCUMENTS) a duly executed counterpart of this
Agreement and the Guarantee Deed Poll;
(c) (US OPINION) an opinion of a suitably qualified in-house lawyer of
the Guarantor in relation to the Guarantor and the Guarantee Deed
Poll, substantially in the form initialled by the Agent on or before
the date of this Agreement;
(d) (▇▇▇▇▇▇▇▇'S LAWYER'S OPINION) an opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇▇▇▇ in relation to the Borrower and this Agreement,
substantially in the form initialled by the Agent on or before the
date of this Agreement; and
(e) (RATING) evidence of the Guarantor's long term debt rating by
Standard & Poors and ▇▇▇▇▇'▇ Investors Service Pty Ltd.
14.2 CONDITIONS PRECEDENT TO EACH SEGMENT
The obligation of each Participant to make, accept and discount Bills
comprised in each Segment is subject to the further conditions precedent
that:
(a) (REPRESENTATIONS TRUE) the representations and warranties by the
Borrower and the Guarantor in the Transaction Documents are true as
at the date of the relevant Drawdown Notice and the relevant
Drawdown Date as though they had been made at that date in respect
of the facts and circumstances then subsisting, except that the
representation by the Borrower in clause 15.1(f) and the
representation by the Guarantor in clause 6.1(a) of the Guarantee
Deed Poll will not be deemed to be repeated at each Drawdown Date;
(b) (NO DEFAULT) no Event of Default or Potential Event of Default
subsists at the date of the relevant Drawdown Notice and the
relevant Drawdown Date or will result from the acceptance or
discount of the Bills; and
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(c) (AUTHORISATION) all necessary Authorisations for the acceptance or
discount of the Bills have been obtained.
15. REPRESENTATIONS AND WARRANTIES
15.1 REPRESENTATIONS AND WARRANTIES
The Borrower makes the following representations and warranties.
(a) (STATUS) The Borrower and each Subsidiary of the Borrower is duly
incorporated or organised and is validly existing as a corporation
or other legal entity in the jurisdiction of its incorporation.
(b) (POWER) The Borrower and each of its Subsidiaries has the corporate
or other power and authority to own, lease and operate its
properties and to conduct the business in which it is currently
engaged. Each of them is duly qualified to transact business as a
foreign corporation or other legal entity and is in good standing
or otherwise appropriately qualified in each jurisdiction where its
ownership, leasing or operation of property or the conduct of its
business requires such qualification, except to the extent that any
failure to be so qualified and in good standing would not be
reasonably expected to have a Material Adverse Effect .
(c) (COMPLIANCE) The Borrower and each of its Subsidiaries is in
compliance with all applicable Requirements of Law except to the
extent that failure to comply would not, in the aggregate, be
reasonably expected to have a Material Adverse Effect.
(d) (CORPORATE AUTHORISATIONS) The Borrower has the corporate power and
authority to make, deliver and perform the Transaction Documents to
which it is expressed to be a party and to borrow under this
Agreement and has taken all necessary corporate action to authorise
the borrowings on the terms of this Agreement and to authorise the
execution, delivery and performance of the Transaction Documents to
which it is expressed to be a party. No consent or authorisation
of, filing with, notice to or other act by or in respect of, any
Government Agency or any other person is required to be obtained or
made by or on behalf of the Borrower in connection with the
borrowings under this Agreement or with the execution, delivery,
performance, validity or enforceability of the Transaction
Documents to which the Borrower is expressed to be a party. This
Agreement and each other Transaction Document to which the Borrower
is expressed to be a party has been duly executed and delivered on
behalf of the Borrower.
(e) (DOCUMENTS BINDING) This Agreement and each other Transaction
Document to which the Borrower is expressed to be a party is a
legal, valid and binding obligation of the Borrower enforceable
against the Borrower in accordance with its terms, subject to any
necessary stamping and registration and to applicable bankruptcy,
insolvency, reorganisation, moratorium or similar laws affecting
the enforcement of creditors' rights generally and to general
equitable principles.
(f) (ACCOUNTS)
(i) The Borrower's most recent consolidated audited Accounts
give a true and fair view of the matters with which they
deal.
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(ii) There has been no subsequent change in its and its
Subsidiaries' state of affairs since the date to which the
Accounts relate which would reasonably be expected to have a
Material Adverse Effect.
(iii) Those Accounts comply with current accounting practice
except to the extent disclosed in them, and with all
applicable laws.
(iv) No Relevant Company has executed a Guarantee for the purpose
of obtaining an order under s313 of the Corporations Law or
an equivalent provision or for the purpose of complying with
any such order.
(g) (NO LEGAL BAR) The execution, delivery and performance of the
Transaction Documents by the Borrower, the borrowings under this
Agreement and the use of their proceeds did not and will not:
(i) violate any Requirement of Law or Contractual Obligation
of the Borrower or any Subsidiary of the Borrower in any
respect that would reasonably be expected to have a
Material Adverse Effect; or
(ii) result in, or require, the creation or imposition of any
Lien on any of its or their respective assets or
properties pursuant to any Requirement of Law or
Contractual Obligation.
(h) (NO MATERIAL LITIGATION) No litigation, arbitration, Tax claim,
dispute or administrative or other proceeding is current or
pending or, to its best knowledge, threatened, which would be
reasonably expected to have a Material Adverse Effect.
(i) (NO DEFAULT) Neither the Borrower nor any of its Subsidiaries is
in default under any of its Contractual Obligations in any respect
which would be reasonably expected to have a Material Adverse
Effect. No Event of Default or Potential Event of Default has
occurred and is continuing.
(j) (TAXES) All Taxes payable by the Borrower or any Subsidiary of the
Borrower (or for which they could be liable) have been paid, other
than:
(i) those not yet delinquent;
(ii) those which, if not paid, would not be reasonably expected
to have a Material Adverse Effect; and
(iii) those the amount or validity of which are currently being
contested in good faith by appropriate proceedings
diligently conducted and with respect to which reserves in
conformity with current accounting practice have been
provided on the books of the Borrower or the Subsidiary )as
applicable).
(k) (NO MISREPRESENTATION) All information provided by it to the Agent
and the Participants is true in all material respects at the date
of this Agreement or, if later, when provided. Neither that
information nor its conduct and the conduct of anyone on its
behalf in relation to the transactions contemplated by the
Transaction Documents, was or is materially misleading, by
omission or otherwise.
(l) (TITLE)
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(i) The Borrower is the sole beneficial owner of all material
assets included in its latest audited Accounts free of any
other third party right or interest whatever other than as
permitted by clause 16.1(j) .
(ii) None of its or another Group Member's assets is subject to
a Lien which is not permitted by clause 16.1(j).
(m) (CORPORATE TREE) The Guarantor is the sole beneficial owner of all
shares in the Borrower.
15.2 RELIANCE ON REPRESENTATIONS AND WARRANTIES
The Borrower acknowledges that the Agent and the Participants have entered
the Transaction Documents in reliance on the representations and
warranties in this clause.
16. UNDERTAKINGS
16.1 GENERAL UNDERTAKINGS
The Borrower undertakes to each Indemnified Party as follows, except to
the extent that the Agent acting on the instructions of the Majority
Participants consents.
(a) (FINANCIAL STATEMENTS) The Borrower will deliver to the Agent
(with a copy for each Participant):
(i) as soon as practicable (but in any event within 120 days)
after the end of each fiscal year of the Borrower, a copy
of the consolidated balance sheet of the Group as at the
end of that year and the related consolidated statements
of income and retained earnings and of cash flows for that
year, setting out in each case in comparative form the
figures for the previous year, reported on without a going
concern or like qualification or exception, or
qualification arising out of the scope of the audit, by
independent chartered accountants of nationally recognised
standing selected by the Borrower; and
(ii) as soon as practicable (but in any event within 60 days)
after the end of each of the first 3 quarterly periods of
each fiscal year of the Borrower, the unaudited
consolidated balance sheet of the Group as at the end of
that quarter and the related unaudited consolidated
statements of income and retained earnings and of cash
flows for that quarter and for the portion of the fiscal
year through to the end of that quarter, setting out in
comparative form the figures for the previous year,
certified by an Authorised Officer of the Borrower as
being fairly stated in all material respects (subject to
normal year-end audit adjustments).
All those financial statements must be complete and correct in all
material respects and must be prepared in reasonable detail and in
accordance with current accounting practice applied consistently
throughout the periods reflected in them and with prior periods
(except as approved by the reporting accountants or Authorised
Officer, as the case may be, and disclosed in them).
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(b) (CERTIFICATES AND OTHER INFORMATION) The Borrower will deliver to
the Agent (with a copy for each Participant):
(i) concurrently with the delivery of the financial statements
referred to in paragraphs (a)(i) and (ii), a certificate of
an Authorised Officer of the Borrower which states that, to
the best of that person's knowledge, during the period
covered by those financial statements, the Borrower has
observed or performed all its covenants and other agreements
and satisfied every condition under this Agreement and the
other Transaction Documents to which it is a party, and that
the Authorised Officer has obtained no knowledge of any
Event of Default or Potential Event of Default except as
specified in the certificate;
(ii) no later than 30 days after they are filed with the
Securities and Exchange Commission or the Australian
Securities Commission or any successor or analogous
Government Agency, final copies of:
(A) all financial statements and material reports which
the Borrower may make to those entities; and
(B) all filings made by the Guarantor or the Borrower
with those entities with respect to the sale or
creation of indebtedness of the Guarantor or the
Borrower or with respect to any asset-backed
receivables transaction entered into by the Borrower
or any of its Subsidiaries (including registration
statements, prospectuses, offering memoranda and
amendments to them);
(iii) promptly after their delivery (but in any event within 10
days), copies of the financial statements of the Guarantor
delivered under section 10.1 of the Revolving Credit
Agreement, except that copies need not be delivered to any
Participant which has received copies under that section;
and
(iv) promptly, such additional financial and other information as
any Participant through the Agent may from time to time
reasonably request.
(c) (PAYMENT OBLIGATIONS) The Borrower will pay, discharge or otherwise
satisfy at or before maturity or before they become delinquent, as
the case may be, all its obligations of whatever nature except if:
(i) the amount or validity of the obligation is currently being
contested in good faith by appropriate proceedings, and
reserves in conformity with current accounting practice have
been provided in the books of the Borrower; or
(ii) failure to do so could not, in the aggregate, reasonably be
expected to have a Material Adverse Effect.
(d) (CONDUCT OF BUSINESS AND MAINTENANCE OF EXISTENCE) The Borrower
will continue to engage in business of the same general type as now
conducted by it and preserve, renew and keep in full force its
corporate existence and take all reasonable action to maintain all
Authorisations, rights, privileges and franchises necessary or
desirable in the normal conduct of its business. It will comply
with all its Contractual Obligations and
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Requirements of Law except to the extent that failure to comply
could not, in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(e) (MAINTENANCE OF PROPERTY AND INSURANCE) The Borrower will keep all
property useful and necessary in its business in good working order
and condition. It will maintain with financially sound and
reputable insurance companies insurance on all its property, for at
least such amounts and against at least such risks as are usually
insured against in the same general area by companies engaged in
the same or similar business (including, in any event, public
liability, product liability and business interruption insurance).
(f) (INSPECTION OF PROPERTY, BOOKS) The Borrower will keep proper books
of record and account in which full, true and correct entries, in
conformity with current accounting practice and all Requirements of
Law, will be made of all dealings and transactions in relation to
its business and activities. It will allow representatives of the
Agent to visit and inspect any of its property and examine any of
its books and records at any reasonable time and with reasonable
prior notice and it will allow them to discuss the business,
operations, property and financial and other condition of the Group
with its employees, officers and accountants.
(g) (NOTICE) The Borrower will promptly (but in any event within 3
days, or in the case of sub-paragraph (ii), 10 days, or in the case
of sub-paragraph (iv), 30 days, in each case after an Authorised
Officer of the Borrower becomes aware of it) notify the Agent of:
(i) the occurrence of any Event of Default or Potential Event of
Default;
(ii) any:
(A) default or event of default under any Contractual
Obligation of the Borrower or any of its
Subsidiaries; or
(B) litigation, arbitration, Tax claim, dispute or
administrative or other proceeding which may exist at
any time between the Borrower or any of its
Subsidiaries and a Government Agency,
which, in either case, if not cured or if adversely
determined, as applicable, could have a Material Adverse
Effect;
(iii) any litigation, arbitration, Tax claim, dispute or
administrative or other proceeding affecting the Borrower or
any of its Subsidiaries (other than a claim for workers'
compensation) in which the amount involved is equal to or
greater than the Threshold Amount and is not covered by
insurance or in which injunctive or similar relief is
sought; and
(iv) any development or event which has had or could reasonably
be expected to have a Material Adverse Effect.
Each notice under this clause must be accompanied by a statement of
an Authorised Officer of the Borrower setting out details of the
event referred to in it and stating any remedial action taken or
proposed.
(h) (LIMITATION ON FUNDAMENTAL CHANGES)
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(i) Subject to paragraph (ii), the Borrower will not enter into
any merger, consolidation or amalgamation, transfer its
jurisdiction of incorporation or liquidate, wind up or
dissolve itself (or suffer any liquidation or dissolution),
or convey, sell, lease, assign, transfer or otherwise
dispose of, all or substantially all of its property,
business or assets.
(ii) An entity may be merged or consolidated with or into the
Borrower if the Borrower is the continuing or surviving
corporation or the Indebtedness under this Agreement is
assumed by the surviving corporation, and the Guarantee Deed
Poll is terminated or amended, with the approval of all
Participants.
(i) (LIMITATION ON LINES OF BUSINESS) The Borrower will not enter into
any business, either directly or through any Subsidiary, other
than:
(i) the financing of Receivables of Case Corporation Pty
Limited, its Subsidiaries and their dealers and customers;
(ii) other financial services related to the agricultural and
construction business; and
(iii) other business, provided that the business of the Group
taken as a whole will be limited substantially to the
businesses described in sub-paragraphs (i) and (ii) above.
(j) (LIMITATION ON LIENS) The Borrower will not, and it will ensure
that each of its Subsidiaries will not, create, incur, assume or
suffer to exist any Lien on any of its property, assets or revenue,
whether now owned or acquired later, which would cause the
Guarantor to be in breach of any provision of the Guarantee Deed
Poll.
(k) (GUARANTEE DEED POLL) The Borrower will not do anything which may
cause the Guarantor to breach the undertakings given by it in the
Guarantee Deed Poll and it will do everything necessary on its part
to ensure that the Guarantor is able duly to perform those
undertakings.
16.2 TERM OF UNDERTAKINGS
Each undertaking in this clause continues from the date of this Agreement
until the Secured Money is fully and finally repaid.
17. EVENTS OF DEFAULT
17.1 EVENTS OF DEFAULT
Each of the following is an Event of Default (whether or not it is in the
control of any Relevant Company).
(a) (OBLIGATIONS UNDER TRANSACTION DOCUMENTS) A Relevant Company fails:
(i) to pay an amount payable by it under a Transaction Document
within 5 Business Days of the amount becoming due; or
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(ii) to comply with any of its other obligations under a
Transaction Document and, if in the opinion of the Agent
that failure can be remedied within 21 Business Days, does
not remedy the failure within that period after notice in
writing from the Agent.
(b) (CROSS DEFAULT)
(i) Indebtedness of a Relevant Company totalling at least the
Threshold Amount or its equivalent:
(A) is not paid when due (or within an applicable grace
period); or
(B) becomes due and payable or capable of being declared due
and payable before its stated maturity or expiry;
(ii) a facility or obligation granted or owed by a person to a
Relevant Company to provide financial accommodation or to
acquire or underwrite Indebtedness totalling at least the
Threshold Amount or its equivalent is prematurely
terminated, except where the Relevant Company exercises an
optional right of termination in the absence of actual,
likely or threatened default or an event of default or
termination event, whatever called; or
(iii) an event of default as defined in the Revolving Credit
Agreement occurs and money owing under that agreement
becomes due and payable before its stated maturity or
expiry.
For the purpose of this paragraph (b) the term INDEBTEDNESS does
not include:
(iv) Guarantee Obligations of any Subsidiary of the Borrower in
respect of Indebtedness of an Affiliate of the Borrower if
that Subsidiary owns no material assets other than equity
interests in the Affiliate and the Affiliate is not a
Subsidiary of the Borrower; and
(v) net liabilities in respect of Interest Rate Agreements
unless the holder or holders of that Indebtedness have
required that a termination payment in respect of the
Interest Rate Agreement be made.
(c) (ADMINISTRATION, WINDING UP, ARRANGEMENTS, INSOLVENCY ETC.)
(i) An administrator of the Borrower, a Material Subsidiary or
the Guarantor or another person who gives or creates a
Guarantee or Lien which secures any Secured Money (each a
RELATED COMPANY) is appointed.
(ii) Except for the purpose of a solvent reconstruction or
amalgamation previously approved by the Agent:
(A) an application or an order is made, proceedings are
commenced or a resolution is passed for:
(1) the winding up, dissolution or administration of a
Related Company; or
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(2) a Related Company entering into an arrangement,
compromise or composition with or assignment for the
benefit of its creditors or a class of them,
other than an application or proceeding which is being
contested in good faith and which is withdrawn or set
aside within 21 days of first filing; or
(B) a Related Company ceases or suspends the conduct of all
or a substantial part of its business or disposes of a
substantial part of its assets.
(iii) A Related Company:
(A) is, or under legislation is presumed or taken to be,
insolvent (other than as the result of a failure to pay
a debt or claim the subject of a good faith dispute); or
(B) stops or suspends payment of all or a class of its
debts.
(d) (ENFORCEMENT AGAINST ASSETS)
(i) A Controller (as defined in the Corporations Law) or similar
officer is appointed to all or any of the assets and
undertaking of a Related Company and not removed (without
another being appointed in its place) within 21 days.
(ii) A distress, attachment or other execution is levied or
enforced over all or any of the assets and undertaking of a
Related Company and not withdrawn or discontinued within 21
days.
(e) (ANALOGOUS PROCESS) Anything analogous to anything referred to in
paragraphs (c) or (d), or which has substantially similar effect,
occurs with respect to a Related Company under any overseas law or
any law which commences or is amended after the date of this A
greement.
(f) (REDUCTION OF CAPITAL) Without the prior consent of the Agent
(which will not be unreasonably withheld), the Borrower:
(i) reduces its capital (including a purchase of its shares but
excluding a redemption of redeemable shares);
(ii) passes a resolution to reduce its capital or to authorise it
to purchase its shares or a resolution under s188(2) or
s205(10) of the Corporations Law or an equivalent provision;
or
(iii) applies to a court to sanction any such resolution or
reduction.
(g) (VITIATION OF DOCUMENTS)
(i) All or any material part of a Transaction Document is
terminated or is or becomes void, illegal, invalid,
unenforceable or of limited force and effect;
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(ii) a party becomes entitled to terminate, rescind or avoid all
or a material part of a Transaction Document; or
(iii) a party other than the Agent or a Participant alleges or
claims that an event described in sub-paragraph (i) has
occurred or that it is entitled as described in sub-
paragraph (ii).
(h) (CONTROL OF BORROWER OR GUARANTOR) Without the prior consent of the
Agent:
(i) the Borrower ceases to be a wholly owned subsidiary of the
Guarantor; or
(ii) the Guarantor ceases to be a wholly owned subsidiary of Case
Corporation.
(i) (SUPPORT AGREEMENT) An event described in paragraph (g) occurs in
relation to the Support Agreement or the Support Agreement is
amended in a material respect without the prior consent of the
Agent.
17.2 CONSEQUENCES
In addition to any other rights provided by law or any Transaction
Document, at any time after an Event of Default (whether or not it is
continuing) the Agent may and shall if the Majority Participants direct do
all or any of the following:
(a) by notice to the Borrower declare all sums actually or contingently
owing under this Agreement immediately due and payable, and the
Borrower shall immediately pay the total face amount of all
outstanding Bills, any amount taken to be lent under clause 10.2
together with accrued interest and fees and all other sums;
(b) by notice to the Borrower cancel the Commitments;
(c) at the cost of the Borrower, appoint a firm of independent
accountants or other experts to review and report to the Agent and
the Participants on the affairs, financial condition and business
of any Relevant Company.
The Borrower will co-operate fully with the review and ensure that
all officers and employees of each Relevant Company do the same.
17.3 CASH COVER FOR BILLS
(a) This clause applies to:
(i) any amount paid to the Agent for the account of a
Participant under clause 17.2(a) in respect of the liability
under any unmatured Bill or in respect of any other sum
contingently owing; and
(ii) interest credited under this clause,
(the outstanding balance of which from time to time is the CASH
COVER AMOUNT).
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(b) (i) The Participant shall apply the Cash Cover Amount in payment
of any amount payable under any Bill when it becomes due and
the obligation of the Borrower under clause 9.2 will be
reduced accordingly.
(ii) The Participant may at any time apply the Cash Cover Amount
in or towards satisfaction of any sum at any time payable by
the Borrower to the Participant under or in relation to any
Transaction Document.
(c) The Cash Cover Amount will accrue and be credited with interest at
a rate and in a manner that the Participant determines would apply
to deposits at call (or of any other term specified by the
Participant) of a similar amount under its normal procedures.
(d) The Cash Cover Amount is only repayable by the Participant to the
extent that on any day it exceeds the amount of the Secured Money
(including the total face amount of the outstanding Bills and all
amounts which are then or may subsequently become contingently
owing). The Participant will promptly pay the Borrower any excess
on demand.
18. INTEREST ON OVERDUE AMOUNTS
18.1 ACCRUAL
Interest accrues on each unpaid amount which is due and payable by the
Borrower under or in respect of any Transaction Document (including
interest payable under this clause):
(a) on a daily basis up to the date of actual payment from (and
including) the due date or, in the case of an amount payable by way
of reimbursement or indemnity, the date of disbursement or loss, if
earlier;
(b) both before and after judgment (as a separate and independent
obligation); and
(c) at the rate determined by the Agent to be the sum of 1.5% per annum
plus the higher of:
(i) the rate (if any) applicable to the unpaid amount
immediately before the due date; and
(ii) the Agent's benchmark lending rate in respect of loans of
A$100,000 and over from time to time, plus the applicable
Margin.
18.2 PAYMENT
The Borrower shall pay interest accrued under this clause on demand by the
Agent and on the last Business Day of each calendar month.
19. INDEMNITY AND COSTS
19.1 INDEMNITY
The Borrower shall indemnify each Indemnified Party against any loss,
cost, charge, liability or expense (including legal costs on a full
indemnity basis) the Indemnified Party (or any officer or employee of the
Indemnified Party) may sustain or incur as a direct or indirect result of:
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(a) the occurrence of any Event of Default or Potential Event of
Default;
(b) any actual or contemplated exercise, preservation or consideration
of any right, power or remedy under any Transaction Document or any
failure to exercise any right, power or remedy;
(c) any statement in, conduct relying on or omission or alleged
omission from any information memorandum or loan proposal prepared
or authorised by it, or any claim in respect of any of the above;
(d) a Segment requested in a Drawdown Notice not being provided for any
reason (including failure to fulfil any condition precedent but
excluding any default by the Indemnified Party which is claiming
under this clause);
(e) the Indemnified Party incurring any liability on or in relation to
any Bill; or
(f) the Indemnified Party or any Authorised Officer of the Indemnified
Party acting on behalf of the Borrower under clause 8.3.
Without limitation the indemnity will cover any amount determined by the
relevant Participant to be incurred because of the liquidation or re-
employment of deposits or other funds acquired or contracted for by the
relevant Participant to fund or maintain any Segment or amount (including
loss of margin) and because of the reversing or termination of any
agreement or arrangement entered into by the relevant Participant to
hedge, fix or limit its effective cost of funding or maintaining any
Segment or amount.
19.2 COSTS
The Borrower will pay the Agent's reasonable legal costs in relation to
the preparation of the Transaction Documents and any amendments of, or
consent or waiver under, them.
20. CONTROL ACCOUNTS
The accounts kept by the Agent constitute sufficient evidence, unless
proven wrong, of the amount at any time due from the Borrower under this
Agreement.
21. STAMP DUTY
Subject to clause 8.6(b)(iii), the Borrower will pay all stamp,
transaction and other similar duties and charges in relation to the
Transaction Documents and any transaction under them.
This includes financial institutions duty and debits tax. The Borrower
will also pay any fines and penalties unless they result from a failure by
an Indemnified Party to lodge a document for stamping in sufficient time,
having received from the Borrower the amount of stamp duty in good time.
22. SET-OFF
(a) If an Event of Default subsists each Indemnified Party may apply
any credit balance in any currency (whether or not matured) in any
account of the Borrower with any branch of that Indemnified Party
towards satisfaction of any sum then due and payable by it to that
Indemnified Party under or in relation to any Transaction Document.
No Indemnified Party need make the application.
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(b) An Indemnified Party may exchange currencies to make that
application.
23. NO WAIVERS
No failure to exercise a power, and no delay in exercising a power,
operates as a waiver. Waivers must be in writing.
24. SEVERABILITY OF PROVISIONS
Any provision of any Transaction Document which is prohibited or
unenforceable in any jurisdiction is ineffective as to that jurisdiction
to the extent of the prohibition or unenforceability. That does not
invalidate the remaining provisions of that Transaction Document nor
affect the validity or enforceability of that provision in any other
jurisdiction.
25. SURVIVAL OF REPRESENTATIONS
All representations and warranties in any Transaction Document survive the
execution and delivery of the Transaction Documents and the provision of
advances and accommodation.
26. INDEMNITIES AND REIMBURSEMENT OBLIGATIONS
Unless otherwise stated, each indemnity, reimbursement or similar
obligation in any Transaction Document:
(a) is a continuing obligation;
(b) is a separate and independent obligation;
(c) is payable on demand; and
(d) survives termination or discharge of the relevant Transaction
Document.
27. MORATORIUM LEGISLATION
To the full extent permitted by law all legislation which at any time
directly or indirectly:
(a) lessens, varies or affects in favour of the Borrower any obligation
under a Transaction Document; or
(b) delays, prevents or prejudicially affects the exercise by any
Indemnified Party of any right, power or remedy conferred by any
Transaction Document,
is excluded from the Transaction Documents.
28. CONSENTS AND OPINIONS
Except where expressly stated any Indemnified Party may give or withhold,
or give conditionally, approvals and consents, may be satisfied or
unsatisfied, may form opinions, and may exercise rights, powers and
remedies at its absolute discretion.
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29. ASSIGNMENTS
29.1 ASSIGNMENT BY ▇▇▇▇▇▇▇▇
The Borrower may not assign or transfer any of its rights or obligations
under this Agreement without the prior written consent of the Agent acting
on the instructions of all Participants.
29.2 ASSIGNMENT BY PARTICIPANTS
A Participant may assign or transfer all or any of its rights or
obligations under the Transaction Documents at any time if:
(a) any necessary prior Authorisation is obtained;
(b) in the case of a transfer of obligations, the transfer is effected
by a substitution in accordance with clause 29.3;
(c) the transferee or assignee is a Related Entity of the Participant
or the Borrower has given its prior consent, which:
(i) it shall not withhold unreasonably; and
(ii) will be taken to have been given if no response is received
within 15 days of the request for consent; and
(d) the Commitment of any Participant will not, as a result of that
assignment or transfer, be less than $10,000,000, or the Borrower
has given its prior consent or has cancelled the Commitments to an
extent such that satisfaction of this test is not practicable.
29.3 SUBSTITUTION CERTIFICATES
(a) If a Participant wishes to substitute a new bank or financial
institution for all or part of its participation under this
Agreement, it and the substitute shall in the Australian Capital
Territory or outside Australia execute and deliver to the Agent 4
counterparts of a certificate substantially in the form of annexure
C.
(b) On receipt of the certificate, if the Agent has received the
registration fee referred to in the certificate and is satisfied
that the substitution complies with clause 29.2, it shall promptly:
(i) notify the Borrower;
(ii) countersign the counterparts on behalf of all other parties
to this Agreement;
(iii) enter the substitution in a register kept by it (which will
be conclusive); and
(iv) retain one counterpart and deliver the others to the
retiring bank or financial institution, the substitute bank
or financial institution and the Borrower.
(c) When the certificate is countersigned by the Agent, the retiring
bank or financial institution will be relieved of its obligations
and the substitute bank or financial institution will be bound by
the Transaction Documents, as stated in the certificate.
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(d) Each other party to this Agreement irrevocably authorises the Agent
to sign each certificate on its behalf.
(e) Unless the Agent otherwise agrees, no substitution may be made
while any Drawdown Notice is current.
29.4 DISCLOSURE
A Participant may disclose to a proposed assignee, transferee or sub-
participant information which relates to any Relevant Company or was
furnished in connection with the Transaction Documents if it first obtains
the consent of the Borrower (who shall not unreasonably withhold or delay
that consent).
29.5 NO INCREASED COSTS
Despite anything to the contrary in this Agreement, if a Participant
assigns its rights under this Agreement, the Borrower will not be required
to pay any net increase in the total amount of costs, Taxes, fees or
charges which is a direct consequence of the assignment and of which the
Participant or its assignee was aware or ought reasonably to have been
aware on the date of the assignment. For this purpose only a substitution
under clause 29.3 will be regarded as an assignment.
30. RELATIONSHIP OF PARTICIPANTS TO AGENT
30.1 AUTHORITY
(a) Subject to clause 30.15 each Participant irrevocably appoints the
Agent to act as its agent under the Transaction Documents. The
Agent has all powers expressly delegated to it by the Transaction
Documents together with all other powers reasonably incidental to
those powers.
(b) The Agent has no duties or responsibilities except those expressly
set out in the Transaction Documents.
30.2 INSTRUCTIONS; EXTENT OF DISCRETION
(a) In the exercise of all its rights, powers and discretions under the
Transaction Documents the Agent shall act in accordance with the
instructions (if any) of the Majority Participants or (where so
specified) of all Participants.
(b) In the absence of those instructions, the Agent need not act but
may act as it sees fit in the best interests of the Participants.
(c) Any action taken by the Agent under the Transaction Documents binds
all the Participants.
(d) The Agent is not obliged to consult with the Participants before
giving any consent, approval or agreement or making any
determination under the Transaction Documents except where this
Agreement expressly provides otherwise.
30.3 NO OBLIGATION TO INVESTIGATE AUTHORITY
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(a) The Borrower need not enquire whether any instructions have been
given to the Agent by all Participants or the Majority Participants
or as to the terms of those instructions.
(b) As between the Borrower on the one hand and the Agent and the
Participants on the other, all action taken by the Agent under the
Transaction Documents will be taken to be authorised.
30.4 AGENT NOT A FIDUCIARY
The Agent will not be taken to owe any fiduciary duty to any Participant,
any Relevant Company or any other person except as expressly provided in a
Transaction Document.
30.5 EXONERATION
Neither the Agent nor any of its directors, officers, employees, agents,
attorneys, Related Entities or successors is responsible to the
Participants for, or will be liable (whether in negligence or on any other
ground whatever) in respect of:
(a) any conduct relating to, contained in or relying on, any loan
proposal or information memorandum, any Transaction Document or any
document or agreement referred to in or received under any
Transaction Document;
(b) the value, validity, effectiveness, genuineness, enforceability or
sufficiency of any loan proposal or information memorandum, any
Transaction Document or any other document or agreement;
(c) any failure by any Relevant Company to perform its obligations; or
(d) any action taken or omitted to be taken by it or them under any
Transaction Document except in the case of its or their own wilful
misconduct or gross negligence.
30.6 DELEGATION
The Agent may employ agents and attorneys.
30.7 RELIANCE ON DOCUMENTS AND EXPERTS
The Agent may rely on:
(a) any document (including any facsimile transmission, telegram or
telex) it believes is genuine and correct; and
(b) advice and statements of lawyers, independent accountants and other
experts selected by the Agent.
30.8 NOTICE OF TRANSFER
The Agent may treat each Participant as the holder of the Participant's
rights under the Transaction Documents until the Agent has received either
a substitution certificate under this Agreement or a notice of assignment
satisfactory to the Agent.
30.9 NOTICE OF DEFAULT
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(a) The Agent will be taken not to have knowledge of the occurrence of
an Event of Default or Potential Event of Default unless the Agent
has received notice from a Participant or Relevant Company stating
that an Event of Default or Potential Event of Default has occurred
and describing it.
(b) If the Agent receives notice or the officers of the Agent having
day to day responsibility for the transaction become aware that an
Event of Default has occurred, the Agent shall notify the
Participants, subject to clause 30.14(c).
30.10 AGENT AS PARTICIPANT AND BANKER
(a) The Agent in its capacity as a Participant has the same rights and
powers under the Transaction Documents as any other Participant. It
may exercise them as if it were not acting as the Agent.
(b) The Agent may engage in any kind of business with any Relevant
Company as if it were not the Agent. It may receive consideration
for services in connection with any Transaction Document and
otherwise without having to account to the Participants.
30.11 INDEMNITY TO AGENT
(a) The Participants shall indemnify the Agent (to the extent not
reimbursed by any Relevant Company under any Transaction Document)
ratably in accordance with their respective Commitments against any
loss, cost, liability, expense or damage the Agent may sustain or
incur directly or indirectly under or in relation to the
Transaction Documents.
(b) No Participant is liable under this sub-clause for any of the above
to the extent that they arise from the Agent's wilful misconduct or
gross negligence.
(c) The Borrower shall indemnify each Participant against any amount
paid under paragraph (a). This does not limit its liability under
any other provision.
30.12 INDEPENDENT INVESTIGATION OF CREDIT
Each Participant confirms that it has made and will continue to make,
independently and without reliance on the Agent or any other Participant:
(a) its own investigations into the affairs of the Relevant Companies;
and
(b) its own analyses and decisions whether to take or not take action
under any Transaction Document.
30.13 NO MONITORING
The Agent is not required to keep itself informed as to the compliance by
any Relevant Company with any Transaction Document or any other document
or agreement or to inspect any property or book of any Relevant Company.
30.14 INFORMATION
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(a) The Agent shall promptly provide each Participant a copy of each
notice, report and other document which is provided to the Agent in
sufficient copies for the Participants under the Transaction
Documents.
(b) The Borrower authorises the Agent to provide any Participant with
any information concerning any Relevant Company's affairs,
financial condition or business which may otherwise come into the
possession of the Agent. The Agent need not do so.
(c) The Agent is not obliged to disclose any information relating to
any Relevant Company if in the opinion of the Agent (on the basis
of the advice of its legal advisers) disclosure would or might
breach a law or a duty of secrecy or confidence.
30.15 REPLACEMENT OF AGENT
(a) Subject to the appointment of a successor Agent as provided in this
clause:
(i) the Agent may resign at any time by giving not less than 30
days notice to the Participants and to the Borrower; and
(ii) all the Participants (other than the Agent) together may
remove the Agent from office by giving not less than 30 days
notice to the Borrower and the Agent.
(b) On notice of resignation or removal the Majority Participants have
the right to appoint a successor Agent approved by the Borrower and
who accepts the appointment.
(c) If no successor Agent is appointed within 30 days after notice, the
retiring Agent may on behalf of the Participants appoint a
successor Agent approved by the Borrower and who accepts the
appointment.
(d) On its appointment the successor Agent will have all the rights,
powers and obligations of the retiring Agent. The retiring Agent
will be discharged from its rights, powers and obligations.
(e) The retiring Agent shall execute and deliver all documents or
agreements which are necessary or in its opinion desirable to
transfer to the successor Agent each Lien and Guarantee held by the
retiring Agent in relation to the Secured Money or to effect the
appointment of the successor Agent.
(f) After any retiring Agent's resignation or removal, this clause will
continue in effect in respect of anything done or omitted to be
done by it while it was acting as Agent.
(g) The Borrower shall not unreasonably withhold its approval of any
proposed successor Agent. It shall respond as soon as practicable
to any request for approval.
(h) The Borrower need not pay the cost of the appointment of a
successor Agent under this clause.
30.16 AMENDMENT OF TRANSACTION DOCUMENTS
Each Participant authorises the Agent to agree with the other parties to
any Transaction Document to amend any Transaction Document if:
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(a) the amendment will not increase the Commitments or other
obligations of the Participants, change the dates or amounts of
payment of any of the Secured Money or amend this sub-clause or any
provision under which the agreement or instructions of all
Participants or the Majority Participants are required; and
(b) (i) the Agent is satisfied that the amendment is made to correct
a manifest error or an error of a minor nature or that the
amendment is of a formal or technical nature only; or
(ii) the Majority Participants have, on request by the Agent,
notified the Agent of their agreement to the amendment.
Each Participant will be bound by any amendment so agreed to by the Agent
as if it were party to the relevant amendment agreement.
31. PROPORTIONATE SHARING
31.1 SHARING
Whenever any Participant receives or recovers any money in respect of any
sum due from a Relevant Company under a Transaction Document in any way
(including by set- off) except through distribution by the Agent under
this Agreement:
(a) the Participant shall immediately notify the Agent;
(b) the Participant shall immediately pay that money to the Agent
(unless the Agent directs otherwise);
(c) the Agent shall treat the payment as if it were a payment by the
Relevant Company on account of all sums then payable to the
Indemnified Parties; and
(d) (i) the payment or recovery will be taken to have been a payment
for the account of the Agent and not to the Participant for
its own account, and to that extent the liability of the
Relevant Company to the Participant will not be reduced by
the recovery or payment, other than to the extent of any
distribution received by the Participant under paragraph
(c); and
(ii) (without limiting sub-paragraph (i)) immediately on the
Participant making or becoming liable to make a payment
under paragraph (b), the Borrower shall indemnify the
Participant on demand against the payment to the extent that
(despite sub-paragraph (i)) its liability has been
discharged by the recovery or payment.
If the Participant is required to disgorge or unwind all or part of the
relevant recovery or payment then the other Participants shall repay to
the Agent for the account of the Participant the amount necessary to
ensure that all the Participants share ratably in the amount of the
recovery or payment retained. Paragraphs (c) and (d) above apply only to
the retained amount.
31.2 REFUSAL TO JOIN IN ACTION
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A Participant who does not accept an invitation to join an action against
the Borrower or the Guarantor or does not share in the costs of the action
(in each case having been given a reasonable opportunity to do so) is not
entitled to share in any amount so recovered.
31.3 SHARING WHEN BILLS REPAID DIRECTLY
Whenever:
(a) a Bill is honoured by another party or cancelled or (except through
payment) discharged; or
(b) the Secured Money is reduced in any manner except through a payment
under this Agreement,
resulting in a greater reduction in the proportion by which a
Participant's participation in the outstanding Bills or the Secured Money
is reduced than that of the Participant whose participation is reduced by
the smallest proportion (except as a result of any rounding or adjustment
of amounts made by the Agent under this Agreement):
(c) the Participant shall promptly notify the Agent;
(d) the Participant shall promptly pay to the Agent an amount equal to
the amount of the excess (unless the Agent directs otherwise);
(e) the Participant's participation in the outstanding Bills will be
taken to be increased by an amount equal to the payment;
(f) the Agent shall treat the payment as if it were a payment by the
Borrower on account of the outstanding Bills; and
(g) on the Participant making or becoming liable to make the payment
under paragraph (d) the Borrower shall indemnify that Participant
against that payment.
If all or part of the relevant transaction which had that result is
subsequently rescinded or must otherwise be restored, and as a result the
Participant's Bill is called on, the Participants shall repay to the Agent
for the account of the Participant the amount which is necessary to ensure
that all the Participants' participations in the outstanding Bills have
been reduced proportionately.
32. AGENT DEALINGS
Except where expressly provided otherwise:
(a) all correspondence under or in relation to the Transaction
Documents between a Participant on the one hand, and the Borrower
on the other, will be addressed to the Agent; and
(b) the Participants and the Borrower severally agree to deal with and
through the Agent in accordance with this Agreement.
33. NOTICES
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All notices, requests, demands, consents, approvals, agreements or other
communications to or by a party to this Agreement:
(a) must be in writing;
(b) must be signed by an Authorised Officer of the sender; and
(c) will be taken to be duly given or made:
(i) (in the case of delivery in person or by post or facsimile
transmission) when delivered, received or left at the
address of the recipient shown in this Agreement or to any
other address which it may have notified the sender; or
(ii) (in the case of a telex) on receipt by the sender of the
answerback code of the recipient at the end of transmission,
but if delivery or receipt is on a day on which business is not
generally carried on in the place to which the communication is
sent or is later than 4pm (local time), it will be taken to have
been duly given or made at the commencement of business on the next
day on which business is generally carried on in that place.
34. AUTHORISED OFFICERS
The Borrower irrevocably authorises each Indemnified Party to rely on a
certificate by any person purporting to be its director or secretary as to
the identity and signatures of its Authorised Officers. The Borrower
warrants that those persons have been authorised to give notices and
communications under or in connection with the Transaction Documents.
35. GOVERNING LAW AND JURISDICTION
This Agreement is governed by the laws of New South Wales. The Borrower
submits to the non-exclusive jurisdiction of courts exercising
jurisdiction there.
36. COUNTERPARTS
This Agreement may be executed in any number of counterparts. All
counterparts together will be taken to constitute one instrument.
37. ACKNOWLEDGEMENT BY ▇▇▇▇▇▇▇▇
The Borrower confirms that:
(a) it has not entered into this Agreement in reliance on, or as a
result of, any conduct of any kind of or on behalf of any
Indemnified Party or any Related Entity of any Indemnified Party
(including any advice, warranty, representation or undertaking);
and
(b) neither any Indemnified Party nor any Related Entity of any
Indemnified Party is obliged to do anything (including disclose
anything or give advice),
except as expressly set out in the Transaction Documents.
Page 42
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EXECUTED in Sydney.
Each attorney executing this Agreement states that he has no notice of
revocation or suspension of his power of attorney.
Page 43
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BORROWER
SIGNED on behalf of )
CASE CREDIT AUSTRALIA )
PTY LIMITED )
by its attorney )
in the presence of: ) /s/▇▇▇▇▇ ▇▇▇▇ (sgd)
----------------------------------------
Signature
/s/▇▇▇▇▇▇ ▇▇▇▇ (sgd) ▇▇▇▇▇ ▇▇▇▇
---------------------------------- ---------------------------------------
Witness Print name
▇▇▇▇▇▇ ▇▇▇▇
----------------------------------
Print name
AGENT
SIGNED on behalf of )
NATIONAL AUSTRALIA BANK LIMITED )
by its attorney )
in the presence of: ) /s/▇ ▇ ▇▇▇▇▇▇ (sgd)
----------------------------------------
Signature
/s/▇ ▇▇▇▇▇ (sgd) M A ▇▇▇▇▇▇
---------------------------------- ----------------------------------------
Witness Print name
▇▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------
Print name
Page 44
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PARTICIPANTS
SIGNED on behalf of )
NATIONAL AUSTRALIA BANK LIMITED )
by its attorney )
in the presence of: ) /s/▇ ▇ ▇▇▇▇▇▇ (sgd)
----------------------------------------
Signature
/s/▇ ▇▇▇▇▇ (sgd) M A ▇▇▇▇▇▇
---------------------------------- ----------------------------------------
Witness Print name
▇▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------
Print name
SIGNED on behalf of )
CREDIT SUISSE FIRST BOSTON )
by its attorney )
in the presence of: ) /s/▇ ▇▇▇▇▇▇▇ (sgd)
----------------------------------------
Signature
/s/▇ ▇▇▇▇▇▇▇▇▇ (sgd) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------- ----------------------------------------
Witness Print name
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------
Print name
SIGNED for and on behalf of )
UBS AUSTRALIA LIMITED )
by its authorised signatories )
in the presence of: )
/s/▇▇▇▇▇ ▇▇▇▇▇ (sgd) /s/L Burger (sgd)
----------------------------------- ------------------------------------------
Signature Signature
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------- ------------------------------------------
Print name Print name
First VP VP
---------------------------------- ------------------------------------------
Office Held Office Held
SIGNED on behalf of )
Page 45
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ROYAL BANK OF CANADA )
by its attorney )
in the presence of: ) /s/▇ ▇ ▇▇▇▇▇▇ (sgd)
------------------------------------------
Signature
/s/ ▇ ▇▇▇▇▇▇▇ (sgd) ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------- ------------------------------------------
Witness Print name
▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇
----------------------------------
Print name
SIGNED on behalf of )
STANDARD CHARTERED BANK )
AUSTRALIA LIMITED )
by its attorney )
in the presence of: ) /s/▇ ▇▇▇▇▇ (sgd)
------------------------------------------
Signature
/s/▇ ▇ ▇▇▇▇▇ (sgd) ▇▇▇▇ ▇▇▇▇▇
---------------------------------- ------------------------------------------
Witness Print name
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------
Print name
SIGNED on behalf of )
FUJI INTERNATIONAL FINANCE )
(AUSTRALIA) LIMITED )
by its attorney )
in the presence of: ) /s/▇ ▇▇▇▇▇ (sgd)
------------------------------------------
Signature
/s/▇ ▇▇▇▇▇ (sgd) ▇▇▇▇ ▇▇▇▇▇
---------------------------------- ------------------------------------------
Witness Print name
▇▇▇▇ ▇▇▇▇▇
----------------------------------
Print name
Page 46
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SIGNED on behalf of )
THE FIRST NATIONAL BANK OF )
CHICAGO by its authorised )
signatories in the presence of: )
/s/ ▇▇▇▇▇ (sgd) /s/▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ (sgd)
---------------------------------- ------------------------------------------
Witness Signature
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
---------------------------------- ------------------------------------------
Print name Print name
FIRST VICE PRESIDENT
__________________________________ ------------------------------------------
Office held Office held
SIGNED on behalf of )
BA AUSTRALIA LIMITED )
by its attorney )
in the presence of: ) /s/A ▇▇▇▇▇▇ (sgd)
------------------------------------------
Signature
/s/E ▇▇▇▇▇ (sgd) ▇▇▇▇ ▇▇▇▇▇▇
---------------------------------- ------------------------------------------
Witness Print name
▇▇▇▇▇ ▇▇▇▇▇
----------------------------------
Print name
Page 47
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SCHEDULE
PARTICIPANTS
1 2 3 4
LEAD MANAGERS ADDRESS FOR TRANCHE A TRANCHE B
CORRESPONDENCE COMMITMENT COMMITMENT
(A)$ (A$)
National Australia Bank Ltd Level 25, 42,500,000 127,500,000
(ACN 004 044 937) ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Credit Suisse First Boston Level 14,
(ARBN 061 700 712) ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 12,500,000 37,500,000
MELBOURNE VIC 3000
UBS Australia Limited Level 4,
(ACN 003 059 461) ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇,▇▇▇,▇▇▇ 37,500,000
SYDNEY NSW 2000
MANAGERS
Royal Bank of Canada Level 7 8,750,000 26,250,000
(ARBN 076 940 880) Challis House
▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Standard Chartered Bank Level 11 7,500,000 22,500,000
Australia Limited ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
(ACN 008 282 897) SYDNEY NSW 2000
Fuji International Level 28 5,000,000 15,000,000
Finance (Australia) Maritime Centre
Limited ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
(ACN 002 977 111) SYDNEY NSW 2000
The First National Bank Level 32 5,000,000 15,000,000
of Chicago ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
(ARBN 065 752 918) SYDNEY NSW 2000
BA Australia Limited Level 18 6,250,000 18,750,000
(ACN 004 617 341) ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Page 48
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ANNEXURE A
DRAWDOWN NOTICE
To: [AGENT]
CASE CREDIT AUSTRALIA PTY LTD - DRAWDOWN NOTICE NO. [*]
We refer to the Bill Facility Agreement dated [*] 1997 (the FACILITY AGREEMENT).
Under clause 5 of the Facility Agreement we give you irrevocable notice as
follows:
(1) we wish to draw on [*] 19[*] (the DRAWDOWN DATE) [on a same day basis];
[NOTE:__DATE IS TO BE A BUSINESS DAY.]
(2) the total principal amount to be drawn is [*];
[NOTE:__AMOUNT TO COMPLY WITH THE LIMITS IN CLAUSE 3.]
(3) particulars of each Segment are as follows:
PRINCIPAL AMOUNT FUNDING PERIOD TRANCHE
[NOTE:__AMOUNTS TO COMPLY WITH CLAUSE [6] AND LENGTH OF FUNDING PERIOD TO COMPLY
WITH CLAUSE [7].]
(4) we request that the proceeds be remitted to account number [*] at [*];
[NOTE:__THE ACCOUNT(S) TO BE COMPLETED ONLY IF FUNDS NOT REQUIRED IN
REPAYMENT OF ANY PREVIOUS SEGMENT(S).]
(5) we represent and warrant on behalf of the Borrower that:
(a) [(except as disclosed in paragraph (c)] the representations and
warranties in the Facility Agreement are true as though they had
been made at the date of this Drawdown Notice and the Drawdown Date
specified above in respect of the facts and circumstances then
subsisting, except that no representation is made by the Borrower
under clause 15.1(f)(ii) of the Facility Agreement; [and]
(b) [(except as disclosed in paragraph (c)] no Event of Default or
Potential Event of Default is subsisting or will result from the
drawing; [and]
[(c) details of the exceptions to paragraphs (a) and (b) are as follows:
[*], and we [have taken/propose] the following remedial action
[*][./; and]
[NOTE:__INCLUSION OF A STATEMENT UNDER PARAGRAPH (B) SHALL NOT PREJUDICE
THE CONDITIONS PRECEDENT IN THE AGREEMENT.]
(6) we request that each [relevant] Participant prepare, complete, sign and
deliver the Bills to be comprised in [each/the] Segment on our behalf;
[(7) we attach a copy of the agreement related to this Drawdown Notice as
required by clause 3.2 of the Facility Agreement.]
Page 49
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Definitions in the Facility Agreement apply in this Drawdown Notice.
On behalf of CASE CREDIT AUSTRALIA PTY LIMITED
By: [Authorised Officer]
DATED 19[*]
Page 50
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ANNEXURE B
VERIFICATION CERTIFICATE
To: [AGENT] for itself and as Agent for the Participants under the Facility
Agreement defined below, and its respective substitutes and assigns.
[*] FACILITY
I [*] am a director of Case Credit Australia Pty Limited of [*] (the COMPANY).
I refer to the Bill Facility Agreement (the FACILITY AGREEMENT) dated [*] 1997
between the Company as Borrower, National Australia Bank Limited as Agent and
the Participants named in it.
Definitions in the Facility Agreement apply in this Certificate.
I CERTIFY as follows.
1. Attached to this Certificate are complete and up to date copies of:
(a) the memorandum and articles of association of the Company (marked
A);
(b) a duly registered power of attorney granted by the Company for the
execution of each Transaction Document to which it is expressed to
be a party (marked B). That power of attorney has not been revoked
or suspended by the Company and remains in full force and effect;
and
(c) the Revolving Credit Agreement and the Support Agreement (marked C
and D respectively).
2. The following are signatures of the Authorised Officers of the Company.
NAME POSITION SIGNATURE
* * ________________________________
* * ________________________________
* * ________________________________
Page 51
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Signed: _______________________________
Director
_______________________________
Print name
DATED 1997
Page 52
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ANNEXURE C
SUBSTITUTION CERTIFICATE
for a Participation of A$[*]
relating to the Bill Facility Agreement (the FACILITY AGREEMENT) dated [*] 1997
between Case Credit Australia Pty Limited as Borrower, National Australia Bank
Limited as Agent and the Participants named in that agreement between:
1. [NAME] (the SUBSTITUTE PARTICIPANT);
2. [NAME] (the RETIRING PARTICIPANT); and
3. [*] (the AGENT) for itself and on behalf of the other parties to the
Facility Agreement.
IT IS AGREED as follows.
1. DEFINITIONS
1.1 In this Certificate definitions in the Facility Agreement and the
following definitions apply unless the context requires otherwise.
SUBSTITUTED PARTICIPATION means the Commitment of the Retiring Participant
[and the participation in the outstanding Bills drawn under that
Commitment] [in respect of the following Segments:] [NOTE:__TO BE INSERTED
IF ONLY PART OF PARTICIPATION IS BEING SUBSTITUTED.]
DATE FUNDING PERIOD AMOUNT OF TRANCHE
PARTICIPATION
amounting to a principal amount of A$[*].
SUBSTITUTION DATE means the date of countersignature of this Certificate
by the Agent [or [*] whichever is the later]. [NOTE:__INSERT ANY OTHER
DATE OR DATES AS APPROPRIATE.]
1.2 Clause 1.2 of the Facility Agreement applies to this Certificate.
2. SUBSTITUTION
2.1 RELEASE OF RETIRING PARTICIPANT
The Retiring Participant will cease to be entitled to and bound by its
rights and obligations as a Participant under the Transaction Documents
[relating to the Substituted Participation] [NOTE:__INSERT IF ONLY PART OF
COMMITMENT ASSUMED] with effect from and including the
Page 53
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Substitution Date. It will remain entitled to and bound by rights and
obligations which accrue up to the Substitution Date.
2.2 ASSUMPTION BY SUBSTITUTE PARTICIPANT
With effect from and including the Substitution Date:
(a) the Substitute Participant and each of the parties to the Facility
Agreement will assume obligations towards each other and acquire
rights against each other which are identical to the rights and
obligations which cease under clause 2.1, except to the extent the
obligations so assumed and rights so acquired relate to the
identity of or location of the Substitute Participant and not to
the identity of or location of the Retiring Participant; and
(b) the Substitute Participant will be taken to be a party to the
Facility Agreement as a Participant with a Commitment [and
participation in the Principal Outstanding] equal to the
Substituted Participation.
3. INDEPENDENT ASSESSMENT BY SUBSTITUTE PARTICIPANT
Without limiting the generality of clause 2 the Substitute Participant
agrees as specified in clauses 30.5 (EXONERATION) and 30.12 (INDEPENDENT
INVESTIGATION OF CREDIT) of the Facility Agreement. Those clauses apply
(subject to any agreement to the contrary) as if references to the Agent
included the Retiring Participant. This Certificate is a Transaction
Document for the purposes of the Facility Agreement.
4. PAYMENTS
From and including the Substitution Date the Agent shall make all payments
due under the Transaction Documents in relation to the Substituted
Participation to the Substitute Participant. The Retiring Participant and
the Substitute Participant will make directly between themselves those
payments and adjustments which they agree with respect to accrued
interest, fees, costs and other amounts attributable to the Substituted
Participation before the Substitution Date.
5. OUTSTANDING BILLS
(a) For the purpose of the Facility Agreement the Substitute
Participant will be taken to have accepted any outstanding Bills
accepted by the Retiring Participant included in the Substituted
Participation. The Substitute Participant shall indemnify
unconditionally the Retiring Participant against any liability of
the Retiring Participant as acceptor of the Bills.
(b) The indemnity of the Borrower under clause 9 of the Facility
Agreement extends to any liability of the Substitute Participant
under this clause.
6. WARRANTY
The Retiring Participant and the Substitute Participant jointly and
severally represent and warrant to the other parties that clause 29.2(c)
and (d) of the Facility Agreement has been complied with in relation to
the Substitute Participant.
7. NOTICES
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For the purpose of the Facility Agreement, the address for correspondence
of the Substitute Participant is the address set out below.
8. REGISTRATION FEE
A registration fee of A$750 is payable to the Agent on delivery of this
Certificate to the Agent.
9. LAW
This Certificate is governed by the laws of [*].
Signed by the authorised representatives of the parties in the Australian
Capital Territory.
THE RETIRING PARTICIPANT
[NAME]
by: ________________________________
THE SUBSTITUTE PARTICIPANT
[NAME]
by: ________________________________
Address for correspondence:
[Telex No.]
Countersigned by an Authorised Officer of the Agent for itself and for the other
parties to the Facility Agreement.
THE AGENT
[NAME]
by: ________________________________
CONFORMED COPY
NEW SOUTH WALES
STAMP DUTY PAID $2
CASE CREDIT AUSTRALIA PTY LIMITED
(Borrower)
__________________________________
BILL FACILITY AGREEMENT
__________________________________
A$400,000,000 SYNDICATED FACILITY
GUARANTEED BY CASE CREDIT CORPORATION
- ARRANGED BY -
NATIONAL AUSTRALIA BANK LIMITED
________________________________________________________________________________
T A B L E O F C O N T E N T S
________________________________________________________________________________
1. DEFINITIONS AND INTERPRETATION 1
1.1 Definitions 1
1.2 Interpretation 8
1.3 Outstanding Bills 9
1.4 Principal amount 9
1.5 Document or agreement 9
1.6 Determination, statement and certificate 9
1.7 Current accounting practice 9
1.8 Failure to notify 9
2. PURPOSE 10
3. COMMITMENT 10
3.1 Commitments 10
3.2 Allocation among Participants 10
3.3 Obligations several 10
3.4 Enforcement through Agent 11
4. CANCELLATION OF COMMITMENTS - REDUCTION OF PRINCIPAL 11
4.1 Repayment Dates 11
4.2 Reduction of Principal Outstanding 11
4.3 Voluntary early cancellation 11
4.4 Extension of Tranche A Repayment Date 11
4.5 Application against Commitments 12
4.6 Allocation among Participants 12
4.7 Notification 12
5. DRAWDOWN NOTICES 12
5.1 When notice to be given 12
5.2 Funds drawn on same day basis 12
5.3 Notification of Participants 12
6. PRINCIPAL AMOUNT OF SEGMENTS 12
7. SELECTION OF FUNDING PERIODS 13
8. PROCEDURE 13
8.1 Preparation of Bills 13
8.2 Requirements of Bills 13
8.3 Authority of Participants to prepare Bills 14
8.4 Restriction on use of Bills by Agent and Participants 14
8.5 Notification of BBR 14
8.6 Acceptance and discount 14
8.7 Variation of procedures, Same Day Segments 14
Page ii
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9. INDEMNITY AND CASH COVER 15
9.1 Indemnity 15
9.2 Cash cover 15
10. ROLLOVER 15
10.1 Netting off 15
10.2 Overdraft if no rollover 15
11. FEES 16
11.1 Facility fee 16
11.2 Calculation and payment 16
11.3 Agency fee 16
12. PAYMENTS 17
12.1 Manner 17
12.2 Payment to be made on Business Day 17
12.3 Distribution by Agent 17
12.4 Appropriation where insufficient moneys available 17
12.5 Unanticipated default 17
12.6 Rounding 17
13. CHANGES IN LAW 18
13.1 Additional payments 18
13.2 Minimisation 19
13.3 Survival of obligations 19
13.4 Cancellation on increased costs 19
14. CONDITIONS PRECEDENT 19
14.1 Conditions precedent to first Drawdown Notice 19
14.2 Conditions precedent to each Segment 20
15. REPRESENTATIONS AND WARRANTIES 20
15.1 Representations and warranties 20
15.2 Reliance on representations and warranties 22
16. UNDERTAKINGS 22
16.1 General undertakings 22
16.2 Term of undertakings 25
17. EVENTS OF DEFAULT 26
17.1 Events of Default 26
17.2 Consequences 28
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17.3 Cash cover for Bills 28
18. INTEREST ON OVERDUE AMOUNTS 29
18.1 Accrual 29
18.2 Payment 29
19. INDEMNITY AND COSTS 29
19.1 Indemnity 29
19.2 Costs 30
20. CONTROL ACCOUNTS 30
21. STAMP DUTY 30
22. SET-OFF 30
23. NO WAIVERS 31
24. SEVERABILITY OF PROVISIONS 31
25. SURVIVAL OF REPRESENTATIONS 31
26. INDEMNITIES AND REIMBURSEMENT OBLIGATIONS 31
27. MORATORIUM LEGISLATION 31
28. CONSENTS AND OPINIONS 31
29. ASSIGNMENTS 31
29.1 Assignment by Borrower 31
29.2 Assignment by Participants 32
29.3 Substitution certificates 32
29.4 Disclosure 33
29.5 No increased costs 33
30. RELATIONSHIP OF PARTICIPANTS TO AGENT 33
30.1 Authority 33
30.2 Instructions; extent of discretion 33
30.3 No obligation to investigate authority 33
30.4 Agent not a fiduciary 34
30.5 Exoneration 34
30.6 Delegation 34
30.7 Reliance on documents and experts 34
30.8 Notice of transfer 34
30.9 Notice of default 34
30.10 Agent as Participant and banker 35
30.11 Indemnity to Agent 35
30.12 Independent investigation of credit 35
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30.13 No monitoring 35
30.14 Information 35
30.15 Replacement of Agent 36
30.16 Amendment of Transaction Documents 36
31. ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
31.1 Sharing 37
31.2 Refusal to join in action 37
31.3 Sharing when ▇▇▇▇▇ repaid directly 37
32. AGENT DEALINGS 38
33. NOTICES 38
34. AUTHORISED OFFICERS 39
35. GOVERNING LAW AND JURISDICTION 39
36. COUNTERPARTS 39
37. ACKNOWLEDGEMENT BY ▇▇▇▇▇▇▇▇ 39