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EXHIBIT 10.6.2
LOAN AGREEMENT
[ ]
(BORROWER)
AND
[ ]
(LENDER)
[FREEHILL, HOLLINGDALE, & PAGE LOGO]
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Telephone (▇▇) ▇▇▇▇ ▇▇▇▇ Facsimile (▇▇) ▇▇▇▇ ▇▇▇▇ DX 240 Melbourne
Reference: PWS
MELBOURNE PERTH CANBERRA
BRISBANE SINGAPORE HANOI
HO CHI MINH CITY
CORRESPONDENT OFFICES IN JAKARTA AND KUALA LUMPUR
LIABILITY IS LIMITED BY THE SOLICITORS SCHEME UNDER THE PROFESSIONAL STANDARDS
ACT 1994 (NSW)
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TABLE OF CONTENTS
CLAUSE PAGE
1. DEFINITIONS AND INTERPRETATION 1
1.1. Definitions 1
1.2. Interpretation 2
1.3. Business Day 3
1.4. Loan Facility Agreement 3
2. LOAN 3
2.1. Amount 3
2.2. Drawing 3
2.3. Currency 3
3. CONDITIONS PRECEDENT 3
3.1. Documents to be provided 3
4. INTEREST 3
4.1. Interest 3
4.2. Funds deposited with Lender 4
5. PAYMENT, REPAYMENT AND PREPAYMENT 4
5.1. Time and method of payment 4
5.2. Payments in gross 4
5.3. Additional payments 4
5.4. Prepayment 5
6. REPRESENTATIONS AND WARRANTIES 5
6.1. Representations and warranties 5
6.2. Survival of representations and warranties 6
7. UNDERTAKINGS 6
7.1. Term of undertakings 6
7.2. General undertakings 6
7.3. Negative pledge and disposal of assets 6
8. EVENTS OF DEFAULT 7
8.1. Events of Default 7
8.2. Consequences of default 9
9. INTEREST ON OVERDUE AMOUNTS 9
9.1. Payment of interest 9
9.2. Accrual of interest 9
9.3. Rate of interest 9
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CLAUSE PAGE
10. COSTS AND EXPENSES 10
10.1. Costs and expenses 10
10.2. Tax 10
11. ASSIGNMENT 11
11.1. Assignment by the Borrower 11
11.2. Assignment by the Lender 11
12. GENERAL 11
12.1. Notices 11
12.2. Governing law and jurisdiction 12
12.3. Prohibition and enforceability 12
12.4. Waivers 12
12.5. Variation 13
12.6. Cumulative rights 13
12.7. Certificates of the Lender 13
12.8. Counterparts 13
12.9. Attorneys 13
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THIS LOAN AGREEMENT
is made on between the following parties:
1. [ ]
of [ ]
(BORROWER)
2. [ ]
of [ ]
(LENDER)
RECITALS
The Borrower has requested the Lender and the Lender has
agreed to lend or procure to be lent to the Borrower up to
[ ] on the terms and conditions contained in this
agreement.
THE PARTIES AGREE
1. DEFINITIONS AND INTERPRETATION
1.1. DEFINITIONS
ANSELL means ▇▇▇▇▇▇ Healthcare Incorporated;
BUSINESS DAY means:
(a) for the purposes of clause 12.1, a day on which banks
are open for business in the city where the notice or
other communication is received excluding a Saturday,
Sunday or public holiday; and
(b) for all other purposes, a day on which banks are open
for business in New York, New York excluding a
Saturday, Sunday or public holiday;
[DEPOSIT INTEREST RATE means on any day the [Federal Funds
Rate/the Equivalent Deposit Rate;]
[EQUIVALENT DEPOSIT RATE has the meaning contained in the Loan
Facility Agreement;]
[EQUIVALENT INTEREST RATE has the meaning contained in the
Loan Facility Agreement;]
[DOLLARS, US$ and $ means the lawful currency of the United
States of America;]
EVENT OF DEFAULT means any event specified in clause 8.1 or in
clause 8.1 of the Loan Facility Agreement;
INTEREST RATE means in respect of each calendar month the
aggregate of [LIBOR on the first Business Day of that month
and the Margin/the Equivalent Interest Rate on the first
Business Day of that month and the Margin];
LIBOR has the meaning contained in the Loan Facility
Agreement;
LIMIT means, subject to clause , $[ ];
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LOAN means each amount lent by a Lender to a Borrower pursuant
to this agreement;
LOAN FACILITY AGREEMENT means the agreement so called dated
[ ] between Pacific Dunlop Holdings Inc. and ▇▇▇▇▇▇
Healthcare Inc;
MARGIN has the meaning contained in the Loan Facility
Agreement;
OUTSTANDING MONEYS means all debts and monetary liabilities of
the Borrower to the Lender under or in relation to this
agreement;
PDH means Pacific Dunlop Holdings Inc;
POWER means any right, power, authority, discretion or remedy
conferred on the Lender by this agreement or any applicable
law;
RELEVANT CURRENCY means ];
REPAYMENT DATE means the date which is 3 years from the date
of this agreement or such later date agreed by PDH and Ansell.
1.2. INTERPRETATION
In this agreement, headings and boldings are for convenience
only and do not affect the interpretation of this agreement
and, unless the context otherwise requires:
(a) words importing the singular include the plural and
vice versa;
(b) words importing a gender include any gender;
(c) other parts of speech and grammatical forms of a word
or phrase defined in this agreement have a
corresponding meaning;
(d) an expression importing a natural person includes any
company, partnership, joint venture, association,
corporation or other body corporate and any
Governmental Agency;
(e) a reference to any thing (including, but not limited
to, any right) includes a part of that thing but
nothing in this clause 1.2(e) implies that
performance of part of an obligation constitutes
performance of the obligation;
(f) a reference to a part, clause, party, annexure,
exhibit or schedule is a reference to a part and
clause of, and a party, annexure, exhibit and
schedule to, this agreement and a reference to this
agreement includes any annexure, exhibit and
schedule;
(g) a reference to a document includes all amendments or
supplements to, or replacements or novations of, that
document;
(h) a reference to a party to any document includes that
party's successors and permitted assigns;
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(i) no provision of this agreement will be construed
adversely to a party solely on the ground that the
party was responsible for the preparation of this
agreement or that provision;
(j) a reference to liquidation includes official
management, appointment of an administrator,
compromise, arrangement, merger, amalgamation,
reconstruction, winding-up, dissolution, assignment
for the benefit of creditors, scheme, composition or
arrangement with creditors, insolvency, bankruptcy,
or any similar procedure or, where applicable,
changes in the constitution of any partnership or
person, or death.
1.3. BUSINESS DAY
Where the day on or by which any thing is to be done is not a
Business Day, that thing must be done on or by the preceding
Business Day.
1.4. LOAN FACILITY AGREEMENT
A word or phrase (other than one defined in clause 1.1)
defined in the Loan Facility Agreement has the same meaning in
this agreement.
2. LOAN
2.1. AMOUNT
The Lender agrees to lend moneys to the Borrower on the terms
and conditions contained in this agreement provided that the
aggregate outstanding principal amount of all Loans must not
exceed the Limit.
2.2. DRAWING
The amount of each Loan must be agreed between the relevant
Lender and Borrower.
2.3. CURRENCY
Loans will be made in the Relevant Currency.
3. CONDITIONS PRECEDENT
3.1. DOCUMENTS TO BE PROVIDED
The Lender is not obliged to provide or procure any Loan until
each of the conditions precedent set out in schedule 1 has
been satisfied.
4. INTEREST
4.1. INTEREST
Interest on each part of the Outstanding Moneys in respect of
each Loan:
(a) accrues daily from and including the day on which
each part of the Outstanding Moneys becomes owing up
to the day immediately preceding the day on which
that part is paid;
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(b) is calculated monthly by reference to the applicable
Interest Rate on the first Business Day of the
relevant month;
(c) is payable in arrears on the first Business Day of
the month immediately following the month in which it
accrues;
(d) is calculated on actual days elapsed and a year of
360 days.
4.2. FUNDS DEPOSITED WITH LENDER
The Borrower may deposit moneys with the Lender. Interest at
the applicable Deposit Interest Rate:
(a) accrues daily from and including the day on which the
deposit is made;
(b) is payable monthly in arrears on the 2nd Business Day
of each month; and
(c) is calculated on actual days elapsed and a year of
360 days.
5. PAYMENT, REPAYMENT AND PREPAYMENT
5.1. TIME AND METHOD OF PAYMENT
Outstanding Moneys in respect of each Loan must be repaid to
the Lender:
(a) in immediately available funds;
(b) in the Relevant Currency;
(c) on the Repayment Date or on such later date agreed by
the Lender and Borrower; and
(d) to the account specified by the Lender to the
Borrower,
or in such other manner as the Lender directs.
5.2. PAYMENTS IN GROSS
All payments in respect of a Loan must be made without:
(a) any set-off, counterclaim or condition; and
(b) any deduction or withholding for any Tax or any other
reason, unless the Borrower is required to make a
deduction or withholding by applicable law.
5.3. ADDITIONAL PAYMENTS
If:
(a) the Borrower is required to make a deduction or
withholding of Tax from any payment to be made to the
Lender under this agreement; or
(b) the Lender is required to pay any Tax concerning any
payment it receives from the Borrower under this
agreement
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then the Borrower:
(c) indemnifies the Lender against that Tax; and
(d) must pay to the Lender an additional amount which the
Lender determines to be necessary to ensure that it
receives when due a net amount (after payment of any
Tax for each additional amount) that is equal to the
full amount it would have received had a deduction or
withholding or payment of Tax not been made.
5.4. PREPAYMENT
(a) The Borrower may prepay all or any part of a Loan
together with all unpaid accrued interest in respect
of the amount prepaid on any day to the Lender in
accordance with clauses 5.1 (other than clause
5.1(c)).
(b) Amounts prepaid can be redrawn.
6. REPRESENTATIONS AND WARRANTIES
6.1. REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that:
(a) INCORPORATION AND EXISTENCE: it has been duly
incorporated in accordance with the laws of its place
of incorporation, is validly existing and is in good
standing under those laws;
(b) POWER: it has power to enter into this agreement and
observe its obligations under this agreement;
(c) AUTHORISATIONS: it has in full force and effect the
Authorisations necessary for it to enter into this
agreement, to observe its obligations and exercise
its rights under this agreement and to allow them to
be enforced;
(d) VALIDITY OF OBLIGATIONS: its obligations under this
agreement are valid and binding and are enforceable
against it in accordance with their terms subject
only to laws relating to insolvency and creditors'
rights generally and the discretionary nature of
equitable remedies;
(e) NO CONTRAVENTION OR EXCEEDING POWER: this agreement
and the transactions under it which involve it do not
contravene its constituent documents or any law or
obligation by which it is bound or to which any of
its assets are subject or cause a limitation on its
powers or the powers of its directors to be exceeded;
(f) RANKING OF OBLIGATIONS: its obligations under this
agreement rank at least equally with all its senior
unsecured indebtedness except liabilities mandatorily
preferred by laws of general application.
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6.2. SURVIVAL OF REPRESENTATIONS AND WARRANTIES
The representations and warranties in, or given under, this
agreement including, but not limited to, clause 6.1 survive
the execution of this agreement.
7. UNDERTAKINGS
7.1. TERM OF UNDERTAKINGS
The undertakings in this clause 7 continue in full force and
effect from the date of this agreement until all Outstanding
Moneys have been repaid.
7.2. GENERAL UNDERTAKINGS
The Borrower undertakes to:
(a) MAINTAIN AUTHORISATIONS: obtain, renew on time and
comply with the terms of, each Authorisation
necessary for it to enter into this agreement to
which it is a party, to observe its obligations and
exercise its rights under them and to allow them to
be enforced;
(b) INCORRECT REPRESENTATIONS OR WARRANTY: notify the
Lender and PDH if any representation or warranty made
by it or on its behalf in connection with this
agreement is found to be incorrect or misleading;
(c) RANKING: ensure that at all times its obligations
under this agreement rank at least equally with all
its other senior unsecured indebtedness except
liabilities mandatorily preferred by law;
(d) STATUS CERTIFICATES: on request from the Lender or
PDH, give the Lender or PDH (as the case may be) a
certificate signed by a director of the Borrower
which states whether an Event of Default or Potential
Event of Default continues unremedied; and
(e) NOTIFY DETAILS OF EVENTS OF DEFAULT OR POTENTIAL
EVENT OF DEFAULT: if an Event of Default or Potential
Event of Default occurs, promptly notify the Lender
and PDH giving full details of the event and any step
taken or proposed to remedy it.
7.3. NEGATIVE PLEDGE AND DISPOSAL OF ASSETS
The Borrower must not, and must ensure that each of its
Subsidiaries does not:
(a) deal with, sell or otherwise dispose of or part with
possession of;
(b) create, permit, suffer to exist, or agree to, any
interest or Encumbrance, other than any Encumbrance
existing on the date hereof and an Encumbrance in
favour of PDH or the Lender, over; or
(c) attempt to do anything listed in clauses 7.3(a) and
(b) in respect of,
any of its assets or the assets of any of its Subsidiaries,
except in the ordinary course of its ordinary business,
without the prior written consent of PDH.
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8. EVENTS OF DEFAULT
8.1. EVENTS OF DEFAULT
An Event of Default occurs if:
(a) NON PAYMENT: the Borrower does not pay any money
payable under this agreement in accordance with this
agreement;
(b) ENFORCEMENT OF JUDGMENT: distress is levied or a
judgment, order or Encumbrance is enforced, or
becomes enforceable against any property of the
Borrower and there is likely, in the reasonable
opinion of PDH, to be a Material Adverse Effect;
(c) INCORRECT REPRESENTATION OR WARRANTY: a
representation or warranty made or taken to be made
by or on behalf of the Borrower in or in connection
with this agreement is found to be incorrect or
misleading when made or taken to be made and, if the
relevant fact or circumstance can be remedied, it is
not remedied within [ ] Business Days after a notice
from the relevant Lender specifying the
representation and warranty concerned;
(d) CEASING BUSINESS: the Borrower stops payment, ceases
to carry on its business or a material part of it, or
threatens to do either of those things except to
reconstruct or amalgamate while solvent on terms
approved by PDH;
(e) INVESTIGATION: a person is appointed under
legislation to investigate or manage any part of the
affairs of the Borrower and the outcome of the
investigation or appointment to manage is likely, in
the reasonable opinion of PDH, to have a Material
Adverse Effect;
(f) VOID DOCUMENT: this agreement is or becomes wholly or
partly (in a material part) void, voidable or
unenforceable, or is claimed to be so by the Borrower
or by anyone on behalf of the Borrower and with its
authority, and alternative documents or other
arrangements acceptable to PDH have not been entered
into within 20 days after the Borrower becomes aware
of the matter of concern;
(g) MATERIAL ADVERSE CHANGE: a change occurs in the
business, assets or financial condition of the
Borrower, which is likely, in the reasonable opinion
of PDH, to have a Material Adverse Effect;
(h) CROSS DEFAULT: any present or future, or actual,
prospective or contingent, indebtedness of the
Borrower in respect of any financial accommodation
(other than under a this agreement) including, but
not limited to, moneys payable under a guarantee:
(1) is or becomes due and payable or is or
becomes capable of being declared due and
payable before the due date for payment; or
(2) is not paid when due or upon the expiration
of any period of grace which may apply;
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(i) ENCUMBRANCE: any Encumbrance is or becomes
enforceable against any asset of the Borrower or any
of its Subsidiaries;
(j) VITIATION OF THIS AGREEMENT:
(1) all or any part of any provision of this
agreement is or becomes illegal, void,
voidable, unenforceable or otherwise of
limited force or effect;
(2) any person becomes entitled to terminate,
rescind or avoid all or any material part or
material provision of this agreement;
(3) any person other than PDH or the Lender
alleges or claims that an event as described
in clause 8.1(j)(1) has occurred or that it
is entitled as described in clause
8.1(j)(2); or
(4) the execution, delivery or performance of
this agreement violates, breaches or results
in a contravention of any law, regulation or
Authorisation;
(k) CHANGE IN CONTROL: PDH ceases to hold directly or
indirectly at least 51% of the issued stock in
Ansell;
(l) [VOLUNTARY INSOLVENCY: the Borrower commences a
voluntary case or other proceeding seeking
liquidation, reorganisation or other relief with
respect to itself or its debts under any bankruptcy,
insolvency or other similar law now or hereafter in
effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar
official of it or all or any substantial part of its
undertaking, property or assets, or consenting to any
such relief or to the appointment of or taking
possession by any such official in an involuntary
case or other proceeding commenced against it, or
making a general assignment for the benefit or
creditors, or failing generally to pay its debts as
they become due, or taking any corporate action to
authorize any of the foregoing; or
(m) INVOLUNTARY INSOLVENCY: an involuntary case or other
proceeding being commenced against the Borrower
incorporated in the United States of America seeking
liquidation, reorganisation or other relief with
respect to it or its debts under any bankruptcy,
insolvency or other similar law now or hereafter in
effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar
official of it or all or any substantial party of its
undertaking, property or assets, and such involuntary
case or other proceeding remaining undismissed,
unnullified, unstayed or otherwise effective for a
period of [90] days or an order for relief being
entered against the Borrower under United States of
America federal bankruptcy laws as now or hereafter
in effect; ]
(n) [WINDING UP: a petition is presented or application
is made and is not withdrawn or dismissed or stayed
within 21 days or an order is made for the winding-up
or administration of the Borrower or an effective
resolution is passed for the winding-up of the
Borrower;]
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(o) [ADMINISTRATOR: an administrative receiver, receiver,
manager or administrator is appointed or an
encumbrancer takes possession of all or a substantial
part of the undertaking, property or assets of the
Borrower, and is not paid out or discharged within
[60] days after such appointment or taking
possession;]
(p) ANALOGOUS PROCEEDINGS: anything analogous and having
substantially similar effect to any of the events
specified in paragraphs (l) to (o) happens under the
laws of the jurisdiction of incorporation of the
Borrower; or
(q) FACILITY AGREEMENT: an Event of Default shall occur
under the Facility Agreement dated ________, 2000
between ▇▇▇▇▇▇ Healthcare Incorporated and Pacific
Dunlop Holdings Inc.
8.2. CONSEQUENCES OF DEFAULT
If an Event of Default occurs, then the Lender or PDH may
declare at any time by notice to the Borrower that:
(a) Outstanding Moneys in respect of each Loan are:
(1) payable to the Lender on demand; or
(2) immediately due for payment to the relevant
Lender; and
(b) the Lender's obligations specified in the notice are
terminated.
9. INTEREST ON OVERDUE AMOUNTS
9.1. PAYMENT OF INTEREST
The Borrower must pay interest on:
(a) any of the Outstanding Moneys due and payable by it
under this agreement, but unpaid; and
(b) on any interest payable but unpaid under clause 9.
9.2. ACCRUAL OF INTEREST
The interest payable under this clause 9:
(a) accrues from day to day from and including the due
date for payment up to the actual date of payment,
before and, as an additional and independent
obligation, after any judgment or other thing into
which the liability to pay such moneys becomes
merged; and
(b) may be capitalised at 30 day intervals.
9.3. RATE OF INTEREST
The rate of interest payable under this clause 9 is the higher
of:
(a) Prime Rate:
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(1) on the date those Outstanding Moneys became
due and payable; and
(2) on each date which is 30 days after the
immediately preceding date on which the
Prime Rate was determined under this clause
9.3(a); and
(b) the rate fixed or payable under a judgment or other
thing referred to in clause 9.2(a).
10. COSTS AND EXPENSES
10.1. COSTS AND EXPENSES
The Borrower must pay all costs and expenses of the Lender and
any employee, officer, agent or contractor of the Lender in
relation to:
(a) the negotiation, preparation, execution, delivery and
stamping of this agreement;
(b) the enforcement, protection or waiver, or attempted
or contemplated enforcement or protection, of any
rights under this agreement;
(c) the consent or approval of the Lender or PDH given
under this agreement; and
(d) any enquiry by any Governmental Agency involving the
Borrower,
including, but not limited to, any administration costs of the
Lender and any legal costs and expenses and any professional
consultant's fees for any of the above on a full indemnity
basis.
10.2. TAX
(a) The Borrower must pay any Tax incurred or payable by
the Lender in respect of the execution, delivery,
performance, release, discharge, amendment,
enforcement or attempted enforcement or otherwise in
respect of any of the following:
(1) this agreement;
(2) any agreement or document entered into or
signed under this agreement; and
(3) any transaction contemplated under this
agreement or any agreement or document
described in clause 10.2(a)(2) including the
making of any Loan .
(b) The Borrower must pay any fine, penalty or other cost
in respect of a failure to pay any Tax described in
clause 10.2(a) except to the extent that the fine,
penalty or other cost is caused by the Lender's
failure to lodge money received from the Borrower
within 10 Business Days before the due date for
lodgement.
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(c) The Borrower indemnifies the Lender against any
amount payable under clause 10.2(a) or 10.2(b) or
both.
11. ASSIGNMENT
11.1. ASSIGNMENT BY THE BORROWER
The Borrower must not transfer or assign any of its rights or
obligations under this agreement without the prior written
consent of the Lender or PDH.
11.2. ASSIGNMENT BY THE LENDER
The Lender must not assign any of its rights or transfer by
novation any of its rights and obligations under this
agreement except to a related body corporate (as defined by
the Corporations Law) of PDH without the prior written consent
of the Borrower, which consent must not be unreasonably
withheld.
12. GENERAL
12.1. NOTICES
(a) Any notice or other communication including, but not
limited to, any request, demand, consent or approval,
to or by a party to this agreement:
(1) must be in legible writing and in English
addressed as shown below:
(A) if to the Lender:
Address: [ ]
[ ]
Attention: [ ]
Facsimile: [ ]
(B) if to the Borrower:
Address: [ ]
[ ]
Attention: [ ]
Facsimile: [ ]
or as specified to the sender by any party
by notice;
(2) where the sender is a company, must be
signed on behalf of the sender;
(3) is regarded as being given by the sender and
received by the addressee:
(A) if by delivery in person, when
delivered to the addressee;
(B) if by post, [10] Business Days from
and including the date of postage;
or
(C) if by facsimile transmission,
whether or not legibly received,
when transmitted to the addressee,
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but if the delivery or receipt is on a day
which is not a Business Day or is after
4.00pm (addressee's time) it is regarded as
received at 9.00 am on the following
Business Day; and
(4) can be relied upon by the addressee and the
addressee is not liable to any other person
for any consequences of that reliance if the
addressee believes it to be genuine, correct
and authorised by the sender.
(b) A facsimile transmission is regarded as legible
unless the addressee telephones the sender within 2
hours after the transmission is received or regarded
as received under clause 12.1(a)(3) and informs the
sender that it is not legible.
(c) In this clause 12.1, a reference to an addressee
includes a reference to an addressee's officers,
agents or employees or any person reasonably believed
by the sender to be an officer, agent, or employee of
the addressee.
12.2. GOVERNING LAW AND JURISDICTION
(a) This agreement is governed by the laws of [ ].
(b) The Borrower irrevocably submits to the non-exclusive
jurisdiction of the courts of the [ ].
(c) The Borrower appoints [ ] in relation to proceedings
in [ ] as its agent to receive service of any legal
process on its behalf without excluding any other
means of service permitted by the law of the relevant
jurisdiction.
(d) The Borrower irrevocably waives any objection to the
venue of any legal process on the basis that the
process has been brought in an inconvenient forum.
12.3. PROHIBITION AND ENFORCEABILITY
(a) Any provision of, or the application of any provision
of, this agreement or any Power which is prohibited
in any jurisdiction is, in that jurisdiction,
ineffective only to the extent of that prohibition.
(b) Any provision of, or the application of any provision
of, this agreement which is void, illegal or
unenforceable in any jurisdiction does not affect the
validity, legality or enforceability of that
provision in any other jurisdiction or of the
remaining provisions in that or any other
jurisdiction.
12.4. WAIVERS
(a) Waiver of any right arising from a breach of this
agreement or of any Power arising upon default under
this agreement or upon the occurrence of an Event of
Default must be in writing and signed by the party
granting the waiver.
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(b) A failure or delay in exercise, or partial exercise,
of:
(1) a right arising from a breach of this
agreement or the occurrence of an Event of
Default; or
(2) a Power created or arising upon default
under this agreement or upon the occurrence
of an Event of Default,
does not result in a waiver of that right or Power.
(c) A party is not entitled to rely on a delay in the
exercise or non-exercise of a right or Power arising
from a breach of this agreement or on a default under
this agreement or on the occurrence of an Event of
Default as constituting a waiver of that right or
Power.
(d) A party may not rely on any conduct of another party
as a defence to exercise of a right or Power by that
other party.
(e) This clause may not itself be waived except by
writing.
12.5. VARIATION
A variation of any term of this agreement must be in writing
and signed by the parties.
12.6. CUMULATIVE RIGHTS
The Powers are cumulative and do not exclude any other right,
power, authority, discretion or remedy of the Lender.
12.7. CERTIFICATES OF THE LENDER
(a) A certificate under the hand of an officer of the
Lender detailing the amount of the Outstanding Moneys
due and payable under this agreement whether
currently due and payable or not and the applicable
Interest Rate at any time is sufficient evidence
unless the contrary is proved.
(b) A certificate under the hand of an officer of the
Lender stating the opinion of the Lender as to any
thing is sufficient evidence of that opinion at the
date stated on the certificate or failing that as at
the date of that certificate unless the contrary is
proved.
12.8. COUNTERPARTS
(a) This agreement may be executed in any number of
counterparts.
(b) All counterparts, taken together, constitute one
instrument.
(c) A party may execute this agreement by signing any
counterpart.
12.9. ATTORNEYS
Each of the attorneys executing this agreement states that the
attorney has no notice of the revocation of the power of
attorney appointing that attorney.
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SCHEDULE 1 - CONDITIONS PRECEDENT
CLAUSE 3.1
The Lender and PDH must have received all of the following in
a form and substance satisfactory to PDH:
(a) a certified copy of:
(1) an extract of the minutes of a meeting of
the board of directors of the Borrower which
evidences the resolutions authorising the
signing and delivery of and observance of
obligations under the agreement and which
acknowledges that the agreement will benefit
the Borrower; and
(2) each instrument which evidence any other
necessary corporate or other action in
connection with the agreement; and
(b) a certificate of the Borrower certifying that
attached thereto are true and correct copies of all
governmental and regulatory authorisations and
approvals required for the due execution, delivery
and performance of this agreement; and
(c) a certificate of the Borrower certifying that
attached thereto are true and correct copies of the
constitute documents (in its constitution) of the
Borrower.
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EXECUTED AS AN AGREEMENT:
SIGNED for
[ ]
by its attorney in
the presence of:
------------------------------------------------ --------------------------------------------------
Witness Attorney
------------------------------------------------ --------------------------------------------------
Name (please print) Name (please print)
SIGNED for
[ ]
by its attorney in
the presence of:
------------------------------------------------ --------------------------------------------------
Witness Attorney
------------------------------------------------ --------------------------------------------------
Name (please print) Name (please print)
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