EXHIBIT 10.17
A$400,000,000
Syndicated Senior Secured Debt Facility
Agreement
Date: April 23, 1999
AUSTAR Entertainment Pty Limited
Borrower
Each Company specified as a Guarantor in Schedule 1
Guarantor
Each Financial Institution specified as a Bank in Schedule 2
Bank
Chase Securities Australia Limited
Facility Agent
Chase Securities Australia Limited
Security Agent
(C) Copyright Xxxxxxx Xxx
TABLE OF CONTENTS
Clause Page
1. DEFINITIONS AND INTERPRETATION 1
1.1 Definitions 1
1.2 Interpretation 14
1.3 Joint and several liability 15
1.4 Debenture Stock Trust Deed 15
1.5 Specified Rate 15
1.6 Dual lender 15
2. THE FACILITY 16
2.1 Facilities 16
2.2 Banks' Commitments 17
2.3 Several obligations 17
2.4 Several interests 17
2.5 Purpose 17
2.6 Termination 17
2.7 Nature of Borrower's rights and obligations hereunder 18
2.8 Voting 18
3. CONDITIONS PRECEDENT 18
3.1 Conditions precedent to the first Utilisation 18
3.2 Conditions precedent to all Utilisations 19
3.3 Waiver 20
3.4 Condition Precedent to all Tranche 2 Utilisations 20
3.5 Agent not liable 20
3.6 Agent satisfied 20
4. UTILISATIONS 20
4.1 Notice 20
4.2 Contents of Utilisation Notice 20
4.3 Requirements of Utilisation Notice 21
4.4 Agent Notify Banks 21
4.5 Making of Advances 21
4.6 Disbursement 21
4.7 Facility Agent's right to vary 21
5. COMMITMENTS 22
5.1 Tranche 1 Commitments 22
5.2 Tranche 2 Commitments 22
5.3 Voluntary Cancellation 22
5.4 Reduction consequent on Repayment or Prepayment 22
5.5 Limitations 22
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Clause Page
6. REPAYMENT AND PREPAYMENTS 23
6.1 Repayment of Tranche 1 Advances and Tranche 2 Advances 23
6.2 Recalculation of Repayments 23
6.3 Repayment Instructions 23
6.4 Voluntary Prepayment 23
6.5 Facility Agent to notify Banks 24
6.6 Mandatory Prepayment 24
6.7 Date for Prepayment 25
6.8 General provisions relating to prepayment 25
7. INTEREST 25
7.1 Interest Periods 25
7.2 Restrictions on Selection 25
7.3 Calculation of Interest 26
7.4 Payment of Interest 26
8. INTEREST ON OVERDUE AMOUNTS 26
8.1 Payment of Interest 26
8.2 Accrual of Interest 26
9. XXXX RELIQUIFICATION 27
9.1 Drawing of Bills 27
9.2 Attorney 27
9.3 Appointment Revoked 27
9.4 Indemnity 27
9.5 Notice 27
10. FEES 28
10.1 Commitment Fee 28
10.2 Arrangement/Underwriting Fee 28
10.3 Establishment Fee 28
10.4 Agency Fees 28
10.5 Ratio Range 28
11. PAYMENTS 29
11.1 Payment to Security Agent 29
11.2 Time and place 29
11.3 Merger 29
11.4 Conversion of Foreign Currency receipts to Dollars 29
11.5 Costs of Conversion 30
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Clause Page
11.6 Application 30
11.7 Foreign Currency indemnity 30
11.8 Insufficient payment 31
11.9 Anticipatory payments 31
11.10 Rounding 31
12. TAXES 31
12.1 No deduction for Taxes and no set-off or counterclaim 31
12.2 Payment net of Taxes 32
12.3 Funding 33
12.4 Termination 33
12.5 Right to Prepay Individual Bank 33
12.6 Goods and Services Tax 33
13. ILLEGALITY 34
14. INCREASED COST 34
14.1 Obligation to Indemnify 34
14.2 Right to Prepay Individual Bank 35
15. MITIGATION 35
15.1 Mitigation 35
15.2 Replacement of Bank 36
15.3 Costs and Expenses 36
16. REPRESENTATIONS AND WARRANTIES 36
16.1 General representations and warranties 36
16.2 Information representations and warranties 38
16.3 Corporate representations and warranties 39
16.4 Representations and warranties repeated 40
17. UNDERTAKINGS 40
17.1 Duration and Benefit 40
17.2 Information 40
17.3 Security Value 43
17.4 Liabilities 45
17.5 Use of Funds 46
17.6 Dividends and Share Capital 46
17.7 Intellectual Property Rights 47
17.8 Insurance 48
17.9 Licences 48
17.10 Material Contracts 49
17.11 Security Property 49
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Clause Page
17.12 General undertakings 50
18. FINANCIAL COVENANTS 52
18.1 Financial Covenants 52
18.2 Compliance Certificate 53
18.3 Stamp Duty Certificate 53
19. DEFAULT AND TERMINATION 53
19.1 Events of Default 53
19.2 Facility Agent's rights upon Event of Xxxxxxx 00
00. GUARANTEE AND INDEMNITY 58
20.1 Guarantee 58
20.2 Indemnity 58
20.3 Performance of Obligations 58
20.4 Liability as Guarantor and indemnifier 58
20.5 Principal obligation 58
20.6 Absolute liability 58
20.7 Unconditional liability 59
20.8 No obligation to gain consent 61
20.9 No marshalling 61
20.10 Void or voidable transactions 61
20.11 Insolvency 62
20.12 No set-off, counterclaim, etc. 62
20.13 Restriction on Guarantor's dealings 62
20.14 Release of Obligor 63
20.15 Conditions precedent 63
20.16 Claim on the Guarantors 63
20.17 Subrogation 63
20.18 General waiver by Guarantors 63
20.19 Judgment 64
21. ADDITIONAL GUARANTORS AND SECURITY 64
21.1 Additional Guarantors 64
21.2 Security 64
21.3 Additional Security 65
22. RELEASE OF GUARANTORS AND SECURITY 65
22.1 Guarantors 65
22.2 Assets 65
22.3 Conditions for Release 66
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Clause Page
22.4 Release of Group Members 66
22.5 Restructure of Group 67
23. INDEMNITY 67
24. AGENTS 67
24.1 Appointment 67
24.2 Relationships 67
24.3 Communications 68
24.4 Instructions of Majority 68
24.5 Amendment 68
24.6 No need for inquiries 69
24.7 Delegation 69
24.8 Agent not bound to Enquire 69
24.9 Default 69
24.10 Agents as Banks 70
24.11 Agent's dealings 70
24.12 Notices and reports 70
24.13 Not responsible 70
24.14 Indemnity 71
24.15 Observe laws 71
24.16 Replacement 71
24.17 No authority 72
24.18 Security Agent as Trustee 72
24.19 Permitted Lease Transaction 73
25. SET-OFF 73
26. PRO RATA SHARING 73
27. EXPENSES AND STAMP DUTIES 74
27.1 Expenses 74
27.2 Stamp duties 75
28. ASSIGNMENTS AND CONFIDENTIALITY 75
28.1 Successors and assigns 75
28.2 Assignments by the Borrower 75
28.3 Banks 75
28.4 Substitution 76
28.5 Increased Costs and Illegality 76
28.6 Sub-participation 77
28.7 Stock Certificates 77
28.8 Related Entities 77
28.9 Confidentiality 78
28.10 Bond Issue or Refinancing 78
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Clause Page
29. GOVERNING LAW AND JURISDICTION 79
29.1 Governing law 79
29.2 Jurisdiction 79
30. MISCELLANEOUS 79
30.1 Certificate of Agent 79
30.2 Notices 79
30.3 Continuing obligation 80
30.4 Settlement conditional 80
30.5 Indemnities 80
30.6 Further assurance 80
30.7 Attorney 80
30.8 Severability of provisions 81
30.9 Remedies cumulative 81
30.10 Waiver 81
30.11 Consents and approvals 81
30.12 Written waiver, consent and approval 81
30.13 Time of essence 82
30.14 Consultants fees 82
30.15 Moratorium legislation 82
30.16 Binding on each signatory 82
30.17 Counterparts 82
30.18 Proceeds Account 82
31. NO REPRESENTATION BY OR RELIANCE ON THE BANK OR AGENT 82
32. REVIEW 83
SCHEDULE 1 - ORIGINAL GUARANTORS 84
SCHEDULE 2 - BANKS 86
SCHEDULE 3 - LICENCES 88
SCHEDULE 4 - DOCUMENTARY CONDITIONS PRECEDENT 89
SCHEDULE 5 - FORMS OF UTILISATION NOTICE 91
SCHEDULE 6 - ACCESSION AGREEMENT 92
SCHEDULE 7 - SUBSTITUTION CERTIFICATE 94
SCHEDULE 8 - NOTICE FROM UIH 99
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Clause Page
SCHEDULE 9 - COMPLIANCE CERTIFICATE 100
SCHEDULE 10 - FORM OF STAMP DUTY CERTIFICATE 102
SCHEDULE 11 - MATERIAL CONTRACTS 103
SCHEDULE 12 - PERMITTED LEASE TRANSACTION 104
(vii)
FACILITY AGREEMENT made at on 1999 at am/pm
BETWEEN AUSTAR ENTERTAINMENT PTY LIMITED, ACN 068 104 530 of Xxxxx 00,
AAP Centre, 000 Xxxxxx Xxxxxx, Xxxxxx, Xxx Xxxxx Xxxxx (the
"Borrower")
AND EACH COMPANY SPECIFIED AS A GUARANTOR in Schedule 1 (each an
"Original Guarantor")
AND EACH FINANCIAL INSTITUTION SPECIFIED AS A BANK in Schedule 2
(each a "Bank")
AND CHASE SECURITIES AUSTRALIA LIMITED, ACN 002 888 011 of Xxxxx
00, AAP Centre, 000 Xxxxxx Xxxxxx, Xxxxxx, Xxx Xxxxx Xxxxx as
facility agent for the Banks (in this capacity the "Facility
Agent")
AND CHASE SECURITIES AUSTRALIA LIMITED, ACN 002 888 011 of Xxxxx
00, AAP Centre, 000 Xxxxxx Xxxxxx, Xxxxxx, Xxx Xxxxx Xxxxx as
security agent and trustee for the Banks (in this capacity the
"Security Agent")
RECITALS
A. At the request of the Borrower and the Guarantors the Banks have
agreed, subject to the terms of this Agreement, to provide the
facilities described herein to the Borrower.
B. The Guarantors confirm that they enter into this Agreement for valuable
consideration and that the provision of the guarantee contained in this
Agreement is in their best interests and will give rise to a commercial
benefit for them.
THE PARTIES AGREE:
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Agreement:
"A$200 Million Syndicated Senior Secured Debt Facility Agreement" means
the agreement so entitled dated 31 July 1997 between the Borrower, the
Guarantors, the Banks (as defined therein) and the Security Agent.
"Access Agreement" means:
(a) one or more shareholders' agreements between Austar Satellite
Ventures Pty Limited ACN 000 000 000, the Borrower, Satellite
Platform Investments Pty Limited ACN 083 164 505, Optus
Network Pty Limited ACN 008 570 330, Optus Vision Pty Limited
ACN 066 518 821 and Satellite Platform Pty Limited or another
joint venture company;
1.
(b) one or more service agreements in respect of the satellite
platform to be between Satellite Platform Pty Limited or the
relevant joint venture entity and a member of the Group; and
(c) one or more contribution agreements in respect of the
satellite platform parties.
"Accession Agreement" means an agreement substantially in the form of
Schedule 6 made pursuant to clause 21.1.
"Accounts" means from time to time:
(a) the latest audited consolidated annual accounts of CTV and
STV;
(b) the latest audited notionally consolidated annual accounts
of the Group;
(c) the latest audited consolidated semi-annual accounts of CTV
and STV;
(d) the latest audited notionally consolidated semi-annual
accounts of the Group;
(e) the latest unaudited consolidated monthly management
accounts of the Group; and
(f) any other audited or unaudited consolidated or
unconsolidated accounts (if any) of the Group or any member
thereof, delivered or required to be delivered to the
Facility Agent pursuant to this Agreement, or such of those
accounts as the context requires.
"Additional Guarantor" means any entity which becomes a party hereto as
a Guarantor pursuant to an Accession Agreement.
"Advance" means:
(a) when designated "Tranche 1" or "Tranche 2" the principal
amount of each borrowing under this Agreement from the Tranche
1 Commitments or the Tranche 2 Commitments respectively or the
principal amount of such borrowing outstanding from time to
time, as the context requires (collectively the "Tranche 1
Advances" and the "Tranche 2 Advances");
(b) without any such designation, a Tranche 1 Advance or a Tranche
2 Advance as the context requires, and "Advances" without any
such designation means some
or all of the Tranche 1 Advances and/or the Tranche 2 Advances
as the context requires.
"Adverse Title Retention Arrangement" means any title retention
arrangement entered into with any person in connection with the
acquisition of goods in the course of business on terms that the
vendor's title is or may be retained in respect of any goods which have
been paid for in full.
2.
"Agent" means:
(a) when designated "Facility Agent", Chase Securities Australia
Limited or any of its successors pursuant to clause 24.16;
(b) when designated "Security Agent", Chase Securities Australia
Limited or any of its successors pursuant to any relevant
provision of any of the Securities; and
(c) without any such designation, the Facility Agent or the
Security Agent, as the context requires, and "Agents" without
any such designation means one or more of the Facility Agent
and the Security Agent, as the context requires.
"Amortisation Schedule" means the schedule of dates and payments set
out in clause 6.1.
"Availability Period" means the period from the date of this Agreement
to:
(a) when designated "Tranche 1", close of business in Sydney 90
days after the date of this Agreement;
(b) when designated "Tranche 2", close of business in Sydney on 30
June 2002, or such later date as all the Banks may agree in
writing on or after the date hereof.
"Bank" means each of the following:
(a) each bank or other financial institution whose name is set out
in Schedule 2;
(b) each bank or other financial institution to which rights
and/or obligations under this Agreement are assigned or
transferred pursuant to clause 28;
(c) any successor or successors in title to any of the foregoing,
provided that upon (i) termination in full of all the Commitments of
any Bank, and (ii) irrevocable payment in full of all amounts which
may be or become payable to such Bank under the Transaction Documents,
such Bank shall not be regarded as being a Bank for the purposes of
determining whether any provision of any of the Transaction Documents
requiring consultation with or the consent or approval of or
instructions from the Banks or the Majority Banks has been complied
with (together the "Banks").
"Banking Day" means a day (not being a Saturday or Sunday) on which
banks are open for business generally in Sydney and Melbourne.
"Xxxx" means a xxxx of exchange within the meaning given to the
expression "xxxx of exchange" in the Bills of Xxxxxxxx Xxx 0000 of the
Commonwealth of Australia, but does not include a cheque or payment
order, and any reference to the drawing, acceptance, indorsement or
other dealing of or with a Xxxx refers to a drawing, acceptance,
indorsement or other dealing within the meaning of that Act.
3.
"Xxxx Rate" in relation to each Interest Period means the rate
(expressed as a percentage per annum) which is the average of the bid
rates shown at approximately 11.00 am on page "BBSY" on the Reuters
Monitor System on the first day of that Interest Period for a term
equal to the duration of that Interest Period (or if that Interest
Period is subject to. 4. marginal adjustment, for a term equal to the
duration of the Interest Period prior to such adjustment) provided that
if such rate is no longer available or, in the opinion of the Facility
Agent such rate becomes inappropriate, unfair or incapable of
application, the Xxxx Rate shall mean the rate reasonably determined by
the Facility Agent to be the appropriate equivalent rate having regard
to prevailing market conditions.
"Chase" means The Chase Manhattan Bank, ARBN 074 112 011.
"Commitment" in relation to a Bank means:
(a) when designated "Tranche 1" or "Tranche 2", the amount
appearing and designated as such against that Bank's name in
Schedule 2 or in the Substitution Certificate or other
document by which it became a party to or acquired rights
under this Agreement (collectively the "Tranche 1 Commitments"
and the "Tranche 2 Commitments";
(b) without any such designation, a Bank's Tranche 1 Commitment or
Tranche 2 Commitment, as the context requires,
in each case as reduced or increased pursuant to clause 5.4 or by
substitution or transfer pursuant to clause 28 and any Substitution
Certificates to which such Bank is party, and to the extent not
cancelled, reduced or terminated under this Agreement (collectively
the "Total Commitments").
"Compliance Certificate" means a certificate in the form of Schedule 9
signed by two members of the Board of Directors of the Borrower
stating that the financial covenants listed in clause 18.1 and the
representations and warranties listed in clause 16 are true and
correct and, when given at the end of the financial year, will be
based on audited Accounts.
"Controller" has the meaning given in section 419(1) of the
Corporations Law.
"CTV" means CTV Pty. Limited, ACN 064 416 128.
"Debentures" means the perpetual, subordinated, convertible debentures
issued by CTV or STV, as the case may be.
"Debenture Stock Trust Deed" means the deed so entitled dated 2 April
1997 entered into by, amongst others, the Security Agent and the
Borrower.
"Dollar" or "$" means the lawful currency for the time being of the
Commonwealth of Australia.
"EBITDA" means, on a consolidated basis for any period, cash revenue
minus:
(a) all corporate overhead;
4.
(b) all scheduled licence and service fees and programming
payments; and
(c) all operating expenses except depreciation, amortisation
(including programming amortisation), interest expenses,
other non-cash charges, income taxes accrued for such
period, extraordinary abnormal and non recurring gains or
losses, and gains or losses from the sale of assets to the
extent such items are included in operating expenses.
"Encumbrance" means any mortgage, charge, pledge, lien, encumbrance,
security interest, title retention, preferential right, security trust
arrangement, contractual right of set-off or any other security
agreement or arrangement in favour of any person.
"Equipment" means receiving equipment consisting of antennae, down
converters, satellite dishes, set-top boxes, ancillary equipment and
installation costs.
"Equity Contribution" means the amount contributed as cash to CTV
and/or STV by UIH Australia/Pacific, Inc. or a Related Body Corporate
of UIH Australia/Pacific, Inc. (in the form of equity, Subordinated
Debt or other type of financial accommodation acceptable to the
Facility Agent) which has been used or which is available to be used
for the purpose of purchasing Equipment and for working capital
purposes calculated from 16 March 1999, but does not include any
amounts contributed pursuant to the Equity Contribution Agreement or
clause 3.1(f).
"Equity Contribution Deed" means the deed so entitled between the
Borrower and UIH Asia/Pacific Communications Inc. dated on or about
the date of this Agreement.
"Event of Default" means any of the events set out or referred to in
clause 19 as an Event of Default.
"Event of Insolvency" means:
(a) a receiver, manager, receiver and manager, trustee,
administrator, Controller or similar officer is appointed in
respect of an Obligor or any asset of an Obligor;
(b) a liquidator or provisional liquidator is appointed in respect
of any Obligor;
(c) any application (not being an application withdrawn or
dismissed within 7 days or an application which the Facility
Agent agrees is frivolous or vexatious and will be dismissed)
is made to a court for an order, or an order is made, or a
meeting is convened, or a resolution is passed, for the
purpose of:
(i) appointing a person referred to in paragraphs (a) or
(b);
(ii) winding up an Obligor; or
(iii) proposing or implementing a scheme of arrangement in
respect of an Obligor;
(d) a moratorium of any debts of an Obligor or an official
assignment or a composition or an arrangement (formal or
5.
informal) with an Obligor's creditors or any similar
proceeding or arrangement by which the assets of an Obligor
are subjected conditionally or unconditionally to the control
of an Obligor's creditors is ordered, declared or agreed to,
or is applied for and the application is not withdrawn or
dismissed within 7 days;
(e) an Obligor becomes, or admits in writing that it is, or is
declared to be, is deemed under any applicable law to be,
insolvent or unable to pay its debts;
(f) any writ of execution, garnishee order, mareva injunction or
similar order, attachment, distress or other process is made,
levied or issued against or in relation to any asset of an
Obligor in respect of a claim greater than $100,000.
"Excess Cash Flow" means, for any financial year, all cash inflows
during that period of the Group from whatever source (not including
cash proceeds from new equity and Subordinated Debt issues), less all
cash outflows during that period of the Group (including debt
amortisation in accordance with the Amortisation Schedule but excluding
any payments made pursuant to clause 17.6), determined on a
consolidated basis and based on audited accounts.
"Excluded Taxes" means any Taxes imposed by any jurisdiction on the
overall net income of a Bank but not Taxes:
(a) which are calculated on or by reference to the gross amount of
any payments (without the allowance of any deduction) derived
under this Agreement or any Transaction Document or any other
document referred to in this Agreement or a Transaction
Document by the Bank; or
(b) which are imposed as a result of the Bank being considered a
resident of or organised or doing business in that
jurisdiction solely as a result of it being a party to this
Agreement or a Transaction Document or any transaction
contemplated by this Agreement or a Transaction Document.
"Facility" means:
(a) when designated "Tranche 1 Facility", the A$200,000,000
amortising cash advance facility referred to in clause 2.1(a);
(b) when designated "Tranche 2 Facility", the A$200,000,000
amortising cash advance facility referred to in clause 2.1(b);
and
(c) without any such designation, the Tranche 1 Facility or the
Tranche 2 Facility as the context requires,
and "the Facilities" means the Tranche 1 Facility and the Tranche 2
Facility taken together.
"Financial Liability" means present or future, actual or contingent
indebtedness in respect of financial accommodation, credit or hedging
6.
arrangements, finance leases or hire purchase arrangements or any
guarantee or other assurance in respect of any such indebtedness.
"financial year" means a calendar year ending on 31 December.
"Foreign Currency" means the currency for the time being of any country
other than the Commonwealth of Australia.
"Funding Bank" means Chase or Toronto Dominion Australia Limited, ACN
004 958 020.
"Funding and LC Bank Agreement" means each document so named entered
into between the Funding Bank and an LC Bank.
"Group" means the Borrower, CTV and STV and each Subsidiary of the
Borrower, CTV or STV.
"GST" means any goods and services tax, consumption tax, value added
tax or any similar tax, impost or duty imposed by any law of the
Commonwealth of Australia or any State or Territory of Australia
(whether in force before or coming into force after the date of this
Agreement).
"Guarantor" means each entity identified as an Original Guarantor in
Schedule 1 and each Additional Guarantor (together the "Guarantors").
"Hedging Agreements" means any interest rate or currency hedging
agreement entered into between the Borrower and a Bank (or its
affiliate).
"Information Memorandum" means the memorandum dated February 1999
prepared by the Facility Agent on the basis of information supplied by
the Obligors to assist the Facility Agent in obtaining persons to
provide financial accommodation pursuant to the Facility and containing
information, financial and otherwise, regarding Obligors.
"Insolvency Provision" means any law relating to insolvency,
sequestration, liquidation or bankruptcy (including any law relating to
the avoidance of conveyances in fraud of creditors or of preferences
and any law under which a liquidator or trustee in bankruptcy may set
aside or avoid transactions) and any provision of any agreement,
arrangement or scheme, formal or informal, relating to the
administration of any of the assets of any person.
"Intended Obligations" means any payment or other act the making or
doing of which would have formed part of the Obligations but for a
circumstance referred to in clause 20.7(c).
"Interest Expense" means all Senior Debt interest and financing costs,
whether paid as cash or accrued as a liability on all direct,
contingent (including imputed interest on capital equipment lease
obligations), and other permitted indebtedness of the Group, determined
on a consolidated basis less any interest revenue earned by the Group
during that period.
"Interest Period" means each period determined in accordance with
clause 7.1.
7.
"LC Bank" means any person, other than a Bank, who has or hereafter
enters into a Funding and LC Bank Agreement with the Funding Bank.
"Licence" means each of the licences listed in Schedule 3.
"Long Range Plan" means the long term financial model prepared by the
Borrower dated 8 January 1999 and contained in the Information
Memorandum certified as such by 2 directors of the Borrower, or any
revised version of such model, agreed by the Facility Agent acting on
instructions from the Majority Banks to be the Long Range Plan for the
purposes of this Agreement.
"Majority Banks" means at any time:
(a) whilst no Advance is outstanding, a Bank or Banks the
aggregate of whose Commitments at the relevant time represent
by value more than 66-2/3% of the Total Commitments at such
time; or
(b) if an Advance is then outstanding, a Bank or Banks the
aggregate of whose participation in the Advances outstanding
at such time represent by value more than 66-2/3% of the
aggregate of all the Advances.
"Material Adverse Effect" means any effect which is, or is reasonably
likely:
(a) to be materially adverse to:
(i) the ability of CTV, STV or the Borrower to perform
its material obligations under any of the Transaction
Documents to which it is a party; or
(ii) the ability of any Obligor (except CTV, STV or the
Borrower) toperform its material obligations under
any of the Transaction Documents to which it is a
party and which are material to the Group as a whole;
or
(iii) the business, assets, financial condition of the
Borrower or of the Group taken as a whole; and/or
(b) (where the context so admits) to result in any of the Transaction
Documents not being legal, valid and binding on, and enforceable
substantially in accordance with its material terms against, any
party (other than a Bank, the Facility Agent or the Security
Agent) to that Transaction Document and/or (in the case of any of
the Securities) not providing to the Security Agent for itself
and on behalf of the Banks, perfected, enforceable security over
the assets to be covered by that Security, in a manner and to an
extent reasonably considered by the Majority Banks to be
materially adverse to their interests under the Transaction
Documents.
"Material Contract" means:
(a) each document referred to in Schedule 11; and
(b) each other contract entered into by a member of the Group
after the date of this Agreement which is of similar
8.
importance to the net cash flow or operation of the business
of the Group as the contracts listed in paragraph (a) of this
definition and which the Facility Agent (acting on the
instructions of the Majority Banks) designates to be a
Material Contract by notice to the Borrower.
"Net Proceeds" means the consideration received by any member or
members of the Group in respect of the disposal to a person not in the
Group of any member of the Group or of all or any part of the business,
undertaking or assets of any member of the Group (including the amount
of any intercompany debt repaid to continuing members of the Group),
after deduction of all Taxes applicable on, or to any gain resulting
from, the disposal and of all reasonable costs, fees, expenses and the
like properly incurred by continuing members of the Group in arranging
and effecting that disposal.
"Obligations" means all the liabilities of the Borrower or any
Guarantor to the Agents and the Banks under or by reason of any
Transaction Document and, without limiting the generality of the
foregoing, includes any liabilities which:
(a) are liquidated or unliquidated;
(b) are present, prospective or contingent;
(c) are in existence before or come into existence upon or after
the date of this document;
(d) relate to the payment of money or the performance or omission
of any act;
(e) sound in damages only; or
(f) accrue as a result of an Event of Default,
and irrespective of:
(i) whether the Borrower or any other Obligor is liable
or obligated solely, or jointly and severally with
another person;
(ii) the circumstances in which the Banks come to be owed
each liability or obligation and in which each
liability or obligation came to be secured by this
document, including, without limitation any
assignment of any liability or obligation or of this
document; or
(iii) the capacity in which the Borrower, any other Obligor
and the Banks come to owe or to be owed such
liability or obligation.
"Obligor" means a several reference to the Borrower, each Guarantor,
any other member of the Group which has been required to enter into
(whether or not it has yet entered into) any Accession Agreement and/or
Security and, when used in clause 20, also means any person from whom a
Guarantor, but for any provision of this Agreement, would be entitled
to seek contribution in respect of money paid or payable by virtue of
the guarantee contained herein (together the "Obligors").
9.
"Original Securities" means:
(a) Deed of Fixed and Floating Charge in favour of the Security
Agent over the whole of the assets and undertakings of the
Borrower and the Original Guarantors (other than CTV) which
are located in Queensland, dated 2 April 1997;
(b) Deed of Fixed and Floating Charge in favour of the Security
Agent over the whole of the assets and undertakings of CTV
which are located in Queensland, dated 2 April 1997;
(c) Deed of fixed and Floating Charge in favour of the Security
Agent over the whole of the assets and undertakings of the
Borrower and the Original Guarantors which are located in
jurisdictions other than Queensland, South Australia,
Western Australia and Tasmania, dated 2 April 1997;
(d) Deed of Fixed and Floating Charge in favour of the Security
Agent over the whole of the assets and undertakings of the
Borrower and the Original Guarantors which are located in
South Australia and Tasmania, dated 2 April 1997;
(e) Deed of Fixed and Floating Charge over the whole of the assets
and undertakings of the Borrower and the Original Guarantors
which are located in Western Australia, dated 2 April 1997;
(f) the Share Mortgage;
(g) Deed of Charge (Property Situated in South Australia and
Tasmania) dated 31 December 1998 between Wollongong
Microwave Pty Limited and the Security Agent; and
(h) Deed of Charge (Property Situated in Jurisdictions other than
Queensland, South Australia, Western Australia and Tasmania)
dated 31 December 1998 between Wollongong Microwave Pty
Limited, Chippawa Pty Limited, Xxxxx Investments Pty Limited
and the Security Agent.
"Permitted Lease Transaction" means a sale and lease-back transaction
of the kind referred to in Schedule 12 or any replacement of Schedule
12 which is approved by the Facility Agent acting on the instructions
of all of the Banks.
"Potential Event of Default" means any event which, with the giving of
notice, lapse of time, satisfaction of a condition or any determination
would be likely to constitute an Event of Default.
"Prescribed Rate" for each Interest Period means the aggregate of the
Xxxx Rate in relation thereto and the Utilisation Margin.
"Proportion" means the amount of a Bank's participation in an Advance
in the proportion (applied to the requested amount of the Advance)
which its Commitment bearing the same Tranche designation as such
10.
Advance bears to the amount of the Total Commitments having such
designation.
"Quarterly Date" means, in any year, 31 March, 30 June, 30 September
and 31 December.
"Ratio Range" on any date means the amount of Total Debt divided by
actual EBITDA for the last quarter annualised period.
"Related Body Corporate" has the meaning given in section 9 of the
Corporations Law, but on the basis that "Subsidiary" for the purposes
of that definition has the meaning given in this Agreement.
"Repayment Date" means each repayment date specified in clause 6.1.
"Salstel Holdings" means Salstel Media Holdings Pty Limited, ACN 072
016 383.
"Salstel Investments" means Salstel Media Investments Pty Limited, ACN
072 016 132.
"Securities" means the Original Securities together with any other
security held by the Security Agent as agent of the Banks at any time
for the due performance, observance and fulfilment of the Obligations,
and "Security" means each or any one of them as the context requires.
"Security Property" means any property subject to a Security.
"Senior Debt" means all direct and contingent borrowings (excluding
non-financial corporate guarantees) of the Group which are not
subordinated.
"Share Mortgage" means the Deed of Mortgage of Securities in favour of
the Security Agent dated 1 July 1997 granted by Salstel Holdings,
Salstel Investments and UIH Austar, Inc. in respect of the whole of the
share capital in CTV and STV and certain other property.
"Specified Rate" means the aggregate of the Prescribed Rate and 2% per
annum.
"Stamp Duty Certificate" means a certificate in the form of Schedule 10
signed by an authorised officer of the Borrower as to the location and
value of the Security Property.
"Stock" means debenture stock issued under the Debenture Stock Trust
Deed.
"STV" means STV Pty Limited, ACN 065 312 450.
"Subordinated Debt" means any indebtedness the payment of which is
subordinated to the Senior Debt.
"Subsidiary" in relation to any person, has the meaning given in the
Corporations Law but so that:
11.
(a) an entity will also be deemed to be a Subsidiary of a company
if it is controlled by that company (expressions used in this
paragraph have the meanings given for the purposes of Parts
3.6 and 3.7 of the Corporations Law);
(b) a trust may be a Subsidiary, for the purposes of which any
units or other beneficial interests will be deemed shares; and
(c) a corporation or trust may be a Subsidiary of a trust if it
would have been a Subsidiary if that trust were a corporation.
A determination by any auditors of the Borrower for the time being as
to whether an entity is a Subsidiary of another entity will be
evidence of the same until the contrary is proved.
"Substitution Certificate" means a certificate in the form of Schedule
7 completed and entered into in accordance with clause 28.4, and
references to "substitutes" shall be construed as references to persons
becoming party to this Agreement pursuant to Substitution Certificates.
"Tax" and "Taxes" mean all income tax, stamp duty and other taxes,
levies, imposts, deductions, charges and withholdings plus interest
thereon and penalties, if any, and charges, fees or other amounts made
on or in respect thereof and "Taxation" shall be construed
accordingly.
"Termination Date" means the earlier of:
(a) (i) when designated "Tranche 1 Termination Date", 31 March
2006;
(ii) when designated "Tranche 2 Termination Date", 31 March
2006;
or in each case such other date as is agreed in writing
between the Facility Agent (acting on the instructions of all
Banks) and the Borrower; and
(b) such earlier date on which the Facility is terminated
or cancelled in accordance with this Agreement.
"Total Debt" means Senior Debt plus Subordinated Debt.
"Total Subscribers" means, on a day, the subscription revenue for the
most recently ended month divided by the greater of:
(a) the average monthly residential customer revenue per home; or
(b) $35.95,
as certified to the Facility Agent by two of the Borrower's directors
on a monthly basis.
12.
"Transaction Document" means:
(a) this agreement (together with each Accession Agreement and
Substitution Certificate);
(b) each Hedging Agreement;
(c) the Debenture Stock Trust Deed and each Stock issued under
that deed;
(d) each Security;
(e) the Equity Contribution Deed;
(f) the Tripartite Agreement;
(g) each other document to which any Obligor (on the one hand) and
an Agent or a Bank (on the other hand) are parties at any time
that:
(i) relates to any money that is declared by that documen
to be part of the Obligations; or
(ii) is expressed to be, or is agreed by the said parties
to be, a Transaction Document for the purposes
hereof;
(h) the Funding and LC Bank Agreements; and
(i) any other document which is, or which is expressed to be,
collateral or supplemental to any other document that is then
a Transaction Document.
"Tripartite Agreement" means the agreement so entitled between the
Borrower, the Facility Agent and UIH Asia/Pacific Communications Inc.
dated on or about the date of this Agreement.
"Utilisation" means:
(a) when designated "Tranche 1 Utilisation" or "Tranche 2
Utilisation", a utilisation under this Agreement of the
Tranche 1 Facility or the Tranche 2 Facility respectively;
(b) without any such designation, a utilisation of the Tranche 1
Facility or the Tranche 2 Facility, as the context requires.
"Utilisation Date" means the date on which an Advance is made or, where
the context requires, is proposed to be made.
"Utilisation Margin" means the percentage per annum determined in
accordance with clause 10.5.
"Utilisation Notice" means a notice given under clause 4 in respect of
an Advance.
13.
1.2 Interpretation
In this Agreement unless the context indicates a contrary intention:
(a) the expression "person" includes an individual, the estate
of an individual, a body politic, a corporation and a
statutory or other authority or association (incorporated or
unincorporated);
(b) a reference to any party includes that party's executors,
administrators, successors, substitutes and assigns, including
any person taking by way of novation;
(c) a reference to any Transaction Document however described or
to any other document includes the Transaction Document or
other document as amended, novated, supplemented, varied or
replaced from time to time;
(d) a reference to any legislation or to any section or provision
thereof includes any statutory modification or re-enactment or
any statutory provision substituted therefor and all
ordinances, by-laws, regulations and other statutory
instruments issued thereunder;
(e) words importing the singular include the plural (and vice
versa) and words denoting a given gender include all other
genders;
(f) headings are for convenience only a nd do not affect
interpretation;
(g) a reference to a clause or Schedule is a reference to a clause
or Schedule of this Agreement;
(h) where any word or phrase is given a defined meaning any other
part of speech or other grammatical form in respect of such
word or phrase has a corresponding meaning;
(i) where the day on or by which any sum is payable or any act,
matter or thing is to be done is a day other than a Banking
Day, that sum will be paid and such act, matter or thing will
be done on the immediately preceding Banking Day;
(j) all accounting terms used have the meaning given to those
terms under accounting principles and practices generally
accepted in Australia from time to time;
(k) representations, warranties, covenants, undertakings and
agreements made or given in favour of the Agents in their
capacity as Agents enure for the benefit of and, subject to
the Transaction Documents, be capable of enforcement by the
Banks and each of them; and
(l) a reference to a law includes an Australian or applicable
foreign law, regulation, rule, directive or policy of any
government or regulatory authority whether or not having the
force of law.
14.
1.3 Joint and several liability
The obligations of the Guarantors under this Agreement will bind each
of them severally and every 2 or more of them jointly and unless the
context indicates a contrary intention, the expression "Guarantors"
will be deemed to include any person who has guaranteed, or in the
future guarantees to the Agents and the Banks the due performance of
the whole or any part of the Obligations.
1.4 Debenture Stock Trust Deed
This Agreement and each of the Transaction Documents as defined in this
Agreement are "Transaction Documents" for the purposes of the Debenture
Stock Trust Deed.
1.5 Specified Rate
A reference to the Specified Rate in the Securities is agreed to be a
reference to the Specified Rate as defined in clause 1.1.
1.6 Dual lender
(a) The Borrower, the Guarantors, the Facility Agent, the Security
Agent and each Bank acknowledge and agree that the Commitment
of ABN AMRO Australia Limited and ABN AMRO Bank N.V.,
Australian Branch, as Banks, is one and the same Commitment
made by them jointly and severally. Where ABN AMRO Australia
Limited and ABN AMRO Bank N.V., Australian Branch are obliged
to provide an Advance, which of them actually provides that
Advance will be determined by ABN AMRO Australia Limited in
its absolute discretion.
(b) Each reference in any Transaction Document to a "Bank" in
relation to an Advance will, so far as that reference
relates to ABN AMRO Australia Limited and ABN AMRO Bank
N.V., Australian Branch be deemed to be a reference to
whichever of ABN AMRO Bank N.V., Australian Branch or ABN
AMRO Australia Limited has actually provided that Advance.
Each other reference in any Transaction Document to a "Bank"
will, so far as that reference relates to ABN AMRO Australia
Limited and ABN AMRO Bank N.V., Australian Branch be deemed
to be a reference to either or both of ABN AMRO Australia
Limited and ABN AMRO Bank N.V., Australian Branch, as the
context requires.
(c) Unless otherwise agreed in writing, all payments in respect of
fees are to be made for the account of ABN AMRO Australia
Limited and all payments to ABN AMRO Australia Limited, as a
Bank in respect of an obligation to pay ABN AMRO Bank N.V.,
Australian Branch will satisfy, to the extent of that payment,
the obligation to pay ABN AMRO Bank N.V., Australian Branch.
(d) A consent from, a communication to or by, or the exercise of a
discretion by, one of ABN AMRO Bank N.V., Australian Branch or
ABN AMRO Australia Limited in its capacity as a Bank will bind
the other of them as a Bank.
15.
(e) A payment to ABN AMRO Bank N.V., Australian Branch, in respect
of an obligation to pay ABN AMRO Australia Limited will
satisfy, to the extent of that payment, the obligation to pay
ABN AMRO Australia Limited and a payment to ABN AMRO Australia
Limited, in respect of an obligation to pay ABN AMRO Bank
N.V., Australian Branch, shall satisfy, to the extent of that
payment the obligation to pay ABN AMRO Bank N.V., Australian
Branch.
(f) Any additional costs and expenses incurred by ABN AMRO Bank
N.V., Australian Branch, or ABN AMRO Australia Limited as a
result of ABN AMRO Bank N.V., Australian Branch, and ABN AMRO
Australia Limited providing Advances instead of just ABN AMRO
Bank N.V., Australian Branch or ABN AMRO Australia Limited
providing those Advances will be borne by ABN AMRO Bank N.V.,
Australian Branch and ABN AMRO Australia Limited and will not
be passed on to the Borrower.
(g) This clause 1.6 applies for so long as ABN AMRO Australia
Limited is a wholly owned subsidiary of ABN AMRO Bank N.V.. If
ABN AMRO Australia Limited ceases to be a wholly owned
subsidiary of ABN AMRO Bank N.V. or if ABN AMRO Bank N.V.
elects that ABN AMRO Australia Limited will not provide future
Advances and notifies the Borrower of that election:
(i) this clause 1.6 ceases to apply to any Advances after
the date of that cessation or election;
(ii) ABN AMRO N.V., Australian Branch will provide its
Commitment and each Advance previously provided by
ABN AMRO Australia Limited; and
(iii) ABN AMRO N.V., Australian Branch, will do all things
and execute all documents (at its cost) to give
effect to sub-clauses (i) and (ii).
2. THE FACILITY
2.1 Facilities
Subject to the terms of this Agreement and in reliance upon the
representations and warranties set out in clause 16, the Xxxxx xxxxx to
the Borrower the following facilities:
(a) Tranche 1 Facility: a cash advance facility whereby the Banks,
when requested by the Borrower pursuant to a Utilisation
Notice, during the Tranche 1 Availability Period, will make
Tranche 1 Advances in an aggregate amount which will not
exceed the Tranche 1 Commitments; and
(b) Tranche 2 Facility: a cash advance facility whereby the Banks,
when requested by the Borrower pursuant to a Utilisation
Notice, during the Tranche 2 Availability Period, will make
Tranche 2 Advances in an aggregate amount which will not
exceed the Tranche 2 Commitments.
16.
2.2 Banks' Commitments
No Bank is obliged to participate in the making of a Tranche 1 Advance
or a Tranche 2 Advance if to do so would cause the aggregate of its
participation in Tranche 1 Advances or Tranche 2 Advances (as the case
may be) outstanding under this Agreement to exceed its Tranche 1
Commitment or its Tranche 2 Commitment (as the case may be).
2.3 Several obligations
The obligations of each Bank under this Agreement and each Transaction
Document are several. The failure of a Bank to perform its obligations
under this Agreement or a Transaction Document shall not relieve any
other Bank, the Agents or an Obligor of any of its respective
obligations or responsibilities under this Agreement or the Transaction
Documents. The Agents shall not be responsible for the obligations of
any Bank (except for its own obligations, if any, as a Bank), nor shall
any Bank be responsible for the obligations of any other Bank.
2.4 Several interests
The interests of the Agents and each Bank under this Agreement and each
Transaction Document are several. The amounts due to the Facility Agent
on its own account, the Security Agent on its own account and to each
Bank under this Agreement or a Transaction Document constitutes a
separate and independent debt.
2.5 Purpose
(a) The Facilities will be used as follows:
(i) the Tranche 1 Facility will be used for the purpose
of repaying in full the moneys owing pursuant to the
A$200 Million Syndicated Senior Secured Debt Facility
Agreement and thereafter for the purchase and
installation of Equipment and working capital
requirements; and
(ii) the Tranche 2 Facility will be used for the purpose
of implementing the Long Range Plan, including but
not limited to purchasing and installing Equipment
and working capital requirements.
(b) The Facilities will not be used for any other purpose than
that described in clause 2.5(a).
2.6 Termination
(a) The Tranche 1 Facility terminates on the Tranche 1 Termination
Date.
(b) The Tranche 2 Facility terminates on the Tranche 2 Termination
Date.
17.
2.7 Nature of Borrower's rights and obligations hereunder
(a) (Borrower as Agent): Each Obligor (other than the Borrower) by
its execution of this Agreement or an Accession Agreement
irrevocably authorises the Borrower on its behalf to give all
notices and instructions under the Transaction Documents, to
execute on its behalf any Accession Agreement and to make such
agreements capable of being given or made by any Obligor
relating to the Transaction Documents notwithstanding that
they may affect such Obligor, without further reference to or
the consent of such Obligor.
(b) (Borrower's acts binding): Every act, omission, agreement,
undertaking, settlement, waiver, notice o r other
communication given or made by the Borrower under this
Agreement, or in connection with this Agreement, (whether or
not known to any other Obligor and whether occurring before
or after such other Obligor became an Obligor under this
Agreement) shall be binding for all purposes on all other
Obligors as if the other Obligors had expressly concurred
with the same. In the event of any conflict between any
notices or other communications of the Borrower and any
other Obligor, those of the Borrower shall prevail.
2.8 Voting
(a) When the Funding Bank enters into a Funding and LC Bank
Agreement, it may notionally divide any or all of its
Commitments and/or participation in the Advances into separate
amounts to reflect each LC Bank's Commitment (as defined in
the relevant Funding and LC Bank Agreement) and may vote or
abstain from voting, with respect to any such separate amount,
on any matter separately and differently from its vote or
abstention with respect to any other such separate amount on
such matter.
(b) XX Xxxxx may attend any meeting of Banks.
(c) Subject to clause 28.3(a), if a Bank assigns its participation
in some or all of the Advances to another person pursuant to
clause 28.3(c), it may vote or abstain from voting the
participation in these Advances separately and differently
from its vote or abstention with respect to its remaining
participation in any Advances.
3. CONDITIONS PRECEDENT
3.1 Conditions precedent to the first Utilisation
The obligations of each Bank under this Agreement are subject to the
conditions precedent that:
(a) (Finance Documents): the Facility Agent has received original
copies of this Agreement and the Securities, duly executed by
the Borrower and the Original Guarantors, together with an
undertaking by the Borrower (which it hereby gives) that it
will pay all applicable stamp duty, including further stamp
duty on the Securities when, and if, required;
18.
(b) (Documents): the Facility Agent has received all of the
documents listed in Schedule 4 in form and substance
satisfactory to it;
(c) (Fees): all fees referred to in clauses 10.2, 10.3 and 10.4
and all other fees and expenses owing to the Banks and their
consultants have been paid, other than those disputed in good
faith or confirmation that the Borrower will pay
simultaneously with the first Utilisation those fees and
expenses;
(d) (Total Subscribers): the Facility Agent has received evidence
in the form of a statement from two directors of the Borrower,
that the Group has achieved and maintains a minimum Total
Subscribers level of 280,000;
(e) (Indenture): the Facility Agent has received a notice
substantially in the form of Schedule 8 from UIH
Australia/Pacific, Inc.;
(f) (Equity): the Facility Agent has received evidence
satisfactory to it that UIH Asia/Pacific Inc. has contributed
$2,500,000 in cash to CTV and/or STV (in the form of equity,
Subordinated Debt or other type of financial accommodation
acceptable to the Facility Agent) in respect of adverse
foreign exchange movements in the first quarter of 1999;
(g) ( Compliance Certificate): the Facility Agent has received a
Compliance Certificate; and
(h) (Stamp Duty Certificate): the Facility Agent has received a
Stamp Duty Certificate.
3.2 Conditions precedent to all Utilisations
The obligations of the Facility Agent and each Bank in respect of each
Utilisation are subject to the Facility Agent being satisfied that both
at the date of the relevant Utilisation Notice and at the Utilisation
Date:
(a) (Representations and warranties true): the representations
and warranties listed in clause 16 are true and correct and
will be correct immediately after the making of the Advance;
(b) (No Event of Default): no Event of Default or Potential Event
of Default is subsisting or will result from the making of the
Advance;
(c) (No Material Adverse Effect): no event has occurred which
would have a Material Adverse Effect;
(d) (No Change in Law): no change has occurred in applicable laws
or regulations which would have a Material Adverse Effect; and
(e) (Further Guarantees and Security): all Accession Agreements
and Securities required by the terms of this Agreement to be
entered into on or before such Utilisation Date have been or
will on such Utilisation Date be duly executed and delivered
to the Facility Agent together with all other documents
required to be delivered to the Facility Agent in relation
thereto.
19.
3.3 Waiver
The conditions precedent listed in clauses 3.1 and 3.2 may be waived by
the Facility Agent when so instructed by:
(a) all Banks, in relation to clause 3.1; and
(b) the Majority Banks, in relation to clause 3.2.
3.4 Condition Precedent to all Tranche 2 Utilisations
The obligations of the Facility Agent and each Bank in respect of each
Tranche 2 Utilisation are subject to the Facility Agent being satisfied
that at the relevant date of the Tranche 2 Utilisation Notice the
amount of the Equity Contribution is at least 50% of the aggregate of
the amount of Tranche 2 Advances outstanding and the amount requested
in the Tranche 2 Utilisation Notice.
3.5 Agent not liable
The Facility Agent shall be deemed to be satisfied with the form and
substance of a document under clause 3.1(b) if to the Facility Agent
the document appears on its face to conform with its description and
the Facility Agent shall not be liable for any cost, loss damage or
expense suffered or incurred by any person as a result of its being so
satisfied.
3.6 Agent satisfied
The Facility Agent will be deemed to be satisfied that the conditions
precedent to Utilisations referred to in clauses 3.2 and 3.4 have been
met if, prior to each Utilisation Date, the Facility Agent receives
from the Borrower a written notice certifying that the relevant
conditions precedent have been met and information in support of that
certification and the information appears, on its face, to support the
certification made.
4. UTILISATIONS
4.1 Notice
The Borrower may request a Utilisation under the Facility on a Banking
Day by giving written notice of its intention to do so to the Facility
Agent.
4.2 Contents of Utilisation Notice
Each Utilisation Notice for an Advance shall be in the form of Schedule
5 and shall specify:
(a) whether the Utilisation is a Tranche 1 Advance or a Tranche 2
Advance;
20.
(b) the amount of the Utilisation (which shall not be less than
$5,000,000 and must be an integral multiple of $1,000,000);
(c) the proposed Utilisation Date which must be a Banking Day
prior to expiration of the applicable Availability Period;
(d) the proposed duration of its (or its first) Interest Period
(which must be of either 1, 2, 3 or 6 months duration);
(e) payment instructions; and
(f) such other particulars as the Facility Agent may from time to
time require.
4.3 Requirements of Utilisation Notice
Each Utilisation Notice shall:
(a) be received by the Facility Agent 3 clear Banking Days before
the proposed Utilisation Date;
(b) be signed by a person duly authorised by the Borrower to do
so;
(c) be irrevocable; and
(d) not be given until the conditions precedent to a Utilisation
have been satisfied or waived.
4.4 Agent Notify Banks
Promptly after its receipt of a Utilisation Notice the Facility Agent
shall notify each Bank.
4.5 Making of Advances
Subject to the terms of this Agreement, each Bank shall, on the
Utilisation Date, make available to the Facility Agent its Proportion
in Dollars for the account of the Borrower. All such amounts shall be
made available to the Facility Agent in accordance with clause 11 for
disbursement to or to the order of the Borrower in accordance with the
provisions of this Agreement.
4.6 Disbursement
Amounts received by the Facility Agent under clause 4.5 or 5.1 shall be
applied by it in accordance with the payment instructions specified in
the relevant Utilisation Notice.
4.7 Facility Agent's right to vary
Without limitation to the rights and powers vested in it under this
Agreement, the Facility Agent may vary any of the times at or by which
21.
any act, matter or thing is to be done under this clause 4 if it
determines that such a variation is necessary or desirable to ensure
the effective operation of the Facility. Any such variation shall be
binding on all parties to this Agreement.
5. COMMITMENTS
5.1 Tranche 1 Commitments
Any part of the Tranche l Commitments not borrowed hereunder before
expiry of the Tranche 1 Availability Period shall be cancelled
automatically at close of business in Sydney on such expiry.
5.2 Tranche 2 Commitments
Any part of the Tranche 2 Commitments not drawn hereunder before expiry
of the Tranche 2 Availability Period shall be cancelled automatically
at close of business in Sydney on such expiry.
5.3 Voluntary Cancellation
The Borrower may, on giving not less than 30 days' prior written notice
to the Facility Agent (which shall promptly give notice of the same to
the Banks), cancel or reduce any of the Tranche 1 Commitments or the
Tranche 2 Commitments in whole or in part specified by the Borrower
without incurring any penalty or other cost, provided that such
cancellation or reduction may only be effected to the extent of the
amount of the applicable Commitments undrawn on that date and the
applicable Commitments of each Bank must be reduced pro rata. Any such
notice by the Borrower shall be irrevocable and shall specify the
relevant Commitments being cancelled, the date upon which the reduction
is to become effective and the amount of the reduction.
5.4 Reduction consequent on Repayment or Prepayment
(a) The Commitments shall be reduced (such reduction being applied
pro rata as between all the Tranche 1 Commitments and/or the
Tranche 2 Commitments as the case may be), by the amount of
any repayment or prepayment of any Tranche 1 Advance or
Tranche 2 Advance made pursuant to clauses 6.1, 6.4 and 6.6.
(b) An individual Bank's Tranche 1 Commitment and Tranche 2
Commitment shall be reduced by the amount of any prepayment of
that Bank's participation in any. 22. Tranche 1 Advance or
Tranche 2 Advance (as the case may be) made pursuant to any
other provision of this Agreement.
5.5 Limitations
Save as expressly provided, any amount of the Total Commitments
cancelled or otherwise extinguished under this Agreement may not be
reinstated. Save as expressly provided neither the Total Commitments
nor any constituent part thereof may be reduced or cancelled under this
Agreement.
22.
6. REPAYMENT AND PREPAYMENTS
6.1 Repayment of Tranche 1 Advances and Tranche 2 Advances
At the end of the Tranche 2 Availability Period, the Facility Agent
will calculate the repayment instalments for each Repayment Date
specified below having regard to the outstanding Advances. The amount
to be repaid on each Repayment Date will be calculated so that the
remaining Advances outstanding after such repayment are equal to the
amount of Advances outstanding on the last day of the Availability
Period multiplied by the percentage set out opposite the relevant date.
Repayment Dates %
31 December 2002 96.50
31 March 2003 93.00
30 June 2003 87.75
30 September 2003 82.50
31 December 2003 77.25
31 March 2004 72.00
30 June 2004 63.50
30 September 2004 55.00
31 December 2004 46.50
31 March 2005 38.00
30 June 2005 28.50
30 September 2005 19.00
31 December 2005 9.50
31 March 2006 0
6.2 Recalculation of Repayments
If during the period from the end of the Tranche 1 Availability Period
or the Tranche 2 Availability Period (whichever is later) to the
Tranche 1 Termination Date or the Tranche 2 Termination Date (whichever
is later), the Borrower prepays any part of the Tranche 1 Advances or
Tranche 2 Advances under any of clauses 6.4, 6.6, 6.7, 12.4, 13, 14.2
or 19, the Facility Agent will recalculate the repayment installments
for each remaining Repayment Date by applying the amount of the
prepayment pro rata against all remaining repayment instalments.
6.3 Repayment Instructions
Upon completion of the calculations referred to in clauses 6.1 and 6.2,
the Facility Agent will notify the Borrower in writing of the
repayments required to be made by the Borrower in accordance with those
calculations.
6.4 Voluntary Prepayment
(a) The Borrower may prepay an Advance or part thereof on the last
day of its current Interest Period on giving not less than 10
Banking Days' prior written notice to the Facility Agent.
23.
(b) Any notice of prepayment given by the Borrower is irrevocable
and the Borrower is thereby bound to prepay in accordance with
the notice.
(c) Interest accrued on any amount prepaid under this Agreement
shall be paid at the time of prepayment.
(d) Any prepayment is permanent, and the Facility will be
cancelled to the extent of the prepayment.
6.5 Facility Agent to notify Banks
Promptly after its receipt of a notice of prepayment the Facility Agent
shall notify each Bank of the prepayment, the date on which the
prepayment is to be made and its pro rata share thereof.
6.6 Mandatory Prepayment
(a) After the expiry of the Tranche 2 Availability Period, the
Borrower will apply on an annual basis towards the repayment
of the Facility, without limitation, 50% of the Excess Cash
Flow for the preceding 12 month period. The amount to be
prepaid will be calculated by the Facility Agent on receipt of
the audited annual Accounts.
(b) If any member of the Group or any of the assets, business or
undertaking of any member of the Group are disposed of, the
Borrower, unless the Majority Banks shall otherwise consent in
writing, shall apply, or shall procure that there shall be
applied, forthwith an amount equal to the Net Proceeds arising
from the disposal, in or towards prepayment of the
Utilisations in accordance with clause 6, provided that the
foregoing shall not apply to Net Proceeds arising from:
(i) a disposal of trading stock in the ordinary course of
trading; or
(ii) a disposal of assets not constituting trading stock
which are to be replaced by other assets being
acquired for use for like purposes and are so
replaced within 3 months of the date of such disposal
(save to the extent the Net Proceeds exceed the
acquisition cost of those other assets); or
(iii) any disposal the consideration for which, when taken
together with the consideration for any related
disposals or recoveries, does not exceed $500,000
unless or until the aggregate thereof exceeds
$5,000,000 in any 12 month period; or
(iv) a Permitted Lease Transaction.
(c) At any time during the term of the Facility, the Borrower must
apply in prepayment of any Advances outstanding at the time
all of the proceeds (in excess of replacement costs) of any
property or casualty insurance, other than business
interruption insurance.
24.
6.7 Date for Prepayment
If the Borrower becomes obliged to prepay or procure the prepayment of
any amount under clause 6.6, the prepayment shall be made on the last
day of the Interest Period relating to the Advance to be repaid.
6.8 General provisions relating to prepayment
(a) The Facility Agent's certificate as to the repayments and date
for repayments required to be made by the Borrower will be
conclusive and binding on the Borrower and the Guarantors in
the absence of manifest error on the face of the certificate.
(b) Amounts repaid and prepaid in respect of the Advances under
any provision of this Agreement may not be reborrowed
hereunder.
7. INTEREST
7.1 Interest Periods
(a) Not later than 3 Banking Days before the commencement of each
Interest Period in respect of an Advance, the Borrower will
notify the Facility Agent whether the Interest Period for that
Advance is to be of 1, 2, 3 or 6 months' duration (or such
other period as the Facility Agent may agree to facilitate
compliance with clause 7.2(a)).
(b) The first Interest Period in relation to an Advance is the
period commencing on the Utilisation Date for that Advance.
(c) If the Borrower fails to select an Interest Period for an
Advance in accordance with clause 7.1(a), the Interest Period
shall be 3 months.
(d) The term of each Interest Period is subject to such marginal
adjustment as the Facility Agent in its discretion
determines so that the first and last days of it are Banking
Days and the final Interest Period in relation to a Facility
terminates on the Termination Date for that Facility.
7.2 Restrictions on Selection
(a) The Borrower shall, in relation to Advances drawn by it,
select the duration of Interest Periods pursuant to clause 7.1
so as to ensure that:
(i) in relation to each Facility, no more than 5 different
Interest Periods are current at any one time;
(ii) each date for repayment of part of the Facility will
also be the last day of an Interest Period in
relation to an amount at least equal to the amount
due to be paid on such date; and
(iii) that no Advance shall have an Interest Period
expiring after the Termination Date.
25.
(b) If it appears to the Facility Agent in good faith that the
requirements of paragraph (a) above will not be met by either
the Borrower's selection of any Interest Period or the
operation of clause 7.1(c), the Facility Agent, on behalf of
and after consultation with the Borrower, shall select a
different duration for such Interest Period.
7.3 Calculation of Interest
(a) Interest on each Advance accrues daily and is to be computed
on a daily basis on a year of 365 days. Interest is to be
calculated from and including the first day of an Interest
Period but excluding the last day of the Interest Period.
(b) The rate of interest for each Advance for each Interest Period
is the Prescribed Rate in relation thereto.
(c) The Facility Agent's certificate as to the Prescribed Rate and
the Specified Rate at any time will be conclusive and binding
on the Borrower and the Guarantors in the absence of manifest
error on the face of the certificate.
7.4 Payment of Interest
(a) The Borrower will pay to the Facility Agent for the account of
the Banks the accrued interest in relation to that Advance at
the end of each Interest Period.
(b) The Facility Agent will promptly distribute the interest
received by it from the Borrower among the Banks in
accordance with their Proportions with respect to that
Advance.
8. INTEREST ON OVERDUE AMOUNTS
8.1 Payment of Interest
(a) The Borrower and the Guarantors will pay to the Facility Agent
for the account of the Banks interest on all amounts due and
payable by them under or in respect of this Agreement or the
Securities and unpaid, including any interest payable under
this clause.
(b) The Facility Agent will distribute the interest received by it
from the Borrower among the Banks in accordance with their
Proportions with respect to that Advance.
8.2 Accrual of Interest
date of actual payment, before and (as a separate and independent
obligation but without duplication) after judgment, at the Specified
Rate for successive 3 month periods (as if the same were 3 month
Interest Periods) commencing on the date of default and, if not paid
when due, shall itself bear interest in accordance with this clause.
26.
9. XXXX RELIQUIFICATION
9.1 Drawing of Bills
The Borrower agrees (at the relevant Bank's cost) to draw Bills in
connection with any Advance made to it in the manner required by any
Bank whenever requested by a Bank to do so except that:
(a) the discounted value of those Bills when added to the
aggregate discounted value of all other Bills drawn under this
clause for the relevant Bank and which are outstanding at any
time may not exceed that Bank's participation in all Advances
which are outstanding;
(b) the obligations of the Borrower as drawer or otherwise under
those Bills are non-recourse.
9.2 Attorney
The Borrower irrevocably appoints each Bank (severally) as its
attorney to draw Bills in its name or on its behalf under clause 9.1
and agrees to ratify all action taken by any Bank as its attorney
under this clause.
9.3 Appointment Revoked
The requirement to draw Bills under clause 9.1 and the appointment
under clause 9.2 will cease and be revoked without necessity for
notice when all Advances are repaid. Nothing in clause 9.1 or 9.2
requires the Borrower or authorises any Bank as attorney to draw a
Xxxx which matures after the Termination Date.
9.4 Indemnity
Each Bank (severally) indemnifies the Borrower against loss, cost,
expense or liability on any Xxxx drawn by the Borrower at the request
of that Bank under clause 9.1 or drawn by that Bank under clause 9.2.
Each Bank agrees to pay the costs of preparation of and all stamp duty
on each Xxxx drawn at its request under this clause 9. Each indemnity
in this clause 9.4 is a continuing obligation of each Bank (severally)
and survives the termination of this Agreement or the repayment of any
Xxxx drawn under this clause 9.
9.5 Notice
On request from the Borrower through the Facility Agent (not more often
than once each quarter) the Banks will notify the Borrower through the
Facility Agent of the total face value of Bills outstanding at that
time under this clause.
27.
10. FEES
10.1 Commitment Fee
(a) The Borrower will pay in Dollars to the Facility Agent for
distribution among the Banks pro rata to their respective
Commitments, a commitment fee ("Commitment Fee") computed in
accordance with clause 10.5 on the daily undrawn balance of
the Commitments, during the period from and including the date
of this Agreement until the expiry of the Availability Period.
(b) Accrued Commitment Fee shall be payable quarterly in arrears
from the date of this Agreement and also on any date on
which the Total Commitments shall be terminated.
(c) The Commitment Fee shall accrue from day to day and be
calculated on the basis of a year of 365 days and for the
actual number of days elapsed.
10.2 Arrangement/Underwriting Fee
The Borrower must pay to the Facility Agent out of the proceeds of the
First Utilisation of the Facility, the arrangement/underwriting fee as
set out in a letter from the Facility Agent to the Borrower dated 1
September 1998 unless that fee or an equivalent fee has already been
paid to the Facility Agent.
10.3 Establishment Fee
The Facility Agent must pay each Bank (from the
arrangement/underwriting fee paid pursuant to clause 10.2) an
establishment fee upon first Utilisation of the Facility of an amount
by reference to the terms set out in the Information Memorandum and the
accompanying invitation letter from the Facility Agent to each Bank.
10.4 Agency Fees
The Borrower must pay to the Facility Agent out of the proceeds of the
First Utilisation of the Facility, an agency fee as set out in a letter
from the Facility Agent to the Borrower dated 1 September 1998.
10.5 Ratio Range
(a) Subject to paragraph (c) below, the Commitment Fee and the
Utilisation Margin will be set in accordance with the Ratio
Range for the most recent financial quarter as follows:
Ratio Range Commitment Fee Utilisation Margin
Greater than 4.00 0.90% pa 2.25% pa
Between 3.00 and 4.00 inclusive 0.80% pa 2.00% pa
Less than 3.00 0.70% pa 1.75% pa
28.
(b) The Ratio Range will be calculated quarterly by the Facility
Agent upon receipt of the relevant Accounts showing the
results of the latest financial quarter. If the Ratio Range
for the last quarter results in a change to the Utilisation
Margin or Commitment Fee the Facility Agent will notify the
Borrower and the Banks and the change will take effect from
the date of delivery of the relevant Accounts to the Facility
Agent.
(c) If an Event of Default has occurred and while it subsists
the Utilisation Margin will be 4.25% per annum.
(d) From the date of this Agreement until first changed pursuant
to sub-clause (b) above the Utilisation Margin is 2.25% per
annum and the Commitment Fee is 0.90% per annum.
11. PAYMENTS
11.1 Payment to Security Agent
All payments to be made by any Obligor under any Transaction Document
shall be paid to or to the order of the Security Agent, provided that
the Security Agent hereby consents to all such payments being made to
the Facility Agent in accordance with the terms of this Agreement until
the Securities shall become enforceable and the Security Agent
withdraws such consent by notice to the Facility Agent and the
Obligors.
11.2 Time and place
Subject to clause 11.1 all payments by any Obligor under any
Transaction Document, or by any Bank under this Agreement (unless
expressly provided otherwise in writing), are to be made to the
Facility Agent in Dollars in immediately available funds not later than
11.00 am local time on the due date to such accounts as the Facility
Agent may from time to time designate.
11.3 Merger
If the liability of any Obligor to pay any money the payment or
repayment of which forms part of the Obligations becomes merged in any
judgment or order, as an independent obligation the Obligor will pay to
the Facility Agent on behalf of the Banks interest at the rate which is
the higher of that payable under this Agreement and that fixed by or
payable under such judgment or order.
11.4 Conversion of Foreign Currency receipts to Dollars
(a) Notwithstanding the Obligor's obligation under clause 11.2 to
make all payments in Dollars, if any payment is tendered to an
Agent or a Bank under any Transaction Document in a Foreign
Currency, the Agent or Bank, as the case may be, at its
absolute discretion may accept payment in the Foreign Currency
as tendered.
(b) If any payment in a Foreign Currency is tendered to and
accepted by an Agent or Bank, or if any funds are recovered by
29.
an Agent or Bank under any Transaction Document in a Foreign
Currency, the Agent or Bank as the case may be at its
absolute discretion may actually or notionally convert such
payment or funds to Dollars at such time or times as it sees
fit and at such rate or rates as it is, or considers it
would be, able to obtain in the market at the time of such
conversion. The amount of Dollars actually or notionally
received after such conversion will be applied in reduction
of the Obligations.
11.5 Costs of Conversion
The Borrower will pay to an Agent or a Bank all commissions and
expenses involved in actually or notionally converting any payment or
receipt in a Foreign Currency into Dollars.
11.6 Application
Each payment received by any Agent for the account of another person
pursuant to clause 11.1 or 11.2 shall:
(a) in the case of a payment received for the account of the
Borrower, be made available by that Agent to the Borrower by
application, on the date of receipt:
(i) first, in or towards payment of any amounts then due
and payable (and unpaid) by the Borrower under this
Agreement; and
(ii) second, in payment to such account as the Borrower
shall have properly designated for the purpose in the
relevant Utilisation Notice or otherwise in writing;
and
(b) in the case of any other payment, be made available by the
Agent to the person for whose account the payment was
received on the date of receipt to such account of the
person as that person shall have previously notified to the
Agent for the purposes of this Agreement.
The Facility Agent or the Security Agent (as the case may be) shall
promptly distribute payments received for the account of the Banks
among the Banks pro rata to their respective entitlements provided
that the Facility Agent may deduct therefrom any amount due to the
Facility Agent or the Security Agent pursuant to clause 11.8, 24.14 or
26.
11.7 Foreign Currency indemnity
If Foreign Currency is received by an Agent or a Bank as a result of a
court or tribunal order or as a result of a distribution under an
Insolvency Provision, then as a separate, additional and continuing
liability (notwithstanding such order or distribution) the Borrower
will pay to the Agent or Bank any deficiency in the amount of Dollars
actually received by the Agent or Bank resulting from any variation
between:
(a) the rate of exchange at which the amount of Foreign Currency was
calculated for the purposes of the court or tribunal order or the
distribution; and
30.
(b) the rate of exchange at which the Agent or Bank is able to
purchase Dollars with the amount of Foreign Currency actually
received by the Agent or Bank.
11.8 Insufficient payment
If an amount required to be paid to the Facility Agent under this
Agreement is not paid in full when due, the Facility Agent may
apportion such amount between principal, interest, commission, fees,
charges and other amounts payable under this Agreement in such manner
as it may determine and any such determination shall be binding on
each party hereto.
11.9 Anticipatory payments
The Facility Agent will not be obliged to make a payment to a Bank or
the Borrower out of any sum which it is expecting to receive for the
account of the Bank or the Borrower until it has been able to establish
that it has received the sum. The Facility Agent may elect to make such
payment, whereupon to the extent such payment is made but the Facility
Agent does not receive the sum when due in whole or in part:
(a) each person to which such payment was made shall, on request
by the Facility Agent, immediately refund it to the Facility
Agent;
(b) if the person who has failed to pay the sum when due is an
Obligor, interest payable by the Obligor on the amount of
the sum not paid when due and not refunded under clause
11.9(a) shall, notwithstanding any other provision of this
Agreement, belong to the Facility Agent absolutely; and
(c) if the person who has failed to pay the sum is a Bank, the
Bank will pay interest on the amount of the sum not paid when
due and not refunded under clause 11.9(a) at a rate determined
by the Facility Agent to be equal to its cost of funds.
The provisions of this clause are without prejudice to any rights
which any person may have against the party who fails to pay any sum.
11.10 Rounding
In making any payment under this Agreement, the Facility Agent may
round amounts to the nearest dollar.
12. TAXES
12.1 No deduction for Taxes and no set-off or counterclaim
All payments by the Obligors under any Transaction Document, whether of
principal, interest or other amounts due thereunder, shall be:
(a) free of any set-off or counterclaim; and
31.
(b) without deduction or withholding for any present or future
Taxes unless the Obligor is compelled by law to deduct or
withhold the same.
12.2 Payment net of Taxes
If:
(a) an Obligor is legally compelled to make any deduction or with-
holding on account of Taxes (other than Excluded Taxes);
(b) an Agent is legally compelled to make any deduction or
withholding on account of Taxes (other than Excluded Taxes)
from any payment to a Bank;
(c) a Bank does not receive a payment to which it is entitled
under this Agreement or a Transaction Document free and clear
of Taxes (other than Excluded Taxes);
(d) a Bank or an Agent is obliged to pay any Taxes in respect of a
payment made or to be made by an Obligor under this Agreement
or a Transaction Document (other than Excluded Taxes); or
(e) a Bank is obliged, in respect of financial accommodation
("Funding") raised or proposed to be raised by the Bank to
permit or facilitate its participation in an Advance:
(i) to make any additional payments as a result of any
deduction or withholding from any payment or
repayment which the Bank is obliged to make in
respect of the Funding (other than in respect of
Excluded Taxes); or
(ii) to pay any Taxes (other than Excluded Taxes) as a
result of or in connection with the Funding or any
payment or repayment to be made by it in connection
with the Funding,
then:
(f) where clause 12.2(a), (b), (c) or (d) apply, the Obligor
shall on demand by the Facility Agent pay to the Facility
Agent such additional amounts, by way of additional
interest, as may be necessary to ensure that the Agent or
Bank affected receives when due a net amount (after payment
of any Taxes, other than Excluded Taxes) equal to the full
amount which it would have been entitled to receive and
retain had the deduction or withholding not been made or had
the payment been free and clear of Taxes or had the Agent or
Bank not been obliged to pay any Taxes in respect of the
payment; and
(g) where clause 12.2(e) applies in relation to a Bank, the
relevant Obligor shall on demand by the Facility Agent pay to
the Facility Agent on account of the Bank an amount equal to
the amount required to be paid, or paid, in respect of or as a
result of any deduction or withholding or payment of Taxes to
which the paragraph applies; and
32.
(h) in addition to clause 12.2(f), where any Obligor is legally
compelled to make any deduction or withholding on account of
Taxes the relevant Obligor, shall:
(i) pay to the appropriate governmental authority or
department any amount deducted or withheld in respect
of Taxes; and
(ii) within 20 Banking Days after making the deduction or
withholding provide to the Facility Agent evidence
satisfactory to it of that payment having been made.
12.3 Funding
(a) The Banks will use their best efforts to raise all Funding
free and clear of Taxes.
(b) If a Bank is obliged to make any deduction or withholding or
pay any Taxes as referred to in clause 12.2(e), the Bank will
promptly notify the Facility Agent and the Borrower of that
obligation and its amount.
12.4 Termination
If any Obligor fails to comply with the provisions of clause 12.2 in
relation to a Bank, the Bank may by notice to the Borrower through the
Facility Agent terminate its obligations under this Agreement
notwithstanding that any obligation of an Obligor under clause 12.2 may
be void, voidable or unenforceable. Upon such a notice being given, the
Borrower will within 5 Banking Days prepay the relevant Bank's
participation in all affected Utilisations together with accrued
interest thereon and all other money payable under this Agreement to
the Bank. Any such prepayment shall be permanent and the Facility shall
be cancelled to the extent of the prepayment.
12.5 Right to Prepay Individual Bank
In the event that any Borrower is or would be obliged under clause 12.2
to pay any additional amounts to a Bank, such Borrower may prepay the
whole (but not part) of the then outstanding amount of such Bank's
participation in the affected Utilisations made by it, together with
all interest and other charges accrued on those participation and all
other amounts payable to such Bank under the Transaction Documents, on
giving not less than 10 Banking Days' prior written notice to such Bank
(through the Facility Agent) provided that consent to the making of
such prepayment shall have been given by the Majority Banks, which
consent will not be unreasonably withheld or delayed (ignoring for the
purpose such Bank, its Commitments and its participation in the
Utilisations).
12.6 Goods and Services Tax
If any supply of goods or services by the Facility Agent, the Security
Agent or any Bank under any Transaction Document is subject to GST,
then the recipient of that supply must pay to the supplier, in
addition to any consideration provided for under the relevant
Transaction Document, such amount as is necessary to ensure that the
supplier (after payment of any GST which is imposed or levied in
respect of the supply) is in the same financial position that it would
have been in had that GST not been imposed or levied in respect of
that supply.
33.
13. ILLEGALITY
If any change in applicable law, regulation, treaty or official
directive or in the interpretation or administration thereof by any
governmental authority charged with the administration thereof makes it
unlawful or impossible for a Bank to give effect to its obligations
under this Agreement:
(a) the Bank's obligations under this Agreement will be suspended
immediately for the duration of such illegality or
impossibility;
(b) the Bank may by notice to the Borrower through the Facility
Agent terminate its obligations under this Agreement;
(c) if required by or as a result of the applicable event, or if
necessary to prevent or remedy a breach of, or to comply
with, any applicable law, regulation, treaty or official
directive, the Borrower will prepay an amount equal to the
Bank's participation in all Utilisations together with all
interest and fees accrued thereon and such other amounts as
are payable to the Bank under this Agreement in full
immediately, or if delay in prepayment does not compound
such breach or affect such compliance, at the end of the
current Interest Period (or such lesser period if the
applicable law, regulation, treaty or official directive
requires); and
(d) the Borrower will indemnify the Bank and notwithstanding
termination of its obligations under this Agreement keep it
indemnified against any cost, loss, damage or expense
suffered, incurred or payable by it as a result of the
operation of clause 13(a), (b) and (c) and shall pay to the
Facility Agent for the account of the Bank prior to
termination of the Bank's obligations under this Agreement
such amount as the Bank estimates in good faith to be, then or
in the future, payable to it by the Borrower under this
indemnity.
14. INCREASED COST
14.1 Obligation to Indemnify
(a) If by reason of any change in law or in its interpretation or
administration or by reason of compliance with any request
from or requirement of any fiscal, monetary or other
authority:
(i) a Bank incurs a cost as a result of its having
entered into or performed its obligations under the
Facility or as a result of any Advance being
outstanding hereunder;
(ii) there is any increase in the cost to a Bank of
funding or maintaining any Utilisation made or to be
made hereunder;
(iii) the amount of principal, interest or other amount
payable to a Bank or the effective return to a Bank
on the Utilisations under this Agreement or the
anticipated rate of return at the date of this
Agreement on the Bank's overall capital is reduced;
or
34.
(iv) a Bank becomes liable to make any payment (not being
a payment of Tax on its overall net income) on or
calculated by reference to the amount of Utilisations
made hereunder or Bills outstanding hereunder,
then from time to time on notification by the Bank through the
Facility Agent the Borrower shall pay to the Facility Agent on
account of the Bank amounts sufficient to indemnify the Bank
against such cost, increased cost, reduction or liability.
(b) The notification referred to in clause 14.1(a) shall set out
in reasonable detail (excluding confidential information) the
basis for the notification.
(c) If a Bank has acted in good faith it is no defence that any
such cost, increased cost, reduction or liability could have
been avoided.
(d) A Bank's certificate as to the amount of, and basis for
arriving at, any such cost, increased cost, reduction or
liability is conclusive and binding on the Borrower and the
Guarantors in the absence of manifest error on the face of the
certificate.
14.2 Right to Prepay Individual Bank
Where clause 14.1 applies the relevant Borrower subject to the prior
consent of the Majority Banks, which consent will not be unreasonably
withheld or delayed (ignoring for this purpose the relevant Bank, its
Commitments and its participation in the Utilisations), upon giving
not less than 10 Banking Days' notice to that Bank (through the
Facility Agent) may prepay the whole (but not part only) of that
Bank's participation in all (and not some only of) the Advances
together with all interest and other charges on or in respect thereof,
and all other amounts payable by it under the Transaction Documents to
such Bank, provided always that any such notice by such Borrower is
given whilst circumstances exist entitling such Bank to claim
compensation under this clause.
15. MITIGATION
15.1 Mitigation
If circumstances arise in respect of any Bank which would, or upon the
giving of notice would, result in the operation of clause 12, 13 or 14
to the detriment of an Obligor:
(a) such Bank shall use best endeavours to promptly notify the
Facility Agent and the Borrower and, upon the request of the
Borrower, shall enter into discussions with the Borrower with
a view to determining what mitigating action might be taken by
such Bank, including discussion of the possibility of a change
in its lending office, a change in the method of funding
Advances or a transfer of its participation in the Facilities
and its Commitments to another bank or financial institution;
and
35.
(b) at the request of the Borrower, the Facility Agent will enter
into discussions with the Borrower with a view to determining
what mitigating action might be taken by the Facility Agent
with respect to the administration of this Agreement by the
Facility Agent,
PROVIDED THAT nothing in this clause shall oblige any Bank or the
Facility Agent to incur any costs or expenses or to take any action or
refrain from taking any action.
15.2 Replacement of Bank
If such circumstances as are referred to in clause 15.1 shall arise,
the Facility Agent, at the request of the Borrower, will consult with
the Borrower with a view to identifying and approaching bank(s) and
financial institution(s) acceptable to the Borrower who may be willing
to become party to this Agreement as Bank(s) in replacement for the
relevant Bank(s).
15.3 Costs and Expenses
Any reasonable costs and expenses reasonably incurred by any Bank or
the Facility Agent pursuant to this clause shall be paid by the
Borrower within 5 Banking Days after receipt of a demand specifying the
same in reasonable detail.
16. REPRESENTATIONS AND WARRANTIES
16.1 General representations and warranties
The Borrower and each Guarantor hereby represents and warrants in
respect of itself only, or where a representation or warranty does not
relate to the Borrower or a Guarantor, the Borrower hereby represents
and warrants, to the Agents and each Bank that:
(a) (Legally binding obligation): each Transaction Document to
which it is a party constitutes a valid and legally binding
obligation of it in accordance with its terms;
(b) (Execution, delivery and performance): the execution, delivery
and performance of each Transaction Document to which it is a
party does not violate any existing law or regulation or any
document or agreement to which it is a party or which is
binding upon it or any of its assets;
(c) (Authorisation): all consents, licences, approvals and
authorisations of every government authority required to be
obtained by it in connection with the execution, delivery and
performance of each Transaction Document to which it is a
party have been obtained and are valid and subsisting;
(d) (No litigation): no litigation, arbitration, criminal or
administrative proceedings are current, pending or, to the
knowledge of the Borrower or Guarantor, threatened in which
there is a reasonable likelihood of an adverse determination
and which if adversely determined would have a Material
Adverse Effect;
36.
(e) (No Event of Default): no event has occurred which
constitutes an Event of Default or a Potential Event of
Default;
(f) (Laws): it has complied in all material respects with all
statutes and regulations relative to it and the businesses
(if any) carried on by it the non-compliance with which
would have a Material Adverse Effect;
(g) (Financial Liabilities): save as disclosed to the Facility
Agent prior to the date of this Agreement or any date on which
this representation and warranty is repeated, it is not in
default in the payment of any material sum, or in the
performance or observance of any material obligation in
respect of any Financial Liability greater than $500,000, and
no event has occurred which with the giving of notice, lapse
of time or other condition could constitute such a default in
respect of any Financial Liability greater than $500,000;
(h) (No trusts): it is not the trustee of any trust and does not
hold any property subject to or impressed by any trust;
(i) (Title): it is the sole legal and beneficial owner of the
Security Property subject to the Security free and clear of
all Encumbrances other than those of the type referred to in
clause 17.3(a);
(j) (Intellectual Property Rights):
(i) it owns or has licensed to it all the intellectual
property rights which are material in the context of
its business and which are required by it in order
for it to carry on its business as it is being
conducted and it does not, in carrying on its
business and to the best of its knowledge, infringe
any intellectual property rights of any third party
in any material respect; and
(ii) none of the intellectual property rights which are
material in the context of its business is, to its
knowledge, being infringed nor, to its knowledge,
is there any threatened infringement of those
intellectual property rights, by any third party;
(k) (Tax liabilities):
(i) no claims are being or are reasonably likely to be
asserted against it with respect to Taxes which are
reasonably likely to be determined adversely to it
and which, if so adversely determined, would have a
Material Adverse Effect; and
(ii) it is not materially overdue in the filing of any Tax
returns required to be filed by it and it has paid
all Taxes shown to be due on such returns or on any
assessments made against it non-payment, or a claim
for payment, of which would have a Material Adverse
Effect;
37.
(l) (Licences): each of the Licences held by it is legally and
beneficially owned by the licensee referred to in Schedule 3
and the Obligor is not aware of any fact or circumstance
which would cause any of the Licences to be suspended,
revoked or cancelled prior to its normal expiry date or
which would cause the non-renewal of any of the Licences
where such suspension, revocation, cancellation or non-
renewal would, having regard to all of the circumstances
(including, but not limited to, the suspension, revocation,
cancellation or non-renewal of other Licences at any prior
time) and taking into account the cumulative effect of all
such previous events and circumstances, be reasonably likely
to have an adverse effect on the Obligor's business or
financial condition or on its ability to perform its
material obligations under any of the Transaction Documents
and so far as it is aware, no other authorisations, permits
or licences are required by any member of the Group to
enable that person to lawfully conduct its business as it is
being carried on at the date of this Agreement; and
(m) (Material Contracts): save as disclosed to the Facility Agent
prior to the date of this Agreement or any date on which this
representation and warranty is repeated, each of the Material
Contracts to which it is a party is in full force and effect
and it is not aware of any breach by it of any material term
of any Material Contract to which it is a party nor, (to the
best of its knowledge) is any other party to any Material
Contract in breach of any such material term.
16.2 Information representations and warranties
The Borrower and each Guarantor hereby represents and warrants in
respect of itself only, or where a representation or warranty does not
relate to the Borrower or a Guarantor, the Borrower hereby represents
and warrants, to the Agents and each Bank that:
(a) (Information): all information relating to an Obligor provided
to the Banks by an Obligor or at their direction in connection
with the Facility and each Transaction Document is true in all
material respects and is not, by omission or otherwise,
misleading in any material respect;
(b) (Accounts): the Accounts provided to the Facility Agent:
(i) have been prepared in accordance with accounting
principles and practices generally accepted in
Australia; and
(ii) give a true and fair view of the financial condition
of the relevant entity as at the date to which such
accounts relate and the results of operations for the
accounting period ending on that date and since that
date there has been no material adverse change in the
financial condition of CTV, STV or the Group as shown
in such accounts which would have a Material Adverse
Effect;
(c) (Documents): the documents delivered to the Facility Agent by
or on behalf of any Obligor pursuant to clause 3.1(b) and any
other provision of the Transaction Documents were genuine and
in the case of copy documents, were true, complete and
accurate copies in all material respects, of originals which
have not been amended, varied, supplemented or superseded in
any way which would be likely materially to have a Material
Adverse Effect;
38.
(d) (Information Memorandum): save as disclosed in writing to
the Facility Agent all material written factual information
contained in the Information Memorandum is true in all
material respect a the date (if any) ascribed thereto in
the Information Memorandum, all expressions of opinion or
intention and all forecasts and projections contained in the
Information Memorandum were arrived at after careful
consideration and were based on reasonable grounds, and so
far as it is aware the Information Memorandum as of its date
was not misleading in any material respect and as at its
date did not omit to disclose any matter failure to disclose
which would result in any information contained in the
Information Memorandum being misleading in any material
respect in the context of this Agreement;
(f) (Long Range Plan): save as disclosed in writing to the
Facility Agent all material factual information contained in
the Long Range Plan is true in all material respects at the
date (if any) ascribed thereto in the Long Range Plan or (if
none) at the date of the relevant Long Range Plan, all
expressions of opinion or intention and all forecasts and
projections contained in the Long Range Plan were arrived at
after careful consideration, were based on reasonable
grounds, and the Long Range Plan as of its date was not
misleading in any material respect and as at its date did
not omit to disclose any matter failure to disclose which
would result in any information contained in the Long Range
Plan being misleading in any material respect in the context
of this Agreement; and
(f) (Recent Events): save as disclosed in writing to the
Facility Agent so far as it is aware, reasonable enquiry
having been made, since the date of the material contained
in the Information Memorandum and the Long Range Plan
respectively, nothing has occurred of which it is aware and
which is not in the public domain which, as at the date of
this Agreement, renders any of the material information,
expressions of opinion or intention, projections or
conclusions referred to in (d) or (e) above and contained in
the Information Memorandum or the Long Range Plan inaccurate
or misleading (or in the case of expressions of opinion,
conclusions or projections, other than fair and reasonable)
in any material respect in the context of the Group and the
transaction contemplated by this Agreement.
16.3 Corporate representations and warranties
The Borrower and each Guarantor hereby represents and warrants to the
Agents and each Bank in respect of itself only that:
(a) (Due incorporation): it is duly incorporated and has the
corporate power to own its own property and to carry on its
own business as is now being conducted;
(b) (Constitution): the execution, delivery and performance of
each Transaction Document to which it is a party does not
violate its constitution;
39.
(c) (Corporate power): it has the power, and has taken all
corporate and other action required, to enter into any
Transaction Document to which it is a party and to authorise
the execution and delivery thereof and the performance of its
obligations thereunder; and
(d) (Filings): it has filed all corporate notices and effected all
registrations with the Australian Securities and Investments
Commission or similar office in its jurisdiction of
incorporation and in any other jurisdiction as required by law
where failure to file or effect registration would reasonably
be expected to have a Material Adverse Effect, and all such
filings and registrations are current, complete and accurate
in all material respects.
16.4 Representations and warranties repeated
Each representation and warranty contained in clause 16.1, 16.2 (except
for paragraphs (c), (d), (e) and (f)) and 16.3 shall be repeated on the
date of each Advance and at the end of each Interest Period with
reference to the facts and circumstances then subsisting, as if made on
each such day and each quarter the Borrower will deliver a Compliance
Certificate to the Facility Agent in respect of the same.
17. UNDERTAKINGS
17.1 Duration and Benefit
The undertakings in this Agreement are given for the benefit of the
Agents and each Bank and shall remain in force from and after the date
of this Agreement and so long as any amount is or may be outstanding
under this Agreement or any Commitment is in force. The Facility Agent
(acting at the direction of the Majority Banks) may waive compliance
with any undertaking contained in this clause 17 either for a specific
purpose or generally by providing the Borrower with a letter in
writing specifying the waiver being granted.
17.2 Information
(a) (Financial information): The Borrower and each Guarantor will
ensure that there is delivered to the Facility Agent:
(i) as soon as practicable and in any event not later
than 120 days after the close of each of its
financial years, a copy of the consolidated audited
balance sheet and profit and loss statement for STV
and CTV and a consolidated balance sheet and profit
and loss statement for the Group for that financial
year certified as correct by an auditor approved by
the Facility Agent it being acknowledged that Xxxxxx
Xxxxxxxx is acceptable;
(ii) as soon as practicable and in any event not later
than 90 days after each half of each of its financial
years, a copy of the consolidated balance sheet and
profit and loss statement for STV, CTV and the Group
for that half-year certified as correct by 2
directors of the Borrower;
40.
(iii) within 30 days of the beginning of each quarter, a
copy of the management accounts of the Group for the
preceding quarter, including details of EBITDA and
capital expenditure and a statement of the Total
Subscribers (which includes reasonable details of new
installations and monthly churn rate) at the end of
the preceding month;
(iv) as soon as practicable and in any event not later
than 90 days after the commencement of its financial
year, a copy of the Group's annual budget and an
updated Long Range Plan; and
(v) promptly such further information regarding its
financial condition and business operations as the
Facility Agent from time to time reasonably requires.
(b) (Compliance with accounting standards): The Borrower and
each Guarantor will ensure that the Accounts (except for
management accounts of the Group given under clause
17.2(a)(iii)) are prepared in accordance with the relevant
constitution, the Corporations Law, any applicable statute
and all accounting principles and practices generally
accepted in Australia consistently applied, or if not
consistently applied, accompanied by details of the
inconsistencies, and shall give a true and fair view of its
financial condition and the result of its operations as at
the date, and for the period ending on the date, to which
those Accounts are prepared.
(c) (Projections): The Borrower shall ensure that there is
delivered to the Facility Agent in sufficient copies for
each of the Banks not later than the commencement of each
financial year, a projected consolidated balance sheet,
profit and loss account, cash flow statement and rolling
monthly cash forecast of the Group for (or in the case of a
balance sheet, as at the end of) such annual financial year,
together with details of the principal assumptions
underlying such projections and a description of the
proposed activities of the Group during such period.
(d) (Provision of further information): The Borrower and each
Guarantor will:
(i) (Special resolutions): deliver to the Facility Agent
before the date of the relevant meeting, a copy of
any notice calling an extraordinary general meeting
of any Obligor or proposing any special or
extraordinary resolution thereof;
(ii) (Reports to members etc.): d eliver to the Facility
Agent, upon issue, a copy of all material reports,
accounts, notices and circulars issued by any Obligor
(in order to comply with any applicable legislative
requirement or its Memorandum or Articles of
Association) to any of its members, to UIH Australia/
Pacific, Inc., to the members of UIH Asia/Pacific
Communications, Inc., to the holders of any discount
notes (or their trustees) or to the Australian Stock
Exchange Limited or any of its subsidiaries or to any
other stock exchange;
(iii) (Certificate of default): as and when reasonably
required by the Facility Agent, furnish the Facility
Agent with a statement made by 2 directors of the
Borrower stating to the best knowledge of such
directors whether or not an Event of Default or a
41.
Potential Event of Default has occurred and, if it
has, setting out details thereof and the steps (if
any) taken or proposed to be taken to remedy or cure
the same;
(iv) (Evidence of compliance): as and when reasonably
required by the Facility Agent, furnish to the
Facility Agent proof to the reasonable satisfaction
of the Facility Agent that the Obligations of the
Borrower and each Guarantor have been and continue to
be performed and observed;
(v) (Long Range Plan): provide a revised Long Range Plan
to the Facility Agent whenever there is any material
change to the timing of the payments, budgets or
assumptions contained therein; and
(vi) (Copies of Contracts): provide the Facility Agent
with a copy of any contract entered into by a member
of the Group after the date of this Agreement which
is of similar importance to the net cash flow or
operation of the business of the Group as the
contracts listed in Schedule 11 in a timely manner
after execution of such a contract.
(e) (Notification of certain events): The Borrower and each Guarantor
will promptly notify the Facility Agent in writing as soon as it
becomes aware of the occurrence of:
(i) (Event of Default): any Event of Default or Potential
Event of Default;
(ii) (Litigation): any litigation, arbitration, criminal
or administrative proceedings or labour disputes
relating to an Obligor or any Obligor's property,
assets or revenues that, if decided adversely to the
Obligor, is reasonably likely to have a Material
Adverse Effect and provide periodic reports on the
status of the litigation;
(iii) (Shutdown of Transmission): any actual threatened
shutdown or suspension of transmission of the
subscriber television service operated by the Group
except shutdown or suspension in the ordinary course
of business;
(iv) (Material Adverse Effect): any event which would
reasonably be expected to have a Material Adverse
Effect;
(v) (Authorised persons): any change in the persons
authorised by it to sign Bills, notices, certificates
or other documents in connection with the Facility,
giving specimen signatures of any new person so
authorised and giving to the satisfaction of the
Facility Agent evidence, where requested by the
Facility Agent, of the authority of that person; or
(vi) (Trustee): if any Obligor becomes or is appointed the
trustee of any trust or comes to hold any property
subject to or impressed by any trust.
(f) (Security Property): The Borrower and each Guarantor will
maintain and protect all of its Security Property and will not
take any action that is reasonably likely to result in the
business of the Group not remaining capable of operating in a
manner that will enable the Borrower to meet the Obligations.
42.
17.3 Security Value
(a) (Restriction on Encumbrances): No Borrower or Guarantor will
create, permit or suffer to exist any Encumbrance over all or
any of its assets (including the Security Property) except
for:
(i) the Securities;
(ii) liens arising by operation of law in the ordinary
course of day-to-day trading and securing obligations
not more than 90 days old;
(iii) a banker's lien or right of set-off or combination
arising by operation of law or practice over property
or money deposited with a banker in the ordinary
course of the Obligor's ordinary business;
(iv) contractual set off rights in respect of the
Borrower's transactional banking facilities and
arrangements;
(v) arrangements constituted by retention of title (other
than an Adverse Title Retention Arrangement) in
connection with the acquisition of goods provided the
goods are acquired in the ordinary course of the
Obligor's business;
(vi) Encumbrances arising by operation of law in
connection with rights arising in the ordinary and
usual course of its business in favour of an unpaid
seller, the obligations of the purchaser not being
more than 90 days old;
(vii) Encumbrances created by statute in favour of
governmental or semi- governmental authorities or
departments securing the payment of rates or Taxes
except as created because of the failure to duly pay
Taxes; or
(viii) Encumbrances created as part of a Permitted Lease
Transaction.
(b) (Transactions similar to security): No Borrower or Guarantor
will:
(i) sell or otherwise dispose of any of its assets on
terms whereby such asset is or may be leased to or
re-acquired or acquired by any member of the Group
other than for the purposes of giving effect to a
Permitted Lease Transaction; or
(ii) sell or otherwise dispose of any of its receivables
on recourse terms; or
(iii) except for assets acquired in the ordinary course of
business on the normal commercial terms of the
vendor, purchase any asset on terms providing for a
retention of title by the vendor or on conditional
sale terms or on terms having a like substantive
effect to any of the foregoing, provided that where
such assets are fixed assets, the aggregate capital
value of the item or items acquired or supplied under
the same contract (or under a series of related
contracts) will be less than $100,000 or such other
amount as agreed.
43.
(c) (Adverse Title Retention Arrangements): No Borrower or
Guarantor will enter into or allow to exist any Adverse Title
Retention Arrangement in respect of any assets delivered to it
in the course of its business.
(d) (Disposals): No Borrower or Guarantor will, either in a single
transaction or in a series of transactions whether related or
not and whether voluntarily or involuntarily, sell, transfer,
lease or otherwise dispose of:
(i) any shares in any member of the Group;
(ii) all or any other part of its respective assets or
undertaking, other than:
A. disposals in the ordinary course of business
of the Group;
B. disposals of surplus, obsolete or redundant
plant and equipment, not required for the
efficient operation of its business, at fair
market value;
C. the expenditure of cash in payment for
assets or services acquired at market value
in the course of its business;
D. disposals of assets in exchange for other
assets, in the reasonable opinion of the
person effecting the disposal, comparable or
superior as to type, value or quality;
E. disposals of assets to any member of the
Group provided that the Group Member has
provided to the Security Agent a Security or
such additional Securities as the Majority
Banks reasonably require;
F. disposals of assets for the purposes of re-
placement of those assets;
G. disposals of assets with the prior written
consent of the Agent,
which consent will not be unreasonably with-
held or delayed; or
H. disposals required to give effect to a Per-
mitted Lease Transaction.
(e) (Pari passu ranking): The Borrower and each Guarantor undertakes
that its obligations under this Agreement rank and will at all
times rank at least pari passu in right and priority of payment
and in point of security (save by reason of and to the extent of
its security afforded thereto by the Securities) with all its
other present and future unsecured and unsubordinated
obligations, other than obligations applicable generally to
companies incorporated in its jurisdiction of incorporation which
have priority by operation of law (including, without prejudice
to the generality of the foregoing, in respect of employees'
remuneration, Taxes and like obligations).
44.
17.4 Liabilities
(a) (Restriction on guarantees): No Borrower or Guarantor will,
without the prior consent in writing of the Facility Agent
(acting at the direction of the Majority Banks), enter into
any bond, guarantee or indemnity in respect of any Financial
Liabilities in favour of any person other than:
(i) pursuant to the Transaction Documents;
(ii) a guarantee given to a bank to facilitate the
operation of bank accounts of members of the Group
maintained with such Bank on a net balance basis; or
(iii) in respect of any Financial Liabilities permitted
under clause 17.4(c).
(b) (Further restriction on guarantees): No Borrower or Guarantor
will, without the prior consent in writing of the Facility
Agent, enter into any bond, guarantee or indemnity in respect
of any obligation except Financial Liabilities in favour of
any person other than in respect of a member of the Group. For
the avoidance of doubt, it is agreed that take or pay or
minimum payment obligations incurred by a Borrower or a
Guarantor are not bonds, guarantees or indemnities to which
this clause 17.4(b) applies.
(c) (Financial Liabilities): No Borrower or Guarantor will create,
incur or be liable for any Financial Liabilities of itself
other than:
(i) under the Transaction Documents; or
(ii) indebtedness under transactional banking facilities
and arrangements;
(iii) indebtedness under hedging arrangements in accordance
with clause 17.12(h); or
(iv) trade or other similar indebtedness incurred in the
ordinary course of business; or
(v) subordinated loans from the shareholders of CTV and
STV or any person approved by the Facility Agent
provided that:
A. such loans are on terms and conditions reasonably
approved by the Facility Agent; and
B. the Security Agent has been granted a limited re-
course mortgage over such loans; and
(vi) cash backed performance bond facilities up to an
aggregate of $1,000,000 or such larger amount agreed
to by the Facility Agent acting on directions from
the Majority Banks; or
(vii) under finance leases in respect of motor vehicles
and office equipment for employees and consultants of
the Group; or
(viii) under the Debentures; or
(ix) any Financial Liability
approved by the Facility Agent or
(x) under a Permitted Lease Transaction,
and ensure that no indebtedness referred to in paragraphs
(v) and (viii) above is repaid or repurchased without the
prior written consent of the Agent or until the Facility has
been repaid and cancelled in full.
45.
(d) (Options): No Borrower or Guarantor will, without the prior
consent of the Facility Agent, enter into or permit to subsist
any arrangement whereby any person:
(i) has the right (whether or not exercisable
only on a contingency) to require any member
of the Group to purchase or otherwise
acquire any property or any interest in
property; or
(ii) has the right (whether or not exercisable
only on a contingency) to require any member
of the Group to sell or otherwise dispose of
any property or interest in property,
except under the shareholders agreements for CTV and
STV or those companies' constituent documents. For
the absence of doubt, CTV and STV may, without the
prior consent of the Agent, issue options over shares
or debentures in themselves.
(e) (Treasury Transactions): No Borrower or Guarantor will enter into
any interest rate swap, cap, ceiling, collar or floor or any
currency swap, futures, foreign exchange or commodity contract or
option (whether over the counter or exchange traded) or any
similar treasury transaction, other than in accordance with
clause 17.12(h), spot foreign exchange contracts entered into in
the ordinary course of business and transactions entered into for
the hedging of actual or projected exposures arising in the
ordinary course of ordinary trading activities of the Group or to
meet its obligations under this Agreement.
17.5 Use of Funds
(a) (Repayment of shareholders' loans): No Obligor will repay, and
each Obligor will procure that no amount of shareholders' loans
to any Obligor will be repaid prior to any Termination Date
without the prior written consent of the Facility Agent (acting
at the direction of the Majority Banks) except where the
shareholder receiving the repayment is the Borrower or a
Guarantor or where permitted under clause 17.6;
(b) (Loans out): No Borrower or Guarantor will make any loan to any
person save for:
(i) loans made by one member of the Group to another
member of the Group where the recipient of the loan
is the Borrower or a Guarantor;
(ii) deposits made with banks in the ordinary course of
business as part of its transactional banking
facilities and arrangements; and
(iii loans required to give effect to a Permitted Lease
Transaction.
17.6 Dividends and Share Capital
(a) (Restriction on Dividends): CTV and STV undertake not to:
(i) declare, make or pay any dividend, charge, fee or
other distribution (whether in cash or in kind) on or
in respect of its share capital; or
46.
(ii) make any payment of interest or any similar payment
in respect of the Debentures or any other
subordinated shareholder loans; or
(iii) pay any fees under any management agreements or
technical assistance agreements with any Related Body
Corporate,
without the prior written consent of the Facility Agent,
acting on the instructions of the Majority Banks.
(b) (Share Capital): No Borrower or Guarantor will, without the
prior written consent of the Facility Agent, such consent not
to be unreasonably withheld or delayed:
(i) redeem, repurchase, defease, retire or repay any of
its share capital or any Debentures, or resolve to do
so; or
(ii) issue any share capital to any person unless such
share capital will form part of the Security
Property.
17.7 Intellectual Property Rights
(a) (Registrations): The Borrower and each Guarantor will make
such registrations and pay such fees, registration Taxes and
similar amounts as are necessary to keep its registered
intellectual property rights which are material to its
business in force and to record its interest in the
intellectual property rights.
(b) (Protection of Rights): The Borrower and each Guarantor will
take such steps as are necessary and commercially reasonable
(including, without limitation, the institution of legal
proceedings) to prevent third parties infringing those
intellectual property rights referred to in paragraph (a)
above and (without prejudice to paragraph (a) above) take
such other steps as are reasonably practicabl to maintain
and preserve its interests in those rights.
(c) (No Disposal): No Borrower or Guarantor will either in a
single transaction or in a series of transactions whether
related or not and whether voluntarily or involuntarily, sell,
transfer, lease, license or otherwise dispose of all or any
part of its interest in any of the intellectual property
rights save:
(i) as effected pursuant to any Security; or
(ii) as permitted by the Majority Banks; or
(iii) for any licence arrangements in respect of those
rights entered into with members of the Group for so
long as they remain members of the Group; or
(iv) in the ordinary course of business.
(d) (No Abandonment): No Borrower or Guarantor will permit any
registration of any of the intellectual property rights to be
abandoned, cancelled or lapsed or to be liable to any claim of
abandonment for non-use or otherwise except where such
abandonment, cancellation or lapse would not reasonably be
expected to have a Material Adverse Effect.
47.
17.8 Insurance
(a) The Borrower and each Guarantor must effect and maintain
insurance in relation to the Security Property with a
reputable, responsible and solvent insurer on terms and in an
amount satisfactory to the Facility Agent.
(b) Each Obligor will comply with any insurance obligations in any
Securities to which it is a party (except that the Borrower
will only be required to obtain business interruption
insurance within 12 months from the date of this Agreement).
17.9 Licences
The Borrower and each Guarantor will, and will ensure that each Obligor
will:
(a) (Renew): on or before the time and in the manner prescribed by
the relevant Statute for each Licence, apply for and procure the
renewal of the Licence and pay or cause to be paid the renewal
fees and other sums required in respect of the Licence or the
renewal of the Licence within the time allowed and in the manner
prescribed by the Statute unless the non-renewal of the Licence
would, having regard to all of the circumstances (including, but
not limited to, the non-renewal of other Licences at any prior
time) and taking into account the cumulative effect of all such
previous events and circumstances, not be reasonably likely to
have an adverse effect on the Obligor's business or financial
condition or on its ability to perform its material obligations
under any of the Transaction Documents;
(b) (Production of the Licence): upon request, produce to the
Facility Agent each Licence and all receipts for payments in
relation to each Licence unless already delivered to the Security
Agent under clause 17.11(f);
(c) (No cancellation): not do, allow or suffer any act, matter or
thing as a result of which any Licence is or may be surrendered,
forfeited, withdrawn, cancelled, refused or rendered void, or
whereby the holder of any Licence is disqualified permanently or
temporarily from receiving or continuing to hold a Licence except
on surrender and renewals of Licences unless such surrender,
forfeiture, withdrawal, cancellation, refusal, rendering void or
disqualification would, having regard to all of the circumstances
(including, but not limited to, the surrender forfeiture,
withdrawal, cancellation, refusal, rendering void or
disqualification of other Licences at any prior time) and taking
into account the cumulative effect of all such previous events
and circumstances, not be reasonably likely to have an adverse
effect on the Obligor's business or financial condition or on its
ability to perform its material obligations under any of the
Transaction Documents;
(d) (No transfer): not surrender or concur in the transfer of any
Licence to any person other than to an Obligor;
48.
(e) (Comply with Statues): comply with all Statutes and all lawful
requirements of every government authority in relation to the
Licence if failure to comply would reasonably be expected to
result in a forfeiture, termination, cancellation, fine,
non-renewal or suspension of such Licence; and
(f) (Notice): promptly notify the Facility Agent if any relevant
authority issues any material notice in respect of any Licence
or threatens to suspend or cancel any of the Licences or if it
becomes aware of any enquiry by any relevant authority which
could affect any of the Licences.
17.10 Material Contracts
(a) (No Changes): The Borrower and each Guarantor will not without
the prior written consent of the Facility Agent (acting on
instructions of the Majority Banks) which consent will not be
unreasonably withheld:
(i) make (whether formally or by conduct) any material
amendment or modification to any of the Material
Contracts or waive compliance with any material
provision of any of the Material Contracts;
(ii) terminate, repudiate, allow to expire (other than in
accordance with its terms), rescind or revoke any
Material Contract;
(iii) take or fail to take any action which could
reasonably be expected to result in the termination
of any of the Material Contracts; or
(iv) assign or novate its interest in any of the Material
Contracts or consent or permit any other party to do
the same.
(b) (Protection): The Borrower and each Guarantor will:
(i) comply with the material terms of the Material Con-
tracts;
(ii) take all action reasonably available to them to
ensure that the Material Contracts remain in full
force and effect and to enforce their rights under
any of the Material Contracts; and
(iii) provide the Facility Agent with copies of all
material notices served or received under any of the
Material Contracts.
(c) (Access Agreement): The Borrower undertakes to use its best
endeavours to execute the Access Agreement as soon as
practicable after the execution of this Agreement. The
Borrower will provide the Facility Agent with a copy of the
Access Agreement when executed.
(d) (Movie Vision Term Sheet): The Borrower undertakes to use its
best endeavours to procure that the agreement referred to in
paragraph 3 of Schedule 11 of this Agreement is executed by
Optus Vision Pty Limited and Optus Networks Pty Limited as
soon as practicable after the execution of this Agreement. The
Borrower will provide the Facility Agent with a copy of that
agreement when so executed.
49.
17.11 Security Property
(a) (Good repair): Each Obligor will maintain and protect the
Security Property and keep the same in a good and tenantable
state of repair and in good working order and condition, and will
on being required so to do by the Facility Agent promptly rectify
every material defect in the repair and condition thereof.
(b) (Outgoings): Each Obligor will duly and punctually pay when due
all outgoings including rent and Taxes payable by it in respect
of the Security Property.
(c) (Not to prejudice): No Obligor will do or (to the extent it is
able) permit any act, om ission or thing whereby any part of the
Security Property becomes or could be liable to surrender,
forfeiture or cancellation or becomes prejudiced in any manner or
the value of any Security as a security to the Banks becomes or
could be materially lessened.
(d) (Permit Inspection): Each Obligor will permit the Facility Agent
and any employee, agent or professional adviser of the Facility
Agent, to enter any land or buildings owned or occupied by the
Obligor at all reasonable times, after reasonable notice, to
inspect its condition and to monitor compliance with the
Transaction Documents.
(e) (Protection of Charged Property): Each Obligor will at the
request of the Facility Agent take or defend all legal
proceedings that the Facility Agent (acting reasonably) considers
necessary or desirable for the preservation, protection or
recovery of the Security Property.
(f) (Documents of title and other securities): Each Obligor will
lodge with the Security Agent promptly upon request by the
Security Agent:
(i) all certificates, scrip and other indicia of title or
interest in any shares or securities;
(ii) all negotiable instruments other than cheques;
(iii) all certificates of title to land and all original
property leases;
(iv) all Licences unless delivered under clause 17.9(b);
(v) all other documents of title to the Security Property
immediately on request of the same from the Facility
Agent.
17.12 General undertakings
(a) (Perform Obligations): The Borrower and each Guarantor will
perform, fulfil and observe its Obligations.
(b) (Maintain all consents): The Borrower and each Guarantor will
obtain, renew, maintain and comply with all consents,
licences, approvals and authorisations necessary for the
validity and enforceability of the Transaction Documents and
the performance of its obligations hereunder and thereunder
and the effectiveness of each Security as a security with the
stated priority and it will promptly provide copies thereof to
the Facility Agent when these are obtained or renewed.
50.
(c) (Change of business): No Borrower or Guarantor will make or
threaten to make any substantial change in the nature of its
respective business as conducted at the date of this Agreement
which would have a Material Adverse Effect or take any action
which would result in the business not remaining capable of
operating in a manner that would not have a Material Adverse
Effect.
(d) (Any action): No member of the Group will take any action that
would result in the Borrower not remaining capable of operating
in a manner that would enable the Borrower to meet all of its
Obligations.
(e) (Mergers): No Borrower or Guarantor will enter into any merger or
consolidation or make any acquisition of any other person or
business except in respect of the assets or shares of a member of
the Group by the Borrower or a Guarantor without the prior
written consent of the Facility Agent (acting at the direction of
the Majority Banks).
(f) (Administration and winding-up orders etc.): No Borrower or
Guarantor will make or join in making any application to any
court for an administration, winding-up, receivership or other
similar order to be made in relation to any member of the Group,
other than in respect of a solvent winding-up or dissolution of a
member of the Group without the prior written consent of the
Facility Agent (acting at the direction of the Majority Banks).
(g) (Arm's-length terms): No Borrower or Guarantor will enter into
any material transaction with any person otherwise than on (or
better than) arm's-length terms and for full market value, and
save for intercompany loans permitted pursuant to clause 17.5(b).
(h) (Hedging): The Borrower will maintain interest and currency
hedging arrangements with the Banks (and/or their affiliates) and
will not enter into any hedging arrangements with a financial
institution which is not a Bank (and/or its affiliate) so long as
the price and other terms of the arrangements offered by the
Banks (or their affiliates, where relevant) are fair having
regard to the Facility and the market at the relevant time. The
Borrower will from time to time consult with the Facility Agent
to agree satisfactory levels of interest and currency hedging to
be entered into by the Borrower. The Borrower must ensure it
maintains interest rate hedging in respect of 50% of all Advances
outstanding at any time. At no time will the Borrower hedge more
than 100% of its actual exposures in any market.
(i) (Constitutional Documents): No Borrower or Guarantor will, save
as required by law, amend or agree to amend its constitution or
other constitutional documents or by-laws of any member of the
Group in any way which would have a Material Adverse Effect.
51.
(j) (Related Entity Transactions): No Borrower or Guarantor will
knowingly enter into any transaction with any shareholder of
the Borrower or any Related Body Corporate of any shareholder
of the Borrower without the prior written consent of the
Facility Agent, such consent not to be unreasonably withheld,
unless such transaction is entered into on ordinary commercial
terms in the ordinary course of that company's business.
(k) (Bank Accounts): No Borrower or Guarantor will open or
maintain any account with any branch of any bank or other
financial institution providing like services (other than an
account maintained pursuant to the requirements of the
Transaction Documents) unless the opening and maintenance of
such account has been approved by the Facility Agent except
for accounts for transactional banking facilities and
arrangements in the ordinary course of business or in
connection with Financial Indebtedness permitted under clause
17.4(c)(ii), (iii) and (vi).
(l) (Compliance with laws): The Borrower and each Guarantor will
comply in all material respects with all applicable laws,
rules, regulations and orders of any governmental authority,
whether domestic or foreign having jurisdiction over it or any
of its assets.
(m) (Taxes): The Borrower and each Guarantor will pay all material
Taxes due and payable by it within a reasonable time of the
relevant due date (save to the extent that payment of the same
is being contested in good faith and adequate reserves are
being maintained for those Taxes).
(n) Access): Upon reasonable notice being given by the Facility
Agent, the Borrower and each Guarantor will procure that any
one or more representatives of the Facility Agent be allowed
(at the Facility Agent's risk and expense) to have access
during normal business hours to the assets, books and records
of each Obligor and to inspect the same without disruption or
interference to the operation of those assets, books and
records.
(o) (Long Range Plan): The Borrower will not engage in any
business or other activity other than such business or other
activities as are reasonably contemplated in the Long Rang
Plan, or any activity which is related to or connected with
any such business or other activity.
(p) (No Trusts): The Borrower will not become the trustee of a
trust or hold any property subject to or impressed by any
trust;
18. FINANCIAL COVENANTS
18.1 Financial Covenants
The Borrower and each Guarantor will ensure that:
(a) (Senior Debt/EBITDA): for the financial year ending 31
December 2001 and each 12 month period ending on a Quarterly
Date thereafter until 30 September 2002, the ratio of Senior
Debt (as at the Quarterly Date) to EBITDA for the Group for
52.
the preceding 12 month period must be less than or equal to
5:1 and for the 12 month period ending on 31 December 2002 and
each 12 month period ending on a Quarterly Date thereafter,
must be less than or equal to 4:1;
(b) (Total Debt /EBITDA): for the financial year ending 31
December 2001 and each 12 month period ending on a Quarterly
Date thereafter until 30 September 2002, the ratio of Total
Debt (as at the Quarterly Date) to EBITDA of the Group for the
preceding 12 month period must be less than or equal to 6:1
and for the 12 month period ending on 31 December 2002 and
each 12 month period ending on a Quarterly Date thereafter
must be less than or equal to 5:1;
(c) (EBITDA/Interest Expense): for the financial year ending 31
December 2001 and for each 12 month period ending on a
Quarterly Date thereafter until 30 September 2002, the ratio
of EBITDA of the Group for the preceding 12 month period to
Interest Expense for the preceding 12 month period must not be
less than 2.25:1 and for the 12 month period ending 31
December 2002 and each 12 month period ending on a Quarterly
Date thereafter, must be not less than 3:1;
(d) (Minimum Total Subscribers Level): Total Subscribers must be
greater than or equal to the amount set out below:
(i) at 30 June 1999, 295,000;
(ii) at 30 September 1999, 310,000;
(iii) at 31 December 1999, 325,000;
(iv) at 30 June 2000, 355,000;
(v) at 31 December 2000, 390,000;
(vi) at 30 June 2001, 425,000; and
(vii) at 31 December 2001, 460,000; and
(e) (Total Debt/Total Subscribers): on the date of the first
Utilisation and on each Quarterly Date thereafter until 31
December 2001 the ratio of Total Debt to Total Subscribers
must be less than or equal to A$1000:1.
18.2 Compliance Certificate
The Borrower will deliver a Compliance Certificate to the Facility
Agent within 30 days after the end of each quarter (except for
Compliance Certificates given at the end of the financial year based
on audited financial accounts which must be given promptly but in any
event not later than 120 days from the end of the financial year) and
at each Utilisation Date for a new Advance.
18.3 Stamp Duty Certificate
The Borrower will deliver a Stamp Duty Certificate to the Security Agent
as soon as practicable and in any event not later than:
(a) 120 days after the close of its financial years; and
(b) 90 days after each half of each of its financial years.
53.
19. DEFAULT AND TERMINATION
19.1 Events of Default
Each of the following events is an Event of Default, whether or not the
cause is beyond the control of the Borrower, the Guarantors or any
other person:
(a) (Failure to pay): any Obligor does not pay within 2 Business
Days of the due date and in the specified manner, any amount
payable by it under any Transaction Document;
(b) (Failure to comply): the Borrower or Guarantor defaults in
fully performing, observing and fulfilling any provision of
any Transaction Document other than a provision requiring the
payment of money as contemplated by clause 19.1(a), provided
that in the case of a default capable of remedy, that default
has not been remedied within 7 days of the occurrence of being
asked by the Facility Agent to remedy the default (or such
longer period agreed by the Facility Agent acting on
instructions from Majority Banks);
(c) (Untrue warranty): any representation, warranty or statement
made, repeated or deemed to be made or repeated in any
Transaction Document or in connection with the Facility or any
accounts or opinion furnished in connection with the
application for the Facility or under this Agreement is proved
to be untrue in any material respect when made, repeated or
deemed to be made repeated or furnished (as the case may be)
and the representation, warranty or statement continues to be
untrue 7 days after the representation, warranty or statement
is identified;
(d) (Breach of undertaking): any Obligor breaches any written
undertaking given at any time to the Banks or any Agent or
fails to comply with any condition imposed by the Banks or any
Agent in agreeing to any matter (including any waiver);
(e) (Event of Default under Transaction Document): any event of
default (howsoever described) occurs under any Transaction
Document;
(f) (Default under other transactions):
(i) any Financial Liability greater than $5,000,000 of
any Obligor becomes, or becomes capable of being
declared, prematurely due and payable as a result of
a default or an event of default howsoever described
thereunder;
(ii) any Financial Liability greater than $5,000,000 of
any Obligor or any sum payable in respect thereof is
not paid when due and payable;
(iii) any Encumbrance over any asset of an Obligor securing
more than $5,000,000 becomes capable of being
enforced as a result of a default or an event of
default howsoever described thereunder;
54.
(iv) any Obligor defaults in fully performing, observing
and fulfilling any of the terms, covenants and
conditions of any Encumbrance relating to any of its
assets securing more than $5,000,000 or any
Encumbrance relating to any asset of any Obligor
otherwise becomes enforceable;
(v) any Encumbrance securing more than $5,000,000 which
is a floating security over any asset of any Obligor
crystallises into, or otherwise becomes, a fixed or
specific security; or
(vi) any Encumbrance securing more than $5,000,000
relating to a Security Property is varied without the
prior written consent of the Security Agent (acting
on the instructions of the Majority Banks) or comes
to secure an aggregate debt or liability (present or
future, actual, contingent or prospective and on any
account whatsoever) that exceeds the amount
previously agreed to by the Security Agent in
writing;
(g) (Event of Insolvency): any Event of Insolvency occurs in respect
of any Obligor;
(h) (Investigation): an investigation into the affairs or particular
affairs of an Obligor is directed or commenced under the
Corporations Law which would have a Material Adverse Effect;
(i) (Cessation of business): an Obligor ceases, or threatens to
cease, to carry on all or a substantial part of its business or
all or a material part of the Obligor's business is destroyed,
confiscated, appropriated or resumed or suffers loss or material
damage unless insured to the satisfaction of the Facility Agent;
(j) (Void or voidable): any Transaction Document is or becomes or is
claimed by any Obligor to be void, voidable or unenforceable in
whole or in part;
(k) (Illegality): at any time it is unlawful for an Obligor to
perform any of its material obligations under any Transaction
Document;
(l) (Failure to comply with laws): any Obligor fails to duly and
punctually comply with all statutes, material regulations and
other laws binding on it and such failure would have a Material
Adverse Effect;
(m) (Change in control): without the prior written consent of the
Facility Agent, acting on instructions from Majority Banks,
Effective Control of the Borrower, CTV or STV is altered from
that subsisting at the date hereof. For the purpose of this
sub-clause "Effective Control" means:
(i) the ability to appoint a majority of directors to the
Board of Directors of the Borrower, CTV or STV;
(ii) control of more than 49% of the economic interest or
value of the Borrower, CTV or STV is acquired by one
or more parties other than United International
Holdings, Inc., or its Related Bodies Corporate; or
55.
(iii) control of legal and/or beneficial ownership of more
than 49% of the issued share capital of the Borrower,
CTV or STV excluding any part thereof which carries
no right to participate beyond a specified amount in
the distribution of either profit or capital;
(n) (Change in Shareholding): divestment by UIH Australia/Pacific,
Inc. or any of its related entities so that it or any of its
related entities has less than 25% legal and beneficial
shareholding in XYZ Entertainment Pty Limited, without the prior
written consent of the Facility Agent (acting on instructions
from Majority Banks), which consent will not be unreasonably
withheld or delayed provided that the Borrower demonstrates, to
the satisfaction of the Facility Agent, that the Borrower has
continuing and acceptable access to programming satisfactory to
the Facility Agent;
(o) (Hedging): the Borrower xxxxxx more than 100% of its physical
exposures;
(p) (Reduction in capital): without the prior written consent of the
Facility Agent (acting on instructions from Majority Banks), an
Obligor takes action to reduce its share capital (other than by
the redemption of redeemable preference shares);
(q) (Reserve liability): without the prior written consent of the
Facility Agent (acting on the instructions of the Majority
Banks), any meeting of an Obligor is convened for the purpose of
considering or passing a special resolution under section 188(2)
of the Corporations Law or any such resolution is proposed at any
meeting of an Obligor;
(r) (Material Contracts): without the prior written consent of the
Facility Agent (acting on instructions from Majority Banks) an
event of default howsoever described occurs and is continuing
under any Material Contract or any Obligor fails to comply with
any material term of a Material Contract or any Material Contract
is prematurely terminated or it becomes unlawful for any party to
a Material Contract to perform its obligations and which event of
default or failure to comply or termination or illegality:
(i) remains unremedied 7 days after the Facility Agent has
requested the Borrower to procure that it be remedied;
and
(ii) would be reasonably likely to have a Material Adverse
Effect;
(s) (Loss of Consents):
(i) any authorisation, approval, consent, licence or
permit (including, without limitation, the Licences),
exemption, filing or registration or other
requirement necessary:
A. to enable any Obligor to comply with any of its
material obligations under any of the Transaction
Documents or any of the Material Contracts; or
B. for the conduct of its business;
56.
is revoked or refused or does not remain in full
force and effect in accordance with its terms once
granted, or is not renewed prior to its expiry or is
adversely modified and that event has a Material
Adverse Effect;
(ii) the authority of any Obligor in the conduct of its
business is wholly or substantially curtained by any
seizure or intervention by or on behalf of any
authority or the ability of the Group to conduct its
business or to determine the amount it will charge
for its services is limited, restricted or constrain-
ed by any government or governmental agency taking
any action or such government or governmental agency
announces its intention to take such action in rela-
tion to any member of the Group or any of its assets
to an extent greater than existing at the date of
this Agreement and such action is reasonably likely
to have a Material Adverse Effect;
(t) (Licences): a breach of any of the Licences occurs and such
breach is not remedied within 30 days or such other period as may
be specified in any notice of breach issued by the relevant
authority unless such breach would, having regard to all of the
circumstances (including, but not limited to, the breach of other
Licences at any prior time) and taking into account the
cumulative effect of all such previous events and circumstances,
not be reasonably likely to have an adverse effect on an
Obligor's business or financial condition or on its ability to
perform its material obligations under any of the Transaction
Documents;
(u) (Material change): any event or series of events whether
related or not occurs which has a Material Adverse Effect.
19.2 Facility Agent's rights upon Event of Default
Subject to clause 19.3, if any Event of Default occurs, at any time
thereafter while such event continues, the Facility Agent may at its
option if so authorised by the Majority Banks and shall upon the
direction of the Majority Banks by written notice to the Borrower:
(a) declare that an Event of Default has occurred; and/or
(b) declare that the Total Commitments and any other obligations
of the Banks or the Agents to the Obligors under the
Transaction Documents shall be cancelled forthwith, whereupon
the same shall be so cancelled and all fees payable in
relation to the Total Commitments shall become immediately due
and payable; and/or
(c) declare that the Advances to the Borrower, together with all
interest accrued on those Advances and all other amounts which
form part of the Obligations (as specified in such notice)
shall thenceforth be repayable on demand being made by the
Facility Agent (and in the event of any such demand those
Advances, such interest and such other amounts shall be
immediately due and payable); and/or
57.
(d) declare the Advances to the Borrower immediately due and
payable, whereupon they shall become immediately due and
payable together with all interest accrued on those Advances
and all other amounts which form part of the Obligations.
20. GUARANTEE AND INDEMNITY
20.1 Guarantee
Each Guarantor hereby irrevocably and unconditionally guarantees to the
Agents and each Bank or any of them) the due and punctual performance
in full of the Obligations.
20.2 Indemnity
Each Guarantor as a separate, additional and primary liability hereby
irrevocably and unconditionally agrees to indemnify the Agents and each
Bank and at all times hereafter to keep the Agents and each Bank
indemnified against any failure by an Obligor to duly and punctually
perform its Obligations and Intended Obligations.
20.3 Performance of Obligations
If the Borrower or a Guarantor or any other person bound to perform or
pay after the expiration of any applicable grace period any Obligation
or Intended Obligation fails to do so in full on the due date therefor,
each Guarantor shall immediately on demand by either of the Agents or a
Bank perform or pay that Obligation or Intended Obligation.
20.4 Liability as Guarantor and indemnifier
Any reference herein to the obligations or liabilities of a Guarantor
shall be construed as a reference to its obligations or liabilities
whether as a Guarantor or indemnifier hereunder and the use of the
expression "Guarantor" herein in relation to a party shall not be
construed as diminishing that party's obligations hereunder as an
indemnifier. The provisions of this clause 20 preserving the liability
of a party hereto as a Guarantor apply mutatis mutandis to any
liability that arises whether in regard to that party's guarantee or
indemnity hereunder.
20.5 Principal obligation
Each obligation of each Guarantor hereunder constitutes a principal,
and not a secondary or ancillary obligation, to the intent that,
without limiting in any way the operation of any of the other
provisions of this clause 20, any limitation on the liability of a
Guarantor which would otherwise arise by reason of its status as a
Guarantor, co-Guarantor, indemnifier or co-indemnifier is hereby
negatived.
20.6 Absolute liability
The liability of each Guarantor hereunder is absolute and is not
subject to the execution of the Transaction Documents (other than this
Agreement) or of any other document by any person or to the performance
58.
of any condition precedent or subsequent, including, without limiting
the generality of the foregoing, as between any Obligor and the
Facility Agent, the Banks or any of them or amongst any 2 or more
Obligors but is subject to non-payment or the non-performance of an
Obligation or Intended Obligation by the principal obligor.
20.7 Unconditional liability
The liability of each Guarantor hereunder shall not be affected by any
act, omission, matter or thing that would otherwise operate in law or
in equity to reduce or release a Guarantor from its liability
including, without limiting the generality of the foregoing, any of the
following:
(a) (Event of Default): the occurrence of any Event of Default;
(b) (Distributions): the receipt by any Agent or any Bank of any
payment, dividend or distribution under any Insolvency
Provision in relation to the Borrower or any Guarantor;
(c) (Invalidity etc.): any Transaction Document or any payment or
other act the making or doing of which would otherwise have
formed part of the Obligations, or any transaction or document
which would otherwise have given rise to such a payment or
other act being or becoming or being conceded to be illegal,
invalid, void, voidable, unenforceable or irrecoverable in
whole or in part for any reason whether past, present or
future, including, without limiting the generality of the
foregoing:
(i) any statute, other law or principle of equity;
(ii) any act or omission by any person;
(iii) any legal limitation, disability or incapacity of an
Obligor or any Guarantor;
(iv) any improper exercise of a power or authority in
relation to an Obligor or any Guarantor;
(v) any right of an Agent or a Bank to enforce or recover
such document, payment or other act or to exercise
any remedy or right it has for the enforcement or
recovery of such document, payment or other act being
suspended or postponed by order of any court or
otherwise; or
(vi) any Insolvency Provision;
(d) (New guarantors): the Agents, Banks or any of them accepting
from any person any guarantee, indemnity or contract of
suretyship for the performance of the whole or any part of the
Obligations;
(e) (Time or indulgence): the Agents, Banks or any of them
agreeing with an Obligor or any Guarantor to grant time,
waiver or other indulgence or concession to, or to make any
composition or compromise with an Obligor or any Guarantor;
(f) (Forbearance): the Agents, Banks or any of them forbearing or
neglecting to exercise any remedy or right they have or it has
for the enforcement of any Transaction Document or any other
obligation or liability forming part of the Obligations;
59.
(g) (Laches etc.): any laches, acquiescence or other act, neglect,
default, omission or mistake by the Agents, Banks or any of them;
(h) (Repudiation): the determination, rescission, repudiation or
termination, or the acceptance of any of the foregoing, by the
Agents, Banks, an Obligor or any Guarantor or any of them of any
Transaction Document or any other obligation or liability forming
part of the Obligations;
(i) (Variation): any variation (whether by way of insertion,
deletion, modification, novation or otherwise) to any Transaction
Document or any other obligation or liability forming part of the
Obligations, whether or not such variation is substantial or
material or imposes an additional liability upon or is onerous on
any Obligor or any Guarantor, including without limiting the
generality of the foregoing, any increase in the limit or
extension of the term for, or the imposition of any condition or
variation in the rate of interest in respect of advances or
financial accommodation to the Borrower;
(j) (Release): the full, partial or conditional release or discharge
(whether before or after any demand has been made on the
Guarantor hereunder) by the Agents, Banks or any of them or by
operation of law, of an Obligor or any Guarantor or any other
person from any Transaction Document or any other obligation or
liability forming part of the Obligations (but without affecting
the validity of any release and discharge of a Guarantor in
accordance with this Agreement);
(k) (Security Property): the release of any property from any
Security or the substitution of any property in place of any
other property now or hereafter the subject of a Security;
(l) (Securities): the Agents, Banks or any of them wasting,
destroying, abandoning, prejudicing or not perfecting,
maintaining, preserving, enforcing or realising or negligently or
not bona fide enforcing or realising any Security;
(m) (Loss of Securities): the failure to obtain any Security or the
loss or impairment of any Security by operation of law or
otherwise, whether or not the same is in breach of an express or
implied condition to obtain or preserve such Security or in
breach of any equitable duty which might otherwise have been
imposed upon the Agents, Banks or any of them;
(n) (Priority of Securities): the Agents, Banks or any of them
agreeing to any order of priorities with respect to any Security
or to any variation of any then previously agreed order of
priority;
(o) (Accounts): the opening or operation of any new account with the
Agents, Banks or any of them by any Obligor or any Guarantor;
60.
(p) (Change of constitution): any change in membership (whether by
death or retirement of an existing member, admission of a new
member or otherwise), in the place of business or in the name of
any partnership, firm or association in which any Obligor or any
Guarantor is a member;
(q) (Transfer): the transfer or assignment of the benefit of any
Transaction Document or of any other obligation or liability
forming part of the Obligations;
(r) (Disclosure): any failure by the Agents, Banks or any of them to
disclose to the Guarantor any material or unusual fact,
circumstance, event or thing whatsoever known to, or ought to
have been known by, an Agent or any Bank relating to or affecting
any Obligor or any Guarantor at any time prior to or during the
currency of any Transaction Document, whether prejudicial or not
to the rights and liabilities of the Guarantor and whether or not
any Agent or any Bank was under any duty to disclose such fact,
circumstance, event or thing to the Guarantor or an Obligor; or
(s) (Covenant not to take action): any Agent or any Bank entering
into a covenant with an Obligor or any Guarantor not to do all or
any of the following, namely, xxx, issue process, sign or execute
judgment, commence proceedings for bankruptcy or liquidation,
participate in any official management, scheme of arrangement or
reconstruction, prove in any bankruptcy or liquidation or do any
other act, matter or thing in respect of the liability of an
Obligor or that Guarantor (but without affecting the validity of
any waiver given in accordance with clause 30.11 of this
Agreement).
20.8 No obligation to gain consent
Nothing herein shall be construed as a requirement that any Guarantor
consent to or be made aware of any event referred to in clause 20.7,
any transaction between the Agents, Banks or any of them and an Obligor
or any one or more Guarantors or any particulars concerning any
obligation or liability that forms part of the Obligations.
20.9 No marshalling
The Agents and the Banks are under no obligation to marshal or
appropriate in favour of any Guarantor or to exercise, apply, transfer
or recover in favour of any Guarantor any Security or any funds or
assets that they or any of them hold or are entitled to receive or have
a claim upon.
20.10 Void or voidable transactions
If there is upheld, conceded or compromised any claim that a
transaction in any way affecting or relating to the Obligations or the
Securities is void, voidable, unenforceable or irrecoverable the
following provisions apply:
61.
(a) (Restoration of Obligations): if as a result of or in
connection with entering into the transaction the Obligations
have been reduced in any way, then upon such claim being
upheld, conceded or compromised, each Agent and each Bank will
be entitled against each Guarantor to all such rights as it
would have had if the transaction or so much thereof as is
held or conceded to be void or voidable or is foregone on
compromise had not taken place;
(b) (Restoration of Security): if as a result of or in connection
with entering into the transaction, or if as a result of the
transaction being held or conceded to be void or
unenforceable, a Bank's rights under any Security have been
surrendered, cancelled or reduced in any way, then upon such
claim being upheld, conceded or compromised, each Guarantor
will take all steps and sign all such documents as may be
necessary or convenient to restore those rights or equivalent
rights to the Bank; and
(c) (Costs and expenses): the Guarantors will pay to each Agent
and each Bank all costs and expenses (including legal costs
and expenses as between solicitor and own client) incurred by
each Agent and each Bank in or in connection with any
negotiations or proceedings relating to any such claims.
20.11 Insolvency
No Guarantor will lodge any proof of debt or similar claim under any
Insolvency Provision in relation to any Obligor or any Guarantor in
competition with any Agent or any Bank. Each Guarantor irrevocably
authorises the Security Agent to prove as its attorney for all money
which it may be entitled to from an Obligor or any Guarantor and to
retain and to carry to a suspense account and appropriate at the
discretion of the Security Agent (but for the benefit of the Banks) any
amount so received until with the aid thereof each Bank has been paid
100 cents in the dollar in respect of the indebtedness of an Obligor or
each Guarantor as the case may be.
20.12 No set-off, counterclaim, etc.
No Guarantor will seek to reduce or avoid its liability under a
Transaction Document by raising any defence, set-off or counterclaim
available to any Agent or an Obligor or any other Guarantor.
20.13 Restriction on Guarantor's dealings
No Guarantor will, without the Facility Agent's prior written consent
(which the Facility Agent may withhold in its discretion and acting on
the instructions of the Majority Banks):
(a) (No proceedings): institute any proceedings against any other
Obligor;
(b) (No demand): make any demand for, or accept any money in part
or complete satisfaction of, any liability on any account of
any other Obligor other than as permitted under this Agreement
or for a liability arising out of the supply of goods and
services by the Guarantor to that Obligor in the ordinary
course of that Guarantor's ordinary business at a rate and on
terms not exceeding and not more onerous than usually found
for the supply of such goods and services by parties dealing
at arm's length;
62.
(c) (No enforcement of Securities): enforce any Encumbrance now or
hereafter held by it (either alone or with others) in respect
of any such liability as aforesaid; or
(d) (No set-off): set-off any money owing by the Guarantor against
any liability owing to the Guarantor by any other Obligor or
permit any Obligor to set off any money owing by the Obligor
against any liability owing to that Obligor by the Guarantor.
20.14 Release of Obligor
Notwithstanding any presumption or principle of law to the contrary, an
Agent or a Bank may in relation to any Obligor enter into a covenant
not to xxx, issue process, sign judgment and execute or commence
proceedings for the bankruptcy or liquidation of any one or more of
such resultant judgment debtors, participate in any official
management, scheme of arrangement or reconstruction, prove in any
bankruptcy or liquidation and do any other act, matter or thing in
respect of that Obligor's liability without thereby in any way
impairing or reducing the liability of any Guarantor or other Guarantor
(as the case may be) to the other Agents, the other Banks or any of
them under this Agreement.
20.15 Conditions precedent
The Facility Agent may waive, dispense with or accept such evidence as
in its absolute discretion it sees fit in relation to the satisfaction
of any condition precedent contained in any Transaction Document or
otherwise for the grant of any advances or financial accommodation to
or for the account of the Borrower, and the Guarantors' liability
hereunder shall not be affected or in any way impaired by any exercise
by the Facility Agent of that discretion.
20.16 Claim on the Guarantors
(a) An Agent or a Bank shall not make any demand or claim on a
Guarantor under this clause 20 unless an Obligor or a
Guarantor has failed in the due and punctual payment of any of
its Obligations.
(b) Neither an Agent nor a Bank shall be required to make any
claim or demand on an Obligor or on any other Guarantor, or to
enforce any Transaction Document or any other right, power or
remedy against any Obligor, before making any demand or claim
upon any Guarantor under this clause 20.
20.17 Subrogation
No Guarantor will seek the transfer to it of any Security which is
subject to an agreed order of priority in the Security Agent's or any
Bank's hands under any right of subrogation, unless and until it has
entered into a deed under which it undertakes to be bound by the
priority affecting such Security with the other parties to such agreed
order of priority.
63.
20.18 General waiver by Guarantors
The Guarantors expressly waive all rights inconsistent with the
provisions of this Agreement, including all rights as to contribution,
indemnity or subrogation which they might otherwise be entitled to
claim and enforce until the Obligations have been paid in full.
20.19 Judgment
Any judgment obtained against the Borrower is conclusive as against
each Guarantor.
21. ADDITIONAL GUARANTORS AND SECURITY
21.1 Additional Guarantors
(a) The Borrower and each Guarantor shall procure that any wholly
owned member of the Group which is not a Guarantor shall
become, promptly, but no later than 90 days, after being
required by the Facility Agent on the instructions of the
Majority Banks to become, an Additional Guarantor by entering
into an Accession Agreement, subject to any provision of law
prohibiting that person from becoming an Additional Guarantor.
(b) Where any such prohibition as is referred to above exists, the
Borrower and each Guarantor shall use its reasonable
endeavours lawfully to overcome the prohibition, and the
Facility Agent (acting at the direction of the Majority Banks)
may (but shall not be obliged to) agree with the potential
Additional Guarantor concerned limitations on its liability as
an Additional Guarantor under this Agreement and other
amendments (applying only in relation to that Additional
Guarantor) to this Agreement or to the relevant Accession
Agreement.
(c) On each date that an Accession Agreement is entered into the
Borrower shall procure that each of the documents listed in
paragraphs 1, 3, 4, 5, 9, 10 and 15 of Schedule 4 (as
appropriate) are delivered in respect of the Additional
Guarantor and the Accession Agreement in form and substance
satisfactory to the Facility Agent.
21.2 Security
(a) The Borrower and each Guarantor shall execute and deliver to
the Security Agent such further or additional Securities in
such form and in relation to such of its assets as the
Majority Banks shall reasonably require subject to any
provision of law prohibiting such person from entering into
such Security.
(b) Where any such prohibition as is referred to above exists, the
Borrower and each Guarantor shall use their reasonable
endeavours lawfully to overcome the prohibition, and the
Security Agent may (but shall not be obliged to) agree with
the relevant Obligor limitations on the extent of the security
granted by it.
64.
(c) The Obligors shall at their own expense execute and do all such
assurances, acts and things as the Security Agent or the Majority
Banks may reasonably require for perfecting or protecting the
security intended to be afforded by the Securities or for
facilitating the realisation in accordance with the Securities of
all or any part of the assets which are subject to the Securities
and the exercise of all powers, authorities and discretions
vested in the Security Agent under the Securities or in any
receiver of all or any part of those assets and in particular
shall execute all transfers, conveyances, assignments and
releases of that property whether to the Security Agent or to its
nominees and give all notices, orders and directions which the
Security Agent may reasonably think expedient for the purpose of
this clause 21.2(c).
(d) The Obligors shall procure that in relation to each further or
additional Security the relevant Borrower or Guarantor shall do
all things necessary duly to perfect in the jurisdiction of its
incorporation and in the jurisdiction wherein the assets which
are the subject of the further or additional Securities are
located, the security intended to be afforded to the Agents and
the Banks under such further or additional Securities and shall
deliver to the Facility Agent such directors and shareholders
resolutions, legal opinions, notices, certificates or documents
of title or other items as the Facility Agent shall reasonably
require.
21.3 Additional Security
Notwithstanding clause 21.2(a), the Borrower and each Guarantor shall:
(a) procure that any person who becomes a wholly owned subsidiary of
an Obligor executes and delivers in a timely manner and does all
things necessary to provide security in form and substance
satisfactory to the Facility Agent over all of its assets and
undertakings; and
(b) ensure that any Security Property relating to the Securities
referred to in clause 21.3(a) shall be free and clear of any
Encumbrances other than Encumbrances permitted under clause
17.3(a) or the Securities.
22. RELEASE OF GUARANTORS AND SECURITY
22.1 Guarantors
Subject to clause 22.3, at the time of completion of any sale or other
disposal to a person or persons outside (and which will remain outside)
the Group of all of the shares in the capital of any Guarantor (or of
all of the shares in any other member of the Group (other than the
Borrower) such that any Guarantor ceases as a result thereof to be a
member of the Group) and in such other circumstances (if any) as all
the Banks may from time to time agree in writing, such Guarantor shall
be released from all past, present and future liabilities (both actual
and contingent) hereunder and under the Securities to which it is a
party, and the security provided over its assets under the Securities
will be released.
65.
22.2 Assets
Subject to clause 22.3, at the time of completion of any sale or other
disposal to a person or persons outside (and which will remain
outside) the Group of any assets owned by an Obligor over which
security has been created by the Securities to which that Obligor is
party, those assets shall be released from such security.
22.3 Conditions for Release
The release of the guarantees and security referred to in clause 22.1
and 22.2 above shall only occur if:
(a) either:
(i) such disposal will not result directly or indirectly
in any breach of any of the terms of this Agreement;
or
(ii) such disposal is being effected at the request of the
Majority Banks in circumstances where any of the
security created by the Securities has become
enforceable; or
(iii) such disposal is being effected by enforcement of the
Securities; or
(iv) all Banks agree to the release; and
(b) the Net Proceeds arising out of such disposal will be applied
strictly in accordance with the requirements of this
Agreement; and
(c) any assets to be transferred to other members of the Group
before completion of such disposal shall have been so
transferred and (if so required by the Majority Banks)
security over such assets shall have been granted to the
Security Agent to its satisfaction; and
(d) the Security Agent shall have executed such documents
effecting such release as shall be reasonably required to
achieve such release as aforesaid (and the Security Agent
shall execute such documents at the expense of the relevant
Obligor promptly upon (and only upon) it being satisfied that
the conditions in (a), (b) and (c) above are satisfied or have
been waived by all of the Banks).
22.4 Release of Group Members
If any person which is a member of the Group (other than the Borrower)
shall cease to be such a member in consequence of the enforcement of
any of the Securities or in consequence of a disposal of the shares
therein effected at the request of the Majority Banks in circumstances
where any of the security created by the Securities has become
enforceable, any claim which any Obligor may have against such person
or any of its Subsidiaries in or arising out of this Agreement or any
of the Securities (including, without limitation, any claim by way of
subrogation to the rights of the Agents and the Banks against such
person under the Transaction Documents and any claim by way of
contribution or indemnity) shall be released automatically and
immediately upon such person ceasing to be a member of the Group.
66.
22.5 Restructure of Group
The Facility Agent and Security Agent are hereby authorised to execute
the Deed of Consent and Release in the form of Annexure A and to give
all releases, discharges and consents required in that document without
any further approval from the Banks.
23. INDEMNITY
The Borrower and each Guarantor shall on demand by the Facility Agent
indemnify each Bank against any loss, cost or reasonable out of pocket
expenses which the Bank may sustain or incur as a consequence of:
(a) any sum payable by the Borrower or a Guarantor hereunder not
being paid when due;
(b) the occurrence of any Event of Default or Potential Event of
Default;
(c) an Advance requested in a Utilisation Notice not being
provided for any reason including failure to fulfil any
condition precedent but excluding any default by the Bank
claiming an indemnity pursuant to this clause; or
(d) the Bank receiving payments of principal other than on the
last day of an Interest Period or when due for any reason,
including, without limitation, prepayment in accordance with a
Transaction Document.
Such losses, costs or expenses shall include the amount determined in
good faith by the Bank as being any loss including loss of margin,
cost or expense incurred by reason of the liquidation or re-employment
of deposits or other funds acquired or contracted for by the Bank to
fund or maintain any such Advance or amount.
24. AGENTS
24.1 Appointment
The Facility Agent and the Security Agent are hereby appointed and
authorised to act on behalf of each Bank with power to enter into each
Transaction Document and to exercise such rights, remedies, powers and
discretions as are specifically delegated to them under the Transaction
Documents together with such rights, remedies, powers and discretions
as are reasonably incidental thereto. The Agents do not have any
duties, obligations or liabilities to the Banks or any of them beyond
those expressly stated in this Agreement and the Transaction Documents.
24.2 Relationships
(a) Nothing contained in this Agreement, and no action taken by
the Banks pursuant hereto, shall be deemed to constitute the
Banks a partnership, association, joint venture or other
entity.
67.
(b) In performing their respective functions and duties under the
Transaction Documents, the Agents shall act solely on behalf
of the Banks and do not assume and shall not be deemed in any
circumstances whatsoever to have assumed any responsibility,
liability or obligation, towards, or relationship of agency or
trust with, or for, the Obligors.
24.3 Communications
Except where this Agreement otherwise expressly provides, all
communications to be made between an Obligor and the Banks or any of
them concerning the Facility shall be made by or through the Facility
Agent.
24.4 Instructions of Majority
Subject to clause 24.5, the Facility Agent must act or refrain from
acting in the exercise of any right or power, or as to any matter not
expressly provided for by this Agreement, in accordance with the
instructions of the Majority Banks and shall be fully protected in so
doing. Any such instructions shall be binding on all the Banks. In the
absence of any such instructions, the Facility Agent may act or refrain
from acting as it sees fit, provided that. 66. it has used reasonable
endeavours to obtain such instructions. In no event, however, shall the
Facility Agent be required to take any action which exposes, or is
likely to expose, it to personal liability unless it is indemnified to
its reasonable satisfaction, or which is contrary to this Agreement or
any law, regulation or directive.
24.5 Amendments
If authorised by the Majority Banks, the Facility Agent or (in the case
of any Security) the Security Agent may (except where any other
authority is required for the same by the express provisions of the
Transaction Documents) grant waivers or consents or (with the agreement
of the Borrower) vary the terms of the Transaction Documents. Any such
waiver, consent or variation so authorised and effected by the relevant
Agent shall be binding on all the Banks and the relevant Agent shall be
under no liability whatsoever in respect of any such waiver, consent or
variation, provided always that, except with the prior written consent
of all the Banks and the Borrower, nothing in this clause shall
authorise:
(a) the extension of any Availability Period; or
(b) any variation of the definition "Majority Banks" in clause 1.1;
or
(c) any extension of the date for, or alteration in the amount or
currency of, or waiver of any payment of principal, interest,
Utilisation Margin, fee, commission or any other amount payable
under any of the Transaction Documents; or
(d) any change to any Bank's Commitment; or
68.
(e) any variation of clauses 11.6, 12, 26 or this clause 24.5; or
(f) any variation of any provision wherein (before such variation) it
is provided that certain things may not be done without or may be
done with the consent or approval of all the Banks; or
(g) any waiver or consent in relation to, or variation of the
material provisions of, any Security or clause 20 or 21 of this
Agreement; or
(h) (save as otherwise expressly provided for elsewhere in this
Agreement or the relevant Security) any release of the security
provided by any of the Securities over any asset.
24.6 No need for inquiries
No Obligor shall be concerned to inquire as to whether any Agent has
been given any instructions by the Majority Banks or as to the terms of
any instructions so given and may rely on all notices from any Agent
without the need to make further enquiry.
24.7 Delegation
Each Agent may from time to time delegate the performance of its duties
and obligations as Agent. The Banks and each Obligor agree that any
delegate of the duties and obligations of the Agent will be entitled to
the benefit of the provisions of this clause 24 as if it were the Agent
and, without limitation, will not be responsible or liable for any
damage, cost, loss or expense they or any of them may suffer or incur
as a result of or in connection with an act or omission or negligence
of the delegate except to the extent arising as a direct result of the
gross negligence or wilful misconduct of the delegate.
24.8 Agent not bound to Enquire
The Agents are not obliged to ascertain or enquire:
(a) either initially or on a continuing basis, as to the credit or
financial condition or affairs of the Obligors or any other
person; or
(b) as to the performance or observance by the Obligors or any other
person of any of the terms of any Transaction Document; or
(c) whether any Event of Default or Potential Event of Default has
occurred.
24.9 Default
No Agent shall be obliged to make any inquiry as to whether an Obligor
is in breach of, or in default under a Transaction Document or as to
the existence of an Event of Default or Potential Event of Default and
shall not be deemed to have any knowledge of the occurrence of such a
breach, default, Event of Default or Potential Event of Default unless
it has received express written notice thereof from a Bank or an
Obligor, stating that such notice is a "Notice of Default" and
describing the breach, default, Event of Default or Potential Event of
Default. In the event that an Agent receives such a notice, or
otherwise acquires actual notice of an Event of Default or Potential
Event of Default it shall promptly notify the Banks. Subject to its
69.
being indemnified to its satisfaction, each Agent shall take such
action with respect to an Event of Default as it shall be directed to
take by the Majority Banks. Until an Agent receives such directions it
may (but shall not be obliged) take or refrain from taking such action
as it shall in its absolute discretion deem advisable in the best
interests of the Banks.
24.10 Agents as Banks
With respect to its own rights as a Bank (if any), each Agent shall
have the same rights and powers under each Transaction Document as any
other Bank and may exercise the same as though it were not performing
the duties and functions delegated to it as an Agent and the term
"Banks" shall include the Agents in their individual capacity as a
Bank.
24.11 Agent's dealings
The Agents may, without any liability to account to the Banks or any of
them, accept deposits from, lend money to and generally engage in any
kind of banking or financial, trust or other business with any Obligor
as if they were not Agents and may accept fees and other consideration
from any Obligor for services in connection with any Transaction
Document or otherwise without having to account for the same to the
Banks.
24.12 Notices and reports
Promptly after its receipt thereof, the Facility Agent will provide to
each Bank a copy of each report, notice or other document required
under this document or a Transaction Document to be delivered to the
Facility Agent by an Obligor.
24.13 Not responsible
(a) The Agents shall not be responsible to any Bank for failure of an
Obligor to perform its obligations under a Transaction Document,
an Obligor's financial condition, the completeness or accuracy of
any statements, representations or warranties in a Transaction
Document, the Information Memorandum or any document delivered
under or in connection with a Transaction Document, the valid
execution, effectiveness, adequacy, genuineness, validity,
enforceability or admissibility in evidence of a Transaction
Document or any such other document or the failure of any party
to perform and observe its obligations under a Transaction
Document.
(b) Each Bank acknowledges that it has not relied on any statement,
opinion, forecast or other representation made by any Agent to
induce it to enter into this Agreement or agree to participate in
the Facility whether made in the Information Memorandum or
otherwise and that it has made and (without reliance on any Agent
and based on such documents as it considers appropriate) it will
continue to make its own appraisal of the affairs and financial
condition of each Obligor and its own decisions as to whether or
not to take action under a Transaction Document.
70
(c) The Agent will not be obliged on a continuing basis or at a
particular time to provide any Bank with any financial or
other information with respect to an Obligor other than as
provided in clause 24.12.
(d) Without limitation to clause 24.9, the Agent will not be
obliged to keep itself informed as to the performance and
observance by the Obligors of their respective obligations and
responsibilities under this document and the Transaction
Documents.
(e) The Agent shall not be liable for any cost, loss, damage or
expense of whatsoever nature suffered or incurred by a Bank or
any other person except to the extent arising as a direct
result of the gross negligence or wilful misconduct of the
Agent.
24.14 Indemnity
Each Bank shall reimburse each Agent rateably in accordance with
Commitments (to the extent that it is not reimbursed by the Borrower)
on demand, for charges and expenses incurred by it in connection with
the negotiation, preparation, execution, stamping and registration of
the Transaction Documents, in contemplation of, or otherwise in
connection with, the enforcement or preservation of any rights under a
Transaction Document or in carrying out its duties as an Agent under
the Transaction Documents including, in each case, the fees and
expenses of legal and other professional advisers. Each Bank shall
indemnify each Agent rateably in accordance with its Commitments
against all liability, damage, costs, claims and expenses suffered or
incurred or made against an Agent in connection with a Transaction
Document, the performance or purported performance of its duties as
Agent under a Transaction Document or any action taken or omitted to be
taken by an Agent under (or purportedly under) a Transaction Document
except to the extent, however, that such liability, damage, cost, claim
or expense directly results from the Agent's gross negligence or wilful
misconduct.
24.15 Observe laws
Each Agent may refrain from doing anything which would or might in its
opinion either be contrary to any relevant law of any relevant
jurisdiction or any official directive or render it liable to any
person and may do anything which in its opinion is necessary to comply
with any relevant law or official directive.
24.16 Replacement
(a) The Facility Agent (the "retiring Agent") may:
(i) resign at any time by giving not less than 20 Banking
Days' written notice thereof to the Banks and the
Borrower; and
(ii) be removed from office upon not less than 20 Banking
Days' prior written notice signed by or on behalf of
the Majority Banks.
71.
(b) Where the retiring Agent is also the Security Agent, the removal
referred to in paragraph (a)(ii) above pursuant to this clause
24.16 shall also effect the removal of the Security Agent. The
Borrower and the Banks acknowledge that the giving of a notice of
removal of the retiring Agent pursuant to paragraph (a)(ii) above
shall be deemed to be notice in writing to the Borrower and the
Banks of the intention of the Security Agent to retire as trustee
pursuant to clause 8.2 of the Debenture Stock Trust Deed.
(c) Upon receipt of a notice of resignation from the retiring Agent,
or the giving of a notice of removal of the retiring Agent, the
Majority Banks shall have the right, in consultation with the
Borrower, to appoint a successor Facility Agent. In the case only
of resignation of the retiring Agent, if within 20 Banking Days
after the giving of a notice of resignation, no successor Agent
has been appointed, the retiring Agent may, in consultation with
the Borrower, appoint a successor Facility Agent which shall be a
reputable and experienced financier having an office in Sydney.
(d) The resignation or removal of the retiring Agent and the
appointment of the successor Facility Agent shall both become
effective upon the successor Facility Agent notifying the Banks
and the Borrower of its acceptance of such appointment, and
specifying for the purposes of this Agreement an office in
Sydney. Upon giving such notification, the successor Facility
Agent shall succeed to and be vested with all the rights,
obligations, powers and duties and privileges of the Facility
Agent under the Transaction Documents in place of the retiring
Agent and the retiring Agent shall be discharged from its duties
and obligations under the Transaction Documents.
(e) The provisions of this clause 24 shall continue in effect for the
benefit of a retiring Agent in respect of any actions taken or
omitted to be taken while the retiring Agent was acting as an
Agent.
24.17 No authority
Each Bank acknowledges and agrees that it does not have authority on
behalf of the other Banks to waive any right or remedy of the Banks or
the Agents or to modify or vary, or agree to modify or vary, any
provision of any Transaction Document.
24.18 Security Agent as Trustee
(a) The Security Agent in its capacity as trustee or otherwise shall
not be liable for any failure, omission, or defect in perfecting
the security constituted by the Securities.
(b) The Security Agent in its capacity as trustee or otherwise may
accept without enquiry such title as an Obligor may have to the
property over which security is intended to be created by the
Securities.
(c) Each Bank hereby confirms its approval of the Transaction
Documents and any security created pursuant thereto and hereby
authorises, empowers and directs the Security Agent (by itself or
by such person(s) as it may nominate) to execute and enforce the
same as trustee or as otherwise provided (and whether or not
expressly in the Banks' names) on its behalf.
72.
24.19 Permitted Lease Transaction
The Banks acknowledge that they have consented in principle to the
implementation of Permitted Lease Transactions. The Facility Agent and
the Security Agent are authorised as agent for the Banks to negotiate,
agree and execute all documents necessary to effect a Permitted Lease
Transaction without further authority from the Banks provided that the
Facility Agent and the Security Agent are satisfied that the
requirements of a Permitted Lease Transaction set out in Schedule 12
are satisfied.
25. SET-OFF
Each Obligor authorises each Bank at any time after an Event of Default
has occurred and is continuing to apply without prior notice any credit
balance (whether or not then due) to which the Obligor is at any time
entitled on any account at any office of the Bank in or towards
satisfaction of any sum then due and unpaid from that Obligor to the
Bank and the Obligors each further authorise each Bank without prior
notice at any time after an Event of Default has occurred and is
continuing to set-off any amount owing (whether present or future,
actual, contingent or prospective and on any account whatsoever) by
that Obligor against any liability (whether present, future, actual,
contingent or prospective) of the Obligor hereunder or on any other
account whatsoever. No Bank shall be obliged to exercise any of its
rights under this clause, which shall be without prejudice and in
addition to any right of set-off, combination of accounts, lien or
other right to which it is at any time otherwise entitled (whether by
operation of law, contract or otherwise). Each Bank shall notify the
Facility Agent and the relevant Obligor forthwith upon its exercise of
a right of set-off involving any Obligor giving full details in
relation thereto and the Facility Agent shall inform the other Banks.
26. PRO RATA SHARING
If at any time the proportion which a Bank ("Overpaid Bank") has
received or recovered by set-off or otherwise in respect of its portion
of any sum due from an Obligor to the Banks under the Transaction
Documents is greater (the amount of the excess being herein referred to
as the "excess amount") than the proportion thereof received or
recovered by the Bank receiving or recovering the smallest or no
proportion thereof, then:
(a) the Overpaid Bank shall promptly notify the Facility Agent;
(b) the Overpaid Bank shall, within 10 Banking Days of such
notification, pay to the Facility Agent an amount equal to the
excess amount;
(c) the Facility Agent shall treat such payment as if it were a
payment by the Obligor on account of the sum owed to the Banks
as aforesaid; and
(d) at the option of the Overpaid Bank:
73.
(i) subject to clause 26(f), the liability of the Obligor
to the Overpaid Bank shall be increased (or treated
as not having been reduced); or
(ii) the Obligor shall fully indemnify the Overpaid Bank
making such payment for the amount thereof;
provided that:
(e) if a Bank has commenced an action or proceeding in any court to
recover sums owing to it pursuant to this Agreement or a
Transaction Document and as a result thereof, or in connection
therewith, has received an excess amount, the Bank shall not be
required to share any portion of such excess amount with a Bank
which was notified of such legal action or proceeding and which
had the legal right to, but did not, join such action or
proceeding or commence and diligently prosecute a separate action
or proceeding to enforce its rights in the same or another court;
and
(f) if all or a portion of the relevant receipt or payment by or to
an Overpaid Bank is thereafter rescinded or must otherwise be
restored to an Obligor, the Banks shall repay to the Facility
Agent for the account of the Overpaid Bank such amount as shall
be necessary to ensure that (subject to clause 26(e)) all the
Banks share rateably in the amount of the receipt or payment
retained by the Overpaid Bank and the provisions of clause 26(c)
and (d) shall apply only to the retained amount.
27. EXPENSES AND STAMP DUTIES
27.1 Expenses
The Borrower on demand by the Facility Agent will pay to or at the
direction of the Facility Agent all reasonable out of pocket expenses
including but not limited to legal fees, costs and disbursements (on a
solicitor/own client basis) assessed without the necessity of
taxation, incurred or payable by the Facility Agent or the Security
Agent (except that the Borrower will only be liable to pay the legal
fees and disbursements of one firm acting for the Agent and Banks and
is not liable to pay any legal fees, costs and expenses incurred by
any Banks instructing separate legal counsel) in connection with:
(a) the preparation and negotiation of the Transaction Documents
and the Securities and any subsequent consent, agreement,
approval or waiver thereunder or amendment thereto;
(b) the execution of the Transaction Documents and the Securities
and any subsequent consent, agreement, approval or waiver
thereunder or amendment thereto;
(c) the enforcement, attempted enforcement or the preservation of
any rights under the Transaction Documents and the Securities
including, without limitation, any expenses incurred in the
evaluation of any matter of material concern to the Facility
Agent or the Security Agent;
74.
(d) the obtaining of persons to participate in the Facility as
Banks (including, without limitation, advertising,
accommodation, travelling and out-of-pocket expenses); and
(e) the carrying out by the Agents (or any delegate of the Agents)
of any of their duties under the Transaction Documents.
27.2 Stamp duties
(a) (Payment of all duties): The Borrower must pay all stamp, loan
transaction, registration and similar Taxes, including fines
and penalties, financial institutions duty and debits tax
which may be payable to or required to be paid by any
appropriate authority or determined to be payable in
connection with the execution, delivery, performance or
enforcement of the Transaction Documents or any payment,
receipt or other transaction contemplated by them.
(b) (Indemnity): The Borrower will indemnify and keep indemnified
the Agents and each Bank against any loss or liability
incurred or suffered by it as a result of the delay or failure
by the Borrower to pay such Taxes.
28. ASSIGNMENTS AND CONFIDENTIALITY
28.1 Successors and assigns
This Agreement is binding on and enures to the benefit of each party
hereto and its respective successors and permitted assigns.
28.2 Assignments by the Borrower
The Borrower cannot assign any of its rights under any Transaction
Document without the prior written consent of the Facility Agent acting
with the approval of all the Banks.
28.3 Banks
A Bank may assign all or any of its rights or transfer all or any of
its rights and obligations under the Transaction Documents to another
bank or financial institution at any time if:
(a) it has first consulted with the Borrower regarding the
identity of the new Bank;
(b) any necessary prior authorisation from any relevant
governmental authority or department is obtained;
(c) in the case of an assignment of rights only, the Facility
Agent has received notice of the assignment under which the
assignee irrevocably authorises the assignor to act as the
assignee's agent with full power and authority to exercise the
rights assigned and to receive (and give valid receipts for)
all money payable under the Transaction Documents in respect
of those rights;
75.
(d) in the case of a transfer of rights and obligations, such
transfer is effected by a substitution in accordance with
clause 28.4;
(e) it receives the prior consent of the Facility Agent, which
consent will not be unreasonably withheld or delayed; and
(f) other than where the relevant Bank is an Agent or Toronto
Dominion Australia Limited, it pays to the Facility Agent a
transfer fee of A$2,000.
28.4 Substitution
(a) If a Bank wishes to transfer all or any of its rights and
obligations under the Transaction Documents to a bank or
financial institution, it and the proposed transferee shall in
Canberra or such other location in Australia agreed by the
Borrower or outside Australia execute and deliver to the
Facility Agent 4 counterparts of the Substitution Certificate.
(b) On receipt of a Substitution Certificate the Facility Agent
shall (if it is satisfied that the substitution complies with
clause 28.3) promptly:
(i) notify the Borrower and each other Bank;
(ii) countersign in Canberra or outside Australia the
counterparts on behalf of all other parties to this
Agreement;
(iii) enter the transfer in a register kept by it (which
shall be conclusive); and
(iv) retain one counterpart and deliver one counterpart
to each of the relevant transferor and transferee
and to the Borrower.
(c) On any such certificate being countersigned by the Facility
Agent the transferor shall be relieved of its obligations to
the extent and from the date specified in such certificate and
the transferee shall be bound by the Transaction Documents to
the extent and from the date stated in the certificate.
(d) Each other party to this Agreement irrevocably authorises the
Facility Agent to sign each such certificate on its behalf and
acknowledges that:
(i) upon such a certificate being signed by the Facility
Agent it shall be deemed for all purposes to have
consented to the transfer of obligations provided for
in the certificate; and
(ii) it will continue to be bound by the provisions of the
Transaction Documents accordingly.
(e) Unless the Facility Agent otherwise agrees, no transfer of a
Bank's obligations may be effected while any Utilisation
Notice is current.
76.
28.5 Increased Costs and Illegality
If any change in lending office of any Bank or assignment or
substitution of or with respect to all or any part of the rights or
obligations of a Bank under this Agreement pursuant to clause 28.3 or
28.4 is made which results (or would but for this clause result) at the
time thereof in amounts becoming payable under clauses 12.2 or 14.l,
then the assignee or transferee (or, in the case of a change in lending
office, the Bank) shall be entitled to receive such amounts only to the
extent that the assignor or transferor would have been so entitled had
there been no such assignment, transfer or change in lending office.
Nothing in this clause will affect the rights of an assignee or
transferee under clauses 12.2 or 14.1 in relation to amounts which may
become payable after the time of assignment or transfer. No such
assignment or transfer shall be made if the assignee or transferee
would be entitled immediately afterwards to give notice under clause
13.
28.6 Sub-participation
Any Bank shall be entitled freely to enter into any sub-participation
or other arrangement with any third party relating to the Transaction
Documents which does not transfer to that third party any obligation
and/or any legal or equitable interest in any of the rights arising
under this Agreement.
28.7 Stock Certificates
(a) In addition to execution and delivery of the Substitution
Certificate pursuant to clauses 28.3 and 28.4, the proposed
transferee will subscribe for Stock in accordance with the
terms of the Debenture Stock Trust Deed.
(b) The Borrower will issue and register the Stock subscribed for
pursuant to clause 28.7(a) in accordance with the terms of the
Debenture Stock Trust Deed.
(c) Each Bank must consent to the issue of the Stock referred to
in clause 28.7(b), as required by the Debenture Stock Trust
Deed.
(d) If the transferor Bank has transferred all of its rights and
obligations under the Transaction Documents in accordance with
this clause, it must agree to the cancellation of any Stock
held by it. The Borrower must take all steps necessary to
cancel such Stock.
28.8 Related Entities
(a) Notwithstanding clause 28.3(a) and (e), a Bank may assign all
or any of its rights or transfer all or any of its rights and
obligations under the Transaction Documents to a related
entity of equal or better credit standing to that of the Bank
provided that the Bank has given prior written notice of such
transfer to the Borrower. The parties agree that such an
assignment or transfer will be at no cost to the Borrower.
77.
(b) Notwithstanding clause 28.9, a Bank shall be entitled to disclose
any confidential information or documents to a related entity
provided that the Bank advises such entity of the confidential
nature of the information or documents or that nature is clear
from the circumstances of the disclosure.
28.9 Confidentiality
(a) Subject to clause 28.9(b), no Bank shall disclose any
confidential or unpublished information or documents supplied by
an Obligor in connection with the Transaction Documents which are
specifically indicated by the Obligor to be confidential.
(b) A Bank shall be entitled to disclose any confidential information
or documents:
(i) in any proceeding arising out of or in connection
with any Transaction Document to the extent that such
disclosure is deemed by the Bank necessary to protect
its interests;
(ii) if required to do so under a binding order of any
governmental or semi-governmental authority or
department or any procedure for discovery in any
proceedings;
(iii) if required to do so under any law or any
administrative guideline, directive, request or
policy whether or not having the force of law and, if
not having the force of law, the observance of which
is in accordance with the practice of responsible
bankers or financial institutions;
(iv) otherwise as required or permitted by any Transaction
Document;
(v) to its legal advisers and its consultants as long as
it advises them of the confidential nature of the
information or documents or that nature is clear from
the circumstances of the disclosure;
(vi) to a proposed assignee or transferee or
sub-participant with the prior written consent of the
Borrower which consent shall not unreasonably be
withheld or delayed and will be deemed to have been
given if not refused within 15 Banking Days of a
request therefor;
(vii) relating to its level of exposure to any Obligor
under any Hedging Agreement or on any other account,
to any Agent or any other Bank; or
(viii) with the prior written consent of the Borrower.
(c) This clause 28.9 shall survive the termination of this Agreement.
28.10 Bond Issue or Refinancing
The Banks acknowledge that the Borrower may wish to restructure all or
part of this Facility as an issue of debentures or other form of debt
instrument to be offered to financial institutions. The Banks agree to
consider in good faith any proposal to refinance all or part of this
Facility by the issue of debentures or other debt instruments and to
enter into any necessary documents to regulate the sharing of security
and voting on terms reasonably acceptable to them.
78.
29. GOVERNING LAW AND JURISDICTION
29.1 Governing law
This Agreement is governed by and construed in accordance with the laws
applying in New South Wales.
29.2 Jurisdiction
(a) (Acceptance of jurisdiction): Each of the Obligors irrevocably
submits to and accepts, generally and unconditionally, the
non-exclusive jurisdiction of the courts and appellate courts
of New South Wales with respect to any legal action or
proceedings which may be brought at any time relating in any
way to any Transaction Document.
(b) (No objection to inconvenient forum): Each of the Obligors
irrevocably waives any objection it may now or in the future
have to the venue of any action or proceedings relating to a
Transaction Document including any objection it may now or in
the future have that any such action or proceeding has been
brought in an inconvenient forum.
30. MISCELLANEOUS
30.1 Certificate of Agent
A certificate in writing signed by an officer of the Facility Agent
certifying the amount payable by an Obligor hereunder or stating any
other act, matter or thing relating to any Transaction Document is
prima facie and binding on each Obligor in the absence of manifest
error on the face of the certificate.
30.2 Notices
Any notice or other communication which must be given, served or made
under or in connection with any Transaction Document:
(a) must be in writing in order to be valid;
(b) is sufficient if executed by the party giving, serving or
making the same or on its behalf by any attorney, director,
secretary, other duly authorised officer or solicitor of such
party;
(c) will be deemed to have been duly given, served or made in
relation to a person if it is delivered or posted by prepaid
post to the address, or sent by facsimile to the number of
that person set out herein (or at such other address or number
as is notified in writing by that person to the other parties
from time to time); and
(d) will be deemed to be given, served or made:
(i) (in the case of prepaid post) on the fifth day after
the date of posting;
79.
(ii) (in the case of facsimile) on receipt of a
transmission report confirming successful transmis-
sion; and
(iii) (in the case of delivery by hand) on delivery.
30.3 Continuing obligation
Each Transaction Document constitutes a continuing obligation
regardless of any settlement of account, intervening payment, express
or implied revocation or any other matter or thing, until a final
discharge thereof has been given to the Borrower and the Guarantors.
30.4 Settlement conditional
Any settlement or discharge between the Agents, the Banks and the
Borrower and/or the Guarantors is conditional on any security or
payment given or made by the Borrower, any Guarantor or any other
person in relation to the Obligations not being avoided, repaid or
reduced by virtue of any Insolvency Provision. If such security or
payment is so avoided, repaid or reduced, the Agents and the Banks are
entitled to recover the value or amount of such security or payment
avoided, repaid or reduced from the Borrower and the Guarantors
subsequently as if such settlement or discharge had not occurred.
30.5 Indemnities
Each indemnity in this Agreement is a continuing obligation of the
Borrower and each Guarantor (severally), separate and independent from
the other obligations of the Borrower and each Guarantor and survives
termination of this Agreement. It is not necessary for any Agent or
Bank to incur expense or make payment before enforcing a right of
indemnity conferred by this Agreement.
30.6 Further assurance
The Borrower and the Guarantors on demand by the Facility Agent or the
Security Agent and at the entire cost and expense of the Borrower and
the Guarantors will perform all such acts and execute all such
agreements, assurances and other documents and instruments as the
Facility Agent reasonably requires to perfect or improve the rights and
powers afforded, created, or intended to be afforded or created, by any
Transaction Document.
30.7 Attorney
Each Obligor hereby irrevocably appoints:
(a) the Agents and each Bank, severally;
(b) each director and secretary and authorised officer from time
to time of each Agent and each Bank; and
80.
(c) any duly appointed agent of the Agents and each Bank,
jointly and severally the attorney of the Obligor, in the Obligor's
name and on the Obligor's behalf, at any time from time to time while
an Event of Default subsists and in such manner as the relevant Agent
or the relevant Bank, as the case may be, in its absolute discretion
shall think fit to:
(d) do all acts necessary or proper to further or fully assure any
Transaction Document or any Xxxx to the Bank; and
(e) do all acts necessary or proper to perfect or improve the
rights and powers afforded or created, or intended to be
afforded or created, by any Transaction Document.
30.8 Severability of provisions
Any provision of any Transaction Document which is illegal, void or
unenforceable will be ineffective to the extent only of such
illegality, voidness or unenforceability without invalidating the
remaining provisions hereof or thereof.
30.9 Remedies cumulative
The rights and remedies conferred by this Agreement on the Agents or
the Banks are cumulative and in addition to all other rights or
remedies available to the Agents or the Banks by law or by virtue of
any Transaction Document.
30.10 Waiver
A failure to exercise or enforce or a delay in exercising or enforcing
or the partial exercise or enforcement of any right, remedy, power or
privilege arising under any Transaction Document by the Agents or the
Banks will not in any way preclude, or operate as a waiver of, any
further exercise or enforcement thereof or the exercise or enforcement
of any other right, remedy, power or privilege thereunder or provided
by law.
30.11 Consents and approvals
Where any act, matter or thing under any Transaction Document depends
on the consent or approval of the Agents or Banks, then unless
expressly provided otherwise therein, that consent or approval may be
given or withheld in the absolute and unfettered discretion of the
Agents or Banks (as the case requires) and may be given subject to such
conditions as the Agents or Banks (as the case requires) thinks fit in
its absolute and unfettered discretion..
30.12 Written waiver, consent and approval
Any waiver, consent or approval given by the Facility Agent under any
Transaction Document will only be effective and only binds the Banks if
it is given in writing, and executed by the Facility Agent or on its
behalf by an officer for the time being of the Facility Agent.
81.
30.13 Time of essence
Time is of the essence in respect of each Obligor's obligations under
the Transaction Documents.
30.14 Consultants fees
Where the Facility Agent has to make any determination (whether in
respect of an Advance or otherwise), it may employ such consultants or
persons as it thinks fit to assist in making such determination. The
Borrower will reimburse the Facility Agent for all reasonable fees paid
by the Facility Agent to any such consultants or persons upon receipt
of a written demand therefor.
30.15 Moratorium legislation
To the fullest extent permitted by law, the provisions of all statutes
whether existing now or in the future and whether operating directly or
indirectly to lessen or otherwise to vary or affect in favour of any
Obligor any obligation under any Transaction Document, or to delay or
otherwise prevent or prejudicially affect the exercise of any rights or
remedies conferred on an Agent or any Bank under any Transaction
Document, are hereby expressly waived, negatived and excluded.
30.16 Binding on each signatory
Each Transaction Document is binding on each of the signatories
notwithstanding that any one or more of the named parties hereto does
not execute it, that there is any invalidity, forgery or irregularity
touching its execution or that it is or becomes unenforceable, void or
voidable against a named party.
30.17 Counterparts
This Agreement may be executed in a number of counterparts, all of
which taken together will be deemed to constitute one and the same
document.
30.18 Proceeds Account
The Security Agent agrees with each of the Obligors that it will not
exercise its rights under clause 5.2 of the document referred to in
paragraph (a) of the definition of "Original Securities" or clause 3.3
of the documents referred to in paragraphs (b), (c), (d) and (e) of the
definition of "Original Securities" in such a way as to prevent that
party from making a payment which is otherwise permitted by clause
17.5(b)(i) or clause 17.6.
31. NO REPRESENTATION BY OR RELIANCE ON THE BANK OR AGENT
Each party other than each Bank and each Agent acknowledges that:
(a) no Bank and no Agent has any duty to supply that party with
information in relation to or affecting the other or others of
them prior to the date hereof or during the currency of any
Transaction Document;
82.
(b) it has relied upon that party's own inquiries as to the other
or others of them, the nature and extent of the entire
relationship between them and between them and each Bank and
the Agents whether or not recorded in the Transaction
Documents, and the nature and effect of the Transaction
Documents; and
(c) it has not entered into any Transaction Document in reliance
on or as a result of any representation, promise, statement,
conduct or inducement to that party by or on behalf of any
Bank or any Agent or by or on behalf of any Obligor otherwise
than as embodied in the Transaction Documents or as notified
in writing by that party to the Banks and the Agents prior to
the date hereof.
32. REVIEW
If the Majority Banks reasonably believe that the financial performance
of the Group has departed from the annual budget which comprises part
of the Long Range Plan in a material respect and that such performance
is likely to have a Material Adverse Effect, the Facility Agent acting
on the direction of the Majority Banks may provide the Borrower with a
notice of that fact and as soon as practicable, but no later than 10
Banking Days, after the Borrower receives a notice under this clause,
the Borrower must enter into good faith negotiations with the Facility
Agent regarding possible changes to the business or operations of the
Group or a restructuring or repricing of this Facility.
83.
SCHEDULE 1
ORIGINAL GUARANTORS
Name Jurisdiction of
Incorporation in
Australia ACN Address
CTV Pty Limited Queensland 064 416 128 Xxxxx 00, 000
Xxxxxx Xxxxxx,
Xxxxxx, XXX 0000
STV Pty Limited South Australia 065 312 450 Xxxxx 00, 000
Xxxxxx Xxxxxx,
Xxxxxx, XXX 0000
AUSTAR Services Pty
Ltd South Australia 068 521 880 Xxxxx 00, 000
Xxxxxx Xxxxxx,
Xxxxxx, XXX 0000
Selectra Pty Ltd South Australia 065 367 526 Xxxxx 00, 000
Xxxxxx Xxxxxx,
Xxxxxx, XXX 0000
Vinatech Pty Ltd South Australia 065 366 314 Xxxxx 00, 000
Xxxxxx Xxxxxx,
Xxxxxx, XXX 0000
Xxxxxxx Pty Ltd South Australia 064 744 869 Xxxxx 00, 000
Xxxxxx Xxxxxx,
Xxxxxx, XXX 0000
Minorite Pty Ltd South Australia 068 943 484 Xxxxx 00, 000
Xxxxxx Xxxxxx,
Xxxxxx, XXX 0000
Kidillia Pty Ltd South Australia 068 943 608 Xxxxx 00, 000
Xxxxxx Xxxxxx,
Xxxxxx, XXX 0000
Dovevale Pty Ltd South Australia 068 943 591 Xxxxx 00, 000
Xxxxxx Xxxxxx,
Xxxxxx, XXX 0000
Windytide Pty Ltd South Australia 068 943 546 Xxxxx 00, 000
Xxxxxx Xxxxxx,
Xxxxxx, XXX
84.
Chippawa Pty Ltd South Australia 068 943 635 Xxxxx 00, 000
Xxxxxx Xxxxxx,
Xxxxxx, XXX 0000
Xxxxx Investments Pty
Ltd South Australia 068 943 626 Xxxxx 00, 000
Xxxxxx Xxxxxx,
Xxxxxx, XXX 0000
Wollongong
Microwave Pty Limited South Australia 065 146 321 Xxxxx 00, 000
Xxxxxx Xxxxxx,
Xxxxxx, XXX 0000.
85.
SCHEDULE 2
BANKS
Tranche 1 Tranche 2 Total
Name & Address Commitment Commitment Commitment
The Chase Manhattan Bank, $63,750,000 $63,750,000 $127,500,000
ARBN 074 112 011 of Xxxxx 00,
XXX Xxxxxx, 000 Xxxxxx Xxxxxx,
Xxxxxx, Xxx Xxxxx Xxxxx
Toronto Dominion Australia $53,750,000 $53,750,000 $107,500,000
Limited, ACN 004 958 020
of Xxxxx 00, 000 Xxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxx
Fax: (00) 0000 0000
Paribas Group Australia Limited, $17,500,000 $17,500,000 $35,000,000
ACN 002 174 843 of Xxxxx 00, 0
Xxxxxx Xxxxxx, Xxxxxx XXX
0000
Fax: (00) 0000 0000
ABN AMRO Australia Limited, $17,500,000 $17,500,000 $35,000,000
ACN 000 862 797, ABN AMRO
Bank NV, Australian Branch,
ARBN 079 478 612 jointly and
severally, of Xxxxx 00, 000
Xxxxxx Xxxxxx, Xxxxxx
Fax: (00) 0000 0000
Bankers Trust Australia Limited $12,500,000 $12,500,000 $25,000,000
ACN 000 000 000
Level 00
Xxx Xxxxxxx Xxxxx
0 Xxxxxxx Xxxxxx
Xxxxxx XXX 0000
Fax: (00) 0000 0000
Citibank N.A. (Sydney Branch) $17,500,000 $17,500,000 $35,000,000
ARBN 072 814 058
Citibank Centre
0 Xxxxxxxx Xxxxxx
Xxxxxx XXX 0000
86.
Fax: (00) 0000 0000
Credit Suisse First Boston ARBN $17,500,000 $17,500,000 $35,000,000
061 700 712
Xxxxx 00
000 Xxxxxxx Xxxxxx
Xxxxxxxxx XXX 0000
Fax: (00) 0000 0000
------------------------------------------------------------------------------------------------------------
TOTAL $200,000,000 $200,000,000 $400,000,000
87.
SCHEDULE 3
LICENCES
1. All MMDS licences issued under the Radiocommunications Act (Cth) 1992 to a
member of the Group; and
2. All broadcast licences issued under the Broadcasting Services Act (Cth)
1992 to a member of the Group.
88.
SCHEDULE 4
DOCUMENTARY CONDITIONS PRECEDENT
1. A certified copy of the constitution of each Obligor.
2. A certified copy of a resolution or resolutions of the directors of the
Borrower approving the Facility and authorising:
(a) the execution by the Borrower of this Agreement and of any of
the Original Securities to be given by the Borrower; and
(b) a person or persons to sign Bills, notices, certificates or
other documents in connection with the Facility on behalf of
the Borrower.
3. A certified copy of a resolution or resolutions of the directors each
Original Guarantor approving the giving of the guarantee by that
Guarantor in this Agreement and authorising:
(a) the execution by the Original Guarantor of this Agreement and
of any of the Original Securities to be given by that Original
Guarantor; and
(b) a person or persons to sign Bills, notices, certificates or
other documents in connection with the Facility on behalf of
the Guarantor.
4. Evidence, satisfactory to the Facility Agent, that the powers of
attorney (if any) used to execute any of the Transaction Documents on
behalf of any Obligor have been or will be registered.
5. A certified copy of the signatures of all persons authorised to sign on
behalf of the Borrower and the Original Guarantors.
6. A copy of the Certificate of Registration issued by the Australian
Securities & Investments Commission in relation to each of the Original
Securities.
7. Replies to all requisitions of the Facility Agent and its solicitors
relating to the Facility and the Original Securities.
8. A certified copy or originals of each of the Transaction Documents and
the Material Contracts duly executed and stamped (if required) (other
than the Access Agreements). The parties acknowledge that the agreement
referred to in paragraph 3 of Schedule 11 has not been executed by
Optus Vision Pty Limited or Optus Networks Pty Limited.
9. A certified copy of (and of all applications for) any and all
authorisations, approvals, consents, licences, permits, exemptions and
other requirements (whether governmental requirements or otherwise)
required for each Obligor to carry on its business or to enter into
or perform its obligations under the Transaction Documents.
10. An opinion, addressed to the Facility Agent and the Banks, of the legal
advisers to the Facility Agent and the Banks as to such matters
relating to the Obligors and/or the Transaction Documents as the
Facility Agent may require.
89.
11. An opinion, addressed to the Facility Agent on behalf of the Banks as
to the enforceability of the Transaction Documents to which UIH
Asia/Pacific Communications Inc., Austar, Inc. is a party against UIH
Asia/Pacific Communications Inc..
12. The Long Range Plan.
13. Evidence, satisfactory to the Agent, that each Bank has subscribed for
and the Borrower has issued each Bank with Stock (as defined in the
Debenture Stock Trust Deed).
14. Evidence that all insurance policies are in existence as required under
this Agreement and any of the Securities and where applicable, that the
Security Agent's interest has been noted thereon and if requested
certified copies of each such insurance policy.
15. Acknowledgements that any notices of any increases in the limits of the
Securities listed in paragraphs (a) and (b) of the definition of
Original Securities have been received.
16. Duly signed registration or filings forms (if any) required to be
completed in relation to the increases referred to in paragraph 15.
17. A certificate in respect of Part 2E of the Corporations Law from the
Borrower and each other member of the Group for the purposes of Part 2E
of the Corporations Law.
For the purposes of this Schedule, "certified" means a copy certified to be such
by a director, secretary or officer of the Borrower.
90.
SCHEDULE 5
FORMS OF UTILISATION NOTICE
To: Chase Securities Australia Limited
From: AUSTAR Entertainment Pty. Limited Date: [ ]
UTILISATION NOTICE (ADVANCE).
Facility Agreement dated [ ]
Dear Sirs
We hereby give you notice pursuant to clause 4.1 of the above Facility Agreement
that we require an Advance to be made to us under the Facility Agreement, as
follows
(a) Utilisation Date: [ ]
(b) Amount: [ ]
(c) Interest Period: [ ]
(d) Tranche Designation: [ ]
Payment instructions with respect to the proceeds of the Advance are as follows:
[ ]
Terms used in this Utilisation Notice and defined in the Facility Agreement have
the same meaning in this Utilisation Notice as in the Facility Agreement.
We confirm that the requirements of clause 3.4 of the Facility Agreement have
been complied with.
We confirm that no Event of Default or Potential Event of Default has occurred
and is continuing or would result from the borrowing of the proposed Advance. We
also confirm that the representations, warranties and undertakings in clauses 16
(except for clauses 16.2(c), (d), (e) and (f)) and 17 of the Facility Agreement
have been complied with and the statements in those clauses are correct as at
the date of this Utilisation Notice.
Yours faithfully
[Authorised Signatory]
For and on behalf of AUSTAR Entertainment Pty. Limited
91.
SCHEDULE 6
ACCESSION AGREEMENT
THIS ACCESSION AGREEMENT is dated the [ ] day of , 19 and made BETWEEN [ ] (the
"Additional Guarantor"), AUSTAR Entertainment Pty. Limited (the "Borrower"), [ ]
(each an "Existing Guarantor"), Chase Securities Australia Limited in its
capacity as Facility Agent under the Facility Agreement referred to in Recital
(A) hereof and on behalf of the Banks parties to and defined as such in such
Facility Agreement, and [ ] in its capacity as Security Agent.
WHEREAS:
(A) By and upon and subject to the terms of a facility agreement (the
"Facility Agreement", which term includes any supplements and
amendments thereto which may at any time be made in relation thereto
and also any Substitution Certificates and Accession Agreements) dated
[ ] made between the Borrower and Guarantors as therein defined, the
several banks parties thereto as Banks and Chase Securities Australia
Limited as Facility Agent and Chase Securities Australia Limited as
Security Agent, a revolving working capital facility, an amortising
cash advance facility and an amortising term loan facility were made
available to the Borrower (as defined in the Facility Agreement).
(B) Each of the entities expressed to be party hereto, whether directly or
through signature hereof by the Facility Agent or the Borrower on its
behalf, is a party to the Facility Agreement either by having been an
original party thereto or pursuant to an Accession Agreement or a
Substitution Certificate to which it is party or otherwise.
(C) The Additional Guarantor wishes to become party to the Facility
Agreement as a Guarantor pursuant to the procedure established in
clause 21 of the Facility Agreement by the execution of this Accession
Agreement.
(D) It is the intention of the parties that this Accession Agreement shall
take effect as a deed.
NOW IT IS HEREBY AGREED as follows:
1. Definitions
Terms used herein which are defined in or to which a meaning or
construction is assigned by or in the Facility Agreement shall, unless
otherwise defined herein, have the same meaning and construction herein
as therein.
2. Agreements, Confirmations and Representations
(a) The Additional Guarantor hereby:
(i) confirms that it has received a copy of the Facility
Agreement together with such other documents and
information as it has required in connection herewith
and therewith;
92.
(ii) agrees to become, with effect from the date of this
Accession Agreement, a Guarantor under the Facility
Agreement, agrees to be bound in that capacity with
effect from such date by the terms of the Facility
Agreement and undertakes accordingly to perform its.
90. obligations as a Guarantor thereunder;
(iii) confirms the accuracy of the information set out
under its name at the end of this Accession
Agreement;
(iv) represents and warrants as an Obligor to the Banks
and the Agents in the terms of clause 16 (other than
paragraphs 16.2(c), (d), (e) and (f)) of the Facility
Agreement by reference to the facts and circumstances
existing at the date hereof; and
(v) confirms that it has not relied on the Banks or the
Agents to assess or inform it as to the legality,
validity, effect or enforceability of the Facility
Agreement or any other document referred to therein
or the accuracy or completeness of any such
information as is referred to in paragraph (i) above
or the creditworthiness, affairs, condition or status
of any of the parties to the Facility Agreement, or
any such other document.
(b) The Borrower, the Existing Guarantor(s), the Agents and the
Banks hereby agree amongst themselves and with the Additional
Guarantor that the Additional Guarantor shall become party to
the Facility Agreement with effect from the date of this
Accession Agreement.
3. Law
This Accession Agreement shall be governed by and construed in
accordance with the laws applying in New South Wales.
IN WITNESS WHEREOF the parties hereto have caused this Accession Agreement to be
duly executed on the date first written above.
SIGNATURES
Additional Guarantor:
[ ]
Borrower:
AUSTAR ENTERTAINMENT PTY. LIMITED
for itself and as agent for and on behalf of the Existing Guarantors
By:
Agent:
CHASE SECURITIES AUSTRALIA LIMITED for itself and as Facility Agent and for and
on behalf of the Security Agent and the Banks.
By:
93.
SCHEDULE 7
SUBSTITUTION CERTIFICATE
Substitution Certificate made the day of
BY ("Existing Bank");
AND ("New Bank");
AND Chase Securities Australia Limited for itself and as agent for
each party under the Facility Agreement ("Facility Agent").
WHEREAS
A. The Existing Bank and the New Bank presently have the Commitments
specified in Schedule 1 of this Certificate.
B. The New Bank wishes to assume [some/all] of the Existing Bank's
Commitments under the Facility Agreement.
C. After the Substitution Date the Existing Bank and the New Bank will
have the Commitments specified in the Schedule.
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Certificate:
"Borrower" means AUSTAR Entertainment Pty. Limited, ACN 068 104 530.
"Debenture Stock Trust Deed" means the deed so entitled dated 2 April
1997 entered into by (amongst others) the Borrower and the Facility
Agent.
"Facility Agreement" means the agreement dated [ ] between (amongst
others) the Borrower and the Facility Agent together with and as
supplemented by all Accession Agreements and Substitution Certificates.
"Stock" means debenture stock issued pursuant to the Debenture Stock
Trust Deed.
"Substituted Commitments" means the Commitments specified as such in
Schedule 1 of this Certificate.
"Substituted Obligations" means the obligations nd responsibilities
identical to the obligations and responsibilities under the Transaction
Documents of the Existing Bank in relation to the Substituted
Commitments.
"Substituted Portion" means the amount of each outstanding Advance
specified as such in Schedule 2 of this Certificate.
94.
"Substituted Rights" means rights, remedies and powers identical to the
rights, remedies and powers under the Transaction Documents of the
Existing Bank in relation to the Substituted Commitments and the
Substituted Portion.
"Substitution Date" means the later of the date on which this
Certificate is executed on behalf of the Facility Agent or such later
date as the parties hereto may agree in writing.
"Trust" means the AUSTAR Security Trust constituted by the Debenture
Stock Trust Deed.
1.2 Interpretation
(a) A reference in this Certificate to "identical" obligations and
responsibilities or rights, remedies and powers is a reference
to the character of those obligations and responsibilities,
rights, remedies and powers rather than to the identity of the
person obliged to perform them or entitled to them.
(b) Terms defined or given a special meaning in the Facility
Agreement have the same meaning in this Certificate.
1.3 Transaction Documents
This Certificate is a Transaction Document.
2. REPRESENTATION
The Existing Bank represents and warrants to the New Bank that as at
the date of this Certificate the Existing Bank's present Commitments
under the Facility Agreement are as shown in Schedule 1 and the
Existing Bank's participation in outstanding Advances is as shown in
Schedule 2 of this Certificate.
3. SUBSTITUTED OBLIGATIONS
3.1 Release from Future Obligations
The Existing Bank is released from the Substituted Obligations with
effect on and from the Substitution Date. The Existing Bank shall,
however, remain bound by its obligations and responsibilities under the
Transaction Documents which accrue prior to the Substitution Date save
as provided in clause 5 below.
3.2 Assumption of Obligations
The New Bank undertakes to the Existing Bank and the Agent that it
shall assume the Substituted Obligations on and from the Substitution
Date.
4. SUBSTITUTED RIGHTS
The Existing Bank shall no longer be entitled to the Substituted
Rights or the Substituted Portion and the New Bank shall become
entitled to the Substituted Rights and the Substituted Portion, with
effect on and from the Substitution Date.
95.
5. EFFECT ON TRANSACTION DOCUMENTS
The Existing Bank, the New Bank and the Facility Agent agree that with
effect on and from the Substitution Date:
(a) the New Bank and each party to each Transaction Document will
assume obligations and responsibilities towards each other,
and have rights, remedies and powers in relation to each
other, determined on the basis that the obligations and
responsibilities of the New Bank are the Substituted
Obligations and the rights, remedies and powers of the New
Bank are the Substituted Rights;
(b) the Existing Bank will be released from its obligations and
responsibilities under each of the Transaction Documents
accruing on and after the Substitution Date to the extent of
the Substituted Obligations and it will cease to be entitled
to exercise any rights, remedies or powers under the
Transaction Documents arising on or after the Substitution
Date in respect of the Substituted Rights; and
(c) the New Bank will be deemed a party to each Transaction
Document to which the Existing Bank is a party as a Bank with
Commitments equal to the Substituted Commitments.
6. NO EFFECT ON ACCRUED RIGHTS AND OBLIGATIONS
Save as expressly provided herein this Certificate shall not affect the
Existing Bank's rights, remedies and powers arising, and obligations
and responsibilities accrued, prior to the Substitution Date.
7. LIQUEFYING BILLS
Nothing contained in this Certificate releases, relieves or otherwise
affects the obligations and responsibilities and the rights, remedies
and powers, of the Existing Bank in respect of Bills drawn under clause
9 of the Facility Agreement. The New Bank will not assume any
obligations or responsibilities, or acquire any rights, remedies or
powers, in respect of such Bills.
8. PAYMENTS
8.1 Consideration
The Existing Bank and the New Bank shall agree separately between
themselves the amounts (if any) payable from one to the other in
relation to the substitution in respect of principal and accrued
interest and fees.
8.2 Facility Agent
On and from the Substitution Date the Facility Agent will make all
payments received by it in respect of the Substituted Commitments,
Substituted Obligations, Substituted Rights and Substituted Portion to
the New Bank.
96.
9. INDEPENDENT ASSESSMENT
Without limiting clause 6 of this Certificate, the New Bank agrees that
the provisions of clause 24.13 of the Facility Agreement binds it as if
the reference therein to this "document" included this Certificate and
(subject to any agreement to the contrary between the Existing Bank and
New Bank) the reference therein to the "Agent" included the Existing
Bank.
10. ACKNOWLEDGEMENTS
The New Bank acknowledges that it has received a complete and current
copy of each Transaction Document together with such other documents
and information as it has required in connection therewith.
11. GOVERNING LAW
This Certificate is governed by the laws applying in New South Wales.
12. DEBENTURE STOCK
The New Bank acknowledges that it will not be a beneficiary of the Trust unless
Stock has been issued to it pursuant to the Debenture Stock Trust Deed. The New
Bank will be responsible for applying for Stock and the Existing Bank will not
be liable for any failure of the New Bank tobtain the benefit of the Securities.
Schedule 1: Commitments
Tranche 1 Tranche 2 Total
Commitment Commitment Commitment
---------------------------------------------------------------------------------------------------------
Existing Bank's
present Commitments $[ ] $[ ] $[ ]
New Bank's present
Commitments $[ ] $[ ] $[ ]
Substituted
Commitments $[ ] $[ ] $[ ]
Existing Bank's
Commitments after
substitution $[ ] $[ ] $[ ]
New Bank's
Commitments after
substitution $[ ] $[ ] $[ ]
97.
Schedule 2: Advances
Total Outstanding Existing Bank's Substituted
Participation Portion
Tranche 1
Advances $[ ] $[ ] $[ ]
Tranche 2
Advances $[ ] $[ ] $[ ]
SIGNED as an agreement.
[To be signed by Existing Bank, New Bank and Facility Agent]
98.
SCHEDULE 8
NOTICE FROM UIH
[LETTERHEAD OF UIH AUSTRALIA/PACIFIC, INC.]
[Date]
The Chase Manhattan Bank
AAP Centre
000 Xxxxxx Xxxxxx
XXXXXX XXX 0000
Attention Mr Xxxxx Xxx
Dear Sir
AUSTAR ENTERTAINMENT PTY LIMITED
We refer to:
(a) the Indenture dated 14 May 1996 between UIH Australia/Pacific, Inc.
("UAP") and American Bank National Association (the "Indenture"); and
(b) the terms and conditions of the syndicated senior term debt facility
arranged by The Chase Manhattan Bank ("Chase") for AUSTAR Entertainment
Pty Limited ("AUSTAR") dated [ ] (the "Senior Debt Terms").
Having reviewed the Senior Debt Terms and consulted with our lawyers we confirm
that the provision of a financing for AUSTAR in accordance with the Senior Debt
Terms will not cause a breach of the Indenture. We confirm that UAP has obtained
the necessary waivers, consents or amendments from UAP senior note holders to
permit the dividend restriction referred to in clause 17.6(a) of the Senior Debt
Terms.
We acknowledge that Chase will rely on this letter in providing finance to
AUSTAR and confirm that this letter may also be disclosed to and relied on by
prospective syndicate banks which participate in the proposed financing for
AUSTAR.
Signed on behalf of UAP by [ ] with the authority of the directors
of UAP.
99.
SCHEDULE 9
COMPLIANCE CERTIFICATE
TO: Chase Securities Australia Limited (in its capacity as Facility Agent)
ACN 002 888 011
AAP Centre
000 Xxxxxx Xxxxxx
XXXXXX XXX 0000
FROM: AUSTAR Entertainment Pty. Limited
ACN 068 104 530
Xxxxx 00
000 Xxxx Xxxxxx
XXXXXX XXX 0000
COMPLIANCE CERTIFICATE
Reference is made to the A$400,000,000 Syndicated Senior Secured Debt Facility
Agreement dated [ ] between (amongst others) AUSTAR Entertainment Pty. Limited
("Company") and Chase Securities Australia Limited in its capacity as Facility
Agent and Security Agent ("Facility Agreement") and all Accession Agreements and
Substitution Certificates entered into in respect of the Facility Agreement.
Words defined in the Facility Agreement have the same meaning in this
Certificate.
This Certificate is given by the Company on behalf of all Obligors.
1. RATIOS
1.1 Senior Debt/EBITDA*
The ratio of Senior Debt to EBITDA for the Group for the period from
[ ] to [ ] was [ ].
1.2 Total Debt/EBITDA*
The ratio of Total Debt to EBITDA for the Group for the period from
[ ] to [ ] was [ ].
1.3 EBITDA/Interest Expense*
The ratio of EBITDA for the Group to Interest Expense for the period
from [ ] to [ ] was [ ].
100.
1.4 Total Subscribers*
The Total Subscribers as at [ ] was [ ].
1.5 Total Debt/Total Subscribers*
The ratio of Total Debt to Total Subscribers for the Group for the
period from [ ] to [ ] was [ ].
1.6 Equity Contribution*
The amount of the Equity Contribution is [ ] which is [ ]% of the
aggregate of the amount of Tranche 2 Advances outstanding and the
amount requested in the most recent Tranche 2 Utilisation Notice.
2 CONDITIONS PRECEDENT
The conditions precedent listed in clauses 3.4 and 3.5* of the Facility
Agreement have been met.
3. REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS
The representations, warranties and undertakings in clauses 16 (except
for clauses 16.2(c), (d), (e) and (f)) and 17 of the Facility
Agreement have been complied with and the statements in those clauses
are correct as at the date of this Certificate [except as set out
below:]*.
We, [ ], being [directors of the Company] certify that the contents of this
Certificate are true and correct as at the date of this Certificate.
---------------------------------- ------------------------------------
[Name of Director] [Name of Director]
Date:
-----------------------------
* delete if inapplicable.
101.
SCHEDULE 10
FORM OF STAMP DUTY CERTIFICATE
To: Chase Securities Australia Limited
Re: Syndicated Senior Secured Debt Facility Agreement dated [ ] made
between (amongst others) AUSTAR Entertainment Pty Limited (the
"Borrower") and Chase Securities Australia Limited, as Facility Agent
and Security Agent.
The Security Property is certified to be valued and apportioned as set out below
at [insert date].
Fixed Cash Debtors Property Total Percentage Percentage
Assets of overall of
assets Australian
Assets
--------------------------------------------------------------------------------------------------
N.S.W.
--------------------------------------------------------------------------------------------------
Victoria
--------------------------------------------------------------------------------------------------
W.A.
--------------------------------------------------------------------------------------------------
S.A.
--------------------------------------------------------------------------------------------------
Queensland
--------------------------------------------------------------------------------------------------
Tasmania
--------------------------------------------------------------------------------------------------
A.C.T.
--------------------------------------------------------------------------------------------------
N.T.
--------------------------------------------------------------------------------------------------
Overseas
--------------------------------------------------------------------------------------------------
Total 100% 100%
--------------------------------------------------------------------------------------------------
There has been an [increase/decrease] in the [value of/proportion of] assets
located in [specify State or overseas].
For and on behalf of the Borrower
----------------------------------
Authorised Officer
102.
SCHEDULE 11
MATERIAL CONTRACTS
1. The agreement entitled "Short Form Agreement" dated 5 December 1997
between Austar Entertainment Pty Limited, ACN 068 105 530 ("Austar"),
Optus Vision Pty Limited, ACN 066 518 821 ("Optus Vision") and Optus
Networks Pty Limited, ACN 008 570 330 ("Optus Networks") (the "Short
Form Agreement");
2. The agreement amending the Short Form Agreement dated 19 May 1998
between Austar, Optus Vision, Optus Networks and UIH Asia/Pacific
Communications Inc. ("UAP");
3. The undated agreement entitled "Term Sheet" between Optus Vision,
Optus Networks, Austar and UAP;
4. The agreement entitled "Foxtel/Austar Term Sheet" dated 2 May 1998
between Foxtel Management Pty Limited, ACN 068 671 938 (as agent for
the partnership between Sky Cable Pty Limited, ACN 069 799 640, and
Telstra Media Pty Limited, ACN 069 279 021) ("Foxtel") and Austar as
amended by an agreement dated 4 March 1999;
5. The PMP Movie Distribution Agreement dated 2 May 1998 between Austar
and Foxtel;
6. The TV1 Distribution Agreement dated 2 May 1998 between Austar and
Foxtel;
7. The letter agreement dated 13 May 1998 between Austar and Premier
Sports Australia Pty Limited on behalf of Sports Investments Australia
Pty Limited (formerly called Liberty Sports Australia Pty Limited),
ACN 065 445 418 ("SIA") and Australis Sports Pty Limited;
8. The letter agreements dated 13 May 1998 between Austar and Foxtel;
9. The agreement entitled "Fox Sports Supply to Austar - Agreement" dated
3 September 1998 between SIA, Austar, CTV Pty Limited, ACN 064 416 128
and STV Pty Limited, ACN 063 312 450;
10. The agreement entitled "Australian Pay Television Rights - SIA to
Austar" dated 3 September between Austar and SIA; and
11. The Access Agreements (when entered into).
103.
SCHEDULE 12
PERMITTED LEASE TRANSACTION
A Permitted Lease Transaction will be a sale and leaseback transaction having
the following characteristics:
1. The transaction will involve the sale at lower of cost and book value
of customer premises equipment and other microwave and satellite
reception equipment (the "Equipment") by members of the Group to an
unrelated company (the "Vendor").
2. The Vendor will be a special purpose Australian company which will
covenant to have no other assets and carry on no other business other
than the transaction.
3. Members of the Group may advance funds to the Vendor to enable it to
purchase the Equipment provided the amount of such loan shall not
exceed the purchase price of the Equipment.
4. The Vendor will grant a first ranking fixed and floating charge to the
Security Agent over all of its assets including the Equipment to secure
the Obligations on terms acceptable to the Security Agent.
5. The Vendor will enter into a conditional sale agreement or hire
purchase agreement in relation to the Equipment with another entity
(the "Lessor").
6. The Vendor may grant subsequent ranking security over the Equipment.
7. The Lessor will lease the Equipment to an Obligor for a term expiring
at least one year after the final Repayment Date and on terms which
give the Obligor effective control over the Equipment during the term
of the lease.
8. If under any conditional sale agreement or hire purchase agreement
title to the Equipment is transferred from the Vendor to the Lessor
prior to the security granted by the Vendor to the Security Agent being
discharged, the Equipment may only be transferred to the Lessor
expressly subject to the security in favour of the Security Agent.
9. An Obligor may grant an Encumbrance in favour of the Lessor or another
person over a deposit account established with moneys received by an
Obligor as a result of the implementation of the transaction and those
moneys. The Security Agent will hold second ranking security over the
deposit account and the relevant moneys.
10. The net scheduled cash payment obligations under the lease during the
period from lease commencement until the final Repayment Date must not
exceed the cash amounts received by members of the Group as part of the
transaction and must be fully defeased by a security deposit or similar
instrument created from the cash proceeds of the lease transaction.
104.
11. A priority agreement must be entered into between the Security Agent
and the Lessor and any other party having security over the Equipment
in relation to:
(a) the Equipment, giving first priority to the Security Agent;
and
(b) in relation to the cash deposit, giving first priority to the
Lessor and second priority to the Security Agent. The terms of
the Priority Agreement must be in a form reasonably acceptable
to the Facility Agent.
12. The Borrower must demonstrate to the Facility Agent that the
consequences of the insolvency of the Vendor or the Lessor will not
adversely impact the rights of members of the Group or the Banks.
13. The Borrower must agree to indemnify the Facility Agent and the
Security Agent for all stamp duty liability in relation to the lease
transaction and associated security documents.
105.
SIGNED as an agreement.
SIGNED for and on behalf of AUSTAR )
ENTERTAINMENT PTY LIMITED, )
ACN 068 104 530 by Xxxxxx Xxxxxxx ) /S/ Xxxxxx Xxxxxxx
in the presence of: ) -------------------------------
(Signature)
/S/ Xxxxxxxxxxx Xxxxxxxxx
--------------------------------------
(Signature of Witness)
XXXXXXXXXXX XXXXXXXXX
--------------------------------------
(Name of Witness in Full)
SIGNED for and on behalf of CTV PTY )
LIMITED, ACN 064 416 128 )
by Xxxxxx Xxxxxxx ) /S/ Xxxxxx Xxxxxxx
in the presence of: ) -------------------------------
(Signature)
/S/ Xxxxxxxxxxx Xxxxxxxxx
--------------------------------------
(Signature of Witness)
XXXXXXXXXXX XXXXXXXXX
--------------------------------------
Name of Witness in Full)
SIGNED for and on behalf of STV PTY )
LIMITED, ACN 065 312 450 by Xxxxxx Xxxxxxx ) /S/ Xxxxxx Xxxxxxx
in the presence of: ) -------------------------------
(Signature)
/S/ Xxxxxxxxxxx Xxxxxxxxx
--------------------------------------
(Signature of Witness)
XXXXXXXXXXX XXXXXXXXX
--------------------------------------
(Name of Witness in Full)
106.
SIGNED for and on behalf of AUSTAR )
SERVICES PTY LTD, ACN 068 521 880 )
by Xxxxxx Xxxxxxx ) /S/ Xxxxxx Xxxxxxx
in the presence of: ) -------------------------------
(Signature)
/S/ Xxxxxxxxxxx Xxxxxxxxx
--------------------------------------
(Signature of Witness)
XXXXXXXXXXX XXXXXXXXX
--------------------------------------
(Name of Witness in Full)
SIGNED for and on behalf of SELECTRA )
PTY LTD, ACN 065 367 526 by Xxxxxx Xxxxxxx ) /S/ Xxxxxx Xxxxxxx
in the presence of: ) -------------------------------
(Signature)
/S/ Xxxxxxxxxxx Xxxxxxxxx
--------------------------------------
(Signature of Witness)
XXXXXXXXXXX XXXXXXXXX
--------------------------------------
(Name of Witness in Full)
SIGNED for and on behalf of VINATECH )
PTY LTD, ACN 065 366 314 by Xxxxxx Xxxxxxx ) /S/ Xxxxxx Xxxxxxx
in the presence of: ) -------------------------------
(Signature)
/S/ Xxxxxxxxxxx Xxxxxxxxx
--------------------------------------
(Signature of Witness)
XXXXXXXXXXX XXXXXXXXX
--------------------------------------
(Name of Witness in Full)
107.
SIGNED for and on behalf of XXXXXXX )
PTY LTD, ACN 064 744 869 by Xxxxxx Xxxxxxx ) /S/ Xxxxxx Xxxxxxx
in the presence of: ) -------------------------------
(Signature)
/S/ Xxxxxxxxxxx Xxxxxxxxx
--------------------------------------
(Signature of Witness)
XXXXXXXXXXX XXXXXXXXX
--------------------------------------
(Name of Witness in Full)
SIGNED for and on behalf of MINORITE )
PTY LTD, ACN 068 943 484 by Xxxxxx Xxxxxxx ) /S/ Xxxxxx Xxxxxxx
in the presence of: ) -------------------------------
(Signature)
/S/ Xxxxxxxxxxx Xxxxxxxxx
--------------------------------------
(Signature of Witness)
XXXXXXXXXXX XXXXXXXXX
--------------------------------------
(Name of Witness in Full)
SIGNED for and on behalf of )
KIDILLIA PTY LTD, ACN 068 943 608 )
by Xxxxxx Xxxxxxx ) /S/ Xxxxxx Xxxxxxx
in the presence of: ) -------------------------------
(Signature)
/S/ Xxxxxxxxxxx Xxxxxxxxx
--------------------------------------
(Signature of Witness)
XXXXXXXXXXX XXXXXXXXX
--------------------------------------
(Name of Witness in Full)
108.
SIGNED for and on behalf of )
DOVEVALE PTY LTD, ACN 068 943 )
591 by Xxxxxx Xxxxxxx ) /S/ Xxxxxx Xxxxxxx
in the presence of: ) -------------------------------
(Signature)
/S/ Xxxxxxxxxxx Xxxxxxxxx
--------------------------------------
(Signature of Witness)
XXXXXXXXXXX XXXXXXXXX
--------------------------------------
(Name of Witness in Full)
SIGNED for and on behalf of )
WINDYTIDE PTY LTD, ACN 068 943 )
546 by Xxxxxx Xxxxxxx ) /S/ Xxxxxx Xxxxxxx
in the presence of: ) -------------------------------
(Signature)
/S/ Xxxxxxxxxxx Xxxxxxxxx
--------------------------------------
(Signature of Witness)
XXXXXXXXXXX XXXXXXXXX
--------------------------------------
(Name of Witness in Full)
SIGNED for and on behalf of CHIPPAWA )
PTY LTD, ACN 068 943 635 by Xxxxxx Xxxxxxx ) /S/ Xxxxxx Xxxxxxx
in the presence of: ) -------------------------------
(Signature)
/S/ Xxxxxxxxxxx Xxxxxxxxx
--------------------------------------
(Signature of Witness)
XXXXXXXXXXX XXXXXXXXX
--------------------------------------
(Name of Witness in Full)
109.
SIGNED for and on behalf of )
XXXXX INVESTMENTS PTY LTD, )
ACN 068 943 626 by Xxxxxx Xxxxxxx ) /S/ Xxxxxx Xxxxxxx
in the presence of: ) -------------------------------
(Signature)
/S/ Xxxxxxxxxxx Xxxxxxxxx
--------------------------------------
(Signature of Witness)
XXXXXXXXXXX XXXXXXXXX
--------------------------------------
(Name of Witness in Full)
SIGNED for and on behalf of )
WOLLONGONG MICROWAVE PTY )
LIMITED, ACN ) /S/ Xxxxxx Xxxxxxx
by Xxxxxx Xxxxxxx ) -------------------------------
(Signature)in the presence of:
/S/ Xxxxxxxxxxx Xxxxxxxxx
--------------------------------------
(Signature of Witness)
XXXXXXXXXXX XXXXXXXXX
--------------------------------------
(Name of Witness in Full)
SIGNED for and on behalf of CHASE )
SECURITIES AUSTRALIA LIMITED, )
ACN 002 888 011 (in its capacity as Facility)
Agent and Security Agent), by Xxxxx Xxx ) /S/ Xxxxx Xxx
in the presence of: ) -------------------------------
/S/ Xxxxxxx St. Xxxx (Signature)
--------------------------------------
(Signature of Witness)
XXXXXXX ST. XXXX
--------------------------------------
(Name of Witness in Full)
110.
SIGNED for and on behalf of THE )
CHASE MANHATTAN BANK, )
ARBN 074 112 011, by ) /S/ Xxxxx Xxx
in the presence of: Xxxxx Xxx ) -------------------------------
(Signature)
/S/ Xxxxxxx St. Xxxx
--------------------------------------
(Signature of Witness)
XXXXXXX ST. XXXX
--------------------------------------
(Name of Witness in Full)
SIGNED for and on behalf of TORONTO )
DOMINION AUSTRALIA LIMITED, )
ACN 004 858 020 by in ) /S/ Xxxxxxx St. Xxxx
the presence of: Xxxxxxx St. Xxxx ) -------------------------------
(Signature)
/S/ Xxxxxx Xxxxxxx
--------------------------------------
(Signature of Witness)
/S/ XXXXXX XXXXXXX
--------------------------------------
(Name of Witness in Full)
SIGNED for and on behalf of PARIBAS )
GROUP AUSTRALIA LIMITED, ACN )
002 174 843 by Xxx Xxxxxx ) /S/ Xxx Xxxxxx
in the presence of: ) -------------------------------
(Signature)
/S/ Xxxx Xxxxxxx
--------------------------------------
(Signature of Witness)
XXXX XXXXXXX
--------------------------------------
(Name of Witness in Full)
111.
SIGNED for and on behalf of ABN AMRO )
AUSTRALIA LIMITED, ACN 000 862 )
797 by Xxxxx Xxxxx ) /S/ Xxxxx Xxxxx
in the presence of: ) -------------------------------
(Signature)
/S/ Xxxxxxxx Xxxxx
--------------------------------------
(Signature of Witness)
XXXXXXXX XXXXX
--------------------------------------
(Name of Witness in Full)
SIGNED for and on behalf of ABN AMRO )
BANK N.V., AUSTRALIAN BRANCH, )
ARBN 079 478 612 by Xxxxx Xxxxx ) /S/ Xxxxx Xxxxx
in the presence of: ) -------------------------------
(Signature)
/S/ Xxxxxxxx Xxxxx
--------------------------------------
(Signature of Witness)
XXXXXXXX XXXXX
--------------------------------------
(Name of Witness in Full)
SIGNED for and on behalf of BANKERS )
TRUST AUSTRALIA LIMITED, ACN )
000 000 000 by Xxxxxx Xxxxx ) /S/ Xxxxxx Xxxxx
in the presence of: ) -------------------------------
(Signature)
Susing
--------------------------------------
(Signature of Witness)
--------------------------------------
(Name of Witness in Full)
112.
SIGNED for and on behalf of CITIBANK )
N.A. (SYDNEY BRANCH), ARBN 072 ) /S/ Xxxxx Xxxx & Xxxx
814 058 by Xxxxx Xxxx & Xxxx Xxxxxxxxx ) Wakefield
in the presence of: ) -------------------------------
(Signature)
/S/ Xxxxxx Xxxxxxx
--------------------------------------
(Signature of Witness)
XXXXXX XXXXXXX
--------------------------------------
(Name of Witness in Full)
SIGNED for and on behalf of CREDIT )
SUISSE FIRST BOSTON, ARBN 061 ) /S/ Xxxxx Xxxxxxxx & Xxxxxxx
700 712 by Xxxxx Xxxxxxxx & Gerrard ) Xxxxxxxxxx
Xxxxxxxxxx in the presence of: ) -------------------------------
(Signature)
/S/ Xxxxxx Xxxxxxx
--------------------------------------
(Signature of Witness)
XXXXXX XXXXXXX
--------------------------------------
(Name of Witness in Full)
The undersigned XX Xxxxx acknowledge that they have reviewed and approved this
document:
SIGNED for and on behalf of THE )
CANADIAN IMPERIAL BANK OF )
COMMERCE, SINGAPORE BRANCH )
by ) -------------------------------
(Signature)in the presence of:
--------------------------------------
(Signature of Witness)
--------------------------------------
(Name of Witness in Full)
113.
SIGNED for and on behalf of )
BANKGESELLSCHAFT BERLIN AG, )
LONDON BRANCH )
by Xxxxxxx St. Xxxx ) /S/ Xxxxxxx St. Xxxx
in the presence of: ) -------------------------------
(Signature)
/S/ Xxxxxx Xxxxxxx
--------------------------------------
(Signature of Witness)
XXXXXX XXXXXXX
--------------------------------------
(Name of Witness in Full)
114.
ANNEXURE A.
AUSTAR GROUP DEED OF CONSENT AND RELEASE
AUSTAR ENTERTAINMENT PTY LIMITED
ACN 068 104 530
EACH PARTY REFERRED TO IN SCHEDULE 1
and
CHASE SECURITIES AUSTRALIA LIMITED
ACN 002 888 011
XXXXXXXX
-----------
HOLLINGDALE
-----------
& PAGE
XXX Xxxxxx Xxxxxx Xxxxx Xxxxxx Xxx Xxxxx Xxxxx 0000 Xxxxxxxxx
Telephone (00) 0000 0000 Int + (00 0) 0000 0000
Facsimile (00) 0000 0000 DX 000 Xxxxxx
Reference: CJR:36E
SYDNEY MELBOURNE PERTH CANBERRA BRISBANE SINGAPORE HANOI HO CHI MINH CITY
CORRESPONDENT OFFICE IN JAKARTA
Liability is limited by the Solicitors Scheme under the Professional
Standards Xxx 0000 (NSW)
--------------------------------------------------------------------------------
TABLE OF CONTENTS
Clause Page
1 DEFINITIONS AND INTERPRETATION 1
1.1 Definitions 1
1.2 Interpretation 3
2 CONDITIONS PRECEDENT 3
3 CONSENT OF FACILITY AGENT 4
3.1 Transfer of Licences 4
3.2 Release of Charges 4
3.3 Release under Transaction Documents 4
3.4 Winding Up 5
3.5 Transfer of Shares and Debentures 5
4 COSTS 6
5 REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS 6
5.1 Representations and warranties 6
5.2 Confirmation and repeat of representation and warranties 6
6 GENERAL CONFIRMATIONS AND RATIFICATIONS 6
6.1 The Borrower 6
6.2 The Group Companies 6
6.3 Consent by the Group Companies 7
7 PRESERVATION OF OTHER RIGHTS AND SECURITIES 7
8 MISCELLANEOUS 7
8.1 Governing law 7
8.2 Counterparts 7
SCHEDULE 1 - GROUP COMPANIES 8
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THIS AUSTAR GROUP DEED OF CONSENT AND RELEASE
is made as a deed on between the following parties:
1. AUSTAR ENTERTAINMENT PTY LIMITED
ACN 068 104 530
of Xxxxx 00, 000 Xxxxxx Xxxxxx, Xxxxxx, Xxx Xxxxx Xxxxx
(BORROWER)
2. EACH PARTY REFERRED TO IN SCHEDULE 1
(GROUP COMPANIES)
3. CHASE SECURITIES AUSTRALIA LIMITED
ACN 002 888 011
of Xxxxx 00, AAP Centre, 000 Xxxxxx Xxxxxx, Xxxxxx, Xxx Xxxxx Xxxxx
(FACILITY AGENT)
RECITALS
A. Under the Facility Agreement, the Banks have made
available to the Borrower various facilities on the
terms set out in the Facility Agreement.
B. Under the Facility Agreement, the Group Companies have
guaranteed to the Banks the whole of the Obligations
of the Borrower to the Banks.
C. Under the Securities, the Borrower and the Group
Companies have mortgaged the Group Shares and charged
all other Charged Property (as that term is defined,
respectively, in each Deed of Charge) to the Facility
Agent.
D. The Borrower and the Group Companies propose to restructure the Group.
E. The Borrower and the Group Companies have requested the Facility Agent
to give certain consents and release certain charges, mortgages and
guarantees to enable the first stage of the proposed restructure of
the Group to proceed and the Facility Agent has agreed to this request
on the terms contained in this deed.
THIS DEED WITNESSES
that in consideration of, among other things, the mutual promises contained
in this deed, the parties agree:
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1 DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
(a) In this deed and in the Recitals:
ACCESSION AGREEMENT means the Accession Agreement dated 31
December 1998 between each New Group Company, the Borrower and
the Facility Agent.
CHARGED PROPERTY means in relation to Dovevale Pty Limited,
Minorite Pty Limited or a New Group Company, and a Charge, all
property charged or mortgaged by Dovevale Pty Limited, Minorite
page 1
Pty Limited or by the New Group Company (as the case may be) to
the Facility Agent under the Charge;
CHARGES means the fixed and floating charges and mortgages
granted in favour of the Facility Agent under the Securities;
FACILITY AGREEMENT means the A$400,000,000 Syndicated Senior
Secured Debt Facility Agreement dated on or about the date of
this deed between the Borrower, the Group Companies, the Facility
Agent and others as varied, supplemented and novated from time to
time;
GUARANTEE means, in relation to a New Group Company, Dovevale Pty
Limited and Minorite Pty Limited, the guarantee given by the New
Group Company, Dovevale Pty Limited or Minorite Pty Limited under
clause 20 of the Facility Agreement;
NEW GROUP COMPANY means each of Xxxxx Investments Pty Limited
(ACN 068 943 626), Chippawa Pty Limited (ACN 068 943 635) and
Wollongong Microwave Pty Limited (ACN 065 146 321);
NEW LICENCES means MDS licences owned by a New Group Company on
the Transfer Date;
REPLACEMENT SECURITY has the meaning given in clause 3.5(a);
RESTRUCTURE DATE means, in relation to any Specified Group
Securities, the date of transfer of those Specified Group
Securities consented to by the Facility Agent under clause 3.5 on
the conditions set out in clause 2;
SECURED MONEY has the meaning given to that term in the Debenture
Stock Trust Deed;
SPECIFIED COMPANIES means each of Selectra Pty Limited, Vinatech
Pty Limited, STV Pty Limited and CTV Pty Limited;
SPECIFIED GROUP SECURITIES means:
(a) in relation to CTV Pty Limited, all of the issued shares or
debentures in CTV Pty Limited held on the Restructure Date
by UIH Austar, Inc or Salstel Media Holdings Pty Limited;
(b) in relation to STV Pty Limited, all of the issued shares or
debentures in STV Pty Limited held on the Restructure Date
by Salstel Media Investments Pty Limited;
(c) in relation to Vinatech Pty Limited, all of the issued
shares in Vinatech Pty Limited held on the Restructure Date
by CTV Pty Limited or Salstel Media Holdings Pty Limited;
and
(d) in relation to Selectra Pty Limited, all of the issued
shares in Selectra Pty Limited held on the Restructure Date
by STV Pty Limited or Salstel Media Investments Pty Limited;
TRANSFER DATE means the date of the transfer of the New Licences
by the New Group Companies consented to by the Facility Agent
under clause 3.1(a) on the condition set out in clause 2, and
which date will not be before 9 July 1999.
page 2
(b) Subject to clause 1.1(a), unless the context indicates a contrary
intention, all terms defined in the Facility Agreement shall have
the same meaning in this deed.
1.2 INTERPRETATION
The provisions of clause 1.2 of the Facility Agreement shall be
incorporated into this document as if set out herein, with each
reference in it to "this Agreement" being read as a reference to "this
deed".
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2 CONDITIONS PRECEDENT
(a) The consents, releases and discharges contained in this deed are
subject to the conditions precedent that the Facility Agent
receives all of the following in form and substance satisfactory
to the Facility Agent and to its legal advisers:
(1) this document duly executed by the Borrower and each Group
Company;
(2) a certified copy of a resolution of the Board of Directors
of each of the Borrower and each Group Company authorising
the execution of this document;
(3) certified copies of any agreements or other documents
effecting the transfer of the New Licences referred to in
clause 3.1(a); and
(4) a certified copy of the resolution of the Board of Directors
of each New Group Company and each transferee of the New
Licences authorising the execution of documentation
necessary to effect the transfer of the New Licences in
accordance with clause 3.1(b).
(b) The consents releases and discharges referred to in clause 3.5(a)
and 3.5(b) are subject to the following additional conditions
precedent being satisfied to the satisfaction of the Facility
Agent and its legal advisers on or before the applicable
Restructure Date:
(1) the Facility Agent must have received evidence satisfactory
to it that the Specified Group Securities to be transferred
on the Restructure Date will be transferred on the
Restructure Date; and
(2) certified copies of any agreements or other documents
effecting the transfer of the Specified Group Securities
referred to in clause 3.5;
(3) the Replacement Security, if any, duly executed in a form
satisfactory to the Facility Agent; and
(4) a certified copy of the resolution of the Board of Directors
of each transferor and each transferee of the Specified
Group Securities referred to in clause 3.5 authorising the
execution of documentation necessary to effect the transfer
of Specified Group Securities in accordance with clause 3.5
and authorising the execution of any Replacement Security.
page 3
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3 CONSENT OF FACILITY AGENT
3.1 TRANSFER OF LICENCES
The Facility Agent consents to:
(a) the transfer of the New Licences by each New Group Company to a
member of the Group which, as at the Transfer Date, is a
Guarantor and which has granted a Security; and
(b) each New Group Company doing any act, matter or thing necessary
or desirable in order to effect the transfers referred to in
clauses 3.1(a).
3.2 RELEASE OF CHARGES
The Facility Agent:
(a) agrees to unconditionally and absolutely release the Charged
Property charged and mortgaged by Minorite Pty Limited and
Dovevale Pty Limited from each Charge granted by Minorite Pty
Limited and Dovevale Pty Limited to enable the distribution of
any MDS licences and any other property held by Minorite Pty
Limited or Dovevale Pty Limited to CTV Pty Limited or STV Pty
Limited on the winding up of Minorite Pty Limited and Dovevale
Pty Limited;
(b) agrees that with effect on and from the Transfer Date it
irrevocably, unconditionally and absolutely releases the Charged
Property charged by each New Group Company from each Charge
granted by each New Group Company and that each Charge granted by
each New Group Company on the Transfer Date will be discharged on
the Transfer Date;
(c) undertakes, at the cost of the Borrower, to sign such documents
and do such acts, matters or things as may be reasonably required
by the Borrower to notify the Australian Securities and
Investments Commission of the releases and discharges referred to
in clause 3.3(a) and 3.3(b).
3.3 RELEASE UNDER TRANSACTION DOCUMENTS
(a) Upon the releases under clause 3.2(a) becoming effective, the
Facility Agent irrevocably, unconditionally and absolutely
releases Minorite Pty Limited and Dovevale Pty Limited from all
past, present and future obligations and liabilities (actual,
contingent or otherwise) under and in respect of the Facility
Agreement and the Securities, including without limitation under
and in respect of each Guarantee granted by each of Minorite Pty
Limited and Dovevale Pty Limited.
(b) With effect on and from the Transfer Date, the Facility Agent
irrevocably, unconditionally and absolutely releases each New
Group Company from all past, present and future obligations and
liabilities (actual, contingent or otherwise) under and in
respect of the Facility Agreement and the Securities, including
without limitation under and in respect of each Guarantee granted
by each New Group Company.
page 4
3.4 WINDING UP
(a) The Facility Agent consents to the winding up of Dovevale Pty
Limited and Minorite Pty Limited.
(b) The Facility Agent consents to the winding up of each New Group
Company, provided that any winding up of a New Group Company
takes place after the Transfer Date.
3.5 TRANSFER OF SHARES AND DEBENTURES
(a) The Facility Agent consents to the transfer of any Specified
Group Securities by the holder of those Specified Group
Securities to an entity ("Transferee") which has, on or before
the Restructure Date, provided security ("Replacement Security")
over the Specified Group Securities to the Facility Agent in form
and substance acceptable to the Facility Agent.
(b) The Facility Agent agrees that, subject to clause 2, on the
Restructure Date in relation to any Specified Group Securities it
will:
(1) irrevocably, unconditionally and absolutely release the
Specified Group Securities from the Securities (other than
the Replacement Security) and will execute such deeds of
release as are reasonably required to effect such release
and will deliver to the Borrower all certificates of title
in respect of the Specified Group Securities held by it to
enable the transfer and the granting of the Replacement
Security to take place; and
(2) at the cost of the Borrower, sign such documents and do such
acts, matters or things as may be reasonably required by the
Borrower to notify the Australian Securities and Investments
Commission of the releases referred to in clause 3.5(b)(1).
(c) A Transferee must be at least one of the following:
(1) a company incorporated or taken to be incorporated under the
Corporations Law; or
(2) a member of the Group; or
(3) a Related Body Corporate of United International Holdings,
Inc; or
(4) an entity approved by the Facility Agent.
(d) The Borrower and each Group Company to which any Specified Group
Securities are transferred in accordance with clause 3.5(a)
hereby acknowledge that, upon the relevant transfer becoming
effective, the Specified Group Securities transferred to it in
accordance with clause 3.5(a) will be subject to the Charges
granted by it.
(e) This clause 3.5 may be relied on by a holder of Specified Group
Securities which is not a party to this deed and shall take
effect as a deed poll made by the Facility Agent in favour of any
such holder.
page 5
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4 COSTS
The Borrower shall on demand by the Facility Agent pay or reimburse
the Facility Agent for all stamp duty paid or payable in relation to
this deed and for all costs, expenses (including legal costs as
between solicitor and client) and other costs incurred by the Facility
Agent in settling, executing and stamping this deed and enforcing or
attempting to enforce this deed.
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5 REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS
5.1 REPRESENTATIONS AND WARRANTIES
The Borrower and each Group Company each hereby represents and
warrants to the Facility Agent that:
(a) all information provided by it or on its behalf to the Facility
Agent in or in connection with this deed is true and accurate
(taken as a whole) and is not incomplete or misleading in any
material respect by omitting to state any material fact; and
(b) no Event of Default or Potential Event of Default has occurred
under the Facility Agreement other than those disclosed to the
Facility Agent in writing prior to the date of this document.
5.2 CONFIRMATION AND REPEAT OF REPRESENTATION AND WARRANTIES
Each of the Borrower and each Group Company hereby confirms and
repeats each of the representations and warranties made by it in the
Facility Agreement including but without being limited to clause 16 of
the Facility Agreement (but excluding clauses 16.2(c), (d), (e) and
(f)) and with reference to the facts and circumstances subsisting as
at the date of this deed.
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6 GENERAL CONFIRMATIONS AND RATIFICATIONS
6.1 THE BORROWER
The Borrower hereby unconditionally and irrevocably:
(a) ratifies and confirms to the Facility Agent its continuing
obligations under the Facility Agreement and the Securities to
which it is a party; and
(b) acknowledges and agrees that except as provided in this deed the
provisions of the Facility Agreement and the Securities to which
it is a party shall in all respects apply.
6.2 THE GROUP COMPANIES
Each Group Company hereby unconditionally and irrevocably acknowledges
and agrees that the Facility Agreement and the guarantee and indemnity
contained therein apply mutatis mutandis to all obligations of the
Borrower to the Facility Agent which arise as a result of the
page 6
maintenance of the Facility to the Borrower and hereby ratifies and
confirms to the Facility Agent its continuing liability to the
Facility Agent and the Security Agent pursuant to the Facility
Agreement and the Securities to which it is a party, subject to this
deed in the case of the New Group Companies, Dovevale Pty Limited and
Minorite Pty Limited.
6.3 CONSENT BY THE GROUP COMPANIES
Each of the Borrower and each Group Company hereby irrevocably and
unconditionally consents to the provisions of this document and to the
releases and discharges contemplated and effected by it.
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7 PRESERVATION OF OTHER RIGHTS AND SECURITIES
Except as specifically provided in this deed, the discharges effected
by this deed will not prejudice:
(a) any other rights powers and privileges of the Facility Agent (or
any Bank) or the personal obligations of the Group Companies
under the Securities as regards the outstanding balance of the
Secured Moneys or the Obligations; or
(b) any Securities other than the Securities granted by the New Group
Companies, Dovevale Pty Limited and Minorite Pty Limited.
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8 MISCELLANEOUS
8.1 GOVERNING LAW
This document is construed in accordance with the laws of the State of
New South Wales and each of the parties hereto submits to the
non-exclusive jurisdiction of the courts and appellate courts of such
State.
8.2 COUNTERPARTS
This document may be executed in any number of counterparts, all of
which is taken together will be deemed to constitute one and the same
document.
page 7
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SCHEDULE 1 - GROUP COMPANIES
NAME JURISDICTION OF ACN ADDRESS
INCORPORATION IN
AUSTRALIA
CTV Pty Limited Queensland 064 416 128 Xxxxx 00, 000 Xxxxxx Xxxxxx
Xxxxxx, XXX 0000
STV Pty Limited South Australia 065 312 450 Xxxxx 00, 000 Xxxxxx Xxxxxx
Xxxxxx, XXX 0000
AUSTAR Services Pty Ltd South Australia 068 521 880 Xxxxx 00, 000 Xxxxxx Xxxxxx
Xxxxxx, XXX 0000
Selectra Pty Ltd South Australia 065 367 526 Xxxxx 00, 000 Xxxxxx Xxxxxx
Xxxxxx, XXX 0000
Vinatech Pty Ltd South Australia 065 366 314 Xxxxx 00, 000 Xxxxxx Xxxxxx
Xxxxxx, XXX 0000
Xxxxxxx Pty Ltd South Australia 064 744 869 Xxxxx 00, 000 Xxxxxx Xxxxxx
Xxxxxx, XXX 0000
Minorite Pty Ltd South Australia 068 943 484 Xxxxx 00, 000 Xxxxxx Xxxxxx
Xxxxxx, XXX 0000
Kidillia Pty Ltd South Australia 068 943 608 Xxxxx 00, 000 Xxxxxx Xxxxxx
Xxxxxx, XXX 0000
Dovevale Pty Ltd South Australia 068 943 591 Xxxxx 00, 000 Xxxxxx Xxxxxx
Xxxxxx, XXX 0000
Windytide Pty Ltd South Australia 068 943 546 Xxxxx 00, 000 Xxxxxx Xxxxxx
Xxxxxx, XXX 0000
Chippawa Pty Ltd South Australia 068 943 635 Xxxxx 00, 000 Xxxxxx Xxxxxx
Xxxxxx, XXX 0000
Xxxxx Investments Pty Ltd South Australia 068 943 626 Xxxxx 00, 000 Xxxxxx Xxxxxx
Xxxxxx, XXX 0000
Wollongong Microwave Pty Ltd South Australia 065 146 321 Xxxxx 00, 000 Xxxxxx Xxxxxx
Xxxxxx, XXX 0000
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page 8
EXECUTED AS A DEED:
AUSTAR ENTERTAINMENT PTY LIMITED
ACN 068 104 530
by its attorney in the
presence of:
/s/ Xxxxxxxxxxx Xxxxxxxxx /s/ Xxxxxx Xxxxxxx
------------------------------------------------ --------------------------------------------------
Witness Attorney
XXXXXXXXXXX XXXXXXXXX XXXXXX XXXXXXX
------------------------------------------------ --------------------------------------------------
Name (please print) Name (please print)
SIGNED SEALED AND DELIVERED for
CTV PTY LIMITED ACN 064 416 128
by its attorney in the
presence of:
/s/ Xxxxxxxxxxx Xxxxxxxxx /s/ Xxxxxx Xxxxxxx
------------------------------------------------ --------------------------------------------------
Witness Attorney
XXXXXXXXXXX XXXXXXXXX XXXXXX XXXXXXX
------------------------------------------------ --------------------------------------------------
Name (please print) Name (please print)
SIGNED SEALED AND DELIVERED for
STV PTY LIMITED ACN 065 312 450
by its attorney in the
presence of:
/s/ Xxxxxxxxxxx Xxxxxxxxx /s/ Xxxxxx Xxxxxxx
------------------------------------------------ --------------------------------------------------
Witness Attorney
XXXXXXXXXXX XXXXXXXXX XXXXXX XXXXXXX
------------------------------------------------ --------------------------------------------------
Name (please print) Name (please print)
page 9
SIGNED SEALED AND DELIVERED for
AUSTAR SERVICES PTY LTD
ACN 068 521 880
by its attorney in the
presence of:
/s/ Xxxxxxxxxxx Xxxxxxxxx /s/ Xxxxxx Xxxxxxx
------------------------------------------------ --------------------------------------------------
Witness Attorney
XXXXXXXXXXX XXXXXXXXX XXXXXX XXXXXXX
------------------------------------------------ --------------------------------------------------
Name (please print) Name (please print)
SIGNED SEALED AND DELIVERED for
SELECTRA PTY LTD ACN 065 367 526
by its attorney in the
presence of:
/s/ Xxxxxxxxxxx Xxxxxxxxx /s/ Xxxxxx Xxxxxxx
------------------------------------------------ --------------------------------------------------
Witness Attorney
XXXXXXXXXXX XXXXXXXXX XXXXXX XXXXXXX
------------------------------------------------ --------------------------------------------------
Name (please print) Name (please print)
SIGNED SEALED AND DELIVERED for
VINATECH PTY LTD
ACN 065 366 314
by its attorney in the
presence of:
/s/ Xxxxxxxxxxx Xxxxxxxxx /s/ Xxxxxx Xxxxxxx
------------------------------------------------ --------------------------------------------------
Witness Attorney
XXXXXXXXXXX XXXXXXXXX XXXXXX XXXXXXX
------------------------------------------------ --------------------------------------------------
Name (please print) Name (please print)
page 10
SIGNED SEALED AND DELIVERED for
XXXXXXX PTY LTD
ACN 064 744 869
by its attorney in the
presence of:
/s/ Xxxxxxxxxxx Xxxxxxxxx /s/ Xxxxxx Xxxxxxx
------------------------------------------------ --------------------------------------------------
Witness Attorney
XXXXXXXXXXX XXXXXXXXX XXXXXX XXXXXXX
------------------------------------------------ --------------------------------------------------
Name (please print) Name (please print)
SIGNED SEALED AND DELIVERED for
MINORITE PTY LTD
ACN 068 943 484
by its attorney in the
presence of:
/s/ Xxxxxxxxxxx Xxxxxxxxx /s/ Xxxxxx Xxxxxxx
------------------------------------------------ --------------------------------------------------
Witness Attorney
XXXXXXXXXXX XXXXXXXXX XXXXXX XXXXXXX
------------------------------------------------ --------------------------------------------------
Name (please print) Name (please print)
SIGNED SEALED AND DELIVERED for
KIDILLIA PTY LTD
ACN 068 943 068
by its attorney in the
presence of:
/s/ Xxxxxxxxxxx Xxxxxxxxx /s/ Xxxxxx Xxxxxxx
------------------------------------------------ --------------------------------------------------
Witness Attorney
XXXXXXXXXXX XXXXXXXXX XXXXXX XXXXXXX
------------------------------------------------ --------------------------------------------------
Name (please print) Name (please print)
page 11
SIGNED SEALED AND DELIVERED for
DOVEVALE PTY LTD
ACN 068 943 591
by its attorney in the
presence of:
/s/ Xxxxxxxxxxx Xxxxxxxxx /s/ Xxxxxx Xxxxxxx
------------------------------------------------ --------------------------------------------------
Witness Attorney
XXXXXXXXXXX XXXXXXXXX XXXXXX XXXXXXX
------------------------------------------------ --------------------------------------------------
Name (please print) Name (please print)
SIGNED SEALED AND DELIVERED for
WINDYTIDE PTY LTD
ACN 068 943 546
by its attorney in the
presence of:
/s/ Xxxxxxxxxxx Xxxxxxxxx /s/ Xxxxxx Xxxxxxx
------------------------------------------------ --------------------------------------------------
Witness Attorney
XXXXXXXXXXX XXXXXXXXX XXXXXX XXXXXXX
------------------------------------------------ --------------------------------------------------
Name (please print) Name (please print)
SIGNED SEALED AND DELIVERED for
CHIPPAWA PTY LTD
ACN 068 943 635
by its attorney in the
presence of:
/s/ Xxxxxxxxxxx Xxxxxxxxx /s/ Xxxxxx Xxxxxxx
------------------------------------------------ --------------------------------------------------
Witness Attorney
XXXXXXXXXXX XXXXXXXXX XXXXXX XXXXXXX
------------------------------------------------ --------------------------------------------------
Name (please print) Name (please print)
page 12
SIGNED SEALED AND DELIVERED for
XXXXX INVESTMENTS PTY LTD
ACN 068 943 626
by its attorney in the
presence of:
/s/ Xxxxxxxxxxx Xxxxxxxxx /s/ Xxxxxx Xxxxxxx
------------------------------------------------ --------------------------------------------------
Witness Attorney
XXXXXXXXXXX XXXXXXXXX XXXXXX XXXXXXX
------------------------------------------------ --------------------------------------------------
Name (please print) Name (please print)
SIGNED SEALED AND DELIVERED for
WOLLONGONG MICROWAVE PTY LTD
ACN 065 146 321
by its attorney in the
presence of:
/s/ Xxxxxxxxxxx Xxxxxxxxx /s/ Xxxxxx Xxxxxxx
------------------------------------------------ --------------------------------------------------
Witness Attorney
XXXXXXXXXXX XXXXXXXXX XXXXXX XXXXXXX
------------------------------------------------ --------------------------------------------------
Name (please print) Name (please print)
SIGNED SEALED AND DELIVERED for
CHASE SECURITIES AUSTRALIA LIMITED
ACN 002 888 011
by its attorney in the
presence of:
/s/ Xxxxxxx St. Xxxx /S/ XXXXX XXX
------------------------------------------------ --------------------------------------------------
Witness Attorney
XXXXXXX ST. XXXX XXXXX XXX
------------------------------------------------ --------------------------------------------------
Name (please print) Name (please print)
page 13
