SUBORDINATION DEED
DEED dated 1997
BETWEEN BUFFALO RANCH AUSTRALIA PTY LTD ACN 009 937 900
▇▇▇▇▇▇▇ FINANCE AND MANAGEMENT PTY LTD
ACN ▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ FOODS AUSTRALIA PTY LTD ACN 009 914 103
▇▇▇▇▇▇▇ FOODS INTERNATIONAL PTY LTD ARBN ▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ INTERNATIONAL INC, A COMPANY INCORPORATED IN
DELAWARE, UNITED STATES OF AMERICA
▇▇▇▇▇▇▇ PROPERTY DEVELOPMENT PTY LTD
ACN ▇▇▇ ▇▇▇ ▇▇▇
FURNACE CONCEPTS AUSTRALIA CORP. ARBN 070 065 468
GULLIVER'S AUSTRALIA PTY LTD ACN 009 988 381
RESTAURANT CONCEPTS OF AUSTRALIA, PTY LTD
RESTAURANT CONCEPTS INTERNATIONAL INC, A COMPANY
INCORPORATED IN NEVADA, UNITED STATES OF AMERICA
SIZZLER AUSTRALIA PTY LTD ACN 010 060 876
SIZZLER INTERNATIONAL MARKS INC., A COMPANY
INCORPORATED IN DELAWARE, UNITED STATES OF AMERICA
SIZZLER NEW ZEALAND LIMITED, A COMPANY INCORPORATED IN
NEVADA, UNITED STATES OF AMERICA
SIZZLER SOUTH PACIFIC PTY LTD ARBN 010 713 952
SIZZLER SOUTH-EAST ASIA INC, A COMPANY INCORPORATED IN
NEVADA, UNITED STATES OF AMERICA
THE ITALIAN OVEN AUSTRALIA PTY LTD ACN 010 102 388
SIZZLER FRANCHISE DEVELOPMENT LIMITED, A COMPANY
INCORPORATED IN, UNITED STATES OF AMERICA
SIZZLER RESTAURANT SERVICES, INC,
A COMPANY INCORPORATED IN NEVADA, UNITED STATES OF AMERICA
FURNACE CONCEPTS INTERNATIONAL, INC, A COMPANY
INCORPORATED IN NEVADA, UNITED STATES OF AMERICA
EACH OF OR ▇/- ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
(EACH A 'DEBTOR')
AND SIZZLER INTERNATIONAL, INC., A COMPANY INCORPORATED IN
DELAWARE, UNITED STATES OF AMERICA
▇▇▇▇▇▇▇ PROPERTIES, INC., A COMPANY INCORPORATED IN
,UNITED STATES OF AMERICA
EACH OF C/- 16 EDMONDSTONE STREET, NEWMARKET, BRISBANE,
QUEENSLAND, AUSTRALIA
(EACH A 'JUNIOR CREDITOR')
AND WESTPAC BANKING CORPORATION ARBN 007 457 141, OF
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
('SENIOR CREDITOR')
RECITAL
The Senior Creditor, each Junior Creditor and each Debtor have agreed that the
Subordinated
2
Debt will be subordinated to the Senior Debt on the terms and to the extent
provided in this document.
AGREEMENT
1. INTERPRETATION
1.1 DEFINITIONS
In this document:
'ACCESSION DEED' means an Accession Deed substantially in the form of
annexure 'A'.
'AUTHORISED OFFICER' means, in relation to a body corporate, a person for
the time being holding or acting in the office of director, chief
executive, deputy chief executive or secretary of that body corporate or a
person the title of whose office at the body corporate includes the word
'Manager' or the word 'Director' or the like.
'BUSINESS DAY' means a day on which the Senior Creditor is generally open
for business except a Saturday, Sunday or public holiday.
'CONTROLLER' means an administrator, receiver, receiver and manager,
trustee, provisional liquidator, liquidator, inspector, statutory manager
or any other person (however described) holding or appointed to an
analogous office or acting or purporting to act in an analogous capacity
whether pursuant to any statute, the order or authority of any Public
Authority, a Security Interest or otherwise.
'EVENT OF DEFAULT' means any event of default or other event in relation to
or under any document or arrangement evidencing the Subordinated Debt or
Senior Debt which entitles a Junior Creditor or the Senior Creditor to
accelerate the due date for payment or discharge of any liability.
'GUARANTEE' means a guarantee, indemnity, letter of credit, letter of
comfort or any other obligation whatever called and of whatever nature by
which a person is responsible for an obligation or debt of another.
'JUNIOR CREDITOR' includes the parties specified as such on the first page
of this documents and any person who becomes a Junior Creditor under an
Accession Deed;
'NEGATIVE PLEDGE' means the Unlimited Cross Guarantee and Indemnity and
Negative Pledge with Financial Ratio Covenants dated on or around the date
of this document between the Senior Creditor, ▇▇▇▇▇▇▇ Foods International
Pty Ltd and others.
'POTENTIAL EVENT OF DEFAULT' means any event, thing or circumstance which
with the giving of notice or passage of time or both would become an Event
of Default.
'PUBLIC AUTHORITY' means the Crown, any government or minister or any
governmental, semi-governmental or judicial entity, department,
instrumentality or authority.
'SECURITY INTEREST' means any mortgage, pledge, lien, charge or other
preferential right, trust arrangement, agreement or arrangement of any kind
given or created as or by way of security.
3
'SENIOR DEBT' means all money, debts and liabilities now or in the future
owing or remaining unpaid by any Debtor to the Senior Creditor (whether
actually or contingently and whether alone or with any other person) on any
account or in any way whatever.
'SIZZLER INTERNATIONAL' means Sizzler International Inc. a company
incorporated in Delaware, United States of America.
'SUBORDINATED DEBT' means all money, debts and liabilities now or in the
future owing or remaining unpaid by any Debtor to any Junior Creditor
(whether actually or contingently and whether alone or with any other
person) on any account or in any way whatever.
'SUBSIDIARY' has the same meaning it has in the Negative Pledge.
'SURETY', in respect of a Debtor, means a person other than the Debtor who
at any time has given a Guarantee, alone or jointly or jointly and
severally in respect of the Debtor's Senior Debt or Subordinated Debt.
'WINDING UP' of or in relation to a person includes:
(a) the dissolution, receivership, administration, liquidation,
provisional liquidation or bankruptcy of that person and any form of
administration of that person under any law relating to insolvency or
bankruptcy; and
(b) any equivalent or analogous procedure (however described) to which
that person may be subject under the law of any jurisdiction.
1.2 CONSTRUCTION
In this document, headings are for reference only and do not affect its
meaning and unless the contrary intention appears:
(a) the singular includes the plural and vice versa and words importing a
gender include other genders;
(b) other grammatical forms of defined words or expressions have
corresponding meanings;
(c) where there are two or more persons bound or to be bound an agreement
or obligation binds those persons severally and any two or more of
them jointly;
(d) a reference to a party to this document includes that party's
successors and permitted assigns;
(e) a reference to a document or agreement, including this document,
includes a reference to that document or agreement as novated,
altered or replaced from time to time;
(f) a reference to writing includes any mode of representing or
reproducing words in a visible form;
(g) a reference to any thing includes the whole or any part of that thing
and a
4
reference to a group of things or persons includes each thing or
person in that group;
(h) a reference to 'dollar' or '$' is a reference to Australian currency;
(i) a reference to any legislation or statutory instrument or regulation
is to be construed in accordance with the Acts Interpretation ▇▇▇
▇▇▇▇ (Cth) or the equivalent State legislation, as applicable, as if
this document were an Act; and
(j) words and expressions importing natural persons include partnerships,
bodies corporate, associations and Public Authorities.
2. CONSIDERATION
Each Junior Creditor and each Debtor acknowledge entering into and
incurring obligations and giving rights under this document in
consideration of the Senior Creditor continuing to provide financial
accommodation to or at the request of any Debtor.
3. SUBORDINATION
3.1 SUBORDINATION OF DEBT
Until the Senior Creditor has received payment of the Senior Debt in full:
(a) no Debtor will:
(i) except as permitted under clause 5, pay or allow payment of the
Subordinated Debt owed by it;
(ii) permit or assist a Junior Creditor to recover the Subordinated
Debt owed by it; or
(iii) set off the Subordinated Debt owed by it against any
indebtedness to the Junior Creditor to which that Subordinated
Debt is owed; and
(b) no Junior Creditor will;
(i) except as permitted under clause 5, accept payment of the
Subordinated Debt owed to it;
(ii) demand payment of, ▇▇▇ for or take other action to cause
payment or acceleration of payment of the Subordinated Debt
owed to it;
(iii) take or be a party to any proceeding or action for the purpose
of the appointment of a Controller in respect of or the Winding
Up of any Debtor; or
(iv) exercise any right of set off or combination of accounts in
respect of any Debtor.
3.2 WINDING UP PROCEEDINGS
5
In any proceedings for the Winding Up of a Debtor:
(a) payment of the Debtor's Subordinated Debt is conditional on the
Senior Creditor having received payment of the Senior Debt in full;
(b) until the Senior Creditor has received payment of the Senior Debt in
full no Junior Creditor will, except on request from the Senior
Creditor, prove for any of its Subordinated Debt and will on proving
immediately send a copy of its notice of proof to the Senior
Creditor; and
(c) until the Senior Creditor has received payment of the Senior Debt in
full, each Junior Creditor will on request from the Senior Creditor
prove for the whole of its Subordinated Debt and will on proving send
a copy of its notice of proof to the Senior Creditor.
3.3 PROCEEDS
If, before the Senior Creditor has received payment of the Senior Debt in
full, a Junior Creditor receives any payment or recovers any amount in
respect of the Subordinated Debt owed to it which is not permitted under
clause 5 ('RECEIPT'):
(a) the Junior Creditor will pay an amount equal to the Receipt to the
Senior Creditor to be applied in reduction of the Senior Debt; and
(b) to the extent that this does not create any Security Interest which
would:
(i) breach any law or directive of any Public Authority; or
(ii) require registration in order not to be void or voidable in
full or against certain parties,
the Receipt will be held for and on behalf of the Senior Creditor by the
Junior Creditor and will be paid by the Junior Creditor in accordance with
clause 3.3(a).
3.4 NON-RETAINABLE RECEIPT
If any payment received by the Senior Creditor in respect of the Senior
Debt is subsequently avoided or repaid or conceded to be or compromised as
being void, voidable or repayable under any law relating to insolvency or
the protection of creditors or to any other matter or event whatever then
despite any release, discharge, acknowledgement or notice of revocation of
this document having been given on the basis of any such payment, the
payment will be deemed not to have been made and the Senior Creditor's
right to receive the full amount of the Senior Debt under this document
prior to any payment by any Debtor of the whole or any part of the
Subordinated Debt owed by it (other than as permitted under clause 5) will
not be prejudiced or affected.
4. REPRESENTATIONS AND WARRANTIES
4.1 REPRESENTATIONS AND WARRANTIES OF JUNIOR CREDITORS AND DEBTORS
Each Junior Creditor and Debtor represents and warrants to the Senior
Creditor that:
6
(a) it is a corporation and is properly incorporated and validly
existing;
(b) it is empowered to enter into this document and to carry out any
transaction or obligation contemplated by this document and all
necessary actions have been taken to render this document valid and
binding on it and to enable it to carry out any transaction or
obligation contemplated by this document;
(c) the execution and performance of this document by it has not and will
not:
(i) result in the contravention of a law or a directive of any
Public Authority;
(ii) result in the creation of a Security Interest on or the
crystallisation of a charge over any asset of it; or
(iii) conflict with the operation or terms of any document or
arrangement which binds it;
(d) Sizzler International and ▇▇▇▇▇▇▇ Properties, Inc. are the only
members of the Sizzler International, Inc. group of companies which:
(i) are not Debtors; and
(ii) are owed or have the benefit of any obligation in the nature of
Subordinated Debt.
4.2 RELIANCE BY SENIOR CREDITOR
Each Junior Creditor and Debtor acknowledges that the Senior Creditor has
entered into this document in reliance upon the representations and
warranties given in this clause 4.
5. PERMITTED PAYMENTS
So long as:
(a) no Senior Debt is due and unpaid;
(b) no Event of Default or Potential Event of Default has occurred; and
(c) neither a Debtor nor a Junior Creditor is in breach of the provisions
of this document,
each Debtor may pay, and each Junior Creditor may receive and retain
payment of:
(d) such payments in respect of the Subordinated Debt owed by it or to it
(as the case may be) as are permitted under the Negative Pledge; and
(e) such payments as the Senior Creditor may allow by notice to the
relevant Debtor and relevant Junior Creditor.
6. RESTRICTIONS ON INDEBTEDNESS
7
(a) Each Debtor undertakes that it will not become in any way indebted to
any Subsidiary of Sizzler International (other than a Junior Creditor
or a Debtor); and
(b) Sizzler International undertakes that it will not permit any Debtor to
become so indebted to any Subsidiary of Sizzler International (other
than a Junior Creditor),
unless each party to this document and the relevant Subsidiary first
executes and delivers to the Senior Creditor an Accession Deed under which
the relevant Subsidiary agrees to be bound by this Deed as a Junior
Creditor. Each Debtor and Junior Creditor irrevocably authorises each
Authorised Officer of the Senior Creditor to execute any Accession Deed on
its behalf. This authority is given as security for the obligations of the
party giving it to the Senior Creditor.
7. UNDERTAKINGS
7.1 DEBTOR'S UNDERTAKINGS
Each Debtor undertakes that:
(a) it will not novate, vary, replace or rescind any agreement or
instrument under which the Debtor's obligations in respect of the
Subordinated Debt owed by it arise without the written consent of the
Senior Creditor (such consent not to be unreasonably withheld);
(b) it will not permit any Guarantee to be given in respect of the
Subordinated Debt owed by it;
(c) it will not grant or permit to be granted a Security Interest in
respect of the Subordinated Debt owed by it;
(d) it will notify the Senior Creditor immediately it receives a demand
for payment of any part of the Subordinated Debt owed by it; and
(e) it will promptly provide the Senior Creditor with copies of all
documents evidencing the Subordinated Debt owed by it and any
amendments, waivers or variations to or in relation to such
documents.
7.2 JUNIOR CREDITOR'S UNDERTAKINGS
Each Junior Creditor undertakes that:
(a) it will not novate, vary, replace or rescind any agreement or
instrument under which a Debtor's obligations in respect of the
Subordinated Debt owed to it arise without the written consent of the
Senior Creditor (such consent not to be unreasonably withheld);
(b) it will not assign the Subordinated Debt owed to it or any interest
in it without the prior written consent of the Senior Creditor;
8
(c) it will not accept the benefit of a Guarantee in respect of the
Subordinated Debt owed to it;
(d) it will not take or permit to exist a Security Interest in respect of
the Subordinated Debt owed to it;
(e) it will not waive payment of or release any Debtor or any of the
Debtor's Sureties from an obligation to pay the Subordinated Debt
owed to it or cause or permit its right to be paid the Subordinated
Debt owed to it to be prejudiced;
(f) it will exercise any voting power it has as shareholder of any Debtor
to ensure that the Debtor does not breach its obligations under this
document;
(g) it will use its best efforts to ensure that no Debtor breaches its
obligations under this document;
(h) it will notify the Senior Creditor of any default in any agreement or
instrument under which a Debtor's obligations in respect of the
Subordinated Debt owed to it arise; and
(i) it will promptly provide the Senior Creditor with copies of all
documents evidencing the Subordinated Debt owed to it and any
amendments, waivers or variations to or in relation to such
documents.
7.3 SIZZLER INTERNATIONAL'S UNDERTAKINGS
Sizzler International undertakes that:
(a) it will exercise any voting power it has as shareholder of any other
Junior Creditor to ensure that the Junior Creditor does not breach
its obligations under this document;
(b) it will use its best efforts to ensure that no other Junior Creditor
breaches its obligations under this document.
8. PRESERVATION OF SENIOR CREDITOR'S RIGHTS
8.1 CONTINUING SUBORDINATION
The subordination of the Subordinated Debt on the terms of this document
constitutes a continuing subordination and will not be affected by the
repayment in whole or in part from time to time of the Senior Debt.
8.2 OBLIGATIONS NOT AFFECTED
The subordination of the Subordinated Debt on the terms of this document
and the obligations of each Junior Creditor under this document will not be
abrogated, prejudiced or affected by:
(a) the granting of time or any other indulgence by the Senior Creditor
to any Debtor or to any other person;
9
(b) the taking, variation, compromise, exchange, renewal, or release of
or failure to perfect any rights against any asset of or any rights
under any Security Interest in respect of the Senior Debt;
(c) the unenforceability, impossibility, illegality or invalidity of any
obligation of any Debtor to the Senior Creditor in respect of any
agreement or instrument under which the Debtor's obligations in
respect of the Senior Debt arise; or
(d) any other dealing, matter or thing which but for this provision could
or might operate to affect or discharge the obligations of any Junior
Creditor under this document.
9. NO COMPETITION
Until the Senior Creditor has received payment of the Senior Debt in full
no Junior Creditor will by reason of any payment or performance under this
document:
(a) be subrogated to any right or security which the Senior Creditor may
hold in respect of the Senior Debt or be entitled to any right of
contribution or indemnity; or
(b) claim, rank, prove or vote as a creditor of any Debtor or any of the
Debtor's Sureties in competition with the Senior Creditor.
10. OTHER SECURITY
Each Junior Creditor waives any right it may have of requesting the Senior
Creditor to proceed against or enforce any other Security Interest or to
claim payment from any person before claiming the benefit of this document.
11. COSTS AND EXPENSES
Each Debtor indemnifies the Senior Creditor against and must pay on demand
to the Senior Creditor all taxes, registration fees, costs, charges,
expenses and liabilities (including, but not limited to, all legal costs
and disbursements on a full indemnity basis) which the Senior Creditor may
be liable to pay in connection with:
(a) the negotiation, preparation, completion, registration or stamping of
this document; and
(b) the protection, enforcement or exercise or attempted enforcement or
exercise of any right, power, authority or remedy conferred on the
Senior Creditor under this document, by law or otherwise.
12. SET OFF
The Senior Creditor may without any demand or notice, set off and apply any
or all indebtedness at any time owing by the Senior Creditor to any Junior
Creditor against any debt owing by that Junior Creditor to the
SeniorCreditor whether or not that indebtedness or that debt is immediately
due and payable.
13. ASSIGNMENT
10
The Senior Creditor may at any time assign or otherwise deal with or
dispose of all or any of its rights or benefits under this document.
14. POWER OF ATTORNEY
14.1 GRANT
Each Junior Creditor for valuable consideration irrevocably appoints the
Senior Creditor and each Authorised Officer of the Senior Creditor
severally to be the Junior Creditor's attorneys and in the Junior
Creditor's name (or in the name of the attorney) and on the Junior
Creditor's behalf after the occurrence of an Event of Default or Potential
Event of Default:
(a) to do anything which the Junior Creditor is obliged to do under this
document;
(b) to do anything which in the opinion of the attorney:
(i) is necessary or expedient to give effect to any right, power
or remedy conferred on the Senior Creditor; or
(ii) it is necessary or expedient that the Junior Creditor do,
under this document;
(c) to sign or enter into (or both) all transactions, documents,
agreements and instruments which in the opinion of the attorney it is
necessary or expedient that the Junior Creditor sign or enter into
under this document; and
(d) generally to use the Junior Creditor's name in the exercise of all or
any of the powers conferred on the Senior Creditor by or under this
document, statute, the general law or otherwise,
and the Junior Creditor undertakes to ratify anything done by an attorney
under this power of attorney.
14.2 DELEGATION BY ATTORNEY
Any attorney may delegate its powers (including the power to delegate) to
any person for any period and may revoke any delegation.
14.3 STATEMENT OF PURPOSE
The power of attorney created under this clause 14 is irrevocable and is
granted to secure the performance by each Junior Creditor of the Junior
Creditor's obligations under this document.
15. CERTIFICATES
A certificate signed by an Authorised Officer of the Senior Creditor about
a matter or about a sum payable to the Senior Creditor in connection with
this document is admissible in proceedings and is, except where there is
manifest error, conclusive
11
evidence of the matters stated.
16. NOTICES
16.1 WHO MAY SIGN A NOTICE
Any notice from or demand by the Senior Creditor to or on a Debtor or
Junior Creditor may (without limiting any other valid form of execution) be
signed by an Authorised Officer of the Senior Creditor or by any solicitor
acting for the Senior Creditor, whose signature may be handwritten or
printed or otherwise reproduced by mechanical means.
16.2 HOW A NOTICE MAY BE SENT
In addition to any method of service provided for by statute, a notice or
demand by or on behalf of the Senior Creditor is taken to have been given
to or made on a Debtor or Junior Creditor if:
(a) sent by telex or facsimile to the telex or facsimile number of the
Debtor or the Junior Creditor last known to the Senior Creditor or,
if more than one telex or facsimile number is known to the Senior
Creditor, to any such telex or facsimile number;
(b) left for the Debtor or the Junior Creditor or sent by mail (and by
airmail if to an address outside Australia) to the Debtor or the
Junior Creditor at:
(i) any address of the Debtor or the Junior Creditor set out in
this document;
(ii) the Debtor or the Junior Creditor's usual abode or place of
business last known to the Senior Creditor;
(iii) the Debtor or the Junior Creditor's registered office; or
(iv) any premises owned or occupied by the Debtor or the Junior
Creditor.
16.3 VALIDITY OF NOTICE
Service under clause 16.2 is valid even if:
(a) the Winding Up of the relevant Debtor or Junior Creditor has occurred
or the Debtor or Junior Creditor is absent from the place at or to
which the notice or demand is left, delivered or sent; or
(b) where the notice or demand is sent by post or otherwise, it is
returned unclaimed.
16.4 RECEIPT OF NOTICE
Any notice or demand is taken to have been received by the relevant Debtor
or Junior Creditor:
(a) if left or delivered personally, on the same day;
12
(b) if sent by post to an address in Australia, on the second Business
Day after the date of posting;
(c) if sent by post to an address outside Australia, on the fourth
Business Day after the date of posting;
(d) if sent by telex, on receipt of the Debtor or the Junior Creditor's
answerback code; and
(e) if sent by facsimile, on production of a transmission report by the
sender's facsimile machine indicating that the notice or demand has
been sent to the relevant number.
17. SEVERABILITY
17.1 PREFERRED CONSTRUCTION
A construction of this document which results in all provisions being
enforceable is to be preferred to a construction which does not so result.
17.2 SEVERANCE
If, despite the application of clause 17.1 a provision of this document is
illegal or unenforceable:
(a) if the provision would not be illegal or unenforceable if a word or
words were omitted, that word or those words will be severed; and
(b) in any other case, the whole provision will be severed,
and the remainder of this document will continue to have full force and
effect.
18. GOVERNING LAW AND JURISDICTION
This document is governed by the law of Queensland and each Debtor and
Junior Creditor irrevocably and unconditionally submits to the non-
exclusive jurisdiction of the courts of Queensland.
19. AGENT FOR SERVICE OF PROCESS
Each Debtor and Junior Creditor having its registered office outside
Queensland:
(a) irrevocably appoints ▇▇▇▇▇▇▇ Finance and Management Pty Ltd ACN 009
996 721 ('▇▇▇▇▇▇▇ Finance') as its agent for service of process
relating to any proceedings before the courts and appellate courts of
the State of Queensland in connection with this document;
(b) agrees that failure by ▇▇▇▇▇▇▇ Finance to notify it of the process
will not invalidate the proceedings concerned; and
(c) agrees that nothing shall affect the right to serve process in any
other manner permitted by law.
13
20. ATTORNEYS
Each attorney executing this document states that he or she has no notice
of the revocation of his or her power of attorney.
EXECUTED as a deed.
THE COMMON SEAL of BUFFALO RANCH )
AUSTRALIA PTY LTD ACN 009 937 900 is )
affixed in accordance with its )
constituent documents in the presence of )
......................................... ...................................
Authorised Officer/Director Authorised Officer/Director
......................................... ...................................
Please Print Full Name Please Print Full Name
THE COMMON SEAL of ▇▇▇▇▇▇▇ FINANCE )
AND MANAGEMENT PTY LTD ACN 009 996 )
721 is affixed in accordance with its )
constituent documents in the presence of )
......................................... ...................................
Authorised Officer/Director Authorised Officer/Director
......................................... ...................................
Please Print Full Name Please Print Full Name
THE COMMON SEAL of ▇▇▇▇▇▇▇ FOODS )
AUSTRALIA PTY LTD ACN 009 914 103 is )
affixed in accordance with its constituent)
documents in the presence of )
......................................... ...................................
Authorised Officer/Director Authorised Officer/Director
......................................... ...................................
Please Print Full Name Please Print Full Name
14
THE COMMON SEAL of ▇▇▇▇▇▇▇ FOODS )
INTERNATIONAL PTY LTD ARBN ▇▇▇ ▇▇▇ ▇▇▇ )
is affixed in accordance with its )
constituent documents in the presence of )
......................................... ...................................
Authorised Officer/Director Authorised Officer/Director
......................................... ...................................
Please Print Full Name Please Print Full Name
THE COMMON SEAL of ▇▇▇▇▇▇▇ )
INTERNATIONAL INC is affixed in accordance)
with its constituent documents in the )
presence of )
......................................... ...................................
Authorised Officer/Director Authorised Officer/Director
......................................... ...................................
Please Print Full Name Please Print Full Name
THE COMMON SEAL of ▇▇▇▇▇▇▇ )
PROPERTY DEVELOPMENT PTY LTD ACN 010 )
539 616 is affixed in accordance with its )
constituent documents in the presence of )
......................................... ...................................
Authorised Officer/Director Authorised Officer/Director
......................................... ...................................
Please Print Full Name Please Print Full Name
THE COMMON SEAL of FURNACE )
CONCEPTS AUSTRALIA CORP ARBN 070 065 )
15
468 is affixed in accordance with its )
constituent documents in the presence of )
......................................... ...................................
Authorised Officer/Director Authorised Officer/Director
......................................... ...................................
Please Print Full Name Please Print Full Name
THE COMMON SEAL of GULLIVER'S )
AUSTRALIA PTY LTD ACN 009 988 381 is )
affixed in accordance with its constituent)
documents in the presence of )
......................................... ...................................
Authorised Officer/Director Authorised Officer/Director
......................................... ...................................
Please Print Full Name Please Print Full Name
THE COMMON SEAL of RESTAURANT )
CONCEPTS OF AUSTRALIA, PTY LTD is affixed)
in accordance with its constituent )
documents in the presence of )
......................................... ...................................
Authorised Officer/Director Authorised Officer/Director
......................................... ...................................
Please Print Full Name Please Print Full Name
THE COMMON SEAL of RESTAURANT )
CONCEPTS INTERNATIONAL INC is affixed in )
accordance with its constituent documents )
in the presence of )
......................................... ...................................
16
Authorised Officer/Director Authorised Officer/Director
......................................... ...................................
Please Print Full Name Please Print Full Name
THE COMMON SEAL of SIZZLER )
AUSTRALIA PTY LTD ACN 010 060 876 is )
affixed in accordance with its constituent)
documents in the presence of )
......................................... ...................................
Authorised Officer/Director Authorised Officer/Director
......................................... ...................................
Please Print Full Name Please Print Full Name
THE COMMON SEAL of SIZZLER )
INTERNATIONAL MARKS INC is affixed in )
accordance with its constituent documents )
in the presence of )
......................................... ...................................
Authorised Officer/Director Authorised Officer/Director
......................................... ...................................
Please Print Full Name Please Print Full Name
THE COMMON SEAL of SIZZLER NEW )
ZEALAND LIMITED is affixed in accordance )
with its constituent documents in the )
presence of )
......................................... ...................................
Authorised Officer/Director Authorised Officer/Director
......................................... ...................................
Please Print Full Name Please Print Full Name
17
THE COMMON SEAL of SIZZLER SOUTH )
PACIFIC PTY LTD ARBN 010 713 952 is )
affixed in accordance with its )
constituent documents in the presence of )
......................................... ...................................
Authorised Officer/Director Authorised Officer/Director
......................................... ...................................
Please Print Full Name Please Print Full Name
THE COMMON SEAL of SIZZLER SOUTH- )
EAST ASIA INC is affixed in accordance )
with its constituent documents in the )
presence of )
......................................... ...................................
Authorised Officer/Director Authorised Officer/Director
......................................... ...................................
Please Print Full Name Please Print Full Name
THE COMMON SEAL of THE ITALIAN )
OVEN AUSTRALIA PTY LTD ACN 010 102 388 )
is affixed in accordance with its )
constituent documents in the presence of )
......................................... ...................................
Authorised Officer/Director Authorised Officer/Director
......................................... ...................................
Please Print Full Name Please Print Full Name
THE COMMON SEAL of SIZZLER )
FRANCHISE DEVELOPMENT LIMITED is affixed )
in accordance with its constituent )
documents in the presence of )
18
......................................... ...................................
Authorised Officer/Director Authorised Officer/Director
......................................... ...................................
Please Print Full Name Please Print Full Name
THE COMMON SEAL of SIZZLER )
RESTAURANT SERVICES, INC is affixed in )
accordance with its constituent documents )
in the presence of )
......................................... ...................................
Authorised Officer/Director Authorised Officer/Director
......................................... ...................................
Please Print Full Name Please Print Full Name
THE COMMON SEAL of FURNACE )
CONCEPTS INTERNATIONAL, INC is affixed in )
accordance with its constituent documents )
in the presence of )
......................................... ...................................
Authorised Officer/Director Authorised Officer/Director
......................................... ...................................
Please Print Full Name Please Print Full Name
THE COMMON SEAL of SIZZLER )
INTERNATIONAL, INC. is affixed in )
accordance with its constituent documents )
in the presence of )
......................................... ...................................
Authorised Officer/Director Authorised Officer/Director
19
......................................... ...................................
Please Print Full Name Please Print Full Name
THE COMMON SEAL of ▇▇▇▇▇▇▇ )
PROPERTIES, INC. is affixed in accordance)
with its constituent documents in the )
presence of )
......................................... ...................................
Authorised Officer/Director Authorised Officer/Director
......................................... ...................................
Please Print Full Name Please Print Full Name
SIGNED for and on behalf of WESTPAC )Westpac Banking Corporation by its
BANKING CORPORATION ARBN 007 457 141 )duly constituted Attorney:
by its duly constituted Attorney )
)
who certifies that he/she has no notice of)
revocation of the powers granted pursuant )
to Power of Attorney No. )...................................
in the presence of )
)
.........................................
A Justice of the Peace
20
ANNEXURE 'A'
ACCESSION DEED
DEED dated 199#/200#
BETWEEN [NAME] Incorporated in [#] of [#] (the 'New Junior Creditor')
AND WESTPAC BANKING CORPORATION ARBN 007 457 141 of ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ('Senior Creditor') for itself and on behalf
of all other parties to the Subordination Deed
RECITAL
A. The Senior Creditor, Sizzler International, Inc and others entered into a
Subordination Deed dated 1997 ('Subordination Deed').
B. The New Junior Creditor proposes to become a Junior Creditor under the
Subordination Deed.
AGREEMENT
21. INTERPRETATION
21.1 Definitions
Expressions defined in the Subordination Deed have the same meaning in this
document.
21.2 Construction
Clause 1.2 of the Subordination Deed applies to this document as if stated
in it.
22. NOVATION
With effect from the date of this document:
(a) the New Junior Creditor and each of the parties to the Subordination
Deed shall assume obligations towards each other and acquire rights
against each other as though the New Junior Creditor were originally
named in the Subordination Deed as a Junior Creditor; and
21
(b) the New Junior Creditor shall be deemed a party to the Subordination
Deed as a Junior Creditor.
23. NOTICES
For the purposes of the Subordination Deed, the address for correspondence
of the New Junior Creditor is the address set out in the Schedule.
24. COUNTERPARTS
This document may be executed in any number of counterparts. All of such
counterparts taken together shall be deemed to constitute the one
instrument.
25. GOVERNING LAW AND JURISDICTION
This document is governed by the law of Queensland and each party to it
irrevocably and unconditionally submits to the non-exclusive jurisdiction
of the Courts of Queensland.
26. AGENT FOR SERVICE OF PROCESS
Each of the Debtors, Junior Creditors and New Junior Creditor having its
registered office outside Queensland:
(a) irrevocably appoints ▇▇▇▇▇▇▇ Finance and Management Pty Ltd ACN 009
996 721 ('▇▇▇▇▇▇▇ Finance') as its agent for service of process
relating to any proceedings before the courts and appellate courts of
the State of Queensland in connection with this document;
(b) agrees that failure by ▇▇▇▇▇▇▇ Finance to notify it of the process
will not invalidate the proceedings concerned; and
(c) agrees that nothing shall affect the right to serve process in any
other manner permitted by law.
27. ATTORNEYS
Each attorney executing this document states that he or she has no notice
of the revocation of his or her power of attorney.
22
SCHEDULE
[ADDRESS OF NEW JUNIOR CREDITOR]
EXECUTED as a deed.
NEW JUNIOR CREDITOR:
SIGNED SEALED and DELIVERED for )
and on behalf of [#] by its attorney in )
the presence of )
......................................... ....................................
Signature of witness Attorney
.........................................
Name of witness (print)
OTHER PARTIES:
SIGNED SEALED and DELIVERED for )
and on behalf of WESTPAC BANKING )
CORPORATION for itself and on behalf of )
the other parties to the Subordination )
Deed by )
..........................................)
its duly constituted attorney in the
presence of:
......................................... ....................................
Signature of witness Attorney
.........................................
Name of witness (print)
23
BUFFALO RANCH AUSTRALIA PTY LTD ACN 009 937 900
▇▇▇▇▇▇▇ FINANCE AND MANAGEMENT PTY LTD ACN ▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ FOODS AUSTRALIA PTY LTD ACN 009 914 103
▇▇▇▇▇▇▇ FOODS INTERNATIONAL PTY LTD ARBN ▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ INTERNATIONAL INC
▇▇▇▇▇▇▇ PROPERTY DEVELOPMENT PTY LTD ACN ▇▇▇ ▇▇▇ ▇▇▇
FURNACE CONCEPTS AUSTRALIA CORP ARBN 070 065 468
GULLIVER'S AUSTRALIA PTY LTD ACN 009 988 381
RESTAURANT CONCEPTS OF AUSTRALIA, PTY LTD
RESTAURANT CONCEPTS INTERNATIONAL INC
SIZZLER AUSTRALIA PTY LTD ACN 010 060 876
SIZZLER INTERNATIONAL MARKS INC
SIZZLER NEW ZEALAND LIMITED
SIZZLER SOUTH PACIFIC PTY LTD ARBN 010 713 952
SIZZLER SOUTH-EAST ASIA INC
THE ITALIAN OVEN AUSTRALIA PTY LTD ACN 010 102 388
SIZZLER FRANCHISE DEVELOPMENT LIMITED
SIZZLER RESTAURANT SERVICES, INC
FURNACE CONCEPTS INTERNATIONAL, INC
(EACH A 'DEBTOR')
SIZZLER INTERNATIONAL, INC.
▇▇▇▇▇▇▇ PROPERTIES, INC.
(EACH A 'JUNIOR CREDITOR')
WESTPAC BANKING CORPORATION ARBN 007 457 141
('SENIOR CREDITOR')
SUBORDINATION DEED
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Lawyers
Waterfront Place
▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
DX 102 BRISBANE
Telephone (▇▇) ▇▇▇▇ ▇▇▇▇
24
Facsimile (▇▇) ▇▇▇▇ ▇▇▇▇
ARF PAK 9703949
i
TABLE OF CONTENTS
1. INTERPRETATION..................................................................... 2
1.1 Definitions.................................................................. 2
1.2 Construction................................................................. 3
2. CONSIDERATION...................................................................... 4
3. SUBORDINATION...................................................................... 4
3.1 Subordination of debt........................................................ 4
3.2 Winding Up proceedings....................................................... 5
3.3 Proceeds..................................................................... 5
3.4 Non-retainable receipt....................................................... 5
4. REPRESENTATIONS AND WARRANTIES..................................................... 6
4.1 Representations and warranties of Junior Creditors and Debtors............... 6
4.2 Reliance by Senior Creditor.................................................. 6
5. PERMITTED PAYMENTS................................................................. 6
6. RESTRICTIONS ON INDEBTEDNESS....................................................... 7
7. UNDERTAKINGS....................................................................... 7
7.1 Debtor's undertakings........................................................ 7
7.2 Junior Creditor's undertakings............................................... 8
7.3 Sizzler International's Undertakings......................................... 8
8. PRESERVATION OF SENIOR CREDITOR'S RIGHTS........................................... 9
8.1 Continuing subordination..................................................... 9
8.2 Obligations not affected..................................................... 9
9. NO COMPETITION..................................................................... 9
10. OTHER SECURITY..................................................................... 9
11. COSTS AND EXPENSES................................................................. 10
12. SET OFF............................................................................ 10
13. ASSIGNMENT......................................................................... 10
14. POWER OF ATTORNEY.................................................................. 10
14.1 Grant....................................................................... 10
14.2 Delegation by attorney...................................................... 11
14.3 Statement of purpose........................................................ 11
15. CERTIFICATES....................................................................... 11
16. NOTICES............................................................................ 11
ii
16.1 Who may sign a notice....................................................... 11
16.2 How a notice may be sent.................................................... 11
16.3 Validity of notice.......................................................... 12
16.4 Receipt of notice........................................................... 12
17. SEVERABILITY....................................................................... 12
17.1 Preferred Construction...................................................... 12
17.2 Severance................................................................... 12
18. GOVERNING LAW AND JURISDICTION..................................................... 13
19. AGENT FOR SERVICE OF PROCESS....................................................... 13
